up barops 2004- public international law- primer

8/13/2019 UP BAROPS 2004- Public International Law- Primer

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A PRIMERONPUBLICINTERNATIONALLAW1

Public international law is not the easiest subject for which to make a primer. Unlike thePhilippine legal system, the international legal system has no defined Congress that enacts laws,nor a Supreme Court with the final word on their interpretation: The entire community of states

makes the law and a plurality of tribunals interprets it.!

Thus, the process of determining whatinternational laws are laws is necessarily attended by some degree of uncertainty. "n addition,there is the tension between international law as percei#ed by international tribunals, and aspercei#ed by Philippine courts. To cite one e$ample, international tribunals will almost certainlydeem international law to be superior to municipal %that is, national law&, whereas Philippinecourts will almost certainly consider the Constitution to ha#e a higher status.

This primer attempts to reiterate the basic doctrines of international law while addressing theabo#e'mentioned problems. "t sets out what are percei#ed to be the established doctrines whilepointing out areas of debate and mentioning opinions that, though in disagreement with majorityperspecti#es, also command respect. "t likewise sets out the pronouncements of the Philippine

Supreme Court on international law (uestions, relating them to the doctrines recogni)ed to beauthoritati#e under international law.

"t may be noted that older writers tend to di#ide international law into three major di#isions: %*&the laws of peace, %!& the laws of war, and %+& the laws of neutrality. This di#ision, though it mayha#e its merits, is not used for this primer. "nstead, a framework is employed %based somewhaton that followed by ugust& that goes from a general discussion of international law %Part -ne&to the norms that apply to particular kinds of international actors %Parts Two to Three&.

here the maker of this Primer states his personal opinion on a subject, the phrase /it issubmitted/ will preface such statements.

Part One

*This is not a full'blown re#iewer, much less a te$tbook, and should not be treated as such %e$cept perhaps inextremis&. 0or one thing, it is sadly incomplete. "ts intent is simply to restate the basics of P"1 and reiterate its mostimportant doctrines in a comprehensible logical framework. This is meant to be a mere supplement to e$istingmaterials and re#iewers, particularly those of Professor 2erlin 2agallona, 3"3T4-5UCT"-3T-"3T643T"-311"3461T"-3T-P7"1"PP"361%!nded., *889&, and "sagani Cru), 46"664"3PU;1"C"3T643T"-311%*88+&.

The doctrines and principles contained in this primer are culled from a number of materials: te$tbooks''particularly 2alcolm Shaw, "3T643T"-31 1 %


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The International Legal System

I. International La

"nternational law has been defined as /a body of principles, norms and processes which regulates

the relations of States and other international persons, and go#erns their conduct affecting theinterests of States as a whole./+ This definition takes into account the de#elopments thatoccurred after the Second orld ar

A. International La as La

s noted abo#e, international law does not ha#e structures as rigid and formal as those ofmunicipal legal orders systems like that of the Philippines. There is no Congress to enact laws,

no Supreme Court to interpret them, no 6$ecuti#e to enforce them. Conse(uently, somecommentators e$press doubts that international law is indeed law, particularly because thereseems to be no so#ereign in international law to back its precepts with coerci#e force.3e#ertheless, it is generally acknowledged that international law is indeed law, albeit e$isting ina more primiti#e legal order than municipal systems.

B. Contra!"istin#tions

1. M$ni#i%al La

Public international law is distinguished from domesticAmunicipal law in that international lawprescribes rules and processes that go#ern the relations of states with each other, and the rights ofother entities insofar as they implicate the community of states. "n contrast, municipal law dealswith the conduct or status of indi#iduals, corporations, and other /pri#ate/ entities withinparticular states.B

This distinction has been weakened by recent de#elopments in international law, such as the riseof an international human rights regime that protects indi#iduals e#en within, and against, theirstates, thus creating what may be called a transnational law. This has led some commentators tosay that the line between international and domestic law has become /somewhat artificial./ Thedistinction remains #alid, howe#er, as there remains a dichotomy between the intra'state legalsystem, where the so#ereign of the state is supreme, and the international legal system, whereso#ereign states interact on formally e(ual footing.

&. Pri'ate International La

Public international law may also be distinguished from pri#ate international law, or conflict oflaws. Privateinternational law /is that part of the laws of each State which determines whether

+2agallona *4. 7""3S, "3T643T"-311: P4-;162S35P4-C6SS%*88&


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in dealing with a factual situation in#ol#ing a foreign element, the law or judgment of some otherState will be recogni)ed or applied in the forum./9 This definition shows the fundamentaldifference between public and pri#ate international law, namely that while public internationallaw is international in character and origin, pri#ate international law is national or municipal incharacter.=

C. International an" M$ni#i%al La

1. Theoreti#al ($estions

s noted abo#e, there is a dichotomy between the international law and the municipal legalorder, between the legal system across and beyond states, and that within them. This has led tose#eral different opinions as to the interrelationship between international and municipal law.The %*& monist #iew states that the international and the municipal legal systems arefundamentally part of one legal order, since it is the same indi#idual who is bound by bothorders.8 This #iew considers international law to be superior, with domestic law being a mere

subset of international law. The %!& dualist#iew, on the other hand, claims that international lawand municipal law are two separate systems, with only those problems affecting internationalrelations being within the scope of international law. The %+& monist-naturalist#iew asserts thatinternational law is superior, and that both systems are but part of a higher system of natural law.0or its part, the %'B %*88> ed., *88>& Dhereinafter Salonga on P4"1E.=Salonga on P4"1 **'*!8Salonga on P4"1 *+*@Constitution, art. "", sec. !**2agallona


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Constitution*+,nonetheless become part of the Philippine legal system*.

II. The A#tors in International La

"n international theory, a distinction is sometimes made between the subjectsand the objectsinthe international legal system.*B Under this conception, /DaE subject of the law is an entitycapable of possessing international rights and duties and ha#ing the capacity to maintain itsrights by bringing international claims./*9 -therwise stated,

subject under international law is an entity that has rights and responsibilitiesunder that law. "t has an international personality in that it can directly assert rightsand be held directly responsible under the law of nations. "n other words, it has thefaculty of moti#ation. ;y this is meant that it can be a proper party it transactionsin#ol#ing the application of the law of nations among members of the internationalcommunity.

;y contrast, an object of international law is the person or thing in respect ofwhich rights are held and obligations assumed by the subject. "t is, therefore, notdirectly go#erned by the rules of international law. "ts rights are asserted and itsresponsibilities imposed indirectly, through the instrumentality of an intermediateagency, which is the subject.*=

Some positi#ist theorists concei#ed of the State as the only subject, under international law. *8

Their treaties were the agreements that gi#e rise to con#entional norms their practice, whensufficiently general and accompanied by the belief that the practice is mandated by law, werewhat ga#e rise to customary norms.!@ Their interaction was what gi#es rise to the system that isgo#erned by international law. ll other actors, e#en indi#iduals, who participated ininternational system were mere objects /like FboundariesF or Fri#ersF or FterritoryF./!*

Historically, the present decentralized structure of international law, governing and created by

sovereign and equal states, is a legacy of the decline of the Medieval commonwealth !n the

centuries following the overthrow of "omulus #ugustulus and the disintegration of the $estern"oman %mpire, the perceived ideal polity was the unified &hristian empire, imperfectly

concretized in the socio-political system of %uropean feudalism that reached its apex in the

offices of pappas atque imperator'' (here was, in that period, an intermingling of allegiances,

where the exclusivity of citizenship and of the jurisdiction of monarchs was practically un)nown(he primary unifying force was a common creed'* (his mar)edly +internationalist+ system,

*+2agallona >B*9.*=Cru) **, *88+*87iggins


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however, suffered from the wea)ening of the centralizing force of faith and fealty, and from the

increasingly strident assertion by monarchs and princes of their sovereign rights vis--vis other

rulers and even the Pope and the %mperor (he "eformation bro)e the religious unity of theMedieval system'. and the (hirty /ears0 $ar, in the course of which the religious conflict was

transformed into a dynastic duel between 1ourbon and Hapsburg, destroyed the last vestiges of

pan-&hristian !mperial power !n its aftermath, the Peace of $estphalia sealed the end of theMedieval ideal, and effectively recognized the juridical existence of a gaggle of equal and

independent realms'2 $ith some modifications, this is the system of modern international law,

and it is the structure pre-supposed by the &harter0s collective security system

(he $estphalian system that was thus formed was founded on several basic ideas (he first and

most fundamental of these is sovereignty'3, ta)en to refer to the general legal competence of

states, including its power to exercise legislative jurisdiction, and the power to acquire title toterritory'4 (he second foundational concept of international law, is that the fundamental

equality of states'5, rightfully treated as connected to and proceeding from sovereignty'6 (he

principal corollaries of these two basic ideas are threefold7 the recognition of a 8tate0s

jurisdiction over a territory and the people on it. the duty of non-intervention in the area ofexclusive jurisdiction of other states. and the dependence of international obligations of a 8tate

on its consent*9 #s to the last, it was held that a 8tate0s binding itself by treaty to a particularunderta)ing did not constitute a violation of sovereignty, as the act of entering into the treaty,

and indeed, into binding international agreements, was itself an exercise of sovereignty*:

# consequence of these principles, and apropos to our purposes, is the primacy of 8tates as theactors in international law !n the words of ;ernando (eson, +


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DTEhe United 3ations, colonies and dependencies, mandates and trust territories,the atican City, belligerent communities, certain international administrati#e bodies,and e#en indi#iduals in some cases. ++

