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Public International Law, 2009 Fr.

Joaquin Bernas | MANIEGO, A2012

PUBLIC INTERNATIONAL LAW


NOTES AND DISCUSSIONS (2009ED)
2-A 2012 (FR. JOAQUIN BERNAS)

CHAPTER ONE: THE NATURE OF INTERNATIONAL LAW • National policy or interest is often preferred over
international law.
I. What is international law? o National officials often find justification for the
 Traditional definition: “The body of rules and principles of action binding upon things they do.
civilized states in their relation to one another.”  Above arguments are based on an exaggerated notion of
 Entities governed: States (primarily), international organizations, individuals sovereignty as embodying an individualist regime, but this is not
 (Third) Restatement of Foreign Relations Law of the United States the reality. Reality is social interdependence and the predominance
(Restatement): Considered by U.S. Courts as the most authoritative work on of the general interest.
international law. • Henkin: “Almost all nations observe almost all principles
 Definition: “The law which deals with the conduct of states and of of international law and almost all of their obligations
international organizations and with their relations inter se, as well almost all of the time.”
as with some of their relations with persons, whether natural or • Brierly: Law is binding because a reasonable man,
juridical.” whether as an individual or as part of a state, believes
that order is preferred over chaos, and that order is the
 Scope of international law: In the age of technological advancement and governing principle of the world.
globalization, public international law (PIL) is rapidly expanding—new subject  Final analysis: There is a general fundamental respect for law
matters, changing political and social principles and new states and entities because of the possible consequences of defiance, either to
being added to the community of nations. Beyond the primary concern for the oneself or to the larger society. International law is law because it is
maintenance of peace, it extends to cover all the interests of international and seen as such by states and other subjects of international law.
even domestic life.
 Theories about international law: command theory, consensual theory,
 Is it a law? natural law theory
 The following reasons illustrate the arguments why PIL is not law,  Command Theory – From John Austin; law consists of commands
and why it is commonly disregarded: originating from a sovereign and backed up by threats of sanction is
• There can be no law binding sovereign states. disobeyed.
• No international legislative body. • In this view, international law is not law because there is
o United Nations (UN) General Assembly no command sovereign. This theory has been generally
resolutions are generally not binding on discredited.
anybody.  Consensual Theory – International law is binding because of the
• No international executive to enforce legislation. consent of the states, like treaties and customary law.
o UN Security Council – intended to be an • However, there are many binding rules which do not
international executive; always prevented by derive from consent.
veto power  Natural Law Theory – Law is derived by reason from the nature of
o No assured procedure of identifying violation— man. International law is the application of natural reason to the
most of UN powers have reference to nature of the state-person.
lawbreaking taking the form of an act of • The theory finds little support but much of customary law
aggression or as a threat to peace, but there and what are regarded as general principles of
are many violations of PIL which are not of this international law are expressions of natural law.
nature. As a result, all the UN can do is  Dissenters: No objective basis for international law because it is a
censure. mere combination of politics, morality and self-interest hidden under
• No central authority to make judgments binding on states the smokescreen of legal language.
o International Court of Justice (ICJ) – can
only bind states when they consent to be  Public vs. Private International Law: Scope and Differences
bound

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 Public International Law – “International law” – Governs the decolonization, resulting in an expansion of membership
relationships between and among states, and also their relations in the UN composing of formerly colonies, now newly
with international organizations and individual persons recognized states.
 Private International Law – “Conflicts of law” – Really considered • Grouping of States during the Cold War—Western,
domestic law which deals with cases where foreign law intrudes in socialist, developing countries
the domestic sphere where there are questions of the applicability o Western States (United States, etc) were not
of foreign law or the role of foreign courts of one mind but insisted on two general
points—that legal provisions must be clear and
 Historical development of International Law precise, and that any substantive rule must be
 Ancient Law to post-World War I accompanied by an implementation
• Ancient international law governed exchange of mechanism that can spot and correct
diplomatic emissaries, peace treaties. The progressive violations. Some remained satisfied with the
rules of jus gentium or law “common to all men” became status quo but some were more open to Third
the law of the Roman Empire. World demands and were supportive of social
• Modern international law began with the birth of nation- and legal changes
states in the Medieval Age. It was governed by Roman or o Socialist states were led by the Soviet Union,
Canon Law, which drew heavily from natural law. which sought to avert Western intrusion into
• Hugh Grotius is the father of modern international law; domestic affairs even as they sought relatively
authored the De Jure Belli ac Pacis, which discussed the good relations with the West for the sake of
“law of nations” (later named “international law” by British economic and commercial interchange. They
philosopher Jeremy Bentham.) He was preceded by also sought to convert developing nations to
largely natural law theorists. their ideology.
• Positivist approach reinterpreted international law on o Developing countries formed the
the basis of what actually happened in the conflict overwhelming majority and were mostly former
between states and not from concepts derived from colonies suffering underdevelopment with
reason. newly industrializing countries like the
• Notion of sovereignty gave rise to the Austin’s Philippines, Malaysia, Thailand, Singapore and
command theory. South Korea who earned their independence
• Pacta sunt servanda arose in light of the Peace of through armed or political struggle while
Westphalia which ended the Thirty Years War (1618- remaining under the influence of Western or
1648) and established a treaty-based framework for socialist ideas.
peace cooperation.  Post-Cold War Period
• Congress of Vienna (1815) ended the Napoleonic Wars • Dissolution of the Soviet Union led to the re-
and created a sophisticated system of multilateral emergence of international relations being based on
political and economic cooperation. multiple sources of power and not on ideology. The Baltic
• League of Nations (from the Treaty of Versailles): states (Estonia, Latvia, Lithuania) were restored to
Arose after the culmination of World War I, as an statehood and the newly born Russian Federation did not
institution set up by the victors of the war to prevent the inherit the Soviet Union’s position as a superpower.
recurrence of world conflagration. It was originally • United States: The last remaining superpower, politically
composed of 43 states. The United States did not join. and ideologically leading the Western States. It acts as
The League of Nations created the Permanent Court of both world politician (in a selective manner) and global
International Justice. mediator.
 From the end of World War II to the end of the Cold War • Socialist countries are no longer united; some depend
• United Nations (UN): Because the League of Nations on support from Western states.
failed to prevent the occurrence of World War II, the • Developing countries have veered away from
victors then set up the UN in 1945 as a new avenue for ideological orientation and towards market orientation as
peace. This marked a shift of power away from Europe well as fighting poverty and backwardness.
and the beginning of a truly universal institution. • The UN has declined as the international agency for the
• Decolonization: The universalization began by the maintenance of peace.
establishment of the UN was advanced by

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CHAPTER TWO: THE SOURCES OF INTERNATIONAL LAW • By derivation from general principles common to the
major legal systems of the world
I. What are the sources of international law?  Customary law – that which results from a general and consistent
 As distinguished from domestic law: It is relatively easier to find domestic practice of states followed by them from a sense of legal obligation
law because they are generally found in statute books and in collections of  International agreements – create law for the state parties
court decisions. In international law, there is no centralized legislative, thereto; may lead to the creation of customary international law
executive or judicial structure, making it difficult to locate the source of PIL. when such agreements are intended for adherence to states
The problem is further heightened by the constantly changing state of world generally and are in fact widely accepted
affairs and competing sovereignties.  General principles of law – general principles common to major
legal systems, even if not incorporated or reflected in customary
 Classification of sources—material and formal law or international agreements; applied as supplementary rules of
 Formal sources: May refer to various processes by which rules PIL where appropriate.
come into existence, e.g. legislation, treaty-making, judicial
decision-making, state practice  Sources, in general: custom, treaties and other international agreements,
 Material sources: Concerned with the identification, substance and generally recognized principles of law, judicial decisions and teachings of
content of the obligation; also called “evidence” or international law highly qualified and recognized publicists.

 Conditions for Legal Principles: Laid down by the doctrine of sources, these II. Customary Law
conditions are the observable manifestations of the “wills” of the States as  Definition: A general and consistent practice of states followed by them from
revealed in the processes by which norms are formed—treaties and a sense of legal obligation. (Restatement)
customs.  Contains the basic elements of custom: the material factor (how
 Verification process is inductive and positivistic—finding what laws states behave) and the psychological or subjective factor (why
the states have created and what laws they are willing to place states behave the way they do)
themselves under.  Material factor (usus): Contains several elements—duration, consistency,
• “Proof” that international law is characterized by generality
individualism.  Duration—may be long or short
• Customary law as a result of long, immemorial practice:
 Article 38(1) of the Statute of the International Court of Justice: Most widely Paquete Havana (US SC)—WON fishing smacks were
accepted statement on the “sources” of international law. However, Art. 38 is subject to capture by armed vessels of the US.
primarily a directive; it does not speak of actual sources but directs the ICJ o Ruling: By ancient usage centuries ago,
on how to resolve conflicts brought before it. gradually ripening into a rule of international
 Article 38 enumerates the following as applicable to disputes before it, law, coast fishing vessels, pursuing their
without prejudice to the power of the court to decide ex aequo et bono (for vocation has been recognized as exempt from
the right and good) if the parties agree thereto: capture as prize of war
 International conventions, whether general or particular, • Customary law as a result of short duration is not
establishing rules expressly recognized by contesting states excluded: North Sea Continental Shelf (ICJ)—Ruling:
 International custom, as evidence of a general practice accepted Passage of only a short time is not a bar to the formation
as law of custom on the basis of what was purely a conventional
 General principles of law, recognized by civilized nations rule, so long as State practice should have been both
 Judicial decisions and teachings of highly qualified publicists extensive and virtually uniform and should show that
of various nations (as subsidiary means and subject to the there is general recognition that a rule of law or legal
provisions of Art. 59—which states that the decision of the ICJ is obligation is involved.
only res judicata as between the parties and with respect only to • Duration is not the most important element; the other two
that particular case) are more important.

 Sources according to the Restatement:  Consistency—involves continuity and repetition, as laid down in
 A rule of international law is one that has been accepted as such the Asylum case
by the international community of states— • Asylum (ICJ)—WON Colombian Ambassador could claim
• As customary law de la Torre, alleged mastermind of a military rebellion in
• By international agreement Peru, as a political refugee, granting him asylum and safe

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passage, over the objections of the Peruvian  Evidence of state practice: Although custom may be proved in many ways,
government, who disputed Colombia’s claim. like treaties, diplomatic correspondence, statements of political leaders, as
o Ruling: Against Colombia—because they didn’t well as state conduct, the existence of opinio juris is a matter of proof and the
prove that there was constant and uniform burden of proving its existence rests on the state claiming it.
practice of unilateral qualification as a right of  Instant custom: Spontaneous activity of a great number of states
the State of refuge and an obligation upon the protesting/supporting a specific line of action. Best example—American line
territorial State. Colombia, as the State of action after the attack on the World Trade Center in New York gave birth to
granting asylum, is not competent to qualify the instant customary law classifying the act as an armed attack under Article 51
nature of the offense by unilateral and of the UN Charter justifying collective self-defense.
definitive decision to bind Peru.  Martens Clause in Humanitarian Law: 1899 Hague Peace Convention—“Until
 Uniformity and generality—need not be complete, just substantial a more complete code of laws of war has been issued, the High Contracting
• Nicaragua v. US (ICJ)—To deduce the existence of parties deem it expedient to declare that, in cases not included in the
customary law, it is sufficient that the conduct of states Regulations adopted by them, the inhabitants and belligerents remain under
should be consistent with such rules and that instances the protection and the rule of the principles of the laws of nations as they
of state conduct inconsistent with it should be considered result from the usages established among civilized peoples, from the laws of
as breaches of the rule, not proof of a new rule in place. humanity and the dictates of the public conscience.”
 The clause places humanitarian laws and dictates of public
 Subjective factor (opinio juris): The belief that a certain form of behavior is conscience on the same level as usage or usus, suggesting that
obligatory makes practice an international rule; otherwise, practice is not law. even without practice, there can emerge a principle of law based on
 Even humanitarian consideration by itself does not constitute opinio humanitarian law and the dictates of public conscience.
juris:  Treaties and custom: It depends on the intention of the parties—it may be
• Nicaragua v. US (ICJ)—For new customs to be created, that the treaty is declaratory proof of customary law, or serves to complement
not only must the acts be settled practice, but they must it. Adherence to treaties may be adherence to practice as opinio juris. If
be accompanied by opinio juris sive necessitatis. The treaties and custom contradict each other, the later one will prevail because it
conduct of States must be evidence of a belief that the is presumed to be a deliberate choice on the part of the state.
practice is rendered obligatory by the existence of a rule  If a treaty is later than custom, the principle of pacta sunt servanda
of law requiring it. The need of such belief is implicit in (Lat. “agreements must be kept”) governs.
the notion of opinio juris. • EXCEPT if the customary law has the status of jus
 Customary law can develop to bind only two or a few states, but the state cogens (Lat. “compelling law”)—a norm accepted and
claiming it must prove that it is also binding on the other party/parties, as was recognized by the international community as a whole as
proved by Portugal in the Right of Passage over Indian Territory (ICJ). one from which no derogation is permitted and can be
 Dissenting states may be bound by custom, unless they have consistently modified only by a subsequent norm of general
objected to it. international law having the same character. Treaties
 Anglo-Norwegian Fisheries Case (ICJ)—WON Norway, who has which conflict with a peremptory norm of general
consistently objected to England’s coastline delimitation rule, is international law are void.
bound by the aforesaid custom.  If a custom comes later than a treaty, generally, the later custom is
• Ruling: Against England—It is inapplicable as against said to prevail as an expression of a later will. However, attempts
Norway inasmuch as she has always opposed any ought to be made to reconcile the treaty with custom, as is shown
attempt to apply it on the Norwegian coast. in the Angle-French Continental Case.
 Dissent protects only the dissenter; the custom is applicable to • Anglo-French Continental Case: WON the equidistance
other states. principle applies in the delimitation of the continental
 A new state joining the international law system is bound by any shelves of the United Kingdom and France. Article 6 (in
kind of practice which has already been recognized as customary the treaty) makes the application of the equidistance
law. principle obligatory for the Parties to the convention, but
the combined character of the equidistance-special
 Contrary practice: Even after a practice is recognized as customary law, it is circumstances rule means that the obligation to apply the
possible to adopt a contrary practice. However, contrary practice can cast equidistance principle is always qualified by the condition
doubt on the alleged law and can show great uncertainty as to the existing “unless another boundary line is justified by special
customary law, unless it can gain general acceptance to supervene the circumstances.”
preceding custom.

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III. Treaties (will be treated in Chapter 3) been improper. The Court here recognizes that, under Article 38 of the
Statute, the Court has some freedom to consider principles of equity as part
IV. General principles of law recognized by civilized nations of the international law which it has to apply.
 Also known as “general principles of law recognized or common to the  When it is accepted, equity is an instrument whereby customary or
world’s major legal systems.” (Restatement) It references municipal law conventional law may be supplemented or modified in order to achieve
principles common to legal systems of the world and are evidence of the justice. It has both a procedural and substantive aspect.
fundamental unity of law, most of them incorporated into conventional  Procedurally, equity is a mandate to the judge to exercise discretion
international law. to achieve a determination that is more equitable and fair.
 They are supplementary rules of international law, found in judicial  Different kinds of equity are distinguished—intra legem, praeter
decisions and the teachings of highly qualified publicists of various legem, contra legem
nations; they are a subsidiary means for the determination of rules • Intra legem: Within the law; the law is adapted to the
of law. Examples are— facts
• Chorzow Factory (PCIJ): Every violation involves the • Praeter legem: Beyond the law; the law is used to fill the
obligation to make reparation. gaps within the law
• Private rights gained under one regime do not cease • Contra legem: Against the law; there is refusal to apply
upon a change of government. the law because it is unjust
• Principle of estoppel  Other supplementary sources: UN Resolutions (merely recommendatory, but
 Article 38(1) (Statute) is an affirmation of general principles of law may sometimes be an expression of opinio juris or are reflections of what has
in domestic law systems and makes up for the fact that there is no become customary law), “soft law” (non-treaty agreements and not covered
international legislative system. It plugs in some of the gaps of the by the Vienna Convention on Treaties, like administrative rules guiding
current international law system. practice of states for international organizations; preferred by States because
• Barcelona Traction Case (ICJ)—The Court cannot it is simpler and more flexible for future relations.
disregard the institution of municipal law because it
would, without justification, invite serious legal difficulties. CHAPTER THREE: THE LAW OF TREATIES
 Judicial decisions: Article 38 directs the court to apply these in a subsidiary I. Treaties
manner in the determination of the rules of law, subject to Article 59 (on res  Many forms of treaties: conventions, pacts, covenants, charters, protocols,
judicata of ICJ cases as only being between parties). However, despite this, concordat, modus vivendi, etc. It is the most deliberate form of commitment
cases decided by the ICJ are considered highly persuasive in international through which governments cooperate with one another. The general term
law circles and have contributed to the formation of international law, e.g. used is international agreements. They are convenient tools through which
arbitral decisions have been instrumental in the formation of PIL principles. states show common intent, in the absence of international legislative.
 Teachings of highly qualified writers and “publicists:” In cases of first  1969 Vienna Convention on the Law of Treaties: Governs treaties between
impression, the court reluctantly makes reference to writers since they are states; entered into force in 1980.
the only available sources. Common law courts are less willing to use them  A Convention on the Law of Treaties Between States and International
than civil law courts. “Publicists” are institutions which write on PIL, but may Organizations or Between International Organizations was adopted in March
bear potential national bias—being primarily government-sponsored th
1986, and should enter into force 30 days after the 35 ratification or
entities—like The International Law Commission (a UN organ), the Institut de accession of states.
Droit International, the International Law Association (a multinational body),
the Restatement, and the annual Hague Academy of International Law’s  Definition: A treaty is an international agreement concluded between States
annual publication. in written form, and governed by international law whether embodied in a
 Equity considerations: As a source of law, the Permanent Court of Justice single instrument or in two or more related instruments and whatever its
had occasion to use equity in the case of Diversion of Water from the Meuse particular designation. (Vienna Convention)
(PCIJ), where the issue was WON Belgium had violated an agreement with  Elements of a treaty—1. In writing; 2. Reflective of the intention of
the Netherlands about any construction altering water levels and the rate of the parties to be bound; 3. Governed by international law
flow of the Meuse waters when the Netherlands built a lock earlier than when  Some writers believe that even oral agreements can by binding.
they were supposed to. The Court rejected both on the basis of equity, saying However, only written agreements can be subject to the provisions
that where two parties who have assumed reciprocal obligations, the of the Vienna Convention.
continuing non-performance of one party does not permit it to take advantage  No particular form is prescribed, as is shown in the following cases:
of a similar non-performance by the other party, because a court of equity • Qatar v. Bahrain (ICJ)—WON the two States should be
refuses relief to a plaintiff whose conduct in regard to the subject matter has bound by the signing and exchange of Minutes between

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the two heads of state with the binding force of an  Bilateral treaties: In the nature of contractual agreements which
international agreement. Ruling: To ascertain whether it create shared expectations (trade agreements) and are sometimes
can be considered as an international agreement, the called “contract treaties.”
Court must have regard for its actual terms and the  While treaties are generally binding only on the parties, the generality of the
particular circumstances in which it was drawn. The acceptance of specific rules created by the treaty can have the effect of
Minutes had included a reaffirmation of the obligations creating a universal law in the same way that practice creates customary law.
they entered into, and were not, thus, a simple record of
the meeting but enumerate the commitments to which the  Making of treaties: Generally, treaties originate from foreign ministries and
parties have consented, thus creating rights and negotiation is done through them. Larger multilateral treaties are negotiated
obligations in international law for the parties and validly in diplomatic conferences run like a legislative body.
constitute an international agreement. When it was  Negotiation: Negotiators must possess negotiating powers
contended that there was no intention to be bound by the because a treaty reached by one without proper authorization has
Minutes, the Court deemed it unnecessary to have to no legal effect unless ratified. A person represents the state in
look into intentions because of the signatures of the two negotiations when he produces appropriate full powers or it
ministers. appears that it is the practice of the State to consider that person as
• Norway v. Denmark (PCIJ): In a case involving a dispute representative of its interest for such purposes. Negotiations
over sovereignty in Eastern Greenland where Norway conclude with the signing of the document.
accepted Denmark’s offer of concessions in exchange for • Ex. Heads of State & Government and Ministers for
non-obstruction of the latter’s plans, WON the Norwegian Foreign Affairs; heads of diplomatic missions;
Minister is bound by his statement to the Danish minister representatives accredited by States to an international
“that the Norwegian Government would not make any conference or an international organization.
difficulty in the settlement of this question.” Court—YES.  Authentication of text: When documents are signed, they are
deemed authenticated, making the text authoritative and definitive.
 On UNILATERAL DECLARATIONS: In cases of dispute, basis for resolution is the authenticated
• Nuclear Test Cases: Australia v. France & New Zealand document.
v. France (ICJ): These cases were filed as a response to  Consent to be bound: The most important step through which a
France being a signatory to the Nuclear Test Ban Treaty document becomes binding as international law. There are various
and yet continued to conduct tests in the South Pacific ways by which consent to be bound is expressed.
until 1973. However, the cases were dismissed when • Ex. Through signature, exchange of instruments
France, through a series of unilateral announcements, constituting a treaty, acceptance, approval, accession, or
said that it would conduct no further tests. Nonetheless, any other means agreed upon.
the court commented that unilateral declarations have the  Ratification: Manner of ratification differs from state to state. In the
effect of creating legal obligations when the commitments Philippines, it is done via concurrence of two-thirds of all the
are a.) very specific and there is b.) a clear intent to be members of the Senate (Sec. 21, Art. VII, 1987 Constitution.) By
bound. this, a state is required not to engage in acts which can defeat the
• European Union v. US: Attributing legal significance to purpose of the treaty.
unilateral statements made by a State should not be  Notification, Exchange and Deposit of Ratification: Unless the treaty
done lightly, and are subject to strict conditions. provides otherwise, notification, exchange and deposit establish the
consent of a State to be bound by a treaty.
 Functions of treaties: May be sources of international law; charters of  Accession to a treaty: Only those not originally parties of the treaty
international organizations; used to transfer territory, regulate commercial can express their consent to be bound by accession, where the
relations, settle disputes, protect human rights, etc. treaty provides or it is otherwise established that such consent may
 Multilateral treaties: Open to all states of the world; operate to be expressed by that State by means of accession.
create norms which are the basis for a general rule of law. May be
either codification treaties (covering principles) or “law-making  Reservations: A unilateral statement made by a State when signing, ratifying
treaties” (treaties which ripen into law) or they may have the or approving a treaty purporting to exclude or modify the legal effect of
character of both. certain provisions of a treaty in its application. They are different from
 Collaborative mechanism treaties: May be of universal or regional statutes, which apply to all, and from interpretative declarations, which are
scope, and operate through the organs of different states. not derogations but are expressions of how a state understands its adoption
of the treaty.

