144345787 Public International Law

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PUBLIC INTERNATIONAL LAWFinals ReviewerProf. H. HARRY L. ROQUE

Originally Prepared by:* Bok * Ceejay * Tif * Gem * Tin * This Finals Reviewer would not have been possible without the help of the following: ~ Lora ~ PJ ~ Carol ~ Jerome ~ Ben ~ Cathe ~ Easter ~ Mike ~ Marco ~ Dave ~ UPLAW 2009B

This Updated Edition by: Karichi E. Santos UP Law B2012



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I. IN GENERAL1HIGGINS, Chapter 1: The Nature and Function of International LawHow is International Law defined in the light of developments in international legal relations since the end of the Second World War? International law is a body of legal principles, norms and PROCESSES which regulates the relations of States and other international persons, and governs their conduct affecting the interests of the international community as a whole. Why should International Law beviewed as a NORMATIVE SYSTEM and not merely a set of rules? y The rules view assumes that the law is indeed rules Because it is not! Decision makers in International Law don t just find the relevant rule, it s just part of the entire process. The accumulated trend of past decisions should not be applied oblivious of its context. y However, the specialized social process to which the word law refers to include many things beside rules e.g. power of social and humanitarian factors. Itavoids partiality which may be utilized to attain political ends. y Rules are just accumulated past decisions which were formulated within a certain context once the context has changed, these rules will be unable to fix today s problems whi

ch will lead to these rules being ineffective and will inevitably be disobeyed yLacunae there are still topics on which there are no specific rules of IL; thusthe view of IL as merely rules creates a gap in the law. But by viewing IL as aprocess, we have available to us the tools for authoritative decision making onthe problem, notwithstanding the absence of a precise rule which must be applied. Sir Roque says: What s wrong with the rules based definition ? y Advantage of viewing IL as a process: When the set rules no longer apply, there may be the emergence of a new rule or norm. Law is divorced from reality. It s incapable of changing with the times. y Take for instance the Southwest African case: Who founded state of Liberia? Runaway slaves intended for delivery to US. Broke away from cargo ships and founded what is now called land of free slaves. They question the practice of apartheid systematic segregation based on race. It went to court and what did it want from the court? Enforce systematic mode of segregation, in breac

h of trusteeship. This was in the 50s. Instead of deciding on the merits, it ruled affirmatively on the preliminary objection. Why did the court said there s no jurisdiction? It was not a legal issue. Court only had competence to deal with legal issue. It was a useless tribunal. What kind of tribunal would say that systematic segregation of black was only moral and ethical issue? Blatant discrimination on the basis of skill. Consequence: create other courts. Eat a humble pie and turned 360 degree Portugal v. C. Right to selfdetermination is not a fundamental right but an erga omnes. Any state has right to advance the right even without suffering special injury. y It widens the gap between what the law is (lex lata)and what the law should be (lex ferenda).

y

Competent decision makers and policy makers, e.g. domestic judges and international organizations while considering rules, will also consider other factors andthat s a fact.

What is the basis of International Law s binding nature? / Why do states and individuals recognize International Law as law? 1. NATURAL LAW some writers suggest that it is in the natural order of things that certain matters should be regulated in a compulsory manner. An obligatory foundation to the basic precept of justice is to be found in natural law 2. CONSENT this view is based on the sovereignty of states, which in turn emphasizes their freedom to act unilaterally save to



the extent they agreed upon to be constrained. 3. RECIPROCITY as notions of justice were replaced by consent, so consent has gradually been replaced by consensus which has come about because states perceive a reciprocal advantage in cautioning self-restraint. Who are the subjects of the law? y States y Individuals y International organizations

II. SOURCES OF INTERNATIONAL LAWArt. 38, ICJ Statute 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expresslyrecognized by the contesting states; b. international custom, as evidence of ageneral practice accepted as law; c. the general principles of law recognized bycivilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono,if the parties agree thereto. Art 59, ICJ Statute The decision of the Court hasno binding force except between the parties and in respect of that particular case. Article 53, 1969 Vienna Convention on Treaties Treaties conflicting with a peremptory norm of general international law ( jus cogens ) - A treaty is void if, atthe 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 an

d which can be modified only by a subsequent norm of general international law having the same character. What are the sources of international law? As identified in Article 38(1) of the ICJ Statute, these sources are as follows:

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Thanks to Bok, PJ, and Lora for this part.



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international conventions, whether general or particular, establishing rules expressly recognized by contesting States; international custom, as evidence of a general practice accepted as law; and the general principles of law recognized bycivilized nations.

Sources of law refer to norms derived from international conventions or treaties, customs, and general principles of law. The distinctive character of these norms is that they are created, or they acquire binding effect through the methodspointed above. Treaty and custom are the primary sources of international law. While a treaty is a legal instrument which constitutes a material source of norms, treaty-making is a norm-creating process, a method of formalizing the consentof States by which they intend to be bound by the treaty. The formation of custom is as well as a norm- creating method. A formal source of customary norms. SirRoque says: y Does Art 38 (1) of ICJ statute purport to provide the source of IL? No! It only provides that the enumeration is what the Courtshall apply. y Isthere a hierarchy? Yes! A-C are primary means while D is the subsidiary means. S

o do not cite subsidiary means unless you have no other formal source. y Majority view: treaties are formal sources. y Can A,B,C overlap? Yes! E.g. Genocide issourced from international conventions and customs. What is the effect if a treaty norm and a customary norm y overlap? Even non-signatories to the convention will become bound by the norm. This overlap effect was first illustrated in the Kuroda case. y Take a look at Art. 38 No. 1c international custom, as evidence ofgeneral practice accepted as law the correct phrasing International custom, as evidenced by general practice accepted as law. y Violations of law can lead to formation of a new law. A number of writers have distinguished formal sources from material sources of international law. What is the distinction? A. Formal sourcesconsist of the methods and procedures by which norms are created; which entity promulgated the law which is binding E.g. In municipal law, the constitutional machinery of law making Sir Roque says: The ICJ cannot be considered a formal sour

ce because it does not have concept of stare decisis. Not even United Nations General Assembly resolutions because such resolutions are merely restatements of customs. B. Material sources are the substantive evidence of the existence of norms. It supplies the substance of the rule to which the formal sources gives theforce and nature of law; evidence that the norm in fact exists E.g. A rule, for example, will be considered legally binding as customary norm or custom on accountof the process or method by which it was created through the formation of general practice accepted as law. Hence, custom as a normcreating process is a formalsource of law. Its content in terms of state practice arising from a sense of legal duty is its material source. Sir Roque says: the RA in printed form Sir Roque: Despite the absence of an international congress we can still point out specific sources of international law.

What are the elements of INTERNATIONAL CUSTOM ? The elements of custom or customaryinternational norm are: 1. Duration 2. Uniformity, consistency of practice 3. Generality of practice, characterized by uniformity and consistency 4. Opinio juris sive necessitatis, or general practice accepted as law - recognition of the practices that are legally bindingy y y

State practice as an element of customary law must be both extensive and virtuallyuniform . North Sea Case Some degree of uniformity is required. Anglo-



Norwegian case In the Asylum case, it considers general practice as constant and uniform usage practiced by States in question. But in any event, universality of practice is NOT REQUIRED.

y

Repetition of practice or actions of states is necessary. A customary norm of international law arises in consequence of the repeated action of states. The element of repetition is basic to the formation of a rule of conduct. In the majority of instances the repetition of specific actions in analogous situations can lead to the consolidation of such practice as a rule of conduct. According to Judge Hudson: elements which must be present before a PRINCIPLE OF INTERNATIONAL CUSTOM can be found to be established : a. concordant practice by a number of states with reference to a type of situation falling within the domain of internationalrelations continuation or repetition of the practice over a considerable periodof time conception that the practice is required by or consistent with prevailing international law general acquiescence in the practice by other states.

b. c. d.

How is OPINION JURIS understood? In the formation of international law norms through custom, States create law by what they do in practice OR by their conduct. Opinio juris means that in doing so, they must believe that the practice or conduct is obligatory. They do so for the reason that the practice is required by law,

and not merely because of courtesy or political expediency. Are judicial decisions and teaching of publicists sources of international law? y Decisions of national courts are not sources of law as such. They are merely subsidiary means forthe determination of rules of law . They are regarded as evidence of norms of international law. They are the means by which the rules of law may be verified. Inother words, they may be regarded as evidence of law. y Strictly speaking, the Court does not observe a doctrine of precedent but strives nevertheless to maintain judicial consistency. y Writings of publicist are only evidence of law, but in some subjects, individual writers had had a formative influence, like Gidel s contribution to the Law of the Sea. Sir Roque says: International law is not whatthe ICJ says because: y there is no principle of stare decisis in ICJ itself



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ICJ decisions are therefor only material source, that is, subsidiary means

covering Land Warfare, he is charged of crimes not based on law, national and international. RP Consti. adopts the generally accepted principles of international law as part of the law of the nation. EO68 and prescribing rules and regulationsgoverning the trial of accused war criminals is valid and constitutional since Art. 2 of our Constitution provides in its section 3, that The Philippines renounces war as an instrument of national policy, and adopts the generally accepted principles of international law as part of the law of the nation. So even without local legislation, the Constitution has provided for the application of international law. The rules & regulations of the Hague, Geneva Conventions form part ofare wholly based on the generally accepted principles of international law. Evenif RP is not a signatory to the Hague Conv. and signed the Geneva Conv. only in1947, it can t be denied that the rules and regulations of the Hague and Geneva conv. form part of and are wholly based on the generally accepted principles of i

nternational law. In fact, these rules and principles were accepted by the 2 belligerent nations, US and Japan, who were signatories to the 2 Conventions. Suchrules and principles, therefore, form part of the law of our nation even if RP was not a signatory to the conventions embodying them, for our Constitution has been deliberately general and extensive in its scope and is not confined to the recognition of rules and principles of international law as contained in treatiesto which our government may have been or shall be a signatory.

Equity in judgments and advisory opinions of the ICJ? y Cannot be strictly a source of law but it may be an important factor in the process of decision y Example of cases which used equity: 1. North Sea Continental Shelf cases 2. FisheriesJurisdiction cases 3. Burkina Faso-Mali case: equity infra legem 4. Barcelona Traction y Ex aequo et bono: involves elements of compromise and conciliation Sir

Roque says: Equity is a vague concept; it belies the existence of a legal system; debases the theoretical assumption that there is predictability in law. What is a JUS COGENS NORM ? A jus cogens or peremptory or is a norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify by agreement. In general, how do norms of international law come into being? They are created by States through definite norm-creating methods accepted orrecognized by them as means of expressing their consent as to the binding effect of those norms. Hence, international law is based on their normative consent.The methods of creating or recognizing norms are referred to as sources of law.By means of treaty or convention and custom, States create or recognize norms asbinding law. Norms created by treaty are on the whole called conventional international law ; those by custom are called customary international law.

Yamashita v. Styer (1945)Sir Roque says: - Mankind in general has been covered by laws governing as far back the ancient times. As such, the Philippine is bound by customary law. Yamashita was the former commanding general of the Japanese Imperial Army in the Philippines, and now charged before an American Military Commission with the most monstrous crimes ever committed against the Americans and Filipinos. This is his petition for habeas corpus and prohibition. Yamashita contends that the MC was notduly constituted, and, therefore without jurisdiction and that there is againsthim no charge of an offense against the laws of war. The Court held that his pe



tition for habeas corpus is untenable since he seeks no discharge from confinement but merely his restoration to his former Prisoner of War status. Likewise, his petition for prohibition can neither prosper since the MC is not made party respondent in this case. PERFECTO, J., concurring and dissenting: International law (in particular IHL) evolved from custom & practice throughout history. Many ofthe basic ideas which prevail today in the customs and usages of nations and became part of the international law emerged from the human mind centuries beforethe Christian Era. Such is the idea that prisoners of war are entitled to humanetreatment, that treasons of war should be discountenanced, and that belligerents must abstain from causing harm to non-combatants. RP is bound to comply with established rules in treating war criminals. Impelled by irrepressible endeavorsaimed towards the ideal, by the unconquerable natural urge for improvement, by the unquenchable thirstiness of perfection in all orders of life, humanity has been struggling during the last two dozen centuries to develop an international law which could answer more and more faithfully the demands of right and justice as expressed in principles which, weakly enunciated at first in the rudimentary juristic sense of peoples of

Kuroda v. Jalandoni (1949)Sir Roque says: - General principles of law are mostly remedial principles. - Itis possible for treaties and customary norm to overlap. - Effect if a treaty merely codifies norms: Follow the exception to the general rule (non-signatory states are not bound by a treaty) a. binds countries of the world b. whether or notthey are signatories to the treaty - Customary norms bind everyone who follow t

hat custom. - This finds support in the Incorporation Clause of the ConstitutionGeneral principles of law (as opposed to treaties) automatically form part of the law of the land. - There is even no need for an incorporation clause! What isimportant is we are part of the community of nations! Kuroda, the commanding General of the Japanese Imperial Forces in the RP during WWII, was charged beforethe AFP formed Military Commission, for having unlawfully disregarded and failed to discharge his duties as such commander to control the operations of members of his command, permitting them to commit brutal atrocities and other high crimesagainst noncombatant civilians and prisoners of the Japanese Forces, in violation of the laws and customs of war. Kuroda contests the legality of Executive Order No. 68 which established the National War Crime Office to prosecute those whohave offended war crimes. Kuroda argues that since the Philippines is not a signatory to the Hague Convention on Rules and Regulations




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antiquity, by the inherent power of their universal appeal to human conscience,at last were accepted, recognized, and consecrated by all the civilized nationsof the world. Under these principles, Yamashita is entitled to be accorded all the guarantees, protections, and defenses that all prisoners should have, according to the customs and usages, conventions and treaties, judicial decisions and executive pronouncements, and generally accepted opinions of thinkers, legal philosophers and other expounders of just rules and principles of international law.The seriousness or unfathomable gravity of the charges against him must not betaken into consideration in order that true justice may be administered in thiscase.

Nicaragua v. US (1986)Sir Roque says: Nicaragua is authority on 1. Definition of armed attack GOOGLE THIS! 2. Control test when action of armed group is an act of state 3. When self-defense can be invoked 4. Duty of state when found in breach a. duty to cease inthe breach b. duty to make reparations i. restore status quo ante ii. if imposs

ible, pay compensation to extinguish consequences of illegal acts 5. Customary norm has separate applicability even if part of a treaty. 6. Existence of the rule on opinio juris of States must be confirmed by practice. Nicaragua filed an Application instituting proceedings against the US in respect of a dispute concerning responsibility for military and paramilitary activities in and against Nicaragua (mining of ports, air space infringement, support to the contras, economicmeasures). Nicaragua contends that the US, in recruiting, training, arming, equipping, financing, supplying and otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and against Nicaragua, has violated and is violating its express charter and treaty obligations to Nicaragua, andin particular the UN Charter, the Charter of the Organization of American States, the Convention on Rights and Duties of States, and the Convention concerning the Duties and Rights of States in the Event of Civil Strife. The US declaration

of acceptance of the compulsory jurisdiction of the Court under Article 36, paragraph 2, of the Statute contained a reservation excluding from operation of thedeclaration: "disputes arising under a multilateral treaty, unless (1) all parties to the treaty affected by the decision are also parties to the case before the Court, or (2) the United States of America specially agrees to jurisdiction".Invoking its multilateral treaty reservation, US argues that adjudication of claims based on those treaties (i.e. UN Charter, OAS Charter) is barred. Thus the effect of the reservation in question is not merely to prevent the ICJ from deciding upon Nicaragua's claims by applying the multilateral treaties in question; it further prevents it from applying in its decision any rule of customary international law the content of which is also the subject of a provision in those multilateral treaties (that all principles of customary and general international law are barred, as these are subsumed and supervened by the provisions of the UN

Charter.) The Court held that such acts of the US constitute breaches of obligations under customary international law not to intervene in the affairs of another state, not to use force against another state, not to violate the sovereigntyof another state. Customary law operates independently of treaty law. It ratherdemonstrates that in the field in question, customary international law continues to exist alongside treaty law. The areas governed by

the two sources of law thus do not overlap exactly, and the rules do not have the same content. But even if the customary norm and the treaty norm were to haveexactly the same content, this would not be a reason for the Court to hold that



the incorporation of the customary norm into treaty-law must deprive the customary norm of its applicability as distinct from that of the treaty norm. There area number of reasons for considering that, even if two norms belonging to two sources of international law appear identical in content, and even if the States in question are bound by these rules both on the level of treaty-law and on thatof customary international law, these norms retain a separate existence. This isso from the standpoint of their applicability. In a legal dispute affecting twoStates, one of them may argue that the applicability of a treaty rule to its own conduct depends on the other State's conduct in respect of the application ofother rules, on other subjects, also included in the same treaty. For example, if a State exercises its right to terminate or suspend the operation of a treatyon the ground of the violation by the other party of a "provision essential to the accomplishment of the object or purpose of the treaty", it is exempted, vis-a-vis the other State, from a rule of treaty-law because of the breach by that other State of a different rule of treaty-law. But if the two rules in question also exist as rules of customary international law, the failure of the one State to apply the one rule does not justify the other State in declining to apply theother rule. Rules which are identical in treaty law and in customary international law are also distinguishable by reference to the methods of interpretation and application. A State may accept a rule contained in a treaty not simply because it favors the application of the rule itself, but also because the treaty establishes what that State regards as desirable institutions or mechanisms to ensure implementation of the rule. Thus, if that rule parallels a rule of customary international law, two rules of the same content are subject to separate treatmen

t as regards the organs competent to verify their implementation, depending on whether they are customary rules or treaty rules. Court must make a determinationof state practice & opinio juris. Bound as it is by Art. 38 of its Statute to apply international custom "as evidence of a general practice accepted as law", the Court may not disregard the essential role played by general practice. In thefield of customary international law, the shared view of the Parties as to thecontent of what they regard as the rule is not enough. The Court must satisfy itself that the existence of the rule in the opinio juris of States is confirmed by practice. Conduct of a state must be consistent with the rule. The Court doesnot consider that, for a rule to be established as customary, the correspondingpractice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that inst

ances of State conduct inconsistent with a given rule should generally have beentreated as breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications containedwithin the rule itself, then whether or not the State's conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule. Opinio juris can be deduced from attitude of states toward certain GA resolutions. This opinio juris may, though with all due caution, bededuced from the attitude of the Parties and the attitude of States towards certain General Assembly resolutions, i.e. the "Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the UN". The effect of consent to the text of such resolutions cannot be




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understood as merely that of a "reiteration or elucidation" of the treaty commitment undertaken in the Charter. On the contrary, it may be understood as an acceptance of the validity of the rule or set of rules declared by the resolution bythemselves. The principle of non-use of force, for example, may thus be regarded as a principle of customary international law, not as such conditioned by provisions relating to collective security, or to the facilities or armed contingents to be provided under Article 43 of the Charter. It would therefore seem apparent that the attitude referred to expresses an opinio juris respecting such rule(or set of rules), to be thenceforth treated separately from the provisions, especially those of an institutional kind, to which it is subject on the treaty-lawplane of the Charter. Recognition that a rule is fundamental or a jus cogens establishes CIL. A further confirmation of the validity as customary internationallaw of the principle of the prohibition of the use of force expressed in Article 2 of the UN Charter of may be found in the fact that it is frequently referredto in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law

. Nicaragua in its Memorial on the Merits states that the principle prohibitingthe use of force embodied in Article 2 "has come to be recognized as jus cogens.The US, in its Counter-Memorial on the questions of jurisdiction and admissibility, found it material to quote the views of scholars that this principle is a "universal norm", a "universal international law", a "universally recognized principle of international law", and a "principle of jus cogens".

North Sea Continental Shelf Cases (1969)Sir Roque says: The ILC composed of experts is created by the UN GA to codify CIL. Since, their work deals with customary norms, their drafts/works are subsidiary means of discovering CIL. It contemplates four situations: 1. Purely treaty norm custom 2. If treaty is a norm, then binding on all even non-parties to a treaty. 3. Custom is binding on all. 4. Treaty custom is binding on all. How do we

know if a given norm has become customary? [if you still don t know this, you ll never never never know PIL] 1. State practice 2. Opinio juris belief that the normis accepted as law As to probative value of ILC created by the GA to codify customary international law norms How much time is needed in order for a treaty obligation to be considered as having crystallized into a customary norm? 1. Time isnot of the essence 2. The only key is that there is extensive and virtually uniform state practice. Denmark, Germany and the Netherlands have submitted to theCourt certain differences concerning 'the delimitation as between the Parties ofthe areas of the continental shelf in the North Sea which appertain to each ofthem. The Court is requested to decide what are the applicable 'principles and rules of international law'. Germany proposed that delimitation of the continental shelf between the parties is governed by the principle that each coastal Stateis entitled to a just and equitable share. Germany contents that making use of t

he equidistance method of Article 6, paragraph 2, of the Continental

Shelf Convention, had not become customary international law and was not under the circumstances the appropriate method. The equidistance method could not be used where it would not achieve a just and equitable apportionment of the shelf. As for Denmark and the Netherlands, delimitation should be governed by the principle of Art. 6, par. 2, and that where the parties were in disagreement as to theboundary and special circumstances did not justify another boundary, then the boundary between them is to be determined by the application of the principle of equidistance from the nearest points of the baselines from which the breadth of t



he territorial sea of each State is measured. The boundary should be determined on the basis of the exclusive rights of each Party over the continental shelf adjacent to its coast and of the principle that the boundary is to leave to each Party every point of the continental shelf which lies nearer to its coast than tothe coast of the other Party. Netherlands and Denmark argue that the use of thismethod is not in the nature of a merely conventional obligation, but is, or mustnow be regarded as involving, a rule that is part of the corpus of general international law;-and, like other rules of general or customary international law,is binding on Germany automatically and independently of any specific assent, direct or indirect, given by the latter. This contention has both a positive law and a more fundamentalist aspect. As a matter of positive law, it is based on thework done in this field by international legal bodies, on State practice and onthe influence attributed to the Geneva Convention itself,-the claim being thatthese various factors have cumulatively evidenced or been creative of the opinion juris sive necessitatis, requisite for the formation of new rules of customaryinternational law. In its fundamentalist aspect, the view put forward derives from what might be called the natural law of the continental shelf, in the sensethat the equidistance principle is seen as a necessary expression in the field of delimitation of the accepted doctrine of the exclusive appurtenance of the continental shelf to the nearby coastal State, and therefore as having an a prioricharacter of so to speak juristic inevitability. The Court does not agree with the contentions of Netherlands and Denmark. In considering the equidistance method, the International Law Commission's discussions reveal that not only was the notion of equidistance never considered from the standpoint of its having a prior

i a character of inherent necessity: it was never given any special prominence at all, and certainly no priority. The Court notes that the principle of equidistance, as it now figures in Art. 6, was proposed by the ILC with considerable hesitation, somewhat on an experimental basis, at most de lege ferenda (ideal norm), and not at all de lege lata or as an emerging rule of customary internationallaw. This is clearly not the sort of foundation on which Art. 6 of the Convention could be said to have reflected or crystallized such a rule. Denmark & Netherlands further argues that even if, at the date of the Geneva Convention on the Continental Shelf, no rule of CIL in favor of the equidistance principle and no such rule was crystallized in Art. 6, such a rule has come into being since the convention, partly because of its own impact, partly on the basus of subsequent state practice. The Court does not agree Provision should be norm-creating. It would be necessary that the provision should, at all events potentially, be of a fun

damentally norm-creating character such as could be regarded as forming the basis of a general rule of law. Considered in abstracto the equidistance principle might be said to fulfill this requirement. Yet in the particular form in which itis embodied in Art. 6, and having regard to the relationship of that Article toother provisions, this must be open to some doubt. In the first place, Art. 6 is so framed as to put ND 2 the obligation to make use of the equidistance method, causing it to come after a primary obligation to effect delimitation by agreement. Such a primary obligation constitutes an unusual preface to what is claimedto be a potential general rule of law. Without




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attempting to enter into, still less pronounce upon any question of jus cogens,it is well understood that, in practice, rules of international law can, by agreement, be derogated from in particular cases, or as between particular parties,-but this is not normally the subject of any express provision, as it is in Art.6. Secondly the part played by the notion of special circumstances relative to the principle of equidistance as embodied in Art. 6, and the very considerable, still unresolved controversies as to the exact meaning and scope of this notion,must raise further doubts as to the potentially norm-creating character of the rule. Finally, the faculty of making reservations to Art. 6, while it might not of itself prevent the equidistance principle being eventually received as generallaw, does add considerably to the difficulty of regarding this result as havingbeen brought about (or being potentially possible) on the basis of the Convention: for so long as this faculty continues to exist, and is not the subject of any revision brought about in consequence of a request made under Art. 13-of whichthere is at present no official indication-it is the Convention itself which would, for the reasons already indicated, seem to deny to the provisions of Art. 6

the same norm-creating character as, for instance, Art. 1 and 2 possess. Widespread & representative participation in the convention including specially affected states. Regarded necessary before a conventional rule can be considered to have become a general rule of international law might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. Passage of time immaterialin the formation of a new rule of CIL. Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period inquestion, short though it might be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtua

lly uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a general recognition that a rule of law or legalobligation is involved.

cease the practice of apartheid in the Territory. Furthermore, South Africa, byvirtue of the economic, political, social and educational policies applied within SWA has failed to promote to the utmost the material and moral well-being andsocial progress of the inhabitants of the Territory; that its failure to do so is in violation of its obligations as stated in the second paragraph of Article 2of the Mandate and Article 22 of the Covenant; and that the Union has the dutyforthwith to cease its violations as aforesaid and to take all practicable action to fulfill its duties under such Articles. Court can only rule on legal rights/obligations. It had been attempted to derive a legal right or interest in the c

onduct of the Mandate from the simple existence, or principle, of the "sacred trust". The sacred trust, it was said was a "sacred trust of civilization" and hence all civilized nations had an interest in seeing that it was carried out. Butin order that this interest might take on a specifically legal character the sacred trust itself must be or become something more than a moral or humanitarian ideal. In order to generate legal rights and obligations, it must be given juridical expression and be clothed in legal form. The moral ideal must not be confused with the legal rules intended to give it effect. The principle of the "sacredtrust" had no residual juridical content which could, so far as any particular mandate is concerned, operate per se to give rise to legal rights and obligations



outside the system as a whole.

Asylum Case Haya Dela Torre (Columbia/Peru, 1950)Doctrines: - No uniform practice and opinio juris in this case. Therefore, no customary norm. - Principles of IL do not recognize any rule of unilateral and definitive qualification by the State granting diplomatic asylum. - The party whichrelies on a custom of this kind must prove that this custom is established in such a manner that it has become binding on the other party. The applicant must prove that the rule invoked by it is in accordance with a constant and uniform usage practiced by the States in question. Sir Roque says: There are two basic rights involved in this case: 1. Right of non-refoulement (re-fu-ma) pending administrative inquiry as to entitlement to refugee status, you should not be broughtback to your homestate 2. Right to not be prosecuted when one enters a state ofrefuge notwithstanding lack of visa/passport Who is a refugee? A person who hasto leave his/her home either: 1. to avoid prosecution 2. to avoid armed conflictNote: There must be a physical crossing of national border. Main issue: WON Colombia s unilateral and definitive qualification that dela Torre is a political refugee is binding on Peru such that he can be given safe conduit passage to Columbia? Colombia contends as the country granting asylum that it is competent to qualify the offence for the purpose of the said asylum, within the limits of the obligations resulting in particular from the Bolivarian Agreement on Extradition,and the Convention on Asylum, and of American international law in general and that Peru, as the territorial State, is bound in the case now before the Court togive the guarantees necessary for the departure of Haya de la Torre from the co

untry, with due regard to the inviolability of his person. Peru, on the other hand, contends that the grant of asylum by the Colombian Ambassador at Lima to Haya de la Torre was made in violation of

Southwest Africa Case (2nd Phase, 1966)Sir Roque says: This is a legal challenge brought by Ethiopia & Liberia againstSouth Africa with respect to the practice of apartheid (although never mentionedhere!!!). It shows how neutral rules can lead to bias and partiality. The action is based on the mandate given to South Africa to promote the material & moralwell-being & social progress of inhabitants of the South West African territory.The Court did not decide on the merits because it did not consider the case asinvolving a legal issue because there was no law prohibiting apartheid. The Applicants tried to derive a legal right or interest in the conduct of the Mandate f

or South West Africa from the simple principle of the sacred trust . The principlesset forth here have been obliterated in latter cases. Fundamental equality is now considered an erga omnes obligation since it is a fundamental human right. Southwest Africa (SWA) contends that South Africa, exercising administrative powers over the their territory by virtue of a mandate practiced apartheid, i.e., hasdistinguished as to race, color, national or tribal origin in establishing therights and duties of the inhabitants of the Territory; that such practice is inviolation of its obligations as stated in Article 2 of the Mandate and Article 22 of the Covenant of the League of Nations; and that the Union has the duty forthwith to




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Article 1, paragraph 1, and Article 2, paragraph 2, item I (inciso primera), ofthe Convention on Asylum." Custom = constant uniform usage. The Party which relies on a custom of this kind must prove that this custom is established in such amanner that it has become binding on the other Party. The Colombian Governmentmust prove that the rule invoked by it is in accordance with a constant and uniform usage practised by the States in question, and that this usage is the expression of a right appertaining to the State granting asylum and a duty incumbent on the territorial State. This follows from Article 38 of the Statute of the Court, which refers to international custom as evidence of a general practice accepted as law. In support of its contention concerning the existence of such a custom,the Colombian Government has referred to a large number of extradition treatieswhich, as already explained, can have no bearing on the question now under consideration. It has cited conventions and agreements which do not contain any provision concerning the alleged rule of unilateral and definitive qualification such as the Montevideo Convention of 1889 on international penal law, the Bolivarian Agreement of 1911 and the Havana Convention of 1928. It has invoked convention

s which have not been ratified by Peru, such as the Montevideo Conventions of 1933 and 1939. The Convention of 1933 has, in fact, been ratified by not more thaneleven States and the Convention of 1939 by two States only. It is particularlythe Montevideo Convention of 1933 which Counsel for the Colombian Government has also relied on in this connection. It is contended that this Convention has merely codified principles which were already recognized by Latin-American custom,and that it is valid against Peru as a proof of customary law. The limited number of States which have ratified this Convention reveals the weakness of this argument, and furthermore, it is invalidated by the preamble which states that this Convention modifies the Havana Convention.

flag. The tyrannical intolerance of said dictatorships toward all opposition induced them to resort to beastly oppression, concentration camps and blood purges,

& it is only natural that the not-so-fortunate ones who were able to escape toforeign countries should feel the loss of all bonds of attachment to the hells which were formerly their fatherland's. Petitioner belongs to that group of stateless refugees. Certificate of arrival not essential, declarations or intention to become a Fil. citizen is sufficient to grant citizenship. The records of the Bureau of Justice, where the declarations of intention to become a Filipino citizen were filed, had been lost or destroyed during the battle for the liberation of Manila, & the certificate alluded to has not been reconstituted. Appellant's contention that attachment of the certificate of arrival is essential to the validity of a declaration finds no support in the wordings of the law, as Sec. 5 ofCommonwealth Act no. 473 uses the words "has been issued.

Nuclear Test Cases (1974)

Doctrine: Unilateral declarations can be binding. When it is the intention of the State making the declaration that it should become bound according to its terms, that intention confers on the declaration the character of a legal undertaking. An undertaking of this kind, if given publicly, and with an intent to be bound, even though not made within the context of international negotiations, is binding. The Court has found that the claim of New Zealand/Australia no longer hadany object and that the Court was therefore not called upon to give a decision thereon. The proceedings instituted before the Court concerned the legality of atmospheric nuclear tests conducted by France in the South Pacific; the original and ultimate objective of New Zealand/Australia is to obtain a termination of tho



se; France, by various public statements made in 1974, has announced its intention, following the completion of the 1974 series of atmospheric tests, to cease the conduct of such tests; the Court finds that the objective of New Zealand/Australia has in effect been accomplished, inasmuch as France has undertaken the obligation to hold no further nuclear tests in the atmosphere in the South Pacific;the dispute having thus disappeared, the claim no longer has any object and there is nothing on which to give judgment. With regard France s declaration, the first of these statements is contained in a communiqué which was issued by the Officeof the President of the French Republic on 8 June 1974 and transmitted in particular to the Applicant: ". . . in view of the stage reached in carrying out theFrench nuclear defence programme France will be in a position to pass on to thestage of underground explosions as soon as the series of tests planned for thissummer is completed". Further statements are contained in a Note from the FrenchEmbassy in Wellington, a letter from the President of France to the Prime Minister of New Zealand, a press conference given by the President of the Republic, aspeech made by the Minister for Foreign Affairs in the United Nations General Assembly and a television interview and press conference by the Minister for Defense. The Court considers that these statements convey an announcement by Franceof its intention to cease the conduct of atmospheric nuclear tests following theconclusion of the 1974 series. Unilateral acts may have the effect of creatinglegal obligations. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal obligations. Nothing in the nature of a quid pro quo, nor any subsequent acceptance, nor even any reaction from other States is

Kookooritchkin v. The Solicitor General (1948)(to be read in connection with the asylum case) Sir Roque says: We are civilizedpeople now so we don t do harsh things to each other. Apo ni Ronald si Jacky Kookooritckin, yung tisay na TV show host. Kookooritchkin, a former Russian citizen,filed a petition for naturalization, accompanied with supporting affidavits of2 citizens, copy of a sworn declaration of intention and proper notice of the hearing. But due to the Japanese invasion, the case was suspended and the documents presented were destroyed. The case was reconstituted after the war and a resolution was eventually issued granting the petition. What constitutes a statelessrefugee. Although a Russian by birth he is not a citizen of Soviet Russia. He disclaims allegiance to the present Communist Government of Russia. He is, therefore, a stateless refugee in this country, belonging to no State, much less to the

present Government of the land of his birth to which he is uncompromisingly opposed. He is not against organized government or affiliated with any associationwhich upholds and teaches doctrine opposing all organized governments. He does not believe in the necessity or propriety of violence, personal assault or assassination for the success or predominance of his ideas. Neither is he a polygamistor a believer in the practice of polygamy. He is not suffering from any mentalalienation or incurable contagious disease. Appellee's testimony, besides beinguncontradicted, is supported by the well-known fact that the ruthlessness of modern dictatorship has scattered throughout the world a large number of statelessrefugees or displaced persons, without country and without




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required for such declaration to take effect. Neither is the question of form decisive. The intention of being bound is to be ascertained by an interpretation of the act. The binding character of the undertaking results from the terms of the act and is based on good faith interested States are entitled to require thatthe obligation be respected. In the present case, the Applicant, while recognizing the possibility of the dispute being resolved by a unilateral declaration onthe part of France, has stated that, in its view, the possibility of further atmospheric tests has been left open, even after the French statements mentioned above. The Court must, however, form its own view of the meaning and scope intended to be given to these unilateral declarations. Having regard to their intentionand to the circumstances in which they were made, they must be held to constitute an engagement of the French State. France has conveyed to the world at large,including the Applicant, its intention effectively to terminate its atmospherictests. It was bound to assume that other States might take note of these statements and rely on their being effective. It is true that France has not recognized that it is bound by any rule of international law to terminate its tests, but

this does not affect the legal consequences of the statements in question, the unilateral undertaking resulting from them cannot be interpreted as having been made in implicit reliance on an arbitrary power of reconsideration.

interpretation or revision, which would have been open to the Applicant in any event). Secondly, however, the Court found that that special procedure would onlybe available to the Applicant if circumstances were to arise which affected thebasis of the 1974 Judgment. And that, it found, was not the case, as the basisof that Judgment was France's undertaking not to conduct any further atmosphericnuclear tests and only a resumption of nuclear tests in the atmosphere would therefore have affected it. It is not possible for the Court now to take into consideration questions relating to underground nuclear tests; and that the Court cannot, therefore, take account of the arguments derived by New Zealand, on the on

e hand from the conditions in which France has conducted underground nuclear tests since 1974, and on the other from the development of international law in recent decades - and particularly the conclusion, on 25 November 1986, of the Noumea Convention - any more than of the arguments derived by France from the conductof the New Zealand Government since 1974. It finally observes that its Order iswithout prejudice to the obligations of States to respect and protect the natural environment, obligations to which both New Zealand and France have in the present instance reaffirmed their commitment

Legality of the Use of a State of Nuclear Weapons (1996)Doctrines: - United Nations General Assembly, even if non-binding, may be used as evidence of state practice and opinio juris. It has probative values. - No opinio juris: The non-use of nuclear weapons was susceptible to two explanations. I

t may be said that the states don t like. However, the nuclear states may say thatthere s no need for them to use it because it s an effective deterrent to armed conflicts. - Final catch-all provision of the Hague Convention: Marten s clause: In default of specific treaty or legal basis, mankind continue to be under the protection of public international law, public conscience and laws of humanity. Sir Roque says: How can they say that it s not public health issues? This is the second most notorious ICJ decision, second only to Southwest Africa case. What do they mean by saying possession of nuclear weapons not per se illegal, only when used inan armed conflict. The Secretary-General of the United Nations officially communicated to the Registrar the decision taken by the General Assembly to submit a q






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also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it ofits character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute". Nor are the political nature of the motives which may be said to have inspired the request or the political implications that the opinion given might have of relevance in the establishment of the Court's jurisdiction to give such an opinion. The applicable law: UN charter, IHL,particular treaties. In the light of the foregoing the Court concludes that themost directly relevant applicable law governing the question of which it was seized, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant. Unique characteristics of nuclear weapons: highlydestructive. The Court notes that in order correctly to apply to the present case the Charter law on the use of force and the law applicable in armed conflict,in particular humanitarian law, it is imperative for it to take account of the u

nique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come. Provisions of the charter relating to the threat or use of force: not weapon specific. The Court then addresses the question of the legality or illegality of recourse to nuclear weapons in the light of theprovisions of the Charter relating to the threat or use of force. In Article 2,paragraph 4, of the Charter the use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. This prohibition of the useof force is to be considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military en

forcement measures in conformity with Chapter VII of the Charter. These provisions do not refer to specific weapons. They apply to any use of force, regardlessof the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. Necessity & proportionality. The entitlement to resort to self-defence under Article 51 is subject tothe conditions of necessity and proportionality. As the Court stated in the caseconcerning Military and Paramilitary Activities in and against Nicaragua: "there is a specific rule whereby self-defence would warrant only measures which areproportional to the armed attack and necessary to respond to it, a rule well established in customary international law". The proportionality principle may thusnot in itself exclude the use of nuclear weapons in self-defence in all circumstances. But at the same time, a use of force that is proportionate under the lawof selfdefence, must, in order to be lawful, also meet the requirements of the

law applicable in armed conflict which comprise in particular the principles andrules of humanitarian law. And the Court notes that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear responsein self-defence in accordance with the requirements of proportionality. In orderto lessen or eliminate the risk of unlawful attack, States sometimes signal that they possess certain weapons to use in selfdefence against any State violatingtheir territorial integrity or

political independence. Whether a signaled intention to use force if certain eve



nts occur is or is not a "threat" within Article 2, paragraph 4, of the Charterdepends upon various factors. The notions of "threat" and "use" of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal - for whatever reason - the threatto use such force will likewise be illegal. In short, if it is to be lawful, thedeclared readiness of a State to use force must be a use of force that is in conformity with the Charter. For the rest, no State - whether or not it defended the policy of deterrence - suggested to the Court that it would be lawful to threaten to use force if the use of force contemplated would be illegal. Rules on the lawfulness or unlawfulness of nuclear weapons as such. International customaryand treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self-defense. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition. No treaty which expressly prohibits nukes. It does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899, the Regulations annexed to the HagueConvention IV of 1907 or the 1925 Geneva Protocol. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. But the Court does not find any specific prohibition of recourse to nuclear w

eapons in treaties expressly prohibiting the use of certain weapons of mass destruction; and observes that, although, in the last two decades, a great many negotiations have been conducted regarding nuclear weapons, they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons. The Court notes that the treaties dealing exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use, certainly point to an increasing concern in the international community with these weapons; It concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but that they do not constitute such aprohibition by themselves. As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made in connection with the indefiniteextension of the Treaty on the NonProliferation of Nuclear Weapons, it emerges

from these instruments that: (a) a number of States have undertaken not to use nuclear weapons in specific zones (Latin America; the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons); (b) nevertheless, even within thisframework, the nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances; and (c) these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council. Cannot determine WON there s opinio juris. The Court then turns to an examination of customary international law to determine whether a prohibition of the threat or use of nuclear weapons as such flows



UP Law B2009 Reviewer (Karichi Edition) from that source of law.

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It notes that the Members of the international community are profoundly dividedon the matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the expression of an opinio juris. Under these circumstances theCourt does not consider itself able to find that there is such an opinio juris.It points out that the adoption each year by the General Assembly, by a large majority, of resolutions recalling the content of resolution 1653 (XVI), and requesting the member States to conclude a convention prohibiting the use of nuclearweapons in any circumstance, reveals the desire of a very large section of the international community to take, by a specific and express prohibition of the useof nuclear weapons, a significant step forward along the road to complete nuclear disarmament. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the doctrine of deterrence (in which the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening thevital security interests of the State is reserved) on the other. International h

umanitarian law. After sketching the historical development of the body of ruleswhich originally were called "laws and customs of war" and later came to be termed "international humanitarian law", the Court observes that the cardinal principles contained in the texts constituting the fabric of humanitarian law are thefollowing. The first is aimed at the protection of the civilian population andcivilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian andmilitary targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weaponscausing them such harm or uselessly aggravating their suffering. In applicationof that second principle, States do not have unlimited freedom of choice of means in the weapons they use. Martens clause. The Court also refers to the Martens

Clause, which was first included in the Hague Convention II with Respect to theLaws and Customs of War on Land of 1899 and which has proved to be an effectivemeans of addressing the rapid evolution of military technology. A modern versionof that clause is to be found in Article 1, paragraph 2, of Additional ProtocolI of 1977, which reads as follows: "In cases not covered by this Protocol or byother international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience." The extensive codification of humanitarian law and the extent of the accession to the resultant treaties, as well as the fact that the denunciation clauses that existed in the codification instruments have never been used, have provided the international community with a corpus of treaty rules the great majority of which had already become customary and which reflected the most universall

y recognized humanitarian principles. These rules indicate the normal conduct and behavior expected of States. Turning to the applicability of the principles and rules of humanitarian law to a possible threat or use of nuclear weapons, theCourt notes that nuclear weapons were invented after most of the principles and

rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. However, in the Court's view, it cannot be concluded from this that the established principles and rules of humanitarian law applicable



in armed conflict did not apply to nuclear weapons. Such a conclusion would beincompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of thepresent and those of the future. In this respect it seems significant that thethesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. The principle of neutrality. The Court finds that as in the case of the principles of humanitarian law applicable in armed conflict, international law leaves no doubt that the principle of neutrality, whatever its content, which is ofa fundamental character similar to that of the humanitarian principles and rules, is applicable (subject to the relevant provisions of the United Nations Charter), to all international armed conflict, whatever type of weapons might be used.Conclusions to be drawn from the applicability of international humanitarian law and the principle of neutrality. According to one point of view, the fact thatrecourse to nuclear weapons is subject to and regulated by the law of armed conflict, does not necessarily mean that such recourse is as such prohibited. Another view holds that recourse to nuclear weapons, in view of the necessarily indiscriminate consequences of their use, could never be compatible with the principles and rules of humanitarian law and is therefore prohibited. A similar view hasbeen expressed with respect to the effects of the principle of neutrality. Likethe principles and rules of humanitarian law, that principle has therefore beenconsidered by some to rule out the use of a weapon the effects of which simplycannot be contained within the territories of the contending States. The Court o

bserves that, in view of the unique characteristics of nuclear weapons, to whichthe Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. It considers nevertheless, that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance. Furthermore, the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice referred to as "policy of deterrence", to which an appreciable section of the international community adhered for many years.Accordingly, in view of the present state of international law viewed as a whole, as examined by the Court, and of the elements of fact at its disposal, the Co

urt is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of selfdefence, in which its very survival would be at stake. Obligationto negotiate nuclear disarmament. Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons, the Court considers that it needs to examine one further aspect of the question before it, seen in a broader context. In the long run, international law, and with it the stability of the international order




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which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result. In these circumstances, the Court appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects - by adopting a particularcourse of conduct, namely, the pursuit of negotiations on the matter in good faith. This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community. Indeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States.

pursuing their vocation of catching and bringing in fresh fish, have been recognized as exempt, with their cargoes and crews, from capture as prize of war. TheCourt discussed the history of the custom exempting coastal fishers from capturebeginning with King Henry IV s orders to his admirals in 1403 to the relevant practices of France, Holland, Prussia, and the US. The Court also noted cases in the past in different jurisdictions which decided the issue in the same light. Also, the Court noted, legal writings and treatieses of legal experts and luminaries which provide for the exemption of fishing/commercial vessels.

Preah Vihear Temple Case (1962)- Estoppel and acquiescence are general principles of law which can be a basis of international law. Sir Roque says: - Thailand and Cambodia are again on the ve

rge of war because of this. - These principles are exactly the same ones found in the Civil Code. What are the elements of estoppel? [1] act or representation [2] reliance [3] damage The Court held that the Temple of Preah Vihear was situated in territory under the sovereignty of Cambodia and, in consequence, that Thailand was under an obligation to withdraw any military or police forces, or otherguards or keepers, stationed by her at the Temple, or in its vicinity on Cambodian territory. It also found that Thailand was under an obligation to restore toCambodia any sculptures, stelae, fragments of monuments, sandstone model and ancient pottery which might, since the date of the occupation of the Temple by Thailand in 1954, have been removed from the Temple or the Temple area by the Thaiauthorities. Application of doctrines (general principles of law) of estoppel &acquiescence. The map was never formally approved by the Mixed Commission, whichhad ceased to function some months before its production. While there could be

no reasonable doubt that it was based on the work of the surveying officers in the Dangrek sector, the Court nevertheless concluded that, in its inception, it had no binding character. It was clear from the record, however, that the maps were communicated to the Siamese Government as purporting to represent the outcomeof the work of delimitation; since there was no reaction on the part of the Siamese authorities, either then or for many years, they must be held to have acquiesced. The maps were moreover communicated to the Siamese members of the Mixed Commission, who said nothing. to the Siamese Minister of the Interior. If the Siamese authorities accepted the Annex I map without investigation, they could notnow plead any error vitiating the reality of their consent. The Siamese Governme



nt and later the Thai Government had raised no query about the Annex I map priorto its negotiations with Cambodia in Bangkok in 1958. Thailand had neverthelesscontinued also to use and indeed to publish maps showing Preah Vihear as lyingin Cambodia. Moreover, in the course of the negotiations for the 1925 and 1937 Franco-Siamese Treaties, which confirmed the existing frontiers, and in 1947 in Washington before the Franco-Siamese Conciliation Commission, it would have beennatural for Thailand to raise the matter: she did not do so. The natural inference was that she had accepted the frontier at Preah Vihear as it was drawn on themap, irrespective of its correspondence with the watershed line. Moreover, whenin 1930 Prince Damrong, on a visit to the Temple, was officially received thereby the French Resident for the adjoining Cambodian province, Siam failed to react. From these facts, the court concluded that Thailand had accepted the

The Paquete Habana (The Paquete Habana and The Lola) (1900)Doctrines - Ancient usage has ripened into international law. - International Humanitarian Law is not only customary in nature but also jus cogens. - Exemptingof fishing vessels was founded on considerations of humanity to a poor and industrious order of men, and of the mutual convenience of belligerent states which rely on the livelihood of fishing. Sir Roque says: - The treaties which established the EXEMPTION OF FISHING VESSELS, though bilateral, became source of customary norm because, during the period they were signed, there were only very few countries. Also, the signatories, being maritime nations, can be considered as specially affected states. The technique used by the court to establish the norm isthrough customary law and subsidiary means as evidence of the norm. - But is the

passage of time important? No. As long as there is widespread and virtually uniform state practice. Although because of the development in science and technology, what took hundreds of years before, could now become customary norm overnight. - Why are the exempt from being taken as price of war? Because if they are not protected, no one would engage in fishing and that would deprive civilian population with source of food. - Techniques used by the Court to establish the norm1. Customary law 2. Subsidiary means as evidence of the norm The Court held that the capture of the fishing vessel was unlawful and without probable cause, onthe ground that, as a rule of international law, fishing vessels are exempt fromcapture as a prize of war. The Court ordered that the decree of the District Court be reversed, and the proceeds of the sale of the vessel, together with the proceeds of any sale of her cargo, be restored to the claimant, with damages andcosts. Ancient usage ripened to rule of international law. By an ancient usage a

mong civilized nations, beginning centuries ago, and gradually ripening into a rule of international law, coast fishing vessels,




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Annex I map. Even if there were any doubt in this connection, Thailand was precluded from asserting that she had not accepted it since France and Cambodia had relied upon her acceptance and she had for fifty years enjoyed such benefits as the Treaty of 1904 has conferred on her. Furthermore, the acceptance of the AnnexI map caused it to enter the treaty settlement; the Parties had at that time adopted an interpretation of that settlement which caused the map line to prevailover the provisions of the Treaty and, as there was no reason to think that theParties had attached any special importance to the line of the watershed as such, as compared with the overriding importance of a final regulation of their ownfrontiers, the Court considered that the interpretation to be given now would bethe same.

Passage Case (Portugal v. India)Doctrine Constant and uniform practice between states is also a source of international law. There is no need to resort to general international custom nor to general principles of law in disposing of such cases when there is an established

practice between the parties. Portugal has a territory in the Indian Peninsulamade up of the three districts of Goa, Daman and Diu. The district of Daman comprises, in addition to its littoral territory, two parcels of territory completely surrounded by the territory of India which constitute enclaves: Dadra and Nagar-Aveli. Portugal has been passing through Indian territory through the years inorder to the enclaves of Dadra and Nagar- Aveli. However in 1954, the Government of India prevented Portugal from exercising this right of passage. Portugal claims that there was a local custom in its favor with the right of passage over the territory. Portugal claims that the denial of passage by India was done due to India s open campaign to annex Portugese territories. Existence of local custombetween two states. The Court says that it is difficult to see why the number ofStates between which a local custom may be established on the basis of long practice must necessarily be larger than two. There is no reason why long continued

practice between two States accepted by them as regulating their relations should not form the basis of mutual rights and obligations between the two States. The dispute arises at the time of the creation of the obstacles. The question wasput to the Court in respect of the dispute, which has arisen between India andPortugal with regard to obstacles placed by India in the way of passage. It wasin support of this contention that it invoked its right of passage and asked theCourt to declare the existence of that right. This being so, it is the eve of the creation of these obstacles that must be selected as the starting point whichto ascertain whether or not Portugal possessed such a right. Right of passage.With regard to private persons, civil officials and goods in general, there existed during the British and post-British, periods a constant and uniform practiceallowing free passage between Daman and the enclaves. This practice having continued over a period extending beyond a century and a quarter unaffected by the c

hange of regime in respect of the intervening territory which occurred when India became independent. Practice was accepted as law by the Parties and has givenrise to a right and a correlative obligation. In 1954, a right of passage over intervening Indian territory between coastal Daman and the enclaves and between the enclaves, in respect of private persons, civil officials and goods in general, to the extent

necessary, as claimed by Portugal, for the exercise of its sovereignty over theenclaves, and subject to the regulation and control of India. There was a cleardistinction between the practice permitting free passage of private persons, civ



il officials and goods in general, and the practice requiring previous authorization, as in the case of armed forces, armed police, and arms and ammunition. There was no right of passage in favour of Portugal involving a correlative obligation on India has been established in respect of armed forces, armed police, andarms and ammunition. The course of dealings established between the Portuguese and the British authorities with respect to the passage of these categories excludes the existence of any such right. The practice that was established shows that, with regard to these categories, it was well understood that passage could take place only by permission of the British authorities. This situation continuedduring the post-British period. No breach of international obligation when custom was subject to regulation of the other party. In view of the tension then prevailing in intervening Indian territory, the Court is unable to hold that India srefusal of passage to the proposed delegation and its refusal of visas to Portuguese nationals of European origin and to native Indian Portuguese in the employof the Portuguese Government was action contrary to its obligation resulting from Portugal s right of passage. Portugal s claim of a right of passage is subject tofull recognition and exercise of Indian sovereignty over the intervening territory and without any immunity in favour of Portugal. India s refusal of passage in those cases was, in the circumstances, covered by its power of regulation and control of the right of passage of Portugal.

Corfu Channel Case (1949)Doctrine Remedial law principles such as circumstantial evidence can actually bea basis for finding factual disputes. Sir Roque says: This case highlights the

customary nature of IHL. A British destroyer vessel struck a mine and was gravely damaged while passing through the Corfu Channel in the territorial waters of Albania. The other destroyer was sent to her assistance and, while towing her, struck another mine and was also seriously damaged. The Court held that Albania had breached its obligation under international law to notify states regarding thedanger of passing through a body of water due to presence of mines in its territorial sea. Allowance for admission of circumstantial evidence, a general principle of law. The exclusive control exercised by a State within its frontiers maymake it impossible to furnish direct proof of facts which would involve its responsibility in case of a violation of international law. The State which is the victim must, in that ease, be allowed a more liberal recourse to inferences of fact and circumstantial evidence; such indirect evidence must be regarded as of especial weight when based on a series of facts, linked together and leading logic

ally to a single conclusion. In the present case two series of facts, which corroborate one another, have to be considered. The first relates to the Albanian Government's attitude before and after the catastrophe. The laying of the mines took place in a period in which it had shown its intention to keep a jealous watchon its territorial waters and in which it was requiring prior authorization before they were entered, this vigilance sometimes going so far as to involve the use of force: all of which render the assertion of ignorance a priori improbable.Moreover, when the Albanian Government had become fully aware of the




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existence of a minefield, it protested strongly against the activity of the British Fleet, but not against the laying of the mines, though this act, if effectedwithout her consent, would have been a very serious violation of her sovereignty; she did not notify shipping of the existence of the minefield, as would be required by international law; and she did not undertake any of the measures of judicial investigation which would seem to be incumbent on her in such a case. Such an attitude could only be explained if the Albanian Government, while knowingof the mine laying, desired the circumstances in which it was effected to remainsecret. The second series of facts relates to the possibility of observing themine laying from the Albanian coast. Geographically, the channel is easily watched: it is dominated by heights offering excellent observation points, and it runs close to the coast. The methodical and well-thought-out laying of the mines compelled the minelayers to remain from two to two-and-a-half hours in the waters.In regard to that point, the naval experts appointed by the Court reported, after enquiry and investigation on the spot, that they considered it to be indisputable that, if a normal look-out was kept and if the lookouts were equipped with

binoculars, under normal weather conditions for this area, the mine-laying operations must have been noticed by these coastguards. From all the facts and observations mentioned above, the Court draws the conclusion that the laying of the minefield could not have been accomplished without the knowledge of Albania. As regards the obligations resulting for her from this knowledge, they are not disputed. It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on October 22nd of the danger to which they were exposed.In fact, nothing was attempted by Albania to prevent the disaster, and these grave omissions involve her international responsibility.

State s espousal of claims on behalf of its nationals. International law does notprevent one State from granting to another the right to have recourse to international arbitral tribunals in order to obtain the direct award to nationals of th

e latter State of compensation for damage suffered by them as a result of infractions of international law by the first State. Reparation = indemnity for damages caused. It is a principle of international law that the reparation of a wrongmay consist in an indemnity corresponding to the damage which the nationals of the injured State have suffered as a result of the act which is contrary to international law. In estimating the damage caused by an unlawful act, only the valueof property, rights and interests which have been affected and the owner of which is the person on whose behalf compensation is claimed, or the damage done towhom is to serve as a means of gauging the reparation claimed, must be taken into account. The damage suffered is equivalent to the total value - but to that total only - of the property, rights and interests of this Company in that undertaking, without deducting liabilities. The reparation due by one State to anotherdoes not however change its character by reason of the fact that it takes the fo

rm of an indemnity for the calculation of which the damage suffered by a privateperson is taken as the measure. The rules of law governing the reparation are the rules of international law in force between the two States concerned, and notthe law governing relations between the State which has committed a wrongful act and the individual who has suffered damage. The damage suffered by an individual is never therefore identical in kind with that which will be suffered by a State; it can only afford a convenient scale for the calculation of the reparationdue to the State. Reparation, defined. The essential principle contained in theactual notion of an illegal act - a principle which seems to be established byinternational practice and in particular by the decisions of arbitral tribunals



- is that reparation must, as far as possible, wipe-out all the consequences ofthe illegal act and re-establish the situation which would, in all probability,have existed if that act had not been committed. When restitution not possible,then reparation. Restitution in kind, or if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award,if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it - such are the principles which should serve to determine the amount of compensation due for an act contrary to international law. Reparation, as applied in this case. This conclusion particularly applies as regards the Geneva Convention, the object of which is to provide for themaintenance of economic life in Upper Silesia on the basis of respect for the status quo. The dispossession of an industrial undertaking (which is prohibited bythe Geneva Convention) then involves the obligation to restore the undertakingand, if this be not possible, to pay its value at the time of the indemnification, which value is designed to take the place of restitution which has become impossible. To this obligation, in virtue of the general principles of international law, must be added that of compensating loss sustained as the result of the seizure. The impossibility of restoring the Chorzów factory could therefore have noother effect but that of substituting payment of the value of the undertaking for restitution; it would not be in conformity with the principles of law or withthe wish of the

Chorzow Factory Case (Germany v. Poland) (1928)Doctrines - The reparation of a wrong may consist in an indemnity corresponding

to the damages which the nationals of the injured state have suffered as a result of the act which is contrary to international law. - Reparation is the indispensable complement of a failure to apply a convention. - Taking of property requires compensation. If restoration is not possible, remedy is compensation to suchamount as to eliminate all effects of illegal taking. Sir Roque says: - What isthe general principle of law in the case? Reparation for the taking of propertyrequires compensation. Reparation is due when there is a breach of an obligation. - When an expropriation is legal, the amount of the reparation is the logistical value of the property taken at the time of the expropriation. However, whenthere is an unlawful taking, the amount of reparation includes the intangible assets (loss of profits). The German empire had a contract with a company, where the company undertook to establish for the Reich and forthwith to begin the construction of a nitrate factory at Chorzow, Upper Silesia. Subsequently, Poland and

Germany signed a Convention concerning the Upper Silesia of Geneva (Geneva Convention). A Polish was then delegated with the full powers to take charge of thefactory, thus, causing the end of the contract between Germany and the companies. Germany brought action in behalf of the companies against Poland for the taking of the companies in violation of the Geneva Conventions.



UP Law B2009 Reviewer (Karichi Edition) Parties to infer from that agreement thatthe question of compensation must henceforth be dealt with as though an expropriation properly so called was involved.

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(Some notes on the case from BP v. Libya: The Chorzow Factory case is the leading case on the proposition that restitutio in integrum is a recognized remedy ofInternational Law. However, the judgment is not authority on the point, for theClaimant (the German Government) did not claim restitutio in integrum, and anything the Court stated on the availability of that remedy is obiter.)

General Rule: State of the company can seek redress. International law had to refer to those rules generally accepted by municipal legal systems. An injury to the shareholder's interests resulting from an injury to the rights of the companywas insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of internationallaw expressly conferred such a right on the shareholder's national State. Excep

tional circumstances. The Court considered whether there might not be, in the present case, special circumstances for which the general rule might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action. As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that the corporate entity of the company had ceased to exist or that it had lost its capacity to takecorporate action. So far as the second possibility was concerned, it was not disputed that the company had been incorporated in Canada and had its registered office in that country, and its Canadian nationality had received general recognition. The Canadian Government had exercised the protection of Barcelona Tractionfor a number of years. If at a certain point the Canadian Government ceased to

act on behalf of Barcelona Traction, it nonetheless retained its capacity to doso, which the Spanish Government had not questioned. Whatever the reasons for the Canadian Government's change of attitude, that fact could not constitute a justification for the exercise of diplomatic protection by another government. It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a State's national economic resources, were prejudicially affected in violation of the right of the State itself tohave its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain.

Barcelona Traction, Light and Power Company Case (Belgium v. Spain) (1970)Doctrines - That a corporation has a juridical personality distinct from its sha

reholders is a general principle of law. [Case was about corporate personalities(Canada) vs. shareholders (Belgium) Belgium has no jus standi] - Where one of the parties involved is a municipal entity, such as a CORPORATION, reference maybe made to relevant principles of municipal law. Sir Roque says: - What is the other gen principle of law in this case? Evidence also forms part of general principle of law and therefore a source of IL. Those PIL professors don t know a thingabout bonds and shares!!! The BTLPC, was incorporated in Toronto (Canada) for the purpose of creating and developing an electric power production and distribution system in Catalonia (Spain). It formed a number of subsidiary companies, ofwhich some had their registered offices in Canada and the others in Spain. Some



years after the first world war Barcelona Traction share capital came to be verylargely held by Belgian nationals. The servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war the Spanishexchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Eventually, the company was declared bankrupt. Belgium filed an application with theICJ against the Spanish government seeking reparation of damages claimed to have been caused to the Belgian national shareholders of the company. Municipal lawapplied to international law. In the field of diplomatic protection, international law was in continuous evolution and was called upon to recognize institutions of municipal law. In municipal law, the concept of the company was founded ona firm distinction between the rights of the company and those of the shareholder. Only the company, which was endowed with legal personality, could take actionin respect of matters that were of a corporate character. A wrong done to the company frequently caused prejudice to its shareholders, but this did not imply that both were entitled to claim compensation. Whenever a shareholder's interestswere harmed by an act done to the company, it was to the latter that he had tolook to institute appropriate action. An act infringing only the company's rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complainedof must be aimed at the direct rights of the shareholder as such (which was notthe case here since the Belgian Government had itself admitted that it had notbased its claim on an infringement of the direct rights of the shareholders).

