mcrae readings pre-midterms

叶清蓮 Public International Law P a g e | 1

CHAPTER 1 SOURCES OF INTERNATIONAL LAW Art. 38(1) of the Statue of International Court of Justice

1. International Conventions 2. International Custom 3. General principles of law 4. Subsidiary means for the determination of rules of law

a. Judicial decisions b. Teachings of the most highly qualified publicists

TREATY International agreement concluded between States in written form and

governed by international law, whether embodied in a single instrument or in 2 or more related instruments and whatever its particular designation

Reasons why the expression ―treaties‖ should be employed rather than ―international agreements‖ a. Treaty is very common and its use is steadily increasing b. Juridical differences lie almost exclusively in the method of conclusion

and entry into force and these spring exclusively from the content of the agreement, whatever its form

c. An extraordinarily varied nomenclature has developed which serves to confuse the question of classifying international agreements

d. The term ―treaty‖ as a generic term embraces all kinds of international agreements in written form is accepted by the majority of jurists

e. Term ―treaty‖, as used in draft articles, covers only international agreements made between 2 or more States, however, this does not intend to deny that other subjects of international law may conclude treaties

f. The phrase ―governed by international law‖ serves to distinguish between international agreements required by public international law and those which are regulated by the national law of one of the parties o The element of intention is embraced in the phrase ―governed by

international law‖ g. However, this does not deny the legal force of oral agreements under

international law Capacity of States to Conclude Treaties Int‘l Law Commission Commentary: treaty-making capacity is vested

exclusively in the Federal government, but there is no rule of international law which precludes the component States from being vested with power to conclude treaties with third States

Representatives of the State to conclude treaties must have 1. Appropriate full powers 2. Appeared from the practice of the States concerned or from other

circumstances that their intention was to consider that person as representing the State for such purposes and to dispense with full powers

Representatives of the State not having to produce full powers: 1. For all acts relating to the conclusion of a treaty

a. Heads of State b. Heads of Government c. Ministers for Foreign Affairs

2. For adopting the text of a treaty a. Heads of Diplomatic missions b. Representatives accredited by States to an international

conference or to an international organization or one of its organs An act relating to the conclusion of a treaty performed by a person who

cannot be considered as authorized to represent a State for that purpose is without legal effect unless afterwards confirmed by that State

Adoption of the Text of a Treaty Takes place by the consent of all the States participating in its drawing

except at an international conference where two-thirds vote of the States present and voting is needed unless by the same majority, they shall decide to apply a different rule

Unanimity remains the general rule for bilateral treaties and for treaties drawn up between few States

Means of Expressing Consent to be bound by a Treaty

1. Signature—provides an effect to be bound when a. Treaty provides that signature shall have the effect b. Negotiating States agreed that signature should have the effect c. Intention of the State to give effect appears from the full powers

of its representative or was expressed during negotiation d. Signature ad referendum by a representative, if confirmed by his

State, constitutes full signature of the treaty 2. Exchange of instruments constituting a treaty—provides an effect to be

bound when a. Instruments provide so b. Agreed by the States

3. Ratification— provides an effect to be bound when a. Treaty provides so b. Agreed by the States c. Representative of the State has signed the treaty subject to

ratification d. Intention of the State appears from the full powers of its

representative or was expressed during negotiation 4. Acceptance—established as a name given to new procedures: ratification

and accession o Forms of acceptance:

a. Act establishing the State‘s consent to be bound after a prior signature

b. Without any prior signature 5. Approval or Accession

o Signature subject to approval o Accession—traditional method

1. Treaty provides so 2. Agreed by the States 3. Subsequently agreed by all the parties

6. By any other means if so agreed


Exchange or deposit of instruments of ratification, acceptance, approval or accession

1. Exchange between contracting States 2. Deposit with the depositary 3. Notification to the contracting States or to the depositary, if so agreed Treaty is in force at the moment of exchange because the act of deposit

establishes the legal nexus Obligation not to defeat the object and purpose of a treaty prior to its entry into force An obligation of good faith to refrain from acts calculated to frustrate the

object of the treaty attaches to a State which has signed a treaty subject to ratification

Treaty-Making Power in Canada This is a part of the royal prerogative There is no obligation at law upon the government to submit treaties to

Parliament, either before or after their signature since treaties are not part of the law of the land

Reservations to Treaties Allowed unless

1. Reservation is prohibited by the treaty 2. Treaty provides that only specified reservations may be made 3. Reservation is incompatible with the object and purpose of the treaty

Each State which is a party to the Convention is entitled to appraise the validity of the reservation, and it exercises this right individually and from its own standpoint

No State can be bound by a reservation to which it has not consented Acceptance of and Objection to Reservations

1. Reservation expressly authorized by a treaty does not require subsequent acceptance by other contracting States unless the treaty so provides

2. Application of the treaty in its entirety between all parties is an essential condition, a reservation requires acceptance by all the parties

3. When a treaty is a constituent instrument of an international organization, a reservation requires the acceptance of the competent organ of that organization

Objection by another contracting State to a reservation does not preclude the entry into force of the treaty as between the objecting and reserving States unless a contrary intention is definitely expressed by the objecting State

A reservation is considered to have been accepted by a State if it shall have raised no objection to the reservation by the end of 12 months after it was notified of the reservation or by the date on which it expressed its consent to be bound by the treaty, whichever is later

Legal Effects of Reservations and of Objections to Reservation

1. Modifies the provisions to the same extent for that other party in its relations with the reserving State

2. Reservation does not modify the provisions of the treaty for the other parties to the treaty inter se

3. When a State objecting to a reservation has not opposed the entry into force of the treaty, provisions to which the reservation relates do not apply as between the 2 States to the extent of the reservation

Withdrawal of Reservations and of Objections to Reservations

1. Consent of a State which has accepted the reservation is not required for its withdrawal

2. Objection to a reservation may be withdrawn at any time 3. Withdrawal of a reservation—notice is required 4. Withdrawal of an objection—notice is also required

Procedure regarding Reservations

1. Must be formulated in writing 2. Must be communicated to the contracting States 3. Considered as having been made on the date of its confirmation 4. Withdrawal of a reservation or of an objection to a reservation must be

formulated in writing Points to remember about Reservation and Objection

1. If the reservation is compatible with the object and purpose of the Convention, reserving State is considered as a party to the Convention

2. If the reservation is incompatible with the object and purpose of the Convention, reserving State is not considered as a party to the Convention

3. Objection to a reservation made by a signatory State which has not yet ratified the Convention can have the legal effect only upon ratification

Interpretation to Treaties

1. Made in good faith and in accordance with the ordinary meaning given to the terms of the treaty in their context and in the light of its object and purpose

2. Supplementary means of interpretation are a. Preparatory work of the treaty b. Circumstances of its conclusion

Preemptory Norms of International Law (Jus cogens) A norm accepted and recognized by the international community of States

as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character

Examples of jus cogens: a. Treaty contemplating an unlawful use of force contrary to the

principles of the Charter b. Treaty contemplating the performance of any other act criminal

under international law c. Treaty contemplating or conniving at the omission of acts such as

trade in slaves, piracy, or genocide, in the suppression of which every State is called upon to cooperate


Withdrawal and Termination 1. In conformity with the provisions of the treaty 2. At any time by consent of all parties Not subject to denunciation unless

1. Parties agree 2. Implied in the nature of the treaty

A treaty is terminated if all the parties to it conclude a later treaty relating to the same subject matter and the parties intended that the matter should be governed by that treaty

Fundamental Change of Circumstances (Rebus sic stantibus) Fundamental change of circumstances may not be invoked as a ground for

terminating or withdrawing from the treaty 1. If the treaty establishes a boundary 2. Fundamental change is the result of a breach by the party invoking it

Fundamental change of circumstances may be invoked as a ground for terminating or withdrawing from the treaty when 1. Existence of those circumstances constituted an essential basis of the

consent 2. Effect of the change is radically to transform the extent of obligations

still to be performed under the treaty

POWERS OF CORPORTAION OF THE CITY OF OTTAWA AND THE CORPORATION OF THE VILLAGE OF ROCKLIFFE PARK TO LEVY RATES ON FOREIGN LEGATIONS AND

HIGH COMMISSIONERS RESIDENCES FACTS: Properties owned and occupied by the High Commissioner for the UK and the High Commissioner for the Commonwealth of Australia, the powers of the Council of the Corporation of the City of Ottawa do not extend to these properties since they are embraced within the expressed exemption of Crown property by enactments of the Assessment Act. The Attorney-General of Canada admitted that the ―rates‖ with which the Court must deal in its answers do not include the charges imposed as for services rendered and commodities supplied, for example, water rates or charges for electricity. A foreign Minister is not subject to the laws of the State to which he has been sent; he enjoys an entire independence of the jurisdiction and authority of the latter State. As a consequence, he is exempt from the jurisdiction of the courts of the country in which he resides as a diplomatic representative. ISSUE: w/n a Provincial Parliament has legislative competence to levy rates or taxes on property of foreign governments owned and occupied as legations HELD: Solution is found in the remedies which the municipal corporations are empowered to adopt in order to collect their taxes.

Assessed amounts of taxes against property owned and occupied by foreign states are uncollectable; therefore, a necessary consequence of the legal impossibility of collecting taxes against foreign states or diplomats is that such taxes or rates may not be assessed and levied on the properties owned and occupied by them and used for diplomatic purposes.

TRENDTEX TRADING CORP. v. CENTRAL BANK OF NIGERIA HELD: What is the place of international law in our English law? 2 schools of thought:

1. Doctrine of Incorporation—rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament; when the rules of international law changes the English law changes as well

2. Doctrine of Transformation—rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom; English law does not change despite change in rules of international law

I now believe that the doctrine of incorporation is correct. Otherwise I do not see that our courts could ever recognize a change in the rules of international law. When the rules of international law were changed (by the force of public opinion) so as to condemn slavery, the English courts were justified in applying the modern rules of international law. It follows, too, that a decision of this court – as to what was the ruling of international law 50 or 60 years ago – is not binding on this court today. International law knows no rule of stare decisis.

CONVENTION ON RIGHTS AND DUTIES OF STATES (MONTEVIDEO) Art. 1. The State as a person of international law should possess:

1. Permanent population 2. Defined territory 3. Government 4. Capacity to enter into relations with other states

HYDE (INTERNATIONAL LAW) A State or person of international law must possess the following qualifications:

1. There must be people sufficient in numbers to maintain and perpetuate itself

2. There must be fixed territory which the inhabitants occupy 3. There must be organized government exercising in fact supremacy therein 4. There must be an assertion of right through governmental agencies to

enter into relations with the outside world—the possession and use of the right to enter into foreign relations

5. The inhabitants of the territory must have attained a degree of civilization—those principles of law which by common assent govern the members of the international society in their relations with each other


CASE CONCERNING RIGHTS OF NATIONALS OF THE US IN MOROCCO It is not disputed by the French Government that Morocco, even under the Protectorate, has retained its personality as a State in international law. US can, therefore, not only recognize French Courts in Morocco, but also give up, in the French Zone, the enjoyment of all privileges following from capitulations, without thereby losing this advantage.

ADMISSION TO LEAGUE OF LIECHTENSTEIN

The Government of the Principality of Liechtenstein has been recognized de jure by many States and it possesses a stable Government and fixed frontiers. Juridically, the Principality of Liechtenstein is a sovereign State, but by reason of her limited area, small population, and her geographical position, she has chosen to depute to others some of the attributes of sovereignty. We are of the opinion that the Principality of Liechtenstein could not discharge all the international obligations which would be imposed on her by the Covenant. Hence, it was denied admission to the League of Nations.

