EUROPEAN COURT OF HUMAN RIGHTS

The European Court of Human Rights (French: Cour européenne des droits de l’homme; ECtHR) in Strasbourg is a supra-national court established by the European Convention on Human Rights and hears complaints that a contracting state has violated the human rights enshrined in the Convention and its protocols. Complaints can be brought by individuals or other contracting states, and the Court can also issue advisory opinions. The Convention was adopted under the auspices of the Council of Europe and all of its 47 member states are parties to the Convention.

History and structure

The Court was established on the 21 January 1959 by virtue of Article 19 of the European Convention on Human Rights when eight signatories acknowledged the jurisdiction of the Court. The function of the Court is "to ensure the observance of the engagement undertaken" by the contracting states in relation to the Convention and its protocols. The jurisdiction of the Court has been recognised by 47 European states. Under Protocol no.11 of the Convention, effective since 1 November 1998, the Court became full-time and the European Commission of Human Rights was abolished.^[1]

The accession of new states to the European Convention on Human Rights following the fall of the Berlin Wall in 1989 led to a sharp increase in applications to the Court. The effectiveness of the Court was hampered by the large number of pending applications accumulating, which grew steadily. In 1999 8,400 applications were allocated to be heard, in 2003 it was 27,200 cases, with approximately 65,000 pending applications. In 2009 57,200 applications were allocated, with the number of pending applications rising to 119,300. At the time more than 90 percent of applications were deemed inadmissible, and 60 percent of decision by the Court related to what is termed repetitive cases, where the Court has already delivered judgement finding a violation of the European Convention on Human Rights or where well established case law exists. The Protocol no.11 reforms thought to deal with the backlog of pending applications by establishing the Court full-time, simplifying the system and reducing the length of proceedings. However, as the workload of the Court continued to increase, contracting states agreed to reform the Court again and in May 2004 the Council of Europe Committee of Ministers adopted Protocol no.14 to the European Convention on Human Rights. Protocol no.14 aimed to reduce the workload of the Court and that of the Committee of Ministers of the Council of Europe, which supervises the execution of judgements, so that the Court could focus on cases that raise important human rights issues.^[2]

Protocol no.14 reforms 2010

Protocol no.14 entered into force on 1 June 2010, three months after it was ratified by all 47 contracting states to the Convention.^[3] Between 2006 and 2010, Russia was the only state of 47 contracting states to refuse to ratify Protocol no.14. In 2010, Russia ended its opposition to the protocol, in exchange for a guarantee that Russian judges would be involved in reviewing complaints against Russia.^[4] Protocol no.14 led to reforms in three areas: The Court's filtering capacity was reinforced to deal with clearly inadmissible applications, new admissibility criteria where introduced for cases where the applicant has not suffered a significant disadvantage, and measures were introduced to deal more effectively with repetitive cases.^[5]

Protocol no.14 amended the Convention so that judges would be elected for a non-renewable term of nine years, whereas previously the term was six years with the option of renewal. Amendments were made so that a single judge could reject plainly inadmissible applications, prior to the reforms only a three judges committee could make this final decision. In cases of doubt, the single judge refers the applications to the Committee of the Court. A single judge may not examine applications against the state in respect of which he or she was elected. The three judge committee was empowered to declare applications admissible and decide on the merits of the case if it was clearly well founded and on the basis of well established case law. Previously the three judge committee could declare the case inadmissible, but could not make decisions on the merits of the case, which could only be done by a chambers of seven judges or the Grand Chamber. Protocol no.14 also provides that when a three judge committee decides on the merits of a case, the judge elected to represent that state is no longer a compulsory member of the committee. The judge can be invited by the committee, to replace one of its members, but only for specific reasons, such as when the application relates to the exhaustion of national legal remedies.^[6]

Protocol no.14 empowered the Court to declare applications inadmissible where the applicant has not suffered a significant disadvantage and which do not raise serious questions affecting the application or the interpretation of the Convention, or important questions concerning national law. The European Commissioner for Human Rights is now allowed to intervene in cases as a third party, providing written comments and taking part in hearings. In order to reduce the workload of the Court Protocol no.14 encourages settlements at an early stage of the proceedings, especially in repetitive cases. The Committee of Ministers supervises the settlement's execution. Protocol no.14 also allows the Committee of Ministers to ask the Court to interpret a final judgement if there are difficulties in the execution of a final judgement. In order to prevent repetitive applications concerning structural problems in contracting states on which the Court has previously made a final decision, the Committee of Ministers can in exceptional circumstances and with a two third majority, initiate proceedings for non-compliance with a final decision in the Grand Chamber of the Court. Article 17 of protocol no.14 allows the European Union to become party to the Convention. In turn the Lisbon Treaty, which entered force in December 2009, provides that the European Union should access the Convention.^[7] The Committee of Ministers is to evaluate in 2012 to 2015 the extent to which the implementation of Protocol no.14 has improved the effectiveness of the Court. The Committee of Ministers is to decide before 2019 whether more profound reforms of the Court are necessary.^[8]

Judges

Prior to the adoption of Protocol no.14, judges were elected for a six-year term, with the option of renewal. Now judges are elected for a non-renewable nine year term.^[9] The number of full-time judges sitting in the Court is equal to that of the contracting states to the European Convention on Human Rights. The Convention requires that judges are of high moral character and to have qualifications suitable for high judicial office, or be a jurisconsult of recognised competence. Judges are elected by majority vote in the Parliamentary Assembly of the Council of Europe from the three candidates each contracting state nominates. Judges are elected whenever a sitting judge's term has expired or when a new states accedes to the Covenant. Judges must retire at the age of 70, but may hold office until a new judge is elected and/or the cases in which they sit have come to an end. The judges perform their duties in an individual capacity and have no institutional or other ties with the contracting state on behalf of whom they were elected. To ensure the independence of the Court judges are not allowed to participate in activity that may compromise the Court's independence. They can only be dismissed from office if the other judges decide, by two-thirds majority, that the judge has ceased to fulfil the required conditions. Judges are, for the duration of their term, beneficiaries of the privileges and immunities provided in Article 4 of the Statute of the Council of Europe.^[10]

Plenary court and administration

The plenary court is an assembly of all judges, which has no jurisdictional function, but elects a president, vice-president, registrar and deputy registrar. It also deals with administrative matters, discipline, working methods, reforms, the establishment of Chambers and the adoption of the Rules of Court.^[11]

Jurisdiction

The jurisdiction of the court broadly divides into inter-state cases, applications by individuals against contracting states, and advisory opinions in accordance with Protocol No.2. Applications by individuals constitute the majority of cases heard by the Court.^[12] Judges sit in Committee of three judges, Chambers of seven judges and a Grand Chamber of 17 judges to perform jurisdictional functions.^[13]

