Você está na página 1de 34

IMMUNITY from JURISDICTION THE TATE LETTER 2 conflicting concepts of Sovereign Immunity: 1.

CLASSICAL or ABSOLUTE theory a sovereign, cannot, without his consent, be made a respondent in the courts of another sovereign 2. NEWER or RESTRICTIVE theory immunity of sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gentionis) Sovereign immunity should not be claimed or granted in action with respect to 1. Real property diplomatic and perhaps consular property excepted 2. Disposition of the property of a deceased person even though a foreign sovereign is the beneficiary VICTORY TRANSPORT v. COMISARIA GENERAL de ABASTECIMIENTOS y TRANSPORTES Facts: Victory Transport chartered a ship to a branch of the Ministry of Commerce of the Spanish Government. The ship was damaged while discharging cargo at Spanish ports. The charter agreement contained the New York Produce Arbitration clause that should any dispute arise, the matter should be referred to 3 persons at New York. Victory Transport brought suit to compel arbitration under United States Arbitration Act. The company secured an ex parte order from the District Court permitting service of its petition by registered mail at the Madrid office of Comisaria General. Comisaria General moved to vacate the service on the ground that the Court lacked in personam jurisdiction because of the extraterritorial service and because of the sovereign immunity from suit. It presented an affidavit stating that it was a branch of the Spanish Government. Held: The Victory Transports motion to compel arbitration must be granted because the claim arose out of a commercial operation of the Spanish government, and the defense of sovereign immunity was not available. The State department announced that it would generally adhere to the restrictive theory of sovereign immunity. But the Tate Letter offers no guidelines or criteria for differentiating between a sovereigns private and public acts. Some have looked to the 1. Nature of the transaction, categorizing as sovereign acts only activity which could not be performed by individuals


Purpose of the transaction, categorizing as jure imperii all activities in which the object of performance is public in character

The purpose of the restrictive theory is to try to accommodate the interest of individuals doing business with foreign Governments in having their legal rights determined by the courts. We are disposed to deny a claim of sovereign immunity that has not been recognized and allowed by the State department unless it is plain that the activity in question falls within one of the categories of strictly political or public acts about which sovereigns have traditionally been quite sensitive. Such acts are generally limited to the following categories: 1. Internal administrative acts, such as expulsion of aliens 2. Legislative acts, such as nationalization 3. Acts concerning the armed forces 4. Acts concerning diplomatic activity 5. Public loans The Commisaria Generals chartering of the appellees ship to transport a purchase of wheat is not a strictly public or political act; it partakes far more of the character of a private commercial act than a public or political act, and one of the most significant indicators of the private commercial nature of this charter is the inclusion of the arbitration clause. If the wartime transportation of rice to civilian and military personnel is not an act jure imperii, a fortiori the peacetime transportation of wheat for presumptive resale is not an act jure imperii. GOVERNMENT OF CONGO v. VENNE Facts: This is an appeal from a judgment of the CA of Quebec which it disallowed the appellants declinatory exception whereby it had claimed that, by reason of its status as a sovereign State, it could not be impleaded in the Quebec courts. The respondent is an architect who claims to have been retained, on behalf of the appellant, for the purpose of making preliminary studies and preparing sketches is relation to the national pavilion which the Republic of Congo proposed to build at Expo 67. The respondent prepared a bill of $20,000 for services rendered which was reduced to $$12,00 and was not paid because the Congo decided not to proceed with the pavilion. The record indicates that the Judges of the CA simply accepted the finding of the trial court and did not consider the material upon which it was based. It
P a g e |1

Public International Law

discloses nothing more than that the contract here in question was made in pursuance of the desire of a foreign sovereign State to construct a national pavilion at an international exhibition and to be thereby presented at that exhibition which was registered by the Council of the Bureau of International Exhibitions. Mr. Leduc, and consequently the CA, adopted the view that the nature of the transaction here at issue was to be determined entirely on the basis that the respondent was a Montreal architect claiming against his employer and that the matter was therefore a purely private one. But, even if the theory of restrictive sovereign immunity were applicable, the question would not be whether the contractor was engaged in a private act of commerce, but whether or not the Government of Congo, acting as a visiting sovereign State through its duly accredited diplomatic representatives, was engaged in the performance of a public sovereign act of State. Held: The request for the respondents services was made not only by the duly accredited diplomatic representatives of the Congo who were Commissioners General of the Exhibition, but also by the representative of the DFA of that country. In preparing for the construction of its national pavilion, it was engaged in the performance of a public sovereign act of State on behalf of their country and that the employment of the respondent was a step taken in the performance of that sovereign act. Appellant could not be impleaded in the Courts of this country even if the socalled doctrine of restrictive sovereign immunity has been adopted in our Courts. DESSAULLES v. REPUBLIC OF POLAND [LASKIN (DISSENTING)] There is no doubt that a Sovereign State cannot be sued before foreign Courts. This is based upon the independence and dignity of States, and international courtesy has always respected it. 2 observations on this statement: 1. The absolute doctrine is not today part of the domestic law 2. Neither independence nor the dignity of States, nor international comity require vindication through a doctrine of absolute immunity Independence as a support for absolute immunity is inconsistent with the absolute territorial jurisdiction of the host State; and dignity, which is a projection of independence or sovereignty, does not impress when regard is had to the submission of States to suit in their own Courts. SC of US has exposed the frailty of these considerations by allowing a counterclaim to be pursued against a sovereign State which invoked the jurisdiction of a domestic

court. Nor is comity any more realistic a foundation for absolute immunity, unless it be through treaty. The Present case had to do with a claim to immunity from local taxation of a. Personality, of which legal title was in the US, and b. Leasehold interests, beneficially owned by that foreign State All the property was used in the construction of a radar defense system in Canada, pursuant to an agreement between Canada and US. On the facts of the case, involving a visit for a particular mutual purpose of protection, it was a reasonable conclusion that public taxing legislation should not be applied to property used in the joint venture, especially when the work carried on by either Government on its own land would be untaxable. The considerations which make it preferable to consider immunity from the standpoint of function rather than status do not rest simply on a rejection of the factors which had formerly been said to underlie it. There is the a. simple matter of justice to a plaintiff b. reasonableness of recognizing equal accessibility to domestic Courts by those engaged in transnational activities, although one of the parties to a transaction may be a foreign State or an agency thereof c. promotion of international legal order by making certain disputes which involve a foreign State amendable to judicial processes, even though domestic, and d. expansion of the range of activities and services in which the various States today are engaged has blurred the distinction between governmental and non-governmental functions or acts, so as to make it unjust to rely on status alone to determine immunity from the consequences of State action. US v. ESTATE OF MARCOS Facts: PNB petitions this court for a writ of mandamus to prevent the district court from pursuing contempt and discovery proceedings against the Bank because of the Banks transfer of funds to the Philippines pursuant to a judgment of the Phil. SC. We conclude that the district courts orders violated the act of state doctrine, and we accordingly issue the writ. In an earlier case, we dealt with the attempt of class plaintiffs to reach assets of the Marcos estate located in Swiss banks. The Swiss assets had been frozen by the Swiss government at the request of the Republic. The class plaintiff obtained an injunction from the district court requiring the Swiss banks to hold the assets for the benefits of the class plaintiffs. We held that the injunction violated the act of state doctrine, which precludes our courts from declaring invalid a foreign sovereigns official act.
P a g e |2

Public International Law

Thereafter, the Swiss government released the funds frozen for transfer to the PNB in escrow pending a determination of proper disposal by a competent court in the Philippines. PNB deposited the funds in Singapore. Phil. SC subsequently held that the assets were forfeited to the Philippines. The district court then issued the orders ruling that the Phil. SC had violated due process by any standard and that its judgment was entitled to no deference. The district court then issued an Order to Show Cause against PNB, which was not a party to the litigation in the district court. Issues and Held: 1. w/n the proceeding against PNB for its transfer of funds violated the act of state doctrine The act of state doctrine every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory. The district courts orders in issue violated this principle. 2. w/n the doctrine is directed at the executive and legislative branches of foreign government, and does not apply to judicial decisions

CONGRESO DEL PARTIDO Facts: A contract for sale of sugar was made between a Cuban state trading enterprise, as seller and a Chilean company, as buyers. One shipment was carried on Playa Larga, a Cuban flag vessel, owned by Cuba and operated by Mambusa, a state trading enterprise which manages and operates all Cuban state-owned ships. It is not an emanation or department of the Cuban state; it has independent legal existence. The other shipment was carried on Marble Islands, owned by Blue Seas Shipping, a Liechtenstein corporation, and flew the Somali flag. It was chartered to Mambisa on a demise charter and sub-charterred by Mambisa to Cubazucar for the voyage to Chile. On that day, a coup detat took place in Chile and diplomatic relations between Chile and Cuba were terminated. There seems to have been no violence at Valparaiso, and nothing occurred to prevent Playa Larga from continuing to discharge, however, it was ordered by Mambisa, which had itself been so instructed by the Cuban government, to leave Valparaiso and join Marble Islands. Playa Larga met Marble Islands at sea, and, on instructions, both vessels proceeded to Callao in Peru. Playa Larga left Callao and returned to Cuba where it discharged the balance cargo and where it was later sold by Mambisa. Marble Islands left Callao intending to return to Cuba, but it was arrested at the Panama Canal on the application of the Buyer. It broke arrest and sailed west for North Vietnam. In the course of its voyage, her ownership and flag were transferred to the Republic of Cuba. Issue: w/n a plea of state immunity can be raised so as to deny jurisdiction Held: The restrictive doctrine should be applied to the present case. That basis on which one State is considered to be immune from the territorial jurisdiction of the courts of another State is that of par in parem sovereign or governmental acts of one State are not matters on which the courts of other States will adjudicate. The relevant exception arises from the willingness of States to enter into commercial, or other private law, transactions with individuals. It appears to have 2 main foundations: 1. it is necessary in the interest of justice to individuals having such transactions with States to allow them to bring such transactions before the courts

Although the act of state doctrine is normally inapplicable to court judgments arising from private litigation, there is no inflexible rule preventing a judgment sought by a foreign government from qualifying as an act of State. The forfeiture action was not a mere dispute between private parties; it was an action initiated by the Phil. Government pursuant to its statutory mandate to recover property allegedly stolen from the treasury. The subject matter of the forfeiture action thus qualifies for treatment as an act of State. 3. w/n the act of state doctrine is inapplicable because the judgment of the Phil. SC did not concern matters within its own territory

The act of the Phil. SC was not wholly external. Its judgment was issued in the Philippines and much of its force upon PNB arose from the fact that the Bank is a Phil. Corporation. Even if we assume for purposes of decision that the assets were located in Singapore, we conclude that this fact does not preclude treatment of the Phil. Judgment as an act of state in the extraordinary circumstances of this case. The act of state doctrine is to be applied pragmatically and flexibly, with reference to its underlying considerations. The underlying governmental interest of the Philippines supports treatment of the judgment as an act of state.

Public International Law

P a g e |3


to require a State to answer a claim based on such transactions does not involve a challenge to or inquiry into any act of sovereignty or governmental act of that State

The court must consider the whole context in which the claim against the State is made, with a view to deciding whether the relevant acts on which the claim is based should, in that context, be considered as fairly within an area of activity, trading or commercial or otherwise of a private law character, in which the State has chosen to engage or whether the relevant acts should be considered as having been done outside that area and within the sphere of governmental or sovereign activity. Playa Larga was owned by Republic of Cuba, operated by Mambisa, and chartered by Mambisa to Cubazucar under a charter probably governed by Cuban law. The decision not to complete unloading at Valparaiso, or to discharge at Callao, was a political decision taken by the government of Cuba for political and non-commercial reasons. Everything done by Cuba in relation to Playa Larga could have been done, and so far as evidence goes, was done, as owners of the ship; it did not exercise, and had no need to exercise, sovereign powers. It acted as any owner of the ship would act, through Mambisa, the managing operators. It invoked no governmental authority. However, I cannot agree that there was ever any purely commercial obligation on the Cuba or any binding commercial obligation: the Republic never assumed any such obligation; it never entered the trading sea; the cargo owners never entered into a commercial relation with it. The acts of Cuba were and remained in their nature purely governmental. The fact is that if any wrong was done as regards the cargo, it was done by Mambisa. Unfortunately, Mambisa turned out not to be the owners of I Congreso, so a fresh action had to be brought against Cuba, who were the owners of that ship. The acts complained of as regards Cuba were acts jure imperii and so covered by immunity. TRENDTEX TRADING CORP v. CENTRAL BANK OF NIGERIA Facts: The Central Bank of Nigeria issued a letter of credit drawn on the Midland Bank in London in favor of Trendtex, a Swiss company, to pay for cement sold by Trendtex to an English company. The bank assured Trendtex that the letter of credit was reliable. However, the bank refused to pay, and Trendtex brought this action. The banks defense is that, as an arm or department of the Nigerian government, it was entitled to sovereign immunity.

Held: It was suggested that the original contracts for cement were made by the Ministry of Defense of Nigeria, and that the cement was for building of barracks for the army. The contracts of purchase were acts of a governmental nature and not of a commercial nature. But I do not think that this should affect the question of immunity. If a government department goes into the market places of the world and buys boots or cement, as a commercial transaction, that government should be subject to all the rules of the market place. The plaintiffs here are not suing on the contracts of purchase. They are claiming on the letter of credit which was a straightforward commercial transaction. The letter of credit was issued in London through a London bank in the ordinary course of commercial dealings. It is completely within the territorial jurisdiction of our courts. I have found it difficult to decide whether or not the Central Bank of Nigeria should be considered in international law a department of the Federation of Nigeria, even though it is a separate legal entity. But, on the whole, I do not think it should be. There is no immunity in respect of commercial transactions, even for a government department. US DIPLOMATIC AND CONSULAR STAFF IN TEHRAN (US v. IRAN) The events fall into 2 phases: 1. The arm attacked on the US Embassy by militants, the overrunning of its premises, the seizure of its inmates as hostages, the appropriation of its property and archives and the conduct of the Iranian authorities in the face of those occurrences. 2. The completion of the occupation of US Embassy by the militants, and the seizure of the Consulates at Tabriz and Shiraz On the first phase, it was an operation which continued without any body of police, any military unit or any Iranian official intervening to try to stop or impeded it from being carried through to its completion. However, there was no suggestion that the militants, when they executed their attack, had any form of official status as recognized agents or organs of the Iranian State. Their conduct cannot, therefore, be regarded as imputable to that State. But it doesnt mean that Iran is free from any responsibility. Iran was placed under the most categorical obligations, as a receiving State, to take appropriate steps to ensure the protection of US Embassy and Consulates. The inaction of the Iranian government by itself constituted clear and serious violation of Irans obligations to US under the Vienna Convention on Diplomatic Relation and on Vienna Convention on Consular Relations.

