Public International Law (Mainly from Wikipedia) THE PROVINCE OF NORTH COTABATO vs.

THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES GR# 183591, October 14, 2008 Carpio-Morales, J: Facts: The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement of Peace of 2001 (MOA) is assailed on its constitutionality. This document prepared by the joint efforts of the Government of the Republic of the Philippines (GRP) Peace Panel and the Moro Islamic Liberation Front (MILF) Peace Panel, was merely a codification of consensus points reached between both parties and the aspirations of the MILF to have a Bangsamoro homeland. Issue: When the Executive Department pronounced to abandon the MOA, is the issue of its constitutionality merely moot and academic and therefore no longer justiciable by the Court? Held: Yes. Since the MOA has not been signed, its provisions will not at all come into effect. The MOA will forever remain a draft that has never been finalized. It is now nothing more than a piece of paper, with no legal force or binding effect. It cannot be the source of, nor be capable of violating, any right. The instant Petitions, therefore, and all other oppositions to the MOA, have no more leg to stand on. They no longer present an actual case or a justiciable controversy for resolution by this Court. An actual case or controversy exists when there is a conflict of legal rights or an assertion of opposite legal claims, which can be resolved on the basis of existing law and jurisprudence. A justiciable controversy is distinguished from a hypothetical or abstract difference or dispute, in that the former involves a definite and concrete dispute touching on the legal relations of parties having adverse legal interests. A justiciable controversy admits of specific relief through a decree that is conclusive in character, whereas an opinion only advises what the law would be upon a hypothetical state of facts. The Court should not feel constrained to rule on the Petitions at bar just because of the great public interest these cases have generated. We are, after all, a court of law, and not of public opinion. The power of judicial review of this Court is for settling real and existent dispute, it is not for allaying fears or addressing public clamor. In acting on supposed abuses by other branches of government, the Court must be careful that it is not committing abuse itself by ignoring the fundamental principles of constitutional law.

Principles Compelling law principle - Jus cogens (A fundamental principle of international law which is accepted by the international community of states as a norm from which no derogation is ever permitted.) A peremptory norm or jus cogens (Latin for "compelling law" or "strong law") is a principle of international law considered so fundamental that it overrides all other sources of international law, including even the Charter of the United Nations. The principle of jus cogens is enshrined in Article 53 of the Vienna Convention on the Law of Treaties: For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Rules of jus cogens generally require or forbid the state to do particular acts or respect certain rights. However, some define criminal offences which the state must enforce against individuals. Generally included on lists of such norms are prohibitions of such crimes and internationally wrongful acts as waging aggressive war, war crimes, crimes against humanity, piracy, genocide, apartheid, slavery and torture.

Opinio juris (opinio juris sive necessitates or acceptance of the practice as obligatory) A wealth of state practice does not usually carry with it a presumption that opinio juris exists. ―Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.‖ In cases where practice (of which evidence is given) comprises abstentions from acting, consistency of conduct might not establish the existence of a rule of customary international law. The fact that no nuclear weapons have been used since 1945, for example, does not render their use illegal on the basis of a customary obligation because the necessary opinio juris was lacking. Although the ICJ has frequently referred to opinio juris as being an equal footing with state practice, the role of the psychological element in the creation of customary law is uncertain.

Comity specifically refers to legal reciprocity—the principle that one jurisdiction will extend certain courtesies to other nations (or other jurisdictions within the same nation), particularly by recognizing the validity and effect of their executive, legislative, and judicial acts. The term refers to the idea that courts should not act in a way that demeans the jurisdiction, laws, or judicial decisions of another jurisdiction. Note: Stare decisis has no application in international law.

Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law. For example, laws of war were long a matter of customary law before they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and other treaties. Other examples accepted or claimed as customary international law include the principle of non-refoulement and immunity of visiting foreign heads of state.

Universal jurisdiction or universality principle is a principle in public international law (as opposed to private international law) whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish, as it is too serious to tolerate jurisdictional arbitrage. Ex factis jus oritur (Latin: the law arises from the facts) is a principle of international law. The phrase is based on the simple notion that certain legal consequences attach to particular facts. Conflict of laws (or private international law) is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute. The rules typically apply when a legal dispute has a "foreign" element such as a contract agreed to by parties located in different countries, although the "foreign" element also exists in multi-jurisdictional countries. The three branches of conflict of laws are    Jurisdiction – whether the forum court has the power to resolve the dispute at hand Choice of law – the law which is being applied to resolve the dispute Foreign judgments – the ability to recognize and enforce a judgment from an external forum within the jurisdiction of the adjudicating forum

Treaty A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an (international) agreement, protocol, covenant, convention or exchange of letters, among other terms. Treaties can be loosely compared to contracts: both are means of willing parties assuming obligations among themselves, and a party to either that fails to live up to their obligations can be held liable under international law.

Pimintel vs.‖ *** The participation of the legislative branch in the treaty-making process was deemed essential to provide a check on the executive in the field of foreign relations. is limited to giving or withholding consent or concurrence to the ratification. signature.Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation. Power of ratification of treaties under the 1987 Constitution rests with the President. Article VII of the 1987 Constitution provides that ―no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the Members of the Senate. Nonetheless. The treaty may then be submitted for registration and publication under the U. being the head of state. such as an agreement being inimical to state interest. and otherwise transact the business of foreign relations.N. Article VII of the 1987 Constitution to mean that the power to ratify treaties belongs to the Senate. while the President has the sole authority to negotiate and enter into treaties. the President is vested with the authority to deal with foreign states and governments. Justice Isagani Cruz. Romulo (President’s power of ratification) In our system of government. the President may refuse to submit the treaty to the Senate. is regarded as the sole organ and authority in external relations and is the country‘s sole representative with foreign nations. enter into treaties. Hence. the President. In filing this petition. and exchange of the instruments of ratification. in his book on International Law. . As the chief architect of foreign policy. the President has the sole authority to negotiate with other states. by 2/3 vote. the petitioners interpret Section 21. In the realm of treaty-making. the Constitution ensures a healthy system of checks and balance necessary in the nation‘s pursuit of political maturity and growth. Section 21. The Senate. By requiring the concurrence of the legislature in the treaties entered into by the President. extend or withhold recognition. Romulo) Derogation – a state can excuse itself from complying with a treaty for compelling and substantial grounds. maintain diplomatic relations. Charter. the Constitution provides a limitation to his power by requiring the concurrence of 2/3 of all the members of the Senate for the validity of the treaty entered into by him. ratification. Thus. the President acts as the country’s mouthpiece with respect to international affairs. although this step is not essential to the validity of the agreement as between the parties. We disagree. (Pimintel vs.