Texaco v. Libya (1978)Doctrine - In determining the binding nature of GA resolutions, the court lookedto the voting patterns of the participant states. It is generally recommendatory but may serve as an indicia of norm. - Doctrine of specially affected states:Sir Roque says: - The method of looking into voting patterns and employing the specially affected states doctrine do not fully and totally assess WON a resolutionis binding. State Practice + Opinio Juris still has to be proved. Sir does notapprove of this method. - The issue here is no longer whether Libya can nationalize (because it could, as recognized in another case), but whether in case of expropriation, which law prevails (domestic or industrial)? Why will it matter tofigure out? Imagine when a private airport owned by a German is expropriated byPhilippine government. Will it matter whether Pasay RTC will have jurisdiction or the ICJ? Pasay will naturally have stronger influence to co-Filipinos. Applica

tion of




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local laws is beneficial for the state. Investor is favored in international law. Libya promulgated decrees purporting to nationalize all of the rights, interests and property of Texaco in Libya granted to them jointly under 14 Deeds of Concession. The Companies objected to the decrees and claimed that such action by the Libyan Government violated the terms and conditions of their Deeds of Concession. The Companies requested arbitration. The Sole Arbitrator held that (a) theDeeds of Concession are binding on the parties, (b) by adopting the measures ofnationalization, the Libyan Government breached its obligations arising under the Deeds of Concession and (c) the Libyan Government is legally bound to performthe Deeds of Concession and to give them their full force and effect. Libya argues that with respect to nationalization, municipal law should govern and not international law. Several UN G.A. resolutions were invoked by both parties. Thus the court had to look into the legal value and validity of such resolutions and their binding effect to the parties. Legal value of resolutions to be determinedon the basis of the circumstances under which they were adopted & analysis of the principles they state. The legal value of the resolutions which are relevant t

o the present case can be determined on the basis of circumstances under which they were adopted (ex. voting pattern) and by analysis of the principles which they state. Resolutions in order to be binding must be accepted by the members especially those specially affected. With respect to the first point, the absence of any binding force of the resolutions of the General Assembly of the United Nations implies that such resolutions must be accepted by the members of the UnitedNations in order to be legally binding. In this respect, the Tribunal notes that only Resolution 1803 (XVII) of 14 December 1962 was supported by a majority ofMember States representing all of the various groups. By contrast, the other Resolutions mentioned, and in particular those referred to in the Libyan Memorandum, were supported by a majority of States but not by any of the developed countries with market economies which carry on the largest part of international trade. Distinguish between those stating an existing right & those introducing new pr

inciples. The appraisal of the legal value on the basis of the principles stated, it appears essential to this Tribunal to distinguish between those provisionsstating the existence of a right on which the generality of the States has expressed agreement and those provisions introducing new principles which were rejected by certain representative groups of States and having nothing more than a delege ferenda (what the law ought to be); value only in the eyes of the States which have adopted them; as far as the others are concerned, the rejection of these same principles implies that they consider them as being contra legem (againstthe law). With respect to the former, which proclaim rules recognized by the community of nations, they do not create a custom but confirm one by formulating it and specifying its scope, thereby making it possible to determine whether or not one is confronted with a legal rule. As has been noted by Ambassador Castaneda, "[such resolutions] do not create the law; they have a declaratory nature of

noting what does exist" Resolution 1803 reflects the state of customary law based on adoption of majority of states & opinio juris. On the basis of the circumstances of adoption mentioned above and by expressing an opinio juris communis, Resolution 1803 (XVII) seems to this Tribunal to reflect the state of customary law existing in this field. Indeed, on the occasion of the vote on a resolution finding the existence of a customary rule, the States concerned clearly express their views. The consensus by a majority of States belonging to the various

representative groups indicates without the slightest doubt universal recognition of the rules therein incorporated, i.e., with respect to nationalization and c



ompensation the use of the rules in force in the nationalizing State, but all this in conformity with international law.

BP v. LibyaDoctrine In determining the binding nature of GA resolutions, the court looked to the voting patterns of the participant states. Sir Roque says: - The method oflooking into voting patterns and employing the specially affected states doctrinedo not fully and totally assess WON a resolution is binding. State Practice + Opinio Juris still has to be proved. Sir does not approve of this method. - The issue here is no longer whether Libya can nationalize (because it could, as recognized in another case), but whether in case of expropriation, which law prevails(domestic or industrial)? Why will it matter to figure out? Imagine when a private airport owned by a German is expropriated by Philippine government. Will itmatter whether Pasay RTC will have jurisdiction or the ICJ? Pasay will naturallyhave stronger influence to co-Filipinos. Application of local laws is beneficial for the state. Investor is favored in international law. BP Exploration Company (BP) had a contractual agreement with the Government of Libya (Libya), which allowed BP to operate in Libya for the extraction, processing and export of petroleum. The area in which BP was allowed to operate was called Concession 65. However, Libya, in December 1971 passed the BP Nationalization Law, which nationalized the operations of BP in Concession 65, restoring to the State ownership of all properties, rights, assets and shares in the operations conducted in the saidarea, and then transferring these to a new company, the Arabian Gulf ExplorationCompany. As a result of the Nationalization Law (which was rapidly implemented)

BP s operations in Concession 65 were brought to a complete halt and its staff were immediately excluded from the premises and facilities. The Arabian Gulf Exploration Company had taken over Concession 65. Applicable law in the case. Clause28 of the concession agreement provides that should dispute arise, the applicable law shall be the principles of the law of Libya common to the principles of international law, and only if such common principles do not exist with respect toa particular matter, will resort be made to general principles of law. In the event that international law and Libyan law conflict on the issue, general principles of law should apply to resolve the question. The governing system of law iswhat the clause expressly provides, that in the absence of principles common tothe Libyan and International law, general principles of law, including those that may have been applied by international tribunals, should apply. Specific Performance not applicable here. In the decisions of tribunals, while arbitral tribu

nals can declare awards which include the declaration of specific performance against a recalcitrant party, their powers and jurisdiction to do so rest carefully on the parties consent. Examined in the light of general principles of law, thelegal systems analyzed here offer different solutions to the problem. Thus these municipal systems of law profess allegiance to two divergent principles on thequestion. It is therefore NOT POSSIBLE to hold that under general principles oflaw an agreement fundamentally abrogated by one party continues in force and isto be specifically performed indefinitely until the innocent party terminates it, for




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under English and American law the sole remedy is damages and in others specificperformance does not lie against the State. It is clear then, that there does not exist a uniform general principle of law that an agreement continues in effect after being repudiated by one party but not the other, and there is no uniformprinciple which provides that specific performance is a remedy available at theoption of an innocent party. Restitutio in integrum not applicable again. As torestitutio in integrum, while it has been claimed, especially in the form of physical restoration, no tribunal has ever prescribed the remedy with regard to such property or parties as in these proceedings. The concept has rather been employed at times as a principle for assessing the amount of damages due for breachof an international obligation. The impossibility of restitution and specific performance. The claim would not even be realistic; such an action, which has theeffect of turning back the clock would upset the current situation too profoundly and would have unforeseeable practical consequences. Furthermore, if awarded now and the contract would still be allowed to exist indefinitely, the amount would be so great it would be absurd. A rule of reason therefore dictates a result

which conforms to international law, evidenced by state practice and the law oftreaties, and to governing principles of English and American contract law. Theconclusion is thus: when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality, the concessionaire is not entitled to call for specific performance by the Governmentof the agreement and reinstatement of his contractual rights, but his sole remedy is an action for damages. Payment of Damages. Under Public International Law,the norm is the payment of damages. Under the applicable systems of law, BP is entitled to damages arising from Libya s wrongful acts. The principle of compensation is also recognized in the BP Nationalization Law. Sir Roque says: This case also involves a concession contract, a contractual undertaking as previous cases,however, this case is different because one of the parties is a state. As a con

sequence of which, specific performance and restituto in integrum is not available. Take note, this is the only decision that the restituto in integrum is impossible. Although as a matter of law, it is possible, but in this case, it is impractical to order specific performance necause cannot compel a state because there is no coercive apparatus in international law. General principles of law: TheGeneral principles of a contract such as autonomy, mutuality, consensuality andobligatory are observed. An obligation must be performed. The law between the parties must be complied with in good faith. Here, it was not the LEGAL IMPOSSIBILITY but IMPRACTICABILITY that restitution cannot be ordered. The framework of the Tribunal with regards entitlement to specific performance, restitution in integrum and damages Step one: Look at the principles of Libyan law common to international law. There are no certain conclusions as to the position of Libyan law on the subject matter of the dispute. Step two: Look at Public international law

(Vienna Convention on the law of Treaties). Vienna Convention does not provide for specific rules

on remedies. Customary international law (particularly the practice of international tribunals) does not provide explicit support for the proposition that specific performance and restitution in integrum are remedies available at the optionof a party suffering a breach by a contracting party. Step three: Look at the general principles of international law (municipal legal principles existing in different legal systems). English law the norm is damages and specific performance is the exception; it is only when damages are inadequate that specific perform



ance is resorted to. German law- specific performance is the normal remedy and damages are resorted to only when it is not possible. Danish law- same as German.(The principles of these legal systems are principles of ordinary commercial law. However, here, a State (Libya) is the respondent and normally, the remedies of restitution in king and specific performance are unavailable against governmental authorities. BP cannot ask for specific performance nor to be declared ownerof any oil extracted in Libya. The breach because of the Nationalization Law ismade the basis of the amount of damages in favor of BP.

III. ACTORS IN INTERNATIONAL LAWArt. 1, Montevideo Convention on the Rights and Duties of States The state as aperson of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states. ART. 4, UN Charter 1. Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. 2. The admission of any such state to membership in the United Nations will be effected by a decision ofthe General Assembly upon the recommendation of the Security Council. ART. 32: Any Member of the United Nations which is not a member of the Security Council orany state which is not a Member of the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate, without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems just for the participation of a sta

te which is not a Member of the United Nations. ART. 35 (2): A state which is not a Member of the United Nations may bring to the attention of the Security Council or of the General Assembly any dispute to which it is a party if it acceptsin advance, for the purposes of the dispute, the obligations of pacific settlement provided in the present Charter. ART. 93(2): A state which is not a Member ofthe United Nations may become a party to the Statute of the International Courtof Justice on




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conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. ART 34, ICJ Statute: 1. Only states may be parties in cases before the Court. 2. The Court, subject to and in conformity withits Rules, may request of public international organizations information relevant to cases before it, and shall receive such information presented by such organizations on their own initiative. 3. Wherever the construction of the constituent instrument of a public international organization or of an international convention adopted thereunder is in question in a case before the Court, the Registrar shall so notify the public international organization concerned and shall communicate to it copies of all the written proceedings.

in detachment from its Members, and which is under a duty to remind them, if need be, of certain obligations. The UN was intended to exercise and enjoy, and isin fact exercising and enjoying, functions and rights which can only be explained on the basis of the possession of a large measure of international personalityand the capacity to operate upon an international plane. Difference of rights p

ossessed by a state and the UN. Whereas a State possesses the totality of international rights and duties recognized by international law, the rights and dutiesof an entity such as the UN must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice. UN Capacity to bring claim against one of its members for breach of international obligations towards it. It is clear that UN has the capacity to bring a claim for damage caused to the interests of the UN itself, to its administrative machine, toits property and assets, and to the interests of which it is the guardian. Whenthe UN has sustained damage resulting from a breach by a Member of its international obligations, it is impossible to see how it can obtain reparation unless itpossesses capacity to bring an international claim. Reparation guidelines. Themeasure of the reparation should depend upon the amount of the damage which theUN has suffered as the result of the wrongful act or omission of the defendant S

tate and should be calculated in accordance with the rules of international law.To illustrate, the damage would include the reimbursement of any reasonable compensation which the UN had to pay to its agent or to persons entitled through him and the expenditure in replacing a dead or disabled agent engaged upon a distant mission. UN Capacity to bring claims for damage caused to a victim. The Charter does not expressly confer upon the UN the capacity to include, in its claim for reparation, damage caused to the victim or to persons entitled through him. But under international law, the UN must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. Organization hasa capacity to exercise functional protection of its agents. In order that the agent may perform his duties satisfactorily, he must feel that this protection isassured to him by the UN, and that he may count on it. To ensure the independen

ce of the agent, and, consequently, the independent action of the UN itself, itis essential that in performing his duties he need not have to rely on any otherprotection than that of the UN (save of course for the more direct and immediate protection due from the State in whose territory he may be). In particular, heshould not have to rely on the protection of his own State. If he had to rely on that State, his independence might well be compromised, contrary to the principle applied by Article 100 of the Charter. And lastly, it is essential that whether the agent belongs to a powerful or to a weak State; to one more affected orless affected by the complications of international life; to one in sympathy ornot in sympathy with the mission of the agent-he should know that in the perform



ance of his duties he is under the protection of the UN. This assurance is evenmore necessary when the agent is stateless. The capacity of the UN to exercise ameasure of functional protection of its agents arises by necessary intendment out of the Charter. When it claims redress for a breach of these obligations, theUN is invoking its own right, the right that the obligations due to it should be respected. UN Capacity to bring a claim against a defendant state which is nota member of the UN. Fifty States, representing the vast majority of the membersof the international community, had the power, in

Barcelona Traction, Light and Power Company Case (1970)

Reparations for Injuries Suffered in the Service of the UN (1949)Sir Roque says: The ICJ rejected the doctrine that only states are, or can be, subjects of international law. The UN GA asked the ICJ for an advisory opinion submitting the following legal questions: 1. In the event of an agent of the United Nations in the performance of his duties suffering injury in circumstances involving the responsibility of a State, has the United Nations, as an organization, the capacity to bring an international claim against the responsible de jure or de facto government with a view of obtaining the reparation due in respect ofthe damage caused (a) to the United Nations, (b) to the victim or to persons entitled through him? 2. In the event of an affirmative reply on point I (b), how is action by the United Nations to be reconciled with such rights as may be possessed by the State of which the victim is a national? Capacity, defined. Competence to bring an international claim is, for those possessing it, the capacity to

resort to the customary methods recognized by international law for the establishment, the presentation and the settlement of claims. (i.e. protest, request foran enquiry, negotiation, and request for submission to an arbitral tribunal orto the Court in so far as this may be authorized by the Statute). Capacity of astate. A State can bring an international claim against another State. Such a claim takes the form of a claim between two political entities, equal in law, similar in form, and both the direct subjects of international law. It is dealt withby means of negotiation, and cannot, in the present state of the law as to international jurisdiction, be submitted to a tribunal, except with the consent of the States concerned. UN s international personality as evidenced by UN Charter, practice and conventions. The UN Charter by giving the UN legal capacity and privileges and immunities in the territory of each of its Members; and by providing for the conclusion of agreements between the UN and its Members. Conventions to w

hich the UN is a party-has confirmed this character of the UN, which occupies aposition in certain respects




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conformity with international law, to bring into being an entity possessing objective international personality, and not merely personality recognized by them alone, together with capacity to bring international claims. When the victim hasa nationality, cases can clearly occur in which the injury suffered by him may engage the interest both of his national State and of the UN. In such a case, there is no rule of law which assigns priority to the one or to the other, or whichcompels either the State or the UN to refrain from bringing an international claim. It does not matter whether or not the State to which the claim is addressedregards him as its own national, because the question of nationality is not pertinent to the admissibility of the claim.

human rights. The fourth and last purpose is to be a center for harmonizing theactions of nations in the attainment of these common ends. Responsibility of theUN Security Council and the UN General Assembly. It is only the Security Council which can require enforcement by coercive action against an aggressor. The Charter makes it abundantly clear, however, that the General Assembly is also to be

concerned with international peace and security. Article 14 authorizes the General Assembly to "recommend measures for the peaceful adjustment of any situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violationof the provisions of the present Charter setting forth the purposes and principles of the United Nations". The powers of the UNSC and the UNGA. While it is theSecurity Council which, exclusively, may order coercive action, the functions and powers conferred by the Charter on the General Assembly are not confined to discussion, consideration, the initiation of studies and the making of recommendations. The General Assembly is given the power not only to "consider" the budgetof the Organization, but also to "approve" it. the General Assembly is also given the power to apportion the expenses among the Members and the exercise of thepower of apportionment creates the obligation, specifically stated in Article 1

7, paragraph 2, of each Member to bear that part of the expenses which is apportioned to it by the General Assembly. The provisions of the Charter which distribute functions and powers to the Security Council and to the General Assembly give no support to the view that such distribution excludes from the powers of theGeneral Assembly the power to provide for the financing of measures designed tomaintain peace and security. Article II par 2 empowers the General Assembly, bymeans of recommendations to States or to the Security Council, or to both, to organize peacekeeping operations, at the request, or with the consent, of the States concerned. Acts of the UN. When the Organization takes action which warrantsthe assertion that it was appropriate for the fulfillment of one of the stated purposes of the United Nations, the presumption is that such action is not ultravires the Organization. If it is agreed that the action in question is within the scope of the functions of the Organization but it is alleged that it has been

initiated or carried out in a manner not in conformity with the division of functions among the several organs which the Charter prescribes, one moves to the internal plane, to the internal structure of the Organization. If the action was taken by the wrong organ, it was irregular as a matter of that internal structure, but this would not necessarily mean that the expense incurred was not an expense of the Organization. Both national and international law contemplate cases inwhich the body corporate or politic may be bound, as to third parties, by an ultra vires act of an agent. As the United Nations Charter included no procedure for determining the validity of the acts of the organs of the United Nations, each organ must, in the first place at least, determine its own jurisdiction. If th



e Security Council adopted a resolution purportedly for the maintenance of international peace and security and if, in accordance with such resolution, the Secretary-General incurred financial obligations, those amounts must be presumed toconstitute "expenses of the Organization". Expenses, as applied in this case. Itis apparent that the operations were undertaken to fulfill a prime purpose of the United Nations, that is, to promote and to maintain a peaceful settlement ofthe situation. This being true, the Secretary-General properly exercised the

Mavrommatis Case (1924)This dispute relates to Palestine and Britain s wrongful refusal to recognize Mavrommatis rights acquired under contracts for public works to be done in Palestine.Greece took up Mavrommatis case as it is a Greek subject. Disputes, defined. A dispute is defined as a disagreement on a point of law or fact, a conflict of legal views or of interests between 2 persons. Greece is asserting its rights by claiming indemnity from Britain arguing that Britain treated Mavrommatis in a mannerincompatible with certain international obligations which they are bound to observe. At first, the dispute was between a private person (Mavrommatis) and a State(Britain). But Greece took up Mavrommatis case so it is now a dispute in international law. Capacity of a state to bring claims from acts contrary to international law committed by another state. A state can take up the case of its subjectswhen injured by acts contrary to international law committed by another State,from whom they have been unable to obtain satisfaction through the ordinary channels. So WON a dispute originates in a personal injury is irrelevant. Greece, inthe eyes of Britain, is the sole claimant. Greece has the right to ensure respe

ct for rules of international law. It is not substituting itself with the citizen, but is actually asserting its own rights.

Certain Expenses of the UN (1962)The UN GA asked the ICJ for an advisory opinion "Do the resolutions authorized by the General Assembly to cover the costs of the UN operations in the Congo (ONUC) and of the operations of the UN Emergency Force in the Middle East (UNEF), "constitute 'expenses of the Organization' within the meaning of Article 17, paragraph 2, of the Charter of the United Nations"? Expenses, defined. "Expenses" ofany organization are the amounts paid out to defray the costs of carrying out its purposes, in this case, the political, economic, social, humanitarian and other purposes of the United Nations. Expenditures must be tested by their relationship to the purposes of the United Nations in the sense that if an expenditure we

re made for a purpose which is not one of the purposes of the United Nations, itcould not be considered an "expense of the Organization". Purpose of the UN. The first two purposes as stated in paragraphs I and 2, may be described as pointing to the goal of international peace and secunty and friendly relations. The third is the achievement of economic, social, cultural and humanitarian goals andrespect for




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authority given him to incur financial obligations of the Organization and expenses resulting form such obligations must be considered "expenses of the Organization within the meaning of Article 17, paragraph 2". Even though certain expenses are "extraordinary" and "essentially different" from those under the "regularbudget", they are none the less "expenses of the Organization" to be apportionedin accordance with the power granted to the General Assembly by Article 17, paragraph 2. Article 17, paragraph 2, of the Charter could lead to the simple conclusion that "the expenses of the Organization" are the amounts paid out to defraythe costs of carrying out the purposes of the Organization.

discovery but also effective occupation

through: 1. taxation 2. provision of defense 3. Spain never protested the exercise of territorial rights by Netherlands

Discovery alone is not sufficient, it merely gives the claimant an inchoate titl

e to the territory and requires the discovery to be coupled with effective occupation. Critical Date regardless of what parties will do (subsequent events, etc.) the court will freeze the period of the controversy to the date when the controversy became ripe for adjudication. And all the events after such date will beignored. Critical date in this case Treaty of Paris (1898) The Critical Period is a juridical technique in the use or exclusion of evidence consisting of self-serving acts of parties at a stage when it was evident that a dispute existed. The court held that there was indeed cession through the treaty of Paris. However, Spain could not transfer to US more rights than she herself possessed; and Spain did not have the island based on discovery. The island was only reported to have been seen but there was no sign of possession or administration by Spain orany mention of a contract with the natives. Although under international law inthe th 16 century, seeing without occupation amounted to discovery. However, IL un

derwent modifications. Based on the Intertemporal Law, the act which creates a right is subjected to the law in force at the time the right arises. But the existence if a right must follow the conditions required by the evolution of law the19th century IL which requires effective occupation to constitute territorial sovereignty. United States could have won the case if they had shown that at thetime there was no separation of church and state. By showing that there were priests, civil registrar, collection of tribunes, etc., they would have shown Spanish occupation of the islands. Principle of Continuity presumption of sovereigntyin favor of a particular state wherein islands relatively close to the shores of a state belonged to them by virtue of their geographical proximity to each other. In this case, the tribunal disregarded this because: no precedent, so uncertain and uncontested, contradictory opinions, lacking in precision, and arbitraryresults The island of Palmas is a single, isolated island found between Mindana

o and Greenwich. Both US and Netherlands claim territorial sovereignty over theisland. US bases its title by cession from the Spaniards, claiming that Spain acquired title by discovery in the 1500s. The Netherlands claims that the Dutch East Indies possessed and exercised rights of sovereignty through conventions andagreements with the natives (Treaty of Suzerainty). Territorial sovereignty, defined. It appears to follow that sovereignty in relation to a portion of the surface of the globe is a legal condition necessary for the inclusion of such portion in the territory of a particular State. Sovereignty in relation to territory is called territorial sovereignty. Sovereignty in the relations between States signifies independence. Independence, in regard to a portion of the globe, is the ri



ght to exercise therein, to the exclusion of any other State, the functions of aState. The development of the national organization of States

A. STATES1. TERRITORIAL SOVEREIGNTYIf state sovereignty is said to be absolute , how is it related to the independenceof other States and to their equality on the international plane? From the standpoint of the national legal order, state sovereignty is the supreme legal authority in relation to subjects within its territorial domain. This is the traditional context in referring to sovereignty as absolute . However, in the internationalsphere, sovereignty realizes itself in the existence of a large number of sovereignties, such that there prevails in fact co-existence of sovereignties under conditions of independence and equality. The sovereignty of one state ends wherethe sovereignty of another state begins. That limitation is built into the nature of state sovereignty under international law. To conceive it as unlimited as to negate its existence in the context of the co-existence of sovereignties, resulting in the negation of international community composed of juridically equal states. How is state sovereignty defined in international law? It is the right toexercise in a definite portion of the globe the functions of a State to the exclusion of another state. According to widely accepted opinion of Judge Huber inthe Island of Palmas case, Sovereignty in the relations between states signifiesindependence. independence in regard to a portion of the globe is the right to exercise therein to the exclusion of any other State, the functions of a State. The development of the national organization of States during the last few centur

ies, and, as a corollary, the development of international law, have establishedthis principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departure in settling most questions that concern international relations. Again, it is important to view sovereignty in international law as the sovereignty of one State in relation to the sovereignty of another State in conditions of co- existence.

Island Of Palmas CaseSir Roque says: US: Discovery Inchoate title Huber: Discovery is not enough, international law prescribed that not only Netherlands: Treaty Agreement of the Dutchwith the natives allowed the Dutch to exercise sovereignty over the islands




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during the last few centuries and, corollarily, the development of internationallaw, have established this principle of the exclusive competence of the State in regard to its own territory in such a way as to make it the point of departurein settling most questions that concern international relations. Territorial sovereignty belongs always to one, or in exceptional circumstances to several, States, to the exclusion of all others. The fact that the functions of a State canbe performed by any State within a given zone is, on the other hand, precisely the characteristic feature of the legal situation pertaining in those parts of the globe which, like the high seas or lands without a master, cannot or do not yet form the territory of a State. Territorial sovereignty [TS] is, in general, asituation recognized and delimited in space, either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed, or else by legal engagements entered into between interested neighbors, e.g. frontier conventions, or by acts of recognition of States within fixed boundaries. Disputes with regards territorial sovereignty, how resolved. If adispute arises as to the sovereignty over a portion of territory, it is customa

ry to examine which of the claiming States possesses a title cession, conquest, occupation, etc.superior to that advanced by the other State. However, if the contestation is based on the fact that the other Party has actually displayed sovereignty, it cannot be sufficient to establish the title by which TS was validly acquired at a certain moment; it must also be shown that the TS has continued to exist and did exist at the moment which, for the decision of the dispute, must beconsidered critical. This demonstration consists in the actual display of Stateactivities, such as belongs only to the territorial sovereign. Acquisition of title. Titles of acquisition of TS in present-day international law are either based on an act of effective apprehension, e.g. occupation or conquest; or, like cession, presuppose that the ceding and the cessionary Powers or at least one ofthem have the faculty of effectively disposing of the ceded territory. In the same way, natural accretion can only be conceived of as an accretion to a portion

of territory where there exists an actual sovereignty capable of extending to aspot which falls within its sphere of activity. It seems therefore natural thatan element which is essential for the constitution of sovereignty should not belacking in its continuation. So true is this that practice, as well as doctrine,recognizesthough under different legal formulae and with certain differences asto the conditions requiredthat the continuous and peaceful display of TS (peaceful in relation to other States) is as good as a title. The growing insistence with which international law, ever since the middle of the 18th century, has demanded that the occupation shall be effective would be inconceivable, if effectiveness were required only for the act of acquisition and not equally for the maintenance of the right. If the effectiveness has above all been insisted on in regardto occupation, this is because the question rarely arises in connection with territories in which there is already an established order of things. Just as befo

re the rise of international law, boundaries of lands were necessarily determined by the fact that the power of a State was exercised within them, so too, underthe reign of international law, the fact of peaceful and continuous display isstill one of the most important considerations in establishing boundaries between States. Correlative duty with regards territorial sovereignty. Territorial Sovereignty, as has already been said, involves the exclusive right to display theactivities of a State. This right has as corollary a duty:

the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, togethe



r with the rights which each State may claim for its nationals in foreign territory. Without manifesting its territorial sovereignty in a manner corresponding to circumstances, the State cannot fulfill this duty. Continuous and peaceful display of sovereignty. Although municipal law, with its complete judicial system,is able to recognize abstract rights of property as existing apart from any material display of them, it has nonetheless limited their effect by the principlesof prescription and the protection of possession. International law, the structure of which is not based on any super-State organization, cannot be presumed toreduce a right such as TS, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations. The principle that continuous and peaceful display of the functions of State within a given region is a constituent element of TS is not only based on the conditions of the formation of independent States and their boundaries, as well as on an international jurisprudence and doctrine widely accepted. Manifestations of TSassume different forms, according to time and place. Although continuous in principle, sovereignty cannot be exercised in fact at every moment on every point of a territory. The intermittence and discontinuity compatible with the maintenance of the right necessarily differ according as inhabited or uninhabited regionsare involved, or regions enclosed within territories in which sovereignty is incontestably displayed or again regions accessible from, e.g., the high seas. Itis true that neighboring States may by convention fix limits to their own sovereignty, even in regions such as the interior of scarcely explored continents where such sovereignty is scarcely manifested, and in this way may prevent the otherfrom any penetration of its territory, e.g. the delimitation of Hinterland. If,

however, no conventional line of sufficient topographical precision exists, orif there are gaps in the frontiers otherwise established, or if a conventional line leaves room for doubt, or if, as e.g. in the case of an island situated in the high seas, the question arises whether a title is valid erga omnes, the actual continuous and peaceful display of state functions is, in case of dispute, thesound and natural criterium [sic] of TS. Intertemporal law. As regards the question which of different legal systems prevailing at successive periods is to beapplied (the so-called intertemporal law), a distinction must be made between the creation of rights and the existence of rights. The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, i.e. its continued manifestation, shall follow the conditions required by the evolution of law. Discovery is not enough, only an inchoate title. If, on the other hand, the view is adopted that disc

overy does not create a definitive title of sovereignty but only an inchoate title, such a title exists, it is true, without external manifestation. However, according to the view that th has prevailed since the 19 century, an inchoate titleof discovery must be completed within a reasonable period by effective occupation. An inchoate title could not prevail over the continuous and peaceful displayof authority by another State; for such display may prevail even over a prior, definitive title put forward by another State.




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Principle of contiguity. Although States have in certain circumstances maintained that islands relatively close to their shores belonged to them in virtue of their geographical situation, it is impossible to show the existence of a rule ofpositive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). Not only would it seem that there are no precedents sufficiently frequent and sufficiently precise in their bearing to establish such a rule, but the alleged principle itself is by its very nature so uncertain and contested that even governments of thesame State have on different occasions maintained contradictory opinions as to its soundness. Dutch East Indies exercise of sovereignty. If the claim to sovereignty is based on the continuous and peaceful display of State authority, the fact of such display must be shown precisely in relation to the disputed territory.It is not necessary that there should be a special administration established in this territory; but it cannot suffice for the territory to be attached to another by a legal relation not recognized in international law as valid against a S

tate contesting this claim to sovereignty; what is essential in such a case is the continuous and peaceful display of actual power in the contested region. Theacts of the Dutch East Indies are attributable to the state itself. The acts ofthe East India Company, in view of occupying or colonizing the regions at issuemust, in international law, be entirely assimilated th to acts of the Netherlands State itself. From the end of the 16 till th the 19 century, companies formedby individuals and engaged in economic pursuits (Chartered Companies) were invested by the State to whom they were subject with public powers for the acquisition and administration of colonies. It is not necessary that the display of sovereignty should go back to a very far distant period. It may suffice that such display existed in 1898, and had already existed as continuous and peaceful before that date long enough to enable any Power who might have considered herself as possessing sovereignty over the island, or having a claim to sovereignty, to have,

according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. The Netherlands has proved the exercise of some acts of State authority and the existence of external signs of authority (flags, coats of arms). These facts at least constitute a beginning of establishment of sovereignty by continuous and peaceful display of state authority, or a commencement of occupation of an island not yet forming a part of the territory of a state; and such a state of things would create in favour of the Netherlands an inchoate title for completing the conditions of sovereignty. Such inchoate title, based on display of state authority, would prevail over an inchoate title derived from discovery, especially if this lattertitle has been left for a very long time without completion by occupation; and it would equally prevail over any claim which, in equity, might be deduced from the notion of contiguity.

23-25 Jun 1994: First-ever Senior Officials Meeting on the Delimitation of the Maritime Boundary between Indonesia and the Philippines. Official representativesagree that both countries will delimit the location between 120r and 129r30r East Longitude. This includes the area in which Palmas is located. The officials agree that the following general principles shall serve as basis for negotiations: (1) The result shall be fully in keeping with international law, including the1982 UN Convention on the Law of the Sea (UNCLOS); (2) Where applicable, the maritime boundaries shall be delimited on the basis of the median line principle;and (3) Creative options shall be used as appropriate. 9 Nov 2000: Second bilate



ral consultation. Discussion is only exploratory; no further agreements are forged. 20 Dec 2002: 3 Meeting of the Philippine-Indonesian Joint Commission for Bilateral Cooperation held. Indonesia gives notice that it has enacted a new Baselines Law, which amends its law enacted in 1960, and presents a copy in Bahasa. The Philippines requests that an English version be furnished the Phil government.No other substantial topic is discussed. INDONESIA S NEW BASELINES LAW. It uses Palmas as a base point in drawing Indonesia s straight archipelagic baselines.2 This provision contradicts Indonesia s commitment with the Philippine government to delimit the area where Palmas is found only after and pursuant to the negotiations, and in keeping with UNCLOS. Before this law was passed, the two countries agreed that delimitation of their territories would be done bilaterally and in consultation with each other. This was why the 2 countries entered into delimitationtalks in the first place. The passage of the law is a unilateral act and is theofficial expression of Indonesia s intent to treat Palmas as Indonesian territory. It is not just an official claim to land territory, but also to the archipelagic and territorial waters representing all waters enclosed by the island s straight baselines. The Baselines Law has not yet been deposited with the UN Sec-Gen, owing to the fact that the ICJ just recently issued a decision in the territorialdispute between Indonesia and Malaysia over the islans of Sipadan and Ligitan,awarding both islands to Malaysia and thereby necessitating amendments to the Baselines Law. Preparatory to the passage of the law, Indonesia embarked on a modern hydrographic survey to chart its new baselines, financed with the help (approx $170 M) of the government of Norway. The Philippines has not even started itsown hydrographic survey. Clearly, the date of passage of the 2002 law would be a

critical 3 date from which to gauge which of the 2 countries has a superior2

rd

Palmas Arbitration Revisited H. Harry L. Roque Jr., 77 PLJ 437 (2003)I. Introduction CONTEXT OF ARTICLE. The Philippiness and Indonesia have been arguing over who gets to keep the island of Palmas; Indonesia pulls a surprise sneak attack. Timeline:

Art. 47, UNCLOS: ³1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the outermost islands and drying reefs of thearchipelago provided that within such baselines are included the main islands an

d an area in which the ratio of the area of the water to the area of the land, including atolls, is between 1 to 1 and 9 to 1.´ 3 Palmas case (see third(?) page of the digest, under ³How to Settle Disputes´): ³If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the claiming States possesses a title²cession, conquest, occupation, etc.²superior to that advanced by the other State. However, if the contestation is based on the fact thatthe other Party has actually displayed sovereignty, it cannt be sufficient to establish the title by which TS was validly acquired at a certain moment; it mustalso be shown that the TS has continued to exist and did exist at the moment which, for the decision of the dispute, must be considered critical [emphasis added].´ Also in Legal Status of Eastern Greenland (Denmark v Norway): ³It must be bornein mind, however, that as the critical date is July 10th, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period du

ring which the Danish Got maintains that it was in being. Even if the material




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claim to both Palmas and the archipelagic and territorial waters surrounding it.If the new baseline coordinates drafted by Indonesia were followed, the Philippiness would lose not only Palmas Island but also some 15,000 sq.mi. of archipelagic and territorial waters. These are Philippines territories currently definedunder the Treaty of Paris. IT IS IN THE RP S BEST INTERESTS TO MAINTAIN AUTHORITYAND CONTROL OVER THE PALMAS AREA. Reasons include: (1) Very close to the strategic axis linking the Pacific and Indean Oceans. The nearest island to Palmas is Cape San Agustin. The establishment of archipelagic sea-lanes between the two, under Phil sovereignty, will enable the country, possibly in cooperation with Indonesia, to monitor, control, and maintain surveillance of sensitive maritime jurisdictions. Many of the country s major population centers, industrial zones, and the ports of Mati, Davao City, General Santos, Cotabato, Pagadian, and Zamboangaare directly accessible from the said sealanes. (2) Close to the critical spawning areas and passage highways of economically important fish, e.g. yellowfin tuna. Also, the area has been tagged as a marine eco-region by the WWF, owing to the area s distinct and outstanding biodiversity. (3) The warm pool of the world s ocean

s is centered on Southern Mindanao, making the Davao Gulf, Sarangani and Illanabay in the Moro Gulf the most suitable sites for large-scale ocean 4 terminal plants. The sheer area of maritime territory that the Phils would lose, plus the foregoing reasons, warrant a re-examination of the root of Indonesia s claim to Palmas: the Palmas Arbitration of 1928. II. Palmas: The Island and the ArbitrationTHE CASE, IN A NUTSHELL. The Swiss arbitrator Max Huber succinctly summarized the conflicting claim to Palmas when he said, It lies within the boundaries of thePhilippines as ceded by Spain to the US in 1898 (by the Treaty of Paris). The dispute began in 1906 when Maj. Gen. Leonard Wood, then the American Gov-Gen of thePhils., visited Palmas and discovered the Dutch flag hoisted on the island. A native who spoke Spanish allegedly informed him of the visits of Netherlands subjects to the island. WHAT HUBER DOESN T TELL US. The Americans were generally hesitant to pursue the claim. The island was small and populated by 689 diseased and des

titute inhabitants of low mentality who speak a Malay-Spanish dialect; and the legal recourse to the claim, including recourse to arbitration, was not justifiedowing to the trifling value of the island. Nevertheless, there was a lot of publicity in 1911 over a report that Dutch authorities tore down a US flag found on the island, which got at least one US senator to ask about the veracity of the report. The US tried to prove the payment of cedula, or residence certificate taxes, by the island s inhabitants to the Spanish Government, as well as regular visitsof Spanish naval vessels to the islands. Archives in Seville also disclosed evidence that Spain sent an expedition to the island in 1710, and that a group of Jesuit missionaries were actually sent to settle in the island, with the avowed goal of converting thesubmitted to the Court might be thought insufficient to establish the existenceof that sovereignty during the earlier periods, this would not exclude a finding

that it is sufficient to establish a valid title in the period immediately preceding the occupation.´ 4 Not defined, but a footnote points to a book entitled ³Power Plant Technology.´

natives and exercise occupation of the island on behalf of the Spanish crown. USCLAIM, IN A NUTSHELL. The US claim, summarized: (1) Palmas lies well within thedemarcation of Art. 3, Treaty of Paris; (2) It is approx 12 miles nearer to Mindanao than to any of the smaller islands of the Dutch Archipelago; (3) It is well within the limits marked by the 4 May 1493 Bull of Alexander VI [the Inter Caetera]; (4) It is well within the limits of the agreement concluded 4 July 1494 b



etween Spain and Portugal; (5) The union of Spain and Portugal in 1580 should remove any doubts as to the title of the Island prior to that time; (6) The government of Spain considered Palmas one of its oceanic possessions; (7) Spain neverrelinquished control over the island except to the US; and (8) Spain exercised sovereignty over the Phil archipelago as a whole; it was not necessary for Spainto maintain seaprate administrations over the island. DUTCH CLAIM, IN A NUTSHELL. The alleged grounds for the Netherlands claim: (1) In the 17th century, Palmaswas conquered by the Rajah of Tabukan, who in 1877 signed an agreement with theDutch East Indies Company that the Tabukan territories should become the property of the company; (2) The possession of the Dutch East Indies Company came under the direct control of the Netherlands Govt. Since the beginning of the 19th century, the island has been under the suzerainty of the Netherlands; (3) The inhabitants paid taxes to the Dutch governmentsince the th early 19 century; (4) Theisland is named in contract between the Dutch government and the Sultan of Turante; (5) The Netherlands government introduced vaccination upon the island; (6)The Netherlands authorities visited the island at least once a year; (7) Spain never questioned the right of the Netherlands government to exercise its sovereignty or to plant its flags on the island; and (8) Spain, not having control of the island at the time of cession in 1898, could not cede it to the US. Implicit in its arguments is that while Spain may have had title to the island by virtue of discovery, it had since lost and/or abandoned its title by allowing the DutchEast Indies Company to enter into contracts and agreements with native rulers who ceded their territories in favor of the company. MISCELLANEOUS FACTS. The casecould not be brought to the Permanent Court of International Justice because th

e US was not a member of the League of Nations and, consequently, of the PCIJ. The case would have been ideally brought to the PCIJ because it involved international law. The Americans believed however that the PCIJ might be biased againstthe US, because the court was based at The Hague and headed by a Dutch man. Whythe US considered the PCA to be more neutral, considering it is also based at The Hague, was not discussed. Max Huber was actually not the US s first choice as Arbitrator; they wanted a certain Dr. Yoruzo Oda, or one Lord Finlay, a member ofthe PCIJ, or a Dr. Walter Schucking of Germany. THE DUTCH HAD THE UPPER HAND. Unlike subsequent arbitrations, probably to minimize costs, the parties stipulatedthat the proceedings shall be summary in nature, or limited to Memorandums




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and Counter-Memorandums. The stipulation had the effect of limiting the abilityof each party to prove facts it was alleging. Worse, the Americans and the Dutchhad a different construction of the requisite Memorandum: Consistent with modern forms of summary procedure, the Americans submitted all their arguments and evidence by way of Annexes to their Memorandum. On the other hand, the Dutch did not state the entirety of their case in their Memorandum; instead, they summarized their arguments for the first time only in their Counter-Memorandum, enablingthem to dispute point by point the Americans arguments. Most alarming to Philip Jessup, the Dutch never attached any of their alleged documentary evidence; theymerely undertook to produce them upon request of the arbitrator. The American panel registered its objection to the manner by which the Dutch wanted to prove their allegations, but the Dutch position was suspiciously sustained by Huber in hisaward. HUBER BIASED? Huber asked for further written instructions [/explanations] only from the Netherlands, asking them to explain the weakness in their arguments as pointed out in the American CounterMemorandum. The Americans objected, but the Arbitrator was the sole Judge of questions on procedure. A. Highlights of

the Decision - Discovery per se, as invoked by the Americans, gives rise only to an inchoate right which must be perfected through open and continuous acts evidencing effective occupation. An inchoate title could not prevail over the continuous and peaceful display of authority by another state; for such display may prevail even over a prior, definitive title put forward by another state. - The Netherlands established effective occupation through, among others, is Contract ofSuzerainty with the local rulers and tribesmen of the island. - Inter-temporal law: Where different legal rules existed over a period of time, both the rule atthe creation of the right and at the time of its exercise must be applied. As formulated by Huber, the application of inter-temporal law is the legal basis forthird states (e.g. Netherlands) to acquire a better title to disputed islands onthe basis of subsequent acts executed over a long period of time from the incipient time of discovery. - Critical date: a judicial technique in the use of evid

ence and more especially the exclusion of evidence consisting of self-serving acts of parties at a stage when it was evident that a dispute existed. JESSUP SHOWS WHY HE HAS A MOOT COURT COMPETITION NAMED AFTER HIM. He had criticisms not only on the procedural aspect of the arbitration, but also on the substantive aspects of the award. INTER-TEMPORAL LAW AS FORMULATED: NON SEQUITUR. Assume that State A acquires Island X from State B by a Treaty of Peace after a war in which A is the victor... Assume that A holds X, but without making use of it, for 200 years. At the end of that time suppose that the development of international law [sic] and that the new rule is that no territory may be acquired by a victor froma vanquished at the close of a war. Under the theory of inter-temporal law as expounded, it would appear that A would no longer have good title to X, but must secure a new title upon such other basis [as is] in accordance with the new rule. Such a retroactive effect of law would be highly disturbing. Every State would co

nstantly be under the necessity of examining its title to each portion of its territory in order to determine whether a change in the law has necessitated, as it were, a reacquisition. If such a principle were to be applied to private law and private titles, the result would be chaos.

Huber s theory was without precedent and may probably be described as a bold articulation of a new theory which until today does not seem to have been given wideacceptance. Jurisprudence abound in international law respecting acquired rightsor applying the law in force at the time of the creation of the right. Thus state s title to territory acquired as a result of conquest is not ipso facto extingu



ished as a result of the rise of the contemporary norm forbidding the use of force in the conduct of international relations. ARE WE TALKING ABOUT THE RIGHT ISLAND HERE? All the Dutch s names for Palmas have also been used to refer to the Nenusa Islands, a group admittedly belonging to the Netherlands. It was possible therefore that the island being claimed by the Netherlands was not Palmas, but oneof the Nenusa Islands. This was an issue of fact that should have been decidedwith the assistance of experts. THEORY OF CONSTRUCTIVE POSSESSION. There being apaucity of evidence of actual Spanish exercise of authority on Palmas, it was proper to take into account the fact that the island is one part of the geographical unit known as the Philippine archipelago. Jessup insisted that Spain s title over the archipelago is clear and that in the absence of contrary evidence, it must be assumed that her occupation and control of Mindanao and other islands included Palmas. Since Spain possessed the whole, constructively, it possessed all the parts. Besides, the fact that the US did not actually submit evidence of effective occupation (e.g. collection of cedula, reports from the different Catholicsects on the island) was solely because Spain did not provide the US with suchevidence. By default, therefore, the US had to argue that it was unnecessary toprove this specific fact of effective occupation. Huber not only failed to appreciate the American formulation of what would later on be the accepted international law doctrine called constructive possession of hinterlands, he ignored even the common definition of archipelago as a group of islands and waters 5 forming a geographical whole. Thus the US and the Netherlands, to his mind, had to prove effective occupation. CONTIGUITY THEORY. The theory of contiguity was already in existence in 1928; supported with even token evidence of effective occupation, eve

n the mere raising of the Spanish flag, it should have been enough basis for anaward in the US s favor. But Huber rejected this argument based solely on the alleged lack of a positive rule that the theory is recognized in international law.He was obviously hesitant to establish a precedent on this matter, even though he would also establish two revolutionary and precedent-setting rulings (inter-temporal law, critical date). But Venezuela, in the British Guiana Boundary Arbitration, already raised the proposition that occupation, to be effective, need notextend to every nook and corner of the territory. Examples: American and Canadian wilderness; actual occupation of only parts of Australia and New Zealand. Only 5 years after Huber s award and Jessup s article, the PCIJ would expressly recognize the existence of the rule which Huber declared non-existent. Eastern Greenland: Denmark s possession of part of Greenland was held sufficient evidence of her possession of the whole disputed area. JESSUP WAS NOT ALONE. Sir Hearsh Lauterpac

ht, addressing the issue of contiguity: [I]t is doubtful whether, notwithstandingthe5

Art. 46(b), UNCLOS: ³¶archipelago¶ means a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such.´




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high authority of the arbitrator, it could dispose of a doctrine which has figured prominently in the practice of states... The apparent antimony of effectiveness and contiguity begins to wear thin as soon as we realize that... effectiveness need not be as complete as appears at first sight and that contiguity is not theoretical and arbitrary at first sight... As a rule, the conceptions of effectiveness and contiguity often provide no more than [a] starting point... It is effectiveness relative to the situation and to the circumstances... When that pointis reached there is little to choose between contiguity and effectiveness of occupation. Contiguity in such cases may be an essential condition which gives rise to the only element of substance to such otherwise abstract occupation. In that sense contiguity is a factor more potent. O Connell also questioned how effectivethe Dutch occupation of Palmas could have been. Could it be that effectiveness was established negatively from the absence of any competing manifestations of sovereignty, and that it was only because the Netherlands has taken more interestin the island than Spain that it was adjudged entitled [by the latter]? B. Standing to Arbitrate CESSION AS BASIS OF US S STANDING. The US s standing to arbitrate, a

.k.a. its personality to advance a right, was by virtue of Spain s cession in 1898. While cession was then, and until now, recognized as a mode of acquisition ofterritorial sovereignty, it is subject to the limitation that one s title is onlyas good as the title of one s predecessor (Nemo dat quod non habet). Moreover, ithas been the view since the time of Grotius that the consent of the population of the ceded territory is essential to the validity of the cession. BUT WE WERE ALREADY INDEPENDENT, AND THE US KNEW. But did Spain still have title to the Philippine archipelago on the date of the cession? By 12 June 1898, or almost 6 months prior to the Treaty of Paris, Spanish military forces were already defeated byFilipino revolutionaries and were generally isolated, and Gen. Emilio Aguinaldodeclared Philippine independence and proclaimed the Republic. Immediately afterward, a revolutionary government was declared; a cabinet was appointed and convened; a constitution was drafted; local government units were organized; and a Co

ngress was convened with most of its members duly elected. All this was done with the knowledge and complicity of American forces. The Filipino people gave theMalolos government their wholehearted support and allegiance. Clearly, by the time the Treaty of Paris was signed, Spain no longer had title to the Philippine archipelago; consequently, she transferred nothing to the US. Moreover, the Philippines was already by then a Republic. BUT WERE WE AN INDEPENDENT STATE? The creation of any state is evaluated on the basis solely of the elements of statehoodas defined by the Montevideo Convention: a permanent population, a defined territory, a government, and capacity to engage in formal relations with others. Onthe basis of historical accounts, the Philippines satisfied all such criteria by18 Dec 1898, if not before then. RECOGNITION BY OTHER STATES, UNNECESSARY. Though this was one considered an element of statehood, now recognition is seen as merely declaratory in nature. In any case, the number of countries represented in

the annual vin de honor on Independence Day should be sufficient proof of recognition, involving as it does the attendance of ambassadors and officials from the Netherlands, Spain, Indonesia, and the US.

It is well documented that the US was keenly aware of the existence of the new independent state of the Philippines and that Spain had lost its title to the archipelago as of the signing of the Treaty of Paris. In fact, it was because of these considerations that US policymakers had to hide their imperialistic agendasfrom those who were opposed to the annexation of an independent nation. C. Non-Transferability of Arbitral Awards CARDINAL RULE IN ARBITRATION: Consent freely g



iven is the core for any arbitration. Arbitral awards are therefore only bindingon States that agreed to the arbitration (principle of autonomy of parties). Since the Philippines, at that time already an independent State, was not a partyto the Palmas Arbitration, it cannot be made subject to the Huber decision. ON SUCCESSION OF STATES. Even assuming that the Philippines may be held as the successor state of the US to Palmas and the entire Philippine archipelago as ceded, still it would not ipso facto result in the Philippines s succession to the US s obligation. Furthermore, under existing international law norms, successor states donot automatically succeed to their predecessor state s rights, capacities, and obligations. Recent state practice, e.g. the recently unified Germany and the newstates of the former Yugoslavia, prove that States are at liberty to choose which obligations, treaty-based or otherwise, to succeed to. THE PHILIPPINES HASN T AGREED TO SUCCEED THE US IN THE PALMAS ARBITRATION. On the contrary, all the Philippines s laws and Constitutions define her territory on the basis of historical title, including the metes and bounds as contained in the Treaty of Paris. There is also nothing in the Treaty between the Philippines and the United States, preparatory to the [former] s attainment of independence, that would indicate that theformer agreed to succeed the latter on the Palmas arbitration. What was stipulated was only that: The [RP] agrees to assume all continuing obligations assumed by the [USA] under the Treaty of Peace ... concluded at Paris ... and under the Treaty between the [USA] and Spain concluded at th 6 Washington the 7 day of November, 1900. UTI POSSEDITIS: Colonial boundaries, for reasons of stability and finality of frontiers, should NOT be challenged. The fact that the Treaty of Parisis recognized as defining the territory of the country does not give its suppose

d cession any recognition. Instead, the treaty only serves as evidence on the actual boundaries of the country as defined by Spain. The principle was applied insuch cases as the Mali-Burkina Faso case, Guinea Bissau v Senegal, and the Guinea-Guinea Bissau Maritime Delimitation case. PALMAS WAS NEVER ALLEGED TO BE PARTOF INDONESIAN ARCHIPELAGO by the Dutch in the Arbitration, unlike the US claiming it as part of the Philippines; hence Indonesia is estopped from making such aclaim. At most, Indonesia may be recognized to have sovereignty over the islandby virtue of the Palmas arbitration; pursuant to the UNCLOS, the islandnot beinga part of an archipelagomay be enclaved 7 and given its own territorial sea. Any other arrangement would be contrary to the UNCLOS and would lead to a disproportionate and inequitable result. The surrounding waters, therefore, even under the best scenario for Indonesia, should

6

7

Treaty of General Relations Between the [USA] and the [RP], July 4 1946. Art. 121(2)-(3) UNCLOS: If an island cannot support µhuman habitation¶ or µeconomic life of its own,¶ it can only have its own territorial sea, without an exclusive economic zone.




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still be declared as forming part of Philippine archipelagic and territorial waters. III. Conclusion Assuming for the sake of argument that Indonesia s title to Palmas is beyond dispute because of the Palmas arbitration, it does not justify Indonesia s use of Palmas in its 2002 baselines law as a base point for the drawingof its archipelagic baselines. This is because Indonesia s predecessor-in-interest, the Netherlands, did not allege in the Arbitration that the island formed part of the archipelago. Accordingly, Palmas should be treated as an island independent of the Indonesian archipelago and properly enclaved.

territorial character, interpret criminal law in the sense that offences, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offence, and more especially itseffects, have taken place there. French courts have, in regard to a variety ofsituations, given decisions sanctioning this way of interpreting the territorialprinciple. Vessels are covered under the jurisdiction of the state whose flag t

hey fly. Vessels on the high seas are subject to no authority except that of theState whose flag they fly. In virtue of the principle of the freedom of the seas (absence of any territorial sovereignty upon the high seas), no State may exercise any kind of jurisdiction over foreign vessels upon them. Thus, if a war vessel, happening to be at the spot where a collision occurs between a vessel flying its flag and a foreign vessel were to send on board the latter an officer to make investigations or to take evidence, such an act would undoubtedly be contrary to international law. But it does not follow that a State can never in its ownterritory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas (double negative ito, it only means a state can exercisejurisdiction in its own territory even if the act occurred on board a foreign ship). A corollary of the principle of the freedom of the seas is that a ship onthe high seas is assimilated to the territory of the State the flag of which it

flies, for, just as in its own territory, that State exercises its authority, upon it, and no other State may do so. All that can be said is that by virtue of the principle of the freedom of the seas, a ship is placed in the same position as national territory but there is nothing to support the claim according to which the rights of the State under whose flag the vessel sails may go farther thanthe rights which it exercises within its territory properly so called. If a guilty act committed on the high seas produces its effects on a vessel flying another flag or in foreign territory, the same principles must be applied as if the territories of two different States were concerned, and the conclusion must therefore be drawn that there is no rule of international law prohibiting the State towhich the ship on which the effects of the offence have taken place belongs, from regarding the offence as having been committed in its territory and prosecuting, accordingly, the delinquent. This conclusion could only be overcome if it we

re shown that there was a rule of customary international law which establishedthe exclusive jurisdiction of the State whose flag was flown.

SS Lotus Case (France v. Turkey)Sir Roque says: The decision in the SS Lotus case has already been overturned bythe UNCLOS. There was a collision at the high seas between a French mail steamer Lotus with the Turkish collier Boz Kourt. The Boz Kourt was cut in two and sank. Eight Turkish nationals on board died. The officer on watch on board Lotus was Lt. Demons, a French citizen. Lt. Demons was arrested by the Turkish authorities and was subjected to trial in the Turkish courts. The French government prote



sted the actions of the Turkish authorities, protesting his arrest, demanding his release or obtaining transfer of the case from the Turkish Courts to the French Courts. The parties submitted the conflict tot the Court at the Hague. State discretion in applying local laws. The case under international law at present isthat far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts topersons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules. In other cases, every State remains free to adopt the principles which it regards as best and most suitable. Territoriality of criminal law is notabsolute in international law. Though it is true that in all systems of law theprinciple of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and theydo so in ways which vary from State to State. The territoriality of criminal lawis not an absolute principle of international law and does not coincide with territorial sovereignty. Nationality of victim is not the sole basis of jurisdiction. It s not necessary to consider the contention that a State cannot punish offences committed abroad by a foreigner simply by reason of the nationality of the victim. For this contention only relates to the case where the nationality of thevictim is the only criterion on which the criminal jurisdiction of the State isbased. Such argument could only be used in the present case if international law forbade Turkey to take into consideration the fact that the offence produced its effects on the Turkish vessel and consequently in a place assimilated to Turk

ish territory in which the application of Turkish criminal law cannot be challenged, even in regard to offences committed there by foreigners. But no such ruleof international law exists. Jurisdiction can be determined by looking at the elements [effects] of the crime. It is certain that the courts of many countries,even of countries which have given their criminal legislation a strictly

Eastern Greenland CaseIf the area is thinly populated or unsettled, little actual exercise of sovereign rights is sufficient. Sir Roque says: Although both sides were able to presentevidence establishing their sovereignty over the area, such as expeditions, granting of concessions, legislation, etc., what won it for Denmark was estoppel oracquiescence because of the Ihlen Declaration. Although acquiescence is not a means of acquiring title, it is a proof of a better claim. There is equal prepond

erance of evidence presented by both states as to their occupation of a certainportion of Greenland. However, Norway s possession was not in the concept of a title, i.e. there was




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no animus possidendi, which is one of the 2 requirements of sovereignty. It didnot have the intent to possess in behalf of a sovereign. Remember that it is notonly physical possession that is important. There must also be intent. Norway,in its proclamation of July 10, 1931, said that it is taking possession of whichis officially confirmed , and which is placed under Norwegian sovereignty of Elrik Raudes Land in Eastern Greenland. This proclamation was criticized for its failure to specify the limits of the occupation but it must have been intended that onthe eastern side of the sea and the western side the inland ice should constitutethe limits of the area occupied. This 1931 Proclamation of Norway triggered thecontroversy between Denmark and Norway. Denmark claims that the sovereignty which it enjoys over Greenland has existed for a long, time, has been continuouslyand peacefully exercised, and until the present dispute, has not been contestedby any Power. Also, Denmark claims that Norway, by treaty or otherwise herself recognized Danish sovereignty over Greenland as a whole and therefore cannot dispute it. Norway claims that Denmark possessed no sovereignty over the area whichNorway occupied on July 10, 1931, and that at the time of the occupation the are

a was terra nullius. Constructive Possession. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves two elements each of which must be shown to exist: the intention and will to act as sovereign, and some actual exercise ordisplay of such authority. Another circumstance which must be taken into account by any tribunal which has to adjudicate upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by someother Power. In most of the cases involving claims to territorial sovereignty which have come before an international tribunal, there have been two competing claims to the sovereignty, and the tribunal has had to decide which of the two isthe stronger. One of the peculiar features of the present case is that up to 1931 there was no claim by any Power other than Denmark to the sovereignty over Greenland. Indeed, up till 1931, no Power disputed the Danish claim to sovereignty

. Loss of sovereignty by conquest. Conquest only operates as a cause of loss ofsovereignty when there is war between two States and by reason of the defeat ofone of them sovereignty over territory passes from the loser to the victorious State. The principle does not apply in a case where a settlement has been established in a distant country and its inhabitants are massacred by the aboriginal population. Nor is the fact of "conquest" established. It is known now that the settlements must have disappeared at an early date, but at the time there seems tohave been a belief that despite the loss of contact and the loss of knowledge of the whereabouts of the settlements one or both of them would again be discovered and found to contain the descendants of the early settlers. Loss of sovereignty by voluntary abandonment. There is nothing to show any definite renunciationon the part of the Kings of Norway or Denmark. Also, despite having no intercourse with Greenland, the th tradition of the King s rights lived on, and in the earl

y part of the 17 Century, a revival of interest in Greenland on the part of boththe King and of his people took place. That period was an era of adventure andexploration. The example set by the navigators of foreign countries was inspiring, and a desire arose in Norway and Denmark to recover the territory which had been subject to the sovereignty of the King's ancestors in the past.

Norway: Denmark only possessed West Coast of Greenland. Court: Naaah!. The burden of proof lies on Norway to prove that Denmark used the word Greenland only to mean the colonies on the West Coast. The geographical meaning of the word "Greenland", i.e. the name which is habitually used in the maps to denominate the whole



island, must be regarded as the ordinary meaning of the word. In the opinion ofthe Court, Norway has not succeeded in establishing her contention. It is not sufficient for her to show that in many of these legislative and administrative acts action was only to be taken in the colonies. The fact that most of these actswere concerned with what happened in the colonies and that the colonies were all situated on the West coast is not by itself sufficient ground for holding thatthe authority in virtue of which the act was taken whether legislative or administrative was also restricted to the colonized area. Unless it was so restricted, it affords no ground for interpreting the word Greenland in this restricted sense. Estoppel and acquiescence by Norway. the Minister of Foreign Affairs of Norway and Sweden (Sweden had control over Norway during this time), wrote to the British Minister in Stockholm that the King of Sweden and Norway agreed to renouncein favor of the Kingdom of Denmark their claims over Iceland, Greenland, and the Faroe Islands. The letter was written because Norway-Sweden was asking for theintervention of the British Prince Regent in settling its differences with Denmark, especially with its financial obligations under the Treaty of Kiel. A second series of undertakings by Norway, recognizing Danish sovereignty over Greenland, is afforded by various bilateral agreements concluded by Norway with Denmark,and by various multilateral agreements to which both Denmark and Norway were contracting Parties, in which Greenland has been described as a Danish colony or as forming part of Denmark or in which Denmark has been allowed to exclude Greenland from the operation of the agreement. Also, Denmark maintained that the promise by in 1919 by M. Ihlen, the Norwegian Minister for Foreign affairs, speakingon behalf of his Government debarred Norway from proceeding to any occupation of

territory in Greenland even if she had not by other acts recognized an existingDanish sovereignty there.

THEMATIC LIGHTHOUSES

Minquiers & Ecrehos Case (UK v. France), (1951)Proof of territorial sovereignty: exercise of jurisdiction, local administrationand legislation. Both UK and France seek to establish sovereignty over the Minquiers Group and Ecrehos Group of islets and rocks by citing ancient title and treaties. UK won because of ordinary local administration, specifically referring to: [1] Jersey courts exercising criminal jurisdiction for nearly 100 years; [2] Jersey law requires the holding of inquests on corpses found in the area; [3] houses built in the area were assessed for the levying of taxes; [4] licensing of f

ishing boats; [5] real estate contracts relating to property in the area were registered in the public registry of deeds; [7] Jersey customs authorities established a custom house for the purpose of a census.

Case Concerning Sovereignty over Pulau Ligitan and Sipadan (Indonesia v. Malaysia)



UP Law B2009 Reviewer (Karichi Edition) y

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y

Indonesia and Malaysia lay claim over the islands of Ligitan and Sipadan. Both countries cite treaties, colonial effectivites, and title by succession as proofof ownership. Effective occupation. ICJ rule in favor of Malaysia because effective occupation was proved by its effective acts of administration, specifically: [1] its regulation on gathering of turtle eggs; [2] its building of lighthouses;[3] its declaration of a bird sanctuary.

concept deals with acts of administration. The conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during colonial period. Maps, standing alone, do not constitute territorial titles (document endowed by international law with intrinsic legal force for the purpose of establishing territorial rights). However, they may be used alonewith other evidence to establish real facts. It would have had a legal force if

annexed to a legislative or executive decree.

Eritrea v. Yemen, (1998)y

y

y

y

y y

The dispute relates to ownership over the red sea islands between Eritrea whichclaims title by succession, and Yemen which claims title by automatic reversionand historic title. No title by succession. Italy, Eritrea s predecessor, did notobtain title to the territory under the Treaty of Lausanne because it was provided that the allied powers have yet to agree on who can claim sovereignty over the territory. Therefore, Eritrea did not gain title by succession. No historic title. Medieval Yemen had no concept of territorial sovereignty. Therefore, Yemencannot claim title by automatic reversion. Primary question in territorial disputes. Splitting of award. The court will determine who has a better claim. The group of islands need not be awarded to one claimant. Effective occupation. Effective occupation, such as petroleum concessions, is prima facie evidence of title.Portico doctrine. This is a method by which off-shore islands can be attributedto a State s sovereignty. Islands near coastal states must pertain to such states

. The Mohabbakahs Islands, located within the territorial sea of Eritrea, properly belongs to it.

Libya v. Chad, (1994)A boundary established by a treaty achieves permanence which the treaty itself does not necessarily enjoy.y

y y



A treaty between the colonial powers France and Libya was entered into delimiting its frontiers. Later, Chad and Italy became independent of France and Libya, respectively. The dispute relates to the expiration of the treaty with Chad citing the uti possidetis juris principle and Italy arguing that there is no longer aboundary since the treaty has expired. Uti Possidetis Juris principle. Successor states must respect the colonial boundaries of colonial rulers. Theory of auto-imitation. Notwithstanding the fact that the treaty provides for a mere 20-yeareffectivity, the theory of autoimitation provide that boundaries have a life oftheir own separate from the treaty itself because a boundary established by treaty achieves permanence. This is in line with the need to prevent conflict and instability.