Applications by individuals

Applications by individuals against contracting states, alleging that the state violates their rights under the European Convention on Human Rights, can be made by any person, non-governmental organisation or group of individuals. Once registered with the Court, the case is assigned to a judge rapporteur, which can make the final decision that the case is inadmissible. A case may be inadmissible when it is incompatible with ratione materiae, ratione temporis or ratione personae, or if the case cannot be proceeded with on formal grounds, such as non-exhaustion of domestic remedies, lapse of the six months form the last internal decision complained of, anonymity, substantial identity with a matter already submitted to the Court, or with another procedure of international investigation. If the rapporteur judge decides that the case can proceed, the case if referred to a Chamber of the Court which, unless it deems the application inadmissible, communicates the case to the government of the state against which the application is made, asking the government for its observations. The Chamber of Court then deliberates and judges the case on admissibility and merit. Cases which raise serious questions of interpretation and application of the European Convention on Human Rights, a serious issue of general importance, or which may depart from previous case law can be heard in the Grand Chamber if all parties to the case agree to the Chamber of the Court relinquishing jurisdiction to the Grand Chamber. A panel of five judges decides whether the Grand Chamber accepts the referral.^[14][15]

Inter-state cases

Any contracting state to the European Convention on Human Rights can sue another contracting state in the Court for alleged breaches of the Convention.^[16]

Advisory opinion

The Committee of Ministers may, by majority vote, request the Court to give advisory opinions on legal questions concerning the interpretation of the European Convention on Human Rights, unless the matter relates to the content and scope of fundamental rights which the Court already considers.^[17]

Procedure and decisions

After the preliminary finding of admissibility the Court examines the case by hearing representations from both parties. The Court may undertake any investigation it deems necessary and contracting states are required to provide the Court with all necessary assistance for this purpose. The European Convention on Human Rights requires that all hearings, unless there are exceptional circumstances, are heard in public. In practice the majority of cases are heard in camera following written pleadings. In confidential proceedings the Court may assist both parties in securing a settlement, in which case the Court monitors the compliance of the agreement with the Convention. The judgement of the Grand Chamber is final, Judgements by the Chamber of the Court becomes final three months after it has been issued, unless a reference to the Grand Chamber has been made. If the panel of the Grand Chamber rejects the request for referral the judgement of the Chamber of the Court becomes final.^[18]

In final judgements the Court makes a declaration that a contracting state has violated the Convention, and may order the contracting state to pay material and/or moral damages and the legal costs incurred in domestic courts and the Court in bringing the case. Article 46 of the Convention provides that contracting states undertake to abide by the Court's final decision. Advisory opinions are not binding. The Court has thus far held that the Convention does not provide it with the power to repeal offending domestic laws or administrative practices. The Committee of Ministers of the Council of Europe is charged with supervising the execution of the Court's judgement. The Committee of Ministers oversees the contracting states changes to domestic law to make them compatible with the Convention, or individual measures taken by the contracting state to redress violations. In practice judgments by the Court are usually complied with.^[19]

Relationship with other courts

The European Court of Justice

The Court of Justice of the European Union (ECJ) is not related to the European Court of Human Rights. However, since all EU states are members of the Council of Europe and have signed the Convention on Human Rights, there are concerns about consistency in case law between the two courts. Therefore, the ECJ refers to the case-law of the Court of Human Rights and treats the Convention on Human Rights as though it was part of the EU's legal system. Even though its members have joined, the European Union itself has not, as it did not have competence to do so under previous treaties. However, EU institutions are bound under article 6 of the EU Treaty of Nice to respect human rights under the Convention. Furthermore, since the Treaty of Lisbon took effect on 1 December 2009, the EU is expected to sign the Convention. This would make the Court of Justice bound by the judicial precedents of the Court of Human Rights and thus be subject to its human rights law, resolving issues of conflicting case law.^{[citation needed]}

National courts

Most of the Contracting Parties to the European Convention on Human Rights have incorporated the Convention into their own national legal orders, either through constitutional provision, statute or judicial decision.^[20]

Criticism

The court's interpretation of the Convention's reach is at times subject to criticism as either too narrow or too wide. For instance, the former judge in respect of Cyprus, Loukis Loucaides, criticized the Court for a "reluctance to find violations in sensitive matters affecting the interests of the respondent States".^[21] On the other hand, the British Law Lord Hoffmann considered that the Court has not taken the doctrine of the margin of appreciation far enough, being "unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on Member States. It considers itself the equivalent of the Supreme Court of the United States, laying down a federal law of Europe".^[22] He was joined in the criticism by the president of the Belgian Constitutional Court, Marc Bossuyt.^[23]

Criticism from Russia, a country held to be in violation of the Convention by the Court in many decisions, is frequent. The Court's judge in respect of Russia, Anatoly Kovler, explaining his frequent dissenting opinions, noted that "I dislike when the Court evaluates non-European values as reactionary (Refah v. Turkey)".^[24] The chairman of the Russian Constitutional Court Valery Zorkin, pointing to the Markin v. Russia case, stated that Russia has the right to create a mechanism of protection from Court decisions "touching the national sovereignity, the basic constitutional principles".^[25]

There has also been criticism of the Court's structure. Loucaides wrote that by introducing in its Rules a Bureau, the Court created "a separate collective organ that had nothing to do with the structure of the Court organs according to the Convention".^[26]

INTERNATIONAL LAW

International law is the set of rules generally regarded and accepted as binding in relations between states and nations.^[1] It differs from national legal systems in that it only concerns nations rather than private citizens. National law may become international law when treaties delegate national jurisdiction to supranational tribunals such as the European Court of Human Rights or the International Criminal Court. Treaties such as the Geneva Conventions may require national law to conform.

The term "international law" can refer to three distinct legal disciplines:

• Public international law, which governs the relationship between provinces and international entities. It includes these legal fields: treaty law, law of sea, international criminal law and the laws of war or international humanitarian law.
• Private international law, or conflict of laws, which addresses the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.
• Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

• jus gentium — law of nations
• jus inter gentes — agreements between nations

Sources of international law

All sources of international law are from treaties and covenants which regulate relations between nations. They have been influenced by a range of political and legal theories. During the 20th century, it was recognized by legal positivists that a sovereign state could limit its authority to act by consenting to an agreement according to the principle pacta sunt servanda. This consensual view of international law was reflected in the 1920 Statute of the Permanent Court of International Justice, which was succeeded by the United Nations Charter. and is preserved in the United Nations Article 7 of the 1946 Statute of the International Court of Justice.

Public international law

Public international law (or international public law) concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either:

1. custom, or customary international law (consistent provincial practice accompanied by opinio juris),
2. globally accepted standards of behaviour (peremptory norms known as jus cogens or ius cogens), or
3. codifications contained in conventional agreements, generally termed treaties.

Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).