STATEMENT OF FOREIGN SECRETARY OF GREAT BRITAIN It is international law which defines the conditions under which a government should be recognized de jure or de facto, and it is a matter of judgment in each particular case whether a regime fulfills the conditions. De facto government—new regime has in fact effective control over most of the State‘s territory and that this control seems likely to continue. De jure government—new regime should not merely have effective control over most of the State‘s territory, but that it should in fact be firmly established. Recognition should be accorded when the conditions specified by international law are in fact fulfilled and that recognition should not be given when these conditions are not fulfilled. It sets up an international legal standard for recognition, it contains 3 rules:

1. Conditions which any regime must satisfy in order to be recognized as the government of a State are prescribed by international law

2. These conditions are that the regime has effective control over most of the State‘s territory and that its control seems likely to continue

3. If and only if these conditions are satisfied, it should, as a matter of international obligation, be recognized as a government

The question whether a particular regime satisfies the conditions prescribed is not one of fact but a matter of judgment.

Here lies the difference between the attitude of UK and US to recognition. The US regards the margin as a wide one into which moral factors may enter.

SENATE RESOLUTION 205

When US recognizes a foreign government and exchanges diplomatic representatives with it, this does not of itself imply that US approves of the form, ideology, or policy of that foreign government.

CANADIAN PRACTICE ON THE RECOGNITION OF STATES Effective control—this involves a decision as to whether an authority, claiming to be the government of a particular State, is in fact entitled to be regarded as representing that State on the international plane.

1. Ability to exercise effective control 2. Reasonable prospect of permanency 3. Over the area which it claims to govern 4. Support from the people of such territory

Political Considerations—it is a policy decision to determine, on the merits and circumstances of each case, whether the legal conditions for recognition are fulfilled. Granting of recognition by the Canadian Government to another government is not viewed as signifying approval of the policies of that government, or for that matter, of the political philosophy of that government or of the manner in which it came into power. Timing of Recognition—a key factor is that it ought not to be effected too early, inasmuch as this might in itself tend to constitute interference in the internal affairs of a sovereign state. So long as the lawful government has a reasonable prospect of reasserting its authority, recognition would constitute a violation of the non-intervention principle as set out in Art. 2[7] of UN Charter. External Control—other tests for criteria for the recognition:

a. Legitimacy b. Method of revolutionary change c. Freedom from external control—a test for the recognition of States, not of

government Recognition of a government presupposes recognition of the State governed by the recognized government. A state, in order to continue to qualify for recognition as such, must first possess an independent government. If it is considered in a particular case that the question is one of recognition of a government only, that is in itself a tacit admission that the government concerned is considered to be free from external control.


BRITISH PRACTICE ON THE RECOGNITION OF STATES

The British Government recognizes States in accordance with common international doctrine. The policy of successive British Governments has been that we should make and announce a decision formally ―recognizing‖ the new Government. We shall continue to decide the nature of our dealings with regimes which come to power unconstitutionality in the light of our assessment of whether they are able of themselves to exercise effective control of the territory of the State concerned, and seem likely to continue to do so.

WESTERN SAHARA CASE FACTS: In 1884, Western Sahara was colonized by Spain. General Assembly in 1966 indicated that decolonization of Western Sahara should occur. Spain agreed to hold a referendum under UN supervision in 1975. At this point, both Mauritania and Morocco made similar claims on the territory on the basis of an historic title predating Spain‘s colonization. HELD: The principle of self-determination as a right of peoples, and its application for the purpose of bringing all colonial situations to a speedy end were enunciated in the Declaration on the Granting of Independence to Colonial Countries and Peoples. Right to self-determination—right to freely determine their political status and freely pursue their economic, social and cultural development. General Assembly Resolution provided the basis for the process of decolonization for non-self governing territories:

1. Emergence as a sovereign independent State 2. Free association with an independent State—result of a free and voluntary

choice by the peoples of the territory concerned expressed through informed and democratic processes

3. Integration with an independent State—result of the freely wishes of the territory‘s peoples acting with full knowledge of the change in their status, their wishes having been expressed through informed and democratic processes, impartially conducted and based on universal adult suffrage

RECOGNITION OS STATES: THE COLLAPSE OF YUGOSLAVIA Recognition of states is not a matter governed by law but a question of policy. It is today more of an optional and discretionary political act that was thought to be the case a year ago.

I. The Baltic States The 1920 Treaty between Russia and Latvia expressly states that the former recognizes without reservation the independence, autonomy and sovereignty of Latvia and forever renounces all sovereignty rights over the Latvian people and territory.

Baltic states, like other Soviet republics, asserted their sovereignty but their international status did not change as a result. Most Western countries continued to extend de jure recognition to the 3 states, they also accepted de facto control over these territories by the USSR and, accordingly, most Western countries did not have diplomatic relations with the Baltic states.

II. Croatia and Slovenia Unrecognized The Republic of Croatia and Republic of Slovenia were 2 of the 6 republics of the SFRY. A distinction was made between the ‗nations‘ of Yugoslavia and the ‗republics‘ of Yugoslavia. The former being peoples like the Croats, Macedonians, Serbs and Slovenes without any necessary geographic connection and the latter being the 6 geographically defined federal units without any necessary ethnic connection. A second distinction was made between ‗nations‘ and ‗nationalities‘ with the latter being defined as members of nations whose native countries border on Yugoslavia. Accordingly, the Albanians of Kosovo and the Hungarians of Vojvodina were regarded as ‗nationalities‘ and did not have a right of self-determination or secession under the Constitution. In 1991, both Croatia and Slovenia declared their independence. The Constitutional Resolution Regarding the Sovereignty and Independence of the Republic of Croatia adopted by the Croatian Parliament based its actions 'upon the will of the nation demonstrated at the referendum of 1991,' and argued that 'the SFRY no longer is acting as the constitutional-legal organized state. The Slovenian Declaration is more forthright in that it 'expects legal recognition from all countries which respect the democratic principles and the right of all nations to self-determination. Yugoslav National Army resisted attempts by the Slovenian and Croatian authorities to assert their independence and considerable violence occurred. The European Community assumed the principal mediation role in the conflict and in 1991, the Yugoslav parties meeting in Brioni agreed, inter alia, to a 3 month moratorium on the implementation of the Declarations of Independence. Senator Evans identified the 4 formal criteria for the recognition of statehood as 'permanent population, defined territory, government and a capacity to enter into relations with other states' and then added 'we look at whether the government is in effective control of the territory. Upon expiration of the 3 month moratorium, in the Declaration, 'all countries, particularly the Member States of the EC and the UN are called upon to establish diplomatic relations with the Republic of Croatia.

III. Ukraine’s Independence Ukraine had declared its sovereignty on 16 July 1990. Ukraine's Declaration of Independence was, however, made subject to the results of a referendum to be held on 1 December 1991 and countries accordingly had good reason to hold off consideration of recognition until that time.


IV. The European Community Sets New Rules The EC Foreign Ministers meeting in Brussels issued a 'Declaration on the Guidelines on the Recognition of the New States in Eastern Europe and in the Soviet Union'. Accompanying this Declaration was a 'Declaration on Yugoslavia'. The Declaration begins by referring to the Helsinki Final Act and the Charter of Paris, 'in particular the principle of self-determination'. It affirms the readiness of the EC countries to recognize new states 'subject to the normal standards of international practice and the political realities in each case. The Guidelines describe the candidates for recognition as those new states which 'have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations'. The Guidelines conclude with the warning that the EC countries 'will not recognize entities which are the result of aggression' and, cryptically, that they would take account of the effects of recognition on neighbouring states.' This method of requiring an application for recognition which is examined by an arbitrator and then decided upon according to a set timetable is virtually unprecedented in recognition practice.

V. The Demise of Soviet Union USSR formally ceased to exist on 21 December 1991 when the 11 CIS participants adopted the Alma-Ata Declaration which noted that 'with the formation of the Commonwealth of Independent States the Union of the Soviet Socialist Republics ceases to exist. In relation to Russia, the term 'recognition' was therefore not used by the EC because these countries accepted Russia's continuity of the international personality of the Soviet Union. In the 23 December statement, the EC stated its willingness to recognize the other former Soviet republics which met its Guidelines.

VI. Recognition of Croatia and Slovenia All 6 Yugoslav republics responded to the invitation extended in the EC's Declaration on Yugoslavia but only 4 sought recognition. The 4 republics of Yugoslavia requested recognition and undertook to comply with the requirements listed in the EC's Guidelines. The requests were backed by various republican constitutional and legislative documents. The Badinter Commission held that because 'the right of self-determination must not involve changes to existing frontiers' the Serbian minorities are entitled to the rights accorded to minorities (as opposed to peoples) under international law. Opinion 3 decided that the principle of uti possidetis has general application and thus applies to the republican borders of Yugoslavia in the context of its current dissolution. In 1992, basing themselves on the opinions of the Badinter Commission, the EC decided to extend recognition to Croatia and Slovenia.

VII. Recognition of the Republic of Bosnia and Herzegovina In Bosnia and Herzegovina's admission to the UN, the UN Security Council had unanimously recommended this country's membership and the General Assembly had unanimously accepted the recommendation. However, the Badinter Commission held that although the various constitutional processes had been followed in the request to the EC for recognition, the absence of a referendum on the subject meant that 'the will of the peoples of Bosnia-Herzegovina to constitute [the republic] as a sovereign and independent State cannot be held to have been fully established. Despite such opinion, the EC countries and the US moved to recognize Bosnia and Herzegovina on 7 April 1992. The US statement noted in relation to Bosnia and Herzegovina, Croatia and Slovenia that these states 'meet the requisite criteria for recognition' but did not spell these out.

VIII. The Political Realities in Each Case There have always been exceptions to the rule, but the international community had generally come to accept the traditional criteria for statehood as the proper means for taking decisions on recognition. The reason for this is that these criteria provide a way of maintaining consistency as well as a defense against doubtful claims. They were found to be useful tools. EC countries took the view that recognition should be used more as an instrument of foreign policy rather than a formal declaration of an ascertainable fact.

IX. Conditionality In introducing their Guidelines in relation to Eastern Europe, the EC also departed from another basic understanding in relation to recognition practice. It had been thought that the setting of conditions with respect to such matters as religious practices, the level of 'civilization' and the applicable political system were improper because they implied a value judgment about how the new state should be organized. The effect is that the EC has moved away from the process of recognition as the formal acceptance of a fact to a process based on value judgments and through which the international community tries to create a fact. While the EC Guidelines are stated to be 'subject to the normal standards of international practice,' their application in fact has thrown doubt on the relevance of the traditional criteria for statehood. There has been widespread recognition of a state which has no control over 1/3 of its territory (Croatia). A country has been admitted to the UN while it was clear that its government had no effective control over any areas including the capital city (Bosnia and Herzegovina). A putative country (Macedonia) is being denied recognition because a neighbouring country objects to its name even though it meets all traditional criteria and appears to meet the conditions set by the EC. There is also uncertainty as to the effect of the conditionalities. The EC considers the conditions it has set to be factors determining recognition decisions. The US, on the other hand, has used the human rights and non-proliferation conditions as a test


of whether to enter into diplomatic relations with the new states it has already recognized.

X. Questions of Secession and Frontiers The decolonization period may be said to be characterized by 2 broad political/legal considerations: (a) support for the sanctity of inherited national borders and the (b) unacceptability of secession. The authorities in Belgrade have from the outset viewed the struggle for independence by Croatia and Slovenia as a question of secession. In Zagreb and Ljubljana, on the other hand, it was seen as a legitimate process of self-determination leading to the dissolution of the original state. The Badintcr Commission's Opinions 1 and 8 support the view that this was not a matter of secession but one of the dissolution of the federal state. The Badinter Commission was also asked whether the internal boundaries, for example between Croatia and Serbia, can be regarded as frontiers in terms of public international law. In its opinion, such boundaries could not be changed except by agreement and upon independence the internal republican boundaries become international frontiers. The Commission reached this conclusion by the application of the principle of uti possidetis which although it was 'initially applied in settling decolonization issues in America and Africa, is today recognized as a general principle.

XI. Continuity of International Personality Brownlie notes that 'the term "continuity'' of States is not employed with any precision and may be used to preface a diversity of legal problems.' For example, alterations of territory as such do not affect the identity of a state. But the break-up of a federation into its constituent parts is fundamentally more than a mere change of territory. In view of the imprecision in the concept, it is difficult to do anything other than to treat each case on its individual merits.

