POLITICAL AND

INTERNATIONAL LAW
Public International Law
Part 2
 G. Doctrine of State Responsibility 3. Characterization of an act of a State as
internationally wrongful is governed by
international law. Such characterization is
1. Every internationally wrongful act of a
not affected by the characterization of the
State entails the international
same act as lawful by internal law (Art. 3,
responsibility of that State (Art. 1, Draft
Draft Articles). NOTE: “Serious breaches
Articles on the Responsibility of States for
of obligations under peremptory norms of
Internationally Wrongful Acts or “Draft
general international law” – A breach of
Articles”, Official Records of the General
such an obligation is serious if it involves
Assembly, Fifty-sixth session, Supplement No.
a gross or systematic failure by the
10 [A/56/10], chp.IV.E.1,)
responsible State to fulfill the obligation
(Art. 41, Draft Articles).
2. Elements (Art. 2, Draft Articles). There is
an internationally wrongful act of a State
4. Acts that are attributable to states under
when conduct consisting of an action or
the draft Articles:
omission:

a. Is attributable to the State under

international law; and

b. Constitutes a breach of an international

obligation of a State

Attribution of
conduct to a State
1. Conducts of Organ includes any person or entity which has that status in accordance
organs of a with the internal law of the State.
State Conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial
or any other functions, whatever position it holds in the organization of the
State, and whatever its character as an organ of the central government or of
a territorial unit of the State (Art. 4).
2. Conducts of The conduct of a person or entity which is not an organ of the State under
persons or article 4 but which is empowered by the law of that State to exercise
entities elements of the governmental authority shall be considered an act of the
exercising State under international law, provided the person or entity is acting in that
elements of capacity in the particular instance (Art. 5).
governmental
authority
3. Conducts of The conduct of an organ placed at the disposal of a State by another State
organs placed shall be considered an act of the former State under international law if the
at the disposal organ is acting in the exercise of elements of the governmental authority of
of a State by

1
 another State the State at whose disposal it is placed (Art. 6).
4. Attribution of The conduct of an organ of a State or of a person or entity empowered to
conduct to a exercise elements of the governmental authority shall be considered an act
State of the State under international law if the organ, person or entity acts in that
capacity, even if it exceeds its authority or contravenes instructions (Art. 7).
5. Conduct The conduct of a person or group of persons shall be considered an act of a
directed or State under international law if the person or group of persons is in fact
controlled by a acting on the instructions of, or under the direction or control of that State in
State carrying out the conduct (Art.8).
6. Conduct The conduct of a person or group of persons shall be considered an act of a
carried out in State under international law if the person or group of persons is in fact
the absence or exercising elements of the governmental authority in the absence or default
default of the of the official authorities and in circumstances such as to call for the exercise
official of those elements of authority (Art. 9).
authorities
7. Conduct of an The conduct of an insurrectional movement which becomes the new
insurrectional government of a State shall be considered an act of that State under
or other international law.
movement The conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of a pre-existing State or in a
territory under its administration shall be considered an act of the new State
under international law.
This article is without prejudice to the attribution to a State of any conduct,
however related to that of the movement concerned, which is to be
considered an act of that State by virtue of articles 4 to 9 (Art. 10).
8. Conduct Conduct which is not attributable to a State under the preceding articles
acknowledged shall nevertheless be considered an act of that State under international law
and adopted if and to the extent that the State acknowledges and adopts the conduct in
by a State as question as its own (Art. 11).
its own
1) The responsible State is under an
5. Legal consequences of an internationally obligation to make full reparation
wrongful act (Art.30, Draft Articles). The for the injury caused by the
State responsible for the wrongful act is internationally wrongful act:
under the obligation to:
a. Cease the act if it is still continuing; a) Injury includes any damage,
and whether material or moral,
b. Offer appropriate assurances and caused by the internationally
guarantees of non-repetition wrongful act of a State.
c. Reparation (Art. 31, Draft Articles):
b) Forms of reparation:
1. Restitution (Art. 35, Id);

2
 2. Compensation (Art. 36, Id);
3. Satisfaction (Art. 37, Id);
4. Interest (Art 38, Id).
c) Full reparation for the injury
caused by the internationally
wrongful act shall take the form
of restitution, compensation and
satisfaction, either singly or in
combination (Art. 34, Id).
I. EXTRADITION
1. The surrender of a person by one state to
another state where he is wanted for
prosecution or, if already convicted, for
punishment (Id.).
2. Basis of extradition: Treaty. In the absence
of a treaty, local state may grant asylum to
the fugitive; or, if surrender is made, the
same is merely a gesture of comity (Id.).

d) Contribution to the injury. In the

determination of reparation, Fundamental principles
account shall be taken of the
contribution to the injury by
1. Based on consent (expressed in treaty or
willful or negligent action or
manifested as an act of goodwill);
omission of the injured State or
any person or entity in relation to
whom reparation is sought (Sec. 2. Principle of Specialty (A fugitive who is
39). extradited may be tried only for the crime
specified in the request for extradition
and included in the list of offenses in the
e) Particular consequence of a
extradition treaty).
serious breach under peremptory
norms of general international
law (Art. 41, Draft Articles): 3. Any person may be extradited (whether
national of the requesting state, of the
state of refuge, has the right to object to a
i. States shall cooperate to bring
violation of this principle).
to an end through lawful
means any serious breach;
ii. No State shall recognize as 4. Political and religious offenders are
lawful a situation created by generally not subject to extradition.
a serious breach nor render
aid or assistance in NOTE: Attentat clause – the murder of a
maintaining that situation; head of state or any member of family is
iii. Other consequences referred not to be regarded as political offense.
to in this Part IV (of the Draft Neither is genocide.
Articles) and to such further
consequences that a breach to
5. In the absence of special agreement, the
which this chapter (III)
offense must have been committed
applies may entail under
within the territory or against the interest
international law.
of the demanding State.

3

6. Rule of Double Criminality. The act for
which the extradition is ought to must be
punishable in both the requesting and
requested states.
NOTE: In “Non-List” types of extradition
treaties, offenses punishable under the laws
of both states by imprisonment of one year or
more are included among the extraditable
offenses.
Five Postulates of Extradition
1. Extradition Is a Major Instrument for
the Suppression of Crime. Extradition
facilitates the arrest and the custodial
transfer of a fugitive from one state to
the other.
2. The Requesting State Will Accord Due
Process to the Accused. An extradition
treaty presupposes that both parties
thereto have examined, and that both
accept and trust, each other’s legal
system and judicial process; duly
authorized representative’s signature on
an extradition treaty signifies confidence
in the capacity and the willingness of the
other state to protect the basic rights of
the person sought to be extradited.
3. The Proceedings Are Sui Generis. It is
not a criminal proceeding which will call
into operation all the rights of an accused
as guaranteed by the Bill of Rights. To
begin with, the process of extradition
does not involve the determination of
the guilt or innocence of an accused. His
guilt or innocence will be adjudged in
the court of the state where he will be
extradited.
4. Compliance Shall Be in Good Faith.
4
Verily, the State is bound by pacta sunt
servanda to comply in good faith with
our obligations under the Treaty. This
principle requires that the State delivers
the accused to the requesting country if
the conditions precedent to extradition,
as set forth in the Treaty, are satisfied.
5. There Is an Underlying Risk of Flight.
This prima facie presumption finds
reinforcement in the experience of the
executive branch: nothing short of
confinement can ensure that the accused
will not flee the jurisdiction of the
requested state in order to thwart their
extradition to the requesting state.
Adapted from US v. Purganan, G.R. No.
148571, September 24, 2002
Extradition proceeding v. Criminal
Proceeding
“An extradition proceeding is
summary in nature while criminal
proceedings involve a full blown trial.
In contradistinction to a criminal
proceeding, the rules of evidence in an
extradition proceeding allow
admission of evidence under less
stringent standards. In terms of the
quantum of evidence to be satisfied, a
criminal case requires proof beyond
reasonable doubt for conviction while
a fugitive may be ordered extradited
‘upon a showing of the existence of a
prima facie case.’ Finally, unlike in a
criminal case where judgment becomes
executory upon being rendered final,
in an extradition proceeding, our
courts may adjudge an individual
extraditable but the President has the
final discretion to extradite him.”
(Secretary of Justice v. Lation, G.R. No.
139465, October 17, 2000)
 Procedure for Extradition
1. Extradition REQUEST accompanied by
necessary papers relative to: (a) identity
of the wanted person; (b) crime alleged to
have been committed or of which he has
already been convicted;
2. Submission to Diplomatic channels of
state of refuge;
3. State of refuge will conduct a Judicial
Investigation to: (a) ascertain that the
crime is covered by extradition treaty; (b)
prima facie case against the fugitive
according to its own laws;
4. Issuance of Warrant of Surrender. If the
conditions stated above are satisfied, a
warrant of surrender shall be drawn;
5. Surrender of the Fugitive and delivery to
the requesting state.
Bail in Extradition Proceedings
1. The constitutional provision on bail does
not apply to extradition proceedings. It is
"available only in criminal proceedings".
(US v. Purganan, supra).
NOTE: It does not apply to extradition
proceedings because extradition courts
do not render judgments of conviction or
acquittal.
Moreover, the constitutional right to bail
"flows from the presumption of
innocence in favor of every accused who
should not be subjected to the loss of
freedom as thereafter he would be
entitled to acquittal, unless his guilt be
proved beyond reasonable doubt" (De la
5
Camara v. Enage, 41 SCRA 1, 6, September
17, 1971, per Fernando, J., later CJ). It
follows that the constitutional provision
on bail will not apply to a case like
extradition, where the presumption of
innocence is not at issue.
The provision in the Constitution stating
that the "right to bail shall not be
impaired even when the privilege of the
writ of habeas corpus is suspended" does
not detract from the rule that the
constitutional right to bail is available
only in criminal proceedings. It must be
noted that the suspension of the
privilege of the writ of habeas corpus
finds application "only to persons
judicially charged for rebellion or
offenses inherent in or directly connected
with invasion" (Sec. 18, Art. VIII,
Constitution). Hence, the second sentence
in the constitutional provision on bail
merely emphasizes the right to bail in
criminal proceedings for the
aforementioned offenses. It cannot be
taken to mean that the right is available
even in extradition proceedings that are
not criminal in nature.
2. While our extradition law does not
provide for the grant of bail to an
extraditee, however, there is no
provision prohibiting him or her from
filing a motion for bail, a right to due
process under the Constitution (Republic
of Hongkong v. Olalia, GR 153675, April 19,
2007).
Ratio:
a. the growing importance of the
individual person in public
international law who, in the 20th
century, has gradually attained global
recognition;
b. the higher value now being given to Rights of a person arrested and detained in
human rights in the international another State
sphere;