International law has existed since the Middle Ages but much of its modern corpus began developing from the mid-19th century.Two sophisticated legal systems developed in the Western World: the codified systems of continental European states (Civil Law) and the judge-made law of England (Common Law). The fall of the Roman civilization did not result in the loss of the concepts of Roman Law. Starting in the later Middle Ages, unlegislated Roman law (ius commune or lex mercatoria) was applied by merchants in northern Italian city states and north-western European countries as the basis for commercial (and other) relationships. In the 20th century, the two World Wars and the formation of the League of Nations (and other international organizations such as the International Labor Organization) all contributed to accelerate this process and established much of the foundations of modern public international law. After the failure of the Treaty of Versailles and World War II, the League of Nations was replaced by the United Nations, founded under the UN Charter. The UN has also been the locus for the development of new advisory (non-binding) standards, such as the Universal Declaration of Human Rights. Other international norms and laws have been established through international agreements, including the Geneva Conventions on the conduct of war or armed conflict, as well as by agreements implemented by other international organizations such as the ILO, the World Health Organization, the World Intellectual Property Organization, the International Telecommunication Union, UNESCO, the World Trade Organization, and the International Monetary Fund. The development and consolidation of such conventions and agreements has proven to be of great importance in the realm of international relations.

Conflict of laws

Conflict of laws, often called "private international law" in civil law jurisdictions, is less international than public international law. It is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the number of disputes of an inter-state nature outside a unified legal framework, and raises issues of the enforceability of standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958.

Supranational law

International courts

There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one with universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice, and the International Criminal Court (when national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport

East Africa Community

There were ambitions to make the East African Community, consisting of Kenya, Tanzania, Uganda, Burundi and Rwanda, a political federation with its own form of binding supranational law but this effort has not been completed.

Union of South American Nations

The Union of South American Nations is for the South American continent. It intends to establish a framework akin to the European Union by the end of 2019. It is envisaged to have its own passport and currency, and limit barriers to trade.

Andean Community of Nations

The Andean Community of Nations is the first attempt the countries around the Andes Mountains in South America. It started with the Cartagena Agreement of 26 May 1969, and nowadays consists in four countries: Bolivia, Colombia, Ecuador and Peru. It does have a supranational law, called Agreements, which are mandatory for these countries.

"an opinion of law or necessity"

Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris ("an opinion of law") is the belief that an action was carried out because it was a legal obligation. This is in contrast to an action being the result of different cognitive reaction, or behaviors that were habitual to the individual. This term is frequently used in legal proceedings such as a defense for a case.

Opinio juris is the subjective element of custom as a source of law, both domestic and international, as it refers to beliefs. The other element is state practice, which is more objective as it is readily discernible. To qualify as state practice, the acts must be consistent and general international practice.

State applications

A situation where opinio juris would be feasible is a case concerning self-defense. A condition must be met where the usage of force is limited to the situation at hand. The act of striking an attacker may be done with legal justification; however, legal territory limits the acceptability of such a claim. Even in this case, the usage of force must be acceptable to the conditions of the environment, the attacker, and the physical conditions of the people involved, as well as any weapons or tools used.

International applications

In international law, opinio juris is the subjective element which is used to judge whether the practice of a state is due to a belief that it is legally obliged to do a particular act.^[1] When opinio juris exists and is consistent with nearly all state practice, customary international law emerges. Opinio juris essentially means that states must act in compliance with the norm not merely out of convenience, habit, coincidence, or political expediency, but rather out of a sense of legal obligation.^[2] [1] Article 38(1)(b) of the Statute of the International Court of Justice accepts “international custom” as a source of law, but only where this custom is (1) “evidence of a general practice,” (2) “accepted as law.” Thus, for example, while it may be observed that heads of state virtually always shake hands when they first meet, it is highly unlikely that they do so because they believe that a rule of international law requires it. On the other hand, a state would almost certainly expect some form of legal repercussions if it were to prosecute a foreign ambassador without the consent of his or her home state, and in this sense opinio juris does exist for the international law rule of diplomatic immunity.

Because opinio juris refers to the psychological state of the state actor—asking why the state behaved as it did—it can be difficult to identify and to prove. In practice, a variety of sources tend to be used to demonstrate the existence of opinio juris, including evidence such as diplomatic correspondence, press releases and other government statements of policy, opinions of legal advisers, official manuals on legal questions, legislation, national and international judicial decisions, legal briefs endorsed by the state, a pattern of treaties ratified by the state that all include the same obligation(s), resolutions and declarations by the United Nations, and other sources. In the Paquete Habana case (decided by the United States Supreme Court in 1900 on the question of whether small coastal fishing boats are immune from capture during war time under customary international law), evidence of opinio juris included medieval English royal ordinances, agreements between European nations, orders issued to the U.S. Navy in earlier conflicts, and the opinions of legal treatise writers. Finally, the context, circumstances, and manner in which the state practice is carried out can also be used to infer the existence of opinio juris. As the ICJ stated in the North Sea Continental Shelf cases of 1969, “Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.” ^[3] Nonetheless, it should be noted that a state's motives can change over time, and that it is not necessary that opinio juris be a significant impetus for each instance of action. As Judge Lachs noted in a dissenting opinion in the North Sea Continental Shelf cases, “At successive stages in the development of the [customary] rule the motives which have prompted States to accept it have varied from case to case. It could not be otherwise. At all events, to postulate that all States, even those which initiate a given practice, believe themselves to be acting under a legal obligation is to resort to a fiction, and in fact to deny the possibility of developing such rules.”^[4]

As difficult as it can be to prove why an actor did act in a certain way, it is exponentially more difficult to prove why it did not act. For this reason, the necessity of demonstrating that a behavior was prompted by a sense of legal obligation makes it particularly difficult for customary international law to develop around the prohibition of a practice. One important case in the development of modern customary international law theory is the S.S. Lotus case, in which France attempted to protest Turkey's assertion of criminal jurisdiction over a French citizen for acts committed on the high seas (outside of Turkey's territory). France presented a number of historical examples to demonstrate that the state of nationality or the state whose flag the ship had flown had exclusive jurisdiction in cases such as this. However, the Permanent Court of International Justice (a precursor to the ICJ) declared that the evidence showed merely that “States had often, in practice, abstained from instituting criminal proceedings, and not that they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of having a duty to abstain would it be possible to speak of an international custom.”^[5] This reasoning was cited approvingly in the North Sea Shelf Continental Cases, which similarly declined to find the existence of customary law regarding the proper method to delimit territorial claims to the continental shelf extending from the coastline of states bordering the North Sea.^[6] The ICJ also declined to find evidence of customary international law in an opinion on the legality of the use or threat of nuclear weapons, despite what some argued to be uniform state practice. As in the North Sea Continental Shelf cases, it found that the mere fact that no state had used nuclear weapons against another state since World War II did not reflect opinio juris. Some states had pointed out that a series of U.N. resolutions had been issued “that deal with nuclear weapons and that affirm, with consistent regularity, the illegality of nuclear weapons,” and argued that this signified “the existence of a rule of international customary law which prohibits recourse to those weapons.”^[7] Nonetheless, the ICJ noted that states possessing nuclear weapons had almost always objected to these resolutions, which strongly suggests that those states did not believe that a customary law prohibiting their use existed. Moreover, it noted that the non-use of nuclear weapons could actually provide evidence of their “use” as a deterrent force.^[8]