XII. Limitations on the Applicability of these Precedents The first point to ask is whether recent practice should be seen as geographically limited to Europe alone. It is certainly the case that the statements and guidelines issued on these matters were restricted in their headings to the particular facts under review. It could also be validly argued that the European stage is sui generis because of the particular historical circumstances in that continent. While this argument may be a comfort to some because it would suggest that the break-up of the Soviet Union and of Yugoslavia is a precedent only for other federal countries of Eastern Europe such as the Czech and Slovak Federal Republic and perhaps the Russian Federation, it is difficult to accept such a limitation. Many of the principles referred to in this process, such as the principle of self-determination, the principle of uti possidetis, the proscription against the ducat or use of force and the insistence on disputes being settled by peaceful means are of universal application. Their application leading to certain results in Europe must run parallel to the results their application would lead to in other continents.

XIII. Conclusions Question of recognition of states has become less predictable and more a matter of political discretion as a result of recent practice. The traditional criteria for statehood retain an uneasy existence alongside the new EC Guidelines, which have been particularly influential in relation to the recognition of the new states emerging from the USSR and Yugoslavia. It now seems that the 'political realities' have gained primacy over the inclinations to maintain consistency by applying accepted criteria to test the fact of statehood. This should not be seen as necessarily a negative development. The application of the traditional criteria as the test for statehood and therefore the rationale behind recognition was largely amoral. How a government came to be in effective control over its territory was, for the most part, not considered to be a relevant factor. The adoption of conditions leading to recognition is an attempt to introduce a greater moral dimension. Yet the enemy of such a moral stand is inconsistency, the very factor which the traditional criteria tried to avoid. And mere can be fewer better examples of inconsistency than the continuing refusal to recognize the independence of the former Yugoslav Republic of Macedonia even though it meets every criterion and every condition but simply refuses to change its name. The 'political realities' in this case seem to have more to do with internal EC politics than with the merits of the Macedonian case. When considering a question of recognition, states will have to ask themselves questions about whether such an action will contribute to a peaceful resolution of a conflict, and if the answer is in the affirmative, the traditional criteria for statehood may well have to be finessed.

THE COMMONWEALTH OF AUSTRALIA v. THE STATE OF NEW SOUTH WALES FACTS: Commonwealth has sued the State of New South Wales for damages by a collision between a vessel belonging to the defendant and a motor-launch belonging to the plaintiff. The question arising from the defendant‘s summons is whether this Court has jurisdiction to entertain this action, without the consent of the State. The Commonwealth maintains that there is jurisdiction and rests primarily on Sec. 75 of the Constitution. The contention urged at the Bar on behalf of the defendant was

1. That it is a sovereign State and therefore cannot be sued without its consent

2. That no actual consent has been given 3. The jurisdiction given by the Constitution is conditioned on Parliament

Defendant contends that an Australian State is a ―sovereign State.‖ Learned counsel placed the matter on the same plane as a foreign independent State, the ―representative‖ and said that consent of the foreign State was necessary, and so of an Australian State.


HELD: Under the Parlement Bedge, ―as a consequence of the absolute independence of every sovereign authority and of the international comity, each State declines to exercise by means of any of its Courts any of its territorial jurisdiction over the person of any sovereign or ambassador, or over the public property of any State which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory.‖ New South Wales is not a foreign country. The Commonwealth includes the people of New South Wales as they are united with their fellow Australians as one people for the higher purposes of common citizenship, as created by Constitution. When the Commonwealth is present in Court as a party, the people of New South Wales cannot be absent. It is only where the limits of the wider citizenship end that the separateness of the people of a State as a political organism can exist.

THE WEEKLY REST IN INDUSTRIAL UNDERTAKINGS ACT The Parliament of Canada has the power to implement international agreements amount matters that normally come within the jurisdiction of provincial legislatures. The Lieutenant-Governors represent the Crown for certain purposes. But, in no respect does the L-G of a province represent the Crown in respect of relations with foreign governments. Provinces have no status in international law, they are not States and are not recognized as such.

INTERNATIONAL STATUS OF SOUTH-WEST ASIA FACTS: Territory of South West Africa was one of the German overseas possession. The Treaty of Versailles renounced all her rights and titles in favor of the Principal Allied and Associated Powers. When territories had ceased to be under the sovereignty of the States which formerly governed them and inhabited by peoples not yet able to assume full measure of self-government, 2 principles were considered to be paramount importance:

1. Non-annexation 2. Well-being and development of such peoples form ―a sacred trust of

civilization‖ A Mandate System was created to give practical effect to these principles. A ―tutelage‖ was to be established for these peoples, and this was to be entrusted to certain advanced nations and exercised by them as mandatories on behalf of the League.

A Mandate for the Territory of South East Africa was conferred upon His Britannic Majesty to be exercised on his behalf by the Government of the Union of South Africa. The Union of South Africa was to have full power of administration and legislation over the Territory subject to such local modifications as circumstances may require. The Council of the League was to supervise the administration. The terms of this Mandate show that the creation of this new international institution did not involve any cession of territory or transfer of sovereignty to the Union of South Africa. CONTENTION: It is now contended on behalf of the Union Government that this Mandate has lapsed because the League has ceased to exist HELD: Such contention was based on a misconception. The League was not a ―mandate‖ in the sense used in the national law of certain States. It had only assumed an international function of supervision and control. The Mandate was created, in the interest of the inhabitants of the territory and of humanity in general, as an international institution with an international object. The international obligations assumed by the Union of South Africa were of 2 kinds:

1. Directly related to the administration of the Territory and corresponded to the sacred trust of civilization—general obligation is to promote to the utmost the material and moral well-being and the social progress of the inhabitants

2. Related to the machinery for implementation linked to the supervision and control of the League

Since their fulfillment did not depend on the existence of the League of Nations, they could not be brought to an end merely because this supervisory organ ceased to exist. Nor could the right of the population to have the Territory administered in accordance with these rules depend thereon.

RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY OF THE UN 1. Reaffirms the provisions of the General Assembly Resolution 1514—the people

of South West Africa have the inalienable right to self-determination, freedom and independence in accordance with the Charter of UN

2. Reaffirms that South West Africa is a territory having international status 3. Decides that the Mandate exercised by the Government of the Union of South

Africa is therefore terminated, that South Africa has no other right to administer the Territory, and that South West Africa comes under the direct responsibility of the UN


LEGAL CONSEQUENCES FOR STATES OF THE CONTINUED PRESENCE OF SOUTH AFRICA IN NAMIBIA DOCTRINE:

1. The continued presence of South Africa in Namibia being illegal, South Africa is under obligation to withdraw its administration from Namibia immediately and thus put an end to its occupation of the Territory

2. States Members of the UN are under obligation to recognize the illegality of South Africa‘s presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any acts and in particular any dealings with the Government of South Africa implying recognition of the legality of, or lending support or assistance to, such presence and administration

3. That it is incumbent upon States which are not Members of the UN to give assistance, within the scope of subparagraph (2) above, in the action which has been taken by the UN with regard to Namibia

HISTORY: The mandates system established by Article 22 of the Covenant of the League of Nations was based upon 2 principles of paramount importance: the principle of non-annexation and the principle that the well-being and development of the peoples concerned formed a sacred trust of civilization. The mandatory was to observe a number of obligations, and the Council of the League was to see that they were fulfilled. The rights of the mandatory as such had their foundation in those obligations. When the League of Nations was dissolved, the raison d‘etre and original object of these obligations remained. Since their fulfilment did not depend on the existence of the League, they could not be brought to an end merely because the supervisory organ had ceased to exist. HELD: Under the UN Charter, party which disowns or does not fulfil its obligations cannot be recognized as retaining the rights which it claims to derive from the relationship. Resolution 2145 determined that there had been a material breach of the Mandate, which South Africa had in fact disavowed. Under the Vienna Convention on the Law of Treaties, only a material breach of a treaty justifies termination, and such breach being defined as:

1. A repudiation of the treaty not sanctioned by the present Convention 2. Violation of a provision essential to the accomplishment of the object or

purpose of the treaty Resolution 2145 determines that both forms of material breach had occurred in this case. South Africa has, in fact, disavowed the Mandate, and the General Assembly declared, in fact, that it had repudiated it. The general principle of law is that a right of termination on account of breach must be presumed to exist in respect of all treaties, except as regards provisions relating to the protection of the human person contained in treaties of a humanitarian character. The silence of a treaty as to the existence of such right cannot be interpreted as implying the exclusion of such right which has its source

outside of the treaty, in general international law, and is dependent on the occurrence of circumstances which are not normally envisaged when a treaty is concluded.

REPARATIONS FOR INJURIES SUFFERED IN THE SERVICE OF THE UN ISSUE: w/n the UN has the capacity to bring an international claim in the event that an agent of the UN, in the performance of his duties, suffered an injury in circumstances involving the responsibility of the State HELD: Competence to bring an international claim is the capacity to resort to the customary methods recognized by international law for the establishment, presentation and settlement of claims. This capacity belongs to the State; a State can bring an international claim against another State. Such a claim takes the form of a claim between 2 political entities, equal in law, similar in form and both the direct subjects of international law. When the Organization brings a claim against one of its Members, this claim will be presented in the same manner, and regulated by the same procedure. The Organization is an international person. What it means is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims. However, that is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State.

LAUTERPACHT, AN INTERNATIONAL BILL OF THE RIGHTS OF MAN First constitutional instruments of modern time s to proclaim that the natural rights of man were part of the fundamental law of the State and that their protection was the reason for its existence:

1. Constitution of Virginia 1776 2. American Declaration of Independence 3. French Declaration of the Rights of Man and of the Citizen

The sovereign State, in an exclusive and unprecedented ascendancy of power, became the unsurpassable barrier between man and the law of mankind. The human being became, in the offensive, but widely current, terminology of the experts, a mere object of international law. Treaties of a humanitarian character were concluded for protecting the individual in some specified spheres. But the fundamental claims of human personality to equality, liberty, and freedom against the arbitrary will of the State remained outside the orbit of international law save for the precarious and controversial principle of humanitarian intervention.


EXTRACT FROM THE JUDGMENT OF THE NUREMBERG TRIBUNAL ISSUE: w/n an individual could be held personally responsible for executing Acts of his State HELD: International law imposes duties and liabilities upon individuals as well as upon states has long been recognized. For example, crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. The principle of international law, which under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law.

DISPUTE BETWEEN TEXACO OVERSEAS PETROLEUM CO. AND THE GOVERNMENT OF THE LIBYAN ARAB REPUBLIC

To say that international law governs contractual relations between a State and a foreign private party neither means that the latter is assimilated to a State nor that the contract entered into with it is assimilated to a treaty. The rules of economic international law concern not only States but directly the individuals; because economic and social progress has as its objective to assure its direct application to those concerned. The result is that individuals are directly the subjects of economic or social international law. Legal international capacity is not solely attributable to a State and that international law encompasses subjects of a diversified nature. Other subjects enjoy only limited capacities which are assigned to specific purposes. Unlike a State, the private person has only a limited capacity and his quality as a subject of international law does enable him only to invoke, in the field of international law, the rights which he derives from the contract. When a State recognizes its partner to such a contract as a subject of international law, the private partner is recognized as a subject of only those rights and duties, as are embodied in the contracts concerned. In the matter of contract, the international personality and capacity of the individual depend on the recognition granted to them by the State in its legal relations with him.

