SPECIAL ISSUES ON INTERNATIONAL LAW

Atty. CATHERINE A. CAMPOSANO-REMIGIO, CPA

A. Concepts1. Obligations erga omnes2. Jus cogens3. Concept of aequo et bono (Art. 38, Statute of the International Court of Justice

Ex Aequo Et Bono is a Latin term which means what is just and fair or according to equity and good conscience. Something to be decided ex aequo et bono is something that is to be decided by principles of what is fair and just. A decision-maker who is authorized to decide ex aequo et bono is not bound by legal rules but may take account of what is just and fair.Most legal cases are decided on the strict rule of law. For example, a contract will be enforced by the legal system no matter how unfair it may prove to be. But a case to be decided ex aequo et bono, overrides the strict rule of law and requires instead a decision based on what is fair and just under the given circumstances.It is a term often used in international law when a matter is to be decided according to principles of equity rather than by points of law. Article 38(2) of the Statute of the International Court of Justice provides that the court may decide cases ex aequo et bono, if the parties agree thereto.In the context of arbitration, it refers to the power of the arbitrators to dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand. Article 33 of the United Nations Commission on International Trade Law's Arbitration Rules (1976) provides that the arbitral tribunal should decide as ex aequo et bono only if the parties have expressly authorized the arbitral tribunal to do so and if the law applicable to the arbitral procedure permits such arbitration.

Vinuya vs. Executive Secretary, G.R. No. 162230, April 28, 2010

G.R. No. 162230, April 28, 2010FACTS:This is an original Petition for Certiorari under Rule 65 of the Rules of Court with an application for the issuance of a writ of preliminary mandatory injunction against the Office of the Executive Secretary, the Secretary of the DFA, the Secretary of the DOJ, and the OSG.

Petitioners are all members of the MALAYA LOLAS, a non-stock, non-profit organization registered with the SEC, established for the purpose of providing aid to the victims of rape by Japanese military forces in the Philippines during the Second World War.

Petitioners claim that since 1998, they have approached the Executive Department through the DOJ, DFA, and OSG, requesting assistance in filing a claim against the Japanese officials and military officers who ordered the establishment of the “comfort women” stations in the Philippines. But officials of the Executive Department declined to assist the petitioners, and took the position that the individual claims of the comfort women for compensation had already been fully satisfied by Japan’s compliance with the Peace Treaty between the Philippines and Japan.

Hence, this petition where petitioners pray for this court to (a) declare that respondents committed grave abuse of discretion amounting to lack or excess of discretion in refusing to espouse their claims for the crimes against humanity and war crimes committed against them; and (b) compel the respondents to espouse their claims for official apology and other forms of reparations against Japan before the International Court of Justice (ICJ) and other international tribunals.

Respondents maintain that all claims of the Philippines and its nationals relative to the war were dealt with in the San Francisco Peace Treaty of 1951 and the bilateral Reparations Agreement of 1956.

On January 15, 1997, the Asian Women’s Fund and the Philippine government signed a Memorandum of Understanding for medical and welfare support programs for former

comfort women. Over the next five years, these were implemented by the Department of Social Welfare and Development.

ISSUE:WON the Executive Department committed grave abuse of discretion in not espousing petitioners’ claims for official apology and other forms of reparations against Japan.

RULING:Petition lacks merit. From a Domestic Law Perspective, the Executive Department has the exclusive prerogative to determine whether to espouse petitioners’ claims against Japan.

Political questions refer “to those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the government. It is concerned with issues dependent upon the wisdom, not legality of a particular measure.”

One type of case of political questions involves questions of foreign relations. It is well-established that “the conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative–‘the political’–departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.” are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil.

But not all cases implicating foreign relations present political questions, and courts certainly possess the authority to construe or invalidate treaties and executive agreements. However, the question whether the Philippine government should espouse claims of its nationals against a foreign government is a foreign relations matter, the authority for which is demonstrably committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question.

The President, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials.

The Executive Department has determined that taking up petitioners’ cause would be inimical to our country’s foreign policy interests, and could disrupt our relations with Japan, thereby creating serious implications for stability in this region. For the to overturn the Executive Department’s determination would mean an assessment of the foreign policy judgments by a coordinate political branch to which authority to make that judgment has been constitutionally committed.

From a municipal law perspective, certiorari will not lie. As a general principle, where such an extraordinary length of time has lapsed between the treaty’s conclusion and our consideration – the Executive must be given ample discretion to assess the foreign policy considerations of espousing a claim against Japan, from the standpoint of both the interests of the petitioners and those of the Republic, and decide on that basis if apologies are sufficient, and whether further steps are appropriate or necessary.

In the international sphere, traditionally, the only means available for individuals to bring a claim within the international legal system has been when the individual is able to persuade a government to bring a claim on the individual’s behalf. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right to ensure, in the person of its subjects, respect for the rules of international law.

Within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal person on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to national law, if means are available, with a

view to furthering their cause or obtaining redress. All these questions remain within the province of municipal law and do not affect the position internationally.

Even the invocation of jus cogens norms and erga omnes obligations will not alter this analysis. Petitioners have not shown that the crimes committed by the Japanese army violated jus cogens prohibitions at the time the Treaty of Peace was signed, or that the duty to prosecute perpetrators of international crimes is an erga omnes obligation or has attained the status of jus cogens.

The term erga omnes (Latin: in relation to everyone) in international law has been used as a legal term describing obligations owed by States towards the community of states as a whole. Essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature, the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.

The term “jus cogens” (literally, “compelling law”) refers to norms that command peremptory authority, superseding conflicting treaties and custom. Jus cogens norms are considered peremptory in the sense that they are mandatory, do not admit derogation, and can be modified only by general international norms of equivalent authority

WHEREFORE, the Petition is hereby DISMISSED.

Delimitation of the Maritime Boundary in the Gulf of Maine (Canada/United States of America), International Court of Justice, October 12, 1984.

Summary of the Summary of the Judgment of 12 October 1984

CASE CONCERNING DELIMITATION OF THE MARITIME BOUNDARY IN THE GULF OF MAINE AREA

Judgment of 12 October 1984

In its judgment, the Chamber of the Court constituted in the case concerning delimitation of the maritime boundary in the Gulf of Maine Area (Canada/United States of America) decided by four votes to one:

"That the course of the single maritime boundary that divides the continental shelf and the exclusive fisheries zones of Canada and the United States of America in the Area referred to in the Special Agreement concluded by those two States on 29 March 1979 shall be defined by geodetic lines connecting the points with the following co-ordinates:

Latitude North Longitude WestA. 44� 11' 12" 67� 16' 46"B. 42� 53' 14" 67� 44' 35"C. 42� 31' 08" 67� 28' 05"D. 40� 27' 05" 65� 41' 59"."(For the location of these points see Map No. 4.)** *The votes were cast as follows:IN FAVOUR: President Ago; Judges Mosler and Schwebel, Judge ad hoc Cohen;AGAINST: Judge Gros.** *The Chamber was composed as follows: President Ago, Judges Gros, Mosler,

Schwebel, Judge ad hoc Cohen.**Judge Schwebel appended a separate opinion and Judge Gros a dissenting opinion to

the Judgment.In these opinions the Judges concerned stated and explained the positions they

adopted in regard to certain points dealt with in the Judgment.** *I. The Special Agreement and the Chamber's Jurisdiction (paras. 1-27)After recapitulating the various stages in the proceedings and setting out the formal

submission of the Parties (paras. 1-13), the Chamber takes note of the provisions of the

Special Agreement by which the case was brought before it. Under Article II, paragraph 1, of that Special Agreement, it was:

"requested to decide, in accordance with the principles and rules of international law applicable in the matter as between the Parties, the following question:

What is the course of the single maritime boundary that divides the continental shelf and fisheries zones of Canada and the United States of America from a point in latitude 44� 11' 12" N, longitude 67� 16' 46" W to a point to be determined by the Chamber within an area bounded by straight lines Connecting the following sets of geographic coordinates: latitude 40� N, longitude 67� W; latitude 40� N, longitude 65� W; latitude 42� N, longitude 65� W?"

(For the location of the starting-point and terminal area of the delimitation, see Map No. 1.)

The Chamber notes that the Special Agreement imposes no limitation on its jurisdiction other than that resulting from the terms of this question, and that the rights of third States in the marine and submarine areas to which the case related could not in any way be affected by the delimitation. It also notes that, the case having been submitted by special agreement, no preliminary question of jurisdiction arose. The only initial problem that might theoretically arise is whether and to what extent the Chamber is obliged to adhere to the terms of the Special Agreement as regards the starting-point of the line to be drawn - called point A - and the triangular area within which that line is to terminate. Noting the reasons for the Parties' choice of the point and area in question, the Chamber sees a decisive consideration for not adopting any other starting-point or terminal area in the fact that, under international law, mutual agreement between States concerned is the preferred procedure for establishing a maritime delimitation; since Canada and the United States of America had by mutual agreement taken a step towards the solution of their dispute which must not be disregarded, the Chamber must, in performing the task conferred upon it, conform to the terms by which the Parties have defined it.

The Chamber notes that there are profound differences between the case before it and other delimitation cases previously brought before the Court in that (a) the Chamber is requested to draw the line of delimitation itself and not merely to undertake a task preliminary to the determination of a line, and (b) the delimitation requested does not relate exclusively to the continental shelf but to both the shelf and the exclusive fishing zone, the delimitation to be by a single boundary. With regard to (b), the Chamber is of the view that there is certainly no rule of international law, or any material impossibility, to prevent it from determining such a line.

II. The delimitation area (paras. 28-59)The Chamber finds it indispensable to define with greater precision the geographical

area-"the Gulf of Maine area" - within which the delimitation has to be carried out. It notes that the Gulf of Maine properly so called is a broad indentation in the eastern coast of the North-American continent, having roughly the shape of an elongated rectangle whose short sides are made up mainly by the coasts of Massachusetts in the west and Nova Scotia in the east, whose long landward side is made up by the coast of Maine from Cape Elizabeth to the terminus of the international boundary between the United States and Canada and whose fourth, Atlantic side would be an imaginary line, between Nantucket and Cape Sable, agreed by the Parties to be the "closing line" of the Gulf of Maine.

The Chamber emphasizes the quasi-parallel direction of the opposite coasts of Massachusetts and Nova Scotia. It points out that the reference to "long" and "short" sides is not to be interpreted as an espousal of the idea of distinguishing "primary" and "secondary" coastal fronts. The latter distinction is merely the expression of a human value judgment, which is necessarily subjective and may vary on the basis of the same facts, depending on the ends in view. It points out, with reference to certain arguments put forward by the Parties, that geographical facts are the result of natural phenomena and can only be taken as they are.

The delimitation, the Chamber observes, is not limited to the Gulf of Maine but comprises, beyond the Gulf closing line, another maritime expanse including the whole of the Georges Bank, the main focus of the dispute. The Chamber rejects however the arguments of the Parties tending to involve coasts other than those directly surrounding the Gulf so as to extend the delimitation area to expanses which have in fact nothing to do with it.

After noting that it has up to this point based itself on aspects inherent in physical geography, the Chamber goes on to consider the geological and geomorphological characteristics of the area. It notes that the Parties are in agreement that geological factors are not significant and finds that, given the unity and uniformity of the sea-bed, there are no geomorphological reasons for distinguishing between the respective natural prolongations of the United States and Canadian coasts in the continental shelf of the delimitation area: even the Northeast Channel, which is the most prominent feature, does not have the characteristics of a real trough dividing two geomorphologically distinct units.

As regards another component element of the delimitation area, the "water column", the Chamber notes that while Canada emphasized its character of overall unity, the United States invoked the existence of three distinct ecological r�gimes separated by natural boundaries the most important of which consisted of the Northeast Channel; the Chamber,

however, is not convinced of the possibility of discerning, in so fluctuating an environment as the waters of the ocean, any natural boundaries capable of serving as a basis for carrying out a delimitation of the kind requested.

III. Origins and development of the dispute (paras. 60-78)Beginning with a reference to the Truman Proclamations of 1945, the Chamber

summarizes the origins and development of the dispute, which first materialized in the 1960s in relation to the continental shelf, as soon as petroleum exploration had begun on either side, more particularly in certain locations on Georges Bank. In 1976-1977 certain events occurred which added to the continental shelf dimension that of the waters and their living resources, for both States proceeded to institute an exclusive 200 mile fishery zone off their coasts and adopted regulations specifying the limits of the zone and continental shelf they claimed. In its account of the negotiations which eventually led to the reference of the dispute to the Court, the Chamber notes that in 1976 the United States adopted a line limiting both the continental shelf and the fishing zones and the adoption by Canada of a first line in 1976 (Map No. 2).

The Chamber takes note of the respective delimitation lines now proposed by each Party (Map No. 3). The Canadian line, described like that of 1976 as an equidistance line, is one constructed almost entirely from the nearest points of the baselines from which the breadth of the territorial sea is measured. Those points happen to be exclusively islands, rocks or low-tide elevations, yet the basepoints on the Massachusetts coast which had initially been chosen for the 1976 line have been shifted westward so that the new line no longer takes account of the protrusion formed by Cape Cod and Nantucket Island and is accordingly displaced west. The line proposed by the United States is a perpendicular to the general direction of the coast from the starting-point agreed upon by the Parties, adjusted to avoid the splitting of fishing banks. It differs from the "Northeast Channel line" adopted in 1976 which, according to its authors, had been based upon the "equidistance/special circumstances" rub of Article 6 of the 1958 Geneva Convention. The Chamber notes that the two successive lines put forward by Canada were both drawn primarily with the continental shelf in mind, whereas the United States lines were both drawn up initially on the basis of different considerations though both treated the fishery r�gime as essential.

IV. The applicable principles and rules of international law (paras. 79-112)After observing that the terms "principles and rules" really convey one and the same

idea, the Chamber stresses that a distinction has to be made between such principles or rules and what, rather, are equitable criteria or practical methods for ensuring that a particular situation is dealt with in accordance with those principles and rules. Of its nature, customary international law can only provide a few basic legal principles serving as guidelines and cannot be expected also to specify the equitable criteria to be applied or the practical methods to be followed. The same may however not be true of international treaty law.

To determine the principles and rules of international law governing maritime delimitation, the Chamber begins by examining the Geneva Convention of 29 April 1958 on the Continental Shelf, which has been ratified by both the Parties to the case, who both also recognize that it is in force between them. In particular the Chamber examines Article 6, paragraphs 1 and 2, from which a principle of international law may be deduced to the effect bat any delimitation of a continental shelf effected unilaterally by one State regardless of the views of the other State or States concerned is not opposable to those States. To this principle may conceivably be added a latent rule that any agreement or other equivalent solution should involve the application of equitable criteria. The Chamber goes on to consider the bearing on the problem of various judicial decisions and to comment upon the work of the Third United Nations Conference on the Law of the Sea, noting that certain provisions concerning the continental shelf and the exclusive economic zone were, in the Convention of 1982, adopted without any objections and may be regarded as consonant at present with general international law on the question.