This logical framework makes sense for existing norms of customary international law, but it becomes problematic in the context of new or emerging customary rules. If a practice is not currently governed by customary international law, then it is illogical to inquire into a state's beliefs about the legality of engaging in or abstaining from that practice, i.e., to ask whether it believed that its practice was in compliance with a law that does not yet exist. This paradox may be resolved to some extent by the idea of “crystallization” of customary international law, in which practice and legal obligation evolve jointly and eventually ripen into law. Under one model, this process occurs in three stages: first, some States engage in a given practice for reasons other than a sense of legal obligation (e.g. political expediency, economic gain, courtesy, etc.); next, States reinforce the practice by engaging in it or making claims based upon it, creating loops of reciprocity and reliance based on expectations that the practice will continue; finally, as these relationships expand in number and complexity, they eventually harden into a general rule. In this final stage, as more States become aware of the conduct and actively participate or at least passively acquiesce to the practice, the States' actions begin to be undergirded by a belief that they are complying with an emerging customary rule.

SOFT LAW V. HARD LAW

The term "soft law" refers to quasi-legal instruments which do not have any legally binding force, or whose binding force is somewhat "weaker" than the binding force of traditional law, often contrasted with soft law by being referred to as "hard law". Traditionally, the term "soft law" is associated with international law, although more recently it has been transferred to other branches of domestic law as well.

Definition of soft law

In the context of international law, the term "soft law" covers such elements as:

• Most Resolutions and Declarations of the UN General Assembly, for example, the Universal Declaration of Human Rights;
• Elements such as statements, principles, codes of conduct, codes of practice etc.; often found as part of framework treaties;
• Action plans (for example, Agenda 21);
• Other non-treaty obligations

European community

The term "soft law" is also often used to describe various kinds of quasi-legal instruments of the European Communities: "codes of conduct", "guidelines", "communications" etc. In the area of law of the European Communities, soft law instruments are often used to indicate how the European Commission intends to use its powers and perform its tasks within its area of competence.

Status of soft law

In international law, the terminology of "soft law" remains relatively controversial because there are some international practitioners do not accept its existence and for others, there is quite some confusion as to its status in the realm of law. However, for most international practitioners, development of soft law instruments is an accepted part of the compromises required when undertaking daily work within the international legal system, where states are often reluctant to sign up to too many commitments that might result in national resentment at over-committing to an international goal.

Utility of soft law

Soft law instruments are usually considered as non-binding agreements which nevertheless hold much potential for morphing into "hard law" in the future. This "hardening" of soft law may happen in two different ways. One is when declarations, recommendations, etc. are the first step towards a treaty-making process, in which reference will be made to the principles already stated in the soft law instruments. Another possibility is that non-treaty agreements are intended to have a direct influence on the practice of states, and to the extent that they are successful in doing so, they may lead to the creation of customary law. Soft law is a convenient option for negotiations that might otherwise stall if legally binding commitments were sought at a time when it is not convenient for negotiating parties to make major commitments at a certain point in time for political and/or economic reasons but still wish to negotiate something in good faith in the meantime.

Soft law is also viewed as a flexible option - it avoids the immediate and uncompromising commitment made under treaties and it also is considered to be potentially a faster route to legal commitments than the slow pace of customary international law. With the passage of time, in today's globalized society it is easy to use the media and the internet to spread the knowledge of the content of declarations and commitments made at international conferences. In doing so, these aspirational non-commitments often capture the imagination of citizens who begin to believe in these soft law instruments as if they were legal instruments. In turn, it is felt that this ultimately impacts governments who are forced to take into account the wishes of citizens, NGOs, organizations, courts and even corporations who begin to refer to these soft law instruments so frequently and with such import that they begin to evidence legal norms.

Another useful aspect of the nature of soft law is that it often can be used to evidence opinio juris on applying or interpreting a treaty.

Soft law has been very important in the field of international environmental law where states have been reluctant to commit to many environmental initiatives when trying to balance the environment against economic and social goals. It is also important in the field of international economics law and international sustainable development law.

Using care with reliance on soft law

Soft law is attractive because it often contains aspirational goals that aim for the best of possible scenarios. However, the language in many soft law documents can be contradictory, uncoordinated with existing legal commitments and potentially duplicative of existing legal or policy processes. Another key point is that negotiating parties are not blind to the potential lying in stealth in soft law. If a negotiating party feels that soft law has a potential to turn into something binding down the track, this will negatively influence the negotiation process, and soft law instruments will be watered down and hemmed in by so many restrictions that there is little point in creating them.

Nevertheless, the reliance on soft law continues and it is unlikely that its use will fade; it is far more likely to be relied on in greater amounts as it also serves as a "testing ground" for new, innovative ideas that policy formulations are still being worked out for in a world of rapid change and future upcoming contentious challenges such as climate change.

legal theories of public international law

International legal theory comprises a variety of theoretical and methodological approaches used to explain and analyse the content, formation and effectiveness of public international law and institutions and to suggest improvements. Some approaches center on the question of compliance: why states follow international norms in the absence of a coercive power that ensures compliance. Other approaches focus on the problem of the formation of international rules: why states voluntarily adopt international legal norms, that limit their freedom of action, in the absence of a world legislature. Other perspectives are policy oriented; they elaborate theoretical frameworks and instruments to criticize the existing rules and make suggestions on how to improve them. Some of these approaches are based on domestic legal theory, others are interdisciplinary, while others have been developed expressly to analyse international law.

Classical approaches to International Law

Natural law

Many early international legal theorists were concerned with axiomatic truths thought to be reposed in natural law. 16th century natural law writer, Francisco de Vitoria, a professor of theology at the University of Salamanca, examined the questions of the just war, the Spanish authority in the Americas, and the rights of the Native American peoples.

Eclectic or Grotian approach

Hugo Grotius a Dutch theologian, humanist and jurist played a key role in the development of modern international law. In his De jure Belli ac Pacis Libri Tres ("Three Books on the Law of War and Peace") of 1625, and drawing from the Bible and from the St. Augustine's just war theory, he argued that nations as well as persons ought to be governed by universal principle based on morality and divine justice. Drawing, though, from domestic contract law, he argued that relations among polities ought to be governed by the law of peoples, the jus gentium, established by the consent of the community of nations on the basis of the principle of pacta sunt servanda, that is, on the basis of the observance of commitments. On his part, Christian von Wolff, contended the international community should be a world superstate (civitas maxima), having authority over the component member states. Emmerich de Vattel rejected this view and argued instead for the equality of states as articulated by 18th century natural law. In Le droit des gens, Vattel suggested that the law of nations was composed of custom and law on the one hand, and natural law on the other.

