PRE-FINALS ● Territorial or non-territorial communities which

have special international status

STATES AND GOVERNMENTS
Elements of a State;
Internal Sovereignty: ability to control governmental 1. Permanent Population
functions 2. Defined territory
External Sovereignty: not under the influence or control 3. Government
of any other state 4. Capacity to enter into relations with other states
(Article 1, 1933 Montevideo Convention on the Rights
● Independence as the core element of and Duties of States)
statehood. Independence in the government and (Others suggest “Independence” as additional criterion
ability to conduct relations with other states. by James Crawford)
(James Crawford). He would put Independence
as the fifth element of State or Statehood. ➢ It is the State and not the government that bears
● States have rights or duties. Use of force by the the rights and duties of a state.
State is justified when used as self-defense, ➢ Administration is the aggregate of hands
however not justified if used by the people and
not the State. State vs. Government
● State consists of government and other
General Characteristics of Statehood elements of state; government is the agency
1. States have plenary competence to perform through which the will of the State is formulated,
acts, make treaties (“Sovereign Acts”) expressed and carried out.
2. States are exclusively competent with respect to ● States, not governments, are the bearers of
their internal affairs (“Reserved Domain”) rights and duties under international law;
3. States are not subject to compulsory ● “Doctrine of State Continuity”
international process, jurisdiction, or settlement ● How the State “governs” internally may only be
without their consent (“State Immunity”) relevant in recognition of government issues
4. States are regarded as equal (“Co-equal of
states”) Change of Administration by: Election
5. Derogations from these principles will not be
presumed (“Lotus presumption”) Change of Government by:
- James Crawford (The Creation of States in 1. Constitutionally
International Law) 2. Unconstitutionally

★ Interference - in terms of interference of affairs Change of Sovereignty: change in political authority

by one state to the other. Mere interference is (from Spanish to U.S. authority) Automatic state
not a violation of international law, it is common succession and not continuity.
in geopolitics. “We would have a deal in the
treaty if you will change this specific provision in “Permanent Population”
your internal law” ● Does not require nationality, just “population”
★ Intervention - a breach of international law and ● Nationality is determined by internal law, not
is thus prohibited by the same. When international law
interference is coercive in nature. It becomes ➔ If that matter is not regulated by
coercive if the subject of coercion is left with no international law then it is internal law.
choice. ● How many people are required?
➔ Liechtenstein with 34,000 in 1990
➔ Before, human rights was purely domestic, (39,039 in 2021) and Nauru with 14,000
however there is a change in paradigm. It is no people in 1999 (12, 511 in 2021),
longer domestic vis-a-vis internationalization of became UN Members.
human rights. Recognition of a state in human ➔ Vatican City has about 372 citizens and
dignity. It is an erga omnes obligation of one about 764 residents (citizens or not).
state to another. There is an obligation to Other mini states are Micronesia, Tonga,
respect human dignity and we owe it to the San Marino, Palau, and Monaco.)
state. ➔ Continued Population or group of people
is the requirement.

Determination of Statehood Scenarios “Defined territory”

● Break-up of a large state into several states ● Island of Palmas Case (Netherlands vs. US,
● Secession by part of a territory Arbitrator Mas Huber of PCIJ, 1928) on
● Foreign control is exercised over the affairs of a “territorial sovereignty”
state ● See again North Sea Continental Shelf Cases
● Merger or Union of States on whether definition of borders is a
● Claims by constituents units or a union or requirement; “sufficient consistency”, not
federation to the attributes of statehood ‘accurate definition”; cf. Israel’s admission to the
UN in 1949
 ● Extent of and jurisdiction over Territory: UNCLOS. Reservation/declaration
1. Modes of Acquiring Territory should be at the time of the signing or
2. Law of the Sea (1982 UNCLOS or ratifying of the treaty.
UNCLOS III) ● Is State A justified in immediately terminating the
3. Airspace treaty? Why or Why not?
4. Criminal Jurisdiction, etc.; Extradition ➔ Termination of treaty is not immediate,
yet at the very least notify before
Island of palmas Case (Netherlands vs. US, termination since it is a customary
Arbitrator Max Huber of PCIJ, 1928) international law. There should have
Meaning of territorial sovereignty: been claims or measures to be taken.
- It refers to the right to exercise in a territory, to Three months if urgent to terminate. An
the exclusion of any other state, the functions of emerging environmental case is not a
a state. It must be open and public. Discovery ground to invoke for a fundamental
could only exist as an inchoate title, as a claim change of circumstance because it is in
to establish sovereignty by effective occupation. fact foreseeable, for law is constantly
evolving.
“Government”
● “Effective Control test”: sovereignty, not You represent your country, State B and your President
legitimacy, required; but mere existence of has asked for your advice on whether STate b should
government is not sufficient; accept such “reservation”. States A and B are longtime
● Legitimacy is not required, what is required is friends. State B has been very supportive of State A’s
effective control. Because legitimacy is for the attempt to curb terrorism. What will you advise your
people to determine. president?
● Kinds of control: Internal and External ➔ Valid ground to object reservation is when his
● See: Aaland Islands case reservation is incompatible with the object and
● However, in case of temporary deprivation of purpose of the treaty. Foremost, acceptance is
effective control, the state does not cease to not a ground in accordance with VCLT. There’s
exist no impact in “any means necessary to protect
● “Effective Control” may or may not be given a human life”. Even if State A has reservation it
high or strict threshold in international law. will not be exempt from the treaty since torture is
invalid under international law. Best answer
If government is contested; would be do not object. Article 46. Express your
➔ De facto government: one that controls a state consent to be bound 1. Manifest 2. Involving
without legal authority but through actual internal law of fundamental importance. An EO
possession of power 459 executive agreement is similar to a treaty
➔ De Jure government: legitimate government but is not a rule that there is concurrence from
recognized by other states based on law, but not the senate.
governing in fact. ➔ Significance of UN GA is opinio juris. While UN
“Capacity to enter into relations with other states” GA is not binding. Voting is material.
● Article 3, Montevideo Convention: “The politica; ➔ Moratorium is to suspend.
existence of the state is independent of
recognition by the other states. Even before A.On the basis of the information given above, would
recognition, the State has the right to defend its you conclude that there is an international custom
integrity and independence” prohibiting the death penalty? State practice must be
● “Limited Capacity” to enter into international consistent, general, and uniform.
relations does not prevent the existence of a
State, like in the cases of “Protectorates”, B. Would you conclude that in some areas of the world
“Trusteeships” and “Associated States”. there is a regional custom prohibiting the death penalty?
➔ Declaratory theory is favored Explain your answer.
➔ The true test of recognition is the capacity of a
state to enter into relations or treaty
➔ State can have capacity but is LIMITED November 8, 2024
JURISDICTION & IMMUNITY FROM JURISDICTION