1. Right to have his request complied with by

c. the corresponding duty of countries
the receiving State to so inform the consular
to observe these universal human
post of his condition
rights in fulfilling their treaty
obligations; and 2. Right to be informed by the competent
authorities of the receiving State without
d. the duty of this Court to balance the delay his rights as mentioned above
rights of the individual under our 3. Right to have his communication
fundamental law, on one hand, and addressed to the consular post forwarded by
the law on extradition, on the other. the receiving State accordingly (VCCR, Art.
36(1)).
NOTE: Clearly, the right of a prospective
extraditee to apply for bail in this
The ICJ has determined that Art. 36(1), of the
jurisdiction must be viewed in the light
VCCR creates individual rights for the
of the various treaty obligations of the
detained person in addition to the rights
Philippines concerning respect for the
accorded to the sending States (La Grand
promotion and protection of human
Case, Germany v. United States, ICJ Reports, p.
rights. Under these treaties, the
456, June 27, 2001).
presumption lies in favor of human
liberty. Thus, the Philippines should see
to it that the right to liberty of every Distinguished from Deportation
individual is not impaired (Id.).
Extradition Deportation
In his Separate Opinion in Purganan, then
Surrender of a Expulsion of an
Associate Justice, now Chief Justice
fugitive by one state alien who is
Reynato S. Puno, proposed that a new
to another where he considered
standard which he termed "clear and
is wanted for undesirable by the
convincing evidence" should be used in
persecution or, if local state, usually
granting bail in extradition cases.
already convicted, for but not necessarily
According to him, this standard should
punishment. to his own state.
be lower than proof beyond reasonable
Surrender is made at
doubt but higher than preponderance of Unilateral act of a
the request of the
evidence. The potential extraditee must local state and is
latter state on the
prove by "clear and convincing evidence" made in its own
basis of an
that (1) he is not a flight risk and (2) will interest.
extradition treaty.
abide with all the orders and processes of
Adapted from Nachura, supra.
the extradition court (Id.).