As regards the respective positions of the Parties in the light of those findings, the Chamber notes their agreement as to the existence of a fundamental norm of international law calling for a single maritime boundary to be determined in accordance with the applicable law, in conformity with equitable principles, having regard to all relevant circumstances, in order to achieve an equitable result. However, there is no longer agreement between the Parties when each separately seeks to ascertain whether international law might also contain other mandatory rules in the same field. The Chamber rejects the Canadian argument from geographical adjacency to the effect that a rule exists whereby a State any part of whose coasts is less distant from the zones to be attributed than those of the other State concerned would be entitled to have the zones recognized as its own. The Chamber also finds unacceptable the distinction made by the United States between "primary" and "secondary" coasts and the consequent preferential relationship said to exist between the "principal" coasts and the maritime and submarine areas situated frontally before them.

In concluding this part of its considerations, the Chamber sets out a more precise reformulation of the fundamental norm acknowledged by the Parties:

"No maritime delimitation between States with opposite or adjacent coasts may be effected unilaterally by one of those States. Such delimitation must be sought and effected

by means of an agreement, following negotiations conducted in good faith and with the genuine intention of achieving a positive result. Where, however, such agreement cannot be achieved, delimitation should be effected by recourse to a third party possessing the necessary competence.

"In either case delimitation is to be effected by the application of equitable criteria and by the use of practical methods capable of ensuring, with regard to the geographic configuration of the area and other relevant circumstances, an equitable result." (Para. 112.)

V. The equitable criteria and practical methods applicable to the delimitation (paras. 113-163)

Turning to the question of the criteria and methods which are capable of ensuring an equitable result and whose application is prescribed by the above norm, the Chamber is of the view that they must be looked for not in customary international law but in positive international law, and in that connection it examines those provided for by the 1958 Convention on the Continental Shelf, in Article 6 (median line in the case of opposite coasts, lateral equidistance line in the case of adjacent coasts). The Chamber points out that a treaty obligation concerning the delimitation of the continental shelf cannot be extended so as to apply to the superjacent waters and, after rejecting the Canadian argument that the combined equidistance/special-circumstances rule has become a rule of general international law, finds that Article 6, while in force between the Parties, does not entail either for them or for the Chamber any legal obligation to apply its provisions to the present delimitation.

The Chamber next turns to the question whether any obligation of that kind can have resulted from the conduct of the Parties and whether the conduct of one of them might not have constituted an acquiescence in the application of a specific method or resulted in a modus vivendi with regard to a line corresponding to such an application. Dealing first with a Canadian argument that the conduct of the United States had evinced a form of consent to the application of the equidistance method, especially in the Georges Bank sector, the Chamber finds that reliance on acquiescence or estoppel is not warranted in the circumstances and that the conduct of the Parties not prove the existence of any such modus vivendi. As for the argument of the United States based on Canada's failure to react to the Truman Proclamation, that amounted to claiming that delimitation must be effected in accordance with equitable principles; consequently, the United States position on that point merely referred back to the "fundamental norm" acknowledged by both Parties. On the basis of that analysis, the Chamber concludes that the Parties, in the current state of the law governing relations between them, are not bound, under a rule of treaty law or other rule, to apply certain criteria or certain methods for the establishment of the single maritime boundary, and that the Chamber is not so bound either.

Regarding possible criteria, the Chamber does not consider that it would be useful to undertake a more or less complete enumeration in the abstract of those that might be theoretically conceivable, or an evaluation of their greater or lesser degree of equity. It also notes, in regard to the practical methods, that none would intrinsically bring greater justice or be of greater practical usefulness than others, and that there must be willingness to adopt a combination of different methods whenever circumstances so require.

VI. The criteria and methods proposed by the Parties and the lines resulting from their application to the delimitation (paras. 164-189)

Once the dispute had taken on its present dual dimension (first the continental shelf and subsequently fisheries) both Parties took care to specify and publish their respective claims, proposing the application of very different criteria and the use of very different practical methods. Each had successively proposed two delimitation lines (Maps Nos. 2 and 3).

The United States had first proposed, in 1976, a criterion attaching determinative value to the natural, especially ecological, factors of the area. Its line corresponded approximately to the line of the greatest depths, leaving German Bank to Canada and Georges Bank to the United States. The Chamber considers that this line, inspired as it was by the objective of distributing fishery resources in accordance with a "natural" criterion, was too biased towards one aspect (fisheries) to be considered as equitable in relation to the overall problem. In 1982 the United States proposed a second line with the general direction of the coast as its central idea, the criterion applied being that of the frontal projection of the primary coastal front. This application resulted in a perpendicular to the general direction of the coastline, adjusted however to take account of various relevant circumstances, in particular such ecological circumstances as the existence of fishing banks. The Chamber considers it almost an essential condition for the use of such a method that the boundary to be drawn should concern two countries whose territories lie successively along a more or less rectilinear coast, for a certain distance at least. But it would be difficult to imagine a case less conducive to the application of that method than the Gulf of Maine case. The circumstances would moreover entail so many adjustments that the character of the method would be completely distorted.

As for the Canadian proposals, the Chamber considers together the two lines proposed respectively in 1976 and 1977, as they are essentially based on the same criterion, that of the equal division of disputed areas - and the same method - equidistance. Canada described the first line as a strict equidistance line, and the second as an

equidistance line corrected on account of the special circumstance formed by the protrusion of Nantucket Island and the Cape Cod peninsula, alleged to be geographical anomalies that Canada is entitled to discount, so that its delimitation line is displaced towards the west. The Chamber notes that in the case before it the difference in the lengths of the two States' coastlines within the delimitation area is particularly marked and would constitute a valid ground for making a correction even if this factor in itself furnished neither a criterion nor a method of delimitation. Furthermore, the Canadian line appears to neglect the difference between two situations clearly distinguished by the 1958 Convention, namely that of adjacent coasts and that of opposite coasts, and fails to take account of the fact that the relationship of lateral adjacency between on the one hand, part of the coast of Nova Scotia and its prolongation across the opening of the Bay of Fundy and, on the other hand, the coast of Maine, gives way to a relationship of frontal opposition between the other relevant part of the coast of Nova Scotia and the coast of Massachusetts. The Canadian line fails to allow for this new relationship, which is nevertheless the most characteristic feature of the objective situation in the context of which the delimitation is to be effected.

VII. The criteria and methods held by the Chamber to be applicable. Line resulting from their application to the delimitation (paras. 190-229)

The Chamber considers that, having regard to all those considerations, it must put forward its own solution independently of the Parties. It must exclude criteria which, however equitable they may appear in themselves, are not suited to the delimitation of both of the two objects in respect of which the delimitation is requested - the continental shelf and the fishery zones. Inevitably, criteria will be preferred which, by their more neutral character, are best suited for use in a multipurpose delimitation. The Chamber feels bound to turn in the present case to criteria more especially derived from geography, and it is inevitable that its basic choice should favour the criterion whereby one should aim at an equal division of areas where the maritime projections of the coasts of the States between which delimitation is to be effected converge and overlap. However, some corrections must be made to certain effects of applying that criterion that might be unreasonable, so that the concurrent use of auxiliary criteria may appear indispensable. As regards the practical methods to be used for giving effect to the criteria indicated, the Chamber considers that, like the criteria themselves, they must be basically founded upon geography and be as suitable for the delimitation of the sea-bed and subsoil as to that of the superjacent waters and their living resources. In the outcome, therefore, only geometrical methods will serve.

Turning to the concrete choice of the methods it considers appropriate for implementing the equitable criteria it has decided to apply, the Chamber notes that the coastal configuration of the Gulf of Maine excludes any possibility of the boundary's being formed by a basically unidirectional line, given the change of situation noted in the geography of the Gulf. It is only in the northeastern vector of the Gulf that the prevailing relationship of the coasts of the United States and Canada is one of lateral adjacency. In the sector closest to the closing line, it is one of oppositeness. In the Chamber's view it is therefore obvious that, between point A and the line from Nantucket to Cape Sable, i.e. within the limits of the Gulf of Maine proper, the delimitation line must comprise two segments.

In the case of the first segment, the one closest to the international boundary terminus, there is no special circumstance to militate against the division into, as far as possible, equal parts of the overlapping created by the lateral superimposition of the maritime projections of the two States' coasts. Rejecting the employment of a lateral equidistance line on account of the disadvantages it is found to entail, the Chamber follows the method of drawing, from point A, two perpendiculars to the two basic coastal lines, namely the line from Cape Elizabeth to the international boundary terminus and the line running thence to Cape Sable. At point A, those two perpendiculars form an acute angle of 278�. It is the bisector of this angle which is prescribed for the first sector of the delimitation line (Map No. 4).

In turning to the second segment, the Chamber proceeds by two stages. First, it decides the method to be employed in view of the quasi-parallelism between the coasts of Nova Scotia and Massachusetts. As these are opposite coasts, the application of a geometrical method can only result in the drawing of a median delimitation line approximately parallel to them. The Chamber finds, however, that, while a median line would be perfectly legitimate if the international boundary ended in the very middle of the coast at the back of the Gulf, in the actual circumstances where it is situated at the northeastern corner of the rectangle which geometrically represents the shape of the Gulf the use of a median line would result in an unreasonable effect, in that it would give Canada the same overall maritime projection in the delimitation area as if the entire eastern part of the coast of Maine belonged to Canada instead of the United States. That being so, the Chamber finds a second stage necessary, in which it corrects the median line to take account of the undeniably important circumstance of the difference in length between the two States' coastlines abutting on the delimitation area. As the total length of the United States coastlines on the Gulf is approximately 284 nautical miles, and that of the Canadian coasts (including part of the coast of the Bay of Fundy) is approximately 206 nautical miles, the ratio of the coastlines is 1.38 to 1. However, a further correction is necessitated by the presence of Seal Island off Nova Scotia. The Chamber considers that it would be excessive to

consider the coastline of Nova Scotia as displaced in a southwesterly direction by the entire distance between Seal Island and that coast, and therefore considers it appropriate to attribute half effect to the island. Taking that into account, the ratio to be applied to determine the position of the corrected median line on a line across the Gulf between the points where the coasts of Nova Scotia and Massachusetts are closest (i.e. a line from the tip of Cape Cod to Chebogue Point) becomes 1.32 to 1. The second segment of the delimitation will therefore correspond to the median line as thus corrected, from its intersection with the bisector drawn from point A (first segment) to the point where it reaches the closing line of the Gulf (Map No. 4).

As for the third segment of the delimitation, relating to that part of the delimitation area lying outside the Gulf of Maine, this portion of the line is situated throughout its length in the open ocean. It appears obvious that the most appropriate geometrical method for this segment is the drawing of a perpendicular to the closing line of the Gulf. One advantage of this method is to give the final segment of the line practically the same orientation as that given by both Parties to the final portion of the respective lines they envisaged. As for the exact point on the closing line from which the perpendicular should be drawn seawards, it will coincide with the intersection of that line with the corrected median line. Starting from that point, the third segment crosses Georges Bank between points on the 100-fathom depth line with the following coordinates:

42� 11'.8 N, 67� 11'.0 W41� 10'.1 N, 66� 17'.9 WThe terminus of this final segment will be situated within the triangle defined by the

Special Agreement and coincide with the last point it reaches within the overlapping of the respective 200-mile zones claimed by the two States.

VIII. Verification of the equitable character of the result (paras. 230-241)Having drawn the delimitation line requested by the Parties, the final task of the

Chamber is to verify whether the result obtained can be considered as intrinsically equitable in the light of all the circumstances. While such verification is not absolutely necessary where the first two segments of the line are concerned, since the Chamber's guiding parameters were provided by geography, the situation is different as regards the third segment, which is the one of greatest concern to the Parties on account of the presence in the area it traverses of Georges Bank, the principal stake in the proceedings on account of the potential resources of its subsoil and the economic importance of its fisheries.

In the eyes of the United States, the decisive factor lies in the fishing carried on by the United States and its nationals ever since the country's independence and even before, activities which they are held to have been alone in pursuing over the greater part of that period, and which were accompanied by other maritime activities concerning navigational assistance, rescue, research, defence, etc. Canada laid greater emphasis on the socio-economic aspects, concentrating on the recent past, especially the last 15 years, and presenting as an equitable principle the idea that a single maritime boundary should ensure the maintenance of the existing structures of fishing which, according to it, were of vital importance to the coastal communities of the area.

The Chamber explains why it cannot subscribe to these contentions and finds that it is clearly out of the question to consider the respective scale of activities in the domain of fishing or petroleum exploitation as an equitable criterion to be applied in determining the delimitation line. What the Chamber would regard as a legitimate scruple lies rather in concern lest, unexpectedly, the overall result should appear radically inequitable as entailing disastrous repercussions on the subsistence and economic development of the populations concerned. It considers that there is no reason to fear any such danger in the present case on account of the Chamber's choice of delimitation line or, more especially, the course of its third segment, and concludes that the overall result of the delimitation is equitable. Noting the long tradition of friendly and fruitful co-operation in maritime matters between Canada and the United States, the Chamber considers that the Parties will be able to surmount any difficulties and take the right steps to ensure the positive development of their activities in the important domains concerned.

For these reasons, the Chamber renders the decision couched in the following terms:OPERATIVE PROVISIONS OF THE CHAMBER'S JUDGMENTTHE CHAMBER,by four votes to one,DecidesThat the course of the single maritime boundary that divides the continental shelf

and the exclusive fisheries zones of Canada and the United States of America in the Area referred to in the Special Agreement concluded by those two States on 29 March 1979 shall be defined by geodetic lines connecting the points with the following co-ordinates:

Latitude North Longitude WestA. 44� 11' 12" 67� 16' 46"B. 42� 53' 14" 67� 44' 35"C. 42� 31' 08" 67� 28' 05"D. 40� 27' 05" 65� 41' 59"IN FAVOUR: President Ago; Judges Mosler and Schwebel, Judge ad hoc Cohen;AGAINST: Judge Gros."

(For the location of the co-ordinates given above, see Map No.4.)** *__________SUMMARY OF OPINIONS APPENDED TO THEJUDGMENT OF THE CHAMBERSeparate Opinion by Judge SchwebelJudge Schwebel voted for the Chamber's Judgment because he agreed with the

essentials of its analysis and reasoning and found the resultant line of delimitation to be "not inequitable". In his view, the Chamber was right to exclude both the claims of Canada and of the United States, not with a view towards "splitting the difference" between them but because those claims was insufficiently grounded in law and equity. It was right - contrary to the United States position - to divide Georges Bank between the United States and Canada. However, Judge Schwebel maintained that the line of delimitation drawn by the Chamber was open to challenge.

The line was correctly based on dividing the areas of overlapping United States and Canadian jurisdiction equally, subject, however, to a critical adjustment designed to take account of the fact that the bulk of the Gulf of Maine is bordered by territory of the United States. In Judge Schwebel's view, the adjustment applied by the Chamber was inadequate, because it treated the lengths of the coasts of the Bay of Fundy up to the limit of Canadian territorial waters as part of the Gulf of Maine. In his opinion, only that portion of the Bay of Fundy which faces the Gulf of Maine should have been included in that calculation of proportionality. Had that been done, the delimitation line would have been shifted towards Nova Scotia so as to accord the United States a significantly larger zone. Nevertheless, Judge Schwebel acknowledged that the equitable considerations which led the Chamber and him to differing conclusions on this key issue were open to more than one interpretation.

__________Dissenting Opinion by Judge GrosJudge Gros points out that the case-law took a new turning when the International

Court of Justice gave its Judgment on 24 February 1982 in the case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya). That Judgment brought to an end the situation resulting from the 1958 Convention on the Continental Shelf as it had been previously interpreted by the Court, in its 1969 Judgment on the North Sea Continental Shelf, and by the Anglo-French Court of Arbitration in its Decision of 1977.