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 Reservation is not allowed when prohibited by the treaty, when the upon each party in respect of its entire territory. (Article 29 of the
treaty provides for special reservations, or when the reservation is Convention)
incompatible with the object and purpose of the treaty.  Interpretation of treaties: Article 31 combines various approaches to treaty
 Reservations expressly authorized by treaty do not need to be interpretation
subsequently accepted unless provided by the treaty itself.  Objective approach: interpretation according to the ordinary
 Reservation requires acceptance by all the parties if the number of meaning of the words
party States to the treaty are limited and the acceptance of the  Teleological approach: interpretation according to the telos or the
treaty as a whole is essential to the purpose of the treaty. purpose of the treaty
 If the treaty is integral for an international organization, a  Subjective approach: honors the special meaning given by the
reservation requires the acceptance of the organization. parties
 Reservation is deemed to be accepted if others failed to raise any  If there are ambiguities, supplementary sources may be used; in
objections within one year after notification of the reservation or case of conflicts, language that is agreed upon by the parties shall
after it expressed its consent to be bound, whichever is later. prevail.
 Reservations may be withdrawn at any time and consent of the • Air France v. Saks (US): WON an air carrier is liable for a
other State is not required for its withdrawal. Likewise, objections to passenger’s injuries due to the dropping of air pressure
reservations may be withdrawn at any time. Withdrawal becomes which occurred while the plane was in the process of
operative in relation to another contracting State only when notice landing, causing the passenger to become deaf in one
has been received by other contracting states. ear. Despite the Warsaw Convention making the airline
 Form: Reservation must be in writing and communicated to liable for injuries sustained by passengers on the account
contracting States and other states entitled to become parties. of any accident occurring onboard the aircraft or in the
Express acceptance of a reservation by other states does not course of any of its operations while
require confirmation in itself. Withdrawal of a reservation or of an embarking/disembarking, the court found that the injuries
objection thereto must be in writing. were a result of a usual and expected event (the
 Reservation in bilateral treaties is considered a rejection of the dropping of air pressure), which was not within the
treaty. Reservations, then, are only applicable to multilateral meaning of the word “accident” in Article 17.
treaties.  Invalidity of treaties: Error of fact, fraud, corruption, duress
 The Philippines and the 1982 Law of the Sea: The Philippines  Error: Mistake in a factual antecedent essential to the State
made a reservation conditioning its acceptance of the 1982 Law of entering into the treaty in the first place; does not apply if there was
the Sea on the Philippine claim in the 1987 Constitution on “internal prior notice or the State head contributed to the mistake.
waters” between islands, irrespective of breadth. USSR filed a  Fraud: Fraudulent behavior is involved in inducing another to enter
formal protest but FJB says that the reservation is unnecessary into a treaty with the State.
because the new rule only applies to waters not previously  Corruption: Consent is procured through either direct or indirect
considered as internal waters. corruption of its representative.
 Reservations in human rights treaties: No reservations can be  Duress: There is duress by procuring consent through the coercion
made for Human Rights treaties. of another State’s representative or acquiring another State’s
 Entry into force of treaties: Enter into force on the date agreed upon by the consent through threat or use of force in violation of the principles
parties. Where no date is indicated, once consent has been given. of international law.
Multilateral treaties come into force once the required number of parties  Jus cogens: A peremptory norm of international law from which no
consent or accept the treaty. They may also be applied provisionally. derogation is permitted; any treaty which violates jus cogens is
 Application of treaties: deemed void.
 The first fundamental rule on treaties is pacta sunt servanda,  Loss of right to assert the invalidity of a treaty: A state loses the right to
ensuring that every treaty in force is binding upon the parties to it protest a treaty’s validity when, after knowing all of the facts, expressly
and must be performed by them in good faith. (Article 26 of the agreed to its validity or continues to keep it in force/in operation.
Convention)  Municipal law as a ground to invalidate a treaty: Generally, a state cannot
 The second fundamental rule is that a party may not invoke the use municipal law as a ground to invalidate a treaty unless there is a manifest
provisions of its internal law as justification for its failure to perform violation.
a treaty. (Article 46 of the Convention)  Manifest violation: A violation is manifest if it would be objectively
 Third—regarding the territorial scope of its applicability: Unless a evident to any State conducting itself in the matter in accordance
different intention appears from the treaty or is otherwise with normal practice and in good faith.
established, a treaty or is otherwise established, a treaty is binding

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• Ex. A state representative is subject to a restriction when  Bilateral: Innocent party may invoke the breach of the other party
concluding a treaty (a manifest violation if he does not as a ground to terminate or suspend the operation, in whole or in
observe the restriction, unless the other states were part.
informed of his lack of capacity and contracted with him  Multilateral: Breach of the treaty entitles the other parties (by
anyway) unanimous agreement) to suspend the operation of the treaty, in
whole or in part, either between themselves and the defaulting
 Amendment of treaties: A formal revision done with the participation (at the State or as between all of the parties, or to ask for the termination
very least in its initial stage) by all the parties to the treaty. of the treaty
 A treaty may be amended by agreement of the parties. The • A party specially affected by the breach may invoke it as
procedure to be followed is the same as formation—it is much more a ground for suspending the operation of the treaty, or
difficult as to multilateral treaties than bilateral treaties because it is suspend the relations between itself and the defaulting
difficult to obtain the consent of all the parties in multilateral State.
treaties. • Any other party may invoke breach as a ground to
 Article 40: Applies for amendments which will affect only some of suspend the operation of the treaty in whole or in part
the states but only after all parties have been given the opportunity with respect to itself if it is of such a character that a
to consider the proposed amendments. material breach by one radically changes the position of
• Notice of the proposal to amend must be given to all all the other parties with respect to further performance.
contracting parties, because they all have the right to: a.) • Examples of breach: Unsanctioned repudiation of a
the decision as to the action to be taken; b.) the treaty, violation of a provision essential to the
negotiation and conclusion of any agreement for the accomplishment of the purpose of the treaty.
amendment. • Note: The ground of material breach cannot apply to
• Every original contracting party-State is also entitled to provisions relating to the protection of the human person
become a party to the amended treaty. Also, the contained in humanitarian treaties.
amended treaty does not bind those who do not give their  Namibia Case (ICJ): The case is an advisory opinion on the legal
consent to it. A State that becomes a party to the treaty consequences of a breach of a resolution sought by the Security
after the amendment shall (unless it is expressed Council after it had ruled that South Africa’s extended stay in
differently) be considered as a party to the treaty as Namibia was illegal. Ruling: The ICJ held that the two forms of
amended and a party to the original treaty in relation to material breach had occurred in this case (unsanctioned
those who did consent to the amended treaty. repudiation and violation of a treaty provision.) South Africa was
 Modification: A formal revision that involves only some of the parties. under an obligation to withdraw from Namibia, and other States
 Article 41: Allows for modification by two or more of the parties. were under no obligation to recognize any acts by South African
• Two or more parties in a multilateral treaty may modify administration from Namibia.
the treaty as between themselves if the treaty provides  Supervening impossibility of performance: It has become impossible to fulfill
that it may be modified or it does not prohibit the treaty because of the disappearance or destruction of an object
modification. The lack of prohibition must also indicate indispensable for the execution of the treaty. If the impossibility is temporary,
that it must not affect the enjoyment of rights under the it may only be cause to suspend. It cannot be invoked if the impossibility is a
treaty by other parties, or it must not relate to a provision, result of a breach by the party claiming the ground.
derogation from which is incompatible with the effective  Danube Dam Case (ICJ): WON Hungary could claim the right to
execution of the objective of the treaty. terminate the 1977 Treaty between the State and Czechoslovakia
• The modifying parties must also inform the other parties to facilitate the construction of dams on the Danube river on the
of their intent to modify as well as the modification itself. basis of impossibility of performance and rebus sic stantibus. Due
to environmental concerns, Hungary had to suspend operations
 Termination of treaties: Termination according to—conclusion according to causing Czechoslovakia to respond with unilateral measures,
the terms, by consent, expiration of definite period, achievement of purpose. causing Hungary to try to terminate the treaty. Ruling: The court
 Change of government does not terminate a treaty. held that Hungary could not claim impossibility of performance if
 Other modes of terminating a treaty: Material breach, impossible they had a hand in the breach that caused the impossibility (in this
performance, rebus sic stantibus case, failure to carry out the works for which Hungary was
 Material breach: The treaty’s terms are breached. responsible.) Furthermore, the change in circumstance is not
fundamental enough to radically transform the extent of the
obligations under the Treaty.

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 Rebus sic stantibus (Fundamental change in circumstance): There is a  Can the President unilaterally terminate a treaty? In US jurisdiction
fundamental change in the circumstances, unforeseen by the parties, from (Goldwater v. Carter), the question was raised but not resolved
those at the conclusion of the treaty. because the case was not yet ripe for adjudication.
 This may not be invoked as a ground for terminating a treaty unless  Succession to treaties: In the case of a brand new state (one state ceases to
those circumstances were an essential basis of the consent of the exist and is succeeded by another occupying the same territory), the Vienna
parties to be bound to the treaty, and the effect of the change Convention on the Succession of States with Respect to Treaties concluded
transforms the extent of obligations still to be performed under the that the “clean slate rule” is applied, and a newly independent state is not
treaty. bound to maintain treaties entered into by the previous state. If they choose,
 Rebus sic stantibus may also be invoked to suspend a treaty’s however, they may agree to be bound by the treaties of its predecessor.
operations. However, the modern approach to its invocation is  Exception: Treaties affecting boundary regimes. They are
restrictive (Fisheries Jurisdiction case)—the changes must have considered as attached to the territory, not to the State.
increased the burden of the obligations to be executed to the extent
of rendering performance something essentially different from the
original intention.
• Fisheries Jurisdiction (ICJ): WON the proposed extension CHAPTER FOUR: INTERNATIONAL LAW AND MUNICIPAL LAW
of Iceland’s exclusive fisheries jurisdiction from 12 miles
to 50 miles was a breach of an agreement between the I. Conflict between International Law and Municipal Law—Dualism vs. Monism
State and UK, on Iceland’s argument that the agreement  Dualist/pluralist theory: International law (PIL) and municipal law (ML) are
was no longer binding because of rebus sic stantibus. essentially different.
Ruling: The court ruled that the fundamental change  As to source: ML is a product of local custom or legislation and PIL
being pushed by Iceland (increased exploitation of fishery is sourced from treaties and custom grown among states.
resources because of the increased catching capacities  As to relations to regulate: ML regulates relations between
of fishing fleets) cannot be said to have transformed the individual persons under the state, while PIL regulates relations
extent of the jurisdictional obligation imposed in the between states.
agreement with the UK.  As to substance: ML is the law of the sovereign over individuals
 Exceptions: Fundamental change in circumstances cannot be while PIL is a law between sovereign states.
invoked as a ground for termination or withdrawal when the treaty  Which prevails: ML must prevail (Dualists are positivists—strong
establishes a boundary, or if it is a result of a breach by the party emphasis on state sovereignty)
invoking it.  Monistic Theory: PIL and ML belong to only one system of law.
 Monism Theory 1: ML subsumes and is superior to PIL.
 Procedure for termination:  Monism Theory 2: PIL is superior to ML (this theory is supported by
 Party-State must notify other parties (in writing and signed by one Kelsen); this superiority stems from a deep suspicion of local
with full powers) of the ground or defect in the consent which would sovereigns and from the conviction that PIL imbues the domestic
allow it to withdraw or terminate the treaty. Notification must order with a sense of moral purpose.
indicate the measure proposed and the reasons.
 If within a period of not less than three (3) months, no objections  ML in PIL: Prevailing practice accepts dualism to the extent that it recognizes
are raised, proposing State may carry out the measures proposed. two legal systems.
In case of an objection, the parties concerned shall seek a solution  Parties may not invoke provisions of ML to avoid or to justify its
through the necessary means. failure to perform a treaty or any kind of international agreement.
 If no solution is reached within 12 months, the dispute must be Dualist theory blocks the entry of ML in the area of PIL.
submitted to:  A state that enters into an international agreement must modify its
• ICJ ML to make it conform to the agreement. As in the case of
• Arbitration, or Exchange of Greek and Turkish Population, the Court ruled that a
• Secretary General of the UN for procedure specified in state is “bound to make in its legislation such modifications as may
the Annex of the Convention be necessary to ensure the fulfillment of the obligations
 The proposal may be revoked any time before it takes effect. undertaken.”
 Authority to terminate: Vienna Convention does not enumerate those who  However, even under a dualist perspective, the two systems are
have the capacity to terminate treaties; however, it is logical that those with not completely separate. Barcelona Traction Case (ICJ): A court
the authority to enter into treaties also have the authority to terminate them. who disregards the relevant institution of ML would be losing touch

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with reality. However, PIL refers only to generally accepted rules in self-executing principles ready for enforcement but are used by the
municipal systems and not to the particular ML of a particular State. Judiciary to aid or guide the exercise of its power of judicial review.
 If an international court is called to decide a case based on Tanada case is supposed to be a retreat from the next case.
municipal and not international law, they must apply it as it would  Manila Prince Hotel v. GSIS: WON the State can award the
be applied in the country where it is from. contract to a Filipino bidder over an international one on the basis
of the principles in the 1987 Constitution such as preferring
 PIL in ML: Dualism still applies when it comes to entry of PIL into the qualified Filipinos. The Court said that the provisions need not be
domestic sphere. Unless it becomes a part of municipal law, PIL has no place subject to legislation but are self-executory on their own, a
in the settlement of conflicts in domestic law. mandatory, positive command complete in itself. It is per se
 Two theories on how PIL becomes a part of ML: Doctrines of judicially enforceable.
transformation and incorporation
 Transformation—for PIL to become part of ML, it must be expressly  Conflict between treaty and law: Whichever one is later prevails—based on
and specifically transformed into domestic law through legislation or the American view that treaties and statutes are equal in rank. However, the
any other appropriate machinery. Treaties do not become part of preference of a statute over a treaty (in case a statute comes later) only
the law of the land unless the State consents to it. applies as to its domestic aspect, not to its international aspect.
 Incorporation: When any question arises which is properly the  Head Money Cases (US): Treaties do not hold a privileged position
object of its jurisdiction, the law of nations is adopted by common above other acts of Congress, and other laws affecting "its
law, and becomes part of the law of the land. enforcement, modification, or repeal" are legitimate. So far as a
treaty made by the United States can become the subject of judicial
 Philippine law: Treaties and international agreements become part of the law cognizance in the courts, it is subject to such acts which Congress
of the land when concurred in by the Senate (1987 Constitution). The may pass.
acceptance of the Philippines of the generally accepted principles of PIL  Whitney v. Robertson (US): WON the agreement between Hawaii
manifests its adherence to the dualist theory and adopts the incorporation and the US as to admit their sugars duty-free into the country would
theory, making PIL a part of ML. Philippine courts, then, can use PIL to settle also apply to the merchant-petitioners’ produce of similar centrifugal
domestic disputes. and molasses sugar from San Domingo, a State which also has a
 Incorporation only applies to customary law and treaties which have similar treaty with the United States. The court ruled, gleaning
formed part of customary law, because the 1987 Constitution also doctrine also from the Head Money cases that when the
provides that treaties have to be ratified. stipulations are not self-executing, they require legislation to put
 When Philippine Courts use PIL to settle domestic disputes: Mejoff v. Director them into effect. Such legislation is subject to modification and
of Prisons (Declaration of Human Rights, in deciding WON to release an repeal by Congress. If the treaty contains self-executing
alien of Russian descent from detention pending deportation), Kuroda v. stipulations, to that extent they have the force and effect of a
Jalandoni (the Hague and Geneva Convention, in WON a military legislative enactment.
commission had jurisdiction over war crimes committed in violation of the two
conventions prior to 1947), Agustin v. Edu (Vienna Convention on Road CHAPTER FIVE: SUBJECTS OF INTERNATIONAL LAW--STATES
Signs and Signals, in determining WON the Letter of Instruction prescribing
the use of early warning devices possesses relevance,) J.B.L. Reyes v. I. Subjects vs. Objects of International Law
Bagatsing (International duty to protect foreign embassies.)  They are entities endowed with rights and obligations in the international
order, possessing the capacity to take certain kinds of action on the
 International/Municipal Rule: Where there is a conflict between PIL and ML, international plane.
what prevails depends on whether the case goes to an international or a  Have international personality and are capable of acting in international law.
domestic court. Before an international court, a party cannot argue or plead  Vs. Objects: Objects of PIL are those who indirectly have rights under/are
its own law. Domestic courts have no choice but to follow local law. beneficiaries of international law through the subjects of international law
 States enjoy the fullest personality in PIL.
 Conflict between State Constitution and treaty: Treaty is not valid and
operative as domestic law; the SC has the power to declare the treaty invalid. II. Statehood
However, this does not mean that the theory is declared unconstitutional or  Commencement: A state as a person in PIL should possess the following
that it loses its international character. characteristics—a.) permanent population, b.) defined territory, c.)
 Tanada v. Angara: WON the Senate’s ratification of the GATT government, and d.) capacity to enter into relations with other states.
Treaty is contrary to national interest and the Constitution. The (Montevideo Convention of 1933 on Rights and Duties of States)
Court ruled that the principles embodied in the Constitution are not

