PIL Notes - JDizzle

The reason why we have law:

Shared values considered important by all forms part of a normative system
Higgins: Normative system authoritative decision-making
Just like domestic law, international law is not about sanctions but the promotion of
common good through particular forms of conduct - may be manifested through
sanctions AND incentives
Higgins: Violation of a rule mark the beginning of a new norm i.e. Slavery
Advantages of redefinition of normative system and authoritative
decision-making process
1. Avoids gaps in the law
2. Narrows the gap of what the law is and what the law should be West Africa
case: Apartheid is not a legal issue but a moral and ethical issue
a. Rules-based approach if issue is not of a legal character, theres no
jurisdiction
b. Policy-based approach i.e. presumption of extinction of statehood
3. Decentralizes international law not limited to studying what the ICJ had
ruled
Where to find international law? Article 38 of the ICJ
1. International conventions
a. Treaties
i. Multilateral
ii. Trilateral
2. International customs/customary international law, as evidence of a general
practice accepted as law
a. State practice is the evidence of custom
3. General principles of law recognized by civilized nations
a. Principles of municipal law
b. Consistently recognized by all legal traditions but not necessarily
jurisdictions
4. Subject to the provisions of Article 59, judicial decisions and teachings
*Not the only source, but reflective of where to find sources of international law
*There is a hierarchy of notes between the primary sources and subsidiary sources
ICJ decisions do not provide for any norms and thus, not a source of
international law
- Decisions only provide evidence of what should be applicable norms
- Not formal, primary sources but subsidiary source of international law
Publicists most highly qualified
1. Grotius - mare liberum
2. Vattel

Customary sources
- Leading authorities on customary sources:
o Kuroda v. Jalandoni
Assailed the constitutionality of the EO of President Roxas creating
a war crimes tribunal
Argument:
o No law
o Philippines not a signatory/party to a treaty
SC: International law is binding on the Philippines
automatically upon adopting the Organic Acts; part of the
laws of the land we have constitutionalized the binding
nature of international law as if they were domestic statutes,
thus forming part of the law of the land
Customary laws are like domestic statutes
o Yamashita v. Styer
Justice Perfectos dissent
Proper remedy is Habeas Corpus
o Philippines not a party to the Geneva Convention US
and Japan were
o No domestic court
o Laws and customs of war
o Humanitarian law is customary in nature by its
universal appeal to humnan conscience, ...recognized
by all civilizations of the world
o North Sea cases
Arguing about the continental shelf of the north sea resources
Continental shelf natural prolongation of the land mass it begins
when the territory of the sea ends
Equidistant principle get the midpoint and divide equally
States with shorter coastlines get the same portion of a
continental shelf
Netherlands-Denmark equidistant principle crystallized into
a norm
Customs
Virtual Uniformity state practice found in treaties
o Number of signatories
o Declaration of courts
Opinio juris et necessitatis
o Statements made
o International bodies
o A recognition by states that a certain practice is
obligatory
Februray 5, 2015
North Sea Cases
1. To be customary, it must be fundamentally norm creating
a. Geneva Convention, Article 6 only convenient

b. Ratification does not prove that its customary

c. Signature no effect; reservation is what binds the countries
d. Time not important; what is important is evidence of:
i. State practice
ii. Opinio Juris
2. Equitable principle resulting to equitable solution preferred in resolving
MARITIME disputes
Nicaragua v. USA
1. Evidence examined by the court to support the conclusion that there is no
customary law
a. Principle of Non-intervention
i. UN Charter, Article 2
b. Threat of use of force
i. UN Charter Art. 2(4)
1. All States shall refrain in their international relations
from the use and threat of force against the territorial
integrity...of other States
ii. UNGA Res. 2625
1. Every State has the duty to refrain from the threat or
use of force
iii. UN Charter Art. 43
iv. US Resolution of the 6th International Conference of American
States
v. Montevideo Convention, Art. 11
1. Not to recognize territorial acquisitions by force
vi. Helsinki Final Act
1. Refrain from threat or use of force
vii. Frequently referred to in statements by State
representatives
viii. ILC Commentary to Art. 50 of Draft Articles on Law of Treaties
1. The law of the Charter...constitutes a conspicuous
example of a rule in international law having the
character of jus cogens
c. Collective self-defense/counter-measures
i. No violation of MDT with El Salvador
ii. Must have request of a third state
d. Equality of sovereign states
i. UN Charter, Article 2, Par. 1
ii. Declaration of Friendly Principles
iii. OAS Convention
e. Humanitarian law
i. Hague Convention VIII of 1907
1. Laying of mines without notification (what is prohibited
is non-notification)
ii. Geneva Convention August 12, 1949 uniform state practice
1. Armed conflicts of non-international character
2. Customary law requirements:
a. State practice
b. Obligation of states