Public International Law

P a g e |4

On the second phase, the duty of Iran was to restore the Consulates at Tabriz and Shiraz to US control, and in general, to re-establish the status quo and to offer reparation for the damage. However, no such step was taken by the Iranian authorities. Therefore, the Iranian government is ordered to immediately take all steps to redress the situation and to make reparation to the US government. Also, no member of the US diplomatic or consular staff may be kept in Iran to be subjected to any form of judicial proceedings or to participate in them as a witness. RE REGINAS AND PALACIOS Facts: The respondent had been a duly-accredited member of the diplomatic staff of the Embassy of Nicaragua. He resided in Ottawa. The Nicaraguan Embassy advised the Department of External Affairs that the respondent had terminated his duties at this mission as of that date. The respondent left Canada for a temporary visit to US, when he returned to Canada, he was briefly detained by the police. Issues and Held: 1. w/n the respondent is protected by diplomatic immunity Entitlement to diplomatic immunity by the responded depends on the interpretation placed on the Vienna Convention on Diplomatic Relation of 1961. When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict. Under the customary rules, immunity is not limited in time to the dates on which the diplomat takes up his duties and relinquishes them. it extends to protect him from the time he enters the host country for the purpose of taking up his duties and for a reasonable time after their termination in order to enable him to wind up his affairs and leave the country. The Convention must be interpreted so as to give to its purpose which is to affirm and secure diplomatic privileges and immunities. The meaning of the words leaves the country refer to permanent departure from the host country. 2. w/n mandamus is available to the Crown

erred in refusing to do so. It is a discretionary remedy and ordinarily does not lie if other remedies are available. To know if there is availability of mandamus, the question is not whether a judge had jurisdiction to decide the matter in controversy but rather whether he made an error in law in reaching a decision on it which prevented the determination of the charges on their merits. In this case, the learned provincial judge did not err in holding the respondent to be entitled to diplomatic immunity and as a result, mandamus should not go. DIPLOMATIC BAG The Nigerian Ministry of External Affairs delivered notes to the heads of diplomatic and consular missions accredited to Nigeria, informing them that in order to combat trafficking in Nigerian currency, for a period of 6 weeks, all persons and goods, without exception, entering Nigeria by air, land or sea shall be carefully searched by the customs authorities with a view to ensuring that Nigerian currency is not imported into the country. The American Embassy protested stating that under the Vienna Convention on Diplomatic Relations, to which Nigeria is a party: a. the receiving State shall permit and protect free communication on the part of the Mission for all official purposes b. the official correspondence of the Mission shall be inviolable. Official correspondence means all correspondence relating to the Mission and its functions c. the diplomatic bad shall not be opened or detained As regards consular communications, international law does not permit the receiving State to detain any pouch, nor to request the opening of any pouch, unless its authorities have serious reason to believe that a particular pouch contains something other than correspondence exclusively for official use, and then only with the consent of the sending State, failing which the pouch is to be returned to its place of origin. SANDERS v. VIRIDIANO Facts: Petitioner Sanders was the special services director of the U.S. Naval Station (NAVSTA) in Olongapo City. Petitioner Moreau was the commanding officer of the Subic Naval Base, which includes the said station. Private respondent Rossi is an American citizen with permanent residence in the Philippines, as so was private respondent Wyer, who died two years ago. They were both employed as gameroom attendants in the special services department of the NAVSTA.
P a g e |5

The purpose of the writ of mandamus is to compel an inferior court to proceed with its determination of criminal charges on their merits where the court has

Public International Law

The private respondents were advised that their employment had been converted from permanent full-time to permanent part-time. They protested and the result was a recommendation for the reinstatement of the private respondents to permanent full-time status plus backwages. The report on the hearing contained the observation that "Special Services management practices an autocratic form of supervision." In a letter addressed to petitioner Moreau, Sanders disagreed with the hearing officer's report and asked for the rejection of the recommendation. The letter contained the statements that: a. Mr. Rossi tends to alienate most co-workers and supervisors b. Messrs. Rossi and Wyers have proven, according to their immediate supervisors, to be difficult employees to supervise, and c. Even though the grievants were under oath not to discuss the case with anyone, they placed the records in public places where others not involved in the case could hear Before the start of the grievance hearings, a-letter purportedly coming from petitioner Moreau was sent to the Chief of Naval Personnel explaining the change of the private respondent's employment status and requesting concurrence therewith. The letter did not carry his signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau. The plaintiffs claimed that the letters contained libelous imputations that had exposed them to ridicule and caused them mental anguish and that the prejudgment of the grievance proceedings was an invasion of their personal and proprietary rights. Issue: w/n petitioners were performing their official duties when they did the acts for which they have been sued for damages by the private respondents Held: It is stressed at the outset that the mere allegation that a government functionary is being sued in his personal capacity will not automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. By the same token, the mere invocation of official character will not suffice to insulate him from suability and liability for an act imputed to him as a personal tort committed without or in excess of his authority. These well-settled principles are applicable not only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as in the present case. It is abundantly clear in the present case that the acts for which the petitioners are being called to account were performed by them in the discharge of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly had supervision over its personnel, including the private

respondents, and had a hand in their employment, work assignments, discipline, dismissal and other related matters. It is not disputed that the letter he had written was in fact a reply to a request from his superior, the other petitioner, for more information regarding the case of the private respondents. Moreover, even in the absence of such request, he still was within his rights in reacting to the hearing officer's criticismin effect a direct attack against him-that Special Services was practicing "an autocratic form of supervision." As for Moreau, what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the conversion of the private respondents' type of employment even before the grievance proceedings had even commenced. This act is clearly official in nature, performed by Moreau as the immediate superior of Sanders and directly answerable to Naval Personnel in matters involving the special services department of NAVSTA. In fact, the letter dealt with the financial and budgetary problems of the department and contained recommendations for their solution, including the re-designation of the private respondents. There was nothing personal or private about it. Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being sued as officers of the United States government. As they have acted on behalf of that government, and within the scope of their authority, it is that government, and not the petitioners personally, that is responsible for their acts. There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately liable has given its consent to' be sued. So we have ruled not only in Baer but in many other decisions where we upheld the doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the jurisdiction of our courts. The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against the authority which makes the law on which the right depends. 16 In the case of foreign states, the rule is derived from the principle of the sovereign equality of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude would "unduly vex the peace of nations." A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the petitioners in the performance of their official duties and the private respondents are themselves American citizens, it would seem only proper for the courts of this country to refrain from taking cognizance of this matter and to treat it as coming under the internal administration of the said base.

Public International Law

P a g e |6

US v. GUINTO Facts: These cases have been consolidated because they all involve the doctrine of state immunity. The United States of America was not impleaded in the complaints below but has moved to dismiss on the ground that they are in effect suits against it to which it has connection with the bidding conducted by them for contracts for barber services in the said base. In G.R. No. 76607, the private respondents are suing several officers of the U.S. Air Force stationed in Clark Air Base in connection with the bidding conducted by them for contracts for barber services in the said base. In G.R. No. 79470, Genove filed a complaint for damages against petitioners for his dismissal as cook in the U.S. Air Force Recreation Center at the John Hay Air Station in Baguio City. It had been ascertained after investigation, that Genove had poured urine into the soup stock used in cooking the vegetables served to the club customers. In G.R. No. 80018, Luis Bautista, who was employed as a barracks boy in Camp O' Donnell, an extension of Clark Air Base, was arrested following a buy-bust operation conducted by the individual petitioners herein, officers of the U.S. Air Force and special agents of the Air Force Office of Special Investigators (AFOSI). On the basis of the sworn statements made by them, an information for violation of the Dangerous Drugs Act, was filed against Bautista in the RTC of Tarlac. As a result of the filing of the charge, Bautista was dismissed from his employment. He then filed a complaint for damages against the individual petitioners herein claiming that it was because of their acts that he was removed. In G.R. No. 80258, a complaint for damages was filed by the private respondents against the herein petitioners for injuries allegedly sustained by the plaintiffs as a result of the acts of the defendants. Held: The rule that a state may not be sued without its consent, now expressed in Article XVI, Section 3, of the 1987 Constitution, is one of the generally accepted principles of international law that we have adopted as part of the law of our land under Article II, Section 2. As applied to the local state, the doctrine of state immunity is based on the justification given by Justice Holmes that "there can be no legal right against the authority which makes the law on which the right depends." In the case of the foreign state sought to be impleaded in the local jurisdiction, the added inhibition is expressed in the maxim par in parem, non habet imperium. All states are sovereign equals and cannot assert jurisdiction over one another. A contrary disposition would, in the language of a celebrated case, "unduly vex the peace of nations."

While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against them, the suit must be regarded as against the state itself although it has not been formally impleaded. In such a situation, the state may move to dismiss the complaint on the ground that it has been filed without its consent. The consent of the state to be sued may be manifested expressly or impliedly. Express consent may be embodied in a general law or a special law. Consent is implied when the state enters into a contract or it itself commences litigation. As for the filing of a complaint by the government, suability will result only where the government is claiming affirmative relief from the defendant. In the case of the United States of America, the customary rule of international law on state immunity is expressed with more specificity in the RP-US Bases Treaty. Article III thereof provides as follows: It is mutually agreed that the United States shall have the rights, power and authority within the bases which are necessary for the establishment, use, operation and defense thereof or appropriate for the control thereof and all the rights, power and authority within the limits of the territorial waters and air space adjacent to, or in the vicinity of, the bases which are necessary to provide access to them or appropriate for their control. It is clear from a study of the records of G.R. No. 80018 that the individuallynamed petitioners therein were acting in the exercise of their official functions when they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial. In G.R. No. 79470, the Court can assume that the restaurant services offered at the John Hay Air Station partake of the nature of a business enterprise undertaken by the United States government in its proprietary capacity. The consequence of this finding is that the petitioners cannot invoke the doctrine of state immunity to justify the dismissal of the damage suit against them by Genove. The reason is that by entering into the employment contract with Genove in the discharge of its proprietary functions, it impliedly divested itself of its sovereign immunity from suit. But these considerations notwithstanding, we hold that the complaint against the petitioners in the court below must still be dismissed. While suable, the petitioners are nevertheless not liable. It is obvious that the claim for damages cannot be allowed on the strength of the evidence before us, which we have carefully examined.

Public International Law

P a g e |7

Concerning G.R. No. 76607, we also find that the barbershops subject of the concessions granted by the United States government are commercial enterprises operated by private person's. They are not agencies of the United States Armed Forces nor are their facilities demandable as a matter of right by the American servicemen. These establishments provide for the grooming needs of their customers. This being the case, the petitioners cannot plead any immunity from the complaint filed by the private respondents in the court below. The contracts in question being decidedly commercial. The Court would have directly resolved the claims against the defendants as we have done in G.R. No. 79470, except for the paucity of the record in the case at hand. REPUBLIC OF INDONESIA v. VINZONS Facts: Petitioner, Republic of Indonesia, entered into a Maintenance Agreement with respondent James Vinzon, sole proprietor of Vinzon Trade and Services. The Maintenance Agreement stated that respondent shall, for a consideration, maintain specified equipment at the Embassy Main Building and the Wisma Duta, the official residence of petitioner Ambassador Soeratmin. It is likewise stated therein that the agreement shall be effective for a period of four years and will renew itself automatically unless cancelled by either party by giving thirty days prior written notice from the date of expiry. Petitioners claim that sometime prior to the date of expiration of the said agreement, they informed respondent that the renewal of the agreement shall be at the discretion of the incoming Chief of Administration. When Minister Counsellor Kasim assumed the position of Chief of Administration, he allegedly found respondents work and services unsatisfactory and not in compliance with the standards set in the Maintenance Agreement. Hence, the Indonesian Embassy terminated the agreement. On the other hand, respondent claims that the aforesaid termination was arbitrary and unlawful. Hence, on respondent filed a complaint against petitioners. Petitioners filed a Motion to Dismiss, alleging that the Republic of Indonesia, as a foreign sovereign State, has sovereign immunity from suit and cannot be sued as a party-defendant in the Philippines. Issue: w/n CA erred in sustaining the trial courts decision that petitioners have waived their immunity from suit by using as its basis the abovementioned provision in the Maintenance Agreement Held: The provision states that any legal action arising out of this Maintenance Agreement shall be settled according to the laws of the Philippines and by the proper court of Makati City, Philippines.

