e PUBLIC INTERNATIONAL LAW BAR REVIEWER 1. PREVENTION AND PUNISHMENT OF CRIMES AGAINST INTERNATIONALLY PROTECTED PERSONS Who are “internationally protected persons”? Under Article 1 of the 1973 Convention on the Prevention ‘and Punishment of Crimes Against Internationally Protected Persons, the following are internationally protected persons: b) Head of State, including any member of a collegial body performing the functions of a Head of State under the constitution of the State concerned, a Head of Government ‘or a Minister for Foreign Affairs, whenever any such person is in a foreign State, as well as members of his family who accompany him; and b) Any representative oF official of a State or any official or other agent of an international organization of an intergovernmental character who is entitled pursuant to international law to special protection from any attack on his person, freedom or dignity, as well as members of his family forming part of his household )._ What specific crimes are covered by the 1973 Convention ‘on the Prevention and Punishment of Crimes Against Internationally Protected Persons? intentional commission of the The Convention covers following crimes: a) murder, kidnapping or other attack upon the person or liberty of an internationally protected person; b) violent attack upon the official premises, the private accommodation or the means of transport of an inter- nationally protected person likely to endanger his person or liberty; ©) a threat to commit any such attack; d) an attempt to commit any such attack; and e) an act constituting participation as an accomplice in any such attack ‘STATES IN THE INTERNATIONAL SYSTEM 108 What are the obligations of States in regard to the specific crimes covered by the 1973 Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons? ‘The Convention requires States to do the following: a) Each State shall make the crimes punishable by appro- priate penalties which take into account their grave na- ture (Art. 2/20); b) Each State shall take such measures as may be necessary to establish its jurisdiction over the erimes (Art. 3111); ©) Upon being satisfied that the circumstances 50 warrant, the State in whose territory the alleged offender is present shall take the appropriate measures under its internal law so as to ensure his presence for the purpose of prosecution or extradition (Art. 6) 4) The State in whose territory the alleged offender is present shall, if it does not extradite him, submit, without exception whatsoever and without undue delay, the case toits competent authorities for the purpose of prosecution (Art. 2), ). What acts against diplomats and consular agents are punished under Philippine law? The following acts which would impair the proper observance by the Republic and inhabitants of the Philippines of the immunities, rights, and privileges of duly accredited foreign diplomatic and consular agents shall be punished as crimes under Republic Act No. 75 (October 21, 1946): a) Falsely assuming and taking upon himself to act as a iplomatic, consular, or any other official of a foreign government duly accredited as such to the Government of the Republic ofthe Philippines with intent to defraud such foreign government or the Government of the Philippines, or demanding or obtaining, or attempting to obtain in such pretended character from person or from said foreign government or the Government of the Philippines, or from any officer thereof, any money, paper, document, or other thing, of value, (Section 1)104 PUBLIC INTERNATIONAL LAW | STATE JURISDICTION 105 ‘BAR REVIEWER | t b) Acting, without being a diplomatic or consular offcte Q or attaché, as an agent of a foreign government without : prior notification to, and registration with, the Secretary of Foreign Affairs. (See. 2) a ‘What are the three types of jurisdiction recognized in International Law? International Law recognizes the following types of ¢} Obtaining, prosecuting, or executing any writ or process a) The jurisdiction to presey whereby the peram of any armbasador pl nite b) Jurisdiction to enforce; and of any foreign State, authorized and received as such by A radical sment, Sec. 410) the President, or any domestic or domestic servant of any rede ee ce eee cece such ambassador or minister is arrested or imprisoned, oy his goods or chattels are distrained, seized, or attached : (Sec. 4) 4) Assautting, striking, wounding, imprisoning or offering violence in any other manner to the person of an ambassador or a public minister, in violation of the law of nations. (Sec. 5) a) Under International Law, what are the generally accepted bases of jurisdiction or theories under which State may claim to have jurisdiction to preseribe a rule of law over an activity? ‘A. Inthe usual order of preference, they are: ‘Territoriality - 1. Subjective Territoriality — If an activity takes @ Would the provisions of Republic Act No. 75 apply if place within the territory of the forum State, then the country of the aggrieved diplomatic or consular