-f late, it has been suggested that the subjectAobject dichotomy should be discarded in fa#or of a

theory that focuses less on the difference between holders and non'holders of rights and dutiesunder international law, and more on the interplay of the different actors in international law.+ state has beendefined as /a group of people, more or less numerous, permanently li#ing in a definite territory,under an independent go#ernment organi)ed for political ends and capable of entering into legalrelations with other states./+B s may be noted from the definition, it is generally thought that aState /as a person in international law should possess the following (ualifications: %a& apermanent population %b& a defined territory %c& go#ernment and %d& capacity to enter into

relations with the other states./

+9

This enumeration, though often adopted by jurists, may becompleted by further criteria.+= "n any case, these (ualifications ha#e been applied broadly, withsome regard for the conte$t and circumstances of the claim for statehood.+8

1. ($ali*i#ations

a+ Peo%le

/ people is an aggregate of indi#iduals of both se$es who li#e together as a community despiteracial or cultural differences. They should be sufficient in number to maintain and perpetuatethemsel#es./,@@@ people is deemed a State with the same rights and obligations as China, with*,!@@,@@@,@@@ people. "t must be noted, moreo#er, that the 2onte#ideo Con#ention refers to apermanentpopulation, and refers to a stable community.++Cru) **+;rownlie >=.+BCru) *!+97iggins +8, (uoting the 2onte#ideo Con#ention on the 4ights and 5uties of States, 5ec. !B, *8++, art. *, thed., *88!&


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State to e$ist''as illustrated by the e$amples of 2onaco and San 2arino'' albeit if the territory oftoo small, the state may disintegrate.


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"n sum, the de facto ruler may suspend laws, enact new ones but the establishment of a de factogo#ernment does not by itself abolish all laws and structures of the de jure go#ernment that camebefore nor does the re'establishment of the de jure go#ernment #oid the acts of the preceding defacto go#ernment.>*

"+ In"e%en"en#e/Ca%a#ity to Enter into Relations

s phrased in the 2onte#ideo Con#ention, independence as the fourth re(uirement for statehoodre(uires only the capacity to enter into international relations. Salonga opines that /DtEhe onlyaspect of freedom that is material is the capacity of a State to deal with other States %foreignaffairs& free from e$ternal restraints./>!Thus, what is important is that a State has the externalappearanceof capacityto enter into international relations /that a State may be acting under thedirection of another State is not of concern to international law./>+ s ;rownlie notes, /Thepractice of states has been to ignore'' so far as the issue of statehood is concerned'' #ariousforms of political and emotional blackmail and interference directed against the weaker membersof the community./>B The declaratory#iew is more in accord with international law.

"t may be noted that recognition need not be done by States indi#idually. Collecti#e recognitionor non'recognition is not unknown in international law, particularly through the action ofintergo#ernmental organi)ations. Thus, 1iechtenstein was unable to join the 1eague of 3ationsbecause it was not deemed to be a State %at that time, its e$ternal relations were go#erned byother states&, and the United 3ations refused to recogni)e the /states/ like Ciskei that declaredindependence from South frica.

0urthermore, it may also be noted that recognition, though supposed to be declaratory, may ha#ea constituti#e effect in national law. To illustrate, if State does not recogni)e State ;, then acompany sues State ; in a tribunal in State , State ; cannot in#oke its state immunity in thetribunal.

B. In"i'i"$als

>*Co Jim Chan #. alde) Tan Jeh and 5i)on, 9> Phil. **+, *!< %*8&.>!Salonga !B>+Salonga !9.>>;rownlie ==>B;rownlie =9


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s noted abo#e, classical international law considered states to be the only subjects ofinternational law, with indi#iduals ser#ing as mere objects. The opposite, monist #iew, on theother hand, posited that indi#iduals should be deemed subject of international law. The middle#iew, which according to Salonga seems to be the modern #iew, states that /while States are

normally the subjects of international law, indi#iduals ha#e become in some degree subjects ofthat law./>9The rights and duties of indi#iduals are implicated in se#eral areas of internationallaw. These are discussed below, under Part Three of this Primer.

Preliminarily, it must be obser#ed that the most important area of growth in international lawwith regard to indi#iduals is in international human rights law, at least after the Second orldar. hereas before, indi#iduals were deemed to be #irtually objects of international law, thepresent regime of the law considers indi#iduals to ha#e actual rights to be respected by underinternational law. The protection of human rights is primarily codified in the Uni#ersal5eclaration of 7uman 4ights. Though it is not a treaty, it is sometimes considered to beauthoritati#e interpretation of the U3 Charter pro#isions on human rights. >=1ikewise considered

authoritati#e interpretations are the "nternational Co#enant on Ci#il and Political 4ights, and theCo#enant on 6conomic, Social, and Cultural 4ights>8. 7uman rights law is also contained inregional human rights con#entions. 1astly, it has been proposed that the protection of humanrights now e$ists e#en in customary lawB@.

C. International Organi0ations

"nternational organi)ations are considered subjects of international law /if their legal personalityis established by their constituent instrument %charter&. Thus, their status is determined byagreement and not by general or customary law./B*

n international organi)ation, in any case, needs to fulfill certain criteria of legal personality. B!

%*& "t must constitute /a permanent association of states, with lawful objects, e(uipped withorgans./ %!& There must be /a distinction, in terms of legal powers and purposes, between theorgani)ation DandE its member states./ %+& "t must ha#e legal powers that it may e$ercise /on theinternational plane and not solely within the national systems of one or more states./

"t has been stated that /DlEegal personality in this conte$t is a relati#e concept in the sense that itsconstituent rights and duties, or capacities and immunities, are limited to those set forth in thetreaty creating the international organi)ation./B+ 7owe#er, international organi)ations ha#e beendeemed to ha#e powers not e$pressly granted in their charters where these unstated powers areimplicitly bestowed or necessary to effect the powers e$pressly granted. Thus, in the 4eparations-pinion, the "nternational Court of ?ustice stated that, though the U3 Charter did not e$presslyclothe the United 3ations with the capacity to bring an international claim for reparations, theU3 ne#ertheless possessed this power. /Under international law, the -rganisation must be

>9Salonga BB>=2eron =!>82eron =!B@See, generally, 2eron 98 et seq, particularly =*'=!B*2641"3211-3, 3"3T4-5UCT"-3T-"3T643T"-311"3461T"-3T-P7"1"PP"361+@ %!nded.,*889& Dhereinafter 2agallonaE.B!2agallona +@, (uoting "3;4-31"6, P4"3C"P16S-0PU;1"C"3T643T"-311B98 %*8=B&B+2agallona +@


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deemed to ha#e those powers which, though not e$pressly pro#ided in the Charter, are conferredupon it by necessary implication as being essential to the performance of its duties./B8, judicialdecisions and the teachings of the most highly (ualified publicists of the #arious nations, assubsidiary means for the determination of rules of law/B> This enumeration is the starting'pointfor any discussion of the sources of international law.BB

"t may be noted, at the outset, that letters %a& to %c& of the enumeration constitute the primarysources of law, and %d&, the subsidiary means for identifying the law. B9 "t has been stated,howe#er, that it would be unwise to think that the order of the enumeration pro#ides a hierarchyto be followed in all cases.B= Thus, though treaties are mentioned first, they are not ipso factosuperior: treaty that is contrary to a customary norm that happens to be jus cogens would bein#alid its interpretation may in#ol#e resort to general principles and it may be superseded bysubse(uent custom.B8

1. Treaty

/FtreatyF means an international agreement concluded between States in written formand go#erned by international law, whether embodied in a single instrument or in two ormore related instruments and whate#er its particular designation./9@

"t may be noted that FtreatiesF under the ienna Con#ention includes all agreements betweenstates9*, regardless of how they are called. Thus, for purposes of international law, treaties,e$ecuti#e agreements, e$changes of notes, etc. are all treaties. 3ote, howe#er, that Philippine

B


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law makes a distinction between treaties and e$ecuti#e agreements. ;oth are e(ually binding,but only treaties re(uire the concurrence of the Senate for their effecti#ity.

a+ in"s o* Treaties

treaty constitutes law between the parties, who, under the principle of pacta sunt ser#anda, arere(uired to fulfill their treaty obligations.9! /"n this sense, all treaties are Flaw'makingF./9+

7owe#er, a distinction is sometimes made between contract treaties and law'making treaties, theformer being /bilateral arrangements Dentered into between two or a few StatesE concerningmatters of particular or special interest to the contracting parties./ 9Salonga *89BSalonga *='*89943-155U3C32C3"4, T761-0T46T"6S!>> %*8B*&Dhereinafter 2c3airE.9=2c3air !BB. See the imbledon Case %reat ;ritain, 0rance, "taly, ?apan #. ermany&, P.C.".?. Ser. , 3o. *%*8!+&, in 4obert 2ac1ean %ed.&, PU;1"C"3T643T"-311CS6;--J8+'8< %*Bthed., *88B& DhereinafterCasebookE.982c3air !BB, !B9'!B=. See particularly the imbledon Case, at p. !!@.=@See 6-0046G;6ST, 1K 4S"3C6*8 *9= %*88* ".C.?. 4eports *>, !+.