INTERNATIONAL CRIMINAL COURT Jurisdiction, Admissibility and Applicable Law The jurisdiction of the court is limited to the ―most serious crimes of concern to the international community as a whole‖

a. Genocide

b. Crimes against humanity c. War crimes d. Crime of aggression – once a provision defining it and setting out the

conditions is adopted by the State Parties to the Statute Exercise of jurisdiction is triggered by a

a. referral to the Prosecutor by a State Party b. referral to the Prosecutor by the Security Council c. investigation initiated motu propio by the Prosecutor

Double jeopardy applies Investigation and Prosecution Investigation – initiated by the Prosecutor after prior evaluation of the information Pre-trial Chamber – oversees the prosecutorial investigations and ensure that the defendant‘s rights are protected After investigation, Pre-trial Chamber issues a warrant of arrest of a person if there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court Trial Trial in absentia is not allowed Reparations to victims are provided for Penalties

a. Imprisonment – may not exceed a maximum of 30 years b. Life imprisonment c. Fines and forfeiture of the proceeds, property and assets derived from a

crime Death penalty is excluded Appeal and Revision Grounds:

a. Procedural error b. Error of fact c. Error of law

Enforcement Sentences of imprisonment shall be served in States which have indicated their willingness to accept sentenced persons If no State is designated, sentence shall be served in a prison facility made available by the Host State Principle of Complementarity ICC can only step in when national authorities are unwilling or unable to act


Final Clauses Reservations to the Statute are not permitted

DIRECT v. INDIRECT OBLIGATIONS OF CORPORATIONS UNDER INTERNATIONAL LAW

The classic model does not insist that only State conduct can give rise to a violation of international law. On this basis, it has been argued that the conduct of a corporation might give rise to a violation of international law ―in failed states: if ―there is a complete non-regulation of corporate activities‖ and infringement of human rights results from the corporation‘s activities. In such circumstances, the conduct of the corporation would be attributable to the state for purposes of international law. Similarly, the conduct of non-state actors can give rise to responsibility under international law ―if and to the extent that the State acknowledges and adopts the conduct in question as its own.‖ Though seemingly quite formal, the distinction between obligations imposed directly by international law and those imposed indirectly is of some importance to both sates and non-states actors addressed by the norm. For corporate managers and directors, the difference is potentially crucial. If international law imposes obligations on corporations only indirectly, then managers and directors need concern themselves, as legal matter, only with the domestic laws of the States in which they operate. If international law directly imposes obligations on corporations, the corporation will be potentially subject to enforcement action by international institution, either in existence or created after the fact.

ISLAND OF PALMAS CASE

FACTS: The origin of the dispute is to be found in the visit paid to the Island of Palmas (Miangas) by General Leonard Wood, who was then Governor of the Province of Moro. This visit led to the statement that the Island of Palmas, undoubtedly included in the ―archipelago known as the Philippine Islands,‖ as delimited by Art. 3 of the Treaty of Peace between US and Spain, and cede in virtue of the said article to the US, was considered by the Netherlands as forming part of the territory of their possession in the East Indies. The Arbitrator‘s remarks: Sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for the inclusion of such portion in the territory of any particular State, this is called ―territorial sovereignty.‖ Sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State. Territorial sovereignty is, in general, a situation recognized and delimited in space, either by so-called natural frontiers as recognized by international law or by outward signs of delimitation that are undisputed, or else by legal engagements

entered into between interested neighbors, such as frontier conventions, or by acts of recognition of States within fixed boundaries. If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the States claiming sovereignty possesses a title—cession, conquest, occupation, etc.—superior to that which the other State might possibly bring forward against it. If the contestation is based on the fact that the other Part has actually displayed sovereignty, it cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain moment; it must also be shown that the territorial sovereignty has continued to exist and did exists at the moment which for the decision of the dispute must be considered as critical – actual display of State activities. Titles of acquisition of territorial sovereignty in present-day international law are either based on the act of effective apprehension, such as occupation or conquest, or, like cession, presupposes that the ceding and the cessionary Powers or at least one of them, have the faculty of effectively disposing of the ceded territory. The fact of peaceful and continuous display is still one of the most important considerations in establishing boundaries between States and is as good as a title. Territorial sovereignty involves the exclusive right to display the activities of a State. This right has as corollary a duty: the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability in peace and in war, together with the rights which each State may claim for its nationals in foreign territory. In International law, the structure of which is not based on any super-State organization, cannot be presumed to reduce a right such as territorial sovereignty, with which almost all international relations are bound up, to the category of an abstract right, without concrete manifestations. While municipal law is able to recognize abstract rights of property as existing apart from any material display of them. ISSUE: w/n a title is valid erga omnes where no conventional line of sufficient topographical precision exists or if there are gaps in the frontiers otherwise established The title alleged by the US as constituting the immediate foundation of its claim is that of cession, brought about by the Treaty of Paris, which cession transferred all rights of sovereignty which Spain may have possessed in the region indicated in Art. 3 of the said Treaty. HELD: The effects of discovery by Spain are to be determined by the rules of international law in force in the first half of the 16th century. If we are to consider as positive law at the period in question the rule that discovery as such, mere fact of seeing the land without any act, even symbolical, of


taking possession, involved ipso jure territorial sovereignty and not merely an ―inchoate title‖, a jus ad rem, to be completed eventually by an actual and durable taking of possession within a reasonable time, the question arises whether sovereignty yet existed at the critical date, the moment of conclusion and coming into force of the Treaty of Paris. Discovery alone, without any subsequent act, cannot at the present time suffice to prove sovereignty over the Island of Palmas; and in so far as there is no sovereignty, the question of an abandonment properly speaking of sovereignty by one State n order that the sovereignty of another may take its place does not arise. An inchoate title of discovery must be completed within a reasonable period by the effective occupation of the region claimed to be discovered. This principle must be applied in the present case, for the reasons given with regard to the rules determining which of successive legal systems is to be applied (the so-called intertemporal law). An inchoate title could not prevail over the continuous and peaceful display of authority by another State; for such display may prevail even over a prior, definitive title put forward by another State. Title arising out of contiguity—islands relatively close to their shores belonged to them in virtue of their geographical situation—it is impossible to show the existence of a rule of positive international law to the effect that islands situated outside territorial waters should belong to a State from the mere fact that its territory forms the terra firma (nearest continent or island of considerable size). The principle of contiguity, in regard to islands, may not be out of place when it is a question of allotting them to one State rather than another, either by agreement between the Parties, or by a decision not necessarily based on law; but as a rule establishing ipso jure the presumption of sovereignty in favor of a particular State, this principle would be in conflict with what has been said as to territorial sovereignty and as to the necessary relation between the right to exclude other States from a region and the duty to display therein the activities of a State. US based their claim on the titles of discovery, of recognition by treaty and of contiguity but they have not established the fact that sovereignty so acquired was effectively displayed at any time. Netherlands, on the contrary, found their claim to sovereignty essentially on the title of peaceful and continues display of State authority over the island. Since this title in international law would prevail over a title of acquisition of sovereignty not followed by actual display of State authority, it is necessary to ascertain in the first place, whether the contention of Netherlands is sufficiently established by evidence, and if so, for what period of time. In the opinion of the Arbitrator, the Netherlands have succeeded in establishing the following facts:

1. Island of Palmas is identical with an island which has formed successively a part of 2 of the native States of the Island of Sangi

2. These native States were from 1677 onwards connected with the East India Company, and thereby with the Netherlands, by contracts of suzerainty

The acts of indirect or direct display of Netherlands sovereignty at Palmas are not numerous and there are considerable gaps in the evidence of continuous display. However, it may suffice that such display existed in 1898 and had already existed as continuous and peaceful before that date long enough to enable any Power to have, according to local conditions, a reasonable possibility for ascertaining the existence of a state of things contrary to her real or alleged rights. It is not necessary that the display of sovereignty should be established at having begun at a precise epoch; it suffices that it had existed at the critical period preceding the year 1898. SUMMARY: The title of discovery, if it had not been already disposed of by the Treaties of Munster and Utrecht would, under the most favorable and most extensive interpretation, exist only as an inchoate title, as a claim to establish sovereignty by effective occupation. An inchoate title however cannot prevail over a definite title founded on continuous and peaceful display of sovereignty. The title of contiguity has no foundation in international law. Also, title of recognition by treaty does not apply. The Netherlands title of sovereignty, acquired by continuous and peaceful display of State authority during a long period of time going probably back beyond the year 1700, therefore holds good.

LEGAL STATUS OF EASTERN GREENLAND

FACTS: The Norwegian government published a proclamation declaring that it had proceeded to occupy certain territories in Eastern Greenland. The Danish government contended that Eastern Greenland was subject to the sovereignty of Denmark and on those grounds brought before the Permanent Court of International Justice a suit against Norway. The battle of Leipzig led to the triumph of the Allied cause and the Swedish army compelled Denmark to sign the Peace Treaty of Kiel, the 4th Art. of which provided for the cession to Sweden of the Kingdom of Norway, excluding however Greenland, the Faeroe Isles and Iceland. At the end of 1814, the necessary steps were taken with a view to the complete liquidation of all matters arising out of the Union between Denmark and Norway. After protracted negotiations, this liquidation was effected by a Convention signed at Stockholm. 2 necessary dates: (1) in 1822, the Scottish whaler Scoresby made the first landing by a European in the territory covered by the Norwegian declaration of occupation; (2) about 1900, thanks to the voyages of the American Peary, the insular character


of Greenland was established. It is admitted by Norway that from the time of Scoresby‘s landing the East coast forms part of the known portion of Greenland. In the summer of 1930, the Norwegian government conferred police powers on certain Norwegian nationals for the inspection of the Norwegian hunting stations in Eastern Greenland. Denmark became uneasy at this action, and intimated to the Norwegian government, at first verbally, and afterwards in writing, that she could not countenance the granting of regular police powers to Norwegian nationals in territories situated in Greenland, seeing that these territories were, in the Danish view, subject to Danish sovereignty. Norwegian government replied that, in accordance with the standpoint which it had reserved in its note, Eastern Greenland constituted a terra nullius, and that it was fully entitled to invest Norwegian nationals in this territory with police powers in respect of Norwegian nationals and other persons domiciled in Norway and that the area lay outside the limits of the Danish colonies in Greenland and the Danish sovereignty extended no further than the limits of these territories. Danish submits in the written pleading that the Norwegian occupation of 1931 is invalid, founded upon the contention that the area occupied was at the time of the occupation subject to Danish sovereignty; that the area is part of Greenland, and at the time of the occupation, Danish sovereignty existed over all Greenland. HELD: The Danish claim is not founded upon any particular act of occupation but alleges a title founded on the peaceful and continuous display of State authority over the island. It must be born in mind that as the critical date is July 10, 1931, it is not necessary that sovereignty over Greenland should have existed throughout the period during which the Danish government maintains that it was in being. A claim to sovereignty based not upon some particular act or title such as a treaty of cession but merely upon continued display of authority, involves 2 elements each of which must be shown to exist:

1. Intention and will to act as sovereign 2. Some actual exercise or display of such authority

Another circumstance which must be taken into account upon a claim to sovereignty over a particular territory is the extent to which the sovereignty is also claimed by some other Power. One of the peculiar features of the present case is that up to 1931, there was no claim by any power other than Denmark to the sovereignty over Greenland. Indeed, no Power disputed the Danish claim to sovereignty. The King‘s pretensions to sovereignty which existed at the time of the foundation of the colonies are sufficient to demonstrate the intention, and these were not limited to any particular part of the country. Legislation is one of the most obvious forms of the exercise of sovereign power. In 1925, legislation was enacted regulating the

hunting and fishing, and in the same year, Greenland was divided into 2 provinces b law which declared that all commercial activity was reserved to the Danish State. The conclusion to which the Court is led is that, bearing in mind the absence of any claim to sovereignty by another Power, and the Arctic and inaccessible character of the uncolonized parts of the country, the authority of the King of Demark, to an extent, sufficient to give his country a valid claim to sovereignty and that rights over Greenland were not limited to the colonized area.

WESTERN SAHARA CASE ISSUE: Was Western Sahara a territory belonging to no one (terra nullius)? HELD: The expression ―terra nullius‖ was a legal terms of art employed in connection with ―occupation‖ as one of the accepted legal methods of acquiring sovereignty over territory. ―Occupation‖—original means of peaceably acquiring sovereignty over territory otherwise than by cession or succession. The State practice of the relevant period indicates that territories inhabited by tribes or peoples having a social and political organization were not regarded as terra nullius. It shows that in the case of such territories, the acquisition of sovereignty was not generally considered as effected unilaterally through ―occupation‖ of terra nullius by original title but through agreements concluded with local rules. Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them. Spain did not proceed on the basis that it was establishing its sovereignty over terrae nullius. In its Royal Order, far from treating the case as one of occupation of terra nullius, Spain proclaimed that the King was taking the Rio de Oro under his protection on the basis of agreements which had been entered into with the chiefs of the local tribes.

