Ust Public International Law Bar Review PDF Free

UST GOLDEN NOTES 2011

PUBLIC INTERNATIONAL LAW non‐participating States.

A. CONCEPTS Q: What is erga omnes?

Q: What is Public International Law (PIL)? A: It is an obligation of every State towards the
international community as a whole. All states
A: It is a body of legal principles, norms and have a legal interest in its compliance, and thus all
processes which regulates the relations of States States are entitled to invoke responsibility for
and other international persons and governs their breach of such an obligation. (Case Concerning
conduct affecting the interest of the international The Barcelona Traction, ICJ 1970)
community as a whole.
Q: Give examples of obligations erga omnes.
Q: What is Private International Law (PRIL)?
A:
A: It is that part of the law of each State which 1. Outlawing of acts of aggression
determines whether, in dealing with a factual 2. Outlawing of genocide
situation, an event or transaction between 3. Basic human rights, including protection
private individuals or entities involving a foreign from slavery and racial discrimination
element, the law of some other State will be
recognized. Q: What is jus cogens norm?

Q: Distinguish PIL from PRIL. A: A jus cogens norm is a norm accepted and
recognized by the international community of
A: States as a whole as a norm from which no
PUBLIC PRIVATE derogation is permitted and which can be
Nature modified only by a subsequent norm of general
National or municipal in international law having the same character. (Art.
International in nature 53, Vienna Convention on the Law of Treaties)
character
Dispute resolution
Through international Through municipal Q: What norms are considered as jus cogens in
modes tribunals character?
Subject
Relations of States inter A:
Relations of individuals
se and persons with 1. Laws on genocide
whether or not of the
international legal 2. Principle of self‐determination
same nationality
personality 3. Principle of racial non‐discrimination
Source 4. Crimes against humanity
International 5. Prohibition against slavery and slave
conventions, trade, and piracy
Lawmaking authority of
International customs
each state
and general principles of Q: May a treaty or conventional rule qualifies as
law
a norm of jus cogens character?
Responsibility for breach

Collective because it
A: No. Treaty rule binds only States that are
attaches directly to the Entails individual
parties to it and even in the event that all States
state responsibility
are parties to a treaty, they are entitled to

terminate or withdraw from the treaty.

Q: What is the concept ex aequo et bono?
Q: What are the grand divisions of PIL?

A: It is a judgment based on considerations of
A:
fairness, not on considerations of existing law,
1. Laws of Peace – govern normal relations
that is, to simply decide the case based upon a
between States in the absence of war.
balancing of the equities. (Brownlie, 2003)
2. Laws of War – govern relations between
hostile or belligerent states during wartime. Q: Does Article 38 of the Statute of the
3. Laws of Neutrality – govern relations International Court of Justice which provides
between a non‐participant State and a the sources of International Law prejudice the
participant State during wartime or among
228
POLITICAL LAW TEAM:
ADVISER: ATTY. EDWIN REY SANDOVAL; SUBJECT HEAD: RACHEL MARIE L. FELICES; ASST. SUBJECT HEADS: WIVINO E. BRACERO II &
HERAZEUS CHRISTINE Y. UY; MEMBERS : LAWRENCE PAULO H. AQUINO, LEANDRO RODEL V. ATIENZA, MARINETH EASTER AN D. AYOS,
CARLO R. BALA, WILFREDO T. BONILLA, JR., KEEL ACHERNAR R. DINOY, APRIL V. ENRILE, KENNETH JAMES CARLO C. HIZON, JOSE MARIA
G. MENDOZA, ROGER CHRISTOPHER R. REYES, ROMILINDA C. SIBAL, JASMIN M. SISON, ZARAH PATRICIA T. SUAREZ, RALPH JULIOUS L.
VILLAMOR.
PUBLIC INTERNATIONAL LAW

power of the Court to decide a case ex aequo et Q: What is the Doctrine of Incorporation?
bono?
A: Under this doctrine, rules of international law
A: No, if the parties agree thereon. The power to form part of the law of the land and no further
decide ex aequo et bono involves elements of legislative action is needed to make such rules
compromise and conciliation whereas equity is applicable in the domestic sphere. The doctrine
applied as a part of normal judicial function. decrees that rules of international law are given
(Brownlie, 2003) equal standing with, but are not superior to,
national legislative enactments.

B. INTERNATIONAL AND NATIONAL LAW Q: What is the Doctrine of Transformation?

Q: What is the theory of Monism? A: This doctrine holds that the generally accepted
rules of international law are not per se binding
A: Both international law and municipal law upon the state but must first be embodied in
regulate the same subject matter and legislation enacted by the lawmaking body and so
international law holds supremacy even in the transformed into municipal law.
sphere of municipal law.
Q: What does pacta sunt servanda mean?
Q: What is the theory of Dualism?
A: Pacta sunt servandameans that international
A: The theory affirms that the international law agreements must be performed in good faith. A
and municipal law are distinct and separate; each treaty engagement is not a mere moral obligation
is supreme in its own sphere and level of but creates a legally binding obligation on the
operation. parties.

Q: What are the well‐established differences Q: What is the principle of Auto‐Limitation?
between international law and municipal law
under the theory of Dualism? A: Under the principle of auto‐limitation, any
State may by its consent, express or implied,
A: submit to a restriction of its sovereign rights.
INTERNATIONAL LAW MUNICIPAL LAW There may thus be a curtailment of what
Adopted by states as a Issued by a political otherwise is a plenary power. (Reagan v. CIR,
common rule of action superior for observance G.R. No.L‐26379, Dec. 27, 1969)
Regulates relation of Regulates relations of
state and other individuals among Q: Correlate Reciprocity and the principle of
international persons themselves or with their Auto‐Limitation?
own states
Derived principally from Consists mainly of A: When the Philippines enter into treaties,
treaties, international enactments from the necessarily, these international agreements may
customs and general lawmaking authority of
contain limitations on Philippine sovereignty. The
principles of law each state
consideration in this partial surrender of
Resolved thru state‐to‐ Redressed thru local
sovereignty is the reciprocal commitment of
state transactions administrative and
judicial processes
other contracting States in granting the same
Collective responsibility Breach of which entails privilege and immunities to the Philippines.
because it attaches individual responsibility
directly to the state and Note: For example, this kind of reciprocity in
not to its nationals relation to the principle of auto‐limitation
characterizes the Philippine commitments under

WTO‐GATT. This is based on the Constitutional
Q: Are municipal laws subject to judicial notice
provision that the Philippines "adopts the generally
before international tribunals?
accepted principles of international law as part of
the law of the land and adheres to the policy of
A: No. Municipal laws are only evidence of cooperation and amity with all nations." (Tanada v.
conduct attributable to the State concerned, Angara, G.R.No.118295, May 2, 1997)
which create international responsibility, like
legislative measures or court decisions. They are
not subject to judicial notice and are only treated
as mere facts which are required to be proven.
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ACADEMICS CHAIR: LESTER JAY ALAN E. FLORES II U N I V E R S I T Y O F S A N T O T O M A S
VICE CHAIRS FOR ACADEMICS: KAREN JOY G. SABUGO & JOHN HENRY C. MENDOZA
V ICE CHAIR FOR ADMINISTRATION AND FINANCE: JEANELLE C. LEE Facultad de Derecho Civil
VICE CHAIRS FOR LAY‐OUT AND DESIGN: EARL LOUIE M. MASACAYAN & THEENA C. MARTINEZ

C. SOURCES OF PUBLIC INTERNATIONAL LAW implication, those set of international customary
rules, laws and customs which do not carry any
Q: What are the sources of Public International binding effect whatsoever or impose no
Law? obligation at all to states for its compliance.

A: Q: What are the types of treaties or international
Primary Sources: conventions?
1. International conventions, whether
general or particular, establishing rules A:
expressly recognized by the contesting 1. Contract treaties (Traite contract)
state 2. Law making treaty (Traite loi)
2. International custom, as evidence of a
general practice accepted as law; and Q: What are contract treaties?
3. The general principles of law recognized
by civilized nations; (Article 38(1), A: Bilateral arrangements concerning matters of
Statute of the International Court of particular or special interest to the contracting
Justice) parties. They are sources of particular
international law but may become primary
Note: Sources of law refer to norms sources of public international law when different
derived from international conventions on contract treaties are of the same nature,
treaties, customs, and general principles containing practically uniform provisions, and are
of law. The distinctive character of these concluded by a substantial number of States.
norms is that they are created or they
acquire binding effect through the Q: What are law‐making treaties?
methods pointed above.
A: Treaties which are concluded by a large
Secondary Sources: number of States for purposes of:
1. Decisions of international tribunals; and 1. Declaring, confirming, or defining their
2. Teachings of the most highly qualified understanding of what the law is on a
publicists of various nations. particular subject;
2. Stipulating or laying down new general
Q: What is the difference between formal rules for future international conduct;
sources from material sources of international and
law? 3. Creating new international institutions.

A: Formal sources consist of the methods and Q: Who are bound by treaties and international
procedures by which norms are created while conventions?
material sources are the substantive evidence of A:
the existence of norms. GR: Only the parties.

Note: The material sources supplies the substance of XPN: Treaties may be considered a direct
the rule to which the formal sources gives the force
source of international law when concluded
and nature of law. Thus, custom as a norm creating
by a sizable number of States, and is reflective
process is a formal source of law.
of the will of the family of nations.

Q: Under international law, what are “hard law”
Q: What are the elements of international
and “soft law”?
custom?

A: Hard law means binding laws. To constitute
A:
law, a rule, instrument or decision must be
1. General practice, characterized by uniformity
authoritative and prescriptive. In international
and consistency;
law, hard law includes treaties or international
2. Opiniojuris, or recognition of that practice as a
agreements, as well as customary laws. These
legal norm and therefore obligatory; and
instruments result in legally enforceable
3. Duration
commitments for countries (states) and other

international subjects.
Q: Is a particular length of time required for the

formation of customary norms?
Soft law means commitments made by

negotiating parties that are not legally binding. By
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POLITICAL LAW TEAM:
VILLAMOR.

A: No particular length of time is required. What c. mandates and trust territories;
is required is that within the period in question, belligerent communities;
short though it may be, State practice, including d. The Vatican;
that of States whose interest are specially e. The United Nations; international
affected, should have extensive and virtually administrative bodies; and
uniform and in such a way as to show a general f. To a certain extent, individuals.
recognition that a rule of law or legal obligation is
involved. 2. Indirect subjects
a. international organizations;
Q: What are the requisites in order to consider a b. Individuals; and
person to be a highly qualified publicist? c. Corporations.

A: 3. Incomplete subjects
1. His writings must be fair and impartial a. Protectorates
representation of law; b. Federal states
2. An acknowledged authority in the field. c. Mandated and trust territories.

Q: Are dissenting States bound by international Q: What are objects of international law?
customs?
A: A person or thing in respect of which rights are
A: held and obligations assumed by the subject.
GR: Yes
Q: Distinguish subject from object of
XPN: If they had consistently objected to it international law
while the project was merely in the process
of formation. Dissent, however protects only A:
the dissenter and does not apply to other SUBJECT OBJECT
States. A State joining the international law Person or thing in
system for the first time after a practice has Entity that has rights and
respect of which rights
responsibilities under
become customary law is bound by such are held and obligations
that law
practice. assumed by the subject
Has international
personality that it can Not directly governed by
D. SUBJECTS OF INTERNATIONAL LAW directly assert rights and the rules of
can be held responsible international law
Q: Define international community. under the law of nations
It can be a proper party
Its rights are received
A: The body of juridical entities which are in transactions involving
and its responsibilities
governed by the law of nations. Under the the application of the
imposed indirectly
modern concept, it is composed not only of States law of nations among
through the
but also of such other international persons as members of
instrumentality of an
international
the UN, the Vatican City, colonies and intermediate agency
communities
dependencies, mandates and trust territories,
international administrative bodies, belligerent
communities and even individuals. Q: What is a State?

Q: What is a subject of international law? A: A State is a community of persons, more or less
numerous, permanently occupying a definite
A: A subject of international law is an entity with portion of territory, independent of external
capacity of possessing international rights and control, and possessing an organized government
duties and of bringing international claims. to which the great body of inhabitants render
habitual obedience.
Q: What are the subjects of International Law?
Q: What are the elements of a State?
A: The subjects are:
1. Direct subjects A:
a. States 1. People – an aggregate of individuals of
b. Colonies and dependencies both sexes, who live together as a
community despite racial or cultural
231

differences.
A: An association is formed when two states of
2. Territory – fixed portion of the earth’s unequal power voluntarily establish durable links.
surface which the inhabitants occupy. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the
3. Government – the agency through principal, while maintaining its international
which the will of the state is formulated, status as a state. Free association represents a
expressed and realized. middle ground between integration and
independence. (E.g. Republic of the Marshall
4. Independence/sovereignty – the power Islands and the Federated States of Micronesia
of a state to manage its external affairs formerly part of the U.S. Administered Trust
without direction or interference from Territory of the Pacific Islands.)
another state.
The associated state arrangement has usually
Q: What are the other suggested elements of the been used as a transitional device of former
State? colonies on their way to full independence. (E.g.
Antigua, St. Kitts‐Nevis‐Anguilla, Dominica, St.
A: Lucia, St. Vincent and Grenada.)
1. Civilization
2. Recognition Q: Formal peace talks between the Philippine
Government and MILF resulted to the crafting of
Q: If State sovereignty is said to be absolute, the GRP‐MILF Tripoli Agreement on Peace
how is it related to the independence of other (Tripoli Agreement 2001) which consists of three
States and to their equality on the international (3) aspects: a.) security aspect; b.) rehabilitation
plane? aspect; and c.) ancestral domain aspect.

A: From the standpoint of the national legal order, Various negotiations were held which led to the
State sovereignty is the supreme legal authority in finalization of the Memorandum of Agreement
relation to subjects within its territorial domain. on the Ancestral Domain (MOA‐AD). In its body,
This is the traditional context in referring to it grants “the authority and jurisdiction over the
sovereignty as absolute. However, in international Ancestral Domain and Ancestral Lands of the
sphere, sovereignty realizes itself in the existence Bangsamoro” to the Bangsamoro Juridical Entity
of a large number of sovereignties, such that (BJE). The latter, in addition, has the freedom to
there prevails in fact co‐existence of sovereignties enter into any economic cooperation and trade
under conditions of independence and equality. relation with foreign countries.

Q: How is State sovereignty defined in The MOA‐AD further provides for the extent of
international law? the territory of the Bangsamoro. With regard to
governance, on the other hand, a shared
A: The right to exercise in a definite portion of the responsibility and authority between the Central
globe the functions of a State to the exclusion of Government and BJE was provided. The
another State. Sovereignty in the relations relationship was described as “associative”. Does
between States signifies independence. the MOA‐AD violate the Constitution and the
Independence in regard to a portion of the globe laws?
is the right to exercise therein to the exclusion of
any other State, the functions of a State. (Island of A: Yes. The provisions of the MOA indicate that
Palmas case: USA v. the Netherlands) the Parties aimed to vest in the BJE the status of
an associated state or, at any rate, a status closely
Q: What are the fundamental rights of a State? approximating it.

A: It consists of the Right of: The concept of association is not recognized
1. Existence and self‐preservation under the present Constitution. Indeed, the
2. Sovereignty and independence concept implies powers that go beyond anything
3. Equality ever granted by the Constitution to any local or
4. Property and jurisdiction regional government. It also implies the
5. Diplomatic intercourse recognition of the associated entity as a state.
The Constitution, however, does not contemplate
Q: What is the concept of Association? any state in this jurisdiction other than the
232
POLITICAL LAW TEAM:
VILLAMOR.

Philippine State, much less does it provide for a Q: Does the right to self determination extend to
transitory status that aims to prepare any part of the indigenous peoples?
Philippine territory for independence.
A: Yes. Indigenous peoples situated within States
Even assuming arguendo that the MOA‐AD would do not have a general right to independence or
not necessarily sever any portion of Philippine secession from those states under international
territory, the spirit animating it – which has law, but they do have the right amounting to the
betrayed itself by its use of the concept of right to internal self‐determination. Such right is
association – runs counter to the national recognized by the UN General Assembly by
sovereignty and territorial integrity of the adopting the United Nations Declaration on the
Republic. (Province of North Cotabato v. The rights of Indigenous Peoples (UNDRIP). (Province
Government of the Republic of the Philippines, of North Cotabato v. The Government of the
G.R. No. 183591, Oct. 14, 2008) Republic of the Philippines, G.R. No. 183591, Oct.
14, 2008)
Q: Is the BJE a state?
Q: Do the obligations enumerated in the UN
A: Yes, BJE is a state in all but name as it meets DRIP strictly require the Republic of the
the criteria of a state laid down in the Montevideo Philippines to grant the Bangsamoro people,
Convention namely, a permanent population, a through the BJE, the particular rights and powers
defined territory, a government and a capacity to provided for in the MOA_AD?
enter into relations with other states.
A: No. The UN DRIP, while upholding the right of
Even assuming that the MOA‐AD would not indigenous peoples to autonomy, does not
necessarily sever any portion of Philippine obligate States to grant indigenous peoples the
Territory, the spirit animating it – which has near independent status of an associated state.
betrayed itself by its use of the concept of There is no requirement that States now
association – runs counter to the national guarantee indigenous peoples their own police
sovereignty and territorial integrity of the and internal security force, nor is there an
Republic. (Province of North Cotabato v. The acknowledgement of the right of indigenous
Government of the Republic of the Philippines, peoples to the aerial domain and atmospheric
G.R. No. 183591, Oct. 14, 2008) space. But what it upholds is the right of
indigenous peoples to the lands, territories and
Q: Does the people’s right of self‐determination resources, which they have traditionally owned,
extend to a unilateral right of secession? occupied or otherwise used or acquired. (Province
of North Cotabato v. The Government of the
A: No. A distinction should be made between the Republic of the Philippines, G.R. No. 183591, Oct.
right of internal and external self‐determination. 14, 2008)
The recognized sources of international law
establish that the right to self‐determination of a Q: In 1947, the United Nations made the border
people is normally fulfilled through internal self‐ between Israel and Palestine known as the
determination – a people’s pursuit of its political, Green Line. Following the Palestinian Arab
economic, social and cultural development within violence in 2002, Israel began the construction of
the framework of an existing State. A right to the barrier that would separate West Bank from
external self‐determination arises in only the most Israel. Palestinians insisted that the fence is an
extreme cases and, even then, under carefully “Apartheid fence” designed to de facto annex
defined circumstances. the West Bank of Israel. The case was submitted
to the ICJ for an advisory opinion by the General
External self‐determination can be defined as the Assembly of the United Nations under resolution
establishment of a sovereign and independent ES‐10/14. Does Israel undermine the right of
State, the free association or integration with an self‐determination of the people of Palestine?
independent State or the emergence into any
other political status freely determined by a A: Construction of the wall severely impedes the
people which constitute modes of implementing exercise by the Palestinian people of its right to
the right of self‐determination by that self‐determination.
people.(Province of North Cotabato v. The
Government of the Republic of the Philippines, The existence of a “Palestinian people” is no
G.R. No. 183591, Oct. 14, 2008) longer in issue. Such existence has moreover been
recognized by Israel in the exchange of letters.
233

The Court considers that those rights include the 3. As to public debts ‐ Agreement between
right to self‐determination, as the General predecessor and successor State
Assembly has moreover recognized on a number govern; otherwise:
of occasions. The route chosen for the wall gives a. Where a part of the territory of a
expression in loco to the illegal measures taken by State becomes part of the territory
Israel with regard to Jerusalem and the of another State, local public debt
settlements. There is also of further alterations to and the rights and obligations of
the demographic composition of the Occupied the predecessor State under
Palestinian Territory resulting from the contracts relating to that territory
construction of the wall as it is contributing to the are transferred to the successor
departure of Palestinian population from certain State.
areas. That construction, along with measures b. Where a State is absorbed by
taken previously, thus severely impedes the another State, public debt and the
exercise by the Palestinian people of its right to rights and obligations under
self‐determination, and is therefore a breach of contracts of the absorbed State
Israel’s obligation to respect that right. (ICJ pass to the absorbing State.
Advisory Opinion on the Legal Consequences of c. Where a part of a State becomes a
the Construction of a Wall in the Occupied separate State, local public debt
Palestinian Territory, July 4, 2004) and the rights and obligations of
the predecessor State under
Q: What is the principle of state continuity? contracts relating to that territory
are transferred to the successor
A:It states that the disappearance of any of the State.
elements of statehood would cause the extinction
of the State, but mere changes as to one or more 4. As to treaties:
of the elements would not necessarily, as a rule, a. When part of the territory of a
bring about such extinction. Despite such State becomes the territory of
changes, the State continues to be an another State, the international
international person. agreements of the predecessor
State cease to have effect in
Q: Discuss the rules on succession of States. respect of the territory and
international agreements of the
A: successor State come into force
1. As to territory – The capacities, rights there. (“Moving Treaty or Moving
rd
and duties of the Predecessor State Boundaries” Rule ‐ 3 State may
with respect to that territory terminate seek relief from the treaty on
and are assumed by the successor ground of rebus sic stantibus)
State. b. When a State is absorbed by
another State, the international
2. As to State property – The agreement agreements of the absorbed State
between the predecessor and the are terminated and the
successor State govern; otherwise: international agreements of the
a. Where a part of the territory of a absorbing State become applicable
State becomes part of the territory to the territory of the absorbed
of another State, property of the State. (“Moving Treaty or Moving
rd
predecessor State located in that Boundaries” Rule ‐ 3 State may
territory passes to the successor seek relief from the treaty on
State. ground of rebus sic stantibus)
b. Where a State is absorbed by c. When a part of a State becomes a
another State, property of the new State, the new State does not
absorbed State, wherever located, succeed to the international
passes to the absorbing State. agreements to which the
c. Where a part of a State becomes a predecessor State was a party,
separate State, property of the unless, expressly or by implication,
predecessor State located in the it accepts such agreements and the
territory of the new State passes to other party or parties thereto
the new State. agree or acquiesce.