During the 17th century, the basic tenents of the Grotian or eclectic school, especially the doctrines of legal equality, territorial sovereignty, and independence of states, became the fundamental principles of the European political and legal system and were enshirned in the 1648 Peace of Westphalia.

Legal positivism

The early positivist school emphasized the importance of custom and treaties as sources of international law. Early positivist scholar Alberico Gentili used historical examples to posit that positive law (jus voluntarium) was determined by general consent. Another positivist scholar, Richard Zouche, published the first manual of international law in 1650.

Legal positivism became the dominant legal theory of 18th century and found its way into international legal philosophy. At the time, Cornelius van Bynkershoek asserted that the bases of international law were customs and treaties commonly consented to by various states. John Jacob Moser emphasized the importance of state practice in international law. Georg Friedrich von Martens, published the first systematic manual on positive international law, Precis du droit des gens moderne de l'Europe. During the 19th century, positivist legal theory became even more dominant due to nationalism and the Hegelian philosophy. International Commercial law became a branch of domestic law: private international law, separate from public international law. Positivism narrowed the range of international practice that might qualify as law, favouring rationality over morality and ethics. The 1815 Congress of Vienna marked the formal recognition of the political and international legal system based on the conditions of Europe.

Modern legal positivists consider international law as a unified system of rules that emanates from the states' will. International law, as it is, is an "objective" reality that must be distinguished from law "as it should be." Classic positivism demands rigorous tests for legal validity. Extralegal arguments, i.e., arguments that have no textual, systemic or historical basis on the law, are deemed irrelevant to legal analysis. There is only hard law, no soft law.^[1] Criticisms of positivist international legal theory include its rigidity, its focus on state consent, without allowing for interpretation, and the fact that it does not allow moral judgements regarding a State's conduct as long as it follows international norms.

International Relations - International Law approaches

Legal scholars have drawn from the four main schools of thought in the areas of political science and international relations:realism, liberalism, institutionalism, and constructivism to examine, through an interdisciplinary approach, the content of legal rules and institutions, to explain why and how legal institutions came to be and why they are effective.^[2] These methods have led some scholars to reconceptualize international law in general.^[3]

Realism

Realism contends that, in an anarchic international system, states are locked in a perpetual struggle for survival that obligates them to maximize their relative power in order to preserve their territory and existence. Since international cooperation is possible only inasmuch as it responds to the states' self-interest in maximizing their power and prospects for survival, states do not pursue cooperation on the basis of normative commitments.^[4] According to Realist legal scholars, states adopt only international legal norms that either enhance their power, formalize the subordination of weaker states, or that they intend to violate deliberately to their own advantage.^[5] International Law may thus address only peripheral matters that do not impact the states´ power or autonomy. Consequently, for realists, international law is a "tenuous net of breakable obligations"^[6]

Within the Realist approach, some scholars have proposed an "enforcement theory" according to which international legal norms are effective insofar as they "publicize clear rules, enhance monitoring of compliance, and institutionalize collective procedures for punishing violations, thereby enhancing the deterrent and coercive effects of a stable balance of power."^[7] Thus, the role of reciprocity and sanctions is underlined. Morrow, for instance, notes that:

International politics in modern times generally recognizes no authority above the nation-state. Agreements among states are enforceable only by the agreeing states themselves. This assumption of anarchy poses a paradox for agreements to limit violence during wartime. (...) Reciprocity serves as the main tool to enforce agreements in international politics. Enforcement of an agreement is devolved to the parties themselves. Damaged parties have the option to respond with retaliatory sanctions to a violation of an agreement. The threat of reciprocal sanctions may be sufficient to deter violations, and so agreements can be enforced in international politics.^[8]

Liberalism

Based on the Liberal international relations theory, some scholars argue that the states' stance towards international law is determined by their domestic politics and, in particular, by the aggregation of the preferences of key domestic individuals and groups toward the rule of law. Thus, democratic states, having a representative government, are more likely than non-democratic states to accept the legal regulation of both domestic and international politics, and more likely to accept and observe international law. Furthermore, democratic societies are linked by a complex net of interstate, transnational and transgovernmental relations so that both their foreign policy bureaucracies and their civil societies are interested in promoting and strengthening transnational cooperation through the creation and observance of international legal norms.^[9] Hence, the adoption of and the compliance with international legal norms among democratic states should be easier and more peaceful than the observance of international law among non-democratic states. In this regard, Slaughter notes that:

Agreements concluded among liberal States are more likely to be concluded in an atmosphere of mutual trust, a precondition that will facilitate any kind of enforcement. In particular, however, the assumptions that these are agreements reached with the participation of a network of individuals and groups in the participating States, and that these States are committed to the rule of law enforced by national judiciaries should lead to more 'vertical' enforcement through domestic courts. This mode of enforcement contrasts with the traditional 'horizontal' mode involving State responsibility, reciprocity, and countermeasures.^[10]

Rational Choice and Game Theory

This approach to law applies theories or economics to identify the legal implications of maximizing behavior inside and outside of markets. Economics is the study of ration choice under limited conditions.^[11] Rational choice is the assumption that individual actors seek to maximize their preferences.^[12] Most of the economic theory employed here is neoclassical traditional economics. Economic techniques include price theory, which evaluates strategic interaction between actors.^[13] Transaction cost economics, which incorporates cost of identifying actors, negotiating, and costs of enforcing agreements into price theory. Game Theory, which can demonstrate how actors with maximizing behavior might fail to take action increase join gain.^[14] Public choice applies economic tools to problems outside of markets. These tools are used to describe and evaluate law. Using these tools laws are tested for economic efficiency.^[15] Economic theories are also used to propose changes in the law. This approach urges the adoption of laws that maximize wealth. Potential application of this approach would begin with a text-based interpretation. A secondary concern is whether or not an actual "market" context is functioning well. Thirdly, ways to improve the imperfect market are proposed. This approach could be used to analyze general legal questions, because this approach provides highly specified rules and provides the rationale for using them. This approach relies on assumptions that perfect competition exists, and that individuals will behave to maximize their preferences. The empirical presence of these conditions is often difficult to determine.