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"n any case, whether a treaty is entered into between few or among many states, it is the lawbetween them. /6#ery treaty in force is binding upon the parties to it and must be performed bythem in good faith./=!"t is not true, as proposed by one writer,=+that a treaty must be general tobe a source of law. The "C? Statute itself refers to /general or particular/ treaties=&.=9rt. *!%*&==art. *


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That is, when the intent was to make it subject to ratification. nother mode of gi#ing consent isthrough %+& accession, the acceptance of treaty by a state that did not participate in itsnegotiation.

"t must here be noted that the negotiation of treaties and their ratification are e$ecuti#e functions,

subject, in the Philippines, to concurrence of the Senate. 7owe#er, the effecti#ity of treaties inthe Philippines is go#erned by the Treaty clause=8and thus, treaties must recei#e the concurrenceof the Senate before they may be made effecti#e.

ith regard to e$ecuti#e agreements, as noted abo#e, they are considered to be treaties underinternational law, with the same rules and the same binding effect. 7owe#er, Philippine lawdistinguishes between them and treaties, and pro#ides that they would be binding e#en withoutSenate concurrence.8@

xxx !t is not correct to assert that the signing of a treaty has no legal effect6: #n unratified treaty is

imperfectly binding but nonetheless binding6' (hus, the Bienna &onvention on the Caw of (reaties, to

which the Philippines is a party6*, provides that a state is obliged to refrain from acts which would defeat

the object and purpose of a treaty when it has signed the treaty prior to ratification, unless it has made its

intention clear not to become party to the treaty 6 %ven before the codification of the law of treaties in

the Bienna &onvention, national and international tribunals as well as the most eminent publicists

recognized the existence of an international norm mandating that states must not frustrate the purposes

of treaties they have signed but not ratified62 (hus, it has been affirmed that 8tates, by signing a treaty

subject to ratification , have thus limited their freedom of action,63 and are obliged from the time of

signature not to do anything that would diminish the value of any rights which would be created when the

treaty enters into force64#ny act that violates this principleDwhich is an expression of the principle of

good faith-- is fraudulent and invalid in the eyes of the law65

=8Constitution, art. "", sec. !*.8@;ayan #. Hamora, +, !=.8+Tanada #. ngara,.4. 3o. **=!8> 2ay !, *889.843-155U3C32C3"4, T761-0T46T"6S!@@ Dciting Torres #s. US, where it was suggested that theUnited States was responsible for damage done after the signature of a peace treaty but before its ratificationE, !@!D2egadilis #. Turkey, the arbitral tribunal stated that when a treaty is signed, the parties ha#e an obligation to do noaction that may prejudice the treatyE %*8B*& Dhereinafter 2c3airE 7olloway, at >8, and note >8, citing 46U65U54-"TPU;1"C%*8>8& Dstating that the Tribunal Ci#il of the Seine, confirmed by the Court of Paris, held a signed butunratified to be bindingE. See ?. Jlabbers,How to Eefeat a (reaty0s Fbject and Purpose Pending %ntry into ;orce7(oward manifest !ntent, +< 35. ?. T43S3TF11 !=+, !8>'!8B %!@@*&.8B2c3air at *88.892c3air at *@ trans. %*8!B& in ;in Cheng *** "gnacio Torres Case, < "nt.rb., +98=, at +=@* %2e$ican'United States Claims Commission, *=B=&, in ;in Cheng *** 46STT6263T-0T761T7"45: * 46STT6263T-0T761: T760-46"3461T"-3S1-0T76U3"T65STT6S, sec. +*!,comment, p. *9< %2ay *


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&. C$stom

Custom, as distinguished from mere usage, in#ol#es practice that reflects a legal obligation andits e$istence of custom re(uires the concurrence of ! elements: an objecti#e element, statepractice, and the subjecti#e element of opinio juris. Simply put, /customary international law

Fresults from a general and consistent practice of states which is followed by them from a senseof legal obligationF./88

a+ Elements

i. State Pra#ti#e

0or custom to e$ist, the customary practice must be both consistent and general. 0orconsistency, it is not re(uired that there be complete uniformity in practice, only that there besubstantial uniformity.*@@ enerality likewise does not re(uire uni#ersality.*@* ccording to;rownlie, the problem regarding generality is the #alue that should be gi#en to the absence of

protest on the part of states when faced with a certain practice.

*@!

"f states , ;, C, and 5 dosomething, and states 6, 0, and do not object, is the practice to be deemed sufficiently generalto constitute custom among themI kehurst, for his part, belie#es that the absence of protestcould be considered e#idence of the binding nature of the customary practice.*@+

ii. O%inio 2$ris

Fpinio juris sive necessitatismeans the belief on the part of States that a particular practice isre(uired by law.*@


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,+ Parti#$lar an" Lo#al C$stom

Custom need not always be general, that is, binding on all or most states. "n the sylum Case,*@8

though the "C? ruled that the custom in (uestion did not e$ist among the 1atin merican states, itdid not thus rule on the ground that local %non'general& custom could not e$ist. The court

applied the same standards for determining custom, state practice and opinio juris'' concedingthe possibility of local custom'' and simply found what practice there was to be wanting. "ncontrast, in the 4ight of Passage Case**@, the Court ruled that there e$isted a bilateral custom bywhich "ndia was re(uired to allow communication through her territory among the Portugueseencla#es along "ndian territory.

#+ C$stom an" Treaty

Custom and treaty norms e$ist in the same international legal order, and it is possible for thesame norm''for instance, the prohibition of aggressi#e war'' to e$ist both as a customary normand as a con#entional norm. This may occur in se#eral ways. 0irst, a treaty pro#ision may

simply restate a customary norm, as is true of many of the pro#isions in the ienna Con#entionon the 1aw of Treaties. Second, a treaty pro#ision may crystalli)e into a customary norm.Third, a treaty pro#ision may constitute e#idence of custom.***

0or a treaty pro#ision to crystalli)e into custom, the pro#ision must be norm'creating that is thetreaty must be lawmaking, creating legal obligations which are not dissol#ed by their fulfillment./1awmaking treaties creategeneralnorms for the future conduct of the parties in terms of legalpropositions, and the obligations are basically the same for all parties./**! To demonstrate, if thetreaty pro#ides that must gi#e >@@ tanks to ;, and does gi#e the tanks, then its obligation isdissol#ed by its fulfillment, and the treaty is not law'making. -n the other hand, if the treatypro#ides that states and ; will respect the rights of indi#iduals to due process, then theobligation will sur#i#e its fulfillment, and the treaty is norm'creating.

;ut how does such /crystalli)ing/ happenI Treaty pro#isions only bind the parties to the treaty,

but the number of parties, the e$plicit acceptance of rules of law, and, in some cases, thedeclaratory nature of the pro#isions produce a strong law'creating effect at least as greatas the general practice considered sufficient to support a customary rule. ;y theirconduct non'parties may accept the pro#isions of a multilateral con#ention asrepresenting general international law.**+

The customary norm, e#en if its content is identical with that of a treaty norm, retains a separateidentity.**@ ".C.?. !BB.**@4ight of Passage o#er "ndian Territory %Portugal #. "ndia&, *8B@ ".C.?. B.***2ichael kehurst, &ustom as a 8ource of !nternational Caw, , !8= %*8B>'BB& and kehurst, op. cit. at


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#iolating a treaty can still in#oke the liability for the breach of custom, e#en if they in#ol#e thesame obligation.**>

"+ Resol$tions

There remains the (uestion of whether resolutions of international organi)ations, particularlythose of the U3 eneral ssembly, may be deemed sources of international law. U3 resolutions, it may be noted, ha#e no binding effect under the Charter, sa#e in limited fields likebudgetary matters**B, and are generally just recommendations. The , in other words, is not alegislature.

Such resolutions may nonetheless constitute a kind of state practice, and thus, they are of somesignificance in the de#elopment of law, particularly customary law.**9 7owe#er, it has beenwritten that resolutions should not be assessed alone, as a shortcut to determining custom, but asa species of practice that may be of use in identifying custom **=. hat legal significance suchresolutions ha#e depends on whether they are binding or recommendatory, on the majorities

supporting them, on the repeated practice in relation to them, and on e#idence of opinio juris

**8

.

3. -eneral Prin#i%les o* La

There is some disagreement as to the definition of general principles of law. Some jurists ha#e anatural law conception of the term others referred to the rules accepted in municipal legalsystems*!@and still others defined it primarily in terms of general principles of international law,and then only secondarily to municipal legal principles.*!* ;rownlie prefers -ppenheimFs #iewthat the purpose of rt. +=%*&%c& was /to authori)e the Court to apply the general principles ofmunicipal jurisprudence, in particular of pri#ate law, in so far as they are applicable to relationsof States./*!!

"nternational tribunals ha#e had considerable discretion in determining what general principles toapply and how to apply them.*!+ They ha#e used precepts of 4oman law like prescription*!and res inter alios actaas general principles*!B procedural rules such asthe use of circumstantial e#idence*!9 and substanti#e obligations likepacta sunt servanda,*!=the

**>2ilitary and Paramilitary cti#ities in and against 3icaragua %3icar. #. U.S.&, *8=B ".C.?. + "3TF1. 1. 46P. +=8.


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duty to make restitution,*!8and the duty to obser#e good faith*+@. tribunalFs power to determinethe e$tent of its own jurisdiction %competence de la competence& has also been deemed to be ageneral principle of law.*+*Tribunals, in addition, ha#e not been consistent in their manner ofpro#ing the e$istence of a general principle. "n the 1ibya arbitrations, the arbitrators wentthrough the trouble of studying ci#il law, common law, and "slamic legal systems to pro#e the

e$istence of the principle ofpacta sunt servanda*+!