6
 J. BASIC PRINCIPLES OF
INTERNATIONAL HUMAN RIGHTS LAW
International Human Rights Law
In defining human right, the case of Simon, Jr.
vs. Commission on Human Rights, 229 SCRA
117, held: “It can hardly be disputed that the
phrase "human rights" is so generic a term
that any attempt to define it, albeit not a few
have tried, could at best be described as
inconclusive.”
Nevertheless, the case tried describe human
rights in the following manner:
1. Human rights are the basic rights which
inherent in man by virtue of his human.
They are the same in all parts of the
world.
2. Human rights include civil rights, such as
the right to life, liberty, and property;
freedom of speech, of the press, of
religion, academic freedom, and the
rights of the accused to due process of
law; political rights, such as the right to
elect public officials, to be elected to
public office, and to form political
associations and engage in politics; and
social rights, such as the right to an
education, employment, and social
services.
3. Human rights are not granted by the
State but can only be recognized and
protected by it.
4. Human rights include all the civil,
political, economic, social, and cultural
rights defined in the Universal
Declaration of Human Rights.
7
5. Human rights are rights that pertain to
man simply because he is human. They
are part of his natural birth, right, innate
and inalienable.
Characteristics of Human Rights:
1. Inherent – because they are not granted
by any person or authority. They do not
need any event for their existence;
2. Inalienable – they cannot be rightfully
taken away from a free individual;
3. Imprescriptible – they cannot be lost even
by a long passage of time;
4. Indivisible – they are not capable of
being divided;
5. Interdependent – the fulfillment or
exercise of one cannot be had without
the realization of the other;
6. Universal – all human beings,
irrespective of their origin, status or
condition or place where they live;
7. Fundamental – without them, the life
and the dignity of man will be
meaningless. (Excerpts from Coquia,
Human Rights, p. 4-7).
Scope of Human rights
The Universal Declaration of Human Rights,
as well as, or more specifically, the
International Covenant on Economic, Social
and Cultural Rights and International
Covenant on Civil and Political Rights,
suggests that the scope of human rights can
be understood to include those that relate to
an individual's social, economic, cultural,
political and civil relations. It thus seems to
closely identify the term to the universally
accepted traits and attributes of an individual,
along with what is generally considered to be
his inherent and inalienable rights,
encompassing almost all aspects of life (Simon
Jr. v. Commission on Human Rights, supra).
International Bill of Human Rights
Article 1. All human beings are born free
and equal in dignity and rights. They are
endowed with reason and conscience and
should act towards one another in a spirit of
brotherhood.
Article 2. Everyone is entitled to all the
rights and freedoms set forth in this
Declaration, without distinction of any kind,
such as race, colour, sex, language, religion,
political or other opinion, national or social
origin, property, birth or other status.
Furthermore, no distinction shall be made on
the basis of the political, jurisdictional or
international status of the country or territory
to which a person belongs, whether it be
independent, trust, non-self-governing or
under any other limitation of sovereignty.
Article 3. Everyone has the right to life,
liberty and security of person.
Article 4. No one shall be held in slavery
or servitude; slavery and the slave trade shall
be prohibited in all their forms.
Article 5. No one shall be subjected to
torture or to cruel, inhuman or degrading
treatment or punishment.
8
Declarations, Covenants, Protocols relating
to Human Rights
1. Universal Declaration of Human Rights
(UDHR);
2. International Covenant on Civil and
Political Rights (ICCPR);
3. International Covenant on Economic,
Social and Cultural Rights (ICESCR);
4. Optional Protocol to the ICCPR,
December 16 1966.
5. Second Optional Protocol to the ICCPR,
aiming at the abolition of the Death
Penalty.
Universal Declaration of Human Rights
The Universal Declaration of Human Rights
(UDHR) is a milestone document in the
history of human rights. Drafted by
representatives with different legal and
cultural backgrounds from all regions of the
world, the Declaration was proclaimed by the
United Nations General Assembly in Paris on
10 December 1948 General Assembly
resolution 217 A (III) as a common standard
of achievements for all peoples and all
nations. It sets out, for the first time,
fundamental human rights to be universally
protected (Official UN Universal Declaration of
Human Rights, Office of the High Commissioner
for Human Rights, http://www.ohchr.org/EN/
UDHR/Pages/Introduction.aspx).
Rights Protected:
1. The right to life, liberty, privacy and
security of person (Art. 3);
2. Prohibition against slavery (Art. 4);
3. Prohibition against torture or to cruel,
inhuman or degrading treatment or
punishment (Art. 5);
4. The right to recognition (Art. 6);
5. The right to equal protection (Art. 7);
6. The right to an effective remedy by the
competent national tribunals for acts
violating the fundamental rights (Art. 8);
7. Prohibition from arbitrary arrest,
detention or exile (Art. 9).
8. Full equality to a fair and public hearing
by an independent and impartial tribunal
(Art. 10);
9. The right to be presumed of innocent (Art
11);
10. Prohibition against arbitrary interference
with his privacy, family, home or
correspondence, nor to attacks upon his
honour and reputation (Art. 12);
11. The right to freedom of movement and
residence and right to leave any country,
including his own, and to return to his
country (Art. 13);
12. The right to seek and to enjoy in other
countries asylum from persecution (Art.
14);
13. The right to a nationality (Art 15);
14. The right to marry and to found a family
(Art. 16);
15. The right to own property alone as well
as in association with others (Art 17);
16. The right to freedom of thought,
conscience and religion (Art. 18);
17. The right to freedom of opinion and
expression (Art. 19);
18. The right to peaceful assembly and
association (Art 20);
19. The right to take part in the government
of his country; equal access to public
service (Art. 21).
9
20. Economic, social and cultural rights
enumerated in the UDHR include:
a. The right to social security (Art. 22);
b. The right to work, to just and
favourable conditions of work and
protection against unemployment
(Art. 23 [1]);
c. The right to equal pay for equal work
(Art. 23 [2]);
d. The right to just and favourable
remuneration ensuring for himself
and his family an existence worthy of
human dignity (Art. 23 [3]);
e. The right to form and join trade
unions (Art. 23 [4]);
f. The right to rest and leisure (Art. 24)
g. The right to a standard of living
adequate for the health and well-
being of himself and of his family,
including food, clothing, housing and
medical care and necessary social
services, and the right to security in
the event of unemployment, sickness,
disability, widowhood, old age or
other lack of livelihood in
circumstances beyond his control (Art
25).
h. The right to education (Art. 26);
i. The right freely to participate in the
cultural life of the community, to
enjoy the arts and to share in scientific
advancement and its benefits (Art.
27[1]).
j. The right to the protection of the
moral and material interests resulting
from any scientific, literary or artistic
production of which he is the author
(Art. 27 [2]).
 International Covenant on Civil and
Political Rights
Adopted and opened for signature,
ratification and accession by General
Assembly resolution 2200A (XXI) of 16
December 1966 entry into force 23 March 1976
1. Obligations of parties:
a. Each State Parties undertake to
respect and to ensure to all
individuals within their territory the
rights enumerated therein, without
distinction of any kind, such as race,
color, sec, language, religion, political
or other opinion, national or social
origin, birth or other status (Art. 2,
[1]).
b. Each State Parties are required to take
the necessary steps to adopt
legislative or other measures that are
necessary to give effect to the rights
recognized in the ICCPR (Art. 2, [2]).
c. State Parties must ensure that any
person whose rights or freedoms are
violate have an effective remedy,
notwithstanding that the violation has
been committed by person’s action in
an official capacity (Art. 2, [3] [a]).
d. State Parties must ensure that any
person claiming such remedy shall
have his right thereto determined by
competent judicial, administrative or
legislative authority, and that they
shall enforce the remedy when
granted (Art. 2, [3] [b and c]).
10
Republic v. Sandiganbayan, Ramas and
Dimaano, 407 SCRA 10
Even during the interregnum, the Filipino
people continued to enjoy, under the
Covenant and the Declaration, almost the
same rights found in the Bill of Rights of the
1973 Constitution.
The revolutionary government, after
installing itself as the de jure government,
assumed responsibility for the State’s good
faith compliance with the Covenant to which
the Philippines is a signatory. Article 2(1) of
the Covenant requires each signatory State
“to respect and to ensure to all individuals
within its territory and subject to its
jurisdiction the rights recognized in the
present Covenant.” Under Article 17(1) of
the Covenant, the revolutionary government
had the duty to insure that “[n]o one shall be
subjected to arbitrary or unlawful
interference with his privacy, family, home or
correspondence.”
The Declaration, to which the Philippines is
also a signatory, provides in its Article 17(2)
that “no one shall be arbitrarily deprived of
his property.” Although the signatories to the
Declaration did not intend it as a legally
binding document, being only a declaration,
the Court has interpreted the Declaration as
part of the generally accepted principles of
international law and binding on the State.
Thus, the revolutionary government was also
obligated under international law to observe
the rights of individuals under the
Declaration.
The revolutionary government did not
repudiate the Covenant or the Declaration
during the interregnum. Whether the
revolutionary government could have
repudiated all its obligations under the
Covenant or the Declaration is another matter
and is not the issue here. Suffice it to say that
the Court considers the Declaration as part of
customary international law, and that
Filipinos as human beings are proper subjects
of the rules of international law laid down in
the Covenant. The fact is the revolutionary
government did not repudiate the Covenant
or the Declaration in the same way it
repudiated the 1973 Constitution. As the de
jure government, the revolutionary
government could not escape responsibility
for the State’s good faith compliance with its
treaty obligations under international law.
2. Derogation. In time of public emergency
which threatens the life of the nation and
the existence of which is officially
proclaimed, the States Parties to the
present Covenant may take measures
derogating from their obligations under
the present Covenant to the extent strictly
required by the exigencies of the situation,
provided that such measures are not
inconsistent with their other obligations
under international law and do not
involve discrimination solely on the
ground of race, colour, sex, language,
religion or social origin (Art. 4[1]).
Any State Party to the present Covenant
availing itself of the right of derogation
shall immediately inform the other States
Parties to the present Covenant, through
the intermediary of the Secretary-General
of the United Nations, of the provisions
from which it has derogated and of the
reasons by which it was actuated. A
further communication shall be made,
through the same intermediary, on the
date on which it terminates such
derogation (Art. 4 [3]).
11
3. Non-derogable rights. No derogation from
articles 6, 7, 8 (paragraphs I and 2), 11, 15,
16 and 18 may be made under this
provision:
a. Right to life; right to seek pardon or
commutation of death sentence (Art.
6);
b. Right against torture or to cruel,
inhuman or degrading treatment or
punishment. In particular, no one
shall be subjected without his free
consent to medical or scientific
experimentation (Art. 7);
c. No one shall be held in slavery;
slavery and the slave-trade in all their
forms shall be prohibited (Art 8 [1]);
d. No one shall be held in servitude (Art.
8 [2]);
e. No one shall be imprisoned merely on
the ground of inability to fulfil a
contractual obligation (Art. 11);
f. No one shall be held guilty of any
criminal offence on account of any act
or omission which did not constitute a
criminal offence, under national or
international law, at the time when it
was committed. Nor shall a heavier
penalty be imposed than the one that
was applicable at the time when the
criminal offence was committed. If,
subsequent to the commission of the
offence, provision is made by law for
the imposition of the lighter penalty,
the offender shall benefit thereby (Art.
15);
g. The right to recognition everywhere
as a person before the law (Art 16).
h. Everyone shall have the right to
freedom of thought, conscience and
religion (Art. 18).
4. Other rights protected:
a. Prohibition against compulsory labor
(Art 8 [c]);
b. Right to liberty and security of person
(Art 9 [1]);
c. Right to be informed of any charges
(Art. 9 [2]);
d. Right to be brought promptly before a
judge or other officer authorized by
law to exercise judicial power and
shall be entitled to trial within a
reasonable time or to release (Art. 9
[3]);
e. Right to take proceedings before a
court (Art. 9 [4]);
f. Right to compensation for unlawful
arrest or detention (Art. 9 [5]);
g. All persons deprived of their liberty
shall be treated with humanity and
with respect for the inherent dignity
of the human person (Art. 10).
h. Right to liberty of movement and
freedom to choose residence; freedom
to leave any country, including his
own; prohibition from arbitrary
deprivation of the right to enter his
own country (Art. 12);
i. Rights of the accused (Art. 14);
j. Right to privacy, family, home or
correspondence; freedom from
unlawful attacks on his honor and
reputation; the protection of the law
against such interference or attack
(Art. 17);
k. Right to hold opinions without
interference, to freedom of expression
freedom to seek, receive and impart
information and ideas of all kinds,
regardless of frontiers, either orally, in
writing or in print, in the form of art,
or through any other media of his
choice (Art. 19);
12
l. Right of peaceful assembly (Art. 21);
m. Right to freedom of association with
others, including the right to form and
join trade unions for the protection of
his interests (Art. 22);
n. Rights related to family and marriage
(Art. 23);
o. Rights of children (Art 24);
p. Right and the opportunity to: (a) take
part in the conduct of public affairs,
directly or through freely chosen
representatives; (b) To vote and to be
elected at genuine periodic elections
which shall be by universal and equal
suffrage and shall be held by secret
ballot, guaranteeing the free
expression of the will of the electors;
(c) To have access, on general terms of
equality, to public service in his
country (Art. 25).
q. Right to equal protection of the law
(Art. 26)
r. In those States in which ethnic,
religious or linguistic minorities exist,
persons belonging to such minorities
shall not be denied the right, in
community with the other members
of their group, to enjoy their own
culture, to profess and practice their
own religion, or to use their own
language (Art. 27).
International Covenant on Economic, Social
and Cultural Rights
Adopted and opened for signature,
ratification and accession by General
Assembly resolution 2200A (XXI) of 16
December 1966 entry into force 3 January
1976, in accordance with article 27
1. Obligation of the State Parties:
a. Each State Party to the present
Covenant undertakes to take steps,
individually and through international
assistance and co-operation, especially
economic and technical, to the
maximum of its available resources,
with a view to achieving progressively
the full realization of the rights
recognized in the present Covenant by
all appropriate means, including
particularly the adoption of legislative
measures (Art. 2 [1]).
b. The States Parties to the present
Covenant undertake to guarantee that
the rights enunciated in the present
Covenant will be exercised without
discrimination of any kind as to race,
colour, sex, language, religion, political
or other opinion, national or social
origin, property, birth or other status
(Art. 2 [2]).
c. The States Parties to the present
Covenant undertake to ensure the
equal right of men and women to the
enjoyment of all economic, social and
cultural rights set forth in the present
Covenant (Art. 3).
2. Limitations: The States Parties to the
present Covenant recognize that, in the
enjoyment of those rights provided by the
State in conformity with the present
Covenant, the State may subject such
rights only to such limitations as are
determined by law only in so far as this
may be compatible with the nature of
these rights and solely for the purpose of
promoting the general welfare in a
democratic society (Art 4).
13
3. Developing countries, with due regard to
human rights and their national economy,
may determine to what extent they would
guarantee the economic rights recognized
in the present Covenant to non-nationals
(Art. 2[3]).
4. Rights protected:
a. Right to work; the right of everyone to
the opportunity to gain his living by
work which he freely chooses or
accepts (Art 6);
b. Right of everyone to the enjoyment of
just and favourable conditions of work
(fair wages and equal remuneration for
work of equal value without
distinction of any kind; decent living;
safe and healthy working conditions;
equal opportunity for promotion; rest
leisure and reasonable limitations of
working hours and periodic holiday
with pay) (Art. 7);
c. Right of everyone to form trade unions
and join the trade union of his choice
(Art 8[1]);
d. Right to strike (Art. 8[d]);
e. Right of everyone to social security,
including social insurance (Art. 9).
f. Widest possible protection and
assistance should be accorded to the
family; special protection should be
accorded to mothers during a
reasonable period before and after
childbirth; Special measures of
protection and assistance should be
taken on behalf of all children and
young persons without any
discrimination for reasons of parentage
or other conditions (Art. 10).
g. Right of everyone to an adequate
standard of living for himself and his
family, including adequate food,
 clothing and housing, and to the
continuous improvement of living
conditions (Art. 11[1]);
h. Right of everyone to be free from
hunger (Art. 11[2]);
i. Right of everyone to the enjoyment of
the highest attainable standard of
physical and mental health (Art. 12);
j. Right of everyone to education (Art.
13).
k. Right of everyone: (a) To take part in
cultural life; (b) To enjoy the benefits of
scientific progress and its applications;
(c) To benefit from the protection of the
moral and material interests resulting
from any scientific, literary or artistic
production of which he is the author
(Art. 15).
K. INTERNATIONAL HUMANITARIAN
LAW AND NEUTRALITY
1. International humanitarian law comprises
the rules which, in times of armed conflict,
seek to protect people who are not or are
no longer taking part in the hostilities, and
to restrict the methods and means of
warfare involved (International Committee
of the Red Cross, International Humanitarian
Law: Answers to your Questions, 2004 Ed., p.
4)
2. International humanitarian law (also
known as the law of war or law of armed
conflicts) has two branches:
a. Law of Geneva – designed to
safeguard military personnel who are
no longer taking part in the fighting
and people not actively involved in
hostilities.
14
Four Geneva Conventions:
i. Convention (I) for the
Amelioration of the Condition of
the Wounded and Sick in Armed
Forces in the Field. Geneva, 12
August 1949;
ii. Convention (II) for the
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea.
Geneva, 12 August 1949;
iii. Convention (III) relative to the
Treatment of Prisoners of War.
Geneva, 12 August 1949; and
iv. Convention (IV) relative to the
Protection of Civilian Persons in
Time of War. Geneva, 12 August
1949.
b. Law of The Hague – establishes the
rights and obligations of belligerents
in the conduct of military operations,
and limits the means of harming the
enemy (Id.).
3. Commencement of War. War is
commenced by (Nachura, supra.):
DECLARATION OF WAR
(Hague Convention of 1907)
REJECTION OF ULTIMATUM
(Hague Convention of 1907)
COMMISSION OF AN ACT OF
FORCE REGARDED BY ONE OF
THE BELLIGERENTS AS AN
ACT OF WAR.
4. Participants in war (Nachura, supra.): b. Spies – an individual is deemed a spy
only if, acting clandestinely or under
false pretenses, he obtains or seeks to
a. Combatant. Those who engage
obtain information in the zone of
directly in the hostilities”
operations of a belligerent, with the
intention of communicating it to the
1) Non-privileged: spies (they are not hostile party. When captured, may be
considered prisoners of war). proceeded against under the
2) Privileged (enjoy status as municipal law of the other belligerent,
prisoners of war): although under The Hague
Convention, may not be executed
without a trial. But if captured he has
a) Regular armed forces; succeeded in rejoining his army, must
b) Ancillary services be treated as a prisoner of war.
(doctors/chaplains);
c) Those who accompany the NOTE: Scouts, or soldiers in uniform,
armed forces, like was who penetrate the zone of operations
correspondence; of the hostile army to obtain
d) Levees en masse –inhabitants of information, are not spies.
unoccupied territory who, on
approach of the enemy,
c. Mercenaries – To be considered a
spontaneously take up arms
mercenary: (1) the person must be
to resist the invading troops
specially recruited to fight for a
without having had time to
particular armed conflict; (2) must
organize themselves,
take direct part in the hostilities; (3)
provided they carry arms and
motivated essentially by the desire for
observe the laws and customs
personal gain and, in fact, is provided
of war;
material compensation substantially
e) Franc tireurs/guerillas, in excess of that promised or paid to
provided they are combatants of similar rank and
commanded by a person functions in the armed forces of the
responsible for his party.
subordinates, wear fixed
distinctive emblem
recognizable at a distance, 5. Effects of Outbreak of war (Nachura,
carry their arms openly, and supra.):
conduct their operations
according to the laws and a. The laws of peace cease to regulate
customs of war; the relations between the
f) Officers and crew of belligerents and are superseded by
merchant vessels who the laws of war; while third states
forcibly resist attack. are governed by the laws of
neutrality in their dealings with the
belligerents.