International Legal Process

The classic International Legal Process is the method of studying how international law is practically applied to, and functions within international policy, as well as the study of how international law can be improved.^[16] "It concentrates not so much on the exposition of rules and their content as on how international legal rules are actually used by the makers of foreign policy".^[17] ILP was developed in response to the "realists from the discipline of international relations",^[18] who realized with the beginning of the Cold War how little international law played a role in international affairs. ILP was made a legitimate theory in the 1968 casebook International Legal Process, by Chayes, Ehrlich and Lowenfeldan, in which the American legal process method was adapted to create an international legal process.^[19] ILP describes the way international legal processes work, and the formal and informal ways that foreign offices incorporate international law.^[17] ILP also measures the extent to which individuals are held accountable for abuses in international conflicts.^[20] While ILP recognizes that international law does not force decision makers' actions, it suggests that international law serves as a justification, constraint, and organizing device.^[20] Criticism of ILP's lack of normative qualities in its method resulted in the emergence of a new ILP.^[21] The New International Legal Process (NLP) incorporates both law as a process and as the values of each society respectively. Unlike the American Legal System, it considers normative values other than democracy, such as "…feminism, republicanism, law and economics, liberalism as well as human rights, peace and protection to the environment."^[22] The NLP is unique in its flexibility in adapting to the evolution of values. This component of the method is important in order to resolve the changing of legal standards over time. The NLP shows its true departure from the ILP by addressing what happens in the situation of conflict, as well as what should be happening.

VILAS V. CITY OF MANILA

U.S. Supreme Court

VILAS v. CITY OF MANILA, 220 U.S. 345 (1911)

220 U.S. 345

VERISIMO VASQUEZ VILAS, Plff. in Err. and Appt.,
v.
CITY OF MANILA.
No. 53.

ESPERANZA OTERO TRIGAS et al., Plffs. in Err. and Appts.,
v.
CITY OF MANILA.

No. 54.

RICARDO AGUADO, Appt.,
v.
CITY OF MANILA.

No. 207.

Nos. 53, 54, and 207.
Argued February 24 and 27, 1911.
Decided April 3, 1911.

[220 U.S. 345, 346] Messrs. Frederic R. Coudert, Howard Thayer Kingsbury, Paul Fuller, and Harry Weston Van Dyke for plaintiffs in error and appellants.

[220 U.S. 345, 349] Messrs. Paul Charlton andIsaac Adams for appellee.

[220 U.S. 345, 351]

Mr. Justice Lurton delivered the opinion of the court:

The plaintiffs in error, who were plaintiffs below, are creditors of the city of Manila as it existed before the cession of the Philippine Islands to the United States by the treaty of Paris, December 10, 1898 [30 Stat. at L. 1754]. Upon the theory that the city, under its present charter from the government of the Philippine Islands, is the same juristic person and liable upon the obligations of the old city, these actions were brought against it. The supreme court of the Philippine Islands denied relief, holding that the present municipality is a totally different corporate entity, and in no way liable for the debts of the Spanish municipality. [220 U.S. 345, 352] The fundamental question is whether, notwithstanding the cession of the Philippine Islands to the United States, followed by a reincorporation of the city, the present municipality is liable for the obligations of the city incurred prior to the cession to the United States.

We shall confine ourselves to the question whether the plaintiffs in error are entitled to judgments against the city upon their several claims. Whether there is a remedy adequate to the collection when reduced to judgment is not presented by the record. But whether there is or is not a remedy affords no reason why the plaintiffs in error may not reduce their claims to judgment. Mt. Pleasant v. Beckwith, 100 U.S. 514, 530 , 25 S. L. ed. 699, 703. The city confessedly may be sued under its existing charter, and that implies at least a right to judgment if they establish their demands.

The city as now incorporated has succeeded to all of the property rights of the old city and to the right to enforce all of its causes of action. There is identity of purpose between the Spanish and American charters and substantial identity of municipal powers. The area and the inhabitants incorporated are substantially the same. But for the change of sovereignty which has occurred under the treaty of Paris, the question of the liability of the city under its new charter for the debts of the old city would seem to be of easy solution. The principal question would therefore seem to be the legal consequence of the cession referred to upon the property rights and civil obligations of the city incurred before the cession. And so the question was made to turn in the court below upon the consequence of a change in sovereignty and a reincorporation of the city by the substituted sovereignty.

This disposes of the question of the jurisdiction of this court, grounded upon the absence from the petition of the plaintiffs of any distinct claim under the treaty of Paris, since, under 10 of the Philippine organic act [220 U.S. 345, 353] of July 1, 1902 [32 Stat. at L. 695, chap. 1369, U. S. Comp. Stat. Supp. 1909, p. 226], this court is given jurisdiction to review any final decree or judgment of the supreme court of the Philippine Islands where any treaty of the United States 'is involved.' That treaty was necessarily 'involved,' since neither the court below nor this court can determine the continuity of the municipality nor the liability of the city as it now exists for the obligation of the old city, without considering the effect of the change of sovereignty resulting from that treaty. See Reavis v. Fianza, 215 U.S. 16, 22 , 54 S. L. ed. 72, 75, 30 Sup. Ct. rep. 1.

The historical continuity of a municipality embracing the inhabitants of the territory now occupied by the city of Manila is impressive. Before the conquest of the Philippine Islands by Spain, Manila existed. The Spaniards found on the spot now occupied a populous and fortified community of Moros. In 1571 they occupied what was then and is now known as Manila, and established it as a municipal corporation. In 1574 there was conferred upon it the title of 'Illustrious and ever loyal city of Manila.' From time to time there occurred amendments, and, on January 19, 1894, there was a reorganization of the city government under a royal decree of that date. Under that charter there was power to incur debts for municipal purposes and power to sue and be sued. The obligations here in suit were incurred under the charter referred to, and are obviously obligations strictly within the provision of the municipal power. To pay judgments upon such debts it was the duty of the ayuntamiento of Manila, which was the corporate name of the old city, to make provision in its budget.

The contention that the liability of the city upon such obligations was destroyed by a mere change of sovereignty is obviously one which is without a shadow of moral force, and, if true, must result from settled principles of rigid law. While the contracts from which the claims in suit resulted were in progress, war between the United [220 U.S. 345, 354] States and Spain ensued. On August 13, 1898, the city was occupied by the forces of this government, and its affairs conducted by military authority. On July 31, 1901, the present incorporating act was passed, and the city since that time has been an autonomous municipality. The charter in force is act 183 of the Philippine Commission, and now may be found as chapters 68 to 75 of the compiled acts of the Philippine Commission. The 1st section of the charter of 1901 reads as follows:

'The inhabitants of the city of Manila, residing within the territory described in 2 of this act, are hereby constituted a municipality, which shall be known as the city of Manila, and by that name shall have perpetual succession, and shall possess all the rights of property herein granted or heretofore enjoyed and possessed by the city of Manila as organized under Spanish sovereignty.'

The boundaries described in 2 include substantially the area and inhabitants which had theretofore constituted the old city.

By 4 of the same act, the government of the city was invested in a municipal board.