representative does not provide for similar protection to Filipino diplomats and consuls under its laws? No, Section 7 of Republie Act No. 75 contains a recipi clause that says that its provisions shall be applicable onl case where the country of the diplomatic or eonsular represen- tative adversely affected has provided for similar protection to duly aceredited diplomatic or consular representatives of the Philippines by prescribing like or similar penalties for like or A. INTERNATIONAL JURISDICTION PRINCIPLES Q A What is international ju 2 International jurisdiction is the allocation of power and authority among the States. (Malone, 66) b) the forum State has the jurisdiction to prescribe a rule for that activity. The vast majority of criminal legislation in the world is of this type. (Menthe, 71) 2. Objective Territoriality ~ This is invoked where the action takes place outside the territory of the forum State, but the primary effect of that activity is within the forum State, The classic case is that of a rifleman in Canada shooting an American across ‘Niagara Falls in New York. The shooting takes place in Canada; the murder—the effect—oceurs in the United States. The United States would have the Jurisdiction to prescribe under this principle. (Id.) Nationality — 1. Active Nationality - The basis for jurisdiction where the forum State asserts the right to prescribe a law for an action based on the nationality of the actor. Under the law of the Netherlands, for , 4 Dutch national “is liable to prosecution and which is also punishable under the law of the country where the offence was committed.” (Public Prosecutor! Y.,106 PUBLIC INTERNATIONAL LAW ‘BAR REVIEWER HR May and September 1957, 24 Intl L. Rep. 264, 265 (1957) 2. Passive Nationality — A theory of jurisdiction based on the nationality of the victim. Passive and “active” nationality are often invoked together to es- tablish jurisdiction because a State has more inter- cst in prosecuting an offense when both the offender and the vietim are nationals of that State, Passive nationality is rarely us offensive for a nation not sufficient to protect . the victim is not being prosecuted. A State needs to seize the actor in order to undertake a criminal pros- ecution. (Menthe, 72) ©) Protective Principle — It expresses the desire of a sovereign to punish actions committed in other places solely because it feels threatened by those actions. This principle is invoked where the “victim” would be the government or sovereign itself. (Id.) 4) Universality — Historically, universal jurisdiction was the right of any sovereign to capture and punish pirates. This form of jurisdiction has been expanded during the past century and a half to include more of jus cogens: slavery, genocide, and hijacking, war crimes, and crimes against humanity. (Id) ©) _durisdiction based on agreement - In addition to the above-basic principles of ji jon, there exists the possibility that States can confer jurisdiction through 69) Anexample to this, with respect to the prosecution of erimes committed by US. personnel visiting the Philippine pursuant to the said Agreement, Whatrules onjurisdictionare applied by the Philippines? ‘The Philippines applies the territoriality, nationality, protec- tive, and universal principles of jurisdiction. a) ‘The territoriality prineiple is expressed in Article 14 of the New Civil Code which states that “Penal laws and STATE JURISDICTION 107 those of public security and safety shall be obligatory upon all who live or sofourn in the Philippine territory, subject to the prineiples of public international law and to treaty stipulations.” eG b) The nationality principle is applied in Article 15 of the New Civil Code which provides that “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad”; ©) ‘The protective principle underlies Article 2 of the Revised Penal Code by making the provisions of the Code enforceable not only within the but also outside its jurisdiction against those who should ‘commit any of the crimes enumerated in the said article; 4) Theuniversality principle is applied by the Philippines with respect to universal crimes like piracy. In People vs. Lol-lo, 43 Phil. Rep. 19, February 27, 1922, the Supreme Court ruled that “piracy is a crime not against any As such, it may |. Explain Protective Personality. (Bar 1991) A State may exercise jurisdiction over acts of foreigners even when committed outside ofits territorial jurisdiction, when the vital interests of the State are threatened. ). Upon the arrival of the French steamship Lotus at Istanbul following its collision on the high seas on August 2, 1926 with the Turkish steamship Boz-Kourt, Turkey instituted criminal proceedings in pursuance of ‘Turkish law against Lieutenant Demons, officer of the watch on board the Lotus at the time of the collision for the loss of the Boz-Kourt having involved the death of eight Turkish sailors and passengers. France has questioned Turkey's action in taking jurisdiction over the case on the ground that the incident happened