Remedies of Parties

Reprisal v . retorsion
Reprisal
-Acts of self-help by the injured State acts in
retaliation for acts contrary to IL on the part of
offending state, which have remained
undressed after a demand for amends
-rule of IL is temporarily suspended in the
relations bet. 2 states
-Gr:Illegal xpn: based upon a previous act
contrary to IL.
-threat or use of force
-employed as retaliation to compel an enemy
that committed certain acts in violation of the
laws of war

expressed by means of ratification

-Negotiating States were agreed that
ratification should be required
-the consent of a State to be bound by a
Retorsion
treaty is expressed by acceptance or
-unfriendly, discourteous or unfair acts in
approval under conditions similar to those
retaliation to acts of the same or similar kind but
which apply to ratification
they are not UNLAWFUL
Exchange of Instrument
-retorsions are not to be associated w/ reparation
-consent of a State to be bound by a treaty
as a duty arising from breach of obligation under
may be expressed signature, exchange of
IL
instruments or by any other means if so
agreed
-that exchange will be expressed the
instruments provide that their exchange
shall have that effect
International Custom

Countermeasures

Article 38

-a situation arises which in ones view results in

the violation of an international oblig by
another State, the first State is entitled, w/in
limits set by general rules of international law
pertaining to the use of armed force, to affirm
its rights

Rules in a treaty becoming binding on third

States through international custom

General International Law

-norms of IL which are valid for all the states of
the worlds
-as a matter of fact, customary law

Stages in the Adoption of a Treaty

Negotiation
-done through foreign ministries. The
negotiators must possess powers to
negotiate. An act relating to the conclusion
of a treaty by one who has no proper
authorization has no legal effect unless
confirmed by his state
-conclude w/ the signing of the document
-the sig serve as authentication of the
document
Execution/Signing
-Consent to be bound by a treaty expressed
by signature sig of its representatives
-negotiating States agreed that signature
should have the effect or
-intention of the State to give effect to the
sig appears from the full powers of its
representative or was expressed during the
negotiation
Ratification
-treaty provides for such consent to be

Nothing in articles 34 to 37 precludes a rule set

forth in a treaty from becoming binding upon a
third State as a customary rule of international
law, recognized as such.
Particular International Law
of Law Recognized by
-validGeneral
only for Principles
certain states
Civilized
Nations
-normally
created
by treatise; but it may also be
created by a particular custom in the
Estoppel of which only some states
establishment
participate
-widely recognized to apply in ICJ
proceedings.
-bars a party from going back on its previous
representations when those representations
have induced reliance or some detriment on
the part of others.
Pacta sunt servanda(treaties shall be
complied with, )
-Article 26 of the VCLT states, [e]very treaty
in force is binding upon the parties to it and
must be performed by them in good faith.
-The good faith element of this principle
suggests that states should take the
necessary steps to comply with the object
and purpose of the treaty. States may not
invoke restrictions imposed by domestic law
as good reason for not complying with their
treaty obligations provided the instrument
was duly ratified by competent authorities
and in accordance with constitutional and
statutory requirements.

Consent
a state is not "bound" by a rule

influence in the creative period of the

development of the Anglo-American law.
Some of these maxims are, Equality is
equity; He who seeks equity must do
equity.

of international law unless it had previously

"consented" to that rule is an extreme fo
rm of the positivist tradition in international
jurisprudence
Res Judicata(a thing adjudicated)
-encapsulates the principle inherent in all
judicial systems which provides that an
earlier adjudication is conclusive in a second
suit involving the same subject-matter and
same legal bases.
Prescription
- recognized as a mode of acquiring
sovereignty over territory. Like occupation,
however, prescription requires effective
control. But unlike occupation, the object of
prescription is not terra nullius. Thus the
required length of effective control is longer
than in occupation. Moreover, prescription
might be negated by a demonstrated lack of
acquiescence by the prior occupant.
Due process
- nternational concept of due
process. There must be, for instance, an
opportunity for [a] full and fair
trial abroad before a court of competent
jurisdiction; regular
Principles of justice, equity and peace
principle of justice, involving an ideal of
accountability and fairness in the protection
and vindication of rights and the prevention
and punishment of wrongs.