MIDTERM EXAM NOTES ● One of the consequences of statehood is

● Provide Roadmap (if question is a,b,&c) “State sovereignty. Sovereignty is a concept, thus we
B’s first and second contention is incorrect, the need to know the manifestation of sovereignty
third argument however is correct” and the greatest manifestation of sovereignty
● What is reservation in the law of treaties? is jurisdiction.
➔ Modify or exclude a provision in the
treaty Types of Jurisdiction
● What is the legal effect, if any, of State A’s ★ Jurisdiction to prescribe law (the authority of
“Declaration” in the above problem? a state to make its policy applicable to persons
➔ It is the same as reservation to modify or activities (see: restatement 402, except for
and exclude which is prohibited in the
 universal jurisdiction, which is in restatement ● Passive Nationality: a state may prescribe law
404) for situations where its nationals are victims of
★ Jurisdiction to adjudicate (authority of the the conduct being regulated. This has limited
state to subject particular persons or things to its scope, usually applicable to terrorist attacks.
courts) This pertains to the nationality of the victim.
★ Jurisdiction to enforce (concerned with the
authority of the state to use the resources of Nottebohm Case (Liechtenstein vs. Guatemala, ICJ
government to induce or compel compliance 1955)
with its law; includes authority to arrest e.g. Key principle: Nationality as a basis for exercising
summons/warrant) jurisdiction must be real and effective to give a right to a
➔ The exercise of enforcement of jurisdiction state who has conferred it. Real and effective link with
would require the physical presence of law the state of nationality necessary. Right to diplomatic
enforcers. Police bringing a warrant would go to protection and protection by means of international
the territory of another state and must have judicial proceedings only arises when proper nationality
consent and cooperation of such state. links exist between the individual concerned and the
➔ Prescriptive and adjudicative does not exercise state to exercise such rights. (Effective nationality
law physically in the territory of another state. Theory)
➔ Whenever there is interference and is coercive, ➔ Nottebohm has a sibling in Liechtenstein, thus
it is an intervention. he acquired citizenship there.
➔ If you want to exercise diplomatic protection, the
Theories of Criminal Jurisdiction ICJ requires: (1) prior exhaustion of domestic
1. Territoriality Principle (Subjective vs. Objective) remedies where the wrongful conduct was
2. Nationality Principle (Active vs. Passive) committed, which must be an effective
3. Protective Principle (Diplomatic Protection) remedy and (2) Nationality link. It must be
4. Universality Principle (Cf: “erga omnes norms” your nationality.
➔ These are not international law principles, only ➔ Your mere grant of citizenship will not be
domestic principles but international law accepted by the ICJ court. There must be a real
recognizes them. and effective nationality link. In the case, no link
with liechtenstein, thus the latter is denied
Territorial Jurisdiction diplomatic protection remedy.
- State has jurisdiction over property, persons, ➔ How do you establish a real and effective
acts, or events occurring within its territory. nationality link? Nationality is a legal bond
- Subjective Territorial Principle: Jurisdiction to having in its basis social fact of attachment,
prosecute or punish crimes commenced within a genuine connection of existence, interests
their territory but completed or consummated in and sentiments together with the existence
the territory of another state. Where na state ni of reciprocal rights and duties.
commence ang offense. ➔ In regards to disputes with states, a citizen must
- Objective Territorial Principle: certain states only have one citizenship, in this case,
apply their territorial jurisdiction to offenses or nottebohm is a German citizen.
acts commenced in another state, but (1)
consummated or completed within their territory Protective Principle in Jurisdiction
or (2) producing gravely consequences to the ● A state can legislate crimes that it considers to
social or economic order inside their territory. be a threat to its security, integrity, or economic
Example: Someone in Mexico fires a gun, and hits a interests regardless of the place of the
person in the US commission of the crime.
● Mexico could prosecute under the subjective ● Common examples: espionage, counterfeiting
territorial principle, because the act commenced (terrorism)
within Mexico. On the premise that Mexico Restatement 404: a state has jurisdiction to prescribe
adheres or adapts subjective territoriality United States vs. Vasquez-Velasco (1972)
principle since it commenced in Mexico and - International law generally
international law recognizes this. - Security or political independence of the US. As
● The US can prosecute under the objective in Felix-Gutierrez, the crime was directed
territorial principle because the act was against the United States.
completed in the US. This is based on the Note:
premise that the US adheres or adapts objective ➢ Protective principle is not a catch-all principle,
territoriality principle since it was completed in however. It has a very narrow scope.
the US and international law recognizes this. ➢ Examples of conduct that come under the
protective principle:
Nationality Principle in Jurisdiction - Security (espionage, counterfeiting,
● Active nationality: states may regulate the falsification of official documents)
conduct of their nationals wherever they are in - Terrorism?
the world - Customs and immigration laws
Ans: would depend on what is adapted by the state. If - Perjury before consular officials
active then yes, because the nationality of the - Economic interests?
Court: from the point of view of international law, the ● Israeli agents had abducted Eichmann from
power of the state of Israel to enact the law in question… Argentina
is based on a dual foundation: the universal character of
the crimes in question… Frisbie vs. Collins (1952)
United States v. Usama Bin Laden (2000) The court has never departed from the rule announced
in Ker
Nov. 17, 2024
United States vs. Alvarez-Machain
EXTRADITION vs. DEPORTATION (unilateral, does ● The presence of an extradition treaty between
need a treaty, destination of deportee is irrelevant) the United States and another nation does not
➔ Unilateral because independent of any request necessarily preclude obtaining a citizen of that
by any state nation through abduction. It has long been the
➔ May decide deportation proceedings on its own rule that abduction, in and of itself, does not
initiative. There’s no international law rules that a invalidate a prosecution against a foreign
state may deport on any of the following national. The only question therefore is whether
grounds. The State has its own. the abduction violates any extradition treaty that
➔ Deporting states can decide where to deport the may be in effect between the United States and
deportee. the nation

Conditions U.S, vs. Toscanino (1974)