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 jure imperii or jure gestionis. Such act is only the start of the inquiry. Is the foreign State engaged in the regular conduct of a business? If the foreign State is not engaged regularly in a business or commercial activity, and in this case it has not been shown to be so engaged, 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. Hence, the existence alone of a paragraph in a contract stating that any legal action arising out of the agreement shall be settled according to the laws of the Philippines and by a specified court of the Philippines is not necessarily a waiver of sovereign immunity from suit. The aforesaid provision contains language not necessarily inconsistent with sovereign immunity. On the other hand, such provision may also be meant to apply where the sovereign party elects to sue in the local courts, or otherwise waives its immunity by any subsequent act. The applicability of Philippine laws must be deemed to include Philippine laws in its totality, including the principle recognizing sovereign immunity. Hence, the proper court may have no proper action, by way of settling the case, except to dismiss it. Submission by a foreign state to local jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary implication. We find no such waiver in this case. There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A sovereign State does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic mission encompasses its maintenance and upkeep. Hence, the State may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of its agents and officials. It is therefore clear that petitioner Republic of Indonesia was acting in pursuit of a sovereign activity when it entered into a contract with respondent for the upkeep or maintenance of the air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps of the Indonesian Embassy and the official residence of the Indonesian ambassador. On the matter of whether or not petitioners Ambassador Soeratmin and Minister Counsellor Kasim may be sued herein in their private capacities, Article 31 of the Vienna Convention on Diplomatic Relations provides: A diplomatic agent shall enjoy immunity from the criminal jurisidiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of: a. a real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;
P a g e |8

Public International Law

b. an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State; c. an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. The act of petitioners Ambassador Soeratmin and Minister Counsellor Kasim in terminating the Maintenance Agreement is not covered by the exceptions provided in the abovementioned provision. The Solicitor General believes that said act may fall under subparagraph (c) thereof, but said provision clearly applies only to a situation where the diplomatic agent engages in any professional or commercial activity outside official functions, which is not the case herein. MUNICHER v. CA Facts: An Information for violation of the Dangerous Drugs Act of 1972, was filed against petitioner Khosrow Minucher and one Abbas Torabian. The criminal charge followed a buy-bust operation conducted by the Philippine police narcotic agents in the house of Minucher, an Iranian national, where a quantity of heroin, a prohibited drug, was said to have been seized. The presiding Judge Eutropio Migrino rendered a decision acquitting the two accused. Minucher filed a civil case for damages on account of what he claimed to have been trumped-up charges of drug trafficking made by Arthur Scalzo. Scalzo contends that the Vienna Convention on Diplomatic Relations, to which the Philippines is a signatory, grants him absolute immunity from suit, describing his functions as an agent of the United States Drugs Enforcement Agency as conducting surveillance operations on suspected drug dealers in the Philippines believed to be the source of prohibited drugs being shipped to the U.S., and having ascertained the target, he then would inform the Philippine narcotic agents to make the actual arrest. Issue: w/n Arthur Scalzo is indeed entitled to diplomatic immunity. Held: The Vienna Convention lists the classes of heads of diplomatic missions to include a. ambassadors or nuncios accredited to the heads of state b. envoys, ministers or internuncios accredited to the heads of states c. charges d' affairs accredited to the ministers of foreign affairs

Comprising the "staff of the (diplomatic) mission" are the diplomatic staff, the administrative staff and the technical and service staff. Only the heads of missions, as well as members of the diplomatic staff, excluding the members of the administrative, technical and service staff of the mission, are accorded diplomatic rank. Even while the Vienna Convention on Diplomatic Relations provides for immunity to the members of diplomatic missions, it does so, nevertheless, with an understanding that the same be restrictively applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket diplomatic immunity from civil and criminal suits. The Convention defines "diplomatic agents" as the heads of missions or members of the diplomatic staff, thus impliedly withholding the same privileges from all others. It might bear stressing that even consuls, who represent their respective states in concerns of commerce and navigation and perform certain administrative and notarial duties, such as the issuance of passports and visas, authentication of documents, and administration of oaths, do not ordinarily enjoy the traditional diplomatic immunities and privileges accorded diplomats, mainly for the reason that they are not charged with the duty of representing their states in political matters. 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. Scalzo asserted, particularly, that he was an Assistant Attach of the United States diplomatic mission and was accredited as such by the Philippine Government. An attach belongs to a category of officers in the diplomatic establishment who may be in charge of its cultural, press, administrative or financial affairs. There could also be a class of attaches belonging to certain ministries or departments of the government, other than the foreign ministry or department, who are detailed by their respective ministries or departments with the embassies such as the military, naval, air, commercial, agricultural, labor, science, and customs attaches, or the like. Attaches assist a chief of mission in his duties and are administratively under him, but their 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. These officials are not generally regarded as members of the diplomatic mission, nor are they normally designated as having diplomatic rank. Concededly, vesting a person with diplomatic immunity is a prerogative of the executive branch of the government. The State Department policy is to only concede diplomatic status to a person who possesses an acknowledged diplomatic title and performs duties of diplomatic nature. Supplementary criteria for accreditation are the possession of a valid diplomatic passport or, from States which do not issue such passports, a diplomatic note formally representing the intention to assign the person to diplomatic duties, the holding of a non-immigrant visa, being over twenty-one years of age, and performing diplomatic functions on an essentially full-time basis.
P a g e |9

Public International Law

But while the diplomatic immunity of Scalzo might thus remain contentious, it was sufficiently established that, indeed, he worked for the United States Drug Enforcement Agency and was tasked to conduct surveillance of suspected drug activities within the country on the dates pertinent to this case. If it should be ascertained that Arthur Scalzo was acting well within his assigned functions when he committed the acts alleged in the complaint, the present controversy could then be resolved under the related doctrine of State Immunity from Suit. The doctrine of immunity from suit will not apply and may not be invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official may be liable in his personal private capacity for whatever damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority and jurisdiction. In conducting surveillance activities on Minucher, later acting as the poseurbuyer 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. All told, this Court is constrained to rule that respondent Arthur Scalzo, an agent of the United States Drug Enforcement Agency allowed by the Philippine government to conduct activities in the country to help contain the problem on the drug traffic, is entitled to the defense of state immunity from suit. NICOLAS v. ROMULO Facts: Respondent Lance Corporal (L/CPL) Daniel Smith is a member of the United States Armed Forces. He was charged with the crime of rape committed against a Filipina. Pursuant to the VFA between the Republic of the Philippines and the United States, the United States, at its request, was granted custody of defendant Smith pending the proceedings. The RTC of Makati, following the end of the trial, rendered its Decision, finding defendant Smith guilty. Pursuant to Article V, paragraph No. 10, of the VFA, accused Smith shall serve his sentence in the facilities that shall, thereafter, be agreed upon by appropriate Philippine and United States authorities. Pending agreement on such facilities, accused Smith is hereby temporarily committed to the Makati City Jail.

However, defendant Smith was taken out of the Makati jail by a contingent of Philippine law enforcement agents, purportedly acting under orders of the DILG, and brought to a facility for detention under the control of the United States government, provided for under new agreements between the Philippines and the United States, referred to as the Romulo-Kenney Agreement which states that Lance Corporal Daniel J. Smith, United States Marine Corps, be returned to U.S. military custody at the U.S. Embassy in Manila, and that the Philippine police and jail authorities, under the direct supervision of the Philippine DILG will have access to the place of detention to ensure the United States is in compliance with the terms of the VFA. Issue: w/n Philippines should have custody over defendant Smith Held: The VFA being a valid and binding agreement, the parties are required as a matter of international law to abide by its terms and provisions. The VFA provides that in cases of offenses committed by the members of the US Armed Forces in the Philippines, the following rules apply: Art. 5, Sec. 6. The custody of any United States personnel over whom the Philippines is to exercise jurisdiction shall immediately reside with United States military authorities, if they so request, from the commission of the offense until completion of all judicial proceedings. Petitioners contend that these undertakings violate another provision of the Constitution, namely, that providing for the exclusive power of this Court to adopt rules of procedure for all courts in the Philippines (Art. VIII, Sec. 5[5]). They argue that to allow the transfer of custody of an accused to a foreign power is to provide for a different rule of procedure for that accused, which also violates the equal protection clause of the Constitution (Art. III, Sec. 1.). Again, this Court finds no violation of the Constitution. The equal protection clause is not violated, because there is a substantial basis for a different treatment of a member of a foreign military armed forces allowed to enter our territory and all other accused. The rule in international law is that a foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except to the extent agreed upon. As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply except to the extent agreed upon to
P a g e | 10

Public International Law

subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Applying, however, the provisions of VFA, the Court finds that there is a different treatment when it comes to detention as against custody. The moment the accused has to be detained, e.g., after conviction, the rule that governs is the following provision of the VFA: Art. 5, Sec. 10. The confinement or detention by Philippine authorities of United States personnel shall be carried out in facilities agreed on by appropriate Philippines and United States authorities. United States personnel serving sentences in the Philippines shall have the right to visits and material assistance. It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be by Philippine authorities. Therefore, the Romulo-Kenney Agreements, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not by Philippine authorities. Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA. SECOND REPORT ON STATE RESPONSIBILITY Whenever a State is guilty of an internationally wrongful act against another State, international responsibility is established immediately as between the 2 States. No State may escape the responsibility arising out of the exercise of an illicit action from the viewpoint of the general principles of international law A justification for the existence of this fundamental rule has usually been found in the actual existence of an international legal order and in the legal nature of the obligations it imposes on its subjects. In the international order, State responsibility derives from the fact that States mutually recognize each other as sovereign. The rules establishing responsibility would then be the necessary corollary to the principle of the equality of States.

Grotius: in the law of nations, maleficium was an independent source of legal obligations. This amounts to saying that internationally wrongful acts by States create new international legal relations characterized by subjective legal situations distinct from those which existed before the acts took place. INTERNATIONAL CRIMES AND INTERNATIONAL DELICTS International crime = an internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that the breach is recognized as a crime by the community as a whole International crime may result from: a. Serious breach for the maintenance of international peace and security (prohibiting aggression) b. Serious breach of the rights of self-determination of peoples (prohibiting the establishment or maintenance by force of colonial domination) c. Serious breach on a widespread scale for safeguarding the human being (prohibiting slavery, genocide, and apartheid) d. Serious breach of safeguarding and preservation of the human environment (prohibiting massive pollution of the atmosphere or of the seas) International delict = any internationally wrongful act not constituting an international crime CHATTIN v. MEXICO Facts: This claim is made by US against the United Mexican State on behalf of Chattin who was arrested at Mazatlan on a charge of embezzlement. Chattin was tried, convicted, and sentenced to 2 years imprisonment but was released from jail as a consequence of disturbances caused by the Madero revolutions. It is alleged that the arrest, trial and sentence were illegal, that the treatment in jail was inhuman, and that Chatting was damages to the extent of $50k, which amount Mexico should pay. Issues and Held: 1. w/n US has forfeited its right to protect its national Mexico contends that not only has Chattin, as a fugitive from justice, lost his right to invoke as against Mexico protection by US, but even that the latter is bound by such forfeiture of protection and may not interpose in his behalf.

Public International Law

P a g e | 11

It is true that more than once in international cases statements have been made to the effect that a fugitive from justice loses his right to invoke and to expect protection but this would seem not to imply that his government as well loses its right to espouse its subjects claim in its discretion. 2. w/n the trial of Chattin was held in illegal manner

hearings in open court a mere formality, and a continued absence of seriousness on the part of the court. WESTERN AND PASSE OR ALIVE AND UNIVERSAL

The whole of the proceedings discloses a most astonishing lack of seriousness on the part of the Court. Neither during the investigation nor during the hearings in open court was any such thing as an oral examination or crossexamination of any importance attempted. If the wholesome rule of international law as to respect for the judiciary of another country shall stand, it would seem of the utmost necessity that appellate tribunals when, in exceptional cases, discovering proceedings of this type would take against them the strongest measures possible under constitution and laws, in order to safeguard their country's reputation. From the record, there is not convincing evidence that the proof against Chattin, scanty and weak it may have been, was not such as to warrant a conviction. The allegation that the Court in this matter was biased against American citizens would seem to be contradicted by the fact that, together with the 4 Americans, 5 Mexicans were indicted as well. 3. w/n there was mistreatment in the jail

In the present article, it s proposed to examine the major criticisms which have been made of the approach reflected in the Universal Declaration and to not of the most significant developments in human rights thinking which have take place over the last generation. 1. The Declarations Philosophical Roots are exclusively Western and its values are therefore inapplicable to other societies

The Eastern European input into the Declarations drafting was sufficient to ensure the inclusion of economic, social and cultural rights as well as the use of language in the Preamble referring not only to individuals but also to peoples and organs of society. Moreover, most of the concerns dealt with in the Declaration had long been recognized within the varying conceptions of human dignity which are an integral part of the worlds major religious and cultural traditions. Thus, while the specific terminology of rights may be alien to, for example Islamic, Confucian, Hindu or African approaches, the concerns underlying it are not. 2. Third World participation in the Drafting of the Declaration was Negligible

The allegation of the claimant regarding mistreatment in the jail refers to filthy and unsanitary conditions, bad food, and frequent compulsion to witness the shooting of the prisoners. The hot climate of Mazatlan would explain in a natural way many of the discomforts experienced by the prisoners. 4. w/n Mexico is responsible for the alleged acts

While it is true that the great majority of Third World States were still under colonial rule and were unable to contribute to the UN human rights debate and adoption of the Declaration, the contribution of the Third World was by no means negligible. Most convincing is the fact that the basic principles enunciated in the Declaration have repeatedly been affirmed in instruments reflecting the deepest aspirations of the Third World such as the 160 Declaration on the Granting of Independence to Colonial Countries and Peoples, and in a variety of regional and sub-regional treaties. At the national level, the Declaration has been expressly referred to in the Constitutions of a large number of Third World States. 3. The Declaration enshrines an Individualistic approach to human rights which is unacceptable in non-Western societies

Bringing the proceedings of Mexican authorities against Chattin to the test of international standards, there can be no doubt of their being highly insufficient. Since this is a case of alleged responsibility of Mexico for injustice committed by its judiciary, it is necessary to inquire whether the treatment amounts even to an outrage, bad faith, willful neglect of duty, or to an insufficiency of governmental action recognizable by very unbiased man. An illegal arrest of Chattin is not proven. Irregularity of court proceedings is proven with reference to absence of proper investigations, insufficiency of confrontations, withholding from the accused the opportunity to know all of the charges brought against him, undue delay of the proceedings, making the

Public International Law

P a g e | 12

The vagueness and flexibility of the language used in the Declaration has enabled the notion of collective rights to be significantly developed without doing violence to the basic text. The most notable of these is the emergence of a category of peoples rights which have been proclaimed alongside human rights in the African Charter of Human and Peoples Rights. They include the right to economic, social and cultural development, the right to national and international peace and security, and the right to a generally satisfactory environment. 4. The Declaration pays scant regard to economic rights

sophisticated judicial structure than to one with a more traditional and informal system of justice. In the implementation of human rights, the methods used should take account of the traditions and culture of each society as well as of its legal system. Contribution to the implementation of international standards on human rights at the domestic level may also be made through various bodies including conciliatory agencies, such as human rights commissions, peoples organizations, and grass-roots organizations, such as village tribunals. 6. The Declaration overlooks the importance of International Solidarity

4 year later, of the Declarations 25 paragraphs dealing with specific rights, 6 were devoted to economic, social and cultural rights. In principle, the emphasis attached to these rights by the socialist and some other countries had been recognized. While the recent development of concern with economic rights has been interpreted by some commentators as resulting in the elimination of civil and political rights from serious international consideration, an attempt to restore balance into the treatment of the 2 sets of rights had in fact been long overdue. The Universal Declaration is predicated upon the equal importance of the 2 sets of rights and recent endeavours are thus consistent with the vision which it represents. 5. The Declaration does not take adequate account of the traditions and needs of the Third World

One of the most striking examples of this is to be found in the present day endeavours to extend the reach of, or to internationalize, States obligations to take measures for the promotion and protection of human rights. The right implies a positive duty for rich States to make regular transfers of financial and perhaps other resources to those States that are at present unable to ensure the satisfaction of the fundamental human rights of their citizens. In the present context, the point is that, rather than constituting a dramatic expansion of basic human rights principles, efforts towards an internationalization of responsibility for the promotion of respect for human rights basically amount to giving substance to Art. 28 of the Universal Declaration which provides that everyone is entitled to a social and international order in which the rights and freedoms setforth in this Declaration can be fully realized.