234
POLITICAL LAW TEAM:
VILLAMOR.

d. Pre‐existing boundary and other A: None. Adoption of the theory of suspended
territorial agreements continue to allegiance would lead to disastrous consequences
be binding notwithstanding for small and weak nations or states, and would
(utipossidetis rule) be repugnant to the laws of humanity and
requirements of public conscience, for it would
Q: Give the effects of a change of sovereignty on allow invaders to legally recruit or enlist the
municipal laws. quisling inhabitants of the occupied territory to
fight against their own government without the
A: latter incurring the risk of being prosecuted for
1. Laws partaking of a political complexion treason. To allow suspension is to commit
are abrogated automatically. political suicide.
2. Laws regulating private and domestic
rights continue in force until changed or Q: May an inhabitant of a conquered State be
abrogated. convicted of treason against the legitimate
sovereign committed during the existence of
Q: What is the effect of change of sovereignty belligerency?
when the Spain ceded the Philippines to the
U.S.? A: Yes. Although the penal code is a non‐political
law, it is applicable to treason committed against
A: The effect is that the political laws of the the national security of the legitimate
former sovereign are not merely suspended but government, because the inhabitants of the
abrogated. As they regulate the relations occupied territory were still bound by their
between the ruler and the ruled, these laws fall to allegiance to the latter during the enemy
the ground ipso facto unless they are retained or occupation. Since the preservation of the
re‐enacted by positive act of the new sovereign. allegiance or the obligation of fidelity and
Non‐political laws, by contrast, continue in obedience of a citizen or subject to his
operation, for the reason also that they regulate government or sovereign does not demand from
private relations only, unless they are changed by him a positive action, but only passive attitude or
the new sovereign or are contrary to its forbearance from adhering to the enemy by giving
institutions. the latter aid and comfort, the occupant has no
power, as a corollary of the preceding
Q: What is the effect of Japanese occupation to consideration, to repeal or suspend the operation
the sovereignty of the U.S. over the Philippines? of the law of treason.

A: Sovereignty is not deemed suspended although Q: What is succession of government?
acts of sovereignty cannot be exercised by the
legitimate authority. Thus, sovereignty over the A: In succession of government, the integrity of
Philippines remained with the U.S. although the the original State is not affected as what takes
Americans could not exercise any control over the place is only a change in one of its elements, the
occupied territory at the time. What the government.
belligerent occupant took over was merely the
exercise of acts of sovereignty. Q: Give the effects of a change of government.

Q: Distinguish between Spanish secession to the A:
U.S. and Japanese occupation during WWII 1. If the change is peaceful the new
regarding the political laws of the Philippines. government assumes the rights and
responsibilities of the old government.
A: There being no change of sovereignty during
the belligerent occupation of Japan, the political 2. If the change was effected thru
laws of the occupied territory are merely violence, a distinction must be made:
suspended, subject to revival under jus a. Acts of political complexion may be
postliminiumupon the end of the occupation. In denounced
both cases, however, non‐political laws, remains b. Routinary acts of mere
effective. governmental administration
continue to be effective.
Q: Was there a case of suspended allegiance
during the Japanese occupation? Q: What is recognition?

235

A: It is an act by which a State acknowledges the 1. The government is stable and effective,
existence of another State, government, or a with no substantial resistance to its
belligerent community and indicates its authority
willingness to deal with the entity as such under 2. The government must show willingness
international law. and ability to discharge its international
obligations
Q: What are the two theories of recognition of 3. The government must enjoy popular
State? consent or approval of the people

A: The theories of recognition of a State are: Q: What is the Tobar or Wilson doctrine?

1. Constitutive theory – recognition is the A: It precludes recognition to any government
last indispensable element that coming into existence by revolutionary means so
converts the state being recognized into long as the freely elected representatives of the
an international person. people thereof have not constitutionally
reorganized the country.
2. Declaratory theory – recognition is
merely an acknowledgment of the pre‐ Q: What is the Estrada Doctrine?
existing fact that the state being
recognized is an international person. A: It involves a policy of never issuing any
declaration giving recognition to governments
Q: Who has the authority to recognize? and of accepting whatever government is in
effective control without raising the issue of
A: It is a matter to be determined according to the recognition. An inquiry into legitimacy would be
municipal law of each State. In the Philippines, it an intervention in the internal affairs of another
is the President who determines the question of State.
recognition and his decisions on this matter are
considered acts of state which are, therefore, not Q: Distinguish de jure recognition from de facto
subject to judicial review. His authority in this recognition.
respect is derived from his treaty‐making power,
his power to send and receive diplomatic A:
representatives, his military power, and his right RECOGNITION DE
RECOGNITION DE JURE
in general to act as the foreign policy spokesman FACTO
of the nation. Being essentially discretionary, the Provisonal (e.g.:
exercise of these powers may not be compelled. Relatively permanent duration of armed
struggle)
Q: Distinguish recognition of State from Does not vest title to
Vests title to properties
recognition of government. properties of
of government abroad
government abroad
A: Brings about full Limited to certain
1. Recognition of State carries with it the diplomatic relations juridical relations
recognition of government since the
former implies that a State recognized Q: What are the effects of recognition?
has all the essential requisites of a State
at the time recognition is extended. A: VIP Ces
Once recognition of state is accorded, it 1. The recognized State acquires Capacity
is generally irrevocable. to enter into diplomatic relations.
Recognized State acquires capacity to
2. Recognition of government may be sue in courts of recognizing State.
withheld from a succeeding 2. Immunity from jurisdiction of courts of
government brought about by violent law of recognizing State.
or unconstitutional means. 3. Entitled to receive and demand
possession of Properties situated within
Q: What are the requirements for recognition of the jurisdiction of the recognizing State
government? which are owned by recognized State.
4. Validity of the acts and decrees of
A: recognized state/ government
precluding courts of the recognizing
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state from passing judgment on the actual civil war within a
legality of the acts or decrees of the single state (2nd sense).
recognized state. Sanctions to insurgency Belligerency is governed
are governed by by the rules on
Q: What is belligerency? municipal law – Revised international law as the
Penal Code, i.e. belligerents may be
A: Belligerency exists when the inhabitants of a rebellion. given international
State rise up in arms for the purpose of personality.
overthrowing the legitimate government or when
there is a state of war between two states.
E. DIPLOMATIC AND CONSULAR LAW
Q: What are the requisites in recognizing
Belligerency? Q: Discuss the right of legation.

A: TWOS A: The exercise of the right of legation is one of
1. There must be an Organized civil the most effective ways of facilitating and
government directing the rebel forces. promoting intercourse among nations. Through
2. The rebels must occupy a substantial the active right of sending diplomatic
portion of the Territory of the state. representatives and the passive right of receiving
3. The conflict between the legitimate them, States are able to deal more directly and
government and the rebels must be closely with each other in the improvement of
Serious, making the outcome uncertain. their mutual intercourse.
4. The rebels must be willing and able to
observe the laws of War. Q: Is the State obliged to maintain diplomatic
relations with other States?
Q: What are the legal consequences of
belligerency? A: No, as the right of legation is purely
consensual. If it wants to, a State may shut itself
A: from the rest of the world, as Japan did until the
th
1. Before recognition, it is the legitimate close of the 19 century. However, a policy of
government that is responsible for the isolation would hinder the progress of a State
acts of the rebels affecting foreign since it would be denying itself of the many
nationals and their properties. Once benefits available from the international
recognition is given, responsibility is community.
shifted to the rebel government.
2. The legitimate government is bound to Q: Who are the agents of diplomatic intercourse?
observe the laws and customs of war in
conducting the hostilities. A:
3. From the viewpoint of third States, is to 1. Head of State
put them under obligation to observe 2. Foreign secretary or minister
strict neutrality and abide by the 3. Members of diplomatic service
consequences arising from that 4. Special diplomatic agents appointed by
position. head of the State
4. Recognition puts the rebels under 5. Envoys ceremonial
responsibility to third States and to the
legitimate government for all their acts Q: What is diplomatic corps?
which do not conform to the laws and
customs of war. A: It is a body consisting of the different
diplomatic representatives who have been
Q: Distinguish insurgency from belligerency. accredited to the same local or receiving State. It
is headed by a doyun de corps, who, by tradition,
A: is the oldest member within the highest rank or,
INSURGENCY BELLIGERENCY in Catholic countries, the papal nuncio.
A mere initial stage of More serious and
war. It involves a rebel widespread and Q: What are the functions of a diplomatic
movement, and is presupposes the mission?
usually not recognized. existence of war
between 2 or more A:
states (1st sense) or
237

1. Represent sending State in receiving 1. The inquiry, usually informal, addressed
State by the sending State to the receiving
2. Protect in receiving State interest of State regarding the acceptability of an
sending State and its nationals individual to be its chief of mission; and
3. Negotiate with government of receiving
State 2. The agreement, also informal, by which
4. Promote friendly relations between the receiving State indicates to the
sending and receiving States and sending state that such person, would
developing their economic, cultural, and be acceptable.
scientific relations
5. Ascertain by all lawful means conditions Q: What is a letter of credence?
and developments in receiving State
and reporting thereon to government of A: This is the document by which the envoy is
sending State accredited by the sending State to the foreign
6. In some cases, represent friendly State to which he is being sent. It designates his
governments at their request rank and the general object of his mission, and
asks that he be received favorably and that full
Q: What are the classes of heads of a diplomatic credence be given to what he says on behalf of his
mission? State.

A: Q: What is a letter patent?
1. Ambassadors or nuncios accredited to
Heads of State and other heads of A: The appointment of a consul is usually
missions of equivalent rank evidenced by a commission, known sometimes as
2. Envoys ministers and internuncios letter patent or letred’provision, issued by the
accredited to heads of State appointing authority of the sending State and
3. Charge d’ affaires accredited to transmitted to the receiving State through
ministers of foreign affairs diplomatic channels.

Q: Is the receiving State obliged to accept a Q: What are the privileges and immunities of
representative from another State? diplomatic representatives?
A:
A: No, the appointment of diplomats is not 1. Personal inviolability – members of
merely a matter of municipal law for the receiving diplomatic mission shall not be liable for
State is not obliged to accept a representative any form of arrest or imprisonment
who is a persona non grata to it. Indeed, there 2. Inviolability of premises – premises,
have been cases when duly accredited diplomatic furnishings and means of transport shall
representatives have been rejected, resulting in be immune from search, seizure,
strained relations between the sending and attachment or execution.
receiving State. 3. Archives or documents shall be
inviolable
Q: What does persona non grata mean? 4. Diplomatic agents are immune from
criminal, civil or administrative liability.
A: In international law and diplomatic usage, it 5. Receiving State shall protect official
means a person not acceptable (for reasons communication and official
peculiar to himself) to the court or government correspondence of diplomatic mission.
to, which it is proposed to accredit him in the 6. Receiving State shall ensure all
character of an ambassador or minister. members of diplomatic mission
freedom of movement and travel.
Q: What is agreation? 7. A diplomatic agent is exempted to give
evidence as a witness.
A:It is a practice of the States before appointing a 8. Exemption from general duties and
particular individual to be the chief of their taxes including custom duties with
diplomatic mission in order to avoid possible certain exceptions.
9. Use of flag and emblem of sending
embarrassment.
State on premises of receiving State.

It consists of two acts:
Q: What are the exceptions to the privileges and

238
POLITICAL LAW TEAM:
VILLAMOR.

immunities of diplomatic representatives? are connected with the performance of their duties.

A: Q: What are the grounds for termination of
1. Any real action relating to private diplomatic relations under municipal law?
immovables situated in the territory
receiving State unless the envoy holds A: RADAR
the property in behalf of the sending 1. Resignation
State 2. Accomplishment of the purpose
2. Actions relating to succession where 3. Death
diplomatic agent is involved as 4. Abolition of the office
executor, administrator, heirs or 5. Removal
legatee as a private person and not on
behalf of the sending State Q: What are the grounds for termination of
3. An action relating to any professional or diplomatic relation under international law?
commercial activity exercised by the
diplomatic agent in the receiving State A:
outside his official functions 1. War– outbreak between the sending
and the receiving States.
Q: Who may waive diplomatic immunity and 2. Extinction of either the sending State or
privileges? the receiving State.
3. Recall– demanded by the receiving
A: The waiver may be made expressly by the State when the foreign diplomat
sending State. It may also be done impliedly, as becomes persona non grata
when the person entitled to the immunity from
jurisdiction commences litigation in the local Q: Will the termination of diplomatic relations
courts and thereby opens himself to any also terminate consular relations between the
counterclaim directly connected with the principal sending and receiving States?
claim.
A: No. Consuls belong to a class of State agents
Note: Waiver of immunity from jurisdiction with distinct from that of diplomatic officers. They do
regard to civil and administrative proceedings shall not represent their State in its relations with
not be held to mean implied waiver of the immunity foreign States and are not intermediaries through
with respect to the execution of judgment, for which whom matters of State are discussed between
a separate waiver shall be necessary. governments.

Q: Is diplomatic immunity a political question? Consuls look mainly after the commercial interest
of their own State in the territory of a foreign
A: Diplomatic immunity is essentially a political State. They are not clothed with diplomatic
question and the courts should refuse to look character and are not accredited to the
beyond the determination by the executive government of the country where they exercised
branch. their consular functions; they deal directly with
local authorities.
Q: Who else besides the head of the mission are
entitled to diplomatic immunities and privileges? Q: What is the difference between diplomats
and consuls?
A: They are also enjoyed by the diplomatic suite
or retinue, which consists of the official and non‐ A: Diplomats are concerned with political
official staff of the mission. The official staff is relations of States while consuls are not
made up of the administrative and technical concerned with political matters. The latter
personnel of the mission, including those attend rather to administrative and economic
performing clerical work, and the member of their issues.
respective families. The non‐official staff is
composed of the household help, such as the Q: What are the two kinds of consul?
domestic servants, butlers, and cooks and
chauffeurs employed by the mission. A:
1. Consulesmissi – Professional or career
Note: As a rule, however, domestic servants enjoy consuls who are nationals of the sending
immunities and privileges only to the extent State and are required to devote their full
admitted by the receiving State and insofar as they time to the discharge of their duties.
239

2. Consuleselecti – May or may not be nationals 2. Exequatur – which is the permission given
of the sending State and perform their them by the receiving State to perform their
consular functions only in addition to their functions therein.
regular callings.
Q: Do consuls enjoy their own immunities and
Note: Examples of regular callings include acting as privileges?
notary, civil registrar and similar administrative
capacities and protecting and assisting the nationals A: Yes, but not to the same extent as those
of the sending State. enjoyed by the diplomats. Like diplomats, consuls
are entitled to:
Q: What are the ranks of consuls? 1. Inviolability of their correspondence,
archives and other documents
A: 2. Freedom of movement and travel
1. Consul‐general – Heads several consular 3. Immunity from jurisdiction for acts
districts, or one exceptionally large consular performed in their official capacity; and
district; 4. Exemption from certain taxes and
customs duties
2. Consul – Takes charge of a small district or
town or port; However, consuls are liable to:
1. Arrest and punishment for grave
3. Vice‐consul – Assist the consul; and offenses; and
2. May be required to give testimony,
4. Consular agent – Usually entrusted with the subject to certain exceptions.
performance of certain functions by the
consul. Note: Members of a consular post are under no
obligation to give evidence on the following
Q: What are the duties of consuls? situations:
a. Concerning matters connected with the
A: exercise of their functions
1. Protection of the interests of the sending b.To produce official correspondence and
State and its nationals in the receiving State. documents
c. To give evidence as expert witness with
2. Promotion of the commercial, economic, regard to the law of the sending State
cultural, and scientific relations of the
sending and receiving States. The consular offices are immune only:
1. With respect to that part where the

consular work is being performed; and
3. Observes the conditions and developments
2. May be expropriated by the receiving
in the receiving State and report the same to state for purposes of national defense or
the sending State. public utility.

4. Issuance of passports and other travel With respect to expropriation by the receiving State,
documents to nationals of the sending State steps shall be taken to avoid impeding the
and visas or appropriate documents to performance of consular functions, and prompt,
persons wishing to travel to the sending adequate and effective compensation shall be paid
State. by the sending State.

5. Supervision and inspection of vessels and Q: What are the differences between Diplomatic
aircraft of the sending State. Immunity and Consular Immunity?