15
b. Diplomatic and consular relations 6. Jus in bello v. Jus ad bello
are terminated, and their respective
representatives are allowed to return
Jus ad bellum Jus in Bello
to their own countries.
Law on the use of force or
c. Treaties of a political nature are law on the prevention of Law in war
automatically canceled, except those war
intended to operate during war. Its provisions
Multipartite treaties dealing with apply to the
technical and administrative matters An international warring parties
are merely suspended. agreement limiting the irrespective of
d. Individuals are impressed with justifiable reasons for a the reasons for
enemy character: country to declare war the conflict and
against another is whether or not
concerned with jus ad the cause
1) Nationality test – nationals of the
bellum. upheld by
other belligerent, wherever they
either party is
may be.
just.
2) Domiciliary test – domiciliary Seeks to limit resort to
aliens in the territory of the other force between States.
belligerent on the assumption It regulates only
that they contribute to its Under the UN Charter, those aspects of
economic resources. States must refrain from the conflict
3) Activities test – being foreigners, the threat or use of force which are of
they participate in the hostilities against the territorial humanitarian
in favor of the other belligerent. integrity or political concern
independence of another
state (Art. 2, para. 4)
e. Corporations and or other juridical
persons are considered enemies Sources: ICRC, International Humanitarian
where the controlling stockholders Law: Answers to your Questions, supra; ICRC,
are nationals of the other belligerent, IHL and other legal regimes – jus ad bellum and
and may not be allowed to continue jus in bello, http://www.icrc.org/eng/war-and-
operations. law/ihl-other-legal-regmies/jus-in-bello-jus-ad-
f. Enemy public property found in the bellum/overview-jus-ad-bellum-jus-in-bello.htm)
territory of the other belligerent at
the outbreak of the war is subject to
confiscation, private property is 7. Belligerent Occupation. The temporary
subject to requisition (sequestration; military occupation of the enemy’s
private property at the sea may be territory during war (Nachura, supra.).
confiscated, subject to certain
exceptions).
NOTE: Maintains effective control and
military superiority therein, being able to
send, in case of attack, sufficient forces to
assert its authority within reasonable time

16
(Tan Se Chiong v. Director of Prisons, L-
5920, June 25, 1955.
a. Effects: No change in sovereignty, but
the exercise of the powers of the
sovereign is suspended. Political
Laws, except the law on treason, are
suspended; municipal laws remain in
force (Laurel v. Misa, 77 Phil. 856).
b. Rights and duties of belligerent
occupant:
1) Re-establish or continue the
process of orderly administration,
including enactment of laws.
2) Adopt measures for the protection
of the inhabitants.
3) Requisition (sequester) of goods
(with proper cash or future
payment) and services in non-
military projects.
4) Demand taxes and contributions to
finance military and local
administrative needs. (Foraging:
the actual taking of provisions for
men and animals by the
occupation troops where lack of
time makes it inconvenient to
obtain supplies by usual or
ordinary methods. However,
compensation must be paid at the
end of the war).
5) Issue of legal currency.
6) Use enemy property, whether
public or private, but private
property is subject to
indemnification or return at the
end of the war.
7) Issue legal currency;
8) Use enemy property, whether
public or private, but private
17
property is subject to
indemnification or to return at the
end of the war (Republic v. Lara, 96
Phil. 170).
c. Rights of Angary. The right of a
belligerent state, in cases of extreme
necessity, to destroy or use neutral
property on its own or on enemy
territory, or on the high seas.
8. Suspension of hostilities (Nachura, supra.):
a. Suspension of arms. Temporary
cessation of hostilities by agreement
of the local commanders for such
purposes as gathering of the wounded
and burial dead.
b. Armstice. Suspension of hostilities
within a certain area or in the entire
region of the war, agreed upon by the
belligerents, usually for the purpose
of arranging the terms of the peace.
c. Cease-fire. Unconditional stoppage of
all hostilities, usually ordered by an
international body.
d. Truce. Conditional cease-fire for
political purposes.
e. Capitulation. Surrender of military
forces, places or districts, in
accordance with rules of military
honor.
9. Termination of War (Nachura, supra.).
a. Simple cessation of hostilities.
Usually, the principle of uti possedetis,
with respect to property and territory
possessed by the belligerents is
applied.
 b. Conclusion of a negotiated treaty of
peace.
c. Defeat of one of the belligerents
followed by a dictated treaty of peace,
or annexation of conquered territory.
10. Postiliminum. The revival or reversion to
the old laws and sovereignty of territory
which has been under belligerent
occupation once control of the belligerent
occupant is lost over the territory affected
(Kim Chan v. Valdez Tan Keh, 75 Phil 113).
NOTE: Judicial acts and proceedings
during belligerent occupation which were
not of political complexion remain valid
even after the liberation of the Philippines
(Ognir v. Driector of Prisons, 80 Phil. 401).
Categories of Armed Conflicts
An armed conflict exists whenever there is a
resort to armed force between States or
protracted armed violence between
governmental authorities and organized
armed groups or between such groups within
a State (Prosecutor v. Tadic, Case No. IT-94-1-
AR72, Interlocutory Appeal on Jurisdiction,
paras. 96–127 (Oct. 2, 1995).
International Armed Conflicts
1. All cases of declared war or of any other
armed conflict which may arise between
two or more of the High Contracting
Parties, even if the state of war is not
recognized by one of them (Art 2 [1],
Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armed
Forces in the Field of 12 August 1949 [GCI]).
18
2. These situations may take the form of a (1)
direct conflict between States or of (2)
intervention in a previously existing
internal conflict (Internationalized
Conflict) (Vite, Typology of armed conflicts in
international humanitarian law: legal concepts
and actual situations, in International
Review of the Red Cross, Volume 91, Number
87, March 2009).
3. It is indisputable that an armed conflict is
international (International Criminal
Tribunal for the former Yugoslavia [ICTY],
Prosecutor v. Tadic, Case No. IT-94-1-A,
Judgment [Appeals Chamber], 15 July 1999,
para 84, herein referred to as “Tadic”):
a. If it takes place between two or
more States.
b. In case of an internal armed conflict
breaking out on the territory of a
State, it may become international
(or, depending upon the
circumstances, be international in
character alongside an internal
armed conflict) if –
i. another State intervenes in
that conflict through its
troops; or alternatively if
ii. Some of the participants in
the internal armed conflict
act on behalf of that other
State.
4. Internationalized Conflict. If a foreign
Power sends troops into a territory to
support a movement opposing the local
government. Intervention may also take
place by proxy when that Power merely
supports and guides the uprising from a
distance (Tadic).
 a. Control by a State over subordinate
armed forces or militias or
paramilitary units may be of an
overall character (and must
comprise more than the mere
provision of financial assistance or
military equipment or training).
This requirement, however, does
not go so far as to include the
issuing of specific orders by the
State, or its direction of each
individual operation’ (Id.; see also
3. Common Article 3 also assumes that an
International Court of Justice (ICJ),
Application of the Convention on the
Prevention and Punishment of the
Crime of Genocide (Bosnia and
Herzegovina v. Serbia and
Montenegro), Judgment, ICJ Reports
2007, 26 February 2007).
b. The criterion of ‘overall control’ is
achieved when the foreign State
‘has a role in organizing,
coordinating or planning the
military actions of the military
group, in addition to financing,
4. The threshold of intensity required in that
training and equipping or
providing operational support to
that group (Id.; see also ICTY,
Prosecutor v. Naletilic, Case No. IT-
98-34-T, Judgment [Trial Chamber],
31 March 2003).
Internal or Non-International Armed
Conflict
5. Two
1. Basis: Armed conflict not of an
international character occurring in the
territory of one of the High Contracting
Parties (Art 3[1], GCI).
2. Armed conflicts that are not of an
international character are those in which
at least one of the parties involved is not
19
governmental. Depending on the case in
question, hostilities take place either
between one (or more) armed group(s)
and government forces or solely between
armed groups (ICTY, Prosecutor v. Tadic,
Decision on the Defence Motion for
Interlocutory Appeal on Jurisdiction; Vite,
Typology of armed conflicts in international
humanitarian law: legal concepts and actual
situations supra).
‘armed conflict’ exists, i.e. that the
situation reaches a level that distinguishes
it from other forms of violence to which
international humanitarian law does not
apply, namely “situations of internal
disturbances and tensions, such as riots,
isolated and sporadic acts of violence and
other acts of a similar nature” (Id.;
Additional Protocol II, Art. 1[2], ICTY,
Prosecutor v. Limaj, Case No. IT-03-66-T,
Judgment (Trial Chamber), 30 November
2005).
case is higher than for an international
armed conflict. Actual practice, in
particular that of the ICTY, reveals that
this threshold is reached every time that
the situation can be defined as ‘protracted
armed violence’ (Id., ICTY, Prosecutor v.
Tadic, Decision on the Defense Motion for
Interlocutory Appeal on Jurisdiction).
fundamental criteria (ICTY,
Prosecutor v. Tadic, Judgment (Trial
Chamber):
a. the intensity of the violence
b. the organization of the parties
NOTE: When one or other of these two
conditions is not met, a situation of
 violence may well be defined as internal Core International Obligations of States In
disturbances or internal tensions (Vite, International Humanitarian Law
supra).