This new turning, confirmed by the Chamber's Judgment, amounted to exclusive reliance on the work of the Third Conference of the United Nations on the Law of the Sea, but this Conference produced agreement plus equity as its prescription for maritime delimitation, a solution which Judge Gros considers very feeble.

In the eyes of Judge Gros, moreover, a vague conception of equity which departs from the firmly controlled equity of 1969 and 1977 has also resulted in a departure from the way international legal disputes used to be adjudicated - he has in mind the way courts of equity emerged in England. The Chamber's reasoning logically implies, he considers, that there is no longer any legal rule governing maritime delimitation because the principles relied on by the Chamber, the methods employed to put them into practice, and the corrections made to the whole process transform the entire operation, according to Judge Gros, into an exercise wherein it will henceforth be open to each judge to decide at his discretion what is equitable.

Without going so far as to maintain that the line drawn by the Chamber is inequitable, Judge Gros asks whether it has really been demonstrated to be more equitable than any of the other lines considered in the course of the proceedings.

B. International and national law (Art. 27 of the Vienna Convention on the Law of Treaties; Art. VII, Sec. 21 of the 1987 Constitution; Art. II Sec. 2 of the Constitution)

Article 27 Internal law and observance of treaties

A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to article 46.

(Article 46 Provisions of internal law regarding competence to conclude treaties

1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance.

2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith.)

Art. VII, Sec. 21 of the 1987 Constitution - Section 21. No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate.

Art. II Sec. 2 of the Constitution - Section 2. The Philippines renounces war as an instrument of national policy, adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.

Taṅada vs. Angara, G.R. No. 118295, May 2, 1997

I. THE FACTS

Petitioners Senators Tañada, et al. questioned the constitutionality of the concurrence by the Philippine Senate of the President’s ratification of the international Agreement establishing the World Trade Organization (WTO). They argued that the WTO Agreement violates the mandate of the 1987 Constitution to “develop a self-reliant and independent national economy effectively controlled by Filipinos . . . (to) give preference to qualified Filipinos (and to) promote the preferential use of Filipino labor, domestic materials and locally produced goods.” Further, they contended that the “national treatment” and “parity provisions” of the WTO Agreement “place nationals and products of member countries on the same footing as Filipinos and local products,” in contravention of the “Filipino First” policy of our Constitution, and render meaningless the phrase “effectively controlled by Filipinos.”

II. THE ISSUE

Does the 1987 Constitution prohibit our country from participating in worldwide trade liberalization and economic globalization and from integrating into a global economy that is liberalized, deregulated and privatized?

III. THE RULING

[The Court DISMISSED the petition. It sustained the concurrence of the Philippine Senate of the President’s ratification of the Agreement establishing the WTO.]

NO, the 1987 Constitution DOES NOT prohibit our country from participating in worldwide trade liberalization and economic globalization and from integrating into a global economy that is liberalized, deregulated and privatized.

There are enough balancing provisions in the Constitution to allow the Senate to ratify the Philippine concurrence in the WTO Agreement.

[W]hile the Constitution indeed mandates a bias in favor of Filipino goods, services, labor and enterprises, at the same time, it recognizes the need for business exchange with the rest of the world on the bases of equality and reciprocity and limits protection of Filipino enterprises only against foreign competition and trade practices that are unfair. In other words, the Constitution did not intend to pursue an isolationist policy. It did not shut out foreign investments, goods and services in the development of the Philippine economy. While the Constitution does not encourage the unlimited entry of foreign goods, services and investments into the country, it does not prohibit them either. In fact, it allows an exchange on the basis of equality and reciprocity, frowning only on foreign competition that is unfair. xxx xxx xxx

[T]he constitutional policy of a “self-reliant and independent national economy” does not necessarily rule out the entry of foreign investments, goods and services. It contemplates neither “economic seclusion” nor “mendicancy in the international community.” As explained by Constitutional Commissioner Bernardo Villegas, sponsor of this constitutional policy:Economic self-reliance is a primary objective of a developing country that is keenly aware of overdependence on external assistance for even its most basic needs. It does not mean autarky or economic seclusion; rather, it means avoiding mendicancy in the international community. Independence refers to the freedom from undue foreign control of the national economy, especially in such strategic industries as in the development of natural resources and public utilities.

The WTO reliance on “most favored nation,” “national treatment,” and “trade without discrimination” cannot be struck down as unconstitutional as in fact they are rules of equality and reciprocity that apply to all WTO members. Aside from envisioning a trade policy based on “equality and reciprocity,” the fundamental law encourages industries that are “competitive in both domestic and foreign markets,” thereby demonstrating a clear policy against a sheltered domestic trade environment, but one in favor of the gradual development of robust industries that can compete with the best in the foreign markets. Indeed, Filipino managers and Filipino enterprises have shown capability and tenacity to compete internationally. And given a free trade environment, Filipino entrepreneurs and managers in Hongkong have demonstrated the Filipino capacity to grow and to prosper against the best offered under a policy of laissez faire.

xxx xxx xxx

It is true, as alleged by petitioners, that broad constitutional principles require the State to develop an independent national economy effectively controlled by Filipinos; and to protect and/or prefer Filipino labor, products, domestic materials and locally produced goods. But it is equally true that such principles — while serving as judicial and legislative guides — are not in themselves sources of causes of action. Moreover, there are other equally fundamental constitutional principles relied upon by the Senate which mandate the pursuit of a “trade policy that serves the general welfare and utilizes all forms and arrangements of exchange on the basis of equality and reciprocity” and the promotion of industries “which are competitive in both domestic and foreign markets,” thereby justifying its acceptance of said treaty. So too, the alleged impairment of sovereignty in the exercise of legislative and judicial powers is balanced by the adoption of the generally accepted principles of international law as part of the law of the land and the adherence of the Constitution to the policy of cooperation and amity with all nations.

That the Senate, after deliberation and voting, voluntarily and overwhelmingly gave its consent to the WTO Agreement thereby making it “a part of the law of the land” is a legitimate exercise of its sovereign duty and power. We find no “patent and gross” arbitrariness or despotism “by reason of passion or personal hostility” in such exercise. It is not impossible to surmise that this Court, or at least some of its members, may even agree with petitioners that it is more advantageous to the national interest to strike down Senate Resolution No. 97. But that is not a legal reason to attribute grave abuse of discretion to the Senate and to nullify its decision. To do so would constitute grave abuse in the exercise of our own judicial power and duty. Ineludibly, what the Senate did was a valid exercise of its authority. As to whether such exercise was wise, beneficial or viable is outside the realm of judicial inquiry and review. That is a matter between the elected policy makers and the people. As to whether the nation should join the worldwide march toward trade liberalization and economic globalization is a matter that our people should determine in electing their policy makers. After all, the WTO Agreement allows withdrawal of membership, should this be the political desire of a member.

C. Sources (Art. 38 Statute of the International Court of Justice; Restatement (Third) of Foreign Relations Law of the United States; Art. 53 Vienna Convention on the Law of Treaties)

Art. 38 Statute of the International Court of Justice - Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states;

b. international custom, as evidence of a general practice accepted as law;

c. the general principles of law recognized by civilized nations;

d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Restatement (Third) of Foreign Relations Law of the United States - Restatement of the Law, Third, Foreign Relations Law of the United States

Copyright (c) 1987, The American Law Institute

Case Citations

Rules and Principles

Part 1 - International Law and Its Relation to United States Law

Chapter 1 - International Law: Character and Sources

Restat 3d of the Foreign Relations Law of the U.S., § 101

§ 101 International Law Defined

International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical.

COMMENTS & ILLUSTRATIONS: Comment: a. International law and remedies: cross-references. The character and general content of international law are discussed in the Introductory Note to this chapter. The sources of international law are set forth in § 102. The remedies for violation of international law are dealt with in Part IX. b. "State" and "international organization": cross-references. "State" is defined in § 201, "international organization" in § 221. c. Private international law (or conflict of laws). International law, which in most other countries is referred to as "public international law," is often distinguished from private international law (called conflict of laws in the United States). Private international law has been defined as law directed to resolving controversies between private persons, natural as well as juridical, primarily in domestic litigation, arising out of situations having a significant relationship to more than one state. See Restatement, Second, Conflict of Laws § 2. In some circumstances, issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial international significance and therefore may be considered foreign relations law, § 1. In recent years, private international law has been coordinated and harmonized among states, and many of its rules are the subject of international agreements. The concepts, doctrines, and considerations that inform private international law also guide the development of some areas of public international law, notably the principles limiting the jurisdiction of states to prescribe, adjudicate and enforce law. See Introductory Note to Part IV, Chapter 1, and § § 402-403, 421, and 431. Increasingly, public international law impinges on private international activity, for example, the law of jurisdiction and judgments (Part IV) and the law protecting persons (Part VII). To the extent that conflict of laws in the United States refers to laws of two or more States of the United States, or conflicts between federal and State law, it is, except as otherwise noted, beyond the scope of this Restatement. d. General international law and particular agreements between states. Unless otherwise indicated, "international law" as used in this Restatement is law that applies to states and international (intergovernmental) organizations generally. It includes law contained in widely accepted multilateral agreements. Undertakings of a particular state or international organization under a particular international agreement -- for example, the obligation of a state under a bilateral tax treaty with another state -- are binding under international law, but the substantive content of such undertakings is not international law applicable generally (unless there is a wide network of similar bilateral arrangements that results in general international law; see § 102, Comment f). e. Comity distinguished. Comity has been variously conceived and defined. A well-known definition is: "Comity, in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience and to the rights of its own citizens or of other persons who are under the protection of its laws." Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S.Ct. 139, 143, 40 L.Ed. 95 (1895). See also § 403, Comment a.

REPORTERS NOTES: 1. Previous Restatement. The previous Restatement defined international law in § 1 and elaborated upon that definition in comments to that section. This section indicates the scope of international law; the character and jurisprudence of international law are dealt with in the Introductory Note to this chapter, and the sources and evidence of international law in § § 102-103. Section 1 of the previous Restatement defined international law as follows:

"International Law," as used in the Restatement of this Subject, means those rules of law applicable to a state or international organization that cannot be modified unilaterally by it. As compared with that definition, this section indicates that international law has ceased to apply exclusively to states and international organizations and now deals also with their

relations with individuals and juridical persons. The reference in the previous Restatement's definition to the fact that international law cannot be changed unilaterally by a state is alluded to in the Introductory Note to this chapter. Section 3 of the previous Restatement, "Effect of Violation of International Law," is the subject of Part IX of this Restatement, Remedies. Definitions of "state" and "international organization" contained in § § 4 and 5 of the previous Restatement are included here in § § 201 and 221.

CROSS REFERENCES: Digest System Key Numbers:International Law 1

Restatement of the Law, Third, Foreign Relations Law of the United States

Copyright (c) 1987, The American Law Institute

Case Citations

Rules and Principles

Part 1 - International Law and Its Relation to United States Law

Chapter 1 - International Law: Character and Sources

Restat 3d of the Foreign Relations Law of the U.S., § 102

§ 102 Sources of International Law

(1) A rule of international law is one that has been accepted as such by the international community of states

(a) in the form of customary law;

(b) by international agreement; or

(c) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate.

COMMENTS & ILLUSTRATIONS: Comment: a. Sources and evidence of international law distinguished. This section indicates the ways in which rules or principles become international law. The means for proving that a rule or principle has in fact become international law in one of the ways indicated in this section is dealt with in § 103. b. Practice as customary law. "Practice of states," Subsection (2), includes diplomatic acts and instructions as well as public measures and other governmental acts and official statements of policy, whether they are unilateral or undertaken in cooperation with other states, for example in organizations such as the Organization for Economic Cooperation and Development (OECD). Inaction may constitute state practice, as when a state acquiesces in acts of another state that affect its legal rights. The practice necessary to create customary law may be of comparatively short duration, but under Subsection (2) it must be "general and consistent." A practice can be general even if it is not universally followed; there is no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among the states particularly involved in the relevant activity. Failure of a significant number of important states to adopt a practice can prevent a principle from becoming general customary law though it might become "particular customary law" for the

participating states. See Comment e. A principle of customary law is not binding on a state that declares its dissent from the principle during its development. See Comment d. c. Opinio juris. For a practice of states to become a rule of customary international law it must appear that the states follow the practice from a sense of legal obligation (opinio juris sive necessitatis); a practice that is generally followed but which states feel legally free to disregard does not contribute to customary law. A practice initially followed by states as a matter of courtesy or habit may become law when states generally come to believe that they are under a legal obligation to comply with it. It is often difficult to determine when that transformation into law has taken place. Explicit evidence of a sense of legal obligation (e.g., by official statements) is not necessary; opinio juris may be inferred from acts or omissions. d. Dissenting views and new states. Although customary law may be built by the acquiescence as well as by the actions of states (Comment b) and become generally binding on all states, in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures. Historically, such dissent and consequent exemption from a principle that became general customary law has been rare. See Reporters' Note 2. As to the possibility of dissent from peremptory norms (jus cogens), see Comment k. A state that enters the international system after a practice has ripened into a rule of international law is bound by that rule. e. General and special custom. The practice of states in a regional or other special grouping may create "regional," "special," or "particular" customary law for those states inter se. It must be shown that the state alleged to be bound has accepted or acquiesced in the custom as a matter of legal obligation, "not merely for reasons of political expediency." Asylum Case (Colombia v. Peru), [1950] I.C.J. Rep. 266, 277. Such special customary law may be seen as essentially the result of tacit agreement among the parties. f. International agreement as source of law. An international agreement creates obligations binding between the parties under international law. See § 321. Ordinarily, an agreement between states is a source of law only in the sense that a private contract may be said to make law for the parties under the domestic law of contracts. Multilateral agreements open to all states, however, are increasingly used for general legislation, whether to make new law, as in human rights (Introduction to Part VII), or for codifying and developing customary law, as in the Vienna Convention on the Law of Treaties. For the law of international agreements, see Part III. "International agreement" is defined in § 301(1). International agreements may contribute to customary law. See Comment i. g. Binding resolutions of international organizations. Some international agreements that are constitutions or charters of international organizations confer power on those organizations to impose binding obligations on their members by resolution, usually by qualified majorities. Such obligations derive their authority from the international agreement constituting the organization, and resolutions so adoptedby the organization can be seen as "secondary sources" of international law for its members. For example, the International Monetary Fund may prescribe rules concerning maintenance or change of exchange rates or depreciation of currencies. See § 821. The International Civil Aviation Organization may set binding standards for navigation or qualifications for flight crews in aviation over the high seas. For resolutions of international organizations that are not binding but purport to state the international law on a particular subject, see § 103, Comment c. h. The United Nations Charter. The Charter of the United Nations has been adhered to by virtually all states. Even the few remaining non-member states have acquiesced in the principles it established. The Charter provisions prohibiting the use of force have become rules of international law binding on all states. Compare Article 2(6). See § 905, Comment g. Article 103 of the Charter provides:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