MAP CASES

Anglo-Norwegian Fisheries Case (UK v. Norway), (1951)Circumstances affecting delimitation. UK argues that the baseline should be thelow-water mark on permanently dry land and that the trace parallele method should be used. However, ICJ allowed Norway s method of delimiting the fisheries zone through the straight base-line method reckoned from the outer line of the skjaergaard because [1] this is in consonance with geographic realities, diversity of facts and special circumstances; [2] this gives a simpler form to the belt; [3] generaltoleration of the international community; [4] the 10-mile-maximium rule on themaximum length of the baseline does not apply because it has always been opposed by Norway. Skjaergaard; defined. A skjaergaard is made up of around 120,000 in

sular formations, lying along the coast of the mainland. The clearest dividing line between land and sea is the skjaergaard, not the coast of the mainland. Straight baselines method; defined. This method consists in selecting appropriate points on the low water mark and drawing straight lines between them. Method applies to well-defined bays and cases of minor curvature of the coastline. The goalis to provide a simpler form to the belt of the territorial waters. Trace parallele method; defined. This method consists in drawing the outer limit of the beltof territorial waters by following the coast in all its sinuosities. Method applies to ordinary coasts. Criteria provide courts with basis for their decisions.The following are fundamental considerations inherent in the nature of the territorial sea. First, the drawing of baselines must not depart to any appreciableextent from the general direction of the coast. Ratio for this is because it isthe land which confers upon the coastal state the

Preah Vihear Temple Case, (Cambodia v. Thailand), (1962)Estoppel Principle. Siam (Thailand) is estopped from questioning the delimitation in the maps because [1] Siam did not react to the map when it was so presented; [2] France (Cambodia) relied on Siam s non-objection.

Frontier Dispute Case (Burkina Faso v. Mali), (1986)The dispute relates to the delimitation of part of the common barrier between the former colonies of Upper Volta (now, Burkina Faso) and Sudan (now, Mali), as inherited from the French administration and existing at the moment of independence. ICJ used the uti possidetis juris principle and looked into evidence of colonial heritage Uti Possidetis Juris principle. This principle proves administrative boundaries or colonial heritage during the colonial period, and imposes the o

bligation to respect pre-existing international frontiers in the event of statesuccession. It aims to secure respect for the territorial boundaries at the moment when independence is achieved. The rationale for this principle is that the maintenance of the territorial status quo is seen as the wisest course in order to preserve what has been achieved by people who have struggled for their independence and to avoid a disruption. Effectivites; effective occupation; defined. Effective occupation is a mode of acquiring title which seeks to prove title to the territory. This concept deals with the exercise of sovereignty of a state overa particular territory. Effectivites; colonial effectivies; defined. State succession is a mode of acquiring title which seeks to prove administrative boundari



es. This





lusive authority by an occupying state or any authorized person, with or withoutphysical occupation depending on whether or not the island is uninhabited (Clipperton Island Arbitration). Note that territory must be terra nullius. Acquisitive prescription. Acquisition of territory results where there is long and continued possession. Other Principles Insufficient for the Acquisition of Territory:Estoppel. Estoppel is a general principle of international law which precludes another claimant from acquiring title. Discovery; inchoate title. Discovery alonegives the claimant merely an inchoate title. This must concur with effective occupation for there to be acquisition of property (Island of Palmas Case). Note that territory must be terra nullius. Possession. Possession is a strong evidenceof title when coupled with effective occupation, but is not enough on its own for the acquisition of title. Note that possession requires animus possedendi. Constructive possession. There is constructive possession of the whole island or archipelago where a coast of the island, or an island/islet/rock of the archipelago have been actually occupied by

Case Concerning Kasikili/Sedudu Island (Botswana v. Namibia), (1999)A treaty between the colonial powers Germany and UK was entered into delimitingSouthwest Africa. Later, Namibia became independent from Germany; and Botswana was formed in the former British territory. The dispute relates to the location of the boundary around the Kasikili/Sedudu Island between Namibia and Botswana. Uti Possidetis Juris principle. There is no agreement in the treaty as to the exact boundary line; and neither is there proof of effective occupation by Namibiaand Botswana. In the absence of these circumstances, Namibia and Botswana, as su

ccessors, must respect the boundary set by the colonial powers.

El Salvador v. Honduras, with Nicaragua intervening, (1992)El Salvador and Honduras became independent states after the disintegration of the Spanish empire in Central America. Even before their independence, Spanish Central America had overlapping administrative boundaries. Parties seek to have the boundaries determined. Uti Possidetis Juris principle. The principle will be used where the colonial boundaries are not clear as is in this case where lack ofsophisticated means of surveying led to cases of overlapping administrative boundaries.




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another state. There can be no constructive possession where the occupied islandis so far distant from the others in the group. Contiguity. Contiguity merely raises a presumption of occupation. Conquest. Conquest is a means by which territory can be acquired by an enemy through the complete and final subjugation of the territory, coupled with the enemy s declaration of its intention to conquer. Conquest was once an accepted norm, but is now illegal.

all foreign vessels from its ports. If the foreign vessel is merely passing through, the flag State has jurisdiction (French rule). If the vessel is docked, thecoastal State may exercise jurisdiction (English rule).

Nicaragua v. US (1986)US military laid mines in Nicaraguan internal waters and in its territorial seaand along Nicaraguan ports causing material damage to Nicaragua and innocent vessels. The US Government did not issue any public and official warning to international shipping of the existence and location of the mines.

2. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS)8

a.

INTERNAL WATERS

Internal waters are all waters landwards from the baseline of the territory (rivers, lakes, bays, etc). Sovereignty over these is the same in extent as sovereignty over land, and is not subject to the right of innocent passage. However, inSaudi Arabia v. Aramco the arbitrator said that according to international law ports of every state must be open to foreign vessels and can only be closed whenvital interests of the state so requires. But according to Nicaragua v. US, a co

astal state may regulate access to its ports. Bays are well-marked indentationswhose penetration is in such proportion to the width of its mouth as to containland-locked waters and constitute more than a mere curvature of the coast. To beconsidered a bay, the area of the indentation must be as large as, or larger than, that of a semi-circle whose diameter is a line drawn across the mouth of that indentation (the semi-circle test). Historic bays are those which are treatedby the coastal state as internal waters on the basis of historic rights acknowledged by other states. * Sir: foreign vessels without a right to call on ports UNLESS there is a Treaty of Commerce, Friendship & Navigation. For internal waters, the coastal State has absolute territorial jurisdiction, thus it may exclude8

Internal waters. Coastal State s Sovereignty extends to internal waters and airspa

ce. Coastal State s Laws apply in Internal Waters. The laying of mines within theports of another State is governed by the law relating to internal waters, whichare subject to the sovereignty of the coastal State. The position is similar asregards mines placed in the territorial sea. It is therefore the sovereignty ofthe coastal State which is affected in such cases. It is also by virtue of itssovereignty that the coastal State may regulate access to its ports. On the other hand, it is true that in order to enjoy access to ports, foreign vessels possess a customary right of innocent passage in territorial waters for the purposesof entering or leaving internal waters. Freedom of Navigation hampered. Such isguaranteed, first in the exclusive economic zones and beyond territorial waters



and on the high seas, it follows that any State which enjoys a right of access to ports for its ships also enjoys all the freedom necessary for maritime navigation. If this right of access to the port is hindered by the laying of mines by another State, what is infringed is the freedom of communications and of maritimecommerce. At all events, it is certain that interference with navigation in these areas prejudices both the sovereignty of the coastal State over its internalwaters, and the right of free access enjoyed by foreign ships. b. TERRITORIAL SEA

Thanks to Gem, Carol, Ben, and Jerome for this part. Also, the Art. 6 referred to in some of the cases is Art. 6 of the Geneva Convention on the Continental Shelf.

This is the belt of sea outwards from the baseline and up to 12 nautical miles beyond. Regarding its width, the original rule was the cannon shot rule, where thewidth was measured in terms of the




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range of shore-based artillery. This later became the 3-mile rule. Under the UNCLOS, the rule is now 12 miles. Take note, however, that where the application ofthe 12-mile rule to neighboring littoral states would result in overlapping, the dividing line is instead a median line equidistant from the opposite baselines. But this equidistant rule does not apply where historic title or other specialcircumstances require a different measurement. The extent of the territorial sea depends on the baseline. The baseline is the low-water line along the coast asmarked on large scale charts officially recognized by the coastal State. The width of the territorial sea is measured from this line. There are 2 ways of drawing the baseline. The normal baseline is drawn following the low-water line along the coast as marked on large-scale charts officially recognized by the coastal State. This line follows the curvatures of the coast and therefore would normallynot consist of straight lines. There is no fixed norm for determining this low-water line or mark, but the Anglo-Norwegian Fisheries Case suggested using the mean between the high and low tides. Archipelagic states instead use straight baselines. These are drawn connecting selected points on the coast without appreciable

departure from the general shape of the coast. This was the method used in theAnglo-Norwegian Fisheries Case, and is now in Art. 7(1) of UNCLOS. This articleprovides that straight baselines may be used where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity. Some guidelines to be observed in using this method: 1. the drawing of straight baselines must not depart to any appreciable extent from the general direction of the coast 2. the sea areas lying within the lines must be sufficiently closely linked to the land domain to be subject to the regime of internal waters 3. the baselines shall not be drawn to and from low-tide elevations 4.take account of economic interests peculiar to the region concerned, the reality and importance of which are clearly evidenced by long usage 5. this method maynot be applied in such a manner as to cut off the territorial sea of another State from the high seas or an EEZ (ex. Singapore) The sovereignty of the coastal

state over its territorial sea, the airspace above it, and the seabed is the same as its sovereignty over its land territory. However the sea is subject to theright of innocent passage by other states. The rule on innocent passage appliesto ships and aircrafts. Submarines however must surface. Innocent passage is navigation through waters in an expeditious and continuous manner, which is not prejudicial to the peace, good order, or security of the coastal state. Some examples of passage which is not innocent are fishing, polluting, weapons practice, spying, research activities, and any other activity not having a direct bearing onpassage. Coastal states do have rights of protection, which is the unilateral right to verify the innocent character of passage. Thus, they may take necessarysteps to prevent not innocent passage, and they may temporarily suspend the right of innocent passage if this is essential for the protection of its security. Take note that islands and rocks which cannot sustain human habitation or economi

c life have their own territorial sea. Within the territorial sea, the flag state has criminal and civil jurisdiction. However, there are exceptions. With respect to criminal jurisdiction, the coastal state can exercise its criminal jurisdiction in

connection with any crime committed on board the ship during its passage if: 1.the consequences of the crime extend to the coastal state 2. the crime disturbsthe peace of the country or good order of the territorial sea 3. the ship s masteror diplomatic agent/consular officer of the flag state requested the assistanceof the local authorities 4. it is necessary to suppress illicit traffic in narc



otic drugs. The coastal state may exercise its civil jurisdiction by levying execution or arresting the ship only in respect of obligations or liabilities assumed or incurred by the ship itself in the course of or for the purpose of its voyage through the waters of the coastal state.

Anglo-Norwegian Fisheries Case (1951)In 1935 Norway delimited a certain fisheries zone which was exclusively reservedto its nationals. This delimitation, using straight baselines, was opposed by the UK. The coastal zone involved has a distinctive configuration (long and verybroken). The Court upheld this Norwegian delimitation. Use the low-water mark. For the purpose of measuring the breadth of the territorial sea, it is the low-water mark as opposed to the highwater mark, or the mean between the two tides, which has generally been adopted in the practice of States. This criterion is themost favourable to the coastal State and clearly shows the character of territorial waters as appurtenant to the land territory. Straight baselines method. Thismethod consists of selecting appropriate points on the low-water mark and drawing straight lines between them. This has been validly done, not only in the caseof well-defined bays, but also in cases of minor curvatures of the coast line where it was solely a question of giving a simpler form to the belt of territorial waters. Norway s baselines were valid. But the Norwegian delimitation is still subject to certain principles which make it possible to judge the delimitation s validity under international law. The delimitation of sea areas has always an international aspect; it cannot be dependent merely upon the will of the coastal State as expressed in its municipal law. Although it is true that the act of delimi

tation is necessarily a unilateral act, because only the coastal State is competent to undertake it, the validity of the delimitation with regard to other States depends upon international law. Certain basic considerations inherent in the nature of the territorial sea bring to light certain criteria which, though not entirely precise, can provide courts with an adequate basis for their decisions,which can be adapted to the diverse facts in question. Among these some reference must be made to the close dependence of the territorial sea upon the land domain. It is the land which confers upon the coastal State a right to the waters off its coasts. It follows that while such a State must be allowed the latitude necessary in order to be able to adapt its delimitation to practical needs and local requirements, the drawing of base-lines must not depart to any appreciable extent from the general direction of the coast. Another fundamental considerationis the more or less close relationship existing between certain sea areas and th

e land formations which divide or surround them. The real question raised in thechoice of base-lines is in effect whether certain sea areas lying within theselines are sufficiently closely linked to the land domain to be subject to the regime of internal waters. This idea, which is at the basis of the determination of the rules relating to bays, should be liberally applied in the case of a coast, the geographical configuration of which is as unusual as that of Norway. The last consideration is that of certain economic interests peculiar to a




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region, the reality and importance of which are clearly evidenced by long usage.

El Salvador v. Honduras, Nicaragua Intervening (1992)The legal status of the islands located in the Gulf of Fonseca became an issue of dispute; the question of the land frontier followed in 1861. Border incidentsled to mounting tension between El Salvador and Honduras and, ultimately, to anarmed conflict in 1969 Islands of the Gulf of Fonseca. None of the islands had been terra nullius in 1821, the date of independence. Thus, sovereignty over theislands had been achieved according to the uti possidetis juris principle (colonial boundaries are continually adopted). However, the application of this principle suffered from the lack of documents that might have testified clearly the appertainance of the islands to one administrative district or the other. Thus theCourt was forced to concentrate more on the behaviour of the parties with regard to the islands after 1821. On this basis the Court found that El Tigre appertained to Honduras and Meanguera and Meanguerita to El Salvador. Gulf of Fonseca =Juridical Bay under UNCLOS and Historical Bay under Customary International Law

. Considering the dimensions and proportions, the Gulf would today be regarded as a juridical bay in accordance with UNCLOS. However, the Gulf was not a singleState bay but constituted a so called historical bay, which is neither defined in the 1958 Convention nor in the Convention of 1982. From this fact the Court concluded that its decision had to be taken on the basis of customary international law. Court looked at the Central American Court of Justice of 1917 conclusionthat the Gulf of Fonseca effectively constituted a "closed sea" belonging to allthree coastal States communally, with the exception of a three mile zone established unilaterally by each coastal State. Thus, the Central American Court viewed the Gulf of Fonseca as a condominium resulting from the succession of the three States from Spain in 1821. Until then, the Gulf had been a single State bay belonging to Spain alone. According to the Court, the decision of the Central American Court underlined the fact that at the time of independence, no boundaries w

ere delimited in the Gulf and thus the waters had remained undivided. Court heldthat Gulf of Fonseca was a case of "historic waters", whereby the three coastalStates had succeeded to communal sovereignty. In contrast to the frontier delimited on land, the waters of the Gulf had never been divided or otherwise delimited after the independence of the three coastal States. Thus, the communal succession for the three States was a logical consequence of the uti possidetis jurisprinciple with regard to the sovereignty of the Gulf.

Coastline - (Art. 8 of the Convention on the Territorial Sea and the Contiguous Zone) (a) The line of mean lower low water on the mainland, on islands, and on low-tide elevations lying wholly or partly within three geographical miles from theline of mean lower low water on the mainland or on an island; and (b) The linemarking the seaward limit of inland waters. This includes modifications by natur

al or artificial means, and includes the outermost permanent harbour works thatform an integral part of the harbour system "Island" - a naturally-formed area of land surrounded by water, which is above the level of mean high water; "Low-tide elevation" - a naturally-formed area of land surrounded by water at mean lower low water, which is above the level of mean lower low water but not above thelevel of mean high water; "Mean lower low water" - the average elevation of allthe daily lower low tides occurring over a period of 18.6 years; "Mean high water" - the average elevation of all the high tides occurring over a period of 18.6years; "Geographical mile" - a distance of 1852 meters (6076.10333 U.S. SurveyFeet or approximately 6076.11549 International Feet). Roadsteads - waters between



islands, and waters between islands and the mainland are not per se inland waters. "Inland waters" (Par. 2(b) Convention on the Territorial Sea and the Contiguous Zone) waters landward of the baseline of the territorial sea and includes: (a) Any river or stream flowing directly into the sea, landward of a straight lineacross its mouth; (b) Any port, landward of its outermost permanent harbor works and a straight line across its entrance; (c) Any "historic bay," as that termis used in paragraph 6 of Article 7 of the Convention, defined essentially as abay over which the United States has traditionally asserted and maintained dominion with the acquiescence of foreign nations; (d) Semi Circle Test Any other bay(defined as a well-marked coastal indentation having such penetration, in proportion to the width of its entrance, as to contain landlocked waters, and havingan area, including islands within the bay, at least as great as the area of a semicircle whose diameter equals the length of the closing line across the entrance of the bay, or the sum of such closing lines if the bay has more than one entrance), landward of a straight line across its entrance or, if the entrance is more than 24 geographical miles wide, landward of a straight line not over 24 geographical miles long, drawn within the bay so as to enclose the greatest possibleamount of water. An estuary of a river is treated in the same way as a bay.

United States vs. California (1965)Case involves the interpretation of some terms used in the Submerged Lands Act.State of California and the Federal government are trying to determine who ownsand has jurisdiction over the subsoil, seabed of the continental shelf and the resources located therein along the California. To resolve such, the Court discus

ses the definition of relevant maritime terms. Jurisdiction. Federal governmentowns and has exclusive jurisdiction over such beyond 3 miles seaward from the coastline. California owns and has exclusive jurisdiction over such within 3 milesor the tidelands along its coast (defined as the shore of the mainland and of islands, between the line of mean high water and the line of mean lower low water). Definitions. Court adopts the definitions in the International Convention onthe Territorial Sea and the Contiguous Zone:

US v. Louisiana (1969)The issue is about the correct definition of Inland Waters . U.S. argues that the definitions of inland waters contained in the International Convention on the Territorial Sea (ICTS) should prevail over Louisiana s contention that it should be the Inland Water Line (IWL) fixed by the Commandant of the Coast Guard in 1895. Sus

tained the California case. Court sustains the adoption of the ICTS definitionsin the U.S. v. California case. The ICTS definition prevails and it is as follows - "the line of ordinary low water along that portion




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of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." Baseline. The line marking the seaward limitof inland waters, is also to be drawn in accordance with the definitions of theConvention on the Territorial Sea and the Contiguous Zone. Historic title. Whether particular waters are inland has depended on historical as well as geographical factors but as we said in United States v. California, it is generally agreedthat historic title can be claimed only when the "coastal nation has traditionally asserted and maintained dominion with the acquiescence of foreign nations."3 Zones of Navigable Seas under General Principles of IL Inland, or internal Marginal, or High seas waters territorial, seaNearest to the nation's shores are its. Thes e are subject to the complete s overeignty of the nation, as muc h as if they were a part of its land territory, and the coastal nati on has the privilege even to exclude foreign vess els altogether. Beyond the inland waters, a nd measured from their seaward edge, is a beltknown as the. Within it the coastal na tion may exercise extensive control butcannot deny the right of innoc ent passage to foreign nations Outside the territ

orial sea, which are international waters not subject to the domini on of a ny single nation.

Bordering states have the following duties: 1. not to impede the right of transit passage 2. to give appropriate publicity to any danger to navigation or overflight within or over the strait of which they have knowledge 3. not to suspend transit passage. Ships and aircraft exercising the right of transit passage have the following duties: 1. to proceed without delay through or over the strait 2. refrain from any threat or use of force against the sovereignty, territorial integrity, or political independence of States bordering the strait, or in any manner in violation of the principles in the UN Charter 3. refrain from any activities other than those incident to their normal modes of continuous and expeditioustransit unless necessary due to force majeure or distress 4. to comply with the

other provisions of UNCLOS. Also, foreign vessels may not carry out research andsurvey activities without the prior authorization of the bordering States. Takenote that these duties (of bordering States and foreign vessels) are also applicable to archipelagic sea lanes passage. States alongside the straits however are able to regulate navigation and other aspects of passage.

Stable Coastline Policy not convincing enough. The policy in favor of a certainand stable coastline, strong as it is, would necessarily outweigh countervailingpolicy considerations under the Submerged Lands Act. We recognized in California the desirability of "a single coastline for both the administration of the Submerged Lands Act and the conduct of our future international relations." c. STRAITS

Corfu Channel Case (1949)A squadron of British warships, the cruisers Mauritius and Leander, and the destroyers Saumarez and Volage, left the port of Corfu and proceeded northward through a channel previously swept for mines in the North Corfu Strait. Several shipsstruck a mine and were damaged. UK sues People's Republic of Albania Albania s failed its Duty it is liable. Obligation incumbent upon Albanian authorities consisted in notifying for the benefit of the shipping in general, the existence of aminefield in Albanian territorial waters and in warning the British warships ofthe imminent danger to which the minefield exposed them. BASIS of such an obligation: 1. elementary considerations of humanity, even more exacting in peace tha



n in war 2. the principle of freedom of maritime communication 3. every State'sobligation not to allow knowingly its territory to be used for acts contrary tothe rights of other States. Albania was aware of the minelaying since the geography of the strait easily allowed Albanian lighthouse watchers to view such activities. Innocent passage through straits is a right recognized by international law. The decisive criterion is its geographical situation as connecting two partsof the high seas and the fact of its being used for international navigation. The nature of the Channel satisfies this criterion. It has been a useful route for international maritime traffic. A total number of 2, 884 ships have passed through the Channel in a period of 1 year and 9 months. Passage through it therefore cannot be prohibited by a coastal State in time of peace. Combat formation determines if a passage is innocent. Sir Roque says: International straits are subject to non-suspendible rights of innocent passage. d. ARCHIPELAGOS

Straits used for international navigation (to navigate between one part of the high seas or an EEZ and another part of the high seas or an EEZ) are under the purview of UNCLOS, but the legal regime in such straits in which passage is regulated in whole or in part by longstanding international conventions in force specifically relating to such straits is not affected. Through these waters, ships and aircraft of all countries are allowed transit passage, as long as they proceededwithout delay and without threatening the bordering states. Transit passage isthe exercise of the freedoms of navigation and overflight solely for the purposeof expeditious and continuous transit (thus they must proceed without delay) ofthe strait. During transit passage, foreign ships, including maritime scientifi

c research and hydrographic survey ships, may not carry out any research or survey activities without the prior authorization of the bordering states. Transit passage is inapplicable in three instances: 1. if there exists through the straita route through the high seas or an EEZ of similar convenience, in which case the freedoms of navigation and overflight would apply 2. if the strait is formedby an island of a state bordering the strait and its mainland, and there existsseaward of the island a route to the high seas or EEZ of similar convenience, inwhich case the right of innocent passage would apply 3. if the strait is between a part of the high seas or EEZ and the territorial sea of another state, in which case the right of innocent passage would apply.




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Archipelagic states are those which are made up wholly of one or more archipelagos. For these states, the straight baselines are drawn between the outermost points of the outermost islands, provided these points are sufficiently close to one another and that within such baselines are included the main islands and an area in which the water area to land area ratio is between 1:1 and 9:1. All watersinside these baselines are archipelagic waters. Some guidelines in drawing thebaselines: 1. the length of such baselines shall not exceed 100 nautical miles,except that up to 3% of all the baselines may reach up to 125 miles 2. the drawing of the baselines shall not depart to any appreciable extent from the generalconfiguration of the archipelago 3. such baselines shall not be drawn to and from low-tide elevations 4. these shall not be applied in such a manner as to cut off from the high seas or EEZ the territorial sea of another State While archipelagic states have sovereignty over a sea area enclosed by the baselines, all other states enjoy the right of innocent passage through designated sea lanes. Foreign ships and aircraft also have the right of archipelagic sea lanes passage, which refers to continuous, expeditious, and unobstructed passage in sea lands and

air routes through or over the archipelagic waters and the adjacent territorialsea of the archipelagic state in transit between one part of the high seas or anEEZ and another part of the high seas or an EEZ (similar to transit passage). An archipelagic state shall respect existing agreements with other states and shall recognize traditional fishing rights and other legitimate activities of the immediately adjacent neighboring states in certain areas, including the maintenance and replacement of submarine cables, falling within archipelagic waters. Takenote that under UNCLOS, the waters inside the archipelagic baselines are calledarchipelagic waters. And while archipelagic states may designate sea lanes andair routes suitable for continuous and expeditious passage over these archipelagic waters, if the archipelagic state does not designate such lanes, the right ofarchipelagic sea lanes passage may still be exercised through routes normally used for international navigation. This is criticized as being unduly burdensome

for archipelagic states. (Archipelagic waters also inside baselines, like internal waters) Under the Philippine Constitution, all waters connecting the islandsare internal waters. Thus when the country ratified the UNCLOS, a declaration was added, providing that: The signing of the Convention shall not in any manner impair or prejudice the sovereign rights of the Republic of the Philippines under and arising from the Constitution Such signing shall not in any manner affect thesovereign rights of the Republic under and arising out of the Treaty of Paris andthe Treaty of Washington The provisions of the Convention on archipelagic passagethrough sea lanes do not nullify or impair the sovereignty of the Philippines as an archipelagic State over the sea lanes and do not deprive it of authority toenact legislation to protect its sovereignty, independence, and security . e. THECONTIGUOUS ZONE

immigration, or sanitation authority over its territorial waters or territory and to punish such infringement. Take note that the power of control does not change the nature of the waters. Beyond the territorial sea, the waters are high seaand not subject to the sovereignty of the coastal state. Sir Roque says: This was added as a response to ships which would linger in areas beyond the State s jurisdiction, thus beyond the State s criminal jurisdiction, but would do acts inimical to the coastal State. Remember that the jurisdiction is limited; beyond the 4areas, follow the regime of the EEZ. Take note that this is the only optional regime. f. THE CONTINENTAL SHELF






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Furthermore, the right does not depend on its being exercised. It follows that the notion of apportioning an as yet undelimited area, is quite foreign to, and inconsistent with, the basic concept of continental shelf entitlement. Equidistance method not obligatory. It has never been doubted that the equidistance methodof delimitation is a very convenient one. Yet this does not suffice to convertwhat is a method into a rule of law, making the acceptance of the results of using that method obligatory in all cases in which the parties do not agree otherwise, or in which 'special circumstances' cannot be shown to exist. Appurtenance (of the continental shelf) to a State т Proximity. Thus the question of which partsof the continental shelf 'adjacent to' a coastline bordering more than one State fall within the appurtenance of which of them, remains to this extent an openone, not to be determined on a basis exclusively of proximity. Even if proximitymay afford one of the tests to be applied and an important one in the right conditions, it may not necessarily be the only, nor in all circumstances, the mostappropriate one. More fundamental: natural prolongation or continuation of landterritory or domain or land sovereignty of the coastal state, into & under the h

igh seas, via the bed of its territorial sea which is under full sovereignty. Submarine areas do not really appertain to the coastal State because they are nearit. What confers the ipso jure title which international law attributes to thecoastal State in respect of its continental shelf is the fact that the submarineareas concerned may be deemed to be actually part of the territory over which the coastal State already has dominion, in the sense that, although covered withwater, they are a prolongation or continuation of that territory, an extension of it under the sea. Thus whenever a given submarine area does not constitute a natural extension of the land territory of a coastal State, even though that areamay be closer to it than it is to the territory of any other State, it cannot be regarded as appertaining to that State; or at least it cannot be so regarded in the face of a competing claim by a State of whose land territory the submarinearea concerned is to be regarded as a natural extension, even if it is less clo

se to it. Opposite v. Adjacent. For opposite States the natural prolongations may meet and overlap, and can only be delimited by a median line; and, ignoring the presence of islets, rocks and minor coastal projections, the disproportionallydistorting effect of which can be eliminated by other means, such a line must effect an equal division of the particular area involved. This type of case is different from that of laterally adjacent States on the same coast with no immediately opposite coast in front of it. Whereas a median line divides equally between 2 opposite countries areas that can be regarded as being the natural prolongation of the territory of each of them, a lateral equidistance line often leaves to 1 of the States concerned areas that are a natural prolongation of the territory of the other. The distorting effects of lateral equidistance lines under certain conditions of coastal configuration are nevertheless comparatively small within the limits of territorial waters, but produce their maximum effect in the lo

calities where the main continental shelf areas lie further out. There is also adirect correlation between the notion of closest proximity to the coast and thesovereign jurisdiction which the coastal State is entitled to exercise and mustexercise, not only over the seabed underneath the territorial waters but over the waters themselves, which does not exist in respect of continental shelf areaswhere there is no jurisdiction over the superjacent waters, and over the seabedonly for purposes of exploration and exploitation.

Delimitation must be by agreement, arrived at in accordance with equitable principles: (a) the parties are under an obligation to enter into negotiations with a



view to arriving at an agreement, and not merely to go through a formal processof negotiation as a sort of prior condition for the automatic application of acertain method of delimitation in the absence of agreement; they are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it; (b) the parties are under an obligation to act in such a way that, in the particular case, and taking all the circumstances into account, equitable principles are applied; for this purpose the equidistancemethod can be used, but other methods exist and may be employed, alone or in combination, according to the areas involved; (c) the continental shelf of any State must be the natural prolongation of its land territory and must not encroachupon what is the natural prolongation of the territory of another State. Inequity of the equidistance method, in certain geographical circumstances: (a) The slightest irregularity in a coastline is automatically magnified by the equidistance line as regards the consequences for the delimitation of the continental shelf. Thus it has been seen in the case of concave or convex coastlines that if theequidistance method is employed, then the greater the irregularity and the further from the coastline the area to be delimited, the more unreasonable are the results produced. So great an exaggeration of the consequences of a natural geographical feature must be remedied or compensated for as far as possible, being ofitself creative of inequity. (b) Where there is no outer boundary to the continental shelf, it happens that the claims of several States converge, meet and intercross in localities where, despite their distance from the coast, the bed of the sea still unquestionably consists of continental shelf. A study of these conve

rgences shows how inequitable would be the apparent simplification brought aboutby a delimitation which, ignoring such geographical circumstances, was based solely on the equidistance method. Can use different methods. No objection need befelt to the idea of effecting a delimitation of adjoining continental shelf areas by the concurrent use of various methods. Equity does not necessarily imply equality. There can never be any question of completely refashioning nature, andequity does not require that a State without access to the sea should be allotted an area of continental shelf, any more than there could be a question of rendering the situation of a State with an extensive coastline similar to that of a State with a restricted coastline. But here, there are 3 States whose North Sea coastlines are in fact comparable in length and which, have been given broadly equal treatment by nature except that the configuration of one of the coastlines would, if the equidistance method is used, deny to one of these States treatment

equal or comparable to that given the other two. An inequity is created merely because one coastline is roughly convex and the other concave. It is not a question of totally refashioning geography whatever the facts of the situation but, given a geographical situation of quasi-equality as between a number of States, ofabating the effects of an incidental special feature from which an unjustifiable difference of treatment could result. Criteria to consider: 1. Geology. The continental shelf is an area physically extending the territory of most coastal States into a species of platform. The appurtenance of the shelf to the countriesin front of whose coastlines it lies is a fact, and it can be useful to considerthe geology




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of that shelf in order to find out whether the direction taken by certain configurational features should influence delimitation. 2. Geography. The principle isthat the land dominates the sea; it is consequently necessary to examine closely the geographical configuration of the coastlines of the countries whose continental shelves are to be delimited. Since the land is the legal source of the power which a State may exercise over territorial extensions to seaward, it must first be clearly established what features do in fact constitute such extensions.3. Unity of any deposits. The natural resources of the subsoil of the sea in those parts which consist of continental shelf are the very object of this legal regime. Yet it frequently occurs that the same deposit lies on both sides of the line dividing a continental shelf between two States, and since it is possible toexploit such a deposit from either side, a problem immediately arises on account of the risk of prejudicial or wasteful exploitation by one or other of the States concerned. All that is needed is to refer to the undertakings entered into by the coastal States of that sea with a view to ensuring the most efficient exploitation or the apportionment of the products extracted. 4. Reasonable degree of

proportionality which a delimitation effected according to equitable principlesought to bring about between the extent of the continental shelf appertaining to the States concerned and the lengths of their respective coastlines, these being measured according to their general direction in order to establish the necessary balance between States with straight, and those with markedly concave or convex coasts, or to reduce very irregular coastlines to their truer proportions.The choice and application of the appropriate technical methods would be a matter for the parties.

concept, is in part defined by distance from the shore, irrespective of the physical nature of the intervening sea-bed and subsoil. The concepts of natural prolongation and distance are therefore not opposed but complementary. Equitablenessof result is primary. The delimitation of a continental shelf boundary must be

effected by the application of equitable principles in all the relevant circumstances in order to achieve an equitable result. Some equitable principles: the principle that there is to be no question of refashioning geography, or compensating for the inequalities of nature; the related principle of non-encroachment byone party on the natural prolongation of the other (the coastal State enjoys sovereign rights over the continental shelf off its coasts to the full extent authorized by international law in the relevant circumstances); the principle of respect due to all such relevant circumstances; the principle that although all States are equal before the law and are entitled to equal treatment, "equity does not necessarily imply equality", nor does it seek to make equal what nature has made unequal; and the principle that there can be no question of distributive justice. Factors which weren t considered in this case: landmass, relative economic positions of the Parties, security considerations, and the principle of equality.

Proportionality is considered. What the Court intended was proportionality was to be used as a means of identifying and then correcting the kind of distortion that could arise from the use of a method inapt to take adequate account of somekinds of coastal configuration. Delimitation process: 1. Make a provisional delimitation by using a criterion and a method both of which are clearly destined toplay an important role in producing the final result. The law applicable to claims relating to continental shelves located less than 200 miles from the coastsof the States on a criterion of distance from the Coast or on the principle of adjacency as measured by distance. Thus the choice of the criterion and the method to be used to arrive at a provisional result should be made in a manner consis



tent with the concepts underlying the attribution of legal title. In this delimitation between opposite coasts, the tracing of a median line between those coasts, by way of a provisional step, is the most judicious manner of proceeding witha view to the eventual achievement of an equitable result. Take note that the median line drawn is only provisional. Were the Court to treat it as final, it would be conferring on the equidistance method the status of being the only methodthe use of which is compulsory in the case of opposite coasts. Under existing law, it must be demonstrated that the equidistance method leads to an equitable result in the case in question. To achieve this purpose, the result to which thedistance criterion leads must be examined in the context of applying equitable principles to the relevant circumstances. Also remember that, to achieve an equitable result in a situation in which the equidistance line is prima facie the appropriate method, all relevant circumstances must be examined, since they may have a weight in the assessment of the equities of the case which it would be proper to take into account and to reflect in an adjustment of the equidistance line.2. Examination of the provisional solution in light of the requirements derivedfrom other criteria, which may call for a correction of the initial results.

Libya v. Malta (1985)This concerned the delimitation of the continental shelf between Libya and Malta. The Mediterranean is bordered by Tunisia (east), Italy (north), Greece (west)and Libya (south). Malta is a group of islands situated in the Mediterranean, tothe south of Italy and to the north of Libya. Libya s coast is significantly larger than that of Malta. RE: UNCLOS, which provided that the delimitation of the c

ontinental shelf be effected by agreement on the basis of international law, inorder to achieve an equitable solution. The Convention sets a goal to be achieved, but is silent as to the method to be followed to achieve it. It restricts itself to setting a standard, and it is left to States themselves, or to the courts, to endow this standard with specific content. Relation to EEZ & legal basis ofcontinental shelf rights. The two institutions - continental shelf and EEZ arelinked together in modern law. Since the rights enjoyed by a State over its continental shelf would also be possessed by it over the sea-bed and subsoil of anyEEZ which it might proclaim, one of the relevant circumstances to be consideredfor the delimitation of the continental shelf of a State is the legally permissible extent of the EEZ appertaining to that same State. This does not mean that the concept of the continental shelf has been absorbed by that of the EEZ; it does however signify that greater importance must be attributed to elements, such a

s distance from the Coast, which are common to both concepts. Although the institutions of the continental shelf and the EEZ are different and distinct, the rights which the EEZ entails over the sea-bed of the zone are defined by referenceto the regime laid down for the continental shelf. Although there can be a continental shelf where there is no EEZ, there cannot be an EEZ without a corresponding continental shelf. It follows that the distance criterion must now apply to the continental shelf as well as to the EEZ. What this means is that where the continental margin does not extend as far as 200 miles from the shore, natural prolongation, which in spite of its physical origins has throughout its history become more and more a complex and juridical




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Due to the great difference in length of the coasts and the general geographicalcontext (the Maltese islands appear as a relatively small feature in a semi-enclosed sea), in order to ensure the achievement of an equitable solution, the delimitation line must be adjusted so as to lie closer to the coasts of Malta. Within the area with which the Court is concerned, the coasts of the Parties are opposite to each other, and the equidistance line between them lies broadly west toeast, so that its adjustment can be satisfactorily and simply achieved by transposing it in an exactly northward direction. This line meets the requirements ofthe test of proportionality, and is equitable, given all relevant circumstances.

Guinea v Guinea-Bissau (1985)The case regarding the marine delimitation was removed from the list of cases ofthe ICJ because both parties mutually dropped the case. Their main reason was that both parties agreed on establishing an international agency for the join exploitation of the maritime zone in question.

Aegean Sea Continental Shelf Case (1978)Though the Court was primarily focused on the issue of jurisdiction in this case, the relevant issue is whether or not certain islands under Greek sovereignty are entitled to a continental shelf of their own and entitle Greece to call for the boundary to be drawn between those islands and the Turkish Coast. No jurisdiction. ICJ has no jurisdiction since Turkey did not accept such jurisdiction in the Rome Communique. Turkey s Theory: islands in question are mere protuberances ofthe Turkish continental shelf and have no continental shelf of their own. (Courtdid not decide on this issue since it had no jurisdiction but I think Sir Harryagreed with Turkey s theory since based on the map, to grant continental shelves would encroach in the territorial sea of Turkey) The issue of whether these islands have their own continental shelf concerns matters of entitlement (do the isla

nd deserve shelves), delimitation (whats the area of these shelves) and territorial status (will it encroach on established national boundaries) Sir Roque says:In this case the principles in the Sipadan case and Eritrea-Yemen Arbitration would apply. In our discussion, Sir said that the method of half effect could beapplied.

two States is adjacent but because of the change in direction of the coast of Tunisia it seems opposite at some point. The initial delimitation line indicated by the ICJ will therefore extend from the outer limit of the territorial sea until its intersection with the parallel of latitude of the point on the coast of the Gulf of Gabes. In determining the angulation of the second like the existenceof the Kerkennah Islands (Tunisia) should be considered. The Kerkennah Islands is surrounded by islets and low-tide elevations. Some effect must be attributed t

o it. The Court has to take into account not only the islands, but also the low-tide elevations which, while they do not, as do islands, have any continental shelf of their own, do enjoy some recognition in international law for certain purposes. However, if the ICJ lets the line run parallel to the island coastline that would be giving the islands too much weight. Hence, half-effect must be used.The technique involves drawing two delimitation lines, one giving to the islandthe full effect attributed to it by the delimitation method in use, and the other disregarding the island totally, as though it did not exist. The delimitationline actually adopted is then drawn between the first two lines, either in sucha way as to divide equally the area between them, or as bisector of the angle w







continental shelf of the Channel, if the Channel Islands are left out of account. If the Channel Islands are given full effect, this will result in a substantial diminution of the area of continental shelf which would accrue to France. Thisfact appears to be, prima facie, a circumstance creative of inequity and calling for a method of delimitation that in some measure redresses the inequity. If this conclusion is tested by applying the equidistance-special circumstances rule, the presence of the Channel Islands must be considered, prima facie, as a "special circumstance" justifying a delimitation other than the median line. The two-fold solution with regard to Channel Islands: First, to maintain the appropriate balance between the two States in relation to the continental shelf as riparian States of the Channel with approximately equal coastlines, the primary boundary between them shall be a median line. In delimiting its course in the Channel Islands region the Channel Islands themselves are to be disregarded, since theircontinental shelf must be the subject of a second and separate delimitation. Second step: to delimit a second boundary establishing, vis-à-vis the Channel Islands, the southern limit of the continental shelf held by the Court to be appurtenant to the French Republic in this region to the south of the mid-Channel median line. Features considered. The essential continuity or the continental shelf of the English Channel and Atlantic region has been emphasized. It is also common ground that, geologically the slight southwesterly trend of the continental shelfof the Channel extends westwards into the Atlantic region along the line of theHurd Deep Fault Zone. The continental shelf of the Atlantic region is not confined within the arms of a comparatively narrow channel but one extending seawardsfront the coasts of the two countries into the open spaces of the Atlantic Ocean

. In consequence, the areas of continental shelf to be delimited lie off, ratherthan between, the coasts or the two countries. A further consequence is that the continental shelf extends to seawards of the coasts of the two countries for great distances. The actual coastlines of the two countries abutting on the continental shelf to be delimited are comparatively short, and that their geographical relation to each other vis-à-vis the continental shelf to be delimited is one oflateral rather than opposite coasts. Another is that the UK s coastal frontage project further into the Atlantic than that of France. This has the tendency to make the UK coast obtrude upon the continental shelf situated to seawards of the more westerly facing coast of the French Republic in that region. Another is France and the UK aren t the only States which abut on the Atlantic continental shelf.Legal framework used. Under Art. 6, in the absence of agreement and unless another boundary is justified by special circumstances, the boundary is to be the li

ne which is equidistant from the nearest points of the baselines from which thebreadth of the territorial sea of each State is measured. There is nothing in the language of Art. 6 to imply that in situations failing under paragraph 1 the virtues of the equidistance principle as a method of effecting an equitable delimitation are in any way superior to those which it possesses in situations falling under paragraph 2. The appropriateness of the equidistance or any other methodfor the purpose of effecting an equitable delimitation in any given case is always a function or reflection of the geographical and other relevant circumstances of the particular case. In short, the equitable character of the delimitationresults not from the legal designation of the situation as one of "opposite" States but from its actual geographical character as such. Similarly, in the case of "adjacent" States it is the lateral geographical relation of the two coasts, when combined with a large extension of the continental shelf seawards from those

coasts, which makes individual geographical features on either coast more proneto render




th

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the geometrical effects of applying the equidistance principle inequitable thanin the case of "opposite" States. The greater risk in these cases that the equidistance method may produce an inequitable delimitation thus also results not from the legal designation of the situation as one of "adjacent" States but from its actual geographical character as one involving laterally related coasts. In this case, due to the separation of the 2 coasts by a wide expanse of sea, the area (Atlantic region) is considered as a case of opposite States. A special circumstance: the prolongation of the Scilly Isles (UK) some distance further westwards than the Ushant island (France), which justifies a boundary other than the strict median line. However this doesn t authorize the use of any method in order toeffect an equitable delimitation. Modified equidistance method. In a large proportion of delimitations, where a particular geographical feature has influenced the course of a continental shelf boundary, the method of delimitation adopted has been some modification or variant of the equidistance principle rather than its total rejection. Here the problem also arises precisely from the distorting ef

fect of a geographical feature in circumstances in which the line equidistant from the coasts of the two States would otherwise constitute the appropriate boundary. The appropriate method is to take account of the Scilly Isles as part of the coastline of the UK but to give them less than their full effect in applying the equidistance method. Just as it is not the function of equity in the delimitation of the continental shelf completely to refashion geography, so it is also not the function of equity to create a situation of complete equity where natureand geography have established an inequity. Half-effect. In one instance, the method employed was to give half, instead of full, effect to the offshore island in delimiting the equidistance line. This method consists in delimiting the lineequidistant between the two coasts, first, without the use of the offshore island as a base-point, and, secondly, with its use as a basepoint; a boundary givinghalf-effect to the island is then the line drawn midway between those two equid

istance lines. This method appears to be an appropriate and practical method ofabating the disproportion and inequity which otherwise results from giving fulleffect to the Scilly Isles as a basepoint for determining the course of the boundary. * Sir: the method of half effect = proceed first as if the island doesn t exist, then shift the lines.

unknown Yes! An examination of the maps of the 17 and 18th centuries shows thatthe general features and configuration of the East coast of Greenland were knownto the cartographers. Even if no evidence of any landings on the coast have been produced, the ships which hunted whales in the waters to the East of Greenlandsighted the land at intervals and gave names to the prominent features which were observed. Indeed, "Greenland" as a geographical term was even more used in connection with the East coast than with the West coast, as the term "Straat Davis

" was often used to describe the West coast, or colonized area, of Greenland. g.THE EXCLUSIVE ECONOMIC ZONE

Before the acceptance of the doctrine on the exclusive economic zone, all watersbeyond the contiguous zone were considered high seas over which no state had control. The doctrine developed due to the desire of coastal states for better conservation and management of coastal fisheries. The EEZ is an area extending notmore than 200 nautical miles beyond the baseline. The coastal state has rights over the economic resources of the sea, seabed, and subsoil but this right does not affect the right of navigation and overflight of other states. Coastal states



also have the right to regulate, authorize, and conduct marine scientific research in the EEZ. The provisions on the EEZ are both a grant of rights to and an imposition of obligations on coastal states relative to the exploitation, management, and preservation of the resources found within the zone. Coastal states have 2 primary obligations. First, they must ensure through proper conservation andmanagement measures that the living resources of the EEZ are not subject to over-exploitation. This includes the duty to maintain and restore populations of harvested fisheries at levels which produce a maximum sustainable yield. Second, they must promote the objective of optimum utilization of the living resources. They must determine the allowable catch of living resources, and if they don t have the capacity to harvest the allowable catch, they must grant access to other states. Highly migratory species of fish and marine mammals are accorded special protection. The delimitation of overlapping EEZs between adjacent states is determined by agreement. And take note that islands have their own EEZs.

Spain v. Canada (1996) [ Facts only]This is a dispute relating to Canada s amendment of the Canadian Coastal FisheriesProtection Act, by virtue of which Canada pursued, boarded and seized a fishingvessel the Estai; flying the Spanish flag) on the high seas in order to put a stop to the overfishing of Greenland halibut by Spanish fishermen. Arguments: European Community s position - the arrest of a vessel in international waters by a State other than the State of which the vessel is flying the flag and under whosejurisdiction it falls, is an illegal act under both the NAFO Convention and customary international law, and cannot be justified by any means. Canada s Position -

dispute concerns the adoption of measures for the conservation and management offisheries stocks with respect to vessels fishing in the NAFO Regulatory Area and their enforcement Spain s Position - Spain argues that the term conservation andmanagement measures" must be interpreted in accordance with international law, so it must exclude any unilateral measure by a

Legal Status of Eastern Greenland (1933)Denmark sued Norway for occupying certain territories in Eastern Greenland. Bothcountries are claiming that the have the superior claim over this area. Doctrine of Sovereignty Actually Exercised . Two elements each of which must be shown to exist: a. the intention and will to act as sovereign b. some actual exercise or display of such authority Examples: Tax collection, monopoly activity/grants, lawmaking and enforcement Authority, recognition in conventions/treaties, public u

tilities concessions, hunting/fishing expeditions, maritime permits authority, lighthouses!!! WON Greenland as used in the documents of this period intended to include the East Coast because at that time, the East Coast was yet




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State which adversely affected the rights of other States outside that State's own area of jurisdiction. Doctrine: In international law only 2 types of measurestaken by a coastal State could, in practice, be regarded as "conservation and management measures": [1] those relating to the State's exclusive economic zone;and [2] those relating to areas outside that zone, in so far as these came within the framework of an international agreement or were directed at stateless vessels. Measures not satisfying these conditions were not conservation and management measures but unlawful acts pure and simple. Sir Roque says: Mustn t submit vessels guilty of illegal fishing to incarceration, but must promptly release them upon the posting of a cash bond.

In endorsing these conditions, the Court stated that they "must be cumulativelysatisfied" and that they "reflect customary international law". Hot Pursuit defense denied (Article 111 UNCLOS) All the requirements must be cumulatively complied with. Guinea did not comply with several. No visual or auditory signals to stop could have been given to the Saiga. and the alleged pursuit was interrupted w

hen the patrol boats were recalled before they resumed the chase.

Camouco Case (2000)The Camouco is a fishing vessel flying the flag of Panama. Its owner is "Merce-Pesca (S.A.)", a company registered in Panama. It was boarded by the French surveillance frigate Floréal in the exclusive economic zone of the Crozet Islands. TheFrench refuse to release the vessel and the Master until a bond is posted (exhaust local remedies) Local remedies need not be exhausted in order to file an application. Article 292 provides for an independent remedy and not an appeal against a decision of a national court. No limitation should be read into article 292that would have the effect of defeating its very object and purpose. Indeed, article 292 permits the making of an application within a short period from the date of detention and it is not normally the case that local remedies could Municip

al authorities are allowed to attach provisional liberty with the posting of a bond provided the amount is reasonable. Article 292 of the Convention is designedto free a ship and its crew from prolonged detention on account of the imposition of unreasonable bonds in municipal jurisdictions, or the failure of local lawto provide for release on posting of a reasonable bond, inflicting thereby avoidable loss on a ship owner or other persons affected by such detention. Equally,it safeguards the interests of the coastal State by providing for release onlyupon the posting of a reasonable bond or other financial security determined bya court or tribunal referred to in article 292, without prejudice to the meritsof the case in the domestic forum against the vessel, its owner or its crew. Reasonableness of Bond Amount. The basis is the value of the detained vessel and ofthe cargo seized, the amount of the bond imposed by the detaining State and itsform but the value of the vessel alone may not be the controlling factor in the

determination of the amount of the bond or other financial security if there isno evidence to support the assessment. h. DELIMITATION OF MARITIME BOUNDARIES

M/V Saiga (No.2) Case (1999)The Saiga is a Cypriot oil tanker that was arrested and boarded by Guinean authorities when it was sailing south of the southern limit of the exclusive economiczone of Guinea. The applicants are challenging the validity of the arrest and want damages. Guinea is insisting that they had jurisdiction to arrest and invokehot pursuit. Saiga s Nationality UNCLOS GENUINE LINK TEST. Article 91, paragraph1, of the Convention provides: "There must exist a genuine link between the Stat



e and the ship." Two questions need to be addressed in this connection. (a) Thefirst is whether the absence of a genuine link between a flag State and a ship entitles another State to refuse to recognize the nationality of the ship. (b) The second question is whether or not a genuine link existed between the Saiga andSaint Vincent and the Grenadines at the time of the incident. EEZ Guinea couldonly apply its customs laws with regard to artificial islands, installations andstructures. (article 60, paragraph 2). The Tribunal notes that, under the Convention, a coastal State is entitled to apply customs laws and regulations in itsterritorial sea (articles 2 and 21). In the contiguous zone, a coastal State mayexercise the control necessary to: (a) prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea; (b) punish infringement of the above laws and regulations committed within its territory of territorial sea. However, in the exclusive economic zone,the coastal State has jurisdiction to apply customs laws and regulations in respect of artificial islands, installations and structures (article 60, paragraph2). The Convention does not empower a coastal State to apply its customs laws inrespect of any other parts of the exclusive economic zone not mentioned above.Exception State of Necessity (ART 58 - OTHER RULES OF INTERNATIONAL LAW phrase). 2CONDITIONS FOR STATE OF NECESSITY TO APPLY NOT MET. As set out in article 33, paragraph 1, of the International Law Commission's Draft Articles on State Responsibility, are: (a) the act was the only means of safeguarding an essential interest of the State against a grave and imminent peril; and (b) the act did not seriously impair an essential interest of the State towards which the obligation existed.

Regarding the delimitation of the territorial sea between States with opposite or adjacent coasts, neither of them is entitled to extend its territorial sea beyond the median line every point of which is equidistant from the nearest pointson the baselines of each of them, unless they agree to do so, or if historic title or other special circumstances make it necessary to delimit the territorial seas in other ways. The delimitation of the EEZ and continental shelf between States with opposite or adjacent coasts must be done by agreement on the basis of international law (ex. equitable principles which have a normative character as part of general international law). Pending this they may make provisional arrangements of a practical nature, and they must not jeopardize or hamper the reaching of a final agreement. If no agreement can be reached within a reasonable period of time, the parties shall resort to peaceful means of dispute settlement.




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In the North Sea Continental Shelf Cases it was held that the equidistance method did not represent general international law. Since then, certain equitable principles have been recognized as guidelines for delimitation: 1. Delimitation shall be effected by agreement on the basis of international law. 2. The principleof non-encroachment by one party on the natural prolongation of the other. 3. Prevention any cut off of the sea ward projection of the states concerned. 4. Delimitation is to be effected by applying equitable criteria and by using practicalmethods capable of ensuring, with regard to the geographical configuration of the area and other relevant circumstances, an equitable result. 5. There is a presumption that the equitable solution is an equal division of the overlapping areas of the continental shelves of the disputing states. The application of equitable principles makes reference to relevant circumstances, such as: 1. General configuration of the coasts of the parties 2. Where there is a geographical situation of quasi-equality between a number of states, it is necessary to abate effects of an incidental special feature which might result in unjustified, differenttreatment. ( to avoid the effects of a concave coast, the location of islands o

f one state near the other, and the eccentric alignment of small islands lying off a peninsula). 3. The geological structure of the sea-bed and its geomorphology (or surface features) 4. The disparity of coastal lengths in the relevant area. 5. The general geographical framework or context. 6. The conduct of the parties, such as the de facto line produced by the pattern of grants of petroleum concessions in the disputed area. 7. The incidence of natural resources (oil and natural gas) in the disputed area. 8. The principle of equitable access to the natural resources of the disputed area. 9. Defense and security interests of the disputing states. 10. Their navigational interests. 11. Consistency with the general direction of the land boundary. In the Libya v. Malta and Gulf of Maine cases,the delimitation was done in two steps. First, a provisional delimitation linewas provided. Next, the provisional solution was examined, taking account of special circumstances. If necessary, the initial results were corrected. In the Gul

f of Maine case, the ICJ stated that there are no rules, in general customary international law, specifically prescribing the application of any particular equitable criteria or the use of particular practical methods in delimitation. Instead customary international law merely contains a general requirement of the useof equitable criteria and practical methods capable of implementing them. It isspecial international law that must be looked into, to see whether that law includes some rule specifically requiring the Parties, and the ICJ/arbitral tribunal, to apply certain criteria or specific practical methods to the delimitation (ex. 1958 Geneva Convention on the Continental Shelf). Art. 6 of the Continental Shelf Convention provides for a single technique for continental shelf delimitation (a median for maritime areas between opposite coasts, and a lateral equidistance line for coasts of adjacent States). This method is inspired by and derivesfrom this equitable criterion: that the equitable solution, at least prima facie

, is an equal division of the areas of overlap of the continental shelves of thetwo States. However the applicability of

this method is subject to the condition that there are no special circumstancesin the case which would make that criterion inequitable (i.e. unreasonable division). This articles states: 1. Where the same continental shelf is adjacent to the territories of two or more States whose coasts are opposite each other, the boundary of the continental shelf appertaining to such States shall be determinedby agreement between them. In the absence of agreement, and unless another boundary line is justified by special circumstances, the boundary is the median line







e called for by differences in the circumstances that may be relevant in the different phases of the operation and with reference to different segments of the line. Thus the Court decided this independently of the proposals. Adjacent v. Opposite. Art. 6 contemplate 2 distinct hypothetical situations, but this doesn t mean that the basic criterion (equal division) behind these provisions are different, or that the method doesn t use the same technique. The distinction is only dueto the different geographical situations referred to (lateral equidistance linefor adjacent coasts, median line for opposite coasts). In appreciating the appropriateness of the equidistance method as a means of achieving an equitable solution, regard must be had to the difference between a 'lateral' boundary between adjacent States and a 'median' boundary between 'opposite' States." The coasts oftwo States may be adjacent at certain places and opposite at others (as in thiscase). On this latter hypothesis, difficulties might arise of a practical nature in particular since every effort should be made to prevent the partial relationship of adjacency from ultimately predominating over the partial relationship of oppositeness, or vice-versa. It might become apparent that adjustments were necessary for this purpose, or even recourse to a different method. Applicable equitable criteria in this case: geography + auxiliary criteria. Remember that thisinvolves a delimitation of 2 distinct elements by means of a single line. Thisprecludes the use of any criteria which are inappropriate for the delimitation of either element. The Court will apply criteria derived from geography, mainly the geography of coasts, which has (primarily) a physical aspect and (secondarily) a political aspect. Some corrections must be made to certain effects of its application that might be unreasonable, so that the concurrent use of auxiliary cr

iteria may appear indispensable, such as length of coastlines, the equitablenessof correcting the result when a coastline is cut off, and the presence of geographical features (islands, groups of small islands). Applicable practical methods. The practical methods can only be methods appropriate for use against a background of geography. Moreover, the methods used must be just as suitable for thedelimitation of the sea-bed and its subsoil as for the delimitation of the superjacent waters and their fishery resources. Thus, only geometrical methods will serve. Given the configuration of the Gulf of Maine coastline, the delimitation line isn t a unidirectional line. Take note that at the northeastern sector the coasts are laterally adjacent, while at the closing sector the coasts are opposite.Thus in the first sector, the boundary is a lateral delimitation line. In the second, the line is a median line. 4. The Delimitation a. First Segment. The practical method to be applied must be a geometrical one based on respect for the ge

ographical situation of the coasts between which the delimitation is to be effected, and at the same time suitable for producing a result satisfying the criterion for the division of disputed areas. Thus the equidistance method isn t used, but the method of drawing perpendiculars. Accordingly, one may justifiably draw from point A two lines respectively perpendicular to the two basic coastal lines.These perpendiculars form, at point A, on one side an acute angle of about 82' and on the other a reflex angle of about 278'. It is the bisector of this secondangle which should be adopted for the course of the first segment. b. Second Segment.




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Stage one. This involves the determination of the median line. Remember, the choice of method is essentially dependent on geography. In this case (given the rectangular shape of the area and the quasi-parallelism between the lines used in the delimitation, and the fact that the coasts are opposite), the application ofany method of geometrical origin can in practice only result in the drawing of amedian delimitation line. Such a line can only be one approximately parallel tothe approximately parallel lines of the two opposite coasts. Stage two. The back of the Gulf is entirely occupied by the continuous coast of Maine, a componentstate of the US, and the terminal point of the international boundary with Canada is situated much farther to the northeast in the Grand Manan Channel, at a corner of the rectangle which geometrically represents the shape of the Gulf proper. Thus it is impossible to disregard the difference in length between the respective coastlines of the two States which border on the delimitation area. A correction is thus needed. The total length of the US coastline in the Gulf is approximately 284 nautical miles. The overall length of the Canadian coastline is approximately 206 nautical miles. The ratio between the coastal fronts of the Parti

es on the Gulf of Maine as is thus 1.38 to 1. This ratio should be reflected inthe location of the second segment of the delimitation line. The appropriate method should be to apply the ratio selected to a line drawn across the Gulf wherethe coasts of Nova Scotia and Massachusetts are nearest to each other. It wouldthen be proper to shift the median line drawn in such a way as to reflect this ratio along the line Cape Cod-Chebogue Point. The presence of some islands and isles must also be considered, i.e. Seal Island. It is some two and-a-half miles long. However it would be excessive to treat the coastline of Nova Scotia as transferred southwestwards by the whole of the distance between Seal Island and thatcoast, and it is appropriate to give the island half effect, so that the ratioto be applied for determining the location of the corrected median line will beapproximately 1.32 to 1 in place of 1.38 to 1. Since it is only a question of adjusting the proportion by reference to which the corrected median line is to be

located, the island s effect is a small transverse displacement of that line, notan angular displacement, with limited practical impact. The central segment of the delimitation line will correspond, over its entire length, with the correctedmedian line as so established. It will begin where this line intersects, withinthe Gulf, the bisector drawn from point A and constituting the first segment, and end on reaching the closing line of the Gulf. c. Third Segment. This is the longest portion. This is the segment which lies outside and over against the Gulfof Maine. In principle, the determination of the path of this segment must depend on that of the two previous segments. The portion of the line now to be determined will inevitably be situated in the open ocean. From the geographical pointof view, there is no point of reference, outside the actual shores of the Gulfthat can serve as a basis for carrying out the final operation required. It is obvious that the only kind of practical method which can be considered for this p

urpose is a geometrical method - the drawing of a perpendicular to the closing line of the Gulf. In conclusion, taking point A as a fixed point and assigning letter B to the meeting-point between the first two segments as above defined, letter C to the meeting-point between the second and third segments on the closingline of the Gulf, and letter D to the point where the first segment reaches, toseaward, the last place on its path where the claims of the two Parties overlap,the delimitation line fixed between the maritime jurisdictions of Canada and the US will be the line successively connecting points A, B, C and D.

5. Verification of the equitable character of the result. This is necessary only



for the third segment, which is the real subject of the dispute due to the potential resources of the subsoil and the fisheries. Some enquiry whether, in addition to the factors provided by the geography of the Gulf itself, there are no others that should be taken into account, is an understandable step. It might wellappear that other circumstances ought properly to be considered in assessing the equitable character of the result produced by this portion of the delimitationline. These other circumstances may be summed up by the data provided by humanand economic geography, and are thus ineligible for consideration as criteria tobe applied in the delimitation process itself, may be relevant in assessing theequitable character of a delimitation first established on the basis of criteria borrowed from physical and political geography (ex. Historical presence in thearea, activities pursued like fishing and conservation of resources, & socioeconomic aspects) . In this case, the Court concluded that there are absolutely noconditions of an exceptional kind which might justify any correction of the delimitation line that was drawn. The delimitation was effected in compliance with the governing principles and rules of law, applying equitable criteria and appropriate methods accordingly, thus producing an equitable overall result. i. THE HIGH SEAS

These are all parts of the sea that are not included in the territorial sea or in the internal waters of a State. The high seas are subject to 6 freedoms: 1. freedom of navigation 2. freedom of overflight 3. freedom of fishing 4. freedom tolay submarine cables and pipelines 5. freedom to construct artificial islands and structures 6. freedom of scientific research. Freedom of overflight belongs t

o both civilian and military aircraft. Freedom of fishing also includes the dutyto cooperate in taking measures to ensure the conservation and management of the living resources of the high seas. Every State, whether coastal or land-locked, has the right to sail ships flying its flag on the high seas. The flag state has exclusive jurisdiction over its ships on the high seas to the extent not limited by agreement. By legal fiction, a ship is a floating part of the flag state.A warship which encounters on the high seas a foreign ship can board the latteronly if there is a reasonable ground for suspecting that: 1. the ship is engaged in piracy 2. the ship is engaged in slave trade 3. the ship is engaged in unauthorized broadcasting and the flag state of the warship has jurisdiction 4. theship is without nationality 5. though flying a foreign flag or refusing to showits flag, the ship is really of the same nationality as the warship. Piracy refers to the following acts: 1. any illegal acts of violence or detention, or any a

ct of depredation, committed for private ends by the crew or the passengers of aprivate ship or a private aircraft, and directed: on the high seas, against another ship or aircraft, or against persons or property on board such ship or aircraft; or against a ship, aircraft, persons or property in a place outside the jurisdiction of any State; 2. any act of voluntary participation in the operationof a known pirate ship or aircraft; 3. any act of inciting or of intentionally facilitating any of the above acts.