1. Respect and ensure respect for the

In these situations, which do not Conventions in all circumstance (Art. 1,
necessarily degenerate into open struggle, GCI).
the authorities in power call upon
extensive police forces, or even armed
2. The High Contracting Parties undertake to
forces, to restore internal order (ICRC,
enact any legislation necessary to provide
Protection of Victims of Non-International
effective penal sanctions for persons
Armed Conflicts, Document presented at the
committing, or ordering to be committed,
Conference of government experts on the
any of the grave breaches of the present
reaffirmation and development of
Convention (Art. 49, GCI).
international humanitarian law applicable in
armed conflicts, Vol. V, Geneva, 24 May–12
June 1971, p. 79) 3. Each High Contracting Party shall be
under the obligation to search for persons
alleged to have committed, or to have
As for internal tensions, they cover less
ordered to be committed, such grave
violent circumstances involving, for
breaches, and shall bring such persons,
example, mass arrests, a large number of
regardless of their nationality, before its
‘political’ detainees, torture or other kinds
own courts. It may also, if it prefers, and
of ill-treatment, forced disappearance
in accordance with the provisions of its
and/or the suspension of fundamental
own legislation, hand such persons over
judicial guarantees (Y. Sandoz et al. (eds),
for trial to another High Contracting Party
Commentary on the Additional Protocols of 8
concerned, provided such High
June 1977 to the Geneva Conventions of 12
Contracting Party has made out a prima
August 1949, ICRC/Martinus Nijhoff,
facie case (Id.).
Geneva/The Hague, 1987, paras 66–118; E.
David, above note 7, pp. 184–19).
4. Each High Contracting Party shall take
measures necessary for the suppression of
War of National Liberation
all acts contrary to the provisions of the
present Convention other than the grave
A war of national liberation has been breaches defined in the following Article
described as: the armed struggle waged by a (Id.).
people through its liberation movement
against the established government to reach
5. Each High Contracting Parties shall adopt
self-determination (Higgins, The Application of
into domestic legislation the Geneva
International Humanitarian Law to Wars of
Convention and their Additional Protocol
National Liberation, Journal of Humanitarian
(Geneva Conventions I-IV, 49/50/129/146;
Assistance, 2004, citing Ronzitti in Cassese 1975,
Additional Protocol I, Art. 85[1]).
321).

20
 Principles of International Humanitarian
Law
Three Basic Principles
(Nachura, supra.)
I. Principle of Military Necessity. The
belligerent may employ any amount of
force to compel the complete submission
of the enemy with the least possible loss
of lives, time and money.
II. Principle of Humanity. Prohibits use of
any measure that is not absolutely
necessary for the purpose of the war.
III. Principle of Chivalry. Prohibits the
belligerents from the employment of
perfidious or treacherous methods such
as the use of illegal Red Cross emblem.
1. Parties to an armed conflict, together with
their armed forces, do not have unlimited
choice of methods or means of warfare.
They are prohibited from employing
weapons or means of warfare that cause
unnecessary damage or excessive suffering.
2. Principle of distinction. Parties to an armed
conflict shall, at all times, distinguish
between civilian population and the
combatants. Civilians shall be spared from
military attacks which shall be directed
only against military objectives.
3. Persons hors de combat are those who have
been injured in the course of hostile battle
action and are no longer able to directly
take part in hostilities. They shall be
protected and treated humanely without
any adverse distinction. Their right to life
and physical and moral integrity shall be
respected.
21
4. It is prohibited to kill or injure an enemy
who is hors de combat or who surrenders.
5. The wounded and the sick shall be
protected and cared for by the party to the
conflict which has them in its power.
Protection shall also apply to medical
personnel, establishments, transports and
material.
6. Combatants and civilian who are captured
by authority of the party to a dispute are
entitled to respect for their right to life,
dignity, conviction, and other personal
rights. They shall be protected against acts
of violence or reprisals (International Court
of Justice, Legality of the threat or use of
nuclear weapons, Advisory Opinion of 8 July
1996).
Treatment of civilians
(Geneva Convention (IV) relative to the Protection
of Civilian Persons in Time of War. Geneva, 12
August 1949 [GCIV])
1. Protected persons are entitled, in all
circumstances, to respect for their persons,
their honour, their family rights, their
religious convictions and practices, and
their manners and customs. They shall at
all times be humanely treated, and shall be
protected especially against all acts of
violence or threats thereof and against
insults and public curiosity (Art. 27,
GCIV).
2. Women shall be especially protected
against any attack on their honour, in
particular against rape, enforced
prostitution, or any form of indecent
assault (Id.).
3. Without prejudice to the provisions prohibited. Reprisals against protected
relating to their state of health, age and persons and their property are prohibited
sex, all protected persons shall be treated (Art. 33, GCIV).
with the same consideration by the Party
to the conflict in whose power they are,
9. The taking of hostages is prohibited (Art.
without any adverse distinction based, in
34, GCIV).
particular, on race, religion or political
opinion (Id.).
Protected Persons
(Art 4, GCIV)
4. However, the Parties to the conflict may
1. Persons who at a given moment and in
take such measures of control and security
any manner whatsoever find
in regard to protected persons as may be
themselves, in case of a conflict or
necessary as a result of the war (Id.).
occupation, in the hands of persons a
Party to the conflict or Occupying
5. The presence of a protected person may Power of which they are not nationals.
not be used to render certain points or
areas immune from military operations 2. Nationals of a neutral State, who find
(Art. 28, GCIV). themselves in the territory of a
belligerent State, and nationals of a co-
belligerent State, when the State of
6. No physical or moral coercion shall be
which they are nationals cease to have
exercised against protected persons, in
normal diplomatic representation in the
particular to obtain information from
State in whose hands they are.
them or from third parties (Art. 31, GCIV).

3. The whole of the populations of the

7. The High Contracting Parties specifically countries in conflict, without any
agree that each of them is prohibited from adverse distinction based, in particular,
taking any measure of such a character as on race, nationality, religion or political
to cause the physical suffering or opinion (Art, 13, GCIV).
extermination of protected persons in
their hands. This prohibition applies not
only to murder, torture, corporal
Persons Not Protected
punishment, mutilation and medical or
(Id.)
scientific experiments not necessitated by
The following categories of persons shall
the medical treatment of a protected
not be considered as protected persons
person, but also to any other measures of
under GCIV:
brutality whether applied by civilian or
military agents (Art. 32, GCIV).
1. Nationals of a State which is not
bound by the Convention are not
8. No protected person may be punished for protected by it.
an offence he or she has not personally
committed. Collective penalties and 2. Nationals of a neutral State, who find
likewise all measures of intimidation or of themselves in the territory of a
terrorism are prohibited. Pillage is

22
 belligerent State, and nationals of a
co-belligerent State, shall not be
regarded as protected persons while
the State of which they are nationals
has normal diplomatic representation
in the State in whose hands they are.
3. Persons protected by:
a. the Geneva Convention for the
Amelioration of the Condition of
the Wounded and Sick in Armed
Forces in the Field of August 12,
1949;
b. the Geneva Convention for the
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea
of August 12, 1949
c. By the Geneva Convention
relative to the Treatment of
Prisoners of War of August 12,
1949.
4. Where, in the territory of a Party to
the conflict, the latter is satisfied that
an individual protected person is
definitely suspected of or engaged in
activities hostile to the security of the
State (Art 5, GCIV).
5. Where in occupied territory an
individual protected person is
detained as a spy or saboteur, or as a
person under definite suspicion of
activity hostile to the security of the
Occupying Power, such person shall,
in those cases where absolute
military security so requires, be
regarded as having forfeited rights of
communication under the present
Convention (Art. 5, GCIV).
23
NOTE: In each case, such persons
shall nevertheless be treated with
humanity, and in case of trial, shall
not be deprived of the rights off air
and regular trial prescribed by the
present Convention. They shall also
be granted the full rights and
privileges of a protected person
under the present Convention at the
earliest date consistent with the
security of the State or Occupying
Power, as the case may be (Art. 5,
GCIV).
Prisoners of war
1. Prisoners of war are persons belonging to
one of the following categories, who have
fallen into the power of the enemy (Art.4,
Geneva Convention III relative to the
Treatment of Prisoners of War [GII]):
a. Members of the armed forces of a
Party to the conflict as well as
members of militias or volunteer
corps forming part of such armed
forces.
b. Members of other militias and
members of other volunteer corps,
including those of organized
resistance movements, belonging to
a Party to the conflict and operating
in or outside their own territory,
even if this territory is occupied,
provided that such militias or
volunteer corps, including such
organized resistance movements,
fulfil the following conditions:
i. that of being commanded by a
person responsible for his
subordinates;
 ii. that of having a fixed
distinctive sign recognizable at
a distance;
iii. that of carrying arms openly;
iv. that of conducting their
operations in accordance with
the laws and customs of war.
c. Members of regular armed forces
who profess allegiance to a
government or an authority not
recognized by the Detaining Power.
d. Persons who accompany the armed
forces without actually being
members thereof, such as civilian
members of military aircraft crews,
war correspondents, supply
contractors, members of labour
units or of services responsible for
the welfare of the armed forces,
provided that they have received
authorization from the armed
forces which they accompany, who
shall provide them for that purpose
with an identity card similar to the
annexed model.
e. Members of crews, including
masters, pilots and apprentices of
the merchant marine and the crews
of civil aircraft of the Parties to the
conflict, who do not benefit by
more favourable treatment under
any other provisions
international law.
f. Inhabitants of a non-occupied
territory who, on the approach of
the enemy, spontaneously take up
arms to resist the invading forces,
without having had time to form
themselves into regular armed
units, provided they carry arms
openly and respect the laws and
customs of war.
24
g. The following shall likewise be
treated as prisoners of war under
the present Convention:
i. Persons belonging, or having
belonged, to the armed forces
of the occupied country, if the
occupying Power considers it
necessary by reason of such
allegiance to intern them, even
though it has originally
liberated them while hostilities
were going on outside the
territory it occupies, in
particular where such persons
have made an unsuccessful
attempt to rejoin the armed
forces to which they belong
and which are engaged in
combat, or where they fail to
comply with a summons made
to them with a view to
internment.
ii. The persons belonging to one
of the categories enumerated in
the present Article, who have
been received by neutral or
non-belligerent.
2. Treatment of Prisoners of War:
of
a. Prisoners of war must at all times
be humanely treated (Art. 13,
GCIII);
b. Prisoners of war are entitled in all
circumstances to respect for their
persons and their honour (Art. 14,
GCIII).
c. The Power detaining prisoners of
war shall be bound to provide free
of charge for their maintenance and
for the medical attention required
 by their state of health (Art. 15,
GCIII).
d. Taking into consideration the
provisions of the present
Convention relating to rank and
sex, and subject to any privileged
treatment which may be accorded
to them by reason of their state of
health, age or professional
qualifications, all prisoners of war
shall be treated alike by the
Detaining Power, without any
adverse distinction based on race,
nationality, religious belief or
political opinions, or any other
distinction founded on similar
criteria (Art. 16, GCIII).
e. Prisoners of war may only be
transferred by the Detaining Power
to a Power which is a party to the
Convention and after the Detaining
Power has satisfied itself of the
willingness and ability of such
transferee Power to apply the
Convention (Art 12, GCIII).
3. A neutral Power which receives escaped
prisoners of war shall leave them at
liberty. If it allows them to remain in its
territory it may assign them a place of
residence. The same rule applies to
prisoners of war brought by troops taking
refuge in the territory of a neutral Power
(Art. 13, Hague Convention (V) [1907]).
Law on Neutrality
1. Neutrality is non-participation, directly or
indirectly, in a war between contending
belligerents (Nachura, supra.).
2. Rules of Neutrality. Neutrals have the
right and duty to (Id.):
25
a. To abstain from taking part in the
hostilities and from giving
assistance to either belligerent by:
(i) sending troops; (ii) the official
grant of loans; or (iii) the carriage of
contraband.
Contraband
Goods which, although neutral
property, may be seized by a
belligerent because they are useful
for war and are bound for a hostile
destination.
a. Absolute: guns, ammunition,
which are useful for war under
all circumstances;
b. Conditional: food and clothing,
which have both civilian and
military utility;
c. Free-list: medicines which are
exempt from the law on
contraband for humanitarian
reasons (Nachura, p. 708)
Doctrine of Ultimate Consumption
Goods intended for civilian uses may
ultimately find their way to and be
consumed by belligerent forces may
be seized on the way (Nachura, supra.).
Doctrine of continuous
voyage/continuous transport
Goods reloaded at an intermediate
port on the same vessel, or reloaded
on another vessel or other forms of
transportation may also be seized on
the basis of the doctrine of ultimate
consumption (Nachura, supra.).
 Doctrine of Infection Requisites:
Innocent goods shipped with
contraband may also be seized 1) Binding: duly communicated to
(Nachura, supra.). neutral states;
2) Effective: maintained by
Un-neutral service adequate forces so as to make
Acts of a more hostile character than ingress to and egress from the
carriage of contraband or breach of a port dangerous;
blockade, undertaken by merchant 3) Established by competent
vessel of a neutral state in aid of any of authority of the belligerent
the belligerents (Nachura, supra.). government;
4) Limited only to the territory of
the enemy;
a. To prevent its territory and other
5) Impartially applied to all states.
resources from being used in the
conduct of hostilities.
Visit and Search
Belligerent warships and aircraft have
b. To acquiesce to certain restrictions the right to visit and search neutral
and limitations which the merchant vessels to determine
belligerents may find to impose. whether they are connected with the
hostilities. (Nachura, supra.).
Blockade
A hostile operation by means of which Prize
vessels and aircraft of one of one Vessels captured for engaging in
belligerent prevent all other vessels, hostile activities (Nachura, supra.).
including those of neutral states from
leaving or entering the port or coasts They must not be confiscated
from international commerce and summarily, but brought before a prize
communications with other states court (a tribunal established by a
(Nachura, supra.). belligerent under its own laws, in its
territory or in the territory of its allies,
Pacific Blockade: applies only to applying international law in the
vessels of blockaded states, not to absence of special municipal
those other states (Id.). legislations).