Members seem to have read this article as barring them from making agreements inconsistent with the Charter, and have refrained from making such agreements. See, e.g., Article 7 of the North Atlantic Treaty, 1949, 63 Stat. 2241, T.I.A.S. No. 1964, 34 U.N.T.S. 243; Article 102 of the Charter of the Organization of American States, 1948, 2 U.S.T. 2394, T.I.A.S. No. 2361, 119 U.N. T.S. 3. And see Comment k. i. International agreements codifying or contributing to customary law. International agreements constitute practice of states and as such can contribute to the growth of customary law under Subsection (2). See North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark & Netherlands), [1969] I.C.J. Rep. 3, 28-29, 37-43. Some multilateral agreements may come to be law for non-parties that do not actively dissent. That may be the effect where a multilateral agreement is designed for adherence by states generally, is widely accepted, and is not rejected by a significant number of important states. A wide network of similar bilateral arrangements on a subject may constitute

practice and also result in customary law. If an international agreement is declaratory of, or contributes to, customary law, its termination by the parties does not of itself affect the continuing force of those rules as international law. However, the widespread repudiation of the obligations of an international agreement may be seen as state practice adverse to the continuing force of the obligations. See Comment j. j. Conflict between international agreement and customary law. Customary law and law made by international agreement have equal authority as international law. Unless the parties evince a contrary intention, a rule established by agreement supersedes for them a prior inconsistent rule of customary international law. However, an agreement will not supersede a prior rule of customary law that is a peremptory norm of international law; and an agreement will not supersede customary law if the agreement is invalid because it violates such a peremptory norm. See Comment k. A new rule of customary law will supersede inconsistent obligations created by earlier agreement if the parties so intend and the intention is clearly manifested. Thus, the United States and many other states party to the 1958 Law of the Sea Conventions accept that some of the provisions of those conventions have been superseded by supervening customary law. See Introductory Note to Part V. k. Peremptory norms of international law (jus cogens). Some rules of international law are recognized by the international community of states as peremptory, permitting no derogation. These rules prevail over and invalidate international agreements and other rules of international law in conflict with them. Such a peremptory norm is subject to modification only by a subsequent norm of international law having the same character. It is generally accepted that the principles of the United Nations Charter prohibiting the use of force (Comment h) have the character of jus cogens. See § 331(2) and Comment e to that section. l. General principles as secondary source of law. Much of international law, whether customary or constituted by agreement, reflects principles analogous to those found in the major legal systems of the world, and historically may derive from them or from a more remote common origin. See Introductory Note to Chapter 1 of this Part and Reporters' Note 1 to this section. General principles common to systems of national law may be resorted to as an independent source of law. That source of law may be important when there has not been practice by states sufficient to give the particular principle status as customary law and the principle has not been legislated by general international agreement. General principles are a secondary source of international law, resorted to for developing international law interstitially in special circumstances. For example, the passage of time as a defense to an international claim by a state on behalf of a national may not have had sufficient application in practice to be accepted as a rule of customary law. Nonetheless, it may be invoked as a rule of international law, at least in claims based on injury to persons (Part VII), because it is a general principle common to the major legal systems of the world and is not inappropriate for international claims. Other rules that have been drawn from general principles include rules relating to the administration of justice, such as the rule that no one may be judge in his own cause; res judicata; and rules of fair procedure generally. General principles may also provide "rules of reason" of a general character, such as acquiescence and estoppel, the principle that rights must not be abused, and the obligation to repair a wrong. International practice may sometimes convert such a principle into a rule of customary law. m. Equity as general principle. Reference to principles of equity, in the sense of what is fair and just, is common to major legal systems, and equity has been accepted as a principle of international law in several contexts. See, e.g., the delimitation of coastal state zones, § 517. That principle is not to be confused with references to "equity," and distinctions between law and equity as separate bodies of law, in traditional Anglo-American jurisprudence. Reference to equity as a principle incorporated into international law is also to be distinguished from the power, conferred on the International Court of Justice in Article 38(2) of the Statute (and on other tribunals in numerous arbitration agreements), to decide cases ex aequo et bono if the parties agree thereto, which permits the Court to settle a case without being confined to principles of law. See § 903, Reporters' Note 9.

REPORTERS NOTES: 1. Statute of International Court of Justice and sources of law. This section draws on Article 38(1) of the Statute of the International Court of Justice, a provision commonly treated as an authoritative statement of the "sources" of international law. Article 38(1) provides: The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: (a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; (b) international custom, as evidence of a general practice accepted as law; (c) the general principles of law recognized by civilized nations; (d) . . . 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.

The Statute of the International Court of Justice does not use the term "sources," but this Restatement follows common usage in characterizing customary law, international agreements, and general principles of law as "sources" of international law, in the sense that they are the ways in which rules become, or become accepted as, international law. International lawyers sometimes also describe as "sources" the "judicial decisions and the teachings of the most highly qualified publicists of the various nations," mentioned in Article 38(1) (d) of the Statute of the Court, supra. Those, however, are not sources in the same sense since they are not ways in which law is made or accepted, but opinion-evidence as to whether some rule has in fact become or been accepted as international law. See § 103. 2. Customary law. No definition of customary law has received universal agreement, but the essence of Subsection (2) has wide acceptance. See generally Parry, The Sources and Evidences of International Law (1965). Each element in attempted definitions has raised difficulties. There have been philosophical debates about the very basis of the definition: how can practice build law? Most troublesome conceptually has been the circularity in the suggestion that law is built by practice based on a sense of legal obligation: how, it is asked, can there be a sense of legal obligation before the law from which the legal obligation derives has matured? Such conceptual difficulties, however, have not prevented acceptance of customary law essentially as here defined. Perhaps the sense of legal obligation came originally from principles of natural law or common morality, often already reflected in principles of law common to national legal systems (see Comment l); practice built on that sense of obligation then matured into customary law. Compare Article 38(1) (b) of the Statute of the International Court of Justice (Reporters' Note 1), which refers to "international custom, as evidence of a general practice accepted as law." Perhaps the definition reflects a later stage in the history of international law when governments found practice and sense of obligation already in evidence, and accepted them without inquiring as to the original basis of that sense of legal obligation. Earlier definitions implied that establishment of custom required that the practice of states continue over an extended period of time. That requirement began to lose its force after the Second World War, perhaps because improved communication made the practice of states widely and quickly known, at least where there is broad acceptance and no or little objection. In North Sea Continental Shelf Cases, the International Court of Justice agreed that "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." [1969] I.C.J. Rep. 3, 44. The doctrine of the continental shelf, § 515, is sometimes cited as an example of "instant customary law." The Truman Proclamation of 1945 was not challenged by governments and was followed by similar claims by other states. The International Law Commission, engaged in codifying and developing the law of the sea during the years 1950-56, avoided a clear position as to whether the continental shelf provisions in its draft convention were codifying customary law or proposing a new development. The provisions were included in the 1958 Convention on the Continental Shelf. It was soon assumed that the doctrine they reflected was part of international law even for states that did not adhere to the Convention. See the opinion of the International Court of Justice in North Sea Continental Shelf Cases, supra, at 43. The doctrine of the continental shelf became accepted as customary law on the basis of assertions of exclusive jurisdiction by coastal states and general acquiescence by other states, although for some years actual mining on the continental shelf (outside a state's territorial sea) was not technologically feasible. The "practice" may be said to have consisted of acts by governments claiming exclusive rights and denying access to others. The practice of states that builds customary law takes many forms and includes what states do in or through international organizations. Comment b. The United Nations General Assembly in particular has adopted resolutions, declarations, and other statements of principles that in some circumstances contribute to the process of making customary law, insofar as statements and votes of governments are kinds of state practice, Comment b, and may be expressions of opinio juris, Comment c. The contributions of such resolutions and of the statements and votes supporting them to the lawmaking process will differ widely, depending on factors such as the subject of the resolution, whether it purports to reflect legal principles, how large a majority it commands and how numerous and important are the dissenting states, whether it is widely supported (including in particular the states principally affected), and whether it is later confirmed by other practice. "Declarations of principles" may have greater significance than ordinary resolutions. A memorandum of the Office of Legal Affairs of the United Nations Secretariat suggests that:

in view of the greater solemnity and significance of a "declaration," it may be considered to impart, on behalf of the organ adopting it, a strong expectation that Members of the international community will abide by it. Consequently, insofar as the expectation is gradually justified by State practice, a declaration may by custom become recognized as laying down rules binding upon States. [E/CN.4/L. 610, quoted in 34 U.N. ESCOR, Supp. No. 8, p. 15, U.N. Doc. E/3616/Rev. 1 (1962)]. The Outer Space Declaration, for example, might have become law even if a formal treaty had not followed, since it was approved by all, including the principal "space powers." See Declaration of Legal Principles Governing the Activities of States in the Exploration and

Uses of Outer Space, G.A. Res. 1962, 18 U.N. GAOR, Supp. No. 15, at 15. A spokesman for the United States stated that his Government considered that the Declaration "reflected international law as accepted by the members of the United Nations," and both the United States and the U.S.S.R. indicated that they intended to abide by the Declaration. See 18 U.N. GAOR, 1st Committee, 1342d meeting, 2 Dec. 1963, pp. 159, 161. For the effect of General Assembly resolutions on the development of the principle of self-determination, see Western Sahara (advisory opinion), [1975] I.C.J. Rep. 4, 31. The contribution of a resolution of a multilateral conference (on the law of the sea) to customary law is cited in Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3, 24-26, 32. For the evidentiary significance of resolutions purporting to state international law, see § 103, Comment c. Resolutions that may contribute to customary law are to be distinguished from resolutions that are legally binding on members, Comment g and Reporters' Note 3. The latter, too, may reflect state practice or opinio juris, but they derive their authority from the charter of the organization, an international agreement in which states parties agreed to be bound by some of its acts. International conferences, especially those engaged in codifying customary law, provide occasions for expressions by states as to the law on particular questions. General consensus as to the law at such a conference confirms customary law or contributes to its creation. See, e.g., as to the law of the sea, Introductory Note to Part V. The development of customary law has been described as part of a "process of continuous interaction, of continuous demand and response," among decision-makers of different states. These "create expectations that effective power will be restrained and exercised in certain uniformities of pattern. . . . The reciprocal tolerances . . . create the expectations of patterns and uniformity in decision, of practice in accord with rule, commonly regarded as law." McDougal, "The Hydrogen Bomb Tests and the International Law of the Sea," 49 Am.J. Int'l L. 357-58 (1955). That a rule of customary law is not binding on any state indicating its dissent during the development of the rule (Comment d) is an accepted application of the traditional principle that international law essentially depends on the consent of states. See Introduction to Part I, Chapter 1. Refusal of states to adopt or acquiesce in a practice has often prevented its development into a principle of customary law, but instances of dissent and exemption from practice that developed into principles of general customary law have been few. Scandinavian states successfully maintained a four-mile territorial sea although a three-mile zone was generally accepted, and Norway successfully maintained a different system of delimitation of its territorial zone. See Fisheries Case (United Kingdom v. Norway), [1951] I.C.J. Rep. 116. An entity that achieves statehood becomes subject to international law (§ 206), notably customary law as it had developed. After the Second World War, many new states came into existence within a brief period. Their spokesmen rhetorically asked why they should be bound by preexisting law created by European, Christian, imperialistic powers. In fact, however, the basic principles of customary law were accepted, with new states joining in the process of law-making, and seeking desired changes in the law through accepted procedures, notably by international agreements codifying, developing, and sometimes modifying the law. 3. Binding resolutions of international organizations. Comment g refers to prescriptive decisions, such as those of the International Monetary Fund, or binding resolutions such as those of the Security Council pursuant to Chapter VII of the United Nations Charter, which have the effect of law for members of the organization. The United States has recognized the binding character of such resolutions, for example, the resolution imposing an embargo on products of Southern Rhodesia. See 22 U.S.C. § 287c. Many other organs of international organizations have limited authority to impose some binding obligations, for example to determine the budget and the "dues" of each member. See, for example, the authority of the United Nations General Assembly under Article 17 of the Charter. A number of international organizations have authority to recommend rules but states are not compelled to adopt them. 4. Conflict between customary law and international agreement. A subsequent agreement will prevail over prior custom, except where the principle of customary law has the character of jus cogens, but an agreement is ordinarily presumed to supplement rather than to replace a customary rule. Provisions in international agreements are superseded by principles of customary law that develop subsequently, where the parties to the agreement so intend, in which case the earlier provision in the agreement is deemed to have expired by mutual agreement or by desuetude. If an international agreement provides for denunciation, it will ordinarily be assumed that the agreement was not intended to be replaced by subsequent custom unless the parties denounce the earlier agreement. See Akehurst, "The Hierarchy of the Sources of International Law," 47 Brit.Y.B.Int'l L. 273 (1974-75). Modification of customary law by agreement is not uncommon, sometimes through bilateral agreements, notably in the various multilateral codifications of recent decades, such as the Vienna Convention on the Law of Treaties (see this Restatement, Part III), the conventions on diplomatic and consular immunities (Part IV, § § 464-70), and the conventions on the law of the sea (Part V). There have been few instances of rules of customary law developing in

conflict with earlier agreements, but that may happen more frequently as state practice responds to widespread political demands, for example, when states adopted 200-mile exclusive resource zones in the sea, in effect superseding the 1958 Law of the Sea Conventions. See § 514. Compare Arbitration between the United Kingdom and France on the Delimitation of the Continental Shelf (Decision of June 30, 1977), 18 Int'l Leg.Mat. 397 (1979), 18 R. Int'l Arb. Awards 3 (1983). 5. Agreements codifying customary law. An international agreement may declare that it merely codifies preexisting rules of customary international law. Such a declaration is evidence to that effect but is not conclusive on parties to the agreement. The recent "codification treaties" adopted under United Nations auspices declare that their aim is both codification and progressive development, thus leaving open whether a particular provision is declaratory of old law or a formulation of new law. See, for example, the Vienna Convention on the Law of Treaties, Introductory Note to Part III. Even such a declaration is evidence that the agreement reflects existing law in some respects, and as to these the declaration may itself be viewed as a form of state practice confirming the customary international law. Of course, states may disagree as to whether the agreement as a whole or a particular provision reflects existing law. See generally Baxter, "Treaties and Custom," 129 Recueil des Cours 25 (1970). International agreements that do not purport to codify customary international law may in fact do so. International agreements may also help create customary law of general applicability. Comment i. In North Sea Continental Shelf Cases, Reporters' Note 2, at 37, the Court held that the Convention on the Continental Shelf codified the doctrine of the continental shelf as well as its basic principles, but not provisions as to which reservations were permitted. The Court suggested that a treaty rule might become "a general rule of international law" if there were "a very widespread and representative participation in the convention . . . provided it includes that of States whose interests were particularly affected." Id. at 42. Article 38 of the Vienna Convention on the Law of Treaties declares: "Nothing in Articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a third state as a customary rule of international law, recognized as such." See § 324, Comment e. 6. Peremptory norms (juscogens). The concept of jus cogens is of relatively recent origin. See Schwelb, "Some Aspects of International Jus Cogens as Formulated by the International Law Commission," 61 Am.J.Int'l L. 946 (1967). It is now widely accepted, however, as a principle of customary law (albeit of higher status). It is incorporated in the Vienna Convention on the Law of Treaties, Articles 53 and 64. See § 331(2) and Comment e to that section. Comment k to this section adopts the definition of jus cogens found in Article 53 of the Vienna Convention. The Vienna Convention requires that the norm (and its peremptory character) must be "accepted and recognized by the international community of States as a whole" (Art. 53). Apparently that means by "a very large majority" of states, even if over dissent by "a very small number" of states. See Report of the Proceedings of the Committee of the Whole, May 21, 1968, U.N. Doc. A/Conf. 39/11 at 471-72. Although the concept of jus cogens is now accepted, its content is not agreed. There is general agreement that the principles of the United Nations Charter prohibiting the use of force are jus cogens. See Comment k; Verdross and Simma, Universelles Volkerrecht 83-87 (1976). It has been suggested that norms that create "international crimes" and obligate all states to proceed against violations are also peremptory. Compare Report of the International Law Commission on the work of its twenty-eighth session, draft Art. 19, [1976] 2 Y.B. Int'l L. Comm'n 95, 121. Such norms might include rules prohibiting genocide, slave trade and slavery, apartheid and other gross violations of human rights, and perhaps attacks on diplomats. Compare § 702, Comment n. 7. General principles. Article 38(1)(c) of the Statute of the International Court of Justice, Reporters' Note 1, speaks of "general principles of law recognized by civilized nations." It has become clear that this phrase refers to general principles of law common to the major legal systems of the world. The general principles are those common to national legal systems; the view of Soviet scholars that the reference is to principles of international law that have been accepted by states generally has not gained acceptance. Compare Tunkin, Theory of International Law 190 (1974). See, generally, Virally, "The Sources of International Law," in Manual of Public International Law 143-48 (Sorensen, ed. 1968). In contrast, references to "general principles of international law" ordinarily mean principles accepted as customary international law whether or not they derive from principles common to national legal systems. Whether a general principle common to national legal systems is appropriate for absorption by international law may depend on the development of international law. For example, there is now substantial international law on human rights (this Restatement, Part VII), and it is plausible to conclude that a rule against torture is part of international law, since such a principle is common to all major legal systems. See § 702(d); § 701, Reporters' Note 1. In addition to being an independent though secondary source of law, general principles are also supportive of other sources. That a principle is common to the major legal systems may be persuasive in determining whether it has become a rule of customary law or is implied in an international agreement. See Opinion of Judge Dillard in Appeal Relating to the Jurisdiction of the ICAO Council (India v. Pakistan), [1972] I.C.J. Rep. 46, 109. For example,