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Take note that the contiguous zone is part of the high seas. Hot pursuit is allowed where there is good reason to believe that the ship has violated laws or regulations of a coastal state. This must commence when the foreign vessel is within the internal waters, the archipelagic waters, the territorial waters, or the contiguous zone of the pursuing state. It may continue to the high seas if the pursuit has not been interrupted. It is not necessary that, at the time when the foreign ship within the territorial sea or contiguous zone receives the order tostop, the ship giving the order should likewise be within the territorial sea orcontiguous zone. If the foreign ship is in the contiguous zone, it may be pursued only for violations of the rights of the coastal state in the contiguous zone. Mutatis mutandis, the right of hot pursuit shall also apply to violations of applicable laws and regulations of the coastal state in the EEZ or the continental shelf including the safety zones of the shelf. Hot pursuit must stop as soon as the ship pursued enters the territorial waters of its own state or of a thirdstate. Hot pursuit may be carried out only by warships or military aircraft, orany other ship or aircraft properly marked for that purpose. Hot pursuit is not

deemed to have begun unless the pursuing ship has satisfied itself by such practicable means as may be available that the ship pursued is within the limits of the territorial sea or, as the case may be, within the contiguous zone, EEZ, or above the continental shelf. The pursuit may only be commenced after a visual orauditory signal to stop has been given at a distance which enables it to be seenor heard by the foreign ship. In the event of a collision or any other incidentof navigation concerning a ship on the high seas, involving the penal or disciplinary responsibility of the master or of any other person in the service of theship, no penal or disciplinary proceedings may be instituted against such person except before the judicial or administrative authorities either of the flag State or of the State of which such person is a national. In disciplinary matters,the State which has issued a master's certificate or a certificate of competence or license shall alone be competent, after due legal process, to pronounce the

withdrawal of such certificates, even if the holder is not a national of the State which issued them. No arrest or detention of the ship, even as a measure ofinvestigation, shall be ordered by any authorities other than those of the flagState. j. CONSERVATION AND MANAGEMENT OF LIVING RESOURCES OF THE HIGH SEAS

Highly Migratory Species must be protected! Under art 64, read together with arts 116 to 119, of the Convention, States Parties to the Convention have the dutyto cooperate directly or through appropriate international organizations with aview to ensuring conservation and promoting the objective of optimum utilizationof highly migratory species. SOUTHERN BLUE FIN TUNA, A HIGHLY MIGRATORY SPECIESOF FISH! The list of highly migratory species contained in Annex I to the Convention includes southern bluefin tuna: thunnus maccoyii; Provisional Remedies granted catch limit set (Japan made a clear commitment that the 1999 experimental f

ishing programme will end by 31 August anyway). PROVISIONAL MEASURES AIMS TO PRESERVE RIGHTS AND HARM TO ENVIRONMENT. In accordance with art 290 of the Convention, the Tribunal may prescribe provisional measures to preserve the respective rights of the parties to the dispute or to prevent serious harm to the marine environment. MEASURES SHOULD BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE DETERIORATION. Although the Tribunal cannot conclusively assess the scientific evidence presented by the parties, it finds that measures should be taken as a matter of urgency to preserve the rights of the parties and to avert further deterioration ofthe southern blue fin tuna stock. k. RIGHT OF LAND-LOCKED STATES TO AND FROM THE SEA



A land-locked state is one which has no sea-coast. These states have the right of access to and from the sea and the freedom of transit through the territory ofa transit state (a state, with or without a seacoast, situation between a land-locked state and the sea, through whose territory traffic in transit passes). Traffic in transit shall not be subject to any customs duties, taxes, or other charges, except those levied for specific services rendered in connection with suchtraffic. l. INTERNATIONAL SEABED AREA

All states have the right for their nationals to engage in fishing on the high seas, subject to their treaty obligations, the rights and duties of coastal states, and the UNCLOS provisions. In line with this, all states have the duty to take, or to cooperate with other states in taking, such measures for their respective nationals as may be necessary for the conservation of the living resources ofthe high seas (e.g. determining the allowable catch).

These are areas of the seabed and the ocean floor, and their subsoil, which liebeyond any national jurisdiction. These are the common heritage of mankind and may not be appropriated by any state or person. All rights in the resources of the Area are vested in mankind as a whole, on whose behalf the Authority (the International Sea-Bed Authority) shall act. These resources are not subject to alienation. The minerals recovered from the Area, however, may only be alienated in accordance with the relevant provisions of UNCLOS. The Enterprise is the organ ofthe Authority which shall carry out activities in the Area directly as well as

the transporting, processing, and marketing of minerals recovered from the Area,and shall have its principal place of business at the seat of the Authority. m.MARINE POLLUTION Marine pollution prevention and control arising from land-based sources, sea-bed-activities subject to national jurisdiction, activities in the Area, vessels and others are covered quite extensively under UNCLOS. States are bound to prevent and control marine pollution from any source and are liable for damage caused by violation of their international obligations to combat suchpollution. * Sir: marine pollution cases are different from quasi-delicts, for the latter requires proof of negligence in order to recover damages. Under the TOVALOP and CRISTOL, there is no need to prove fault for there is an immediate duty to pay for the clean-up. However, shipping and oil companies are required to pay only up to a certain amount (based on an oil fund). This arose as a responseto the Exxon incident. Take note that the US doesn t recognize a ceiling. Also, in

cases of gross

Southern Bluefin Tuna Case (1999)Australia and New Zealand alleged that Japan had failed to comply with its obligation to cooperate in the conservation of the southern blue fin tuna (SBT) stockby undertaking unilateral experimental fishing for southern bluefin tuna in breach of its obligations under Arts 64 and 116 to 119 of UNCLOS in relation to theconservation and management of the SBT. They are also asking for provisional remedies in the form of an order commanding Japan to desist from such unilateral experimental fishing.




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negligence, the companies will lose the benefit of limited liability and will become liable for the amount needed for the clean-up. n. NAVIGATION

Every State has the right to sail ships flying its flag on the high seas. It isthe State s right to decide the conditions by which it will accord the right to fly its flag. No ship may change its flag during its voyage except in case of transfer of ownership or on the basis of change of registry. If a ship sails under the flag of 2 states, it is considered as having no nationality and may not claimany of the nationalities represented by these flags with respect to any other State. Only the flag state may exercise criminal jurisdiction over the master orany person in the service of the ship. This is a departure from the SS Lotus case. Also the flag state shall have the duty to require the ship s master, without danger to the crew or passengers, to render assistance to any person at sea in danger of being lost, or to rescue persons in distress. o. SETTLEMENT OF DISPUTES

Peaceful settlement of disputes is compulsory. If a bilateral settlement fails,

UNCLOS requires submission of the dispute for compulsory settlement in one of the tribunals clothed with jurisdiction. The alternatives are the International Tribunal for the Law of the Sea, the ICJ, or an arbitral tribunal constituted under the Convention. p. PEACEFUL USE OF THE OCEANS

In exercising their rights and performing their duties under UNCLOS, states shall refrain from any threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with theprinciples of international law embodied in the UN Charter. q. ARCHAEOLOGICAL AND HISTORICAL OBJECTS

States have the duty to protect objects of an archaeological and historical nature found at sea.



UP Law B2009 Reviewer (Karichi Edition) Definition INTERNAL WATERS Waters on the landward side of the baseline of the territorial sea. Includes waters of lakes, rivers, ports, and bays

TERRITORIAL SEAS An a djacent belt of s ea, which does not exc eed 12 nautical miles from the bas elines . Under the UNCLOS, roa dstea ds are part of the territorial sea.

ARCHIPELAGO A grp. of islands, including parts of islands, interconnecting waters & other na tural features which are so clos ely interrelated that suc h form an intrinsic geographical, economic & political entity, or which historically have been regarded as such Archipelagic state s sovereignty extends to the archipelagic waters, the airspace above thes e waters, the seabed, subs oil, and the res ourc es. This s overeignty is exercised subject to the right of arc hipelagic s ea lanes passage.

CON TIGUOUS ZONE A zone c ontiguous to the territorial sea that may not extend bey ond 24 nautical miles from the baselines

Sovereignty, Jurisidction

Coastal state has absolute civil & criminal jurisdiction

Coastal state has sovereignty (over airspace, s eabed, subs oil) , limited by th

e right of innocent passage Flag state exercises civil, criminal jurisdiction with EXCEPTIONS 1. Criminal cons equenc es extend to coastal state, disturbs the peac e, good order, request for assista nce, drug traffic 2. Civil those incurredby s hip its elf, connected with the voyage

Coastal state does not exercise s overeignty but protective jurisdiction. Coastal state has jurisdiction only over customs, fiscal, immigration, or sa nitary laws & regulations

Page 45 of 130 EEZ CON TINENTAL SHELF An area bey ond a nd Seabed and subsoil ofadjacent to the submarine areas that territorial sea, which extend bey ond theextends 200 nautical territorial sea throughout miles from the the natural prolongation of baseline its land territory to the outer edge of the continental marg

in, or to a distanc e of 200 miles from the bas elines whichever is greater. Thes e are limited. Coastal state has c ertain Sovereign rights only sovereign rights over the for the purpos e of continental shelf, though it exploring, doesn t form part of its exploiting, territory. Thes e sovereign cons erving, a nd rightsdon t affect the legal managing the status of superjac ent natural res ourc es, waters and airspac e over living or nonliving, in the waters. the waters, seabed,and subsoil. Jurisdiction is limited, with regard to artificial islands and installations, marine scientific research, and protection, preservation of marine environment

HIGH SEAS All parts of the s ea that are not included in the exclusive economiczone, in the territorial sea or in the internal waters of a State, or in the archipelagic waters of a n archi pelagic State. Not under jurisdiction, sovereignty

of a ny state Ships under the flag of 1 state s hall be subject to the exclusive jurisdiction of suc h state. For c ollisions, no penal proceedings may be instated exc ept before the judicial or administrative authorities of either the flag state or of the state of which persons in the service of the s hip is a national FOR ALL STATES: Freedoms of the high s eas - navigation - overflight - lay submarine cables, pipelines - construct artificial islands, installations - fishing - scientific res earch To visit warshi ps Hot pursuit Immunity of

Rights of the Coastal State



To a dopt laws, regulations relating to innoc ent passage When nec essary with regard to navigational safety, require foreign ships to us e s ea lanes, trafficseparation schemes Rights of protection (includes right to temporarily sus pendinnoc ent passage if essential for protecti on of its sec urity)

To s uspend the right of passage with regard to specified areas if ess ential for the protecti on of the state s security a nd without discrimination among foreign s hips To designate sea lanes & air routes Prescribe traffic separation schemes for safe passage of s hips via narrow channels in s uch lanes Substitute others ea lanes,

Coastal states must make a claim to its contiguous zone for their pertinent rights to exist (this zone is only optional, the others are ma ndatory). The c ontiguous zone if claimed will be superimposed on the EEZ. If there is no claim, thearea will be part of the high seas . Exercise nec essary control to prevent violations with regard to customs, fiscal, sa nitary,

To explore, exploit, cons erve, & manage natural res ourc es, living or nonliving, in the waters, seabed, or subsoil. To c onstruct, operate, & use artificial islands & installations To lay submarine cables & pipelines Freedoms of navigation &

Sovereign rights to explore, exploit natural resources (mineral & other nonliving resourc es of the s eabed & subs oil, & living organisms at the harvestable st

age, either immobile on or under the s eabed or are unable to move except in consta nt physical contact with the seabed or subs oil) To c onstruct, operate & use artificial islands & installations To lay submarine cables &




traffic separation schemes immigration Punish infringement of the laws related to the 4 areas overflight

Page 46 of 130 pipelines Exclusive right to authorize & regulate drilling on theshelf To exploit the s ubs oil via tunneling Not to infringe/interfere with rights & freedoms of other Sta tes, e.g. navigation Not to impede the laying, maintenance of cables, pipelines In laying cables/ pipelines, to have due regard to thos e alrea dy in position

Establish safety zones around artificial islands, installations

warships, s hips owned or operated by a state & used only on gov t noncommercials ervice

Duties of Coastal States

Not to hamper the innoc ent passage of foreign s hips To give appropriate publicity to any da nger to navigation, of whic h it has knowledge, within its territorial sea

Respect rights of third states under existing agreements Recog nize traditionalfishing rights, other legitimate activities of adjacent neighboring states Respect existing submarine cables laid by other states & passing through its waters without making a windfall Allow the maintena nce and replacement of suc h cablesRight of innoc ent passage Right of archipelagic sea lanes passage

Conserve & ma nage the res ources Promote optimum utilization

FOR ALL STATES: To fix c onditions for grant of nati onality to s hips (right tofly its flag) Exercise jurisdiction & control in administrative, technical, s ocial matters over s hips flying its flag To render assistance To prevent, punishthe trans port of slaves To repress piracy To s uppress illicit traffic in narcotic drugs, psychotropic substa nces To s uppress unauthorized broadcasting Puni

sh the breaking of s ubmarine cables To c ooperate in cons ervation, managementof living resources

Rights of Third States

NO right of innocent passage EXCEPT when the establishment of a straight baseline enclos es as internal waters thos e whic h had not previously been consideredas suc h

Right of innoc ent passage No charge may be levied on foreign vessels by reasononly of their passage Submarines, underwater vehicles must navigate on the s urface & s how their flag Comply with coastal state s rules, regulations relating toinnoc ent passage When required, foreign ships must use designated sea lanes, tr

affic separation schemes Foreign nuclear-powered ships, those carrying nuclear,inherently dangerous/noxi ous substa nces, during innoc ent passage, must carrydoc uments &

Right to innoc ent passage Right to transit passage

To lay submarine cables & pipelines Freedoms of navigation & overflight

To lay submarine cables and pipelines To repair existing cables, pipelines



Duties of Third States

Ships and aircraft in archipelagic sea lanes passage s hall not deviate more than 25 miles to either side of the lanes during passage Respect applicable s ea lanes a nd traffic s eparation schemes

To abide by the rules and regulations set by the coastal state

Due regard to the rights & duties of the coastal state Comply with the laws, regulations of the coastal state Foreign ships must respect the safety zones established by the coastal State

In laying cables/ pipelines, to have due regard to thos e alrea dy in position IF BEYOND 200-MI. ZONE: The duty to make a nnual payments or contributions in kind after the first 5 years of production exc ept in case of a developing state, which is a net importer of mineral resourc es from its continental shelf




obs erve special precauti onary measures

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3. JURISDICTION AND IMMUNITIES9Bernas, An Introduction to International Law (for easier reading; Higgins & Brownlie articles are in the digest) > Jurisdiction authority to affect legal interests. Kinds: 1. jurisdiction to prescribe norms of conduct (legislative jurisdiction) 2. jurisdiction to enforce the norms prescribed (executive jurisdiction) 3.jurisdiction to adjudicate (juridical jurisdiction) 5 traditional bases of jurisdiction over extraterritorial crimes under international law: 1. Territorial, wherein jurisdiction is based on whether jurisdiction is based on the place wherethe offense is committed (Lotus case); 2. Protective, wherein jurisdiction is based on the nationality of the offender (Nottebohm case); 3. Protective, whereinjurisdiction is based on whether the national interest is injured; 4. Universal, wherein jurisdiction is conferred in any forum that obtains physical custody of the perpetuator of certain offenses considered particularly heinous and harmful to humanity (Eichmann v. Atty-General of Israel); 5. Passive Personal, whereinjurisdiction is based on the nationality of the victim. Effective nationality link doctrine (Nationality Principle) determines which of two states of which a p

erson is a national will be recognized as having the right to give diplomatic protection to holder of dual nationality (Nottebohm). Sir Roque says: Jurisdiction1. Territorial jurisdiction 2. Universal jurisdiction regardless of where, whatnationality of victim or offender. Ex. Act so offensive, crimes v. int l order, piracy, war crimes, crimes & crimes against humanity, torture, genocide 3. Alternative bases for exercise of jurisdiction: nationality offender (RP Civil Code)

be implied from its conduct or from that of its authorized officers. Ratification can be given tacitly as well as expressly. Tacit ratification takes place whena State begins the execution of a treaty without expressly ratifying it. The ratification of or concurrence of the RP to the agreement for the extension of thePhilippine Property Act of 1946 is clearly implied from the acts of the President of the RP and of the Secretary of Foreign Affairs, as well as by the enactmen

t of RAs 7, 8, and 477. US laws have no extraterritorial effect. The applicationof said law in the RP is based concurrently on said act (Philippine Property Act of 1946) and on the tacit consent thereto and the conduct of the RP Governmentitself in receiving the benefits of its provisions.

People v. Lol-Lo And SarawSir Roque says: Even without domestic executing lawso why not for enforced disappearances? Extra-judicial killings? Against Osama, who has 2 Filipina wivesif he hides here, can we use People v. Lollo? YES! The lack of domestic law does not make the act any more legal. RPC extraterritorial clauses now, restating cases. Appeal against conviction for piracy. Universal jurisdiction over piracy. CFI hasjurisdiction over the crime of piracy, which is robbery or forcible depredationon the high seas, without lawful authority and done animo ferendi, and in the sp

irit and intention of universal hostility. Pirates are in law hostes humani generis. Piracy is a crime not against any particular state but against all mankind.It may be punished in the competent tribunal of any country where the offendermay be found or into which he may be carried. The jurisdiction of piracy unlikeall other crimes has no territorial limits. As it is against all so may it be punished by all. Nor does it matter that the crime was committed within the jurisdictional 3-mile limit of a foreign state, "for those limits, though neutral to war, are not neutral to crimes."

Tubb & Tedrow v. Griess



Petition against US prosecution for misappropriation. Limit on sovereignty. Since such part of the US Army is stationed in the RP with permission of our government, & petitioners, who belong to the military personnel of that army, are charged with violations of Articles of War for offenses committed in areas under thecontrol of the US Army, a settled principle of international law gives said armyjurisdiction over their person and the offenses charged. IL rule: a foreign army allowed to march through a friendly country or to be stationed in it, by permission of its government or sovereign, is exempt from the civil & criminal jurisdiction of the place; the agreement for the stationing of the US Army or a part of its forces in the RP implies a waiver of all jurisdiction over their troops during the time covered by such agreement, & permits the allied general or commander-in-chief to retain that exclusive control & discipline which the government of his army may require.

CASES ON JURISDICTION

Brownell v. SunlifeAction to compel payment on an endowment policy payable to a Japanese, under theTrading with the Enemy Act. Exclusive jurisdiction. The jurisdiction of the nation within its territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to theextent of the restriction, and an investment of that sovereignty to the same extent in that power in which would impose such restriction. All exceptions to the

full and complete power of a nation within its own territories, must be tracedup to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. The consent of a Senate tothe operation of a foreign law within its territory does not need to be express; it is enough that said consent9

Haw Pia v. The China Banking CorporationSir Roque says: Acts of a belligerent military occupant is valid if it is not political. Confiscation is not allowed, only sequestration which is a valid measure ofprevention.

Thanks to Tin and Cathe for this part.





(after Court found that Marcos was not immune, acts of torture are not acts of state, acts of torture violate customary int l law)? No sovereign immunity againstcharges of torture. US Alien Tort Statute provides a forum for claims by aliensfor torture that has occurred elsewhere. It requires a claim by an alien, a tortand a violation of international law. The prohibition against official torturecarries with it the force of jus cogens norm which enjoys the highest status ininternational law. All states believe that torture is wrong, all that engage intorture deny it, and no state claims a sovereign right to torture its own citizens. Under international law, any state that engages in official torture violatesjus cogens. Note that RP filed a brief stating that its foreign relations withthe US would not be adversely affected if claims against Marcos were litigated in the US.

Wylie v. RarangDoctrines: - Act in official capacity because of the nature of the publication (attached to the organization) or because of function/capacity in which you acted. - Nature of immunity: jurisdiction not application if sovereign act. - No immunity because the act constituting quasi-delict (is this consistent with doctrine?) Coverage is not applicable to negligent or bad faith act. Libel case againstUS army personnel in charge of the publication. No functional immunity WITH REGARD TO tortuous acts. While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed againstofficials of the state for acts allegedly performed by them in the discharge oftheir duties. The rule is that if the judgment against such officials will requi

re the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. Public officials can be held personally accountable for acts claimed to have been performed in connection with official duties where they haveacted ultra vires or where there is showing of bad faith.

JUSMAG Philippines v. NLRCPetition assailing Labor Arbiter s jurisdiction over termination of an employee ofan agency of the US. Sovereign immunity: contract in discharge of governmentalfunction. A suit against such as agency is a suit against the US Government, albeit it was not impleaded in the complaint. Considering that the US has not waived or consented to the suit, the complaint against JUSMAG cannot not prosper. Imm

unity of State from suit is a universally recognized principle. In internationallaw, "immunity" is commonly understood as an exemption of the state and its organs from the judicial jurisdiction of another state. This is anchored on




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Immunity from suit. The doctrine cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other officialof the Republic. An act or omission that is ultra vires cannot be part of official duty, but is a tortious act.

contractual liability that that political entity may assume under the contract.

Liang (Huefeng) v. PeopleSir Roque says: Calling someone a bitch is not related to a sovereign function. The certificate (Liang was entitled to immunity) required in WHO v. Aquino was disregarded. Bitch oral defamation case against an ADB economist. DFA certification disregarded. SC disregarded the office of protocol from the DFA stating that Liangis covered by immunity from legal process under Section 45 of the Agreement between the ADB and th RP regarding the Headquarters of the ADB in the RP. The MR focused on the diplomatic immunity of officials and staff of ADB from legal and juridical processes in the Philippines and the constitutional and political basis

of that immunity. It should be made clear that nowhere in the assailed Decisionis diplomatic immunity denied, even remotely.

US v. RuizAction to compel US to award of harbor works contract. State immunity not lost when state enters into sovereign contracts. The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. Because the activities of states have multiplied,it has been necessary to distinguish them between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis).The result is that State immunity now extends only to acts jure imperii. But, the restrictive application of State immunity is proper only when the proceedings

arise out of commercial transactions of the foreign sovereign, its commercial activities or economic affairs. A State may be said to have descended to the levelof an individual and can thus be deemed to have tacitly given its consent to besued only when it enters into business contracts. It does not apply where the contract relates to the exercise of its sovereign functions. In this case the projects are an integral part of the naval base which is devoted to the defense ofboth the US and the RP, indisputably a function of the government of the highestorder; they are not utilized for nor dedicated to commercial or business purposes. The correct test for the application of state immunity is not the conclusionof a contract by a state but the legal nature of the act.

Minucher v. CASir Roque says: - MFR ruling is wrong, No basis to give immunity to a DEA agent.

DEA agent definitely not a diplomatic agent (under the Vienna convention). [twice asked in last 5 Bar exams] - In RP, our diplomats have multiple designations.Third Secretaries are also Vice Consuls, accredited (determines diplomat status). - There shouldn t be immunity, no legal basis for immunity, no bases agreement,VFA is problematiclimits exercise of sovereignty over offenses by visiting forces in RP (offenses in unofficial acts, under US authority who certifies that it is service-related), specialized regime as to custody with respect to unofficialacts, US can request custody pending litigation but after trial until decision,RP gets custody upon request. Iranian Labor Attache claims damages after he was framed of heroin trafficking by a US drug enforcement agent. No functional immunit



y WITH REGARD TO personal acts.Whether such claim arises from criminal acts or from tort, there can be no question that private respondent was sued in his personal capacity for acts committed outside his official functions duties. CA gravely abused its discretion in dismissing the civil case on the basis of an erroneous assumption that simply-because of the [self-serving] Diplomatic Note, the private respondent is clothed with diplomatic immunity, thereby divesting the trialcourt of jurisdiction over his person. It may at once be stated that even if theCalzo enjoys diplomatic immunity, a dismissal of the case cannot be ordered onthe ground of lack of jurisdiction over his person, but rather for lack of a cause of action because even if he committed the imputed act and could have been otherwise made liable therefor, his immunity would bar any suit against him in connection therewith and would prevent recovery of damages arising therefrom. In Shauf v. CA: Authorities state that the doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his privateand personal capacity as an ordinary citizen. The cloak of protection affordedthe officers and agents of the government is removed the moment they are sued intheir individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in

WHO v. AquinoSir Roque says: Case is authority for: WHO is not subject to local jurisdiction.There is a procedure to invoke immunity from suit before local courts: submission to court of a certificate from the DFA characterizing the organization, to which local courts should defer. Smuggling case involving a WHO official. Invoking

functional immunity: certification from DFA. RA 75, meant to safeguard the jurisdictional immunity of diplomatic officials in the Philippines, declares as nulland void writs or processes sued out or prosecuted whereby inter alia the person of an ambassador or public minister is arrested or imprisoned or his goods orchattels are seized or attached and makes it a penal offense for "every person by whom the same is obtained or prosecuted, whether as party or as attorney, andevery officer concerned in executing it" to obtain or enforce such writ or process. Judge Aquino should have quashed the search warrant application. Court boundby DFA certification as to official capacity.

Lyons, Inc. v. USACollection case under a stevedoring contract at the US Naval Base. State immunity lost when state enters into proprietary contract. Case dismissed for failure t

o exhaust administrative remedies but SC said, generally, the sovereign cannot be sued in its own courts, or in any other, without its consent and permission. However, considering that the US Government, through its agency at Subic Bay, entered into a contract with appellant for stevedoring & miscellaneous labor services within the Subic Bay area, a US Navy Reservation, it is evident that it can bring an action before our courts for any








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these words include a head of state. A single act of official torture is "torture"; 2) Superior orders provide no defence; 3) If the states with the most obvious jurisdiction (the Art. 5(1) states) do not seek to extradite, the state wherethe alleged torturer is found must prosecute or, apparently, extradite to another country (universal jurisdiction). 4) There is no express provision dealing with state immunity of heads of state, ambassadors or other officials. 5) Since Chile, Spain and the UK are all parties to the Convention, they are bound under treaty by its provisions WON such provisions would apply in the absence of treaty obligation. Chile ratified the Convention with effect from Oct. 30, 1988 and theUK with effect from Dec. 8, 1988. RATIONE PERSONAE RATIONE MATERIAE of the Ambassador Under the Vienna Convention10

Immunity of Head of state: - State immunity probably grew from the historical immunity of the person of the monarch. Such personal immunity of the head of statepersists to the present day: the head of state is entitled to the same immunity

as the state itself. Immunity of Ambassadors The Vienna Convention on Diplomatic Relations, 196111 covers the immunity of the Ambassador. It provides that: y the Ambassador shall enjoy his immunity and privileges from the moment he takes up post. y After his post is over, he shall still enjoy these privileges and immunity until he leaves the country or on expiry of a reasonable period in which todo so, but shall subsist until that time, even in case of armed conflict. He shall continue to enjoy immunity with respect to acts performed in the exercise ofhis functions (Art. 39(2); limited immunity; ratione materiae). -Basic Principle Of IL that one - immunities & privileges the sovereign state (the forum Ambassador enjoyed ceases the state) does not adjudicate on moment he leaves the country the conduct of a foreign state. after his post. But, to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts dur

ing his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador's time. - foreign state is entitled to -This continuing partial immunity procedural immunity from the is different from that enjoyed processes of the forum state. ratione personae while he wasimmunity by reason of the subject-matter; attaches to the official acts of everyacting or former State organ 11 Art. 29- immunity from arrest Art. 31- immunityfrom criminal and civil jurisdiction Art. 39 (1)- the ambassador's privileges shall be enjoyed from the moment he takes up post (2) ³When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts performed by su

ch a person in the exercise of his functions as a member of the mission, immunity shall continue to subsist."10

-Under Art. 39(2), the ambassador, like any other official of the state, enjoysimmunity in relation to his official acts done while he was an official. This limited immunity is to be contrasted with the former immunity ratione personae which gave complete immunity to all activities, public or private. There is no established rule of IL that requires state immunity ratione materiae to be accordedin respect of prosecution for an international crime.



- immunity extends to both criminal & civil liability. - head of state is entitled to the same immunity as the state itself. - diplomatic representative of theforeign state in the forum state is also afforded the same immunity in recognition of the dignity of the state which he represents. -Immunity is ratione personae, attaching to the person of the head of state or ambassador and is a completeimmunity, rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state.

still in post. -Since he no longer represents his state, he merits no particularprivileges or immunities as a person.

Ker v. IllinoisKer was kidnapped from Peru & brought to Cook County, US to face larceny & embezzlement charges. Irregularity in manner of getting custody does not affect jurisdiction. Due process of law is complied with when the party is regularly indictedby the proper grand jury in the state court, has a trial according to the formsand modes prescribed for such trials, and when in that trial and proceedings heisn t deprived of rights to which he is lawfully entitled. For mere irregularitiesin manner in which he was brought into the custody of the law, he isn t entitledto say that he shouldn t be tried for the crime with which he is charged in a regular indictment. This treaty (of extradition), or any other treaty, doesn t providethat a party fleeing from the US to escape punishment for crime becomes therebyentitled to an asylum in the country to which he has fled. It isn t contended tha

t Peru couldn t have ordered Ker out of the country on his arrival, or at any period of his residence there. Nor can it be doubted that Peru could, of its own accord, without any demand from the US, have surrendered Ker to an agent of Illinois, and this surrender would ve been valid within the dominions of Peru. The rightof the Peruvian government to voluntarily give a party, in Ker s condition, an asylum in that country is quite a different thing from his right to demand and insist upon security in such an asylum. The treaty, so far as it regulates the rightof asylum, is intended to limit this right in the case of one who is proved tobe a criminal fleeing from justice; so that, on proper demand and proceedings had therein, the government of the country of the asylum shall deliver him up to the country where the crime was committed. And to this extent, the treaty does regulate or impose a restriction upon the right of the government of the country of the asylum to protect the criminal from removal. In this case, the treaty wasn t

called into operation or relied upon. Sir Roque says: Origin of the Ma-and-Pa doctrine. Bernas: Immunity from Jurisdiction General rule: the jurisdiction of a state within its territory is complete and absolute.





waiver of sovereign immunity under the FTCA excludes intentional torts such as false arrest, this exclusion is followed by an important proviso: It does not apply if the intentional tort is committed by an investigative or law enforcement officer. The DEA agents who orchestrated Alvarez's arrest are law enforcement officers as defined by the FTCA because they are empowered by law to execute searches,to seize evidence, or to make arrests for violations of Federal law. Because theprimary tortious act was the initiation and planning of Alvarez's abduction bythe DEA agents, his claim falls squarely within this law enforcement proviso, and thus the intentional tort exclusion does not apply.

Sosa v. Machain (Supreme Court) Alvarez-Machain v. Sosa (District Court)Sir Roque says: - Valid extradition under international law treaty and offense must satisfy rule of double criminality (both at time of happening or commissionand at the time of request, the offense must be defined in both territories). [2007 Bar] - You are not required to extradite (for torture, etc.) from a countrynotorious for violation of torture, etc. (including the death penalty) - Political crimes are defined in Extradition Treaty as being nonextraditable; person accused for such may apply for refugee status, be an asylum seeker. Alvarez sues US& paid kidnapper after he was acquitted on charges for which he was brought tothe US. Kidnapping not an actionable norm under ACTA. On the Alien Tort Claims Act: US does not recognize a prohibition against transborder kidnapping, nor canit be said that there is international acceptance of such a norm. At the time ofAlvarez's abduction, the US-Mexico Extradition Treaty did not extend to transborder abduction and Claimant seeks damages for illegal arrest & wrongful detentio

n. ACTA only jurisdictional, no cause of action given. FTCA s foreign country exception bars all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. The Alien Torts Statute is ajurisdictional statute creating no new causes of action. The reasonable inference from history & practice is that the ATS was intended to have practical effectthe moment it became law, on the understanding that the common law would provide a cause of action for the modest number of IL violations thought to carry personal liability at the time: offenses against ambassadors, violation of safe conducts, & piracy. In deriving a standard for assessing Alvarez's claim, it suffices to look to the historical antecedents, which persuade this Court that federalcourts should not recognize claims under federal common law for violations of any IL norm with less definite content & acceptance among civilized nations than the 18th-century paradigms familiar when the ATS was enacted. ( [F]or purposes of c

ivil liability, the torturer has becomelike the pirate & slave trader before him hostis humani generis, an enemy of all mankind ) In re Estate of Marcos Human Rights Litigation, Actionable violations of IL must be of a norm that is specific, universal, & obligatory. A single illegal




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detention of less than a day, followed by the transfer of custody to lawful authorities & a prompt arraignment, violates no norm of customary IL so well definedas to support the creation of a federal remedy. Sir Roque says: SC: Show injuryfrom an official act; Requirement: no break in the causation of events (commission must be in the US territory). On Sosa: ACTA is available for victims of international crimes; if served by summons in US. ACTA does not applyjurisdiction-giving only; no cause of action provided in the law; kidnapping is not included inthe list of actionable crimes. ACTA: for Hilao v. Marcosdamages for political murders, enforced disappearances. ACTA: amended by Bush; now, available only for torture (before, included violation of law of nationswar crimes, crimes against humanity, slavery, torture) Is kidnapping an international crime?

Appellant is a "fugitive from justice" from the point of view of the law of nations, since the crimes that were attributed to him are of an international character and have been condemned publicly by the civilised world; therefore, by virtue of the principle of universal jurisdiction, every country has the right to try

him. This jurisdiction was automatically vested in the State of Israel on its establishment in 1948 as a sovereign State. Therefore, in bringing the appellantto trial, it functioned as an organ of international law and acted to enforce the provisions thereof through its own law. Consequently, it is immaterial that the crimes in question were committed when the State of Israel did not exist, andoutside its territory The moment it is admitted that the State of Israel possesses criminal jurisdiction both according to local law and according to the law ofnations, it must also be conceded that the Court is not bound to investigate the manner and legality of the [arrest and] detention...

John Doe v. UNOCALBurmese citizens sue for enslavement under the ATCA, alleging that private security guards forced them to dislocate and then make dams. Successful ACTA claim. F

or purposes of establishing standing to seek injunctive relief to halt Americancorporation's involvement in gas pipeline project in Myanmar because of allegedcontinuing violations of human rights, Burmese citizens living in refugee campsin Thailand demonstrated existence of credible threat that they would be subjected to human rights violations allegedly committed in furtherance of pipeline project by showing that they are in danger of being forcibly repatriated to Myanmar, either as result of Burmese attacks on refugee camps or Thai refoulement actions. If plaintiff establishes standing to seek damages, court need not undertakeseparate standing inquiry for equitable relief. Issuance of injunction to halt American corporation's involvement in gas pipeline project in Myanmar because ofBurmese government's alleged continuing violations of human rights was not likely to halt alleged human rights violations, where bulk of corporation's initial capital investment had already been made, and operation of pipeline was within di

scretion of parties who were not parties to lawsuit. Sir Roque says: Pipeline inMyanmar; indigenous people forced to leave and then work. Claim in Federal Court under ACTA. UNOCAL was invested in as a separate company (joint venture). Myanmar: controlling shares in local subsidiary. Issue: Why principal company was held liable? Even if they only had minority shares and the management was with theruling junta. There is a relation of acts of junta and personality of the mother company (passive investor). Court: Enforced slavery prohibition, even by non-state actors. Federal Court said: No control over Myanmar. Special Circuit Court:Reversed, held UNOCAL liable.



Eichmann v. Attorney-General of IsraelAppeal of conviction for crimes against humanity during the Holocaust. Universaljurisdiction over crimes against humanity; manner of arrest does not affect jurisdiction. On jurisdiction: The principle of territorial sovereignty merely requires that the State exercise its power to punish within its own borders, not outside them; that subject to this restriction every State may exercise a wide discretion as to the application of its laws and the jurisdiction of its courts in respect of acts committed outside the State; and that only in so far as it is possible to point to a specific rule prohibiting the exercise of this discretion .. . is a State prevented from exercising it. That view was based on the following two grounds: (1) It is precisely the conception of State sovereignty which demands the preclusion of any presumption that there is a restriction on its independence; & (2) Even if it is true that the principle of the territorial characterof criminal law is firmly established in various States, it is no less true that in almost all of such States criminal jurisdiction has been extended . . . soas to embrace offences committed outside its territory. . . However, it is the universal character of the crimes in question which vests in every State the power to try those who participated in the preparation of such crimes, and to punishthem therefor. It follows that the State which prosecutes and punishes a personfor that offence acts solely as the organ and agent of the international community, and metes out punishment to the offender for his breach of the prohibitionimposed by the law of nations. . . . On manner of arrest (kidnapping from Argentina): (a) In the absence of an extradition agreement between the State to whicha "fugitive offender" has been brought for trial and the country of "asylum" . .

. and even if there existed such an agreement . . . but the offender was not extradited . . . in accordance therewith, the Court will not investigate the circumstances in which he was detained and brought to the area of jurisdiction (Sir:the Ma-and-Pa doctrine, originally from Ker v. Illinois). (b) This also applies ifthe offender's contention be that the abduction was carried out by the agents of the State prosecuting him, since in such a case the right violated is not thatof the offender, but the sovereign right of the State aggrieved. (c) the aggrieved State may condone the violation of its sovereignty and waive its claims, including the claim for the return of the offender to its territory, and such waiver may be explicit or by acquiescence.

Congo v. BelgiumInternational arrest warrant against Congo Foreign Minister protested as violati

on of customary IL with respect to diplomat s absolute immunity; Minister has since left the government. Functional immunity violated, state responsibility. Diplomatic and consular agents, certain high-ranking officials in a state, such as the Head of State, Head of Government, and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other states, both civil and criminal. Immunities accorded to ministers of foreign affairs in customary IL are accorded to ensure the effective performance of their functions on behalf of their states and not for their personal benefit. After the ICJ considered the nature of the functions




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exercised by a minister of foreign affairs, it concluded that his functions aresuch that, throughout the duration of his office, he when abroad, enjoys full immunity from criminal jurisdiction and inviolability. This immunity and inviolability protect the individual concerned from any act of authority of another statewhich would hinder him or her in the performance of his or her duties. There can be no distinction from acts which were performed in an official capacity and ina private capacity. ICJ is unable to conclude that there exist exceptions under customary IL in regard to national courts upon examination of the rules concerningimmunity or criminal responsibility of persons having official capacity contained in the legal instruments creating international criminal tribunals. State Practice also does not show the existence of exceptions to the ministers of foreignaffairs immunity under customary IL. The decisions of the Nuremberg and Tokyo international Military Tribunals and of the International Criminal Tribunal for the Former Yugoslavia do not deal with the question of immunities incumbent ministers of foreign affairs before national courts where they are accused of war crimes or crimes against humanity. Belgium violated the immunities of the then Minis

ter of Foreign Affairs of the Congo. The mere issue and the circulation of the a/w, WON it significantly interfered with Yerodia s diplomatic activity, constituted a violation of an obligation of Belgium towards Congo, in that it failed to respect the immunity of that Minister and, more particularly, infringed the immunity from criminal jurisdiction and the inviolability enjoyed by him under IL.

demand extradition and the correlative duty to surrender a fugitive exist only when created by treaty, which may cover specific crimes only or all offenses considered criminal by both states. Most treaties exclude religious and political offenses, although the latter have never been precisely defined. But a state may surrender a fugitive if surrendering him is not contrary to the state s constitution. > Principles on Extradition: 1. No state is obliged to extradite unless thereis a treaty 2. Differences in legal system can be an obstacle to interpretation

of what the crime is 3. Religious and political offenses are not extraditable.> procedure is normally through diplomatic channels (how extradition rules ca bebypassed: US v. Alvarez-Machain; how due process requirements work in an extraditin case: Secretary of Justice v. Lantion; USA v. Purganan & Crespo).

4. INTERNATIONAL RESPONSIBILITYILC Draft Articles on State Responsibility Art. 2: Internationally wrongful actof a State when conduct consists of an action or omission: a. attributable to the State under IL; & b. constitutes a breach of an int l obligation of the State. Attribution of Conduct: * Organ of state (Arts. 4, 6, 7); * Individual or group (Arts. 5, 8, 9, 10, 11). Art. 12: breach - act of the State is not in conformitywith what is required by the obligation. Art. 16: State aiding or assisting another State in committing an internationally wrongful act (IWA). Art. 17: State di

rects & controls another State in committing an IWA. Art. 18: State coerces another State in committing an IWA. Defenses against attribution: wrongfulness of the act precluded if done: Art. 21: in lawful measure of self-defense under the UNCharter. Art. 22: as a countermeasure under these Draft Articles. Art. 23: dueto force majeure. Art. 24: done to save a life in distress, no other reasonablemeans. Art. 25: in necessity. Art. 26: no preclusion if wrongfulness is ICOW anobligation arising under a preemptory norm of general IL. Art. 29: legal consequences of IWA do not affect continued duty to perform the obligation breached. Art. 30: obligations in case of IWA: a. cease the act, if continuing; b. offer assurances of non-repetition. Art. 31; responsible State obliged to make reparation



for injury caused. Injury includes any damage, whether material or moral, caused by the State s IWA. Art. 32: internal law can t justify failure to comply with obligations Art. 35: responsible State obliged to make restitution (re-establish situation before IWA) to the extent that restitution is not materially impossible& burden is not out of proportion to benefit of restitution rather than compensation. Art. 36: responsible State obliged to compensate for damage caused, if norestitution possible, covering any financially assessable damage including lossof profit established. Art. 37: responsible State obliged to give satisfaction if no restitution or compensation possible, consisting of acknowledgment of breach, expression of regret, formal apology, not out of proportion to injury, not ina way so as to humiliate the responsible State.

USA v. Purganan & CrespoJimenez contests arrest warrant issued against him ICOW an extradition request by the US. Extradition; treaty. The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes & the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law; & whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accusedor the fugitive who has illegally escaped back to its territory, so that the criminal process may proceed therein. By entering into an extradition treaty, RP is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in t

he pending criminal case therein. Extradition proceedings are not equivalent toa criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court s request to police authorities for the arrest of the accused who is at large or has escaped detentionor jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity. Potential extraditees do not have the right to a hearing for the issuance of a warrant of arrest nor the right to bail granted by the RTC.Bernas: > Extradition the surrender of an individual by the state within whoseterritory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted a crime. It is a process that is governedby treaty. The legal right to




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Art. 40: rules apply WITH REGARD TO serious breach under an obligation arising under a preemptory norm of general IL. Art. 42: injured State invoking another s responsibility, if breach is owed to: a. the State individually b. group of State,including injured one, or int l community as a whole& the breach: i. specially affects the State ii. so radically changes the position of other states WITH REGARD TO further performance of the obligation Art. 48: non-injured State invoking responsibility obligation breached is owed to group of states, including that State, & is established for protection of collective interest, & obligation owed toint l community as a whole. Claim under first part: for cessation & promise of non-repetition, & reparation, for the injured State or of beneficiaries. Art. 49:injured State taking countermeasures against responsible state to induce compliance with obligation; limited to nonperformance at time of taking the countermeasures, in such a way as to allow resumption of performance. Art. 50: countermeasures do not affect: obligation to refrain from threat or use of force, fundamental human rights protection, humanitarian obligations prohibiting reprisals & obligations under preemptory norms of general IL. Taking countermeasures won t excuse

from dispute settlement procedure & respecting inviolability of diplomatic/consular agents, premises, archives, documents. Art. 51: commensurate countermeasures: gravity of IWA, rights affected. Art. 52: before countermeasures, demand fulfillment of obligation & notify responsible State of decision to take countermeasures & offer to negotiate. If necessary to protect rights, take countermeasures,but not if (or suspend, if already taken) IWA has ceased & dispute is pending inappropriate tribunal/court (restraint or suspension not required if responsibleState fails to implement settlement procedures in good faith). Art. 53: terminate countermeasures upon compliance with obligation. Sir Roque says: What if a RPArmy private shot a US Army personnel while drunk? Could a foot soldier bring about state responsibility assuming attack against the state? The act will engageSR because he is an agent of the state so he acts as part of an organ of the state (army). Is it being an ultra vires act a defense? No. 2007 Bar: Mayor s EO ban

ning contraceptives in private clinics so poor people lost access to family planning technology. Is this constitutional? No. Privacy (number of kids)expanded dueprocess rights. Is this a violation of int l law? Could Mayor engage SR in behalfof the state? Yes (even ultra vires acts). > When do you incur SR? Requisites (Art. 2): a. breach of int l obligation b. attributable to state (attribution) > Source of the principle of SR: ILC Draft Articles on State Responsibility. How binding? See North Sea Continental Shelf cases: ILC Articles (Continental Shelf Convention)mandate of ILC is to codify int l law; composed of experts (subsidiary source of IL) nominated by states but acts independently & representative of all legal regimes of the world; reflects or is evidence of customary law > Evidence ofCustomary Norms ILC codified the norms: 1. State practice: representative of decisions held by courts all over 2. opinion juris: not under any compulsion to codify norms under IL but only norms they feel are law.

> Does the Draft Articles say when there is SR? Sir: no, it only says when thereis breach of a treaty or a norm. To determine SR, look at substantive law. After 80 years of drafting, there is no conclusion on SR because there is no Convention adopting it. The only way to finish the project was to leave the identification of SR to substantive law. Int l Tribunal: between State and person in its territory. Now, beyond the nationality principle, no distinction as to nationality.> Minimum standard for treatment of people in your territory: not fixed; based on circumstances. Duty: due diligence in protection of aliens and their propertyin your territory. Gives rise to breach of obligation WITH REGARD TO treatment o



f aliens and their property. Draft Articles: 1. Prove both elements: breach + attribution 2. new obligation arises: responsibility to cease and desist, assurance of non-repetition & reparation (restoration to status quo ante or compensationif no restoration possible; extinguish all consequencesChorzow Factory case) . >State responsibility in a nutshell: 1. Art. 2-if there s a breach, new obligations arise -this article is the contentious article: what constitutes breach 2. Art.30-to cease & desist; to guarantee non-repetition 3. Art. 31-reparation to status quo ante > Who can engage state responsibility: 1. State organs - Art. 4: always (least problematic); Organs under IL includes all branches & instrumentalitiesof the gov t as defined under constitutional or internal law. 2. private individuals- (most problematic) Art. 5- empowered Art. 8- acting upon instruction or control (Nicaragua v. US) Art. 9- de facto Art.10- successful insurrectional movement Art.11- acts ratified by the State itself > Illustrations: Pinoys employed assecurity guards in US Bases in Iraq. The contras in Nicaragua (US funded but Court said that low level support is insufficient to engage SR). Are they acting asagents? In Burma, UNOCAL used security guards against indigenous peoples to drive them away from their ancestral domains and then to force them to build dams,US provided funds; claim was WITH REGARD TO slavery; had a compromise agreementbut preliminary ruling was that US was liable for agency; defense: for security.In RP, private security guards used in cell sites against NPAs, if they engagein firefights, under IHL, are the security guards combatants (for the state) innon-int l armed conflict? Bernas: > Standard for the protection of aliens: Doctrine of national interest or equality of treatment aliens are treated in the same manner as nationals of the state where they reside. Good: same benefits. Bad: it the

state is tyrannical and its municipal laws are harsh and violative of human rights even of its own citizens, then aliens would also be subject to such harsh laws. Minimum international standard however harsh the municipal laws might be against a state s own citizens, aliens should be protected by certain minimum standardsof humane protection. Widely accepted standard but abstract. > Corporations andshareholders: Barcelona Traction case: Belgium lacked jus standi to exercise diplomatic protection of shareholders in a Canadian company with respect to measures taken against that company in Spain. When a state admits into its territory foreign investments or foreign nationals it is bound to extend to them the protection of the law and to assume obligations concerning the treatment afforded them.But




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such obligations are not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so. Whenever a shareholder s interests are harmed by an act done to the company, it is to the latter that he has to look to institute appropriate action.

Corfu Channel CaseUK claims against Albania s mines planted in the Corfu Channel; Albania claims that its sovereignty was violated when UK later swept the Strait for more mines. Failure to protect aliens in territory. The laying of the minefield could not havebeen accomplished without the knowledge of Albania (location, length of coast as to strait, guard posts as strategic places). It was her duty to notify shipping and especially to warn the ships proceeding through the Strait on Oct. 22 of the danger to which they were exposed. Nothing was attempted by Albania to prevent the disaster, & these grave omissions involve her international responsibility. Albania would have been justified in view of these exceptional circumstances,in issuing regulations in respect of the passage, but not in prohibiting such pa

ssage or in subjecting it to the requirement of special authorization. The passage was innocent both in its principle, since it was designed to affirm a right which had been unjustly denied, and in its methods of execution, which were not unreasonable in view of the firing from the Albanian battery on May 15th. The Court can only regard the alleged right of intervention as the manifestation of a policy of force which cannot find a place in international law. As regards the notion of self-help, the Court is also unable to accept it: between independent States the respect for territorial sovereignty is an essential foundation for international relations. Certainly, the Court recognises the Albanian Government s complete failure to carry out its duties after the explosions and the dilatory nature of its diplomatic Notes as extenuating circumstances for the action of the United Kingdom. But, to ensure respect for international law, of which it is the organ, the Court must declare that the action of the British Navy constituted a v

iolation of Albanian sovereignty.

be present only when it is established that the acts were carried out in response to SPECIFIC INSTRUCTIONS from a competent organ of the State. The first statements made by the Iranian government were not sufficient to make the militants the agents of the state. But as to the second statement, the showing of support and encouragement of the detention of the hostages made the militants acts that ofthe Iranian State. This gave rise to Iran s international responsibility for the acts. Sir Roque says: y Art. 11 state acknowledges and adopts the conduct 1. no evidence to link mob s attack to Iran 2. failure to protect the premises of the embassy/diplomatic mission y International law breach: gross negligence in duty ofprotecting aliens y Standard (not a definitive formula): nationality, and minimum standard of treatment y Substantive norm: Neer Claim y In the RP, the Melo Com

mission said that there was command responsibility liability only as far as Palparan went. So if GMA praises Palparan in her SONA for a job well done, is thereratification under Art. 11?

DC Decision on UNOCAL Chorzow Factory CasePoland s alleged illegal expropriation liability to German owners. Failure to protect alien s property rights. Poland has a positive duty to respect and afford protection to the property rights of aliens living in its territory. In international law, any breach of an engagement involves an obligation to make reparation (note: wipe out as much of the consequences & return to status quo ante, & restitut



ion or compensation).

Prosecutor v Tadic Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories Bosnia Case Union Bridge Company Claim (US v. Great Britan)Union Bridge claims damages arising out of the removal of the material from PortElizabeth to the Imperial Military Railways, Bloemfontein, by Harrison, the storekeeper of the Cape Gov t Railways at Port Elizabeth, an agent of the British gov t, without Union Bridge s consent, and its subsequent sale. Act of state organ. Harrison purported to act upon instructions given to him, and in doing so, he committed two mistakes in as much as it 1) was neutral property; and 2) was intendedfor a road, and not a railway bridge. The consignment of the material to Blomfontein was a wrongful interference with neutral property, and it was within Harrison s duty, as railway storekeeper, to forward material by rail, and he did so under instructions which fix liability on the British government. This liability isNOT AFFECTED by the fact that this was done under a mistake, or that the Britishhad no intention to appropriate the material. Applicable ILC Draft article: Art. 4

Rainbow Warrior (New Zealand v. France)French agents destroyed a Greenpeace, Int l vessel, the Rainbow Warrior, while inharbour in New Zealand. New Zealand prosecuted 2 captured French agents of the Directorate General of External Security. Acts of organs of state. A communiqué from the Prime Minister of France confirmed that agents acted under its instruction

s, & promised reparation. Dispute over France s demand for release & New Zealand s claim for compensation. The UN Secretary-General's ruling required France to payUS $7 million to New Zealand and to undertake not to take certain defined measures injurious to New Zealand trade with the European Communities. The ruling alsoprovided that Major Mafart and Captain Prieur were to be released into French custody but were to spend the next 3 years on an isolated French military base inthe Pacific.

US Diplomatic Staff and Consular Staff (US v Iran)US Embassy & staff in Iran were seized by protestors, without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah. Ratification of private acts. The Court said that the initial take-over of the embassy was not attributable to the state. Attribution would




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Youmans Claim (US v. Mexico)A mob killed three US nationals and Mexican police s attempt to quell the mob, under the Mayor s instructions, led to the open firing upon the house & more killings. Act of state organ; failure to protect aliens in territory. Mexico is liable for the acts of the soldiers whether 1) outside the scope of their authority; or2) done in a private capacity. Clearly, it is not intended by the rule to say that no wrongful act of an official acting in the discharge of duties entrusted tohim can impose responsibility on a government under international law because such wrongful act must be considered to be outside the scope of his competency. Ifthis were the meaning intended by the rule, then no wrongful act committed by anofficial could ever be considered as acts for which the government could be held liable. The soldiers participation in the murder cannot be considered as acts in their private capacity when it is clear that at the time of the commission ofthese acts, the neb were on duty under the immediate supervision and in the presence of a commanding officer. Duty of the state: to exercise due diligence to protect the person and property of aliens. Applicable ILC Draft articles: Arts. 4

& 7

These are but expressions of a change of national will. The nation is responsible for the debts contracted by its titular government until the obligation is discharged. The nation is responsible for the obligations of a successful revolution from its beginning, because, it represented ab initio a changing national will, crystallizing in the finally successful resultsuccess demonstrated that from the beginning it was registering the national will. The ruling in this case has been codified in ILC Draft Art. 10.

Neer Claim (US v. Mexico)US claims damages for Mexico s failure to exercise due diligence in prosecuting the murderer of an American. Standard of treatment of aliens in territory. The pro

prietary of governmental acts should be put to the test of international standards, and that the treatment of an alien, in order to constitute an internationaldelinquency, should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of governmental action so far short of internationalstandards that every reasonable and impartial man would readily recognize its insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law OR from the fact that the laws of the country do not empower theauthorities to measure up to international standards is immaterial.

Starrett Housing Corp. v. Iran Zafiro Claim (Great Britain v. US)Claim with regard to acts of a Chinese crew of the Zafiro, a private ship commissioned by the US military, in looting houses in Cavite during the Spanish-US Warof 1898; Defense: soldiers on shore leave. Act of state organ. US is liable for

the whole damage as the Chinese crew of Zafiro are shown to have participated to a substantial extent, and the part chargeable to unknown wrongdoers cannot beidentified. But interest is not allowed because a considerable, though unascertainable part of the damage is not chargeable to the Chinese crew of the Zafiro. There was no effective control of the Chinese crew at the time when the real damage took place. The nature of the crew, the absence of civil or military controlashore, and the situation of the neutral property, were circumstances calling for diligence on the part of those in charge of the Chinese crew to see to it thatthey were under control when they went ashore in a body. Applicable ILC Draft article: Art. 4 Claimants contend that their property interests in the housing pr



oject have been unlawfully taken by the Government of Iran which has deprived them of the effective use, control and benefits of their property by means of various actions authorizing, approving and ratifying acts and conditions that prevented Starrett from completing the Project. Expropriation even without nationalization law. The Court noted that the Government of Iran did not issue any law or decree according to which the Zomorod Project or Shah Goli expressly was nationalized or expropriated. However, it is recognized in international law that measures taken by a State can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the State does not purport to have expropriated them and thelegal title to the property formally remains with the original owner. Assumptionof control over property by a government does NOT automatically and immediatelyjustify a conclusion that the property has been taken by the government, thus requiring compensation under international law. In this case it cannot be disregarded that Starrett has been requested to resume the Project. It has been provedthat at least by the end of January 1980 the Government of Iran had interfered with the claimants' property rights in the project to an extent that rendered these rights so useless that they must be deemed to have been taken. Claimants relyon precedents in international law in which cases measures of expropriation ortaking, primarily aimed at physical property, have been deemed to comprise alsorights of a contractual nature closely related to the physical property. In thiscase it appears from the very nature of the measures taken by the Government ofIran in January 1980 that these measures were aimed at the taking of Shah Goli.The property interest taken by the Government of Iran must be deemed to compris

e the physical property as well as the right to manage the Project and to complete the construction in accordance with the Basic Project Agreement

Bolivar Railway Company Claim (Great Britain v. Venezuela)Claims were brought by Bolivar arising out of the revolution in Venezuela that brought Castro to power and against Castro himself, after his assumption to power. Successful insurrectionists. Claims in respect of contractual obligations incurred by both the old and new governments were allowed, but claims incurred by anunsuccessful revolution against Castro were not allowed. If the personal responsibility of Castro were the question for decision, it might be possible to holdhim responsible for the claims incurred by the 2nd revolution as growing out ofthe revolution he had led. However, such is not the ground on which successful revolutions are charged, through the government, with responsibility. Responsibil

ity comes because it is the same nation. Nations do not die when there is a change of government.





llegal - crime of aggression) [Art. 64, VCLOT] c. Fraud in inducement [Art. 49,VCLOT] d. Coercion [on representative, Art. 51; by threat or use of force, Art.52, VCLOT] e. Error of Fact [Art. 48, VCLOT] f. Supervening impossibility of performance [Art.61, VCLOT] Exception to consensuality of states: peremptory norm of general IL or jus cogens customary norm that is nonderogable = all countries,WON they were injured, can sue 13 Art. 62 - rebus sic stantibus has never been formally invoked! Barcelona Traction Case: erga omnes obligation remedial principle, allows all states to have standing. On the other hand, jus cogens substantive/normative principle If treaty requires ratification? Overt act required to be manifested: deposit instrument of ratification with the body specified as depositary or to the UN Secretary General if none

y y

. VIENNA CONVENTION ON THE LAW OF TREATIESy

y y

y y

y

Treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or intwo or more related instruments and whatever its particular designation (Art. 2,Vienna Convention the Law of Treaties [VCLOT]). International Organizations (IOs) cannot enter into treaties. Only states can enter into treaties Convention which allowed IOs to enter into treaties never took effect states are still unwilling to vest IOs with the power to enter into treaties. Do not confuse IOs with the persons authorized to enter into treaties. Immunity of international organizations: International Organizations an organization that is set up by treaty among two or other states. Thus, only states are members of IOs (Advisory Opinion onthe Use of Nuclear Weapons). IOs have international personality (Reparations case: international personality of the UN). In the case of other

y

y y

y

12

Latin for "pacts must be respected." This means that every treaty in force is binding upon the parties to it and must be performed by them in good faith. 13 Latin for ³things thus standing.´ This is a doctrine in international treaty law that stands for the proposition that a treaty may become inapplicable owing to a funda

mental change of circumstances.




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y

is specified (Vienna Convention: in Bern, Swiss Minister of Foreign Affairs) Effect of non-deposit with UN Secretary General? Can t be enforced in any UN agency,including the ICJ. Some Principles in the VCLOT:

would be subject under international law independently of the treaty. ART. 45 Loss of a right to invoke a ground for invalidating, terminating, withdrawing fromor suspending the operation of a treaty: A State may no longer invoke a groundfor invalidating, terminating, withdrawing from or suspending the operation of atreaty under ARTs. 46 to 50 or ARTs. 60 and 62 if, after becoming aware of thefacts: (a) it shall have expressly agreed that the treaty is valid or remains inforce or continues in operation, as the case may be; or (b) it must by reason of its conduct be considered as having acquiesced in the validity of the treaty or in its maintenance in force or in operation, as the case may be. ART. 53 Treaties conflicting with a peremptory norm of general international law (jus cogens)

: 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 noderogation is permitted and which can be modified only by a subsequent norm ofgeneral international law having the same character.

ART. 11. Means of expressing consent to be bound by a treaty: The consent of a State to be bound by a treaty may be expressed by: - signature, - exchange of instruments constituting a treaty, - ratification, - acceptance, - approval or accession, or - by any other means if so agreed. ART. 18 Obligation not to defeat the object and purpose of a treaty prior to its entry into force: A State is obliged to refrain from acts which would defeat the object and purpose of a treaty wh

en: (a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have madeits intention clear not to become a party to the treaty; or (b) it has expressedits consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed. ART. 26 Pactasunt servanda: Every treaty in force is binding upon the parties to it and mustbe performed by them in good faith. ART. 27 Internal law and observance of treaties: A party may not invoke the provisions of its internal law as justificationfor its failure to perform a treaty. This rule is without prejudice to Art. 46.ART. 31 General rule of interpretation: 1. A treaty shall be interpreted in goodfaith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition

to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty; (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties asan instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) any subsequent agreement between the parties regardingthe interpretation of the treaty or the application of its provisions; (b) anysubsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) any relevant rules of international law applicable in the relations between the parties. 4. A special mean



ing shall be given to a term if it is established that the parties so intended.ART. 43 Obligations imposed by international law independently of a treaty: Theinvalidity, termination or denunciation of a treaty, the withdrawal of a party from it, or the suspension of its operation, as a result of the application of the present Convention or of the provisions of the treaty, shall not in any way impair the duty of any State to fulfill any obligation embodied in the treaty to which it

DEFINITION OF TREATY

Abaya v. EbdanePetition challenging the award of a road project to a Japanese firm. y Loan Agreement + Exchange of Notes = Executive Agreement. The procurement process for theimplementation of the CPI project is governed by EO 40 and its IRR, not RA 9184. EO 40 expressly recognizes as an exception to its scope and application thosegovernment commitments with respect to bidding and award of contracts financed partly or wholly with funds from international financing institutions as well asfrom bilateral and other similar foreign sources. y Loan Agreement No. PH-P204 taken in conjunction with the Exchange of Notes dated Dec. 27, 1999 between the Japanese Government and the RP Government is an executive agreement. The Exchangeof Notes expressed that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans wereaimed at promoting our country s economic stabilization and development efforts.y An exchange of notes is a record of a routine agreement that has many similariti

es with the private law contract. The agreement consists of the exchange of twodocuments, each of the parties being in the possession of the one signed by therepresentative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of theletters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedyprocedure, or, sometimes, to avoid the process of legislative approval. y It isstated that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law." Both the 1969 ViennaConvention and the 1986 Vienna Convention do not distinguish between the different designations of these




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y

instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are noless common in our scheme of government than are the more formal instruments: treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols". The point where ordinary correspondence between this and other governmentsends and agreements, whether denominated executive agreements or exchange of notes or otherwise, begin, may sometimes be difficult of ready ascertainment.

Sir Roque says: Test in international law: whether the act is sovereign or proprietary in character

DBM v. Kolonwel Trading; Vibal v. Kolonwel; DepEd v. Kolonwel (Abaya II)

Petition contesting award of World Bank-ADB book project for the DepEd to Vibal,et al. in spite of earlier finding of conflict of interest. SC said that RTC lacked jurisdiction due to the failure to comply with the protest mechanism: 1) the protest must be in writing, in the form of a verified position paper; 2) the protest must be submitted to the head of the procuring entity; and 3) the paymentof a non-refundable protest fee. The protest mechanism is a built-in administrative remedy embodied in the law itself. It was not prescribed by an administrative agency tasked with implementing a statute through the medium of interpretative circulars or bulletins. There is no reason why the policy behind Section 55.1on the procedure for protest cannot be applied to foreign-funded procurement projects & RA 9184 doesn t show that Congress intended such a variance in the protestprocedure. The question as to WON foreign loan agreements with international financial institutions (Loan No. 7118-PH) partake of an executive or international

agreement within the purview of the Sec. 4 has been answered in the affirmativein Abaya, which declared that the RPJBIC loan agreement was to be of governingapplication over the project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary to implement the main project. Under the fundamental international law principle of pacta sunt servanda, embodied in Sec. 4 of R.A. No. 9184, the Philippines, as borrower, bound itself to perform in good faith its duties and obligation under Loan No. 7118- PH. Thus, the IABAC was legally obliged to comply with, or accord primacy to, the WB Guidelines on the conduct and implementation of thebidding/procurement process in question. Sir Roque says: Regarding the protest requirements under Sec 55:this is not true! There was already an award Hence, noneed to protest. RA 9184 not only prohibits but also penalizes conflict of interest Why? Cos it defeats the purpose of competitive bidding!