;y contrast, in the Corfu Channel Case, the"nternational Court simply declared that the use of circumstantial e#idence was a generalprinciple accepted in international and municipal systems, and left it at that.*++

4. S$,si"iary So$r#es5 Tri,$nals

The decisions of tribunals do not constitute a formal source of international legal norms, but theymay constitute e#idence of the state of the law*+8, which, by limiting the effect of a decision to the parties, pre#ents "C?decisions from ha#ing precedent effect.*+> 7owe#er, the "nternational Court of ?ustice does

attempt to be consistent in its rulings, and often cites its past opinions and decisions as well asthose of its predecessor, the Permanent Court of "nternational ?ustice %or PC"?&.*+B

"n any case, decisions of international tribunals, /e$ercise considerable influence as an impartialand well'considered statements of the law by jurists made in the light of actual problems./ *+9

These international tribunals include the "C? and the PC"? permanent regional courts such as the6uropean Court of ?ustice and the 6uropean and "nter'merican Courts on 7uman 4ights adhoc and permanent arbitral tribunals*+= like the US'2e$ico Claims Commission and thePermanent Court of rbitration, respecti#ely and ad hoc tribunals like "nternational 2ilitaryTribunal at 3urnberg*+8. "t is submitted that these also include organi)ational tribunals such asthe panels and appellate body of the orld Trade -rgani)ation * et se(.*+*;in Cheng !9>.*+!;P #. 1ibyan rab 4epublic, >+ "3TF1. 1. 46P. !89, and Te$aco -#erseas Petroleum Co. #. 1ibyan rab4epublic, >+ "3TF1. 1. 46P. +=8.*++Corfu Channel Case %U.J. #. lbania&, *8


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The writings of publicists constitute mere e#idence of law, but on some subjects certainpublicists may ha#e considerable influence. rbitral and national tribunals tend to depend on thewritings of international jurists*

of publicists will tend to colored by subjecti#e factors.*&.*


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there had ceased to be a dispute, since 0rance had bound itself to do what ustralia and 3ewHealand wanted. The Court affirmed that

declarations made by way of unilateral acts, concerning legal or factual situations, mayha#e the effect of creating legal obligations. 3othing in the nature of a quid pro quo, nor

any subse(uent acceptance, nor e#en any reaction from other States is re(uired for suchdeclaration to take effect. 3either is the (uestion of form decisi#e. The intention of beingbound is to be ascertained by an interpretation of the act. The binding character of theundertaking results from the terms of the act and is based on good faith interested Statesare entitled to re(uire that the obligation be respected.*>@

B. The Stat$s o* Norms

1. 2$s Cogens

Certain norms are deemed to ha#e a superior status in international law, such that they admit of

no derogation. These peremptory or non'derogable norms are referred to asjus cogens, and mustbe distinguished from jus dispositivium, which states may derogate from or limit through theiragreements*>*. ;y contrast, when a treaty pro#ision #iolates jus cogens norms, it would be #oidand a subsisting treaty pro#ision would be #oided by the creation of a new peremptory norm.*>!

&. Erga Omnes

Certain international obligations may be of such a nature that their #iolation by any state allowsany other state to in#oke the #iolatorFs liability, e#en if only one state or only a few incurreddirect material damage. These would be erga omnes obligations. This grant of standing ispremised on the idea that the maintenance of some norms are of interest to the entire worldcommunity, such that a #iolation of the obligation connected to these norms would injure theinterest, not only of the state directly offended, but of all states.*>+

DEn essential distinction should be drawn between the obligations of a State towards theinternational community as a whole, and those arising #is'M'#is another State in the fieldof diplomatic protection. ;y their #ery nature the former are the concern of all States. "n#iew of the importance of the rights in#ol#ed, all States can be held to ha#e a legalinterest in their protection they are obligations erga omnes.

Such obligations deri#e, for e$ample, in contemporary international law, from theoutlawing of acts of aggression, and of genocide, as also from the principles and rulesconcerning the basic rights of the human person, including protection from sla#ery andracial discrimination.*>@Nuoted from a summary in the "C? website %http:AAwww.icj'cij.org& of the 3uclear Tests Case %3ew Healand #.0rance&, *89< "C? %5ec. !@&.*>*2agallona !!'!+*>!ienna Con#ention on the 1aw of Treaties,signed2ay !+, *8B8, arts. >+, B+See ;arcelona Traction, 1ight, and Power Company, 1td. Case %Second Phase& %;elgium #. Spain&, *89@ "C?4eports +, +!, paras ++'+


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Part To

The State in International La

I:. So'ereignty an" 2$ris"i#tion

A. So'ereignty

So#ereignty is the supreme and uncontrollable power inherent in a State by which that State isgo#erned.*>> "t is /permanent, e$clusi#e, comprehensi#e, absolute, inalienable, andimprescriptible./*>BSo#ereignty is also used to describe the general legal competence of states,including its power to e$ercise legislati#e jurisdiction, and the power to ac(uire title toterritory.*>9

"n connection with this, we must mention the concept of the fundamental e(uality of states,

which is sometimes spoken of in connection with so#ereignty.

*>=

The principal corollaries of theso#ereignty and e(uality of states are %*& jurisdiction o#er a territory and the people on it, %!& theduty of non'inter#ention in the area of e$clusi#e jurisdiction of other states, and %+& thedependence of international obligations of a State on its consent.*>8 The whole of internationallaw on so#ereignty /could be e$pressed in terms of the coe$istence of so#ereignties./*B@

1. )istin#tions

So#ereignty may be %*& legal or %!& political. 1egal so#ereignty is the authority to issue finalcommands whereas political so#ereignty pertains to the power behind the legal so#ereign or thesum of influences that operate upon it.*B* So#ereignty may also be %*& internal or %!& e$ternal."nternal so#ereignty pertains to a StateFs power to control its own internal affairs, wherease$ternal so#ereignty refers to independence, a StateFs power /to direct its relations with otherStates./*B!

So#ereignty may be distinguished from administration. So#ereignty implies continued e$istenceof legal personality, so that administration of a State by foreign powers would not ipso factomean the cessation of so#ereignty.

&. So'ereignty an" International O,ligations

s noted abo#e, a key corollary of so#ereignty is the fact that whether or not a State is bound byan international obligation, whether customary or con#entional, is dependent on its consent. *B+

*>>"S3"C4UH, P7"1"PP"36P-1"T"C11!B %*88=&.*>BCru) PP1*>9;rownlie !8**>=See the U3 Charter, art !%*&.*>8;rownlie !=8*B@;rownlie !8@*B*Cru) PP1*B!Cru) PP1 !B'!9*B+;rownlie !=8


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Thus, when a State binds itself by treaty to a particular undertaking, this obligation does notconstitute a #iolation of so#ereignty. 4ather, the act of entering into the treaty, and indeed, intobinding international agreements, is itself an e$ercise of so#ereignty.*B==, >8!'>8+, *@> ?. 7. 2erryman, (hin)ing #bout the %lgin Marbles, =+ 2"C7. 1. 46. *==*, *=89 %*8=>&.!@>on lahn +!*


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Under the doctrine of inter'temporal law, the rights deri#ed from a legally significant act dependon the norms of law in force at the time the act was concluded. !@B Thus, whether a State hasac(uired title to a particular area of territory depends on the law at the time the act of ac(uisitionwas done, and not on international law as it stands today !@9. 7owe#er, in the "sland of Palmascase, the judge e$tended the principle and said that the continued e$istence of a right ac(uired

under the old law depends on the law as it e#ol#es. This decision has been much critici)ed!@=

.

B. Air an" S%a#e

State has complete so#ereignty o#er the airspace o#er its territory and its territorial sea, andhas jurisdiction o#er an aircraft from the moment it enters the said airspace !@8. State may takereasonable action to pre#ent o#erflights o#er its territory, though one writer contends that thisdoes not allow a State to shoot down a ci#ilian airliner that strays into its airspace, as the USS4did in *8=+.!*@ -n the other hand, a State has no rights of so#ereignty in outer space, which, withthe moon and all celestial bodies, constitutes /the pro#ince of all mankind/ !**. The (uestion nowis where airspace and so#ereignty ends, and outer space and res communisbegins.

C. The La o* the Sea

The legal regime of the seas depends on whether the waters in (uestion are part of the territorialwaters, the contiguous waters, or whatnot. key step in determining this is the drawing ofbaselines on which the e$tent of such waters are based.

1. Baselines

The normal baseline /Fis the low water line along the coast as marked on large'scale chartsofficially recogni)ed by the coastal state.F To #isuali)e, one might imagine the line wherein thesurface of the water and the land meet at low tide. This would be the low water line, whichwould normally be the baseline. This baseline is used when a coast is relati#ely straight andunindented./!*!

-n the other hand, when a coast is /deeply indented or cut into, or if there is a fringe of islandsalong the coast in its immediate #icinity/, then straight baselines are used. These are drawn byconnecting the seaward most low water points of the coastlines or of the island fringe. !*+

7owe#er, the use of straight baselines is subject to some limitation. "t is re(uired %*& that thestraight baselines must not appreciably depart from the direction of the coast, %!& that the seaareas within the baselines be sufficiently close to the land to be co#ered by the regime of internalwaters, and %+& that the straight baselines not be drawn by a State in such a manner that it wouldcutoff another stateFs territorial sea from the high seas or an e$clusi#e economic )one. !*


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!. Waters&16

a+ Internal Waters&17

"nternal waters are those waters on the inland side of the baselines, and are generally go#erned

by customary international law. These waters include ports, harbors, ri#ers, lakes, canals, andna#igable waterways. "nternal waters are treated as part of a StateFs land territory, and is subjectto the full e$ercise of so#ereignty: Thus, the coastal state may designate which waters to openand which to close to foreign shipping.