SABAH Sabah is situated in the northern part of the island of Borneo. It is bounded by Brunei and Sarawak to the west and by Indonesian Kalimantan to the south. The Territory originally owed allegiance to the Sultan of Brunei, but in 174, the land of the Kimanis river was ceded to the Sultan of Sulu in return for the latter‘s help in a succession dispute in Brunei. The latter leased it to Overbeck and Dent, together with their heirs, associates, successors and assigns. Dent established the Chartered Company of British North Borneo to manage the territory, which was placed under British protection.


In a case filed with Justice Macaskie of the High Court of Borneo, the court ruled that ―it is abundantly clear that the successors in sovereignty of the Sultan of Sulu are the Government of the Philippine Islands.‖ The Chartered Company surrendered its right to the British Government, and Sabah became a British Crown Colony. A few days after the Philippines regained independence from US, North Borneo was annexed to the British dominion and was called Colony of Borneo. As a response to this cession, the Macapagal Resolution 1950 called on the Government to initiate formal institution of the claim over Sabah. Another resolution came after where Philippines pressed its claim stressing that ―the sovereignty over the Territory had remained vested in the Sultanate of Sulu. The occupation of the territory first by Overbeck and Dent and later by the British North Company had been occupation by lessee or an administrator, not occupation by an owner or sovereign.‖ When talks were held in London between Philippines and UK, Sabah became a constituent part of the Federation of Malaysia upon the latter‘s formation on Sept. 16, 1963. This was challenged by both Indonesia and Philippines, however, only the Philippines‘ claim was maintained. President Marcos, at the opening of the second meeting of the ASEAN Heads of Government, declared that the ―Philippines is taking definite steps to eliminate of the burdens of ASEAN—the Philippine claim to Sabah.‖ The 1987 Philippine Constitution omitted from the definition of the National Territory the phrase ―and all other territories belonging to the Philippines by historic right or legal title,‖ which was widely construed as referring to the Philippine claim to Sabah. In 1993, active cooperation on Mindanao and Sabah are being pursued by both countries, Philippines and Malaysia, through the Brunei Darussalam-Indonesia-Malaysia-Philippines East ASEAN Growth Area and bilateral programs, such as cooperation on border crossing and patrol and assistance to Muslim Filipinos and to Filipinos in Malaysia, more particularly in Sabah.

THE SOUTH CHINA SEA DISPUTE—THE SPRATLYS

GEOGRAPHICAL SETTING Surrounded by 10 littoral states: China, Taiwan, Philippines, Indonesia, Brunei, Malaysia, Singapore, Thailand, Kampuchea, and Vietnam. The South China Sea Proper constitutes 4 archipelagoes: Pratas, Macclesfield Bank, Paracels, and Spratlys. The Paracels, a group of islands on the South-East of China are claimed by China and Vietnam.

Some 100 miles to the south of Paracels are a group of islands called Spratlys. Some of these are occupied by the Philippines, Vietnam, Taiwan and China. Nothing had been positively initiated to prevent unnecessary conflict until Indonesia, a non-claimant state, with the support of the Canadian International Development Agency, convened the first workshop on ―Managing Potential Conflicts in the South of China Sea‖ in Bali. Upon the suggestion of the Philippine participants, the next workshop was held in Bandung attended by representatives from China, Taiwan and Vietnam. A proposal was made by Indonesia with the support of the Philippines that an INSTITUTIONAL MECHANISM be organized on an unofficial status through which all issues can be ventilated periodically. Each claimant State was given opportunity to state the legal basis of their territorial claims in the area. On the 3rd workshop, the proposal of setting up an institutional mechanism again failed to get unanimous support. It was during this that the Chinese participants were confronted by Vietnamese participants on a law enacted by China declaring its territorial waters and contiguous zones which eventually claimed sovereignty over all the islands, waters, seabed and airspace stretching the 12 nautical miles from the coast of all the islands on the South China Sea. Vietnam also challenged the legality of the agreement granting Crestone, a US oil company, to explore oil and gas in the area that is claimed by Vietnam as part of its continental shelf. ASEAN issued a Declaration that the disputes in the South China Sea must be settled by peaceful means. CLAIM OF CHINA As early as the 2nd Century BC, Chinese discoveries were claimed of the Xisha and Nansha islands. After WWI, China was the only claimant of the Spratlys. The Chinese claimed sovereignty over the Spratlys since the 13th century through expeditions sent by the Yuan Government in 1293. However, China admits that there is no actual occupation and control of the totally uninhabited islands. The Xisha and Nansha islands are very far away from the Mainland. Only on Feb. 25, 1992, when the 7th National People‘s Republic of China passed a law enclosing the Nansha Islands within its territorial sea. CLAIM OF TAIWAN Since Taiwan claims to represent the sovereignty of the whole of China, participants from Taiwan asserted that Nansha, referring to the Spratlys, Xisha to Paracels, Chungsha Islands to Macclesfield Bank, and Tungshu Islands are intergrated parts of the China by history and tradition. CLAIM OF VIETNAM The Claim of Vietnam to the Paracels is primarily based on the state succession relying on the dissolution of the French sovereignty in Indochina and on historical grounds.


In 1959 and later years, Vietnam continued to assert sovereignty over the Paraccels seizing fishing vessels of China in the area. It incorporated the Paracels and Spratlys into the Qua Nas province in 1973. PHILIPPINE CLAIM After gaining independence from the US in 1946, the Philippines asserted its claim to the Spratlys before the UN General Assembly, which was reiterated in 1950. In 1956, Tomas Cloma, a Filipino navigator claim ownership by discovery and occupation of the territory identified as Freedom Land on the Spratlys. A diplomatic note was sent by the Philippine Government to Taipeh demanding the withdrawal of a Chinese garrison on the island of Itu Aba on the ground that Philippines has a legal title of the island. Tomas Cloma irrevocable ceded and conveyed in favor of the Philippines all rights and interests over said islands. Consequently, the President issued a Presidential Decree declaring that the area is, by reason of effective occupation and control, part of the continental margin of the Philippine Archipelago, and does not belong to any other State. Filipinos have domiciled peacefully on the islands which led to a viable Filipino political, social and economic community known as Kalayaan Island Group. Such Decree was duly registered with the UN Secretariat with an accompanying map and technical description of the area. The main legal basis is that the Kalayaan Island Group is terra nullius followed by occupation and exercise of jurisdiction. CLAIM OF MALAYSIA The Malaysian participants did not make any statement on their claim, however, in 1979, Malaysia published a map claiming the southern part of South China Sea. The area claimed by Malaysia overlapped the southern portion of the Kalayaan Island Group. It was on this area that the 49 Filipino fishermen were apprehended by Malaysian authorities in 1988. CLAIM OF BRUNEI Only recently, Brunei laid claim to the Louisa Reef, a territory which had been occupied by elements of the Malaysian Special Forces. VALUE AND IMPORTANCE OF THE ISLANDS ON THE SOUTH CHINA SEA

1. Presumed Huge Oil Deposit 2. Navigational and Communication Routes

SUGGESTED FOREIGN POLICY OPTIONS

1. to pursue the Philippine claim by diplomatic negotiation through the ASEAN

2. to follow the initiative taken by Indonesia with cooperation and support of CIDA in the Workshops on Managing Potential Conflicts in the South China Sea held in Indonesia

3. to organize an International Authority similar to the Treaty of the Antarctic To strengthen the claim, archipelagic baselines should be drawn to include the Kalayaan Island Group. Under the UN Convention on the Law of the Sea (Art. 49), an archipelagic state has sovereignty and jurisdiction over all lands and waters regardless of their depths or distances. The sovereignty also extends to the airspace over the archipelagic waters as well as to their sea bed and subsoil and the resources contained therein. Among all the claimant-states, the Philippines is the nearest in point of distance from the Spratlys it has occupied as res nullius. Due to very irregular geography and pattern of occupation by the claimants, it is impossible to resolve the problem by linear settlements and direct allocation of the areas. A cooperative scheme can be a realistic solution similar to the Treaty of the Antarctic where an institutionalization of a cooperative regime had defused conflicts. A delimitarized zone to evolve peace and cooperative development can be achieved with the freezing of territorial claims. Confidence-building measures can be achieved through an agreement to:

1. freeze all territorial claims 2. renounce the use of force and commit themselves to settle all disputes

only by peaceful means 3. cooperate in the regime of the Spratlys International Authority 4. delink the Spratlys dispute from the other issues

There are 2 factors that will have to be considered in the last 2 options:

1. the rigid position that China has taken due to the recent law it enacted 2. the difficulty that the Philippines will have to overcome under Art. 12[2]

Art. 12[2] provides that the ―State shall protect the nation‘s marine wealth in its archipelagic waters, territorial sea, and the exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens.‖ Since Kalayaan Island Group is considered as part of the Philippine territory may not legally enter into joint development of the KIG, as joint development implies joint ownership. One possible option is to enter into joint ventures with other states for exploitation of minerals.

PHILIPPINE OPTIONS TO RESOLVE THE CHINESE EXPANSION IN THE SPRATLYS 1. Military option is out of the question 2. Through regional arrangements under the ASEAN initiative 3. Philippines may also bring the matter to the attention of the UN Security

Council o Difficulty with this is that the Security Council usually does not act unless the

situation actually endangers international peace and security of the nations under Chapter 7 of the UN Charter


o Assuming that the Security Council decides to take the case, China can exercise its veto power

4. File the case in the International Court of Justice o The ―creeping invasion‖ of China involves the international responsibility of a

State and is also a question of international law which are justiciable questions within the jurisdiction of ICJ

o The problem with ICJ is that both parties must agree to submit the case to the Court

5. Bring the matter to an arbitration body upon agreement by both states 6. Bring the case to the International Tribunal of the Law of the Sea—most

feasible option—China manifested its willingness to settle the issue applying the provisions of the UN Convention on the Law of the Sea

STATE CONTROL OF AIRSPACE OVER THE TERRITORIAL SEA AND THE CONTIGUOUS ZONE

At the beginning of the 20th century, the world was faced with a choice between 2 conflicting theories:

1. Freedom of the air 2. National sovereignty over the air

On Oct. 13, 1919, 27 nations at a meeting in Paris signed the Paris Convention where they accepted the doctrine of national sovereignty over the airspace where every power has complete and exclusive sovereignty over the air space above its territory and the latter includes national territory and the territorial waters adjacent thereto. 25 years later, the same principle was affirmed by signing the Chicago Convention 1944. Professor John Cobb Cooper recommends the use of the term ―flight space‖, which if it were adopted, would allow states to control ―so much of universal space above and beyond the surface of the earth as is now used or may hereafter be used as the area in which flight takes place. The ―territorial waters‖ make up the ―territorial sphere of validity‖ of a state, where one state to the exclusion of the other states can carry out its coercive acts. They include the maritime belt and inland waters.