3. Neutrality is terminated (Nachura, supra.):

a. A treaty of peace between the
belligerents;
b. Neutral state itself joins the war

26
 CRIMES PUNISHABLE UNDER THE
INTERNATIONAL CRIMINAL COURT
(ROME STATUTE)
The jurisdiction of the Court shall be limited
to the most serious crimes of concern to the
international community as a whole. The
Court has jurisdiction in accordance with
this Statute with respect to the following
crimes (Sec. 5, Rome Statute):
1) The crime of genocide;
2) Crimes against humanity;
3) War crimes;
4) The crime of aggression.
Crimes against humanity are certain acts that
are deliberately committed as part of a
widespread or systematic attack
directed against any civilian population or
an identifiable part of a population. The first
prosecution for crimes against
humanity took place at the Nuremberg
Trials. (Available at https://www.ictj.org/our-
work/transitional-justice-issues/criminal-
justice?gclid=CKDXpcKCss8CFRNvvAodqo8M
qQ)
An act of aggression is defined as the use of
armed force by one State against another
State without the justification of self-defense
or authorization by the Security Council. The
definition of the act of aggression, as well as
the actions qualifying as acts of aggression
contained in the amendments (for example
invasion by armed forces, bombardment and
blockade), are influenced by the UN General
Assembly Resolution 3314 (XXIX) of 14
December 1974. (Available at
http://www.iccnow.org/?mod=aggression)
WAR CRIMES
The Court shall have jurisdiction in respect
of war crimes in particular when committed
as part of a plan or policy or as part of a
27
large-scale commission of such crimes.
For the purpose of this Statute, ‘war crimes’
means:
1. Grave breaches of the Geneva
Conventions of 12 August 1949, namely,
any of the following acts against persons
or property protected under the
provisions of the relevant Geneva
Convention (Sec. 8, Rome Statute):
a) Willful killing;
b) Torture or inhuman treatment,
including biological experiments;
c) Willfully causing great suffering, or
serious injury to body or health;
d) Extensive destruction and
appropriation of property, not
justified by military necessity and
carried out unlawfully and wantonly;
e) Compelling a prisoner of war or
other protected person to serve in the
forces of a hostile Power;
f) Willfully depriving a prisoner of war
or other protected person of the
rights of fair and regular trial;
g) Unlawful deportation or transfer or
unlawful confinement;
h) Taking of hostages.
2. Other serious violations of the laws and
customs applicable in international
armed conflict, within the established
framework of international law…
3. In the case of an armed conflict not of an
international character, serious violations
of article 3 common to the four Geneva
Conventions of 12 August 1949, namely,
any of the following acts committed
against persons taking no active part in
the hostilities, including members of
armed forces who have laid down their
arms and those placed hors de combat by
 sickness, wounds, detention or any other
cause…
4. Paragraph 3 applies to armed conflicts
not of an international character and thus
does not apply to situations of internal
disturbances and tensions, such as riots,
isolated and sporadic acts of violence or
other acts of a similar nature.
5. Other serious violations of the laws and
customs applicable in armed conflicts not
of an international character, within the
established framework of international
law…
6. Paragraph 5 applies to armed conflicts
not of an international character and thus
does not apply to situations of internal
disturbances and tensions, such as riots,
isolated and sporadic acts of violence or
other acts of a similar nature. It applies to
armed conflicts that take place in the
territory of a State when there is
protracted armed conflict between
governmental authorities and organized
armed groups or between such groups.
L. LAW OF THE SEA
Baselines
The line from which a breadth of the
territorial sea and other maritime zones, such
as the “contiguous zone” and the “exclusive
economic zone” is measured. Its purpose is to
determine the starting point to begin
measuring maritime zones boundary of the
coastal state.
1. Normal baseline – the territorial sea is the
low-water line along the coast as marked
28
on large-scale charts officially recognized
by the coastal state (Art. 5, UN Convention
on the Law of the Sea [UNCLOS]).
2. Straight baseline – where the coastline is
deeply indented or cut into, or if there is a
fringe of islands along the coast in its
immediate vicinity, the method of straight
lines joining the appropriate points may
be employed in drawing the baseline from
which the breadth of the territorial sea is
measured (Art. 7, UNCLOS)
Archipelagic States
(Art 46, UNCLOS)
1. States constituted wholly by one or more
archipelagos and may include other
islands.
2. Archipelago 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 political entity, or which historically
have been regarded as such.
Straight Archipelagic Baselines
(Art. 47, UNCLOS)
1. An archipelagic State may draw straight
archipelagic baselines joining the
outermost points of the outermost islands
and drying reefs of the archipelago
provided that within such baselines are
included the main islands and an area in
which the ratio of the area of the water to
the area of the land, including atolls, is
between 1 to 1 and 9 to 1.
2. The length of such baselines shall not
exceed 100 nautical miles, except that up
to 3 per cent of the total number of
baselines enclosing any archipelago may
8. The baselines drawn in accordance with
exceed that length, up to a maximum
length of 125 nautical miles.
3. The drawing of such baselines shall not
depart to any appreciable extent from the
general configuration of the archipelago.
islands and drying reefs lying on the
perimeter of the plateau.
this article shall be shown on charts of a
scale or scales adequate for ascertaining
their position. Alternatively, lists of
geographical coordinates of points,
specifying the geodetic datum, may be
substituted.

4. Such baselines shall not be drawn to and
from low-tide elevations, unless
lighthouses or similar installations which
are permanently above sea level have been
built on them or where a low-tide
elevation is situated wholly or partly at a
distance not exceeding the breadth of the
territorial sea from the nearest island.
9. The archipelagic State shall give due
publicity to such charts or lists of
geographical coordinates and shall
deposit a copy of each such chart or list
with the Secretary-General of the United
Nations.
Archipelagic Waters

5. The system of such baselines shall not be

1. Waters enclosed by the archipelagic
applied by an archipelagic State in such a
baselines drawn in accordance (Art 49 [1],
manner as to cut off from the high seas or
UNCLOS).
the exclusive economic zone the territorial
sea of another State
2. Sovereignty of an archipelagic State
extends to archipelagic waters (Id.). This
6. If a part of the archipelagic waters of an
sovereignty extends to the air space over
archipelagic State lies between two parts
the archipelagic waters, as well as to their
of an immediately adjacent neighboring
bed and subsoil, and the resources
State, existing rights and all other
contained therein (Art. 49[2], UNCLOS).
legitimate interests which the latter State
has traditionally exercised in such waters
and all rights stipulated by agreement 3. The regime of archipelagic sea lanes
between those States shall continue and be passage established Art 49 of the
respected. UNCLOS shall not in other respects affect
the status of the archipelagic waters,
including the sea lanes, or the exercise by
7. For the purpose of computing the ratio of
the archipelagic State of its sovereignty
water to land under paragraph l, land
over such waters and their air space, bed
areas may include waters lying within the
and subsoil, and the resources contained
fringing reefs of islands and atolls,
therein (Art. 49[4], UNCLOS).
including that part of a steep-sided
oceanic plateau which is enclosed or
nearly enclosed by a chain of limestone