It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. which they exhibit to the other negotiators at the start of the formal discussions. but. the President. It is the ratification that binds the state to the provisions thereof. the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties. Thus. the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The negotiations may be brief or protracted. The signature does not signify the final consent of the state to the treaty. depending on the issues involved. acceptance or approval of the signatory states. becomes the basis of the subsequent negotiations. significantly. the instrument is deemed effective upon its signature. and may even ―collapse‖ in case the parties are unable to come to an agreement on the points under consideration. The document is ordinarily signed in accordance with the alternat. a state expresses its willingness to be bound by the provisions of such treaty. together with the counter-proposals. In fact. If and when the negotiators finally decide on the terms of the treaty. that is. it does not indicate the final consent of the state in cases where ratification of the treaty is required. which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Where ratification is dispensed with and no effectivity clause is embodied in the treaty. xxx The last step in the treaty-making process is the exchange of the instruments of ratification. It is standard practice for one of the parties to submit a draft of the proposed treaty which. which is the next step. These representatives are provided with credentials known as full powers. the same is opened for signature. Ratification. After the treaty is signed by the state‘s representative. The Vienna Convention on the Law of Treaties does not contemplate to . [emphasis supplied] *** Petitioners‘ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. being accountable to the people. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests.Negotiation may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives.

" Pacta sunt servanda is related to good faith. For example. Pacta sunt servanda (Latin for "agreements must be kept"). having secured its consent for its ratification. and implies that nonfulfilment of respective obligations is a breach of the pact. while excluding the legal effect of that specific provision in the treaty to which it objects. In effect. The role of the Senate. the principle refers to private contracts. states A reservation in international law is a caveat to a state's acceptance of a treaty.S. or penalties that are granted by one state to the citizens or legal entities of another. The Court. to the ratification. This entitles states to require that obligations be respected and to rely upon the . This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. should be returned in kind. is a brocard. refuse to ratify it. The principle of reciprocity states that favors. a reservation must be made at the time that the treaty affects the State. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly. benefits. Otherwise. such decision is within the competence of the President alone. which cannot be encroached by this Court via a writ of mandamus. If that were so. There is no legal obligation to ratify a treaty. subject to the concurrence of the Senate.defeat or even restrain this power of the head of states. the other state would be justified in taking offense. "every treaty in force is binding upon the parties to it and must be performed by them in good faith. and the relaxation of travel restrictions and visa requirements. the requirement of ratification of treaties would be pointless and futile. a reservation allows the state to be a party to the treaty. is limited only to giving or withholding its consent. cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. the grant of copyrights to foreign authors. Admission on motion. stressing that contained clauses are law between the parties. The principle of reciprocity also governs agreements on extradition. therefore. It should be emphasized that under our Constitution. the mutual recognition and enforcement of judgments. States cannot take reservations after they have accepted the treaty. it is within the authority of the President to refuse to submit a treaty to the Senate or. or concurrence. the power to ratify is vested in the President. With reference to international agreements. but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. however. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. while pacta sunt servanda does not equate with good faith. Hence. a basic principle of civil law and of international law. a specialized form of reciprocity concerning admission to the bar of certain U. reciprocity has been used in the reduction of tariffs. In its most common sense.

a summary of the proceedings of a diplomatic conference and usually includes a reproduction of the texts of act. The only limit to pacta sunt servanda are the peremptory norms of general international law. i.obligations being respected. with regards to the Vienna Convention and the UNIDROIT Principles it should be kept in mind that these are heavily influenced by civil law jurisdictions. Causula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for treaties to become inapplicable because of a fundamental change of circumstances. Some treaties contain a termination clause that specifies that the treaty will terminate if a certain number of nations denounce the treaty. Clausula rebus sic stantibus only relates to changed circumstances that were never contemplated by the parties. persecutor generally referring to a state-actor (country/government). Denunciation or abrogation refers to the announcement of a treaty's termination. recommendations and other acts agreed upon by the plenipotentiaries attending the conference. called jus cogens (compelling law). also allows for treaty obligations to be unfulfilled due to a compelling change in circumstances. Non-refoulement is a key facet of refugee law. However. The legal principle clausula rebus sic stantibus. Unlike political asylum. Non-refoulement is a jus cogens (peremptory norm) of international law that forbids the expulsion of a refugee into an area. It is essentially an "escape clause" that makes an exception to the general rule of pacta sunt servanda (promises must be kept). of customary and trucial Law of Nations which forbids the rendering a true victim of persecution to their persecutor. Non-refoulement. nonrefoulement refers to the generic repatriation of people. This good faith basis of treaties implies that a party to the treaty cannot invoke provisions of its municipal (domestic) law as justification for a failure to perform.e. Non-refoulement is a principle of the international law. usually their home-country. . Protocol de cloture . which applies to those who can prove a well-grounded fear of persecution based on membership in a social group or class of persons. conventions. To derive from these sources that pacta sunt servanda includes the principle of good faith is therefore incorrect. generally refugees into war zones and other disaster areas. where the person might be again subjected to persecution. part of customary international law. If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not apply and the provision remains in effect. that concerns the protection of refugees from being returned to places where their lives or freedoms could be threatened.