Q: Where do consuls derive their authority? A:
DIPLOMATIC CONSULAR
A: Consuls derive their authority from two “Premises of the “Consular premises”
principal sources, to wit: mission” includes the includes the buildings or
building or parts of parts of buildings and
1. Letter patent or letter ‘de provision – which building and the land the land irrespective of
is the commission issued by the sending irrespective of the ownership used
State, and ownership used for the exclusively for the
purpose of the mission purposes of consular
including the residence posts
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POLITICAL LAW TEAM:
VILLAMOR.

of the head of mission A consular officer does not enjoy immunity from
GR: The agents of the GR: The agents of the the criminal jurisdiction of the receiving State and
receiving state may not receiving state may not are not amenable to the jurisdiction of the judicial
enter the premises of enter the consular or administrative authorities of the receiving
the mission premises State in respect of acts performed in the exercise
XPN: consent of the XPN: consent of the of consular functions.
head of the mission head of the consular
post However, this does not apply in respect of a civil
Consent is assumed in
action either:
case of fire or other
1. Arising out of a contract concluded by a
disasters requiring
consular officer in which he did not
prompt protective action
enter expressly or impliedly
Personal baggage of a Consular bag shall not
diplomatic agent shall be opened 2. By a third party for damages arising
not be opened It may be requested that from an accident in the receiving State
the bag be opened in caused by a vehicle, vessel or aircraft.
their presence by an (Article 41 and 43, Vienna Convention
authorized on the Consular Relations)
representative of the
receiving state if they Q: What are the grounds for termination of
have serious reason to consular office?
believe that the bag
contains objects of other A:
articles, documents, 1. Death
correspondence or 2. Recall
articles 3. Dismissal
Not obliged to give May be called upon to 4. Notification by the receiving State to
evidence as a witness attend as a witness; if the sending State that it has ceased to
declined, no coercive
consider as member of the consular
measure or penalty may
staff
be applied
5. Withdrawal of his exequatur by the

receiving State.
Q: Discuss the differences, if any, in the
6. War‐ outbreak of war between his
privileges or immunities of diplomatic envoys
home State and the receiving State.
and consular officers from the civil and criminal

jurisdiction of the receiving State.

f. TREATIES
A: A diplomatic agent shall enjoy immunity from

the criminal jurisdiction of the receiving State. He
shall also enjoy immunity from its civil and Q: What is a treaty?

administrative jurisdiction except in the case of:
A: It is an international agreement concluded
1. A real action relating to private
between States in written form and governed by
immovable property situated in the
international law, whether embodied in a single
territory of the receiving State, unless
instrument or in two or more related instruments
he holds it on behalf of the sending
and whatever its particular designation.
State for the purpose of the mission;

Q: What are the essential requisites of a valid
2. An action relating to succession in
which the diplomatic agent is involved treaty?
as executor, administrator, heir or
A: VACLA
legatee as private person and not on
1. Be entered into by parties with the
behalf of the sending State;
treaty‐making Capacity

2. Through their Authorized
3. An action relating to any professional or
representatives
commercial activity exercised by the
3. Without the attendance of duress,
diplomatic agent in the receiving State
fraud, mistake, or other Vice of consent
outside of his official functions. (Article
4. On any Lawful subject‐matter
32, Vienna Convention of Diplomatic
5. In accordance with their respective
Relations)
constitutional process

241

Q: What are the usual steps in the treaty‐making representative does not signify final consent, it is
process? ratification that binds the state to the provisions of
the treaty and renders it effective.
A:
1. Negotiation– conducted by the parties Senate is limited only to giving or withholding its
to reach an agreement on its terms. consent, concurrence to the ratification. It is within
2. Signature – the signing of the text of the the President to refuse to submit a treaty to the
Senate or having secured its consent for its
instrument agreed upon by the parties.
ratification, refuse to ratify it. Such decision is within
3. Ratification– the act by which the
the competence of the President alone, which
provisions of a treaty are formally cannot be encroached by this court via writ of
confirmed and approved by the State. mandamus. (Pimentel v. Executive Secretary, G.R. No.
4. Accession– a State can accede to a 158088, July 6, 2005)
treaty only if invited or permitted to do
so by the contracting parties. Such Q: Enumerate instances when a third State who
invitation or permission is usually given is a non‐signatory may be bound by a treaty.
in the accession clause of the treaty
itself. A:
5. Exchange of instruments of ratification; 1. When a treaty is a mere formal
6. Registration with the United Nations. expression of customary international
law, which, as such is enforceable on
Q: What is the Doctrine of Unequal Treaties? all civilized states because of their
membership in the family of nations.
A: It posits that treaties which have been imposed 2. Under Article 2 of its charter, the UN
through coercion or duress by a State of unequal shall ensure that non‐member States
character are void. act in accordance with the principles
of the Charter so far as may be
Q: What is a Protocol de Clôture? necessary for the maintenance of
international peace and security.
A: It is a final act and an instrument which records Under Article 103, obligations of
the winding up of the proceedings of a diplomatic member‐states shall prevail in case of
conference and usually includes a reproduction of conflict with any other international
the texts of treaties, conventions, agreement including those concluded
recommendations and other acts agreed upon with non‐members.
and signed by the plenipotentiaries attending the 3. The treaty itself may expressly extend
conference. its benefits to non‐signatory States.
4. Parties to apparently unrelated
Q: What is ratification? treaties may also be linked by the
most‐favored nation clause.
A: Ratification is the act by which the provisions
of a treaty are formally confirmed and approved Q: When does a treaty enter into force?
by a State. By ratifying a treaty signed in its
behalf, a State expresses its willingness to be A: A treaty enters into force in such manner and
bound by the provisions of such treaty. upon such date as it may provide or as the
negotiating States may agree. Failing any such
Note: A State may ratify a treaty only when it is a provision or agreement, a treaty enters into force
signatory to it. There is no moral duty on the part of as soon as consent to be bound by the treaty has
the States to ratify a treaty notwithstanding that its
been established for all the negotiating States.
plenipotentiaries have signed the same. This step,

however, should not be taken lightly. A treaty may
provide that it shall not be valid even if ratified but
Q: May a State invoke the fact that its consent to
shall be valid only after the exchange or deposit of the treaty was obtained in violation of its
ratification has transpired. internal law?

Note: It should be emphasized that under the A:
Constitution the power to ratify is vested in the GR: No.
President subject to the concurrence of the Senate.
The President has the discretion even after the XPN: If the violation was manifest and
signing of the treaty by the Philippine representative concerned a rule of its internal law of
whether or not to ratify a treaty. The signature of the fundamental importance.
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POLITICAL LAW TEAM:
VILLAMOR.

A:
Note: A violation is manifest if it would be 1. Treaty prevails if the treaty comes after
objectively evident to any State conducting itself in a particular custom, as between the
the matter in accordance with normal practice and in parties to the treaty,
good faith. 2. Customs prevails if the custom develops
after the treaty, it being an expression
Q: What is a reservation? When can it not be of a later will.
made?
Q: Distinguish a treaty from an executive
A: A reservation is a unilateral statement, agreement.
however phrased or named, made by a State,
when signing, ratifying, accepting, approving, or A:
acceding to a treaty, whereby it purports to 1. Treaties ‐ need concurrence of the
exclude or modify the legal effect of certain senate and involve basic political issues,
provisions of the treaty in their application to that changes in national policy and are
State. permanent international agreements.
2. Executive agreements ‐ need no
Reservations cannot be made if the treaty itself concurrence from the senate and are
provides that no reservation shall be admissible, just adjustments of details in carrying
or the treaty allows only specified reservations out well established national policies
which do not include the reservation in question, and are merely temporary
or the reservation is incompatible with the object arrangements.
and purpose of the treaty.
Q: Is VFA a treaty or a mere executive
Q: What are the effects of reservation and of agreement?
objections to reservations?
A: In the case of Bayan v. Zamora G.R No. 138570,
A: Oct. 10, 2000, VFA was considered a treaty
1. Modifies for the reserving State in its because the Senate concurred in via 2/3 votes of
relations with that other party the all its members. But in the point of view of the US
provisions of the treaty to which the Government, it is merely an executive agreement.
reservation relates to the extent of the
reservation; and Q: May a treaty be modified without the consent
2. Modifies those provisions to the same of all the parties?
extent for that other party in its
relations with the reserving State. A:
3. The reservation does not modify the GR: No
provisions of the treaty for the other
parties to the treaty inter se. XPN: If allowed by the treaty itself, two states
4. When a State objecting to a reservation may modify a provision only insofar as
has not opposed the entry into force of theories are concerned.
the treaty between itself and the
reserving State, the provisions to which Q: What are the grounds for invalidating a
the reservation relates do not apply as treaty?
between the two States to the extent of
the reservation. A:
1. Error
Q: Are treaties subject to judicial review? 2. Fraud
3. Corruption of a representative of a
A: Yes. Even after ratification, the Supreme Court State
has the power of judicial review over the 4. Coercion of a representative of a State
constitutionality of any treaty, international or 5. Coercion of a State by threat or use of
executive agreement and must hear such case en force
banc. 6. Violation of jus cogens norm

Q: In case of conflict between a treaty and a Q: What are the grounds for termination of a
custom, which would prevail? treaty?

243

A: 6. The change must be so Substantial that
1. Termination of the treaty or withdrawal the foundation of the treaty must have
of a party in accordance with the terms altogether disappeared
of the treaty.
2. Extinction of one of the parties to the Q: When can the principle of rebus sic stantibus
treaty. not be invoked as a ground for terminating or
3. Mutual agreement of all the parties to withdrawing from a treaty?
terminate the treaty.
4. Denunciation of the treaty by one of the A:
parties. 1. If the treaty establishes a boundary; or
5. Supervening impossibility of 2. If the fundamental change is the result of a
performance. breach by the party invoking it of an obligation
6. Conclusion of a subsequent treaty under the treaty or of any other obligation
inconsistent between the same parties. owed to any other party to the treaty.
7. Violation of the treaty by one of the
parties. Q: What is the “clean slate” rule?
8. Doctrine of rebus sic stantibus
9. Outbreak of war between the parties A: When one State ceases to exist and is
to the treaty. succeeded by another on the same territory, the
10. Severance of diplomatic or consular newly independent State is not bound to maintain
relations in force, or to become a party to, any treaty by
11. The emergence of new peremptory reason only of the fact that at the date of the
norm of general international law succession of States the treaty was in force in
renders void and terminates any respect of the territory to which the succession of
existing treaty in conflict with such States relates.
norm.
Q: What are the exceptions to the “clean slate”
Q: What is the doctrine of rebus sic stantibus? rule?

A: It states that a fundamental change of A:
circumstances which determined the parties to 1. When the new State agrees to be
accept a treaty, if it has resulted in a radical bound by the treaties made by its
transformation of the extent of the obligations predecessor;
imposed by it, may under certain conditions, 2. Treaties affecting boundary regime
afford the party affected a ground to invoke the (utipossidetis)
termination of the treaty. The change must have
increased the burden of the obligations to be Q: What is the most‐favored‐nation clause?
executed to the extent of rendering performance
essentially different from the original intention. A: It may be defined in general, as a pledge by a
contracting party to a treaty to grant to the other
Q: What are the requisites of rebus sic party treatment not less favorable than that
stantibus? which has been or may be granted to the “most
favored” among other countries.
A: PRUTIS
1. The change must not have been caused Q: Can the House of Representatives take active
by the Party invoking the doctrine part in the conduct of foreign relations,
2. The doctrine cannot operate particularly in entering into treaties and
Retroactively, i.e., it must not adversely international agreements?
affect provisions which have already
been complied with prior to the vital A: No. As held in US v. Curtiss Wright Export
change in the situation Corporation 299 US 304, it is the President alone
3. The change must have been Unforeseen who can act as representative of the nation in the
or unforeseeable at the time of the conduct of foreign affairs. Although the Senate
perfection of the treaty has the power to concur in treaties, the President
4. The doctrine must be invoked within a alone can negotiate treaties and Congress is
reasonable Time powerless to intrude into this. However, if the
5. The duration of the treaty must be matter involves a treaty or an executive
Indefinite agreement, the HR may pass a resolution
244
POLITICAL LAW TEAM:
VILLAMOR.

expressing its views on the matter.
2. De Facto Stateless persons ‐ those who
Q: If a treaty is not in writing, may it still be possess a nationality whose country does not
considered as such? give them protection outside their own
country and who are commonly referred to
A: Yes. Oral agreements between States are as refugees. (Frivaldo v. COMELEC, G.R. No.
recognized as treaties under customary 123755, June 28, 1996)
international law.
Q: What are the consequences of statelessness?
Q: In case of conflict between a treaty and a
statute, which would prevail? A:
1. No State can intervene or complain in behalf
A: In case of conflict, the courts should harmonize of the Stateless person for an international
both laws first and if there exists an unavoidable delinquency committed by another State in
contradiction between them, the principle of lex inflicting injury upon him
posterior derogat priori ‐ a treaty may repeal a 2. He cannot be expelled by the State if he is
statute and a statute may repeal a treaty ‐ will lawfully in its territory except on grounds of
apply. The later one prevails. In our jurisdiction, national security or public order
treaties entered into by the executive are ratified
by the Senate and takes the form of a statute. 3. He cannot avail himself of the protection and
benefits of citizenship like securing for
himself a passport or visa and personal
g. NATIONALITY AND STATELESSNESS documents

Q: What is nationality? Q: What is the doctrine of indelible allegiance?

A: It is membership in a political community with A: An individual may be compelled to retain his
all its concomitant rights and obligations. It is the original nationality nothwithstanding that he has
tie that binds the individual to his State, from already renounced it under the law of another
which he can claim protection and whose laws he State whose nationality he has acquired.
is obliged to obey.
Q: What is the Doctrine of Effective Nationality?
Q: What is citizenship?
A: A person having more than one nationality
A: It has more exclusive meaning in that it applies shall be treated as if he had only one – either the
only to certain members of the State accorded nationality of the country in which he is habitually
more privileges than the rest of the people who and principally resident or the nationality of the
owe it allegiance. Its significance is municipal, not country with which in the circumstances he
international. appears to be in fact most closely connected.

Q: What is multiple nationality? Q: Is a Stateless person entirely without right,
protection or recourse under the Law of
A:It is the possession by an individual of more Nations?
than one nationality. It is acquired as the result of
the concurrent application to him of the A: No. Under the Convention in Relation to the
conflicting municipal laws of two or more States Status of Stateless Persons, the contracting States
claiming him as their national. agree to accord the stateless persons within their
territories treatment at least as favorable as that
Q: What is statelessness? What are the kinds of accorded their nationals with respect to:
statelessness? 1. Freedom of religion
2. Access to the courts
A: It is the condition or status of an individual 3. Rationing of products in short supply
who is either: 4. Elementary education
5. Public relief and assistance
1. De Jure Stateless persons ‐ stripped of their 6. Labor legislation
nationality by their former government and 7. Social Security
without having an opportunity to acquire
another Note: They also agree to accord them treatment not
245

less favorable than that accorded to aliens generally Responsibility?
in the same circumstances. The Convention also
provides for the issuance of identity papers and A:
travel documents to the Stateless persons. 1. Direct State responsibility – Where the
international delinquency was
Q: What measures has international law taken to committed by superior government
prevent Statelessness? officials or organs like the chief of State
or the national legislature, liability will
A: In the Convention on the Conflict of Nationality attach immediately as their acts may
Laws of 1930, the Contracting States agree to not be effectively prevented or
accord nationality to persons born in their reversed under the constitution or laws
territory who would otherwise be stateless. The of the State.
Convention on the Reduction of Statelessness of
1961 provides that if the law of the contracting 2. Indirect State responsibility – Where the
States results in the loss of nationality, as a offense is committed by inferior
consequence of marriage or termination of government officials or by private
marriage, such loss must be conditional upon individuals. The State will be held liable
possession or acquisition of another nationality. only if, by reason of its indifference in
preventing or punishing it, it can be
Q: What is the Doctrine of Genuine Link? considered to have connived in
effecting its commission.
A: It states that the bond of nationality must be
real and effective in order that a State may claim a Q: What are the elements of an internationally
person as its national for the purpose of affording wrongful act?
him diplomatic protection.
A:
1. Act or omission is attributable to the
h. TREATMENT OF ALIENS State under international law; and
2. Constitutes a breach of an international
Q: What is the Doctrine of State Responsibility? obligation of the State

A: A State may be held responsible for an Note: Every internationally wrongful act of a State
international delinquency directly or indirectly entails the international responsibility of that State.
imputable to it which causes injury to the national
of another State. Liability will attach to the State Q: What are the acts/situations which are
where its treatment of the alien falls below the attributable to the State?
international standard of justice or where it is
remiss in according him the protection or redress A:
that is warranted by the circumstances. 1. Acts of the State organs – acts of State
organs in their capacity provided by law
Q: What are the requisites for the enforcement or under instructions of superiors
of the doctrine of State Responsibility? 2. Acts of other persons – If the group of
persons was in fact exercising elements
A: of the governmental authority in the
1. The injured alien must first exhaust all absence or default of the official
local remedies; and authorities and circumstances such as
2. He must be represented in the to call for the exercise of those
international claim for damages by his elements of authority.
own State 3. Acts of revolutionaries – conduct of an
insurrectional movement which
Q: What are the elements of State becomes the new government of a
Responsibility? State or part of a State.

A: Q: What is the theory of Objective or Strict
1. Breach of an international obligation Liability with respect to state responsibility?
2. Attributability
A: It provides that fault is unnecessary for State
Q: What are the two kinds of State responsibility to be incurred. Its requisites are:
246
POLITICAL LAW TEAM:
VILLAMOR.

1. Agency Q: When may a State exercise diplomatic
2. Casual connection between the breach protection?
and the act or omission imputable to
the State. A: When a State admits into its territory foreign
investments or foreign nationals, whether natural
Q: What are the reliefs available where a State is or juristic persons, it is bound to extend to them
liable for an internationally wrongful act? the protection of the law and assumes obligations
concerning the treatment to be afforded to them.
A: These obligations however, are neither absolute
1. Declaratory relief – declaration by a nor unqualified. An essential distinction should be
court that as to the illegality of an act drawn between the obligations of the State
constitutes a measure of satisfaction or towards the international community as a whole,
reparation in the broad sense. and those vis‐à‐vis another State in the field of
their diplomatic protection.
Note: This is available when this is, or the
parties deem this, the proper way to deal By their very nature the former are the concern of
with a dispute or when the object “is not all States. All States can be held to have a legal
to give satisfaction for the wrong interest in their protection; they are obligations
received.” erga omnes. Obligations the performance of
which is the subject of diplomatic protection are
2. Satisfaction – a measure other than not of the same category. It cannot be held, when
restitution or compensation which an one such obligation in particular is in question, in
offending State is bound to take. a specific case, that all States have a legal interest
in its observance. (Case Concerning Barcelona
Its object is often either: Traction, Light and Power Company, Limited, Feb.
5, 1970)
a. An apology and other
acknowledgment of wrongdoing Q: How should States treat aliens within their
b. Punishment of individuals territory?
concerned
c. Taking of measures to prevent a A: The standards to be used are the following:
recurrence
1. National treatment/ equality of treatment
3. Restitution – involves wiping out all the – Aliens are treated in the same manner as
consequences of the breach and re‐ nationals of the State where they reside
establishing the situation which would
probably have existed had the act not 2. Minimum international standard –
been committed. However harsh the municipal laws might be,
against a State’s own citizens, aliens should
4. Compensation – payment of money as a be protected by certain minimum standards
valuation of the wrong done. of humane protection.

Note: The compensation must correspond Note: States protect aliens within their jurisdiction in
to the value which restitution in kind the expectation that their own nationals will be
would bear; the award of damages for loss properly treated when residing or sojourning abroad.
sustained which would not be covered by
restitution in kind or payment in place of Q: Explain the Right of Asylum in international
it. law.

Q: What is the difference between pecuniary A: The right of asylum is the competence of every
satisfaction and compensation? State inferred from its territorial supremacy to
allow a prosecuted alien to enter and to remain
A: on its territory under its protection and thereby
PECUNIARY COMPENSATION
grant asylum to him.
SATISFACTION

A token of regret and To make up for or repair
Q: Who is a refugee?
acknowledgment of the damage done.

wrongdoing (“monetary
sorry”) A: Any person who is outside the country of his
nationality or the country of his former habitual
247

residence because he has or had well founded of the State of origin local State
fear of persecution by reason of his race, religion, Based on offenses Based on causes arising
nationality, membership of a political group or committed in the State in the local State
political opinion and is unable or, because of such of origin
fear, is unwilling to avail himself of the protection Calls of the return of the Undesirable alien may
of the government of the country of his fugitive to the State or be deported to a State
nationality, or, if he has no nationality, to return to origin other than his own or
the country of his former habitual residence. the State of origin (1995
Bar Question)

Q: What are the elements before one may be
considered as a refugee?
Q: What is the basis of extradition?
A:
1. The person is outside the country of his A: The extradition of a person is required only if
nationality, or in the case of Stateless there is a treaty between the State of refuge and
persons, outside the country of habitual the State of origin. As a gesture of comity,
residence; however, a State may extradite anyone.
2. The person lacks national protection; Furthermore, even with a treaty, crimes which are
3. The person fears persecution in his own political in character are exempted.
country.
Q: What are the fundamental principles
Note: The second element makes, a refugee a governing extradition?
Stateless person. Because a refugee approximates a
Stateless person, he can be compared to a vessel on A:
the open sea not sailing under the flag of any State, 1. Based on the consent of the State
or be called flo tsam and res nullius. Only a person expressed in a treaty
who is granted asylum by another State can apply for 2. Principle of Specialty – a fugitive who is
refugee status; thus the refugee treaties imply the extradited may be tried only for the
principle of asylum. crime specified in the request for
extradition and included in the list of
Q: What is the difference between refugees and offenses in the extradition treaty
internally displaced person? 3. Any person may be extradited, whether
he be a national of the requesting State,
A: Refugees are people who have fled their of the State of refuge or of another
countries while internally displaced persons are State. He need not be a citizen of the
those who have not left their country’s territory requesting State
4. Political or religious offenders are
Q: What is the Principle of Non‐Refoulment? generally not subject to extradition.