FISHERIES CASE (ICJ REP 116)

FACTS: The Fisheries Case was brought before the Court by the United Kingdom of Great Britain and Northern Ireland against Norway. By a Decree, the Norwegian Government had, in the northern part of the country (north of the Arctic Circle) delimited the zone in which the fisheries were reserved to its own nationals. UK asked the Court to state whether this delimitation was or was not contrary to international law. In its judgment, the Court found that neither

the method employed for the delimitation by the Decree, nor the lines themselves fixed by the said Decree, are contrary to international law. The coastal zone concerned in the dispute is of a distinctive configuration. Its length as the crow flies exceeds 1,500 kilometres. Mountainous along its whole length, very broken by fjords and bays, dotted with countless islands, islets and reefs (certain of which form a continuous archipelago known as the skjaergaard, "rock rampart"), the coast does not constitute, as it does in practically all other countries in the world a clear dividing line between land and sea. The land configuration stretches out into the sea and what really constitutes the Norwegian coastline is the outer line of the land formations viewed as a whole. Along the coastal zone are situated shallow banks which are very rich in fish. These have been exploited from time immemorial by the inhabitants of the mainland and of the islands: they derive their livelihood essentially from such fishing. In past centuries British fisherman had made incursions in the waters near the Norwegian coast. As a result of complaints from the King of Norway, they abstained from doing so at the beginning of the 17th century and for 300 years. But in 1906 British vessels appeared again. These were trawlers equipped with improved and powerful gear. The local population became perturbed, and measures were taken by Norway with a view to specifying the limits within which fishing was prohibited to foreigners. Incidents occurred became more and more frequent, and on July 1935 the Norwegian Government delimited the Norwegian fisheries zone by Decree. Negotiations had been entered into by the 2 Governments; they were pursued after the Decree was enacted, but without success. A considerable number of British trawlers were arrested and condemned. It was then that the UK Government instituted proceedings before the Court. ISSUES and HELD:

1. w/n the lines laid down by the 1935 Decree for the purpose of delimiting the Norwegian fisheries zone have been drawn in accordance with international law

The breadth of the belt of Norwegian territorial sea is not an issue: the 4-mile limit claimed by Norway has been acknowledged by UK. UK denies that they have been drawn in accordance with international law, and it relies on principles which it regards as applicable to the present case. For its part, Norway, whilst not denying that rules do exist, contends that those put forward by the UK are not applicable; and it further relies on its own system of delimitation which it asserts to be in every respect in conformity with international law. The first principle put forward by the UK is that the base-line must be low-water mark. This indeed is the criterion generally adopted in the practice of States. The parties agree as to this criterion, but they differ as to its application. The geographic realities described above, which inevitably lead to the conclusion that the relevant line is not that of the mainland, but rather that of the "skjaergaard", also lead to the rejection of the requirement that the base-line should always follow low-water mark. Drawn between appropriate points on this low-water mark, departing from the physical coastline to a reasonable extent, the base-line can only be determined by means of a geometric construction. Straight lines will be drawn


across well-defined bays, minor curvatures of the coastline, and sea areas separating islands, islets and reefs, thus giving a simpler form to the belt of territorial waters. The drawing of such lines does not constitute an exception to a rule: it is this rugged coast, viewed as a whole, that calls for the method of straight base-lines.

2. w/n there must be a maximum length for straight lines, as contended by UK, except in the case of the closing line of internal waters to which UK concedes that Norway has a historic title

Although certain States have adopted the 10-mile rule for the closing lines of bays, others have adopted a different length: consequently the 10-mile rule has not acquired the authority of a general rule of international law, neither in respect of bays nor the waters separating the islands of an archipelago. Furthermore, the 10-mile rule is inapplicable as against Norway inasmuch as she has always opposed its application to the Norwegian coast. Thus the Court, confining itself to the Conclusions of the UK, finds that the 1935 delimitation does not violate international law. But the delimitation of sea areas has always an international aspect since it interests States other than the coastal State; consequently, it cannot be dependent merely upon the will of the latter. In this connection certain basic considerations inherent in the nature of the territorial sea bring to light the following criteria which can provide guidance to Courts: since the territorial sea is closely dependent upon the land domain, the base-line must not depart to any appreciable extent from the general direction of the coast: certain waters are particularly closely linked to the land formations which divide or surround them (an idea which should be liberally applied in the present case, in view of the configuration of the coast); it may be necessary to have regard to certain economic interests peculiar to a region when their reality and importance are clearly evidenced by a long usage. Having examined the sectors thus criticized, the Judgment concludes that the lines drawn are justified. In one case-that of Svaerholthavet-what is involved is indeed a basin having the character of a bay although it is divided into two large fjords. In another case -that of Lopphavet-the divergence between the base-line and the land formations is not such that it is a distortion of the general direction of the Norwegian coast; furthermore, the Norwegian Government has relied upon a historic title clearly referable to the waters of Lopphavet: the exclusive privilege to fish and hunt whales granted in the 17th century to a Norwegian subject, from which it follows that these waters were regarded as falling exclusively within Norwegian sovereignty. In a third case-that of the Vestfjord-the difference is negligible: the settlement of such questions, which are local in character and of secondary importance, should be left to the coastal State. For these reasons, the Judgment concludes that the method employed by the Decree of 1935 is not contrary to international law; and that the base-lines fixed by the Decree are not contrary to international law either.

THE CORFU CHANNEL CASE FACTS: On May 15, 1946, the British cruisers, Orion and Superb, while passing southward through the North Corfu Channel, were fired at by an Albanian battery in the vicinity of Sarandra. It appeared from the report of the commanding naval officer that the firing started when the ships had already passed the battery and were moving away from it. An Albanian note of May 21st states that the Coastal Commander ordered a few shots to be fired in the direction of the ships ―in accordance with a General Order founded on international law.‖ On October 22, 1946, 2 British warships, Volage and Saunarez, cutside the Bay of Sarandra struck a mine and were heavily damaged. The court found as a fact that the mines had either been laid by Albania or that Albania had knowledge of their being laid. UK Government at once protested to the Albanian Government, stating that innocent passage through straits is a right recognized by international law. Albanian Government asserted that foreign warships and merchant vessels had no right to pass through Albanian territorial waters without prior notification to, and the permission of, Albanian authorities. ISSUE: w/n there UK violated Albanian sovereignty by sending warships through the Strait without having obtained the previous authorization of the Albanian Government HELD: In accordance with international custom, States in time of peace have a right to send their warships through straits used for international navigation between 2 parts of the high seas without the previous authorization of a coastal State, provided that the passage is innocent. Unless otherwise prescribed in an international convention, there is no right for a coastal State to prohibit such passage through straits in time of peace. The Albanian Government does not dispute that the North Corfu Channel is a strait in the geographical sense; but it denies that this Channel belongs to the class of international highways through which a right of passage exists, on the grounds that it is only of secondary importance and not even a necessary rout between 2 parts of the high seas, and that it is used almost exclusively for local traffic to and from the ports of Corfu and Saranda. The decisive criterion is its geographical situation, not the volume of the traffic, as connecting 2 parts of the high seas and the fact of its being used for international navigation. One fact of particular importance is that the North Corfu Channel constitutes a frontier between Albania and Greece, that a part of it is wholly within the territorial waters of these States, and that the Strait is of special importance to Greece by reason of the traffic to and from the port of Corfu. Hence, it is


considered as belonging to the class of international highways through which passage cannot be prohibited by a coastal State in time of peace.

NORTHWEST PASSAGE IN INTERNATIONAL LAW

FACTS: There are 2 basic elements in the definition of an international strait:

1. a geographical element—any narrow natural passage between land connecting 2 seas or large bodies of water

this is unsatisfactory from the legal point of view since it mentions no width and does not necessitate the overlap of territorial waters

2. a functional one Only Straits used for International Navigation will fall within the scope of the proposed Convention. The Convention is silent, however, as to the degree of use required. Eric Bruel, a Danish jurist, suggests that this question, degree of use required, ought to be determined after considering such factors as:

a. number of ships pass through the strait b. total tonnage c. aggregate value of their cargos d. average size of the ship e. whether they are distributed among a greater or small number of nation

Only those straits that are of considerable importance to the international maritime commerce enjoy the peculiar legal position accorded to international straits. ―International‖—the interest attached to the use of these straits is world wide. In 1949, the International Court pronounced in the North Corfu Channel case that the decisive criterion is, to be considered as an international strait, its geographical situation as connecting 2 parts of the high seas and the fact of its being used for international or commercial navigation. ISSUES and HELD:

1. w/n the Northwest Passage may be regarded as an international strait in international law

Since the extension of Canada‘s territorial waters to 12 miles in 1970, there can be no doubt that the Northwest Passage constitutes a legal strait in that there is an overlap of territorial waters. (Geographical Element) The effect is that under any sensible view of the law, Barrow Strait and Prince of Wales Strait are subject to complete Canadian sovereignty. To put it simply, we have undisputed control over 2 of the gateways of the Northwest Passage. The only possible doubt which could remain as to whether or not the Northwest Passage constitutes a legal strait lies in the necessity of it joining ―2 parts of the high seas.‖

Baffin Bay is part of the high seas, but, occasionally, some doubt has been voiced as to whether the waters of the Beaufort Sea are high seas, because of the presence of ice. In spite of the presence of ice, navigation is taking place not only in the Beaufort Sea but is more and more possible in the Arctic Ocean itself. It is no longer possible to deny the Northwest Passage is a legal strait, connecting 2 parts of the high seas. There are only 18 completed transits made through the Northwest Passage routes so far. All 18 crossing listed were experimental in nature, 5 being by foreign ships but with Canada‘s acquiescence. By no stretch of the imagination could the dew foreign American crossings constitute sufficient use for commercial navigation to turn the Northwest Passage into an international strait. (Functional Element) Those who maintain that the Northwest Passage may be classified as an international strait obviously confuse actual use with potential use. The latter is the criterion used by American courts to determine whether a waterway is navigable or not.

2. w/n the Right of Innocent Passage is applicable to Northwest Passage The right of passage is one which applies primarily and, in the traditional sense, exclusively, to the territorial sea. It is only since the 1958 Territorial Sea Convention that the newly enclosed internal waters of archipelagos are subject to the right of innocent passage. Considering that the right of innocent passage applies to territorial waters in general, a fortiori it applies to those territorial waters lying in the Northwest Passage and, therefore, the right of innocent passage in favor of foreign ships unquestionably applies. Under the Territorial Sea Convention, the coastal state may ―suspend temporarily in specified areas of its territorial sea the innocent passage of foreign ships if such suspension is essential for the protection of its security.‖ However, this right of suspension no longer applies when the strait is used for international navigation. Passage is innocent only so long as it is not prejudicial to the peace, good order or security of the Coastal State. Under the ICNT, the right of innocent passage would continue to apply in the Northwest Passage. An act of willful and serious pollution is now considered as being prejudicial to the peace, good order, or security of the Coastal State. When there are clear grounds for a coastal state to believe that a foreign ship has violated its anti-pollution laws during passage through its territorial sea, it may physically inspect and go so far as to arrest the ship. Coastal States have the right to establish and enforce non-discriminatory laws and regulations for the prevention, reduction and control of marine pollution. These


powers of the coastal State extend not only to the establishment of standards but also their enforcement. Insofar as the Northwest Passage is concerned, it would seem that, even if it becomes an international strait, the special provision on ice-covered areas would continue to apply. In spite of the special protection of the Northwest Passage in relation to pollution prevention and control, 2 limitations on the powers of the coastal state would still apply:

1. sovereign immunity for warships—provisions regarding pollution of marine environment shall not apply to any warship, naval auxiliary, other vessels or aircraft owner or operated by a State and used, for the time being, only on government, non-commercial service

2. mode or manner to exercise transit passage

MAGALLONA v. ERMITA FACTS: In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now under scrutiny. The change was prompted by the need to make RA 3046 compliant with the terms of the United Nations Convention on the Law of the Sea (UNCLOS III), which the Philippines ratified. Among others, UNCLOS III prescribes the water-land ratio, length, and contour of baselines of archipelagic States like the Philippines and sets the deadline for the filing of application for the extended continental shelf. Complying with these requirements, RA 9522 shortened one baseline, optimized the location of some basepoints around the Philippine archipelago and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as ―regimes of islands‖ whose islands generate their own applicable maritime zones. Petitioners submit that RA 9522 ―dismembers a large portion of the national territory‖ because it discards the pre-UNCLOS III demarcation of Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines sovereign control over waters, beyond the territorial sea recognized at the time of the Treaty of Paris, that Spain supposedly ceded to the United States. Petitioners argue that from the Treaty of Paris‘ technical description, Philippine sovereignty over territorial waters extends hundreds of nautical miles around the Philippine archipelago, embracing the rectangular area delineated in the Treaty of Paris. This is original action for the writs of certiorari and prohibition assails the constitutionality of RA 9522 adjusting the country‘s archipelagic baselines and classifying the baseline regime of nearby territories. ISSUES and HELD:

1. w/n petitioners possess locus standi to bring this suit

We recognize petitioners‘ locus standi as citizens with constitutionally sufficient interest in the resolution of the merits of the case which undoubtedly raises issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to find other litigants possessing ―a more direct and specific interest‖ to bring the suit, thus satisfying one of the requirements for granting citizenship standing.