Soft law
-Others prefer to call this category non-treaty
agreements. They are
international agreements not concluded as
treaties and therefore not covered by the
Vienna Convention on the Law of Treaties.
-Soft law plays an important role in
international relations because often
states prefer non-treaty obligations as a
simpler and more flexible foundation for
their future relations.
article 38(1)(d) icj statute
The Court, whose function is to decide in
accordance with international law such
disputes as are submitted to it, shall apply
d. subject to the provisions of Article 59,
judicial decisions and the teachings of the most
highly qualified publicists of the various
nations, as subsidiary means for the
determination of rules of law.
Are judicial decisions and teachings of
publicists sources of IL?
-No. They are described as subsidiary means
for determination of rule of law. Indirect and
secondary evidence of rules created by treaty,
custom, and general principles of law
Elements of a State
TERRITORY

Principle of equity that where two parties

have assumed an identical or a reciprocal
obligation, one party which is engaged in a
continuing non-performance of that
obligation should not be permitted to take
advantage of a similar non-performance of
that obligation by the other party. The
principle finds expression in the so-called
maxims of equity which exercised great

It is the fixed and permanent portion on the

earths
surface inhabited by the people of the state
and
over which it has supreme authority. It consists
of
the portion of the surface of the globe on which

that State settles and over which it has

supreme
authority
The size is irrelevant San Marino v. China BUT,
practically, must not be too big as to be
difficult to
administer and defend; but must not be too
small

the unexplored interior

b) Right of Contiguity
Effective occupation of a territory makes
the possessors sovereignty extend over
neighboring territories as far as is
necessary for the integrity, security and
defense of the land actually occupied

as to unable to provide for peoples needs

ACCRETION
Modes of Acquisition of Territory
DISCOVERY and OCCUPATION
- An original mode of acquisition of territory
belonging to no one terra nullius( a territory
is not

- the increase in the land area of a State

caused by the operation of the forces of
nature, or artificially, through human labor
- Accessio cedat principali (accessory
follows the principal) is the rule which, in

necessarily uninhabited)

general, governs all the forms of

- land to be acquired must be terra nullius

accretion.

Discovery/Possession a Mere discovery gives

only an Inchoate Right of Discovery

o Examples: (1) Reclamation

Doctrine of Effective Occupation

- discovery alone gives only an inchoate title; it
must be followed within a reasonable time by
effective occupation
- effective occupation does not necessarily
require continuous display of authority in every
part of the territory claimed
- an occupation made is valid only with respect
to and extends only to the area effectively
occupied.
- under the Principle of Effective
Occupation, the following
doctrines/principles are no longer applicable
today:
a) Hinterland Doctrine
Occupation of coasts results to claim on

projects in Manila Bay; (2) Polders

of the Netherlands
PRESCRIPTION
- acquisition of territory by an averse holding
continued through a long term of years
- derivative mode of acquisition by which
territory belonging to 1 State is transferred
to the sovereignty of another State by
reason of the adverse and uninterrupted
possession thereof by the latter for a
sufficiently long period of time
Requisites
a) continuous and undisturbed possession
- The possessions remain undisturbed
nothwithstanding claims or protests.
b) lapse of a period of time
- No rule as to length of time required

- Question of fact

- EX: Cession of a portion of the

. CESSION

Horse-Shoe Reef in Lake Erie

- a derivative mode of acquisition by which

by UK to US

territory belonging to 1 State is transferred

to the sovereignty of another State in

CONQUEST

accordance with an agreement between

- derivative mode of acquisition whereby the

them

territory of 1 State is conquered in the course

- a bilateral agreement whereby one State

of war and thereafter annexed to and placed

transfers sovereignty over a definite portion

under the sovereignty of the conquering State

of territory to another State

- the taking possession of hostile territory

E.g. Treaty of cession (maybe an outcome

through military force in time of war and by

of peaceful negotiations [voluntary] or the

which the victorious belligerent compels the

result of war[forced])

enemy to surrender sovereignty of that

2 KINDS:

territory thus occupied

1. Total Cession

- acquisition of territory by force of arms

- comprises the entirety of 1 States

- however, conquest alone merely gives an

domain

inchoate right; acquisition must be completed

- the ceding State is absorbed by the

by formal act of annexation

acquiring State and ceases to exist

- no longer regarded as lawful

- EX.: Cession of Korea to Japan under

- UN Charter prohibits resort to threat or use of

the 22 Aug. 1910 Treaty

force against a States territorial integrity or

2. Partial Cession

political independence

- comprises only a fractional portion of

Conquest is Different from Military or

the ceding States territory

Belligerent Occupation

- cession of the Philippine Islands by

- Act whereby a military commander in the

course of war gains effective possession of an

Spain to the US in the Treaty of Paris

of 10 Dec. 1988
- Forms:
a) Treaty of Sale

enemy territory
- By itself, does not effect an acquisition of
Territory

- (1) Sale by Russia of Alaska to

Bases for States Exercise of Criminal

jurisdiction

US

Territoriality principle

- Sale by Spain of Caroline

Principle

Islands to Germany

all persons, property, transactions

b) Free Gifts

and occurrences within the territory of a

State are under its jurisdiction, as well as

Extradition of Natural Persons

over certain consequences produced within

- It is the process by which persons charged

the territory by persons acting outside it.

with or convicted of crime against the law of a

vests jurisdiction in state where

State and found in a foreign State are returned

by

offense was committed

the latter to the former for trial or punishment.