"good faith," a principle "universally recognized" (preamble, Vienna Convention on the Law of Treaties, § 321, Reporters' Note 1) was perhaps originally a principle common to the major legal systems, but is now accepted as a principle of customary law. Compare Case Relating to the Arbitral Award Made by the King of Spain (Honduras v. Nicaragua), [1960] I.C.J. Rep. 192, 219, 220, 222, 228, 236 (state cannot in good faith contest long-accepted arbitral award), and Case of the Temple of Preah Vihear (Cambodia v. Thailand), [1962] id. 6, 23, 42 (state cannot in good faith challenge long-accepted boundary). See Lachs, "Some Thoughts on the Role of Good Faith in International Law," in Declarations on Principles: A Quest for Universal Peace 47 (Akkerman, van Krieker & Pannenberg eds., 1977); Virally, "Good Faith In Public International Law," 77 Am.J.Int'l L. 130 (1983). 8. Equity. The principle of equity is frequently invoked in discourse between states but there are few references to equity as a legal principle in international judicial decisions. One such reference was in the Fisheries Jurisdiction Case (United Kingdom v. Iceland), [1974] I.C.J. Rep. 3. "Equitable principles" have been explicitly accepted as applicable in the delimitation of boundaries between the continental shelves and between the exclusive economic zones of states, and the concept has been considered by international tribunals in that context. See § 517 and Reporters' Note 1 thereto. 9. Previous Restatement. The sources of international law are dealt with briefly in the previous Restatement in the comments to § 1.

CROSS REFERENCES: Digest System Key Numbers:International Law 2Treaties 1

Restatement of the Law, Third, Foreign Relations Law of the United States

Copyright (c) 1987, The American Law Institute

Case Citations

Rules and Principles

Part 1 - International Law and Its Relation to United States Law

Chapter 1 - International Law: Character and Sources

Restat 3d of the Foreign Relations Law of the U.S., § 103

§ 103 Evidence of International Law

(1) Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule is alleged to derive (§ 102).

(2) In determining whether a rule has become international law, substantial weight is accorded to

(a) judgments and opinions of international judicial and arbitral tribunals;

(b) judgments and opinions of national judicial tribunals;

(c) the writings of scholars;

(d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.

COMMENTS & ILLUSTRATIONS: Comment: a. Primary and secondary evidence of international law. Section 102 sets forth the "sources" of international law, i.e., the ways in which a rule or principle becomes international law. This section indicates the means of proving, for example, in a court or other tribunal, that a rule has become international law by way of one or more of the sources indicated in § 102.

Under Subsection (1), the process of determining whether a rule has been accepted as international law depends on the particular source of international law indicated in § 102 from which the rule is alleged to derive. Thus, for customary law the "best evidence" is proof of state practice, ordinarily by reference to official documents and other indications of governmental action. (Similar forms of proof would be adduced as evidence that a state is not bound by a principle of law because it had dissented, § 102, Comment d). Law made by international agreement is proved by reference to the text of the agreement, but appropriate supplementary means to its interpretation are not excluded. See § 325. Subsection (2) refers to secondary evidence indicating what the law has been found to be by authoritative reporters and interpreters; the order of the clauses is not meant to indicate their relative importance. Such evidence may be negated by primary evidence, for example, as to customary law, by proof as to what state practice is in fact. A determination as to whether a customary rule has developed is likely to be influenced by assessment as to whether the rule will contribute to international order. For the practice of United States courts in determining international law, see § 113. b. Judicial and arbitral decisions. Article 59 of the Statute of the International Court of Justice provides: "The decision of the Court has no binding force except between the parties and in respect of that particular case." That provision reflects the traditional view that there is no stare decisis in international law. In fact, in the few permanent courts, such as the International Court of Justice, the Court of Justice of the European Communities, and the European Court of Human Rights, there is considerable attention to past decisions. See § 903, Reporters' Note 8. That may be expected, too, of the Inter-American Court of Human Rights established in 1979. In any event, to the extent that decisions of international tribunals adjudicate questions of international law, they are persuasive evidence of what the law is. The judgments and opinions of the International Court of Justice are accorded great weight. Judgments and opinions of international tribunals generally are accorded more weight than those of domestic courts, since the former are less likely to reflect a particular national interest or bias, but the views of national courts, too, generally have the weight due to bodies of presumed independence, competence, impartiality, and authority. Under the foreign relations law of the United States, determinations of international law by courts in the United States are respected to the same extent as other determinations of law; lower courts must of course accept decisions of higher courts, and the determinations of the Supreme Court of the United States are conclusive on all courts in the United States. See § 112(2). c. Declaratory resolutions of international organizations. States often pronounce their views on points of international law, sometimes jointly through resolutions of international organizations that undertake to declare what the law is on a particular question, usually as a matter of general customary law. International organizations generally have no authority to make law, and their determinations of law ordinarily have no special weight, but their declaratory pronouncements provide some evidence of what the states voting for it regard the law to be. The evidentiary value of such resolutions is variable. Resolutions of universal international organizations, if not controversial and if adopted by consensus or virtual unanimity, are given substantial weight. Such declaratory resolutions of international organizations are to be distinguished from those special "law-making resolutions" that, under the constitution of an organization, are legally binding on its members. See § 102, Comment g.

REPORTERS NOTES: 1. Writings of international law scholars. The "teachings of the most highly qualified publicists of the various nations" are treated in Article 38(1)(d) of the Statute of International Court of Justice as subsidiary means for the determination of international law. See § 102, Reporters' Note 1. Such writings include treatises and other writings of authors of standing; resolutions of scholarly bodies such as the Institute of International Law (Institut de droit international) and the International Law Association; draft texts and reports of the International Law Commission, and systematic scholarly presentations of international law such as this Restatement. Which publicists are "the most highly qualified" is, of course, not susceptible of conclusive proof, and the authority of writings as evidence of international law differs greatly. The views of the International Law Commission have sometimes been considered especially authoritative. See, e.g., North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark & Netherlands), [1969] I.C.J. Rep. 3, 33 et seq. 2. Declaratory resolutions of international organizations. Article 38(1)(d) of the Statute of the International Court of Justice, § 102, Reporters' Note 1, does not include resolutions of international organizations among the "subsidiary means for the determination of rules of law." However, the Statute was drafted before the growth and proliferation of international organizations following the Second World War. Given the universal character of many of those organizations and the forum they provide for the expression by states of their views regarding legal principles, such resolutions sometimes provide important evidence of law. A resolution purporting to state the law on a subject is some evidence of what the states voting for the resolution regard the law to be, although what states do is more weighty evidence than their declarations or the resolutions they vote for. The evidentiary value of such a resolution is high if it is adopted by consensus or by virtually unanimous vote of an organization of universal membership such as the United Nations or its Specialized Agencies.

On the other hand, majorities may be tempted to declare as existing law what they would like the law to be, and less weight must be given to such a resolution when it declares law in the interest of the majority and against the interest of a strongly dissenting minority. See, e.g., the General Assembly resolution declaring that the use of nuclear weapons is a violation of international law (G.A. Res. 1653, U.N. GAOR, Supp. No. 17 at 4), and the "Moratorium Resolution" declaring that no one may mine for resources in the deep-sea bed until there is an agreed international regime and only in accordance with its terms (G.A. Res. 2574(D), 24 U.N. GAOR, Supp. No. 30, at 11), both of which were challenged by the United States, a principal power immediately affected by those resolutions. See § 523, Reporters' Note 2. Even a unanimous resolution may be questioned when the record shows that those voting for it considered it merely a recommendation or a political expression, or that serious consideration was not given to its legal basis. A resolution is entitled to little weight if it is contradicted by state practice, Comment a, or is rejected by international courts or tribunals. On the other hand, a declaratory resolution that was less than unanimous may be evidence of customary law if it is supported by thorough study by the International Law Commission or other serious legal examination. See, for example, the reliance on one United Nations General Assembly resolution but deprecation of another resolution by the arbitrator in Texas Overseas Petroleum Co. v. Libyan Arab Republic (1977), 17 Int'l Leg.Mat. 1 (1978). Resolutions by a principal organ of an organization interpreting the charter of the organization may be entitled to greater weight. In some instances, such an interpretation may, by the terms of the charter, be binding on the parties, for example, those of the Council of the International Coffee Organization. See Charter of the International Coffee Organization, 469 U.N.T.S. 169. Declarations interpreting a charter are entitled to considerable weight if they are unanimous or nearly unanimous and have the support of all the principal members. See generally Schachter, "The Crisis of Legitimation in the United Nations," 50 Nordisk Tidsskrift for International Ret 3 (1981).

CROSS REFERENCES: Digest System Key Numbers:International Law 2

Art. 53 Vienna Convention on the Law of Treaties - Article 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 no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

North Sea Continental Shelf Cases – ICJ Rep 1969

Summary of the Summary of the Judgment of 20 February 1969

NORTH SEA CONTINENTAL SHELF CASES

Judgment of 20 February 1969

The Court delivered judgment, by 11 votes to 6, in the North Sea Continental Shelf cases.The dispute, which was submitted to the Court on 20 February 1967, related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis.The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding: - that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6; - that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law.The Court also rejected the contentions of the Federal Republic in so far as these sought acceptance of the principle of an apportionment of the continental shelf into just and equitable shares. It held that each Party had an original right to those areas

of the continental shelf which constituted the natural prolongation of its land territory into and under the sea. It was not a question of apportioning or sharing out those areas, but of delimiting them.The Court found that the boundary lines in question were to be drawn by agreement between the Parties and in accordance with equitable principles, and it indicated certain factors to be taken into consideration for that purpose. It was now for the Parties to negotiate on the basis of such principles, as they have agreed to do.The proceedings, relating to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them, were instituted on 20 February 1967 by the communication to the Registry of the Court of two Special Agreements, between Denmark and the Federal Republic and the Federal Republic and the Netherlands respectively. By an Order of 26 April 1968, the Court joined the proceedings in the two cases.The Court decided the two cases in a single Judgment, which it adopted by eleven votes to six. Amongst the Members of the Court concurring in the Judgment, Judge Sir Muhammad Zafrulla Khan appended a declaration; and President Bustamante y Rivero and Judges Jessup, Padilla Nervo and Ammoun appended separate opinions. In the case of the non-concurring Judges, a declaration of his dissent was appended by Judge Bengzon; and Vice-President Koretsky, together with Judges Tanaka, Morelli and Lachs, and Judge ad hoc Sorensen, appended dissenting opinions.In its Judgment, the Court examined in the context of the delimitations concerned the problems relating to the legal r�gime of the continental shelf raised by the contentions of the Parties.The Facts and the Contentions of the Parties (paras. 1-17 of the Judgment)The two Special Agreements had asked the Court to declare the principles and rules of international law applicable to the delimitation as between the Parties of the areas of the North Sea continental shelf appertaining to each of them beyond the partial boundaries in the immediate vicinity of the coast already determined between the Federal Republic and the Netherlands by an agreement of 1 December 1964 and between the Federal Republic and Denmark by an agreement of 9 June 1965.The Court was not asked actually to delimit the further boundaries involved, the Parties undertaking in their respective Special Agreements to effect such delimitation by agreement in pursuance of the Court's decision.The waters of the North Sea were shallow, the whole seabed, except for the Norwegian Trough, consisting of continental shelf at a depth of less than 200 metres. Most of it had already been delimited between the coastal States concerned. The Federal Republic and Denmark and the Netherlands, respectively, had, however, been unable to agree on the prolongation of the partial boundaries referred to above, mainly because Denmark and the Netherlands had wished this prolongation to be effected on the basis of the equidistance principle, whereas the Federal Republic had considered that it would unduly curtail what the Federal Republic believed should be its proper share of continental shelf area, on the basis of proportionality to the length of its North Sea coastline. Neither of the boundaries in question would by itself produce this effect, but only both of them together - an element regarded by Denmark and the Netherlands as irrelevant to what they viewed as being two separate delimitations, to be carried out without reference to the other.A boundary based on the equidistance principle, i.e., an "equidistance line", left to each of the Parties concerned all those portions of the continental shelf that were nearer to a point on its own coast than they were to any point on the coast of the other Party. In the case of a concave or recessing coast such as that of the Federal Republic on the North Sea, the effect of the equidistance method was to pull the line of the boundary inwards, in the direction of the concavity. Consequently, where two equidistance lines were drawn, they would, if the curvature were pronounced, inevitably meet at a relatively short distance from the coast, thus "cutting off" the coastal State from the area of the continental shelf outside. In contrast, the effect of convex or outwardly curving coasts, such as were, to a moderate extent, those of Denmark and the Netherlands, was to cause the equidistance lines to leave the coasts on divergent courses, thus having a widening tendency on the area of continental shelf off that coast.It had been contended on behalf of Denmark and the Netherlands that the whole matter was governed by a mandatory rule of law which, reflecting the language of Article 6 of the Geneva Convention on the Continental Shelf of 29 April 1958, was designated by them as the "equidistance-special circumstances" rule. That rule was to the effect that in the absence of agreement by the parties to employ another method, all continental shelf boundaries had to be drawn by means of an equidistance line unless "special circumstances" were recognized to exist. According to Denmark and the Netherlands, the configuration of the German North Sea coast did not of itself constitute, for either of the two boundary lines concerned, a special circumstance.The Federal Republic, for its part, had contended that the correct rule, at any rate in such circumstances as those of the North Sea, was one according to which each of