29
 Archipelagic Sea Lanes Passage
(Art. 53, UNCLOS)
1. Definition. Archipelagic sea lanes passage
means the exercise in accordance with
UNCLOS of the rights of navigation and
overflight in the normal mode solely for
the purpose of continuous, expeditious
and unobstructed transit between one part
of the high seas or an exclusive economic
zone and another part of the high seas or
an exclusive economic zone.
2. Rules:
a. An archipelagic State may designate
sea lanes and air routes thereabove,
suitable for the continuous and
expeditious passage of foreign ships
and aircraft through or over its
archipelagic waters and the adjacent
territorial sea.
b. All ships and aircraft enjoy the right
of archipelagic sea lanes passage in
such sea lanes and air routes.
c. Such sea lanes and air routes shall
traverse the archipelagic waters and
the adjacent territorial sea and shall
include all normal passage routes
used as routes for international
navigation or overflight through or
over archipelagic waters and, within
such routes, so far as ships are
concerned, all normal navigational
channels, provided that duplication of
routes of similar convenience between
the same entry and exit points shall
not be necessary.
30
d. Such sea lanes and air routes shall be
defined by a series of continuous axis
lines from the entry points of passage
routes to the exit points. Ships and
aircraft in archipelagic sea lanes
passage shall not deviate more than 25
nautical miles to either side of such
axis lines during passage, provided
that such ships and aircraft shall not
navigate closer to the coasts than 10
per cent of the distance between the
nearest points on islands bordering
the sea lane.
e. An archipelagic State which
designates sea lanes under this Art. 49
of the UNCLOS may also prescribe
traffic separation schemes for the safe
passage of ships through narrow
channels in such sea lanes.
f. An archipelagic State may, when
circumstances require, after giving
due publicity thereto, substitute other
sea lanes, or traffic separation
schemes for any sea lanes, or traffic
separation schemes previously
designated or prescribed by it.
g. Such sea lanes and traffic separation
schemes shall conform to generally
accepted international regulations.
h. In designating or substituting sea
lanes or prescribing or substituting
traffic separation schemes, an
archipelagic State shall refer proposals
to the competent international
organization with a view to their
adoption. The organization may adopt
only such sea lanes and traffic
separation schemes as may be agreed
with the archipelagic State, after
 which the archipelagic State may
designate, prescribe or substitute
them.
i. The archipelagic State shall clearly
indicate the axis of the sea lanes and
the traffic separation schemes
designated or prescribed by it on
charts to which due publicity shall be
given.
j. Ships in archipelagic sea lanes
passage shall respect applicable sea
lanes and traffic separation schemes
established in accordance with this
article.
k. If an archipelagic State does not
designate sea lanes or air routes, the
right of archipelagic sea lanes passage
may be exercised through the routes
normally used for international
navigation.
Internal Waters
Waters on the landward side of the baseline
of the territorial sea form part of the internal
waters of the State (Art. 8, UNCLOS).
Within its archipelagic waters, the
archipelagic State may draw closing lines for
the delimitation of internal waters.
accordance with articles 9, 10 and 11 (Art 50,
UNCLOS).
Mouth of Rivers
If a river flows directly into the sea, the
baseline shall be a straight line across the
mouth of the river between points on the
low-water line of its banks (Art. 9,
31
UNCLOS).
Bays
A bay 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. An
indentation shall not, however, 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.
Rules:
1. For the purpose of measurement, the
area of an indentation is that lying
between the low-water mark around
the shore of the indentation and a line
joining the low-water mark of its
natural entrance points. Where,
because of the presence of islands, an
indentation has more than one mouth,
the semi-circle shall be drawn on a
line as long as the sum total of the
lengths of the lines across the different
mouths. Islands within an indentation
shall be included as if they were part
of the water area of the indentation.
2. If the distance between the low-water
marks of the natural entrance points of
a bay does not exceed 24 nautical
miles, a closing line may be drawn
between these two low-water marks,
and the waters enclosed thereby shall
be considered as internal waters.
3. Where the distance between the low-
water marks of the natural entrance
points of a bay exceeds 24 nautical
miles, a straight baseline of 24 nautical
miles shall be drawn within the bay in
such a manner as to enclose the
 maximum area of water that is
possible with a line of that length (Art.
10, UNCLOS).
Ports
For the purpose of delimiting the
territorial sea, the outermost permanent
harbour works which form an integral
part of the harbour system are regarded
as forming part of the coast. Off-shore
installations and artificial islands shall not
be considered as permanent harbour
works. (Art. 11, UNCLOS).
NOTE: Where the establishment of a straight
baseline in accordance with the method set
forth in article 7 has the effect of enclosing as
internal waters areas which had not
previously been considered as such, a right of
innocent passage as provided in this
Convention shall exist in those waters (Art.
8[2], UNCLOS).
Territorial Sea
1. Every State has the right to establish the
breadth of its territorial sea up to a limit
not exceeding 12 nautical miles, measured
from baselines determined in accordance
with this Convention (Art. 3, UNCLOS).
2. The outer limit of the territorial sea is the
line every point of which is at a distance
from the nearest point of the baseline
equal to the breadth of the territorial sea
(Art. 4, UNCLOS).
3. The breadth of the territorial sea shall be
measured from archipelagic baselines (in
case of archipelagic state) or normal
baseline (in case of coastal states) (Art. 5,
47, UNCLOS).
32
Exclusive Economic Zone
The exclusive economic zone is an area
beyond and adjacent to the territorial sea,
subject to the specific legal regime established
in this Part, under which the rights and
jurisdiction of the coastal State and the rights
and freedoms of other States are governed by
the relevant provisions of this Convention
(Art. 55, UNCLOS).
Rules:
1. The exclusive economic zone shall not
extend beyond 200 nautical miles from the
baselines from which the breadth of the
territorial sea is measured (Art. 57,
UNCLOS).
2. Rights, jurisdiction and duties:
a. Sovereign rights for the purpose of
exploring and exploiting, conserving
and managing the natural resources,
whether living or non-living, of the
waters superjacent to the seabed and
of the seabed and its subsoil, and with
regard to other activities for the
economic exploitation and exploration
of the zone, such as the production of
energy from the water, currents and
wind (Art. 56 [1][a], UNCLOS);
b. jurisdiction as provided for in the
relevant provisions of this Convention
with regard to (Art. 56 [1][b],
UNCLOS):
i. the establishment and use of
artificial islands, installations
and structures;
 ii. marine scientific research;
iii. the protection and preservation
of the marine environment
c. In the exclusive economic zone, all
States, whether coastal or land-locked,
enjoy, the freedoms of navigation and
overflight and of the laying of
submarine cables and pipelines, and
other internationally lawful uses of
the sea related to these freedoms, such
as those associated with the operation
of ships, aircraft and submarine cables
and pipelines, and compatible with
the other provisions of this
Convention (Art. 58, UNCLOS).
d. In exercising its rights and performing
its duties under this Convention in the
exclusive economic zone, the coastal
State shall have due regard to the
rights and duties of other States and
shall act in a manner compatible with
the provisions of this Convention (Art.
56 [2], UNCLOS).
3. Basis for the resolution of conflicts regarding
the attribution of rights and jurisdiction in the
exclusive economic zone: In cases where this
Convention does not attribute rights or
jurisdiction to the coastal State or to other
States within the exclusive economic zone,
and a conflict arises between the interests
of the coastal State and any other State or
States, the conflict should be resolved on
the basis of equity and in the light of all
the relevant circumstances, taking into
account the respective importance of the
interests involved to the parties as well as
to the international community as a whole
(Art. 59, UNCLOS).
33
Continental Shelf
1. Continental shelf of a coastal State
comprises the seabed and subsoil of the
submarine areas that extend beyond its
territorial sea throughout the natural
prolongation of its land territory to the
outer edge of the continental margin, or to
a distance of 200 nautical miles from the
baselines from which the breadth of the
territorial sea is measured where the outer
edge of the continental margin does not
extend up to that distance (Art. 76[1],
UNCLOS).
2. The continental margin comprises the
submerged prolongation of the land mass
of the coastal State, and consists of the
seabed and subsoil of the shelf, the slope
and the rise. It does not include the deep
ocean floor with its oceanic ridges or the
subsoil thereof (Art. 76[3], UNCLOS).
3. Rights of the coastal State over the
continental shelf (Art. 77, UNCLOS):
a. The coastal State exercises over the
continental shelf sovereign rights for
the purpose of exploring it and
exploiting its natural resources.
b. The rights referred to in paragraph 1
are exclusive in the sense that if the
coastal State does not explore the
continental shelf or exploit its natural
resources, no one may undertake
these activities without the express
consent of the coastal State.
c. The rights of the coastal State over the
continental shelf do not depend on
 occupation, effective or notional, or on
any express proclamation.
d. The natural resources referred to in
this Part consist of the mineral and
other non-living resources of the
seabed and subsoil together with
living organisms belonging to
sedentary species, that is to say,
organisms which, at the harvestable
stage, either are immobile on or under
the seabed or are unable to move
except in constant physical contact
with the seabed or the subsoil.
Source: Commission on the Limits of the
Continental Shelf (CLCS). The continental shelf,
http://www.un.org/depts/los/clcs_new/continental
_shelf_description.htm, last retrieved April 30,
2014).
Extended Continental Shelf
According to article 76, the coastal State may
establish the outer limits of its juridical
continental shelf wherever the continental
margin extends beyond 200 nautical miles by
establishing the foot of the continental slope,
34
by meeting the requirements of Article 76,
paragraphs 4 – 7:
a. Limits (Art. 76 [2], [4], [5] and [6]):
1) The coastal State shall establish the
outer edge of the continental margin
wherever the margin extends
beyond 200 nautical miles from the
baselines from which the breadth of
the territorial sea is measured, by
either:
a) a line delineated in accordance
with paragraph 7 [Art. 76 of the
UNCLOS] by reference to the
outermost fixed points at each of
which the thickness of
sedimentary rocks is at least 1
per cent of the shortest distance
from such point to the foot of the
continental slope; or
b) a line delineated in accordance
with paragraph 7 by reference to
fixed points not more than 60
nautical miles from the foot of
the continental slope.
NOTE: Paragraph 7, provides: “The
coastal State shall delineate the outer
limits of its continental shelf, where
that shelf extends beyond 200
nautical miles from the baselines
from which the breadth of the
territorial sea is measured, by
straight lines not exceeding 60
nautical miles in length, connecting
fixed points, defined by coordinates
of latitude and longitude.”
2) In the absence of evidence to the
contrary, the foot of the continental
slope shall be determined as the
point of maximum change in the
gradient at its base.
3) The fixed points comprising the line
of the outer limits of the continental
shelf on the seabed either shall not
exceed 350 nautical miles from the
baselines from which the breadth of
the territorial sea is measured or
shall not exceed 100 nautical miles
from the 2,500 metre isobath, which
is a line connecting the depth of
2,500 metres.
4) Notwithstanding the provisions of
preceding paragraph, on submarine
ridges, the outer limit of the
continental shelf shall not exceed
350 nautical miles from the baselines
from which the breadth of the
territorial sea is measured. This
paragraph does not apply to
submarine elevations that are
natural components of the
continental margin, such as its
plateaux, rises, caps, banks and
spurs.
5) Information on the limits of the
continental shelf beyond 200
nautical miles from the baselines
from which the breadth of the
territorial sea is measured shall be
submitted by the coastal State to the
Commission on the Limits of the
Continental Shelf on the basis of
equitable geographical
representation. The Commission
shall make recommendations to
coastal States on matters related to
35
the establishment of the outer limits
of their continental shelf. The limits
of the shelf established by a coastal
State on the basis of these
recommendations shall be final and
binding.
6) The coastal State shall deposit with
the Secretary-General of the United
Nations charts and relevant
information, including geodetic
data, permanently describing the
outer limits of its continental shelf.
The Secretary-General shall give due
publicity thereto.
International Tribunal for the Law of the
Sea (ITLOS)
The International Tribunal for the Law of the
Sea is constituted and shall function in
accordance with the provisions of this
Convention and this Statute. The seat of the
Tribunal shall be in the Free and Hanseatic
City of Hamburg in the Federal Republic of
Germany. The Tribunal may sit and exercise
its functions elsewhere whenever it considers
this desirable (Art. 1, Statute of the International
Tribunal for the Law of the Sea [ITLOS]).
1. Composition: The Tribunal shall be
composed of a body of 21 independent
members, elected from among persons
enjoying the highest reputation for fair
ness and integrity and of recognized
competence in the field of the law of the
sea (Art. 2, ITLOS).
2. Jurisdiction: The jurisdiction of the
Tribunal comprises all disputes and all
applications submitted to it in accordance
with this Convention and all matters
specifically provided for in any other
 agreement which confers jurisdiction on this rule applies only upon the expiration
the Tribunal (Art. 21, ITLOS). of that time-limit (Art. 281, UNCLOS).