Death penalty . Some nations refuse to extradite their own citizens. Common bars to extradition include:  Failure to fulfill dual criminality . Possibility of certain forms of punishment . if extradited. Macao. Doctrine of Specialty: A typical requirement in extradition: that the receiving state not prosecute the individual being extradited but for the offence for which extradition was sought.Jurisdiction over a crime can be invoked to refuse extradition.generally the act for which extradition is sought must constitute a crime punishable by some minimum penalty in both the requesting and the requested parties. such as France. Russia. Between nation states. inhuman or degrading treatment or punishment.most countries refuse to extradite suspects of political crimes." Bars to extradition By enacting laws or concluding treaties or agreements. extradition is regulated by treaties.g. Jurisdiction .Some countries. Austria. Where extradition is compelled by laws. forbid extradition of their own nationals.     .. such as Australia. prohibits the requesting state from prosecuting for crimes other than that for which the extradition took place. the concept may be known more generally as rendition. These countries often have laws in place that give them jurisdiction over crimes committed abroad by or against citizens.some countries refuse extradition on grounds that the person.   Political nature of the alleged crime . Own nationals . and most European nations. the People's Republic of China. inhuman or degrading treatment or punishment . By virtue of such jurisdiction.Many countries will not extradite if there is a risk that a requested person will be subjected to torture. A few go as far as to cover all punishments that they themselves would not administer. In particular. the Republic of China (Taiwan)and Japan. Canada.Many countries. Germany. the fact that the person in question is a nation's own citizen causes that country to have jurisdiction. holding trials for the persons themselves (see e. will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out. Mexico. countries determine the conditions under which they may entertain or deny extradition requests. "(The) doctrine of specialty . such as among sub-national jurisdictions.Extradition Extradition is the official process whereby one nation or state surrenders a suspected or convicted criminal to another nation or state. Torture. they prosecute and try citizens accused of crimes committed abroad as if the crime had occurred within the country's borders. trial of Xiao Zhen). may receive capital punishment or face torture..

Under these treaties. on one hand. After all. in the 20th century. and (4) the duty of this Court to balance the rights of the individual under our fundamental law. Recently. The vulnerable doctrine that the subjects of international law are limited only to states was dramatically eroded towards the second half of the past century. the principles contained in the said Declaration are now recognized as customarily binding upon the members of the international community. that there is nothing in the Constitution or statutory law providing that a potential 9xtradite has a right to bail. under the Nuremberg principle. 1948. Thus. and due process. considering that the Universal Declaration of Human Rights applies to deportation cases. held that under the Constitution. *** However. the Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual defendants for acts characterized as violations of the laws of war. there is no reason why it cannot be invoked in extradition cases. the United Nations General Assembly adopted the Universal Declaration of Human Rights in which the right to life. (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations. both international organizations and states gave recognition and importance to human rights. For one. Likewise. Director of Prisons. *** If bail can be granted in deportation cases. both are administrative proceedings where the innocence or guilt of the person detained is not in issue. in Mejoff v. crimes against peace. in granting bail to a prospective deportee. the Philippines should see to it that the right to liberty of every individual is not impaired. Olalia (US vs. Slowly. the principles set forth in that Declaration are part of the law of the land. . and the law on extradition. on December 10. Clearly. While not a treaty. liberty. on the other. the recognition that the individual person may properly be a subject of international law is now taking root. The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. Fundamental among the rights enshrined therein are the rights of every person to life. Puruganan overturned. the right being limited solely to criminal proceedings. On a more positive note. the UN General Assembly also adopted the International Covenant on Civil and Political Rights which the Philippines signed and ratified. liberty and all the other fundamental rights of every person were proclaimed.Government of Hong Kong vs. Thus. the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion and protection of human rights. and crimes against humanity. Standard for bail in extradition cases) Petitioner alleged that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in admitting private respondent to bail. has gradually attained global recognition. the presumption lies in favor of human liberty. also after World War II. Serbian leaders have been persecuted for war crimes and crimes against humanity committed in the former Yugoslavia. These significant events show that the individual person is now a valid subject of international law. this Court cannot ignore the following trends in international law: (1) the growing importance of the individual person in public international law who. In 1966. we see no justification why it should not also be allowed in extradition cases. (2) the higher value now being given to human rights in the international sphere. this Court. Thus.

created by treaty. an extradition proceeding is not by its nature criminal. 1069 (The Philippine Extradition Law) which mandates the "immediate arrest and temporary detention of the accused" if such "will best serve the interest of justice. for the purpose of trial or punishment. however. While our extradition law does not provide for the grant of bail to an extraditee. As Purganan correctly points out. "Temporary detention" may be a necessary step in the process of extradition. This is based on the assumption that such extraditee is a fugitive from justice. he had been detained for over two (2) years without having been convicted of any crime. . when the trial court ordered his admission to bail. for it is not punishment for a crime. Bearing in mind the purpose of extradition proceedings. It is sui generis. In other words. an extradition proceeding. there is no provision prohibiting him or her from filing a motion for bail." Obviously. a right to due process under the Constitution. even though such punishment may follow extradition. such an extended period of detention is a serious deprivation of his fundamental right to liberty. No. but the length of time of the detention should be reasonable. But while extradition is not a criminal proceeding. The applicable standard of due process. and forced to transfer to the demanding state following the proceedings." We further note that Section 20 allows the requesting state "in case of urgency" to ask for the "provisional arrest of the accused. it was this prolonged deprivation of liberty which prompted the extradition court to grant him bail. It is not a criminal proceeding. bears all earmarks of a criminal process. to demand the surrender of one accused or convicted of a crime within its territorial jurisdiction. 1999. tracing its existence wholly to treaty obligations between different nations. Even if the potential extraditee is a criminal. Nor is it a full-blown civil action. In the latter. In fact. Given the foregoing.D. Its object is to prevent the escape of a person accused or convicted of a crime and to secure his return to the state from which he fled." and that release from provisional arrest "shall not prejudice re-arrest and extradition of the accused if a request for extradition is received subsequently. By any standard. It is not a trial to determine the guilt or innocence of the potential extraditee. however. the prospective extraditee thus bears the onus probandi of showing that he or she is not a flight risk and should be granted bail.*** Extradition has thus been characterized as the right of a foreign power. A potential extraditee may be subjected to arrest. the standard of due process is premised on the presumption of innocence of the accused. it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and (b) the means employed to attain the purpose of extradition is also "the machinery of criminal law. to a prolonged restraint of liberty. 2001. should not be the same as that in criminal proceedings. while ostensibly administrative. Records show that private respondent was arrested on September 23. and the correlative duty of the other state to surrender him to the demanding state." This is shown by Section 6 of P. the premise behind the issuance of the arrest warrant and the "temporary detention" is the possibility of flight of the potential extraditee. but one that is merely administrative in character. pending receipt of the request for extradition. it is from this major premise that the ancillary presumption in favor of admitting to bail arises. and remained incarcerated until December 20.