the States concerned should have a "just and equitable share" of the available continental shelf, in proportion to the length of its sea-frontage. It had also contended that in a sea shaped as is the North Sea, each of the States concerned was entitled to a continental shelf area extending up to the central point of that sea, or at least extending to its median line. Alternatively, the Federal Republic had claimed that if the equidistance method were held to bc applicable, the configuration of the German North Sea coast constituted a special circumstance such as to justify a departure from that method of delimitation in this particular case.The Apportionment Theory Rejected (paras. 18-20 of the Judgment)The Court felt unable to accept, in the particular form it had taken, the first contention put forward on behalf of the Federal Republic. Its task was to delimit, not to apportion the areas concerned. The process of delimitation involved establishing the boundaries of an area already, in principle, appertaining to the coastal State and not the determination de novo of such an area. The doctrine of the just and equitable share was wholly at variance with the most fundamental of all the rules of law relating to the continental shelf, namely, that the rights of the coastal State in respect of the area of continental shelf constituting a natural prolongation of its land territory under the sea existed ipso facto and ab initio, by virtue of its sovereignty over the land. That right was inherent. In order to exercise it, no special legal acts had to be performed. It followed that the notion of apportioning an as yet undelimited area considered as a whole (which underlay the doctrine of the just and equitable share) was inconsistent with the basic concept of continental shelf entitlement.Non-Applicability of Article 6 of the 1958 Continental Shelf Convention (paras. 21-36 of the Judgment)The Court then turned to the question whether in delimiting those areas the Federal Republic was under a legal obligation to accept the application of the equidistance principle. While it was probably true that no other method of delimitation had the same combination of practical convenience and certainty of application, those factors did not suffice of themselves to convert what was a method into a rule of law. Such a method would have to draw its legal force from other factors than the existence of those advantages.The first question to be considered was whether the 1958 Geneva Convention on the Continental Shelf was binding for all the Parties in the case. Under the formal provisions of the Convention, it was in force for any individual State that had signed it within the time-limit provided, only if that State had also subsequently ratified it. Denmark and the Netherlands had both signed and ratified the Convention and were parties to it, but the Federal Republic, although one of the signatories of the Convention, had never ratified it, and was consequently not a party. It was admitted on behalf of Denmark and the Netherlands that in the circumstances the Convention could not, as such, be binding on the Federal Republic. But it was contended that the r�gime of Article 6 of the Convention had become binding on the Federal Republic, because, by conduct, by public statements and proclamations, and in other ways, the Republic had assumed the obligations of the Convention.It was clear that only a very definite, very consistent course of conduct on the part of a State in the situation of the Federal Republic could justify upholding those contentions. When a number of States drew up a convention specifically providing for a particular method by which the intention to become bound by the r�gime of the convention was to be manifested, it was not lightly to be presumed that a State which had not carried out those formalities had nevertheless somehow become bound in another way. Furthermore, had the Federal Republic ratified the Geneva Convention, it could have entered a reservation to Article 6, by reason of the faculty to do so conferred by Article 12 of the Convention.Only the existence of a situation of estoppel could lend substance to the contention of Denmark and the Netherlands - i.e., if the Federal Republic were now precluded from denying the applicability of the conventional r�gime, by reason of past conduct, declarations, etc., which not only clearly and consistently evinced acceptance of that r�gime, but also had caused Denmark or the Netherlands, in reliance on such conduct, detrimentally to change position or suffer some prejudice. Of this there was no evidence. Accordingly, Article 6 of the Geneva Convention was not, as such, applicable to the delimitations involved in the present proceedings.The Equidistance Principle Not Inherent in the Basic Doctrine of the Continental Shelf (paras. 37-59 of the Judgment)It had been maintained by Denmark and the Netherlands that the Federal Republic was in any event, and quite apart from the Geneva Convention, bound to accept delimitation on an equidistance basis, since the use of that method was a rule of general or customary international law, automatically binding on the Federal Republic.One argument advanced by them in support of this contention, which might be termed the a priori argument, started from the position that the rights of the coastal State to its continental shelf areas were based on its sovereignty over the land domain, of which the shelf area was the natural prolongation under the sea. From

this notion of appurtenance was derived the view, which the Court accepted, that the coastal State's rights existed ipso facto and ab initio. Denmark and the Netherlands claimed that the test of appurtenance must be "proximity": all those parts of the shelf being considered as appurtenant to a particular coastal State which were closer to it than they were to any point on the coast of another State. Hence, delimitation had to be effected by a method which would leave to each one of the States concerned all those areas that were nearest to its own coast. As only an equidistance line would do this, only such a line could be valid, it was contended.This view had much force; the greater part of a State's continental shelf areas would normally in fact be nearer to its coasts than to any other. But the real issue was whether it followed that every part of the area concerned must be placed in that way. The Court did not consider this to follow from the notion of proximity, which was a somewhat fluid one. More fundamental was the concept of the continental shelf as being the natural prolongation of the land domain. Even if proximity might afford one of the tests to be applied, and an important one in the right conditions, it might not necessarily be the only, nor in all circumstances the most appropriate, one. Submarine areas did not appertain to the coastal State merely because they were near it, nor did their appurtenance depend on any certainty of delimitation as to their boundaries. What conferred the ipso jure title was the fact that the submarine areas concerned might be deemed to be actually part of its territory in the sense that they were a prolongation of its land territory under the sea. Equidistance clearly could not be identified with the notion of natural prolongation, since the use of the equidistance method would frequently cause areas which were the natural prolongation of the territory of one State to be attributed to another. Hence, the notion of equidistance was not an inescapable a priori accompaniment of basic continental shelf doctrine.A review of the genesis of the equidistance method of delimitation confirmed the foregoing conclusion. The "Truman Proclamation" issued by the Government of the United States on 28 September 1945 could be regarded as a starting point of the positive law on the subject, and the chief doctrine it enunciated, that the coastal State had an original, natural and exclusive right to the continental shelf off its shores, had come to prevail over all others and was now reflected in the1958 Geneva Convention. With regard to the delimitation of boundaries between the continental shelves of adjacent States, the Truman Proclamation had stated that such boundaries "shall be determined by the United States and the State concerned in accordance with equitable principles". These two concepts, of delimitation by mutual agreement and delimitation in accordance with equitable principles, had underlain all the subsequent history of the subject. It had been largely on the recommendation of a committee of experts that the principle of equidistance for the delimitation of continental shelf boundaries had been accepted by the United Nations International Law Commission in the text it had laid before the Geneva Conference of 1958 on the Law of the Sea which had adopted the Continental Shelf Convention. It could legitimately be assumed that the experts had been actuated by considerations not of legal theory but of practical convenience and cartography. Moreover, the article adopted by the Commission had given priority to delimitation by agreement and had contained an exception in favour of "special circumstances".The Court consequently considered that Denmark and the Netherlands inverted the true order of things and that, far from an equidistance rule having been generated by an antecedent principle of proximity inherent in the whole concept of continental shelf appurtenance, the latter was rather a rationalization of the formerThe Equidistance Principle Not a Rule of Customary International Law (paras. 60-82 of the Judgment)The question remained whether through positive law processes the equidistance principle must now be regarded as a rule of customary international law.Rejecting the contentions of Denmark and the Netherlands, the Court considered that the principle of equidistance, as it figured in Article 6 of the Geneva Convention, had not been proposed by the International Law Commission as an emerging rule of customary international law. This Article could not be said to have reflected or crystallized such a rule. This was confirmed by the fact that any State might make reservations in respect of Article 6, unlike Articles 1, 2 and 3, on signing, ratifying or acceding to the Convention. While certain other provisions of the Convention, although relating to matters that lay within the field of received customary law, were also not excluded from the faculty of reservation, they all related to rules of general maritime law very considerably antedating the Convention which were only incidental to continental shelf rights as such, and had been mentioned in the Convention simply to ensure that they were not prejudiced by the exercise of continental shelf rights. Article 6, however, related directly to continental shelf rights as such, and since it was not excluded from the faculty of reservation, it was a legitimate inference that it was not considered to reflect emergent customary law.It had been argued on behalf of Denmark and the Netherlands that even if at the date of the Geneva Convention no rule of customary international law existed in

favour of the equidistance principle, such a rule had nevertheless come into being since the Convention, partly because of its own impact, and partly on the basis of subsequent State practice. In order for this process to occur it was necessary that Article 6 of the Convention should, at all events potentially, be of a norm-creating character. Article 6 was so framed, however, as to put the obligation to make use of the equidistance method after a primary obligation to effect delimitation by agreement. Furthermore, the part played by the notion of special circumstances in relation to the principle of equidistance, the controversies as to the exact meaning and scope of that notion, and the faculty of making reservations to Article 6 must all raise doubts as to the potentially norm-creating character of that Article.Furthermore, while a very widespread and representative participation in a convention might show that a conventional rule had become a general rule of international law, in the present case the number of ratifications and accessions so far was hardly sufficient. As regards the time element, although the passage of only a short period of time was not necessarily a bar to the formation of a new rule of customary international law on the basis of what was originally a purely conventional rule, it was indispensable that State practice during that period, including that of States whose interests were specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked and should have occurred in such a way as to show a general recognition that a rule of law was involved. Some 15 cases had been cited in which the States concerned had agreed to draw or had drawn the boundaries concerned according to the principle of equidistance, but there was no evidence that they had so acted because they had felt legally compelled to draw them in that way by reason of a rule of customary law. The cases cited were inconclusive and insufficient evidence of a settled practice.The Court consequently concluded that the Geneva Convention was not in its origins or inception declaratory of a mandatory rule of customary international law enjoining the use of the equidistance principle, its subsequent effect had not been constitutive of such a rule, and State practice up to date had equally been insufficient for the purpose.The Principles and Rules of Law Applicable (paras. 83-101 of the Judgment)The legal situation was that the Parties were under no obligation to apply the equidistance principle either under the 1958 Convention or as a rule of general or customary international law. It consequently became unnecessary for the Court to consider whether or not the configuration of the German North Sea coast constituted a "special circumstance". It remained for the Court, however, to indicate to the Parties the principles and rules of law in the light of which delimitation was to be effected.The basic principles in the matter of delimitation, deriving from the Truman Proclamation, were that it must be the object of agreement between the States concerned and that such agreement must be arrived at in accordance with equitable principles. The Parties were under an obligation to enter into negotiations with a view to arriving at an agreement and not merely to go through a formal process of negotiation as a sort of prior condition for the automatic application of a certain method of delimitation in the absence of agreement; they were so to conduct themselves that the negotiations were meaningful, which would not be the case when one of them insisted upon its own position without contemplating any modification of it. This obligation was merely a special application of a principle underlying all international relations, which was moreover recognized in Article 33 of the Charter of the United Nations as one of the methods for the peaceful settlement of international disputes.The Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account, equitable principles were applied. There was no question of the Court's decision being ex aequo et bono. It was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity. Other methods existed and might be employed, alone or in combination, according to the areas involved. Although the Parties intended themselves to apply the principles and rules laid down by the Court some indication was called for of the possible ways in which they might apply them.For all the foregoing reasons, the Court found in each case that the use of the equidistance method of delimitation was not obligatory as between the Parties; that no other single method of delimitation was in all circumstances obligatory; that delimitation was to be effected by agreement in accordance with equitable principles and taking account of all relevant circumstances, in such a way as to leave as much as possible to each Party all those parts of the continental shelf that constituted a natural prolongation of its land territory, without encroachment on the natural prolongation of the land territory of the other; and that, if such delimitation produced overlapping areas, they were to be divided between the Parties in agreed proportions, or, failing agreement, equally, unless they decided on a r�gime of joint jurisdiction, user, or exploitation.

In the course of negotiations, the factors to be taken into account were to include: the general configuration of the coasts of the Parties, as well as the presence of any special or unusual features; so far as known or readily ascertainable, the physical and geological structure and natural resources of the continental shelf areas involved, the element of a reasonable degree of proportionality between the extent of the continental shelf areas appertaining to each State and the length of its coast measured in the general direction of the coastline, taking into account the effects, actual or prospective, of any other continental shelf delimitations in the same region.

D. Subjects (Montevideo Convention of 1933 on Rights and Duties of States)

1. States2. International organizations3. Individuals

CONVENTION ON RIGHTS AND DUTIES OF STATESThe Governments represented in the Seventh International Conference of American

States:

Wishing to conclude a Convention on Rights and Duties of States, have appointed the following Plenipotentiaries:

Honduras:MIGUEL PAZ BARAONAAUGUSTO C. COELLOLUIS BOGRAN

United States of America:CORDELL HULLALEXANDER W. WEDDELLJ. REUBEN CLARKJ. BUTLER WRIGHTSPRUILLE BRADENMiss SOPHONISBA P. BRECKINRIDGE

El Salvador:HECTOR DAVID CASTROARTURO RAMON AVILAJ. CIPRIANO CASTRO

Dominican Republic:TULIO M. CESTERO

Haiti:JUSTIN BARAUFRANCIS SALGADOANTOINE PIERRE-PAULEDMOND MANGONES

Argentina:CARLOS SAAVEDRA LAMASJUAN F. CAFFERATARAMON S. CASTILLOCARLOS BREBBIAISIDORO RUIZ MORENOLUIS A. PODESTA COSTARAUL PREBISCHDANIEL ANTOKOLETZ

Venezuela:CESAR ZUMETALUIS CHURTONJOSE RAFAEL MONTTLLA

Uruguay:ALBERTO MANEJUAN JOSE AMEZAGAJOSE G. ANTUNAJUAN CARLOS BLANCOSenora SOFIA A. V. DE DEMICHELI

MARTIN R. ECHEGOYENLUIS ALBERTO DE HERRERAPEDRO MANINI RIOSMATEO MARQUES CASTRORODOLFO MEZZERAOCTAVIO MORAT6LUIS MORQUIOTEOFILO PINEYRO CHAINDARDO REGULESJOSE SERRATOJOSE PEDRO VARELA

Paraguay:JUSTO PASTOR BENITEZGERONIMO RIARTHORACIO A. FERNANDEZSenorita MARIA F. GONZALEZ

Mexico:JOSE MANUEL PUIG CASAURANCALFONSO REYESBASILIO VADILLOGENARO V. VASQUEZROMEO ORTEGAMANUEL J. SIERRAEDUARDO SUAREZ

Panama:J. D. AROSEMENAEDUARDO E. HOLGUINOSCAR R. MULLERMAGIN PONS

Bolivia:CASTO ROJASDAVID ALVESTEGUIARTURO PINTO ESCALIER

Guatemala:ALFREDO SKINNER KLEEJOSE GONZALEZ CAMPOCARLOS SALAZARMANUEL ARROYO

Brazil:AFRANIO DE MELLO FRANCOLUCILLO A DA CUNHA BUENOFRANCISCO LUIS DA SILVA CAMPOSGILBERTO AMADOCARLOS CHAGASSAMUEL RIBEIRO

Ecuador:AUGUSTO AGUIRRE APARICIOHUMBERTO ALBORNOZANTONIO PARRACARLOS PUIG VILASSARARTURO SCARONE

Nicaragua:LEONARDO ARGUELLOMANUEL CORDERO REYESCARLOS CUADRA PASOS

Colombia:ALFONSO LOPEZRAIMUNDO RIVASJOSE CAMACEO CARRENO

Chile:MIGUEL CRUCHAGA TOCORNAL

OCTAVIO SENORET SILVAGUSTAVO RIVERAJOSE RAMON GUTIERREZFELIX NIETO DEL RIOFRANCISCO FIGUEROA SANCHEZBENJAMIN COHEN

Peru:ALFREDO SOLE Y MUROFELIPE BARREDA LAOSLUIS FERNAN CISNEROS

Cuba:ANGEL ALBERTO GIRAUDYHERMINIO PORTELL VILAALFREDO NOGUEIRAWho, after having exhibited their Full Powers, which were found to be in good and

due order, have agreed upon the following:

ARTICLE 1The state as a person 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.

