1. Definition of Public International Law
-set of rules and principles that governs the relationships between states and other international actors, whether natural or juridical.
a. With Private IL
b. With Municipal Law
3. Theories on relation between PIL and ML
4. Sources of IL
-(Art 38 of ICJ statute) -widely accepted
a. Primary Sources
i. Treaty and international Conventions
ii. Customary International Law
a. state Practice
b. Opinio Juris
2. Jus Cogens
iii. General Principles of Law recognized by civilized states
b. Secondary Sources
1. Judicial Decisions and Teachings of highly-qualified and well-known publicists
2. Ex Aequo et bono (Philippine Equity)
>In justice and fairness, according to what is just and good.
It is more of ethical rather than jural.
> Equity is available only in absence of law and not its replacement.
> In ICJ, the parties may apply equitable considerations, if the parties agreed that the dispute be resolved according to equity.
1. Nicaragua vs US (1986)
2. North Sea Continental Shel Cases (1969) ICJ
5. Subjects of IL
a. Traditional subjects states
b. Additional (modern) subjects
6. Scope of IL
– it covers all the interests of contemporary international and even domestic life.
7. Foundations of IL
c. Independence/sovereign (legal) equality of States
8. Obligatory Force of IL
– International law is not binding as a municipal law is binding on its citizens.
EXCEPT: when rules of international law have been embodied in treaties or conventions unqualified adhered to by sovereign states, in which case they are of the same level as domestic laws.
9. Add: the United Nations in IL
a. Salient Points of the UN Charter
b. Principal Organs
1. Sison vs Board of Accounatncy
2. Bank of America v Amrican Realty (1999)
3. Hilton v Guyot (1895)
CHAPTER II (STATEHOOD)
1. State Defined
– A people permanently occupying a fixed territory bound together by common-law habits and custom into one body politic exercising, through the medium pf an organized government, independent sovereignty and control over persons and things within its boundaries, capable of making war and peace and of entering into international relations with other communities of the globe. (United states vs Kusche)
– The organization of social life which exercises sovereign power in behalf of the people.
– In its largest sense, A body of politic or a society of men
2. An entity is considered a state when it meets its requirements, namely,
1. Defined territory
2. Permanent population
3. Control of its own government
4. That it engages in or has the capacity to engage in formal relations with other states.
NOTE: Recognition does not create a state.
3. ELEMENTS OF STATEHOOD
– A sovereign state may acquire territories by:
1. Discovery and Occupation
2. Conquest and Occupation
3. Cession and annexation
4. Combination of the above modes
i. Mode of Acquiring Territory
– (Clipperton Island Arbitration Case)
ii. Principle of uti possidetis
– (Burkina Faso case)
4. Recognition of statehood
– Art 1 of the Institute of International Law, 1936:
o The recognition of a new State is the free act by which one or more States acknowledge the existence on a definite territory of a human society politically organized, independent of any other existing State, and capable of observing the obligations of international law, and by which they manifest therefore their intention to consider it as a member of the international community.
o NOTE: recognition is a political question, decided by the executive branch of government, particularly the President, whose decision to recognize BINDS the JUDGES as well as other OFFICERS and CITIZENS of the government.
– Has a declaratory effect. A recognized state enjoys a rights and privileges of a sovereign state under international law, in its relations with recognizing state. Conversely, a non-recognized state may not claim any of such rights and benefits, and other state has no obligation to extend such rights or benefits.
GR: A foreign state may not sit in judgement on the acts of another sovereign state performed within its territory.
1. Acts done outside its territorial jurisdiction
2. Involving Proprietary transactions
GR: A recognized state cannot be sued in courts in the recognizing state, in view of its right to immunity to suit.
1. When it files suits in the courts of recognizing state, which may amount to waiver of its rights to immunity from suit, as it opens itself to counterclaims.
g. Recognition of a state vs Recognition of a government
h. Privilege to sue in courts of non-recognizing state
– (Banco v Sabbatino)
o Q: WON a non-recognized state may be allowed to file suit in the courts of the non-recognizing state. US and Cuban had severance of diplomatic relations although Cuban was recognized by US.
o HELD: the US Supreme Court ruled that the absence of recognition of the government, being a political question, did not preclude the filing of a suit by a foreign state.