Ruiz 136 SCRA 487 (Overturned now by Holy See Case) Facts: The USA had a naval base in Subic. the standard of proof required in granting or denying bail can neither be the proof beyond reasonable doubt in criminal cases nor the standard of proof of preponderance of evidence in civil cases. provided that a certain standard for the grant is satisfactorily met. The base was one of those provided in the military bases agreement between Phils. this standard should be lower than proof beyond reasonable doubt but higher than preponderance of evidence. now Chief Justice Reynato S. Issue: Whether the US naval base in bidding for said contracts exercise governmental functions to be able to invoke state immunity. The potential extraditee must prove by "clear and convincing evidence" that he is not a flight risk and will abide with all the orders and processes of the extradition court. therefore. the rules of international law are not petrified. According to him. An extradition proceeding being sui generis. Zambales. It was agreed as international law in the Vienna Convention on Diplomatic Relations (1961) US Vs. Respondent alleges that it won in the bidding conducted by the US for the construction of wharves in said base that was merely awarded to another group. where these rights are guaranteed. the Philippines should diminish a potential extraditee’s rights to life. In his Separate Opinion in Purganan. However. This rule is necessary consequence of the principle of independence and equality of states. However. and the US. More so. Puno. Held: The traditional role of the state immunity exempt‘s a state from being sued in the courts of another state without its consent or waiver. and due process. We should not. liberty. to which the Philippines is a party. Diplomatic Immunity Diplomatic immunity is a form of legal immunity and a policy held between governments that ensures that diplomats are given safe passage and are considered not susceptible to lawsuit or prosecution under the host country's laws (although they can be expelled). It has been necessary to distinguish them between sovereign . it does not necessarily mean that in keeping with its treaty obligations. For this reason. but also by international conventions. not only by our Constitution. a suit for specific performance was filed by him against the US. While administrative in character. the standard of substantial evidence used in administrative cases cannot likewise apply given the object of extradition law which is to prevent the prospective extraditee from fleeing our jurisdiction. then Associate Justice. Failure to comply with these obligations is a setback in our foreign relations and defeats the purpose of extradition. proposed that a new standard which he termed "clear and convincing evidence" should be used in granting bail in extradition cases.The time-honored principle of pacta sunt servanda demands that the Philippines honor its obligations under the Extradition Treaty it entered into with the Hong Kong Special Administrative Region. they are continually and evolving and because the activities of states have multiplied. deprive an extraditee of his right to apply for bail.

Said lot was contiguous with two other lots. The lot was acquired by petitioner as a donation from the Archdiocese of Manila. However.R. the project are integral part of the naval base which is devoted to the defense of both US and Phils.000 square meters located in the Municipality of Paranaque. nor dedicated to commercial or business purposes. surely the said transaction can be categorized as an act jure gestionis. a function of the government of highest order.and governmental acts and private. they are not utilized for . Rosario. . ISSUE: Whether the Holy See is immune from suit insofar as its business relations regarding selling a lot to a private entity RULING: As expressed in Section 2 of Article II of the 1987 Constitution. In view of the refusal of the squatters to vacate the lots sold. but for the use of petitioner to construct thereon the official place of residence of the Papal Nuncio. if petitioner has bought and sold lands in the ordinary course of real estate business. indisputably. It does not apply where the contracts relates the exercise of its sovereign function. Complicating the relations of the parties was the sale by petitioner of the lot of concern to Tropicana. 101949 01 December 1994 FACTS: This petition arose from a controversy over a parcel of land consisting of 6. These lots were sold to Ramon Licup. The Holy See is immune from suit for the act of selling the lot of concern is nonproprietary in nature. we have adopted the generally accepted principles of International Law. such principles of International Law are deemed incorporated as part of the law of the land as a condition and consequence of our admission in the society of nations. No. Only when it enters into business contracts. commercial and proprietary acts. a dispute arose as to who of the parties has the responsibility of evicting and clearing the land of squatters. petitioner has denied that the acquisition and subsequent disposal of the lot were made for profit but claimed that it acquired said property for the site of its mission or the Apostolic Nunciature in the Philippines. Even without this affirmation. The donation was made not for commercial purpose. In the present case. Petitioner did not sell the lot for profit or gain. It merely wanted to dispose of the same because the squatters living thereon made it almost impossible for petitioner to use it for the purpose of the donation. Jr.. G. The decision to transfer the property and the subsequent disposal thereof are likewise clothed with a governmental character. Its commercial activities of economic affairs. The Holy See vs. The restrictive application of state immunity is proper only when the proceedings arise out of commercial transactions of the foreign sovereign. In this case. the result is that state immunity now extends only to sovereign and governmental acts. A state may be descended to the level of an individual and can thus be deemed to have tacitly given its consent to be sued.