Section 16 grants certain legislative powers to the board, and provides that it shall 'take possession of all lands, buildings, offices, books, papers, records, moneys, credits, securities, assets, accounts, or other property or rights belonging to the former city of Manila, or pertaining to the business or interests thereof, and, subject to the provisions herein set forth, shall have control of all its property except the building known as the ayuntamiento, provision for the occupation and control of which is made in 15 of this act; shall collect taxes and other revenues, and apply the same in accordance with appropriations, as hereinbefore provided, to the payment of the municipal expenses; shall supervise and control the discharge of official duties by subordinates; shall institute judicial proceedings to recover property and [220 U.S. 345, 355] funds of the city wherever found, or otherwise to protect the interests of the city, and shall defend all suits against the city,' etc.

Section 69 of the charter expressly preserved 'all city ordinances and orders in force at the time of the passage of this act, and not inconsistent herewith,' until modified or repealed by ordinances passed under this act.

Section 72 is the repealing clause, and provides for the repeal of 'all acts, orders, and regulations' which are inconsistent with the provisions of the act.

The charter contains no reference to the obligations or contracts of the old city.

If we understand the argument against the liability here asserted, it proceeds mainly upon the theory that inasmuch as the predecessor of the present city, the ayuntamiento of Manila, was a corporate entity created by the Spanish government, when the sovereignty of Spain in the islands was terminated by the treaty of cession, if not by the capitulation of August 13, 1898, the municipality ipso facto disappeared for all purposes. This conclusion is reached upon the supposed analogy to the doctrine of principal and agent, the death of the principal ending the agency. So complete is the supposed death and annihilation of a municipal entity by extinction of sovereignty of the creating state that it was said in one of the opinions below that all of the public property of Manila passed to the United States, 'for a consideration, which was paid,' and that the United States was therefore justified in creating an absolutely new municipality, and endowing it with all of the assets of the defunct city, free from any obligation to the creditors of that city. And so the matter was dismissed in the Trigas Case by the court of first instance, by the suggestion that 'the plaintiff may have a claim against the Crown of Spain, which has received from the United States payment for that done by the plaintiff.' [220 U.S. 345, 356] We are unable to agree with the argument. It loses sight of the dual character of municipal corporations. They exercise powers which are governmental and powers which are of a private or business character. In the one character a municipal corporation is a governmental subdivision, and for that purpose exercises by delegation a part of the sovereignty of the state. In the other character it is a mere legal entity or juristic person. In the latter character it stands for the community in the administration of local affairs wholly beyond the sphere of the public purposes for which its governmental powers are conferred.

The distinction is observed in South Carolina v. United States, 199 U.S. 437, 461 , 50 S. L. ed. 261, 269, 26 Sup. Ct. Rep. 110, 4 A. & E. Ann. Cas. 737, where Lloyd v. New York, 5 N. Y. 369, 374, 55 Am. Dec. 347, and Western Sav. Fund Soc. v. Philadelphia, 31 Pa. 175, 72 Am. Dec. 730, are cited and approved. In Lloyd v. New York, supra, it is said:

'The corporation of the city of New York possesses two kinds of powers: one governmental and public, and to the extent they are held and exercised, is clothed with sovereignty; the other private, and to the extent they are held and exercised, is a legal individual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government; and while in the exercise of the latter, is a corporate legal individual.'

See also Dill. Mun. Corp. 4th ed. 66; Petersburg v. Applegarth, 28 Gratt. 321, 343, 26 Am. Rep. 357, and Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 485.

In view of the dual character of municipal corporations there is no public reason for presuming their total dissolution as a mere consequence of military occupation or territorial cession. The suspension of such governmental functions as are obviously incompatible with the new political relations thus brought about may be presumed. [220 U.S. 345, 357] But no such implication may be reasonably indulged beyond that result.

Such a conclusion is in harmony with the settled principles of public law as declared by this and other courts and expounded by the text-books upon the laws of war and international law. Taylor, International Pub. Law , 578.

That there is a total abrogation of the former political relations of the inhabitants of the ceded region is obvious. That all laws theretofore in force which are in confiict with the political character, constitution, or institutions of the substituted sovereign, lose their force, is also plain. Alvarez y Sanchez v. United States, 216 U.S. 167 , 54 L. ed. 432, 30 Sup. Ct. Rep. 367. But it is equally settled in the same public law that that great body of municipal law which regulates private and domestic rights continues in force until abrogated or changed by the new ruler. In Chicago, R. I. & P. R. Co. v. McGlinn, 114 U.S. 542, 546 , 29 S. L. ed. 270, 271, 5 Sup. Ct. Rep. 1005, it was said:

'It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession, public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment. As a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power-and the latter is involved in the former-to the United States, the laws of the country in support of an established religion, or abridging the freedom of the [220 U.S. 345, 358] press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting the possession, use, and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general, that a change of government leaves them in force until, by direct action of the new government, they are altered or repealed.'

The above language was quoted with approval in Downes v. Bidwell, 182 U.S. 244, 298 , 45 S. L. ed. 1088, 1110, 21 Sup. Ct. Rep. 770.

That the United States might, by virtue of its situation under a treaty ceding full title, have utterly extinguished every municipality which it found in existence in the Philippine Islands, may be conceded. That it did so, in view of the practice of nations to the contrary, is not to be presumed, and can only be established by cogent evidence.

That during military occupation the affairs of the city were in a large part administered by officials put in place by military order did not operate to dissolve the corporation, or relieve it from liability upon obligations incurred before the occupation, nor those created for municipal purposes by the administrators of its affairs while its old officials were displaced. New Orleans v. New York Mail S. S. Co. 20 Wall. 387, 394, 22 L. ed. 354, 358. During that occupation and military administration the business of the city was carried on as usual. Taxes were assessed and taxes collected and expended for local purposes, and many of the officials carrying on the government were those found in office when the city was occupied. The continuity of the corporate city was not inconsistent with military occupation or the constitution or institutions of the occupying power. This [220 U.S. 345, 359] is made evident by the occurrences at the time of capitulation. Thus, the articles of capitulation concluded in these words: 'This city, its inhabitants, . . . and its private property of all descriptions, are placed under the special safeguard of the faith and honor of the American Army.' This was quoted in President McKinley's instructions of April 7, 1900, to the Philippine Commission, and touching this he said: 'I believe that this pledge has been faithfully kept.' And the commission was directed to labor for the full performance of this obligation. This instruction was in line with and in fulfilment of the 8th article of the treaty of Paris of December 10, 1898. Under the 3d article of that treaty the archipelago known as the Philippine Islands was ceded to the United States, the latter agreeing to pay to Spain the sum of $20,000,000. Under the first paragraph of the 8th article, Spain relinquished to the United States 'all the buildings, wharves, barracks, forts, structures, public highways, and other immovable property which, in conformity with law, belong to the public domain, and as such belong to the Crown of Spain.' It is under this clause, in connection with the clause agreeing to pay to Spain $20,000,000 for the cession of the Philippine group, that the contention that all of the public rights of the city of Manila were acquired by the United States, which country was therefore justified, as absolute owner, in granting the property rights so acquired to what is called the 'absolutely new corporation' created thereafter. But the qualifying words touching property rights relinquished by Spain limit the relinquishment to 'property which, in conformity with law, belonging to the public domain, and as such belong to the Crown of Spain.' It did not affect property which did not, in 'conformity with law, belong to the Crown of Spain.' That it was not intended to apply to property which, 'in conformity with law,' belonged to the city of Manila as a municipal cor- [220 U.S. 345, 360] poration, is clear. This is demonstrated by the second paragraph of the same article, which reads: 'And it is hereby declared that the relinquishment or cession, as the case may be, to which the preceding paragraph refers, cannot in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments . . . having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals.' Thus, the property and property rights of municipal corporations were protected and safeguarded precisely as were the property and property rights of individuals.