1. Treaty (Extradition) ● Toscanino was abducted in Uruguay by an agent
2. The person to be extradited had been charged of the United States, taken to Brazil, and brutally
or convicted of extraditable offense tortured and interrogated for 17 days. He was
3. Extraditable offense is either (1) Listed or (2) then placed on a civilian aircraft bound for the
Covered by “Double or Dual Criminality U.S and arrested on arrival. He contended that
Principle/Clause the district court lacked jurisdiction over him
because of the circumstances of his arrest.
➔ Once a person has committed torture in a ● Court through J. Mansfield
certain state, such state can opt to prosecute the “We view due process as now requiring a court to divest
person or deliver to another state the duty to itself of jurisdiction
prosecute. Must have an extradition treaty
between the two states or parties in the torture Ker vs. Illinois (1886)
convention. The treaties of extradition to which the United States are
parties do not guarantee a fugitive from the justice
Basic principles in extradition:
● No treaty, no “obligation” to extradite United States ex rel. Lujan v. Gengler (1974)
● Pacta sunt servanda applies Government-sponsored abduction, in and of itself did not
● Dual Purposes constitute conduct sufficiently “shocking” to violate due
1. Prosecution process and therefore did not trigger the Toscanino
2. Execution exception to Ker-Frisbie. Rather,
● Could not cover “political offenses”
Cf: “Attentat Clause Immunity from Jurisdiction
● “Rule of Specialty” must be followed ➢ Sovereign or State Immunity (cf. 2004 UN
● Ex post facto Law prohibition does not apply Convention on Jurisdictional Immunities of
(when a law had been passed criminalizing an act and States and their Property [UN Doc
penalizes past acts as well (retroactive) A/Res/59/38]
- Doctrine of Qualified Immunity (immunity
Legality of “Abduction” of criminals in foreign in acts “jure imperii”, not “jure gestionis
territory: (private/commercial”) or Doctrine of
● Three modes of “Rendition”: Extradition, Restrictive Theory of State Immunity. A
deportation, and abduction. CIL.
● Abduction of criminals in the territory of another ~ the immunity of the sovereign is recognized only with
is understood as “intervention” and therefore regard only with regard to public acts or acts jure imperii
violates customary law and the UN Charter (Art. of a state, but not with regard to private acts or acts jure
2 (4); gestionis
● It can only be justified if done invoking - The Act of State Doctrine (judicial
self-defense deference)
● But, the illegal apprehension will not necessarily ~ Public Acts (Jure Imperii): These are acts performed
affect the jurisdiction of the apprehending state by a state in the exercise of its sovereign authority.
(male captus, bene detentus) unless the Examples include:
defendant was secured through torture, brutality,
or similar outrageous conduct. ● Military actions.
● Diplomatic measures.
Attorney General of Government of Israel vs. ● Legislative or regulatory actions.
Eichmann (1961) ● Taxation.
 ● Generally protected under the principle of Acts of State Doctrine
sovereign immunity. ● Courts generally will not pass judgment on the
validity of the public and official acts of a foreign
Private Acts (Jure Gestionis): These are acts government within its own territory.
performed by a state in a commercial or non-sovereign ● Rationale for the Act of State Doctrine:
capacity, often comparable to the actions of private - Co-equality among states; respect for
individuals or entities. Examples include: sovereignty of foreign states.

❖ State-owned enterprises engaging in Underhill v. Hernandez, 168 US 250 (1897)

commercial transactions. “Every sovereign State is bound to respect the
❖ Leasing or purchasing property for commercial independence of every other sovereign State, and the
use. courts of one country will not sit in judgment on the acts
of the government of another done within its own
Note: territory. Redress of grievances by reason of such acts
In the Philippines, the Supreme Court had considered must be obtained through the means open to be availed
the following transaction by a foreign state with private of by sovereign powers as between themselves.”
parties as acts jure imperii: (1) the lease by a foreign
government of apartment buildings for use of its military The U.S recognized Hernandez as the legitimate
officers; (2) the conduct of public bidding for the repair of governance. The court cannot sit on judgments
a wharf at a United States Naval Station; and (3) the regarding the waterworks. The U.S can/could exercise
change of employment status of base employees; and diplomatic protection as an internationally wrongful act in
the following transactions as acts jure gestionis: (1) the the ICJ.
hiring of a cook in the recreation center, consisting of
three restaurant, a cafeteria, a bakery, a store, and a Inviolability of Premises of Foreign Diplomatic
coffee and pastry shop at the John Hay Air Station in Mission
Baguio City, to cater to American servicemen and the The premises of a foreign diplomatic mission are
general public; (2) the bidding for the operation of barber inviolable and no person, even a member of the
shops in Clark Air Base in Angeles City. government of the receiving state, may enter the
★ NATURE AND PURPOSE TEST to distinguish if premises without the authority of the mission. The
jure imperii or jure gestionis receiving state has in fact the duty to protect the mission
against intrusion or damage and to prevent disturbances
2004 UN Convention on Jurisdictional Immunities of the peace of the mission or impairment of its dignity.
Article 5. State Immunity (See Art. 22 of the Vienna Convention on Diplomatic
- A state enjoys immunity, in respect of itself and Relations [VCDR]).
its property, from the jurisdiction of the courts of
another State subject to the provisions of the Legal Status of Embassies and Consulates
present Convention. Basic Rule: Inviolability of Premises!
● Vienna Convention on Diplomatic Relations,
➢ Head of State and Diplomatic Immunity Article 22:
- A. Duty of the receiving State to refrain
United States v. Noriega, 117 F.3d 1206 (11th Cir. 1997) (1) refrain from entering
from entering the premises without the
without consent
● Noreiga was abducted to the United States and (2) duty of receiving
consent of the head of mission
state to protect against
brought to trial for his involvement in cocaine any intrusion, damage,
- B. Duty of the receiving State to protect
disturbance, impairment
trafficking of dignity
the premises against any intrusion,
● The executive branch (George Bush) did not damage, disturbance, etc.
consider Noreiga to be the head of state of States can waive their inviolability
Panama, so he did not receive head of state ● Waiver must be express
immunity. The US had recognized Delvalle, and
later Endara, as legitimate heads of state of ● Theories behind inviolability of embassies and
Panama. ` consulates: “extraterritoriality”, “representational”
and “functional necessity”
Immunity of Former Head of State in Criminal Lex ferenda vs. Lex lata (absolute rule)
Proceedings
The Pinochet Case (2001): Article 22 sets out the negative (not to enter) and
positive (to protect) obligations of the receiving state,
The House of Lord of UK ruled that the “absolute including immunity from processes (sear, execution,
prohibition of torture, a jus cogens norm, overrides attachment, etc.)
immunity afforded to a former Head of State in criminal ● Inviolability extends (a) even in cases of armed
proceedings. The commission of a crime against conflict [Art. 45] (b)
humanity and jus cogens cannot be done in an official
capacity on behalf of a state.” Non-interference with Mission’s Official
Communication
Under Article 27 of VCDR, a receiving state shall permit
and protect the free communication on behalf of the
mission for all official purposes. Such official
communication shall not be interfered with. The Art 31
diplomatic bag shall not be opened or detained.
STATE RESPONSIBILITY
The use of sniffer dogs and external examination of the ~ acts and omissions of a state that is internationally
bag, is however, permitted customarily per ILC Draft wrongful act which results to state responsibility
Articles. A reasonable suspicion that the bag contains ~ broader condition than liability
illegal articles will also allow the authorities to have the
bag opened in the presence of a representative of the State Responsibility
sending state. (will be permitted to open the bag with the ● The ILC Draft articles on State Responsibility for
presence of the sending state). Internationally Wrongful Acts provides merely for
~ If the representative refuses to open the bag after the “secondary rules” in state responsibility.
being sniffed, it will not be opened and the diplomatic ● Read: 2001 Draft Articles on Responsibility of
bag will be sent back to the sending state or its origin. States for Internationally Wrongful Acts with
~ Suspension will arise if the dog is a sniffer dog for Commentaries
bombs. As such, the ILC would suggest that it will be ● “Internationally wrongful acts”
opened right away with or without the presence of the ~ whether or not the act can be attributed to a
sending state. particular state
~ If a diplomatic bag has no external marks visible, it will ~ determination of the consequences of such
be opened right away with or without consent or act, if there’s a breach
presence of the sending state. ● Draft Article 2 of the ILC: (a) action or omission
attributable to the state under international law;
The bag, however, must bear visible external marks of (b) constitutes a breach of international
its character and contain only diplomatic documents or obligation of State
official articles. Add: The “nexus” requirement