Thus. Jurisdiction of the ICC Under the Rome Statute. because the required elements of each offence are satisfied by the evidence presented before the Trial Chamber. . and of murder as a violation of the laws or customs of war (article 3 (common article 3)). As of 1 February 2012. An accused is convicted under different provisions of the Statute on the basis of the same underlying act or acts. International crimes require intent and knowledge. as well as torture as a crime against humanity (article 5). Note: ICC is not an instrumentality of the UN.Doctrine of State Immunity from Suit (Civil. Cumulative conviction – one act may result in several convictions for violations of different laws. an accused may be found guilty of willful killing as a grave breach of the Geneva Conventions (article 2). Ambassador – immune from civil. France. Russia and China. For example. administrative and criminal suit. An accused may also be found guilty of offences punishable under the same article. the evidence may satisfy the elements of rape as a crime against humanity (article 5). ICC requires presentation of proof beyond reasonable doubt. Thus. administrative and criminal) Consul – immune only from civil and administrative suit. 120 states are party to the statute. war crimes and the crime of aggression) in situations where states are unable or unwilling to do so themselves. permanent solutions to impunity must be found at the domestic level. United Kingdom. the ICC can only investigate and prosecute the core international crimes (genocide. International Criminal Court The Rome Statute of the International Criminal Court (often referred to as the International Criminal Court Statute or the Rome Statute) is the treaty that established the International Criminal Court (ICC). the statute establishes the court's functions. Protective/extraterritoriality principle – the laws of the Philippines still hold over its citizens abroad. crimes against humanity. Its permanent members are America. Among other things. The ICC has 15 members. Therefore. It was adopted at a diplomatic conference in Rome on 17 July 1998 and it entered into force on 1 July 2002. For example. (LexixNexis) Maximum penalty that ICC can impose is life imprisonment. jurisdiction and structure. the majority of international crimes continue to go unpunished unless and until domestic systems can properly deal with them.

These include conciliation and arbitration proceedings where either the State party or the home State of the foreign national is not a member of ICSID. ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. which are specially designed for ad hoc proceedings. once the parties have consented to arbitration under the ICSID Convention. Recourse to ICSID conciliation and arbitration is entirely voluntary. According to the Draft Articles. Moreover. the Centre has since 1978 had a set of Additional Facility Rules authorizing the ICSID Secretariat to administer certain types of proceedings between States and foreign nationals which fall outside the scope of the Convention.. and constitute a breach of an international obligation of the state. namely factfinding proceedings to which any State and foreign national may have recourse if they wish to institute an inquiry "to examine and report on facts. However.International Centre for Settlement of Investment Disputes (ICSID) The International Centre for Settlement of Investment Disputes (ICSID). chaired by the World Bank's President. It is an arbitration body with jurisdiction over investment disputes. Besides this original role. 157 countries had signed the ICSID Convention. As of May 2011. are required by the Convention to recognize and enforce ICSID arbitral awards.." The Additional Facility Rules further allow ICSID to administer a type of proceedings not provided for in the Convention. an institution of the World Bank Group based in Washington. Pursuant to the Convention. Internationally wrongful acts Internationally wrongful act – acts in violation of international law that would result in liability by imposition of damages. an internationally wrongful act must:   be attributable to the state under international law. D. Additional Facility conciliation and arbitration are also available for cases where the dispute is not an investment dispute provided it relates to a transaction which has "features that distinguishes it from an ordinary commercial transaction.C. all ICSID Contracting States. was established in 1966 pursuant to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention or Washington Convention). non-institutional) arbitration proceedings. neither can unilaterally withdraw its consent. whether or not parties to the dispute. This is most commonly done in the context of arrangements for arbitration under the Arbitration Rules of the United Nations Commission on International Trade Law (UNCITRAL)." A third activity of ICSID in the field of the settlement of disputes has consisted in the Secretary-General of ICSID accepting to act as the appointing authority of arbitrators for ad hoc (i. .e. It provides facilities for the conciliation and arbitration of investment disputes between member countries and individual investors. United States. Note: ICSID is under the World Bank. ICSID has an Administrative Council. and a Secretariat.

such as those prohibiting slavery. Any internationally wrongful act which is not an international crime in accordance with paragraph 2 constitutes an international delict. It is always an action in conformity with international law. http://www. as they commonly breached the rights of civilians. though unmistakably an unfriendly one. (c) a serious breach on a widespread scale of an international obligation of essential importance for safeguarding the human being. torsi. a phrase used in International Law is an act perpetrated by one nation upon another in retaliation or reprisal for a similar act perpetrated by the other nation. such as that prohibiting the establishment or maintenance by force of colonial domination. a twisting. (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment. an international crime may result. genocide and apartheid. The typical methods of retorsion are the use of comparably severe measures against citizens of the foreign nation found within the borders of the retaliating nation. A reprisal is a limited and deliberate violation of international law to punish another sovereign state that has already broken them. but become legal when adopted by one state in retaliation for the commission of an earlier illegal act by another state. inter alia.answers. Acts short of war Retaliation is a nonamicable action short of war taken by one state against another in response to conduct that the retaliating state considers injurious or unfriendly. from Latin retortus (influenced by Late Retorsion (French rétorsion. It may be forcible or peaceful. . On the basis of the rules of international law in force. from: (a) a serious breach of an international obligation of essential importance for the maintenance of international peace and security. such as those prohibiting massive pollution of the atmosphere or of the seas. an action outlawed by the Geneva Conventions. (b) a serious breach of an international obligation of essential importance for safeguarding the right of self-determination of peoples. Counter-reprisals are generally not allowed. 1585–95. such as that prohibiting aggression. They are acts which are illegal if taken alone.An internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime. Reprisals in the laws of war are extremely limited. wringing).