A: It posits that a State may not deport or expel Note: Attentant clause is a provision in an
refugees to the frontiers of territories where their extradition treaty which states that the
life or freedom would be put in danger or at risk. murder or assassination of the head of a
state or any member of his family will not
be considered as a political offense and
1. Extradition therefore extraditable.

Q: What is extradition? 5. The offense must have been committed
within the territory of the requesting
A: It is the right of a foreign power, created by State or against its interest
treaty, to demand the surrender of one accused 6. Double Criminality Rule – The act for
or convicted of a crime within its territorial which the extradition is sought must be
jurisdiction, and the correlative duty of the other punishable in both States
State to surrender
Q: What does the Principle of Dual Criminality
Q: Distinguish extradition from deportation. mean in extradition?
A:
Extradition Deportation A: Under the principle of double or dual
Effected at the request Unilateral act of the criminality, the crime must be punishable in both
the requesting and requested States to make it
248
POLITICAL LAW TEAM:
VILLAMOR.

extraditable. 6. Hearing (provide counsel de officio if
necessary);
Q: What does the Principle of Specialty mean in
extradition? 7. Appeal to CA within ten days whose
decision shall be final and executory;
A: Under the principle of specialty in extradition,
a person cannot be tried for an offense not 8. Decision forwarded to DFA through the
included in the list of extraditable offenses in the DOJ;
extradition treaty between the requesting and the
requested States, unless the requested State does 9. Individual placed at the disposal of the
not object to the trial of such person for the authorities of requesting State – costs
unlisted offense. and expenses to be shouldered by
requesting State.
Q: What is the procedure for extradition when a
foreign State requests from the Philippines? Q: Should the judge inform the potential
extraditee of the pending petition for extradition
A: prior to the issuance of warrant of arrest?
1. File/issue request through diplomatic
representative with: A: No. Prior to the issuance of the warrant, the
a. Decision of conviction judge must not inform or notify the potential
b. Criminal charge and warrant of extraditee of the pendency of the petition, lest
arrest the latter be given the opportunity to escape and
c. Recital of facts frustrate the proceedings. The foregoing
d. Text of applicable law designating procedure will “best serve the ends of justice” in
the offense extradition cases.
e. Pertinent papers
Q: Can a State compel another State to extradite
2. DFA forwards request to DOJ a criminal without going through the legal
process?
3. DOJ files petition for extradition with
RTC A: No.

4. Upon receipt of a petition for Q: Is an extradition proceeding a criminal
extradition and its supporting proceeding?
documents, the judge must study them
and make, as soon as possible, a prima A: No. Extradition is not a criminal proceeding
facie finding whether (a) they are which will call into operation all the rights of an
sufficient in form and substance, (b) accused provided in the bill of rights.
they show compliance with the
Extradition Treaty and Law, and (c) the Q: Is a petition for bail valid in extradition cases?
person sought is extraditable. At his
discretion, the judge may require the A: Yes. The Philippines, along with other members
submission of further documentation or of the family of nations, committed to uphold the
may personally examine the affiants fundamental human rights as well as value the
and witnesses of the petitioner. If, in worth and dignity of every person. The
spite of this study and examination, no commitment is enshrined in Section 11, Article II
prima facie finding is possible, the of our Constitution which provides: “The State
petition may be dismissed at the values the dignity of every human person and
discretion of the judge. guaranteed full respect for human rights.” The
Philippines, therefore, has the responsibility of
5. On the other hand, if the presence of a protecting and promoting the right of every
prima facie case is determined, then the person to liberty and due process, ensuring that
magistrate must immediately issue a those detained or arrested can participate in the
warrant for the arrest of the extraditee, proceedings before a court, to enable it to decide
who is at the same time summoned to without delay on the legality of the detention and
answer the petition and to appear at order their release if justified. In other words, the
scheduled summary hearings. Philippine authorities are under obligation to
make available to every person under detention
249

such remedies which safeguard their fundamental 3. Third generation: Right to development,
right to liberty. These remedies include the right right to peace and right to environment
to be admitted to bail. (Government of Hong Kong
Special Administrative Region, represented by the Q: How are human rights classified?
Philippine Department of Justice v. Olalia, Jr., G.R.
No. 153675, April 19, 2007) A:
1. Individual rights
Q: What are the rights of a person arrested and 2. Collective rights (right to self‐
detained in another State? determination of people; the permanent
sovereignty over natural resources)
A:
1. Right to have his request complied with Q: What are the three main instruments of
by the receiving State to so inform the human rights?
consular post of his condition
A:
2. Right to have his communication 1. United Declaration of Human Rights
addressed to the consular post 2. The International Covenant on
forwarded by the receiving State Economic, Social and Cultural Rights
accordingly 3. International Covenant on Civil and
Political Rights
3. Right to be informed by the competent
authorities of the receiving without Q: What are the rights guaranteed in the
delay his rights as mentioned above International Covenant on Economic, Social and
Cultural Rights?
Q: Is the retroactive application of the
extradition treaty amounting to an ex post facto A: Right to:
law? 1. Self‐determination
2. Work and accompanying rights
A: No. In Wright v. Court of Appeals, G.R. 3. Social Security and other Social rights
No.113213, August 15,1994, it was held that the 4. Adequate Standards of living
retroactive application of the Treaty of 5. Physical and Mental Health
Extradition does not violate the prohibition 6. Education
against ex post facto laws, because the Treaty is 7. Take part in cultural life
neither a piece of criminal legislation nor a 8. Enjoy the benefits of scientific progress
criminal procedural statute. It merely provided and applications
for the extradition of persons wanted for
offenses already committed at the time the Q: What are the rights guaranteed in the
treaty was ratified. International Covenant on Civil and Political
rights?

i. INTERNATIONAL HUMAN RIGHTS LAW A:
1. Right to self‐determination
Q: What are human rights? 2. Right to an effective remedy
3. Equal right of men and women to the
A: Those liberties, immunities and benefits, which enjoyment of all the civil and political
all human beings should be able to claim “as a rights
right of the society in which they live – Louis 4. Right to life
Henkin 5. Not to be subjected to torture or to
cruel, inhuman or degrading treatment
Q: How are the international human rights or punishment. In particular, freedom
divided? from medical or scientific
experimentation except with his
A: The said rights are divided into 3 generations, consent
namely: 6. Freedom from slavery and servitude
1. First generation: civil and political rights 7. Right to liberty and security of person
2. Second generation: economic, social 8. Right to be treated with humanity and
and cultural rights with respect for the inherent dignity of
the human person
250
POLITICAL LAW TEAM:
VILLAMOR.

9. No imprisonment on the ground of
inability to fulfill a contractual A: It is any act by which severe pain or suffering,
obligation whether physical or mental, is intentionally
10. Right to liberty of movement and inflicted on a person for such purposes as
freedom to choose his residence obtaining from him or a third person, information
11. Right to a fair and public hearing by a or a confession, punishing him for an act he or a
competent, independent and impartial third person has committed or is suspected of
tribunal established by law having committed, or intimidating or coercing him
12. No one shall be held guilty of an or a third person, or for any reason based on
criminal offense on account of any act discrimination of any kind, when such pain or
or omission which did not constitute a suffering is inflicted by or at the instigation of or
criminal office, under national or with the consent or acquiescence of a public
international law, at the time when it official or other person acting in an official
was committed capacity. (United Nations Convention against
13. Right to recognition everywhere as a Torture and Other Cruel, Inhuman or Degrading
person before the law Treatment or Punishment/UNCTO effective June
14. Right to privacy 26, 1987)
15. Right to freedom of thought, conscience
and religion Q: What does it not include?
16. Right to freedom of expressions
17. Right of peaceful assembly A: It does not include pain or suffering arising only
18. Right of freedom of association from, inherent in or incidental to lawful sanctions.
19. Right to marry and to found a family
20. Right to such measures of protection as Q: What are the obligations of the State Parties
are required by his status as a minor, in the UNCTO?
name and nationality
21. Right to participation, suffrage and A:
access to public service 1. No exceptional circumstances
22. Right to equal protection of the law whatsoever, whether a state of war or a
23. Right of minorities to enjoy their own threat or war, internal political
culture, to profess and practice their instability or any other public
religion and to use their own language. emergency or any order from a superior
officer or a public authority may be
Q: May parties derogate from their obligations? invoked as a justification of torture.
2. No State party shall expel, return
A: (“refouler”) or extradite a person to
GR: In times of public emergency which another State where there are
threatens the life of the nation and the substantial grounds for believing that
existence of which is officially proclaimed, he would be in danger of being
parties may take measures to derogate from subjected to torture.
their obligations to the extent strictly required 3. All acts of torture are offenses under a
by the exigencies of the situation. State Party’s criminal law.
4. State Parties shall afford the greatest
XPN: There can be no derogation from the measure of assistance in connection
following: with civil proceedings brought in
1. Right to life respect of any of the offences
2. Freedom from torture or cruel, 5. To ensure that education and
inhuman or degrading punishment information regarding the prohibition
3. Freedom from slavery against torture are fully included on
4. Freedom from imprisonment for failure persons involved in the custody,
to fulfill a contractual obligation interrogation or treatment of any
5. Freedom from ex post fact laws individual subject to any form of arrest,
6. Right to recognition everywhere as a detention, or imprisonment.
person before the law 6. To keep under systematic review
7. Freedom of thought, conscience and interrogation rules, instructions,
religion methods and practices as well as
arrangements for the custody and
Q: What is torture? treatment of persons subjected to any
251

form of arrest, detention or j. INTERNATIONAL HUMANITARIAN LAW (IHL)
imprisonment in any territory under its AND NEUTRALITY
jurisdiction, with a view to preventing
any case of torture. Q: What is International Humanitarian Law
7. To ensure a prompt and impartial (IHL)?
investigation wherever there is

reasonable ground to believe that an
act of torture has been committed A: It is the branch of PIL which governs armed
8. To ensure that an individual subjected conflicts to the end that the use of violence is
to torture has the right complain and limited and that human suffering is mitigated or
have his case promptly and impartially reduced by regulating or limiting the means of
examined by competent authorities military operations and by protecting persons
9. To ensure that the victim obtains
who do not or no longer participate in hostilities.
redress and has an enforceable right to
fair and adequate compensation It is also known as the law of armed conflict or
10. To ensure that any statement the law of war.
established to have been made as a
result of torture shall not be invoked as Q: What are the two branches of IHL?
evidence in any proceedings, except
against a person accused of torture as A:
evidence that the statement was made.
1. Law of Geneva – designed to safeguard
11. To prevent in any territory under its
military personnel who are no longer
jurisdiction other acts of cruel, inhuman
taking part in the fighting and people
or degrading treatment or punishment
not actively.
which do not amount to torture when
2. Law of the Hague – establishes the
such acts are committed by or at the
rights and obligations of belligerents in
instigation of or with the consent of
the conduct of military operations, and
acquiescence of a public official or
limits the means of harming the enemy.
other person acting in an official

capacity.
Q: What is war?
Q: When may a state party establish its
jurisdiction over offenses regarding torture? A: It is contention between two States, through
their armed forces, for the purpose of
A: overpowering the other and imposing such
1. When the offenses are committed in conditions of peace as the victor pleases.
any territory under its jurisdiction or on

board a ship or aircraft registered in the
State; Q: What are the two categories of the Laws of
2. When the alleged offender is a national war?
of that State;
3. When the victim was a national of that A: The two categories are:
State if that State considers it 1. Jus in bello – also known as the law of
appropriate; war. The provisions of international
4. Where the alleged offender is present humanitarian law apply to the warring
in any territory under its jurisdiction parties irrespective of the reasons for
and it does not extradite him. the conflict and whether or not the
cause upheld by either party is just. It
Note: Nos. 1 to 3 are considered as extraditable regulates only those aspects of
offences. In the absence of an extradition treaty, the
international law, which are of
UNCTO may be considered as the legal basis for
humanitarian concern.
extradition. Such offenses shall be treated, for the
2. Jus ad bellum or jus contra bellum ‐
purpose of extradition, as if they have been
committed not only in the place in which they known as the law on the use of force or
occurred but also in the territories of the State law on the prevention of war. The
required to establish their jurisdiction. application of humanitarian law does
not involve the denunciation of guilty
parties as that would be bound to
arouse controversy and not paralyze
252
POLITICAL LAW TEAM:
VILLAMOR.

implementation of the law, since each outbreak of the hostilities is with
adversary would claim to be a victim of certain exceptions, subject to
aggression. IHL is intended to protect confiscation.
war victims and their fundamental
rights, no matter to which party they Note: An army of occupation can only take
belong. possession of the cash, funds, and property liable to
requisition belonging strictly to the State, depots of
Q: Is the UN Charter committed to the outlawing arms, means of transport, stores and supplies, and,
of war? generally, all movable property of the State which
may be used for military operations. (Article 53,
A: Yes. Under the UN Charter, the use of force is Laws and Customs of War on Land (Hague II), July
allowed only in two instances, to wit, in the 29, 1899)
exercise of the inherent right of self‐defense and
in pursuance of the so‐called enforcement action Q: What are the tests in determining the enemy
that may be decreed by the Security Council. character of individuals?

Q: How is war commenced? A:
1. Nationality test – If they are nationals of
A: With the: the other belligerent, wherever they
may be.
1. Declaration of war
2. Domiciliary test – If they are domiciled
2. Rejection of an ultimatum
aliens in the territory of the other
3. Commission of an act of force regarded
belligerent, on the assumption that they
by at least one of the parties as an act
contribute to its economic resources.
of war.
3. Activities test – If, being foreigners, they

nevertheless participate in the
Q: What is a declaration of war? hostilities in favor of the other
belligerent.
A: A communication by one State to another
informing the latter that the condition of peace Q: What is the Principle of Distinction?
between them has come to an end and a
condition of war has taken place. A: Parties to an armed conflict must at all times
distinguish between civilian and military targets
Q: What is an ultimatum? and that all military operations should only be
directed at military targets.
A: A written communication by one State to
another which formulates, finally and Q: Who are the participants in war?
categorically, the demands to be fulfilled if
forcible measures are to be averted. A:
1. Combatants ‐ those who engage
Q: What are the effects of the outbreak of war? directly in the hostilities, and
2. Non‐combatants ‐ those who do not,
such as women and children.
A:

1. Laws of peace are superseded by the
Q: Who are regarded as combatants?
laws of war.
2. Diplomatic and consular relations
between the belligerents are A:
terminated. 1. Members of the armed forces except
3. Treaties of political nature are those not actively engaged in combat
automatically cancelled, but those 2. The irregular forces, such as the
which are precisely intended to operate guerrillas, provided that:
during war such as one regulating the a. They are commanded by a person
conduct of hostilities, are activated. responsible for his subordinates
4. Enemy public property found in the b. They wear a fixed distinctive sign
territory of other belligerent at the c. They carry arms openly; and
253

d. They conduct their operations in 4. The complete submission and
accordance with the laws and subjugation of one of the belligerents
customs of war.
3. Levee en Masse –the inhabitants of Q: What is Postliminium?
unoccupied territory who, on approach
or the enemy, spontaneously take arms
A: The revival or reversion to the old laws and
to resist the invading troops without
having had time to organize sovereignty of territory which has been under
themselves, provided only that they belligerent occupation once control of the
carry arms openly and observe the laws belligerent occupant is lost over the territory
and customs of war. affected.
4. The officers and crew members of
merchant vessels who forcibly resist Q: When is the Principle of Postliminium
attack.
applied?

Q: What are armed forces as defined under R.A.
A: Where the territory of one belligerent State is
9851?
occupied by the enemy during war, the legitimate

government is ousted from authority. When the
A: These are all organized armed forces, groups
belligerent occupation ceases to be effective, the
and units that belong to a party to an armed
authority of the legitimate government is
conflict which are under a command responsible
automatically restored, together with all its laws,
to that party for the conduct of its subordinates.
by virtue of the jus postliminium. (1979 Bar

Question)
Q: What are the basic principles that underlie

the rules of warfare?
Q: What is the Principle of Utipossidetis?

A:
A: Allows retention of property or territory in the
1. The principle of military necessity – The
belligerent may employ any amount of belligerent’s actual possession at the time of the
force to compel the complete cessation of hostilitites.
submission of the enemy with the least
possible loss of lives, time and money. Q: What is status quo ante bellum?