3. Applicable Law: A court or tribunal 7. Conciliation. A State Party which is a party

having jurisdiction under this section shall to a dispute concerning the interpretation
apply this Convention and other rules of or application of this Convention may
international law not incompatible with invite the other party or parties to submit
this Convention, without prejudice to the the dispute to conciliation.
power of the court or tribunal having
jurisdiction under this section to decide a
If the invitation is accepted and if the
case ex aequo et bono, if the parties so agree
parties agree upon the conciliation
(Art. 293, UNCLOS).
procedure to be applied, any party may
submit the dispute to that procedure.
4. Obligation to settle disputes by peaceful
means (Art. 279, UNCLOS). Nothing in
If the invitation is not accepted or the
this Part impairs the right of any States
parties do not agree upon the procedure,
Parties to agree at any time to settle a
the conciliation proceedings shall be
dispute between them concerning the
deemed to be terminated.
interpretation or application of this
Convention by any peaceful means of
their own choice (Art. 280, UNCLOS). Unless the parties otherwise agree, when
a dispute has been submitted to
conciliation, the proceedings may be
5. Exhaustion of local remedies: Any dispute
terminated only in accordance with the
between States Parties concerning the
agreed conciliation procedure (Art 284,
interpretation or application of this
UNCLOS).
Convention may be submitted to the
procedures provided for in this section
only after local remedies have been 8. When signing, ratifying or acceding to this
exhausted where this is required by Convention or at any time thereafter, a
international law (Art. 295, UNCLOS). State shall be free to choose, by means of a
written declaration, one or more of the
following means for the settlement of
6. If the States Parties which are parties to a
disputes concerning the interpretation or
dispute concerning the interpretation or
application of this Convention:
application of this Convention have
agreed to seek settlement of the dispute by
a peaceful means of their own choice, the a. The International Tribunal for the
procedures provided for in this Part apply Law of the Sea;
only where no settlement has been b. The International Court of Justice;
reached by recourse to such means and
c. An arbitral tribunal;
the agreement between the parties does
d. A special arbitral tribunal constituted
not exclude any further procedure. If the
in accordance.
parties have also agreed on a time-limit,

36
 Madrid Protocol and the Paris Convention
for the Protection of Industrial Property
1. The protection of industrial property has
as its object patents, utility models,
industrial designs, trademarks, service
marks, trade names, indications of source
or appellations of origin, and the
repression of unfair competition (Art. 1
[1], Paris Convention).
2. Industrial property shall be understood in
the broadest sense and shall apply not
only to industry and commerce proper,
but likewise to agricultural and extractive
industries and to all manufactured or
natural products, for example, wines,
grain, tobacco leaf, fruit, cattle, minerals,
mineral waters, beer, flowers, and flour
(Art. 1[3], Paris Convention).
3. Patents shall include the various kinds of
industrial patents recognized by the laws
of the countries of the Union, such as
patents of importation, patents of
improvement, patents and certificates of
addition, etc. (Art. 1 [4], Paris Convention).
4. Nationals of any country of the Union
shall, as regards the protection of
industrial property, enjoy in all the other
countries of the Union the advantages that
their respective laws now grant, or may
hereafter grant, to nationals; all without
prejudice to the rights specially provided
for by this Convention. Consequently,
they shall have the same protection as the
latter, and the same legal remedy against
any infringement of their rights, provided
that the conditions and formalities
imposed upon nationals are complied
with (Art. 2, Id.).
37
5. Nationals of countries outside the Union
who are domiciled or who have real and
effective industrial or commercial
establishments in the territory of one of
the countries of the Union shall be treated
in the same manner as nationals of the
countries of the Union (Art. 3, Id.).
6. Any dispute between two or more
countries of the Union concerning the
interpretation or application of this
Convention, not settled by negotiation,
may, by any one of the countries
concerned, be brought before the
International Court of Justice by
application in conformity with the Statute
of the Court, unless the countries
concerned agree on some other method of
settlement. The country bringing the
dispute before the Court shall inform the
International Bureau; the International
Bureau shall bring the matter to the
attention of the other countries of the
Union (Art 28, Id.).
7. Madrid Protocol. The system of
international registration of marks is
governed by two treaties: The Madrid
Agreement Concerning the International
Registration of Marks, which dates from
1891, and the Protocol Relating to the
Madrid Agreement, which was adopted in
1989, entered into force on December 1,
1995, and came into operation on April 1,
1996. Common Regulations under the
Agreement and Protocol also came into
force on that date (World Intellectual
Property Organization, The Madrid
Agreement Concerning International
Registration of Marks and the Protocol
Relating to that Agreement: Objective, Main
Features, Advantages, available at
http://www.wipo.int/export/sites/www/freepu
blications/en/marks/418/wipo_pub_418.pdf).
a. The objectives of the system are two-
fold (Id.):
1) It facilitates the obtaining of
protection for marks (trademarks
and service marks).
2) Since an international registration
is equivalent to a bundle of
national registrations, the
subsequent management of that
protection is made much easier.
b. Where an application for the
registration of a mark has been filed
with the Office of a Contracting Party,
or where a mark has been registered
in the register of the Office of a
Contracting Party, the person in
whose name that application or that
registration stands may, subject to the
provisions of this Protocol, secure
protection for his mark in the territory
of the Contracting Parties, by
obtaining the registration of that mark
in the register of the International
Bureau of the World Intellectual
Property Organization provided that,
1) Where the basic application has
been filed with the Office of a
Contracting State or where the
basic registration has been made
by such an Office, the person in
whose name that application or
registration stands is a national
of that Contracting State, or is
domiciled, or has a real and
effective industrial or
commercial establishment, in the
said Contracting State,
38
2) Where the basic application has
been filed with the Office of a
Contracting Organization or
where the basic registration has
been made by such an Office, the
person in whose name that
application or registration stands
is a national of a State member of
that Contracting Organization, or
is domiciled, or has a real and
effective industrial or
commercial establishment, in the
territory of the said Contracting
Organization (Art.
c. Effects of international registration:
1) From the date of the registration or
recordal effected in accordance
with the provisions of Articles 3
and 3ter, the protection of the
mark in each of the Contracting
Parties concerned shall be the
same as if the mark had been
deposited direct with the Office of
that Contracting Party. If no
refusal has been notified to the
International Bureau in accordance
with Article 5(1) and (2) or if a
refusal notified in accordance with
the said Article has been
withdrawn subsequently, the
protection of the mark in the
Contracting Party concerned shall,
as from the said date, be the same
as if the mark had been registered
by the Office of that Contracting
Party (Art. 2, Madrid Protocol).
2) The indication of classes of goods
and services provided for in
Article 3 shall not bind the
Contracting Parties with regard to
 the determination of the scope of 1. Uncertainty;
the protection of the mark (Art. 4 2. Threat of environmental damage; and
[1] [b], Madrid Protocol).
3. Serious or irreversible harm.

3) Every international registration

shall enjoy the right of priority
provided for by Article 4 of the
Paris Convention for the
Protection of Industrial Property,
without it being necessary to
comply with the formalities
prescribed (Art. 4 [2] Madrid
Protocol).
M. INTERNATIONAL ENVIRONMENTAL
LAW
The branch of public international law
comprising of those substantive, procedural
and institutional rules which have as their
primary objective the protection of the
environment. The term “environment” is
understood as encompassing both the
creatures and products of the natural world
and those of human civilization (SANDS &
PHILIPPE, Principles of International
Environmental Law (2003), p. 15).
In situations where the threat is relatively
certain, or that the causal link between an
action and environmental damage can be
established, or the probability of occurrence
can be calculated, only preventive, not
precautionary measures, may be taken.
Neither will the precautionary principle
apply if there is no indication of a threat of
environmental harm; or if the threatened
harm is trivial or easily reversible. (Mosqueda
v. Pilipino Banana Growers & Exporters
Association, Inc., G.R. No. 189185, August 16,
2016)
Although the precautionary principle allows
lack of full scientific certainty in establishing a
connection between the serious or irreversible
harm and the human activity, its application
is still premised on empirical studies. (Id)
-oOo-

Precautionary Principle

In order to protect the environment, the

precautionary approach shall be widely
applied by States according to their
capabilities. Where there are threats of
serious or irreversible damage, lack of full
scientific certainty shall not be used as a
reason for postponing cost-effective measures
to prevent environmental degradation.
(Principle 15, Rio Declaration)
The precautionary principle shall only be
relevant if there is occurrence of three
elements, namely:

39