That the cession did not operate as an extinction or dissolution of corporations is herein recognized, for the stipulation against impairment of their property rights has this plain significance.

The conclusion we reach, that the legal entity survived both the military occupation and the cession which followed, finds support in the cases which hold that the Pueblos of San Francisco and Los Angeles, which existed as municipal organizations prior to the cession of California by Mexico, continued to exist with their community and property rights intact. Cohas v. Raisin, 3 Cal. 443; Hart v. Burnett, 15 Cal. 530; Townsend v. Greeley, 5 Wall. 326, 18 L. ed. 547; Merryman v. Bourne, 9 Wall. 592, 602, 19 L. ed. 683, 686; Moore v. Steinbach, 127 U.S. 70 , 32 L. ed. 51, 8 Sup. Ct. Rep. 1067; Los Angeles Farming & Mill. Co. v. Los Angeles, 217 U.S. 217 , 54 L. ed. 736, 30 Sup. Ct. Rep. 452.

Were corporate identity and corporate liability extinguished as a necessary legal result of the new charter granted in 1901 by the Philippine Commission? The inhabitants of the old city are the incorporators of the new. There is substantially identity of area. There are some changes in the form of government and some changes in corporate powers and methods of administration. the new corporation is endowed with all of the property and [220 U.S. 345, 361] property rights of the old. It has the same power to sue and be sued which the former corporation had. There is not the slightest suggestion that the new corporation shall not succeed to the contracts and obligations of the old corporation. Laying out of view any question of the constitutional guaranty against impairment of the obligation of contracts, there is, in the absence of express legislative declaration of a contrary purpose, no reason for supposing that the reincorporation of an old municipality is intended to permit an escape from the obligations of the old, to whose property and rights it has succeeded. The juristic identity of the corporation has been in no wise affected, and, in law, the present city is, in every legal sense, the successor of the old. As such it is entitled to the property and property rights of the predecessor corporation, and is, in law, subject to all of its liabilities. Broughton v. Pensacola 93 U.S. 266 , 23 L. ed. 896; Mt. Pleasant v. Beckwith, 100 U.S. 520 , 25 L. ed. 699; Mobile v. Watson, 116 U.S. 289 , 29 L. ed. 620, 6 Sup. Ct. Rep. 398; Shapleigh v. San Angelo, 167 U.S. 646, 655 , 42 S. L. ed. 310, 313, 17 Sup. Ct. Rep. 957; O'Connor v. Memphis, 6 Lea, 730; Colchester v. Seaber, 3 Burr. 1866, 1870, in which case, when a municipality became disabled to act and obtained a new charter, in an action upon an obligation of the old corporation, there was judgment for the creditor, Lord Mansfield saying:

'Many corporations, for want of legal magistrates, have lost their activity, and obtained new charters. Maidstone, Radnor, Carmarthen, and many more are in the same case with Colchester. And yet it has never been disputed but that the new charters revive and give activity to the old corporation; except, perhaps, in that case in Levinz, where the corporation had a new name; and even there the court made no doubt. Where the question has arisen upon any remarkable metamorphosis, it has always been determined 'that they remain the same as to debts and rights."

Morris v. State, 62 Tex. 728, 730. [220 U.S. 345, 362] In Shapleigh v. San Angelo, supra, this court said in a similar case:

'The state's plenary power over its municipal corporations to change their organization, to modify their method of internal government, or to abolish them altogether, is not restricted by contracts entered into by the municipality with its creditors or with private parties. An absolute repeal of a municipal charter is therefor effectual so far as it abolishes the old corporate organization; but when the same or substantially the same inhabitants are erected into a new corporation, whether with extended or restricted territorial limits, such new corporation is treated as in law the successor of the old one, entitled to its property rights, and subject to its liabilities.'

The cases of Trigas and Vilas went off upon demurrers, and no question of remedy arises here.

The appeal of Aguado is from a decree upon a final hearing denying him all relief.

That all three of the plaintiffs in error are entitled to proceed to judgment when they shall establish their several claims is obvious from what we have said. But in the Aguado Case it is sought to establish his claim as a charge against certain property and funds held by the city as trustee, known as the Carriedo fund. In 1734 one Don Francisco Carriedo y Perodo bequeathed to the city a fund for the establishment of waterworks, to be kept as a separate fund and devoted to the erection and maintenance of the works. This fund was loyally kept and greatly increased, and was enlarged by a special tax upon meat, devoted to that purpose. The works were finally completed in 1878, and have been since operated by the city, the income and special tax going to maintenance. Certain securities belonging to the fund are now held by the city, the income being applied to the operation of the works. Aguado took a contract to supply coal for the use of the [220 U.S. 345, 363] Carriedo works, and made a deposit to guarantee the contract. When the city was occupied by the American Army it was indebted to him for coal so supplied, as well as for the deposit so made. That the coal was bought for and used in the operation of the Carriedo works is not denied. But there is no evidence that the credit was given to the Carriedo fund so held in trust under the will of Carriedo. The contract was made with the ayuntamiento of Manila, just as all other contracts for city supplies or works were made. The contract not having been made with special reference to the liability of the fund held in trust by the city, but apparently upon the general credit of the city, we are not disposed to reverse the judgment of the court below, holding that the claim of Aguado did not constitute a charge upon the Carriedo fund.

Aguado is, nevertheless, entitled to a judgment. The designation of the city in the petition as trustee may be regarded as descriptive. The debt having been incurred by the city, it must be regarded as a city liability. Taylor v. Davis (Taylor v. Mayo), 110 U.S. 330, 336 , 28 S. L. ed. 163, 165, 4 Sup. Ct. Rep. 147.

Our conclusion is that the decree in the Aguado Case must be reversed and the case remanded, with direction to render judgment and such other relief as may seem in conformity with law. The judgments in the Trigas and Vilas Cases will be reversed and the cases remanded, with direction to overrule the respective demurrers, and for such other action as may be consistent with law, and consistent with this opinion.