Note: Under R.A. 9851, it is the necessity A: Each of the belligerents is entitled to the
of employing measures which are territory and property which it had possession of
indispensible to achieve a legitimate aim
at the commencement of the war.
of the conflict and not prohibited by IHL

Q: What are the “new” conflicts covered by the
2. The principle of humanity – Prohibits
IHL?
the use of any measure that is not
absolutely necessary for the purpose of
the war, such as the poisoning of wells. A:
1. Anarchic conflicts – It is a situation
3. The principle of chivalry – Prohibits the where armed groups take advantage of
belligerents from the employment of the weakening or breakdown of the
treacherous methods, such as the illegal State structures in an attempt to grab
use of Red Cross emblems. power.
2. Those in which group identity becomes
Q: How may war be terminated? a focal point – These groups exclude the
adversary through “ethnic cleansing”
which consists in forcibly displacing or
A: By:
even exterminating populations. This
1. Simple cessation of hostilities, without strengthens group feeling to the
the conclusion of a formal treaty detriment of the existing national
2. Treaty of peace
3. Unilateral declaration
254
POLITICAL LAW TEAM:
VILLAMOR.

identity, ruling out any possibility of humanitarian rules. It’s role is to enhance the
coexistence with other groups. effectiveness of the UN
human rights machinery
Q: Differentiate (IHL) from Human Rights Law. and to build up national,
regional and
A: international capacity to
INTERNATIONAL promote and protect
HUMAN RIGHTS LAW
HUMANITARIAN LAW human rights and to
Protects the individual at disseminate human
Applies in situations of rights texts and
all times in war and
armed conflict. information. Human
peace alike.
No derogations are Some human rights rights treaties also
permitted under IHL treaties permit provide for the
because it was governments to establishment of
conceived for derogate from certain committees of
emergency situations, rights in situations of independent experts
namely armed conflict. public emergency. charged with monitoring
Tailored primarily for their implementation.
peacetime, and applies Certain regional treaties
Aims to protect people (European and
to everyone. Their
who do not or are no American) also establish
principal goal is to
longer taking part in human rights courts.
protect individuals from
hostilities. The rules
arbitrary behavior by
embodied in IHL impose Note: IHL and international human rights law
their own governments.
duties on all parties to a (hereafter referred to as human rights) are
Human rights law does
conflict. complementary. Both strive to protect the lives,
not deal with the
conduct of hostilities. health and dignity of individuals, albeit from a
Humanitarian law different angle.
obliges States to take
States are bound by Q: What is R.A. 9851?
practical and legal
human rights law to
measures, such as
accord national law with
enacting penal A: R.A. 9851 is the Philippine Act on Crimes
international obligations.
legislation and Against International Humanitarian Law,
disseminating IHL. Genocide and other Crimes Against Humanity. Its
Provide for several Implementing State policies include:
specific mechanisms mechanisms are complex
that help its and, contrary to IHL 1. The renunciation of war and adherence
implementation. include regional systems. to a policy of peace, equality, justice,
Notably, States are Supervisory bodies, e.g. freedom, cooperation and amity with all
required to ensure the UN Commission on nations.
respect also by other Human Rights (UNCHR), 2. Values the dignity of every human
States. Provision is also are either based on the person and guarantees full respect of
made for inquiry UN Charter or provided human rights
3. Promotion of Children as zones of
procedure, a Protecting for in specific treaties.
peace
Power mechanism, and
4. Adoption of the generally accepted
the International Fact‐ The UNCHR have
principles of international law
Finding Commission. In developed a mechanism 5. Punishment of the most serious crimes
addition, the of special rapporteurs of concern to the international
International and working groups, community
Committee of the Red whose task is to monitor 6. To ensure persons accused of
Cross (ICRC ) is given a and report on human committing grave crimes under
key role in ensuring rights situations either international law all rights for a fair and
respect for the by country or by topic. strict trial in accordance with national
and international law as well as
255

accessible and gender‐sensitive avenues Conventions of August 12, 1949, namely
of redress for victims of armed conflicts any of the following acts against
persons or property protected:
The application of the provisions of this Act shall a. Willful killing
not affect the legal status of the parties to a b. Torture or inhuman treatment,
including biological experiments
conflict, nor give an implied recognition of the
c. Willfully causing great suffering, or
status of belligerency. serious injury to body or health
d. Extensive destruction and
Q: What is the effect /relevance of the passage appropriation of property not
of R.A. 9851? justified by military necessity and
carried out unlawfully and
A: R.A. 9851 mandates both the State and non‐ wantonly
e. Willfully depriving a prisoner of
state armed groups to observe international
war or other protected person of
humanitarian law standards and gives the victims the rights of fair and regular trial
of war‐crimes, genocide and crimes against f. Arbitrary deportation or forcible
humanity legal recourse transfer of population or unlawful
confinement
Q: What is an “attack directed against any g. Taking hostages
civilian population”? h. Compelling a prisoner of war or
other protected person to serve in

the forces of a hostile power; and
A: It means a course of conduct involving the i. Unjustifiable delay in the
multiple commission of acts referred to in other repatriation of prisoners of war or
crimes against humanity against any civilian other protected persons.
population, pursuant to or in furtherance of a
State or organizational policy to commit such 2. In case of non‐international armed
conflict, serious violation of common
attack.
Article 3 to the four Geneva
Conventions of 12 August 1949, namely
Q: What is genocide? any of the following acts committed
A: against persons taking no active part in
1. Any of the following acts with intent to the hostilities, including members of the
destroy, in whole or in part, a national, armed forces who have laid down their
ethnic, racial, religious, social or any arms and those placed hors de combat
other similar stable and permanent by sickness, wounds, detention or any
group such as: other cause:
a. Killing of members of the group a. Violence to life and person, in
b. Causing serious bodily or mental particular, willful killings,
harm to members of the group mutilation, cruel treatment and
c. Deliberately inflicting on the group torture
conditions of life calculated to b. Committing outrages upon
bring about its physical destruction personal dignity, in particular
in whole or in part humiliating and degrading
d. Imposing measure intended to treatment
prevent births within the group c. Taking of hostages; and
e. Forcibly transferring children of the d. The passing of sentences and the
group to another group carrying out of executions without
previous judgment pronounced by
2. Directly and publicly inciting others to a regularly constituted court,
commit genocide (R.A. 9851) affording all judicial guarantees
which are generally recognized as
Q: What are war crimes? indispensible.

A: 3. Other serious violations of the laws and
1. In case of an international armed customs applicable in the armed
conflict, grave breaches of the Geneva conflict within the established
256
POLITICAL LAW TEAM:
VILLAMOR.

framework of international law, defense, has surrendered at
namely: discretion
a. Intentionally directing attacks i. Making improper use of a flag of
against the civilian population as truce, of the flag or the military
such or against individual civilians insignia and uniform of the enemy
not taking direct part in hostilities or of the United Nations, as well as
b. Intentionally directing attacks of the distinctive emblems of the
against civilian objects, that is, Geneva Conventions or other
objects which are not military protective signs under the
objectives International Humanitarian Law,
c. Intentionally directing attacks resulting in death, serious personal
against buildings, material, medical injury or capture;
units and transport, and personnel j. Intentionally directing attacks
using the distinctive emblems of against buildings dedicated to
Additional Protocol II in conformity religion, education, art, science, or
with international law charitable purposes, historic
d. Intentionally directing attacks monuments, hospitals and places
against personnel, installations, where the sick and wounded are
material, units or vehicles involved collected, provided that they are
in a humanitarian assistance or not military objectives.
peacekeeping mission in
accordance with the Charter of the Note: In case of doubt, they shall be
United Nations as long as they are presumed not to be so used.
entitled to the protection given to
civilians or civilian objects under k. Subjecting persons who are in the
the international law of armed power of an adverse party to
conflict physical mutilation or to medical or
e. Launching an attack in the scientific experiments of any kind,
knowledge that such attack will or to removal of tissue or organs
cause incidental loss of life or for transplantation, which are
injury to civilians or damage to neither justified by the medical,
civilian objects or widespread long‐ dental or hospital treatment of the
term and severe damage to the person concerned not carried out
natural environment which would in his/her interest, and which
be excessive in relation to the cause death to or seriously
concrete and direct military endanger the health of such
advantage anticipated person or persons
f. Launching an attack against works l. Killing wounding or capturing an
or installations containing adversary by resort to perfidy
dangerous forces in the knowledge m. Declaring that no quarter will be
that such attack will cause given
excessive loss of life, injury to n. Destroying or seizing the enemy’s
civilians or damage to civilian property unless such destruction
objects, and causing death or or seizure is imperatively
serious injury to body or health demanded by the necessities of
g. Attacking or bombarding, by war
whatever means, towns, villages, o. Pillaging a town or place, even
dwellings or buildings which are when taken by assault
undefended and which are not p. Ordering the displacement of the
military objectives, or making non‐ civilian population for reasons
defended localities or demilitarized related to the conflict, unless the
zones the object of attack security of the civilians
h. Killing or wounding a person in the involved or imperative military
knowledge that he/she is hors de reasons so demand
combat, including a combatant q. Transferring, directly or indirectly,
who, having laid down his/her by occupying power of parts of its
arms no longer having means of own civilian population into the
territory it occupies, or the
257

deportation or transfer of all or iii.Bullets which expand or
parts of the population of the flatten easily in the human
occupied territory within or body, such as bullets with
outside this territory hard envelopes which do not
r. Committing outrages upon entirely cover the core or are
personal dignity, in particular, pierced with incisions
humiliating and degrading iv. Weapons, projectiles and
treatment material and methods of
s. Committing rape, sexual slavery, warfare which are of the
enforced prostitution, forced nature to cause superfluous
pregnancy, enforced sterilization, injury or unnecessary
or any other form of sexual suffering or which are
violence inherently indiscriminate in
t. Utilizing the presence of a civilian violation of the international
or other protected person to law of armed conflict (R.A.
render certain points, areas or 9851)
military forces immune from
military operations Q: What are included in the term “other crimes
u. Intentionally using starvation of against humanity” aside from war crimes and
civilians as a method of warfare by
genocide under R.A. 9851?
depriving them of objects
indispensable to their survival,
including willfully impending relief A: “Other crimes against humanity” includes any
supplies of the following acts when committed as part of a
v. In an international armed conflict, widespread or systematic attack directed against
compelling the nationals of the any civilian population, with knowledge of the
hostile party to take part in the attack:
operations of war directed against
1. Willful killing
their own country, even if they
2. Extermination – the intentional
were in the belligerent’s service
infliction of conditions of life, inter alia,
before the commencement of the
the deprivation of access to food and
war
medicine, calculated to bring about the
w. In an international armed conflict,
destruction of a part of a population.
declaring abolished, suspended or
3. Enslavement – the exercise of any or all
inadmissible in a court of law the
of the powers attaching to the right of
rights and actions of the nationals
ownership over a person and includes
of the hostile party
the exercise of such power in the course
x. Committing any of the following
of trafficking in persons, in particular
acts:
women and children.
i. Conscripting, enlisting or
4. Arbitrary deportation or forcible
recruiting children under the
transfer of population – forced
age of 15 years into the
displacement of the persons concerned
national armed forces
by expulsion or other coercive acts from
ii. Conscripting, enlisting, or
the area in which they are lawfully
recruiting children under the
present, without grounds permitted
age of 18 years into an armed
under domestic or international law
force or group other than the
5. Imprisonment or other severe
national armed forces; and
deprivation of physical liberty in
iii. Using children under the age
violation of fundamental rules of
of 18 years to participate
international law
actively in hostilities
6. Torture – the intentional infliction of
y. Employing means of warfare which
severe pain or suffering, whether
are prohibited under international
physical, mental, or psychological, upon
law, such as:
a person in the custody or under the
i. Poison or poisoned weapons
control of the accused; except that
ii. Asphyxiating, poisonous or
torture shall not include pain or
other gases, and all analogous
suffering arising only from, inherent in
liquids, materials or devices;
or incidental to, lawful sanctions.
258
POLITICAL LAW TEAM:
VILLAMOR.

7. Rape, sexual slavery, enforced A:
prostitution, forced pregnancy, enforced 1. International Armed Conflict – between
sterilization or any other form of sexual 2 or more States including belligerent
violence of comparable gravity occupation
2. Non‐International Armed Conflict –
Note: Forced pregnancy means the between governmental authorities and
unlawful confinement of a woman to be organized armed groups or between
forcibly made pregnant, with the intent of such groups within a State.
affecting the ethnic composition of any 3. War of National Liberation ‐ an armed
population or carrying out other grave struggle waged by a people through its
violations of international law. liberation movement against the
established government to reach self‐

determination. (Ronzitti, Cassese, 1975)
8. Persecution against any identifiable
group or collectivity on political, racial,

national, ethnic, cultural, religious,
gender, sexual orientation other 1.a. International Armed Conflicts
grounds that are universally recognized
as impermissible under international Q: Differentiate between an armed conflict
law contemplated under the IHL and under R.A.
9851?
Note: Persecution means the intentional
and severe deprivation of fundamental A:
rights contrary to international law by 1. “All cases of declared war or any other
reason of identity of the group or armed conflict which may arise
collectively between two or more of the Highest
contracting parties, even if the State of
9. Enforced or involuntary disappearance war is not recognized by one of them”
of persons – the arrest detention or (Article 2, Geneva convention of 1949).
abduction of persons by, or with the It also applies to armed conflict
authorization, support, or acquiescence between the government and a rebel or
of, a State or a political organization insurgent movement (Article 3, Geneva
followed by a refusal to acknowledge convention of 1949).
that deprivation of freedom or to give 2. Under R.A. 9851, it is any use of force or
information on the fate or whereabouts armed violence between States or a
of those persons, with the intention of protracted armed violence between
removing them from the protection of governmental authorities and organized
the law for a prolonged period of time groups or between such groups within a
10. Apartheid – Inhumane acts committed State provided that it gives rise or may
in the context of an institutionalized give rise to a situation to which the
regime of systematic oppression and Geneva Conventions of 12 August 1949
domination by one racial group/s and including their common Article 3, apply
committed with the intention of
maintaining that regime. Q: What are the instances that are not covered
11. Other inhumane acts of similar by an armed conflict?
character intentionally causing great
suffering, or serious injury to body or to
A: It does not include internal disturbances or
mental or physical health. (R.A. 9851)
tensions such as:
1. Categories of Armed Conflicts 1. Riots
2. Isolated and sporadic acts of violence

3. Other acts of a similar nature
Q: What are the kinds/types of conflict as
contemplated in R.A. 9851? Q: When is a person considered a hors de
combat?

A: It is any person who:

259

1. Is in the power of an adverse party Q: What is armistice?
2. Has clearly expressed an intention to
surrender A: Suspension of hostilities within a certain area
3. Has been rendered unconscious or or in the entire region of the war, agreed upon by
otherwise incapacitated by wounds or the belligerents, usually for the purpose of
sickness and therefore is incapable of arranging the terms of the peace.
defending himself (R.A. 9851)
Q: Distinguish armistice from suspension of
Note: In these cases the person abstains from arms.
any hostile act and does not attempt to escape.

A:
Q: Who are “Protected persons” in an armed
ARMISTICE SUSPENSION OF ARMS
conflict?
As to the purpose

Political Military
A:
As to form
1. A person wounded, sick or shipwrecked,
Usually in writing May be oral
whether civilian or military
As to who may conclude
2. A prisoner of war or any person
deprived of liberty for reasons related Only by the
May be concluded by
to an armed conflict commanders‐in‐chief of
the local commanders
3. A civilian or any person not taking a the belligerent

direct part or having ceased to take part governments
in the hostilities in the power of the
adverse party Q: What is a cease‐fire?
4. A person who, before the beginning of

hostilities, was considered a stateless
person or refugee under the relevant A: Unconditional stoppage of all hostilities usually
international instrument accepted by ordered by an international body like the United
the parties to the conflict concerned or Nations Security Council.
under the national legislation of the
state of refuge or state of residence Q: What is a truce?
5. A member of the medical personnel
assigned exclusively to medical
A: A conditional ceasefire for political purposes.
purposes or to the administration of
medical units or to the operation of an
administration of medical transports; or Q: What is a capitulation?
6. A member of the religious personnel
who is exclusively engaged in the work A: Surrender of military forces, places or districts,
of their ministry and attached to the in accordance with the rules of military honor.
armed forces of a party to the conflict,

its medical units or medical transports
or non‐denominational, non‐combatant
military personnel carrying out 1.b. Internal or non‐international Armed Conflict
functions similar to religious personnel.
Q: What law applies to internal disturbances and
Note: In such situations the Geneva Conventions and other situations of internal violence?
Additional Protocol I apply.
A: These are governed by the provisions of
Q: What is suspension of arms? human rights law and such measures of domestic
legislation as may be invoked. IHL does not apply
A: It is a temporary cessation of hostilities by to situations of violence not amounting in
agreement of the local commanders for such intensity to an armed conflict.
purposes as the gathering of the wounded and
the burial of the dead. Q: When does IHL apply in terms of non‐
international armed conflicts?
260
POLITICAL LAW TEAM:
VILLAMOR.

A: Humanitarian law is intended for the armed exercise of their right to self determination.
forces, whether regular or not, taking part in the [Article 1(4), Protocol I] These are sometimes
conflict, and protects every individual or category called insurgencies, rebellions or wars of
of individuals not or no longer actively involved in independence.
the hostilities. E.g.: wounded or sick fighters;
people deprived of their freedom as a result of Q: What is its basis?
the conflict; civilian population; medical and
religious personnel. A: Protocol Additional to the Geneva Conventions
of 12 August 1949 and relating to the Protection
Each Party to a conflict shall be bound to apply to of Victims of International Armed Conflicts
the following provisions: (Protocol I), 8 June 1977.
1. Persons taking no active part in the
hostilities, including armed forces who Q: What are the categories on the wars for
have laid down their arms and those national liberation?
placed hors de combat be treated

humanely, without any adverse
distinction founded on race, color, A: Its categories are:
religion or faith, sex, birth or wealth, or 1. Colonial domination
any other similar criteria. To these end, 2. Alien occupation; and
the following acts are and shall remain 3. Racist regimes when the ‘people’s
prohibited at any time and any place oppressed by these regimes are fighting
whatsoever with respect to the for self‐determination.
abovementioned persons:
Note: The wars of national liberation are
restrictive in the sense that they only fall
a. Violence to life and person, in under the following situations.
particular murder of all kinds,
mutilation, cruel treatment and Q: What is the effect of the said Protocol?
torture
b. Taking of hostages
A: Armed conflicts that fall under the categories
c. Outrages against personal dignity,
in particular humiliating and will now be regarded as international armed
degrading treatment conflicts and thus fall under the International
d. The passing of sentences and the Humanitarian Law.
carrying out of executions without
previous judgment pronounced by
a regularly constituted court,
2. Core International Obligations of States in IHL
affording all the judicial guarantees

which are recognized as
indispensable by civilized peoples. Q: What are the essential rules of IHL?

2. The wounded and sick shall be collected A:
and cared for. 1. The parties to a conflict must at all
times distinguish between the civilian
Note: An impartial humanitarian body, such as the population and combatants
international committee of Red Cross, may offer its
services to the parties to the conflict. 2. Neither the civilian population as a
whole nor individual civilians may be
attacked

1.c. War of National Liberation
3. Attacks may be made sole against

military objectives
Q: What are wars of national liberation?
A: These are armed conflicts in which people are 4. People who do not or can no longer
fighting against colonial domination and alien take part in the hostilities are entitled
occupation and against racist regimes in the to respect for their lives and for their
physical and mental integrity and must
261

be treated with humanity, without any from combatants and spare the former
unfavorable distinction whatever. from military attacks.(Principle of
distinction between civilians and
5. It is forbidden to kill or wound an combatants)
adversary who surrenders or who can 3. Persons hors de combat and those who
no longer take part in the fighting do not take part in hostilities shall be
protected and treated humanely
6. Neither the parties to the conflict nor without any adverse distinction.
members of their armed forces have an 4. It is prohibited to kill or injure an enemy
unlimited right to choose methods and who surrenders or who is a hors de
means of warfare combat.
5. The wounded and the sick shall be
7. It is forbidden to use weapons or protected and cared for by the party
methods of warfare that are likely to who is in custody of them.
cause unnecessary losses and excessive 6. Parties who captured civilians and
suffering. combatants shall respect their rights to
life, dignity, and other personal rights.
8. The wounded and sick must be
collected and cared for by the party to
the conflict which has them in its 3.a. Treatment of Civilians
power.
Q: What is the Martens clause/Principle of
9. Medical personnel and medical
humanity?
establishments, transports and
equipment must be spared. The red
cross or red crescent is the distinctive A: In cases not covered by other international
sign indicating that such persons and agreements, civilians and combatants remain
objects must be respected under the protection and authority of the
principles of international law derived from
10. Captured combatants and civilians who
established custom, from the principles of
find themselves under the authority of
the adverse party are entitled to humanity and from the dictates of public
respect for their lives, their dignity, conscience.
their personal rights and their political,
religious and other convictions and
must be protected against all acts of 3.b. Prisoners of War
violence or reprisals; entitled to
exchange of news with their families
Q: What are the rights and privileges of
and receive aid and enjoy basic judicial
prisoners of war?
guarantees.

A:
3. Principles of IHL 1. They must be treated humanely, shall
not be subjected to physical or mental
torture, shall be allowed to
Q: What are the fundamental principles of the
communicate with their families, and
IHL? may receive food, clothing, educational
and religious articles.
A: 2. They may not be forced to reveal
1. Parties to armed conflict are prohibited military data except the name, rank,
from employing weapons or means of serial number, army and regimental
warfare that cause unnecessary damage number and date of birth; they may not
or excessive suffering.(Principle of be compelled to work for military
prohibition of use of weapons of a services
nature to cause superfluous injury or 3. All their personal belonging except their
unnecessary suffering) arms and military papers remain their
2. Parties to armed conflict shall property.
distinguish between civilian populace
262
POLITICAL LAW TEAM:
VILLAMOR.

4. They must be interned in a healthful self‐defense, or enter into such international
and hygienic place. obligations as would indirectly involve a war.
5. After the conclusion of peace, their
speedy repatriation must be Note: A State seeks neutralization where it is weak
accomplished as soon as is practicable.
and does not wish to take active part in international

politics. The power that guarantees its neutralization

may be motivated either by balance of power
4. Law of Neutrality
considerations or by desire to make the State a

buffer between the territories of the great powers.
Q: What is neutrality?