May developing countries justifiably feel that the periods of colonialism and neo-colonialism have in many cases imposed cultural system sand development models upon them which are completely alien. They therefore wish to rid themselves of all vestiges of cultural hegemony and to encourage the emergence or re-emergence of traditional and self-reliant approaches to development as well as to human rights. An assessment of the appropriateness or rather applicability of the Universal Declaration in a given society requires the consideration of 2 separate issues: 1. Relates to the rights themselves 2. Concerns the manner of implementation of the rights It must also be noted that the language used in the Declaration is sufficiently flexible to allow each State a margin of appreciation in interpreting the requirements of any particular right. Although the Declaration, unlike the Covenants, imposes no specific obligations upon States which respect to measures of implementation, its general approach is clearly more attuned to a society with a highly developed legal system and a



Since 1948, when the Universal Declaration of Human Rights was proclaimed, profound and enduring changes have occurred in the composition of the international community. The most decisive of these resulted from the wave of decolonization which swept the world to a shift in voting power. In 1983, the UDHR stands out as a beacon in a fog of community. Yet the Declaration does not support to offer a single unified conception of the world as it should be nor does it purport to offer some sort of comprehensive recipe for the attainment of an ideal world. In addition to their admitted moral and political authority, the justiciable provisions of the Declaration, those enunciated in Articles 1-21, have now acquired the force of law as part of the customary law of nations.
P a g e | 13

Public International Law

SOUTH WEST AFRICA CASES Facts: The discretionary power of the Mandatory however, is not unlimited. The Mandatory is subject to the Charter of the UN as a member State, the customary international law, general principles of law and other sources of international law. Under apartheid, the status, rights, duties, opportunities and burdens of the population are determined and allotted arbitrarily on the basis of race, color and tribe, in a pattern which ignores the needs and capacities of the groups and individuals affected, and subordinates the interests and rights of the great majority of the people to the preferences of a minority. The Applicants contend that such policy runs counter to modern conception of human rights, dignities and freedom, irrespective of race, color or creed. From the point of the Applicant, the violation of the norm of nondiscrimination is established if there exists a simple fact of discrimination without regard to the intent of oppression on the part of the Mandatory. On the other hand, the Respondent does not recognize the existence of the norm of non-discrimination of an absolute character and seeks to prove the necessity of group differentiation in the administration of a multi-racial, multinational, or multi-lingual community. Issue: w/n the policy of racial discrimination or separate development is per se incompatible with the well being and social progress of the inhabitants Held: The principle of equality before the law is philosophically related to the concepts of freedom and justice. The most fundamental point in the equality principle is that all human beings as persons have an equal value in themselves, that they are the aim itself and not the means for others, and that, therefore, slavery is denied. The principle of equality is binding upon administrative organs. The discretionary power exercised on considerations of expediency by the administrative organs is restricted by the norm of equality and the infringement of this norm makes an administrative measure illegal. The principle of equality being in the nature of natural law and therefore of a supra-constitutional character, is placed at the summit of hierarchy of the system of law, and that all positive laws including the Constitution shall be in conformity with this principle.

What is the criterion to distinguish a permissible discrimination from an impermissible one? In the case of minorities, the norm of non-discrimination as a reverse side of the notion of equality before the law prohibits a State to exclude members of a minority group from participating in rights, interests and opportunities which a majority population group can enjoy. On the other hand, a minority group shall be granted the exercise of their own religious and education activities. It is possible that the different treatment in certain aspects is reasonably required by the differences of religion, language, education, custom, etc., not by reason of race or color. The policy of apartheid or separate development which allots status, rights, privileges or burdens on the basis of membership in a group, class or race rather than on the basis of individual merit, capacity or potential is illegal whether the motive be bona fide or mala fide, oppressive or benevolent, whether its effect or result be good or bad for the inhabitants. INTER-AMERICAN COURT OF HUMAN RIGHTS The Inter-American Court of Human Rights was established by the American Convention on Human Rights and ratified by 17 of the 29 member states of the Organization of American States. The Court consists of 7 judges, nominated and elected by the states parties to the Convention. The judges must be nationals of an OAS member state; the regular term of the judges is 6 years; they may be reelected for one additional term. The norms governing the exercise of the Courts functions are set out in 2 instruments: 1. Convention Statute of Court shall be drafter and approved by the OAS General Assembly 2. Statute of Court 3. Rules of Procedure The Courts Jurisdiction 1. Adjudicatory jurisdiction to decide disputes involving charges that a state party has violated the human rights guaranteed by the Convention 2. Advisory empowers the Court to interpret the Convention and other human rights instruments at the request of OAS member states and various OAS organs Adjudicatory Jurisdiction The Courts power to decide a case referred to it is conditioned on the acceptance of its jurisdiction by the States parties to the dispute. A State is
P a g e | 14

Public International Law

not deemed to have accepted the jurisdiction of the Court merely by ratifying the Convention. It requires a separate declaration or a special agreement. All States parties to the Convention may permit the Court at any time, on ad ad hoc basis, to adjudicate a specific dispute relating to the application of the Convention. Only the State Parties and the Commission shall have the right to submit a case to the Court. Individuals have no standing to do so. Before one State party may bring charges against another State party, both states must have made a separate declaration recognizing the competence of the Commission to receive and examine interstate complaints. Procedures dealing with a submitted complaint: 1. Commission determines whether the petition is admissible 2. Commission seeks to ascertain the factual allegation by holding hearings, examining documents, and carrying out investigations o At this stage, Commission explores possibilities for reaching a friendly settlement of the dispute o If no friendly settlement is reached, proceed to 3rd stage 3. Commission has the duty to draw up a report setting forth the facts and stating its conclusions a. The report is transmitted to the States concerned b. Within a period of 3 months following the transmittal of the report, the case may be referred to the Court either by the Commission or by the State concerned The Court concluded that the procedures before the Commission have not been created for the sole benefit of the States, but also in order to allow for the exercise of important individual rights, and that therefore, the power to waive these procedures did not belong to the States alone. The right of individuals to file petitions with and to appear before the Commission are important safeguards that enable the private parties to play an active role in the investigatory, conciliatory, and quasi-adjudicatory processes by which the Commission exercises its functions. The proceedings before the Court in a contentious case terminate with a judgment. The Court has the power to enter a declaratory judgment and to award damages. Judgment that stipulates compensatory damages may be executed in the country concerned in accordance with domestic procedure governing the execution in the country concerned in accordance with domestic procedure governing the execution of judgments against the State.

The decisions of the Court, and of its President, as soon as they have been communicated to the appropriate administrative or judicial authorities of the Republic, shall have the same effect and executory force as those adopted by Costa Rican courts. The Court has the power to grant an extraordinary remedy in the nature of a temporary injunction in cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, at the request of the Commission. Temporary injunction is available in 2 distinct circumstances: 1. For cases already pending before the Court request may be made at any time after the case has been submitted to Court or even simultaneously with the filing 2. For cases being dealt with by the Commission that have not yet been referred to the Court for adjudication the Court would obtain jurisdiction only for the purpose of dealing with the request for provisional measures Advisory Adjudication The scope of the advisory power of the Court is more extensive that that enjoyed by any international tribunal in existence today: 1. Standing to request an advisory opinion from the Court is not limited to the States parties to the Convention; it extends to any OAS member state 2. Courts advisory jurisdiction applies not only to the Convention but also to the interpretation of any other treaty concerning the protection of human rights in the American States 3. Right to seek advisory opinions extends to all OAS organs 4. All OAS member states may also request opinions from the Court regarding the compatibility of their domestic laws with the Convention or with any of the human rights treaties National courts may request an advisory opinion from the Court but the request must come from the State through the government rather than directly from national tribunals. The matter could also be dealt with by appropriate agreements between the Court and governments authorizing national tribunals to deal directly with the Court in certain cases. The courts advisory opinion is not binding.

Public International Law

P a g e | 15

UNITED NATIONS DECLARATION ON PERMANENT SOVEREIGNTY OVER NATURAL RESOURCES As a basic constituent of the right to self-determination, due regard should be paid to the rights and duties of States under international law and to the importance of encouraging international cooperation in the economic development of developing countries. Any measure in this respect must be based on the recognition of the inalienable right of all States freely to dispose of their natural wealth and resources in accordance with their national interests, and on respect for the economic independence of States. It is desirable to promote international cooperation for the economic development of developing countries. Nationalization, expropriation or requisitioning shall be based on grounds or reasons of public utility, security or the national interest which are recognized as overriding purely individual or private interests, both domestic and foreign. Owner shall be paid appropriate compensation in accordance with the rules in force in the State taking such measures in the exercise of its sovereignty and in accordance with international law. When question of compensation gives rise to a controversy, the national jurisdiction of the State taking such measures shall be exhausted. However, upon agreement, settlement may be made through arbitration or international adjudication. CHARTER OF ECONOMIC RIGHTS AND DUTIES OF STATES Economic, political and other relations among States shall be governed by: a. Sovereignty, territorial integrity and political independence of States b. Sovereign equality of all States c. Non-aggression d. Non-intervention e. Mutual and equitable benefit f. Peaceful co-existence g. Equal rights and self-determination of peoples h. Peaceful settlement of disputes i. Remedying of injustice brought about by force and which deprive a nation of the natural means for its normal development j. Fulfillment in good faith of international obligations k. Respect for human rights and fundamental freedoms l. No attempt to seek hegemony and spheres of influence m. Promotion of international social justice

n. International cooperation for development o. Free access to and from the sea by land-locked countries TEXACO OVERSEAS PETROLEUM COMPANY v. GOVERNMENT OF LIBYA Facts and Held: Dispute between Libya and 2 international oil companies arising out of decrees of nationalization promulgated by Libya. Libya promulgated decrees purporting to nationalize all of the rights, interests and property of the 2 oil companies. The Sole Arbitrator delivered an Award on the Merits in favor of the Companies. He held that a. The deeds of concession are binding on the parties b. By adopting the measures of nationalization, the Libyan government breached its obligation in the Deeds of Concession c. Libyan government is legally bound to perform the Deeds and to give them their full force and effect An arbitral tribunal held that the injured parties were entitled to restitutio in integrum and that the sovereign state was obliged to perform specifically its contractual obligations with private foreign investors. In addition, the arbitral tribunal, after reviewing the legal effect in international law of the UN General Assembly resolutions concerning permanent sovereignty over natural wealth and resources, concluded that such resolutions could not be used by the State to violate its contractual obligations in commercial transactions. INTERNATIONAL LEGAL MATERIALS (RENE-JEAN DUPREY) Sovereignty is not negated by the conclusion of a treaty but, quite the contrary, that the conclusion of a treaty is a manifestation of such sovereignty. This observation has logically the same scope and significance in the case of an agreement entered into by a given State with a foreign private company. This agreement is not a treaty commitment but it is an agreement which falls within the international legal order since the contracting State agreed to submit the agreement not to the exclusive, and unlimited in time, application of its municipal law, but to rules falling at least in part within the framework of international law or of general principles of law. State, by entering into an international agreement with any partner, exercises its sovereignty whenever the State is not subject to duress and where the State
P a g e | 16

Public International Law

has freely committed itself through an untainted consent. It is not incompatible for a State to grant a concession while desiring not to alienate its sovereignty. However, sovereignty cannot invoke its sovereignty to disregard commitments freely undertaken through the exercise of this same sovereignty and cannot, through measures belonging to its internal order, make null and void the rights of the contracting party which has performed its various obligations under the contract. The international responsibility of the nationalizing State is brought into play when it nationalizes a foreign enterprise in violation of an obligation freely and precisely assumed by it in an international agreement. In respect of the international law of contracts, a nationalization cannot prevail over an internationalized contract containing a stabilization clauses, entered into between a State and a foreign country. The situation could be different only if one were to conclude that the exercise by a State of its right to nationalize places that State on a level outside of and superior to the contract and also to the international legal order itself, and constitutes an act of government which is beyond the scope of any judicial redress or any criticism. Assuming that jus cogens should be extended to agreements entered into between States and foreign private companies, it is nevertheless true that this concept should not apply to any treaty or any contract simply because such concerns the exploitation of natural resources; in each particular case, verification should be made as to whether the act considered does in fact alienate the sovereignty of the State over such resources. TRAIL SMELTER ARBITRATION (previous case) THE CORFU CHANNEL CASE (previous case) THE FREEDOM OF THE SEAS The use of the sea as a dumping ground is among the traditional uses which man has made of the maritime environment. The existing law of the sea rests on 2 traditional legal concepts: 1. Of the high seas where the freedom of the sea prevails states have been subject exclusively to the jurisdiction of the flag state


Of the territorial sea which is under the sovereignty of the coastal state the coastal state has the right to exercise jurisdiction and control over ships of whatever flag but is subject to certain limitations

The 1954 London Convention prohibited the intentional discharge of oil and oily mixtures into the sea within certain zones extending generally 50 miles from land. Offenses under such were made punishable only under the laws of the flag state of the offending ship, except that the coastal state remained free to take enforcement action against all ships within its territorial sea. Another major weakness of the Convention is that it does not make compulsory the adoption of techniques and the use of equipment which could help considerably to eliminate the deliberate discharge of oil and oily mixtures into the sea. The 1958 Geneva Convention on the High Seas requires States to draw up regulations to prevent pollution of the sea by discharges of oil from ships or pipelines or resulting from the exploitation of the seabed, and its subsoil, taking account of existing treaty provisions on the subject. As regards the Public Law Convention: 1. It provides that coastal states may take such measures on the high seas as may be necessary to protect their coastline or related interests from pollution of the sea 2. It relates to oil pollution only 3. It provides that the measures taken by coastal state must be such as are reasonable or proportionate to the actual or threatened damage 4. It establishes that coastal state must submit to binding international arbitration The Public International Convention codifies the right of the coastal state to intervene on the high seas against a ship threatening to pollute its coastal environment and serves to establish a principle applicable to any pollution incident despite the fact that the convention is limited to pollution by oil. As regards Private Law Convention: 1. It imposes strict liability on the owner of any oil-carrying ship from which oil has escaped after an incident at sea except for a. Acts of war or natural catastrophes b. International acts of a third party c. Negligence on the part of those responsible for the maintenance of navigational aids 2. It provides that shipowner, unless the incident occurred as a result of his fault or with his privity, may limit his liability for pollution damages 3. Restricted to liability for damage occurring on the territory or in the territorial waters of a contracting state

Public International Law

P a g e | 17

The Private Law Convention, although it does not provide for adequate compensation for the innocent victims of oil pollution incidents and does not cover damage suffered to important interests beyond the territorial sea, nevertheless fixes the liability of ships for oil pollution damage at double the amount formerly available. US V. UNITED MEXICAN STATES Facts: It is put forward by US on behalf of North American Dredging Company for the recovery of the sum suffered by claimant for breaches of a contract for dredging at the port of Salina Cruz, which contract was entered into between the claimant and the Government of Mexico. Article 18, incorporated by Mexico as an indispensable provision, not separable from the other provisions of the contract as subscribed to by the claimant for the purpose of securing the award of the contract, states that, the Contractor and all persons are consequently deprived of any rights as aliens, and under no conditions shall the intervention of foreign diplomatic agents be permitted, in any matter related to this contract. The jurisdiction of the Commission is challenged based on that Calvo clause which deprives the party of the right to submit any claims connected with his contract to an international commission. Issue: w/n the Calvo clause violates any rule of international law Held: The Calvo clause is neither upheld by all outstanding authorities and by the soundest among international awards nor is it universally rejected. The present stage of international law imposes upon every international tribunal the solemn duty of seeking for a proper and adequate balance between the sovereign right of national jurisdiction, on the one hand, and the sovereign right of national protection of citizens on the other. The contested provision is part of a contract and must be upheld unless it be repugnant to a recognized rules of international law. What must be established is not that the Calvo clause is universally accepted or recognized, but that there exists a generally accepted rule of international law condemning Calvo clause. Under the rules of international law, an individual can make a promise not to call upon his own Government to intervene on his behalf in connection with any controversy, but he cannot deprive the Government of his nation of its

undoubted right of applying international international law committed to his damage.