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 Examples: When a portion of territory has seceded, foreign control international fora—however, PIL has yet to recognize a
over an entity claimed to be a state, or when states have formed a right of secession from a legitimately existing state.
union or continue to retain some autonomy, when members of a
federation claim to be a state.  Recognition of states: When one state recognizes the capacity of another
 Elements of Statehood—People, Territory, Government and Sovereignty state to exercise all the rights attributed to statehood; it is an act of
 People/Population: A community of persons sufficient in number, acknowledgement.
capable of maintaining permanent existence of the community and  Declaratory theory: Recognition merely ‘declares’ the existence of
held together by a common bond of law. There is no minimum the state; statehood depends upon its possession of the elements,
population required, nor are they required to have racial, cultural or not upon fact of recognition, and the recognizing state merely
economic similarities. accepts an already existing situation. (The weight of authority
 Territory: An entity called a state must exercise sovereignty over a supports this.)
definite territory; it may satisfy the territorial requirement for  Constitutive theory: Recognition ‘constitutes’ the state; there is no
statehood even if its boundaries have not yet been settled with state until it is recognized by another. The fact of recognition makes
finality because it does not cease to be a state even if all its territory the state a state, and confers legal personality on the entity. This
is occupied by another power or if it has lost control of its territory theory emphasizes that states are under no obligation to enter into
temporarily. (Restatement) bilateral relations, but also allows those entities who do not have all
 Government: Institution by which an independent society makes the Montevideo Convention elements of a state to be recognized as
and carries out rules of action necessary to enable men to live in a such.
social state, or which are imposed upon people forming that society  Political issue: Lately, it is of note that the recognition of states of
by those who possess the power or authority of prescribing them one another has become a matter of political discretion—a state
(US v. Dorr, 2 Phil. 332.) In PIL, there is no required form of recognizes the existence of another if it is beneficial to them.
government. For purposes of PIL, it is the national government Treatment of recognition has been inconsistent and it is seen that
which has international personality and it is that which is political realities have primacy over consistency in application.
responsible for the actions of the agencies and instrumentalities of Traditional criteria was largely amoral—how states came to be was
the State. Temporary absence of government does not terminate not a relevant factor; now, placing conditions leading to recognition
the existence of a state. implies an attempt at greater moral dimension but have sacrificed
 Sovereignty: Independence from outside control. It is, according to the application of a consistent doctrine.
the Montevideo Convention, the capacity of the State to enter into  Recognition of Government: Closely related to recognition of states, it is the
relations with other States. This, however, is dependent upon act of acknowledging the capacity of an entity to exercise powers of
recognition. government. If there is a change in government that came about through
 Self-determination: Related to but is not identical to sovereignty. constitutionally mandated means, recognition comes as a matter of right. If it
The latter falls under the broader concept of the right of self- came about through extra-constitutional means, the cases of Tinoco
determination. It is the impetus behind the birth of new states in the Arbitration and Upright v. Mercury Business Machines Co. may be helpful.
post-World War II era, and is asserted by both the International  Tinoco Arbitration (W.H. Taft, arbitrator): WON Great Britain is
Covenant on Civil and Political Rights and International Covenant estopped from pursuing claims against the temporary Tenneco
on Economic, Social and Cultural Rights. “All peoples have the right government of Costa Rica because it never recognized the Tinoco
of self-determination. By virtue of that right they freely determine government either as de jure or de facto. Ruling: The status of the
their political status and freely pursue their economic, social and brief Tenneco government was that of de facto, which was capable
cultural development. of creating rights in different subjects, and these rights cannot be
• May be broken down into two levels of claim to self- ignored to work any injury to the succeeding government.
determination: first, the establishment of new states—a  Upright v. Mercury Business Machines Co. (US): WON plaintiff, as
claim of a group within an established state to break an assignee of a trade acceptance debt of a foreign corporation
away and form their own identity; and second, claims to which is a creature of East German government, can enforce the
be free from external coercion or to overthrow rulers and unpaid claim against Mercury Business Machines despite East
establish a new government. The latter is the assertion of Germany not being recognized by the United States. Ruling: An
the right of revolution, or that of autonomy. unrecognized foreign government may have a de facto existence
• The UN has various ways of giving effect to self- juridically cognizable when it affects private rights and obligations.
determination like resolutions of support, sanctions for  Consequences of non-recognition: Recognition allows opportunities not
offenses against SD, rights of participation in afforded to non-state entities, like extensions from funding agencies,

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facilitation of loans, access to foreign courts, etc. However, recognition of a 3.) Where part of the state becomes a separate state, local public
government is a highly political decision. debt, and rights and obligations relating to the territory of the new
 Entry into the UN does not require recognition by all members. state, pass to the new state.
Recognition is only to the extent of the activities of the organization.  As to treaties:
 Neither recognition nor diplomatic relations necessarily mean 1.) When part of the territory of a state becomes territory of another
approval of the government. state, the treaties of the predecessor state cease to have effect in
 Termination of recognition: When a new regime is recognized in lieu of the respect of the territory and the treaties of the successor state come
old government. A state cannot be de-recognized so long as it continues to into force there.
fulfill the requirements of statehood. 2.) When a state is absorbed by another state, the treaties of the
absorbed state are terminated and the treaties of the absorbing
 Succession of States: States do not last forever and state succession may state become applicable to the territory of the absorbed state.
arise in different circumstances, such as a result of decolonization, 3.) When a part of a state becomes a new state, the new state does
dismemberment, secession, annexation and merger. What occurs in each of not succeed to the treaty to which the predecessor state was a
these instances is that an existing sovereignty disappears in whole or in part party, unless, expressly or by implication, it accepts such
and a new sovereignty arises giving rise to questions of succession to rights agreements and the other party agrees (Clean slate theory).
and obligations. 4.) Pre-existing boundary and other territorial agreements continue
 Tabula rasa theory: Clean-slate theory, where a new state is not to be binding notwithstanding (uti possidetis rule).
bound by any rights and obligations of its predecessor.
 Opposing theory says that a new state inherits all of the rights and
obligations of the old state.  Fundamental Rights of States—Independence, equality, peaceful co-
 Continuity: When a new state arises, what is its relation to the predecessor existence
state? Does it continue the existence of the old state or is it completely  Independence: Capacity of a state to provide for its own well-being
distinct from it? It is less of a problem when there is a new regime and development free from the domination of other states, provided
(constitutive of a ‘state’) like in the case of Pakistan and India succeeding it does not impair or violate their legitimate rights. From this flows
British India. It is more problematic in cases like the former Soviet Union and the power of jurisdiction over territory and permanent populations,
Yugoslavia. the right to self-defense and the right of legation.
 Specific provisions: Taken from the Restatement—  Equality: Equality of legal rights irrespective of size or power of the
 As to territory: When a state succeeds another state with respect State. In the UN, it is the doctrine behind the principle of one state,
to particular territory, the capacities, rights and duties of the one vote.
predecessor state with respect to that territory terminate and are  Peaceful co-existence: Elaborated in the Five Principles of Co-
assumed by the successor state. Existence by India and China (1954) and includes mutual respect
 As to state property: Subject to agreement between predecessor for each other’s territorial integrity and sovereignty, mutual non-
and successor states, title passes as follows: aggression, non-interference, and the principle of equality.
1.) Where part of the territory of a state becomes territory of  Incomplete subjects—Protectorates, federal state, mandated and trust
another state, property of the predecessor state located in that territories, Taiwan, Malta, Holy See
territory passes to the successor state;
2.) Where a state is absorbed by another state, property of the
absorbed state, wherever located, passes to the absorbing state; CHAPTER SIX: SUBJECTS OF INTERNATIONAL LAW—OTHER SUBJECTS
3.) Where part of a state becomes a separate state, property of the
predecessor state located in the territory of the new state passes to
I. International Organizations
the new state.
 An organization that is set up by treaty among two or more states and is
 As to public debts: Subject to agreement between the states,
different from NGOs, which are set-up by private persons. It is a treaty that is
responsibility for public debts, rights and obliges under contracts,
the constituent document of international organizations.
remain with the predecessor state, except:
 Only states are members of international organizations. To be able to
1.) Where part of the territory of a state becomes territory of
delineate the activities of international organizations, one must look at the
another state, local public debt, and the rights and obligations
relevant rules of its body and to its constitution.
under contracts relating to that territory, are transferred to the
 How do they come into existence?
successor state.
 Do they have international personality?
2.) Where it is absorbed by another state, the public debt, etc. pass
 Do they enjoy any kind of immunity?
to the absorbing state.

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 Formed via multilateral treaties, but also treaties of a particular type—which employees who were seeking redress for violation of labor rights
create new subjects of international law, imbued with some autonomy, where were rebuffed by the Supreme Court.
parties are geared towards a common goal.  In the two cases involving the Asian Development Bank, of which
 Reparations Case (ICJ Advisory Opinion): WON an agent of the treaty the Philippines is a signatory, the results were different. In
United Nations in the performance of his duties suffered injuries in one case, deciding whether or not the NLRC could take cognizance
a situation involving responsibility of a State has the capacity to of a case involving illegal dismissal against ADB, the immunity of
bring an international claim against the responsible government to ADB was upheld. However, in the other case, the immunity of an
obtain reparations for both the victim and the United Nations. ADB employee was not upheld in the face of a criminal complaint
Ruling: Members of the UN created an entity possessing objective for grave oral defamation because the immunity could only be
international personality and not merely a personality recognized by limited to acts performed in an official capacity, and it could not
them alone. Despite the UN Charter being silent about the cover the commission of a crime.
organization’s international personality, its possession of legal  United Nations’ Structure and Powers: The UN is a universal organization
personality may be implied from the functions of the organization. charged with peace-keeping, the development of friendly relations among
 However, the recognition of an international organization’s personality does nations, the achievement of international cooperation and the promotion of
not place it on the same level as states. It does not give them the powers and human rights and fundamental freedoms for all human beings without
privileges that a state enjoys, for their powers are limited by the instrument discrimination (BASICALLY: peace, cooperation, friendly relations and
which created them. human rights)
 Advisory Opinion on the Use of Nuclear Weapons: International  However, the UN is enjoined in intervening in matters which are
organizations are governed by the principle of specialty and are within domestic jurisdiction of any state.
invested by the States which create them with powers, limited by  In the hierarchy of international organizations, the UN occupies a position of
the function of common interests. The powers conferred on them preeminence. In the event of a conflict between international agreements
are normally the subject of an express statement of their charter between Member States and the UN Charter, the UN Charter must prevail.
instrument. However, they may possess subsidiary powers  Principal organs of the UN: General Assembly, Security Council, ECOSOC,
necessary to achieve their objectives called “implied powers.” Trusteeship Council, Secretariat, ICJ and Other Agencies
 Immunities: The basis for their immunities is not sovereignty (as in States and  General Assembly: Where all member States are represented. It
Heads of State) but the need for the effective exercise of their functions. The exercises plenary powers, and may discuss any question or matter
immunities for the United Nations and its designated agents and within the scope of its Charter. It distinguished between “important
representatives are found in Article 105 of the UN Charter and are described questions” and “other questions.” Important questions are
as “those which are necessary for the fulfillment of its/their purposes.” The decided by an absolute majority (2/3) of the members voting and
General Assembly may make recommendations to determine the details of present. Other questions require only a majority. The Charter
the application of the particular immunities, which they did in the General identifies which questions are deemed important questions; the GA
Convention on the Privileges and Immunities of the United Nations and the may include other important questions by majority vote.
Convention and Privileges of Specialized Agencies.  Security Council: Primarily responsible for the maintenance of
 The Philippine courts have recognized the immunity of other international peace and security. There are 15 member states, five
international organizations in International Catholic Migration of them permanent (China, France, Russia [in the place of the
Commission v. Calleja (190 SCRA 130), Southeast Asian Fisheries former USSR, as agreed upon by the former Soviet Union], the
Development Center v. Acosta (226 SCRA 49) and Lasco v. United United Kingdom and the United States—as the winners of World
Nations Revolving Fund for Natural Resources Exploration (241 War II). The other seats are filled up by election to two-year terms
SCRA 681). in accordance with equitable geographic representation. It
 However, in the case of Kapisanan ng mga Manggagawa v. distinguishes between “procedural matters” and “all other
International Rice Research Institute (190 SCRA 130, decided matters.”
jointly with the International Catholic Migration Commission case), • Matters which are not procedural only require nine
IRRI was treated as an international organization despite being affirmative votes, including the concurring vote of the
created via memorandum of agreement, not by treaty, by the permanent members. However, because the Charter
Philippine government and the Rockefeller and Ford Foundations. does not specify what matters are procedural and which
Although initially considered a private corporation with the SEC, are not, it is the practice of the Council that a decision on
IRRI was granted the status of an international organization in 1979 whether or not matters are procedural also requires the
through PD 1620. The Court recognized it as a specialized agency concurrence of the permanent members. This makes the
on the same footing as the International Catholic Migration double veto by the permanent members possible. An
Commission, an international organization. The end result is that abstention is considered a veto.

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 ECOSOC: Has 54 member states elected for three year terms.  All ten member States have already ratified the charter and it will
Subsidiary organs include the UN Commission on Human Rights take effect upon the deposit of all ratifications.
and the Commission on the Status of Women
 Trusteeship Council: Supervises non-self governing territories. II. Insurgents and Liberation Movements
Limited jurisdiction and has suspended operations, following  Protocol II: Only international agreement regulating the conduct of parties in a
Palau’s independence in 1994. non-international armed conflict—1977 Protocol II to the 1949 Geneva
 Secretariat: Comprises of a Secretary General and such staff as Conventions. It develops and supplements the Common Article 3 without
the Organization may require. A Secretary General is elected to a modifying its existing application. It covers non-international armed conflict
five year term by the General Assembly upon the recommendation and, if satisfied, grants them the status of a subject of international law
of the Security Council, which is subject to veto power. He is the as “para-statal entities possessing definite, if limited, form of international
Chief Administrator and has the power to bring to the attention of personality.” They may be recognized as having belligerent status against the
the Security Council any matter which may threaten the de jure government and other states are required to maintain neutrality
maintenance of international peace and security. towards them. They are also capable of entering into treaties.
 ICJ: Covered in another chapter.  Non-international armed conflict: Armed conflicts which take place
 Other Agencies: Other specialized agencies aside from the main in the territory of a High Contracting Party between its armed forces
organs of the UN—UN Educational, Scientific and Cultural and dissident armed forces or other organized groups under (1)
Organization (UNESCO), the International Civil Aviation responsible command which (2) exercise control over a
Organization (ICAO), the World Health Organization (WHO), the particular territory so that they can carry out sustained and
Food and Agricultural Organization (FAO), the World Bank and the concerted military operations (sustained capability to maintain
International Monetary Fund (IMF.) themselves.)
 Regional Organizations: Regional organizations also play important roles, but  Protocol II applies only when the two elements are present. The
they are neither organs nor subsidiary agencies of the UN. They are Philippine Government has maintained that Protocol II will not apply
autonomous international organizations having institutional affiliation with the in the case of the National Democratic Front because they fail to
UN by concluding agreements with the UN. They are created pursuant to cross the threshold of Protocol II’s application.
international agreements for the purpose of dealing with regional problems in  Inapplicable to situations of internal disturbances like riots, or such
general, or with specific matters like economic, military or political concerns. other isolated and sporadic acts of violence, even if armed forces
 ASEAN: In this region, the Philippines is one of the original are called to suppress the disorder.
Member Countries of the Association of South East Asian Nations
(ASEAN), formed in 1967. The other original members are  Common Article 3: States that in case of non-international armed conflict,
Indonesia, Malaysia, Singapore and Thailand. Brunei contracting parties are required to treat humanely persons who do not
Darussalam joined in 1984. Vietnam joined in 1995. Laos and partake of the hostilities at all times, without any adverse distinction as to
Myanmar joined in 1997. Cambodia became the last member in race, class, etc. Acts of violence to life and person (mutilation, cruel
1999. It was created pursuant to the Bangkok Declaration, which treatment, torture), hostage-taking, outrages upon personal dignity, carrying
sought to push for a joint effort to promote economic cooperation out of sentences and executions without those judicial guarantees recognized
and the welfare of the people in the region. as indispensable by civilized peoples, with respect to the persons previously
 It aims to promote economic, social and cultural development of mentioned, shall be prohibited at all times. The wounded and sick shall be
the region through cooperative programs, to safeguard political and cared for, and an impartial humanitarian body like the Red Cross may offer its
economic stability of the region, and to serve as a forum for the services. The application of Common Article 3 does not make the conflict an
resolution of intra-regional differences. Its goals are accelerated international one.
economic growth, social progress, cultural development, regional
peace and stability through respect for justice and adherence to the  National Liberation Movements: Organized groups fighting in behalf of a
UN Charter. people for freedom from colonial groups; people fighting against colonial
 Comprises three pillars: ASEAN Security Community, ASEAN domination and alien occupation and against racist regimes in the exercise of
Economic Community and ASEAN Socio-Cultural Community. their right of self-determination.
 Fundamental principles: Mutual respect for independence and
sovereignty, recognition of the right of every state to lead its
national existence free from external influence, the non-interference  First arose in Africa, then in Asia. Currently, liberation movements
in internal affairs, peaceful settlement of differences, renunciation of are on the wane.
the threat or use of force and effective cooperation. (Treaty of Amity  Characteristics: May be based within the territory they are seeking
and Cooperation in Southeast Asia [TAC]) to liberate, or based in a friendly country—control of territory is not

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a necessary factor. Legitimacy comes from their goal of self- • Las Palmas Case (Perm. Crt.): WON the Island of Las
determination. Therefore, they have a goal of eventual control of a Palmas belongs to the US (via ceding of Spain’s rights
definite territory, and an organization capable of coming into over it through the Treaty of Paris) of to the Netherlands
contact with other international organizations. (via occupation and exercise of control). Ruling: Although
 Once the goals are attained, they may claim status of international the original title by discovery could be traced to Spain, it
subjects. never exercised control over the territory and therefore
 Unilateral declaration: An authority representing the people engaged in they only had inchoate title over the islands, because
armed conflict against a High Contracting Party in Article I of the 1977 discovery alone could not suffice to prove sovereignty
Geneva Convention (meaning non-international armed conflict) may seek to over the territory—it needs to be coupled with control
apply the Convention and the Protocols by means of unilateral declaration, over it. Spain could not transfer more rights than she
which bring the Convention and Protocol into force immediately, and the herself possessed. Its inchoate right cannot prevail over
represented party assumes the same rights and obligations as those which a definite title founded on continuous and peaceful
have been assumed by a High Contracting Party to the same Conventions display of sovereignty, upon which the Netherlands
and Protocol, making the latter agreements binding upon both of them. founded their claim. The Arbitrator rules in favor of the
Netherlands.
III. Individuals • Relative effective control may depend upon the nature of
 Individuals have increasingly become appropriate subjects of international the case. Where there are two or more claimants to a
law because of greater global awareness of human rights, which have territory, effective control is also relative to the strength of
granted them limited rights and obligations in PIL. the claims.
 Best examples are those individuals who have acquired obligations arising • Eastern Greenlands Case (PCIJ): WON Denmark or
from regulation of armed conflicts, making those behind certain actions fall Norway’s claim to sovereignty will prevail. Ruling: Claims
under criminal responsibility. However, those who claim violations of their to sovereignty based upon continued displays of authority
individual rights still have to rely on the enforcement power of states, but involves two elements—intention and will to act as
come treaties have provided for the right of individuals to petition international sovereign, and actual display of authority. In addition to
bodies if a contracting state has violated some of their human rights. that, the extent to which the sovereignty is also claimed
 Development of the International Criminal Court has allowed individuals to by some other Power must also be taken into account, as
have international legal personality; however, the Philippines is not a to which of the two is stronger. Because up to 1931 there
signatory. was no other claim other than Denmark, and up to 1921
no one disputed the claim, the Court ruled in favor of
Denmark.
CHAPTER SEVEN: TERRITORY—LAND, AIR AND OUTER SPACE  Prescription: A recognized mode of acquisition requiring effective
control, but the object of prescription is not terra nullius. This makes
I. Territory in PIL the required length of effective control longer than that of
 Territory: Element of a state; an area over which a State has effective control. occupation. Prescription may be negated by a lack of acquiescence
Control over territory is the essence of a State. Even if boundaries are by the prior occupant.
uncertain, there is a definitive core over which sovereignty is exercised.  Cession: The acquisition of property through treaty. A treaty of
Sovereignty over a portion of the surface of the globe is the legal condition for cession imposed by a conqueror is invalid, making what prevails
the inclusion of such portion in the territory of any particular state. merely a de facto regime.
 Includes land, maritime areas, airspace and outerspace.  Conquest: Taking possession of territory through armed force. For
 Modes of acquisition: Discovery and occupation, prescription, cession, acquisition of conquered territory, it is necessary that war had
conquest and subjugation, and accretion. already ended either by treaty or by indication of surrender. The
 Occupation: Acquisition of terra nullius (territory which belonged to conqueror must have intended to acquire the territory indefinitely
no one, or was effectively abandoned without intent of returning and not just occupy it temporarily. Conquest as a mode of
prior to occupation). acquisition is proscribed by PIL today. The latest instance of a
• Western Sahara Case (ICJ Advisory Opinion): WON response to an attempted conquest is the action taken against Iraq
Western Sahara was considered terra nullius if they were when it invaded Kuwait.
inhabited by organized tribes. The Court advised that any  Accretion or Avulsion: A kind of sovereignty by operation of nature.
territory inhabited by peoples having a social or political Accretion is the gradual increase of territory by the action of nature
organization cannot be considered terra nullius. while avulsion is a sudden change.