raising wages. In other words. for a countermeasure to be justifiable. The countermeasure must be commensurate with the injury suffered. either as an act of reprisal designed to coerce diplomatic redress. increasing employment. are far more common. but become legal when executed by one state in response to the commission of an earlier illegal act by another state towards the former. The detention of foreign vessels has occurred more often. The act constituting countermeasure must be taken in response to a previous intentional wrongful act of another state and must be directed against that state. 4. it refers to non-violent acts which are illegal in themselves. Although an embargo can cripple a nation's economy. promoting equality. however. non-intercourse may in some circumstances be a threat of war. such as promoting economic Embargo is the prohibition by a country of the departure of ships or certain types of goods from its ports. It is a hostile act of retaliation for some wrong and is intended to effect redress. The court remarked that. Therefore. beyond the basic regulation of fraud and enforcement of contracts. Embargoes on goods. managing the money supply and interest .Requisites of a reprisal:    There had to be a previous act by the other party that violated international law. The injured state must have already called upon the state committing the wrongful act to discontinue its wrongful conduct or to make reparation. There must be proportionality between the offence and reprisal. it must meet the conditions below: 1. The purpose behind evoking the countermeasure is to induce the wrongdoing state to comply with its obligations under international law.html#ixzz1tZXq8FuD Economic interventionism is an action taken by a government or an international institution in a market economy or market-oriented mixed economy. Reprisals had to be preceded by an unsatisfied demand for reparation or compliance with the violated international law. http://www. the use of an embargo alone has typically failed to achieve the goal its imposition was intended to secure.html#ixzz1tZYDiCM1 Non-intercourse in international law is the refusal of a state to engage in diplomatic or commercial relations with another state. 3. Countermeasure in public international law refers to reprisals not involving the use of force. raising or reducing prices. Economic intervention can be aimed at a variety of political or economic objectives. taking into account the rights in question. in an effort to impact the economy. the measure must be reversible. The leading case on countermeasure is the International Court of Justice decision in Gabčíkovo – Nagymaros Dams case. Since nations normally have diplomatic and commercial intercourse.infoplease. or in contemplation of war with the country to which the vessels belonged. http://www. but the request was refused.

or clandestine support for one side of an existing conflict. biological. unconventional warfare. and tariffs. Conventional warfare is an attempt to reduce an opponent's military capability through open battle. The opposite of conventional warfare. social disruption. or addressing market failures. production quotas. Asymmetric conflicts often result in guerrilla tactics being used to overcome the sometimes vast gaps in technology and force size. is an attempt to achieve military victory through acquiescence. War War is an organized. contracting preferences.guerrilla warfare plus political action (Bernard Fall) . therefore applies to capitalist market or mixed economies where government action interrupts the market forces at play with orders or sanctions. War should be understood as an actual. The set of techniques used by a group to carry out war is known as warfare. and often a prolonged conflict that is carried on between states. import quotas. which will benefit the state (although this does not apply to state-owned enterprises that operate in the market). minimum wage legislation. increasing profits. capitulation. direct subsidies to certain classes of producers. Asymmetric warfare is a conflict between two populations of drastically different levels of military capability or size. armed. and therefore is defined as a form of political violence. targeted tax credits. intentional and widespread armed conflict between political communities. price supports. The term economic intervention assumes the state and economy are inherently separate from each other. Warfare by objective:  Defensive warfare  Offensive warfare Warfare by doctrine:  Attrition warfare/Fabian warfare  Maneuver warfare  Guerilla warfare  Static warfare/Positional warfare  Insurgency warfare  Counterinsurgency warfare "revolutionary warfare" . price caps. It is a declared war between existing states in which nuclear. union shop rules. or chemical weapons are not used or only see limited deployment in support of conventional military goals and maneuvers. Economic interventions common in contemporary governments include targeted taxes. and usually high mortality. nations. or other parties typified by extreme aggression.rates.

but not necessarily use. a separatist rebellion has begun. The use of the term insurgency does recognize the political motivation of those who participate in an insurgency. guerrilla warfare. The distinction on whether an uprising is an insurgency or a belligerency has not been as clearly codified as many other areas covered by the internationally accepted laws of war for two reasons. From a Western point of view. War of National Liberation In Marxist terminology. especially those fought during the decolonization movement. or more positively.Note: A declaration of war requires 2/3 vote of both houses. . War of Independence A war of independence is a conflict occurring over a territory that has declared independence. the conflict is subsequently known as a war of independence. voting separately. The first is that international law traditionally does not encroach on matters which are solely the internal affairs of a sovereign state (although recent developments such as the responsibility to protect is starting to undermine this traditional approach). while the term brigandry implies no political motivation. An insurgency can be fought via counterinsurgency warfare. and never those fought against a communist party. Insurgency An insurgency is an armed rebellion against a constituted authority (for example. wars of independence. An "insurgency" may include. The second is because at the Hague Conference of 1899 there was disagreement between the Great Powers who considered francs-tireurs to be unlawful combatants subject to execution on capture and smaller states who maintained that they should be considered lawful combatants. and may also be opposed by measures to protect the population. Wars of national liberation refer to the wars fought since the October Revolution of 1917. If an uprising has little support (for example those who continue to resist towards the end of an armed conflict when most of their allies have surrendered) then such a resistance may be described as brigandry and those who participate as brigands. If a new state is successfully established. They were founded in guerrilla warfare or asymmetric warfare by national liberation movements. an authority recognized as such by the United Nations) when those taking part in the rebellion are not recognized as belligerents. This struggle became a major battlefield of the Cold War. Once the state that previously held the territory sends in military forces to assert its sovereignty or the native population clashes with the former occupier. often with intervention from other states. The dispute resulted in a compromise wording being included in the Hague Conventions known as the Martens Clause after the diplomat who drafted the clause. these same wars are called insurgencies or rebellions. wars of national liberation or national liberation revolutions are conflicts fought by oppressed nationalities against imperial powers to establish separate sovereign states for the subjugated nationality. and by political and economic actions of various kinds aimed at undermining the insurgents' claims against the incumbent regime.