Binding Treaty. The holding of Balikatan 02-1 must be studied in the framework ofthe treaty antecedents to which the Philippines bound itself. The first of theseis the Mutual Defense Treaty (MDT). It is this treaty to which the VFA advertsand the obligations thereunder which it seeks to reaffirm. It is the VFA which gives continued relevance to the MDT despite the passage of years. But since theterminology used in the VFA is ambiguous, we refer to the Vienna Convention on the Law of Treaties, which contains provisos governing interpretations of international agreements (Article 31 & 32): the cardinal rule of interpretation must involve an examination of the text, which is presumed to verbalize the parties' in



tentions. The Convention likewise dictates what may be used as aids to deduce the meaning of terms, which it refers to as the context of the treaty, as well asother elements may be taken into account alongside the aforesaid context. On activities, SC has the view that it was deliberately made that way to give both parties a certain leeway in negotiation. In this manner, visiting US forces may sojourn in Philippine territory for purposes other than military. As conceived, the joint exercises may include training on new techniques of patrol and surveillanceto protect the nation's marine resources, sea search-and-rescue operations to assist vessels in distress, disaster relief operations, civic action projects such as the building of school houses, medical and humanitarian missions, and the like. But they cannot engage in combat. Both the Mutual Defense Treaty and the Visiting Forces Agreement, as in all other treaties and international agreements to which the Philippines is a party, must be read in the context of the 1987 Constitution. In particular, the Mutual Defense Treaty was concluded way before thepresent Charter, though it nevertheless remains in effect as a valid source of international obligation. In Philip Morris v. CA, it was stated that the fact thatinternational law has been made part of the law of the land does not by any means imply the primacy of international law over national law in the municipal sphere. Under the doctrine of incorporation as applied in most countries, rules ofinternational law are given a standing equal, not superior, to national legislation. [But SC said that: A treaty is favored over municipal law pursuant to the principle of pacta sunt servanda. Hence, "[e]very treaty in force is binding uponthe parties to it and must be performed by them in good faith. Further, a party to a treaty is not allowed to invoke the provisions of its internal law as justifi

cation for its failure to perform a treaty. SC cannot take judicial notice of theevents transpiring down south, as reported from the saturation coverage of themedia. As a rule, SC does not take cognizance of newspaper or electronic reportsper se, not because of any issue as to their truth, accuracy, or impartiality,but for the simple reason that facts must be established in accordance with therules of evidence. The determination thereof involves basically a question of fact. The present subject matter is not a fit topic for a special civil action forcertiorari. Sir Roque says: Whatever you call it, treaty, executive agreement,does not matter. It is still binding because it s all the same.

Bayan v. ZamoraConstitutionality of the VFA. Valid Treaty despite treatment as EA only by the other state. A treaty is defined under Article 2 of the Vienna Convention on the

Law of Treaties as "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments, and whatever its particular designation."

DEFINITION OF RATIFICATION

Lim v. Executive SecretaryConstitutionality of the Balikatan joint exercise by the US and RP military.




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Section 25, Article XVIII reads: "After the expiration in 1991 of the Agreementbetween the Republic of the Philippines and the United States of America concerning Military Bases, foreign military bases, troops, or facilities shall not be allowed in the Philippines except (1) under a treaty (2) duly concurred in by theSenate and, when the Congress so requires, ratified by a majority of the votescast by the people in a national referendum held for that purpose, and (3) recognized as a treaty by the other contracting State." Under this provision, is theVFA a treaty? Yes, the phrase "recognized as a treaty" means that the other contracting party accepts or acknowledges the agreement as a treaty. US need not submit the VFA to the US Senate for concurrence pursuant to its Constitution, because this is to accord too strict a meaning to the phrase. It is inconsequential whether the US treats the VFA merely as an executive agreement (EA) because, under international law, an executive agreement is as binding as a treaty. In international law, there is no difference between treaties and EAs in their binding effect upon states, as long as the negotiating functionaries have remained withintheir powers. In any case, the records reveal that the US Government, through Am

bassador Hubbard, has stated that the US government has fully committed to living up to the terms of the VFA. For as long as the US acknowledges the VFA as a treaty, and binds itself further to comply with its obligations under the treaty,there is a compliance with the mandate of the Constitution, an EA is binding. Commissioner of Customs vs. Eastern Sea Trading states that EAs are binding even without concurrence of the Senate or Congress because the right of the Executive to enter into binding agreements without the necessity of subsequent Congressional approval has been confirmed by long usage The validity of these has never been seriously questioned by our courts. Ratification is an executive act, undertaken by the head of the state or of the government, as the case may be, through whichthe formal acceptance of the treaty is proclaimed. It is equivalent to final acceptance. The consent to be bound is expressed by ratification when: [1] the treaty provides for such ratification, [2] it is otherwise established that the nego

tiating States agreed that ratification should be required [3] the representative of the State has signed the treaty subject to ratification, or [4] the intention of the State to sign the treaty subject to ratification appears from the fullpowers of its representative, or was expressed during the negotiation. The power to ratify is vested in the President and not in the legislature. The role of the Senate is limited only to giving or withholding its consent, or concurrence,to the ratification. The role of the Senate in relation to treaties is essentially legislative in character. The President acted within the confines and limitsof the powers vested in him by the Constitution. Even if he erred in submittingthe VFA to the Senate for concurrence under Section 21, instead of Section 25, still, the President may not be faulted or scarred, much less be adjudged guiltyof committing an abuse of discretion in some patent, gross, and capricious manner. Sir Roque says: y Issue: VFA-concurred in by our senate, but not by the US se

nate. y SC: VFA still binding on us/is still a binding treaty because it is notour business to dwell into the domestic law of the other

contracting party; we are satisfied with the Senator s pronouncement that the US will recognize it.

Pimentel v. Executive SecretaryMandamus petition to compel transmittal to the Senate the signed copy of the Rome Statute of the International Criminal Court (being held by the DFA) for ratification, claiming that Senate has the power to ratify and the RP has a ministeria



l duty to ratify the treaty since we signed it already. Ratification Is Executive; Can t Compel Transmittal. SC: no to both. Isagani Cruz on the treaty-making process: 1. Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representativesare provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the subsequent negotiations. 2. Signing is the step primarily intended as a means of authenticating the instrumentand for the purpose of symbolizing the good faith of the parties; but, it doesNOT indicate the final consent of the state in cases where ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. 3. Ratification, which is the nextstep, is the formal act by which a state confirms and accepts the provisions ofa treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to theirinterests 4. Exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed uponby the parties. Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is deemed effective upon its signature.The DFA signing is not equal to ratification. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds th

e state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification,acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. Byratifying a treaty signed in its behalf, a state expresses its willingness to bebound by the provisions of such treaty. Thus, the President has the discretioneven after the signing of the treaty by the Philippine representative WON to ratify the same. The Vienna Convention on the Law of Treaties does not contemplateto defeat or even restrain this power of the head of states. If that were so, the requirement of ratification of treaties would be pointless and futile. It hasbeen held that a state has no legal or even moral duty to ratify a treaty whichhas been signed by its plenipotentiaries. There is no legal obligation to ratifya treaty, but it goes without saying that the refusal must be based on substant

ial grounds and not on superficial or whimsical reasons. The power to ratify isvested in the President, subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding its consent, or concurrence,to the ratification. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly,




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such decision is within the competence of the President alone, which cannot be encroached by SC via a writ of mandamus. SC has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. Sir Roquesays: y Ratification is compliance with the process to make it binding: 1) signing of senate; 2) concurrence of senate y Senate concurrence: What triggers it?Transmittal by Executive, and it is not a ministerial act. But after signing, bound not to defeat the spirit of the treaty & comply with requirement of ratificationtransmittal to Senate. y Issue on procedure: EO 459, Sec. 7: shall (no discretion on submission for concurrence).

regarded as being a party to the Convention. If a party to the Convention objects to a reservation which it considers to be incompatible with the object and purpose of the Convention, it can in fact consider that the reserving State is nota party to the Convention; if, on the other hand, a party accept the reservationas being compatible with the object and purpose of the Convention, it can in fact consider that the reserving State is a party to the Convention. An objection

to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect indicated in the reply to Question I only upon ratification. Until that moment it merely serves as a notice to the other State ofthe eventual attitude of the signatory State; an objection to a reservation made by a State which is entitled to sign or accede but which has not yet done so is without legal effect. Sir Roque says: You can make reservations on provisionsas long as they are not incompatible with the object and purpose of the Convention Hence, no reservation on the norm

Salonga Petition (2007)Challenge to RTC order transferring Daniel Smith from the Makati City Jail to UScustody under an agreement based on the VFA. Issues: (1) WON the Mutual DefenseTreaty (MDT) applies to the VFA There is no room for application of the MDT in

the VFA as there is no external armed attack on the Philippines to speak of. (2)Whether the word visit means what it says, as applied in light of the understanding and the assurances made during the ratification by the Senate of the VFA and, more importantly, in the context of current practices of the US armed forces- It is incumbent upon this Court to inquire as to the actual length of time USmilitary personnel stay in the Philippines, especially those in Mindanao, underthe guise of a visit pursuant to the VFA - US military personnel are in the Philippines the whole year round, without any geographical and time limitations. Such presence could not, by any stretch of imagination, be considered as temporaryvisits. Grounds 1. MDT does not apply to the VFA/contrary to the clear intent ofthe VFA, US military forces do not merely visit the Philippines but stay on indefinitely see issue 1 2. GADALEJ in entering into patently unconstitutional agreements with US Ambassador and transferring custody over Smith the US Authorities

, considering that: a. VFA derogates and infringes on the exclusive power of theSC to promulgate rules of procedure (Art. VIII Sec. 5 par. 5 1987 Constitution)b. VFA violates petitioners rights to due process and equal protection on custody of Smith 3. VFA is unconstitutional as it violates Sec. 25 Art. XVIII of the Constitution. It cannot be used to justify the transfer of custody of Smith. 4. CA s GADALEJ in recognizing the agreement between US Ambassador and Sec. Romulo asbinding on the Philippines and declaring the Smith petition moot see Constitutional requirements cited in Bayan v, Zamora with regard to Art. XVIII, Section 25.5. Public respondents gravely abused their discretion when they transferred custody of Smith to US authorities without court authority.



Nicaragua v. USUS contested jurisdiction since Nicaragua allegedly had not yet ratified the instruments relating to the compulsory jurisdiction of the PCIJ. Valid declarationof intent to ratify. The Court notes that the Nicaraguan declaration was valid at the time when the question of the applicability of the new Statute, that of the ICJ, arose, since under the system of the PCIJ a declaration was valid only oncondition that it had been made by a State which had signed the Protocol of Signature of the Statute. It had not become binding under that Statute, since Nicaragua had not deposited its instrument of ratification and it was therefore not aparty to the Statute. However, it is not disputed that the 1929 declaration could have acquired binding force. All that Nicaragua need have done was to depositits instrument of ratification, and it could have done that at any time until the day on which the new Court came into existence. It follows that the declaration had a certain potential effect which could be maintained for many years. Having been made unconditionally and being valid for an unlimited period, it had retained its potential effect at the moment when Nicaragua became a party to the Statute of the new Court. The Court considers that, having regard to the source andgenerality of statements to the effect that Nicaragua was bound by its 1929 declaration, it is right to conclude that the constant acquiescence of that State inthose affirmations constitutes a valid mode of manifestation of its intent to recognize the compulsory jurisdiction of the Court. It further considers that theestoppel on which the US has relied and which would have barred Nicaragua frominstituting proceedings against it, cannot be said to apply to it. Sir Roque say

s: y Treaty-making Process: 1. Preliminaries 2. Negotiations 3. Signing 4. Ratification y If ratification is not required, signing enough; if ratification is required, signing is only for authentication of the document and there arises another obligation: duty not to do anything to defeat the purpose of the treaty prior to ratification. y State agent must have authority to negotiate: FULL POWERS,lack thereof makes it void ab initio.

Reservations to the Convention on the Prevention and Punishment of the Crime ofGenocideA State which has made and maintained a reservation which has been objected to by one or more of the parties to the Convention but not by others, can be regarded as being a party to the Convention if the reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot be




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6. VIENNA CONVENTION ON DIPLOMATIC RELATIONS; VIENNA CONVENTION ON CONSULAR RELATIONS AND OPTIONAL PROTOCOLSSir Roque says: Diplomatic Immunities: 1. Ambassadors, consuls, etc 2. Spouses and kids 3. Diplomatic staff 4. Household staff

Art. 1: which diplomatic representatives enjoy immunities; degrees. Art: 3: functions of the diplomatic mission. Art. 9: persona non grata. Art. 22, 23, 24, 27,29, 30, 31, 32, 33, 34, 36, 37, 38, 39: rights and privileges of the diplomaticmission. Art. 41: duty to respect laws of receiving state. Art. 42: prohibitionon professional or commercial practice for personal profit in the RS. > Consulsand consular immunities - Consuls attend to administrative and economic issuessuch as the issuance of visas; Vienna Convention on Consular Relations (1967). The head of a consular post is admitted to the exercise of his functions by an authorization from the RS termed an exequatur. There is no prescribed form. RS mayat any time notify the sending state (SS) that the consular officer is personanon grata or that any other member of the consular staff is not acceptable. SS s

hall either recall or terminate his functions with the consular post. Art. 5: Consular functions Art. 27, 31, 33: RS must protect the consular premises, archives and interests of the SS. Art. 34: freedom of movement Art. 35: freedom of communication Art. 36: communication and contact with nationals of the sending stateArt. 41: personal inviolability of consular officers Art. 42: notification of arrest, detention or prosecution Art. 43: immunity from jurisdiction Art. 44: liability to give evidence Art. 45: waiver of privileges and immunities

full immunities functional immunities

Diplomatic immunity applies only: 1. To the accredited state 2. While in transitto and from the accredited state & the sending state/diplomatic station does not apply when he is on vacation! Bernas: > Act of State Doctrine arose from a ser

ies of cases in the US where the issue was whether US courts could consider thevalidity of acts of a foreign state alleged to be in violation of internationallaw. > Diplomatic immunities WITH REGARD TO political relations of states; codification of the law is the Vienna Convention on Diplomatic Relations (1961). Diplomatic relations are purely by mutual consent. Before the head of mission is sent to the receiving state (RS), an agrement must first be obtained. RS is under no obligation to give reasons for refusing an agrement (Art. 4).

Vienna Conventions on Diplomatic Relations and Consular RelationsFunctionsDIPLOMATI C RELATIONS Art. 3 1.repres enting s ending Sta te (SS) in rec eivingState (RS); 2. protecting in RS the interests of the SS & its nationals, 3. negotiating with R S Government, 4. asc ertaining by all lawful mea ns c onditions &

dev ts in R S, & reporting to the Gov t of the SS; (HLR: espionage; allowed if notmade available els ewhere), 5. promoting friendly relations between the SS & theR S, & developing their economic, cultural & scientific relations . 2. Nothinghere shall be construed as preventing the performanc e of consular functions bya diplomatic mission. CONSULAR RELATIONS Art. 5 (a) protecting interests of SS,its nati onals, both individuals & bodies corporate (b) furthering dev t of c ommercial, ec onomic, c ultural & scientific relations & promoting friendly relations between SS & RS (c) asc ertaining by all lawful mea ns c onditions & dev ts inR S commercial, economic, cultural & scientific life, reporting to SS & giving info to pers ons interested; (d) issuing pass ports & travel documents to SS natio





UP Law B2009 Reviewer (Karichi Edition) Classes of Heads

Page 65 of 130 Art. 9 1. Hea ds of consular posts are divided into 4 classes: (a) c ons uls-general; (b) cons uls; (c) vic e-c ons uls; (d) cons ular agents . 2. Par. 1 of this Art. in no way restricts the right of any of the Contracting Parties to fix the designation of c ons ular officers other than the heads of consular posts.

Precedence as to Heads

Art. 14 1. Hea ds of mission are divided into 3 classes: 1. ambassadors or nuncios accredited to Hea ds of State, & other hea ds of mission of equivalent rank;2. envoys, minist ers & internunci os accredited to Hea ds of State; 3. chargesd'affaires accredited to Ministers for Foreign Affairs. 2. Except as c onc ernsprec edence & etiquette, there shall be no differentiation between heads of mission by reason of their class. Art. 16 1. Hea ds of mission s hall take precedence in their respective class es in the or der of the date a nd time of taking uptheir functions in accor danc e with Article 13. 2. Alterations in the credentials of a head of mission not involving any c hange of class s hall not affect his precedenc e. 3. This article is without prejudice to a ny practice accepted by

the RS regarding the precedenc e of the repres entative of the Holy See.

Multiple Posts

Art. 5 1. SS may, after it has given due notification to RSs conc erned, accredit a head of mission or assign any member of the diplomatic staff to more than 1State, unless there is express objecti on by any of the RSs . 2. If SS accreditsa head of mission to 1 or more other States it may establish a diplomatic mission hea ded by a c harge d'affaires ad interim in eac h State where the head of mission has not his permanent sea t. 3. A head of mission or a ny member of the diplomatic staff of the mission may act as repres enta tive of the SS to any IO.Art. 6 Two or more States may accredit the same person as head of mission to a nother State, unless objecti on is offered by the RS. Art. 19 1. If the post of h

ead of the mission is vacant, or if the hea d of the mission is unable to perform his functions, a c harge d'affaires ad interim shall act provisionally as headof the mission. The name of the c harge d'affaires ad interim s hall be notified, either by the head of the mission or, in cas e he is unable to do s o, by theMinistry for Foreign Affairs of the SS to the Ministry for Foreign Affairs of the RS or suc h other ministry as may be agreed. 2. In cas es where no member ofthe di ploma tic staff of the mission is present in the rec eiving State, a member of the administrative and tec hnical staff may, with the c ons ent of the RS,be designated by the SS to be in c harge of the current administrative affairsof the mission.

Art. 16 1. Hea ds of consular posts shall rank in eac h class accor ding to theda te of the grant of the exequatur. 2. If the head, before obtaining the exequa

tur is admitted to the exercise of his functions provisionally, his precedenc eshall be determined acc ording to the date of the provisional a dmission; this precedenc e s hall be maintained after the granting of the exequatur. 3. Order ofprecedenc e as between 2 or more hea ds who obtained the exequatur or provisional a dmission on the same date s hall be determined per the dates on which theircommissions or si milar instruments or the notifications referred to in par. 3of Art. 11 were pres ented to R S. 4. Acting heads of posts s hall rank after all hea ds &, as between themselves, ra nk acc ording to the dates they ass umed functi ons as acting hea ds per in the notifications given under par. 2 of Art. 15. 5. Honorary c ons ular offic ers who are hea ds s hall rank in each class aft



er career hea ds, in the order & per rules laid dow n in the foregoing paragraphs. 6. Hea ds s hall have prec edenc e over cons ular offic ers not having that status. Art. 18 Two or more States may, with the consent of RS, appoint the sameperson as a consular officer in that State.

Temporary head

Persona non grata

Art. 9 1. RS may at any time & without having to explain its decision, notify SSthat the head of the mission or any member of the diplomatic staff of the mission is persona

Art. 15 1. If the head of a consular post is unable to carry out his functions or the position of head of c ons ular post is va cant, an acting head of post mayact provisionally as head of the consular post. 2. The full name of the actinghea d of post s hall be notified either by the diplomatic mission of the SS or,if that State has no such mission in the RS, by the head of the c ons ular post,or, if he is unable to do s o, by any competent authority of the SS, to the Ministry for Foreign Affairs of the R S or to the authority designated by that Ministry. As a general rule, this notification s hall be given in adva nc e. RS maymake the a dmission as acting hea d of post of a person who is neither a diplomatic agent nor a consular officer of the SS in the R S c onditional on its consent. 3. The competent authorities of the RS s hall afford assistanc e and protecti

on to the acting hea d of post. While he is in charge of the post, the provisions of the pres ent Conventi on shall apply to him on the same basis as to the head of the consular post conc erned. RS shall not, however, be obliged to grant to a n acting hea d of post a ny facility, privilege or immunity which the hea dof the consular post enjoys only s ubject to conditions not fulfilled by the acting hea d of post. 4. When, in the circumsta nces referred to in paragraph 1 ofthis Article, a member of the diplomatic staff of the diplomatic mission of theSS in the R S is designated by the SS as an acting head of post, he shall, if the RS does not object thereto, c ontinue to enjoy diplomatic privileges a nd immunities. Art. 23 1. RS may at any time notify SS that a c ons ular offic er is persona non grata or tha t a ny other member of the c onsular staff is not acc eptable. SS s hall either recall the person or terminate his functions with the c ons ular post.





his household, including articles intended for his establishment. 2. The personal baggage of a diplomatic agent s hall be exempt from ins pecti on, unless thereare serious grounds for presuming that it c ontains articles not c overed by the exemptions mentioned in paragraph 1 of this Article, or articles the import orexport of which is prohibited by the law or controlled by the quarantine regulations of the R S. Such ins pection shall be conducted only in the pres ence of the diplomatic agent or of his authorized representative.

Tax exemption

Art. 34 A diplomatic agent s hall be exempt from all dues & taxes, personal or real, national, regional or municipal, except: 1. indirect taxes of a kind whic hare normally inc orporated in the price of goods or s ervices; 2. dues & taxeson private immovable property in R S territory, unless he hol ds it on behalf ofthe SS for the purposes of the mission; 3. estate, s uccession or inheritance duties levied by the R S, subject to par. 4 of Article 39; 4. dues & taxes on private inc ome having its source in the RS & capital taxes on investments ma de incommercial undertakings in the RS; 5. charges levied for s pecific services rendered; 6. registration, c ourt or rec ord fees, mortgage dues and stamp duty, WITH REGAR D TO immovable property, subject to the provisions of Article 23. Art.23 1. SS & the hea d of the mission shall be exempt from all national, regionalor municipal dues & taxes in res pect of the premises of the mission, whether owned or leased, other than suc h as represent pay ment for specific services rendered. 2. This exemption s hall not apply to suc h dues & taxes payable under RS

law by persons contracting with SS or the hea d of the mission. Art. 20 The mission a nd its hea d shall have the right to us e the flag and emblem of the sending State on the premises of the mission, including the residence of the head ofthe mission, and on his mea ns of transport.

Use of SS flag & emblem

Inviolability of premises

Art. 22 1. Premises of the mission s hall be inviolable. The agents of the RS may not enter them, except with the cons ent of the hea d of the mission. 2. RS isunder a special duty to take all appropriate steps to protect the premis es ofthe mission against a ny intrusion or damage and to prevent a ny disturba nce of

the peac e of the

Article 29 1. The SS shall have the right to the us e of its national flag & c oat-of-arms in the RS per provisions of this Article. 2. The nati onal flag of the SS may be flown & its c oat-of-arms dis played on the building occupied by thec ons ular post & at the entranc e door thereof, on the residenc e of the hea dof the c onsular post & on his mea ns of transport when us ed on official business. 3. In the exercise of this right, regard s hall be had to the laws, regulations and usages of the RS. Art. 31 1. Consular premis es s hall be invi olable to extent herein provided. 2. RS authorities shall not enter that part of the c ons ular premises which is used exclusively for the purpos e of the work of the consular post except with the consent of the head of the consular post or of hisdesignee or of the hea d of the diplomatic mission. Suc h c ons ent may be assum

ed in case of fire or other disaster requiring prompt protective action.




Page 67 of 130 3. Subject to par, 2 of this Article, R S is under a s pecial duty to take all appropriate steps to protect the c onsular premises against any intrusion or damage and to prevent a ny disturba nce of the peac e of the c onsular post or impairment of its dignity. 4. Consular premis es, furnis hings, property of the consular post & its means of tra nsport s hall be immune from any formof requisition for purpos es of national defenc e or public utility. If expropriation is nec essary for s uch purposes, all possible steps s hall be taken to avoid i mpeding performa nc e of cons ular functions, & prompt, adequate & effective c ompensation s hall be paid to the SS. Art. 25 The functi ons of a member of a c ons ular post shall c ome to an end inter alia: (a) on notification by SSto RS that his functions have c ome to an end; (b) on withdrawal of the exequatur; (c) on notification by R S to SS tha t the RS has c eased to c onsider him asa member of the c ons ular staff.

mission or i mpairment of its dignity. 3. Premises of the mission, fur nishings& other property thereon & the mea ns of transport of the mission s hall be immune from search, requisition, attachment or exec ution. Art. 30 1. Private residenc e of a diplomatic agent shall enjoy the same inviolability & protection as th

e premises of the mission. 2. His papers, c orrespondence &, except as in par. 3of Art. 31, property, s hall also enjoy inviolability. Art. 43 The functi on ofa diplomatic agent comes to a n end, inter alia: 1. on notification by SS to RS that the function of the diplomatic agent has come to a n end; 2. on notification by RS to SS that, in accorda nc e with par. 2 of Article 9, it refuses to recogniz e the diplomatic agent as a member of the mission. Art. 28 The fees and charges levied by the mission in the c ourse of its official duties shall be exempt from all dues and taxes .

End of function

Tax exemption of fees & charges Inviolability of agent/officer

Art. 29 The person of a diplomatic agent s hall be inviolable. He shall not be liable to any form of arrest or detention. The receiving Sta te shall trea t himwith due res pect a nd shall take all appropriate steps to prevent a ny atta ckon his person, freedom or dignity.

Art. 39 1. The consular post may levy in RS territory the fees & c harges provided by SS laws for c ons ular acts. 2. The sums collected in the form of the fees& c harges in par. 1 of this Article, & the rec eipts for suc h fees & charges,shall be exempt from all dues & taxes in the RS. Art. 40 RS shall treat c onsular officers with due res pect & s hall take all appropriate steps to prevent anyattack on their person, freedom or dignity. Art. 41 1. Consular officers s hallnot be liable to arrest or detention pending trial, exc ept in the cas e of a grave crime and purs uant to a decision by the competent judicial authority. 2. E

xcept in the cas e s pecified in par. 1 of this Article, consular officers s hall not be c ommitted to prison or liable to any other form of restriction on their personal freedom save in executi on of a judicial decision of final effect. 3.If criminal proc eedings are instit uted against a c onsular officer, he must appear before the c ompetent authorities. Nevertheless, the proc eedings shall bec onducted with the respect due to him by reason of his official position &, except in the cas e s pecified in par. 1 of this Article, in a manner which will hamper the exercise of c ons ular functions as little as possible. When, in the circumsta nc es in par. 1 of this Article, it has become nec essar y to detain aconsular officer, the proc eedings against him s hall be instituted with the min



i mum of delay. Art. 42 In the event of the arrest or detenti on, pending trial,of a member of the cons ular staff, or of criminal proc eedings being instituted against him, R S shall promptly notify the hea d of the c ons ular post. Should the latter be himself the object of s uch meas ure, RS shall notify SS throughthe diplomatic channel. Art. 43 1. Consular officers & consular employ ees s hall not be amenable to the jurisdiction of the judicial or administrative authorities of RS in respect of acts performed in the exercise of c ons ular functions.2. The provisions of par. 1 of this Article shall not, however, apply in res pect of a civil action either: (a) arising out of a c ontract concluded by a c onsular offic er or a c ons ular employ ee in which he did not c ontract expresslyor impliedly as an agent of the sending State; or (b) by a third party for damage arising from an accident in RS caus ed by a vehicle, vessel or aircraft.

Immunity from jurisdiction; exceptions

Art. 31 1. A diplomatic agent s hall enjoy immunity from the criminal jurisdiction of RS. H e s hall also enjoy immunity from its civil and a dministrative jurisdiction, except in the case of: 1. a real action relating to private i mmovableproperty situated in RS territory, unless he holds it on behalf of SS for purposes of the mission; 2. a n a ction relating to succ ession in whic h the di plomatic agent is involved as exec utor, administrator, heir or legatee as a privateperson & not on behalf of SS; 3. a n a ction relating to any professional or commercial activity exercised by the di ploma tic agent in RS outside his officialfunctions. 2. A diplomatic agent is not obliged to give evidenc e as a witness.

3. No measures of execution ma y be taken in respect of a diplomatic agent except in the cases under herein s ub-par.s (a), (b) & (c) of par. 1, & provided that suc h meas ures can be taken without infringing the inviolability of his person or residence.




Page 68 of 130

Waiver of immunity

Start & end of immunities & privileges

Respect for RS laws

4. Such immunity from RS jurisdiction does not exempt him from SS jurisdiction.Art. 32 1. The immunity from jurisdiction of diplomatic agents & of persons enjoying immunity under Article 37 may be waived by SS. 2. Waiver must always be express . 3. Initiation of proceedings by a diplomatic agent or by a person enjoying i mmunity from jurisdiction under Article 37 shall preclude hi m from invokingimmunity from jurisdiction in respect of a ny c ounter-claim directly c onnected with the principal claim. 4. Waiver of immunity from jurisdiction in res pectof civil or administrative proc eedings shall not be hel d to i mply waiver of immunity in respect of the exec ution of the judgment, for which a separate waiver shall be nec essary. Art. 39 1. Every person entitled to privileges & immunit

ies s hall enjoy them from the moment he enters R S territory on proceeding to take up his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or s uch other ministry asmay be agreed. 2. When the functions of a person enjoying privileges & immunities have c ome to an end, s uch privileges & immunities shall normally c ease atthe moment when he leaves the c ountry, or on expiry of a reas onable period inwhich to do s o, but s hall subsist until that time, even in cas e of armed c onflict. But, WITH R EGARD TO acts performed by such a pers on in the exercise ofhis functions as a member of the mission, immunity s hall continue to s ubsist.3. In cas e of the death of a member of the mission, the members of his family shall c ontinue to enjoy the privileges & immunities to whic h they are entitleduntil the expiry of a reasonable period in which to leave the country. 4. In theevent of the death of a member of the mission not a national of or perma nently

resident in R S or a member of his family forming part of his hous ehold, RS shall permit the withdrawal of the movable property of the dec eased, exc ept anyproperty ac quired in the country the export of which was prohibited at the timeof his dea th. Esta te, successi on & inheritanc e duti es s hall not be levi ed on movable property the pres enc e of which in RS was due solely to the pres enc e there of the dec eas ed as a member of the mission or as a member of the family of a member of the mission. Art. 41 1. Without prejudic e to their privileges & i mmunities, it is the duty of all persons enjoying s uch privileges & immunities to res pect RS laws. They have a duty not to interfere in the inter nal affairs of that State. 2. All official business with RS entrusted to the missionby SS shall be c onducted with or through the Ministry for Foreign Affairs of RSor s uc h other ministry as may be agreed. 3. Premises of the mission must notbe us ed in any ma nner incompatible with functions of the mission per the Conve

ntion, rules of general IL or special agreements between the SS & RS. Art. 42 Adiplomatic agent s hall not in RS practic e for personal profit a ny professional or commercial activity.

Art. 45 1. SS may waive, WITH REGAR D TO a member of the c ons ular post, any ofthe privileges & immunities provided for in Arts. 41, 43 & 44. 2. The waiver shall in all cases be express, exc ept as in par. 3 of this Article, & shall be communicated to RS in writing. 3. The initiation of proceedings by a consular officer or a consular employ ee in a matter where he might enjoy immunity from jurisdiction under Article 43 shall preclude him from invoking i mmunity from jurisd



iction in respect of any c ounter-claim directly connected with the principal claim. 4. The waiver of immunity from jurisdiction for the purpos es of civil or administrative proc eedings shall not be deemed to imply the waiver of immunity from the measures of exec ution res ulting from the judicial decision; in respectof s uch meas ures, a s eparate waiver s hall be nec essary. Art. 53 1. Every member of the c ons ular post s hall enjoy herein privileges & immunities from the moment he enters R S territory on proc eeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the c onsular post. 2. Members of the family of a member of the consular post forming part of his hous ehold & members of his private staff s hall receive the privileges & immunities from the date from whic h he enjoys privileges & immunities per par. 1 of this Article or from the date of their entry into R S territory or fromthe date of their bec oming a member of suc h family or private staff, whichever is the latest. 3. When the functions of a member of the c ons ular post have come to an end, his, his family s, his private staff s privileges & shall normally cease at the moment when the person concer ned leaves RS or on the expiry of a reasonable period in which to do s o, whichever is the sooner, but s hall subsistuntil that time, even in case of armed c onflict. In the cas e of the persons in par. 2 of this Article, privileges & i mmunities s hall come to an end when they c ease to belong to the household or to be in the s ervice of a member of thec ons ular post, provided, that if s uch persons intend leaving RS within a reas onable period thereafter, their privileges & i mmunities s hall subsist untilthe ti me of their departure. 4. But, WITH REG ARD TO acts performed by a consular officer or a consular employ ee in the exercise of his functions, i mmunity f

rom jurisdiction shall continue to s ubsist without limitation of ti me. 5. In the event of the death of a member of the consular post, the member s of his family forming part of his hous ehold shall c ontinue to enjoy the privileges & immunities acc orded to them until they leave RS or until the expiry of a reas onable period enabling them to do so, whic hever is the sooner. Art. 55 1. Without prejudic e to their privileges & i mmunities, it is the duty of all persons enjoying suc h privileges & immunities to res pect the laws & regulations of RS. Theyalso have a duty not to interfere in the internal affairs of that State. 2. Theconsular premises s hall not be used in any manner incompa tible with the exercise of c ons ular functions. 3. Par. 2 of this Article shall not exclude the possibility of offices of other institutions or agencies being installed in part ofthe building in which the consular premises are situa ted, provided that the premis es assigned to them are separate from thos e us ed by the cons ular post. In

that event, the said offices shall not be c onsidered to form part of the c onsular premises. Art. 57 1. Career consular officers s hall not carry on for personal profit a ny professional or c ommercial activity in R S. 2. Privileges & immunities shall not be accor ded: (a) to c ons ular employees or to members of the s ervice staff who carry on any private gainful occupation in RS; (b) to members of the family of a person referred to in s ub-par. (a) of this paragraph orto members of his private staff; (c) to members of the family of a member of a consular post who themselves carry on any private gainful occ upation in RS. Art.26 RS shall, even in case of armed c onflict, grant to members of the consularpost & members of the private staff, other tha n R S nationals, & to members oftheir families forming part of their hous eholds irrespective of nati onality,

No profit

Armed conflict

Art. 44 RS must, even in cas e of armed conflict, grant facilities in order to enable persons enjoying privileges & i mmunities, other than RS nationals, & members of the families of s uch





Art. 38 1. Except insofar as additional privileges & immunities may be granted by R S, a diplomatic agent who is a national of or perma nently resident in R S shall enjoy only immunity from jurisdiction, & inviolability, in respect of official acts performed in the exercise of his functi ons . 2. Other members of thestaff of the mission & private servants who are nati onals of or permanently resident in RS shall enjoy privileges & i mmunities only to the extent admitted byRS. H owever, RS must exercise its jurisdiction over those persons s o as not tointerfere unduly with the performanc e of the functions of the mission.




Page 70 of 130

Commonalities Diplomatic Relations; Consular Relations Articles 1: Definitions Establishment by mutual consent: Art. 2. The establishment of diplomatic relationsbetween States, & of permanent diplomatic missions, takes place by mutual consent. Art. 4. 1. A consular post may be established in the territory of the RS onlywith that State's consent. 2. The seat of the consular post, its classificationand the consular district shall be established by the SS and shall be subject tothe approval of the RS. 3. Subsequent changes in the seat of the consular post,its classification or the consular district may be made by the SS only with theconsent of the RS. 4. The consent of the RS shall also be required if a consulate-general or a consulate desires to open a vice-consulate or a consular agencyin a locality other than that in which it is itself established. 5. The prior express consent of the RS shall also be required for the opening of an office forming part of an existing consular post elsewhere than at the seat thereof. Size of Mission; Consular Staff: DR - Art. 11; CR - Art. 20: subject to agreement, RSmay require that the size of a mission be kept within limits considered by it tobe reasonable & normal, having regard to circumstances & conditions in RS & to

the needs of the particular mission, & RS may equally, within similar bounds & on a nondiscriminatory basis, refuse to accept officials of a particular category. Nationality of members of diplomatic staff of mission (Art. 8); of consular officers (Art. 22): should in principle be of the nationality of SS. They may notbe appointed from among persons having the nationality of RS, except with the consent of that State which may be withdrawn at any time. RS may reserve the sameright WITH REGARD TO nationals of a third State who are not also nationals of SS. Establishment of mission (Art. 12); or consular post (Art. 6): must be with consent of the RS (which may allow consular officer to exercise functions outside his post). Notification as to members of mission, family of a member of mission,private servants (Art. 10); as to members of consular posts, family member forming part of his household, private staff (Art. 24. 1[a-d] & 2): 1. RS Ministry forForeign Affairs, or other ministry as may be agreed, shall be notified of: 1. a

ppointment of _________, arrival & final departure or termination of functions with the mission; 2. arrival & final departure of a person belonging to the _____ _____ &, where appropriate, fact that a person becomes or ceases to be a memberof the family of a member of the mission; 3. arrival & final departure of ______

__ of persons in par. (a) of this paragraph &, where appropriate, fact that theyare leaving such employ; 4. engagement & discharge of persons resident in RS asmembers ______ or private servants [staff] entitled to privileges & immunities.2. Where possible, prior notification of arrival & final departure shall also be given. Assistance/accommodation in getting facilities of the mission (Art. 21);of the consular post (Art. 30): RS shall either facilitate

acquisition on its territory by SS of premises necessary for _____ or assist thelatter in obtaining some other accommodation, including those for its members.

Inviolability of archives & documents of mission (Art. 24); consular post (Art.33): at any time, wherever they are Full facilities of the mission (Art. 25); consular post (Art. 28): RS shall accord full facilities for the performance of thefunctions of the _________. Freedom of movement of members of the mission (Art.26); consular post (Art. 34): Subject to its laws and regulations concerning zones entry into which is prohibited or regulated for reasons of national security,the RS shall ensure freedom of movement & travel in its territory to all membersof the ______. Freedom of communication of the mission (Art. 27); consular post (Art. 35): 1. RS shall permit & protect freedom of communication on the part of themission [consular post] for all official purposes. In communicating with the Go



vernment, the diplomatic missions & other consulates [consular posts], whereversituated, of the sending State, the mission [consular post] may employ all appropriate means, including diplomatic [or consular couriers], diplomatic [or consular bags] and messages in code or cipher. However, the mission [consular post] may install & use a wireless transmitter only with the consent of RS. 2. The official correspondence of the mission [consular post] shall be inviolable. Officialcorrespondence means all correspondence relating to the mission [consular post]and its functions. 3. The diplomatic [consular] bag shall be neither opened nordetained. Nevertheless, if the competent authorities of RS have serious reason to believe that the bag contains something other than the correspondence, documents or articles referred to in par. 4 of this Article, they may request that thebag be opened in their presence by an authorized representative of SS. If this request is refused by the authorities of SS, the bag shall be returned to its place of origin. 4. The packages constituting the diplomatic [consular] bag shall bear visible external marks of their character & may contain only official correspondence & documents or articles intended exclusively for official use. 5. The diplomatic [consular] courier shall be provided with an official document indicating his status & the number of packages constituting the diplomatic [consular] bag. Except with RS consent he shall be neither a RS national, nor, unless he is aSS national, a permanent RS resident. In the performance of his functions he shall be protected by the RS. He shall enjoy personal inviolability & shall not beliable to any form of arrest or detention. 6. SS, its diplomatic missions [itsconsular posts] may designate diplomatic [consular] couriers ad hoc. In such cases, par. 5 of this Article shall also apply except that the immunities mentioned

shall cease to apply when such a courier has delivered to the consignee the diplomatic [consular] bag in his charge. 7. A diplomatic [consular] bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to land atan authorized port of entry. He shall be provided with an official document indicating the number of packages constituting the bag, but he shall not be considered to be a diplomatic [consular] courier. By arrangement with the appropriate local authorities, the diplomatic [consular] post may send one of its members to take possession of the bag directly & freely from the captain of the ship or of the aircraft.




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Social security exemption for a diplomatic agent (Art. 33); members of the consular post (Art. 48): 1. Subject to par. 3 of this Article, _______ WITH REGARD TOservices rendered by them for the SS, [& members of their families forming partof their households,] shall be exempt from social security provisions which maybe in force in the RS. 2. The exemption in par. 1 of this Article shall apply also to members of the private servants [staff] who are in the sole employ of a __

_______, on condition: (a) that they are not nationals of or permanently resident in the RS; & (b) that they are covered by the social security provisions whichare in force in the SS or a third State. 3. ________ who employ persons to whomthe exemption in par. 2 of this Article does not apply shall observe the obligations which the social security provisions of the RS impose upon employers. 4. The exemption in pars. 1 & 2 of this Article shall not preclude voluntary participation in the social security system of the RS, provided that such participationis permitted by that State. 5. The provisions of this Article shall not affectbilateral or multilateral agreements concerning social security concluded previously & shall not prevent the conclusion of such agreements in the future. [par. 5

is not in CR] Exemption from military service of diplomatic agents (Art. 35); members of the consular post & members of the families forming part of their households (Art. 52): RS shall exempt _______ from all personal services, from all public service of any kind whatsoever, & from military obligations such as thoseconnected with requisitioning, military contributions & billeting. Inviolabilityin a Third State of a diplomatic agent (Art. 40); consular officer (Art. 54) 1.If a ______ passes through or is in the territory of a third State, which has granted him a visa if a visa was necessary, while proceeding to take up or returnto his post or when returning to the SS, the third State shall accord to him inviolability & all immunities provided for by the other Articles of the present Convention as may be required to ensure his transit or return. The same shall apply in the case of any member of his family [forming part of his household] enjoying such privileges & immunities who are accompanying the _______ or traveling s

eparately to join him or to return to the SS. 2. In circumstances similar to those specified in paragraph 1 of this Article, third States shall not hinder the transit through their territory of other members of the administrative & technical or service staff of a mission [consular post] or of members of their families[forming part of their households], through their territories. 3. Third States shall accord to official correspondence & to other official communications in transit, including messages in code or cipher, the same freedom and protection as the RS is bound to accord under the present Convention. They shall accord to diplomatic [consular] couriers who have been granted a visa, if a visa was necessary, & to consular bags in transit, the same inviolability & protection as the RS is bound to accord under the present Convention. 4. The obligations of third States under pars 1, 2 & 3 shall also apply to the persons mentioned respectively inthose paragraphs, & to official communications & to diplomatic [consular] bags,

whose presence in the territory of the third State is due to force majeure." Provisions specific to each: Diplomatic Relations: Art 4 1. SS must ensure that the agrément of RS has been given for the

person it proposes to accredit as head of the mission to that State. 2. RS is not obliged to give reasons to the SS for a refusal of agrément. Art 7. Subject to Arts 5, 8, 9 & 11, SS may freely appoint the members of the staff of the mission.In the case of military, naval or air attaches, RS may require their names to be submitted beforehand, for its approval. Art 13 1. Head of the mission takes uphis functions in the RS either when he has presented his credentials or when he



has notified his arrival & a true copy of his credentials has been presented tothe Ministry for Foreign Affairs of the RS, or such ministry as may be agreed,per the practice in the RS which shall be applied in a uniform manner. 2. Orderof presentation of credentials or of a true copy will be determined by date & time of the arrival of the head. Art 37 1. Family members of a DA forming part ofhis household shall, if they are not nationals of the RS, enjoy the privileges &immunities in Arts 29 to 36. 2. Members of the administrative & technical staff, with family members forming part of their households, if not nationals of or permanently resident in RS, enjoy the privileges & immunities in Arts 29 to 35, except that immunity from civil & administrative jurisdiction of the RS in Art. 31.1 shall not extend to acts performed outside the course of their duties. Theyshall also enjoy the privileges in Art 36.1, as to articles imported at the timeof first installation. 3. Members of the service staff who are not nationals ofor permanently resident in the RS enjoy immunity as to acts performed in the course of their duties, exemption from dues & taxes on the emoluments received dueto their employment & the exemption contained in Article 33. 4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the RS, be exempt from dues & taxes on the emoluments received due totheir employment. In other respects, they may enjoy privileges & immunities only to the extent admitted by the RS. RS must exercise its jurisdiction over thosepersons in such a manner as not to interfere unduly with the performance of thefunctions of the mission. Art 46 SS may with the prior consent of RS, & at therequest of a third State not represented in RS, undertake the temporary protection of the interests of the third State & of its nationals. Consular Relations Ar

t 7 SS may, after notifying States concerned, entrust a consular post established in a particular State with the exercise of consular functions in another State, unless there is express objection by one of the States concerned. Art 8. Uponappropriate notification to RS, a consular post of SS may, unless RS objects, exercise consular functions in RS on behalf of a third State. Art 10 1. Heads of consular posts are appointed by SS & are admitted to the exercise of their functions by RS. 2. Formalities for appointment & admission of the head of a consularpost are determined by the laws, regulations & usages of SS & of RS respectively. Art 12 1. Head of a consular post is admitted to the exercise of his functionsby an authorization from RS termed an exequatur, whatever the form of this authorization. 2. A State which refuses to grant an exequatur is not obliged to giveto the SS reasons for such refusal. 3. Subject to Arts. 13 & 15, head of a consular post shall not enter upon his duties until he has received an exequatur.





member of the service staff shall not, except in par. 3, decline to give evidence. If a consular officer should decline to do so, no coercive measure or penalty may be applied to him. 2. The authority requiring the evidence of a consular officer shall avoid interference with the performance of functions. When possible, take such evidence at his residence or at the consular post or accept a statement from him in writing. 3. Members of a consular post are under no obligation to give evidence concerning matters connected with the exercise of their functions or to produce official correspondence & documents, & are entitled to decline to give evidence as expert witnesses WITH REGARD TO SS law. Art 46 1. Consular officers & consular employees & family members forming part of their households shall be exempt from all obligations under RS laws in regard to the registration of aliens & residence permits. 2. Par. 1 shall not apply to any consular employeewho is not a permanent employee of SS or who carries on any private gainful occupation in RS or to any member of the family of any such employee. Art 47 1. Members of the consular post shall, WITH REGARD TO services rendered for SS, be exempt from any obligations in regard to work permits imposed by RS laws concerningthe employment of foreign labour. 2. Members of the private staff of consular officers & of consular employees shall, if they do not carry on any other gainfuloccupation in the RS, be exempt from the obligations in par. 1. Art 51 Death ofa member of the consular post or of family member forming part of his household, RS: (a) permit export of the movable property of the deceased, except propertyacquired in RS the export of which was prohibited at the time of his death; (b)not levy national, regional or municipal estate, succession or inheritance duties, & duties on transfers, on movable property the presence of which in the RS w

as due solely to the presence in that State of the deceased as a member of the consular post or as a member of the family of a member of the consular post. Chapter III - Regime Relating to Honorary Consular Officers & Consular Posts headedby such Officers Art 58 1. Arts. 28, 29, 30, 3439, 54.3 & 55.2 & 3 shall apply toconsular posts headed by an honorary consular officer. The facilities, privileges & immunities of such consular posts shall be governed by Arts. 5962. 2. Arts.42, 43, 44.3, 45 & 53 & 55.1 shall apply to honorary consular officers. Facilities, privileges & immunities of such consular officers shall be governed by Arts.6367. 3. Herein privileges & immunities shall not be accorded to members of thefamily of an honorary consular officer or of a consular employee employed at a consular post headed by an honorary consular officer. 4. Exchange of consular bags between 2 consular posts headed by honorary consular officers in different States shall not be allowed without the consent of the 2 RSs concerned.

US Diplomatic Staff and Consular Staff (US v Iran)US Embassy and staff in Iran were seized by protestors, without Iranian authorities attempting to prevent such but with later statements of support by the Ayatollah.




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Failure to Protect Embassy and Staff. The failure of the Iranian security forcesto protect the Embassy or take any step to liberate the staff members amountedto a violation of Iran s duties under the Vienna Convention on Diplomatic Relations to take all appropriate steps to protect the embassy premises and staff.

Article 24(1), UN Charter In order to ensure prompt and effective action by theUnited Nations, its Members [1] confer on the Security Council primary responsibility for the maintenance of international peace and security, and [2] agree that, in carrying on its duties under this responsibility the Security Council actson their behalf. Article 25, UN Charter The Members of the United Nations agreeto accept and carry out the decisions of the Security Council in accordance with the present Charter. Article 23(1), UN Charter The Security Council shall consist of fifteen members of the United Nations. The Republic of China, France, theUnion of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United States of America shall be permanent members of the Security Council. The General Assembly shall elect ten other Members of the U

nited Nations to be non-permanent members of the Security Council, due regard being specially paid, in the first instance of the [1] contribution of Members ofthe United Nations to the [a] maintenance of international peace and security and to the [b] other purposes of the Organization, and also to [2] equitable geographical distribution. Article 27(3), UN Charter Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisionsunder Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall refrain from voting. Sir Roque says: y General Rule: The UN Charter prohibitsthe THREAT OR USE OF FORCE between members against their territorial integrityor political independence (Art. 2[4], UN Charter) Exception: (a) inherent rightto individual or collective self-defense (Art. 51, UN Charter) (b) when allowedby the Security Council (Art. 42, UN Charter) y If there s already armed conflict,

apply IHL; in general use, UN Charter y Until when can you allege self-defense until the SC has taken cognizance of the matter (thus, self defense cannot be forever) y Armed attack is determined in Nicaragua vs. US It could include not merelyaction by the regular armed forces across and international border, but also the sending by or on behalf of a state of armed banks, groups, irregulars or mercenaries, which carry out acts of armed force against another state It could take place directly, through the use of one s own forces OR indirectly through armed bands or irregulars. The key is SCALE OF ACTIVITY.

Case Concerning Avena & Other Mexican Nationals (Mexico v. US)Mexico claims breaches of the Vienna Convention on Consular Relations (with regard to communication) in the treatment of 52 Mexicans convicted and sentenced todeath in the US. Failure to Notify of Rights. On notice, without delay is not nece

ssarily to be interpreted as immediately upon arrest, nor can it be interpreted tosignify that the provision of the notice must necessarily precede any interrogation, so that the commencement of interrogation before the notification would bea breach of Art. 36. But the Court observes that there is still a duty upon thearresting authorities to give the information to an arrested person as soon asit is realized that the person is a foreign national, or once there are groundsto think that the person is probably a foreign national. US was in breach of itsobligations to 51 individuals. There are three elements in Art. 36 (1b). If a State breaches its obligation under Art. 36 (1b) in not notifying the Consular Post of the other state of the detention of the latter s nationals, it also breaches






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attack, covers both collective and individual self defense. The parties agree that whether the response to the attack is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self defense. In the case of individual self defense, the exercise of this right is subject to the state concerned having been a victim of an armed attack. Reliance oncollective self defense of course does not remove the need for this. There is NOrule in customary international law permitting another state to exercise the right of collective self defense on the basis of its OWN ASSESSMENT of the situation. Request for exercise of collective self defense also needed. Thus, in customary international law, there is no rule permitting the exercise of collective self defense in the absence of a request by the State which regards itself as thevictim of an armed attack. The requirement of a request is additional to the requirement that such a State should have declared itself to have been attacked. Principle 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 ea

ch 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 indirectform 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 offorce, and that of intervention. Collective counter-measure in response to conduct not amounting to an armed attack. While an armed attack would give rise to anentitlement to collective self defense, a use of force of a lesser degree of gravity cannot produce any entitlement to take collective counter-measures involving the use of force. The acts of which Nicaragua is accused, even assuming themto have been established and imputable to that State, could only have justifiedproportionate counter-measures on the part of the victim States (El Salvador, Ho

nduras, Costa Rica). They could not justify counter-measures taken by a third State (the US) and particularly could not justify intervention involving the use of force. Sir Roque says : ICJ rejected the US s self defense argument and held that the US infringed the prohibition on the use of force due to some of its activities.

UN Charter does not refer to a specific weapon. These provisions do not refer tospecific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. Additional considerations. It suffices for the Court to note that the very nature of all nuclear weapons and the profound risks associated therewith are further considerations to be borne in mind by States believing they can exercise a nuclear response in self defense in accordan

ce with the requirements of proportionality. Signaled intention to use force. Whether a signaled intention to use force if certain events occur is or is not a threat within Art. 2, par. 4 of the Charter depends upon various factors. If the envisaged use of force is in itself unlawful, the stated readiness to use it would be a threat prohibited under Art. 2, par 4. If it is to be lawful, the declared readiness to use force must be a use of force that is in conformity with the Charter. Possession of nuclear weapons may indeed justify an inference of preparedness to use them. Whether this is a threat depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the UN or whether it woul






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Oil Platforms Case (Iran v. US)Iran instituted proceedings against the US, claiming that attacks on Iranian offshore oil production complexes by the US Navy constituted a fundamental breach ofvarious provisions of the Treaty of Amity, Economic Relations and Consular Rights between the US and Iran, as well as of international law. Serving as backdropfor these attacks is the conflict between Iran and Iraq in the 1980s. The US claimed that the acts are self defense measures, contemplated under Art. XX, par 1(d) of the Treaty, to protect US interests as the reason for the attacks. The Court points out that the US has not claimed to have been exercising collective self-defense on behalf of the neutral States engaged in shipping in the Persian Gulf. Therefore, in order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defense, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as armed attacks within the meaning of that expression in Article 51 of the UN Charter,and as understood in customary law on the use of force. The United States must

also show that its actions were necessary and proportional to the armed attack made on it, and that the platforms were a legitimate military target open to attack in the exercise of self-defense. Evidence failed to support the contentions of the US. Sir Roque says: The Court had not decided on whether unilateral use offorce is valid in this instance. However, note that the Court held that US actions cannot be justified as measures necessary to protect the essential securityinterests of the US under the Treaty, as interpreted in the light of international law on the use of force.

Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinionsof the Court on legal questions arising within the scope of their activities. Article 1, ICJ Statute The International Court of Justice established by the Chart

er of the United Nations as the principal judicial organ of the United Nations shall be constituted and shall function in accordance with the provisions of thepresent Statute. Article 34 (1), ICJ Statute 1. Only States may be parties in cases before the Court. Article 35 (1), ICJ Statute The Court shall be open to theStates Parties to the present Statute. The conditions under which the Court shall be open to other States shall, subject to special provisions contained in treaties in force, laid down by the Security Council, but in no case shall such conditions place the parties in a position of inequality before the Court. Notes: yThe ICJ was established by the UN Charter y The ICJ is the principal judicial organ of the UN y The ICJ Statute forms an integral part of the UN Charter y States Parties to the ICJ Statute: o UN members are ipso facto parties each UN member undertakes to comply with the decision of the ICJ in any case to which it is aparty; if there is failure to comply, the other party may have recourse to the

Security Council, which may make recommendations or decide upon measures to be taken to give effect to the judgment States not UN Members may become a party onconditions determined in each case by the GA, upon recommendation of the Security Council y States not Parties to the ICJ Statute (Art. 35, ICJ Statute): Courtshall be open to such States under conditions laid down by the Security Council,subject to special provisions contained in treaties in force y International Organizations may initiate a proceeding as long as States are still the parties.

2. INTERNATIONAL COURT OF JUSTICEArticle 92, UN Charter The International Court of Justice shall be the principal



judicial organ of the United Nations. It shall function in accordance with theannexed Statute, which is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the present Charter. Article 93,UN Charter All members of the United Nations are ipso facto parties to the Statute of the International Court of Justice. A State which is not a Member of the United Nations may become a party to the Statute of the International Court of Justice on conditions to be determined in each case by the General Assembly upon the recommendation of the Security Council. Article 94, UN Charter Each Member ofthe United Nations undertakes to comply with the decision of the InternationalCourt 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 theCourt, the other party may have recourse to the Security Council, which may, ifit deems necessary, make recommendations or decide upon measures to be taken togive effect to the judgment. Article 96, UN Charter The General Assembly or theSecurity Council may request the International Court of Justice to give an advisory opinion on any legal question.

A. Applicable LawArticle 38, ICJ Statute The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expresslyrecognized by the contesting States; b. international custom, as evidence of ageneral practice accepted as law; c. the general principles of law recognized bycivilized nations; d. subject to the provisions of Article 59, judicial decisio

ns and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, ifthe parties agree thereto. Article 59, ICJ Statute The decision of the Court hasno binding force EXCEPT between the parties and in respect of that particular case.




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C. Advisory Opinions B. JurisdictionArticle 36, ICJ Statute The jurisdiction of the Court comprises all cases whichthe parties refer to it and all matters specially provided for in the Charter ofthe United Nations OR in treaties or conventions in force. The States Parties to the present Statute may at any time declare that they recognize as compulsoryipso facto and 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. The declarations referred toabove may be made unconditionally or on condition of reciprocity on the part ofseveral or certain States, or for a certain time. Notes: How does Court acquirejurisdiction? By consent of the parties y y How does a State manifest its consent? (a) ad hoc basis (or voluntary appearance, where parties refer the dispute tothe Court) (b) parties recognize the jurisdiction as compulsory in a treaty (c)

Optional Clause (Art. 36 (2), ICJ Statute) (or parties recognize the jurisdiction as compulsory in a separate declaration) y Jurisdiction over a State is compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation y Period of effectivity may be either: (a) indefinite (b) for a fixed period of years (c) upon notification of termination (see Nicaragua vs. US) y Reservations may be made: (a) ratione personae reservations relating to other parties (b) ratione temporis reservations relating to time (c) ratione materiae reservations as to subject matter y Such reservations do not limit the discretion of the Court to determine its own competence since ultimately the ICJ can decide to take cognizance of the dispute. y Can you withdraw unilaterally from such declaration? Yes, provided notice is given to the other party within a reasonable time (Nicaragua vs. US) y What is the subject matter jurisdiction of the ICJ? (Art. 36) (a) any matter which the parties may refer to it (b) matt

ers provided by the UN Charter, treaties or conventions (c) legal disputes concerning: - the interpretation of a treaty; - any question of international law; -the existence of any fact which, if established, would constitute a breach of aninternational obligation; - the nature or extent of the reparation to be made for the breach of an international obligation y Dispute means disagreement on a point of law or fact, a conflict of legal views of interests between two persons; to constitute a dispute, no actual breach or harm is necessary. Notes: rd y 3 party intervening need not be an indispensable party y Requisite: a legal interestin the subject matter of the case which may be affected by the decision. (much lower threshold than the requirement in ordinary civil cases)

CASES ON JURISDICTION

Military and Paramilitary Activities In and Against Nicaragua - Nicaragua v. US(1986)In this case, Nicaragua asserted that the Court had jurisdiction over its application because both Nicaragua and the US had accepted the compulsory jurisdictionof the Court under the Optional Clause. The US contended that the Court lackedjurisdiction on the following grounds: (1) that Nicaragua s acceptance of the compulsory jurisdiction of the PCIJ was not in force in 1945, for failure to ratifythe Statute of the PCIJ, such that Art. 36 (5) of the ICJ Statute did not applyto it; (2) three days before the application had been filed, the US had filed anotification stating that the compulsory jurisdiction shall not apply to dispute



s with any Central American State, said notification to take effect immediately;and that (3) US had made a reservation in its Optional Clause whereby rd disputes arising under a multilateral treaty, which could affect 3 states which are parties to the treaty but are not participating in the proceedings before the Court, were excluded from the jurisdiction of the Court. ICJ held that it had jurisdiction. The ratification of the ICJ Statute by Nicaragua gave its previous declaration under the PCIJ Statute the binding force which it previously lacked. Moreover, the US declaration could only be terminated on REASONABLE NOTICE. A declaration under the Optional Clause was a unilateral and voluntary act. Once made, however, it created a legal obligation binding upon the State which made it. Finally, the ICJ concluded that it would be impossible for a ruling not to affect third parties such as El Salvador. Therefore, the reservation of the US preventedthe Court from entertaining the claims based on violations of multilateral treaties such as the UN Charter and the OAS Charter. It HOWEVER found that the effectof the reservation did NOT exclude the application of principles of international customary law, which were enshrined in treaty law provisions.

Lockerbie Case (Libya v. UK - 1988)A bomb exploded on board a Pan Am plane over Lockerbie, Scotland. UK and US accused two Libyan nationals of placing the bomb aboard the plane and issued a declaration enjoining Libya to surrender the two men. In its application, Libya seeksto enforce the obligations of the States under the Montreal Convention, under which Libya had the right to investigate the alleged offense and exercise domestic jurisdiction. The UK maintained that the Court lacked jurisdiction because the

re was no dispute concerning the interpretation or application of the Convention, and even if such dispute existed, the UN Security Council Resolutions which required Libya to surrender the two accused prevailed over the provisions of the Montreal Convention. The Court held that it had jurisdiction. A dispute is definedas a disagreement on a point of law or fact, a conflict of legal views or of interest between two persons. In this case, the parties differed on the question ofwhether the destruction of the aircraft was governed by the Montreal Convention. Moreover, the UN SC




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Resolutions were adopted after Libya filed its application. Since admissibilityhad to be determined as at the date on which the application was filed, subsequent cognizance of the SC and the issuance of said resolutions could not remove any jurisdiction which the Court possessed at the date of filing of the application.

Phosphates Case (Nauru v. Australia - 1992)Nauru was placed under UN Trusteeship, with Australia, New Zealand and the UK asjoint Administering Authority. Australia was to exercise full powers of legislation, administration and jurisdiction over Nauru on behalf of the AdministeringAuthority. Nauru instituted proceedings against Australia, maintaining that it had breached its trusteeship obligations by failing to rehabilitate parts of Nauru from which phosphates had been extracted. Australia claimed lack of jurisdiction on two grounds: 1) since the case involved the responsibility of third Stateswhich had not consented to the Court s jurisdiction; and 2) it made a reservationin its declaration that jurisdiction does not apply to any dispute where the pa

rties have agreed or shall agree to have recourse to some other method of peaceful settlement. ICJ held that it had jurisdiction. As to the 1 ground, Court held that the fact that New Zealand and the UK were not parties to the proceedings didnot render the application inadmissible. The present case differed from the Monetary Gold case since the interests of New Zealand and the UK did not constitutethe very subject matter of the decision which the Court would give. A finding by the Court regarding the responsibility attributed to Australia by Nauru mighthave implications for the legal situation of the two other States concerned butno finding in respect of that legal situation would be needed as a basis for theCourt s decision in this case. Moreover, the interests of New Zealand and the UKare protected by Article 59 of the ICJ Statute (decision only binds the parties). As to the 2nd ground, Australia claimed that the termination of the trusteeship should be considered as recourse to some other method of peaceful settlement. IC

J held that Australia s declaration expressly provided that this limitation on jurisdiction applies to disputes between States, which Nauru was not prior to its independence.st

ELSI Case (US v. Italy - 1989)The application made by the US concerned the allegedly illegal requisition by Italy of two US corporations. US claimed that Italy violated the provisions of theFriendship, Commerce and Navigation (FCN) Treaty between the two. It also submitted that the doctrine of exhaustion of local remedies was not applicable to anaction brought under the said treaty due to lack of reference to such doctrine.Italy, on the other hand, maintains that the claims should have been brought before Italian municipal courts. The Court held that it had jurisdiction, its juris

diction being based upon the Statute of the Court and the FCN Treaty. The Courtstated the doctrine of exhaustion of local remedies was a fundamental rule of customary international law and was not rendered inapplicable simply because of the absence of words making it specifically applicable to a certain type of action. However, since Italy failed to establish that a remedy existed under municipallaw which was available to the US corporations, the claim is admissible. Sir Roque says: y The doctrine of exhaustion of local remedies is available when a state brings a case in the exercise of its diplomatic protection of its nationals/espouses a claim of its national. y It is not required when the state brings a case as the injured party (i.e. the injury is caused to the state itself such as



in the US Diplomatic and Consular Staff case).