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 Contiguity (when certain lands are deemed part of territory on the basis of  Flexible rule with respect to State aircraft: In 1953, it was suggested by
closeness) is not a basis for sovereignty, with Las Palmas as argument Lissitzyn in an AJIL article that a flexible rule be adopted as to State aircraft,
against it because it is impossible to show a rule of positive international law in that the territorial sovereignty must not expose the aircraft and its
affirming contiguity as basis. occupants to unnecessary great danger in relation to the apprehended
 Intertemporal law: The view that the rules in effect at the time of the harmfulness of the intrusion. An aircraft must not be attacked unless there is
acquisition should be applied. reason to suspect that the aircraft is a real threat, and even then, a warning
must be relayed to land or change course before attacking. As to civilian
II. Airspace aircraft, many have held that they must never be attacked. Even the Soviet
 Prior to World War I, airspace was thought to be completely free. Because of Union, as part of its justification in the preceding paragraph, predicated its
the invention of airplanes and the outbreak of the war, there was a realization attack upon the mistaken notion that the South Korean aircraft was an
that the use of the air had security implications. It was then thought that American reconnaissance aircraft.
airspace is merely an extension of the territory below.
 Each state has exclusive jurisdiction over the air space above its territory, III. Outer Space
and consent for transit must be obtained before passage is allowed.  The assertion under air space law used to be that air sovereignty extended
 Chicago Convention on International Civil Aviation created the unlimitedly; this was changed by the development of outer space law. Thus,
International Civil Aviation Organization (ICAO) and prescribed sovereignty over air space extends only until where outer space begins.
ruled for civil aviation. The Chicago Convention is applicable only to There is no definite answer yet as to the delineation between air and outer
civil and not State aircraft, which are aircraft used in military, space.
customs and police services.  Outer space, it has been accepted, is not susceptible to appropriation by any
• No state aircraft of any contracting states shall fly over State.
the territory of another state or land there without  1967 Treaty on the Exploration and Use of Outer Space: First achievement in
authority by special agreement or otherwise, and only outer space law.
according to the terms thereof. They will also have due  Outer space shall be free for exploration and use by all States
regard for the safety of navigation of civil aircraft. without discrimination of any kind, on a basis of equality and in
 Flight over territory is divided into non-scheduled and scheduled. accordance with international law. There shall be free access to all
 Non-scheduled flights: Contracting states making non-scheduled areas of celestial bodies, freedom of scientific investigation, and
flights have the right, subject to the observance of the convention, States shall encourage and facilitate international cooperation in
to make flights into and in transit non-stop across the territory and such investigation.
stops for non-traffic purposes without requiring prior permission,  States shall not place in orbit or install on any celestial bodies any
subject to the State flown over’s right to require landing. The state objects carrying nuclear weapons or any other kinds of weapons of
making the NSF reserves the right to require aircraft wanting to mass destruction.
proceed over inaccessible regions or those without adequate air  The Moon and other celestial bodies shall be used by all State
navigation facilities to obtain special permission for such flights or parties exclusively for peaceful purposes, and it shall be prohibited
to follow prescribed routes. to establish military bases and to conduct military exercises on
 Scheduled flights: No scheduled flights may be operated without celestial bodies.
the special permission or authority of the State flown over, and in  Astronauts shall be considered envoys of mankind in outer space
accordance with such terms laid down in the permit. and all States shall render to them all possible assistance in the
 Cabotage (the transport of goods/passengers within the same event of accident, distress, or emergency landing on the territory of
country): Each contracting State shall have the right to refuse another State or on the high seas. When they land, they shall be
permission to the aircraft of other contracting States to take on, returned to the State of registry of their space vehicle.
within its territory, passengers, mail or cargo for pay/hire and  Any important data or information discovered which could constitute
destined for another point within its territory. Every contracting a danger shall be relayed immediately to the State Parties or the
State undertakes not to enter into arrangements which grant this Secretary General of the United Nations.
privilege on an exclusive basis to any other State nor shall they
obtain any such privilege from any other State.
 Rationale: Chicago Convention attempts to protect civil aviation; however, CHAPTER EIGHT: TERRITORY—THE LAW OF THE SEA
since then, a number of incidents have taken place, like the 1955 shooting of
an Indian aircraft by Bulgaria, the 1973 shooting of a Libyan aircraft by Israel, I. Maritime Law
and the 1983 shooting of a Korean aircraft by Russia. As to the latter,  Importance of the sea flows from two factors:
Russia’s justification was based on its sovereign right to protect its airspace.  As a medium of communication

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 As a carrier of vast natural resources above sea level and the elevation is not within the
 Doctrine of the Open Seas: Despite the Portuguese believing that some territorial sea of another State.
areas of the open sea belonged to it, Grotius elaborated on the doctrine of • The straight baselines must not cut off from the high seas
the open seas which considered the high seas as res communis or or the exclusive economic zone the territorial sea of
accessible to all. However, it has recognized as permissible the delineation of another State. If part of the archipelagic waters of an
a maritime belt by littoral states as an indivisible part of its domain called the archipelagic State lies in between two parts of an
territorial sea. adjacent neighboring State, existing rights traditionally
 1982 Convention of the Law of the Sea (LOS): The sovereignty of a coastal exercised by that neighboring State shall be respected.
State extends beyond its land territory and internal waters and, if • The baselines drawn according to this method shall be
archipelagic, beyond its archipelagic waters, to an adjacent belt of sea called placed on charts or lists of geographical coordinates
the territorial sea. which shall be given due publicity. Copies of the chart/list
 Sovereignty shall extend to the airspace above the territorial sea as must be deposited with the Secretary-General of the UN.
well as its bed and subsoil.  Sovereignty: Sovereignty over the territorial sea, the airspace above and the
 Sovereignty shall be subject to this convention and PIL. bed and subsoil shall be exercised in the same manner as it is exercised on
land.
II. Territorial Sea  Right of innocent passage: Territorial sea is subject to the right of innocent
 A belt of sea twelve (12) nautical miles from the baseline of the coastal State. passage by other States. The right applies to ships and aircraft; submarines
 If the application of the 12-n.mile rule results in overlapping, the rule used is must surface.
the equidistance rule, where the dividing line is the median line equidistant  The right of innocent passage is passage that is not prejudicial to
from the opposite baselines. However, this only applies if there is historic title the peace, good order or security of the coastal State. Thus, the
or other special circumstances requiring a different measurement. following acts are considered prejudicial and not subject to the right
 Baselines: The low water line along the coast as marked on large scale of innocent passage.
charts officially recognized by the coastal State. The use of the low water • Threat/use of force
mark is most favorable to the coastal States and shows the character of the • Use of weapons
territorial waters as appurtenant to the land territory. (Anglo-Norwegian • Gathering intelligence reports/surveillance
Fisheries Case) • Acts of propaganda affecting defense/security of the
 Normal baseline method: Follows the low water line along the coast coastal State
along its curvatures. • Taking onboard or launching of any aircraft or any
 Straight baseline method: Traditionally used by archipelagic states, military device
where straight lines are drawn connecting selected points on the • Loading of any goods contrary to law
coast without appreciable departure from the general shape of the • Willful pollution contrary to LOS
coast. This was first upheld in the Anglo-Norwegian Fisheries Case • Fishing activities
when used by Norway. In the Philippines, RA 3046 and RA 5446 • Carrying out of research or survey activities
have drawn straight baselines around the Philippines. • Acts aimed at interfering with communication systems or
• Article 7 and 47(1) of LOS upheld the use of the straight any other facilities of the coastal State
baseline method for archipelagic states, subject to certain • Any other activity with no direct bearing on passage
limitations.  Coastal states have the unilateral right to verify the character of
• The main islands must be drawn within the straight passage and to take necessary steps to prevent passage if it turns
baselines, which join the outermost points of the out not to be innocent.
outermost islands. The ratio of the land to the water  As determined by the Corfu Channel Case, the right of innocent
included within the territory must be between 1 to 1 and 9 passage is applicable to straits. In times of war, warships may pass
to 1. through straits, provided it is innocent. In times of peace, no State
• Lengths of baselines must not exceed 100nm, except 3% has the right to prohibit passage unless otherwise provided in an
of the total number of baselines used to enclose the international convention.
territory. The 3% may exceed the length up to 125nm.
• The baselines must not depart from the general III. Internal waters
configuration of the archipelago. Baselines cannot be  All waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of
drawn to and from low-tide elevations unless there are the territory.
lighthouses or any similar installations permanently  Sovereignty: Same as in land.
 Right of innocent passage: NOT subject to RoIP.

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 However, ports must be open to foreign vessels and can only be closed when  Sovereignty: The coastal state exercises such authority to the extent
vital interests of the State so requires. (Saudi Arabia v. Aramco) States may necessary to prevent infringement of its customs, fiscal, immigration, or
regulate access to ports. (Nicaragua v. US) sanitation authority over its territorial waters or territory, and to punish such
infringement.
IV. Archipelagic Waters  The power of control of the littoral state does not change the nature of the
 Internal waters + waters in between islands as enclosed by the use of the waters. It is still beyond the territorial sea, considered as part of the high
straight baseline method. These are called archipelagic waters and an seas, and is not subject to the complete sovereignty of the coastal state.
archipelagic state may designate sea lanes and air routes suitable for
continuous and expeditious passage of foreign ships and aircraft through its VII. Exclusive economic zone or “patrimonial seas”
archipelagic waters and the adjacent territorial sea.  The waters 200nm from the baseline. The doctrine of patrimonial seas
 Right of Innocent Passage: YES, there is RoIP. developed in light of conservation and management of coastal fisheries. A
 Philippine Reservation to LOS: Because of this concept of archipelagic coastal state has rights over the economic resources of the sea, seabed and
waters, there was a seeming conflict between the Philippine Constitution, subsoil—but the right does not affect the right of navigation and overflight of
which had considered those waters as internal waters (meaning, no RoIP.) other states (meaning, RoIP cannot be deprived of foreign states.)
Because of this, upon its ratification of the LOS, it made the reservation as to:  The provision imposes corresponding rights and obligations on coastal states
 The convention’s non-impairment of the Philippine’s sovereign relative to the exploitation, management and preservation of the resources
rights arising from the Constitution, of its rights as successor to found within the zone.
the United States’ rights acquired through the Treaty of Paris  Two primary obligations:
(Spain to US) and the Treaty of Washington (UK to US), of its  Coastal states must ensure through proper measures that the living
rights and obligations through the Mutual Defense Treaty with the resources of the EEZ are not subject to over-exploitation. There is a
US, of its sovereign rights over the sea lanes and the deprivation duty to maintain and restore populations of harvested fisheries at
of the RoIP over its straits connecting the internal waters with the levels which produce maximum sustainable yield.
special economic zone or the high seas.  Coastal states must promote the objective of optimum utilization
 The reservation is not necessary because the new rule in the LOS of the living resources; if it cannot utilize or harvest the resources, it
applies only to those waters which had not been previously must grant access to other states.
considered as internal waters. The 1973 Constitution, which states  Delimitation of the overlapping exclusive economic zone between adjacent
that the archipelagic waters are internal waters, predates the 1982 states is determined by agreement/treaty.
LOS.
VIII. Continental/Archipelagic Shelf
V. Bays  Continental/archipelagic/insular shelf for archipelagos refer to:
 A well-marked indentation whose penetration is in such proportion to the  Seabed and subsoil of the submarine areas adjacent to the coastal
width of its mouth as to contain land-locked waters and constitute more than state BUT outside the territorial seas, up to a depth of 200m or,
a mere curvature of the coast. It is not a bay unless its area is as large as, or beyond that, to where the depth allows exploitation.
is larger than, that of the semi-circle whose diameter is a line drawn across  Seabed and subsoil of areas adjacent to islands.
the mouth of that indentation (LOS.)  Coastal state has the right to explore and exploit its natural resources, to
 Waters of a bay are considered internal waters. erect installations as needed and to erect a safety zone over its installations
 Measurement: Area of indentation is that lying between the low water mark of with a radius of 500m.
the indentation and a line joining the low water mark of its natural entrance  This application does not affect the right of navigation of others. Moreover,
points. The line measuring the internal waters shall not exceed 24nm; if the the right does not extend to non-resource material on the shelf area such as
mouth of the bay is more than 24nm, then only the maximum area which may wrecked ship and their cargoes.
be enclosed by the 24nm shall be considered the internal waters.
 Exceptions: The above method of measuring bays shall not apply to so-called IX. The Deep Seabed: “The Common Heritage of Mankind”
historic bays, or where the system of straight baseline method applies.  Includes: Areas of the seabed, ocean floor and its subsoil, which lie beyond
Historic bays are those which are treated by the coastal state as internal any national jurisdiction. Being the common heritage of mankind, it may not
waters on the basis of historic rights acknowledged by other states. be appropriated by any state or person.

VI. Contiguous Zone X. Islands


 Area of water not exceeding 24nm from the baseline; it exceeds 12nm from  Naturally formed area of land, surrounded by water. It is above water at high
the edge of the territorial sea. tide.

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 Its territorial sea, contiguous zones and continental shelf shall be determined Tribunal for the LOS, the ICJ or an arbitral tribunal, constituted under the
in accordance with the provisions of the Convention applicable to other land Convention.
territory.
 Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf. CHAPTER NINE: JURISDICTION OF STATES
 There is no clear definition in PIL of “economic life”
 Artificial islands or installations are not islands, but may be subject to safety I. Jurisdiction
zones which coastal states may establish around them. Safety measures  The authority to affect legal interests; jurisdiction may follow the powers of
may also be prescribed. government—there is executive jurisdiction to enforce the norms prescribed,
legislative jurisdiction to prescribe norms of conduct, and judicial jurisdiction,
XI. High Seas jurisdiction to adjudicate.
 Article I, Geneva Convention: High Seas—all parts of the sea that are not  PIL limits itself to criminal not civil jurisdiction, because civil jurisdiction is
included in the territorial sea or in the internal waters of a State. subject of conflicts of law or private international law.
 Subject to six freedoms:  Five principles of State jurisdiction:
 Freedom of navigation  Territoriality
 Freedom of overflight (belonging to both civil and State aircraft)  Nationality
 Freedom of fishing  Protective
 Freedom to lay submarine cables and pipelines  Universality
 Freedom to construct artificial islands and structures  Passive Personality
 Freedom of scientific research  The first three are generally supported in customary law and the fourth has
 First four are from the 1958 Convention of the High Seas and the last two special circumstances; the fifth does not enjoy wide acceptance.
were added by the 1982 LOS, but the latter two are subject to restrictions.  Jurisdiction may be acquired via treaty.
 The flag state has exclusive jurisdiction over its ships on the high seas to the
extent not limited by agreement because by legal fiction, a ship is a “floating” II. The Territoriality Principle
part of the flag state.  The fundamental source of jurisdiction. A state has absolute but not
 Freedom of fishing is qualified by the duty to cooperate in taking measures to necessarily exclusive power to prescribe, adjudicate and enforce rules for
ensure the conservation and management of the living resources of the high conduct that occurs within its territory. This is why it is necessary to
seas. determine boundaries.
 Article 86: “The six freedoms apply to all parts of the sea not included in the  Rules on boundaries:
EEZ, in the territorial sea or the internal or archipelagic waters of a state.”  Boundary separating two states is determined by acts of the states
However, this is not an indication of what constitutes high seas, because the expressing their consent to the location.
EEZ is not a part of the territorial sea.  Thalweg doctrine: If the boundary between two states is a
 Doctrine of Hot Pursuit: Where there is good reason to believe that a foreign navigable river, its location is the middle of the channel, without
vessel has violated laws or regulations of a coastal state, hot pursuit is prejudice to a different arrangement consented to.
allowed. However, the pursuit must commence when the foreign vessel is  If the boundary between two states is a non-navigable river or lake,
within internal waters, archipelagic waters or territorial waters, or the its location is the middle of the river or lake, without prejudice to a
contiguous zone, and may be continued without interruption if it enters into different arrangement consented to.
the high seas. If the foreign vessel is in the contiguous zone, it may be  To have jurisdiction, control must be established, along with occupation.
pursued only for violations of the coastal state in the contiguous zone.  Effects Doctrine: A state has jurisdiction over acts occurring outside its
 Hot pursuit must stop when the ship pursued enters the territorial territory but having effects within it.
waters of its own state or that of a third party.  Subjective territoriality: A state has jurisdiction to prosecute and
 Hot pursuit may be carried out by warships or military aircraft. punish crime commenced within the state but completed abroad.
 The I’m Alone case (AJIL): WON the US is liable for the sinking of a  Objective territoriality: A state has jurisdiction to prosecute and
vessel on the basis of hot pursuit. Ruling: Although the hot pursuit punish crime commenced without the state but completed within its
was justified, the sinking of the vessel was not, and the US must territory.
pay damages and apologize to the Canadian government.
 Settlement of Disputes: Peaceful settlement is compulsory and required by  The Lotus Case (PCIJ): WON Turkey has jurisdiction over the offense
law. If a bilateral statement fails, Article 285 requires submission of the committed against its vessel, the Boz-Kourt, which collided with a French
dispute in one of the tribunals clothed with jurisdiction like the International steamer, the Lotus, near Constantinople, Turkey, causing the death of 8
Turkish national sailors. By virtue of filing criminal proceedings against Lt.

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Demons, the officer in charge of the Lotus at the time of the collision, it is Nottebohm as its national, despite valid fulfillment of its
contended by France that Turkey has violated international law; in reply, naturalization laws because of failure to satisfy the effective
Turkey alleged that no principle of IL conflicts with the act. Ruling: The Court nationality link sufficient for Liechtenstein to extend and exercise
held that there is no rule in PIL prohibiting the State to which the ship on protection for him. Evidence against him: he was a habitual resident
which the effects of the offense have taken place belongs from regarding the of Guatemala, it being the center of his interests and of his
offense as having been committed within its territory and capable of business activities. Nationality is a legal bond, concerning the
prosecution. While this can be overturned by showing a rule of customary law citizen personally, a genuine connection of existence, interests and
which conflicts with it, France has not proven such. Therefore, there is no sentiments together with the existence of reciprocal rights and
rule. The Court therefore rules that it is a case of concurrent jurisdiction. obligations.
 Corporations: A state has jurisdiction over corporations organized under its
 Jurisdiction over foreign vessels in the Philippines: rules. Other bases: Principal residence/place of business test, control test.
 French rule: Crimes committed aboard a foreign merchant vessel
should not be prosecuted in the courts of the country within whose  Stateless persons: Those who do not have a nationality. They may be either
territorial jurisdiction they were committed unless the commission de jure or de facto stateless. The former are those who lost their nationality, if
affects the peace and security of the territory. they had one, and have not acquired a new one, while the latter are those
 English rule: Followed in the US; crimes perpetrated under such who have a nationality but to whom protection is denied by their state when
circumstances where the territoriality principle is applicable are in out of the state.
general triable in the courts of the country within whose territory  Mejoff v. Director of Prisons (90 Phil. 70): WON Boris Mejoff, a
they were committed. The Philippines adheres to this rule. former Russian national who was brought to the Philippines as a
 Trail Smelter Arbitration: WON Canada is liable to the US for damages spy for Japanese forces and subsequently detained for two years
caused by its smelter which produced emissions of sulphur dioxide allegedly because no ship would take him, and he lacked travel documents,
damaging Washington state. Ruling: Yes, Canada is liable for damages since should be released. Ruling: Even if they are stateless, aliens have
there was injury caused to the US, because a State owes at all times a duty no right of asylum, If there is no charge against them, However,
to protect other States against injurious acts by individuals from within its they cannot remain in detention indefinitely. Because he was
jurisdiction. The smelter is enjoined from causing further damage to the State brought in by a de facto corporation, his entrance was not illegal.
of Washington. Mejoff should be released but placed under the surveillance of
qualified immigration authorities.
III. The Nationality Principle
 Every state has jurisdiction over its nationals, even when those nationals are IV. The Protective Principle
outside the state.  A state may exercise jurisdiction over conduct outside its territory what
 Blackmer v. US (US): WON Blackmer was correctly adjudged in threatens its security so long as that conduct is generally recognized as
contempt for failure to respond to subpoenas served upon him in criminal by states in the international community.
France requiring him to appear as witness in behalf of the US and  “Lord Haw Haw:” A decision upholding the conviction of an American citizen
WON the statute authorizing the issuance of subpoenas is guilty of high treason because of messages he broadcast trying to get the
repugnant to the Constitution for violation of the due process Allies to surrender. No principle of comity demands that a state should ignore
clause. Ruling: Even if Blackmer became a resident of France, he the crime of treason committed against it outside its territory.
continued to owe allegiance to the United States and the US  Limitations: Only offenses posing a direct, specific threat to national security.
retained its authority over him. He was bound by its laws made When applied to terrorist activities, a more liberal approach to the limitation
applicable to him in a foreign country. may be applied.