1. It will be considered a diplomatic bag if there's ARSIWA

an external visible mark to it for the bag to enjoy ● Part I - General Principles on State
such protection not be opened or subject to Responsibility: Basic Principles; Attribution; IWA;
suspection. and Responsibility for acts of other states;
2. If there’s diplomatic documents inside such a Preclusions/defenses
bag. ● Part II - Consequences of Responsibility
~ it is a diplomatic bag regardless of who is carrying it (Cessation, Reparation [restitution,
(diplomat or diplomatic carrier) compensation, and satisfaction, etc.)
● Part III - Implementation of responsibility [I] and
➢ Diplomatic Immunity Countermeasures [II]
Diplomats have diplomatic inviolability ● Part IV - General Provisions

Scope of Diplomatic Personal Inviolability Attributable to the State

● Private Residence (whether owned or not, hotel ➢ “Imputability Doctrine” (Principle of Attribution)
room or apartment) A state is liable only for its own acts and omissions, and
● Papers and Correspondence in this context, the State is identified with its
● Property (unless otherwise provided in Sec. 1, governmental organs and apparatus, not with the
Art. 31) population (nor with private vs. [ultra vires] acts of
● As witness [Art. 31] government agents)
➢ “Governmental Organs or Apparatus”: Domestic
Two categories Administrative Law is irrelevant. The issue is to
be settled applying international law principles.
Search who can enjoy diplomatic immunity ➔ If by the internal law of the state, his
Personal and Functional Immunity of Diplomatic administrative law is considered part of that
Officials state, then attributed as part of the state.
~if privilege is given to the diplomat, those ~ generally, when it is a private act it will not be
opportunities shall be granted wherever. These attributable to the state
obligations are given to the receiving state. ~ acts performed by a government agent on behalf of
~ In terms of immunity from jurisdiction, a distinction the state (public act) exceeded authority but can still be
must be drawn between civil and criminal processes. attributable to the state. Otherwise, if an act performed
~ In terms of criminal jurisdiction, diplomatic agents have by the government agent is a private act, it will not be
total immunity from the law of the receiving state and the deemed as attributable to the state, as a general rule.
only remedy available to the receiving state is to declare
the diplomat persona non grata. The immunity from “Breach of International Obligation”
criminal jurisdiction applies to any offense committed by ● Act or omission by a State actor;
the diplomat whether official or not. In terms of civil ➔ Wrongful act or failure to act
jurisdiction, diplomats are immune from the civil ● Against States or Non-state actor;
jurisdiction of the receiving state except in three (3) ➔ Unfair treatment of an alien, indirectly or
cases. The immunity of diplomats extends to “arrests” directly against non-state actors
and “detentions”. (See: DR of Congo vs. Belgium, 2002)
 ● Determined by “international law” (primary rules government in its war against China. In one of
on state responsibility) the operations of the American marines, twenty
➔ No uniform standard of international (20) Chinese fishermen were killed. The
obligations, threshold of which does not Americans apparently shot a fishing vessel
apply to all, depends on the thinking it was an enemy vessel.
circumstances ➔ Organ of the foreign state is placed at the
● In violation of treaty or non-treaty obligations disposal of another state.
● Not limited to States directly affected; 9. Private armed groups in Palawan, who
➔ Barcelona Traction Case/ Legal volunteered to help the AFP secure the Spratly
Standing ~ proper party would be the Islands, fired at a Chinese fishing boat which
injured state (General rule) was docking at the Kalayaan Islands killing five
➔ Erga Omnes Inter Partes ~ any states (5) Chinese Crew members.
can have an obligation or legal standing
to bring the action even if not directly Scope of Responsibility under the ILC Draft Articles
injured A. By State Organs and Quasi-State Organs
● Not affected by internal law on the lawfulness of (“Parastatal” entities):
the conduct (see: Art. 3 of ARSIWA); Act of ● Act of any State organ or official without regard
State Doctrine cannot be invoked because to nature of function; (Art. 4) [State Organ]
responsibility of state is determined by ➔ Executive/legislative/Judicial Act performs a
international law and international (not domestic) wrongful act or actionable wrong; fails to give
tribunal due process
● Act of a person or entity empowered to exercise
Is the Philippines liable to the US for compensation governmental authority (Art. 5), placed at the
in the following cases? disposal of a State by another state (Art. 6),
1. X, a Filipino, killed Y, an American, in Talisay even if such an act is in excess of authority or
City, Cebu contravenes instructions (Ultra Vires Act); (Art.
➔ It does not necessarily follow that a citizen of 7) [Quasi-state organ]
that state committed the act is already ➔ Not an organ of the state but granted or
attributable to the State. Cannot right away empowered governmental authority (quasi-state
conclude. organ) i.e public utility (power of expropriation)
2. A, a member of the PNP, killed B, an American ➔ wrongful act of the public utility granted with
tourist, in Basak, Lapu-Lapu City power to expropriate would be expropriating a
➔ Whether a government officer/employee’s act is property of an alien without just compensation
private or public. If it is a public act or exceeds
authority then attributable to the State. B. By Non-state organs (private persons or group
3. The city of Lapu-lapu seized all the assets of Y, of persons):
an American, without due process and in ● Act done pursuant to instruction of, or under the
violation of law direction or control of, the State; (Art. 8) [What is
➔ Part of the governmental apparatus the threshold of “direction or control”?]
4. PNP-Manila failed to prevent violent protesters ➔ Rely only on CIL since there’s no threshold of
from entering the premises of the US Embassy control.
➔ Failure of the state to prevent the act ➔ Effective Control test. Non-state organs
5. A, an active member of the PNP and is facing performed an act with the level of dependency,
administrative and criminal charges, held but highly dependent on support by the other
hostage 8 Americans and killed two others, in State. They could have only done so with the
his effort to “clear his name” support of a state.
➔ If negligence on the part of the state to prevent, ➔ Overall Control test. Purposes of determining
then attributable to the state. individual criminal activity or whether or not
6. Filipino rebels killed 3 American journalists another state is involved in an internal armed
➔ If negligence on the part of the state to prevent, conflict have ripened into an international armed
then attributable to the state. conflict. Even without evidence the operation is
7. A Philippine GOCC with original charter, a utility dependent, as long as it is established that that
company, destroyed the building of Y, an state has financed, armed, logistics, already
American, without compensation. sufficient to categorize such internal armed
➔ At times, even private companies can be conflict as an internationalized armed conflict.
granted governmental authority. Granted by law Nothing to do with State Responsibility ~ since
to expropriate which is a governmental authority effective control test is used to determine and
makes it an agent of the national government. level of dependency for purposes of attribution.
Attributable to the state. ● Act done in the exercise of governmental
8. At the height of the South China Sea authority in default of official authorities; (Art. 9)
controversy, China declared war against the ● Conduct of the rebel movement which becomes
Philippines and immediately sent troops to the the new Government of a State; (Art. 10)
Spratly Islands. The United States sent 500
Marines, including 10 elite snipers, to the
Philippines in order to assist the Philippine
 C. By Any Other Person/Entity: Conduct is ● 24 Nautical Miles from the baseline is the extent
acknowledged and adopted by the State, either contiguous zone
expressly or by conduct, as its own. (Art. 11) ● 200 Nautical Miles extent of the exclusive
economic zone counted from the baseline
● High Seas~ There is no such thing as
LAW OF THE SEA international waters as a zone of the sea;
~ Not the same with maritime law or admiralty law; “international waters” is only used to define that
Deals with the claims of sovereign rights of the body of water beyond the territorial sea of a
states particular state
~ Does not involve claims of ownership of territories ➔ The distinction provides what the states can and
because such is determined by the law of cannot do in terms of zones of the sea
acquisition of territories
Continental Shelf (Art. 76 (5) EEZ)
The Law of the Sea ~ natural prolongation is covered by the continental shelf
➢ Governed by the 1982 UNCLOS III (UNCLOS regime
I-1958 (four conventions); UNCLOS II-1960) ~ extent of CS follows the extent of the exclusive
➔ Includes not just UNCLOS but also Customary economic zone; can be extended until 350 nautical miles
International Law (UNCLOS III); rely on and it will now be called if it extends beyond 200 NM =
UNCLOS III Extended Continental Shelf
➢ Basic Zones: 1. Internal Waters, 2. Territorial
Sea, 3. Contiguous Zone, 4. Exclusive How do you differentiate the High Seas and the