ARTICLE 2The federal state shall constitute a sole person in the eyes of international law.

ARTICLE 3The political existence of the state is independent of recognition by the other states.

Even before recognition the state has the right to defend its integrity and independence, to provide for its conservation and prosperity, and consequently to organize itself as it sees fit, to legislate upon its interests, administer its services, and to define the jurisdiction and competence of its courts.

The exercise of these rights has no other limitation than the exercise of the rights of other states according to international law.

ARTICLE 4States are juridically equal, enjoy the same rights, and have equal capacity in their

exercise. The rights of each one do not depend upon the power which it possesses to assure its exercise, but upon the simple fact of its existence as a person under international law.

ARTICLE 5The fundamental rights of states are not susceptible of being affected in any manner

whatsoever.

ARTICLE 6The recognition of a state merely signifies that the state which recognizes it accepts

the personality of the other with all the rights and duties determined by international law. Recognition is unconditional and irrevocable.

ARTICLE 7The recognition of a state may be express or tacit. The latter results from any act

which implies the intention of recognizing the new state.

ARTICLE 8No state has the right to intervene in the internal or external affairs of another.

ARTICLE 9The jurisdiction of states within the limits of national territory applies to all the

inhabitants.

Nationals and foreigners are under the same protection of the law and the national authorities and the foreigners may not claim rights other or more extensive than those of the nationals.

ARTICLE 10The primary interest of states is the conservation of peace. Differences of any nature

which arise between them should be settled by recognized pacific methods.

ARTICLE 11

The contracting states definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force whether this consists in the employment of arms, in threatening diplomatic representations, or in any other effective coercive measure. The territory of a state is inviolable and may not be the object of military occupation nor of other measures of force imposed by another state directly or indirectly or for any motive whatever even temporarily.

ARTICLE 12The present Convention shall not affect obligations previously entered into by the

High Contracting Parties by virtue of international agreements.

ARTICLE 13The present Convention shall be ratified by the High Contracting Parties in conformity

with their respective constitutional procedures. The Minister of Foreign Affairs of the Republic of Uruguay shall transmit authentic certified copies to the governments for the aforementioned purpose of ratification. The instrument of ratification shall be deposited in the archives of the Pan American Union in Washington, which shall notify the signatory governments of said deposit. Such notification shall be considered as an exchange of ratifications.

ARTICLE 14The present Convention will enter into force between the High Contracting Parties in

the order in which they deposit their respective ratifications.

ARTICLE 15The present Convention shall remain in force indefinitely but may be denounced by

means of one year's notice given to the Pan American Union, which shall transmit it to the other signatory governments. After the expiration of this period the Convention shall cease in its effects as regards the party which denounces but shall remain in effect for the remaining High Contracting Parties.

ARTICLE 16The present Convention shall be open for the adherence and accession of the States

which are not signatories. The corresponding instruments shall be deposited in the archives of the Pan American Union which shall communicate them to the other High Contracting Parties.

In witness whereof, the following Plenipotentiaries have signed this Convention in Spanish, English, Portuguese and French and hereunto affix their respective seals in the city of Montevideo, Republic of Uruguay, this 26th day of December, 1933.

RESERVATIONSThe Delegation of the United States of America, in signing the Convention on the

Rights and Duties of States, does so with the express reservation presented to the Plenary Session of the Conference on December 22, 1933, which reservation reads as follows:

The Delegation of the United States, in voting "yes" on the final vote on this committee recommendation and proposal, makes the same reservation to the eleven articles of the project or proposal that the United States Delegation made to the first ten articles during the final vote in the full Commission, which reservation is in words as follows:

"The policy and attitude of the United States Government toward every important phase of international relationships in this hemisphere could scarcely be made more clear and definite than they have been made by both word and action especially since March 4. I [Secretary of State Cordell Hull, chairman of U.S. delegation] have no disposition therefore to indulge in any repetition or rehearsal of these acts and utterances and shall not do so. Every observing person must by this time thoroughly understand that under the Roosevelt Administration the United States Government is as much opposed as any other government to interference with the freedom, the sovereignty, or other internal affairs or processes of the governments of other nations.

"In addition to numerous acts and utterances in connection with the carrying out of these doctrines and policies, President Roosevelt, during recent weeks, gave out a public statement expressing his disposition to open negotiations with the Cuban Government for the purpose of dealing with the treaty which has existed since 1903. I feel safe in undertaking to say that under our support of the general principle of non-intervention as has been suggested, no government need fear any intervention on the part of the United States under the Roosevelt Administration. I think it unfortunate that during the brief period of this Conference there is apparently not time within which to prepare interpretations and

definitions of these fundamental terms that are embraced in the report. Such definitions and interpretations would enable every government to proceed in a uniform way without any difference of opinion or of interpretations. I hope that at the earliest possible date such very important work will be done. In the meantime in case of differences of interpretations and also until they (the proposed doctrines and principles) can be worked out and codified for the common use of every government, I desire to say that the United States Government in all of its international associations and relationships and conduct will follow scrupulously the doctrines and policies which it has pursued since March 4 which are embodied in the different addresses of President Roosevelt since that time and in the recent peace address of myself on the 15th day of December before this Conference and in the law of nations as generally recognized and accepted".

The delegates of Brazil and Peru recorded the following private vote with regard to article 11: "That they accept the doctrine in principle but that they do not consider it codifiable because there are some countries which have not yet signed the Anti-War Pact of Rio de Janeiro 4 of which this doctrine is a part and therefore it does not yet constitute positive international law suitable for codification".

Honduras:M. PAZ BARAONAAUGUSTO C. COELLOLuls BOGRXN

United States of America:ALEXANDER W. WEDDELLJ. BUTLER WRIGUT

El Salvador:HECTOR DAVID CASTROARTURO R. AVILA

Dominican Republic:TULIO M. CESTERO

Haiti:J. BARAUF. SALGADOEDMOND MANGONESA. PRRE. PAUL

Argentina:CARLOS SAAVEDRA LAMASJUAN F. CAFFERATARAMON S. CASTILLOI. Rulz MORENOL. A. PODESTA COSTAD. ANTOKOLETZ

Venezuela:LUIS CHURIONJ. R. MONTILLA

Uruguay:A. MANEJOSE PEDRO VARELAMATEO MARQuEs CASTRODARDO REGULESSOFIA ALVAREZ VIGNOLI DE DEMICIIELITEOFILO PINEYRO CHAINLUIS A. DE HERRERAMARTIN R. EcnEcoYENJOSE G. ANTUNAJ. C. BLANCOPEDRO MANINI RIOSRODOLFO MEZZERAOCTAVTO MORATOLUIS MOROQUIOJOSE SERRATO

Paraguay:JUSTO PASTOR BENITEZ

MARIA F. GONZALEZ

Mexico:B. VADILLOM. J. STERRAEDUARDO SUAREZ

Panama:J. D. AROSEMENAMAGIN PONSEDUARDO E. HOLGUIN

Guatemala:M. ARROYO

Brazil:LUCILLO A. DA CUNHA BUENOGILBERTO AMADO

Ecuador:A. AGUIRRE APARICIOH. ALBORNOZANTONIO PARRA V.C. PUIG V.ARTURO SCARONE

Nicaragua:LEONARDO ARGUELLOM. CORDERO REYESCARLOS CUADRA PASOS

Colombia:ALFONSO LOPEZRAIMUNDO RIVAS

Chile:MIGUEL CRUCHAGAJ. RAMON GUTIERREZF. FIGUEROAF. NIETO DEL RIOB. COHEN

Peru:(with the reservation set forth)ALFREDO SOLF Y MURO

Cuba:ALBERTO GIRAUDYHERMINIO PORTELL VILAING. NOGUEIRA

Department of Foreign Affairs vs. National Labor Relations Board, G.R. No. 113191, September 18, 1996

D E C I S I O NVITUG, J.:

The questions raised in the petition for certiorari are a few coincidental matters relative to the diplomatic immunity extended to the Asian Development Bank ("ADB").

On 27 January 1993, private respondent initiated NLRC-NCR Case No. 00-01-0690-93 for his alleged illegal dismissal by ADB and the latter's violation of the "labor-only" contracting law. Two summonses were served, one sent directly to the ADB and the other through the Department of Foreign

Affairs ("DFA"), both with a copy of the complaint. Forthwith, the ADB and the DFA notified respondent Labor Arbiter that the ADB, as well as its President and Officers, were covered by an immunity from legal process except for borrowings, guaranties or the sale of securities pursuant to Article 50(1) and Article 55 of the Agreement Establishing the Asian Development Bank (the "Charter") in relation to Section 5 and Section 44 of the Agreement Between The Bank And The Government Of The Philippines Regarding The Bank's Headquarters (the "Headquarters Agreement").

The Labor Arbiter took cognizance of the complaint on the impression that the ADB had waived its diplomatic immunity from suit. In time, the Labor Arbiter rendered his decision, dated31 August 1993, that concluded:

"WHEREFORE, above premises considered, judgment is hereby rendered declaring the complainant as a regular employee of respondent ADB, and the termination of his services as illegal. Accordingly, respondent Bank is hereby ordered:

"1. To immediately reinstate the complainant to his former position effective September 16, 1993;

"2. To pay complainant full backwages from December 1, 1992 to September 15, 1993 in the amount of P42,750.00 (P4,500.00 x 9 months);

"3. And to pay complainants other benefits and without loss of seniority rights and other privileges and benefits due a regular employee of Asian Development Bank from the time he was terminated on December 31, 1992;

"4. To pay 10% attorney's fees of the total entitlements." [1]

The ADB did not appeal the decision. Instead, on 03 November 1993, the DFA referred the matter to the National Labor Relations Commission ("NLRC"); in its referral, the DFA sought a "formal vacation of the void judgment." Replying to the letter, the NLRC Chairman, wrote:

"The undersigned submits that the request for the 'investigation' of Labor Arbiter Nieves de Castro, by the National Labor Relations Commission, has been erroneously premised on Art. 218(c) of the Labor Code, as cited in the letter of Secretary Padilla, considering that the provision deals with 'a question, matter or controversy within its (the Commission) jurisdiction' obviously referring to a labor dispute within the ambit of Art. 217 (on jurisdiction of Labor Arbiters and the Commission over labor cases).

"The procedure, in the adjudication of labor cases, including raising of defenses, is prescribed by law. The defense of immunity could have been raised before the Labor Arbiter by a special appearance which, naturally, may not be considered as a waiver of the very defense being raised. Any decision thereafter is subject to legal remedies, including appeals to the appropriate division of the Commission and/or a petition for certiorari with the Supreme Court, under Rule 65 of the Rules of Court. Except where an appeal is seasonably and properly made, neither the Commission nor the undersigned may review, or even question, the propriety of any decision by a Labor Arbiter. Incidentally, the Commission sits en banc (all fifteen Commissioners) only to promulgate rules of procedure or to formulate policies (Art. 213, Labor Code).

"On the other hand, while the undersigned exercises 'administrative supervision over the Commission and its regional branches and all its personnel, including the Executive Labor Arbiters and Labor Arbiters' (penultimate paragraph, Art. 213, Labor

Code), he does not have the competence to investigate or review any decision of a Labor Arbiter. However, on the purely administrative aspect of the decision-making process, he may cause that an investigation be made of any misconduct, malfeasance or misfeasance, upon complaint properly made.

"If the Department of Foreign Affairs feels that the action of Labor Arbiter Nieves de Castro constitutes misconduct, malfeasance or misfeasance, it is suggested that an appropriate complaint be lodged with the Office of the Ombudsman.

"Thank you for your kind attention."[2]

Dissatisfied, the DFA lodged the instant petition for certiorari. In this Court's resolution of 31 January 1994, respondents were required to comment. Petitioner was later constrained to make an application for a restraining order and/or writ of preliminary injunction following the issuance, on 16 March 1994, by the Labor Arbiter of a writ of execution. In a resolution, dated 07 April 1994, the Court issued the temporary restraining order prayed for.

The Office of the Solicitor General (OSG), in its comment of 26 May 1994, initially assailed the claim of immunity by the ADB. Subsequently, however, it submitted a Manifestation (dated 20 June 1994) stating, among other things, that "after a thorough review of the case and the records," it became convinced that ADB, indeed, was correct in invoking its immunity from suit under the Charter and the Headquarters Agreement.

The Court is of the same view.

Article 50(1) of the Charter provides:

The Bank shall enjoy immunity from every form of legal process, except in cases arising out of or in connection with the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. [3]

Under Article 55 thereof -

All Governors, Directors, alternates, officers and employees of the Bank, including experts performing missions for the Bank:

(1) shall be immune from legal process with respect of acts performed by them in their official capacity, except when the Bank waives the immunity. [4]

Like provisions are found in the Headquarters Agreement. Thus, its Section 5 reads:

"The Bank shall enjoy immunity from every form of legal process, except in cases arising out of, or in connection with, the exercise of its powers to borrow money, to guarantee obligations, or to buy and sell or underwrite the sale of securities. [5]

And, with respect to certain officials of the bank, Section 44 of the agreement states:

Governors, other representatives of Members, Directors, the President, Vice-President and executive officers as may be agreed upon between the Government and the Bank shall enjoy, during their stay in the Republic of the Philippines in connection with their official duties with the Bank:

x x x x x x x x x

(b) Immunity from legal process of every kind in respect of words spoken or written and all acts done by them in their official capacity. [6]

The above stipulations of both the Charter and Headquarters Agreement should be able, nay well enough, to establish that, except in the specified cases of borrowing and guarantee operations, as well as the purchase, sale and underwriting of securities, the ADB enjoys immunity from legal process of every form. The Banks officers, on their part, enjoy immunity in respect of all acts performed by them in their official capacity. The Charter and the Headquarters Agreement granting these immunities and privileges are treaty covenants and commitments voluntarily assumed by the Philippine government which must be respected.

In World Health Organization vs. Aquino,[7] we have declared:

It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the government x x x it is then the duty of the courts to accept the claim of immunity upon appropriate suggestion by the principal law officer of the government, x x x or other officer acting under his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction x x x as to embarrass the executive arm of the government in conducting foreign relations, it is accepted doctrine that `in such cases the judicial department of government follows the action of the political branch and will not embarrass the latter by assuming an antagonistic jurisdiction.'"[8]

To the same effect is the decision in International Catholic Migration Commission vs. Calleja,[9] which has similarly deemed the Memoranda of the Legal Adviser of the Department of Foreign Affairs to be "a categorical recognition by the Executive Branch of Government that ICMC x x x enjoy(s) immunities accorded to international organizations" and which determination must be held "conclusive upon the Courts in order not to embarrass a political department of Government. In the instant case, the filing of the petition by the DFA, in behalf of ADB, is itself an affirmance of the government's own recognition of ADB's immunity.