i. Treaty norms can coexist with customary norms if it binds all

ii. Armed attack as a requirement for self-defense
iii. Effective control regarding the support for paramilitary
groups controlled in all respects; means and methods in the
conduct of warfare
3. Armed attack:
a. Test: Support for paramilitary organization did the arming and
financing of the CONTRAs make them agents of the United States?
No.
i. Effective control test
1. Debunked by the Overall test
Colombia v. Peru
1. Alleged customary norm granting asylum on grounds of political ideology
a. Bolivarian Agreement of 1911 provided for the application of
principles of international law in the use of asylum
b. Montevideo Convention on Political Asylum granted the right of
qualification of a refugee to the granting State
2. Ruling of the court: No regional customary norm
a. Qualification of providing asylum does not entail that said
conventions are customary international law does not bind all
states
Kookooritchkin v. SolGen
1. Right of Refuma
2. Right of Asylum
Southwest Africa Cases
1. Apartheid is not norm-creating but contrary to the norm
Nuclear Test Cases New Zealand v. France
1. Roque: Problem with case is that it does not focus on the fact that the
cases involve nuclear weapons and that the prohibition should be imposed
on the aspect of weapons and not any related nuclear application
2. Material evidence supporting prohibition of nuclear weapons
a. CIL that support disarmament
i. Hague Convention
ii. Treaty of Non-Proliferation of Nuclear Weapons (Article 6)
iii. UN Resolution 984 (1955)
iv. UNGAR 1653
1. Declaration of St. Petersburg
2. Declaration of Brussels
3. Convention of Hague Peace Conference
4. Geneva Protocol of 1925
b. Public health and environmental issues
i. Protocol additional Geneva Conventions of August 12, 1949
ii. Article 51 & 54 of Protocol I, WHO Resolution 46/40
iii. Charter law on the use of force and the law on armed conflict
1. UN Charter Art. 2.4

2. UN Charter Art. 51
iv. International Humanitarian Law
1. Hague Conventions
2. Geneva Protocol of 1925
3. Why GA resolutions may evidence customary norms? (GA resolutions not
binding)
a. North Sea the court just said UN GA resolutions may become
evidence of customary norms
b. Nicaragua court can discern but did not explain why
c. Nuclear Weapons cases Paragraph 70

Effective Occupation evidence of the exercise of sovereignty and jurisdiction

Superior claim paramihan ng evidence
February 12, 2015
Nuclear Test Cases
- Judge Weeramantry, dissenting:
o New source of law unilateral French declaration (when France
announced that it will stop further nuclear testing)
Court dismissed the case
Roque: Estoppel was the source
o One state should not use territory that would result to harm on the
environment
Rio Declaration
o Precautionary Principle in the absence of scientific certainty, must cease
activity
o Inter-generational Rights obligation to preserve the environment for
future generations
o Environmental impact assessment requires states to assess the possible
impact of a program to the environment prior to its undertaking
o Common heritage of mankind states have an obligation to preserve
territory
The Paquete Habana
- The fishing vessels are not subject to capture by the US armed vessels
o International humanitarian law Geneva Convention
o US had no treaty or legislation, thus it resorted to customary international
law
1403: King Henry IVs orders to his admirals in exempting coastal
fishing vessels from seizure during war
Treaty of Calais between UK and France excluded fishing vessels
from seizure during war
US-Prussia Treaty

Earlier US state practice US-Mexican War: prohibited the capture

of fishing vessels

Medellin v. Texas
- In order for a treaty or binding international obligation to have domestic effect:
o The term of the agreement must be self-executory
o There must be enabling legislation from Congress
Prosecutor v. Tadic
- Overall control test no need to control the details of the means and methods;
sufficient to have an agreement as to the military objective/goals
o May be used for individual criminal responsibility
o For states, the effective control test must be excercised
Texaco v. Libya
- Could Texaco expropriate? Arbitrator: Yes.
o Why? Because it was still a sovereign with its territory.
o Must award prompt, adequate, just compensation.
- Resolution 1803 States have right to nationalize within their territory as long as
it is in accordance with international law
o NIEO New International Economic Order
Voting record: 87 (for), 2 (against), 12 (abstain)
- Resolution 3171 No recourse to international law, it is the host countrys law
that operates
Voting record: 86 (for), 11 (against), 28 (abstain)
o Depuis: Which carries more weight? Depends on the voting pattern.
According to the case, Resolution 3171
Voted mostly by capital exporting states
Are general principles of law international law sources? No. They are domestic
law principles found in almost all legal jurisdictions.
Saudi Arabia v. Aramco
- Aramco was awarded contract by Saudi Arabia to explore, exploit, and transport
oil.
- Mr. Onassis and Saudi Arabia Maritime Tankers came in and intervened, which
resulted to the award of another contract to Mr. Onassis
- Aramco contested, citing exclusive right to explore, exploit, and transport oil for
50 years
- Issues of controversies to be brought to arbitration
- Applicable law public international law
- First issue: what is the contract?
o Saudi Arabia argued that concession agreement is a franchise may be
cancelled unilaterally
o Aramco argued it is a contract
- Second issue: Can Saudi Arabia be sued?
o No, immunity of states to suability
o But Saudi Arabia went down to arbitration, thus it became suable