Economic Zone, and 5. High Seas. Other area?
regimes applicable to: 6. Continental ~ The high seas would be the superjacent waters that
Shelf/Extended Continental Shelf and 7. The comes after the exclusive economic zone because the
Area EEZ also pertains to the superjacent waters, excluding
➔ Governs these 7 and not right of jurisdictions of the seabed and subsoil because the latter two will now
territories be covered by the continental shelf.
➢ Baseline (Low-water mark Method vs. ~ What comes after the deep seabed is the area and it
Straight Baseline Method) does not cover the superjacent waters but it is the deep
➔ To determine the area of the zones seabed
➔ No tribunal computing the determination of ~ If the continental shelf is to the EEZ, the area is to the
baselines/maritime zones high seas. So if we talk about sovereign rights, over the
➔ The drawing of the Philippine baselines reduced exclusive economic zone like the sovereign rights over
the area of the Philippines but according to the resources, living or nonliving, found in the superjacent
Supreme Court it disagreed since the mere waters like fishes would be part of those resources that
determination of the maritime zones will never may be exploited by the coastal state.
affect the size/number of islands that will form
part of the territory of the Philippines since the Applying Measurements in Different Maritime Zones
law of the seas does not determine territorial in the Philippines
ownership ~ Being a party to the UNCLOS, we made some
➔ If the state is not archipelagic (means does not adjustments to the Treaty of Paris Lines
consists of islands) ~ Low-water mark method ~ Philippines occupy 8 geographic features in the
➔ If the state is archipelagic ~ Straight Baseline Kalayaan Group of islands.
Method; ~ Coastal state (Philippines) is permitted to enclose the
(1) each line longer than 100 nautical miles bay with a straight line connecting the two points of the
should not exceed 3% of the total lines drawn in mouth of the bay during low tide if the distance would be
this straight baseline rule, less than 12 nautical miles
(2) should not depart appreciably from the ~ Benham rise is part of the extended continental shelf
natural direction of the coast. of the Philippines. Very rich in marine resources
★ Regime of Islands - If those islands are very far including oil.
from the Philippine Archipelago, if you have valid
claims over them, then it can still be made part Philippines and China’s Territorial Row
of the national territory ~ 9 dash line - China claims all the geographical features
★ 9:1 Water to land Ratio - enclosure should not enclosed in the 9 dash line belong to the republic
exceed the ratio of 9 is to 1, 9 waters and 1 land peoples of China
or terrestrial domain. (UNCLOS) ~ Permanent court of Arbitration (tribunal consisting of 5
judges) Court options for peaceful dispute of UNCLOS
Measurements of Zones of Sea ~ China constructed artificial islands within the exclusive
● Any body of water in the yellow line are the economic zone of the Philippines. Including the spratly’s
internal waters. island and scarborough shore. The arbitral tribunal
● Territorial sea is part of the territory of the state. declared that it was a violation.
(1) terrestrial domain (2) fluvial domain (3)
maritime domain (12 NM, 21-22 kms from the
baseline) (4) aerial domain
Republic of the Philippines vs. People's Republic Of are of serious character. The law states that if
China (July 2016) the coastal state wants to exercise jurisdiction
then it can over these acts (possession and
● UNCLOS III does not resolve “ownership” of homicide). Since it is committed in the internal
geographic features; waters and territory of the British, the latter can
➔ China can only have a claim of the geographic exercise jurisdiction over the acts.
features if it is within China’s exclusive economic
zone B. Would your answer/s be the same if the M/V
● “Submerged banks” and “low-tide Francois were in the territorial sea of the UK?
elevations” are incapable on their own of Why or why not?
generating any entitlements to maritime areas; ➔ Degree/severity of the act committed affects the
➔ Geographic features that china constructed their peace and order and security of the coastal
activities are on submerged banks and low-tide state ~ coastal state can opt to acquire
elevations islands jurisdiction over the case
● “Rocks” which cannot sustain human habitation ➔ French Rule ~ acquires jurisdiction but not if
or do not have economic life of their own do not internal acts
generate on their own entitlements to EEZ or
CS; but they are entitled to a TS and a CZ; C. Will your answer/s be the same if the case
● “Islands” can sustain human habitation or have involved a Naval ship of France? Why or why
economic life on their own; can generate TS, not?
CZ, EEZ and CS. ➔ Rule: Coastal states do not exercise jurisdiction
➔ Extraction is not the kind of economic life or over warships or government ships for as long
activity that is contemplated by the UNCLOS as these government ships do not involve
★ Award of the tribunal: Since it involves themselves in commercial activities. They are
construction of artificial islands and other immune from the jurisdiction of the coastal state.
installations which can only be done exclusively On the notion that these warships or
by a coastal state there was no way for the government ships are not involved in
people's republic of china to justify their activities commercial activities are extensions of the state
in the Spratly islands. where it belongs.
➔ Warships should have prior consent of their
Summary of 2016 RP v. PROC Award voyage to the coastal state.
❖ China’s claim based on historic rights to ➔ “No jurisdiction over the diplomat but the
resources in the South China Sea waters were diplomat can be declared Persona Non Grata”
incompatible with the EEZ regime provided for in Diplomat shall be sent back to the sending state.
the Convention and to that extent they are
deemed extinguished; ➔ Place of registration determines the nationality
❖ The Spratly Island cannot generate maritime of the vessel.
zones collectively as a unit;
❖ None of the features claimed by China was Internal Waters
capable of generating an exclusive economic ● Include ports, harbors, rivers, lakes, and canals,
zone as they are found to be mere low-tide but do not include off-shore installations and
elevations; on the contrary; certain areas artificial islands in the concept of “harbors”
claimed by china are within the EEZ of the ● The coastal state can prohibit entry into its
Philippines; internal waters by foreign ships, except for ships
❖ China’s activities (large-scale land reclamation in distress.
and construction of artificial islands) in the ● Note the rules on “roadsteads” & low-tide
Spratly islands (1) violated Philippine’s elevations”
sovereign rights in its EEZ and (2) inflicted ~ low-tide elevations are considered internal waters if
irreparable harm to the marine environment. still found within the 12 nautical miles of the exclusive
economic zones
Problem: ● The problem with “archipelagic states”: all such
X, an American, was in possession of marijuana, while waters within the straight baseline shall be
on board M/V Francois, a vessel registered in France, considered “archipelagic waters” (ergo, subject
and while the vessel was in British internal waters. When to “right of innocent passage” that is applicable
accosted by Y, a Filipino Captain of the vessel, X killed Y to territorial sea)
in the upper deck of the vessel. ~ territorial sea includes the right of innocent passage
(foreign ship, even warships)
A. Which court has/have jurisdiction over the ~ as an archipelago we should have been recognized as
crime/s committed on board M/V Francois. an archipelagic state (waters enclosed by the baseline)
Explain your answers. ~ there should an archipelagic sea lane so as to allow
➔ As long as it is within the territory of that the exercise of right of innocent passage in the
particular state then the coastal state can archipelagic waters; might intervene with our national
exercise full jurisdiction. CIL, if the act is purely territory
internal to the crew then our courts will not
exercise jurisdiction anymore unless those acts
Territorial Sea obligations or liabilities assumed or incurred by
● Not exceeding 12 nautical miles from the the ship itself in the course or for the purpose of
“baseline” its voyage through the waters of the coastal
● Baselines: 1. Normal Baseline (low-water mark State.
method) and 2. Straight Baseline Method 3. Paragraph 2 is without prejudice to the right of
● Limitation: “Right of Innocent Passage” by the coastal State, in accordance with its laws, to
foreign ships. It is innocent if not prejudicial to levy execution against or to arrest, for the
the peace, good order, or security of the coastal purpose of any civil proceedings, a foreign ship
state. Fishing vessels must comply with local lying in the territorial sea, or passing through
laws and submarines must navigate on the the territorial sea leaving internal waters.
surface and show their flag.
Criminal Jurisdiction on Board a Foreign Ship in
The Right of Innocent Passage (Arts 17-18 UNCLOS Territorial Sea (Art. 27)
III) (not clear whether this right applies to “merchant 1. The criminal jurisdiction of the coastal State
ships” only and not to “warships”) should not be exercised on board a foreign ship
passing through the territorial sea to arrest any
Article 17: Subject to this convention, ships of all States person or to conduct any investigation in