This power has limitations, howe#er. Ships in distress ha#e the right to enter foreign ports toa#oid danger, and there is the presumption that ports will be open sa#e for good reason. "naddition, States may enter into 0riendship, Commerce, and 3a#igation treaties that allow accessto their ports, and internal waters may be go#erned by other treaties such as those that go#ernsome na#igable 6uropean ri#ers.

Ships that are allowed entry into internal waters are entitled to lea#e, e$cept that coastal statesmay detain unseaworthy ships or those that damaged or may damage its seas or other ocean)ones. They may also detain them under legal process, such as for security in ci#il actions or#iolations of custom laws.

States legally ha#e the right to e$ercise full jurisdiction o#er a foreign ship, sa#e when it is state'owned. 7owe#er, but states in practice e$ercise no control o#er internal matters, e$cept %*&when an offense on a ship affect the peace or good order of the coastal state, %!& wheninter#ention is re(uested, and %+& when a non crew member is in#ol#ed.

,+ Territorial Waters

These waters stretch up to *! miles from the baseline on the seaward direction. They are subjectto the jurisdiction of the coastal state, which jurisdiction almost appro$imates that which ise$ercised o#er land territory, e$cept that the coastal state must respect the rights to %*& innocentpassage and, in the case of certain straits, to %!& transit passage. The latter will be discussedunder the following topic.

!nnocent passagemeans na#igation through the territorial sea without entering internal waters,going to internal waters, or coming from internal waters and making for the high seas. 0orpassage to be innocent, %a& it must in#ol#e only acts that are re(uired by na#igation or bydistress, and %b& it must not prejudice the peace, security, or good order of the coastal state.

#+ Straits

The regime of transit passage applies to straits that are used for international na#igation from thehigh seas or 66H to another part of the high seas or the 66H. (ransit passageis the freedom ofna#igation or o#erflight for the purpose of e$peditious or continuous passage from high seas or66H to high seas or 66H.

!*>enerally, ugust +99 et seq!*Bgenerally, ugust +=*'+=B


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"+ Contig$o$s 0one

The waters of this )one may stretch up to !< miles from the baselines. There is little jurisdictione$ercised o#er this )one. "n this )one, the coastal State may e$ercise the control necessary topre#ent or punish infringement of its fiscal, customs, immigration or sanitary laws within

territorial waters. -ne writer says that this means that a coastal State may turn back a ship thatplans to commit illegal acts in territorial waters or arrest a ship lea#ing territorial waters that#iolated local law!*9.

e+ The E8#l$si'e E#onomi# ;one

coastal state may establish an 66H that may stretch up to !@@ miles from its baselines. ithinthis )one, a State may regulate nonli#ing and li#ing resources, other economic resources,artificial installations, scientific research, and pollution control. "t may be noted that, under theU3C1-S, states ha#e the so#ereign right to e$ploit the resources of this )one, but shall sharethat part of the catch that is beyond its capacity to har#est. This is at #ariance with the

Philippines Constitution, which reser#es the 66H e$clusi#ely to 0ilipinos

!*=

.

*+ The


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e$plore and e$ploit the natural resources of the shelf. 7owe#er, it must be noted that the regimeof the shelf does not affect the regime of the waters and airspace abo#e it.

:I. State Res%onsi,ility

State responsibility is a fundamental principle in international law that mandates that when astate breaches its obligation to another state, international responsibility is established betweenthem.!!@ Put another way, /DeE#ery internationally wrongful act of a State entails the internationalresponsibility of that State./!!* hether it is wrongful or not depends on international law, andits wrongfulness is not affected by a contrary characteri)ation in domestic law.!!!

State responsibility must be distinguished from the substanti#e obligation whose breach gi#esrise to it, and from the liability to make reparation. The breach is what gives rise to stateresponsibility the liability to make reparation is the consequence ofthe state responsibility. Toillustrate: State ; has an obligation to respect the right of State . State ; breaches that

obligation, so that State ; incurs responsibility to State . s a conse(uence, State ; is nowliable to pay to State reparations, make restitution, etc. This latter duty, needless to say, isdistinct from the obligation breached.

State responsibility is distinct from relationship to indi#idual responsibility. 6ither or both mayarise from the same facts, and neither e$cludes the other. 0or instance, is lpha'+, leader of theState of Cybertron, launches an aggressi#e war against the State of Care'a'lot, lpha may beheld indi#idually responsible for starting the war, while Cybertron will incur state responsibilityto Care'a'lot.

A. The Re9$isites o* State Res%onsi,ility5 the Brea#h

There is an internationally wrongful act of a State when conduct consisting of an action oromission: %a& "s attributable to the State under international law and %b& Constitutes a breach ofan international obligation of the State.!!+

"t is generally thought that loss or damage to the offended state is not necessary for stateresponsibility to e$ist the breach of obligation will be enough. major publicist e#en doubtsthat a blow to national honor is necessary for satisfaction to be necessary!!"n anycase, we must distinguish this from cases where there was, in fact, loss or damage, e$cept thatthere was no neat method to (uantify them for the purpose of determining compensation.!!B

!!@"nternational 1aw Commission, 5raft articles on 4esponsibility of States for internationally wrongful acts,

46P-4T-0T76"3T643T"-311C-22"SS"-3-3T76-4J-0"TS0"0TG'T7"45S6SS"-3, U.3. -4 Sess.>B, Supp. 3o. *@, chp.".6.*, art. *, in U.3. 5oc. A>BA*@ %!@@*& Dhereinafter S4E.!!*S4, art. *!!!S4, art. +!!+S4, art. !. See 7iggins!!resulting from the breach to be an important factor in determining the e$istence of state responsibility.


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1. The ,rea#h

;or what is state responsibility incurred State responsibility may be incurred for an act oromission, which produces a breach of an international obligation, whether the obligation rests ontreaty, custom, or another source,!!9pro#ided that the State was bound by the obligation at the

time of the breach.!!=

"f the act is not of a continuing character, then the breach of the obligationwill occur at the moment of the act if the act is continuing, then the breach subsists during theperiod in which the act continues.!!8

5oes the act constituting the breach ha#e to be illegal %that is, forbidden by international law& forit to gi#e rise to state responsibilityI 3o,!+@for all that is re(uired is that so long as the act not bein conformity with its international obligations.!+* To illustrate, if ary forgets that he has datewith 1ara on their anni#ersary, he would not be breaking Philippine law %since, last " checked,thereFs no law against forgetting&. 3onetheless, he would be incurring responsibility to 1ara, andwould conse(uently ha#e to apologi)e and make amends %and gro#el and kneel and e$plain...&.Thus, for so long as they constitute a #iolation of an international obligation, state responsibility

may arise from both %*& illegal acts, and %!& lawful acts.

-ne e$ample of a lawful act gi#ing rise to state responsibility is rt. *@B of the *8=@ U3C1-S.nother is the subject matter of the (rail 8melter case, which arose from the pollution in USterritory caused by a smelter in Canadian territory. 7ere ,Canada was held liable, although therewas no international norm against allowing a smelter to operate inside oneFs borders. ctsconstituting abuse of right also constitute instances of lawful acts causing internationalliability.!+!

a+ The Ne#essity o* =a$lt or Mali#e

hether fault or malice is necessary for state responsibility to be incurred is a matter underdebate. -ne theory states the state responsibility is based on %*& the presence of culpa or dolusmalus. 7owe#er, although certain arbitral awards seem to use this theory, it has been noted thatmany of them refer to breaches arising in particular conte$ts. The &orfu &hannel &ase, oftencited to back this theory, does not, in fact, support it. "t is true that in that case, the "C? cited theknowledge of lbania %the fact that they could not ha#e notknown that mines were being laid inthe Corfu Channel& as a basis for lbaniaFs responsibility. 7owe#er, that knowledge was onlyin#oked as a precondition to lbaniaFs being responsible. To e$plain: There is an obligation ininternational law to warn #essels of the presence of mines in an area. 7owe#er, this obligationwill not arise unless the State in (uestion knows that there are mines in the area. 7ence, theStateFs knowledge is aprecondition for the obligation to arise. That does not, howe#er, meanthat Corfu Channel espouses culpa as the test of state responsibility. "ndeed, its doctrine could beused to go either way.!++

!!9;rownlie


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The theory of %!& objective Ior strictJ liability states that fault is not necessary for stateresponsibility to be incurred. This seems supported by state practice, by most decisions ofarbitral and judicial tribunals, and by most publicists!+

The momentthese are pro#en, the mere fact that an act results in a breach is enough.

,+ C$l%a

Though it has been stated that the general rule for determining liability is objecti#eresponsibility, the theory of culpa may be rele#ant in certain special situations. Thus, it may berele#ant to e$amine the e$istence of culpa %a& when the breach results from acts of indi#idualsnot employed by the state or from the acti#ities of licensees or trespassers on its territory !+B%b&when a state engages in lawful acti#ities, in which case responsibility may result from culpa in

e$ecuting these lawful acti#ities %c& when determining the amount of the damages %d& when duediligence or liability for culpa is stipulated in a treaty.