2. w/n RA 9522 is unconstitutional UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral treaty regulating, among others, sea-use rights over maritime zones and continental shelves that UNCLOS III delimits. UNCLOS III was the culmination of decades-long negotiations among UN members to codify norms regulating the conduct of States in the world‘s oceans and submarine areas, recognizing coastal and archipelagic States‘ graduated authority over a limited span of waters and submarine lands along their coasts. On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the maritime zones and continental shelf. Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their maritime zones and continental shelves. Even under petitioners‘ theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area delineated in the Treaty of Paris, but from the ―outermost islands and drying reefs of the archipelago.‖ UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and prescription, not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treaty‘s terms to delimit maritime zones and continental shelves. Territorial claims to land features are outside UNCLOS III, and are instead governed by the rules on general international law.

3. w/n the use of UNCLOS III‘s regime of islands framework to draw the baselines, and to measure the breadth of the applicable maritime zones of the KIG, ―weakens our territorial claim‖ over that area

Under RA 3046, as under RA 9522, the KIG and the Scarborough Shoal lie outside of the baselines drawn around the Philippine archipelago. This undeniable cartographic fact takes the wind out of petitioners‘ argument branding RA 9522 as a


statutory renunciation of the Philippines‘ claim over the KIG, assuming that baselines are relevant for this purpose.

4. w/n the KIG‘s (and Scarborough Shoal‘s) exclusion from the Philippine archipelagic baselines results in the loss of ―about 15,000 square nautical miles of territorial waters,‖ prejudicing the livelihood of subsistence fishermen

On the other hand, RA 9522, by optimizing the location of basepoints, increased the Philippines‘ total maritime space (covering its internal waters, territorial sea and exclusive economic zone) by 145,216 square nautical miles. Further, petitioners‘ argument that the KIG now lies outside Philippine territory because the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself. Section 2 of the law commits to text the Philippines‘ continued claim of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and jurisdiction shall be determined as ―Regime of Islands‖ under the Republic of the Philippines consistent with Article 121 of the United Nations Convention on the Law of the Sea (UNCLOS): a) The Kalayaan Island Group as constituted under Presidential Decree No. 1596 and b) Bajo de Masinloc, also known as Scarborough Shoal.

Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the Philippine archipelago, adverse legal effects would have ensued. The Philippines would have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of UNCLOS III requires that ―[t]he drawing of such baselines shall not depart to any appreciable extent from the general configuration of the archipelago.‖ Second, Article 47 (2) of UNCLOS III requires that ―the length of the baselines shall not exceed 100 nautical miles,‖ save for three per cent (3%) of the total number of baselines which can reach up to 125 nautical miles. Although the Philippines has consistently claimed sovereignty over the KIG and the Scarborough Shoal for several decades, these outlying areas are located at an appreciable distance from the nearest shoreline of the Philippine archipelago, such that any straight baseline loped around them from the nearest basepoint will inevitably ―depart to an appreciable extent from the general configuration of the archipelago.‖ Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III‘s limits. The need to shorten this baseline, and in addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:

The amendment of the baselines law was necessary to enable the Philippines to draw the outer limits of its maritime zones including the extended continental shelf in the manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended by R.A. 5446, the baselines suffer from some technical deficiencies.

Hence, far from surrendering the Philippines‘ claim over the KIG and the Scarborough Shoal, Congress‘ decision to classify the KIG and the Scarborough Shoal as ―‗Regimes of Islands‘ under the Republic of the Philippines consistent with Article 121‖36 of UNCLOS III manifests the Philippine State‘s responsible observance of its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III, any ―naturally formed area of land, surrounded by water, which is above water at high tide,‖ such as portions of the KIG, qualifies under the category of ―regime of islands,‖ whose islands generate their own applicable maritime zones. Petitioners‘ argument for the invalidity of RA 9522 for its failure to textualize the Philippines‘ claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty.

5. w/n the law unconstitutionally ―converts‖ internal waters into archipelagic

waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight

Whether referred to as Philippine ―internal waters‖ under Article I of the Constitution39 or as ―archipelagic waters‖ under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes passage. Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress. In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage rights over the territorial sea or archipelagic waters, subject to the treaty‘s limitations and conditions for their exercise. The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes passage does not place them in lesser footing vis-à-vis continental coastal States which are subject, in their territorial sea, to the right of innocent passage and the right of transit passage through international straits. The imposition of these passage rights was a concession by archipelagic States, in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from the coast, as archipelagic


waters subject to their territorial sovereignty. More importantly, the recognition of archipelagic States‘ archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate islands under UNCLOS III. Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24 nautical miles beyond the States‘ territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III. In fact, the demarcation of the baselines enables the Philippines to delimit its exclusive economic zone, reserving solely to the Philippines the exploitation of all living and non-living resources within such zone. Such a maritime delineation binds the international community since the delineation is in strict observance of UNCLOS III. If the maritime delineation is contrary to UNCLOS III, the international community will of course reject it and will refuse to be bound by it. The enactment of UNCLOS III compliant baselines law for the Philippine archipelago and adjacent areas, as embodied in RA 9522, allows an internationally-recognized delimitation of the breadth of the Philippines‘ maritime zones and continental shelf. RA 9522 is therefore a most vital step on the part of the Philippines in safeguarding its maritime zones, consistent with the Constitution and our national interest. WHEREFORE, we DISMISS the petition.

INTERNATIONAL CRIMINAL COURT Jurisdiction, Admissibility and Applicable Law The jurisdiction of the court is limited to the ―most serious crimes of concern to the international community as a whole‖

e. Genocide f. Crimes against humanity g. War crimes h. Crime of aggression – once a provision defining it and setting out the

conditions is adopted by the State Parties to the Statute Exercise of jurisdiction is triggered by a

d. referral to the Prosecutor by a State Party e. referral to the Prosecutor by the Security Council f. investigation initiated motu propio by the Prosecutor

Double jeopardy applies Investigation and Prosecution Investigation – initiated by the Prosecutor after prior evaluation of the information Pre-trial Chamber – oversees the prosecutorial investigations and ensure that the defendant‘s rights are protected

After investigation, Pre-trial Chamber issues a warrant of arrest of a person if there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court Trial Trial in absentia is not allowed Reparations to victims are provided for Penalties

d. Imprisonment – may not exceed a maximum of 30 years e. Life imprisonment f. Fines and forfeiture of the proceeds, property and assets derived from

a crime Death penalty is excluded Appeal and Revision Grounds:

d. Procedural error b. Error of fact c. Error of law Enforcement Sentences of imprisonment shall be served in States which have indicated their willingness to accept sentenced persons If no State is designated, sentence shall be served in a prison facility made available by the Host State Principle of Complementarity ICC can only step in when national authorities are unwilling or unable to act Final Clauses Reservations to the Statute are not permitted DIRECT v. INDIRECT OBLIGATIONS OF CORPORATIONS UNDER INTERNATIONAL

LAW The classic model does not insist that only State conduct can give rise to a violation of international law. On this basis, it has been argued that the conduct of a corporation might give rise to a violation of international law ―in failed states: if ―there is a complete non-regulation of corporate activities‖ and infringement of human rights results from the corporation‘s activities. In such circumstances, the conduct of the corporation would be attributable to the state for purposes of international law. Similarly, the conduct of non-state actors can give rise to responsibility under international law ―if and to the extent that the State acknowledges and adopts the conduct in question as its own.‖


Though seemingly quite formal, the distinction between obligations imposed directly by international law and those imposed indirectly is of some importance to both sates and non-states actors addressed by the norm. For corporate managers and directors, the difference is potentially crucial. If international law imposes obligations on corporations only indirectly, then managers and directors need concern themselves, as legal matter, only with the domestic laws of the States in which they operate. If international law directly imposes obligations on corporations, the corporation will be potentially subject to enforcement action by international institution, either in existence or created after the fact.

THE TOKYO CONVENTION OF 1963 A crime may be considered as having been committed in the state of registry of the aircraft, but the jurisdiction in another state may be had if the offense:

a. has an effect in its territory b. has been committed by or against its national or permanent resident c. against its national security d. when it relates to a breach of its rules on national flight e. is a subject of an exercise of jurisdiction and necessary to ensure the

observance of an obligation of such state under multilateral agreement

S.S. LOTUS (1920) PERMANENT COURT OF INTERNATIONAL JUSTICE Facts: A collision occurred between the French mail steamer Lotus and Turkish boiler Boz-Kourt in the high seas on the way to Constantinople, bisecting and sinking the Boz-Kourt and resulting in the death of 8 Turkish nationals. Monsieur Demons, a French citizen, and the lieutenant and first officer of the Lotus was arrested by the Turkish police on a charge of manslaughter. He was sentenced to 80 days imprisonment and a fine of 22 pounds. Issue: W/N Turkey violated principles of international law in exercising its criminal jurisdiction upon Demons Decision: The French Government contends that the Turkish courts, in order to have jurisdiction, should be able to point to some title to jurisdiction recognized by international law in favor of Turkey. On the other hand, the Turkish Government takes the view that Art. 15 of the Convention of Lausanne (respecting conditions of residence and business and jurisdiction) allows Turkey jurisdiction whenever such jurisdiction does not come into conflict with the principle of international law. The court rules in favor of Turkey. International law governs relations between independent States and its binding power upon the States emanates from their own free will expressed by conventions

or usages generally accepted as expressing principles of law. Thus restrictions upon the independence of States can‘t be presumed. One such restriction imposed by international law is that a State, failing the existence of a permissive rule to the contrary, may not exercise its power in any form in the territory of another State. Jurisdiction is territorial and may not be exercised outside the State‘s territory without a permissive rule. However, international law does not prohibit a State from exercising its jurisdiction in its own territory, in respect of any case which relates to acts which may have taken place abroad, and in which it cannot rely on some permissive rule of international law. All that is required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests on its sovereignty. The territoriality of criminal law is not an absolute principle of international law and by no means coincides with territorial sovereignty. The Court therefore must ascertain whether there exists a rule in international law limiting the freedom of States to extend the criminal jurisdiction of their courts to a situation uniting the circumstances of the present case. The arguments of the French Governement: International law does not allow a State to take proceedings with regard to offenses committed by foreigners abroad, simply by reason of the nationality of the victim. International law recognizes the exclusive jurisdiction of the State whose flag is flown as regards to everything which occurs on board a ship in the high seas. This principle is especially applicable in a collision case. Court Ruling: There is no such rule in international law. It has not been argued that States recognize themselves to be under an obligation towards each other only to have regard to the place where the author of the offense happens to be at the time of the offense. Territoriality of criminal jurisdiction has been interpreted to mean that offenses, the authors of which at the moment of commission are in the territory of another State, are nevertheless to be regarded as having been committed in the national territory, if one of the constituent elements of the offense, and more especially its effects, have taken place there. Since the effects were admitted to have been produced in the Turkish vessel, it becomes impossible to hold that there is a rule in international law that prohibits Turkey from prosecuting Demons because of the fact that the offender was on board a French ship. Prosecution then may be justified, not under the nationality principle but under the territorial principle.] The principle of freedom of the seas recognizes that apart from special cases defined by International law, vessels in the high seas are subject to no authority except that of the State whose flag they fly. But it does not follow that a State can never in its own territory exercise jurisdiction over acts which have occurred on board a foreign ship on the high seas. If the guilty act produces its effects on a vessel flying another flag or in foreign territory, the same principles must be


applied as if the territories of two different States were concerned. There is no prohibition in International law against a State whose ship experiences the effects of an offense, from treating it as having been committed in its territory. Despite the fact that Municipal jurisprudence barely encounters questions on jurisdiction in collision cases, it does not imply that States have recognized an obligation to abstain as an international custom. There is no rule in International law in regard to collision cases to the effect that criminal proceedings are exclusively within the jurisdiction of the State whose flag is flown. Conclusion: The offense for which Demons was prosecuted originated on board the Lotus while its effect made themselves felt on Boz-Kourt. These two elements are legally inseparable. Neither exclusive jurisdiction of either State, no the limitations of the jurisdiction of each to occurrences which took place on the respective ships would satisfy the requirements of justice and effectively protect the interests of the 2 States. It is only natural that each should be able to exercise jurisdiction and to to so in respect of the incident as a whole. Thus, it is a case of concurrent jurisdiction.