South-West Africa Cases (Ethiopia and Liberia vs. South Africa - 1966)Ethiopia and Liberia instituted applications alleging contravention of duties bySouth Africa as mandatory under the League of Nations Mandate for South West Africa. Every mandate contained a jurisdictional clause providing for a referenceof disputes to the PCIJ, now the ICJ by virtue of Article 37 of the ICJ Statute.South Africa however challenged the jurisdiction of the Court by contending that since the League of Nations and PCIJ were dissolved then the rights and obligations under the Mandate relating to the administrative supervision by the Leagueand submission to the PCIJ had become extinct. The Court held that it had jurisdiction, notwithstanding the dissolution, because the obligation of South Africato submit to compulsory jurisdiction had effectively transferred to the ICJ. Although the League ceased to exist in April 1946, the UN Charter had entered intoforce in November 1945, and the three parties had ratified such Charter and become UN members. By the effect of Art. 92 and 93 of the UN Charter and Art. 37 ofthe ICJ Statute, South Africa had bound itself to accept the compulsory jurisdiction of the ICJ in lieu of the PCIJ. Deciding on the merits, the Court rejectedthe claims of Ethiopia and Liberia. Court held that the individual member States of the League of Nations had no right of direct intervention relative to the mandatories since this was the prerogative of the League organs. And though States retained the rights which they possessed as members of the League of Nations despite the dissolution of the organization, it did not mean that by and upon such dissolution they acquired rights which they never did individually possess.

Case Concerning East Timor (Portugal v. Australia - 1995)Portugal commenced proceedings against Australia, in which it maintained that byconcluding an agreement and continuing negotiations with Indonesia over the delimitation of the continental shelf between Australia and East Timor, Australia infringed the rights of the people of East Timor to selfdetermination and permanent sovereignty over their natural resources and the rights of Portugal as administering power. Australia contended that the Court could not rule upon the application without ruling on the rights and obligations of Indonesia, which had not consented to the jurisdiction of the Court. ICJ had no jurisdiction. The Court refrained from exercising jurisdiction, as it could not rule upon the dispute between Australia and Portugal without having to rule upon whether Indonesia s entry into East Timor was lawful. The very subject matter of the decision would necessa

rily be a determination of whether Indonesia acquired power to conclude treatieson behalf of East Timor, which determination could not be made without the consent of Indonesia. Sir Roque says: Doctrine applies both to advisory opinion andcontentious cases; Case is authority for the definition of erga omnes obligationof states to respect the right to self-determination.




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CASES ON PROVISIONAL MEASURES

Bosnia Case (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro)This case has been decided again in 2007.

loving; 3) must accept the obligations of the charter; 4) must be able to carryout these obligations; 5) must be willing to do so. These are not merely the necessary but also the sufficient conditions for membership.

Free Zones Case France vs. Switzerland (1932)A series of treaties between France and Switzerland established customs-free zones. France claims that by virtue of the Peace Treaty of Versailles, the regime of free zones had been abrogated. The Court took cognizance of the case despite the fact the matters addressed to it were of great economic importance, as the matters arose in the context of legal questions to be answered. The legal dispute

here is essentially France s right to withdraw unilaterally from a treaty. Deciding on the merits, the court said that there was no abrogation because the text itself of the Special Arbitration Agreement states that the countries are to settle between themselves the status of the free zones because of an inconsistency. An inconsistency does not automatically operate to involve the abolition of the free zones.

Application of the Convention on Prevention and Punishment of Genocide - Bosniav. Yugoslavia (1993)Bosnia and Herzegovina instituted proceedings against Yugoslavia accusing it ofresponsibility for the commission of genocide in Bosnia. At the time it filed its application, Bosnia asked the Court to grant, as provisional measures, that Yugoslavia cease all acts of genocide and cease providing support for any group en

gaging in military or paramilitary activities against Bosnia. It also requestedthat the Court indicate that Bosnia had the right to seek and receive assistancein defending itself. The Court granted the request for provisional measures. Itstated that it should not indicate such measures unless the provisions invokedby the applicant or found in the ICJ Statute appeared, prima facie, to afford abasis on which the jurisdiction of the Court might be established. The object ofthe power to indicate provisional measures of protection was to ensure that irreparable prejudice should not be caused to rights which might subsequently be adjudged to belong to one of the parties. Moreover, the Court could only indicateprovisional measures to be taken by the parties but not rd by 3 States who wouldnot be bound by the eventual judgment.

Mavrommatis Case Greece vs. UK (1924)

Greece brought suit against Britain in its capacity as Mandatory of Palestine todetermine the validity of certain concessions for public works in the Jordan Valley granted by the Ottoman authorities to Mavrommatis, a Greek national. Questions were raised as to: a) whether there was a dispute between the Mandatory andanother member of the League of Nations, since only States or members of the League of Nations may appear before it and b) whether there was a dispute even if one of the parties denies the existence of the dispute. The Court defined a dispute as a disagreement on a point of law or fact, a conflict of legal views or of interests between two persons. At first, the dispute was between a private personand a State. Subsequently, however, Greece took up the case. Once a State has ta



ken up a case on behalf of one of its subject, which it is entitled to protect under international law, before an international tribunal, in the eyes of the latter, the State is the sole claimant. Also, it is the function of the Court to determine if there is a dispute based on the facts of the case and not on the assertions of the parties.

Lockerbie Case (Libya v. US - 1998)Libya requested the Court for provisional measures to enjoin the US from the useof any force against Libya. Previous to this, the Security Council adopted Resolution 748 determining the failure of Libya to surrender the two accused as a threat to international peace and security. The Court denied the request for provisional measures. It reasoned that since Libya and the US are UN members, they are obliged to accept and carry out the decisions of the Security Council. Such obligation prevails over the duty of the parties under the Montreal Convention. Anindication of the measures requested by Libya would be likely to impair the rights, which appear prima facie to be enjoyed by the United States by virtue of the Security Council Resolution.

UN Headquarters Advisory Opinion (1988)PLO established an observer mission in New York upon invitation by the UN. Yearslater, the US Government passed a law making unlawful the establishment or maintenance within the US of a PLO office. The UN Sec-Gen pointed out that the US isunder obligation to permit PLO personnel to enter and remain in the US to carryout their official UN functions, in accordance with the Headquarters Agreement.

When assurance was not given by the US, the UN SecGen said that a dispute existed between the US and UN and invoked the dispute settlement procedure in Sec. 21of the Headquarters Agreement. US countered that there was no dispute. Disputedefined. Whether there exists an international dispute is a matter for objectivedetermination. PCIJ defined a dispute as a disagreement on a point of law or fact, a conflict of legal views or of interest between 2 persons. Opposing attitudes of the parties clearly establish the existence of a dispute.

CASES ON DISPUTE

Admissions Case (1948)The General Assembly requested the Court to give an advisory opinion on whethera UN member may make its consent to admission of other States dependent on condi

tions not expressly provided by Article 4 of the UN Charter. It was contended bysome States that the Court should not give its opinion for the reason that thesubject matter of the request was political. Art. 4 of UN Charter set sufficientconditions for UN membership. Dealing with the preliminary objection, the Courtruled that the question was a purely legal one. Interpretation of a treaty provision is an essentially judicial task. Given its legal nature, the Court is notconcerned with the political motives, which may have inspired the request at hand. Dealing with the question, the Court answered in the negative. It said that the conditions stated in Art. 4 are EXHAUSTIVE, namely: a candidate must be 1) astate; 2) peace-




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CASES ON ADVISORY OPINION

Western Sahara Case (1975)The UN GA requested an advisory opinion on the following questions: Was Western Sahara at the time of colonization by Spain a territory belonging to no one (terra nullius)? and, if yes, What were the legal ties between this territory and the Kingdom of Morocco and the Mauritanian entity? The ICJ finds no compelling reasonto deny the request. Art. 65, par 1 is permissive and, under it, that power is of a discretionary character. In exercising this discretion, the ICJ, like the PCIJ, has always been guided by the principle that, as a judicial body, it is bound to remain faithful to the requirements of its judicial character even in giving advisory opinions. It has been said in previous opinions that the reply of theCourt represents its participation in the activities of the UN and, in principle, should not be refused. The Court has further said that only compelling reasons should lead it to refuse to give an advisory opinion. In general, an opinion given by the Court will furnish the GA with elements of a legal character relevant

to the future treatment of the decolonization of Western Sahara. In any event, to what extent or degree its opinion will have an impact on the action of the GAis not for the Court to decide. The function of the Court is to give an opinionbased on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently are not devoid of object or purpose. As to lack of consent, the Court said that it recognized that lack of consent might constitute a ground for declining to give theopinion requested if, in the circumstances of a given case, considerations of judicial propriety should oblige the Court to refuse an opinion. In short, the consent of an interested State continues to be relevant, not for the Court s competence, but for the appreciation of the propriety of giving an opinion.

Legality of the Use by a State of Nuclear Weapons WHO Request (1996)

The WHO Dir-Gen submitted the following question to the ICJ for an advisory opinion: In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution? The ICJ refused to give anadvisory opinion. The question in this case relates not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weaponsin view of their health and environmental effects. Whatever those effects mightbe, the WHO s competence to deal with them is not dependent on the legality of theacts that caused them. None of the WHO s functions has a sufficient connection with the question before it for that question to be capable of being considered asarising within the scope of [the] activities of the WHO. International organizations are governed by the principle of speciality they are invested by the States which create them with powers, the limits of which are a function of the common in

terests whose promotion those States entrust to them. To ascribe to the WHO thecompetence to address the legality of the use of nuclear weapons even in view oftheir health and environment effects would be tantamount to disregarding the principle of speciality.

Monetary Gold Case (Italy v. France, UK and USA - 1954)UK and Italy lay claim to gold taken by Germans from Rome. Italy claims the goldunder the allegation that Albania has committed an international wrong againstItaly and must thus pay compensation. UK was claiming the gold in satisfaction of the Corfu Channel decision. Albania, who had not accepted the Courts jurisdicti



on, refrained from making any application to the dispute. The Court cannot decide such a dispute (WON Albania committed a wrong against Italy and must compensate) without the consent of Albania. Here, Albania s legal interest would not only be affected by a decision, but would form the very subject-matter of the decision.

Botswana v. Namibia (1999)The ICJ was requested to determine, on the basis of the AngloGerman Treaty of 1890 and the rules and principles of international law, the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the legal status of the island. The request was made through a Special Agreement between the 2 states to submit the dispute to the ICJ. Neither Botswana nor Namibia is a party to the ViennaConvention on the Law of Treaties, both of them consider Art. 31 of the Convention as applicable in interpreting the Anglo-German Treaty inasmuch as Art. 31 reflect customary international law. Sir Roque says: The ICJ acquired jurisdictionbecause the parties consented to the ICJ s jurisdiction and acknowledged that theAnglo-German Treaty is binding on them.

Certain Expenses in the UN (1962)The expenses involved are those relating to UN operations in Congo and the Middle East in pursuance of Security Council and General Assembly Resolutions. The UNGA requested an advisory opinion on whether these are expenses of the Organization with the meaning of Art 17, par 2 of the UN Charter. The ICJ agreed to givean advisory opinion, saying that the power of the Court to give advisory opinion

is derived from Art. 65 of the Statute. The power granted is of a discretionarycharacter. The Court, being a Court of Justice, cannot, even by giving advisoryopinions, depart from the essential rules guiding their activity as a Court. Therefore, the Court can give an advisory opinion only on a legal question. But even if the question is a legal one, it may nonetheless decline to do so. The Court finds no compelling reason why it should not give the advisory opinion requested. It has been argued that the question put to the Court is intertwined with political questions, and that for this reason the Court should refuse to give an opinion. The Court, however, cannot attribute a political character to a request which invites it to undertake an essential judicial task, namely, the interpretation of a treaty provision.

Eastern Carelia Case (1923)

The Council of the League of Nations requested the PCIJ to give an advisory opinion upon this question: Do Arts. 10 and 11 of the Treaty of Peace between Finlandand Russia, signed at Dorpat, and the annexed Declaration of the Russian Delegation regarding the autonomy of Eastern Carelia, constitute engagements of an international character which place Russia under an obligation to Finland as to thecarrying out of the provisions contained therein? Russia and Finland are in dispute regarding the Declaration, with Finland saying that it forms part of the contract and that the Treaty was signed on the terms that the Declaration was as binding as the




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Treaty itself. Russia argued that the Declaration was not by way of contract, but was merely declaratory of an existing situation. The Court refused to give anadvisory opinion. As Russia is not a member of the League of Nations, the case is one under Art. 17 of the Covenant (in the event of dispute between a member and a nonmember, the latter shall be invited to accept the obligations of membership for the purpose of such dispute, and if accepted, Art. 12 to 16 shall be applied with modifications). Such CONSENT, however, had never been given by Russia.On the contrary, it has on several occasions clearly declared that it accepts nointervention by the League of Nations. It appears to the Court that that thereare other cogent reasons which render it very inexpedient that the Court shouldattempt to deal with the present question. As Russia, refused to take part, it is doubtful if sufficient materials would be available to allow any judicial conclusion on whether Finland and Russia contracted on the terms of the Declarationas to the nature of Eastern Carelia s autonomy. The question put to the Court is not one of abstract law, but concerns directly the main point of the controversyand can only be decided by an investigation into the facts underlying the case.

Answering the question would be substantially equivalent to deciding the disputebetween the parties.

permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be athreat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures . . .". The Court observes thattwice the Security Council failed to act as contemplated in resolution 377 A(V).It does not appear to the Court that the situation in this regard changed between 20 October 2003 and 8 December 2003. The request for an advisory opinion wason a legal question within the meaning of Art. 96, par 1 of the UN Charter and Art. 65, par 1 of the ICJ Statute. As regards the alleged lack of clarity of the te

rms of the GA's request and its effect on the "legal nature" of the question referred to the Court, the Court observes that this question is directed to the legal consequences arising from a given factual situation considering the rules andprinciples of international law, including the Fourth Geneva Convention and relevant SC and GA resolutions. The question submitted by the GA has thus, to use the Court's phrase in Western Sahara, "been framed in terms of law and raise[s] problems of international law"; it is by its very nature susceptible of a reply based on law; indeed it is scarcely susceptible of a reply otherwise than on thebasis of law. In the view of the Court, it is indeed a question of a legal character . Lack of clarity in drafting does not deprive the Court of Jurisdiction. TheCourt would point out that lack of clarity in the drafting of a question does not deprive the Court of jurisdiction. Rather, such uncertainty will require clarification in interpretation, and such necessary clarifications of interpretation

have frequently been given by the Court. Court may give an opinion even on an abstract legal question. The Court does not consider that what is contended to bethe abstract nature of the question posed to it raises an issue of jurisdiction. Even when the matter was raised as an issue of propriety rather than one of jurisdiction, in the case concerning the Legality of the Threat or Use of NuclearWeapons, the Court took the position that to contend that it should not deal with a question couched in abstract terms is "a mere affirmation devoid of any justification" and that "the Court may give an advisory opinion on any legal question, abstract or otherwise" That a party to the contentious dispute did not give its consent does not divest the Court of jurisdiction to give an advisory opinion



. The Court observes that the lack of consent (by Israel) to the Court's contentious jurisdiction by interested States has no bearing on the Court's jurisdiction to give an advisory opinion. "The consent of States, parties to a dispute, isthe basis of the Court's jurisdiction in contentious cases. The situation is different in regard to advisory proceedings even where the Request for an Opinion relates to a legal question actually pending between States. The Court's reply isonly of an advisory character: as such, it has no binding force. It follows that no State, whether a Member of the United Nations or not, can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take. The Court's Opinion is given not to the States, but to the organ which is entitled to request it; the reply of the Court, itself an 'organ of the United Nations', represents its participation in the activities of the Organization, and, in principle, should not be refused." The Court did however examine the opposition of certain interested States to the request

Palestinian Wall Case (2004)The UN GA requested the ICJ to give an advisory opinion on the legal consequences rising from the Israel s construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem, considering the rules and principles of international law, including the 4th Geneva Convention of 1949, and relevant GA and Security Council Resolutions. The Court concludes that it has jurisdiction, striking down all arguments questioning its power to give advisory opinion. Article 12, par 1 was not violated. A request for an advisory opinion is no

t in itself a "recommendation" by the General Assembly "with regard to [a] dispute or situation". Under Article 24 the Security Council has "primary responsibility for the maintenance of international peace and security". In that regard itcan impose on States "an explicit obligation of compliance if for example it issues an order or command . . . under Chapter VII" and can, to that end, "requireenforcement by coercive action". However, the Court would emphasize that Article24 refers to a primary, but not necessarily exclusive, competence. The GeneralAssembly does have the power, inter alia, under Article 14, to "recommend measures for the peaceful adjustment" of various situations. "[The only limitation which Article 14 imposes on the General Assembly is the restriction found in Article 12." As regards the practice of the UN, both the GA and the SC initially interpreted and applied Article 12 to the effect that the Assembly could not make a recommendation on a question concerning the maintenance of international peace an

d security while the matter remained on the Council's agenda. However, this interpretation has evolved subsequently. Indeed, the Court notes that there has beenan increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security. The Court considers that the accepted practice of the General Assembly, as it has evolved, is consistent with Article 12, paragraph1, of the Charter. The Court is accordingly of the view that the General Assembly, in seeking an advisory opinion from the Court, did not contravene the provisions of Article 12, paragraph 1. SC failed to act on the matter, thus the GA acted properly in requesting for the advisory opinion. Resolution 377 A (V) Statesthat: "if the Security Council, because of lack of unanimity of the



UP Law B2009 Reviewer (Karichi Edition) by the General Assembly in the context ofissues of judicial propriety.

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The issue is not a bilateral matter between Israel and Palestine and it cannot deny giving an opinion on that ground. Given the powers and responsibilities of the United Nations in questions relating to international peace and security, itis the Court's view that the construction of the wall must be deemed to be directly of concern to the United Nations. Giving of advisory opinion will not impederesolution of the IsraeliPalestinian conflict. The Court is aware that, no matter what might be its conclusions in any opinion it might give, they would have relevance for the continuing debate on the matter in the General Assembly and would present an additional element in the negotiations on the matter. Beyond that,the effect of the opinion is a matter of appreciation. The Court has heard contrary positions advanced and there are no evident criteria by which it can preferone assessment to another. The Court is conscious that the "Roadmap", which constitutes a negotiating framework for the resolution of the conflict. It is not clear, however, what influence the Court's opinion might have on those negotiations: participants in the present proceedings have expressed differing views in th

is regard. The Court cannot regard this factor as a compelling reason to declineto exercise its jurisdiction. That the construction of the wall is but one aspect of the conflict will also not prevent the giving of advisory opinion. The Court does not however consider this a reason for it to decline to reply to the question asked. The Court is indeed aware that the question of the wall is part ofa greater whole, and it would take this circumstance carefully into account in any opinion it might give. At the same time, the question that the General Assembly has chosen to ask of the Court is confined to the legal consequences of the construction of the wall, and the Court would only examine other issues to the extent that they might be necessary to its consideration of the question put to it. That the Court does not have at its disposal requisite facts and evidence to enable it to reach its conclusions will also not prevent the giving of advisory opinion. The Court observes that the question whether the evidence available to i

t is sufficient to give an advisory opinion must be decided in each particular instance. The Court has at its disposal the report of the Secretary-General, as well as a voluminous dossier submitted by him to the Court, a written statement updating his report, written statements submitted by numerous other participantswhich contain information relevant to a response to the question put by the General Assembly. The Court finds that it has before it sufficient information and evidence to enable it to give the advisory opinion requested by the General Assembly. The circumstance that others may evaluate and interpret these facts in a subjective or political manner can be no argument for a court of law to abdicate its judicial task. There is therefore in the present case no lack of informationsuch as to constitute a compelling reason for the Court to decline to give the requested opinion. WON the advisory opinion would serve a useful purpose is not important since it is the requesting which has the right to decide on its usefuln

ess. With regard to the argument that the General Assembly has not made it clearwhat use it would make of an advisory opinion on the wall, the Court would recall, what it stated in its Opinion on the Legality of the Threat or Use of Nuclear Weapons: "Certain States have observed that the General Assembly has not explained to the Court for what precise

purposes it seeks the advisory opinion. Nevertheless, it is not for the Court itself to purport to decide whether or not an advisory opinion is needed by the Assembly for the performance of its functions. The General Assembly has the rightto decide for itself on the usefulness of an opinion in the light of its own nee



ds." It follows that the Court cannot decline to answer the question posed basedon the ground that its opinion would lack any useful purpose. The Court cannotsubstitute its assessment of the usefulness of the opinion requested for that ofthe organ that seeks such opinion. Furthermore, and in any event, the Court considers that the General Assembly has not yet determined all the possible consequences of its own resolution. The Court's task would be to determine in a comprehensive manner the legal consequences of the construction of the wall, while theGeneral Assembly - and the Security Council may then draw conclusions from the Court's findings.

C. INTERNATIONAL ORGANIZATIONS151. HUMAN RIGHTSCrash Course in Basic International Human Rights Law What is the notion of humanrights? The concept of human rights refers to that corpus of internationally and universally-recognized rights that are inherent in every human being, i.e., they are inextricably attached to every person from the time that person becomes ahuman being17. In essence, these are the rights that every aspect of human civilization recognize as the barest minimum that every human being is entitled to without further qualifications; a residual core of an entire system of rights that cannot further be reduced. This recognition based on absolute consensus of theinternational community makes human rights universal in character. As a logicalextension of the inherent character of human rights, human rights are also considered inalienable, or cannot be either disposed of or taken away voluntarily orinvoluntarily. They are also imprescriptible, meaning they cannot be understood

as having been waived or forgone by the mere failure to assert or vindicate them through the passage of time. Human rights abuses, for example, could go on fora number of years in one state without any ostensible opposition but such factcannot be used to argue that the people of that state have already surrendered or waived vindication of their rights at any time in the future. Human rights arealso inviolable. Any denial or transgression of these rights constitutes a continuing violation; there may be justifications for these, which would in certaincases be sufficient to exempt the perpetrators from any legal consequence, but this does not change the fact that there has been a violation18. One15

16

Thanks to Ceejay, Marco, Dave, and MJ for this part. Thanks to Ceejay Balisacanfor this portion. 17 There is debate, of course, if the recognized human right to life would apply to the ³unborn´ or the human fetus at the time of conception; butthis is a different matter of debate altogether. For our purposes, we use humanrights as the rights of every human being, regardless of what each legal systemdefines as a ³person´. 18 Contrast this to the modifying circumstances of criminallaw where a person may not only be exempt from liability, but there may also bea pronouncement that no crime has been committed in the first place. This is because criminal laws are defined by legislation, and therefore the existence of acrime is a function of how one legal system defines the circumstances in which the crime is considered to have arisen. In the case of human rights, since they do not arise from any legislation but are inherent in every civilization¶s notion of justice, their violation will always be considered violations although liabili

ty16




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characterization of human rights that has spurred a lot of debates that are ongoing until now is that human rights are indivisible. Ideally, this notion presupposes that human rights, being the irreducible core of a system of rights, cannotbe subdivided so that one portion can be denied and the other granted. In essence, this argument proposes that the right to a fair trial, for example, cannot be granted only to be nullified by the subsequent denial of the right against cruel and unusual punishment. An accused, therefore, who has been given all the dueprocess requirements of an impartial trial but who, when found guilty, would besubjected to inhumane conditions of confinement can claim a violation of humanrights nevertheless. The problematique comes in when certain human rights coincide with those that are perceived to be hard to attain for example, the right to life is undeniable, but the right to education remains a matter of financial capacity. Where do we find human rights in the present international legal system? The concept of human rights can be found in numerous treatises and other scholarlyworks, but those that fall within the rubric of the international legal systemare those which originated from the Charter of the United Nations and the Univer

sal Declaration of Human Rights. The enshrinement of human rights in these instruments was motivated by the desire to prevent the repetition of the atrocities committed during World War II. Particularly, in the UN Charter, faith is reaffirmed in fundamental human rights, in the dignity and worth of every human person, in the equal rights of men and women and of nations large and small 19. The expresspurposes of the United Nations include achieving international cooperation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without discrimination as to race, sex, language, or religion 20. The UN Charter s reference to fundamental human rights found an authoritative expression in 1948 when the General Assembly adopted the Universal Declaration of Human Rights, a compilation of 31 articles articulating what the international community believes are the most basic and fundamental rights that every huma

n being is entitled to. What is the legal status of the UDHR? A General AssemblyResolution of the UN may be evidentiary of the existence of a customary norm ofinternational law that is binding on all states. However, such customary statuswould depend on many factors like the existence of opinio juris to the contrary, or the number of states-signatories, or the normative 21 character of the content of the resolution . The UDHR, therefore, is not a legally binding instrumentper se just like all other UN GA Resolutions. The ICJ, however, has made a categorical pronouncement that the content of the UDHR already embodies 22 principles that are legally binding . On such basis, we can validlymay also be modified in a certain limited number of cases to be discussed infra.19 Preambular Clause, UN Charter. 20 Article 1 (3), UN Charter. 21 In the 1951ICJ Advisory Opinion on Reservations to the Convention on Genocide, the ICJ recognized that the Convention on Genocide was approved unanimously by the UN GA, an

d so its normative content is necessarily binding on all states. Any reservationto the convention, therefore, should only be confined to the non-normative provisions. Otherwise, the reserving party may be deemed as not having been a signatory at all. 22 In US v. Iran or the Hostages Case, the ICJ held Iran liable forthe ³wrongful deprivation of liberty and the imposition of physical constraint inconditions of hardship´ towards the American hostages in the US Embassy.

argue that the UDHR principles have already been elevated to the status of customary law. How are human rights enforced? Ideally, human rights are enforced domestically, where legal systems have evolved their own laws punishing the violatio



n of human rights23. In default of such laws, one can have resort to international law, but only if all other available local remedies have been exhausted. Human rights conventions have put in place mechanisms for the redress of human rights violations that can be brought even by individuals (no need for espousal by their states, especially if the state itself is accused of the violation) examplesof these are the Inter-American Court of Human Rights established under the American Convention on Human Rights, and the European Court of Human Rights under the European Convention on Human Rights. In the absence of such international mechanisms (as the case is in Asia, where the only human rights court established was the one in the Arab conference), human rights violations may be addressed inthe UN Human Rights Council. The HRC, however, can only act on cases by investigation and recommendation. It undertakes a periodic review of all UN members humanrights records no country can be spared from the review and make recommendations to the General Assembly accordingly. It can also consider emergency situationsof human rights violations and make the same recommendations to the GA. Ultimately, then, further measures need to be sanctioned by the GA. If an act is properly attributable to a state under international law, a human rights 24 violationwould entail the international responsibility of that state . A case can therefore be brought before the ICJ provided that the cause would be espoused by a state, and provided further that such state espousing would have sufficient legal interest in the dispute. In sum, therefore, human rights enforcement very largelyis centered on domestic legislation and international treaty obligations. In default of both, an individual would find it hard to litigate a case of violation.The UN can only step in to bring a case before international attention. If the h

uman rights abuse becomes so widespread and systematic as to constitute a threatto the peace or a breach of the peace, then the Security Council can step intothe picture provided all the requisites are present and all procedures are complied with as provided in Chapter 7 of the UN Charter. What is the position of international human rights law vis-à-vis international humanitarian law? Both of these bodies of international law aim at protecting the interests of every individual. However, international human rights law applies at all times and at all places, given their inherent and universal nature. In contrast, international humanitarian law becomes applicable only during instances of armed conflict. Does humanrights law apply during armed conflicts? YES. Since human rights are inviolableand inherent, they can never be modified by contextual realities, even of armedconflict. Human rights will followSuch rights, according to the Court, as embodied in the UDHR, are legally bindin

g in character, the violation of which would constitute a breach of a state¶s international obligation. 23 Obligations to protect and promote human rights may beembodied in domestic legislation to give it full force and effect. However, if astate has ratified a human rights convention, it cannot modify its treaty obligation through domestic legislation. Article 27 of the Vienna Convention on the Law of Treaties provides that ³a State may not invoke the provisions of its internal law as justification for its failure to perform a treaty´. Once a state signs atreaty, therefore, it can only enact domestic legislation to implement the treaty, or even afford more protection than what the treaty provides, but it can never lower the standards of obligation embodied in the treaty. 24 Velasquez Rodriguez Case, Inter-American Court of Human Rights (1988).




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every human being wherever and whenever. In armed conflicts, therefore, both human rights and humanitarian law would apply simultaneously. Is the exercise of human rights absolute in character? NO. International human rights instruments, which are the concrete codifications of the human rights embodied in the UDHR, recognize that the exercise of fundamental human rights (like speech, expression, assembly, liberty of movement, and religion) may be subject to certain lawful limitations. For such limitations to be lawful, however, they should pass the three-fold test of lawfulness: (1) THE TEST OF LEGALITY. The limitations must be embodied in the law so that citizens, who have every right to exercise their human rights to the fullest extent, can be validly given notice of such limitations. (2) THE TEST OF PURPOSE. The limitations must be imposed for one or more specifiedlegitimate purposes, and such purposes should also be known to the public. (3)THE TEST OF PROPORTIONALITY. The exercise of human rights is always presumed tobe undertaken in a democratic society. Using these standards, the nature and extent of the limitations on the exercise of human rights must be adequately proportional to the purposes for which they were imposed. The test is not whether the

limitations are desirable or not harmful, but whether there is a clear and compelling social purpose that will be served by such act of limitation. What are thecurrent existing human rights instruments? MANY. Aside from the UN Charter andthe UDHR, there are multifarious instruments, conventions, treaties, and protocols regarding human rights. The most popular ones are the International Covenanton Civil and Political Rights (ICCPR), the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the Optional Protocols to these two, the International Convention on the Elimination of all Forms of Racial Discrimination,the Convention on the Elimination of All Forms of Discrimination Against Women,the Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, the Convention on the Rights of the Child, and the International Convention on the Protection of the Rights of All Migrant Workers and Membersof their Families. For our purposes, we will tackle the two most widely-recogniz

ed instruments embodying the most comprehensive list of human rights the ICCPR and the ICESCR. Why is there a seeming dichotomy between civil and political rights on one hand and economic, social and cultural rights on the other? The splitbetween the ICCPR and the ICESCR is reflective of the ongoing debates between those who believe that human rights ought to be universal and those who say that they are culturally relative. This universalism-cultural relativism debate owes to the fact that developed Western states maintain that civil and political rights must be afforded protection alongside economic, social and cultural rights, and such standard must be the same all over the world. Cultural relativists, on the other hand, believe that the protection of rights is a matter relative to theculture of a particular society. The notable adherents of this view (mainly thestrongman rulers of Asia like Mahathir and Lee Kuan-Yew) believe that, for example, Asian communities do not find it objectionable to sacrifice a measure of the

ir civil and political rights in favor of economic rights , especially if economic development would result to benefits accruing to the entire community (Asians, they argue, are communitarian in nature while Westerners are individualist inorientation, hence the refusal to derogate civil and political rights even for the sake of collective

development). The debate is still ongoing, and the West have made many pronouncements that the cultural relativist argument is being used merely to justify strong state measures aimed at economic development but entailing sacrifices of civil and political rights. In the meantime, the single human rights document former



ly prepared by the UN Commission on Human Rights were split into two after muchdebate. The ICCPR, notably, was more palatable to all concerned states because it contains absolute rules that are easily concretized, while the ICESCR (which prescribes as human rights such rights as education, employment, and adequate standard of living) was viewed as heavily contingent on the level of economic development of the state. Are there common provisions to the ICCPR and ICESCR? YES. Common Article 1 of the two conventions recognize the Right to Self-Determination, by virtue of which all peoples have the right to determine their political status and freely pursue their 25 economic, social and cultural development . Further, all peoples may, for their own ends freely dispose of their natural wealth and resources and that in no case may a people be deprived of its own means of subsistence26. The recognition of the right to selfdetermination arose from a UN GA Resolution which equated the subjection of peoples to alien subjugation, domination, and exploitation to a denial of human rights and a violation of the UN 27Charter . What do states undertake upon being parties to the ICCPR? Each Stateparty undertakes to respect and to ensure to all individuals within its territoryand subject to its jurisdiction the rights recognized in the...Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status 28. The legal duty to ensure enjoyment of these rights implies an obligation to take positive steps to see to it first, that domestic laws are modified when necessary in order to comply with the State s international legal obligations; and second, that these laws are indeed effectively implemented in practice by all public organs and officials, such as the courts (including administrative tribunals),

prosecutors, police officers, prison officials, schools, the military, hospitals and the like. What are the rights guaranteed under ICCPR? These are the rightto life (art. 6;7), the right to freedom from torture or cruel, inhuman or degrading treatment or punishment, including a prohibition on being subjected to medical or scientific experimentation without one s free consent (art. 7;8), the rightto freedom from slavery, the slave-trade and servitude [art. 8(1) and (2)], theright to freedom from forced and compulsory labor [art. 8(3)], the right to liberty and security of person, including freedom from arbitrary arrest and detention (art 9;9), the right of persons deprived of their liberty to be treated withhumanity and with respect for the inherent dignity of the human person (art. 10;10), prohibition of imprisonment merely on the ground of inability to fulfil a contractual obligation (art. 11), liberty of movement and freedom to choose one s residence [art. 12(1)], the right to be free to leave any country, including one s

own [art. 12(2)], the right not to be arbitrarily deprived of the right to enterCommon Article 1, par.1, ICCPR and ICESCR. Common Article 1, par.2, ICCPR and ICESCR. Declaration on the Granting of Independence to Colonial Countries and Peoples (1960). 28 Article 2, ICCPR.26 27 25




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one s own country [art. 12(4)], certain legal safeguards against unlawful expulsions of aliens lawfully in the territory of a State party (art. 13;11), the rightto a fair hearing in criminal and civil cases by an independent and impartial tribunal (art. 14;12), freedom from ex post facto laws and the retroactive application of heavier penalties than those that could be imposed when the crime was committed (art. 15), the right to recognition as a person before the law (art. 16), the right not to be subjected to arbitrary or unlawful interference with one s privacy, family, home or correspondence or to unlawful attacks on one s honor and reputation (art. 17;13), the right to freedom of thought, conscience and religion(art. 18;14), the right to freedom of opinion and of expression (art. 19;15), prohibition of war propaganda and of advocacy of national, racial, or religious hatred constituting incitement to discrimination, hostility or violence (art. 20;16), the right to peaceful assembly (art. 21), the right to freedom of association (art. 22), the right to marry freely, to found a family and to equal rights and responsibilities of spouses as to marriage, during marriage and at its dissolution (art. 23;17), the right of the child to special protection without discrim

ination; the right to be registered upon birth and the right to a nationality (art. 24;18), the right to popular participation in public affairs; the right to vote in periodic elections by universal and equal suffrage and secret ballot, aswell as the right to have access to public service (art. 25;19), the right to equality before the law and the equal protection of the law (art. 26;20), and theright of minorities to enjoy their own culture, religion and language (art. 27.21). Can states derogate from their legal obligations under the ICCPR? Are therenon-derogable rights? YES. Article 4 of the ICCPR is known as the Derogation 29Clause . The strict conditions that govern the right of the States parties to resort to derogations from their legal obligations under said Article are: (1) thecondition of a public emergency which threatens the life of the nation. The State party envisaging a derogation must be facing a situation of exceptional threat that jeopardizes the nation s life, thus excluding minor or even more serious di

sturbances that do not affect the functioning of the State s democratic institutions or people s lives in general. (2) the condition of official proclamation: the existence of a public emergency which threatens the life of the nation must be officially proclaimed . As was explained during the drafting of article 4, the purpose thereof was to prevent States from derogating arbitrarily from their obligations under the Covenant when such an action was not warranted by events 30. (3) the condition of non-derogability of certain obligations. Article 4(2) of the Covenant enumerates some rights from which no derogation can ever be made even in the direst of situations. These rights are: the right to life (art. 6), the right tofreedom from torture or cruel, inhuman or degrading treatment or punishment (art. 7), the right to freedom from slavery, the slave-trade and servitude (art.29

8(1) and (2)), the right not to be imprisoned merely on the ground of inabilityto fulfil a contractual obligation (art. 11), the prohibition of ex post facto laws (art. 15), the right to legal personality (art. 16) and, lastly, the right to freedom of thought, conscience and religion (art. 18). However, it follows from the work of the Human Rights Committee that it is not possible to conclude a contrario that, because a specific right is not listed in article 4(2), it can necessarily be derogated from. Consequently, some rights may not be derogated frombecause they are considered to be inherent to the Covenant as a whole ; one such example is the right to judicial remedies in connection with arrests and detentions as set out in article 9(3) and (4); others may also be non-derogable because



they are indispensable to the effective enjoyment of the rights that are explicitly listed in article 4(2), such as the right to a fair trial for persons threatened with the death penalty. The Committee has further held under the Optional Protocol to the ICCPR that the right to be tried by an independent and impartial tribunal is an absolute right that may suffer no exception . (4) the condition of strict necessity. This condition means that the State party can only take measures derogating from its obligations under the ... Covenant to the extent strictly required by the exigencies of the situation ; as compared to the ordinary limitation provisions dealt with above, the condition of strict necessity compels a narrow construction of the principle of proportionality, in that the legislative measures taken must as such be strictly required by the exigencies of the emergencysituation; and, secondly, any individual measure taken on the basis of that legislation must likewise be strictly proportionate. It is thus necessary to consider whether the measures concerned are strictly required in order to deal with theemergency situation. (5) the condition of consistency with other internationallegal obligations. On the basis of this condition, the Human Rights Committee is, in principle, authorized to examine whether measures of derogation might be unlawful as being inconsistent with other international treaties, such as, for instance, other treaties for the protection of the individual or even internationalhumanitarian law or customary international law. (6) the condition of non-discrimination. The measures of derogation may not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin (art. 4(1) infine). This is an important condition since it is particularly in emergency situations that there is a risk of imposing discriminatory measures which have no ob

jective and reasonable justification. (7) the condition of international notification. In order to avail itself of the right of derogation, a State party must,lastly, also fulfill the conditions set out in article 4(3) of the Covenant, byimmediately submitting a notification of derogation to the other States partiesthrough the Secretary-General. In this notification it must describe the provisions from which it has derogated and ... the reasons by which it was actuated . A second notification must be submitted on the date on which it terminates such derogation . How are the provisions of the ICCPR implemented? Under the ICCPR and its Optional Protocol, there are three procedures for implementing the provisions ofthe ICCPR: (1) the 31 reportorial procedure , (2) the inter-State communications32 33 procedure , and (3) the individual communications procedure .31

Article 4 (1): In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to thepresent Covenant may take measures derogating from their obligations under thepresent Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. (2): No derogationfrom articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made underthis provision. 30 UN doc. E/CN.4/SR.195, p. 16, para. 82; explanation given byMr. Cassin of France.

ICCPR, Article 40 (1) The States Parties to the present Covenant undertake to submit reports on the measures they have adopted which give effect to the




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What do states undertake upon being parties to the ICESCR?rights recognized herein and on the progress made in the enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant for theState Parties concerned; (b) Thereafter whenever the Committee so requests. (2)All reports shall be submitted to the Secretary-General of the United Nations, who shall transmit them to the Committee for consideration. Reports shall indicate the factors and difficulties, if any, affecting the implementation of the present Covenant. (3) The Secretary-General of the United Nations, may, after consultation with the Committee, transmit to the specialized agencies concerned copiesof such parts of the reports as may fall within their field of competence. (4)The Committee shall study the reports submitted by the States Parties to the present Covenant. It shall transmit its reports, and such general comments as it may consider appropriate, to the States Parties. The Committee may also transmit to the Economic and Social Council these comments along with the copies of the reports it has received from States Parties to the present Covenant. (5) States Parties to the present Covenant may submit to the Committee observations on any co

mments that may be made in accordance with paragraph 4 of this article. 32 ICCPR, Article 41 (1) A State Party to the present Covenant may at any time declare under this article that it recognizes the competence of the Committee to receiveand consider communications to the effect that a State Party claims that anotherState Party is not fulfilling its obligations under the present Covenant. Communications under this article may be received and considered only if submitted bya State Party which has made a declaration recognizing in regard to itself thecompetence of the Committee. No communication shall be received by the Committeeif it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure: (a) If a State Party to the present Covenant considers that another State Party is not giving effect to the provisions of the present Covenant,it may, by written communication, bring the matter to the attention of that Stat

e Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation, or any other statement in writing clarifying the matter which should include, to theextent possible and pertinent, reference to domestic procedures and remedies taken, pending, or available in the matter; (b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee, by notice given to the Committee and to the other State; (c) The Committee shall deal with a matter referred to it only after it has ascertained that all available domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where applicationof the remedies is unreasonably prolonged; (d) The Committee shall hold closed

meetings when examining communications under this article; (e) Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for human rights and fundamental freedoms as recognized in the present Covenant; (f) In any matter referred to it, the Committee maycall upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information; (g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is beingconsidered in the Committee and to make submissions orally and/or in writing; (h) The Committee shall, within twelve months after the date of receipt of notice



under subparagraph (b), submit a report: (i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached; (ii) If a solution within theterms of subparagraph (e) is not reached, the Committee shall confine its reportto a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned. (2) The provisions of this article shall come into force when ten StatesParties to the present Covenant have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to theother States Parties. A declaration may be withdrawn at any time by notification to the SecretaryGeneral. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received after the notification of withdrawal of the declaration has been received by theSecretary-General, unless the State Party concerned has made a new declaration.33 Optional Protocol to the ICCPR, Article 1: A State Party to the Covenant thatbecomes a Party to the present Protocol recognizes the competence of the Committee to receive and consider communications from individuals subject

Each State party to the International Covenant on Economic, Social and CulturalRights undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its ava

ilable resources, with a view to achieving progressively the full realization ofthe rights recognized in the ... Covenant by all appropriate means, including particularly the adoption of legislative measures (art. 2(1)). Although the Covenant thus provides for progressive realization and acknowledges the constraints dueto limits of available resources , the Committee on Economic, Social and CulturalRights emphasized in General Comment No. 3 that it also imposes various obligations which are of immediate effect . In the view of the Committee, two of these areof particular importance, namely: first, the undertaking in article 2(2) to guarantee that the rights enunciated in the ... Covenant will be exercised without discrimination on certain specific grounds; and second, the undertaking in article2(1) to take steps , which in itself, is not qualified or limited by other considerations . In other words, while the full realization of the relevant rights may be achieved progressively, steps towards that goal must be taken within a reasonably

short time after the Covenant s entry into force for the States concerned. Such steps should be deliberate, concrete and targeted as clearly as possible towardsmeeting the obligations recognized in the Covenant . What are the rights guaranteed under the ICESCR? These are the right to work, including the right to gain one sliving by work freely chosen or accepted (art. 6); the right to enjoy just andfavorable conditions of work, including fair remuneration for work of equal value without distinction of any kind (art. 7); the right to form trade unions and join the trade union of one s choice (art. 8); the right to social security, including social insurance (art. 9); protection and assistance to the family; marriageto be freely entered into; maternity protection; protection and assistance to children and young persons (art. 10); right to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions (art. 11); the right to the highest attainable standard of p

hysical and mental health (art. 12); the right to education (art. 13;35); the undertaking to develop detailed plans of action where compulsory primary educationis not yet secured (art. 14;36); the right to take part in cultural life, to enjoy the benefits of scientific progress and to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which one is the author (art. 15). Is the exercise of the rights under the ICESCR absolute in character? NO. The ICESCR contains a general limitation in article 4, whereby the State may subject the enjoyment of the rights guaranteed by the Covenant only to such limitations as are determined by law onlyin so far as this may be compatible with the nature of these rights and solely f






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unions, as well as the right of trade unions to function freely, may be subjected to no restrictions other than those prescribed by law and which are necessary in a democratic society in the interests of national security or public order orfor the protection of the rights and freedoms of others . From the travaux préparatoires relating to article 4 it is clear that it was considered important to include the condition that limitations had to be compatible with a democratic society, that is to say, a society based on respect for the rights and freedoms of others ; otherwise, it was suggested, the text might instead very well serve the ends ofdictatorship . Can states derogate from their legal obligations under the ICESCR?NO. Unlike the ICCPR, the ICESCR does not contain any provision permitting derogations from the legal obligations incurred thereunder. How are the provisions of the ICESCR implemented? Under article 16 of the ICESCR, the parties undertaketo submit reports on the measures which they have adopted and the progress made in achieving the observance of the rights recognized therein, and it is the UN Economic and Social Council that is formally entrusted with monitoring compliance with the terms thereof (art. 16(2)(a)). However, since the early arrangements for

examining the periodic reports were not satisfactory, the Council created, in 1985, the Committee on Economic, Social and Cultural Rights as an organ of independent experts parallel to the Human Rights Committee set up under the ICCPR. TheCommittee consists of eighteen members who serve in their individual capacity.As is the case with the Human Rights Committee, the reports submitted by the States parties are considered in public meetings and in the presence of representatives of the State party concerned. The discussion is designed to achieve a constructive and mutually rewarding dialogue so that the Committee members can get a fuller picture of the situation prevailing in the country concerned, thereby enabling them to make the comments they believe most appropriate for the most effective implementation of the obligations contained in the Covenant .

1992. When he arrived, the radio station was surrounded by soldiers. Milomir Sta

kić, who before the take-over had been Vice Chairman of the Municipal Assembly andafterwards became the Chairman of the Serb Municipal Assembly, explained on theradio what had happened and the SDS's intentions with regard to Prijedor municipality. The attack on the nearby town of Kozarac on 24 May 1992, which includedtwo days of artillery barrage and an assault by a mechanised brigade of troops,resulted in the killing of some 800 civilians out of a population of around 4,000. When the town had been captured, the Bosnian Serb forces proceeded to round up and drive out of the area on foot the entire non-Serb population. During the course of the ethnic cleansing of Kozarac, many more civilians were beaten, robbed and murdered by Bosnian Serb paramilitary and military forces. During the occupation of Kozarac, Duško Tadić participated in the collection and forced transfer ofcivilians. As the refugees were herded down the old Prijedor-Banja Luka road inthe direction of Kozaruša, many of them were singled out and, once removed from t

he column, were shot by members of the Bosnian Serb forces. After the take-overof Prijedor and the outlying areas, the Serb forces confined thousands of Muslimand Croat civilians in the Omarska, Keraterm and Trnopolje camps. The establishment of these camps was part of the Greater Serbia plan to expel nonSerbs from thePrijedor Municipality. During confinement, both male and female prisoners weresubjected to severe mistreatment, which included beatings, sexual assaults, torture and executions. They were also subjected to degrading psychological abuse, by being forced to spit on the Muslim flag, sing Serbian nationalist songs or togive the Serbian three-fingered salute. Drinking water at Omarska was often denied to the prisoners for long periods and was, in any event, unsuitable for human



consumption, causing sickness. There was very little in the way of lavatories;prisoners had to wait hours before being allowed to use them, and sometimes risked being beaten if they asked to use them. Prisoners were often forced to defecate and urinate in their rooms. There were no effective washing facilities, and men and their clothes quickly became filthy and skin diseases were prevalent, aswere acute cases of diarrhoea and dysentery. The crowded rooms were stifling inthe summer heat and often guards refused to open windows in rooms crowded to overflowing, or demanded the handing over of any possessions prisoners had managedto retain as the price of an open window or a plastic jar of water. On 7 May 1997, the Trial Chamber rendered its judgment, convicting Duško Tadić on the basis of individual criminal responsibility (Article 7(1) of the Statute of the Tribunal)with (1) Crimes against humanity (Article 5 of the Statute - persecutions on political, racial and/or religious grounds; inhumane acts), and (2) Violations of the laws or customs of war (Article 3 thereof - cruel treatment). He was meted out a prison sentence of 20 years. Both the Defense and the Prosecution appealed the Trial Chamber s Decision on different grounds. The Defense relies on the argument that there has been a denial of the right to a fair trial and that there hasbeen a mistake of facts. The Prosecution raises issues of international law, which will be discussed below: ISSUES OF INTERNATIONAL LAW RAISED BY THE PROSECUTION ON APPEAL Whether or not the victims were protected persons under Article 2 of the Tribunal s Statute (Trial Chamber held that some of them were not; Appeals Court found that the victims are protected persons, and so the convictions of Tadicwere increased)

2. INTERNATIONAL CRIMINAL LAWInternational Criminal Tribunals34 A. THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (THE TADIC CASE) On 30 April 1992, the Serb Democratic Party( SDS ) conducted a bloodless take-over of the town of Prijedor with the aid of themilitary and police forces. The actual take-over was conducted in the early hours of the morning when armed Serbs took up positions at checkpoints throughout Prijedor, with soldiers and snipers on the roofs of the main buildings. Militaryposts were erected all over the city and the Serbian flag with four Cyrillic S'swas flown from the City Hall. Yugoslav People s Army ( JNA ) soldiers, wearing a variety of uniforms, occupied all of the prominent institutions such as the radio station, medical centre and bank. They entered buildings, declared that they had taken power and announced their decision to rename the Prijedor Municipality Srpska opština Prijedor (Serb Municipality of Prijedor). Muharem Nezirević, the Editor-in-

Chief of Radio Prijedor at the time, was summoned to the radio station in the early morning of 30 April34

Thanks to Ceejay Balisacan for this portion




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1. When can there be grave breaches of international humanitarian law under Article 2 of the Tribunal s Statute? When the [1] conflict is international in character AND [2] victims were protected persons . 2. When can a conflict be considered asinternational in character? An armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflictbreaking out on the territory of a State, it may become international if [1] another State intervenes in that conflict through its troops, [2] alternatively ifsome of the participants in the internal armed conflict act on behalf of that other State 3. What is the extent of control necessary to conclude that a group is a de facto organ of a state? International rules do not always require the same degree of control over armed groups or private individuals for the purpose ofdetermining whether an individual not having the status of a State official under internal legislation can be regarded as a de facto organ of the State. The extent of the requisite State control varies. Where the question at issue is whether a single private individual or a group that is not militarily organised has acted as a de facto State organ when performing a specific act, it is necessary to

ascertain whether specific instructions concerning the commission of that particular act had been issued by that State to the individual or group in question;alternatively, it must be established whether the unlawful act had been publiclyendorsed or approved ex post facto by the State at issue. By contrast, controlby a State over subordinate armed forces or militias or paramilitary units may be of an overall character (and must comprise more than the mere provision of financial assistance or military equipment or training). This requirement, however,does not go so far as to include the issuing of specific orders by the State, or its direction of each individual operation. Under international law it is by no means necessary that the controlling authorities should plan all the operations of the units dependent on them, choose their targets, or give specific instructions concerning the conduct of military operations and any alleged violations of international humanitarian law. The control required by international law may

be deemed to exist when a State (or, in the context of an armed conflict, the Party to the conflict) has a role in organising, coordinating or planning the military actions of the military group, in addition to financing, training and equipping or providing operational support to that group. Acts performed by the groupor members thereof may be regarded as acts of de facto State organs regardlessof any specific instruction by the controlling State concerning the commission of each of those acts. 4. Who are protected persons ? Article 4(1) of Geneva Convention IV (protection of civilians), applicable to the case at issue, defines protected persons - hence possible victims of grave breaches as those "in the hands ofa Party to the conflict or Occupying Power of which they are not nationals". Inother words, subject to the provisions of Article 4(2), the Convention intends to protect civilians (in enemy territory, occupied territory or the combat zone)who do not have the nationality of the belligerent in whose hands they find them

selves, or who are stateless persons. In addition, as is apparent from the preparatory work, the Convention also intends to protect those civilians in occupiedterritory who, while having the nationality of the Party to

the conflict in whose hands they find themselves, are refugees and thus no longer owe allegiance to this Party and no longer enjoy its diplomatic protection. Nationals of a neutral State or a cobelligerent State are not treated as protectedpersons unless they are deprived of or do not enjoy diplomatic protection. In other words, those nationals are not protected persons as long as they benefit from the normal diplomatic protection of their State; when they lose it or in any even



t do not enjoy it, the Convention automatically grants them the status of protected persons . 5. Were the victims in this case protected persons? YES. In the instant case the Bosnian Serbs, including Tadic, arguably had the same nationality asthe victims, that is, they were nationals of Bosnia and Herzegovina. However, it has been shown that the Bosnian Serb forces acted as de facto organs of another State, namely, the FRY. Thus the requirements set out in Article 4 of Geneva Convention IV are met: the victims were protected persons as they found themselvesin the hands of armed forces of a State of which they were not nationals. It might be argued that before 6 October 1992, when a Citizenship Act was passed in Bosnia and Herzegovina, the nationals of the FRY had the same nationality as the citizens of Bosnia and Herzegovina, namely the nationality of the Socialist FederalRepublic of Yugoslavia. Even assuming that this proposition is correct, the position would not alter from a legal point of view. Article 4 of Geneva ConventionIV, if interpreted in the light of its object and purpose, is directed to the protection of civilians to the maximum extent possible. It therefore does NOT make its applicability dependent on formal bonds and purely legal relations. Its primary purpose is to ensure the safeguards afforded by the Convention to those civilians who do not enjoy the diplomatic protection, and correlatively are not subject to the allegiance and control, of the State in whose hands they may find themselves. In granting its protection, Article 4 intends to look to the substance of relations, not to their legal characterization as such. Hence, even if in the circumstances of the case the perpetrators and the victims were to be regarded as possessing the same nationality, Article 4 would still be applicable. Indeed, the victims did not owe allegiance to (and did not receive the diplomatic pro

tection of) the State (the FRY) on whose behalf the Bosnian Serb armed forces had been fighting. Whether or not crimes against humanity can be committed for purely personal motives (Trial Chamber held in the negative35; Appeals Court held that motives are an irrelevant factor to consider in dealing with crimes againsthumanity) 1. Is mens rea relevant in crimes against humanity? ONLY TO A CERTAINEXTENT. It may be inferred from the words directed against any civilian population in Article 5 of the Statute that the acts of the accused must comprise part ofa pattern of35

In the Judgment, the Trial Chamber identified, from among the elements which hadto be satisfied before a conviction for crimes against humanity could be recorded, the need to prove the existence of an armed conflict and a nexus between the

acts in question and the armed conflict. As to the nature of the nexus required, the Trial Chamber found that, subject to two caveats, it is sufficient for thepurposes of crimes against humanity that the act occurred ³in the course or duration of an armed conflict´. The first caveat was ³that the act be linked geographically as well as temporally with the armed conflict´. The second caveat was that theact and the conflict must be related or, at least, that the act must ³not be unrelated to the armed conflict´. The Trial Chamber further held that the requirement that the act must ³not be unrelated´ to the armed conflict involved two aspects. First, the perpetrator must know of the broader context in which the act occurs. Secondly, the act must not have been carried out for the purely personal motives ofthe perpetrator.





red by the notion of such crimes, may not have been perpetrated on political, racial or religious grounds as specified in paragraph (h) of Article 5. In light of the humanitarian goals of the framers of the Statute, one fails to see why they should have seriously restricted the class of offences coming within the purview of crimes against humanity , thus leaving outside this class all the possible instances of serious and widespread or systematic crimes against civilians on account only of their lacking a discriminatory intent. For example, a discriminatoryintent requirement would prevent the penalization of random and indiscriminateviolence intended to spread terror among a civilian population as a crime against humanity. A fortiori, the object and purpose of Article 5 would be thwarted were it to be suggested that the discriminatory grounds required are limited to the five grounds put forth by the Secretary-General in his Report and taken up (with the addition, in one case, of the further ground of gender) in the statementsmade in the Security Council by three of its members. Such an interpretation ofArticle 5 would create significant lacunae by failing to protect victim groupsnot covered by the listed discriminatory grounds. The experience of Nazi Germanydemonstrated that crimes against humanity may be committed on discriminatory grounds other than those enumerated in Article 5 (h), such as physical or mental disability, age or infirmity, or sexual preference. Similarly, the exterminationof class enemies in the Soviet Union during the 1930s (admittedly, as in the caseof Nazi conduct before the Second World War, an occurrence that took place in times of peace, not in times of armed conflict) and the deportation of the urban educated of Cambodia under the Khmer Rouge between 1975-1979, provide other instances which would not fall under the ambit of crimes against humanity based on th

e strict enumeration of discriminatory grounds suggested by the Secretary-General in his Report. B. THE INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST (TOKYOWAR CRIMES TRIBUNAL) The trial resulted from numerous war crimes attributed to the Empire of Japan (the entire list of atrocities was cited in the decision andit is long. Very long.) as having been committed during the entire period immediately preceding, and during, the World War II. The judgment of the Tribunal first lists down all the sources of international legal obligations of Japan towardsthe Allied Powers and all nations that they occupied during the war, such obligations having been found to have been breached. These obligations, together withtheir corresponding sources, are: 1. Obligations to preserve the territorial and administrative independence of China. United States Declaration of 1901 Identic Notes of 1908 Nine-Power Treaty of 1922 Covenant of the League of Nations of 1920 2. Obligations to preserve for the world the principle of equal and impartia

l trade with all parts of China, the socalled "Open Door Policy". United StatesDeclaration of 1900 to 1901 Identic Notes of 1908 Nine-Power Treaty of 1922




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3. Obligations to suppress the manufacture, traffic in, and use of opium and analogous drugs. Opium Convention of 1912 League of Nations of 1925 Opium Convention of 1931 4. Obligations to respect the territory of Powers interested in the Pacific. Four-Power Treaty of 1921 Notes to Netherlands and Portugal of 1926 Covenant of the League of Nations of 1920 5. Obligations to keep inviolate the territory of neutral Powers. Hague V of 1907 6. Obligations to solve disputes betweennations by diplomatic means, or mediation, or arbitration. Identic Notes of 1908Four-Power Treaty of 1921 Nine-Power Treaty of 1922 Hague of 1907 Pact of Parisof 1928 7. Obligations designed to ensure the pacific settlement of international disputes. Hague of 1899 Hague of 1907 Pact of Paris of 1928 8. Obligation togive previous warning before commencing hostilities. Hague III of 1907 9. Obligations relative to humane conduct in warfare. Hague IV of 1907, Geneva Red Crossof 1929 Geneva P.O.W. of 1919 In addition, the relevant principles of international law enunciated in the decision of the Tribunal were those made in response to the jurisdictional challenge posed by the accused Japanese war officials. These jurisdictional defenses are: 1. The Allied Powers acting through the Supreme C

ommander have no authority to include in the Charter of the Tribunal and to designate as justiciable "Crimes against Peace" (Article 5(a)); 2. Aggressive war isnot per se illegal and the Pact of Paris of 1928 renouncing war as an instrument of national policy does not enlarge the meaning of war crimes nor constitute war a crime; 3. War is the act of a nation for which there is no individual responsibility under international law; 4. The provisions of the Charter are "ex postfacto" legislation and therefore illegal;

5. The Instrument of Surrender which provides that the Declaration of Potsdam will be given effect imposes the condition that Conventional War Crimes as recognized by international law at the date of the Declaration (26 July, 1945) would bethe only crimes prosecuted; 6. Killings in the course of belligerent operationsexcept in so far as they constitute violations of the rules of warfare or the l

aws and customs of war are the normal incidents of war and are not murder; 7. Several of the accused being prisoners of war are triable by court martial as provide by the Geneva Convention 1929 and not by this Tribunal. To these defenses the Tribunal quotes the same passage in the Nuremberg Tribunal decision before which the same challenges were raised by German war officials. The passage reads: The Charter [referring to the Charter creating the Tribunal] is not an arbitrary exercise of power on the part of the victorious nations but is the expression ofinternational law existing at the time of its creation. The question is what wasthe legal effect of this pact (Pact of Paris August 27, 1928)? The Nations whosigned the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy and expressly renounced it. After the signing of the pact any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war a

s an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such awar, with its inevitable and terrible consequences, are committing a crime in so doing. The principle of international law which under certain circumstances protects the representative of a state cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment inappropriate proceedings. The maxim 'nullum crimen sine lege' is not a limitationof sovereignty but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked n



eighbouring states without warning is obviously untrue for in such circumstancesthe attacker must know that he is doing wrong, and so far from it being unjustto punish him, it would be unjust if his wrong were allowed to go unpunished. The Charter specifically provides . . . 'the fact that a defendant acted pursuantto order of his Government or of a superior shall not free him from responsibility but may be considered in mitigation of punishment.' This provision is in conformity with the laws of all nations . . . The true test which is found in varying degrees in the criminal law of most nations is not the existence of the orderbut whether moral choice was in fact possible . The Tribunal also established therationale for holding responsible government officials for the ill-treatment ofprisoners during the war. In placing the burden of ensuring the proper treatmentof prisoners upon the government (rather than merely the military officers actually engaged in war in the field) of the state holding them in detention, the Tribunal ratiocinated:




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Prisoners taken in war and civilian internees are in the power of the Governmentwhich captures them. This was not always the case. For the last two centuries, however, this position has been recognised and the customary law to this effect was formally embodied in the Hague Convention No. IV in 1907 and repeated in theGeneva Prisoner of War Convention of 1929. Responsibility for the care of prisoners of war and of civilian internees (all of who we will refer to as "prisoners") rests therefore with the Government having them in possession. This responsibility is not limited to the duty of mere maintenance but extends to the prevention of mistreatment. In particular, acts of inhumanity to prisoners which are forbidden by the customary law of nations as well as by conventions are to be prevented by the Government having responsibility for the prisoners. In the dischargeof these duties to prisoners Governments must have resort to persons. Indeed theGovernments responsible, in this sense, are those persons who direct and control the functions of Government. In this case and in the above regard we are concerned with the members of the Japanese Cabinet. The duty to prisoners is not a meaningless obligation cast upon a political abstraction. It is a specific duty to

be performed in the first case by those persons who constitute the Government.In the multitude of duties and tasks involved in modern government there is of necessity an elaborate system of subdivision and delegation of duties. In the case of the duty of Governments to prisoners held by them in time of war those persons who constitute the Government have the principal and continuing responsibility for their prisoners, even though they delegate the duties of maintenance andprotection to others. In general the responsibility for prisoners held by Japanmay be stated to have rested upon: 1. Members of the Government; 2. Military orNaval Officers in command of formations having prisoners in their possession; 3.Officials in those departments which were concerned with the well-being of prisoners; 4. Officials, whether civilian, military, or naval, having direct and immediate control of prisoners. It is the duty of all those on whom responsibilityrests to secure proper treatment of prisoners and to prevent their ill-treatment

by establishing and securing the continuous and efficient working of a system appropriate for these purposes. Such persons fail in this duty and become responsible for ill-treatment of prisoners if: 1. They fail to establish such a system.2. If having established such a system, they fail to secure its continued and efficient working. Each of such persons has a duty to ascertain that the system is working and if he neglects to do so he is

responsible. He does not discharge his duty by merely instituting an appropriatesystem and thereafter neglecting to learn of its application. An Army Commanderor a Minister of War, for example, must be at the same pains to ensure obedience to his orders in this respect as he would in respect of other orders he has issued on matters of the first importance. Nevertheless, such persons are not responsible if a proper system and its continuous efficient functioning be provided

for and conventional war crimes be committed unless: 1. They had knowledge thatsuch crimes were being committed, and having such knowledge they failed to takesuch steps as were within their power to prevent the commission of such crimes in the future, or 2. They are at fault in having railed to acquire such knowledge. If, such a person had, or should, but for negligence or supineness, have had such knowledge he is not excused for inaction if his Office required or permittedhim to take any action to prevent such crimes. On the other hand it is not enough for the exculpation of a person, otherwise responsible, for him to show thathe accepted assurances from others more directly associated with the control ofthe prisoners if having regard to the position of those others, to the frequency



of reports of such crimes, or to any other circumstances he should have been put upon further enquiry as to whether those assurances were true or untrue. Thatcrimes are notorious, numerous and widespread as to time and place are matters to be considered in imputing knowledge. A member of a Cabinet which collectively,as one of the principal organs of the Government, is responsible for the care of prisoners is not absolved from responsibility if, having knowledge of the commission of the crimes in the sense already discussed, and omitting or failing tosecure the taking of measures to prevent the commission of such crimes in the future, he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the charge is not directly concerned with the care of prisoners. A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, but elects to remain in the Cabinet thereby continuingto participate in its collective responsibility for protection of prisoners he willingly assumes responsibility for any ill-treatment in the future. Army of Navy Commanders can, by order, secure proper treatment and prevent ill-treatment ofprisoners. So can Ministers of War and of the Navy. if crimes are committed against prisoners under their control, of the likely occurance of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventionalwar crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes.