There is a distinction between recognition of a state and recognition of a government of that state.
The recognition of a state is an acknowledgement that the state has complied with all the requirements of a state, and it continues to be a state even though its form of government has been changed. Thus, even if the government of the state has not been recognized by another, that government cannot sue in the recognizing state, but the state or its instrumentality may be allowed to sue.
The privilege to sue is denied only to:
1. Governments at war with the other state
2. To those which are not recognized by the latter.
Guaranty v US
5. Right to SELF-DETERMINATION
a. Distinguished from right to political separation
Western Sahara (Advisory Opinion, 1975)
-what is terra nullus?
-this place is one of the colonies of Spain
HELD: There were legal ties but only legal ties of allegiance and not of sovereignty.
Accordance with IL of the Unilateral Declarion of Independece in Respect of Kosovo (Request for Advisory Opinion) (2010)
6. Binding Effect of the Executive’s position in foreign relations to the courts
– Mingtai Fire and Marine Insurance Co v US (1999)
o WON the executive’s position in foreign relations binds the court.
o HELD: Yes. The Supreme Court has repeatedly held that the Constitution commits to the Executive Branch alone the authority to recognize, and to withdraw recognition from, foreign regimes. Similarly, “governmental action must be regarded as of controlling importance” in determining the status of treaties.
The Warsaw convention in this case does not apply to Taiwan hence the Dc properly upheld the limitation of liability in the airway bill.
The Convention only applies to shipments between territories of signatories, otherwise referred to as “High Contracting Parties.” The parties do not dispute that Taiwan is not a High Contracting Party, nor that China is a High Contracting Party.
7. Rights and Obligations of a state
a. Right to sovereignty
b. Right to equality of states
c. Right to self-defense
d. Right to international discourse
8. Succession of states
1. The former USSR
2. The former Socialist Federal Republic of Yugoslavia
3. China (ROC vs PRC)
Mingtal Fire and Marine Insurance Co vs United Parcel Service (1999)
CHAPTER III. DE FACTO AND REVOLUTIONARY GOVERNMENTS
a. De jure — rightful, legitimate and lawful
b. De facto – government in fact but not in law
i. Note: acts of the legislative, judicial and executive of the de facto are valid
2. Types of de facto governments
a. De facto government in pure legal sense
b. De facto government of paramount force
c. De facto government established by a secessionist movement
1. Pure legal sense:
The government that gets possession and control, of or usurps by force or by the voice of majority, the rightful government and maintains itself against the will of the latter.
Example: England from Parliament to Commonwealth
2. Paramount force:
That which is established and maintained by the military forces who invade and occupy the territory of the enemy in the course of war.
3. Established by a secessionist movement:
Established as an independent government
CASE: Co Kim Cham v. Valdez Tan Keh, G.R. No. L-5, September 17, 1945
ISSU: WON the governments established under the names of the Philippine Executive Commission during the Japanese occupation or regime were de facto government?
a. Gen rule: the municipal laws of a conquered territory, or the laws which regulate private rights continue in force during military occupation and in practice not abrogated.
Except: so far as they are suspended or changed by the conqueror.
b. Gen rule: Any judicial judgments made under the de facto government remains good and valid even after said government is recognized as de jure government. Remains good and valid after liberation.
Exception: When it involves political acts
Hence, the judicial acts and proceedings of those government remain good and valid even after the liberation or reoccupation of the Philippines by US forces.
3. Validity of obligations incurred by de facto government
1. Great Britain-Costa Rica Arbitral Tribunal (Tinoco Arbitration case), 18 October, 1923)
FACTS: Government of Costa Rica under Gonzales was overthrown by Tinoco and affected by such law promulgated by Tinoco is the agreement between British Corporations and Tinoco Government of Costa Rica of certain money claims. Costa Rica did not recognize such money claims on the following grounds:
a. The Tinoco government was not a de facto government
b. Britain is estopped from asserting his rights on the ground of estoppel for its failure too recognize the government of Tinoco.
ISSUE: WON the contracts entered into by the de facto government of Tinoco were valid.
a. Tinoco was a government de facto.
A government which established itself and maintains a peaceful administration, with the acquiescence of the people for a substantial period of time, can be considered a de facto government.
b. Non-recognition does not work injury to the succeeding government in the nature of fraud or breach of faith.