#+ Intent an" Moti'e

The principle of objecti#e responsibility renders the e$istence or non'e$istence of intentirrele#ant and the fact that a state officialOs ultra #ires act is accompanied by malice will notaffect the stateOs responsibility %and it will still be liable&. 7owe#er, intent and moti#e may berele#ant in some cases. Thus:*. Proof of dolus on the part of leading state organs will sol#e the problem of imputability in

particular cases.!. The e$istence of a deliberate intent to injure Qmay ha#e an effect on the remoteness of the

damage and may help to establish the breach of duty.+. 2oti#e and intent may be a specific element in defining permitted conduct. 0or instance,

a& "t was formerly the rule that e$propriation of foreign property is unlawful if the object ispolitical reprisal or retaliation

b& ction supposedly done in self defense may become unlawful if the purpose is, forinstance, to use the action for purposes of effecting con(uest.

&. The Stan"ar" o* )iligen#e

5iligence is rele#ant where the conduct of indi#idual State officials, rather than state organs, isconcerned, state responsibility arises if the state Qfailed to e$ercise the due diligence which couldreasonably ha#e pre#ented such conduct.'*4

"n those cases when due diligence is rele#ant, there is the (uestion of whether the due diligencestandard is objecti#e, or whether its look to a StateOs ability to fulfill its obligations. The %*&-bjecti#e #iew says that ability to fulfill is irrele#ant, while the %!& 4elati#ist #iew says

!+


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otherwise. "t may be noted that in the Tehran 7ostages Case, the "nternational Court of ?usticeseemed to embrace the second %relati#ist& theory, for in declaring that "ranian authorities hasfailed in their duty to protect US diplomats, the Court noted that the "ranian authorities %*& wereaware of their obligations, and %!& and had the means to fulfill them, yet %+& failed to do so!+=.

"n any case, due diligence is not the only rele#ant standard, for QDtEhe standard by which the dutyof care with regard to an obligation is to be tested is determined by reference to the particularre(uirements of the obligation. Thus, in particular obligations, a standard higher than duediligence may be re(uired. -ne e$ample is the duty to protect diplomatic missions, whichre(uires the state to take positi#e, specific measures of protection. nother e$ample concernsinherently ha)ardous acti#ities in the en#ironmental sphere, where Qit is increasingly suggestedthat there is an absolute duty of care, reflected in resultant strict liability.!+8

B. Re9$isites o* Res%onsi,ility5 Im%$ta,ility

"t has been stated that a state may be %*& directly liable'' for instance, for the acts of state organs

in their official capacity'' or %!& #icariously liable'' for e$ample, for the acts of pri#ateindi#iduals when the state is negligent in pre#enting or punishing them.!

The conduct of a State organ is considered to be the act of that State, whate#er the function of

that organ, whate#er position it holds in the organi)ation of the State, whether it is the organ of

!+=7iggins *>B!+87iggins *>B'*>9!@*'>@!!@!!@. ;ut see also 7iggins *>>'*>B!


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the central go#ernment or a local unit of the State.!@e#en when these acts #iolate thelaws or orders of the state itself. Parenthetically, it may be noted that the resolution thatappro#ed the articles was appro#ed by a consensus of States. !>*

"n any case, whether the e$ecuti#e or administrati#e officer of high rank or of low, the State willstill be responsible!>!. Thus, in the 4ainbow arrior rbitration, where 0rench agents, usinge$plosi#es, sank the reenpeace ship 4ainbow warrior as it was berthed in the harbor ofuckland, 3ew Healand, 0rance admitted responsibility and was ordered by the U3 Secretary'

eneral %who was asked to arbitrate& to apologi)e to 3ew Healand and pay US9 million ascompensation.

The (uestion has been asked as to why is the state is responsible for the acts of its officerswhether this results from of the officialFs act in itself, or because other go#ernment organs failedto sufficiently deal with the conse(uences of the erring officialFs acts. ;rownlie says that itdepends on the law applied to the particular facts of each case !>+. 7owe#er, it is submitted that,since objecti#e liability is the norm, it might be safe to surmise that the State would beresponsible for the act itself, albeit the failure to prosecute the offender would add to the liability.

a+ Personal a#ts o* State o**i#ers

"f the act is a personal act of the officer %as opposed to an act done in his official capacity&,whether a State will be responsible depends on the acti#ity and conse(uences in each case. Thus,when the standard of conduct re(uired is #ery high, it would be inappropriate to make adistinction between personal acts and acts within apparent authority, and the State will be liable.

!* %*88@9 %*88=& Dhereafter7arrisE the Caire claim, in 7arris at


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"t is submitted that an instance of this would be in the case of members of the armed forces, sincea State is re(uired to e$ercise a higher standard of prudence in the discipline and control ofsoldiers, and /#ery strict accountability/ for their misconduct is often the norm. ith militaryofficers of any rank, the due diligence re(uired is so high it approaches strict liability.

,+ Control

here a StateFs breach is the failure to e$ercise ade(uate control o#er the erring officers, whatmatters is the amount of control which should ha#e been e$ercised in the particularcircumstances, not the amount of actual control. Thus, if some police officers of State gundown a diplomat from State ; while they are on patrol, State cannot escape liability by sayingthat it was not actually super#ising them at the moment of incident. The point is that it shouldhaveduly super#ised them at that time.

#+ O**i#ials a#ting in "i**erent #a%a#ities

"t may happen that the same indi#idual may be an officer of more than one state. This becomes athorny matter when, for instance, State sues State ; for the conduct of , who is an official ofboth states. -ne publicist says that /DfEormal capacity may create an estoppel, or at least apresumption of fact, in such cases, but on particular facts it may be necessary to determinewhich state e$ercises control in order Qto do justice.'2

"+ Parti#$lar State o**i#ers an" organs

!n ;ederal states States are responsible for the acts of local units!>>.

(he Cegislature The international responsibility of a State may arise: %*& from the damage thatresults from a legislati#e act or omission or %!& from the act or omission itself. n e$ample ofthe second is a situation where a treaty re(uires that certain pro#isions be placed in municipal%i.e., national& law, and the legislature does not legislate accordingly.

(he &ourtsSome instances when a state would be liable for the acts of the judiciary are whenthe decision of the court constitutes a denial of justice, or when the court fails to enforce a treatyto which the State is bound.

&. Pri'ate In"i'i"$als

state is generally not responsible for the acts of indi#iduals. The e$ception is when there is %*&adoptionor %!& negligence, on the part of the State sought to be held liable. "n adoption, a Stateadopts the acts of indi#iduals as its own, and thus becomes responsible for their internationallywrongful acts!>B. Such adoption would occur when %*& the State encourages these acts, %!& theindi#iduals effecti#ely act as agents in performing the offending acts, and %+& the State endorsesas its own the acts of the indi#iduals.!>9

!>>S4, art BS4, art. **!>97iggins *>


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6#en if there is no adoption of the acts of pri#ate indi#iduals, a State may ne#ertheless beindirectly liable for their acts. This happens when the State has an international obligation toe$ert efforts to pre#ent the internationally wrongful acts of such indi#iduals, or to prosecute themiscreants for their acts, and the State maliciously or negligently fails to do so.

This becomes of some importance in cases of internal strife or disturbance. The general rule isthat a State is not responsible for loss or damage in times of re#olution unless its o#ernmentfailed to e$ercise due diligence to pre#ent its occurrence. The test, therefore, is whether duediligence was exercised to pre#ent harm to foreigners and foreign interests. Substantial neglectto take action amounting to official indifference or conni#ance will create responsibility fordamage to foreign public and pri#ate property. 3ote, howe#er, that if the re#olutionarymo#ement wins and takes power, it will be responsible for the illegal acts or omissions of itsforces during the conflict, as well as for those of the pre#ious go#ernment. This would be truewhether the re#olutionary mo#ement establishes a new state or a new go#ernment.!>=

The merican 5iplomats in Tehran case of some interest in this regard. !>8The subject incidents

arose after the Shah, a close US ally, was o#erthrown by the re#olution led by yatollahJhomeini. hen the US decided to allow the Shah to enter the US for medical treatment,demonstrators in#aded the US embassy in Tehran and sei)ed e#eryone present. "ranian securityforces did not try to pre#ent the in#asion or to get the hostages released. "nstead, "raniango#ernment officials e$pressed appro#al of the militantsO actions. yatollah Jhomeini declaredthat the embassy and the hostages would remain as they were until the US handed o#er the Shah.

The "nternational Court distinguished between the first stage of the hostage taking, the initialtake'o#er of the embassy and the second stage, the continued detention of the hostages. TheCourt held that the first stage was not directly imputable to "ran, since the militants were notshown to ha#e been acting as agents of the go#ernment, notwithstanding the way they wereencouraged by state officials. 7owe#er, the Court found that the failure of "ranian securityforces to protect the embassy or take steps to liberate them was a breach of "ranOs duty under theienna Con#ention. The second stage, on the other hand, was directly imputable to "ran, as aconse(uence of the appro#al and adoption gi#en them by officials of the "ranian go#ernment,which was of such nature as to make the militantsO acts constitute state acts. "n the second stage,"ran had already adopted the acts of the hostage'takers.