coupled with tactics such as divide and rule designed to fracture the links between the insurgency and the population in which the insurgents move. Typically the most successful counterinsurgencies have been the British in the Malay Emergency and the Filipino government's countering of the Huk Rebellion. relativistic. In the main. and entirely uninvolved members of the population. and the counter-insurgent forces seek to protect that authority and reduce or eliminate the supplanting authority of the insurgents. Counter-insurgency operations are common during war. according to common article 3 of the Geneva Convention. Zimbabwe and Uganda intervened to support various groups in the DRC (Stewart. or strike a vulnerable target. common article 2 states that ―all cases of declared war or of any armed conflict that may arise between two or more high contracting parties. Internationalized Armed Conflict and NonInternational Armed Conflict Distinguished According to the Geneva Conventions of 1949. International Armed Conflict. even if the state of war is not recognized. This means that the occurrence of international armed conflict is clear. it would be a conflict between the legal armed forces of two different states.) Guerilla Warfare Guerrilla warfare is a form of irregular warfare and refers to conflicts in which a small group of combatants including. common art. that is. counter-insurgency operations have often rested on a confused. Counter-insurgency may be armed suppression of a rebellion. the insurgents seek to destroy or erase the political authority of the defending authorities in a population they seek to control. armed civilians (or "irregulars") use military tactics. The most visible example of an internationalized armed conflict was the conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda. sabotage. (Before one counters an insurgency. Because it may be difficult or impossible to distinguish between an insurgent. A good example would be the North Korean-South Korean war of 1950.Counter-Insurgency A counter-insurgency or counterinsurgency (COIN) involves actions taken by the recognized government of a nation to contain or quell an insurgency taken up against it. or otherwise situational distinction between insurgents and non-combatants. Non-international armed conflicts. such as ambushes. occupation and armed rebellions. however. and withdraw almost immediately. raids. one must understand what one is countering. and extraordinary mobility to harass a larger and less-mobile traditional army.2). The second armed conflict recognized by international humanitarian law is a new phenomenon known as 'an internationalized armed conflict'. the element of surprise. p 315). 1949. a supporter of an insurgency who is a non-combatant. The situation of an internationalized armed conflict can occur when a war occurs between two different factions fighting internally but supported by two different states (Stewart. but not limited to. 315). 2003. the convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party even if the said occupation meets with no armed resistance'' (Geneva Convention. Angola. are ‗armed conflicts that are non-international in nature occurring in .

1949).g. territorial control) and should not include unnecessary The law of war is a body of law concerning acceptable justifications to engage in war (jus ad bellum) and the limits to acceptable wartime conduct (jus in bello or International humanitarian law). since that indicates an intent to surrender or a desire to communicate. Some of the central principles underlying laws of war are:  Wars should be limited to achieving the political goals that started the war (e. However. and civilians.   Wars should be brought to an end as quickly as possible. such as the 1949 Geneva Conventions. p 75. common article 3. therefore relying heavily on the political will of states to classify the situation as an armed conflict. though fighting in that uniform is unlawful perfidy. common article 3 also states that it does not apply to other forms of violence such as riots. there has to be a level of organization of the parties (Vite. laws of war are intended to mitigate the hardships of war by:  Protecting both combatants and noncombatants from unnecessary suffering. ICRC. For a situation to be classified as a non-international armed conflict. . among them the wearing of a distinctive uniform or other distinctive signs visible at a of the High contracting parties’ (Geneva Convention. and second. it has to achieve two variables: first.. To this end. ambulances or hospital ships displaying a Red Cross.  Lawful conduct of belligerent actors Modern laws of war regarding conduct during war (jus in bello).studentpulse. Impersonating soldiers of the other side by wearing the enemy's uniform is allowed. People and property that do not contribute to the war effort should be protected against unnecessary destruction and hardship. such as the 1949 Geneva Conventions. the wounded and sick. p 3) and form in a collective character. 2008. as is the taking of hostages. Facilitating the restoration of peace. It is also prohibited to fire at a person or vehicle bearing a white flag.  Safeguarding certain fundamental human rights of persons who fall into the hands of the enemy. Modern laws of war. isolated and sporadic acts of violence. a Red Crescent or other emblem related to the International Red Cross and Red Crescent Movement. the hostilities have to reach a certain minimum level of intensity (Vite. p 75) (Defining Armed Conflict in International Humanitarian Law http://www. This abstract definition has made it difficult to make a clear distinction between a mere disturbance and an armed conflict. particularly prisoners of war. also include prohibitions on attacking doctors. This means that one of the parties involved is nongovernmental in nature. provide that it is unlawful for belligerents to engage in combat without meeting certain requirements. and the carrying of weapons openly.

in which one side promises to act in good faith (e. combatants that intentionally use protected people or property as shields or camouflage are guilty of violations of laws of war and are responsible for damage to those that should be protected. For example. a lawful combatant has to be treated as a prisoner of war by the enemy Power under the conditions laid down in the Third Geneva Convention. and may not engage in warlike acts. Failure to follow these requirements can result in the loss of protected status and make the individual violating the requirements a lawful military target. Parties are bound by the laws of war to the extent that such compliance does not interfere with achieving legitimate military goals. Mercenaries. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed themselves (e. persons protected by the Red Cross/Crescent or white flag are expected to maintain neutrality. A lawful combatant cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war. An unlawful combatant is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5. is treated as a POW. the members of their armed forces. by coming out of cover in order to capture the surrendering forces). but they are not guilty of a war crime if a bomb mistakenly hits a residential area.In either case. Perfidy is a form of deception.. Spies A lawful combatant is a person who commits belligerent acts. Actors in a war: Combatants Mercenary Spy Prisoners of War Civilians Combatants. engaging in war activities under a protected symbol is itself a violation of the laws of war known as perfidy. in particular. when captured. and. . The law of war is binding not only upon States as such but also upon individuals and. When may a state be not be liable under the Laws of War? If the wronged state launches a counter-attack against the aggressor state’s forces.g. By the same token. they are obliged to make every effort to avoid damaging people and property not involved in combat.. and if captured. If there is any doubt about whether a detained alleged combatant is a "lawful combatant" then the combatant must be held as a prisoner of war until his or her status has been determined by "a competent tribunal".g. If that tribunal rules that a combatant is an "unlawful combatant" then the person's status changes to that of a civilian which may give them some rights under the Fourth Geneva Convention. in fact.