Principle: In case of change of Government against the valid constitutional scheme, the state continue to exist regardless if de facto or de jure government was formed.
2. George W. Hopkins (USA) v. United Mexican States, March 21, 1926
ISSUE: After the Huerta regime, whether the existing government of Mexico is bound by the postal money orders issued during the Huerta regime.
In the field of international relations, governmental transactions are not affected by changes in the higher administration. Such acts remain binding to the state notwithstanding the change of administration.
In this case, Issuance of post stamps is purely governmental routine. Such transaction cannot be affected by the legality or illegality of the Huerta Administration. Because this is a valid governmental act, this is therefore binding to the state of Mexico.
o Q: Effect of Non-recognition of USA to new government
4. Acts of belligerent state as acts of war
1. Underhill v. Hernandez, 168 U.S. 250 (1897)
FACTS: Defendant Hernandez who was the military commander (from Venezuela) representing authority of the revolutionary party as a government, which afterwards succeeded and was recognized by the US was sued for damages in the US court by plaintiff (US citizen).
ISSUE: WON Hernandez is liable for damages for accordingly coercing the plaintiff to operate his waterworks for the benefit of the community and the revolutionary forces.
Every Sovereign state is bound to respect the independence of every sovereign state. The courts of one country will not sit in judgment on the acts of the government of another done within its territory.
Such immunity from suit must extend to the agents of government ruling by paramount force as a matter of fact.
In this case, Hernandez was carrying on military operations in support of the revolutionary party. And because the acts of the defendant were those of a military commander, representing a de facto government in the prosecution of a war, he was not civilly responsible therefor.
o At the time he committed the act, the revolution was still on going.
o It doesn’t matter if the revolution succeeds or not. It cannot be a basis of damages
2. Ford v. Surget, 97 U.S. 594 (1878)
ISSUE: WON the defendant, in obedience to the order of the Confederate Army, during the civil war in America, was liable for damages in burning the cotton of plaintiff, the order having been made to prevent Federal Army from making use of such cotton.
HELD: US SC: NO
The defendant’s action was an act of war upon the part of the military forces of the rebellion, for which person executing such was relieved from civil responsibility.
5. Civil actions pending commenced during de facto government may continue after the liberation
CASE: Co Kim Cham v. Valdez Tan Keh, supra
6. Political acts of de facto governments or belligerents
a. Effect after the de facto government ends
Gen rule: Acts which are neither of political or military complexion continue to be valid even after the de facto government has ceased.
However, those which are political or military complexion cease to be valid after the de facto government comes to an end. These acts which are political complexion are penal sentences or non-penal or punitive acts.
b. Acts that are not of political or military complexion: remains valid
CASE: Alcantara v. Director of Prisons, G.R. No. L-6, November 29, 1945
FACTS: accused was convicted during the Japanese occupation of illegal discharge of firearms with physical injuries. He filed for Habeas Corpus, arguing that having been convicted by courts then in existence, these courts and their proceedings, including his conviction, became illegal and void.
HELD: the court denied the habeas corpus.
General rule: Judicial acts of the de facto government remained good and valid after the restoration of the commonwealth government.
Except: acts of political complexion
In this case, obviously, the sentence which the petitioner is now serving does not have a political complexion. He was charged of an offense punishable under the municipal law of the Commonwealth, the RPC.
Therefore, the sentence of the CFI of Ilocos is valid and enforceable.
a. Definition: the complete overthrow of the established government in any country or state by those who was previously subject to it. Or a sudden, radical and fundamental change in the government or political system, usually defected with violence or at least some acts of violence.
b. EFFECT: When a revolutionary government is installed, the existing government is replaced and the latter’s laws, which are of political complexion and its constitution, along with its Bill of Rights, are suspended or abrogated.
The country’s international treaties and commitments.
Republic v. Sandiganbayan, G.R. No. 104768, July 21, 2003
FACTS: When the EDSA Revolution (done I defiance of the 1073 Consti) took place, the resulting government was indisputably a revolutionary government bound by no constitutional or legal limitations except treaty obligations that the revolutionary government, as the de jure government in the Philippines assumed under international law.