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Department Officials having knowledge of ill-treatment of prisoners are not responsible by reason of their failure to resign; but if their functions included the administration of the system of protection of prisoners and if they had or should have had knowledge of crimes and did nothing effective, to the extent of their powers, to prevent their occurrence in the future that they are responsible for such future crimes . C. THE NUREMBERG TRIBUNAL The trial resulted from the warcrimes and other atrocities imputed to German war officials during the World WarII. Like the Tokyo War Crimes Tribunal, the decision of the Tribunal in Nuremberg lists down (at length) all the atrocities allegedly committed by Germany during the war, particularly in European states that they have occupied and againstthe Jewish people who have become primary victims of its Aryanist campaign. Forthe purposes of international law, the following are some of the essential principles enunciated by the Tribunal in response to the various defenses raised by the accused German war officials. 1. FIRST DEFENSE: The humanitarian law provisions of the Hague Convention do not apply because some of the states who participated in the War were not parties to the Convention. The Tribunal rejects this pro

position and categorically states that the provisions of the Hague Convention are articulations of customary international law relating to warfare and so all states are bound to them regardless of conventional obligations: It is argued thatthe Hague Convention does not apply in this case, because of the "general participation " clause in Article 2 of the Hague Convention of 1907. That clause provided: "The provisions contained in the regulations (Rules of Land Warfare referred to in Article 1 as well as in the present Convention do not apply except between contracting powers, and then only if all the belligerents are parties to theConvention." Several of the belligerents in the recent war were not parties tothis Convention. In the opinion of the Tribunal it is not necessary to decide this question. The rules of land warfare expressed in the Convention undoubtedly represented an advance over existing international law at the time of their adoption. But the Convention expressly stated that it was an attempt " to revise the

general laws and customs of war," which it thus recognised to be then existing,but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs ofwar which are referred to in Article 6 (b) of the Charter. 2. SECOND DEFENSE: The rules of warfare ceased to be applicable by the time the occupied territorieswere incorporated into Germany because, by then, they are to be treated as German territory and Germany can choose to deal with such territories as though theywere part of it.

The Tribunal rejects this argument, saying that the doctrine of subjugation is not applicable as long as there remains a force of resistance within the occupiedterritories, and as long as such territories were not sufficiently shown to have been incorporated into the occupying power through evidence: A further submissi

on was made that Germany was no longer bound by the rules of land warfare in many of the territories occupied during the war, because Germany had completely subjugated those countries and incorporated them into the German Reich, a fact which gave Germany authority to deal with the occupied countries as though they werepart of Germany. In the view of the Tribunal it is unnecessary in this case todecide whether this doctrine of subjugation, dependent as it is upon military conquest, has any application where the subjugation is the result of the crime ofaggressive war. The doctrine was never considered to be applicable so long as there was an army in the field attempting to restore the occupied countries to their true owners, and in this case, therefore, the doctrine could not apply to any



territories occupied after the 1st September, 1939. As to the war crimes committed in Bohemia and Moravia, it is a sufficient answer that these territories were never added to the Reich, but a mere protectorate was established over them. 3.THIRD DEFENSE: There were committed no crimes against humanity during the war.The Tribunal only partly disagrees with this, because there was no sufficient evidence to establish that, before 1939, crimes against humanity have been committed. However, after 1939, crimes against humanity have undoubtedly been committedeither through (1) war crimes, which are also crimes against humanity or (2) crimes committed in the execution of an aggressive war, the latter being under thejurisdiction of the Tribunal and as such would also constitute crimes against humanity:

With regard to crimes against humanity, there is no doubt whatever that politicalopponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of,or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, o

r in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within themeaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the




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war, did not constitute war crimes, they were all committed in execution of, orin connection with, the aggressive war, and therefore constituted crimes againsthumanity. STATUTE OF THE INTERNATIONAL CRIMINAL COURT (Rome 36 Statute) OverviewThe Rome Statute established the International Criminal Court. This was done soto create a permanent tribunal which would deal with grave crimes that threatenthe peace, security and well-being of the world. This Tribunal shall be complementary to national criminal jurisdictions. PART 1 ESTABLISHMENT OF THE COURT Art1 Establishes the ICC as a permanent institution having jurisdiction over mostserious crimes of national concern and shall be complementary to national criminal jurisdictions. Art 3 The seat of the Court is in the Netherlands at Hague Art4 The Court shall have international legal personality. It shall also have suchlegal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes. PART 2 JURISDICTION, ADMISSIBILITY, AND APPLICABLE LAW Art 5 Jurisdiction The jurisdiction of the Court is limited to the following crimes a) b) c) d) Genocide Crimes against humanity War crimes Crime of aggression Court shall exercise jurisdiction over this once a provision is adopted defini

ng this crime.

(e) Imprisonment or other severe deprivation of physical liberty in violation offundamental rules of international law; (f) Torture; (g) Rape, sexual slavery,enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universallyrecognized as impermissible under international law, in connection with any actreferred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. However, the last element

should not be interpreted as requiring proof that the perpetrator had knowledgeof all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last elementindicates that this mental element is satisfied if the perpetrator intended to further such an attack. Attack directed against a civilian population in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. Art 8 War Crimes The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.

Art 6 Genocide - acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such: (a) Killing members of thegroup; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring aboutits physical destruction in whole or in part; (d) Imposing measures intended toprevent births within the group; (e) Forcibly transferring children of the group to another group. Art 7 Crimes against humanity -any of the following acts when committed as part of a (1) widespread or systematic attack directed against any civilian population (2) with knowledge of the attack (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population;



There is no requirement for a legal evaluation by the perpetrator as to the existence of an armed conflict or its character as international or non-international; In that context there is no requirement for awareness by the perpetrator of the facts that established the character of the conflict as international or non-international; There is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms took place in the context of and was associated with . 2. For the purpose of this Statute, "war crimes" means: (a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention

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(b) Other serious violations of the laws and customs applicable in internationalarmed conflict, within the established framework of international law, namely,any of the following acts: (c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed againstpersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause: (d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts ofviolence or other acts of a similar nature. Article 11 Jurisdiction ratione temporis 1. The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute. 2. If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only withrespect to crimes committed after the entry into force of this Statute for thatState, unless that State has made a declaration under article 12, paragraph 3.

Article 12 Preconditions to the exercise of jurisdiction 1. State Party acceptsthe jurisdiction of ICC 2. Before exercising jurisdiction, one or more of the following States shall be Parties to the Statute or shall have accepted the jurisdiction of ICC (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 3. If the acceptance of a State not a Party tothis Statute -by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. Art 13 Exerciseof jurisdiction if: (a) referred to the Prosecutor by a State Party (b) referredto the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or (c) The Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15 Article 14 Referral of a

situation by a State Party Article 15 Prosecutor

1. The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court. 2. The Prosecutor shall analyse the seriousness of the information received. 3. If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or sheshall submit to the Pre-Trial Chamber a request for authorization of an investigation. 4. If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation, without prejudice to subsequent determinations by the Court with regard to the jurisdiction andadmissibility of a case. 5. The refusal of the Pre-Trial Chamber to authorize th

e investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence regarding the same situation. 6. If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new factsor evidence. Article 16 Deferral of investigation or prosecution No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chap



ter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions. Article 17 Issues of admissibility 1. A case is inadmissible where: (a) It is beinginvestigated or prosecuted by a State which has jurisdiction over it, unless theState is unwilling or unable genuinely to carry out the investigation or prosecution; (b) It has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute; (c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article20, paragraph 3; (d) The case is not of sufficient gravity to justify further action by the Court. 2. In order to determine unwillingness in a particular case,the Court shall consider, having regard to the principles of due process recognized by international law, whether one or more of the following exist, as applicable:




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(a) The proceedings made to shield the person concerned from criminal responsibility (b) There has been an unjustified delay in the proceedings (c) The proceedings were not or are not being conducted independently or impartially, 3. In order to determine inability in a particular case, the Court shall consider whether,due to a total or substantial collapse or unavailability of its national judicial system, the State is unable to obtain the accused or the necessary evidence and testimony or otherwise unable to carry out its proceedings. Article 20 Ne bisin idem 1. Except as provided in this Statute, no person shall be tried beforethe Court with respect to conduct which formed the basis of crimes for which theperson has been convicted or acquitted by the Court. 2. No person shall be tried by another court for a crime referred to in article 5 for which that person has already been convicted or acquitted by the Court. 3. No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings inthe other court: (a) Were for the purpose of shielding the person concerned fromcriminal responsibility for crimes within the jurisdiction of the Court; or (b)

Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring theperson concerned to justice. Article 21 Applicable law 1. The Court shall apply:(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the establishedprinciples of the international law of armed conflict; (c) Failing that, generalprinciples of law derived by the Court from national laws of legal systems of the world including, as appropriate, the national laws of States that would normally exercise jurisdiction over the crime, provided that those principles are notinconsistent with this Statute and with international law and internationally recognized norms and standards. 2. The Court may apply principles and rules of la

w as interpreted in its previous decisions. 3. The application and interpretation of law pursuant to this article must be consistent with internationally recognized human rights, and be without any adverse distinction founded on grounds such as

gender as defined in article 7, paragraph 3, age, race, colour, language, religion or belief, political or other opinion, national, ethnic or social origin, wealth, birth or other status.

PART 3. GENERAL PRINCIPLES OF CRIMINAL LAW Article 22 Nullum crimen sine lege (No crime if there is no law punishing it) The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prose

cuted or convicted. Article 23 Nulla poena sine lege A person convicted by the Court may be punished only in accordance with this Statute. Article 24 Non-retroactivity ratione personae 1. No person shall be criminally responsible under thisStatute for conduct prior to the entry into force of the Statute. 2. In the event of a change in the law applicable to a given case prior to a final judgement,the law more favourable to the person being investigated, prosecuted or convicted shall apply. Article 25 Individual criminal responsibility In accordance withthis Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another p



erson, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs oris attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;




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(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crimeshall not be liable for punishment under this Statute for the attempt to committhat crime if that person completely and voluntarily gave up the criminal purpose. Article 26 Exclusion of jurisdiction over persons under eighteen Article 29 Non-applicability of statute of limitations

been caused by duress resulting from a threat of imminent death or of continuingor imminent serious bodily harm against that person or another person, and theperson acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided.Such a threat may either be: (i) Made by other persons; or (ii) Constituted byother circumstances beyond that person's control. Article 32 Mistake of fact ormistake of law

The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations. Article 30 Mental element 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed withintent and knowledge. 2. For the purposes of this article, a person has intentwhere: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence oris aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly. Article 31 Grounds for excluding criminal responsibility 1. In addition to other grounds for excluding criminal responsibility pr

ovided for in this Statute, a person shall not be criminally responsible if, atthe time of that person's conduct: (a) The person suffers from a mental disease(b) The person is in a state of intoxication unless the person has become voluntarily intoxicated under such circumstances that the person knew, or disregardedthe risk, that, as a result of the intoxication, he or she was likely to engagein conduct constituting a crime within the jurisdiction of the Court; (c) The person acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person oranother person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate tothe degree of danger to the person or the other person or property protected. (d) The conduct which is alleged to constitute a crime within the jurisdiction ofthe Court has

1. A mistake of fact shall be a ground for excluding criminal responsibility only if it negates the mental element required by the crime. 2. A mistake of law asto whether a particular type of conduct is a crime within the jurisdiction of the Court shall not be a ground for excluding criminal responsibility. A mistakeof law may, however, be a ground Article 33 Superior orders and prescription oflaw 1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whethermilitary or civilian, shall not relieve that person of criminal responsibility unless: (a) The person was under a legal obligation to obey orders of the Governm



ent or the superior in question; (b) The person did not know that the order wasunlawful; and (c) The order was not manifestly unlawful. 2. For the purposes ofthis article, orders to commit genocide or crimes against humanity are manifestly unlawful.

International Humanitarian Law A. THE GENEVA CONVENTIONS37

The First Convention Convention (I) for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949. WHEN DOES IT APPLY Art. 2. In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or ofany other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

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The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets withno armed resistance. Although one of the Powers in conflict may not be a partyto the present Convention, the Powers who are parties thereto shall remain boundby it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. WHAT IS REQUIRED [who are the protected people; how to treat them]Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely,without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with r

espect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflictshould further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application ofthe preceding provisions shall not affect the legal status of the Parties to the conflict. Art. 4. Neutral Powers shall apply by analogy the provisions of the

present Convention to the wounded and sick, and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict, received or interned in their territory, as well as to dead persons found. Art. 5. Forthe protected persons who have fallen into the hands of the enemy, the present Convention shall apply until their final repatriation. Art. 7. Wounded and sick,as well as members of the medical personnel and chaplains, may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, ifsuch there be. Art. 9. The provisions of the present Convention constitute no obstacle to the humanitarian activities which the International Committee of the Red Cross or any other impartial humanitarian

organization may, subject to the consent of the Parties to the conflict concerne

d, undertake for the protection of wounded and sick, medical personnel and chaplains, and for their relief. CHAPTER II. WOUNDED AND SICK Art. 12. Members of thearmed forces and other persons mentioned in the following Article, who are wounded or sick, shall be respected and protected in all circumstances. They shall be treated humanely and cared for by the Party to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shall be strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance an



d care, nor shall conditions exposing them to contagion or infection be created.Only urgent medical reasons will authorize priority in the order of treatment to be administered. Women shall be treated with all consideration due to their sex. The Party to the conflict which is compelled to abandon wounded or sick to the enemy shall, as far as military considerations permit, leave with them a partof its medical personnel and material to assist in their care. Art. 13. The present Convention shall apply to the wounded and sick belonging to the following categories: (1) Members of the armed forces of a Party to the conflict, as well asmembers of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistancemovements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany. (5) Members of crews, including masters, pilots and apprentices, of the merchant marin

e and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law. (6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openlyand respect the laws and customs of war. Art. 14. Subject to the provisions ofArticle 12, the wounded and sick of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them.




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Art. 15. At all times, and particularly after an engagement, Parties to the conflict shall, without delay, take all possible measures to search for and collectthe wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled. Whenever circumstances permit, an armistice or a suspension of fire shallbe arranged, or local arrangements made, to permit the removal, exchange and transport of the wounded left on the battlefield. Likewise, local arrangements maybe concluded between Parties to the conflict for the removal or exchange of wounded and sick from a besieged or encircled area, and for the passage of medical and religious personnel and equipment on their way to that area. DUTY TO RECORD THE WOUNDED/SICK/DEAD Art. 16. Parties to the conflict shall record as soon as possible, in respect of each wounded, sick or dead person of the adverse Party falling into their hands, any particulars which may assist in his identification. These records should if possible include: (a) designation of the Power on which he depends; (b) army, regimental, personal or serial number; (c) surname; (d) first name or names; (e) date of birth; (f) any other particulars shown on his iden

tity card or disc; (g) date and place of capture or death; (h) particulars concerning wounds or illness, or cause of death. As soon as possible the above mentioned information shall be forwarded to the Information Bureau described in Article 122 of the Geneva Convention relative to the Treatment of Prisoners of War of12 August 1949, which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency. Parties to the conflict shall prepare and forwardto each other through the same bureau, certificates of death or duly authenticated lists of the dead. They shall likewise collect and forward through the same bureau one half of a double identity disc, last wills or other documents of importance to the next of kin, money and in general all articles of an intrinsic or sentimental value, which are found on the dead. These articles, together with unidentified articles, shall be sent in sealed packets, accompanied by statements g

iving all particulars necessary for the identification of the deceased owners, as well as by a complete list of the contents of the parcel. RIGHT TO BURIAL Art.17. Parties to the conflict shall ensure that burial or cremation of the dead,carried out individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a viewto confirming death, establishing identity and enabling a report to be made. Onehalf of the double identity disc, or the identity disc itself if it is a singledisc, should remain on the body. Bodies shall not be cremated except for imperative reasons of hygiene or for motives based on the religion of the deceased. Incase of cremation, the circumstances and reasons for cremation shall be statedin detail in the death certificate or on the authenticated list of the dead. They shall further ensure that the dead are honourably interred, if possible according to the rites of the religion to which they belonged, that their graves are r

espected, grouped if possible according to the nationality of the deceased, properly maintained

and marked so that they may always be found. For this purpose, they shall organize at the commencement of hostilities an Official Graves Registration Service, to allow subsequent exhumations and to ensure the identification of bodies, whatever the site of the graves, and the possible transportation to the home country.These provisions shall likewise apply to the ashes, which shall be kept by theGraves Registration Service until proper disposal thereof in accordance with thewishes of the home country. As soon as circumstances permit, and at latest at t



he end of hostilities, these Services shall exchange, through the Information Bureau mentioned in the second paragraph of Article 16, lists showing the exact location and markings of the graves, together with particulars of the dead interred therein. THOSE WHO AID THE WOUNDED ARE NOT TO BE HARMED Art. 18. The militaryauthorities may appeal to the charity of the inhabitants voluntarily to collectand care for, under their direction, the wounded and sick, granting persons whohave responded to this appeal the necessary protection and facilities. Should the adverse Party take or retake control of the area, he shall likewise grant these persons the same protection and the same facilities. The military authoritiesshall permit the inhabitants and relief societies, even in invaded or occupied areas, spontaneously to collect and care for wounded or sick of whatever nationality. The civilian population shall respect these wounded and sick, and in particular abstain from offering them violence. No one may ever be molested or convicted for having nursed the wounded or sick. The provisions of the present Articledo not relieve the occupying Power of its obligation to give both physical and moral care to the wounded and sick.

Chapter III. Medical Units and Establishments Art. 19. Fixed establishments andmobile medical units of the Medical Service may in no circumstances be attacked,but shall at all times be respected and protected by the Parties to the conflict. Should they fall into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments andunits. MEDICAL UNITS GONE BAD Art. 22. The following conditions shall not be co

nsidered as depriving a medical unit or establishment of the protection guaranteed by Article 19: (1) That the personnel of the unit or establishment are armed,and that they use the arms in their own defence, or in that of the wounded andsick in their charge. (2) That in the absence of armed orderlies, the unit or establishment is protected by a picket or by sentries or by an escort. (3) That small arms and ammunition taken from the wounded and sick and not yet handed to the proper service, are found in the unit or establishment. (4) That personnel andmaterial of the veterinary service are found in the unit or establishment, without forming an integral part thereof. (5) That the humanitarian activities of medical units and establishments or of their personnel extend to the care of civilian wounded or sick. Chapter IV. Personnel Art. 24. Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the




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administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances. CAPTURED HEALTH WORKER/HELPERS Art. 28. Personnel designated in Articles 24 and 26who fall into the hands of the adverse Party, shall be retained only in so faras the state of health, the spiritual needs and the number of prisoners of war require. Personnel thus retained shall not be deemed prisoners of war. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Within the framework of the military laws and regulations of the Detaining Power, and under the authority of its competent service, they shall continue to carry out, in accordance with their professional ethics, their medical and spiritual duties on behalfof prisoners of war, preferably those of the armed forces to which they themselves belong. They shall further enjoy the following facilities for carrying out their medical or spiritual duties: (a) They shall be authorized to visit periodically the prisoners of war in labour units or hospitals outside the camp. The Detaining Power shall put at their disposal the means of transport required. (b) In

each camp the senior medical officer of the highest rank shall be responsible tothe military authorities of the camp for the professional activity of the retained medical personnel. For this purpose, from the outbreak of hostilities, the Parties to the conflict shall agree regarding the corresponding seniority of theranks of their medical personnel, including those of the societies designated inArticle 26. In all questions arising out of their duties, this medical officer,and the chaplains, shall have direct access to the military and medical authorities of the camp who shall grant them the facilities they may require for correspondence relating to these questions. (c) Although retained personnel in a campshall be subject to its internal discipline, they shall not, however, be required to perform any work outside their medical or religious duties. During hostilities the Parties to the conflict shall make arrangements for relieving where possible retained personnel, and shall settle the procedure of such relief. None of

the preceding provisions shall relieve the Detaining Power of the obligations imposed upon it with regard to the medical and spiritual welfare of the prisonersof war. Art. 30. Personnel whose retention is not indispensable by virtue of theprovisions of Article 28 shall be returned to the Party to the conflict to whomthey belong, as soon as a road is open for their return and military requirements permit. Pending their return, they shall not be deemed prisoners of war. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. They shallcontinue to fulfil their duties under the orders of the adverse Party and shallpreferably be engaged in the care of the wounded and sick of the Party to the conflict to which they themselves belong. On their departure, they shall take withthem the effects, personal belongings, valuables and instruments belonging to them. Art. 31. The selection of personnel for return under Article 30 shall be ma

de irrespective of any consideration of race, religion or political opinion, butpreferably according to the chronological order of their capture and their state of health. As from the outbreak of hostilities, Parties to the conflict may determine by special agreement the percentage of personnel to

be retained, in proportion to the number of prisoners and the distribution of the said personnel in the camps. Chapter V. Buildings and Material Art. 33. The material of mobile medical units of the armed forces which fall into the hands ofthe enemy, shall be reserved for the care of wounded and sick. The buildings, material and stores of fixed medical establishments of the armed forces shall rema



in subject to the laws of war, but may not be diverted from their purpose as long as they are required for the care of wounded and sick. Nevertheless, the commanders of forces in the field may make use of them, in case of urgent military necessity, provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them. The material and stores defined in the present Article shall not be intentionally destroyed. Chapter VI. Medical Transports Art. 35. Transports of wounded and sick or of medical equipment shall be respected and protected in the same way as mobile medical units. Should such transports or vehicles fall into the hands of the adverse Party, they shall be subjectto the laws of war, on condition that the Party to the conflict who captures them shall in all cases ensure the care of the wounded and sick they contain. The civilian personnel and all means of transport obtained by requisition shall be subject to the general rules of international law. Art. 36. Medical aircraft, thatis to say, aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment, shall not be attacked, but shall be respected by the belligerents, while flying at heights, times and onroutes specifically agreed upon between the belligerents concerned. They shallbear, clearly marked, the distinctive emblem prescribed in Article 38, togetherwith their national colours on their lower, upper and lateral surfaces. They shall be provided with any other markings or means of identification that may be agreed upon between the belligerents upon the outbreak or during the course of hostilities. Unless agreed otherwise, flights over enemy or enemyoccupied territoryare prohibited. Medical aircraft shall obey every summons to land. In the eventof a landing thus imposed, the aircraft with its occupants may continue its fli

ght after examination, if any. In the event of an involuntary landing in enemy or enemyoccupied territory, the wounded and sick, as well as the crew of the aircraft shall be prisoners of war. The medical personnel shall be treated accordingto Article 24 and the Articles following. Chapter VII. The Distinctive Emblem Art. 38. As a compliment to Switzerland, the heraldic emblem of the red cross ona white ground, formed by reversing the Federal colours, is retained as the emblem and distinctive sign of the Medical Service of armed forces. Nevertheless, inthe case of countries which already use as emblem, in place of the red cross, the red crescent or the red lion and sun on a white ground, those emblems are also recognized by the terms of the present Convention. Art. 40. The personnel designated in Article 24 and in Articles 26 and 27 shall wear, affixed to the left arm, a water-resistant armlet




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bearing the distinctive emblem, issued and stamped by the military authority. Such personnel, in addition to wearing the identity disc mentioned in Article 16,shall also carry a special identity card bearing the distinctive emblem. This card shall be water-resistant and of such size that it can be carried in the pocket. It shall be worded in the national language, shall mention at least the surname and first names, the date of birth, the rank and the service number of the bearer, and shall state in what capacity he is entitled to the protection of the present Convention. The card shall bear the photograph of the owner and also either his signature or his fingerprints or both. It shall be embossed with the stamp of the military authority. The identity card shall be uniform throughout the same armed forces and, as far as possible, of a similar type in the armed forcesof the High Contracting Parties. The Parties to the conflict may be guided by the model which is annexed, by way of example, to the present Convention. They shall inform each other, at the outbreak of hostilities, of the model they are using. Identity cards should be made out, if possible, at least in duplicate, one copy being kept by the home country. In no circumstances may the said personnel be

deprived of their insignia or identity cards nor of the right to wear the armlet. In case of loss, they shall be entitled to receive duplicates of the cards and to have the insignia replaced. Chapter VIII. Execution of the Convention Art.46. Reprisals against the wounded, sick, personnel, buildings or equipment protected by the Convention are prohibited. Art. 47. The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to theentire population, in particular to the armed fighting forces, the medical personnel and the chaplains. Chapter IX. Repression of Abuses and Infractions DUTY TOLEGISLATE Art. 49. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or or

dering to be committed, any of the grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case. Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following, of the Geneva Convention relative to the Trea

tment of Prisoners of War of 12 August 1949. Art. 50. Grave breaches to which the preceding Article relates shall be those involving any of the following acts,if committed against persons or property protected by the Convention: wilful killing,

torture or inhuman treatment, including biological experiments, wilfully causinggreat suffering or serious injury to body or health, and extensive destructionand appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Art. 53. The use by individuals, societies, firms orcompanies either public or private, other than those entitled thereto under the



present Convention, of the emblem or the designation " Red Cross " or " GenevaCross " or any sign or designation constituting an imitation thereof, whatever the object of such use, and irrespective of the date of its adoption, shall be prohibited at all times. By reason of the tribute paid to Switzerland by the adoption of the reversed Federal colours, and of the confusion which may arise between the arms of Switzerland and the distinctive emblem of the Convention, the useby private individuals, societies or firms, of the arms of the Swiss Confederation, or of marks constituting an imitation thereof, whether as trademarks or commercial marks, or as parts of such marks, or for a purpose contrary to commercialhonesty, or in circumstances capable of wounding Swiss national sentiment, shall be prohibited at all times. Nevertheless, such High Contracting Parties as were not party to the Geneva Convention of 27 July 1929, may grant to prior users of the emblems, designations, signs or marks designated in the first paragraph, atime limit not to exceed three years from the coming into force of the presentConvention to discontinue such use provided that the said use shall not be suchas would appear, in time of war, to confer the protection of the Convention. Theprohibition laid down in the first paragraph of the present Article shall alsoapply, without effect on any rights acquired through prior use, to the emblems and marks mentioned in the second paragraph of Article 38.

The Second Convention Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949. Art 2. In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any oth

er armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Conventionshall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a party to the presentConvention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. Art 3. In the case of armed conflict not of an international character occurringin the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Personstaking no active part in the hostilities, including members of armed forces whohave laid down their arms and those placed hors de combat by sickness, wounds,

detention, or any other cause, shall in all circumstances be treated humanely, without any




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adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to theabovementioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all thejudicial guarantees which are recognized as indispensable by civilized peoples.(2) The wounded, sick and shipwrecked shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflictshould further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application ofthe preceding provisions shall not affect the legal status of the Parties to the conflict. Art 4. In case of hostilities between land and naval forces of Parti

es to the conflict, the provisions of the present Convention shall apply only toforces on board ship. Forces put ashore shall immediately become subject to theprovisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949. Art 5. Neutral Powers shall apply by analogy the provisions of the present Convention to thewounded, sick and shipwrecked, and to members of the medical personnel and to chaplains of the armed forces of the Parties to the conflict received or internedin their territory, as well as to dead persons found. Art 7. Wounded, sick andshipwrecked persons, as well as members of the medical personnel and chaplains,may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be. Chapter II. Wounded, Sick and Shipwrecked Art 12. Members of the armed forces and other persons mentioned in the following A

rticle, who are at sea and who are wounded, sick or shipwrecked, shall be respected and protected in all circumstances, it being understood that the term "shipwreck" means shipwreck from any cause and includes forced landings at sea by or from aircraft. Such persons shall be treated humanely and cared for by the Parties to the conflict in whose power they may be, without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria. Any attempts upon their lives, or violence to their persons, shallbe strictly prohibited; in particular, they shall not be murdered or exterminated, subjected to torture or to biological experiments; they shall not wilfully be left without medical assistance and care, nor shall conditions exposing them to contagion or infection be created.

Only urgent medical reasons will authorize priority in the order of treatment to

be administered. Women shall be treated with all consideration due to their sex. Art 13. The present Convention shall apply to the wounded, sick and shipwrecked at sea belonging to the following categories: (1) Members of the armed forcesof a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions: (a) that of being commanded by a person responsible for his subordinates; (b)



that of having a fixed distinctive sign recognizable at a distance; (c) that ofcarrying arms openly; (d) that of conducting their operations in accordance withthe laws and customs of war. (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from thearmed forces which they accompany. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment underany other provisions of international law. (6) Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resistthe invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. OBLIGATIONS OF THE RESCUED Art 14. All warships of a belligerent Party shallhave the right to demand that the wounded, sick or shipwrecked on board militaryhospital ships, and hospital ships belonging to relief societies or to privateindividuals, as well as merchant vessels, yachts and other craft shall be surrendered, whatever their nationality, provided that the wounded and sick are in a fit state to be moved and that the warship can provide adequate facilities for necessary medical treatment. Art 15. If wounded, sick or shipwrecked persons are taken on board a neutral warship or a neutral military aircraft, it shall be ensured, where so required by international law, that they can take no further part

in operations of war. Art 16. Subject to the provisions of Article 12, the wounded, sick and shipwrecked of a belligerent who fall into enemy hands shall be prisoners of war, and the provisions of international law concerning prisoners of war shall apply to them. The captor may decide, according to circumstances, whether it is expedient to hold them, or to convey them to a port in the captor's owncountry, to a neutral port or even to a port in enemy territory. In the last case, prisoners of war thus returned to their home country may not serve for the duration of the war.




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Art 17. Wounded, sick or shipwrecked persons who are landed in neutral ports with the consent of the local authorities, shall, failing arrangements to the contrary between the neutral and the belligerent Powers, be so guarded by the neutralPower, where so required by international law, that the said persons cannot again take part in operations of war. The costs of hospital accommodation and internment shall be borne by the Power on whom the wounded, sick or shipwrecked persons depend. Art 18. After each engagement, Parties to the conflict shall, withoutdelay, take all possible measures to search for and collect the shipwrecked, wounded and sick, to protect them against pillage and ill-treatment, to ensure their adequate care, and to search for the dead and prevent their being despoiled.Whenever circumstances permit, the Parties to the conflict shall conclude localarrangements for the removal of the wounded and sick by sea from a besieged or encircled area and for the passage of medical and religious personnel and equipment on their way to that area. DUTY TO NOTIFY Art 19. The Parties to the conflictshall record as soon as possible, in respect of each shipwrecked, wounded, sickor dead person of the adverse Party falling into their hands, any particulars w

hich may assist in his identification. These records should if possible include:(a) designation of the Power on which he depends; (b) army, regimental, personal or serial number; (c) surname; (d) first name or names; (e) date of birth; (f)any other particulars shown on his identity card or disc; (g) date and place ofcapture or death; (h) particulars concerning wounds or illness, or cause of death. As soon as possible the above-mentioned information shall be forwarded to the information bureau described in Article 122 of the Geneva Convention relativeto the Treatment of Prisoners of War of August 12, 1949, which shall transmit this information to the Power on which these persons depend through the intermediary of the Protecting Power and of the Central Prisoners of War Agency. Parties to the conflict shall prepare and forward to each other through the same bureau,certificates of death or duly authenticated lists of the dead. They shall likewise collect and forward through the same bureau one half of the double identity d

isc, or the identity disc itself if it is a single disc, last wills or other documents of importance to the next of kin, money and in general all articles of anintrinsic or sentimental value, which are found on the dead. These articles, together with unidentified articles, shall be sent in sealed packets, accompaniedby statements giving all particulars necessary for the identification of the deceased owners, as well as by a complete list of the contents of the parcel. Art 20. Parties to the conflict shall ensure that burial at sea of the dead, carriedout individually as far as circumstances permit, is preceded by a careful examination, if possible by a medical examination, of the bodies, with a view to confirming death, establishing identity and enabling a report to be made. Where a double identity disc is used, one half of the disc should remain on the body. If dead persons are landed, the provisions of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of Aug

ust 12, 1949 shall be applicable.

Art 21. The Parties to the conflict may appeal to the charity of commanders of neutral merchant vessels, yachts or other craft, to take on board and care for wounded, sick or shipwrecked persons, and to collect the dead. Vessels of any kindresponding to this appeal, and those having of their own accord collected wounded, sick or shipwrecked persons, shall enjoy special protection and facilities to carry out such assistance. They may, in no case, be captured on account of anysuch transport; but, in the absence of any promise to the contrary, they shallremain liable to capture for any violations of neutrality they may have committe



d.

Chapter III. Hospital Ships Art 22. Military hospital ships, that is to say, ships built or equipped by the Powers specially and solely with a view to assistingthe wounded, sick and shipwrecked, to treating them and to transporting them, may in no circumstances be attacked or captured, but shall at all times be respected and protected, on condition that their names and descriptions have been notified to the Parties to the conflict ten days before those ships are employed. The characteristics which must appear in the notification shall include registeredgross tonnage, the length from stem to stern and the number of masts and funnels. Art 23. Establishments ashore entitled to the protection of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949 shall be protected from bombardment or attackfrom the sea. Art 24. Hospital ships utilized by National Red Cross Societies,by officially recognized relief societies or by private persons shall have the same protection as military hospital ships and shall be exempt from capture, if the Party to the conflict on which they depend has given them an official commission and in so far as the provisions of Article 22 concerning notification have been complied with. These ships must be provided with certificates from the responsible authorities, stating that the vessels have been under their control whilefitting out and on departure. Art 28. Should fighting occur on board a warship,the sick-bays shall be respected and spared as far as possible. Sick-bays and their equipment shall remain subject to the laws of warfare, but may not be diverted from their purpose so long as they are required for the wounded and sick. Ne

vertheless, the commander into whose power they have fallen may, after ensuringthe proper care of the wounded and sick who are accommodated therein, apply themto other purposes in case of urgent military necessity. Art 29. Any hospital ship in a port which falls into the hands of the enemy shall be authorized to leave the said port. Art 30. The vessels described in Articles 22, 24, 25 and 27 shall afford relief and assistance to the wounded, sick and shipwrecked without distinction of nationality. The High Contracting Parties undertake not to use thesevessels for any military purpose. Such vessels shall in no wise hamper the movements of the combatants. During and after an engagement, they will act at theirown risk.




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Art 33. Merchant vessels which have been transformed into hospital ships cannotbe put to any other use throughout the duration of hostilities. Art 35. The following conditions shall not be considered as depriving hospital ships or sick-bays of vessels of the protection due to them: (1) The fact that the crews of shipsor sick-bays are armed for the maintenance of order, for their own defence or that of the sick and wounded. (2) The presence on board of apparatus exclusivelyintended to facilitate navigation or communication. (3) The discovery on board hospital ships or in sick-bays of portable arms and ammunition taken from the wounded, sick and shipwrecked and not yet handed to the proper service. (4) The fact that the humanitarian activities of hospital ships and sick-bays of vessels orof the crews extend to the care of wounded, sick or shipwrecked civilians. (5)The transport of equipment and of personnel intended exclusively for medical duties, over and above the normal requirements. Chapter IV. Personnel Art 36. The religious, medical and hospital personnel of hospital ships and their crews shallbe respected and protected; they may not be captured during the time they are in the service of the hospital ship, whether or not there are wounded and sick on

board.

concerned, provided such High Contracting Party has made out a prima facie case.Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article. In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following ofthe Geneva Convention relative to the Treatment of Prisoners of War of August 12, 1949. Art 51. Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious inju

ry to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

The Third Convention Convention (III) relative to the Treatment of Prisoners ofWar. Geneva, 12 August 1949. Art 2. In addition to the provisions which shall beimplemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupationmeets with no armed resistance. Although one of the Powers in conflict may notbe a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by

the Convention in relation to the said Power, if the latter accepts and appliesthe provisions thereof. Art 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour,religion or faith, sex, birth or wealth, or any other similar criteria. To thisend the following acts are and shall remain prohibited at any time and in any p



lace whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment andtorture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.

Chapter V. Medical Transports (very similar to medical land transports) Art 38.Ships chartered for that purpose shall be authorized to transport equipment exclusively intended for the treatment of wounded and sick members of armed forces or for the prevention of disease, provided that the particulars regarding their voyage have been notified to the adverse Power and approved by the latter. The adverse Power shall preserve the right to board the carrier ships, but not to capture them or seize the equipment carried. By agreement amongst the Parties to theconflict, neutral observers may be placed on board such ships to verify the equipment carried. For this purpose, free access to the equipment shall be given. Chapter VI. The Distinctive Emblem (same pa rin) Art 41. Under the direction of the competent military authority, the emblem of the red cross on a white ground shall be displayed on the flags, armlets and on all equipment employed in the Medical Service. Nevertheless, in the case of countries which already use as emblem, in place of the red cross, the red crescent or the red lion and sun on a whiteground, these emblems are also recognized by the terms of the present Conventio

n. Chapter VIII. Repression of Abuses and Infractions (same) Art 50. The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any ofthe grave breaches of the present Convention defined in the following Article. Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its owncourts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High ContractingParty




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An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to theconflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict. DEFINITION OF POW Art 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: (1) Members of the armed forcesof a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces. (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that o

f carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war. (3) Members of regular armed forces who professallegiance to a government or an authority not recognized by the Detaining Power. (4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civilaircraft of the Parties to the conflict, who do not benefit by more favourabletreatment under any other provisions of international law. (6) Inhabitants of anon-occupied territory, who on the approach of the enemy spontaneously take up a

rms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws andcustoms of war. B. The following shall likewise be treated as prisoners of warunder the present Convention: (1) Persons belonging, or having belonged, to thearmed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies,in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

(2) The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or nonbelligerent Powers on their territ

ory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 5867, 92,126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning theProtecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity withdiplomatic and consular usage and treaties. C. This Article shall in no way affe



ct the status of medical personnel and chaplains as provided for in Article 33 of the present Convention. Art 5. The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemyand until their final release and repatriation. Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal. Art 7. Prisoners of warmay in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be. Part II. General Protection of Prisoners ofWar Art 12. Prisoners of war are in the hands of the enemy Power, but not of theindividuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them. Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Powerto apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody. Nevertheless, if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified bythe Protecting Power, take effective measures to correct the situation or shallrequest the return of the prisoners of war. Such requests must be complied with.

Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering thehealth of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of warmay be subjected to physical mutilation or to medical or scientific experimentsof any kind which are not justified by the medical, dental or hospital treatmentof the prisoner concerned and carried out in his interest. Likewise, prisonersof war must at all times be protected, particularly against acts of violence orintimidation and against insults and public curiosity.




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Measures of reprisal against prisoners of war are prohibited. Art 14. Prisonersof war are entitled in all circumstances to respect for their persons and theirhonour. Women shall be treated with all the regard due to their sex and shall inall cases benefit by treatment as favourable as that granted to men. Prisonersof war shall retain the full civil capacity which they enjoyed at the time of their capture. The Detaining Power may not restrict the exercise, either within orwithout its own territory, of the rights such capacity confers except in so faras the captivity requires. Art 15. The Power detaining prisoners of war shall be bound to provide free of charge for their maintenance and for the medical attention required by their state of health. Part III. Captivity Section 1. Beginning of Captivity Art 17. Every prisoner of war, when questioned on the subject, isbound to give only his surname, first names and rank, date of birth, and army,regimental, personal or serial number, or failing this, equivalent information.If he wilfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status. Each Party to a conflict isrequired to furnish the persons under its jurisdiction who are liable to become

prisoners of war, with an identity card showing the owner's surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth. The identity card may, furthermore, bear the signature or thefingerprints, or both, of the owner, and may bear, as well, any other information the Party to the conflict may wish to add concerning persons belonging to itsarmed forces. As far as possible the card shall measure 6.5 x 10 cm. and shall be issued in duplicate. The identity card shall be shown by the prisoner of war upon demand, but may in no case be taken away from him. No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse toanswer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the me

dical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph. The questioningof prisoners of war shall be carried out in a language which they understand. Art 18. All effects and articles of personal use, except arms, horses, military equipment and military documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection. Effects and articles used for their clothing or feeding shall likewise remain in their possession, even if such effects and articles belong totheir regulation military equipment. At no time should prisoners of war be without identity documents. The Detaining Power shall supply such documents to prisoners of war who possess none. Badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war.

Sums of money carried by prisoners of war may not be taken away from them exceptby order of an officer, and after the amount and particulars of the owner havebeen recorded in a special register and an itemized receipt has been given, legibly inscribed with the name, rank and unit of the person issuing the said receipt. Sums in the currency of the Detaining Power, or which are changed into such currency at the prisoner's request, shall be placed to the credit of the prisoner's account as provided in Article 64. The Detaining Power may withdraw articlesof value from prisoners of war only for reasons of security; when such articlesare withdrawn, the procedure laid down for sums of money impounded shall apply.






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The Detaining Power shall assemble prisoners of war in camps or camp compounds according to their nationality, language and customs, provided that such prisoners shall not be separated from prisoners of war belonging to the armed forces with which they were serving at the time of their capture, except with their consent. Chapter II. Quarters, Food and Clothing of Prisoners of War Art 25. Prisonersof war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditionsshall make allowance for the habits and customs of the prisoners and shall in nocase be prejudicial to their health. The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets. Thepremises provided for the use of prisoners of war individually or collectively,shall be entirely protected from dampness and adequately heated and lighted, inparticular between dusk and lights out. All precautions must be taken against the danger of fire. In any camps in which women prisoners of war, as well as men,are accommodated, separate dormitories shall be provided for them. Art 26. The b

asic daily food rations shall be sufficient in quantity, quality and variety tokeep prisoners of war in good health and to prevent loss of weight or the development of nutritional deficiencies. Account shall also be taken of the habitual diet of the prisoners. The Detaining Power shall supply prisoners of war who workwith such additional rations as are necessary for the labour on which they areemployed. Sufficient drinking water shall be supplied to prisoners of war. The use of tobacco shall be permitted. Prisoners of war shall, as far as possible, beassociated with the preparation of their meals; they may be employed for that purpose in the kitchens. Furthermore, they shall be given the means of preparing,themselves, the additional food in their possession. Adequate premises shall beprovided for messing. Collective disciplinary measures affecting food are prohibited. Art 27. Clothing, underwear and footwear shall be supplied to prisoners of war in sufficient quantities by the Detaining Power, which shall make allowanc

e for the climate of the region where the prisoners are detained. Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the climate, be made available to clothe prisoners of war. The regular replacement andrepair of the above articles shall be assured by the Detaining Power. In addition, prisoners of war who work shall receive appropriate clothing, wherever the nature of the work demands. Chapter III. Hygene and Medical Attention Art 29. TheDetaining Power shall be bound to take all sanitary measures necessary to ensurethe cleanliness and healthfulness of camps and to prevent epidemics. Prisonersof war shall have for their use, day and night, conveniences which conform to the rules of hygiene and are maintained in a constant state of cleanliness. In anycamps in which women prisoners of war are accommodated, separate conveniences shall be provided for them.

Also, apart from the baths and showers with which the camps shall be furnished prisoners of war shall be provided with sufficient water and soap for their personal toilet and for washing their personal laundry; the necessary installations,facilities and time shall be granted them for that purpose. Art 30. Every camp shall have an adequate infirmary where prisoners of war may have the attention they require, as well as appropriate diet. Isolation wards shall, if necessary, beset aside for cases of contagious or mental disease. Prisoners of war sufferingfrom serious disease, or whose condition necessitates special treatment, a surgical operation or hospital care, must be admitted to any military or civilian medical unit where such treatment can be given, even if their repatriation is cont



emplated in the near future. Special facilities shall be afforded for the care to be given to the disabled, in particular to the blind, and for their. rehabilitation, pending repatriation. Prisoners of war shall have the attention, preferably, of medical personnel of the Power on which they depend and, if possible, oftheir nationality. Prisoners of war may not be prevented from presenting themselves to the medical authorities for examination. The detaining authorities shall,upon request, issue to every prisoner who has undergone treatment, an officialcertificate indicating the nature of his illness or injury, and the duration andkind of treatment received. A duplicate of this certificate shall be forwardedto the Central Prisoners of War Agency. The costs of treatment, including thoseof any apparatus necessary for the maintenance of prisoners of war in good health, particularly dentures and other artificial appliances, and spectacles, shallbe borne by the Detaining Power. Chapter VI. Discipline Art 39. Every prisoner of war camp shall be put under the immediate authority of a responsible commissioned officer belonging to the regular armed forces of the Detaining Power. Such officer shall have in his possession a copy of the present Convention; he shall ensure that its provisions are known to the camp staff and the guard and shall beresponsible, under the direction of his government, for its application. Prisoners of war, with the exception of officers, must salute and show to all officersof the Detaining Power the external marks of respect provided for by the regulations applying in their own forces. Officer prisoners of war are bound to saluteonly officers of a higher rank of the Detaining Power; they must, however, salute the camp commander regardless of his rank. Art 42. The use of weapons againstprisoners of war, especially against those who are escaping or attempting to es

cape, shall constitute an extreme measure, which shall always be preceded by warnings appropriate to the circumstances. Section III. Labour of Prisoners of WarArt 49. The Detaining Power may utilize the labour of prisoners of war who are physically fit, taking into account their age, sex, rank and physical aptitude, and with a view particularly to maintaining them in a good state of physical andmental health. Non-commissioned officers who are prisoners of war shall only berequired to do supervisory work. Those not so required may ask for other suitable work which shall, so far as possible, be found for them.




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If officers or persons of equivalent status ask for suitable work, it shall be found for them, so far as possible, but they may in no circumstances be compelledto work. Art 50. Besides work connected with camp administration, installationor maintenance, prisoners of war may be compelled to do only such work as is included in the following classes: (a) agriculture; (b) industries connected with the production or the extraction of raw materials, and manufacturing industries,with the exception of metallurgical, machinery and chemical industries; public works and building operations which have no military character or purpose; (c) transport and handling of stores which are not military in character or purpose; (d) commercial business, and arts and crafts; (e) domestic service; (f) public utility services having no military character or purpose. Should the above provisions be infringed, prisoners of war shall be allowed to exercise their right of complaint, in conformity with Article 78. Art 52. Unless he be a volunteer, no prisoner of war may be employed on labour which is of an unhealthy or dangerous nature. No prisoner of war shall be assigned to labour which would be looked uponas humiliating for a member of the Detaining Power's own forces. The removal of

mines or similar devices shall be considered as dangerous labour. Section V. Relations of Prisoners of War With the Exterior Art 69. Immediately upon prisonersof war falling into its power, the Detaining Power shall inform them and the Powers on which they depend, through the Protecting Power, of the measures taken tocarry out the provisions of the present Section. They shall likewise inform theparties concerned of any subsequent modifications of such measures. Art 70. Immediately upon capture, or not more than one week after arrival at a camp, even if it is a transit camp, likewise in case of sickness or transfer to hospital orto another camp, every prisoner of war shall be enabled to write direct to his family, on the one hand, and to the Central Prisoners of War Agency provided forin Article 123, on the other hand, a card similar, if possible, to the model annexed to the present Convention, informing his relatives of his capture, addressand state of health. The said cards shall be forwarded as rapidly as possible an

d may not be delayed in any manner. Art 71. Prisoners of war shall be allowed tosend and receive letters and cards. If the Detaining Power deems it necessary to limit the number of letters and cards sent by each prisoner of war, the said number shall not be less than two letters and four cards monthly, exclusive of the capture cards provided for in Article 70, and conforming as closely as possible to the models annexed to the present Convention. Further limitations may be imposed only if the Protecting Power is satisfied that it would be in the interests of the prisoners of war concerned to do so owing to difficulties of translation caused by the Detaining Power's inability to find sufficient qualified linguists to carry out the necessary censorship. If limitations must be placed on the correspondence addressed to prisoners of war, they may be ordered only by the Power on which the prisoners depend, possibly at the request of the Detaining Power. Such letters and cards must be conveyed by the most rapid

method at the disposal of the Detaining Power; they may not be delayed or retained for disciplinary reasons. Prisoners of war who have been without news for a long period, or who are unable to receive news from their next of kin or to givethem news by the ordinary postal route, as well as those who are at a great distance from their homes, shall be permitted to send telegrams, the fees being charged against the prisoners of war's accounts with the Detaining Power or paid inthe currency at their disposal. They shall likewise benefit by this measure in cases of urgency. As a general rule, the correspondence of prisoners of war shallbe written in their native language. The Parties to the conflict may allow corr



espondence in other languages. Sacks containing prisoner of war mail must be securely sealed and labelled so as clearly to indicate their contents, and must beaddressed to offices of destination. Section VI. Relations Between Prisoners ofWar and the Authorities Chapter I. Complaints of Prisoners of War Respecting theConditions of Captivity Art 78 Prisoners of war shall have the right to make known to the military authorities in whose power they are, their requests regarding the conditions of captivity to which they are subjected. They shall also havethe unrestricted right to apply to the representatives of the Protecting Powerseither through their prisoners' representative or, if they consider it necessary, direct, in order to draw their attention to any points on which they may havecomplaints to make regarding their conditions of captivity. These requests and complaints shall not be limited nor considered to be a part of the correspondencequota referred to in Article 71. They must be transmitted immediately. Even ifthey are recognized to be unfounded, they may not give rise to any punishment. Prisoners' representatives may send periodic reports on the situation in the camps and the needs of the prisoners of war to the representatives of the ProtectingPowers. Chapter II. Prisoner of War Representatives Art 79. IIn all places where there are prisoners of war, except in those where there are officers, the prisoners shall freely elect by secret ballot, every six months, and also in case ofvacancies, prisoners' representatives entrusted with representing them before the military authorities, the Protecting Powers, the International Committee of the Red Cross and any other organization which may assist them. These prisoners'representatives shall be eligible for reelection. In camps for officers and persons of equivalent status or in mixed camps, the senior officer among the prisone

rs of war shall be recognized as the camp prisoners' representative. In camps for officers, he shall be assisted by one or more advisers chosen by the officers;in mixed camps, his assistants shall be chosen from among the prisoners of warwho are not officers and shall be elected by them. Officer prisoners of war of the same nationality shall be stationed in labour camps for prisoners of war, forthe purpose of carrying out the camp administration duties for which the prisoners of war are responsible. These officers may be elected as prisoners' representatives under the first paragraph of this Article. In such a case the assistantsto the prisoners' representatives shall be chosen from among those prisoners ofwar who are not officers. Every representative elected must be approved by theDetaining Power before he has the right to commence his duties.




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Where the Detaining Power refuses to approve a prisoner of war elected by his fellow prisoners of war, it must inform the Protecting Power of the reason for such refusal. In all cases the prisoners' representative must have the same nationality, language and customs as the prisoners of war whom he represents. Thus, prisoners of war distributed in different sections of a camp, according to their nationality, language or customs, shall have for each section their own prisoners'representative, in accordance with the foregoing paragraphs. Chapter III. Penaland Disciplinary Sanctions I. General Provisions Art 82. A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces ofthe Detaining Power; the Detaining Power shall be justified in taking judicialor disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed. If any law, regulation or order of the Detaining Power shall declare acts committed by a prisoner of war to be punishable, whereas the same acts would not be punishable if committed by a member of the forces of the Detaining Power, such acts shall entail d

isciplinary punishments only. Art 85. Prisoners of war prosecuted under the lawsof the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention. II. Disciplinary SanctionsArt 89. The disciplinary punishments applicable to prisoners of war are the following: (1) A fine which shall not exceed 50 per cent of the advances of pay andworking pay which the prisoner of war would otherwise receive under the provisions of Articles 60 and 62 during a period of not more than thirty days. (2) Discontinuance of privileges granted over and above the treatment provided for by thepresent Convention. (3) Fatigue duties not exceeding two hours daily. (4) Confinement. The punishment referred to under (3) shall not be applied to officers. In no case shall disciplinary punishments be inhuman, brutal or dangerous to thehealth of prisoners of war. Art 91. The escape of a prisoner of war shall be deemed to have succeeded when: (1) he has joined the armed forces of the Power on w

hich he depends, or those of an allied Power; (2) he has left the territory under the control of the Detaining Power, or of an ally of the said Power; (3) he has joined a ship flying the flag of the Power on which he depends, or of an allied Power, in the territorial waters of the Detaining Power, the said ship not being under the control of the last named Power. Prisoners of war who have made good their escape in the sense of this Article and who are recaptured, shall not beliable to any punishment in respect of their previous escape. Art 92. A prisoner of war who attempts to escape and is recaptured before having made good his escape in the sense of Article 91 shall be liable only to a disciplinary punishment in respect of this act, even if it is a repeated offence.

A prisoner of war who is recaptured shall be handed over without delay to the competent military authority. Art 93. Escape or attempt to escape, even if it is a

repeated offence, shall not be deemed an aggravating circumstance if the prisoner of war is subjected to trial by judicial proceedings in respect of an offencecommitted during his escape or attempt to escape. In conformity with the principle stated in Article 83, offences committed by prisoners of war with the sole intention of facilitating their escape and which do not entail any violence against life or limb, such as offences against public property, theft without intention of self-enrichment, the drawing up or use of false papers, or the wearing ofcivilian clothing, shall occasion disciplinary punishment only. Prisoners of warwho aid or abet an escape or an attempt to escape shall be liable on this countto disciplinary punishment only. III. Juridicial Proceedings Art 99. No prisone



r of war may be tried or sentenced for an act which is not forbidden by the lawof the Detaining Power or by international law, in force at the time the said act was committed. No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused. No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel. Art 100. Prisoners of war and the Protecting Powers shall be informed as soon as possible of the offences which are punishable by the death sentence under the laws ofthe Detaining Power. Other offences shall not thereafter be made punishable by the death penalty without the concurrence of the Power on which the prisoners ofwar depend. The death sentence cannot be pronounced on a prisoner of war unlessthe attention of the court has, in accordance with Article 87, second paragraph,been particularly called to the fact that since the accused is not a national of the Detaining Power, he is not bound to it by any duty of allegiance, and thathe is in its power as the result of circumstances independent of his own will.Art 101. If the death penalty is pronounced on a prisoner of war, the sentence shall not be executed before the expiration of a period of at least six months from the date when the Protecting Power receives, at an indicated address, the detailed communication provided for in Article 107. Art 102. A prisoner of war canbe validly sentenced only if the sentence has been pronounced by the same courtsaccording to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed. Art 105. The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defence by a qualified advocate or counse

l of his own choice, to the calling of witnesses and, if he deems necessary, tothe services of a competent interpreter. He shall be advised of these rights bythe Detaining Power in due time before the trial. Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shallhave at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to presentthe defence. Failing a choice of an advocate or counsel by




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the prisoner of war or the Protecting Power, the Detaining Power shall appoint acompetent advocate or counsel to conduct the defence. The advocate or counsel conducting the defence on behalf of the prisoner of war shall have at his disposal a period of two weeks at least before the opening of the trial, as well as thenecessary facilities to prepare the defence of the accused. He may, in particular, freely visit the accused and interview him in private. He may also confer with any witnesses for the defence, including prisoners of war. He shall have thebenefit of these facilities until the term of appeal or petition has expired. Particulars of the charge or charges on which the prisoner of war is to be arraigned, as well as the documents which are generally communicated to the accused byvirtue of the laws in force in the armed forces of the Detaining Power, shall becommunicated to the accused prisoner of war in a language which he understands,and in good time before the opening of the trial. The same communication in thesame circumstances shall be made to the advocate or counsel conducting the defence on behalf of the prisoner of war. The representatives of the Protecting Power shall be entitled to attend the trial of the case, unless, exceptionally, this

is held in camera in the interest of State security. In such a case the Detaining Power shall advise the Protecting Power accordingly. Art 106. Every prisonerof war shall have, in the same manner as the members of the armed forces of theDetaining Power, the right of appeal or petition from any sentence pronounced upon him, with a view to the quashing or revising of the sentence or the reopeningof the trial. He shall be fully informed of his right to appeal or petition andof the time limit within which he may do so. Part IV. Termination of CaptivitySection I. Direct Repatriation and Accommodation in Neutral Countries Art 109. Subject to the provisions of the third paragraph of this Article, Parties to theconflict are bound to send back to their own country, regardless of number or rank, seriously wounded and seriously sick prisoners of war, after having cared for them until they are fit to travel, in accordance with the first paragraph of the following Article. Throughout the duration of hostilities, Parties to the con

flict shall endeavour, with the cooperation of the neutral Powers concerned, tomake arrangements for the accommodation in neutral countries of the sick and wounded prisoners of war referred to in the second paragraph of the following Article. They may, in addition, conclude agreements with a view to the direct repatriation or internment in a neutral country of able-bodied prisoners of war who have undergone a long period of captivity. No sick or injured prisoner of war who is eligible for repatriation under the first paragraph of this Article, may be repatriated against his will during hostilities. Art 110. The following shall be repatriated direct: (1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished. (2) Wounded and sick who, according tomedical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravelydiminished. (3) Wounded and sick who have recovered, but whose mental or physica

l fitness seems to have been gravely and permanently diminished. The following may be accommodated in a neutral country:

(1) Wounded and sick whose recovery may be expected within one year of the dateof the wound or the beginning of the illness, if treatment in a neutral countrymight increase the prospects of a more certain and speedy recovery. (2) Prisoners of war whose mental or physical health, according to medical opinion, is seriously threatened by continued captivity, but whose accommodation in a neutral country might remove such a threat. The conditions which prisoners of war accommodated in a neutral country must fulfil in order to permit their repatriation shall



be fixed, as shall likewise their status, by agreement between the Powers concerned. In general, prisoners of war who have been accommodated in a neutral country, and who belong to the following categories, should be repatriated: (1) Thosewhose state of health has deteriorated so as to fulfil the condition laid downfor direct repatriation; (2) Those whose mental or physical powers remain, evenafter treatment, considerably impaired. If no special agreements are concluded between the Parties to the conflict concerned, to determine the cases of disablement or sickness entailing direct repatriation or accommodation in a neutral country, such cases shall be settled in accordance with the principles laid down inthe Model Agreement concerning direct repatriation and accommodation in neutralcountries of wounded and sick prisoners of war and in the Regulations concerningMixed Medical Commissions annexed to the present Convention. Section II. Release and Repatriation of Prisoners of War at the Close of Hostilities Art 118. Prisoners of war shall be released and repatriated without delay after the cessationof active hostilities. In the absence of stipulations to the above effect in any agreement concluded between the Parties to the conflict with a view to the cessation of hostilities, or failing any such agreement, each of the Detaining Powers shall itself establish and execute without delay a plan of repatriation in conformity with the principle laid down in the foregoing paragraph. In either case, the measures adopted shall be brought to the knowledge of the prisoners of war. The costs of repatriation of prisoners of war shall in all cases be equitablyapportioned between the Detaining Power and the Power on which the prisoners depend. This apportionment shall be carried out on the following basis: (a) If thetwo Powers are contiguous, the Power on which the prisoners of war depend shall

bear the costs of repatriation from the frontiers of the Detaining Power. (b) Ifthe two Powers are not contiguous, the Detaining Power shall bear the costs oftransport of prisoners of war over its own territory as far as its frontier or its port of embarkation nearest to the territory of the Power on which the prisoners of war depend. The Parties concerned shall agree between themselves as to the equitable apportionment of the remaining costs of the repatriation. The conclusion of this agreement shall in no circumstances justify any delay in the repatriation of the prisoners of war. Section III. Death of Prisoners of War Art 120.Wills of prisoners of war shall be drawn up so as to satisfy the conditions of validity required by the legislation of their country of origin, which will takesteps to inform the Detaining Power of its requirements in this respect. At therequest of the prisoner of war and, in all cases, after death, the will shall betransmitted without




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delay to the Protecting Power; a certified copy shall be sent to the Central Agency. Death certificates, in the form annexed to the present Convention, or listscertified by a responsible officer, of all persons who die as prisoners of warshall be forwarded as rapidly as possible to the Prisoner of War Information Bureau established in accordance with Article 122. The death certificates or certified lists shall show particulars of identity as set out in the third paragraph of Article 17, and also the date and place of death, the cause of death, the dateand place of burial and all particulars necessary to identify the graves. The burial or cremation of a prisoner of war shall be preceded by a medical examination of the body with a view to confirming death and enabling a report to be madeand, where necessary, establishing identity. The detaining authorities shall ensure that prisoners of war who have died in captivity are honourably buried, if possible according to the rites of the religion to which they belonged, and thattheir graves are respected, suitably maintained and marked so as to be found atany time. Wherever possible, deceased prisoners of war who depended on the samePower shall be interred in the same place. Deceased prisoners of war shall be bu

ried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene,on account of the religion of the deceased or in accordance with his express wish to this effect. In case of cremation, the fact shall be stated and the reasonsgiven in the death certificate of the deceased. In order that graves may alwaysbe found, all particulars of burials and graves shall be recorded with a GravesRegistration Service established by the Detaining Power. Lists of graves and particulars of the prisoners of war interred in cemeteries and elsewhere shall betransmitted to the Power on which such prisoners of war depended. Responsibilityfor the care of these graves and for records of any subsequent moves of the bodies shall rest on the Power controlling the territory, if a Party to the presentConvention. These provisions shall also apply to the ashes, which shall be keptby the Graves Registration Service until proper disposal thereof in accordance

with the wishes of the home country. PART V. Information Bureaux and Relief Societies for Prisoners of War Art 123. A Central Prisoners of War Information Agency shall be created in a neutral country. The International Committee of the RedCross shall, if it deems necessary, propose to the Powers concerned the organization of such an Agency. The function of the Agency shall be to collect all the information it may obtain through official or private channels respecting prisoners of war, and to transmit it as rapidly as possible to the country of origin ofthe prisoners of war or to the Power on which they depend. It shall receive from the Parties to the conflict all facilities for effecting such transmissions. The High Contracting Parties, and in particular those whose nationals benefit bythe services of the Central Agency, are requested to give the said Agency the financial aid it may require. The foregoing provisions shall in no way be interpreted as restricting the humanitarian activities of the International Committee of

the Red Cross, or of the relief societies provided for in Article 125.