Being an international organization that has been extended a diplomatic status, the ADB is independent of the municipal law. [10] In Southeast Asian Fisheries Development Center vs. Acosta,[11] the Court has cited with approval the opinion[12] of the then Minister of Justice; thus -

"One of the basic immunities of an international organization is immunity from local jurisdiction, i.e., that it is immune from the legal writs and processes issued by the tribunals of the country where it is found. (See Jenks, Id., pp. 37-44). The obvious reason for this is that the subjection of such an organization to the authority of the local courts would afford a convenient medium thru which the host government may interfere in their operations or even influence or control its policies and decisions of the organization; besides, such subjection to local jurisdiction would impair the capacity of such body to discharge its responsibilities impartially on behalf of its member-states."[13]

Contrary to private respondent's assertion, the claim of immunity is not here being raised for the first time; it has been invoked before the forum of origin through communications sent by petitioner and the ADB to the Labor Arbiter, as well as before the NLRC following the rendition of the questioned judgment by the Labor Arbiter, but evidently to no avail.

In its communication of 27 May 1993, the DFA, through the Office of Legal Affairs, has advised the NLRC:

"Respectfully returned to the Honorable Domingo B. Mabazza, Labor Arbitration Associate, National Labor Relations Commission, National Capital Judicial Region, Arbitration Branch, Associated bank Bldg., T.M. Kalaw St., Ermita, Manila, the attached Notice of Hearing addressed to the Asian Development Bank, in connection with the aforestated case, for the reason stated in the Department's 1st Indorsement dated 23 March 1993, copy attached, which is self-explanatory.

"In view of the fact that the Asian Development Bank (ADB) invokes its immunity which is sustained by the Department of Foreign Affairs, a continuous hearing of this case erodes the credibility of the Philippine government before the international community, let alone the negative implication of such a suit on the official relationship of the Philippine government with the ADB.

"For the Secretary of Foreign Affairs

(Sgd.)"SIME D. HIDALGO

Assistant Secretary"[14]

The Office of the President, likewise, has issued on 18 May 1993 a letter to the Secretary of Labor, viz:

"Dear Secretary Confesor,

"I am writing to draw your attention to a case filed by a certain Jose C. Magnayi against the Asian Development Bank and its President, Kimimasa Tarumizu, before the National Labor Relations Commission, National Capital Region Arbitration Board (NLRC NCR Case No. 00-01690-93).

"Last March 8, the Labor Arbiter charged with the case, Ms. Nieves V. de Castro, addressed a Notice of Resolution/Order to the Bank which brought it to the attention of the Department of Foreign Affairs on the ground that the service of such notice was in violation of the RP-ADB Headquarters Agreement which provided, inter-alia, for the immunity of the Bank, its President and officers from every form of legal process, except only, in cases of borrowings, guarantees or the sale of securities.

"The Department of Foreign Affairs, in turn, informed Labor Arbiter Nieves V. de Castro of this fact by letter dated March 22, copied to you.

"Despite this, the labor arbiter in question persisted to send summons, the latest dated May 4, herewith attached, regarding the Magnayi case.

"The Supreme Court has long settled the matter of diplomatic immunities. In WHO vs. Aquino, SCRA 48, it ruled that courts should respect diplomatic immunities of foreign officials recognized by the Philippine government. Such decision by the Supreme Court forms part of the law of the land.

"Perhaps you should point out to Labor Arbiter Nieves V. de Castro that ignorance of the law is a ground for dismissal.

"Very truly yours,

(Sgd.)JOSE B. ALEJANDRINO

Chairman, PCC-ADB"[15]

Private respondent argues that, by entering into service contracts with different private companies, ADB has descended to the level of an ordinary party to a commercial transaction giving rise to a waiver of its immunity from suit. In the case of Holy See vs. Hon. Rosario, Jr.,[16] the Court has held:

There are two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory, a sovereign cannot, without its consent, be made a respondent in the Courts of another sovereign. According to the newer or restrictive theory, the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a state, but not with regard to private act or acts jure gestionis.

x x x x x x x x x

Certainly, the mere entering into a contract by a foreign state with a private party cannot be the ultimate test. Such an act can only be the start of the inquiry. The logical question is whether the foreign state is engaged in the activity in the regular course of business. If the foreign state is not engaged regularly in a business or trade, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a sovereign activity, or an incident thereof, then it is an act jure imperii, especially when it is not undertaken for gain or profit. [17]

The service contracts referred to by private respondent have not been intended by the ADB for profit or gain but are official acts over which a waiver of immunity would not attach.

With regard to the issue of whether or not the DFA has the legal standing to file the present petition, and whether or not petitioner has regarded the basic rule that certiorari can be availed of only when there is no appeal nor plain, speedy and adequate remedy in the ordinary course of law, we hold both in the affirmative.

The DFA's function includes, among its other mandates, the determination of persons and institutions covered by diplomatic immunities, a determination which, when challenged, entitles it to seek relief from the court so as not to seriously impair the conduct of the country's foreign relations. The DFA must be allowed to plead its case whenever necessary or advisable to enable it to help keep the credibility of the Philippine government before the international community. When international agreements are concluded, the parties thereto are deemed to have likewise accepted the responsibility of seeing to it that their agreements are duly regarded. In our country, this task falls principally on the DFA as being the highest executive department with the competence and authority to so act in this aspect of the international arena. [18] In Holy See vs. Hon. Rosario, Jr.,[19] this Court has explained the matter in good detail; viz:

"In Public International Law, when a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to immunity.

"In the United States, the procedure followed is the process of 'suggestion,' where the foreign state or the international organization sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney General to submit to the court a 'suggestion' that the defendant is entitled to immunity. In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead of submitting a 'suggestion' (O'Connell, I International Law 130 [1965]; Note: Immunity from Suit of Foreign Sovereign Instrumentalities and Obligations, 50 Yale Law Journal 1088 [1941]).

"In the Philippines, the practice is for the foreign government or the international organization to first secure an executive endorsement of its claim of sovereign or diplomatic immunity. But how the Philippine Foreign Office conveys its endorsement to the courts varies. In International Catholic Migration Commission vs. Calleja, 190 SCRA 130 (1990), the Secretary of Foreign Affairs just sent a letter directly to the Secretary of Labor and Employment, informing the latter that the respondent-employer could not be sued because it enjoyed diplomatic immunity. In World Health Organization vs. Aquino, 48 SCRA 242 (1972), the Secretary of Foreign Affairs sent the trial court a telegram to that effect. In Baer vs. Tizon, 57 SCRA 1 (1974), the U.S. Embassy asked the Secretary of Foreign Affairs to request the Solicitor General to make, in behalf of the Commander of the United States Naval Base at Olongapo City, Zambales, a 'suggestion' to respondent Judge. The Solicitor General embodied the 'suggestion' in a manifestation and memorandum as amicus curiae.

"In the case at bench, the Department of Foreign Affairs, through the Office of Legal Affairs moved with this Court to be allowed to intervene on the side of petitioner. The Court allowed the said Department to file its memorandum in support of petitioner's claim of sovereign immunity.

"In some cases, the defense of sovereign immunity was submitted directly to the local courts by the respondents through their private counsels (Raquiza vs. Bradford, 75 Phil. 50 [1945]; Miquiabas vs. Philippine-Ryukyus Command, 80 Phil. 262 [1948]; United States of America vs. Guinto, 182 SCRA 644 [1990] and companion cases). In cases where the foreign states bypass the Foreign Office, the courts can inquire into the facts and make their own determination as to the nature of the acts and transactions involved."[20]

Relative to the propriety of the extraordinary remedy of certiorari, the Court has, under special circumstances, so allowed and entertained such a petition when (a) the questioned order or decision is issued in excess of or without jurisdiction,[21] or (b) where the order or decision is a patent nullity, [22] which, verily, are the circumstances that can be said to obtain in the present case. When an adjudicator is devoid of jurisdiction on a matter before him, his action that assumes otherwise would be a clear nullity.

WHEREFORE, the petition for certiorari is GRANTED, and the decision of the Labor Arbiter, dated 31 August 1993 is VACATED for being NULL AND VOID. The temporary restraining order issued by this Court on 07 April 1994 is hereby made permanent. No costs.

SO ORDERED.Bellosillo, Kapunan, and Hermosisima, Jr., JJ., concur.Padilla, (Chairman), J., no part.

Jeffrey Liang vs. People, G.R. No. 125865, March 26, 2001

G.R. No. 125865 March 26, 2001

Lesson: Criminal acts not immune

Laws Applicable: Vienna Convention

FACTS:· 2 criminal informations for for grave oral defamation were filed against Jeffrey

Liang, a Chinese national who was employed as an Economist by the Asian Development Bank (ADB), by Joyce V. Cabal, a member of the clerical staff of ADB

· MTC: dismissed the complaint stating that Liang enjoyed immunity from legal processes

· RTC: Upon a petition for certiorari and mandamus filed by the People of the Philippines annulled and set aside the order of MTC

· SC: Denied petition for review on the ground that the immunity granted to officers and staff of the ADB is not absolute and is limited on the official capacity and immunity CANNOT cover the commission of a crime such as slander or oral defamation in the name of official duty

· A motion of reconsideration is filed

ISSUE: W/N the crime of oral deflamation enjoys immunity

HELD: NO

· slander, in general, cannot be considered as an act performed in an official capacity

· issue of whether or not petitioner's utterances constituted oral defamation is still for the trial court to determine

PUNO, J., concurring:· the nature and degree of immunities vary depending on who the recipient is· Under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is

immune from criminal jurisdiction of the receiving State for all acts, whether private or official, and hence he cannot be arrested, prosecuted and punished for any offense he may commit, unless his diplomatic immunity is waived. On the other hand, officials of international organizations enjoy "functional" immunities, that is, only those necessary for the exercise of the functions of the organization and the fulfillment of its purposes.

o officials and employees of the ADB are subject to the jurisdiction of the local courts for their private acts, notwithstanding the absence of a waiver of immunity

If the immunity does not exist, there is nothing to certify by the DFA

E. Diplomatic and consular law (Vienna Convention on Diplomatic Relations ; Vienna Convention on Consular Relations)

Vienna Convention on Diplomatic RelationsThe 1961 Vienna Convention on Diplomatic Relations outlines the rules of diplomatic law, ratified by Canada in 1966 and implemented by the Foreign Missions and International Organizations Act. The Convention codifies the rules for the exchange and treatment of envoys between states, which have been firmly established in customary law for hundreds of years. It has become an almost universally adopted Convention with 179 states party to it.

The Vienna Convention on Diplomatic Relations is fundamental to the conduct of foreign relations and ensures that diplomats can conduct their duties without threat of influence by the host government. In particular, the Convention establishes the following:

rules for the appointment of foreign representatives; the inviolability of mission premises;

protection for the diplomat and his or her family from any form of arrest or detention;

protection of all forms of diplomatic communication;

the basic principle of exemption from taxation;

immunity from civil and administrative jurisdiction, with limited exceptions; and

that diplomats must respect the laws of the host state.

As is stated in the preamble of the Convention, the rules are intended to facilitate the development of friendly relations among nations, irrespective of their differing constitutional and social systems. The purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions.

The Convention requires diplomats to obey local laws; however, the only sanction permissible under the Convention, in the absence of a waiver of immunity, is expulsion. This prevents the potential abuse by local authorities of the power of a state's law enforcement system. Reciprocity also forms an effective sanction for the observance of the rules of the Convention.

Republic of Indonesia vs. Vinzon, G.R. No. 154705. June 26, 2003

FACTS: Petitioner Vinzon entered into a Maintenance Agreement with respondent. The maintenance agreement includes the following specific equipments: air conditioning units, generator sets, electrical facilities, water heaters and water motor pumps. The agreement shall be effective for 4 years.

The new Minister Counsellor allegedly found respondent's work and services unsatisfactory and not in compliance with the standards set in the Agreement. The respondent terminated the agreement with the respondent. The latter claim that it was unlawful and arbitrary. Respondent filed a Motion to Dismiss alleging that the Republic of Indonesia, as a foreign state, has sovereign immunity from suit and cannot be sued as party-defendant in the Philippines.

ISSUE: W/N the CA erred in sustaining the trial court's decision that petitioners have waived their immunity from suit by using as its basis the provision in the Maintenance Agreement.

HELD: The mere entering into a contract by a foreign state with a private party cannot be construed as the ultimate test of whether or not it is an act juri imperii or juri gestionis. Such act is only the start of the inquiry. There is no dispute that the establishment of a diplomatic mission is an act juri imperii. The state may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy. The Republic of Indonesia is acting in pursuit of a sovereign activity when it entered into a contract with the respondent. The maintenance agreement was entered into by the Republic of Indonesia in the discharge of its governmental functions. It cannot be deemed to have waived its immunity from suit.

Minucher vs. Court of Appeals, G.R. No. 142396, February 11, 2003

FACTS:

Khosrow Minucher, an Iranian national and a Labor Attaché for the Iranian Embassies in Tokyo, Japan and Manila came to the country to study in 1974 and continued to stay as head of the Iranian National Resistance Movement.

In May 1986, Minucher was charged with an Information for violation of Republic Act No. 6425, Dangerous Drugs Act of 1972. The criminal charge followed a “buy-bust operation” conducted by the Philippine police narcotic agents in his house where a quantity of heroin was said to have been seized. The narcotic agents were accompanied by private respondent Arthur Scalzo who became one of the principal witnesses for the prosecution.

In August 1988, Minucher filed Civil Case before the Regional Trial Court (RTC) for damages on the ‘trumped-up’ charges of drug trafficking made by Arthur Scalzo.

 

ISSUE:

WON private respondent Arthur Scalzo can be sued provided his alleged diplomatic immunity conformably with the Vienna Convention on Diplomatic Relations

 

RULING:

The SC DENIED the petition.

 

Conformably with the Vienna Convention, the functions of the diplomatic mission involve, the representation of the interests of the sending state and promoting friendly relations with the receiving state. Only “diplomatic agents,” are vested with blanket diplomatic immunity from civil and criminal suits. Indeed, the main yardstick in ascertaining whether a person is a diplomat entitled to immunity is the determination of whether or not he performs duties of diplomatic nature. Being an Attache, Scalzo’s main function is to observe, analyze and interpret trends and developments in their respective fields in the host country and submit reports to their own ministries or departments in the home government. He is not generally regarded as a member of the diplomatic mission. On the basis of an erroneous assumption that simply because of the diplomatic note, divesting the trial court of jurisdiction over his person, his diplomatic immunity is contentious.

 

Under the related doctrine of State Immunity from Suit, the precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law. If the acts giving rise to a suit are those of a foreign government done by its foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not accorded for the benefit of an individual but for the State, in whose service he is, under the maxim – par in parem, non habet imperium – that all states are sovereign equals and cannot assert jurisdiction over one another. The implication is that if the judgment against an official would require the state itself to perform an affirmative act to satisfy the award, such as the appropriation of the amount

needed to pay the damages decreed against him, the suit must be regarded as being against the state itself, although it has not been formally impleaded

A foreign agent, operating within a territory, can be cloaked with immunity from suit but only as long as it can be established that he is acting within the directives of the sending state. The consent of the host state is an indispensable requirement of basic courtesy between the two sovereigns.

The “buy-bust operation” and other such acts are indication that the Philippine government has given its imprimatur, if not consent, to the activities within Philippine territory of agent Scalzo of the United States Drug Enforcement Agency. In conducting surveillance activities on Minucher, later acting as the poseur-buyer during the buy-bust operation, and then becoming a principal witness in the criminal case against Minucher, Scalzo hardly can be said to have acted beyond the scope of his official function or duties.