Q: What are the rights and duties of a neutral
A: It is non‐participation, directly or indirectly, in
State?
a war between contending belligerents. This

exists only during war time and is governed by
A:
the law of nations. Examples of these states are
1. Abstain from taking part in the
Switzerland, Sweden, The Vatican City, Costa Rica. hostilities and from giving assistance to
either belligerent;
Q: What is non‐alignment (Neutralism)? 2. Prevent its territory and other resources
from being used in the conduct of
A: This refers to peacetime foreign policies of hostilities(Right of territorial Integrity);
nations desiring to remain detached from and
3. Acquiesce in certain restrictions and
conflicting interests of other nations or power
limitations the belligerents may find
groups. necessary to impose.
4. To continue diplomatic relations with
Q: What is a neutralist policy? other neutral states and with the
belligerents (Right of diplomatic
A: It is the policy of the state to remain neutral in communications).

future wars. Non‐alignment is the
Q: What are the obligations of belligerents?
implementation of neutralism.

A:
Q: How is non‐alignment different from
1. Respect the status of the neutral State;
neutrality?
2. Avoid any act that will directly or
indirectly involve it in their conflict and
A: to submit to any lawful measure it may
NEUTRALITY NON‐ALIGNMENT take to maintain or protect its
Presupposes the Exists during peace time neutrality.
existence of war or
conflict
Q: What are some restraints on neutral States?
Avoids involvement in a Rejects imperialism and
war colonialism by the world

powers A: The following are some restraints:
Pre‐determined position Evaluates the world 1. Blockade
political events based on 2. Contraband of war
case‐to‐case merits 3. Free ships make free goods

Q: When is a State considered as a neutralized Q: What is a blockade?
State?
A: It is a hostile operation by means of which
A: Where its independence and integrity are vessels and aircraft of one belligerent prevent all
guaranteed by an international convention on the other vessels, including those of neutral States,
condition that such State obligates itself to never from entering or leaving the ports or coasts of the
take up arms against any other State, except for other belligerent, the purpose being to shut off
263

the place from international commerce and Q: What is unneutral service?
communications with other States.
A: It consists of acts, of a more hostile character
Q: What is contraband? than carriage of contraband or breach of
blockade, which are undertaken by merchant
A: It refers to goods which, although neutral vessels of a neutral State in aid of any of the
property, may be seized by a belligerent because belligerents.
they are useful for war and are bound for a
hostile destination. Q: What is the Right of Angary?

They may be absolute, such as guns or A: By the right of angary, a belligerent may, upon
ammunition, which are useful for war under all payment of just compensation, seize, use or
circumstances; conditional, such as food and destroy, in case of urgent necessity for purposes
clothing, which have both civilian and military of offenses or defense, neutral property found in
utility; or under the free list, such as medicines, enemy territory, or on the high seas.
which are exempt from the law on contraband for
humanitarian reasons. Q: What are the requisites before Right of
Angary may be exercised?
Q: What is the doctrine of Infection?
A:
A: Innocent goods shipped with contraband may 1. That the property is in the territory
also be seized. under the control or jurisdiction of the
belligerent;
2. That there is urgent necessity for the
Q: What is the doctrine of Ultimate
taking; and
Consumption? 3. That just compensation is paid to the
owner.
A: Goods intended for civilian use which may
ultimately find their way to and be consumed by Q: When is neutrality terminated?
belligerent forces may be seized on the way.
A: When the neutral State itself joins the war or
Q: What is the doctrine of Ultimate Destination? upon the conclusion of peace.

A: The liability of the contraband from being
captured is determined not by their ostensible k. LAW OF THE SEA
but by their real destination.
Q: What is the International Law of the Sea (ILS)?
Q: What is the doctrine of “Free ships make free
goods”? A: A body of treaty rules and customary norms
governing the uses of the sea, the exploitation of
A: A ship’s nationality determines the status of its its resources, and the exercise of jurisdiction over
cargo. Thus, enemy goods on a neutral ship, maritime regimes.
excepting contraband, would not be subject to
capture on the high seas. Q: What is the United Nations Convention on the
Law of the Sea (UNCLOS)?
Q: What is the concept of Visit and Search?
A: It defines the rights and obligations of nations
A: Belligerent warships and aircraft have the right in their use of the world’s oceans, establishing
to visit and search neutral merchant vessels on rules for business, the environment and the
the high seas to determine whether they are in management of marine natural resources.
any way connected with the hostilities.

264
POLITICAL LAW TEAM:
VILLAMOR.

Q: What is the mare liberum principle or the marks, and the waters enclosed
Free Sea or Freedom of the Sea? thereby shall be considered as
internal waters. (Article 10 [4],
UNCLOS)
A: It means international waters are free to all
b. Exceeds 24 nautical miles–straight
nations and belongs to none of them. baseline of 24 nautical miles shall
be drawn within the bay in such a
manner as to enclose the
1. Baselines maximum area of water that is
possible with a line of that length.
Q: What is a baseline? (Article 10 [5], UNCLOS)

Note: This relates only to bays the coasts of which
A: It is a line from which the breadth of the
belong to a single State and does not apply to
territorial sea, the contiguous zone and the
“historic” bays (Article 10 (1), UNCLOS)
exclusive economic zone is measured in order to

determine the maritime boundary of the coastal
Q: What is a bay?
State.

A: It is a well‐marked indentation whose
penetration is in such proportion to the width of
its mouth as to contain land‐locked waters and
constitute more than a mere curvature of the
coast. (Article 10 (2), UNCLOS)

Note: The indentation shall not be regarded as a bay
unless its area is as large as, or larger than, that of
the semi‐circle whose diameter is a line drawn
across the mouth of that indentation. (Ibid)

2. Archipelagic States

Q: What is an archipelago?

A: It means a group of islands, including parts of
islands, interconnecting waters and other natural
features which are so closely interrelated that
such islands, waters and other natural features
form an intrinsic geographical, economic and
Q: How is a baseline formed in the following? political entity, or which historically have been
regarded as such (Article 46, UNCLOS)
A:
1. Mouths of Rivers – If a river flows Q: What is an Archipelagic State?
directly into the sea, the baseline shall
be a straight line across the mouth of A: A state constituted wholly by one or more
the river between points on the low‐ archipelagos and may include other islands.
water line of its banks. (Article 9, (Article 46, UNCLOS)
UNLOS)

2. Bays – Where the distance between the
Q: What is the effect of R.A. 9522 or An Act to
low‐water marks of the natural
entrance points: Amend Certain Provisions of Republic Act No.
a. Does not exceed 24 nautical miles 3046, As Amended by Republic Act 5446, To
– closing line may be drawn Define the Archipelagic Baseline of the
between these two low‐water Philippines and For Other Purposes?
265

A: By joining the outermost points of the
A. R.A. 9522 (approved: March 10, 2009) amends outermost islands and drying reefs of the
R.A. 3046, which defines the baselines of the archipelago provided that within such baselines
territorial sea of the Philippines. The Kalayaan are included the main islands and an area in
Island Group as constituted under P.D. No. 1596 which the ration of the water to the area of the
and Bajo de Masinloc, also known as Sacrborough land, including atolls, is between 1 to 1 and 9 to 1.
Shoal is determined as “Regime of Islands” under (Article 47, UNCLOS)
the Republic of the Philippines consistent with
Article 121 of the United Convention on the Law Q: What are the some of the guidelines in
of the Sea which states: drawing archipelagic baselines?

1. An island is a naturally formed area of A:
land, surrounded by water, which is 1. The length of such baselines shall not
above water at high tide. exceed 100 nautical miles, except that
2. Except as provided for in paragraph 3, up to 3 per cent of the total number of
the territorial sea, the contiguous zone, baselines enclosing any archipelago
the exclusive economic zone and the may exceed that length, up to a
continental shelf of an island are maximum length of 125 nautical miles.
determined in accordance with the (Article 47 [2], UNCLOS)
provisions of this Convention applicable 2. The drawing of such baselines shall not
to other land territory. depart to any appreciable extent from
3. Rocks which cannot sustain human the general configuration of the
habitation or economic life of their own archipelago. (Article 47[3], UNCLOS)
shall have no exclusive economic zone 3. Such baselines shall not be drawn to
or continental shelf. and from low tide elevations (Article
47[4], UNCLOS)
Note: In a petition filed by Prof. Merlin Magallona, it
states that RA 9522 violates the 1987 Constitution as Note: Unless lighthouses or similar installations
it declares the Philippines as an “archipelagic state” which are permanently above sea level have been
under the UNCLOS and uses the straight baselines built on them or where a low‐tide elevation is
method that effectively changed the shape of situated wholly or partly at a distances not
Philippine territory as defined in the Treaty of Paris. exceeding the breath of the territorial sea from the
In addition, it was also claimed that the law converts nearest island. (Ibid)
the country’s territorial waters into archipelagic
waters under the UNCLOS, thus violating the 1987 4. It shall not be applied in such a manner
Constitution, which stipulates that the waters as to cut off from the high seas or the
connecting the country’s islands are internal waters. exclusive economic zone the territorial
sea of another State. (Article 47[5],
The effect of such is that the law allows foreign
UNCLOS)
ships, including nuclear‐powered ships or vessels
5. If a part of the archipelagic water of an
carrying weapons‐grade nuclear substances to pass archipelagic State lies between two
through archipelagic waters in a continuous manner. parts of an immediately adjacent
This is because under the UNCLOS, States can neighboring State, existing rights and all
exercise the right of innocent passage and other legitimate interests which the
archipelagic sea lanes passage over archipelagic latter State has traditionally exercised in
waters. such waters and all rights stipulated by
agreement between those States shall
continue and be respected. (Article
47[6], UNCLOS)
2.a. Straight Archipelagic Baselines

Q: How is the breadth of the territorial sea, the
Q: How may an archipelagic State draw straight
contiguous zone, the exclusive economic zone
archipelagic Baselines?
and the continental shelf measured?

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POLITICAL LAW TEAM:
VILLAMOR.

A: They are measured from the archipelagic such cables upon being notified of their
baselines drawn. (Article 48, UNCLOS) location and the intention to repair or
replace them. (Article 51[2], UNCLOS)

Q: How does the sovereignty of the archipelagic
Q: Does the right of innocent passage exist in
state extends?
archipelagic waters?

A: Yes. As a rule, ships of all States enjoy the right
A: It extends to the waters enclosed by the
of innocent passage through archipelagic waters.
archipelagic baselines (archipelagic waters,
(Article 52[1}, UNCLOS)
regardless of their depth or distance from the

coast, to the air space over the archipelagic
Q: May the right of innocent passage be
waters, as well as to their bed and subsoil and the
suspended in some areas of its archipelagic
resources contained therein. (Article 49[1],
waters?
UNCLOS)

Note: The regime of archipelagic sea lanes passage
A: Yes. But such suspension must be:
shall not in other respects affect the status of the 1. Without discrimination in form or in
fact among foreign ships;
archipelagic waters, including the sea lanes, or the
2. Essential for the protection of its
exercise by the archipelagic State of its sovereignty
security; and
over such waters and their air space, bed and subsoil
3. Shall take effect only after having been
and the resources contained therein. (Article 49[4], duly published. (Article 52[2], UNCLOS)
UNCLOS)

2.c. Archipelagic Sea Lanes Passage
2.b. Archipelagic Waters
Q: What is the right of archipelagic sea lanes
Q: What are archipelagic waters? passage?

A: These are waters enclosed by the archipelagic A: It is the right of foreign ships and aircraft to
baselines, regardless of their depth or distance have continuous, expeditious and unobstructed
from the coast. (Article 49[1], UNCLOS) passage in sea lanes and air routes through or
over the archipelagic waters and the adjacent
Q: Does sovereignty of the archipelagic state territorial sea of the archipelagic state, “in transit
extend to the archipelagic waters? between one part of the high seas or an exclusive
economic zone.” All ships and aircraft are entitled
A: Yes, but is subject to the right of innocent to the right of archipelagic sea lanes passage.
passage which is the same nature as the right of (Magallona, 2005; Article 53[1] in relation with
innocent passage in the territorial sea. (Article Article 53[3], UNCLOS)
49[1] in relation to Article 52[1], UNCLOS)
Q: What are included in the sea lanes and air
Q: What are the other rights by which they are routes?
subject to?
A: It shall traverse the archipelagic waters and the
A: adjacent territorial sea and shall include all
1. Rights under existing agreement on the normal passage routes used as routes for
part of the third states should be international navigation or overflight through or
respected; (Article 51[1], UNCLOS) over archipelagic waters and, within such routes,
2. The traditional fishing rights and other
so far as ships are concerned, all navigational
legitimate activities of the immediately
adjacent neighboring States (Ibid) channels, provided that duplication of routes of
3. Existing submarine cables laid by other similar convenience between the same entry and
States and “passing though its waters exit points shall not be necessary.(Article 53[4],
without making a windfall” as well as UNCLOS)
the maintenance and replacement of
267

Q: How are sea lanes designated or substituted delimitation of internal waters (Article 50, in
for the purpose of archipelagic sea lanes relation with 9, 10, 11, UNCLOS)
passages?
Q: Does the coastal state have the sovereignty
A: The archipelagic State shall refer proposals to over its internal waters?
the competent international organization
(International Maritime Organization). The IMO A: Yes, as if internal waters were part of its land
may adopt only such sea lanes as may be agreed territory. (Magallona, 2005; Article 50, UNCLOS)
with the archipelagic State, after which the
archipelagic State may designate, prescribe or Q: Is there a right of innocent passage through
substitute them. (Magallona, 2005; Article 53[9], internal waters?
UNCLOS)
A:
Q: How will the archipelagic sea lanes passage GR: No, it applies only to territorial sea and the
be designated should the archipelagic State not archipelagic waters (Magallona, 2005;
designate sea lanes? Article8[2], UNCLOS)

A: The right of archipelagic sea lanes passage may XPN: A coastal state may extend its internal
be exercised through the routes normally used waters by applying the straight baseline
for international navigation. (Article 53[12], method in such a way as to enclose as its
UNCLOS) internal waters areas which are previously part
of the territorial sea. It also applies to straits
Q: Are warships, including submarines, entitled used for international navigation converted
to the right of archipelagic sea lanes passage? into internal waters by applying the straight
baselines method. Thus, the right of innocent
A: Yes. All ships are entitled to the right. passage continues to exist in the “extended”
Submarines are not required to surface in the internal waters. (Magallona, 2005; Article 8[2],
course of his passage unlike the exercise of right UNCLOS)
of innocent passage in the territorial sea.
(Magallona, 2005; Article 20 in relation to Article
53[3], UNCLOS) 4. Territorial Sea

Q: What is the breadth of the territorial sea?
3. Internal Waters
A: Every State has the right to establish the
Q: What are internal waters? breadth of the territorial sea up to a limit not
exceeding 12 nautical miles, measured from
A: These are waters of lakes, rivers and bays baselines. (Article 3, UNCLOS)
landward of the baseline of the territorial sea.
Waters on the landward side of the baseline of Q: What is the outer limit of the territorial sea?
the territorial sea also form part of the internal
waters of the coastal state. However, in the case A: It is the line every point of which is at a
of archipelagic states, waters landward of the distance from the nearest point of the baseline
baseline other than those of rivers, bays, and equal to the breadth of the territorial sea. (Article
lakes, are archipelagic waters. (Magallona, 2005; 4, UNCLOS)
Article 8 [1], UNCLOS)
Q: Distinguish briefly but clearly between the
Q: How is the delimitation of internal waters? territorial sea and the internal waters of the
A: Within the archipelagic waters, the Philippines.
Archipelagic State may draw closing lines for the A: Territorial water is defined by historic right or
treaty limits while internal water is defined by the
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POLITICAL LAW TEAM:
VILLAMOR.

archipelago doctrine. The territorial waters, as
defined in the Convention on the Law of the Sea, A: If the foreign ship engages in the following
has a uniform breadth of 12 miles measured from activities:
the lower water mark of the coast; while the 1. Any threat or use of force against the
outermost points of our archipelago which are sovereignty, territorial integrity or
connected with baselines and all waters political independence of the coastal
State, or in any other manner in
comprised therein are regarded as internal
violation of the principles of
waters. (2004 Bar Question) international law embodied in the
Charter of the United Nations
Q: Give the importance of the distinction 2. Any exercise or practice with weapons
between internal waters and territorial sea. of any kind
3. Any act aimed at collecting information
A: In the territorial sea, a foreign State can claim to the prejudice of the defense or
security of the coastal State
for its ships the right of innocent passage,
4. Any act aimed at collecting information
whereas in the internal waters of a State no such to the prejudice of the defense or
right exists. (Salonga & Yap, 1992) security of the coastal State
5. Any act of propaganda aimed at
Q: What are the methods used in defining affecting the defense or security of the
territorial sea? coastal State
6. The launching, landing or taking on
board of any aircraft
A:
7. The launching, landing or taking on
1. Normal baseline method – the board of any military device
territorial sea is simply drawn from the 8. The loading or unloading of any
low‐water mark of the coast, to the commodity, currency or person
breadth claimed, following its contrary to the customs, fiscal,
sinuousness and curvatures but immigration or sanitary laws and
excluding the internal waters in the regulations of the coastal State
bays and gulfs. (Article 5, UNCLOS) 9. Any act of willful and serious pollution
2. Straight baseline method – where the contrary the Convention
coastline is deeply indented and cut 10. Any fishering activities
into, or if there is a fringe of islands 11. The carrying out of research or survey
along the coast in its immediate vicinity, activities
the method of straight baselines joining 12. Any act aimed at interfering with any
appropriate points may be employed in systems of communication or any other
drawing the baseline from which the facilities or installations of the coastal
breadth of the territorial sea is State
measure. (Article. 7, UNCLOS) 13. Any other activity not having a direct
bearing on passage. (Article 19 [2],
Note: The Philippines uses this method in
UNCLOS)
drawing baselines

Q: What are the laws and regulations of the
Q: Explain the right of innocent passage.
coastal State relating to innocent passage that it

may adopt?
A: It means navigation through the territorial sea

of a State for the purpose of traversing the sea
A: It may adopt laws and regulations in respect of
without entering internal waters, or of
all or any of the following:
proceeding to internal waters, or making for the
1. Safety of navigation and the regulation
high seas from internal waters, as long as it is not
of maritime traffic
prejudicial to the peace, good order or security of 2. Protection of navigational aids and
the coastal State. (Articles 18 [1][2], 19[1], facilities and other facilities or
UNCLOS) installations
3. Protection of cables and pipelines
Q: When is the right of innocent passage 4. Conservation of the living resources of
the sea
considered prejudicial?
269

5. Prevention of infringement of the
fisheries laws and regulations of the Note: This will not affect the
coastal State immunities of warships and other
6. Preservation of the environment of the government ships operated for non‐
coastal State and the prevention, commercial purpose. (Article 32,
reduction and control of pollution
UNCLOS)
thereof

7. Marine Scientific research and
hydrographic surveys Q: What is a warship?
8. Prevention of infringement of the
customs, fiscal, immigration or sanitary A: It is a ship belonging to the armed forces of a
laws and regulations of the coastal State bearing the external marks distinguishing
State. (Article 21[1], UNCLOS) such ships of its nationality, under the command

of an officer duly commissioned by the
Note: it shall not however, apply to the
government of the State and whose name
design, construction, manning or
equipment of foreign ships unless they are
appears in the appropriate service list or its
giving effect to generally accepted equivalent, and manned by a crew which is under
international rules or standards. (Article regular armed forces discipline. (Article 29,
21[2], UNCLOS) UNCLOS)