When the claimant subscribed to Article 18, it waived its rights to: a. Conduct himself as if no competent authorities existed in Mexico b. He did not waive any right which he possessed as an American citizen as to any matter not connected with the contract c. He did not waive his undoubted right as an American citizen to apply to his Government for protection in general or to extend to him its protection against breaches of international law The claimant, after having solemnly promised in writing that it would not ignore the local laws, remedies and authorities, behaved from the very beginning as if Art. 18 of its contract had no existence in fact. Where a claimant has expressly agreed in writing, he will be bound by his contract and the Commission will not take jurisdiction of such claim. INTERNATIONAL FISHERIES CO. (Judge Nielsen, Dissenting) The Commissions discussion of the restriction on interposition was characterized by failure of recognition and application of fundamental principles of law with respect to several subjects. Principally among them are: a. Nature of international law as a law between nations whose operation is not controlled by acts of private individuals b. Nature of an international reclamation as a demand of a government for retirees from another government and not a private litigation c. Remarkable confusion between substantive rules of international law that a nation may invoke in behalf of itself or its nationals against another nation International law recognizes the right of the nation to intervene to protect its nationals in foreign countries through diplomatic channels and through instrumentalities such as are afforded by international tribunals. The Commission seemed to indicate some view to the effect that the contractual stipulations (Calvo Clasue) in question were in harmony with international law because they required the exhaustion of local remedies. The Commission ignored the effect of Art. 5 of the Convention conclude between US and Mexico, stipulating that claim should not be rejected for failure to exhaust local remedies. No rule can be abolished, or amplified or restricted in its operation, by a single nation or by a few nations or by private individuals or by private individuals acting in conjunction with a government. no action taken by a private individual can contravene a treaty or a rule of international law, although it is the duty of a government to control the action of individuals with a view to
P a g e | 18

Public International Law

preventing contravention of rules of international law or treaties. And assuredly, no nation can by a contract with private individual relieve itself of its obligations under international law nor nullify the rights of another nation under that law. While signing of the contract with a private concern would scarcely in precise language be declared a violation of international law, certainly any attempt to frustrate another nations rights of interposition secured by international law would not be in harmony with that law. Except by expatriation, a private person can by no act of his own forfeit or destroy his Governments right to protect him. His acts may of course give rise to considerations of policy which may influence the attitude of his Government with respect to his appeal for assistance. It was the duty of the Commission to give effect to the clearly expressed intent of Art. 5 of the arbitration agreement. The intent and clear legal effect is that claim shall not be dismissed because of failure of claimants to resort to local remedies. The Commission also said that the claimant could not rightfully present this claim to the Government of US for interposition. The Commissions connotation of the term rightfully is not explained. As Dr. Borchard says, with respect to the duty of protection, whether such a duty exists toward the citizen is a matter of municipal law. A claimants right to protection from his Government is determined by the law of the Government; while, the right of the Government to extend protection is secured by international law. TATTLER (US v. Britain) Facts: This is a claim with interest on account of a seizure of the schooner Tattler and its detention for 6 days by the Canadian authorities on a charge of alleged violation of Canadian fisheries laws and the Treaty of 1818 between US and Great Britain. The owners entered into the following undertakings: in consideration of the release of the American schooner Tattler, we hereby guarantee his Majesty King Edward 7th, against any and all claims made or to be made on account of or in respect to such detention, hereby waiving all such claims and right of libel or otherwise before any court or Tribunal in respect to said detention or to such or any of such claims or for loss or damage in the premises. Issue: w/n such declaration is binding on the US

Held: The renunciation of and guarantee against any claims are not binging upon US which presents the claim. In this case, the only right US is supporting is that of its national, and it can rely on no legal ground other than those which would have been open to its national. Hence, the claim must be dismissed. THE PANEVEZYS RAILWAY CASE (Estonia v. Lithuania) Facts: A company was founded at St. Petersburg under the name of the First Company of Secondary Railways in Russia. By an Imperial decree, the Company was authorized to construct and operate a railway between the station at Sventziany, on the St. Petersburg-Warsaw railway, and the station at Panevezys, on the Libau-Romny railway. The Company also possessed other lines in various parts of the Russian Empire, in particular in the Baltic provinces and in the Ukraine. The Bolshevist revolution took place, and a decree of the Central Executive Committee concerning the nationalization of banks placed in the hands of the Soviet Government the shares, assets and liabilities of companies existing in Russia. Among these companies was the First Company of Secondary Railways. Political events then followed in rapid succession: a. Lithuania proclaimed itself an independent State b. same thing happened in Estonia c. Treaty of Brest-Litovsk between Germany and her allies and Russia confirmed the abandonment of Russian sovereignty over the former Baltic provinces and Lithuania which, however, remained in the occupation of German troops A decree was promulgated declaring "to be the property of the Russian Socialist Federated Soviet Republic" all industrial and commercial undertakings in Soviet Russia including "all the undertakings of private and secondary railway companies, whether in operation or under construction, The directors and other managers responsible for nationalized undertakings were responsible for the maintenance, upkeep and operation of the undertaking. If they abandoned their posts or showed negligence, they incurred criminal liability. Finally, all moneys belonging personally to members of Boards, to the shareholders and owners of nationalized undertakings were provisionally attached. And, by virtue of a 2nd Soviet Decree, the Boards of former private railways which now became the property of the Republic were abolished and replaced by a socalled liquidation commission for each line.

Public International Law

P a g e | 19

A third Soviet decree provided that the shares and foundation shares of jointstock companies the undertakings of which have been nationalized or sequestrated are annulled. The Lithuanian Government took possession of the Panevezys-Sventziany railway which was situated in territory which had become part of the State of Lithuania. In the present case, the Treaty of Tartu concluded between the Soviet Republic and Estonia merits special attention for the reason that it contains detailed provisions as to the fate of private property situated in Estonian territory, particularly as to the property of joint-stock companies. Under such Treaty, of which the meaning and perhaps even the translation are disputed between the Parties, Russia renounces "all the rights of the Russian Treasury to the movable and immovable property of individuals which previously did not belong to her, in so far as such property may be situated in Estonian territory," which includes the First Company. All such property became "the sole property of Estonia" and was freed from all obligations as of the date of the decree nationalizing the banks. These companies apparently had to hold general meetings within 2 months after the decree, and if they do not do so, all the powers of members of the Board of Directors would be held to have lapsed, and that curators appointed by the courts would undertake the administration and, if need be, the liquidation of the undertakings and property of such companies, such undertakings and property being treated as ownerless property. The First Company, which had been sequestrated, was placed under curatorship by order of the District Court of Tallinn-Hapsal.It does not appear that any general meeting of this Company was held at this period in Estonia. On the other hand, the documents produced to the Court show that a general meeting of the First Company was held, not in Estonia, but at Riga in Latvia, with the sanction of the Latvian Government and under Latvian law, and that at this meeting the Board of Directors was instructed to take the necessary steps to reacquire possession of and to operate the property of the Company in Lithuania and Poland; while the portion of the system situated in Latvia was to be ceded to a Latvian company which was to be formed. The Estonian Government informed the Lithuanian Government that it intended to bring the case before the Permanent Court of International Justice. The Lithuanian Government then replied that, while maintaining its own view on the question of law, the friendly relations between the two States might make it possible to reach a friendly settlement of the dispute, should the Esimene Company (name given by Estonian Government to First Company) not win its case before the Lithuanian courts.

Issues and Held: 1. w/n Estonia observed the rule of international law that a claim must be national not only at the time of its presentation but also at the time of the injury This right is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection, and it is as a part of the function of diplomatic protection that the right to take up a claim and to ensure respect for the rules of international law must be envisaged. Where the injury was done to the national of some other State, no claim to which such injury may give rise falls within the scope of the diplomatic protection which a State is entitled to afford nor can it give rise to a claim which that State is entitled to espouse. 2. w/n Estonia observed the rule requiring the exhaustion of the remedies afforded by municipal law.

The question whether or not the Lithuanian courts have jurisdiction to entertain a particular suit depends on Lithuanian law and is one on which the Lithuanian courts alone can pronounce a final decision. It is not for this Court to consider the arguments which have been addressed to it for the purpose either of establishing the jurisdiction of the Lithuanian tribunals by adducing particular provisions of the laws in force in Lithuania, or of denying the jurisdiction of those tribunals by attributing a particular character (seizure jure imperii) to the act of the Lithuanian Government. Until it has been clearly shown that the Lithuanian courts have no jurisdiction to entertain a suit by the Esimene Company as to its title to the Panevezys-Saldutiskis railway, the Court cannot accept the contention of the Estonian Agent that the rule as to the exhaustion of local remedies does not apply in this case because Lithuanian law affords no means of redress. It is also common ground between the Parties that the Estonian company has not instituted any legal proceedings before the Lithuanian courts in order to establish its title to the Panevezys-Saldutiskis railway. 3. w/n Esimene Company is the successor of the First Company

Evidence has not been produced in this case that the said Estonian company can be recognized by our laws or by international treaties as successor to the old Russian company, and the Court knows of no such laws or treaties. Only companies whose statutes are registered in accordance with our laws and duly published may operate in Lithuania. And only such joint-stock companies are entitled to have their enterprises there, especially enterprises of such great importance as railways.

Public International Law

P a g e | 20

BARCELONA TRACTION COMPANY Facts: The Barcelona Traction, Light and Power Company, Limited, was incorporated in Canada, where it has its head office. it formed a number of subsidiary companies, of which some had their registered offices in Canada and the others in Catalonia, Spain. The subsidiary companies supplied the major part of Catalonias electricity requirements. According to the Belgian Government, some years after the 1st world war, Barcelona Tractions capital shares came to be very largely held by Belgian nationals, but the Spanish Government contends that the Belgian nationality of the shareholders is not proven. Barcelona Traction issued several series of bonds, principally in sterling. The sterling bonds were serviced out of transfers to Barcelona Traction effected by the subsidiary companies operating in Spain. However, the servicing of the Barcelona Traction bonds was suspended on account of the Spanish civil war. After that war, the Spanish exchange control authorities refused to authorize the transfer of the foreign currency necessary for the resumption of the servicing of the sterling bonds. Subsequently, when the Belgian Government complained of this, the Spanish Government stated that the transfers could not be authorized unless it were shown that the foreign currency was to be used to repay debts arising from the genuine importation of foreign capital into Spain and that this had not been established. 3 Spanish holders of recently acquired Barcelona Traction sterling bonds petitioned the court of Reus (Province of Tarragona) for a declaration adjudging the company bankrupt, on account of failure to pay the interest on the bonds. A judgment was given declaring the company bankrupt and ordering the seizure of the assets of Barcelona Traction and of 2 of its subsidiary companies. Pursuant to this judgment, the principal management personnel of the 2 companies were dismissed and Spanish directors appointed. New shares of the subsidiary companies were created, which were sold by public auction to a newly-formed company, FECSA, which thereupon acquired complete control of the undertaking in Spain. The Court found that Barcelona Traction, which had not received a judicial notice of the bankruptcy proceedings, and was not represented before the Reus court, took no proceedings in the Spanish courts and thus did not enter a plea of opposition against the bankruptcy judgment within the time-limit of 8 days from the date of publication of the judgment laid down in Spanish legislation. The Belgian Government contends, however, that the notification and publication did not comply with the relevant legal requirements and that the eight-day time-limit never began to run. Representations were made to the Spanish Government by the British, Canadian, United States and Belgian Governments.

The claim submitted to the Court had been presented on behalf of natural and juristic persons, alleged to be Belgian nationals and shareholders in Barcelona Traction, a company incorporated in Canada and having its head office there. The object of the Application was reparation for damage allegedly caused to those persons by the conduct, said to be contrary to international law, of various organs of the Spanish State towards that company. The third preliminary objection of the Spanish Government, which had been joined to the merits, was to the effect that the Belgian Government lacked capacity to submit any claim in respect of wrongs done to a Canadian company even if the shareholders were Belgian. The fourth preliminary objection, which was also joined to the merits, was to the effect that local remedies available in Spain had not been exhausted. The case submitted to the Court principally concerned three States, Belgium, Spain and Canada, and it was accordingly necessary to deal with a series of problems arising out of this triangular relationship. Issue: w/n Belgium has the right to exercise diplomatic protection to Belgian shareholders were the measures complained were taken in relation to the company itself, one incorporated in Canada Held: The Court observed that when a State admitted into its territory foreign investments or foreign nationals it was bound to extend to them the protection of the law and assumed obligations concerning the treatment to be afforded them. But such obligations were not absolute. In order to bring a claim in respect of the breach of such an obligation, a State must first establish its right to do so. An act infringing only the companys rights did not involve responsibility towards the shareholders, even if their interests were affected. In order for the situation to be different, the act complained of must be aimed at the direct rights of the shareholder as such (which was not the case here since the Belgian Government had itself admitted that it had not based its claim on an infringement of the direct rights of the shareholders). An injury to the shareholders interests resulting from an injury to the rights of the company was insufficient to found a claim. Where it was a question of an unlawful act committed against a company representing foreign capital, the general rule of international law authorized the national State of the company alone to exercise diplomatic protection for the purpose of seeking redress. No rule of international law expressly conferred such a right on the shareholders national State.