 State nationals and the “effective nationality link”: A state has the right to V. The Universality Principle
decide who its nationals are using either the principle of jus sanguinis or jus  Certain activities, universally dangerous to states and their subjects, require
soli or naturalization laws. However, before a person can be claimed by a authority in all community members to punish such acts wherever they may
state as a national, there must be established an effective nationality link. occur, even absent a link between the state and the parties or the acts in
Consent of the individual alone is not enough. question.
 Nottebohm Case (ICJ): WON Nottebohm, a German national by  This principle was started with instances of piracy. Piracy means any illegal
birth, constant fixture in Guatemala and newly claimed act of violence or depredation committed for private ends on the high seas or
Liechtenstein national by naturalization, can be claimed by outside the territorial control of any State.
Liechtenstein as its national in a case for reparations over the
protests of Guatemala, Ruling: Liechtenstein cannot claim

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 Currently covers genocide, crimes against humanity, war crimes, aircraft removing them from the protection of the law for a prolonged period
piracy and terrorism. Growing support for universal jurisdiction over crimes of time;
against human rights.  Apartheid – inhumane acts committed in the context of an
 Genocide: Acts committed with intent to destroy, in whole or in part, a institutionalized regime of systematic oppression and domination by
national, ethnical, racial or religious group, as such: one racial group over any other racial group with the intention of
 Killing members of the group; maintaining that regime.
 Causing serious bodily or mental harm to members of the group;  Other inhumane acts of a similar character intentionally causing
 Deliberately inflicting on the group conditions of life calculated to great suffering, or serious injury to body or to mental or physical
bring about its physical destruction in whole or in part; health.
 Imposing measures intended to prevent births within the group;  War crimes: Grave breaches of the Geneva Conventions of 1949.
 Forcibly transferring children of the group to another group.
 Crimes against humanity: Any of the following acts when committed as part  Filartiga v. Pena-Irala (F.2D US): WON the US Court has jurisdiction over a
of a wide-spread or systematic attack (where “attack directed against any case concerning the wrongful death of a 17-year old tortured to death in
civilian population” means the multiple commission of the following acts Paraguay, brought by two nationals of Paraguay, on the basis of the Alien
against any civilian population, pursuant to or in furtherance of a State or Tort Act. Ruling: Yes, it has jurisdiction, claiming the universality principle.
organizational policy to commit such an attack) against any civilian population The requisites of torture require it to be committed by one in an official
with knowledge of the attack: capacity, and its prohibition has become part of customary international law.
 Murder; Several declarations and documents, including the Universal Declaration of
 Extermination – includes intentional infliction of conditions of life, Human Rights, have created an expectation of adherence among its member
the deprivation of access to food and medicine, calculated to bring states.
about the destruction of part of a population;
 Enslavement – the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of  Eichmann Cases (Courts of Israel): WON Israel has jurisdiction to try the
such power in the course of trafficking persons, in particular women case of a high-ranking SS officer on the basis of the Nazi Collaborator’s Law,
and children; a law intending retroactive application, despite the acts being committed
 Deportation or forcible transfer of population – forced displacement outside its borders by a person who is not a national. Ruling: The power of
of the persons concerned by expulsion or other coercive acts from Israel to enact the law is based on a dual foundation—the universal character
the area in which they are lawfully present, without grounds of the crimes in question and their specific character as intended to
permitted under int’l law; exterminate the Jewish people. The offense of genocide is a grave offense
 Imprisonment or other severe deprivation of physical liberty in against the law of nations itself (delicta juris gentium) and is the gravest type
violation of fundamental rules of international law; of act against humanity. In this case, it is a just retroactive law. As to the
 Torture – intentional infliction of severe pain or suffering, physical or universality principle, power is vested in every State regardless of the fact
mental, upon a person in the custody or under the control of the that the offence was committed outside its territory by a person who did not
accuser; does not include pain or suffering arising from, inherent, or belong to it, provided he is in its custody at the time he is brought to trial.
incidental to lawful sanctions;
 Rape, sexual slavery, enforced prostitution, forced pregnancy, VI. The Passive Personality Principle
enforced sterilization, or any other form of sexual violence of  Asserts that a state may apply law—particularly criminal law—to an act
comparable gravity – forced pregnancy is the unlawful confinement committed outside its territory by a person not a national where the victim of
of a woman forcibly made pregnant with the intent of affecting the the act was its national.
ethnic composition of any population;  The principle is not accepted for ordinary torts or crimes, but it is increasingly
 Persecution against any identifiable group or collectivity on political, accepted as applied to terrorist attacks and other organized attacks on a
racial, national, ethnic, or other grounds – intentional and severe state’s nationals on the basis of their nationality.
deprivation of fundamental rights contrary to int’l law by reason of  US v. Fawiz-Yunis (Federal US): WON the US Court has jurisdiction over a
the identity of the group or collectivity; criminal proceeding against the several Arab men who hijacked a Jordanian
 Enforced disappearance of persons – arrest, detention or abduction airline on the basis that some of the nationals taken hostage were
of persons by, or with the authorization, support, or acquiescence Americans. Ruling: Yes, the Court has jurisdiction under the universality
of a State or a political organization, followed by a refusal to principle and under the passive personality principle. As to the latter, it
acknowledge that deprivation of freedom or to give information on recognizes that states have a legitimate interest in protecting the safety of its
the fate or whereabouts of those persons, with the intention of citizens when they journey outside national borders. Even though it is the
most controversial of the five sources of jurisdiction, it is agreed that the

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international community recognizes the legitimacy of the Passive Personality the choice of a forum which is not the natural or proper forum, either on the
Principle. ground of convenience of trial or the residence or domicile of parties or of its
 Rationale: The reason why this is so frowned upon is because any assertion being the locus contractus or locus solutionis, then the doctrine of forum non
of this kind of jurisdiction may subject a country to indefinite criminal liability; conveniens is properly applied.
a country may be subject to laws not their own and may be arrested for  The court needs to weigh the private interest and the public interest
committing acts which they do not know to be illegal. factors.
 The private interest factors are:
VII. Conflicts of Jurisdiction • Access to sources of proof
 Because of the various ways of a state to assume jurisdiction, there may be • Availability of compulsory process for unwilling witnesses
instances of conflicting yet valid claims of jurisdiction. • Other personal problems which make trial easy,
 The Balancing Test—Timberlane Lumber Co. v. Bank of America: Tripartite expeditious, and inexpensive.
analysis to determine WON a US Court can assume jurisdiction over an  The public interest factors are:
antitrust claim. If the answer is yes to all of the questions below, the court • Congestion
assumes jurisdiction. • Desire to settle local controversies at home
 Was there an actual or intended effect on American foreign • Having the case tried in a forum at home with the
commerce? (There must be an effect before federal courts can applicable law.
exercise subject matter jurisdiction under the Sherman Act statutes)
 Is the effect sufficiently large to present cognizable injury to the VIII. Extradition
plaintiffs and represent a civil violation of the anti-trust laws? (To  The surrender of an individual by the state within whose territory he is found
show that there is a greater burden) to the state under whose laws he is alleged to have committed a crime. It is a
 Are the interests of and link to the US including effects on American process governed by treaty, and the legal right to demand extradition and the
foreign commerce sufficiently strong, versus those of other nations, correlative duty to surrender a fugitive exist only when governed by treaty.
to justify an assertion of extraordinary authority? Extradition is normally done through diplomatic channels.
 Balancing test:  No state is obliged to extradite unless there is a treaty.
 Degree of conflict with foreign law or policy  Differences in legal system can be obstacles to interpretation of
 The nationality or allegiance of the parties the locations or principal what the crime is
places of business of corporation  Religious and political offenses are not extraditable.
 The extent to which enforcement by either state can be expected to  US v. Alvarez-Machain (US): WON the US Court has jurisdiction over Alvarez
achieve compliance who is indicted for participation in the kidnap and the murder of a DEA agent
 The relative significance of effects on the U.S. as compared with and Mexican pilot. Ruling: Yes, they do. The forcible abduction of Alvarez did
those elsewhere not violate the extradition treaty between US and Mexico because nothing in
 The extent to which there is explicit purpose to harm or affect the treaty proscribes forcible abduction because it does not specify the ways
American commerce, the foreseeability of such effect by which a State may gain custody of a national of the other country for the
 The relative importance to the violations charged of conduct with purposes of prosecution.
the US as compared with conduct abroad.  Due Process in Extradition: Secretary of Jusice v. Lantion: WON notice and
 International comity—Hartford Fire Insurance Co. v. California: Even when a hearing are essential during the evaluation stage of the proceedings. Ruling:
state has basis to exercise jurisdiction, it will refrain from doing so if its There is no provision in the RP-US Extradition Treaty that gives the right to
exercise will be unreasonable. demand copies of the extradition requests. The likening of an extradition to a
 Unreasonableness is determined by evaluating various factors— criminal procedure is not persuasive because an extradition is sui generis
link of the activity to the territory of the regulating state, the and does not involve the determination of guilt.
connection (such as nationality, residence, economic activity)  Bail in Extradition Cases: A court may grant bail after the determination by
between the regulating state and the person principally responsible the court that (1) he/she is not a flight risk, and (2) There exist special,
for the activity to be regulated, the character of the activity to be humanitarian and compelling circumstances. (Rodriguez v. Judge)
regulated, the existence of justified expectations that might be  Lately, the Court overturns stare decisis in favor of the growing
regulated, the existence of justified expectations that might be importance of the individual person in PIL, who has attained global
protected or hurt by the regulation, the likelihood of conflict with recognition, the higher value being given to human rights in the
regulation by another state. international sphere.
 Forum non conveniens—Piper Aircraft Co. v. Reyno: Discretionary  If bail can be granted in deportation proceedings, there is no
application of the court. Applies when, in the circumstances of the case, it be justification not to allow it for extradition because both are
discovered that there is a real unfairness to one of the suitors in permitting

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administrative proceedings where the innocence or guilt of the commodities for diplomacy or war. Today, however, it has become
parties is not in issue. commonplace for the State to enter into the free market and even
enter into direct competition with their own nationals. It must follow
that the immunity that initially developed has ceased to become
CHAPTER TEN: IMMUNITY FROM JURISDICTION applicable.

I. Immunity  Traditional rule on State Immunity exempts a state from being sued in the
 General rule: The jurisdiction of a state within its territory is complete and courts of another State without its consent or waiver. A State’s commercial
absolute activity is a descent to the level of individuals and there is a form of tacit
 Exceptions: Sovereign immunity and diplomatic immunity consent to be sued when it enters into business contracts with others.
 Holy See v. Eriberto Rosario, Jr. However, not every contract
II. Head of State Immunity entered into is a form of tacit consent to be sued. It depends upon
 Immunity is enjoyed by the head of state and by the self itself. While the head whether the foreign state is engaged in the activity in the regular
of State is sitting, the immunity is absolute. course of business. If not, or it is in pursuit of a sovereign activity, it
 Mighell v. Sultan of Johore: WON the Sultan of Johore can be sued for falls within the exemption of acts jure imperii especially when not
breach of promise to marry. Ruling: The Court ruled that the subject matter of intended for gain or profit.
the case was a private matter, and upon verification of the Sultan’s foreign  A state claiming sovereign immunity must request the Foreign
sovereignty, the case was dismissed because the immunity of heads of state Office of the state where it is sued to convey to the Court that said
was recognized. defendant is entitled to immunity.
 Pinochet Case (UK): WON a former Head of State can enjoy immunity  A party who feels transgressed by anyone claiming immunity may
rationae materiae in relation to acts done by him as Head of State. Ruling: ask his own government to espouse his cause through diplomatic
The immunity for former heads of state shields only acts which were done in channels.
an official or governmental capacity. It cannot be said that international crime
against humanity and jus cogens can ever be done in a governmental  Republic of Indonesia v. Vinzon: WON the Republic of Indonesia,
capacity; therefore, upon relinquishment of his seat, a head of state may be represented by Chief of Administration, Minister Counsellor Kasim, enjoys
liable to be called to account if there is evidence that he authorized or immunity in a case concerning a maintenance agreement. Ruling: The Court
perpetrated serious international crimes. It is also argued that absolving ruled in favor of Indonesia, and stated that international law is founded on
Pinochet on the basis of immunity RM would circumvent the system of principles of reciprocity, comity, independence and equality of States. The
making people liable for the international crime of torture. existence alone of a paragraph in the maintenance agreement allowing for
certain actions to be tried in a venue does not constitute a waiver of
 State Immunity: “The state may not be sued without its consent” sovereign immunity from suit.
 Found in both municipal and international law.
 Based on the principle of equality of states—par in parem non III. Diplomatic and consular immunities
habet imperium.  Vienna Convention on Diplomatic Relations governs diplomats, or those
 The Schooner Exchange case: “The nation within its own territory is concerned with the political relations of states. Immunities and privileges
necessarily exclusive and absolute; however, absolute sovereignty enjoyed stem not from sovereignty but to be able to perform his or her
does not include the presence of foreign sovereigns nor their functions properly.
sovereign rights as its objects.”  Diplomatic immunity is enjoyed by:
 The immunity of the sovereign head is also communicated to the  Head of the mission – the person charged by the sending State
foreign sovereign state. Every sovereign is understood to waive the with the duty of acting in that capacity;
exercise of a part of that complete exhaustive territorial jurisdiction,  Members of the mission – the head of the mission and the
which is the attribute of every nation. members of the staff of the mission;
 Acts jure imperii v. Acts jure gestionis: The distinction drawn between acts  Members of the staff of the mission – the members of the
jure imperii (governmental acts) and acts jure gestionis (trading and diplomatic, administrative, technical and service staff of the
commercial acts) are elaborated on in Dralle v. Czechoslovakia. mission;
 Dralle case (Austria): It can no longer be said that acts jure  Members of the diplomatic staff – members of the staff of the
gestionis are exempt from municipal jurisdiction. The immunity as mission having diplomatic rank;
regards acts jure gestiontis, when the State’s actions as regards  Diplomatic agent – head of the mission or a member of the
trading and commercial activity were usually limited to commercial diplomatic staff of the mission
acts, developed out of political activities such as the purchase of

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 Members of the administrative and technical staff – members of the  4. Issuing passports and travel documents to nationals of the
staff of the mission employed in the administrative and technical sending State, reporting thereon to the Government of the sending
service of the mission; State, and visas or appropriate documents to persons wishing to
 Members of the service staff – members of the staff of the mission travel to the sending State;
in the domestic service of the mission;  5. Helping and assisting nationals of the sending State;
 Private servant – a person who is in the domestic service of a  6. Acting as notary and civil registrar;
member of the mission and who is not an employee of the sending  7. Safeguarding the interests of national of the sending State in
State; case of succession mortis causa in the territory of the receiving
 Premises of the mission – buildings or parts of the buildings and the State;
land ancillary thereto, irrespective of ownership, used for the  8. Safeguarding the interests of minors and other persons lacking
purposes of the mission, including the residence of the head of the full capacity who are nationals of the sending State, particularly
mission. where any guardianship or trusteeship is required;
 Functions of the diplomatic mission:  9. Representing or arranging appropriate representation for
 Representing the sending State in the receiving State; nationals of the sending state before the tribunals and other
 Protecting in the receiving State the interest of the sending State authorities of the receiving state to preserve their rights and
and of its nationals, within the limits permitted by international law; interests;
 Negotiating with the government of the receiving State;  10. Transmitting judicial and extra-judicial documents or executing
 Ascertaining by all lawful means conditions and developments in letters rogatory or commissions to take evidence for the courts of
the receiving state, and reporting thereon to the Government of the the sending state;
sending State;  11. Exercising rights or supervision and inspection in respect of
 Promoting friendly relations between the sending State and the vessels having the nationality of the sending state and or aircraft
receiving State, and developing their economic, cultural and registered in that state and in respect of their crews;
scientific relations.  12. Extending assistance to vessels and aircraft mentioned above
 Establishment of diplomatic relations: and to their crews, taking statements regarding the voyage of a
 Relations are established by mutual consent. Agreements must first vessel, examining and stamping the ship’s papers, and conducting
be obtained before the head of a mission is sent to the receiving investigations into any incidents which occurred during the voyage
State. The receiving state is not obliged to give reasons for refusing and settling disputes between master, officers, and seamen;
an agreement and, at any time and without need to give  13. Other functions entrusted by the sending state not prohibited by
explanations, upon notice to the sending state, may declare the the laws and regulations of the receiving state or to which no
head of mission or any member of the diplomatic mission as objection is taken by the receiving state or which are referred to in
persona non grata. A person declared persona non grata is the international agreements in force.
declared as not acceptable, and the sending State shall recall the
person or terminate his functions.  Act of State Doctrine
 Local courts cannot pass upon the validity of the acts of a foreign
 It is the duty of all persons enjoying the privileges and immunities of state; Judicial restraint in domestic law in deference to the
diplomats to respect the laws and regulations of the receiving State. executive who is the principal architect of foreign relations.
 All acts concerning the act of State doctrine concern political and
IV. Consuls and Consular immunities legislative acts, but never judicial.
 Consuls are not concerned with political matters but with administrative and
economic issues, such as the issuance of visas.  Underhill v. Hernandez: WON Underhill is entitled to damages from
 Functions of Consuls: Hernandez based on the latter’s refusal to grant him a passport to
 1. Protecting in the receiving State the interests of the sending leave the country and on the assertions that he had been kept in
State and of its nationals, within the limits permitted by int’l law; detention by Hernandez. Ruling: Underhill is not entitled to
 2. Furthering the development of commercial, economic, cultural, damages because of the “act of state doctrine” Courts of one state
and scientific relations between the sending state and the receiving will not sit in judgment on the acts of the government of another,
state and promoting friendly relations between them; done within its own territory.
 3. Ascertaining all lawful means, conditions, and developments in  Dunhill v. Cuba: WON Cuba’s failure to return the overpayment
the commercial, economic, cultural, and scientific life of the made by Dunhill on cigars can be considered as an act of state.
receiving State, reporting thereon to the Government of the sending Ruling: No, it is not an act of state. An act of state cannot extend to
state and giving information to interested persons; include the repudiation of a purely commercial obligation.

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 Kirkpatrick Co. v. Environmental Tectonics Corporation: WON • Exemption from taxation is NOT applicable to dues and
Kirkpatrick & Co. can get the case (where he is accused of bribing taxes payable under the law of the receiving State by
Nigerian officials to win a bidding war contrary to the Foreign persons contracting with the sending State or the head of
Corrupt Practices Act) against it dismissed by invoking the act of the mission.
State doctrine. Ruling: No, it cannot be invoked. It is not the validity  Article 24 – Inviolability of Archives and Documents
of a foreign act at issue; the act of state doctrine does not establish • Archives and documents of the mission shall be
exceptions for controversies, but merely requires that acts of inviolable at any time and wherever they may be.
foreign sovereigns within their jurisdictions shall be deemed valid.  Article 27 – Inviolability of Official Correspondence
 Provincial Government v. Placer Dome: WON the district court had • The receiving State shall permit and protect free
jurisdiction over the case based upon the act of state doctrine such communication on the part of the mission for all official
that removal from state to federal court was proper (on the grounds purposes. The mission may employ all appropriate
that, by raising the act of state doctrine, the case would be moved means, including diplomatic couriers and messages in
to the federal court from the district court because it tendered code or cipher. However, the mission may install and use
questions of international law and foreign relations.) Ruling: The a wireless transmitter only with the consent of the
Court reverses the decision of the district court, which was done receiving state.
pursuant to a claim by Placer Dome. It must be shown on the • Official correspondence of the mission shall be inviolable.
plaintiff’s complaint that it is attacking the validity of any act of a Official correspondence means all correspondence
foreign state, or else a rejection of the act of state doctrine is relating to the mission and its functions.
proper. None of the supposed acts of state identified by the district • The diplomatic bag shall not be opened or detained.
court as justification to raise it to the federal court is essential to the • Packages constituting the diplomatic bag must bear
claim of Province. Nothing in the complaint would require a visible external marks of their character and may contain
court to pass judgment on any official act of the Philippine only diplomatic documents or articles intended for official
government. “Just as raising the specter of political issues cannot use.
sustain dismissal under the political question doctrine, neither does • The diplomatic courier shall be protected by the receiving
a general invocation of international law or foreign relations mean State in the performance of his functions. He shall enjoy
that an act of state is an essential element of a claim.” It cannot be personal inviolability and shall not be liable to any form of
thought that every case touching foreign relations lies beyond arrest or detention.
judicial cognizance. • The sending State of the mission may designate
diplomatic couriers ad hoc who shall enjoy the immunities
APPENDICES—CHAPTER TEN: IMMUNITY FROM JURISDICTION of a diplomatic courier until he has delivered to the
 Rights and privileges of diplomats: consignee the diplomatic bag in his charge.
 Article 22 – Inviolability of Premises of the Mission:  Article 29 – Inviolability of Person of the Diplomatic Agent
• The premises of the mission shall be inviolable. Agents of • The person of a diplomatic agent shall be inviolable. He
the receiving State may not enter them, except with the shall not be liable to any form of arrest or detention. The
consent of the head of the mission. receiving state shall treat him with due respect and shall
• The receiving State is under a special duty to protect the take appropriate steps to prevent any attack on his
premises of the mission against any intrusion or damage person, freedom or dignity.
and to prevent any disturbance of the peace of the  Article 30 – Inviolability of the Private Residence, Papers,
mission or impairment of its dignity. Correspondence, and Property of the Diplomatic Agent
• The premises of the mission, their furnishings and other • Same protection granted to the residence, papers,
property thereon and the means of transport of the property, and correspondence of the diplomatic agent as
mission shall be immune from search, requisition, that granted to the premises of the mission.
attachment, or execution.  Article 31 – Immunity from Criminal, Civil, and Administrative
 Article 23 – Exemption from Property Taxes: Jurisdiction
• The sending State and head of the mission shall be • A diplomatic agent shall enjoy immunity from the criminal
exempt from all national, regional or municipal dues and jurisdiction of the receiving State.
taxes in respect of the premises of the mission, whether • He shall also enjoy immunity from its civil and
owned or leased, other than such as represent payment administrative jurisdiction EXCEPT:
for specific services rendered. o a. in real actions relating to private immovable
property situated in the territory of the receiving