ISSUE: a. WON the revolutionary government was bound by the Bill of Rights of 1973 Constitution during the interregnum, that is, after the actual and effective take-over of power by the revolutionary government.
b.WON the Covenant on Civil Political Rights and the UDHR remained in effect during the interregnum.
A. NO. The BOR of 1973 was not operative during the interregnum.
The right of revolution has been defined as the inherent right of the people to cast out their rulers, change their policy or effect radical forms in their system of government or institutions by force or a general uprising when the legal method of such has proved to be inadequate.
During the interregnum, the directives and orders of the revolutionary government were the supreme law. Because the 1973 constitution was abrogated after the successful revolution, there was no municipal law higher than the directives and orders of the revolutionary government.
Thus, a person could not invoke any exclusionary right under the BOR because there were neither a Constitution nor BOR during the interregnum.
B. YES. The protection accorded to individuals under the Covenant and BOR remained in effect during the interregnum.
In re: Letter of Associate Justice Reynato S. Puno, A.M. No. 90-11-2697-CA, June 29, 1992
c. Judicial decisions of courts of a de facto government
1. Etorma v. Ravelo, G.R. No. L-718, March 24, 1947
2. Notor v. Martinez, G.R. No. L-1892, August 16, 1949
3. Montebon v. Director of Prisons, G.R. No. L-1352, April 30, 1947
4. Haw Pia v. China Banking Corporation, G.R. No. L-554, April 9, 1948
d. Recognition is a political act
CASE: Oetjen v. Central Leather Co., 246 U.S. 297 (1918)
HELD: In the principles of international law, when a government which originates in a revolution or revolt is recognized by the political department of our government as de jure government of the country in which it is established, such recognition is retroactive in effect and validates all the actions and conduct of the government so recognized from the commencement of its existence.
Every Sovereign state is bound to respect the independence of every sovereign state. The courts of one country will not sit in judgment on the acts of the government of another done within its territory.
In the case at bar, it involves a military commander of what must be accepted as the legitimate government of Mexico in the progress of revolution. The remedy therefore must be found in the courts of Mexico and not in this court.
Who is sovereign, de jure or de facto of a territory is not a judicial, but is a political question.
e. Non-recognition: does not render a de facto government not de facto anymore
a. Distinction: recognition vs. existence of de facto government
– Recognition is an executive or presidential prerogative, which, if extended, binds the court.
– There is a distinction between recognition of a de facto government and the existence of a de facto government as a fact. The latter may exist without recognition, as it is a question of fact determined by the courts, while the former is a recognition that the de facto government has control of internal jurisdiction.
– International law recognizes that acts of de facto government, except those which are of political complexion, continue to be valid even after it had ceased and the original government reinstated by the defeat of the military forces that installed the de facto government.
b. Denunciation of rightful government of a de facto government as a “puppet” government
CASE: Etorma v. Ravelo, supra
The conclusion that the government of the Philippine Executive Commission and the so-called REP of the Philippines were not governments de facto, because they were no recognized and were called puppet governments by executive and legislative departments of the US is untenable. If such government is established in the Philippines and recognized by the executive and legislative depts. Of the US, they would ave beend e jure or de facto; and they were called puppet governments because they were not established by a legitimate sovereign, but they were a government de facto.
– A puppet government is one that acts as another wills or dictates.
The RP of the Philippines was a puppet government, because although set up apparently as a free and independent government, was in truth, and in fact, a government facto established by the belligerent occupant or Japanese military forces.
CHAPTER IV. SOVEREIGNTY
a. Definition :
– Absolute, and
– Power by which any independent state is governed
– Supreme independent political authority over its territory
– The power to make laws, to decide cases, to rule and to govern, correlated to jurisdiction
i. Internal – within its territory
ii. External – its relationship with other states
c. Vested in the rightful government
2. Attributes of a sovereign state
3. Change of ruler/government
a. Instances of change of ruler/government
b. Effects of change of ruler/government
c. What may be suspended: EXERCISE OF THE RIGHT OF SOVEREIGNTY, not sovereignty itself
(THEORY OF SUSPENDED ALLEGIANCE)
CASE: Laurel v. Misa, G.R. No. L-409, January 30,
FACTS: Anastacio Laurel filed a petition for habeas corpus contending that he cannot be prosecuted for the crime of treason defined and penalized by the Article 114 of the Revised Penal Code on the grounds that the sovereignty of the legitimate government and the allegiance of Filipino citizens was then suspended, and that there was a change of sovereignty over the Philippines upon the proclamation of the Philippine Republic.