THE ATTORNEY-GENERAL OF THE GOVERNMENT OF ISRAEL V. EICHMANN (1962)

DISTRICT COURT OF JERUSALEM Facts: Counsel for Eichmann objected to the jurisdiction of the Court on the ground that the crimes predated the establishment of Israel, thus there was no wrong done to the State of Israel. Decision: The Court recognized Universal Authority, namely the authority of the forum deprehensionis (the Court of the country in which the accused is actually held in custody). Whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes by its own nationals wherever committed, it is also recognized as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such has placed himself beyond the protection of any state. He is no longer a national but hostis humani generis and as such, he is justiciable by any State anywhere. Hugo Grotius adds that kings and any who have rights equal to the right of kings may demand punishment be imposed not only for wrongs committed against them or their subject but also for all such wrongs as do not specifically concern them, but violate in extreme form, in relation to any persons, the Law of Nature or the Law of Nations. Thus he pronounces that crimes against humanity are crimes under the law of nations and there exists a universal jurisdiction over them. Hyde adds that in order to justify the criminal prosecution by a State of an alien on account of an act committed and consummated by him in a place outside of its territory, it need to be established that there is a close and definite connection between the act and the prosecutor. The connection is apparent when the act is one which the law of nations itself renders internationally illegal or regards as one which any member of the international society is free to oppose and thwart.

The UN War Crimes Commission has adopted the universality of jurisdiction over war crimes, particularly where for some reason, the criminal would otherwise go unpunished. The crimes that are dealt with in this case are not crimes under Israel law alone, but are in essence offenses against the law of nations. The crime against the Jewish people is defined on the pattern of the genocide crime defined in the ―Convention for the prevention and punishment of genocide‖ which was adopted by the UN Assembly. The ―Crime against Humanity‖ and ―war crime‖ are defined in the Charter of the International Military Tribunal which is the statute of the Nuremberg Court. Genocide is the denial of the right to existence of entire human groups, shocking to the conscience of mankind, resulting in great losses to humanity and contrary to moral law and to the spirit and aims of the UN. The ICJ Advisory Opinion on reservations of the Convention point out that the principles underlying the convention are recognized by civilized nations as binding on States, even without any conventional obligation. Further, both the condemnation of genocide and the obligation to cooperate in the eradication of genocide is universal in character. Conclusion: There is no doubt that genocide is recognized as a crime under international law and that such crimes, as committed against the Jewish people are under the universal jurisdiction.

IN THE MATTER OF THE REQUESTED EXTRADITION OF JOSEPH PATRICK THOMAS

DOHERTY (1984) Facts: Doherty was a member of the Provisional Irish Republican Army who had participated in a PIRA organized ambush of a British Army convoy in Northern Ireland, which resulted in the death of a British soldier. Doherty was arrested but escaped to the US. Northern Ireland convicted Doherty in absentia. Petitioner US, on behalf of UK, requested the extradition to the UK of Doherty. Doherty contends that his conduct was not an extraditable offense under the Treaty‘s political offense exception. The US court decided that the offenses were political in nature and thus denied the extradition request. Issue: W/N Doherty‘s offense was non-extraditable under the US-UK extradition treaty Decision: Under the political offense exception, it is enough that there is an existence of a political conflict and an offense is committed during the course and in furtherance of the conflict. The Court further identified other factors: the nature of the act, the context in which it was committed, the status of the party committing the act, the nature of the organization on whose behalf it was committed, and the particularized circumstance of the place where it took place.


Doherty‘s actions fell within the exception since: 1. they took place in the area where change was to be effected, 2. they did not clearly violate the Geneva Convention and International law, 3. they were directed in furtherance of military objectives, 4. there were not aimed at civilians. The court denied that the informality of guerilla warfare rendered such activities beyond the political offense treatment. Furthermore, PIRA‘s organizational qualities, hierarchical command structure, internal system of discipline and integration of activities illustrated its political character.

IN THE MATTER OF THE REQUESTED EXTRADITION OF DOHERTY Facts: Defendant Joseph Doherty was a member of the Irish Republican Army (IRA). He was convicted in Northern Ireland in 1981 for the murder of a British SAS captain, attempted murder of other SAS officers, illegal possession of firearms and ammunition, and for offenses relating to his escape from a prison in Belfast, wherein Doherty escaped from custody by dressing in a guard uniform and tricking soldiers into holding their fire by shouting that he was a policeman. Doherty was later apprehended by the United States Immigration and Naturalization Service in New York City, and the British government filed a formal extradition request. Held: In responding to Doherty's argument that the murder was a political crime, the court laid out several factors for determining whether an offense is political in nature. First, the nature of the act must be assessed, along with the context in which it is committed, the status of the party committing the act, the nature of the organization for which it is committed, and the particularized circumstances of the place where offense occurred. The court noted ―no act [would] be regarded as political where the nature of the act is such as to be violative of international law, and inconsistent with international standards of civilized conduct.‖ Ultimately, Doherty's acts were found to be political offenses because they were ―under the direction of the PIRA and to effect its purposes rather than those of Doherty himself.‖

GERALD FITZGERALD, “OFFENCES AND CERTAIN OTHER ACTS COMMITTED ON

BOARD AIRCRAFT: THE TOKYO CONVENTION OF 1963” The Tokyo Convention had 2 objectives:

1. to ensure that, the case of offense against penal law committed on board aircraft, there will always be a jurisdiction in which a suspected offender may be tried and

2. to authorize the aircraft commander and others to take certain steps such as restraint of persons who commit, or are about to commit on board an aircraft an offense which jeopardizes the safety of the aircraft or persons or property therein

Dual rules: The convention applies if the offense or other act takes place on board of any aircraft registered in a contracting state while it is in flight or on the surface of the high seas or in any other area outside the territory of any state the power of the

aircraft commander will not apply to offenses committed or about to be committed by a person on board in the airspace of the state of registration, or over the high seas, or any other area outside the territory of any state Uniform Rule on jurisdiction in the Rome Draft: The state of registration may exercise jurisdiction over both offenses and acts committed on board an aircraft. ―Acts‖ pertain to civil violations of air regulations. Existing extradition arrangements are affected. Offenses committed on aircraft registered to a contracting state are to be treated for the purpose of extradition as if they had been committed not only in the place where they occurred but also in the territory of the state of registration. The Convention does not create an obligation to grant extradition. A crime may be considered as having been committed in the state of registry of the aircraft, but the jurisdiction in another state may be had if the offense:

f. has an effect in its territory g. has been committed by or against its national or permanent resident h. against its national security i. when it relates to a breach of its rules on national flight j. is a subject of an exercise of jurisdiction and necessary to ensure the

observance of an obligation of such state under multilateral agreement

GULF OF MAINE CASE Held: US believed that delimitation should be effected on the basis of the applicable principles and rules of international law. Canada concentrated its efforts on deducing these other rules of maritime delimitation from the concept of geographic adjacency since it was convinced that this concept constituted the ―basis of title‖ of the coastal State to the partial extension of its jurisdiction to the continental shelf and the waters of which it formed the bed. In the Chamber‘s opinion, it is therefore correct to say that international law confers on the coastal State a legal title to an adjacent continental shelf or to a maritime zone adjacent to its coasts: it would not be correct to say that international law recognizes the title conferred on the State by the adjacency of that shelf or that zone, as if the mere natural fact of adjacency produced legal consequences.

LIBYA / MALTA CONTINENTAL SHELF CASE

Held: One of the relevant circumstances to be taken into account for the delimitation of the continental shelf of a State is the legally permissible extent of the exclusive economic zone appertaining to that same State. This does not mean that the concept of the continental shelf has been absorbed by that of the exclusive economic zone; it does however signify that greater importance must be attributed to elements such as distance from the coast which are common to both concepts.


The institution of the exclusive economic zone is shown by the practice of States to have become a part of customary law. For Malta, reference is the ―distance principle,‖ while for Libya, the natural prolongation. Although the institutions of the continental shelf and the exclusive economic zone are different and distinct, the rights which the EEZ entails over the seabed of the zone are defined by reference to the regime laid down for continental shelf. Although there can be continental shelf without EEZ, there can be no EEZ without a corresponding continental shelf. It follows that the distance criterion must not apply to the continental shelf as well as to the EEZ.

EXTRADITION TO AND FROM CANADA

Held: The first things to determine are whether there is an extradition treaty with that country and whether the crime is listed in the treaty. However, in some cases, foreign governments will surrender or deport fugitives to Canada in the absence of a treaty. The requirements for extradition to Canada are similar to those for extradition from Canada. Canada must make a formal requisition for surrender from the foreign state, which must be accompanied by such evidence as would be sufficient to warrant the foreign country to commit the fugitive for trial if the crime had been committed in that country.

US V. FIRST NATIONAL CITY BANK

Facts: The Commissioner of Internal Revenue, having made jeopardy assessments of some $19,000,000 against a Uruguayan corporation, served with notices of levy and of federal tax lien respondent bank in New York, in whose Montevideo branch the corporation maintained a deposit. Concurrently, petitioner brought a foreclosure action in Federal District Court against the corporation, respondent, and others, pending determination of which an injunction was sought against transfer by respondent of any property or rights held for the corporation's account. Respondent, but not the corporation, was personally served. The District Court granted a temporary injunction under 26 U.S.C. § 7402(a), which gives district courts power to grant injunctions "necessary or appropriate for the enforcement of the internal revenue laws," and the Court of Appeals reversed. Held: The District Court has jurisdiction to preserve the status quo and prevent further dissipation of assets by issuing its temporary injunction "freezing" the corporation's account in respondent's foreign branch pending personal service on the corporation. (a) Rules 4(e) and (f) of the Federal Rules of Civil Procedure provide for service in accordance with a state statute of a non-inhabitant or person not found in the State.

(b) Under § 302(a) of the New York Civil Practice Law and Rules, which became effective after the temporary injunction was issued, out-of-state personal service may be made as provided in § 313 on a non-domiciliary transacting business within the State, a remedy which New York law makes applicable to further proceedings, such as are involved here, in an action pending on the effective date of the statute. (c) Issuance of the injunction under 26 U.S.C. § 7402(a) was a proper exercise of the equity power of the District Court, particularly as it was acting in the public interest. (d) Respondent's foreign branch was not a "separate entity" without the reach of the District Court's in personam order. (e) The District Court reserved power to enter a protective order upon a showing, though none has been made, that the "freezing" of the foreign branch account would violate foreign law or subject respondent to the risk of double liability, and that court is open to any representations which the Executive Branch might make that such "freezing" would embarrass this country's foreign relations.

PRINCETON PRINCIPLES ON UNIVERSAL JURISDICTION Universal Jurisdiction – criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction

o May be relied by a state as basis for seeking the extradition of a person accused or convicted of committing a serious crime under international law provided that it has established a prima facie case of the person‘s guilt and that the person sought to be extradited will be tried or the punishment carried out in accordance with international norms and standards on the protection of human rights in the context of criminal proceedings

o With respect to serious crimes under international law, national judicial organs may rely on universal jurisdiction even if their national legislation does not specifically provide for it

o Double jeopardy applies Serious crimes under international law: (not exclusive)

1. Piracy 5. Crimes against humanity 2. Slavery 6. Genocide 3. War crimes 7. Torture 4. Crimes against peace

Defenses not applicable to serious crimes under international law

1. Immunities 2. Statutes of limitations 3. Amnesties

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