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. Art. 2. In addition to the provisions which shall be implemented in peace-time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of theHigh Contracting Parties, even if the state of war is not recognized by one ofthem. The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Although one of the Powers in conflict may not be a



party to the present Convention, the Powers who are parties thereto shall remainbound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof. Art. 3. In the case of armed conflict not of an internationalcharacter occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combatby sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this endthe following acts are and shall remain prohibited at any time and in any placewhatsoever with respect to the abovementioned persons: (a) violence to life andperson, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Partiesto the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of t

he Parties to the conflict. WHO ARE THE PARTIES PROTECTED Art. 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

The Fourth Convention




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Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. The provisions of Part II are, however, wider in application, as defined in Article 13. Persons protected by the Geneva Convention for the Amelioration of the Condition of the Woundedand Sick in Armed Forces in the Field of 12 August 1949, or by the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 12 August 1949, or by the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, shall not be considered as protected persons within the meaning of the present Convention. Art. 8. Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention, and by the special agreements referred to in the foregoing Article, if such there be.

enemy land, air and naval forces in order to obviate the possibility of any hostile action. In view of the dangers to which hospitals may be exposed by being close to military objectives, it is recommended that such hospitals be situated asfar as possible from such objectives. Art. 19. The protection to which civilianhospitals are entitled shall not cease unless they are used to commit, outsidetheir humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after due warning has been given, naming, in all appropriate cases, areasonable time limit and after such warning has remained unheeded. The fact that sick or wounded members of the armed forces are nursed in these hospitals, orthe presence of small arms and ammunition taken from such combatants and not yetbeen handed to the proper service, shall not be considered to be acts harmful to the enemy. Art.24. The Parties to the conflict shall take the necessary measures to ensure that children under fifteen, who are orphaned or are separated from

their families as a result of the war, are not left to their own resources, andthat their maintenance, the exercise of their religion and their education arefacilitated in all circumstances. Their education shall, as far as possible, beentrusted to persons of a similar cultural tradition. The Parties to the conflict shall facilitate the reception of such children in a neutral country for the duration of the conflict with the consent of the Protecting Power, if any, and under due safeguards for the observance of the principles stated in the first paragraph. They shall, furthermore, endeavour to arrange for all children under twelve to be identified by the wearing of identity discs, or by some other means. Part III. Status and Treatment of Protected Persons Section I. Provisions common to the territories of the parties to the conflict and to occupied territories Art. 27. Protected persons are entitled, in all circumstances, to respect for theirpersons, their honour, their family rights, their religious convictions and pra

ctices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity. Women shall be especially protected against any attack on their honour, in particular against rape, enforced prostitution, or any form of indecent assault. Without prejudice to the provisionsrelating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religionor political opinion. However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as



a result of the war. Art. 28. The presence of a protected person may not be used to render certain points or areas immune from military operations. Art. 31. Nophysical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties. Art. 34. The taking of hostages is prohibited.

Part II. General Protection of Populations Against Certain Consequences of War Art. 13. The provisions of Part II cover the whole of the populations of the countries in conflict, without any adverse distinction based, in particular, on race, nationality, religion or political opinion, and are intended to alleviate thesufferings caused by war. Art. 15. Any Party to the conflict may, either director through a neutral State or some humanitarian organization, propose to the adverse Party to establish, in the regions where fighting is taking place, neutralized zones intended to shelter from the effects of war the following persons, without distinction: (a) wounded and sick combatants or non-combatants; (b) civilian persons who take no part in hostilities, and who, while they reside in the zones, perform no work of a military character. When the Parties concerned have agreed upon the geographical position, administration, food supply and supervisionof the proposed neutralized zone, a written agreement shall be concluded and signed by the representatives of the Parties to the conflict. The agreement shall fix the beginning and the duration of the neutralization of the zone. Art. 18. Civilian hospitals organized to give care to the wounded and sick, the infirm andmaternity cases, may in no circumstances be the object of attack but shall at all times be respected and protected by the Parties to the conflict. States which

are Parties to a conflict shall provide all civilian hospitals with certificatesshowing that they are civilian hospitals and that the buildings which they occupy are not used for any purpose which would deprive these hospitals of protection in accordance with Article 19. Civilian hospitals shall be marked by means ofthe emblem provided for in Article 38 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of 12August 1949, but only if so authorized by the State. The Parties to the conflictshall, in so far as military considerations permit, take the necessary steps tomake the distinctive emblems indicating civilian hospitals clearly visible to the




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Section II. Aliens in the territory of a party to the conflict Art. 35. All protected persons who may desire to leave the territory at the outset of, or duringa conflict, shall be entitled to do so, unless their departure is contrary to the national interests of the State. The applications of such persons to leave shall be decided in accordance with regularly established procedures and the decision shall be taken as rapidly as possible. Those persons permitted to leave may provide themselves with the necessary funds for their journey and take with thema reasonable amount of their effects and articles of personal use. If any such person is refused permission to leave the territory, he shall be entitled to haverefusal reconsidered, as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. Upon request, representatives of the Protecting Power shall, unless reasons of security prevent it, or the persons concerned object, be furnished with the reasons for refusal ofany request for permission to leave the territory and be given, as expeditiously as possible, the names of all persons who have been denied permission to leave. Art. 38. With the exception of special measures authorized by the present Conv

ention, in particularly by Article 27 and 41 thereof, the situation of protectedpersons shall continue to be regulated, in principle, by the provisions concerning aliens in time of peace. In any case, the following rights shall be grantedto them: (1) they shall be enabled to receive the individual or collective relief that may be sent to them. (2) they shall, if their state of health so requires, receive medical attention and hospital treatment to the same extent as the nationals of the State concerned. (3) they shall be allowed to practise their religion and to receive spiritual assistance from ministers of their faith. (4) if they reside in an area particularly exposed to the dangers of war, they shall be authorized to move from that area to the same extent as the nationals of the State concerned. (5) children under fifteen years, pregnant women and mothers of children under seven years shall benefit by any preferential treatment to the sameextent as the nationals of the State concerned. Art. 40. Protected persons may b

e compelled to work only to the same extent as nationals of the Party to the conflict in whose territory they are. If protected persons are of enemy nationality, they may only be compelled to do work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of human beings and whichis not directly related to the conduct of military operations. In the cases mentioned in the two preceding paragraphs, protected persons compelled to work shallhave the benefit of the same working conditions and of the same safeguards as national workers in particular as regards wages, hours of labour, clothing and equipment, previous training and compensation for occupational accidents and diseases. If the above provisions are infringed, protected persons shall be allowed to exercise their right of complaint in accordance with Article 30. Art. 42. Theinternment or placing in assigned residence of protected persons may be orderedonly if the security of the Detaining Power makes it absolutely necessary.

If any person, acting through the representatives of the Protecting Power, voluntarily demands internment, and if his situation renders this step necessary, heshall be interned by the Power in whose hands he may be. Art. 44. In applying the measures of control mentioned in the present Convention, the Detaining Power shall not treat as enemy aliens exclusively on the basis of their nationality dejure of an enemy State, refugees who do not, in fact, enjoy the protection of any government. Section III. Occupied territories Art. 47. Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as



the result of the occupation of a territory, into the institutions or governmentof the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by thelatter of the whole or part of the occupied territory. , in order to induce them to work for the Occupying Power, are prohibited. Art. 64. The penal laws of the occupied territory shall remain in force, with the exception that they may berepealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective administration of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws. The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligations under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewise of the establishments and lines of communication used by them. Art. 68. Protected persons who commit an offence which is solely intended to harm the Occupying Power, but whichdoes not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage theproperty of the occupying forces or administration or the installations used bythem, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed.Furthermore, internment or imprisonment shall, for such offences, be the only m

easure adopted for depriving protected persons of liberty. The courts provided for under Article 66 of the present Convention may at their discretion convert asentence of imprisonment to one of internment for the same period. The penal provisions promulgated by the Occupying Power in accordance with Articles 64 and 65may impose the death penalty against a protected person only in cases where theperson is guilty of espionage, of serious acts of sabotage against the militaryinstallations of the Occupying Power or of intentional offences which have caused the death of one or more persons, provided that such offences were punishableby death under the law of the occupied territory in force before the occupationbegan. The death penalty may not be pronounced against a protected person unless the attention of the court has been particularly called to the fact that sincethe accused is not a national




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of the Occupying Power, he is not bound to it by any duty of allegiance. In anycase, the death penalty may not be pronounced on a protected person who was under eighteen years of age at the time of the offence. Art. 70. Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war. Nationals of the occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State, shall not be arrested,prosecuted, convicted or deported from the occupied territory, except for offences committed after the outbreak of hostilities, or for offences under common lawcommitted before the outbreak of hostilities which, according to the law of theoccupied State, would have justified extradition in time of peace. Art. 75. Inno case shall persons condemned to death be deprived of the right of petition for pardon or reprieve. No death sentence shall be carried out before the expiration of a period of a least six months from the date of receipt by the ProtectingPower of the notification of the final judgment confirming such death sentence,

or of an order denying pardon or reprieve. The six months period of suspension of the death sentence herein prescribed may be reduced in individual cases in circumstances of grave emergency involving an organized threat to the security of the Occupying Power or its forces, provided always that the Protecting Power is notified of such reduction and is given reasonable time and opportunity to make representations to the competent occupying authorities in respect of such death sentences. Art. 76. Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country. They shall receive the medical attention required by their state of health. They shall also have the right to receive any spiritual assistance which they

may require. Women shall be confined in separate quarters and shall be under the direct supervision of women. Proper regard shall be paid to the special treatment due to minors. Protected persons who are detained shall have the right to bevisited by delegates of the Protecting Power and of the International Committeeof the Red Cross, in accordance with the provisions of Article 143. Such persons shall have the right to receive at least one relief parcel monthly. Section IV. Regulations for the treatment of internees Chapter I. General provisions Art.80. Internees shall retain their full civil capacity and shall exercise such attendant rights as may be compatible with their status.

Art. 81. Parties to the conflict who intern protected persons shall be bound toprovide free of charge for their maintenance, and to grant them also the medicalattention required by their state of health. No deduction from the allowances,

salaries or credits due to the internees shall be made for the repayment of these costs. The Detaining Power shall provide for the support of those dependent onthe internees, if such dependents are without adequate means of support or areunable to earn a living. Chapter II. Places of Internment Art. 83. The DetainingPower shall not set up places of internment in areas particularly exposed to the dangers of war. The Detaining Power shall give the enemy Powers, through the intermediary of the Protecting Powers, all useful information regarding the geographical location of places of internment. Whenever military considerations permit, internment camps shall be indicated by the letters IC, placed so as to be clearly visible in the daytime from the air. The Powers concerned may, however, agr







on the correspondence addressed to internees, they may be ordered only by the Power to which such internees owe allegiance, possibly at the request of the Detaining Power. Such letters and cards must be conveyed with reasonable despatch; they may not be delayed or retained for disciplinary reasons. Internees who have been a long time without news, or who find it impossible to receive news from their relatives, or to give them news by the ordinary postal route, as well as those who are at a considerable distance from their homes, shall be allowed to sendtelegrams, the charges being paid by them in the currency at their disposal. They shall likewise benefit by this provision in cases which are recognized to be urgent. As a rule, internees' mail shall be written in their own language. The Parties to the conflict may authorize correspondence in other languages. Art. 113.The Detaining Powers shall provide all reasonable execution facilities for thetransmission, through the Protecting Power or the Central Agency provided for inArticle 140, or as otherwise required, of wills, powers of attorney, letters ofauthority, or any other documents intended for internees or despatched by them.In all cases the Detaining Powers shall facilitate the execution and authentication in due legal form of such documents on behalf of internees, in particular by allowing them to consult a lawyer. Art. 114. The Detaining Power shall affordinternees all facilities to enable them to manage their property, provided thisis not incompatible with the conditions of internment and the law which is applicable. For this purpose, the said Power may give them permission to leave the place of internment in urgent cases and if circumstances allow. Art.116. Every internee shall be allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible. As far as is possible, internees shal

l be permitted to visit their homes in urgent cases, particularly in cases of death or serious illness of relatives. Chapter IX. Penal and Disciplinary Sanctions Art. 117. Subject to the provisions of the present Chapter, the laws in forcein the territory in which they are detained will continue to apply to interneeswho commit offences during internment. If general laws, regulations or orders declare acts committed by internees to be punishable, whereas the same acts are not punishable when committed by persons who are not internees, such acts shall entail disciplinary punishments only. No internee may be punished more than once for the same act, or on the same count. Art. 119. The disciplinary punishments applicable to internees shall be the following: (1) a fine which shall not exceed50 per cent of the wages which the internee would otherwise receive under the provisions of Article 95 during a period of not more than thirty days.




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(2) discontinuance of privileges granted over and above the treatment provided for by the present Convention (3) fatigue duties, not exceeding two hours daily,in connection with the maintenance of the place of internment. (4) confinement.In no case shall disciplinary penalties be inhuman, brutal or dangerous for thehealth of internees. Account shall be taken of the internee's age, sex and stateof health. The duration of any single punishment shall in no case exceed a maximum of thirty consecutive days, even if the internee is answerable for several breaches of discipline when his case is dealt with, whether such breaches are connected or not. Art. 120. Internees who are recaptured after having escaped or when attempting to escape, shall be liable only to disciplinary punishment in respect of this act, even if it is a repeated offence. Article 118, paragraph 3, notwithstanding, internees punished as a result of escape or attempt to escape, maybe subjected to special surveillance, on condition that such surveillance doesnot affect the state of their health, that it is exercised in a place of internment and that it does not entail the abolition of any of the safeguards granted by the present Convention. Internees who aid and abet an escape or attempt to esc

ape, shall be liable on this count to disciplinary punishment only. Art. 121. Escape, or attempt to escape, even if it is a repeated offence, shall not be deemed an aggravating circumstance in cases where an internee is prosecuted for offences committed during his escape. The Parties to the conflict shall ensure that the competent authorities exercise leniency in deciding whether punishment inflicted for an offence shall be of a disciplinary or judicial nature, especially inrespect of acts committed in connection with an escape, whether successful or not. Chapter XI. Deaths Art. 129. The wills of internees shall be received for safe-keeping by the responsible authorities; and if the event of the death of an internee his will shall be transmitted without delay to a person whom he has previously designated. Deaths of internees shall be certified in every case by a doctor, and a death certificate shall be made out, showing the causes of death and the conditions under which it occurred. An official record of the death, duly reg

istered, shall be drawn up in accordance with the procedure relating thereto inforce in the territory where the place of internment is situated, and a duly certified copy of such record shall be transmitted without delay to the ProtectingPower as well as to the Central Agency referred to in Article 140. Art. 130. Thedetaining authorities shall ensure that internees who die while interned are honourably buried, if possible according to the rites of the religion to which they belonged and that their graves are respected, properly maintained, and markedin such a way that they can always be recognized. Deceased internees shall be buried in individual graves unless unavoidable circumstances require the use of collective graves. Bodies may be cremated only for imperative reasons of hygiene,on account of the religion of the deceased or in accordance with his expressed wish to this effect. In case of cremation, the fact shall be stated and the reasons given in the death certificate of the deceased. The ashes shall be retained f

or safe-keeping by the detaining authorities and shall be transferred as soon aspossible to the next of kin on their request.

As soon as circumstances permit, and not later than the close of hostilities, the Detaining Power shall forward lists of graves of deceased internees to the Powers on whom deceased internees depended, through the Information Bureaux provided for in Article 136. Such lists shall include all particulars necessary for theidentification of the deceased internees, as well as the exact location of their graves. Art. 131. Every death or serious injury of an internee, caused or suspected to have been caused by a sentry, another internee or any other person, as



well as any death the cause of which is unknown, shall be immediately followed by an official enquiry by the Detaining Power. A communication on this subject shall be sent immediately to the Protecting Power. The evidence of any witnesses shall be taken, and a report including such evidence shall be prepared and forwarded to the said Protecting Power. If the enquiry indicates the guilt of one or more persons, the Detaining Power shall take all necessary steps to ensure the prosecution of the person or persons responsible. Chapter XIII. Release, Repatriation and Accommodation in Neutral Countries Art. 132. Each interned person shallbe released by the Detaining Power as soon as the reasons which necessitated hisinternment no longer exist. The Parties to the conflict shall, moreover, endeavour during the course of hostilities, to conclude agreements for the release, the repatriation, the return to places of residence or the accommodation in a neutral country of certain classes of internees, in particular children, pregnant women and mothers with infants and young children, wounded and sick, and interneeswho have been detained for a long time. Art. 133. Internment shall cease as soon as possible after the close of hostilities. Internees in the territory of a Party to the conflict against whom penal proceedings are pending for offences notexclusively subject to disciplinary penalties, may be detained until the close of such proceedings and, if circumstances require, until the completion of the penalty. The same shall apply to internees who have been previously sentenced to apunishment depriving them of liberty. By agreement between the Detaining Powerand the Powers concerned, committees may be set up after the close of hostilities, or of the occupation of territories, to search for dispersed internees. Art.134. The High Contracting Parties shall endeavour, upon the close of hostilities

or occupation, to ensure the return of all internees to their last place of residence, or to facilitate their repatriation. Section V. Information Bureaux andCentral Agency Art. 136. Upon the outbreak of a conflict and in all cases of occupation, each of the Parties to the conflict shall establish an official Information Bureau responsible for receiving and transmitting information in respect ofthe protected persons who are in its power. Each of the Parties to the conflictshall, within the shortest possible period, give its Bureau information of anymeasure taken by it concerning any protected persons who are kept in custody formore than two weeks, who are subjected to assigned residence or who are interned. It shall, furthermore, require its various departments








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the functions assigned to a Protecting Power under the Conventions and this Protocol y "Substitute" means an organization acting in place of a Protecting PowerProtecting Power (Article 5) y duty of the Parties to a conflict from the beginning of that conflict to secure the supervision and implementation of the Conventions and of this Protocol by the application of the system of Protecting Powersy Protecting Powers shall have the duty of safeguarding the interests of the Parties to the conflict y each Party to the conflict shall without delay designatea Protecting Power y If a Protecting Power has not been designated, the International Committee of the Red Cross, without prejudice to the right of any other impartial humanitarian organization to do likewise, shall offer its good offices to the Parties to the conflict with a view to the designation without delay of aProtecting Power to which the Parties to the conflict consent PART 2: WOUNDED, SICK, SHIPWRECKED Definitions (Article 8) y Wounded" and "sick" mean persons, whether military or civilian, who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care and whorefrain from any act of hostility. These terms also cover maternity cases, new-b

orn babies and other persons who may be in need of immediate medical assistanceor care, such as the infirm or expectant mothers, and who refrain from any act of hostility y "Shipwrecked" means persons, whether military or civilian, who arein peril at sea or in other waters as a result of misfortune affecting them orthe vessel or aircraft carrying them and who refrain from any act of hostility.y "Medical personnel" means those persons assigned, by a Party to the conflict,exclusively to the medical purposes enumerated under e) or to the administrationof medical units or to the operation or administration of medical transports. y"Religious personnel" means military or civilian persons, such as chaplains, who are exclusively engaged in the work of their ministry and attached to the armed forces of a Party to the conflict, to medical units or medical transports of aParty to the conflict, to medical units or medical transports or to civil defense organizations of a Party to the conflict. y "Medical units" means establishme

nts and other units, whether military or civilian, organized for medical purposes, namely the search for, collection, transportation, diagnosis or treatment including first-aid treatment - of the wounded, sick and shipwrecked, or for the prevention of disease. y "Medical transportation" means the conveyance by land, water or air of the wounded, sick, shipwrecked, medical personnel, religious personnel, medical equipment or medical supplies y "Medical transports" means any means of transportation, whether military or civilian, permanent or temporary, assigned exclusively to medical transportation and under the control of a competentauthority of a Party to the conflict y "Medical vehicles" means any medical transports by land y "Medical ships and craft" means any medical transports by watery "Medical aircraft" means any medical transports by air y "Distinctive emblem"means the distinctive emblem of the red cross, red crescent or red lion and sunon a white ground when used for the protection of medical units and transports,

or medical and religious personnel, equipment or supplies

Scope (Article 9) y shall apply to all those affected by a situation referred toin Article 1, without any adverse distinction founded on race, colour, sex, language, religion or belief political or other opinion, national or social origin,wealth, birth or other status, or on any other similar criteria. Protection ofPersons (Article 11) y All the wounded, sick and shipwrecked, to whichever Partythey belong, shall be respected and protected y The physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty shall not be endangered by any



unjustified act or omission y prohibited to carry out on such persons, even withtheir consent: physical mutilations, medical or scientific experiments, removalof tissue or organs for transplantation y Exceptions to the prohibition: only in the case of donations of blood for transfusion or of skin for grafting, provided that they are given voluntarily and without any coercion or inducement, and then only for therapeutic purposes Protection of Medical Units y Medical units shall be respected and protected at all times and shall not be the object of attack (Article 12) y Under no circumstances shall medical units be used in an attempt to shield military objectives from attack (Article 12) y protection to which civilian medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy (Article 13) ynot be considered as acts harmful to the enemy: that the personnel of the unitare equipped with light individual weapons for their own defence or for that ofthe wounded and sick in their charge, that the unit is guarded by a picket or bysentries or by an escort, that small arms and ammunition taken from the woundedand sick, and not yet handed to the proper service, are found in the units, that members of the armed forces or other combatants are in the unit for medical reasons (Article 13) Protection of civilian medical and religious personnel (Article 15) y Civilian medical personnel shall be respected and protected y The Occupying Power shall afford civilian medical personnel in occupied territories everyassistance to enable them to perform, to the best of their ability, their humanitarian functions y Civilian religious personnel shall be respected and protected Role of the civilian population and of aid societies (Article 17) y The civilian population shall respect the wounded, sick and shipwrecked, even if they belo

ng to the adverse Party, and shall commit no act of violence against them Identification (Article 18) y civilian medical personnel and civilian religious personnel should be recognizable by the distinctive emblem and an identity card certifying their status y a Party to the conflict may authorize the use of distinctivesignals to identify medical units and transports Medical Transportation y Medical vehicles shall be respected and protected in the same way as mobile medical units (Article 21)




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y Medical ships and craft, whether at sea or in other waters, be respected and protected in the same way as mobile medical units (Article 23) y Any warship on the surface able immediately to enforce its command may order them to stop, orderthem off, or make them take a certain course, and they shall obey every such command. Such ships and craft may not in any other way be diverted from their medical mission so long as they are needed for the wounded, sick and shipwrecked onboard (Article 23) y A clear refusal to obey a command given in accordance withparagraph 2 shall be an act harmful to the enemy (Article 23) y Medical aircraftshall be respected and protected (Article 24) y In and over land areas physically controlled by friendly forces, or in and over sea areas not physically controlled by an adverse Party, the respect and protection of medical aircraft of a Party to the conflict is not dependent on any agreement with an adverse Party (Article 25) y A medical aircraft which flies over an area physically controlled byan adverse Party without, or in deviation from the terms of, an agreement, either through navigational error or because of an emergency affecting the safety ofthe flight, shall make every effort to identify itself and to inform the adverse

Party of the circumstances. As soon as such medical aircraft has been recognized by the adverse Party, that Party shall make all reasonable efforts to give theorder to land or to alight on water, or to take other measures to safeguard itsown interests, and, in either case, to allow the aircraft time for compliance,before resorting to an attack against the aircraft. (Article 27) y Medical aircraft shall not be used to collect or transmit intelligence data and shall not carry any equipment intended for such purpose (Article 28) y Medical aircraft shallnot carry any armament except small arms and ammunition taken from the wounded,sick and shipwrecked on board and not yet handed to the proper service, and such light individual weapons as may be necessary to enable the medical personnel on board to defend themselves and the wounded, sick and shipwrecked in their charge. (Article 28) y Medical aircraft flying over areas which are physically controlled by an adverse Party, or over areas the physical control of which is not cl

early established, may be ordered to land or to alight on water, as appropriate,to permit inspection in accordance with the following paragraphs. Medical aircraft shall obey any such order. (Article 30) y Should a medical aircraft, in theabsence of an agreement or in deviation from the terms of an agreement, fly overthe territory of a neutral or other State not a Party to the conflict, either through navigational error or because of an emergency affecting the safety of theflight, it shall make every effort to give notice of the flight and to identifyitself. That State shall make all reasonable efforts to give the order to landor to alight on water to allow the aircraft time for compliance, before resorting to an attack against the aircraft. (Article 31)

y In the absence of any agreement and if the home country of such deceased is not willing to arrange at its expense for the maintenance of such gravesites, the

High Contracting Party in whose territory the gravesites are situated may offerto facilitate the return of the remains of the deceased to the home country. Where such an offer has not been accepted the High Contracting Party may, after theexpiry of five years from the date of the offer and upon due notice to the homecountry, adopt the arrangements laid down in its own laws relating to cemeteries and graves.

Part 3: Methods and Means of Warfare, Combatants and POW Methods and Means of Warfare y prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering (Article



35) y prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment (Article 35) y prohibited to kill, injure or capture an adversary byresort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray thatconfidence, shall constitute perfidy (Article 37) y Ruses of war are not prohibited. Such ruses are acts which are intended to mislead an adversary or to induce him to act recklessly but which infringe no rule of international law applicable in armed conflict and which are not perfidious because they do not invite theconfidence of an adversary with respect to protection under that law. The following are examples of such ruses: the use of camouflage, decoys, mock operationsand misinformation. (Article 37) y prohibited to make improper use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other emblems, signs or signals (Article 38) y prohibited to make use of the distinctive emblem of the United Nations, except as authorized by that Organization (Article38) y prohibited to make use in an armed conflict of the flags or military emblems, insignia or uniforms of neutral or other States not Parties to the conflict(Article 39) y prohibited to make use of the flags or military emblems, insigniaor uniforms of adverse Parties while engaging in attacks or in order to shield,favour, protect or impede military operations (Article 39) y No person parachuting from an aircraft in distress shall be made the object of attack during his descent (Article 42) y person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack,

unless it is apparent that he is engaging in a hostile act (Article 42) Armed Forces (Article 43) y armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to thatParty for the conduct or its subordinates y Members of the armed forces of a Party to a conflict (other than medical personnel and chaplains) are combatants, that is to say, they have the right to participate directly in hostilities. Combatants and POW y Any combatant who falls into the power of an adverse Party shallbe a prisoner of war. (Article 44)

Missing Persons (Article 33) y As soon as circumstances permit, and at the latest from the end of active hostilities, each Party to the conflict shall search for the persons who have been reported missing by an adverse Party Dead Persons (Article 34) y The remains of persons who have died for reasons related to occupat

ion or in detention resulting from occupation or hostilities and those or persons not nationals of the country in which they have died as a result of hostilities shall be respected, and the gravesites of all such persons shall be respected,maintained and marked.




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y combatants are obliged to distinguish themselves from the civilian populationwhile they are engaged in an attack or in a military operation preparatory to anattack (Article 44) y A combatant who falls into the power of an adverse Partywhile failing to distinguish himself from noncombatants shall forfeit his rightto be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war (Article 44) y A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war and should any doubt arise as to whetherany such person is entitled to the status of prisoner of war, he shall continueto have such status until such time as his status has been determined by a competent tribunal. (Article 45) y any member of the armed forces of a Party to theconflict who falls into the power of an adverse Party while engaging in espionage shall not have the right to the status of prisoner of war and may be treated as a spy (Article 46) y member of the armed forces of a Party to the conflict who, on behalf of that Party and in territory controlled by an adverse Party, gathers or attempts to gather information shall not be considered as engaging in espi

onage if, while so acting, he is in the uniform of his armed forces (Article 46)y A mercenary shall not have the right to be a combatant or a prisoner of war (Article 47)

shield military objectives from attacks or to shield military operations. Protection of Civilian Objects y Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. (Article 52) y it is prohibited:to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; to use such objects in

support of the military effort; to make such objects the object of reprisals. (Article 53) y prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose ofdenying them for their sustenance value to the civilian population or to the adverse Party (Article 54) y prohibitions above shall not apply to such of the objects covered by it as are used by an adverse Party: as sustenance solely for themembers of its armed forces; or if not as sustenance, then in direct support ofmilitary action (Article 54) Protection of the Natural Environment (Article 55)y Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage y Attacks against the natural environment byway of reprisals are prohibited. Protection of works and installations containi

ng dangerous forces (Article 56) y Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall notbe made the object of attack, even where these objects are military objectives,if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. y In order to facilitate the identificationof the objects protected by this article, the Parties to the conflict may markthem with a special sign consisting of a group of three bright orange circles placed on the same axis Zones under Special Protection y It is prohibited for theParties to the conflict to attack, by any means whatsoever, non-defended localities (Article 59) y The appropriate authorities of a Party to the conflict may de



clare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact which is open for occupation by an adverse Party. Sucha locality shall fulfill the following conditions: all combatants, as well as mobile weapons and mobile military equipment must have been evacuated; no hostileuse shall be made of fixed military installations or establishments; no acts ofhostility shall be committed by the authorities or by the population; and no activities in support of military operations shall be undertaken. (Article 59) y Itis prohibited for the Parties to the conflict to extend their military operations to zones on which they have conferred by agreement the status of demilitarized zone, if such extension is contrary to the terms of this agreement. A demilitarized zone is a zone which fulfils the following conditions: all combatants, aswell as mobile weapons and mobile military equipment, must have

Part 4: Civilian Population y the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations onlyagainst military objectives (Article 48) y In case of doubt whether a person isa civilian, that person shall be considered to be a civilian (Article 50) y Civilian objects shall not be the object of attack or of reprisals. (Article 52) y Starvation of civilians as a method of warfare is prohibited (Article 54) y In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. (Article 57) y Persons who, before the beginning of hostilities, were considered as stateless persons or refugees under the relevant international instruments accepted by the Parties concerne

d or under the national legislation of the State of refuge or State of residenceshall be protected persons (Article 73) y The High Contracting Parties and theParties to the conflict shall facilitate in every possible way the reunion of families dispersed as a result of armed conflicts and shall encourage in particular the work of the humanitarian organizations engaged in this task in accordancewith the provisions of the Conventions and of this Protocol and in conformity with their respective security regulations. (Article 74) Protection of Civilian Population (Article 51) y The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. y Thecivilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is tospread terror among the civilian population are prohibited. y Attacks against the civilian population or civilians by way of reprisals are prohibited. y The Par

ties to the conflict shall not direct the movement of the civilian population orindividual civilians in order to attempt to




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been evacuated; no hostile use shall be made of fixed military installations orestablishments; no acts of hostility shall be committed by the authorities or bythe population; and any activity linked to the military effort must have ceased. (Article 60) Civil Defense y "Civil defence" means the performance of humanitarian tasks intended to protect the civilian population against the dangers, andto help it to recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival (Article 61) y Civilian civil defence organizations and their personnel shall be respected and protected (Article 62) y Occupying Power may disarm civil defence personnel for reasons of security. (Article 62) y . The protection to which civilian civil defenceorganizations, their personnel, buildings, shelters and matériel are entitled shall not cease unless they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. Protection may, however, cease only after a warninghas been given setting, whenever appropriate, a reasonable time-limit, and after such warning has remained unheeded. (Article 65) y It shall also not be considered as an act harmful to the enemy that civilian civil defence personnel bear l

ight individual weapons for the purpose of maintaining order or for self-defence(Article 65) y Each Party to the conflict shall endeavour to ensure that its civil defence organizations, their personnel, buildings and matériel are identifiable while they are exclusively devoted to the performance of civil defence tasks.(Article 66) y The international distinctive sign of civil defence is an equilateral blue triangle on an orange ground when used for the protection of civil defence organizations, their personnel, buildings and matériel and for civilian shelters. (Article 66) Relief Actions y If the civilian population of any territory under the control of a Party to the conflict, other than occupied territory, is not adequately provided with supplies, relief actions which are humanitarian andimpartial in character and conducted without any adverse distinction shall be undertaken, subject to the agreement of the Parties concerned in such relief actions. Offers of such relief shall not be regarded as interference in the armed con

flict or as unfriendly acts. In the distribution of relief consignments, priority shall be given to those persons, such as children, expectant mothers, maternity cases and nursing mothers, who, under the Fourth Convention or under this Protocol, are to be accorded privileged treatment or special protection. (Article 70) y Each Party in receipt of relief consignments shall, to the fullest extent practicable, assist the relief personnel in carrying out their relief mission. Only in case of imperative military necessity may the activities of the relief personnel be limited or their movements temporarily restricted. (Article 71) Penal Prosecutions (Article 75) y No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following: (a) the procedure shall provide for an accus

ed to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all

necessary rights and means of defence; (b) no one shall be convicted of an offence except on the basis of individual penal responsibility; (c) no one shall be accused or convicted of a criminal offence on account or any act or omission which did not constitute a criminal offence under the national or international lawto which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made



by law for the imposition of a lighter penalty, the offender shall benefit thereby; (d) anyone charged with an offence is presumed innocent until proved guiltyaccording to law; (e) anyone charged with an offence shall have the right to betried in his presence; (f) no one shall be compelled to testify against himselfor to confess guilt; (g) anyone charged with an offence shall have the right toexamine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (h) no one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure; (i) anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and (j) a convicted person shall be advised on conviction or his judicial and other remedies and of the time-limits within which they may be exercised. Protection of Women y Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated frommen's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units. (Article 75)y Women shall be the object of special respect and shall be protected in particular against rape, forced prostitution and any other form of indecent assault. (Article 76) y Pregnant women and mothers having dependent infants who are arrested, detained or interned for reasons related to the armed conflict, shall have their cases considered with the utmost priority. (Article 76) y To the maximum extent feasible, the Parties to the conflict shall endeavor to avoid the pronounce

ment of the death penalty on pregnant women or mothers having dependent infants,for an offence related to the armed conflict. The death penalty for such offences shall not be executed on such women. (Article 76) Protection of Children y Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years the Parties to the conflict shall endeavour to give priority to those who are oldest. (Article 77) yIf arrested, detained or interned for reasons related to the armed conflict, children shall be held in quarters separate from the quarters of adults, except where families are accommodated as family units (Article 77)




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y The death penalty for an offence related to the armed conflict shall not be executed on persons who had not attained the age of eighteen years at the time theoffence was committed (Article 77) y No Party to the conflict shall arrange forthe evacuation of children, other than its own nationals, to a foreign countryexcept for a temporary evacuation where compelling reasons of the health or medical treatment of the children or, except in occupied territory, their safety, sorequire. Where the parents or legal guardians can be found, their written consent to such evacuation is required. If these persons cannot be found, the writtenconsent to such evacuation of the persons who by law or custom are primarily responsible for the care of the children is required. Any such evacuation shall besupervised by the Protecting Power in agreement with the Parties concerned, namely, the Party arranging for the evacuation, the Party receiving the children and any Parties whose nationals are being evacuated. In each case, all Parties tothe conflict shall take all feasible precautions to avoid endangering the evacuation. (Article 78)

given by special arrangement, for example, within the framework of a competent international organization, the object of attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of Article 53, subparagraph (b), and when such historic monuments, works ofart and places of worship are not located in the immediate proximity of military objectives; (e) depriving a person protected by the Conventions or referred toin paragraph 2 of this Article of the rights of fair and regular trial. y gravebreaches of these instruments shall be regarded as war crimes International Fact-Finding Commission (Article 90) y a) An International Fact-Finding Commission(hereinafter referred to as "the Commission") consisting of 15 members of high moral standing and acknowledged impartiality shall be established; (b) When not less than 20 High Contracting Parties have agreed to accept the competence of theCommission pursuant to paragraph 2, the depositary shall then, and at intervals

of five years thereafter, convene a meeting of representatives of those High Contracting Parties for the purpose of electing the members of the Commission. Atthe meeting, the representatives shall elect the members of the Commission by secret ballot from a list of persons to which each of those High Contracting Parties may nominate one person; (c) The members of the Commission shall serve in their personal capacity and shall hold office until the election of new members atthe ensuing meeting; (d) At the election, the High Contracting Parties shall ensure that the persons to be elected to the Commission individually possess the qualifications required and that, in the Commission as a whole, equitable geographical representation is assured; (e) In the case of a casual vacancy, the Commission itself shall fill the vacancy, having due regard to the provisions of the preceding subparagraphs; (f) The depositary shall make available to the Commissionthe necessary administrative facilities for the performance of its functions. y

The Commission shall be competent to: (i) inquire into any facts alleged to bea grave breach as defined in the Conventions and this Protocol or other seriousviolation of the Conventions or of this Protocol; (ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol; (d) In other situations, the Commission shall institute an inquiryat the request of a Party to the conflict only with the consent of the other Party or Parties concerned; (e) Subject to the foregoing provisions or this paragraph, the provisions of Article 52 of the First Convention, Article 53 of the Second Convention, Article 132 or the Third Convention and Article 149 of the Fourth Convention shall continue to apply to any alleged violation of the Conventions



and shall extend to any alleged violation of this Protocol. Responsibility (Article 91) y A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of itsarmed forces. Denunciation (Article 99) y In case a High Contracting Party should denounce this Protocol, the denunciation shall only take effect one year after receipt of the instrument of denunciation. If, however, on the expiry of thatyear the denouncing Party is engaged in one of the situations

Protection of Journalists (Article 79) y Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians y They may obtain an identity card similar to the model in Annex II of this Protocol. This card, which shall be issued by the government of the State of which the Journalist is a national or in whose territory he resides or in which the news medium employing him is located, shall attest to his status as a journalist. GraveBreaches (Article 85) y the following acts shall be regarded as grave breachesof this Protocol, when committed willfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health: (a)making the civilian population or individual civilians the object of attack; (b) launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life,injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii); (c) launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive los

s of life, injury to civilians or damage to civilian objects, as defined in Article 57, paragraph 2 (a)(iii); (d) making non-defended localities and demilitarized zones the object of attack; (e) making a person the object of attack in the knowledge that he is hors de combat; (f) the perfidious use of the distinctive emblem of the red cross, red crescent or red lion and sun or of other protective signs recognized by the Conventions or this Protocol y the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions or the Protocol: (a) the transfer by the occupying Powerof parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, y (b) unjustifiable delay in the repatriation of prisoners of war or civilians; (c) practices of apartheid and other inhuman and degrading practices involving outrages upon personal dignity, based on rac

ial discrimination; (d) making the clearly-recognized historic monuments, worksof art or places of worship which constitute the cultural or spiritual heritageof peoples and to which special protection has been




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referred to in Article I, the denunciation shall not take effect before the endof the armed conflict or occupation and not, in any case, before operations connected with the final release, repatriation or re-establishment of the persons protected by the Convention or this Protocol have been terminated. y The denunciation shall be notified in writing to the depositary, which shall transmit it to all the High Contracting Parties.

The Second Protocol Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977. The rules observed in international armed conflicts are also applicable in non-international armed conflicts.

distinctive emblems mentioned in Articles 1 and 2 and their designations, including the perfidious use and the use of any sign or designation constituting an imitation thereof. Notwithstanding the paragraph above, High Contracting Parties may permit prior users of the third Protocol emblem, or of any sign constituting

an imitation thereof, to continue such use, provided that the said use shall notbe such as would appear, in time of armed conflict, to confer the protection ofthe Geneva Conventions and, where applicable, the 1977 Additional Protocols, and provided that the rights to such use were acquired before the adoption of thisProtocol.

4. FOREIGN INVESTMENTS AND NATURAL RESOURCESCrash Course In Basic Foreign Investment Law39 A. EXPROPRIATION LAW

The Third Protocol Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005 Distinctive Emblems (Article 2) y This Protocol recognizesan additional distinctive emblem in addition to, and for the same purposes as, t

he distinctive emblems of the Geneva Conventions. The distinctive emblems shallenjoy equal status. y This additional distinctive emblem, composed of a red frame in the shape of a square on edge on a white ground, shall conform to the illustration in the Annex to this Protocol. This distinctive emblem is referred to inthis Protocol as the "third Protocol emblem". Indicative use of the third Protocol emblem (Article 3) y National Societies of those High Contracting Parties which decide to use the third Protocol emblem may, in using the emblem in conformity with relevant national legislation, choose to incorporate within it, for indicative purposes: a) a distinctive emblem recognized by the Geneva Conventions ora combination of these emblems; or b) another emblem which has been in effective use by a High Contracting Party and was the subject of a communication to theother High Contracting Parties and the International Committee of the Red Crossthrough the depositary prior to the adoption of this Protocol. Who may use the 3

protocol emblem y National societies of high contracting parties (Article 3) yInternational Committee of the Red Cross and the International Federation of RedCross and Red Crescent Societies, and their duly authorized personnel (Article4) y medical services and religious personnel participating in operations underthe auspices of the United Nations (Article 5) Prevention and Repression of Misuse (Article 6) y The provisions of the Geneva Conventions and, where applicable,the 1977 Additional Protocols, governing prevention and repression of misuse ofthe distinctive emblems shall apply equally to the third Protocol emblem. In particular, the High Contracting Parties shall take measures necessary for the prevention and repression, at all times, of any misuse of the



rd

As one of the most dynamic fields of international commercial law today, foreigninvestment law has undergone a rapid evolution in state practice within the recent past. There are many centers of controversy within the larger field of foreign investment law, but arguably the most contentious issue remains that of expropriation. The context of international expropriation rules is: the home state (where the investment is located) expropriates the rights of ownership of the investor state (who introduced the investment and to whom such investment belongs) who, as an alien, may rely on international law for the standard of treatment that should be accorded to it. We must remember that expropriation, although recognized as one of the inherent attributes of sovereignty, assumes an internationaland therefore more complex dimension when exercised against foreign property because (1) the investor state, being a subject of a foreign state, cannot be deemed to have been completely subsumed under the authority and sovereignty of the home state by virtue merely of their contractual relations (2) the relationship ofhome and investor states are clearly defined under an investment contract which, according to its verbiage, may or may not make reference to international lawin cases of conflict, in the former case the ideally absolute exercise of the home state s sovereignty becomes limited to a certain extent by the standards of international law. In navigating through the turbulent waters of expropriation rules, one may be guided by the following principles which, to date, may be said togovern foreign investment law: 1. The norm remains to be the harmonization of all sources of legal obligations. One party to an investment contract cannot there

fore renege on the duties it voluntarily assumed on the pretext of complying with a duty or exercising a right if the source of such duty or right comes into conflict with the obligations laid down in the investment contract and/ or customary law. The home state is therefore not allowed to unilaterally revoke investment agreements on the basis of its absolute sovereignty over its natural resources, because such exercise of sovereignty must as much as possible be consonant with the duty to comply with obligations validly entered into.

39

Thanks to ceejay balisacan for this portion



UP Law B2009 Reviewer (Karichi Edition) 2.

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If harmonization is not possible, the norm remains to be the expropriability ofevery property. Although investment contracts must be complied with in good faith, all states recognize the validity of the exercise of a home state of its prerogative to expropriate. The home state can therefore take foreign property, andthere are no established absolute exceptions to this rule (meaning there are nocases wherein the home state can be said to be absolutely barred or precluded from expropriating). The only difference lies in the legal consequence of every act of taking, which would depend on whether the taking was lawful or not, or whether the parties expressly provided in the investment contract for the processesto be complied with during such expropriatory acts.

4.

3.

For every act of expropriation, the norm remains to be the compensability of eve

ry act of taking. If the home state takes, it is bound to pay. This is the prevailing rule in current state practice and opinion juris. The home state may exercise its prerogative to expropriate, but it cannot do so without compensating theinvestor state or at least reinstating the status quo ante (meaning the considerations paid for and benefits received under the contract would be restored to the respective parties). The duty to pay compensation may take various forms. Itmay be (1) a necessary legal consequence of the expropriatory act, as provided expressly in the investment contract (2) a necessary legal consequence of the expropriatory act, in accordance with customary law (3) an alternative form of extinguishment of a legal obligation (instead of performing the obligations under the contract, the home state chooses to reinstate the status quo ante by giving back, as compensation, the consideration for the contract plus other incidental adjustments), or (4) in the form of punitive damages, where the taking was adjudge

d to be unlawful, in which case the contract may be enforced or, if performanceis already impossible, the home state may be required to pay compensation in anamount that would approximate the value of the property taken and the damage caused by the unlawful taking. The fact that compensation must be paid is generallyaccepted as a norm; the only point of contention is the QUANTUM of such compensation. How much should be paid is often a subject of debate and there is as yetno fixed rule in determining the value of compensation that must be paid. In practice, however, what the home state pays the investor would usually be a matterof negotiation and conditioned upon the financial circumstances of the home state. There are some cases where the norm of compensability is believed to be inapplicable, although such exemptions are found in the writings of publicists and noauthoritative decision has yet been rendered recognizing these exemptions as such. The examples are 40 41 the taxing power of the state , regulatory takings ,

and 42 police powers .

In any case, the norm remains to be enforceability of every international legalobligation, regardless of the source. The investment contract may be primarily the law between the parties. However, by virtue of the fact that investment agreements are often concluded between states or between private entities pursuant toa trade agreement concluded by their respective states, international legal obligations would inevitably come into play. As such, from the time the investor state introduces the foreign property into the home state s territory, both would have to be guided by the obligations which both are bound to under international l












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committee was to be final, to admit no appeal, and to be communicated to the Petroleum Minister, who will then inform BP about it within 30 days of issuance. However, no action on compensation was taken until February 13, 1972. A three mancommittee was formed but it was only in September of that year that BP receivedcommunication from the committee, asking its remarks and viewpoints on the matter of compensation. As a result of the Nationalization Law (which was rapidly implemented) BP s operations in Concession 65 were brought to a complete halt and itsstaff were immediately excluded from the premises and facilities. The Arabian Gulf Exploration Company had taken over Concession 65. The Concession contract inthis case contains the same governing law clause as that in the case of Texacoabove that Libyan law would be applicable only to the extent that it coincides with international law. The arbitrator first disposed of the issue of (1) whetheror not the alleged injured party to a concession agreement has the right to deem the contract as valid and enforceable even after the alleged wrongful expropriation and (2) whether or not the injured party may claim reparations in the formof specific performance/ restitutio in integrum. The arbitrator stated that und

er international law, the wrongful breach of a contract would entitle the injured party to terminate the contract at its option. Until and unless such injured party elects to do so, the contract should be deemed as valid and binding and itcan compel the other party to continue performing its obligations under it. However, such situation, according to the arbitrator, does not find application in acase where the other (expropriating) party is a sovereign state. The right to deem the contract as continuing to be binding and the consequent right to demandrestitutio in integrum is therefore not available to BP under international law.This pronouncement is important because it recognizes the almost plenary powerof the home state to expropriate that the home state cannot be precluded under international law to expropriate when it wishes to. Finding no concurrence between Libyan and international law regarding the declarations sought to be obtainedby BP, the arbitrator then turns to international law. Under international law,

the arbitrator declared, the same conclusions as above were inevitable no support for the claim that the injured party may deem the contract as continuing to bevalid and that restitutio in integrum is proper. The all-important portion of the decision which applies to all expropriation cases involving a sovereign stateis: when by exercise of sovereign power a State committed a fundamental breach of a concession agreement by repudiating it through a nationalization of the enterprise and its assets in a manner which implies finality, the concessionaire isnot entitled to call for specific performance by the Government of the agreementand reinstatement of his contractual rights, but his sole remedy is an action for damages . The conclusion is therefore unequivocal the home state may expropriate when it desires to, and even if such expropriation is done in breach of the contract, the home state can still not be entitled to reinstate the operability ofthe contract; at the most, it can only be compelled to pay damages. In this cas

e, damages were awarded by the arbitrator. However, it is important to note thatthe circumstances under which the expropriation took place in this case constitutes one of the first instances where an arbitral court classified state actionsas (1) in breach of obligations (2) discriminatory and (3) confiscatory. The wrongfulness of the expropriatory act is important to establish because this woulddetermine the quantum of compensation that would be awarded to the injured party. The oft-quoted portion of the decision is: The BP Nationalization Law, and actions taken

thereunder, by Libya, constitute a fundamental breach of the BP Concession as th






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(4) Compensability, once satisfied, renders a taking lawful under international law; the unsatisfactory quantum of such compensation on the part of the investorwould not render the taking unlawful In 1973 and 1974 Libya nationalized both LIAMCO's rights under the concessions and certain of its oil drilling equipment. Following unsuccessful negotiations regarding compensation, LIAMCO rejected the terms of the nationalization and initiated proceedings under the arbitration clause. Libya, maintaining that the nationalization superseded the concessions altogether, refused to participate in the Geneva proceedings. LIAMCO, after obtaininga favorable ruling, brings action to the District Court of the District of Columbia to confirm and enforce such ruling. In bringing the suit, LIAMCO invokes thejurisdiction of the Court pursuant to American Law on Actions Against Foreign States , arguing that Libya is not immune under the Foreign Sovereign Immunities Act(FSIA). LIAMCO further contends that the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Convention) requires the confirmation of theaward. Libya does not challenge the validity of the underlying award. Instead it mounts a two pronged defense arguing first that the Court is without jurisdict

ion, and second, that even should the Court find jurisdiction, it should refrainfrom enforcing the award under the Convention because of the act of state doctrine. This case was brought before an American Court not because that is where itwill be litigated but because LIAMCO wanted the arbitral decision rendered in Geneva to be confirmed in the United States. The District Court of the District of Columbia made several pronouncements relevant under international law. First,it held that the arbitration clause of the concession contract between LIAMCO and Libya is sufficient to bring disputes arising under it within the ambit of international law. As such, as far as American law is concerned, it has acquired jurisdiction over Libya notwithstanding its supposedly immune status as a state because of the arbitration clause (which provides that arbitration should take place either where the parties agreed, or where the arbitrators might agree ) that contemplates arbitration anywhere in the world, including the United States. Second

, this case is relevant in expropriation law because it recognizes that measuresfalling within the act of state doctrine47 cannot be questioned by another foreign state. It does not mean that the court before which a case is brought can be deprived of jurisdiction properly acquired, as in this case. It only means that in litigating a claim, all the parties to the dispute, including the court, wouldtake it as a given that an act of state is valid and legitimate. In short, allother points of issue may be litigated except whether or not the home state is justified in expropriating. Under American law, particularly the Hickenlooper Amendment to 48 the Foreign Assistance Act , acts of state may be passed upon if such would amount to a confiscatory taking violative of international law and thePresident of the United States does not exercise his prerogative, by reason of foreign policy, to preclude American courts from doing so. Under this consideration, the District Court dismissed

LIAMCO s claim as being not justiciable, and made two pronouncements relevant to expropriation law: the taking requirement of the Hickenlooper amendment was not satisfied because (1) contractual rights are not property , and the repudiation of contractual obligations not a taking , within the meaning of the law; and the violativeof international law requisite was also not satisfied because (2) a taking is not rendered violative of international law simply because the investor is not satisfied with the amount of compensation the home state is prepared to pay; as long as there exists a mechanism for compensation within the law of the home state,the taking is lawful.






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intangible assets as management rights, legitimate investmentbacked expectationsin the completion of the venture, and right to proceeds. The Tribunal, in sum,laid down the doctrine that expropriation may be direct or indirect, and that itmay be undertaken through a literal taking of a physical asset, or through a deprivation of ownership rights closely related to a physical property.

was not found to be unlawful, and the Tribunal merely awarded compensation to Aminoil.

Amoco International Finance v. IranSir Roque says: nationalization is not illegal per se but it is illegal if doneto escape obligations entered into by the state, and if there is no prompt and adequate compensation (includes lucrum cessans). (1) Expropriation may be done fora public purpose, and not merely for public utility (2) Compensability is the norm; the process or quantum of compensation is not. An expropriation is thereforedeemed lawful as long as provision for compensation exists, although it may be u

nsatisfactory to the investor, subject to the submission of any dispute to arbitration (3) Takings may be done in successive stages; the fact that the entire economic branch to which an enterprise belongs was not expropriated is not necessarily a badge of discriminatory intent (4) A home state is not bound by obligations contracted by private entities within its territories. For any such obligation toarise, a clear duty on the part of the home state must be embodied in the contract Amoco is a Swiss company and a wholly owned subsidiary of Standard Oil, and American company. Amoco entered into a joint venture with NPC, an Iranian companycontrolled by the Iranian government, to form Khemco, an Iranian company jointly owned and managed by Amoco and NPC. The venture sought to process and sell Iranian natural gas, each contracting party having 50% shares in the profits to berealized. In 1980, the Khemco Agreement, which was by its terms valid for 35 years, was declared null and void by the Iranian government following the 1979 Iran

ian revolution and the implementation of Iranian legislation (the Single ArticleAct of 1980) that was intended to complete the nationalization of the Iranian oil industry. Amoco filed a suit for compensation for the taking of its interestsin Khemco. The first doctrine of foreign investment law that was pronounced inAmoco is that the ground for expropriation which was formerly limited to publicutility (as expressed in the Chorzow case) has been expanded to the more generalterm public purpose. It is therefore not needed for the expropriating home state to prove that it wanted to exercise ownership over the property taken for theuse of the public. It is enough that the taking be done in pursuance of some public purpose49. Secondly, the case reiterated the doctrine in LIAMCO that a taking satisfies international standards of lawfulness when it provides for a mechanism for the payment of compensation. Under the Single Article Act, a special commission will be constituted to determine the amount of compensation due to the fo

reign investor, any disagreement over the quantum of which may be submitted forarbitration. Amoco did not avail of this remedy, and so it cannot be said that the expropriation was unlawful per se because it did not grant compensation in such manner and within such time as to satisfy the investor. What would make an act of taking unlawful under international law would be the absence of any provision for compensation.

Kuwait v. Aminoil A home state may not be precluded from expropriating; if any, the limitations tothe exercise of expropriatory prerogative must be confined only to a limited per



iod covering serious undertakings, and such limitations must be expressly provided for in the contract Aminoil is an American company which was granted an oil concession by Kuwait. However, Kuwait, by Decree, terminated the agreement beforeits expiry and transferred the concession assets to itself. Aminoil question thelegality of the termination under the stabilization clauses of the contract, particularly Art 17 and Art 11(B). The provisions prohibit a nationalization of theoil venture. Art 17 states that no alteration shall be made in the terms of thisAgreement except in the event of the Shaikh and the Company jointly agreeing thatit is desirable in the interest of both parties to make certain alterations, deletions or additions. Art 11(B) states that save as aforesaid this Agreement shallnot be terminated before the expiration of the period specified except by surrender as provided in Article 12 or if the Company shall be in default under the arbitration provisions of Article 18. Kuwait, in defense of its actions, invokes theprinciple of sovereignty over natural resources which, according to it, is an imperative rule of jus cogens. This principle prohibits States from giving guarantees against the exercise of the public authority over natural resources. In contrast with Dupuy s arbitral decision in the Texaco case, the arbitral court in Aminoil expressly reiterates that there is no rule in international law absolutely precluding a home state from expropriating. The only limitations (and not absolute exceptions) to this rule are three-fold: States may pledge not to nationalizebut only if: [a] it is for a serious undertaking; [b] it is expressly stipulatedfor; [c] it covers a limited period. In short, a home state may validly waive its expropriatory prerogative only for a limited time (the prohibition against taking cannot be perpetual), only upon serious undertakings (other investments of

a smaller scale may be expropriated more expeditiously), and in any case any such limitations must be embodied in the contract. The expropriatory power of the state is the general rule, and therefore any limitations to its exercise cannot be implied. In considering the legal consequences of an expropriatory act, consideration must be given to whether the investor has been adequately protected by express provisions of the contract relating to compensation. The compensability of an expropriatory act strongly militates against the presumption that the homestate can take property without necessary legal consequences in the exercise ofits sovereignty. The Tribunal also interpreted Arts 17 and 11(B) as not absolutely forbidding nationalization because it impliedly requires that nationalizationshall not have a confiscatory character. Lastly, the Tribunal gave due credit to the fact that the act of Kuwait was in pursuance of a legitimate state policy.It considered that the undertaking (the extraction of oil) was at first, direct

ed to narrow patrimonial ends, that is, as a financial venture entered into by the Kuwaiti government for its governmental purposes. Later, it became an essential instrument in the economic and social progress of the State, as evidenced bythe progressive development of Kuwaiti law with a view to taking an active rolein the development of its own resources within its territory. As such, the expropriation in this case

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By this standard, the home state may transfer ownership of the property for theuse of a private entity, or even let the property lie idle or destroy it ± in anycase there would be an expropriation.




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Thirdly, the Amoco case is also instructive with regard to the issue of discriminatory takings. In the BP case, the Tribunal actually found that there was a discriminatory expropriation because it was undertaken only against BP and not against other similar ventures of other nationalities. The Tribunal in the Amoco case did not rule that an expropriation is per se unlawful because it is directed only against a particular entity within a larger industry. The Tribunal in this case recognized that the act of expropriation which is the prerogative of the home state may be undertaken in such manner as to be determined by the home state in pursuance of its policies. The nonexpropriation of an entire branch of economic activity is not in itself discrimination, absent any evidence of patent bad faith or discriminatory designs. Said the Tribunal: Reasons specific to the non-expropriated enterprise, or to the expropriated one, or to both, may justify such adifference of treatment. Furthermore, as observed by the arbitral tribunal in AMINOIL, a coherent policy of nationalization can reasonably be operated gradually in successive stages . Lastly, the important doctrine laid down in this case isthat stabilization clauses must be clear in demanding from the home state obliga

tions which the investor state can enforce against it. Absent such unequivocal stipulation in the contract, the home state cannot be deemed to have been a partyto the contract and cannot therefore be held liable under its terms. In this case, no clear obligation was imposed by the concession contract on the Iran government. There was no showing that the contract contained a stabilization clause that would have obligated the Iranian government to insulate the contract from anychange in domestic law that would affect the contract s operation. As such, the Iranian government cannot be said to have expropriated Amoco s property in breach ofits obligations because no obligation exists on its part. In conclusion, the Tribunal ordered Iran s compensation of Amoco as a necessary legal consequence of the taking, and such expropriation was classified as a lawful one under international law, thereby negating the propriety of any award of damages. Phillips v. Iran (1) Expropriation is any act which would deprive the investor of his ownership

rights permanently (2) Focus should be on the effect of the expropriatory act on the investor, and not on the intention of the home state (3) The reckoning point ofexpropriation is that point at which the deprivation of ownership rights becomes irreversible Phillips entered into a Joint Structure Agreement with Iranian Government to exploit oil. Imam Khomeini sparks a revolution in Autumn of 1978 andit succeeds in toppling over the past regime in February 1979. The revolutionarygovernment decides to withdraw all oil contracts with foreign companies under the guise of Nationalization/Anti-western sentiment. The company then sued for recovery of compensation form the Iranian government. The Phillips case is significant in that it reiterated the doctrine on indirect expropriation established inthe Starett case. This case, however, further qualified the concept of indirectexpropriation by pronouncing that (1) expropriation need not be of contractualrights closely related to a physical property; it is merely required that the ta

king amount to a deprivation of ownership rights (2) expropriation must be donewith finality and not merely ephemeral (3) the focus must be on the effect and impact of the expropriatory act on the investor and not on the intention of the home state or the manner in which the expropriation is undertaken this heavy focus on the effect of expropriatory acts on the investor more than the

government interest pursued will later be known as the sole effect doctrine in foreign investment law. Said the tribunal: While assumption of control over propertyby a government does not automatically and immediately justify a conclusion that the property has been taken by the government, thus requiring compensation und






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treaty itself has been pronounced by the highest court of the land. In the caseof Tanada v. Angara, the Supreme Court has had occasion to declare that (1) theFilipino-First policy purportedly enshrined in the Constitution is just a hortatory provision which cannot be legally enforced as a matter of right without anysupporting legislation (2) the Philippines does not adhere to an isolationist economic policy and is in fact accommodative of international trade arrangements that are anchored on the policy of equality and reciprocity (3) the WTO Agreeement constitutes a treaty obligation which the Philippines is bound to perform under the principle of pacta sunt servanda; as such, since the pacta sunt servanda doctrine is part of international law, it is binding on the Philippines by virtueof the Constitution s Incorporation Clause (4) the international free trade regime embodied in the WTO Agreement represents the best possible economic option forthe Philippines, considering the prevailing international economic context. This last pronouncement of the Court was uncalled for at the very least, it being astatement of policy which the Court has no competence to make. In deciding thecase the way it did, therefore, the Supreme Court not only solidified the argume

nt that the WTO Agreement is a valid treaty obligation, but also made the unsolicited pronouncement of the trade regime s wisdom and propriety. The implementationof the WTO Agreement in the country, however, is not without issue. As expected, many contentious controversies have confronted the country primarily in the field of protecting against unfair trade measures of other states. We must remember that the WTO established not only a policy of progressive lowering of tariffs,it also put in place certain measures of economic enforcement to ensure that trade between nations are as equal as possible. These economic enforcement measures are anti-dumping measures, countervailing measures, and safeguard measures: (1) anti-dumping measures there is dumping when the export price of a commodity isless than its normal value in the exporting state. Anti-dumping measures seek to equalize trade in such manner as for the commodity to actually reflect its value from the standards of the exporting state. Such measures must be undertaken o

nly after it was proven that (1) a dumping exists (2) there was an actual injuryto a domestic industry (3) there is a causal link between the dumping and the injury. In addition, the measures must be initiated by 25% of an industry affected. (2) countervailing measures a subsidy is a financial contribution by a government where there is either a direct fund transfer, a revenue which otherwise dueis forgone, or when a government provides goods and services. In such cases, countervailing measures may be employed by the importing state to make the productreflect its actual value taking into consideration the subsidy that its manufacturers have received. Such measures may be undertaken only if it was proven that(1) a dumping exists (2) there was an actual injury to a domestic industry (3)there is a causal link between the dumping and the injury. (3) safeguard measures safeguard measures are employed when there is a showing of a dramatic increasein the imports of a particular commodity. Dumping or unfair subsidy need not be

proved to justify resort to these measures, it being enough that surge in imports is proven alongside a serious injury or threat of injury that the former hascaused or will cause, and that the product in

question is a like product , in absolute or relative terms, to the product domestically manufactured. How exactly the arbitration panels and the Appellate Body ofthe WTO (which were established to rule on disputes between states arising fromthe interpretation of the Agreement s provisions) dealt with cases and disputes arising from the adoption of such economic enforcement measures is also a fertiletopic. Here, relevant decisions and the essential portions of their rulings inte



rpretative of the Agreement s provisions will be considered: 1. Cold Rolled Coil Sheets from Taiwan the injury proven was not causally linked to the dumping measure but a result of such extraneous factors as the Asian Financial Crisis, debt servicing, and inefficient and uncompetitive technology. Portland Cement Case theTariff Commission of the Philippines is independent and its factual findings are given great weight by the Court. Desiccated Coconut Case (Philippines v. Brazil) the application for remedies must follow the process set out in the treaty; in this case, the case should have been brought before the GATT and not the WTO because the measures were imposed under GATT. Shrimps Case (US); Tuna Case (US);Reformulated and Conventional Gasoline Case (US) the US must impose trade restrictions that are in conjunction with restrictions on domestic production or consumption and must impose them against not only imported but locally harvested products.

2.

3.

4.

It is also relevant that one of the recognized valid grounds for the impositionof trade restrictions are the so-called Sanitary and Phytosanitary Standards (SPS) which allows an importing state to impose trade measures to protect human, animal or plant life or health in the territory of member states either from (1) e

ntry , establishment, or spread of pests or diseases (2) risks arising from additives, contaminant toxin, or disease-causing organism, (3) from a risk arising from a disease or pest carried by an animal or plant, (4) to prevent or limit other damages in the territory of member states arising from the introduction, establishment or spread of pests. The imposition of these measures, however, are subject to the showing of sufficient scientific basis and the undertaking of risk assessment measures. Any challenge to the validity of SPS measures must be anchored on the proposition of an available alternative to the measure being challenged that would (1) provide the same or a higher protection than that given by thechallenged measure and (2) be less restrictive of trade. 5. Beef Hormones Case (US v. EU) risk assessment is a prerequisite in the imposition of SPS measures Bananas Case (US v. EU) quantitative trade preferences are violations of the mostfavored nation provision of the WTO Agreement. The same tariff dues must be impo

sed on similar products, regardless of the origin.

6.




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144345787 Public International Law