1. Is the absolute allegiance of the citizens suspended during Japanese occupation?
2. Is the petitioner subject to Article 114 of the Revised Penal Code?
The absolute and permanent allegiance of the inhabitants of a territory occupied by the enemy of their legitimate government on sovereign is not abrogated or severed by the enemy occupation because the sovereignty of the government or sovereign de jure is not transferred to the occupier.
There is no such thing as suspended allegiance. UNLESS the de facto enacts another law otherwise.
The petitioner is subject to the Revised Penal Code for the change of form of government does not affect the prosecution of those charged with the crime of treason because it is an offense to the same government and same sovereign people.
4. Restrictions on sovereignty in general
a. GR: sovereignty is absolute and supreme within its territorial domain
i. EXCEPTION: consent to restriction of sovereignty
b. Waiver of criminal jurisdiction over certain offenses within territory
1. People v. Gozo, G.R. No. L-36409 October 26, 1973
2. Reagan v. CIR, G.R. No. L-26379, December 27, 1969
3. Reid v. Covert, 354 U.S. 1 (1957) N/A
5. Restrictions on sovereign rights by treaty stipulation
a. Example No. 1: The World Trade Organization (WTO)
CASE: Tañada v. Angara, G.R. No. 118295, May 2, 1997
b. Example No. 2: Extradition Treaties
i. Extradition defined
ii. Entering into an extradition treaty is a derogation of sovereignty; no right of extradition arises apart from a treaty
iii. Paramount principle in law of extradition: A state may not surrender any individual for any offense not included in the extradition treaty s
v. Obligation to extradite of the requested state: only arises after determination of the validity of the requesting state’s demand
vi. double criminality rule
1. Gov’t of U.S. v. Purganan, G.R. No. 148571, September 24, 2002
2. Gov’t of Hong-Kong v. Olalia, G.R. No. 153675, April 19, 2007
3. Gov’t of Hong-Kong v. Muñoz, G.R. No. 207342, August 16, 2016
6. Waiver of jurisdiction by adherence to conventions
a. GR: Jurisdiction over the subject matter is defined by the Constitution and the laws
i. EXC: concession of jurisdiction by treaty
CASE: Santos v. Northwest Airlines, G.R. No. 101538, June 23, 1992
7. Duty of state to protect its citizen
1. Dames & Moore v. Reagan, 453 U.S. 654 (1981)
2. Case Concerning Avena and Other Mexican Nationals (Mexico v. U.S.), 2004 I.C.J. 12, March 31, 2004 Aftermath: read Medellin v. Texas, 552 U.S. 491 (2008)
3. Holy See v. del Rosario, G.R. No. 101949 December 1, 1994
8. Extra-Judicial Application of Laws in Respect to Citizens
a. Citizenship – link that binds a citizen to his country
1. Blackmer v. U.S., 284 U.S. 421 (1932)
2. EEOC v. Arabian American Oil Co., 499 U.S. 244 (1991)
b. GR: STATUTORY TERRITORIALITY: Laws only apply in the territory of the state
i. EXC: contrary intent clearly appears
a. Philippine laws that apply to citizens abroad
1. Constitutional provisions
2. Civil Code provisions
3. Tax laws of the Phils.
4. The Corporation Code
5. GR: If Phil. Law is silent, Phil. Courts are not at liberty to extend the force and effect of foreign law to our jurisdiction; EXC: Congress, by law, gives consent to the extension of a specific foreign law to the Phils.
CASE: Brownell v. Bautista, G.R. No. L-6801, September 28, 1954
9. Problems of dual citizenship
a. Dual citizenship defined
b. RA 9225
10. Sovereignty over a leased portion of the country
CASE: U.S. v. Spelar, 338 U.S. 217 (1949)
11. Exceptions to territorial application of law by consent
CASE: Brownell v. Bautista, supra
12. Other forms of implied waiver
CASE: U.S. v. Verdugo-Urquidez, 494 U.S. 259 (1990)
CHAPTER V. ACT OF STATE DOCTRINE
a. Classic formulation
i. Underlying policy/basis
CASE: Underhill v. Hernandez, 168 U.S. 250 (1897)
b. Modern formulation
CASE: Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398 (1964)
c. Equivalent terms: doctrine of judicial prudence; etc.