enjoy the right of innocent passage through the territorial connection with any crime committed on board
sea the ship during its passage, save only in the
Article 18: following cases:
1. Passage means navigation through the territorial (a) If the consequence of the crime extend to the coastal
sea for the purpose of: State;
➢ Traversing the sea without entering internal (b) If the crime is of a kind to disturb the peace of the
waters or calling at a roadstead or port facility country or the good order of the territorial sea;
outside internal waters; or (c) If the assistance of the local authorities has been
➢ Proceeding to or from internal waters or a call requested by the master of the ship or by a diplomatic
at such roadstead or port facility agent ot consular officer of the flag State; or
2. Passage shall be continuous and expeditious. (d) If such measures are necessary for the suppression
However, passage includes stopping and anchoring, but of illicit traffic in narcotic drugs or psychotropic
only in so far as the same are incidental to ordinary substances.
navigation or are rendered necessary by force majeure Note: Art. 27 does not apply to foreign ships coming
or distress or for the purpose of rendering assistance to from internal waters.
persons, ships, or aircraft in danger or distress. ~ apply English rule or French rule ( French rule: do not
exercise jurisdiction unless the offense breaches the
Meaning of Innocent Passage (Art. 19) order of the coastal state)
1. Passage is innocent so long as it is not
prejudicial to the peace, good order or NOTE: Warships and other government ships
security of the coastal State. Such passage operated for non-commercial purposes are immune
shall take place in conformity with this from jurisdiction of the coastal state. However, for
Convention and with other rules of international violations of rules in the territorial sea, the government
law. vessel may be ordered to leave the territorial sea and
2. Passage of a foreign ship shall be considered to the flag state may incur responsibility in case of loss or
be prejudicial to the peace, good order or damage suffered as a result.
security of the coastal State if in the territorial
sea it engages in any of the following activities: Contiguous Zone
➔ Paraphrased: threat or use of force, - 24 n.m. from the baseline
weapon exercise, espionage, launching - Coastal State is limited to Protective
or landing of aircraft or other military Jurisdiction only, that is, to prevent
device, violation of customs, fiscal, infringement of its customs, fiscal,
immigration or sanitary laws, willful and immigration or sanitary regulations
serious pollution, fishing, research or - It must be claimed by the coastal state,
surveying activities, interfering with however. It is not granted by law. It is reserved
communications or other facilities, or to the coastal state by law.
“any other activity not having a direct ~ Just like the exclusive economic zone, the contiguous
bearing on passage. zone must also be claimed. Both are not granted by the
UNCLOS III. Exploitation, exploration, management and
Civil Jurisdiction in Relation to Foreign Ships in conservation for the coastal state to have jurisdiction,
Territorial Sea (Art. 28) they must be claimed. A law must be passed to have a
1. The coastal State should not stop or divert a claim and can validly exercise jurisdiction.
foreign ship passing through the territorial sea
for the purpose exercising civil jurisdiction in Exclusive Economic Zone (specific legal regime
relation to a person on board the ship. created by UNCLOS)
2. The coastal State may not levy execution ● Art. 55 - The exclusive economic zone is an
against or arrest the ship for the purpose of any area beyond and adjacent to the territorial sea,
civil proceedings, save only in respect of subject to the specific legal regime established
 in this part, under which the rights and Art. 60 - Artificial Island, installations and structures
jurisdiction of the coastal State, and the rights ➢ The coastal state shall have the exclusive right
and freedoms of other States are governed by to construct and to authorize and regulate the
the relevant provisions of this Convention. construction, operation and use of:
(a) Artificial islands;
Breadth (b) Installations and structures for the purpose
● Art. 57 - The exclusive economic zone shall provided in Art. 56 (exploitation of non-living
not extend beyond 200 nautical miles from resources in the seabed, marine scientific
the baselines from which the breadth of the research, protection and preservation of marine
territorial sea is measured. environment) and other economic purposes;
● Art. 56 - Rights, jurisdiction and duties of the
coastal State in the EEZ ➢ The coastal state shall have exclusive
1. In the exclusive economic zone, the jurisdiction over such artificial islands,
coastal State has: installations and structures, including jurisdiction
(a) Sovereign rights for the purpose of exploring and with regard to customs, fiscal, health safety and
exploiting, conserving and managing the natural immigration laws and regulations.
resources, whether living or nonliving, of the waters
superjacent to the seabed and of the seabed and its Art. 73 - Enforcement of laws and regulations of the
subsoil, and with regard to other activities for the Coastal State
economic exploitation and exploration of the zone, ➢ The coastal state may in the exercise of its
such as the production of energy from the water, sovereign rights to explore, exploit, conserve
currents, and winds; and manage the living resources in the exclusive
(b) Jurisdiction as provided for in the relevant provisions economic zone, take such measures, including
of this Convention with regard to (ii) marine scientific boarding, inspection, arrest and judicial
research (iii) the protection and preservation of the proceedings, as may be necessary to ensure
marine environment; compliance with the laws and regulations
(c) Other rights and duties provided for in this adopted by it in conformity with this Convention.
Convention. ➢ Arrested vessels and their crews shall be
promptly released upon the posting of
2. In exercising its rights and performing its reasonable bond or other security.
duties under this Convention in the ➢ Coastal State penalties for violation of fisheries
exclusive economic zone, the coastal laws and regulations in this exclusive economic
State shall have due regard to the zone may not include imprisonment, in the
rights and duties of other States. absence of agreements to the contrary by the
3. The rights set out in this article with States concerned or any other form of corporal
respect to the seabed and subsoil punishment.
shall be exercised in accordance with ➢ In cases of arrest or detention of foreign vessels
Part VI (Continental Shelf) the coastal State shall promptly notify the flag
state, through appropriate channels, of the
Art. 58 - Rights and duties of other States in the EEZ action taken and of any penalties subsequently
1. In this exclusive economic zone, all States, imposed.
whether coastal or land-locked, enjoy, subject to
the relevant provisions of this Convention, the Continental Shelf
freedoms referred to in Article 87 of navigation ❖ Measuring and Isobath Rule
and overflight and of the laying of submarine ~ depth of 2500 meters, a 100 miles can be extended
cables and pipelines, and other internationally ❖ Rights of Coastal State
lawful uses of the sea related to these freedoms, ❖ Legal Status of Waters and Airspace
such as those associated with the operation of ❖ Rights and Freedoms of other States
ships, aircraft, and submarine cables and ~ can be extended to 350 n.m.
pipelines, and compatible with other provisions
of this Convention. Art. 77- Rights of the coastal state over the
2. Articles 88-115 [rights and duties on the high continental shelf
seas] and other pertinent rules of international 1. The coastal state exercises over the continental
law apply to the exclusive economic zone in so shelf sovereign rights for the purpose of
far as they are not compatible with this Part. exploring it and exploiting its natural resources.
3. In exercising their rights and performing their 2. The rights referred to in paragraph 1 are
duties under this Convention in the exclusive exclusive in the sense that if the coastal State
economic zone, States shall have due regard does not explore the continental shelf or exploit
to the rights and duties of the Coastal State its natural resources, no one may undertake
and shall comply with the laws and these activities without the express consent of
regulations adopted by the coastal State in the coastal state.
accordance with the provisions of this 3. The rights of the coastal state over the
Convention and other rules of international law continental shelf do not depend on occupation,
in so far as they are not incompatible with this effective or notional, or on any express
Part. proclamation.
 4. The natural resources referred to in this part 6. Belligerent Rights
consist of the mineral and other non-living 7. Self-defense
resources of the seabed and subsoil together 8. Authorized by the UN
with living organisms belonging to sedentary
species, that is to say, organisms which at the Jurisdiction of Municipal courts over crimes committed
harvestable stage, either are immobile on or on the high seas:
under the seabed or are unable to move except 1. Flag State Rule and Nationality Principle
in constant physical contact with the seabed or 2. Subjective Territorial Principle
the subsoil. 3. Objective Territorial Principle