Public International Law

P a g e | 21

The Court considered whether there might not be, in the present case, special circumstances for which the general rule might not take effect. Two situations needed to be studied: (a) the case of the company having ceased to exist, and (b) the case of the protecting State of the company lacking capacity to take action. As regards the first of these possibilities, the Court observed that whilst Barcelona Traction had lost all its assets in Spain and been placed in receivership in Canada, it could not be contended that the corporate entity of the company had ceased to exist or that it had lost its capacity to take corporate action. So far as the second possibility was concerned, it was not disputed that the company had been incorporated in Canada and had its registered office in that country, and its Canadian nationality had received general recognition. The Canadian Government had exercised the protection of Barcelona Traction for a number of years. If at a certain point the Canadian Government ceased to act on behalf of Barcelona Traction, it nonetheless retained its capacity to do so, which the Spanish Government had not questioned. Whatever the reasons for the Canadian Governments change of attitude, that fact could not constitute a justification for the exercise of diplomatic protection by another government. It had been maintained that a State could make a claim when investments by its nationals abroad, such investments being part of a States national economic resources, were prejudicially affected in violation of the right of the State itself to have its nationals enjoy a certain treatment. But, in the present state of affairs, such a right could only result from a treaty or special agreement. And no instrument of such a kind was in force between Belgium and Spain. BANCO NACIONAL DE CUBA v. PETER SABBATINO Facts: Respondent Farr, an American commodity broker, contracted to purchase Cuban sugar from a wholly owned subsidiary of CAV, a corporation organized under Cuban law whose capital stock was owned principally by US residents. The Congress of US amended the Sugar Act to permit a presidentially directed reduction of the sugar quota for Cuba. The Cuban Council of Ministers adopted a law which characterized such reduction as an act of aggression for political purposes justifying the taking of countermeasures by Cuba. The law gave Cuban President and Prime Minister discretionary power to nationalize by forced expropriation property or enterprises in which American nationals had an interest.

The sugar covered by the contract between Farr and CAV was loaded, destined for Morocco, onto the SS Hornfels, which was standing offshore at the Cuban port. On the day of the loading, Cuban President and Prime Minister issued an executive resolution providing for the compulsory expropriation of all property and enterprises, of rights and privileges, arising therefrom, of certain listed companies, including CAV, wholly or principally owned by American Nationals. In consequence of the resolution, the consent of Cuban government was necessary before a ship carrying sugar of a named company could leave Cuban waters. In order to obtain this consent, Farr entered into contracts with the Bank, an instrumentality of the Cuban government. The Bank assigned the bills of lading to petitioner, also an instrumentality of the Cuban Government, which instructed its agent in New York, Societe Generale, to deliver the bills and a sight draft to Farr in return for payment. Farr subsequently accepted the shipping documents, negotiated the bills of lading to its customer, and received the payment for the sugar. It refused, however, to hand over the proceeds to Societe Generale. Subsequently, Farr was served with an order of the NY SC, which had appointed Sabbatino as Temporary Receiver of CAVs New York assets, enjoining it from taking any action in regard the money claimed by CAV that might result in its removal from the State. Farr, pursuant to court order, transferred the funds to Sabbatino. Petitioner then instituted this action in the Federal District Court for Southern District of New York where it sought to recover the proceeds from Farr and to enjoin the receiver from exercising any dominion over such proceeds. The District Court found that the sugar was located within Cuban Territory at the time of expropriation. Farr could not have asserted ownership of the sugar against CAV before making payment. It concluded that CAV had a property interest in the sugar subject to the territorial jurisdiction of Cuba. Issue: w/n the Act of State Doctrine serves to sustain petitioners claims in this litigation Held: We do not believe that this doctrine is compelled either by the inherent nature of sovereign authority or by some principles of international law. If a transaction takes place in one jurisdiction and the forum is in another, the forum does not by dismissing an action or by applying its own law purport to divest the first jurisdiction of its territorial sovereignty; it merely declines to adjudicate or makes applicable its own law to parties or property before it.

Public International Law

P a g e | 22

If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law. The text of the Constitution does not require the act of state doctrine; it does not irrevocably remove from the judiciary the capacity to review the validity of foreign acts of state. The act of state doctrine does, however, have 'constitutional' underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. If the act of state doctrine is a principle of decision binding on federal and state courts alike but compelled by neither international law nor the Constitution, its continuing vitality depends on its capacity to reflect the proper distribution of functions between the judicial and political branches of the Government on matters bearing upon foreign affairs. Therefore, rather than laying down or reaffirming an inflexible and all encompassing rule in this case, we decide only that the (Judicial Branch) will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law. When articulating principles of international law in its relations with other states, the Executive Branch speaks not only as an interpreter of generally accepted and traditional rules, as would the courts, but also as an advocate of standards it believes desirable for the community of nations and protective of national concerns. In short, whatever way the matter is cut, the possibility of conflict between the Judicial and Executive Branches could hardly be avoided. However offensive to the public policy of this country and its constituent States an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application. ALFRED DUNHILL OF LONDON v. REPUBLIC OF CUBA Facts: The Cuban government confiscated the business and assets of the 5 leading manufacturers of Havana cigars. These companies were organized under Cuban law and their owners were all Cuban nationals.

The Cuban government named interventors to take possession of and operate the business of the seized Cuban companies. Interventors continued to ship cigars to foreign purchasers, including the US importers. The former owners (most of whom had fled to the United States) brought actions against Dunhill, Faber, and Saks for the purchase price of cigars that had been shipped to the importers from the seized Cuban plants. Following conclusion of related litigation, the Cuban "interventors" were allowed to join in those actions, which were consolidated for trial. Both the former owners and the interventors asserted their right to sums due from the three importers for post-intervention shipments. As of the date of intervention, the importers owed various amounts for pre-intervention shipments, which they later paid to the interventors, who the importers mistakenly believed were entitled to collect accounts receivable. The District Court, acknowledging that, under the "act of state" doctrine, it had to give effect to the 1960 confiscation insofar as it purported to take the property of Cubans in Cuba, held that the interventors could collect all due and unpaid amounts for post-intervention shipments, but further held that the former owners were entitled to the pre-intervention accounts receivable, the situs of which was with the importer-debtors; and the former owners, rather than the interventors, were held entitled to collect those accounts from the importers, even though the latter had already mistakenly paid them to the interventors. The importers then claimed that they were entitled to recover the payments from the interventors by way of setoff or counterclaim. The interventors countered with the contention that any repayment obligation was a quasi-contractual debt whose situs was in Cuba, and that their refusal to pay was an act of state not subject to question in American courts. Issue: w/n the refusal to pay by the interventors is an act of State Held: There is nothing in the record of this case revealing an act of state with respect to the interventors' obligation to return the sums mistakenly paid to them. The interventors' refusal to repay the mistakenly paid funds does not constitute an act of state or indicate that the interventors had governmental, as opposed to merely commercial, authority for the refusal. The interventors' counsel's statement during trial that the Cuban Government and the interventors denied liability and had refused to make repayment is no proof of an act of state, and no statute, decree, order, or resolution of the Cuban Government was offered in evidence indicating Cuban repudiation of its obligations in general or of the obligations herein involved.

Public International Law

P a g e | 23

BUTTES GAS AND OIL CO. v. HAMMER AND ANOTHER Facts: The 2 Californian oil exploration corporations were granted oil concessions in the Persian Gulf. A dispute arose over a rich oil area. Litigation followed which included an action begun in the English court by plaintiffs for the alleged slander uttered in London about the disputed area and consequential events where he accused Buttes of using improper methods and colluding with the then Ruler of Sharjah to backdate a decree by the ruler extending the territorial waters of Sharjah. The particulars of those defenses included as facts a decree of the ruler of Sharjah which extended the limits of its territorial waters, a subsequent claim to sovereignty over the disputed area by the Government of Iran, instructions to the rules of Qaiwain by the UK political agent and intervention by Her Majestys naval, air and military forces. By a counterclaim, the defendants claimed damages for alleged conspiracy between plaintiffs and the ruler of Sharjah and others to cheat and defraud them. The plaintiffs applied for an order that the court should not exercise jurisdiction in respect to specified matters said to be acts of State of the government of Sharjah, Qaiwan, Iran, and the UK. Held: There was a long standing principle of English law, which was inherent in the very nature of the judicial process, that municipal courts would not adjudicate on the transactions of foreign states. That accordingly, where such issues were raised in private litigation, the court would exercise judicial restraint and abstain from deciding the issues raised. Since the pleadings raised issues involving the court in reviewing transactions in which 4 sovereign States were concerned and being asked to find at least part of those transactions unlawful under international law, the issues raised were non-justiciable and incapable of being entertained by the court. The doctrine of sovereign immunity does not apply since there is no attack, direct or indirect, upon any property of any of the relevant sovereigns, nor are any of them impleaded directly or indirectly. The present case is more nearly within the category of boundary disputes between States. I would agree that there may be other cases where a question relating to foreign land, even to the title to foreign land, may either be capable of determination as a matter of fact or may arise incidentally or

collaterally to some other question, and may be decided. But here, the question of title to the location does not arise incidentally or collaterally: it is at the heart of the case. WHO KILLED ARTICLE 2(4)? Allied nations gathered at San Francisco to undertake Art. 2(4) to refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State and also committed themselves to settle their international disputes by peaceful means. Yet today, the high-minded resolve of Art. 2(4) mocks us from its grave. The rules were seemingly predicated on a false assumption: that the wartime partnership of the Big Five would continue, providing the means for policing the peace under the aegis of the UN. They appeared to address themselves to preventing conventional military aggression at the very moment in history when new forms of attack were making obsolete all prior notions of war and peace strategy. The Charter itself provided enough exceptions and ambiguities to open the rules to deadly erosion. Factors Undermining Art. 2(4) Chapter 7 of the UN Charter makes extensive provision for collective action by the Organization to maintain or restore international peace and security. In order to facilitate such collective enforcement actions, Chapter 7 provides for a UN Military Staff Committee to command the international police forces. It also obligates Member States to hold immediately available national air-force contingents for combined international enforcement action. Unfortunately, these ambitious projects were founded on an invalid premise: that the Security Council would be able to discharge its responsibility as UNs principal organ for world peacekeeping. Best remedy: the Council must decide whether a threat to the peace exists or whether aggression has been committed and, if so, by whom, and finally, what, if any, collective steps by the world organization. The Security Council can only act with the assent of 9 members, including the affirmative vote or at least the benevolent absentia of each of the Big 5. The UN Charter provides necessary loopholes. Arts. 51-53 set out the rights of States themselves, under exceptional circumstances, to resort to various kinds of force outside the UN framework.

Public International Law

P a g e | 24

Art. 51 permits the use of armed force by a State responding in self-defense to an armed attack. This can be exercised individually by the State or collectively by a group of States going to its rescue. The simplicity of this is misleading. There is usually no way for the international system to establish conclusively which State is the aggressor and which the aggrieved, wars continue to occur, between parties both of which are using force allegedly in self-defense. With no system for objective factfinding, the concept of self-defense remains a convenient shield for self-serving and aggressive conduct. The changing nature of warfare: 1. Wars of agitation, infiltration and subversion carried on by proxy through national liberation movements 2. Nuclear wars involving the instantaneous use, in a first strike, of weapons of near paralyzing destructiveness The Effect of Small Scale Warfare on Art. 2(4) This takes the form of rural and urban hit-and-run operations by small bands of fighters, sometimes not in uniform and often lightly armed. These new kinds of assistance do not fit comfortably into conventional international legal concepts and categorizations. Insofar as one state merely encourages guerilla movements within another, an armed attack: cannot be said to have taken place. Art. 51 does not, on its face, recognize the existence of these newer modes of aggression, or attempt to deal with the new problems of characterization which they create for international law. The nature of such support ranges from military supplies and the training of recruits to money and radio propaganda. But since the Chapter speaks only of a right to defend against an armed attack, the international community is left to ponder what principles govern the right to retort in instances of lesser trespass. 2 dilemmas inherent in Art. 2(4): 1. Deciding the factual question of who attacked whom 2. Defining the level of foreign intervention which should suffice to permit counter-intervention by way of collective self-defense The inherent right of individual and collective self-defense in Art. 51 had thus been formally invoked in a non-conventional situation where no foreign army had moved across a border in an armed attack. The Lebanese crisis illustrates 2 problems inherent in applying Art. 51: 1. Procedural = How is the fact of an armed attack to be established?