It
Nationality principle
a State may punish offenses
committed by its nationals anywhere in
the world.
vest jurisdiction in state of
offender
Protective or security principle
States claim extraterritorial
criminal jurisdiction to punish crimes
committed abroad which are prejudicial to
their national security or vital interests,
even where the offenses are perpetrated
by non-nationals.
vest jurisdiction in state whose
national interests is injured or national
security compromised
counterfeiting, treason, espionage
Universality principle
A State has extraterritorial
jurisdiction over all crimes regardless of
where they are committed or who
committed them, whether nationals or
non-nationals. This is, however, generally
considered as forbidden.
vest jurisdiction in state which
has custody of offender of universal crimes
piracy, genocide

applies to those who are merely charged with

an
offense but have not been brought to trial; to
those
who have been tried and convicted and have
subsequently escaped from custody; and those
who
have been convicted in absentia. It does not
apply
to persons merely suspected of having
committed
an offense but against whom no charge has
been
laid or to a person whose presence is desired
as a
witness or for obtaining or enforcing a civil
judgment.
Fundamental Principles Governing Extradition:
a)There is no legal obligation to surrender a
fugitive unless there is a treaty.
b)Religious and political offenses are generally
not extraditable.
c)A person extradited can be prosecuted by the
requesting state only for the crime for which
he was extradited; and
d)Unless provided for in a treaty, the crime for
which a person is extradited must have been
committee
People

Estrada
a reaction to the
Tobar/Wilson
Doctrine; formulated
by Mexican Foreign
Minister Genaro
Estrada
disclaims right of
foreign states to
rule upon legitimacy
of a government of a
foreign State
a policy of never
issuing any
declaration giving
recognition to
governments
instead, it simply
accepts
whatever
government is in
effective
control without
raising the issue of
recognition

Tobar
suggested by
Foreign Minister
Tobar (Ecuador);
Notes: recognition
is withheld from
governments
established by
revolutionary
means revolution,
civil war, coup
detat,
other forms of
internal violence,
UNTIL,
freely elected
representatives of
the
people have
organized a
constitutional
government

may apply to and appear before the Court. The

Member States of the United Nations (at
present
numbering 191) are so entitled.
Article 34(1): Only states may be parties in
cases before the Court.
2. Article 36(1): The jurisdiction of the
Court comprises all cases which the parties
refer to it and all matters specially provided
for in the Charter of the UN or in treaties and
conventions in force

ICC
Rome Statute
Has criminal
jurisdiction to
prosecute individuals

Who may request the ICJ to render advisory

Individuals

opinions?

The ICC is
independent of the
UN

A: Under the UN Charter, The General

Assembly or
the Security Council may request the
International
Court of Justice to give an advisory opinion on
any
legal question.
Other organs of the United Nations and
specialized
agencies, which may at any time be so
authorized
by the General Assembly, may also request
advisory

ICJ
UN Charter
As to jurisdict
Does not have
criminal
jurisdiction to
prosecute individuals
States
The ICJ is the
principal judicial
organ of the UN

Genocide
International Criminal Court defines these crimes,
thus:
Article 6. Genocide
For the purpose of this Statute, genocide" means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the
group;
(c) Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the
group;
(e) Forcibly transferring children of the group to another
group.

opinions of the Court on legal questions arising

within the scope of their activities.

Crimes against Humanity

Who may file contentious cases?

population, with knowledge of the attack:

Only states can file contentious cases and both

(a) Murder;

must agree to the courts jurisdiction. Only

States

(b) Extermination;

(c) Enslavement;

is the use of armed force by a state

(d) Deportation or forcible transfer of

population;

against the sovereignty or territorial integrity

or

(e) Imprisonment or other severe deprivation of

political independence of another state or in

any

physical liberty in violation of fundamental

rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution,
forced
pregnancy, enforced sterilization, or any other
form of sexual
violence of comparable gravity;
(h) Persecution against any identifiable group
or

other manner inconsistence with the UN

Charter.

War crimes
Grave breaches of the Geneva Conventions of
12 August 1949, namely, any of the following
acts against persons or property protected
under the provisions of the relevant Geneva
Convention. ...
(i) Wilful killing;

collectivity on political, racial, national, ethnic,

cultural,

(ii) Torture or inhuman treatment, including

biological experiments;

religious, gender as defined in paragraph 3, or

other grounds that are universally recognized
as impermissible under international law, in
connection with any act referred to in this
paragraph or any crime within the jurisdiction
of the Court;

(iii) Wilfully causing great suffering, or serious

injury to body or health;

(i) Enforced disappearance of persons;

(v) Compelling a prisoner of war or other

protected person to serve in the forces of a
hostile Power;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character
in
tentionally causing great suffering, or serious
injury to body or to mental or physical health.
Crimes of aggression

(iv) Extensive destruction and appropriation of

property, not justified by military necessity and
carried out unlawfully and wantonly;

(vi) Wilfully depriving a prisoner of war or other

protected person of the rights of fair and
regular trial;
(vii) Unlawful deportation or transfer or
unlawful confinement;
(viii) Taking of hostages.