Continental Shelf
Art. 78 - Legal status of the superjacent waters and
air space and the rights and freedoms of other JUS AD BELLUM
States
1. The rights of the coastal State over the Two Regimes governing War:
continental shelf do not affect the legal status of ★ Jus Ad Bellum:
the superjacent waters or of the air space above Rules Governing the Resort to Armed Conflict (or Use of
those waters. Force) (Lawful War or Use of Force)
2. The exercise of the rights of the coastal State ★ Jus In Bello:
over the continental shelf must not infringe or Rules Governing the Actual Conduct of Armed Conflict
result in any unjustifiable interference with (Lawful Acts in times of War) [International Humanitarian
navigation and other rights and freedoms of Law]
other States as provided for in this Convention.
Jus Ad Bellum (the law of going to war)
Artificial Islands ● Art. 2(4) of the UN Charter prohibits “use of
force” and “threat to use force”; customary
Art. 80 - On Artificial islands, installations and international law (see again Nicaragua vs. US);
structures on the continental shelf: analyze the scope; note: Retorsion & Reprisal
are coercive measures short of war;
“ Article 60 applies mutatis mutandi (with the ~ Territorial integrity/political independence- use of force
necessary changes having been made) to artificial is prohibited, or in any other manner inconsistent with
islands, installations and structures on the the Purposes of the United Nations.
continental shelf.” ● Any use of force/threat to use force may only be
~ a continental regime is a subset of exclusive economic lawful if done with the collective decision of
zone the UN in cases of threats to peace, breaches of
peace or acts aggression [Chapters V-VII, UN
Charter] (including against international
High Seas terrorism, threats posed by weapons of mass
destruction and on humanitarian grounds); cf:
➢ Beyond 200 n.m. from the baselines Art. 2(7) as limitation;
➢ May be used freely by ships of all nations ● States can only justify use of force in case of
(including land-locked states) self-defense as recognized in Art. 51 of the UN
➢ “Freedom on the high seas” includes: freedom of Charter (individual or Collective Self-defense
navigation, freedom of fishing, freedom to lay [see Arts. 52-53] until the Security Council has
submarine cables and pipelines and freedom to taken measures; the State exercising right of
fly over the high seas. These freedoms are self-defense must report the measures taken to
however subject to certain conventions and the Security Council; Self-Defense must comply
agreements. with the requirements of (1) presence of “armed
attack” and (2) observance of the principles of
As a rule, ships in the high seas are governed only by proportionality and “military necessity”.
(1) International Law ● Art. 2 (7) UN Charter, “nothing contained in the
(2) Law of the flag state present Charter shall authorize the United
~ The “Flag of the State” refers to the nationality of the Nations to intervene in matters which are
flag, which is determined by the place of registration essentially within the domestic jurisdiction of any
~ A ship can only use one flag state or shall require the Members to submit
~ “Flags of Convenience” countries that allow such matters to settlement under the present
registration of a ship for a fee. Charter; but this principle shall not prejudice the
application of enforcement measures under
Interference (by warships) with merchant ships of Chapter VII.
another states in the High Seas:
1. Stateless ships Art. 51 UN Charter - “Nothing in the present Charter
2. Hot pursuit shall impair inherent right of individual or collective
3. Right of Approach self-defence if an armed attack occurs against a Member
4. Treaties of the United Nations, until the Security Council has
5. Piracy
taken measures necessary to maintain international Is there state responsibility on the part of Thailand?
peace and security. What is the appropriate remedy available to the
Rules on Self-Defense: victim’s family under international law?
1. Inherent Case: Caroline case (standard:
“necessity of that self-defense is instant, No, there is no state responsibility on the part of
overwhelming, and leaving no choice of means, Thailand because the acts of the Thai Red-Shirts were
and no moment for deliberation”) not the acts of Thailand.
2. Recognized by Art. 51 of the UN Charter
3. Preventive/Anticipatory Self-defense, still Under the Principle of Attribution or Imputation, a State
contentious only incurs liability for individual acts or omission which
4. 4. Self-defense and claims to territory, can be attributed to it. The Thai Red-Shirts are not its
inconsistent officials, agents, or representatives and they were not
5. Self-defense and nuclear weapons, still broad, acting on the instructions of, or under the direction or
not clearly settled control of, the Thai Government. (R. Sarmiento, Public
6. 6. Self-defense and rescue of hostages, still International Law Bar Reviewer, 2009 Revised Edition,
contentious pp. 65-66)
7. Self-defense against non-state actors (e.g.
Terrorists) still lex ferenda (progressive Unless the Red-Shirts becomes the new Government of
development of law, as what the law should be) Thailand or Thailand acknowledges and adopts the
conduct of the Red- Shirts as its own, the victim’s family
has no appropriate remedy under international law. Their
remedy, if any, is only available under the domestic laws
Bar Questions of Thailand by the institution of the appropriate criminal
cases against the persons responsible for A’ killing and
Concept of Association under International Law. the filing of an action to recover damages arising from
Under international law, an association is formed when A’s death.
two states of unequal power voluntarily establish durable
links. In the basic model, one state, the associate, Compare and contrast the jurisdiction of the
delegates certain responsibilities to the other, the International Criminal Court and the International
principal, while maintaining its international status as a Court of Justice.
state. Free associations represent a middle ground The jurisdiction of the International Criminal Court (ICC)
between integration and independence. primarily deals with the prosecution of individuals for
core international crimes, while the jurisdiction of the
Non-derogable right both during peacetime and in a International Court of Justice (ICJ) deals with
situation of armed conflict. contentious proceedings between States.
“Freedom from torture is a right which is non-derogable
both during peacetime and in a situation of armed As to subject matter jurisdiction (ratione materiae), the
conflict.” jurisdiction of the ICC is limited to the most serious
crimes of concern to the international community as a
Article 2(2) of the U.N. Convention Against Torture whole, particularly:
provides that “No exceptional circumstances (a) the Crime of Genocide;
whatsoever, whether a state of war or a threat of war, (b) Crimes against Humanity;
internal political in stability or any other public (c) War crimes; and
emergency, may be invoked as a justification of torture.” (d) the Crime of Aggression.