Substantive = How to define armed attack in a way relevant to the modern conditions of indirect, limited warfare without broadening it to the point at which disproportionate armed force can be sued under the guise of self-defense against imagined or slight provocation

There is nothing in the UN Charter or in the machinery of the international system which limits the nations right to determine for itself when an act of aggression has occurred, or whether the regime calling for help is , in fact, the legitimate government. A number of attempts have been made to draft rules taking into account these world-wide phenomena of indirect and vicarious aggression: 1. Inter-American Convention a. Obliges parties to use all means at their disposal to prevent the inhabitants of their territory from participating in, gathering elements, crossing the boundary or sailing from their territory for the purpose of starting or promoting civil strife b. Fords all traffic in arms and obliges the parties to disarm rebels who cross their territory 2. UN General Assembly passed the Declaration of Inadmissibility of Intervention grouping together direct intervention, subversion and all forms of indirect aggression as equally violating the UN Charter But none of these efforts has produced agreement as to whether the abetting of civil strife or the exertion of overweaning political and economic pressure should be analogized to an armed attack for the purpose of giving rise to a right of self-defense utilizing military force. The Effect of Potential Nuclear Warfare on Art. 2(4) Taken literally, Art. 2(4) and 51 seem to require a State to await an actual nuclear strike against its territory before taking forceful countermeasures. However, no nation would willingly sit by while another prepares its doom. Art. 51, however, permits the use of self-defense by nations only in the event of an armed attack. According to Professor McDougal, Art. 51 cannot be taken to read that a military response in self-defense is permitted if and only if an armed attack has actually occurred. It would be against reason and nature. Art. 51 rule should be interpreted to mean that a state may use military force when it regards itself as intolerably threatened by the activities of another. Customary international law, the doctrine of necessity, and human reason have always permitted preemptive strikes against an anticipated rather than only an actual attack. Problem is, tested against the perceptions of the reasonable man, most of the instances when States perceived themselves about to be attacked or in imminent danger are simply not credible.
P a g e | 25

Public International Law

Regional Enforcement and Art. 2(4) Arts. 52 and 53 have been interpreted to legitimate the use of force by regional organizations in their collective self-interest, and specifically, the role and primacy of regional organizations in settling disputes between their members. The Charter itself represents a compromise between universal and regional international system. However, this compromise was not easy to conceive nor has it been simple to apply and the resultant balance has historically been an uneasy and shifting one. The interests superficially predominant in the world organization are frequently not the same as the interests predominant in the regional grouping. Art. 51 permits collective self-defense against an armed attack unless a Security Council resolution prohibits it, thus reversing, in situations of selfdefense, the requirement for prior Security Council approval before armed force is employed. A regional organization may act by means short of force to preserve the peace without having to await an outbreak of armed hostility, but it may engage in enforcement action only after obtaining a fiat from the Security Council. In the event of a dispute between 2 members of the same regional organization, who should have primary jurisdiction to bring about a peaceful settlement? To which international organization should the states of a geographic area be constrained to look for the regulation and legitimation of their conduct? The regional or universal? Art. 52 provides that members of regional agencies should make every effort to achieve peaceful settlement of local disputes through such agencies or arrangements before referring them to Security Council. But it in no way impairs the application of Arts. 34 and 35 stating that the Security Council may investigate any dispute and that any Member of the UN may bring any dispute to the attention of the Security Council or of the General Assembly. Under the French formula, any states anywhere could bring themselves within the Charters special dispensation for regional organizations simply by signing a treaty of mutual assistance. In view of the fact that regional organizations are accorded such extensive powers in derogation of Art. 2(4) and have garnered much greater powers in practice, it is important to have a clear view of which groupings of states are entitled to regard themselves as regional organizations.

Organization of American States is based on a double system of mutual obligations founded on different treaties and embodying different levels of integration. Western and Eastern Europe must each be regarded as a single integrative unit, although the defensive and economic aspects of their integration are established by separate treaties and within different treaty organizations which are not entirely co-extensive in their membership. The Inter-American Treaty of Reciprocal Assistance [Rio Pact] sets a high standard of obligation. Under Art. 3, an armed attack by any State against an American State shall be considered as an attack against all the American States and each of the said contracting parties undertakes to assist in meeting the attack. In the event of aggression, the Organ of Consultation, by a vote of 2/3 of the signatory states which have ratified this Treaty, may be applied not only against the outside aggressors but also against member states. Aggression include acts against the inviolability or the integrity of the territory or the sovereignty or political independence of any American State including an act which is not an armed attack. Obligations to use force in the common cause are not the sole standard by which a regional system can be measured and its legitimacy determined. Economic integration and the development of common judicial and administrative organs are perhaps even more important. In these other respects, the Inter-American system is not pre-eminent. The Treaties of both the European Economic Communities and COMECON impose a substantially higher level of economic cohesion than does that other basis of the Inter-American system, the Bogota Treaty. Under the guise of Arts. 51-53, both Super-Powers have succeeded in establishing norms of conduct within their regional organizations which have effectively undermined Art. 2(4). Socialist Commonwealth in Brezhnez Doctrine: 1. A dispute within the Socialist family or commonwealth of Eastern Europe must be resolved within that grouping and not by or in the UN 2. A member of the family of Socialist states must limit its sovereignty to conform to the requirements of the grouping 3. The family of Socialist states may use force, even military force, by way of collective self-defense against any attempt to divert a member of the Socialist Commonwealth from orthodox conformity The US advanced the idea that a states sovereignty is subject to the overriding right of a region to demand conformity to regional standards in pushing for a condemnation of the leftist Guzman regime. What was condemned here was

Public International Law

P a g e | 26

not intervention by foreign troops but of a foreign ideology. It was against this that US pushed the regional organization to commit itself to take effective measures, individually and collectively. The US and the Soviet Union have both asserted the right to establish regions of Super-Power paramount to which Art. 2(4) does not apply. Nations within the regional grouping are subject not to the rights of sovereign equality but to a duty to conform. Violence may be used by the region in self-defense against a deviationist. The Way Ahead Prohibition against the use of force has been eroded by 3 factors: 1. Rise of wars of national liberation 2. Rising threat of wars of total destruction 3. Increasing authorization of regional systems dominated by Super-Power What killed Art. 2(4) was the wide disparity between the norms it sought to establish and the practical goals the nations are pursuing in defense of their national interest.

consent to it or participate in its proceedings. In that sense, the Council has compulsory jurisdiction. The Meaning of Art. 2(4) We know that the principle in Art. 2(4) was intended to outlaw war in its classic sense, that is, the use of military force to acquire territory or other benefits from another state. The term force was a more factual and wider word to embrace military action rather than the term war. However, force has its own ambiguities. It can be used in a wide sense to embrace all types of coercion: economic, political, and psychological as well as physical. Art. 2(4) remains the most explicit Charter rule against intervention through armed force, indirect and direct, and it is pertinent to consider such action as falling within the scope of the prohibition. What is meant by threat of force? A threat to use military action to coerce a state to make concessions is forbidden. But in many situations the deployment of military forces or missiles has unstated aims and its effect is equivocal. An examination of the particular circumstances is necessary to reach a conclusion, but the applicability of Art. 2(4) in principle can hardly be denied. A blatant and direct threat of force, used to compel another state to yield territory or make substantial political concessions, would have to be seen as illegal under Art. 2(4) if the words threat of force are to have any meaning. The article requires states to refrain from force or threat of force only when that is against the territorial integrity or political independence of any state or inconsistent with the purposes of UN. If these words are not redundant, they must qualify the all-inclusive prohibition against force. Whatever the intent, the fact that territorial sovereignty had been impaired was sufficient for the application of the rule against forcible intervention. It did not matter in the Corfu Channel Case that derogation of territorial sovereignty was limited in time and limited to the aim of securing legal rights. A different conclusion is reached when a state uses force to resist illegal incursions into its territory. There is no question about the right of a territorial sovereign to enforce its laws, with force if necessary, against an intruding vessel, plane or land vehicle that has violated the national domain. The use of such force is limited, not by the general language of Art. 2(4), but by customary law principles requiring that force be limited in manner and amount to that reasonable in the circumstances. The Corfu Channel Case involved a claim of self-protection rather than self-defense under Art. 51 or customary international law.

THE RIGHT OF STATES TO USE ARMED FORCE When UN Charter was adopted, it was considered to have outlawed war. States accepted the obligation to settle all disputes by peaceful means and to refrain from the use or threat of use of force in their international relations. Only 2 exceptions were expressly allowed: 1. Force used in self-defense when an armed attack occurs 2. Armed action authorized by Security Council as an enforcement measure Every time a government uses force or responds to such use by others, it invokes the law along with considerations of morality and humanity. This very fact generates cynicism since it seems possible for every action to find support in law and there appears to be no effective higher authority to settle the matter. These facts understandably lead many to conclude that the legal rules on the use of force may be used to rationalize and justify almost any use of force and, therefore, that they can have little if any influence on the actual decision to use force. The Security Council is competent under the Charter to render a decision on whether an act of aggression has occurred. The Council is also empowered to adopt enforcement measures under Chapter 7 against an aggressor, or in fact against any state, if it considers such measures necessary for peace and security. The authority of Council applies to all states, whether or not they

Public International Law

P a g e | 27

Territorial Disputes States have used force or have threatened force in order to take territory which they considered rightfully theirs. Their legal position in respect to Art. 2(4) has been that the use of force is not against the territorial integrity of the target state for the simple reason that the area taken by force is part of the state using the force. It was not necessary on this theory to assert self-defense as a justification. Nevertheless, an argument based on self-defense was also made as a subsidiary point. It was contended that the allegedly illegal occupant had maintained his authority by armed force and that this should be regarded as a continuing armed attack against the rightful sovereign. In view of the considerable number of territorial disputes in the world at present, the claim that Art. 2(4) does not apply to the use of force to recover territory would, if sustained, go a long way toward reducing the scope of the prohibition against force. It cannot be said, therefore, that most states would agree that the prohibition against force does not apply when a state seeks to recover territory that may be considered to have been illegally taken from it. Such cases are regarded by most states as disputes which under the Charter should be settled by peaceful means, even if such means are unsuccessful, there is no right to use force to rectify the wrong. Territorial integrity in Art. 2(4) refers to the state which actually exercises authority over the territory, irrespective of disputes as to the legality of that authority. A qualification to the generality of that rule would have to be made for situations in which actual authority over a disputed area has resulted to hostilities that are still taking place. In such cases, territorial sovereignty has not been established and therefore the use of force against the occupant should not be regarded as against the territorial integrity of the state. Humanitarian Intervention Another broad exception to the prohibition in Art. 2(4), one for humanitarian interventions, has been proposed by some international lawyers. The argument has been made that, in cases of large-scale atrocities or acute deprivation, armed intervention by outside states would be a justifiable exception to the Art. 2(4) prohibition. The reluctance of governments to legitimize foreign invasion in the interest of humanitarianism is understandable in the light of past abuses by powerful states. Most governments are acutely sensitive to this danger and show no disposition to open Art. 2(4) up to a broad exception for humanitarian intervention by means of armed force.

But a somewhat different position has been taken when a state has used force to rescue or protect its own nationals in imminent peril of injury in a foreign country. The argument in favor of rescue attempts contains 3 elements: 1. Emergency need to save lives 2. Legitimate self-defense 3. Non-derogation of territorial integrity or political independence of the state in whose territory the action occurred Wadlock formulated the conditions under which a state may use force in another state, as an aspect of self-defense, as follows: [there must be] 1. Imminent threat of injury to nationals 2. Failure or inability on the part of the territorial sovereign to protect them 3. Measures of protection strictly confined to the object of protecting them against injury It has been maintained that intervention to protect nationals can be selfdefense, presumably on the premise that it involves an armed attack on the protecting state or an imminent threat of such attack. The Requirement of an Armed Attack and Anticipatory Defense Art. 51 does not answer directly whether self-defense requires an armed attack or whether it is permissible in anticipation of an attack. It declares that nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs. The drafting history shows that Art. 51 was intended to safeguard the Chapultepec Treaty which provided for collective defense in case of armed attack. The link with the Chapultepec Treaty provides a reason for the inclusion of the words if an armed attack occurs and explains why it was not said that self-defense is limited to cases of armed attack. US Government stated that the term armed attack should be defined to include not merely the dropping of a bomb but certain steps in themselves preliminary to such action. In recent years, the fear that nuclear missiles, could, on first strike, destroy the capability for defense and allow virtually no time for defense has appeared to many to render a requirement of armed attack unreasonable. In response to this line of reasoning, other argue that existence of nuclear missiles has made it even more important to maintain a legal barrier against preemptive strikes and anticipatory defense. The conditions of the right of anticipatory defense under customary law were expressed generally in an eloquent formulation by US Secretary of State Daniel Webster in a diplomatic note to the British. Secretary Webster asserting in his note that self-defense must be confined to cases in which the necessity of that
P a g e | 28

Public International Law

self-defense is instant, overwhelming, and leaving no choice of means, and no moment for deliberation. The Webster formulation of self-defense is often cited as authoritative customary law. The Requirement of Necessity and Recourse to Peaceful Means Its application in particular cases calls for assessments of intentions and conditions bearing upon the likelihood of attack or if an attack has taken place, of the likelihood that peaceful means may be effective to restore peace and remove the attackers. One is compelled to conclude that a state being attacked is under a necessity of armed defense, irrespective of probabilities as to the effectiveness of peaceful settlement. We reach a similar conclusion in the case of an imminent threat involving danger to the lives of persons coupled with unreasonable demands for concessions. It would be hard to deny the necessity for forcible action in that case on the ground that a peaceful means might succeed. When an attack occurs against a state, armed force may be used to repel the attack. Such force must be proportional but except for very unusual circumstances, the necessity of defense to an armed attack requires no separate justification. It is enough for armed defense to be permissible that an attack take place. However, if peaceful solutions are available, there would be no need for armed force to rectify the wrong. But, in a case involving imminent danger to the lives of the captured persons, it would be unreasonable to maintain that the continued pursuit of peaceful measures must preclude armed rescue action. The Requirement of Proportionality Proportionality is closely linked to necessity as a requirement of self-defense. Acts done in self-defense must not exceed in manner or aim the necessity provoking them. The defending state under attack generally limits itself to force proportionate to the attack; it does not bomb cities or launch an invasion. Thus, when defensive action is generally in excess of the provocation, as measured by relative casualties or scale of weaponry, international opinion will more readily condemn such defense as illegally disproportionate. Geography may also be a significant factor in determining proportionality. An isolated attack in one place would not normally warrant a defensive action deep into the territory of the attacking state. However, when a government treats an isolated incident of armed attack as a ground for retaliation with force, the defensive retaliation may be justified when a state has good reason

to expect a series of attacks from the same source and such retaliation serves as a deterrent or protective action.

Collective Self-Defense When Art. 51 was adopted, it was intended to legitimize the security arrangement o the Chapultepec Act. That treaty declared in effect that aggression against one American state shall be considered an act of aggression against all. The North Atlantic Treaty also provided that an armed attack on one or more parties would be an attack against them all and consequently that action might be taken in accordance with Art. 51. Bilateral treaties have also applied the concept of collective self-defense to undertakings by one state to come to the aid of another in case of aggression or armed attack. Such treaties do not require that the state providing aid to a victim of attack must itself be a victim. The thesis that neighboring states may be entitled to use military force in order to meet a threat to their security by a country perceived as potentially aggressive and dangerous to the peace goes far beyond the right of collective self-defense or international peacekeeping as generally understood. Such action would have been legally valid if undertaken pursuant to a Security Council decision under Chapter 7. Interventions by Armed Force in Internal Conflicts Foreign military interventions in civil wars have been so common in our day that the proclaimed rule of non-intervention may seem to have been stood on its head. For a foreign state to support, with force, one side or the other in an internal conflict, is to deprive the people in some measure of their right to decide the issue by themselves. The relevant general principle, in keeping with the concept of political independence and non-intervention, would be that when an organized insurgency occurs on a large scale involving a substantial number of people or control over significant areas of the country, neither side should receive outside military aid. Such outside support would be contrary to the right of the people to decide the issue by their own means. The political solution is to avoid its necessity by a strict application of a nonintervention rule applied to both sides. To achieve this, it is probably essential in most cases to have international mechanisms to monitor compliance with a cordon sanitaire and a ban on assistance.

