sample problems in public international law

1.Concerning ERGA OMNES: (A) what is its literal meaning? (b) What does it mean within the context of international law? (c) Give two examples of erga omnes.

Erga omnes is a Latin phrase which literally means "towards all" or "towards everyone". In legal terminology, erga omnes rights or obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore enforceable against anybody infringing that right. An erga omnes right (a statutory right) can here be distinguished from a right based on contract, which is only enforceable against the contracting party.

In international law it has been used as a legal term describing obligations owed by states towards the community of states as a whole. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). Consequently, any state has the right to complain of a breach. Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial discrimination. The concept was recognized in the International Court of Justice's decision in the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph 33]:

2. Explain the principle of clausula rebus sic stantibus. What is its literal meaning? As a legal doctrine, what does it mean? What are the two justifications for its invocation?

In public international law, clausula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept).

Because the doctrine poses a risk to the security of treaties as its scope is relatively unconfined, it requires strict regulations as to the conditions in which it may be invoked.

The doctrine is part of customary international law, but is also provided for in the 1969 Vienna Convention on the Law of Treaties under Article 62 (Fundamental Change of Circumstance), although the doctrine is never mentioned by name. Article 62 provides the only two justifications of the invocation of rebus sic stantibus: first, that the circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the obligations of treaty (sub-paragraph A) and the instance wherein the change of circumstances has had a radical effect on the obligations of the treaty (sub-paragraph B).

If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not apply and the provision remains in effect. Clausula rebus sic stantibus only relates to changed circumstances that were never contemplated by the parties. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom v. Iceland, 1973).

Although it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty, unilateral denunciation of a treaty is prohibited; a party does not have the right to denounce a treaty unilaterally.

3.What do you understand by “the modern international law of the acquisition (or attribution) of territory”?

 “The modern international law of the acquisition (or attribution) of territory generally requires that there be: an intentional display of power and authority over the territory, by the exercise of jurisdiction and state functions, on a continuous and peaceful basis. The latter two criteria are tempered to suit the nature of the territory and size of its population, if any.”2
In the 1931 award in the dispute between Mexico and France over the sovereignty of Clipperton Island, located in the Pacific Ocean 1280 km (about 690 nautical miles) southwest of Acapulco, Mexico, the King of Italy as sole arbitrator had previously stated the rules this way:

It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of possession consists in the act, or series of acts, by which the occupying state reduces to its possession the territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in ordinary cases, that only takes place when the state establishes in the territory itself an organization capable of making its laws respected. But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore, is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first moment when the occupying state makes its appearance there, at the absolute and undisputed disposition of that state, from that moment the taking of possession must be considered as accomplished, and the occupation is thereby completed.

4. Explain the concept of “association” of states in international law. In international practice, what is the use of these ‘associative states”? Is concept of “association” recognized under the 1987 Constitution? Explain.

The nature of the "associative" relationship may have been intended to be defined more precisely in the still to be forged Comprehensive Compact. Nonetheless, given that there is a concept of "association" in international law, and the MOA-AD - by its inclusion of international law instruments in its TOR- placed itself in an international legal context, that concept of association may be brought to bear in understanding the use of the term "associative" in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as a state. Free associations represent a middle ground between integration and independence. x x x¹⁵⁰

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-administered Trust Territory of the Pacific Islands,¹⁵¹ are associated states of the U.S. pursuant to a Compact of Free Association. The currency in these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands or the FSM on matters which it (U.S. government) regards as relating to or affecting either government.

X X X

In international practice, the "associated state" arrangement has usually been used as a transitional device of former colonies on their way to full independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.¹⁵³

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These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

5. Palmas, also referred to as Miangas, is an island of little economic value or strategic location. It is two miles in length, three-quarters of a mile in width, and had a population of about 750 when the decision of the arbitrator was handed down. The island is located between Mindanao, Philippines and the northern most island, known as Nanusa, of what was the former Netherlands East Indies. In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898) and Palmas sat within the boundaries of that cession to the U.S. In 1906, the United States discovered that the Netherlands also claimed sovereignty over the island, and the two parties agreed to submit to binding arbitration by the Permanent Court of Arbitration.

The question the arbitrator was to resolve was whether the Island of Palmas (Miangas), in its entirety, was a part of the territory of the United States or the Netherlands.
The legal issue presented was whether a territory belongs to the first discoverer, even if they do not exercise authority over the territory, or whether it belongs to the state which actually exercises sovereignty over it.

How was the issue resolved? In short, what country is the real owner of the territory?

6. In an 1892 revolution, General José Manuel "Mocho" Hernández expelled the existing Venezuelan government and took control of Ciudad Bolivar, where plaintiff Underhill lived and ran a waterworks system for the city. Underhill, an American citizen, repeatedly applied to Hernandez for an exit passport, but his requests were refused, and Underhill was forced to stay in Ciudad Bolivar and run the waterworks. Hernandez finally relented and allowed Underhill to return to the United States, where he instituted an action to recover damages for his detention in Venezuela. In finding for the Defendant, a New York Court determined that Hernandez had acted in his official capacity as a military commander so his actions were those of the Venezuelan government. The Court therefore refused to hear Underhill's claim against the government.

Questions: Is the Court correct? What principle of international law is used in this dispute? Explain.

ANSWER:…based on the Act of State Doctrine. The Court reasoned, "Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another, done within its own territory.

7. The UN Secretary General sometimes to settle a dispute between two states, visits each, and proposes a solution to their problem. He may do this either privately or publicly. What is the international term for this mode of settling an international dispute?

Answer: The UN Secretary General uses what is termed his "good offices" (generally meaning his prestige and the weight of the world community he represents) when he meets with world leaders, either publicly or privately, in an effort to prevent international disputes from developing, escalating, or spreading. For example, in 1998 Kofi Annan negotiated a settlement of the dispute between Iraq and the U.S. over arms inspections in Iraq. He used the prestige of his office and the threat of UN Security Council action if no agreement was reached to force Saddam Hussein to allow continuation of UN inspections. Earlier examples include U Thant's assistance during the Cuban Missile Crisis, and Javier Perez de Cuellar's mediation of the Soviet withdrawal from Afghanistan

8. What is a thalweg? How is it used to solve a dispute on boundaries between two states?

 “The Thalweg Doctrine defines the border between two states separated by a watercourse or flowing body of water as lying along the thalweg, which is the line of greatest depth of the channel or watercourse.”

9. “Every statute is understood, x x x , to contain all such provisions as may be necessary to effectuate its object and purpose, or to make effective rights, powers, privileges or jurisdiction which it grants, including all such collateral and subsidiary consequences as may be fairly and logically inferred from its terms.Ex necessitate elegis . . . .”

What is the name of the doctrine exemplified by said statement?

10. Mr. X filed a case of Abuse of Authority against the Mayor. The Mayor’s Budget Officer and Legal Officer  were also included in the suit, as conspirators of said abuse. Another criminal case was filed against the Mayor for  Technical Malversation. The Mayor won by a landslide vote in the next election. The mayor and his other co-accused/respondents file a motion to have all the cases dismissed.

Question: As hearing officer/ judge, will you dismiss the above mentioned cases? Explain.