Q: What are the rules for the following vehicles Q: What are the duties of the coastal State with
when traversing the territorial sea through the regard to innocent passage of foreign ships?
right of innocent passage?
A: The Coastal State shall:
A: 1. Not hamper the innocent passage of
1. Submarines and other underwater the foreign ships through its territorial
vehicles ‐ They are required to navigate sea;
on the surface and to show their flag. 2. Not impose requirements on foreign
(Article 20, UNCLOS) ships which have the practical effect of
2. Foreign nuclear‐powered ships and denying or impairing the right of
ships carrying nuclear or other innocent passage;
inherently dangerous or noxious 3. Not discriminate in form or in fact
substances – They must carry against the ships of any State or against
documents and observe special ships carrying cargoes to, from or on
precautionary measures established for behalf of any State; and
such ships by international agreements. 4. Give appropriate publicity to any
They may be required to confine their danger to navigation, of which it has
passage on sea lanes prescribed by the knowledge, within its territorial sea.
coastal State. (Article 23, UNCLOS) (Article 24, UNCLOS)
3. Warships –
a. Coastal State may require that Q: What are the rights of protection of the
it leave the territorial sea coastal State?
immediately when it does not
comply with the laws and A: Coastal State may:
regulations of the coastal 1. Take the necessary steps in its territorial
State and disregards sea to prevent passage which is not
compliance (Article 30, innocent; (Article 24[1], UNCLOS)
UNCLOS) 2. Take the necessary steps to prevent any
b. Flag State shall bear breach of the conditions to which
international responsibility for admission of ships to internal waters or
any loss or damage to the such a call is subject; (Article 24[2],
coastal State resulting from UNCLOS)
non‐compliance with the laws 3. Without discrimination in form or in
and regulations of the coastal fact among foreign ships, suspend
State concerning passage. temporarily in specified areas of its
(Article 31, UNCLOS)
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POLITICAL LAW TEAM:
VILLAMOR.

territorial sea the innocent passage of 1. It should not stop or divert a foreign
foreign ships if such suspension is ship passing through the territorial sea
essential for the protection of its for the purpose of exercising civil
security, including weapon exercises. jurisdiction in relation to a person on
(Article 24[3], UNCLOS) board the ship (Article 28[1], UNCLOS)
2. It may not levy execution against or
Q: May charges be levied upon foreign ships? arrest the ship for the purpose of any
civil proceedings, save only in respect of
obligations or liabilities assumed or
A: No charge may be levied upon foreign ships by
incurred by the ship itself in the course
reason only of their passage through the or for the purpose of its voyage through
territorial sea. (Article 26[1], UNCLOS) the waters of the coastal State. (Article
28[2], UNCLOS)
Note: Charges may be levied only as payment for
specific services rendered to the ship which shall be Note: It is without prejudice to the right of
levied without discrimination. (Article 26[2], the Coastal State, in accordance with its
UNCLOS) laws, to levy execution against or to
arrest, for the purpose of any civil
Q: May criminal jurisdiction be exercised by the proceedings, a foreign ship lying in the
coastal State? territorial sea, or passing through the
territorial sea after leaving internal
A: waters. (Article 28[3], UNCLOS)
GR: Criminal jurisdiction of the coastal State
should not be exercised on board a foreign ship Q: What is the contiguous zone?
passing through the territorial sea to arrest any
person or to conduct any investigation in A: The contiguous zone is the zone adjacent to
connection with any crime committed on board the territorial sea, which the coastal State may
the ship during its passage. exercise such control as is necessary to (1)
prevent infringement of its customs, fiscal,
XPNs: immigration, or sanitary laws within its territory
1. Consequence of the crime extend to the or its territorial sea or (2) to punish such
coastal State; infringement. The contiguous zone may not
2. Crime is of a kind to disturb the peace extend more than 24 nautical miles beyond the
of the country or the good order of the baseline from which the breadth of the territorial
territorial sea sea is measured (twelve nautical miles from the
3. Assistance of local authorities has been territorial sea [Article 33, UNCLOS).
requested by the master of the ship or

by a diplomatic agent or consular officer
of the flag State; or Q: What is transit passage?
4. Measures are necessary for the
suppression of illicit traffic in narcotic A: It is the right to exercise freedom of navigation
drugs or psychotropic substances and overflight solely for the purpose of
(Article 27[1], UNCLOS) continuous and expeditious transit through the

straits used for international navigation, i.e.,
Note: Such does not affect the right of the coastal
between two areas of the high seas or between
State to take any steps authorized by its laws for the
two exclusive economic zones. All ships and
purpose of an arrest or investigation on board a
aircraft enjoy the right of transit passage. The
foreign ship passing through the territorial sea after
requirement of continuous and expeditious
leaving internal waters. (Article 27[2], UNCLOS)
transit does not preclude passage through the

strait for the purpose of entering, leaving or
Q: May civil jurisdiction be exercised by the
returning from a State bordering the strait,
Coastal State?
subject to the conditions of entry to that State.
A: Yes it may. Subject to the following
(Magalona, 2005; Article 38[2], UNCLOS)
exceptions:

271

Q: When does Right of transit passage not 5. Exclusive Economic Zone
applicable? Q: What is the exclusive economic zone?

A: If there exists seaward of the island a route A: It gives the coastal State sovereign rights over
through the high seas or through an exclusive all economic resources of the sea, sea‐bed and
economic zone of similar convenience with subsoil in an area extending not more than 200
respect to navigational and hydroghraphical nautical miles beyond the baseline from which
characteristics. (Article 38[1], UNCLOS) the territorial sea is measured. (Magallona, 2005;
Articles 55 & 57, UNCLOS))
Q: Distinguish the right of innocent from transit
passage. Q: What are the rights of the coastal state in the
Exclusive Economic Zone?
A:
Innocent Passage Transit Passage A:
Pertains only to Includes right of 1. Sovereign rights:
navigation of ships overflight a. For the purpose of exploring and
Requires submarine and exploiting, conserving and
other underwater No requirement managing the living and non‐living
resources in the super adjacent
vehicles to navigate on specially applicable to
waters of the sea‐bed and the
the surface and to show submarines
resources of the sea‐bed and
their flag
subsoil;
Can be suspended Cannot be suspended b. With respect to the other activities
Designation of sea for the economic exploitation and
In designation of sea lanes and traffic exploration of the EEZ, such as
lanes and traffic separation schemes is production of energy from water,
separation schemes, the subject to adoption by currents and winds;
coastal State shall only competent 2. Jurisdictional right:
take account of the international a. With respect to establishment and
recommendations of the organization upon use of artificial islands;
b. As to protection and preservation
competent international proposal and
of the marine environment; and
organization agreement of States
c. Over marine scientific research
bordering the straits. 3. Other rights and duties provided for in
the Law of the Sea Convention.
Note: The coastal State may, without discrimination
in form or in fact among foreign ships, suspend Q: What are the two primary obligations of
temporarily in specified areas of its territorial sea the coastal states over the exclusive economic zone?
innocent passage of foreign ships if such suspension
is essential for the protection of its security, A:
including weapons exercises. Such suspension shall
1. Proper conservation and management
take effect only after having been duly published measures that the living resources of
(Part II Territorial Sea and Contiguous Zone, Art. the EEZ are not subjected to
25(3) UNCLOS) overexploitation;
2. Promote the objective of “optimum
Q: What is the Thalweg doctrine? utilization” of the living resources.
(Magallona, 2005, (Article 61[2], 62[1]
UNCLOS)
A: It provides that for boundary rivers, in the

absence of an agreement between the riparian
Q: May the coastal State inspect and arrest a
States, the boundary line is laid in the middle of
ship’s crew in its EEZ?
the main navigable channel.

A: Yes. The coastal State may board, and inspect

a ship, arrest a ship and its crew and institute

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POLITICAL LAW TEAM:
VILLAMOR.

judicial proceedings against them. Arrested giving access to other States to the
vessels and their crews may be required to post living resources of its exclusive
reasonable bond or any other form of security. economic zone, has taken into account
the need to minimize detrimental
However, they must be promptly released upon
effects on fishing communities and
posting of bond. economic dislocation in States whose
In the absence of agreement to the nationals have habitually fished in the
contrary by the States concerned, the United zone. (Article 70[1], UNCLOS)
Nations Convention on the Laws Of Sea (UNCLOS)
does not allow imprisonment or any other form Note: This is without prejudice to
of corporal punishment. However, in cases of arrangements agreed upon in subregions
arrest and detention of foreign vessels, it shall or regions where the coastal State may
grant to land‐locked States of the same
promptly notify the flag state of the action taken.
subregion or region equal or preferential

rights for the exploitation of the living
Q: What are land‐locked States?
resources in the EEZ. (Article 70[4],

UNCLOS)
A: These are states which do not border the seas
and do not have EEZ. (Magallona, 2005) This however shall not apply in case of a
coastal State whose economy is
Q: What are geographically disadvantaged overwhelmingly dependent on the
states? exploitation of the living resources of its
EEZ. (Article 71, UNCLOS)
A: These are:
1. Coastal states which can claim no EEZ of
their own; and 6. Continental Shelf
2. Coastal states, including states
bordering closed or semi‐closed states, Q: What are the two categories of continental
whose geographical situations make shelf?
them dependent on the exploitation of

the living resources of the EEZ of other
coastal states in the region. (Magallona, A: The two categories are:
2005, Article 70[2], UNCLOS) 1. Continental shelf
a. Geological continental shelf
Q: What are the rights of land‐locked states and b. Juridical/Legal Continental Shelf
2. Extended Continental Shelf
geographically disadvantaged states?

A:
1. Land‐locked States shall have the right
to participate, on an equitable basis, the
exploitation of an appropriate part of
the surplus of the living resources of the
exclusive economic zones of coastal
States of the same subregion or region,
taking into account the relevant
economic and geographical
circumstances of all States concerned.
(Article 69[1], UNCLOS)

2. Developed land‐locked States shall be
entitled to participate in the
exploitation of living resources only in
the exlusive economic zones of
developed coastal States of the same
subregion or region having regard to the

extent to which the coastal State, in

273

Q: What is the geological continental shelf? A: Yes, wherever the margin does not extend
beyond the 200 nautical miles from the baseline.
A: It comprises the entire prolongation of the (Magallona, 2005, Article 76[1], UNCLOS)
coastal state’s land mass and extends up to the
outer edge of the continental margin. It starts Q: May the Continental Margin extend beyond
from the baseline from which the territorial sea is the 200 nautical mile?
measured and has its outer limit at the outer
edge of the continental margin which may extend A: Yes, the coastal State shall establish the outer
beyond the 200 nautical miles from the baseline, edge of the continental margin wherever the
or may fall short of that distance. margin extends beyond the 200 nautical miles
(Magallona,2005) from the baselines. In establishing the
Continental Margin it shall either use:
Q: What is the continental shelf (Juridical/Legal 1. A line drawn by reference to points no more
Continental Shelf)? than 60 nautical miles form the foot of the
continental slope, or
2. A line drawn by reference to points at which
A: It comprises the sea‐bed and subsoil of the
the thickness of sediments is less than one
submarine areas that extend beyond its territorial percent of the distance to the base of the
sea throughout the natural prolongation of its continental slope. (Article 76[4], UNCLOS)
land territory to the outer edge of the continental
margin or to a distance of 200 nautical miles Q: What is the permissible breadth of the
beyond the baselines from which the breadth of continental shelf?
the territorial sea is measured if the edge of the
continental margin does not extend up to that A: Under the said UN Convention, it extends to a
distance. (Article 76[1], UNCLOS) distance not extending 200 nautical miles from
the baselines. However, if the coastal State
Note: The rights of the Coastal State over the succeeds in its application for an extended
continental shelf do not depend on occupation, continental shelf, it may extend to not more than
effective or notional, or on any express 350 nautical miles. (Article 76[1][5], UNCLOS)
proclamation. (Article 77[3], UNCLOS)
Note: Under Presidential Proclamation No. 370, the
Q: How are the two shelves unified? continental shelf has no such legal limit. It extends
outside the area of the territorial sea “to where the
A: The UNCLOS unifies the two shelves into one depth of the superjacent waters admits of the
by providing that the continental shelf extends to exploitation of such natural resources.” In this case,
the breadth of either shelf, whichever is the exploitation of resources may go beyond the 200
farthest. (Magallona, 2005; Article 76[1][4], nautical miles.
UNCLOS)

Q: What is the continental margin? 6.a. Extended Continental Shelf

A: It is the submerged prolongation of the land Q: What is the Extended Continental Shelf?
mass of the coastal state, consisting of the
continental shelf proper, the continental slope A: It is that portion of the continental shelf that
and the continental rise. It does not include the lies beyond the 200 nautical miles limit in the
deep ocean floor with its ocean ridges or the juridical/legal continental Shelf. (Ibid)
subsoil. (Article 76[3] , UNCLOS)
Q: What is the Commission on the Limits of the
Q: May the Continental Shelf extend farther that Continental Shelf (CLSC)?
the continental margin?
A: It is that facilitates the implementation of the
UNCLOS in respect of the establishment of the
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POLITICAL LAW TEAM:
VILLAMOR.

outer limits of the continental shelf beyond 200 Note: State may make reasonable measures for
nautical miles (M) from the baselines from which the prevention, reduction and control of
the breadth of the territorial sea is measured. pollution from pipelines. The laying of cables is
limited by the right of the coastal state to take
Q: What is the Benham Plateau? measures in exploring its continental shelf,
exploiting the natural resources, and the
protection of the marine environment from
A: Also known as the Benham Rise, it is an area
currently claimed, as part of its continental shelf, pollution. (Article 79, UNCLOS)
by the Republic of the Philippines. It has lodged
its claim on the area with the United Nations 3. Artificial islands, installations and
Commission on the Limits of the Continental Shelf structures on the continental shelf;
on April 8, 2009. (A Partial Submission of Data (Article 80, UNCLOS)
and Information on the Outer Limits of the
Continental Shelf of the Republic of the Philippines Note: Exclusive right to construct, to authorize
pursuant to Article 76(8) of the UNCLOS) the construction, operation and use of artificial
islands and installations. Jurisdiction is also
Q: What are the sovereign rights of a coastal exclusive. (Article 80, UNCLOS)
State over the continental shelf?
4. Marine scientific research (Article
246[1] , UNCLOS)
A: The sovereign rights include:

Note: May be conducted only with consent.
1. Right to explore and exploit its natural Beyond the 200 nautical mile, the costal State
resources; (Article 77[1], UNCLOS) cannot withhold consent to allow research on
the ground that the proposed research project
has direct significance to exploration or
Note: This right is exclusive. Should the Coastal
exploitation of natural resources. (Article
State not explore or exploit the natural
246[2][6], UNCLOS)
resources, no one may undertake these
activities without the express consent of the
5. Right to authorize and regulate drilling
coastal State. (Article 77[2], UNCLOS) Natural
on the continental shelf for all purposes
resources includes mineral and other non‐living (Article 81, UNCLOS)
resources of the seabed and subsoil together
with living organisms belonging to sedentary Note: This right is an exclusive.
species. (Article 77[4], UNCLOS)
Q: What is the effect of the rights of the coastal
Exploitation of the non‐living resources of the
State over the continental shelf on the
continental shelf beyond 200 nautical miles
superjacent waters and airspace?
would entail the Coastal State to make

payments or contributions in kind which shall
be made annually with respect to all production A: It does not affect the legal status of the
at site after the first five years of production superjacent waters or of the air space above
and 1% of the value or volume of production at those waters and such exercise of right must not
the site at the sixth year. It shall increase by 1% infringe or result in unjustifiable interference with
for each subsequent year until the 12th year navigation and other rights and freedoms of other
where it shall remain at 7%. (Article 82[1][2], States. (Article 78[1][2], UNCLOS)
UNCLOS)
Q: What is an island?
XPN: Developing State which is a net importer
of a mineral resource produced from its A: It is a naturally formed area of land,
continental shelf. (Article 82[3], UNCLOS) surrounded by water, which is above water at
high tide.
2. To lay submarine cables and pipelines

on the continental shelf; (Article 79[1],
UNCLOS) Q: Is the continental shelf of an island
recognized?
275

A: Yes. However, rocks which cannot sustain
human habitation or economic life shall have no XPN: However, the arrest or boarding of a
continental shelf or EEZ. vessel sailing in the high seas may be made by
a State, other than the flag‐State of such
Q: What are high or open seas? vessel, in the following instances:
1. A foreign merchant ship by the coastal
A: The waters which do not constitute the State in its internal waters, the
internal waters, archipelagic waters, territorial territorial sea and the contiguous zones
for any violation of its laws.
sea and exclusive of the economic zone of a state.
2. A foreign merchant ship for piracy.
They are beyond the jurisdiction and sovereign 3. Any ship engaged in the slave trade.
rights of states. (Article 86, UNCLOS) 4. Any ship engaged in unauthorized
broadcasting.
It is treated as res communes or res nullius, and 5. A ship without nationality, or flying a
thus, are not part of the territory of a particular false flag or refusing to show its flag.
State. (Article 89, UNCLOS) (Salonga & Yap, 1992)

Q: What is flag of convenience?
Q: What are the freedoms of the high seas?

A: It refers to foreign flag under which a
A: These are the freedom of:
merchant vessel is registered for purposes of
1. Navigation
2. Overflight reducing operating costs or avoiding government
3. To lay submarine cables and pipelines regulations.
4. To construct artificial islands and other
installations permitted under Q: A crime was committed in a private vessel
international law registered in Japan by a Filipino against an
5. Fishing Englishman while the vessel is anchored in a port
6. Scientific research (Article 87[1] in
of State A. Where can he be tried?
relation to Article 90, UNCLOS)

Note: This are open to all States and shall be A: Under both the English and French rules, the
exercised with due regard for the interests of other crime will be tried by the local State A, if serious
States in their exercise of the freedom of the high enough as to compromise the peace of its port;
seas. (Article 87[2], UNCLOS) otherwise by the flag State, Japan if it involves
only the members of the crew and is of such a
Q: What is flag State? petty nature as not to disturb the peace of the
local State.
A: It refers to the State whose nationality the
ship possesses; for it is nationality which gives the Note: In the French rule, it recognizes the jurisdiction
right to fly a country’s flag. (Salonga & Yap, 1992) of the flag country over crimes committed on board
In the high seas, a state has exclusive jurisdiction the vessel except if the crime disturbs the peace,
over ships sailing under its flag. It is required order and security of the host country. In English
rule, the host country has jurisdiction over the
however, that there exists a genuine link between
crimes committed on board the vessel unless they
the State and the ship. (Article 91[1], 92[2 ,
involve the internal management of the vessel.
UNCLOS)

Q: When may a State exercise jurisdiction on
Q: What laws apply to vessels sailing in the high
open seas?
seas?

A:
A:
1. Slave trade
GR: Vessels sailing on the high seas are subject
2. Hot pursuit
only to international law and to the laws of the 3. Right of approach
flag State. 4. Piracy
276
POLITICAL LAW TEAM:
VILLAMOR.

Q: What is the duty of every State in the A: Piracy consists of any of the following acts:
transportation of slaves? 1. Illegal acts of violence or detention, or
any act of depredation, committed for
A: Every state shall take effective measures to private ends by the crew or the
passengers of a private ship or a private
prevent and punish the transport of slaves in
aircraft and directed:
ships authorized to fly its flag and to prevent the a. On the high seas, against
unlawful use of the flag for that purpose. Any another ship or aircraft, or
slave taking refuge on board any ship, whatever against persons or property on
its flag, shall ipso facto be free. (Article 99, board such ship or aircraft
UNCLOS) b. Against a ship, aircraft,
persons or property in a place
outside the jurisdiction of any
Q: What is the doctrine of hot pursuit?
State
2. Act of voluntary participation in the
A: It provides that the pursuit of a vessel maybe operation of a ship or of an aircraft with
undertaken by the coastal State which has “good knowledge of facts making it a pirate
reason to believe that the ship has violated the ship or aircraft;
laws and regulations of that State”. 3. Act of inciting or of intentionally
facilitating an act described above.
(Article 101, UNCLOS)
Q: What is the doctrine of hot pursuit?