3. Other States

a+ The )e%en"ent State

"f the dependent state is so controlled by the dominant state that it cannot be deemed as retainingseparate international personality, then the dominant state will be responsible for the dependentstateOs acts. The same is true when a state assumes international responsibility for anothergo#ernment. 7owe#er, when the dependent state retains enough legal powers to maintain aseparate personality, and it still conducts its own foreign relations, whether the su)erain %thedominant state& will be responsible for the dependent stateOs actions will depend on thecircumstances.

!>=;rownlie >'9, 7iggins *>>!>8United States 5iplomatic and Consular Staff in Tehran %US #. "ran&, *8=@ "C? +.


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,+ 2oint Tort*easors

The doctrine is still unclear as to the manner in which responsibility would e$ist, when two statesjointly commit an international wrong. ;rownlie notes that, though solidary liability should e$istin principle, there is little practice thereon.

"f there is joint participation by two or more states in an unlawful action, should the offendedstate make a joint claim against both offenders, should it make a claim against the State thatdirectly committed the acts complained, or may it proceed against the offender states separatelyI"n >auru v #ustralia%where 3auru filed a claim against ustralia for e$ploiting the formerOsphosphate resources& the "nternational Court held that, e#en though it was possible that ustralia,UJ, and 3ew Healand had solidary liability, a claim made against just one of them wasadmissible.

C. Conse9$en#es o* State res%onsi,ility

enerally, the State will, as a conse(uence of its international responsibility, be obliged to ceasethe wrongful act, should it be continuing, and to gi#e suitable reassurances that it will not berepeated.!B@

1. Stan"ing

0ollowing the rule in the South est frica cases %*8BB&, a State cannot sue on a particular rightor interest unless that right or interest was #ested in that State by some instrument, or some ruleof law. "n other words, that State has to ha#e legal standing.

"t must be noted that in the ;arcelona Case as well as in the 6ast Timor case, the "C? hasacknowledged that all states may ha#e standing to in#oke liability for the #iolation of ergaomnesobligations. This is recogni)ed as well in the rticles of State 4esponsibility. 7owe#er,the acknowledgement of erga omnes standing in the 6ast Timor case did not pre#ent the "C?from throwing out the case. The Court said that erga omnes standing did not take away thejurisdictional re(uirements for the Court to act, particularly the re(uirement that States mustconsent to the e$ercise of jurisdiction by a Court before the Court may ha#e competence to judgetheir dispute.

&. Relie*s

The following forms of reparation may be claimed by the injured party: %*& declaratory relief, %!&satisfaction, %+& restitution, and %


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a dispute, %as in disputes o#er territory, when a declaratory rather than an e$ecutory form ofjudgment is appropriate& and %!& the object Qis not to gi#e satisfaction for the wrong recei#ed.!B!

,+ Satis*a#tion

Satisfaction is a measure other than restitution or compensation which an offending state isbound to take. There are three objects of satisfaction, which are often cumulati#e: %*& apologyand other acknowledgment of wrongdoing %!& punishment of indi#iduals concerned and %+&taking of measures to pre#ent a recurrence of the wrong.

Satisfaction may take pecuniary form, but this would not necessarily mean this already or onlyconstitutes compensation. Pecuniary satisfaction and compensation are distinguished in theirintention, the former being meant to be a token of regret and acknowledgement of wrongdoing %amonetary /sorry/&, the latter being intended to make up for or repair the damage done.

#+ Restit$tion

4estitution in#ol#es wiping out all the conse(uences of the breach and re'establishing thesituation which would probably ha#e e$isted had the act not been committed.

4estitution can take ! forms: %*& legal restitution, the declaration that an offending treaty, law,e$ecuti#e act, or other, is in#alid and %!& specific 4estitution, or restitution in kind. Specificrestitution, howe#er, is rarely pro#ided, in part because of the difficulty on enforcing such aclaim on a so#ereign State. The refusal of the US to pay damages to 3icaragua as a conse(uenceof the "C? decision is a case in point.

"n certain cases, restitution may be demanded by #irtue of a particular obligation imposed byinternational law. This would be the case in territorial disputes %when State returns State ;Fsterritory&.

Chorzow Factory Case (Judgment No. 13)

fter it lost orld ar ", ermany ceded the territory of Upper Silesia to Poland.n agreement was e$ecuted in ene#a to maintain the economic status (uo in the cededterritory. fterwards, howe#er, a Polish court ordered the ownership of the erman'owned Chor)ow factory to be registered in the name of the Polish Treasury.

Held: ny breach of an engagement in#ol#es an obligation to make reparation.4eparation of a wrong may consist in an indemnity corresponding to the damage whichthe nationals of the injured State ha#e suffered as a result of the act. 4eparation must, asfar as possible, wipe out all the conse(uences of the illegal act and re'establish thesituation which would ha#e e$isted if the act had not been committed.

To determine the amount of reparation, these principles should be used indetermining compensation due for an act contrary to international law: 4estitution inkind, payment of a sum corresponding to the #alue of the restitution, and the award forlosses sustained which would not be co#ered by the first two.

"+ Com%ensation

!B!;rownlie


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Compensation is payment of money as a #aluation of the wrong done. "n the Chor)ow case, thePermanent Court said that the amount of the compensation must correspond to %*& /the #aluewhich a restitution in kind would bear,/ and %!& /the award of damages for loss sustained whichwould not be co#ered by restitution in kind or payment in place of it./

;rownlie notes that international tribunals are reluctant to allow the imposition of penal damages%reparation for the mere commission of the breach& in international law, which one may take tomean that loss or damage is the preferred basis for the reparation. -ther commentators,howe#er, note the imposition of puniti#e damages, unrelated to the damage inflicted. !B+

). Cir#$mstan#es %re#l$"ing rong*$lness

State may escape liability on se#eral possible grounds: %*& if the wronged State consented tothe offender StateFs act, %!& if the offender StateFs act was done in self'defense, %+& if it constitutesa countermeasure taken against the wronged State, or %& "f the author of the wrongful act hasno other reasonable way, in a situation of distress, to sa#e his life or the life of a person entrustedto his case, then the State would not be liable for the act unless the State caused the distress orthe act in (uestion will cause a greater peril !B>. 1ikewise, %B& if the act was done due to forcemajeure, the occurrence of an irresistible force or unforeseen e#ent beyond the StateFs controlwhich makes it impossible to perform the obligation under the circumstances!BB.

stateFs liability may also be precluded if %9& its act was done in due to a state of necessity. 0orthe plea of necessity to prosper, the act %a& must be the only way to safeguard an essential interestfrom a gra#e and imminent peril!B9, and %b& must not seriously impair an essential interest of theState or States to which the obligation breached is owed, or of the international community as awhole!B=. The e$istence and imminence!B8of such a peril must be duly established, for Qmereapprehension of a possible VperilO could not suffice!9@W its e$istence must not be clouded byuncertainty.!9* 2oreo#er, the means employed to a#ert the purported peril must be such as are

!B+-PP6376"2FS"3T643T"-311>++ %4obert ?ennings, rthur atts, 8thed., *88!&!BS4, art. !%*&%a&. See Societe Commerciale de ;elgi(ue, *8+8, PC"? Series A;, 3o. 9=, p. *B@ 4ussian"ndemnity Case %*8*!&, ** 46P"3TF14;. 45SBA*@%!@@*& and citing abcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9, at para. >< %Sept. !>&. See also The-bser#er and the uardian #. United Jingdom, *< 6ur. 7.4. 4ep. *>+, %6C74, *88!& Soering #. UJ, ** 6ur. 7.4.4ep.B, Supp. 3o. *@, p. *8%*&%b&. See abcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. at para. >= %Sept. !>&.!B8. 5. 2c3air, ed., ! "3T643T"-311-P"3"-3S!+! %*8>B& D2c3air -pnionsE.!9@abcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9, para. >< %Sept. !>&.!9*abcLko#o'3agymaros Project %7ung. #. Slo#.& *889 ".C.?. 9, para. >>. %Sept. !>&.


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absolutely necessary to a#ert the alleged danger!9!and the obligation #iolated must not e$cludethe possibility of e$cluding necessity.!9+ These standards ha#e been considered to be of acustomary character by the "C?!9 -therwise stated, it is

the bond that unites indi#iduals with a gi#en state, that identifies them as members ofthat entity, that enables them to claim its protection, and that also subjects them to the

performance of such duties as their state may impose on them.

!9B

3ationality and citi)enship are often said to be distinct concepts.

DEhile citizensare limited to those who are endowed with political and civil rightsinthe body politic of a State, the term FnationalsF includes citi)ens as well as personswho, not being citi)ens, owepermanent allegianceto the State and are entitled to itsprotection. "n other words, all citi)ens are nationals, but not all nationals areciti)ens.!99

To illustrate, the inhabitants of merican Samoa are nationals, but not citi)ens, of the UnitedStates. They owe allegiance to the United Stated and can e$pect its protection %say, if aSamoanFs rights are #iolated in 0iji&'' but they cannot e$ercise certain political rights. Theycannot #ote in US presidential elections, for instance.!9=

B. The Im%ortan#e o* Nationality

3ationality is of great importance in international law. "t determines whether a State canundertake diplomatic protection'' if can demand reparations from another State for the harmdone to an indi#idual '' for a State can so protect only those persons who are its nationals. !98

0urthermore, it may allow a State to claim legislati#e and judicial jurisdiction o#er an indi#iduale#en outside its territory. "n the Philippines, a ci#il law country, /the national law of anindi#idual regulates his ci#il status and condition, his family rights and duties, the intrinsic

!9!.4. 233"3%ed.&, + 5"P1-2T"CC-446SP-3563C6-0T76U3"T65STT6S: C35"3461T"-3S*9=thed.,*8=B&.!99Salonga on P4"1 *B+!9=on lahn *89!98Salonga on P4"1 *B+. See the 3ottebohm case %1iechtenstein #. uatemala&, *8>> ".C.?.