2. Equivalent terms: doctrine of judicial prudence; etc.
3. AOSD a domestic-court doctrine
Banco Nacional de Cuba v. Sabbatino, supra
First National City Bank v. Banco Nacional de Cuba (Application of Bernstein Exception), 406 U.S. 759 (1972)
Credit Suisse v. US District Court, 130 F.3d 1342 (1997) (USCA, 9th Circuit, December 3, 1997)
Philippine National Bank v. US District Court for the District of Hawaii, 397 F.3d 768 (2005) (USCA, 9th Circuit, February 4, 2005 à [NOT IN AGPALO]
5. Changes in the ASD
CASE: Kirkpatrick Co. v. Environmental Tectonics Corp., 493 U.S. 400 (1990)
6. Exceptions to the AOSD***
a. Treaty exception
CASE: Kalamazoo Spice Extraction Co. v. The Provisional Military Gov’t of Socialist Ethiopia [729 F.2d 422 (6th Cir. 1984)]
b. Commercial exception
Alfred Dunhill of London Inc. v. Cuba, 425 U.S. 682 (1976)
Bank of US v. Planter’s Bank of Georgia, 22 U.S. 904 (1824)
Ohio v. Helvering, 292 U.S. 360 (1934)
Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371 (USCA 5th Circuit)
c. Situs of property exception
d. When the Foreign Affairs/State Department rules that the ASD is not required
CASE: First National City Bank v. Banco Nacional de Cuba, supra
e. When act of state committed by officials of a foreign government violates national and international law and is considered illegal under the constitution and laws of that foreign government
CASE: Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
CHAPTER VI. JURISDICTION
1. Jurisdiction, generally
CASE: Schooner Exchange v. McFaddon, 11 U.S. 116 (1812)
2. Principles of jurisdiction
a. Bases: The 6 Principles of jurisdiction
b. Pre-requisite for acquisition of judicial jurisdiction
3. Territorial jurisdiction
a. General concepts
4. Philippine territorial jurisdiction
a. Definition of national territory in the Constitution
b. Characteristic of jurisdiction in national territory
5. Waiver of criminal jurisdiction
a. GR: jurisdiction is absolute and exclusive; EXC: waiver in favor of another state thru treaty
i. RP-US Military Bases Agreement
People v. Acierto, G.R. Nos. L-2708 and L-3355-60, January 30, 1953
Dizon v. Phil. Ryukus Command, G.R. No. L-2110, July 22, 1948
ii. Visiting Forces Agreement
CASE: Bayan v. Zamora, G.R. No. 138570, October 10, 2000
6. Vessel is an extension of the state of its registry
a. Registry, as a rule, determines nationality of a vessel
Assali v. Commissioner of Customs, G.R. No. L-24170, December 16, 1968
Lauritzen v. Larsen, 345 U.S. 571 (1953)
7. Internal discipline pertains to state of vessels registry
a. General Rule and Exception
b. Basis: Comity
Benz v. Compania Naviera Hidalgo, 353 U.S. 138 (1957)
McCulloch v. Sociedad Nacional de Mareneros de Honduras, 372 U.S. 10 (1963)
8. Jurisdiction over crimes committed on board vessel
a. Rule on territoriality and Exception
b. Rule on concurrent jurisdiction and Exception
c. Rule if the vessel of foreign registry is in the Philippines
US v. Flores, 289 U.S. 137 (1933)
US v. Look Chaw, G.R. No. L-5887 December 16, 1910
People v. Wong Cheng, G.R. No. L-18924, October 19, 1922
Wildenhus’ case, 120 U.S. 1 (1887)
9. Jurisdiction over collusion in high seas
CASE: The Case of SS Lotus (France v. Turkey), P.C.I.J. (ser. A) No. 10 (1927)
10. Jurisdiction over crimes on board aircraft or airship
11. Active, passive personality, and protective jurisdiction
12. Universal jurisdiction
The Eichmann case (Attorney General v. Adolf Eichmann), Criminal Case No. 40/61
Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
13. Jurisdiction by treaty