Note: If committed by a warship, government
A: It provides that the pursuit of a vessel maybe ship or governmental aircraft whose crew
undertaken by the coastal State which has “good mutinied and taken control of the ship or
reason to believe that the ship has violated the aircraft, it is assimilated to acts committed by a
laws and regulations of that State”. private ship or aircraft. (Article 102, UNCLOS)

Q: What are the elements of the doctrine of hot Q: A Filipino owned construction company with
pursuit? principal office in Manila leased an aircraft
registered in England to ferry construction
A: Its elements are the following: workers to the Middle East. While on a flight to
Saudi Arabia with Filipino crew provided by the
1. The pursuit must be commenced when lessee, the aircraft was highjacked by drug
the ship is within the internal waters, traffickers. The hijackers were captured in
territorial sea or the contiguous zone of Damaseus and sent to the Philippines for trial.
the pursuing State, and may only be Do courts of Manila have jurisdiction over the
continued outside if the pursuit has not case?
been interrupted
2. It is continuous and unabated A: Yes. Hijacking is actually piracy, defined in
3. Pursuit conducted by a warship, military People v. Lol‐lo (G.R. No. 17958 Feb. 27, 1922) as
aircraft, or government ships robbery or forcible depredation in the high seas
authorized to that effect. without lawful authority and done animo furandi
and in the spirit and intention of universal
Q: What is arrival under stress? hostility. Piracy is a crime against all mankind.
Accordingly, it may be punished in the competent
A: It refers to involuntary entrance of a foreign tribunal if any country where the offender may be
vessel on another state’s territory which may be found or into which he may be carried. The
due to lack of provisions, unseaworthiness of the jurisdiction on piracy unlike all other crimes has
vessel, inclement weather, or other case of force no territorial limits. As it is against all, all so may
majeure, such as pursuit of pirates. punish it. Nor does it matter that the crime was
committed within the jurisdictional 3‐mile limit of
Q: What is piracy under the UNCLOS? a foreign State for those limits, though neutral to
war, are not neutral to crimes.
277

7. Tribunal of the Law of the Sea 2. Vice‐President
3. Registrar (Article 12, UNCLOS)
Q: What is the International Tribunal of the Law
of the Sea (ITLoS)? Q: What are the rules with regard to
membership of the Tribunal?
A: It is an independent judicial body established
by the Third United Nations Convention on the A:
Law of the Seato adjudicate disputes arising out 1. No two members of the Tribunal may
of the interpretation and application of the be nationals of the same State. (Article
3[1], UNCLOS)
Convention. It was established after Ambassador

Arvido Pardo Malta addressed the General Note: Otherwise, the person shall be
Assembly of the United Nations and called for “an deemed to be a national of the one in
effective international regime over the seabed which he ordinarily exercises civil and
and ocean floor beyond a clearly defined national political rights. (Ibid)
jurisdiction”. Its seat is in Hamburg, Germany.
2. There should be not fewer than three
Q: What is the jurisdiction of the Tribunal? members from each geographical group
to be established by the GA. (Article

3[2] , UNCLOS)
A: Its jurisdiction comprises all disputes and all 3. No member of the Tribunal may
applications submitted to it and all matters exercise any political or administrative
specifically provided for in any other agreement function, or associate actively with or
which confers jurisdiction to the Tribunal. be financially interested in any of the
operations of any enterprise concerned
Q: What is the structure of the ITOLS? with the exploration for or exploitation
of the resources of the sea or the

seabed or other commercial use of the
A: It is made up of: sea or the seabed. (Article 7[1],
1. Judges Chamber UNCLOS)
a. Main Tribunal; 4. No member of the Tribunal may act as
b. Seabed Disputes; and agent, counsel or advocate in any case.
c. Special chambers (Article 7[2], UNCLOS)
2. Registry 5. No member of the Tribunal may
participate in the decision of any case in
Q: What is the composition of the tribunal? which he has previously taken part as
agent, counsel or advocate for one of
A: It is composed of 21 independent members, the parties, or as a member of a
national or international court or
elected from persons enjoying the highest
tribunal, or in any other capacity.
reputation for fairness and integrity and of
(Article 8[1], UNCLOS)
recognized competence in the field of the law of 6. If for some special reason a member of
the sea. (Article 2[1], UNCLOS) They serve for nine the Tribunal should not sit in a
years and may be re‐elected; provided however, particular case:
that of the members elected at the first election, a. Member should inform the
the terms of seven members shall expire at the President of the Tribunal;
(Article 8[2], UNCLOS) or
end of three years and the terms of seven more
b. President should give the
members shall expire at the end of six years. member notice accordingly.
(Article 5, UNCLOS) (Article 8[3], UNCLOS)

Q: Who are the officers of the Tribunal? Note: Any doubt shall be resolved by
decision of the majority of other members
A: The officers of the Tribunal to be elected of the Tribunal present. (Article 7, 8,
includes: UNCLOS)
1. President
278
POLITICAL LAW TEAM:
VILLAMOR.

Q: How are nominations and elections A: Yes, an ad hoc chamber may be formed
conducted? composed of three of its members (Article 36[1],
UNCLOS)
A:
1. Each State may nominate not more Q: What is the jurisdiction of the SDC?
than two persons.
2. Members are elected by secret Ballot. A: The categories of its jurisdiction are the
3. The persons elected to the Tribunal
following:
shall be those nominees who obtain the
largest number of votes and a two‐ 1. Disputes between State Parties
thirds majority of the States Parties concerning the interpretation or
present and voting, provided that such application.
majority includes a majority of the 2. Disputes between a State Party and the
States Parties. (Article 4, UNCLOS) Authority concerning:
a. Acts or omissions of the
Q: Do members enjoy any privileges and Authority or of a State Party
alleged to be violations of the
immunities?
convention;
b. Acts of the Authority alleged
A: Yes, they enjoy diplomatic privileges and to be in excess of jurisdiction
immunities. (Article 10, UNCLOS) of a misuse of power
3. Disputes between parties to a contract,
Q: What quorum required to constitute the being States Parties, the Authority or
the Enterprise, state enterprises and
Tribunal?
natural or juridical persons concerning:
a. Interpretation or application
A: of a relevant contract or a
GR: The quorum required is 11 elected plan of work;
members. (Article 13[1], UNCLOS) b. Acts or omissions of a party to
XPN: the contract relating to
1. Article 14 – Seabed Disputes Chamber activities in the Area and
(SDC) directed to the other party or
2. Article 15 – Special Chambers (SpecC) directly affecting its legitimate
interest.
4. Disputes between the Authority and a
Note: Question shall be decided by majority. In
prospective contractor who has been
case of an equality of votes, the President or
sponsored by a State
the member of the Tribunal who acts in his 5. Disputes between the Authority and a
place shall have a casting vote. (Article 29, State Party, a state enterprise or a
UNCLOS) natural or juridical person sponsored by
a State Party
Q: What is the composition of the SDC? 6. Any other disputes for which the
jurisdiction of the Chamber is
specifically provided for in the
A: It shall be composed of 11 members, selected
Convention. (Annex VI, Subsection 2,
by a majority of the elected members of the UNCLOS)
Tribunal from among them. (Article 35[1],
UNCLOS) Q: What are the other means established by the
Q: What is the required quorum for the SDC? Convention as alternative means for the
settlement of disputes?
A: The required quorum is 7 of the members.
(Article 35[7], UNCLOS) A: Aside from the ITLOS, it also established the
International Court of Justice, an arbitral tribunal
Q: May an ad hoc chamber be formed by the constituted in accordance with Annex VII to the
SDC? Convention and a special arbitral tribunal
constituted in accordance with Annex VIII of the
Convention.
279

l. INTERNATIONAL ENVIRONMENTAL LAW abstraction but represents the living space, the
quality of life and the very human beings,
Q: What is International Environmental Law including generations unborn. The existence of
(IEL)? the general obligation of States to ensure that
activities within their jurisdiction and control
A: It is the branch of public international law respect the environment of other States or of
comprising "those substantive, procedural and areas beyond national control is now part of the
institutional rules which have as their primary corpus of international law relating to the
objective the protection of the environment," the environment. (Advisory Opinion on the Legality of
term environment being understood as the Threat or Use of Nuclear Weapons, July 8,
encompassing "both the features and the 1996). The Court has also no difficulty in
products of the natural world and those of human acknowledging that the concerns expressed by
civilization. (Philippe Sands, Principles of Hungaray for its natural environment in the
International Environmental Law, 2003) region affected by the Gabcikovo‐Nagyamaros
Project related to an “essential interes” of the
State, within the meaning given to that
1. Principle 21 of the Stockholm Declaration expression in Article 33 of the Draft of the
International Law Commission. (Case Concerning
Q: What is the Stockholm Declaration? the Gabcikovo‐Nagyamaros Project, September
25, 1997)
A: The Stockholm Declaration, or the Declaration
of the United Nations Conference on the Human Q: What is the principle of common but
Environment, was adopted on June 16, 1972 in differentiated responsibility?
Stockholm, Sweden. It contains 26 principles and
109 recommendations regarding the preservation A: This principle requires the protection of
and enhancement of the right to a healthy specified environmental resource or area as
environment. common responsibility but takes into account the
differing circumstances of certain States in the
Q: What does Principle 21 of the Stockholm discharge of such responsibilities. (Article 3[1],
Declaration provide? Framework Convention on Climate Chage)

A: This declares that States have Q: What is precautionary principle?
1. The sovereign right to exploit their own
resources pursuant to their own A: Where there are threats of serious or
environmental policies, and irreversible damage, lack of full scientific certainty
2. The responsibility to ensure that shall not be used as a reason for postponing cost‐
activities within their jurisdiction or effective measures to prevent environmental
control do not cause damage to the degradation. (Principle 15, Rio Declaration on
environment of other States or of areas Environment and Development [Rio Declaration])
beyond the limits of national
jurisdiction. Q: What is Polluter Pays Principle?

Q: Is Principle 21 of the Stockholm Declaration a A: It means that the party responsible for
part of customary law? producing the pollutants must bear responsibility
for shouldering the costs of the damage done to
A: Yes. The Court recognizes that the the environment. It is expressly stated in Principle
environment is daily under threat and that the 16 of the Rio Declaration on Environment and
use of nuclear weapons could constitute a Development: “National authorities should
catastrophe for the environment. The court also endeavor to promote the internalization of
recognizes that the environment is not an environment costs and the use of economic
instruments, taking into account the approach
280
POLITICAL LAW TEAM:
VILLAMOR.

that the polluter should, in principle, bear the 4. Principle of integration – the need to
cost of pollution, with due regard to the public ensure that environmental
interest and without distorting international trade considerations are integrated into
economic and other developmental
and investment.” (Principle 16, Rio Declaration)
plans, programs and projects, and that
development needs are taken into
Q: What are the other principles of IEL set forth account in applying environmental
in the Rio Declaration? objectives. (Magallona, citing Philippe
Sands, Principle of International
A: Environmental Law, 2003)
1. States have the sovereign right to
exploit their own resources pursuant to Q: What rules have been developed for the
their own environmental policies, and protection of the environment in armed conflict?
the responsibility to ensure that
activities within their jurisdiction or A:
control do not cause damage to the 1. Each State Party undertakes not to
environment of other states or of areas engage in military or other hostile use
beyond the limits of national of environmental modification
jurisdiction (Principle 2) techniques having widespread, long‐
2. Right to development must be fulfilled lasting or severe effects as the means of
so as to equitably meet development destruction, damage or injury to any
needs of present and future other Party State (Article 1 of the
generations (Principle 3) Convention on the Prohibition of
3. In order to achieve sustainable Military or other Hostile Use of
development, environmental protection Environmental Modification Techniques
shall constitute an integral part of the or the Environmental Modification
development process and cannot be Convention [ENMOD])
considered in isolation from it.
(Principle 4)
Note: Environmental Modification Techniques refers

to any technique for the changing through the
Q: What is sustainable development?
deliberate manipulation of natural processes the

dynamics, composition or structure of the earth
A: It is a development that meets the needs of including its biota lithosphere, hydrosphere and
the present without compromising the ability of atmosphere or outer space. (Article II, ENMOD)
future generations to meet their own needs.
Brundtland Report, 1987, “Our Common Future”, 2. Prohibition of the employment of
World Commission on Environment and methods or means of warfare which are
Development) intended, or may be expected, to cause
widespread, long‐term and severe
Q: What are the principles that embody damage to the natural environment.
(Article 35 (3) of Protocol I Additional to
Sustainable Development?
the Geneva Convention of 1949)
A.:

1. Principle of intergenerational equity – Q: What does pollution mean?
the need to preserve natural resources

for the benefit of future generations.
A: It means any introduction by man, directly or
2. Principle of sustainable use – the aim of
exploiting natural resources in a indirectly, of substance or energy into the
manner which is "sustainable," or environment resulting in deleterious effects of
"prudent," or "rational," or "wise," or such nature as to endanger human health, harm
"appropriate." living resources, ecosystem, and material
3. Principle of equitable use or property and impair amenities or interfere with
intragenerational equity – the equitable
other legitimate uses of the environment.
use of natural resources, which implies
that use by one state must take into (Magallona, citing ILA Reports, Vol. 60, 1982)
account the needs of other states.

281

m. INTERNATIONAL COURT OF JUSTICE (ICJ) A: Advisory opinions may be given by the ICJ upon
request of the Gen Assembly or the Security
Q: What is the ICJ? Who are the parties to the Council, as well as other organs of the United
statute of the ICJ? Nations, when authorized by the General
Assembly, on legal questions arising within the
A: The ICJ is the judicial organ of the United
scope of their activities.
Nations.
Q: May the ICJ give advisory opinion regarding
All members of the United Nations are ipso facto
the wall separating Israel and Palestine in ES‐
parties to the Statute of the ICJ. A non‐member
10/14?
may become a party on conditions to be
determined in each case by the General Assembly A: The Court has jurisdiction to give the advisory
upon the recommendation of the Security opinion requested by resolution ES‐10/14 of the
Council. General Assembly.
Q: What is the composition of the ICJ? When seized of a request for an advisory opinion,
the Court must first consider whether it has
A: The ICJ is composed of 15 members who are
jurisdiction to give opinion requested and
elected by the absolute majority vote in the
whether, should the answer be in the affirmative,
General Assembly and the Security Council.
there is any reason why it should decline to
Q: What are the requirements for being a judge answer such jurisdiction. The competence of the
in the ICJ? Court in this regard is based on Article 65, par. 1,
of its Statute, according to which the Court “may
A: The Judges must be of high moral character give an advisory opinion on any legal question at
and possess the qualifications required in their the request of whatever body may be authorized
respective countries for appointment to their by or in accordance with the Charter of the
highest judicial offices or are jurisconsults of United Nations to make such request. It is a
recognized competence in international law. No precondition of the Court’s competence that the
two of them may be nationals of the same State. advisory opinion be requested by an organ duly
In the event that more than one national of the authorized to seek it under the Charter, that it be
same State obtain the required majority, the requested on a legal question, and that, except in
eldest shall be considered elected. the case of the General Assembly or the Security
Council, that question should be one arising
Q: What are the principal functions of the ICJ? within the scope of the activities of the
requesting organ.
A:
1. To render advisory opinions; and It is for the Court to satisfy itself that the request
2. To decide contentious cases which for an advisory opinion comes from an organ or
includes:
agency having competence to make it. In the
a. The interpretation of any treaty,
present instance, the Court notes that the
any question of international law,
b. The existence of any fact which if General Assembly which seeks the advisory
established would constitute a opinion is authorized to do so by Article 96, par.
breach of international obligation; 1, of the Charter, which provides: “The General
and Assembly or the Security Council may request the
c. The nature and extent of International Court of Justice to give an advisory
reparation to be made for the
opinion on any legal question.”
breach of international obligation.

Q: Is it permissible for the ICJ to decide a case
Q: When may advisory opinions be given by the
without the application of the sources of law
ICJ?
provided in Article 38(1) of its Statute?
282
POLITICAL LAW TEAM:
VILLAMOR.

A: Yes, with agreement of the parties to the Q: What is the Principle of Complementarity?
dispute and by the power of the ICJ to decide the
case ex aequo et bono. A: This principle would not replace national
courts in criminal jurisdiction. If the national court
By this power the ICJ may decide the case without is able or willing to take cognizance of crimes that
the benefit of applying conventional rules, are also cognizable by the ICC, the latter would
customary norms or general principles of not take cognizance of the case. Only when the
international law. Instead it would apply national court creates an unjustified delay or
equitable considerations in the endeavor to when its proceedings are meant to shield an
achieve a balance of interests of the parties, on individual from criminal liability may the ICC take
grounds of fairness and justice. cognizance of the case.
Q: Does the principle of stare decisis apply to the Q: When may a State exercise jurisdiction over

ICJ? persons, whether military or civilian, suspected
or accused of a crime regardless of where the
A: No. Under Article 59, previous decisions have crime is committed?
no binding force except between the parties and
in respect to that particular case. A: The State shall exercise jurisdiction provided
any one of the following conditions are met:

n. INTERNATIONAL CRIMINAL COURT (ICC) 1. The accused is a Filipino citizen
2. The accused regardless of citizen or
Q: What is the ICC? residence, is present in the Philippines;
or
A: The ICC is an independent judicial institution 3. The accused has committed the said
created by the treaty known as Rome Statute crime against a Filipino citizen.
with the power to try and punish individuals for
Investigation or prosecution may be dispensed
the most serious crimes of international concern:
with if another court or international tribunal is
1. Genocide already conducting the investigation or
2. Crimes against humanity undertaking the prosecution of such crime.
3. Crimes of aggression, and Instead, the suspected or accused person will be
4. War crimes. surrendered or extradited to the appropriate
international court, if any, or to another State.
Q: What is the jurisdiction of the ICC?
No criminal proceedings shall be initiated against
A: The Rome Statute gives the ICC jurisdiction
foreign nationals suspected or accused of having
over the most serious crimes of international
committed the crimes defined and penalized
concern if they are committed after July 1, 2002,
under R.A. 9851 if they have been tried by a
either by:
competent court outside the Philippines in
respect to the same offense and acquitted, or
1. By a citizen of a State that accepts the
statute or having been convicted, already served their
2. By a person of any nationality on the sentence
territory of a State that accepts the
statute. Q: What are the jurisdictional rules governing
ICC?
The court may hold accountable any person aged
18 or older at the time of the crime without A:
regard to the individual’s official duties or 1. ICC jurisdiction is only limited to those
functions. Therefore, heads of State, legislators, crimes under its jurisdiction (Rationale
and other high‐ranking government officials are materiae)
2. ICC has jurisdiction only with crimes
not exempt from criminal responsibility.
committed after the entry into force of
283

its statute (July 1, 2002) (Jurisdiction
rationale temporis)
3. ICC has jurisdiction over crimes
committed in the territory of the States
Parties, without regard to the
nationality of the offender (Territorial
jurisdiction ‐ Rationale locus)
4. ICC has jurisdiction over the nationals of
a State party as to crimes within the
ICC’s jurisdiction (Personal jurisdiction –
Rationale personae)

Q: Is trial in absentia allowed?
A: No.
Q: Distinguish ICC from ICJ.
A:
International Criminal International Court
Court of Justice
As to what created each
Rome Statute US Charter
As to jurisdiction
Does not have
Has criminal jurisdiction to criminal jurisdiction
prosecute individuals to prosecute
individuals
As to parties
Individuals States
As to independence
The ICJ is the
The ICC is independent of
principal judicial
the UN
organ of the UN

284
POLITICAL LAW TEAM:
VILLAMOR.

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