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#alidity of his will, the rights of succession to his properties./ !=@ 0urthermore, some countriesclaim to e$ercise criminal jurisdiction e#en o#er the acts of their nationals abroad.!=* "t may benoted that Philippine income ta$ laws apply e#en to citi)ens abroad, although %at present,considering the fluid nature of Philippine ta$ law& only income earned in the Philippines is ta$ed.

C. )etermining Nationality

"t is generally acknowledged that a State has liberty to determine who are and who are not itsnationals, the conditions for the conferment of nationality, and the conditions and means for itsdepri#ation.!=! 7owe#er, this power is not unlimited, for certain international norms may limitits e$ercise.!=+ 0or instance, it may be noted that the Uni#ersal 5eclaration of 7uman 4ights,besides recogni)ing the right to nationality, mandates that /DnEo one shall be arbitrarily depri#edof his nationality nor denied the right to change his nationality./!= ".C.?. B %*88>& Dhereafter ugustE. See 7.0.3P37UGS, T764-16-03T"-31"TG"3"3T643T"-3118& Dhereafter an PanhuysE. See also;rierly, op. cit., in Carter =>@'=>*, citing the Pans#e)ys'Saldutiskis 4ailway Case %6stonia #. 1ithuania&, PC"?4eports, Series A; 9B, p. *B and 2. 4aga))i,!nternational Fbligations %rga Fmnes7 (he Moral ;oundation and&riteria of !dentification in Cight of (wo ?apanese &ontributions, T76461"TG-0"3T643T"-311: 6SSGS"37-3-4-0"3;4-31"6B, B %. S. oodwin'ill and S. Talmon, eds. *888&.!=83oyes Claim, B 46P. "3TF14;.45S+@=, in 7arris at >


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is liable for such officersF acts when these acts are done by these officers in their officialcapacity, since such acts are directly imputable to the state that employed them. !8* state mayalso be liable %!& when it fails to e$ercise due diligence to pre#ent injury or conse(uent damagefrom being inflicted on aliens by state officers and indi#iduals. 1astly, a State is liable for failureto protect the rights of aliens %+& when it fails to undertake diligent efforts to prosecute and

punish the miscreants who #iolated the rights of aliens and inflicted harm upon them.

A. The Minim$m Stan"ar"

There are two standards by which the treatment of aliens is judged under international law. -neis the %*& national standard, under which States are re(uired to treat foreigners in the same waythat it treats its citi)ens. This standard precludes the discrimination of aliens, but it is grie#ouslyinsufficient for what if the State treats its own citi)ens badly, or neglects their safety andwelfareI There would be no discrimination, but there would be e(ual pain. The %!& internationalstandard, by contrast, re(uires that a State should treat foreigners with a minimum standard ofcare set by international law, independently of how it treats its own citi)enry. "nternational law

is on the side of the "nternational Standard. Thus, States must comply with minimum standardsset by international law,!8!e#en regardless of the way they treat their own nationals.!8+

B. )i%lomati# Prote#tion

There was, for a long time, no set remedy under international law for the #iolation of the rightsof aliens, though there were diplomatic protests and responses. ;eginning in the nineteenthcentury, States locked in dispute o#er the treatment of foreigners created arbitral tribunals toadjudicate claims of harmed citi)ens for damages. This would usually happen after someinternal strife in, for instance, 2e$ico, wherein foreigners would be harmed or their propertiestaken or damaged by the contending forces. The State of the foreigner, for instance, the UnitedStates, would protest, and to resol#e their differences, the States would constitute a arbitral body,often called a Claims Commission, though a duly e$ecuted greement. 0or e$ample, the US'2e$ico Claims Commission %whose rulings are a fertile source of international norms,particularly on state responsibility& was created through an agreement in ashington. Theciti)ens would then present their claims to this tribunal, and the tribunal would, if it finds that theState is responsible, order that State to pay damages.The rise of permanent tribunals in the twentieth century, such as the Permanent Court and the"C?, ga#e States a permanent forum in which to resol#e their disputes and claim liability for theharm done to their citi)ens. Under the doctrine of diplomatic protection, the State comes beforethe tribunal to ask relief for the #iolation of the rights of the 8tatethrough the harm done to itsciti)ens, and the tribunal would award damages to the 8tate.!8!+ . 1e#i, C-3T62P-44G"3T643T"-311: C-3C"S6"3T4-5UCT"-3*99 %*898&.!8+an Panhuys at '


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re(uirement of diplomatic protection is the e$haustion of local remedies, which re(uirement isa general principle of international law.!8> Thus, a StateFs claim before an international tribunalfor the harm to its citi)en would be disallowed if it is shown that the citi)en failed to e$haust theremedies a#ailable to him in order to obtain redress for the #iolation. 7owe#er, the State that is

in#oking the objection must show that there are indeed effecti#e remedies a#ailable within itsjurisdiction.!8B "f it fails to carry this affirmati#e burden, then the objection would not besustained, and the suit would be gi#en due course.

I>. ations are commanded under international law'64 to underta)e the protection of basic human rights,

especially the rights to life'65,to dignity, and to be provided with adequate remedies for the violation of

fundamental rights'66 !n particular, the !nternational &ovenant on &ivil and Political "ights I!&&P"J

and the Knited >ations &harter-- as interpreted by the subsequent practice of 8tate parties *99-- impose

the obligation to promote and protect human rights*9: ;urthermore, the existence of its obligation under

customary international law is evidenced by the widespread acceptance of numerous internationalconventions*9'and instruments stating this hallowed principle,*9* it being settled international doctrine

!8>6lletronica Sicula, S.p.. %61S"& %U.S. #. "taly&, *8=8 "C?.!8B6lletronica Sicula, S.p.. %61S"& %U.S. #. "taly&, *8=8 "C?.!89See 46STT6263T-0T761T7"45: ! 46STT6263T-0T761: T760-46"3461T"-3S1-0T76U3"T65STT6S, sec. 9@*, comment, p. *>! %2ay *&, para. *B*.+@@"nternational Co#enant on Ci#il and Political 4ights, art. ! Uni#ersal 5eclaration of 7uman 4ights, art. 9 U3 eneral ssembly4esolution !*9 %"""&, *@ 5ecember *8 0ebruary !@@@, article 8, nos. +'


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that conventions that nations have entered into evidence the existence of a customary norm *9 !ndeed,

the duty to protect human rights is peremptory*92, and under custom and convention is an obligation ergaomnes, implicating as it does the interest of all nations in the protection of human rights and fundamentalfreedoms,*93 and entitling all the nations to invo)e the liability of any state for breaching this

obligation*94I8C"J

(here exists in the circle of civilised peoples certain principles connected with the value and dignity ofhuman persons which are so essential for the social life of human beings and for the existence of each

person that no 8tate belonging to this circle is entitled to brea) such principles Hence the infringement

of these principles of humanity remains a punishable crime, even when it is tolerated, promoted or

ordered by a 8tate*95I!&&J

>. E8tra"ition

6$tradition is /the surrender of an indi#idual accused or con#icted of a crime by a State withinwhose territory he is found and his deli#ery to the state where he allegedly committed crime orwas con#icted of a crime./+@8 Under Philippine law, e$tradition is only done pursuant to a treaty

and con#ention, with a #iew to criminal in#estigation or e$ecution of a prison sentence.+*@

Under international law, there is no duty to e$tradite e$cept pursuant to treaty, and in the absenceof a treaty, e$tradition would ha#e to be subject to negotiation, subject to the consent of thee$traditing state.+**

The e$tradition process has been characteri)ed as a sui generis process. "t is not a criminalproceeding, but it is also not purely an e$ercise of ministerial functions, for the e$ecuti#eauthority has the power to %a& assess the completeness of the e$tradition papers, %b& deny there(uest if on its face and on the face of the e$tradition documents the offense is not e$traditable,

ssembly 4esolution >!A*++, A46SA>!A*++, !9 0ebruary *88=, no. , *8+, +>> %ntonio Cassese etal., eds. !@@!&.+@82agallona 8@+*@2agallona 8*+**2agallona 8@'8*. "t has been proposed, howe#er, that the rule is different with regard to international crimes,

that states ha#e a duty under customary law to prosecute or e$tradite those persons accused of such offenses. hena state cannot prosecute effecti#ely, it is bound to e$tradite to a state that is willing and able to so prosecute. Thisremains, howe#er, a contro#ersial #iew. See 2. C. ;SS"-U3", C4"26S"3ST7U23"TG"3"3T643T"-311!*8'!!@ %*888&.


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and %c& determine if the e$tradition re(uest is politically moti#ated or is a military offense notco#ered by non'military penal legislation.+*!

A. Re9$irements *or E8tra"ition

Under the principle of %*& speciality, the re(uesting State must specify the crime under thee$tradition treaty for which the fugiti#e or accused is sought, and to be tried only for the offensespecified in the treaty+*+. %!&Eouble criminalityis sometimes also deemed a re(uirement fore$tradition.

B. E8#e%tions to E8tra"ition

1. The Politi#al O**ense E8#e%tion

state may refuse to e$tradite a person when he is charged for a political offense, that is, an actdirected against a security of a state. enerally, to be a political offense, t

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