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State, unless he holds it on behalf of the • But the diplomatic agent can voluntarily participate in the
sending State for the purposes of the mission; social security system of the receiving state, provided
o b. in actions relating to succession in which the that it is permitted by the receiving state.
diplomatic agent is involved as executor,  Article 34 – Exemption from Taxation
administrator, heir, or legatee as a private • A diplomatic agent shall be exempt from all dues and
person; taxes, personal or real, national, regional or municipal,
o c. in actions relating to any professional or EXCEPT:
commercial activity exercised by the diplomatic o Indirect taxes normally incorporated in the
agent in the receiving State outside of his price of goods or services;
official functions. o Dues and taxes on private immovable property
• A diplomatic agent is not obliged to give evidence as a situated in the territory of the receiving state,
witness. unless held on behalf of the State for the
• A diplomatic agent is exempt from execution except if the purposes of the mission;
case falls under the three exceptions under #2, and o Estate, succession, or inheritance tax;
provided that the measures of execution can be taken o Dues and taxes on private income derived
without infringing the inviolability of his person or his within the State and capital taxes on
residence. investments made in commercial undertakings
• The diplomatic agent is not exempt from the jurisdiction in the receiving State;
of the sending state. o Charges levied for specific services rendered;
 Article 32 – Waiver of Immunity o Registration, court or record fees, mortgage
• Immunity from jurisdiction of diplomatic agents and of dues, and stamp duty with respect to
persons enjoying immunity under Art. 37 may be waived immovable property.
by the sending State.  Article 36 – Exemption from Customs Duties
• Waiver must be express. • The following are exempt from customs duties, taxes and
• The initiation of proceedings by a diplomatic agent or by other related charges for storage, cartage, and other
a person enjoying immunity from jurisdiction under Art. similar services:
37 shall preclude him from invoking immunity in respect o a. articles for official use of the mission;
of any counter-claim directly connected with the principal o b. articles for the personal use of a diplomatic
claim. agent or members of his family forming part of
• Waiver of immunity in respect of civil or administrative his household, including articles intended for
proceedings shall not be held to imply waiver of immunity his establishment.
from execution of the judgment, for which a separate • Personal baggage of a diplomatic agent shall be exempt
waiver is necessary. from inspection unless there are serious grounds to
 Article 33 – Exemption from Social Security Provisions presume that it contains articles not covered by the
• A diplomatic agent shall be exempt from social security exempted items above, or that are prohibited or
provisions with respect to services rendered for the controlled by quarantine regulations of the receiving
sending state. State. The inspection shall be conducted only in the
• The exemption also applies to private servants who are presence of the diplomatic agent or his authorized rep.
in the sole employ of a diplomatic agent, provided:  Article 37 – Immunity of members of the family and other staff
o a. that they are not nationals or permanent • Members of the family of a diplomatic agent forming part
residents of the receiving state; and of his household shall, if they are not nationals of the
o b. they are covered by the social security receiving State, enjoy the privileges and immunities in
provisions in force in the sending state or a Articles 29-36.
third state. • Members of the admin and technical staff of the mission,
• A diplomatic agent who employs persons to whom the together with their family members, who are not nationals
exemption in #2 does not apply, shall not be exempt from or permanent residents of the receiving state shall enjoy
social security provisions of the receiving state imposed the immunities under Articles 29-35, except that the
upon employers. immunity from civil and administrative jurisdiction shall
not extend to acts performed outside the course of their
duties. They shall also enjoy the privileges under Art. 36,

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in respect of articles imported at the time of first • Subject to its laws and regulations concerning zones
installation. entry into which is prohibited or regulated for reasons of
• Members of the service staff of the mission who are not national security, the receiving state shall ensure
nationals or permanent residents of the receiving State freedom of movement and travel in its territory to all
shall enjoy immunity in respect of acts performed in the members of the consular post.
course of their duties, exemption from dues and taxes on  Article 35 – Freedom of Communication
the emoluments received by reason of their employment, • The receiving State shall permit and protect free
and the exemption granted in Art. 33. communication on the part of the consular post for all
• Private servants or members of the mission who are not official purposes. The mission may employ all appropriate
nationals or permanent residents in the receiving State means, including diplomatic or consular couriers,
shall be exempt from dues and taxes on emoluments diplomatic or consular bags, and messages in code or
received by reason of their employment. In other cipher. However, the consular post may install and use a
respects, they may enjoy privileges and immunities to the wireless transmitter only with the consent of the receiving
extent admitted by the receiving State. state.
 Article 38 – Immunity of Diplomatic Agents who are Nationals of • Official correspondence of the consular post shall be
Permanent Residents of the Receiving State inviolable. Official correspondence means all
• If the receiving State grants additional privileges and correspondence relating to the consular post and its
immunities, a diplomatic agent who is a national of or functions.
permanent resident in the State shall enjoy only immunity • The consular bag shall not be opened or detained. But if
from jurisdiction and inviolability in respect of official acts the competent authorities of the receiving state have
performed in the exercise of his functions. serious reason to believe that the bag contains
• Immunity or other members of the staff of the mission something other than the correspondence, documents or
and private servants who are nationals or permanent articles, they may request that the bag be opened by an
residents: Only to the extent admitted by the receiving authorized rep of the sending state. If the request is
state. But state must exercise its jurisdiction without refused, the bag shall be returned to its place of origin.
unduly interfering with the performance of the functions of • Packages constituting the consular bag must bear visible
the mission. external marks of their character and may contain only
 Article 39 – Commencement and Termination of the Immunities diplomatic documents or articles intended for official use.
• The immunities commence from the moment the person  Article 36 – Communication and Contact with Nationals of the
enjoying the immunities enters the territory of the Sending State
receiving State on proceeding to take up his port or, if • Consular officers shall be free to communicate with
already in its territory, from the moment when his nationals of the sending state and to have access to
appointment is notified to the Ministry of Foreign Affairs. them. Nationals of the sending state shall have the same
• They end when the functions of a person enjoying freedom to communicate and to access consular officers
immunity have come to an end, the immunities cease at of the sending state.
the moment when he leaves the country, or on expiry of a • If he so requests, the competent authorities of the
reasonable period in which to do so, but shall subsist receiving state shall, without delay, inform the consular
until that time, even in case of armed conflict. post of the sending state if a national of that state is
• With respect to acts performed by the person in the arrested or committed to prison or to custody pending
exercise of his functions as a member of the mission, trial or is detained in any other manner. Any
immunity shall continue to subsist. communication addressed to the consular post by the
 Article 41 – Duty of Persons Enjoying Immunity person arrested shall be forwarded by the authorities
• Duty is to respect the laws and regulations of the without delay;
receiving State. • Consular officers shall have the right to visit a national of
 Article 42 – Prohibitions the sending state who is in prison, custody, or detention,
• They may not practice for personal profit any professional to converse and correspond with him and to arrange for
or commercial activity in the receiving State. his legal representation. They shall also have the right to
visit any national of the sending state who is in prison,
 Rights and privileges of Consuls: custody or detention in their district in pursuance of a
 Article 34 – Freedom of Movement judgment. Nevertheless, consular officers shall refrain

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from taking action on behalf of a national who is in prison,


custody or detention if he expressly opposes such action.
 Article 41 – Personal Inviolability of Consular Officers
• Consular officers shall not be liable to arrest of detention
pending trial EXCEPT in the case of a grave crime and
pursuant to a decision by the competent judicial authority.
 Article 42 – Notification of Arrest, Detention, or Prosecution
• If a members of the consular staff is arrested or detained,
the receiving state shall notify the head of the consular
post.
 Article 43 – IMMUNITY FROM JURISDICTION
• Consular officers and employees shall be immune from
jurisdiction of the judicial and administrative authorities of
the receiving State in respect of acts performed in the
exercise of consular functions.
• NO IMMUNITY in civil cases, which:
o a. arise out of a contract concluded by the
consular officer or employee in which he did
not contract expressly or impliedly as an agent
of the sending state;
o b. are instituted by a third party for damage
arising from accidents in the receiving state
caused by a vehicle, vessel, or aircraft.
 Article 44 – Liability to Give Evidence
• Members of a consular post may be called upon to attend
as witnessed in judicial or administrative proceedings.
• A consular employee or a member of the service staff
shall not decline to give evidence.
• If a consular officer should decline to do so, no coercive
measure or penalty may be applied to him.
 Article 45 – Waiver of Privileges and Immunities
• The sending state may waive the privileges and
immunities.

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 of their shareholdings in Barcelona Traction, which was


incorporated in Canada, because the breach (if any) was
committed against the corporation and not against the
CHAPTER ELEVEN: STATE RESPONSIBILITY shareholders, and only the company could protect its own
interest. To be different, the act must be directed against the
rights of the shareholder as such.
I. In General
 Individuals are generally considered as “objects” and not “subjects” of
 Standard for the Protection of Aliens: International law has progressed
international law. Any wrongs committed against them can only be
from not affording aliens protection to Roman law, which came up with
redressed by states with international personality.
the concept of jus gentium (a law for both citizens and aliens) as distinct
 They possess no international legal rights to assert on their own.
from jus civile (only for citizens). The rights of aliens expanded with the
However, individuals may be the subject of state v. state litigation.
growth of international commerce.
II. Protection of Aliens
• “National treatment” or “equality of treatment”: Aliens are
 General: As an aspect of sovereignty, no state is obliged to admit aliens
treated in the same manner as nationals of the state where
into its territory unless a treaty requires it. However, practically speaking,
they reside. The disadvantage to this is that a state may treat
it is difficult to deny admission to all. Therefore, what a state does is to
its own nationals oppressively, which would make aliens
impose legal standards for admission.
subject to harsh laws as well.
• Once an alien is admitted into a state, he/she cannot be
• Minimum international standard: However harsh municipal law
expelled without due process.
may be, aliens should be protected by certain minimum
standards of humane protection. This is the widely accepted
 Proper treatment of aliens: They are considered “nationals abroad” and standard.
remain under its own state’s protection.  Neer Claim (US v. Mexico, Joint Claims
• Practice of proper treatment of aliens is based on the Commission): WON Mexico was negligent in the
commonality of interests between states, in the expectation investigation of the murder of a US national who was
that a State’s own nationals will be protected when residing or stopped by armed men and shot to death while
sojourning abroad. working in Mexico. The Commission held that the
• Mistreatment of nationals is a common cause of international treatment of an alien, to constitute international
responsibility delinquency, should amount to an outrage, bad faith
• Various forms of ill-treatment: Mistreatment by judicial or police or wilful neglect of duty, or to an insufficiency of
authorities, unlawful expropriation of property, failure to governmental action short of international standards.
prosecute those who attack foreign nationals, or a denial of
justice (denial of due process of the law).
 Enforcement Regimes: ICJ may resolve issues of violations of the rights
• Diplomatic Protection: Well-developed customary law which is
of aliens, but claims may also be settled by ad hoc tribunals established
based on the traditional notion that the individual is an
for the purpose, like the US-Iran Claims Tribunal and the UN
inappropriate subject of international law and must have
Compensation Commission. States may also enter into lump sum
recourse to his state for protection. Another applicable theory is
settlements.
that injury to the state national is injury to the state itself. This
keeps individuals at the mercy of their state, because the latter
enjoys discretion as to whether or not to prosecute the claims III. Doctrine of State Responsibility
of its national. This doctrine requires the satisfaction of the  In General: When an injury has been inflicted, there is need to determine
“effective national link” between the national and the state. whether the state can be held responsible for it.
 Internationally Wrongful Act: If a state violated a customary rule of
international law or a treaty obligation, and the act is attributable to the
 Corporations and shareholders: It is the state of nationality of the
State under international law, it has committed an “internationally
corporation who has the right to protect the corporation and not the state
wrongful act.” Every internationally wrongful act of a State entails the
nationality of its shareholders.
international responsibility of that State
• Barcelona Traction Case (Belgium v. Spain): WON Belgian
• Requisites: The elements of an internationally wrongful act, the
nationals/shareholders of a company incorporated in Canada
attributability of the wrongful act to the state, and the
could claim reparation for damages against Spain when the
enforcement of the obligation that arises from the wrongful act.
latter state declared it to be bankrupt. The Court held that the
The characterization of an act of a State as internationally
Belgians lacked legal standing to exercise diplomatic protection
wrongful is governed by international law.

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• Legal obligations: When a state consents to be part of an the contras would be enough to equate their actions with one
international legal system, it also accepts corresponding legal another, ruled that there was a partial dependency may be
obligations. It must accept responsibility for actions which have inferred but not enough that the US actually exercised a degree
effect on other international legal persons. No state can avoid of control to justify the contras as acting on its behalf. For the
responsibility when once it has committed an act which US to be responsible, it would have to be proved that the State
satisfies the requirements of an “internationally wrongful act.” had effective control of the operations during the course of the
• An internationally wrongful act consists of a subjective and an alleged acts.
objective element.
 Subjective: The act must be attributable not to  Acts of Other Persons: Conduct of a person/group are acts of the State
persons or agencies who performed it but to the state under international law if the person/group exercised elements of
itself. governmental authority in the absence or default of the official authorities
 Objective: A violation of an international obligation. It and in circumstances such as to call for the exercise of those elements of
may be either an act or an omission. authority. Conduct of an organ placed at the disposal of a State by
another State is considered an act of the former State under international
 State attribution: Acts of state organs, acts of other persons, or the acts law if the organ was acting in the exercise of elements of the
of revolutionaries. governmental authority of the State at whose disposal it had been placed.
• US v. Iran (ICJ): WON Iran could be made responsible of the
 Acts of State Organs: Any State organ (who is accorded that status acts of the Muslim Student Followers of the Imam’s Policy
according to internal law) which conducts itself in that capacity, entities against the United States Embassy. The Court ruled that Iran
empowered by law to exercise elements of governmental authority even if was responsible because, being aware of their obligations to
not considered an organ of the state, persons or a group of persons the US protect the embassy and having the means at their
acting under the instructions of the State or carrying out acts of a State in disposal to do so, they failed to protect it.
the absence of official authorities, and attribution to the state of the
conduct of organs placed at its disposal by another state, even if they  Acts of Revolutionaries: Conduct of an insurrectional movement shall be
exceeded authority. considered an act of that State under international law if it becomes the
 Cases new State government. If it succeeds in establishing a new State in part
• Caire Claim (France v. Mexico, French-Mexican Claims of the territory of a pre-existing state or in a territory under its
Commission): WON Mexico was responsible for the death of a administration, it shall be considered an act of the new State under
French national at the hands of Mexican soldiers. The international law, without prejudice to the attribution to a State of any
Commission (ruling on the objective responsibility) ruled that conduct, however related to that of the movement concerned.
Mexico had the responsibility to make reparations because the • Home Missionary Society Claim (US v. Great Britain, American
soldiers acted to all appearances as competent officials or and British Claims Arbitration Tribunal): WON Great Britain is
organs and used powers or methods appropriate to their official responsible for the loss of life suffered by the US, because their
capacity, even if done without specific authorization. act of imposing a hut tax on the natives of Sierra Leone caused
• Corfu Channel Case (UK v. Albania, ICJ): WON Albania is a serious and widespread revolt. The Court ruled that Britain
responsible for the loss of life suffered by the British when two was entitled to impose the tax as an exercise of its sovereignty,
of its destroyers struck mines in Albanian waters. The Court and stated that no government can be held responsible for the
ruled that Albania is responsible, even though it was two act of rebellious bodies of men committed in violation of its
Yugoslav ships who had undertaken to lay the mines, because, authority where it is itself guilty of no breach of good faith, or of
firstly, of the attitude displayed by Albania before and after the no negligence in suppressing insurrection.
incident, and secondly, the possibility of observing the mine • Short v. Iran (US. v. Iran, Iran-US Claims Tribunal): WON
laying from the Albanian coast. The aforementioned factual Short, an American national, could claim compensation for
circumstances draw the conclusion that the mines could not salary and other losses sustained from his expulsion from his
have been laid without Albania’s knowledge and her lack of office due to the rise of the Islamic Revolutionary Government.
notifying the UK ships led to her international responsibility. The Tribunal ruled that Short could not because he failed to
• Nicaragua v. US (ICJ): WON the US was involved in the prove that his departure from Iran was due to the wrongful
revolution in Nicaragua to the extent of providing direct support conduct of the latter, because a successor government is
for the contra forces as well as laying mines in Nicaraguan responsible only for acts imputable to it, and the company
ports, among other allegations. The Court, in determining the orders expelling Short were done by the supporters of the
closeness of the relationship between the US government to revolutionaries.

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• Third generation: right to peace, clean environment, self-


 Preliminary Objections: These are things which need to be satisfied determination, common heritage of mankind, development,
before a state can validly claim standing. Examples are lack of nationality minority rights.
link and failure to exhaust national remedies.
II. International Bill of Human Rights
 Reparation: A responsible state is obliged to make full reparation for  Emergence of an International Bill of Human Rights: Started to rise after
injury caused by its internationally wrongful act. This injury shall consist of World War II, because of the recognition that the way nations treat
any damage, material or moral, arising in consequence of the persons under their jurisdiction has become an international concern, not
internationally wrongful act of a State. The responsible State cannot rely just domestic. It is said to chip away at the old concept of sovereignty and
on municipal law to justify its failure to comply. recognizes that individuals can be made the subject of international law,
• Chorzow Factory Case (Germany v. Poland, PCIJ): WON the and that they can find protection and remedies within the international
expropriation by Poland of a factory in Chorzow was contrary to community against their own state.
the 1922 Geneva Convention between Germany and Poland,  UN Charter: Breaking ground for the development of the new
and if so, if Germany is entitled to reparation for the damage international human rights law. The Charter set down a fundamental
caused. The Court ruled that the damages to be awarded are premise of “faith in fundamental human rights in the dignity and worth of
not limited to actual damages sustained by Germany but that the human person in the equal rights of men and women.”
the restitution must wipe out all the consequences of the illegal • Article 1(3): “To achieve international cooperation in solving
act and re-establish the situation which would have existed had international problems of an economic, social, cultural or
the act not been committed. humanitarian character and in promoting and encouraging
respect for human rights and for fundamental freedoms for all
 Calvo Clause: A provision in a contract to the effect that “under no without distinction as to race, sex, language or religion.
condition shall the intervention of foreign diplomatic agents in any matter  Obligations assumed by UN Members:
related to the contract be resorted to.” This was already rejected in a • Creation of stability and well being necessary for peaceful and
case because the right to seek redress is a sovereign prerogative. friendly relations among nations based on respect for the
 Expropriation: Expropriation (the taking of property by the state) can be principles of equal rights and self-determination.
an international wrong if done contrary to the principles of international • Promotion of higher standards of living, full employment and
law. Expropriation must be based on grounds or reasons of public utility, conditions of economic and social progress and development
security, or the national interest recognized as overriding purely individual • Advance solutions of international economic, social, health and
or private interests, both foreign and domestic. Just compensation must related problems and international cultural and educational
be accorded the owner. cooperation
• Universal respect for and observance of human rights and
fundamental freedoms for all without distinction as to race, sex,
CHAPTER TWELVE: INTERNATIONAL HUMAN RIGHTS LAW language or religion.
• All Members pledge to take joint and separate action in
cooperation with the Organization for the achievement of the
I. In General—From Alien Rights to Human Rights purposes aforementioned.
 Definition of human rights: Rights which are inalienable and fundamental  Universal Declaration of Human Rights: First significant milestone in the
and essential for life as human beings. internationalization of human rights. It was adopted by the UN General
 East v. West: Asian culture believes that human rights is a mostly Assembly on December 10, 1948, not as law but as a “common
Western concept, but the common denominator is the belief that the standard” for nations to attempt to reach. Its authority is mostly political
individual must be protected and the international community must and moral.
contribute to that protection, even if between the two views there is  Declaration as distinct from Covenant
differing emphases. • International covenant: Meeting of the minds of the contracting
• Western/American: emphasis on the individual parties on specific duties and obligations they intend to
• Eastern/Confucian: emphasis on the community assume, and the agreement that the undertakings must be
 Western tradition developed from the Natural Law view that some rights effectively performed. Leaves no doubt about the legal nature
are higher than positive/man-made law and flows from the nature of man of the provisions it contains.
himself, which demands immunities or liberties. • Declaration: Admits the presumption that something less than
 Three generations of human rights: full effectiveness in terms of law is intended. Dictates moral
• First generation: traditional civil and fundamental rights rules only. There is no vinculum juris in the agreement.
• Second generation: social and economic rights

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by reason of infancy, minority, or insanity. State parties must treat every