Arbitrator ruled that it is a contract applied Islamic Law, civil law, common law
o If it is a common principle found in multiple jurisdictions, then it is a
general principle of law
o Saudi Arabia thus complied and paid compensation to Aramco
General principles of law principle found in multiple jurisdictions

Case Concerning Preah Vihear Temple

- Basis of effective occupation
- Principle of Estoppel found in all major legal traditions
o Also basis for France that it would cease atmospheric testing in the
Nuclear Test cases
French undertook underground testing
Corfu Channel Case
- Freedom of Navigation
- Albania argues that channel is within its sovereignty exclusive control
o Within 12 nautical miles
- Circumstantial evidence:
o Albania constantly kept watch
o Never notified the existence of mines
Basis for Just Compensation
- Book value of expropriated property
- Lucrum cessans expected profits
Barcelona Traction, Light and Power Company Case
- General principle of law corporation enjoys a separate personality from its
shareholders and from the State in which it is organized
- Dicta there are instances where all states have standing to sue
o Erga omnes obligation all states have standing
Genocide
Aggression
Protection from slavery and racial discrimination
Actors in International Law
- State
o Elements of Statehood Montevideo Convention of 1933
Population
Requirement permanent population
Defined territory most important element
Sovereignty and jurisdiction exclusive exercise
o Independence from external interference from states
o Legal competence to prescribe which is legislative and
to enforce which is judicial
o Forms totality of power that a state must exercise
Aspect of ownership and dominion

In case of conflicting claims, it is adjudged by superiority in

claims
Modes of Acquiring Territorial Title
o Occupation
o Accession or accretion
o Cession
o Prescription
Possession exercised under the title of
sovereign
Peaceful and uninterrupted possession
Possession must be public
Must endure over time
Government
Effective
Not a requirement for statehood sufficient that there is an
organized government
Capacity to enter into treaties with the other states
Treaties are written contracts entered into by states
o Governed by international law

Islands of Las Palmas Case

- Modes of acquisition:
o US: Treaty of Paris (Cession); predecessor interest (Spain) mode of
acquisition was discovery
o Netherlands: Effective possession contract of suzerainty; locals paid
taxes to Netherlands in exchange of protection
- Arbitrator ruling:
o Discovery alone gives rise only to an inchoate title and must be perfected
through effective occupation
o Inter-temporal laws apply discovery (age of exploration) + effective
occupation (1930s)
o Critical date judicial technique in the use or exclusion o evidence
consisting of self-serving acts of parties at a stage when it was evident
that a dispute existed
o Contiguity raises dispute and must be resolved by evidence of effective
occupation
- Critique of Prof. Roque
o US did not use argument of contiguity
o US did not have standing US title is only as good as its predecessor;
what US inherited was only Intramuros as a result of the Philippine
Revolution
o On the basis of decision, Indonesia uses Las Palmas as baseline and thus
the Philippines lost substantial territorial waters
Legal Status of Eastern Greenland
February 19, 2015

Eritrea-Yemen Arbitration
- Dispute settlement procedure
- Legal regime to resolution of disputed claims superior claim
- Maritime equitable principle resulting in equitable solution
- Ancient maps carry no persuasive weight
- Islands not res nullius islands are indeterminate
Clipperton Island Arbitration
- How much effective occupation is required if it is a desolate island? Not much,
enough for claiming state to make an appearance.
o Ruling to be limited to desolate islands
UNCLOS
- Provisions agreed upon by all states
- Restatement of customary norms, if not, intended to be customary norms
o Widespread practice
o Opinio juris
- A number of provisions arrived through concessions and compromise
- Coastal states v. Third states exercise sovereignty over as much maritime zone
as a state can
- Baselines for the measurement of maritime zones and boundaries
- Full sovereignty internal waters and territorial seas
o Internal waters all waters on the landward side of the baseline of the
territorial sea; no right to innocent passage
o Territorial seas 12 nautical miles; right to innocent passage
o Contiguous zone limited sovereignty
Customs matters
Fiscal matters
Pollution
Immigration
o Exclusive economic zone right to explore and exploit (sovereign rights);
200 nautical miles from the baseline (actually 176 nautical miles)
o Continental shelf natural prolongation of the landmass; soil and subsoil
that begins where the territorial sea ends (188 nautical miles)