Because of the importance of the values it protects, the On the other hand, the jurisdiction of the ICJ covers legal
prohibition of torture has evolved into a peremptory norm disputes which the States refer to. This includes disputes
or jus cogens, that is, a norm that enjoys a higher rank in concerning:
the international hierarchy than treaty law and even (a) the interpretation of a treaty;
ordinary customary rules. The most conspicuous (b) any question of international law;
consequence of this higher rank is that the norm (c) the existence of any fact which, if established, would
prohibiting torture cannot be derogated from by States constitute a breach of an international obligation; and
through international treaties or local or special customs (d) the nature or extent of the reparation to be made for
or even general customary rules not endowed with the the breach of an international obligation. (Article 36, ICJ
same normative force. Statute).
The ICJ also has jurisdiction to give an advisory opinion
A, a British photojournalist, was covering the violent on any legal question as may be requested by the
protests of the Thai Red-Shirts Movement in General Assembly or the Security Council or on legal
Bangkok. Despite warnings given by the Thai Prime questions arising within the scope of the activities of
Minister to foreigners, specially journalists, A moved other organs and specialized agencies of the U.N. upon
around the Thai capital. In the course of his their request and when so authorized by the General
coverage, he was killed with a stray bullet which was Assembly. (Article 96, U.N. Charter)
later identified as having come from the ranks of the
Red-Shirts. The wife of A sought relief from Thai As to jurisdiction over the persons or parties (ratione
authorities but was refused assistance. personae), the ICC shall have the power to exercise its
jurisdiction over persons for the most serious crimes of
international concern, and shall be complementary to
national criminal jurisdictions. (Art. 1, Rome Statute) On
the other hand, only States may be parties in cases
before the ICJ and their consent is needed for the ICJ to
acquire jurisdiction. (R. Sarmiento, Public International
Law Bar Reviewer, 2009 Revised Edition, p. 185)