III. Covenant on Civil and Political Rights human being everywhere as a person before the law, enjoying the
 Life, Liberty and Property: protection of the law and of the forces of the law, with power to have
• The Covenant’s provisions on the right to life do not go rights and assume obligations. The Covenant does not say when one
beyond what the Philippine Bill of Rights guarantees. However, becomes a person but the Philippine Constitution protects the life of the
it does not say when protected life begins while the Philippines unborn. However, it does not say if the unborn is a person. The Civil
protects the life of the unborn child from conception. Code says that the unborn is a person for purposes favorable to him.
• There is no right to property in the Covenant, even if there is  Thought, Conscience, Religion, Expression, Political Freedom: The limits
one in the Universal Declaration. A respected author states that on exercise of the aforementioned rights found in the Covenant are “to
it would be difficult to draft a right to property which could gain protect public safety, order, health, or morals or the fundamental rights of
universal and general acceptance. others.” The Covenant has express protection of the right of parents in
• The Covenant expresses an inclination towards the abolition of the matter of religion for their children. An established religion is not
the death penalty but allows its imposition only after conviction incompatible with the covenant. The Covenant also guarantees freedom
of the most serious crimes. A Second Optional Protocol (which of expression, the right of assembly and petition, and political freedom.
has not come into force yet) expressly forbids the execution of  Associations and Unions: The Covenant has a detailed set of provisions
any person within a State party’s jurisdiction. The Philippines is protecting the right to form associations and unions. It is silent about the
not a party to the Second Optional Protocol, but it has since right of government employees to form unions.
disallowed its imposition in RA 9346 (after it initially allowed it  Minorities: Minorities are accorded the right to enjoy their own culture, to
again for the most heinous crimes). profess and practice their own religion or to use their own language.
• The Bill of Rights adequately covers what is mentioned in the There is no right to secede. The concern for minorities has a two-fold
Covenant regarding physical liberty and arrests and aspect: 1. The fear of a secessionist movement by minorities, threatening
detention, such as the rights of the accused. However, the territorial integrity of the state, or about the danger of interference by
Covenant is more restrictive as to the publicity of criminal other states with which the minorities are connected by ties of race,
proceedings where the interests of juvenile persons, national origin, language, or religion; and 2. A genuine concern for the
matrimonial disputes or guardianship are at issue, which would human rights of minorities and the desire that minorities will flourish so as
not pass Philippine tests. to preserve that diversity of the human race.
• As to compensation in the Covenant, it guarantees that  Self-determination of peoples: Self-determination covers two important
anyone who are victims of unlawful arrest and miscarriage of rights: 1. The right freely to determine their political status and freely
justice shall be compensated according to the law. In the pursue their economic, social, and cultural development; and 2. The right
Philippine Constitution, one is only accorded the right to for their own ends, to freely dispose of the natural wealth and resources
compensation pursuant to violations of one’s rights under without prejudice to any obligations arising out of international
investigation. cooperation based upon the principle of mutual benefit and international
 Torture, Ill-treatment and Prison Conditions: The Covenant prohibits law. They also have an internal aspect (as to the two rights
torture and other forms of ill-treatment that offend bodily integrity and aforementioned) and an external aspect (belong to non-self-governing
personal dignity. Humane prison conditions must also be implemented and Trust Territories).
(the Philippines requires adequate prison conditions.) The UN Human  Optional Protocol on the Covenant on Civil and Political Rights:
Rights Commission says that imprisonment in conditions detrimental to a Supplement to the Covenant on Civil and Political Rights. The Philippines
prisoner’s health constitutes violation of the Covenant. has ratified the Protocol and it entered into force in March 1976.
 Freedom of Movement: The Covenant guarantees the rights to travel
within the country, to leave the country, and to change one’s residence. IV. Covenant on Economic, Social and Cultural Rights
These are limited by law, public health, national security or the rights and  Reasons for division: Ideological and practical reasons.
freedoms of others, and those inconsistent with the other rights in the • Ideological: The contest between Western on the one hand and
present Covenant. Unlike in the Philippine Bill of Rights, the Covenant socialist and Third World countries on the other. Western
does not require a court order for the impairment of liberty of abode. countries found it difficult to apply a treaty containing economic
There is a difference between the right to return to one’s country from the and cultural rights beyond those guaranteed in the Constitution,
right to leave one’s country. Exile is now prohibited by customary law and while socialist and developing countries felt that the lack of
the prohibition of exile may even be jus cogens. economic, social and cultural rights would render civil and
 Legal Personality, Privacy and Right to Family: Difference between “legal political guarantees meaningless.
personality” and “capacity to act.” Legal personality belongs to all,
whether citizens or aliens. Capacity to act may not be available to some

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• Practical: It is difficult to implement civil and political guarantees Commission on Prevention of Discrimination and Protection of
without the corresponding economic social and cultural rights Minorities to appoint a working group of not more than 5
and could only be done considering developmental conditions. members to meet once a year in private meetings to consider
 Rights guaranteed: all communications with a view to bringing to the attention of
• 1. To work the Sub-Commission those communications which appear to
• 2. To favorable conditions of work reveal a pattern of gross and reliably attested violations of
• 3. To form free trade unions human rights. The confidential findings of the Sub-Commission
• 4. To social security and insurance are brought to the attention of the Commission on Human
• 5. To special assistance for families Rights, which submits its report and recommendation to the
• 6. To adequate standard of living ECOSOC. The procedure is kept confidential until the CHR
• 7. To the highest standard of physical and mental health decides to make recommendations to the ECOSOC.
• 8. To education including compulsory primary education; and • Public Debate Procedure (1235 Procedure): Resolution 1235 of
• 9. To the enjoyment of cultural and scientific benefits and the ECOSOC authorizes the CHR and its subsidiary
international contacts. Commission on Prevention of Discrimination and Protection of
Minorities to examine reports relevant to gross violations of
V. Duty to Implement human right and to examine whether the violations reveal a
 Philippines’ international obligations: The nation is bound, both internally consistent pattern and thereafter make recommendations to
and to its foreign relations, to bring its laws and practices into accord with the ECOSOC.
accepted international obligations and not to introduce new laws or • The procedure carries out two types of activities:
practices which would be at variance with such obligations. Treaty 1. It holds annual public debates in which NGOs are
commitments become part of domestic law. Self-executing provisions of given the opportunity to identify publicly country-
the Covenants must be implemented in domestic law. Those not self- specific situations which deserve attention.
executing must be attended to by necessary steps, in accordance with its 2. It engages in studies and investigations of particular
constitutional processes and with the provisions of the Covenant. situations through the use of various techniques the
 Principle of progressive realization: A state is obligated to undertake a Commission might deem appropriate.
program of activities and to realize those rights which are recognized by • Possible results of these procedures:
the Economic Covenant. While the obligation of progressive realization is 1. Embarrassment of countries referred to, that might
limited by resource constraints, the Economic Covenant indicates that generate change in policy;
priority should be given to social welfare and that the level of effort should 2. Pressure on governments to take the issue on a
increase over time. These obligations apply to any state that has ratified bilateral or multilateral level;
the Economic Covenant, regardless of that state’s economic resources. 3. Statements of exhortation from the Commission or
 Beyond domestic obligations are international obligations. In the call from the Commission for all available
economic and social fields, the keywords are “cooperation” and information;
“assistance.” In the civil and political field, this involves participation in the 4. The Commission might appoint a special rapporteur
implementation measures of the UN system. to examine and submit a report on the issue;
5. The Commission might ask the Security Council to
VI. International Implementation of Human Rights Law take up the issue with a view to promulgating
 Other conventions on human rights: 1948 Genocide Convention, 1966 sanctions.
Convention on the Elimination of all forms of Racial Discrimination, 1979
Convention on the Elimination of all forms of Discrimination against VII. International Criminal Court
Women, 1984 Convention against torture and other Cruel, Inhuman,  Significance and Goal: The International Criminal Court was created in
Degrading Treatment or Punishment, 1989 Rights of the Child 1998 by the Rome Statute. The treaty came into force in April 2002 when
Convention and 1990 Convention on Migrant Workers. the 60th country needed to establish the ICC submitted its ratification.
 Customary international human rights law: Some human rights principles The US and the Philippines have not ratified it.
have become customary law, like prohibition against torture, genocide, • Prior to the establishment of the ICC, international crimes were
slavery and the prohibition of discrimination. prosecuted in ad hoc criminal courts. These tribunals were
 International implementation: undermined and weakened by the charges of politically
• Human Rights Commission: Subsidiary organ of ECOSOC motivated investigations and selective justice. Unlike temporary
• Confidential Consideration Procedure (1503 Procedure): tribunals, the ICC will be established without any specific
Resolution 1503 of the ECOSOC authorizes the Sub- country in mind. Besides being permanent, it will be neutral.

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Gradually too, it will be able to establish precedents. Its goal is II. Non-Judicial/Diplomatic Settlement
individual and not collective accountability.  Negotiation: Preferred vehicle because states are generally reluctant to
 Jurisdiction: The jurisdiction of the ICC will be limited to the most serious submit their disputes to an adjudicatory body. It is a very flexible method
international crimes: genocide, crimes against humanity, war crimes, and because there are no set rules. It may be at arm’s length or face-to-face,
the crime of aggression. or it may be formalized in a treaty or a mere exchange of notes. May be
 Principle of Complementarity: The court is a court of last resort. It must carried out by diplomatic correspondence, face-to-face dialogue between
await referral of a crime by a state party or by the Security Council. The permanent envoys or designated negotiators. It is essentially a give and
court cannot act when the local judicial system is able to prosecute. Once take process looking for a win-win situation.
a state has taken the initiative to investigate a crime, the ICC cannot • Good offices: Preliminary step in negotiation. A neutral third
intervene. Because of the principle of complementarity, the effective party brings the two parties together as an initial step before
functioning of the court will depend very much on the cooperation of state judicial settlement is referred to.
parties. The crimes over which the ICC has jurisdiction must first be  Mediation: Involves assistance by third parties acting as a bridge
punishable in domestic law. between the disputants, who do not meet or who may sit with the two
parties at chair meetings, suggest solutions and cajole them to a
resolution. The mediator is approved of by both parties.
CHAPTER THIRTEEN: PEACEFUL SETTLEMENT OF DISPUTES  Inquiry: A fact-finding conducted by a group or by an institution.
Frequently resolves disputes on questions of fact when applied for with
the consent of the parties.
I. International Dispute  Conciliation: A more formal technique where disputants agree to refer the
 Definition: Not every disagreement is a dispute. A dispute is an controversy to an individual, a group of individuals or an institution to
“international dispute” if there is “a disagreement on a point of law or fact, make findings of fact and recommendations. Parties generally do not
a conflict of legal views or interests between two persons.” agree to be bound by the findings made but this “clears the air.”
• Examples: Disagreements over the interpretation of a treaty,
state boundaries or about state responsibility.
III. Quasi-Judicial: Arbitration
• Article 2(3): All members shall settle their international disputes
 Arbitration: The binding settlement of a dispute on the basis of law by a
by peaceful means in such a manner that international peace
non-permanent body designated by the parties. The composition,
and security and justice are not endangered.
jurisdiction and procedure employed are agreed upon by the parties in a
• There is no obligation to settle disputes unless they fall under
compromis d’arbitrage. States are not required to submit to arbitration
the categorization of Article 33 (those which might endanger
unless there is an agreement making it compulsory.
peace and security. However, if there is a decision regarding
• Distinguished from judicial settlement: Arbitration is more
settling disputes, the obligation to settle them is by peaceful
flexible and parties have a greater say in deciding the law to be
means.
applied.
 Peaceful Methods of Settling Disputes (Article 33): The parties to any
• Three types of arbitral agreements:
dispute, continuance of which is likely to endanger the maintenance of
 Arbitration clause that is incorporated as part of a
international peace and security, shall try to seek a solution by the
treaty.
following methods:
 Arbitration treaties where the sole function of the
• Judicial: Recourse to the International Court of Justice (ICJ) or
treaty is to establish methods for the arbitration of
other international tribunals
disputes.
• Quasi-iudicial: Arbitration
 Ad-hoc arbitral agreements
• Non-judicial: Negotiation, Mediation, Inquiry and Conciliation
 Arbitral decisions apply international law unless the parties specify
 Article 36: The Security Council may recommend appropriate procedures
otherwise.
or methods of adjustment in a situation referred to in Article 33, or any
 Arbitral decisions are often challenged pursuant to the following grounds:
similar circumstances.
• Arbitral body exceeded its powers
 Article 37: If the parties failed to resolve their dispute in the methods
• There was corruption on the part of a member of the body
aforementioned, they shall refer it to the Security Council. The Security
• There was failure to state the reasons for the awards or a
Council will then decide whether they will enforce the procedure of Article
serious departure from a rule of procedure
36 or to recommend terms of settlement if it deems necessary.
• The undertaking to arbitrate/compromis is a nullity
 Article 38: If the parties to the dispute so request, the Security Council
 Grounds of domestic courts to refuse to recognize arbitral awards:
can make recommendations to the parties with a view to a peaceful and
• The agreement to arbitrate was not valid under applicable law
pacific settlement.
• No due process

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• Award deals with matters outside the arbitration agreement documents. By definition, advisory opinions are non-binding.
• Arbitral tribunal is contrary to the agreement of the parties Acceptance or non-acceptance of the advisory opinion is
• Reward is not yet binding, has been suspended or set aside by determined by the internal law of the institution.
a competent court
 Contentious Jurisdiction
IV. Judicial: The International Court of Justice, et al • Subject matters: (a) Interpretation of treaties; (b) question of
 The International Court of Justice: The UN’s principal judicial organ. It is international law; (c) existence of any fact which, if established,
the successor of the Permanent Court of Justice which was established would constitute breach of an international obligation; and (d)
by the League of Nations, and it came into being through the Statute of nature or extent of the reparation to be made for the breach of
the Court. All members of the UN are ipso facto parties to the Statute of an international obligation
the International Court of Justice. However, being parties to the Statute • Ways a State recognizes jurisdiction:
does not mean acceptance of its jurisdiction; it just allows the possibility  First: Ad Hoc Basis – When a party unilaterally
because only State parties may be parties in the court. applies to the Court and the other party expresses
• Cardinal rule: States cannot be compelled to submit disputes to his consent thereafter
international adjudication unless they have consented to it  Second: Via Treaty – When parties adhere to a
either before a dispute has arisen or thereafter. They may also treaty which accepts the jurisdiction of the court on
limit their acceptance to certain types of disputes and to attach matters of interpretation or application of the treaty.
various conditions or reservations to their acceptance.  Third: Optional System – By unilateral declaration
 Composition of the Court: A body of independent judges (elected that recognition of jurisdiction in relation to any other
regardless of nationality) of high moral character possessing the state accepting the same jurisdiction in all legal
qualifications required in their respective countries for appointment to the disputes.
highest judicial offices, or are jurisconsults of recognized competence in  Declaration is the form by which state
international law. parties recognize as compulsory ipso facto
• Consists of 15 members, no two of whom may be nationals of and without special agreement, in relation
the same state. A member is a national of a state where he/she to any other state party accepting the
ordinarily exercises civil and political rights. same obligation, the jurisdiction of the
• Chambers: The Court may form one or more chambers court. These may be made unconditionally
composed of three or more judges to deal with particular or on condition of reciprocity on the part of
categories of cases like labor, transit and communications, etc. several or certain states or for a certain
In dealing with a particular case, the court may form a chamber period of time. This way, states can limit
for that purpose. If parties request it, the case may be heard in the extent to which they subject
the chamber. Judgment rendered by a chamber is considered themselves to the jurisdiction of the court.
as rendered by the whole Court. The declarations shall be deposited with
• Possible partiality: Judges of the same nationality as one of the the Secretary General of the United
parties shall retain their right to sit in a case before the court. Is Nations, who shall transmit copies thereof
the Court includes upon the bench a judge of the nationality of to the parties to the Statute and to the
one of the parties, any other party may choose a person to sit Court’s Registrar.
as judge (preferably from the list of persons nominated as  Interhandel case: If two parties to a case
candidates.) are called to the Court, A via a Declaration
 Jurisdiction of the Court: without conditions and B with conditions, A
• Contentious: Such jurisdiction of the Court over all cases which can invoke the conditions in B’s declaration
the parties refer to it and all matters specially provided for in for himself.
the Charter of the UN or in treaties or conventions.  Optional system:
• Advisory: The Court may give an advisory opinion on any legal • Aerial Incidence Case (US v. Bulgaria, ICJ): WON Bulgaria has
question. UN Charter empowers the General Assembly and the submitted itself to the Court’s jurisdiction when it is alleged that
Security Council to make requests for advisory opinions, while Bulgarian military failed to take actions necessitated by
the General Assembly may authorize other UN agencies to international civil aviation agreements when an El Al Israel
seek advisory opinions. Requests must be made in writing airliner entered into Bulgarian airspace and was shot down by
containing an exact statement of the question upon which an them. The case was dropped by the US. The objections of
opinion is required, and accompanied by all necessary Bulgaria must be noted, particularly its objection which called

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upon the grounds of reciprocity and consensual basis of ICJ  Obligation to comply with obligations: The ICJ’s decision has no binding
jurisdiction by invoking the Connally amendment reservation, force except as between the parties and only in respect of that particular
exempting from ICJ Jurisdiction matters cognizable within its case. The judgment is final and without appeal. Revision of judgment can
internal competence. only be made upon discovery of a new fact of such a nature as to be a
• Nicaragua v. US (ICJ): WON the US accepted the jurisdiction decisive factor which was unknown to the Court and also to the party
of the ICJ. In 1946, US declared its adherence to ICJ claiming revision, provided that the ignorance was not due to negligence.
jurisdiction, noting that it would be terminated after six months Proceedings will be opened by a new judgment by the ICJ recording the
notice given to the UN regarding its expiration. After figuring existence of the new fact and recognizing that it is of such a character to
out that Nicaragua would bring the situation to court, they lay the case open to revision.
deposited the 1984 notification with the UN. The Court ruled • No application shall be made after the lapse of 10 years after
that Nicaragua was a “state accepting the same obligation” as the judgment.
the US as in its acceptance of the Court’s jurisdiction under the  Enforcement: Member states must comply with the judgment. If not, the
Statute of the Permanent Court of International Justice, and aggrieved party can appeal to the UN Security Council which can make
that the US could not defy its own Declaration by not complying recommendations or decide upon measures to be taken to give effect to
with its “6-months notice” provision. the judgment.
• Case of East Timor (Portugal v. Australia, ICJ): WON Portugal
can bring an action against Australia regarding the “Zone of  Other active international courts: Court of Justice of the European
Cooperation” which is the subject of the treaty between Communities, the European Court of Human Rights, the Benelux Court of
Australia and Indonesia. The Court ruled that the actual dispute Justice and the Inter-American Court of Human Rights. The International
was between Portugal and Indonesia, and could not continue Criminal Court entered into force only in 2002.
because Indonesia had not accepted the jurisdiction of the ICJ.

 Provisional measures: The Court can indicate and impose any provisional CHAPTER FOURTEEN: USE OF FORCE SHORT OF WAR
remedies to preserve the rights of either party, pending final decision of
the courts. I. The Use of Force
• Nicaragua v. US (Summary, ICJ): Same fact set as above  General principle: International law recognizes the autonomy of individual
Nicaragua cases. Given the circumstances, the Court deems it states and their right to freedom from coercion and to the integrity of their
appropriate to grant provisional measures, and emphasizes territory. From the UN Charter: “All Members shall refrain in their
that the grant does not prejudice the eventual decision of the international relations from the threat or use of force against the territorial
main case. integrity or political independence of any state, or in any other manner
• Case concerning the legality of use of force (Yugoslavia v. US, inconsistent with the Purposes of the United Nations.”
ICJ): WON the Court can grant the provisional measures • The text does not use the word ‘war’ because it is a technical
requested by Yugoslavia against the NATO states regarding term that does not include all uses of force.. The prohibition in
bombings on the basis of the Genocide Convention. The Court the UN Charter applies more broadly.
denied the application because the US did not give its consent  Doctrine of self-help and ICJ’s interpretation: In the Corfu Channel case,
to be bound by the Court’s jurisdiction and, not consenting, the the UK wanted to secure the mines to prevent further danger. This was
provisional measure cannot be imposed. presented as a new and special application of the theory of intervention,
where the intervening state was acting as a method of self protection or
 Intervention: The intervention of a third party state in the dispute between self-help. The Court cannot accept this line of defense because
other states on the basis of its interest in the outcome of the case. Its espousing it would be allowing a policy of force which cannot find a place
interest must be of a legal nature. Request for intervention is submitted to in international law.
ICJ. • The prohibition of the use of force is also customary
• El Salvador v. Honduras (Nicaragua intervention, ICJ): WON international law, not just conventional. There exists in
Nicaragua can intervene in the dispute between El Salvador customary law an opinio juris as to the binding character of
and Honduras regarding the protection of its legal rights in the abstention from the use of force. Consent to resolutions
Gulf of Fonseca. The Court ruled that Nicaragua was able to expressing such abstention from use of force is consent to
show proof that they had interest of a legal nature which may such customary law.
be affected by the Court’s decision and granted the request to • Judge Sette-Camara: The non-use of force and non-
intervene. intervention are not only cardinal principles of customary
international law but could be recognized as peremptory rules

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of customary international law which impose obligations on all  9/11: Article 51 on self-defense was used to justify a response to a non-
States. state aggressor.