Public International Law

P a g e | 29

The Institut de Droit International, in its resolution on non-intervention, has designated the following acts as impermissible when done to support either party in a civil war: 1. Sending armed forces or military volunteers to any party to a civil war, or allowing them to be sent out 2. Drawing up or training regular or irregular forces with a view of supporting any party to a civil war 3. Supplying weapons or other war material to any party to a civil war 4. Making their territories available to any party to a civil war 2 additional principles have been proposed for placing limits on counterintervention: 1. It should be limited to the territory of the state where the civil war takes place 2. Limits on the technological level of weapons used in a counterintervention o This is essentially a no-first-use rule. High technology weapons of mass destruction should not be introduced into the internal conflict by any outside intervening state, whatever its right to intervene

The plan was designed to alleviate tensions and hostilities between the Arabs and Jews. The 1948 war compelled thousands of Palestinians to relocate in Lebanon and other Arab states. PLO formed and declared itself the official representative of the Palestinian people. The aim of PLO was to provide the Palestinian people with a homeland. An agreement was reached between the Lebanese government and the PLO. This agreement, Cairo Agreement, permitted PLO to use Lebanese territory as a base for military operations against Israel. The Israeli-PLO hostilities in Lebanon are unusual. Israel did not invade Lebanon to fight the Lebanese government. Instead, it sought to vanquish the PLO from Lebanese soil. Lebanons State Responsibility Under the principle of international law, each State has the right to political independence and territorial sovereignty. The concept of sovereignty encompasses 2 aspects of independence: 1. Each State possesses internal independence actions of the State in regard to its own territory and its domestic laws 2. Sovereignty entail external independence State has the freedom to interact with other States One duty internationally imposed on a State is the prohibition against the threat or use of force against the territorial sovereignty of another State. Prior to Israels 1982 invasion, no Lebanese army, acting on behalf of the Lebanese government, had physically entered Israeli territory. There are generally 2 theories to impute responsibility to a State for a violation of an internationally imposed duty: 1. Direct or Original responsibility deals with the acts of formal or informal organs of the State 2. Vicarious or Indirect responsibility focuses on private acts which may be imputed to the State The Cairo Agreement may be interpreted as legitimizing the PLO as an informal organ of the State of Lebanon. Through the recognition of the PLO and the grant of power to it via the Cairo Agreement, Lebanon would assume direct responsibility for PLO violations of Israels sovereignty. If it can be successfully argued that the PLO actions were not attributable to Lebanon under the direct responsibility doctrine, Lebanese responsibility might still be vicariously imputed. Vicarious Responsibility

LEGAL IMPLICATIONS OF ISRAELS 1982 INVASION INTO LEBANON Israeli armed forces swept into southern Lebanon in an invasion of unprecedented magnitude. The long expected invasion was the epilogue of deep-rooted tensions and hostilities between Israel and the Palestine Liberation Organization (PLO). The initial goals of Israels invasion were to push the PLO out of range of Israels northern settlements and to establish a 25-mile buffer zone along the Lebanese-Israeli border. Israel views its actions as a legitimate act of selfdefense. The PLO claims that the goal of Israels invasion was to destroy the Palestinian movement for an independent Palestinian State. The Lebanese government has been unable to govern the actions of the PLO based in its territory. Lebanon characterized Israels invasion as a violation of territorial sovereignty and called for the withdrawal of all foreign forces from Lebanese soil. The Palestinian-Israeli Conflict UN voted to partition British Mandate Palestine into 2 separate states: Israel Jewish state and Palestine Arab state.

Public International Law

P a g e | 30

The principle of vicarious responsibility focuses on the States delict, that is, the failure to prevent or punish those persons, acting within the States sovereignty, who commit a hostile act against a foreign State. If the State has failed to prevent an injurious act, the injured State is entitled to due satisfactionpunishment of the offenders or reparations for the harm done. Lebanon has failed to prevent any threats of injurious acts directed to Israel. Nor has Lebanon punished those persons responsible for committing these acts. Lebanon, therefore, should be considered delinquent. Although Lebanon may be delinquent, it is arguably not vicariously responsible for the PLO acts. Once a State has been found delinquent, the vicarious responsibility doctrine imputes State liability in one of 2 ways, either through fault or absolute responsibility. The fault doctrine obligates the State to use due diligence or the means at its disposal to prevent the injurious act. the absolute responsibility doctrine imputes all liability regardless of fault to the State for any injurious acts form its soil. Responsibility Based on Fault under this, a State does not automatically incur responsibility for hostile acts of persons committed from its territory. If the State was unaware of such conduct or knew but was unable to prevent the hostile activities, the State would not incur responsibility. Absolute Vicarious responsibility State is liable for hostile acts from its soil, even if these acts are caused by private individuals not acting on behalf of the State. The States mere tolerance of the use of its territory as either a base of operations or a point of departure for incursions into the territory of another State is an international delinquency for which the State will be held absolutely responsible. Lebanon arguably should bear either direct or vicarious responsibility for injuries to Israel caused by the Lebanese based PLO. Neither theory has the pragmatic force to provide security or compensation to Israel nor justify subsequent Israeli actions. The Use of Force as a Remedy against a Violation of a States Political Independence or Territorial Sovereignty Reprisals are acts of retaliation for violations of law which caused injury to the State exercising the reprisal. The State taking the reprisal usually seizes the land or property of the delinquent State as a means of obtaining redress for the alleged wrong. The UN Charter appears to alter any customary legitimacy for forceful reprisals. The prohibition against the use of force and the need to settle

disputes peacefully support the view that retaliatory reprisals amounting to the use of force are no longer permitted. Aggression by Armed Bands aggression is generally considered delictual conduct which violates and endangers the right of territorial integrity and political independence or sovereignty, thus placing the security of the State in danger. A State which supports or tolerates armed bands within its territory is generally held to be an aggressor if these armed bands either threaten or already have committed an armed attack against another State. Lebanon has given sanctuary to the PLO. Aggression in the Form of an Armed Attack the hostile action must attain a certain gravity to justify a forceful exercise of self-defense. The totality of the acts, the Nadelstichtaktik doctrine, may demonstrate a systematic campaign which might be considered an armed attack sufficient to justify self-defense. If the Palestinian-Israeli conflict is viewed as one continuous conflict, the totality of all hostilities may be considered an armed attack which has caused serious injury or provocation to Israel. A defending state would not have to wait for an armed attack to occur. Anticipatory self-defense legitimizes the recourse to force in the face of an imminent threat of an armed attack. Israel and the PLO have been engaged in hostilities for many years. The PLO arms build-up suggested an imminent attack against Israel. The Israel invasion into Lebanon would be legitimate only if necessary and proportionate to the harm already suffered. Necessity the necessity of self-defense arises when either a violation is imminent or a past violation is continued. Proportionality requires that the force used be proportionate to the illegal act or threat. Significance of this principle is based on the need to control a possible destructive natural temptation to exceed the force necessary to repel or remove the danger. If the Palestinian-Israeli conflict were viewed as one continuous conflict, Israels invasion would then appear proportionate and reasonable under the Nadelstichtaktik doctrine. Israel would thus be justified in removing the threat to its political and territorial sovereignty posed by the PLO.

Public International Law

P a g e | 31

Proposals for a Peaceful Resolution Any legal solution must encompass the legal rights of all the parties involved. 1. Lebanons sovereignty must be restored 2. Israels security interests as a sovereign in the international community must be protected 3. Palestinian right to self-determination, as guaranteed by Art. 1(2) of UN Charter, must be fulfilled UNITED NATIONS LAW Lawmaking in the UN System The legal arguments that resolutions may be authoritative evidence of binding international law usually rests on characterizing them as: 1. Authentic interpretations of the UN Charter agreed by all the parties 2. Affirmation of recognized customary law 3. Expressions of general principles of law accepted by States The ICJ itself has recognized the legal force of several UN declarations in some of its advisory opinions. But some caution is called for. Even a UN declaration adopted unanimously will have diminished authority as law if it is not observed by states particularly affected. Negative votes by a few concerned states to a declaratory resolution also cast a doubt on its authority as presumptive evidence of existing law. We cannot apply a categorical rule to all cases. Distinctions must be drawn that take into account the nature and importance of the legal rule in question. Declarations that affirm the prohibitions against aggression, genocide, torture or systematic racial discrimination would not be deprived of their legal value because they were not uniformly observed.

Unlike judicial interpretation, UN interpretation does not usually have an adjudicative character. The task faced by most UN bodies is practical and instrumental, that is, to prepare a plan of action or to recommend state behavior to achieve a goal. The principle of effectiveness would give priority to achieving the major purposes of the Organization and subordinating restrictive provisions of the Charter. Support for this principle may be found in the tendency of the principal political organs to adopt an expansive view of their competence and powers when a strong political case is made for their action. The arguments in the UN organs on interpretation fall into 2 categories: 1. Aims and ideals of the institution as expressed in the Charter 2. Basis of practice and precedent Compliance and Enforcement 1. Reporting and supervision procedures in a particular treaty or code of conduct The common pattern is for complaints to be investigated by a committee, which then makes its conclusions public or transmits them to a parent body. 2. Facilitative They include measures taken by UN to help states carry out obligations imposed by law or by specific decisions of the organs. A good example is a transborder truce and cease fire agreement. 3. Measures that directly penalize a lawbreaking state by expelling it from the Organizations or form some of its activities The lesser penalty of suspension of privileges of membership may also be imposed by the General Assembly, on recommendation of the Security Council, on a state against which preventive or enforcement action has been taken by the Security Council. Although many states have been charged with violating the Charter or other important legal obligations, the penalty of exclusion has rarely been advocated. 4. Non-military enforcement action taken by the Security Council under Art. 41 of Chapter 7 of the Charter

On the other hand, declarations asserting or affirming legal rules of a less peremptory character would not prevail over evidence that such rules were not generally observed by affected states. A survey of UN lawmaking should not ignore the internal law of the international bodies. Rules of procedure form an important part of internal law although they are based on the constituent treaties of the organizations. This is also true of the rules on financial responsibility. Interpreting and Applying Law All bodies in the UN system are governed by written instruments, ranging from the Charter and general treaties to specific resolutions and decisions prescribing terms of reference.

Public International Law

P a g e | 32

This applies only when the Council has found a threat to the peace, or a breach of the peace or act of aggression. The language of Art. 41 is broad enough to cover any type of punitive action not involving use of armed force. Severing communication and breaking diplomatic relations have also been employed. In practice, however, the Council has generally applied Art. 41 sanctions against a state that has not complied with a Charter requirement or significant legal obligation. That determination is generally considered discretionary and final. 5. Use of armed force pursuant to Chapter 7 of the UN Charter This has limited the Councils power to mandate military action. What it has done is to authorize members to use armed force as necessary to achieve the prescribed goals. 9. The difficulty in obtaining military force have led to demands by some governments and public opinion for new arrangements to ensure the availability of forces when required. 6. Judicial enforcement It is employed by both international and national tribunals. The ICJ is potentially the most important. However, it is limited in binding adjudication to cases in which the parties have accepted the Courts jurisdiction. 7. Several advisory opinions of the Court For example, the advisory opinions on the former South West Africa territory, now Namibia. The foregoing account of the judicial and institutional processes for furthering compliance and enforcement should not lead us to conclude that the UN system and general international law have provided for mechanisms comparable to those in domestic legal systems. Violations of law are seen not as challenges to the authority of the system but as causes of disputes between states to be settled by them. The Charter accordingly gives priority to the peaceful settlement of disputes rather than to the coercive enforcement of law or compulsory jurisdiction of the International Court. 8. Self-Help

As a consequence, states have recourse to self-help. This falls into the category of actions to achieve compliance or to enforce obligations. The term countermeasures has come to be used for selfhelp action in place of the older terms reprisal and retorsion. Reprisals are generally permitted if they do not involve use of force contrary to the Charter and if they are directed to obtaining redress for the wrong committed. Moreover, they must not be disproportionate to the violations to which they respond. A significant theoretical expansion of self-help has resulted from the concept of ergo omnes obligation. It indicated that it may be the duty of all states to take countermeasures when the offending state has violated a Security Council decision or breached a fundamental legal obligation. Public opinion Advances in information technology and communications have greatly enhanced the ability of non-governmental organizations to bring pressure to bear on governments. Public opinion is also manifested in institutions of civil society such as professional bodies, universities, and religious and communal institutions. It is undeniable that enforcement measures are dependent on the will of states and often on their relative power, that is, the ability to control the outcome of contested issues. Patterns and Politics 2 areas of UN law that stand out in public are: 1. Human rights 2. Law relating to peace and security They have influenced the more technical areas such as health, telecommunications, and intellectual property. The key threshold concept of threats to the peace in the Charter has been broadened to take account of egregious violations of human rights. Human rights conceptions have also had an impact on the various areas of UN activity devoted to economic and social development. In contrast to human rights, the goal of peace and security has been the raison detre of the UN Charter. This is the field of law in which the stakes are highest and the authority of the UN always on trial. The ICJ has also had a significant role in the development of peace and security law.

Public International Law

P a g e | 33

The metropolis of peace and security law has its suburbs. One of the most important is the regulation and prohibition of armaments, especially weapons of mass destruction. The objective of International Economic Law are development, trade, stability, and technical cooperation. One strand that runs through most of the agreement is recognition of the uneven interests of the states concerned. Private international law is characterized mainly by treaty law and uniform national legislation fostered by UN bodies. Not all fields of law in UN system are as large as those mentioned. Some would be only villages or hamlets on our metaphorical terrain. 1. Enforcing maintenance obligation across national lines 2. Aid to victims of crimes and abuses of power 3. Law relating to submarine archaeology 3-level structure of UN legal order: 1. Actions of states including the demands and goals of the governments and other organized groups in furtherance of their needs, wishes and expectations 2. Activities of legal character formation and invoking of legal norms, and their application to particular situations 3. Broad policy goals, aspirations and ideals that influence governments and the other actors

Public International Law

P a g e | 34