II. The Threat of Force IV. Traditionally Allowable Coercive Measures


 Examples of threat of force: The threat to use force may come in various  Severance of diplomatic relations: Resorted to only when absolutely
forms, the most typical of which is the ultimatum in which the State to necessary because severance might endanger peace. This is
which it is addressed is given a time limit to accept demands upon it and, distinguished from suspension which only involves withdrawal of
if rejected or upon failure to comply, war will be declared on it or certain diplomatic representation, but not consular.
coercive measures will be employed.  Retorsion: Any of the forms of counter-measure in response to an
• Legality of the Threat or Use of Nuclear Weapons (ICJ unfriendly act like shutting of ports to vessels, recovation of tariff
Advisory Opinion): The Charter prohibits the use of force concessions or the display of naval forces near the waters of an
against the territorial integrity or political independence of unfriendly state.
another State in any other manner inconsistent with the  Reprisal: Forcible coercive measure which seeks to deter/obtain redress
purposes of the UN, and the prohibition extends not just to from another because of the other’s illegal act, and because of the other’s
specific weapons but to any use of force regardless of refusal to make amends. By itself, the act of reprise is illegal. It must be
weapons employed, because there is not express permission preceded by an unsatisfied demand.
nor prohibition against nuclear weapons in the Charter.  Embargo: May consist of seizure of vessels even in the high seas. It may
• Article 51: Entitlement to self-defense is subject to the be pacific, as when a state keeps its own vessels for fear that it might find
conditions of necessity and proportionality. “Self-defense their way into foreign territory. There is also collective embargo on import.
only warrants measures which are proportional to the armed  Boycott: Form of reprisal which consists of suspension of trade or
attack and necessary to respond to it.” business relations with the nationals of an offending state. A form of
• Proportionality principle: A use of force that is proportionate economic aggression which ought to be prohibited by law.
under the law of self-defense must, to be lawful, meet the  Non-intercourse: Suspension of all commercial intercourse with a state.
requirements of the law applicable in armed conflict which  Pacific Blockade: Naval operation carried out in peacetime where a state
comprise the principles and rules of humanitarian law. prevents access to or exit from particular ports or portions of the coast of
• Threats to use force: Whether or not there is a signalled another state for the purpose of compelling the latter to yield to demands
intention (threat) to use force if upon the occurrence of certain made by the blockading state. It is essentially a warlike act.
events depends on several factors—if the use of said force is
illegal, then the threat to use such a force is also deemed V. Protection of Nationals Abroad
illegal.  The right to protect nationals stems from the right to self-defense in
Article 51 coupled with the notion of population as an element of
III. Individual and Collective Self-Defense statehood, where nationals abroad are considered members of the
 Individual and collective self-defense (inherent rights) are not completely populace in another state. The legitimacy of such intervention is not firmly
prohibited. Individual and collective self-defense is allowed subject to the established in international law
principles of necessity and proportionality, without prejudice to the right of
the Security Council to take actions it deems needed to restore VI. Humanitarian Intervention
international peace and security.  Armed humanitarian intervention by states: Intervention without the
 Self-defense can only be exercised in response to an “armed attack.” In authorization of the Security Council violates international law, because
the view of the Court, this is understood to be not merely action by armed humanitarian intervention as a response to massive violation of
regular armed forces across an international border but also the sending human rights in another state begins with a general prohibition against
by a State of armed bands to the territory of another State. the use of force.
• Does not include “assistance to rebels” in the form of weapons  Legality v. Illegality: Only permissible is sanctioned by the Security
or logistical support within its purview. Council. They must consider the massive violation of human rights as a
• There is no rule permitting collective self-defense without a threat to peace and calls for an enforcement action such as humanitarian
State requesting for its assistance and a State declaring itself intervention to put an end to violations. Absent such a declaration,
to have been attacked. military coercion employed constitutes a breach of the Charter.
 Anticipatory self-defense: Opinion on its legality is divided. Some say that Additionally, the human rights violations must transcend borders and lead
“protection of vital interests” justifies the use of force while others refrain to armed attack against other states to be able to qualify as an “armed
from using it in the fear that it may be used against them as well. attack.”

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 Three reasons against the existence of a right of humanitarian  The Hague Law: Early customary law. At present the laws of war are
intervention: mostly conventional. Principles adopted in the Law of the Hague refer to
• UN Charter and PIL do not incorporate such a right land and naval warfare.
• No real need because there are only a handful of genuine  The Geneva Conventions of 1949: Persons not engaged in warfare
cases of intervention should be treated humanely. The Geneva Conventions are referred to as
• Prudential grounds; because the scope of abuse argues the “Red Cross” Conventions governing—I: Wounded and Sick in the
strongly against its creation. Benefits outweigh the costs in Field; II: Wounded, Sick and Shipwrecked at Sea; III: Prisoners of War;
terms of respect for PIL. and IV: Civilians.
 Laws should not be changed to follow humanitarian impulses because of
the potential for abuse and because it might just be an isolated incident  Customary and Conventional Law: Much of what is embodied in the
only. aforementioned conventions are customary law. Non-parties to the
 Another author asks, as regards the NATO armed intervention: Should Convention are still covered by the customary law on armed conflict.
the respect for the Rule of Law be sacrificed on the altar of compassion? • Commencement of Hostilities: For an armed conflict to be
Because ethically, acts of humanitarian intervention are justified but considered a war, hostilities must be preceded by a declaration
legally, are contrary to law. of war or an ultimatum with a fixed limit. This is rarely followed.
 The same author submits that under certain strict conditions, resort to Usually, it is the victim of the first attack which will be the ones
armed force may gradually become justified, even absent any declaring war. In the Philippines, the power to declare war is in
authorization by the Security Council: the legislature while the power to make war is in the executive.
• Crimes against humanity are carried out on the territory of a • Effects of Commencement: Commencement of hostilities result
sovereign state and central authorities are unable to do in the severance of all normal relations. Political and economic
anything treaties are terminated. However, treaties of a humanitarian
• There is proof of anarchy character should remain in force. Nationals of combatant states
• Security Council cannot take any coercive action to stop the residing in enemy territories may be subjected to restrictions
acts imposed by the enemy. Merchant vessels are given a grace
• Exhaustion of all peaceful avenues period to depart.
• There must be both a group of states willing to stop the • Termination of Hostilities: Laws of armed conflict remain in
conflicts and support/non-opposition of the other Member- effect until the conflict is terminated. It terminated usually upon
States of the UN a peace treaty. However, once combatant states have made a
• Armed force is only limited to the stopping of the atrocities. declaration that hostilities have come to an end, armed forces
 The more urgent the situation, the more intensive and immediate may be are bound by that declaration even absent a treaty.
the military response thereto. • Armistice/Cease fire: An agreement to suspend hostilities. It
does not end the conflict.
 Protocol I: Created a new category of international armed conflict and
CHAPTER FIFTEEN: THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW) defines it as “armed conflicts in which people are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination.” Those engaged in such a
I. International Humanitarian Law in general conflict receive combatant status and are entitled to combatant rights and
 Proliferation of laws on war: Side by side with the prohibition against the duties.
use of force is the proliferation of laws of war, because:
• Those who resort to the use of arms do not give up until they II. Methods of Warfare: Jus in Bello
have achieved victory;  The only legitimate object which states should endeavour to accomplish
• Given the first fact, humanitarian considerations dictate the during the war is to weaken enemy forces. For this reason it is sufficient
need for rules which curtail violence beyond what is necessary to disable the greatest possible number of men.
to achieve a state’s goal;  Prohibited methods: The Hague Convention prohibits the employment of
• There still remains in the hearts of the soldiery an acceptance arms, projectiles or material calculated to cause unnecessary suffering.
of chivalry as a value. States can never make civilians the objects of attack and must never use
 Humanizing the conduct of war was the driving need to formulate laws, weapons that are incapable of distinguishing between civilian and military
assuming that wars can always happen. This was pioneered by Henry targets. States do not have unlimited freedom of choice of means in the
Dunant who was appalled by the brutality of war. weapon they use.

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 International Commission of the Red Cross’ Soldier’s Rules (Summary)  Civil wars: They do not violate international law. They do not fall under
• Be a disciplined soldier because disobedience of the laws of the UN Charter’s purview. Outside help is allowable only if the
war dishonours your army and yourself. Fight only enemy government requested for it. Aiding rebels is contrary to international law.
combatants. Destroy no more than your mission requires. Do  Common Article 3: Allows minimum humanitarian protection to cover
not fight enemies who are ‘out of combat’ (hors de combat) or internal conflict. Common to all 1949 Geneva Conventions. See
surrender. Collect and care for the sick and wounded, friend or discussion in Chapter Six.
foe. Treat all civilians and enemies with humanity. Prisoners of  Protocol II: The first and only international agreement regulating the
war must be treated humanely. Do not take hostages. Abstain conduct of parties to a non-international armed conflict. Supplements the
from acts of vengeance. Respect the Red Cross and all those Common Article 3. See discussion in Chapter Six.
bearing its emblem. Respect other person’s property. Prevent
breaches of the above rules. V. International Terrorism
 Definitions: There is not crime named terrorism in the Philippine
 International Commission of the Red Cross’ Fundamental Rules of statutes, although some acts which are considered territoristic are
International Humanitarian Law Applicable to Armed Conflicts punishable by the Revised Penal Code.
(Summary): • US: Anti-Terrorism Law; UK: Terrorism Act of 2000.
• Persons out of combat are entitled to respect for their lives and • British law defines it as: Violent moves against person or
moral and physical integrity. It is forbidden to kill or injure an property or against public health and safety which have for their
enemy out of combat. The wounded and sick shall be collected purpose to influence the government or to intimidate a section
and cared for and the Red Cross respected. Captured of the public or to advance a political, religious or ideological
combatants of another party are entitled to respect for their purpose.
lives and dignity. Everyone shall be entitled to judicial  In international law, it is difficult to criminalize terrorism because of the
guarantees. Parties to a conflict do not have an unlimited difficulty in defining the prohibited act. The draft definition (at the
choice of methods or means of warfare. Distinguish between International Convention for the Suppression of the Financing of
civilians and combatants. Terrorism is as follows:
• An act done by any person intended to cause (a) death or
 Non-international Armed Conflicts (Summary): serious bodily injury to any person, or (b) serious damage to a
• There is a prohibition against indiscriminate attacks. There is State or Government facility with intent to cause extensive
an obligation to distinguish between combatants and civilians. destruction of such a place, facility or system, or where such
The latter are not to be attacked. Unnecessary suffering is destruction results or is likely to result in major economic loss,
prohibited. The prohibition to kill, injure or capture an adversary when the purpose of such an act is to intimidate a population or
by resort to perfidy (def. dishonesty) is prohibited. The to compel a Government or an international organization to do
obligation to respect and protect medical and religious or abstain from doing any act.
personnel is given. There is a prohibition against attacks  Universality: Is terrorism a crime against humanity? Many consider it to
against property and destruction of objects indispensable to the be such because of the 9/11 attacks. They were led to this conclusion
survival of civilians because of the act’s magnitude, gravity, and the targeting of civilians as
• Do not use the following weapons: Chemical weapons, part of a well-planned operation. The characterization of the 9/11 attack
expanding or flattening bullets, poison, mines and booby traps as a crime against humanity is important in US justification for its use of
which may be easily mistaken by civilians, incendiary weapons international law on self-defense.
(against civilians).  There are still many aspects of international terrorism which need to be
clarified for the purpose of effecting legislation, such as magnitude of
III. Neutrality attack to be considered as an attack by a state, and what specifically is a
 In a conflict there are some who wish to stay out of the way and adopt an target of self-defense, its timing, duration and the admissible means,
attitude of impartiality. Such an attitude must be recognized by the among many others.
opposing party-States and creates both rights and duties in the neutral
states. The decision to employ a neutral stance is dictated by CHAPTER SIXTEEN: INTERNATIONAL ENVIRONMENTAL LAW
political/internal mechanisms and not PIL.
 Neutral states must not engage in activities which interfere with the
activities of the belligerents while the latter respect the former’s rights. I. Environmental concerns
 Expressions of environmental concern in the Philippine Constitution:
IV. Non-International Conflicts Article II, Section 16, which states that “the State shall protect and

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advance the right of the people to a balanced and healthful ecology in proceedings and remanded the case to the lower courts to receive
accord with the rhythm and harmony of nature.” evidence.
• Oposa v. Factoran, Jr: WON the parties had legal standing on .
the basis of “intergenerational protection.” The Court ruled that
they did, recognizing the constitutional right to a balanced and
III. Sustainable Development
healthful ecology and the correlative duty to refrain from  Sustainable Development: Encourages development in a manner and
impairing the environment. according to methods which do not compromise the ability of future
• Laguna Lake Development Authority v. CA: WON the LLDA generation and other states to meet their needs. According to Justice
had the authority to protect the inhabitants of the Laguna Lake Douglas, it is the recognition that the voice of the inanimate object and
Area from the deleterious effects of pollutants coming from the existing beneficiaries of tenvironmental wonders not be stilled.
garbage dumping and discharge of wastes in the area. The
Court ruled that it did, basing its decision on Setion 16 and the
Universal Declaration of Human Rights, and ruled in favour of IV. Emerging Principles
LLDA and against the municipalities around the lake, to  Stockholm Declaration (Summary): Man has the fundamental right to
address the environmental and ecological stress on Laguna freedom, equality, and adequate conditions of life, and has a
Lake. responsibility to protect and improve the environment for present and
• Social Justice Society v. Atienza: WON the Manila ordinance future generations. It is for the benefit of future and present generations.
requiring the oil companies to close and transfer the Pandacan Earth’s capacity to sustain life must be maintained, in addition to the
Terminal to another location was valid. The Court ruled that it preservation of wildlife and their habitats, of current environmental
was valid. resources and the prevention of discharge of toxic substances or fumes
• Metropolitan Manila Development Authority v. Residents of and pollution. Man must support the development of sustainable
Manila Bay: The Court ruled in favour of the residents and development, economic and social development, the address of
ordered various governmental agencies to clean up Manila environmental deficiencies, the stability of prices and earnings of basic
Bay. goods for developing countries, environmental policies, an integrated and
 Environmental concerns: Not just limited to atmosphere, land, sea, flora controlled approach to development planning of all States to make
and fauna but also includes the preservation of the cultural heritage of compatible with environmental protection, rational planning to reconcile
mankind as found in archaeological and artistic remains. The goal of development with environmental protection, demographic policies in
environmental protectionists is the rational use of the elements which overpopulated areas, science and technology to identify and remedy
make up the environment through control, reduction and elimination of environmental risks, research and development for environmental
the causes of environmental degradation. problems, and education regarding environmental matters. The
• Human rights is intricately related to environmental concerns sovereignty of states is recognized, limited by their own responsibility.
because protection of the environment is a vital part of State cooperation must be employed to aid pollution victims. The
contemporary human rights doctrine, even considering it as a standard of applicability must be considered for all states, and
sine qua non for many human rights such as the right to health international cooperation through multilateral and bilateral arrangements
and the right to life. must be employed. There is a prohibition against man-made destruction.
 Difficulty: Due to the various competing interests, it is difficult to espouse  Rio Declaration (Summary): Human beings are at the center of
environmental concern because of issues of sovereignty and state concerns for sustainable development. While there is a recognition of
responsibility, in addition to individual interests and pursuits. This is their sovereign right to exploit their own resources, they have the
compounded by the problem of poverty and exploding population. responsibility to ensure that activities within their jurisdiction do not cause
damage to the environment of other States. The right to development
II. Environmental rights must be fulfilled to meet developmental and environmental needs. To
achieve sustainable development, environmental protection shall be an
 The real objects of protection are persons capable of having rights, so integral part of the developmental process. There shall be a spirit of
trees and other inanimate objects cannot be said to have any rights global partnership to conserve, protect and restore the health and
except in the metaphorical sense. The approach in Oposa v. Factoran, Jr integrity of the Earth’s ecosystem. States should reduce and eliminate
is then instructive as to the view of the law on the matter, where they unsustainable patterns of production and consumption and strengthen
used “intergenerational protection and responsibility” as the bases for the endogenous capacity building for sustainable development by improving
Secretary of Natural Resources to cease and desist from receiving, scientific and technological knowledge. Environmental issues are best
accepting, processing, renewing or approving new timber license participated in by all concerned citizens. States shall enact effective
agreements. The Supreme Court agreed on the justiciability of the environmental legislation and cooperate to promote a supportive and

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open international economic system which would lead to economic • International Bank for Reconstruction and Development (World
growth and sustainable development. States must develop national law Bank): To provide long-term capital to support growth and
about liability and compensation for victims of environmental damage, development
and should cooperate to discourage or prevent the relocation and transfer • International Trade Organization (ITO): Intended to promote a
to other States activities causing environmental damage. The liberal trading system by proscribing certain protectionist trade
precautionary approach shall be applied by States to protect the rules.
environment. Internalization of environmental costs should be  General Agreement on Tariff and Trade (GATT) 
endeavoured by national authorities. Environmental impact assessment World Trade Organization (WTO) – These are the
shall be undertaken for proposed activities which are perceived to have a two most important trade-oriented institutions
large environmental impact. States should immediately notify other states because they shape import and export laws which
in case of any natural disasters or other emergencies. Indigenous impact international trade and services.
peoples, women and the youth have vital roles in environmental
management and development. Warfare is inherently destructive and
 Key principles of International Trade Law:
should respect international law providing protection for the environment
• Agreed tariff levels: Each state agrees not to raise tariff levels
in times of armed conflict. States and people shall cooperate in good faith
above those contained in the schedule. The schedule is open
to fulfil all the principles embodied herein.
to renegotiation.
• Most favored nation clause/principle: Embodies the principle of
CHAPTER SEVENTEEN: INTERNATIONAL ECONOMIC LAW non-discrimination. Any special treatment given to a product
from one trading partner must be made available for like
products originating from other contracting partners. AKA tariff
I. International Economic Law concessions.
 Definitions: Distinct part of international law which is related to the • Principle of national treatment: This prohibits discrimination
regulation of interstate trade, the creation of international economic between domestic producers and foreign producers. Once
institutions, the formulation of definite rules covering a wide range of foreign producers have paid border charges, no additional
economic matters and the establishment of methods of dispute burdens may be imposed.
resolution. • Principle of tariffication: Prohibits the use of quotas on imports
or exports and the use of licenses on importation or
 90% of international law is economic because it includes all the exportation. Prevents the imposition of non-tariff barriers.
international law and international agreements governing economic  Exceptions to Key Principles:
transactions that cross state boundaries that have implications for more • General: Public morals, public health, currency protection,
than one state, like those governing movement of goods, funds, persons, products of prison labor, national treasures of value and
intangibles, technology, vessels and aircrafts. protection of exhaustible natural resources.
 Characteristics of International Economic Law: • Specific: Security and regional trade exceptions, such as
• 1. International economic law is a part of public international exception for developing nations.
law • Tanada v. Angara: WON the GATT is going to be detrimental
• 2. International economic law is entwined with municipal law to local industries and constitutes grave abuse of discretion in
and is balanced accordingly with it. its implementation. The Court ruled that it was not going to be
• 3. International economic law requires multidisciplinary thinking detrimental because of the exceptions it provides to developing
because it involves many other disciplines such as history, nations because of its view towards raising standards of living
political science, anthropology, geography, et cetera. and optimal use of world resources for sustainable
development, and lets the developing countries have a share in
• 4. Empirical research is important for understanding its economic trade through reciprocal or mutual advantages. For
operation. example, the WTO gives developing countries a more lenient
 Important economic institutions: treatment by aiding and protecting their domestic industries.
• Bretton Woods Conference of 1944: Objectives were to
advance the reduction of tariffs and other trade barriers, and to  Dispute resolution: A Dispute Settlement Body (DSB) is established by
create a global framework designed to minimize economic the WTO Agreement. Each state has a right to the establishment of a
conflicts. Panel. The DSU provides for a permanent appellate body, consisting of
• International Monetary Fund (IMF): To provide short-term persons with recognized expertise in law to handle appeals from a Panel
financing to countries in balance of payments and difficulties decision.

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 Expanded scope: IEL now includes intellectual property, services,


sanitary and physiosanitary measures and investment, as well as
strengthening of the rules on subsidies, countervailing duties and anti-
dumping. It has become a very specialized field and it is now affecting the
sovereignty of states and their capacity to give force to national
objectives.

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