after a "fair and regular trial". in case of trial. Espionage or spying involves a government or individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Common definitions of terrorism refer only to those violent acts which are intended to create fear (terror). the "unlawful combatant" does not have the "rights and privileges under the present Convention as would. terrorism has no universally agreed. . but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. Espionage is inherently clandestine.. legally binding. or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property(saboteur). but to be offenders against the law of war subject to trial and punishment by military tribunals. In which case. criminal law definition. In the international community. illegal and punishable by law. retain the right "to be treated with humanity and. as it is taken for granted that it is unwelcome and." They do. It is a subset of intelligence gathering .which otherwise may be conducted from public sources and using perfectly legal and ethical means. especially as a means of coercion. however. The spy who secretly and without uniform passes the military lines of a belligerent in time of war. if exercised in the favor of such individual person. be prejudicial to the security of such State. that the Party to the conflict will invoke GCIV Article 5. be pronounced by a regularly constituted court. Terrorism is the systematic use of terror." Unlawful combatants are likewise subject to capture and detention. and if they are a protected person under GCIV. Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949. then the "unlawful combatant" can be punished by whatever lawful methods are available to the party to the conflict. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action. and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war." The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Luanda Trial as mercenaries. however. seeking to gather military information and communicate it to the enemy.An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war.. Combatants who do not qualify for prisoner of war status (General Rule) If the combatant is engaged in "armed conflict not of an international character" then under the Article 3 of the general provisions of the Geneva Conventions they should be "treated humanely". shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. It is likely that if they are found to be an "unlawful combatant" by "a competent tribunal" under GCIII Article 5. are perpetrated for a religious. in many cases. If. the individual in question is found guilty of a crime. and if tried "sentences must . political or. are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war.

Assassination is widely defined as murder. Note that this is a different term and concept from that of "targeted violence" as used by specialists who study violence. P/W. who is held in custody by an enemy power during or immediately after an armed conflict. The use of the term assassination is opposed. Legal justification : In the legal world. PsW) or enemy prisoner of war (EPW) is a person. Depending on the circumstances. U. wrote on the subject: When people call a targeted killing an "assassination. in his 2010 book entitled The Law of Armed Conflict: International Humanitarian Law in War. writes: "Assassinations and targeted killings are very different acts". PoW.ideological goal." they are attempting to preclude debate on the merits of the action.. Hors de Combat Hors de combat. Prisoner of War A prisoner of war (POW. of a civilian or "unlawful combatant" targeted by the government. and is for that reason prohibited in the United States.. Countries that have signed the UN Convention Against Torture have committed themselves not to use torture on anyone for any reason. but not a crime. and deliberately target or disregard the safety of non-combatants (civilians). whether by bearing arms or otherwise. Some definitions now include acts of unlawful violence and war. and thus it is viewed as a killing. by a government or its agents. Georgetown Law Professor Gary Solis. Judge Abraham Sofaer. who has thereby lost the immunity from being targeted that he would otherwise have under the Third Geneva Convention.. literally meaning "outside the fight". Targeted killings in self-defense have been authoritatively determined by the federal government to fall outside the assassination prohibition. who is not in the government's custody. former federal judge for the U. PW. Targeted Killing Targeted killing is the intentional killing. The use of similar tactics by criminal organizations for protection rackets or to enforce a code of silence is usually not labeled terrorism though these same actions may be labeled terrorism when done by a politically motivated group.S. But killings in self-defense are no more "assassinations" in international affairs than they are murders when undertaken by our police forces against domestic killers. is a French term used in diplomacy and international law to refer to soldiers who are incapable of performing their . WP. whether civilian or combatant. as it denotes murder. District Court for the Southern District of New York. officials may not kill people merely because their policies are seen as detrimental to our interests... which fall outside their scope. The target is a person who is allegedly taking part in an armed conflict or terrorism. The laws of war neither approve nor condemn such acts.S. Spies and terrorists are only protected by the laws of war if the power which holds them is in a state of armed conflict or war and until they are found to be an unlawful combatant. whereas people who are allegedly terrorists are targeted in self-defense.. they may be subject to civilian law or military tribunal for their acts and in practice have been subjected to torture and/or execution.

if they qualify as a "protected person". It should be emphasized that. Examples include a downed fighter pilot. is the law that regulates the conduct of armed conflicts (jus in bello). policy or regime. is not a protected person under GCIV.g. 12 August 1949 (GCIV). sometimes including prisoner of war status. a national of a neutral state. Historically. Serious violations of international humanitarian law are called war crimes. or the law of armed conflict. alongside the term nonviolent resistance. and is a violation of the laws of war and the Geneva Conventions. they receive all the rights which a non-combatant civilian receives under GCIV. jus in bello. neutral nations and individuals engaged in warfare. but the party to the conflict may invoke Articles of GCIV to curtail those rights. It is distinct from jus ad bellum which regulates the conduct of engaging in war or armed conflict and includes crimes against . International humanitarian law. It comprises "the Geneva Conventions and the Hague Conventions. if they qualify as a protected person. or direct control over their actions. case law." It defines the conduct and responsibilities of belligerent nations. usually meaning civilians. as well as the sick. or otherwise disabled. in relation to each other and to protected persons. occupying powers have used collective punishment to retaliate against and deter attacks on their forces by resistance movements (e. with normal diplomatic representation. If the individual fulfills the criteria as a protected person. Civil Resistance The term civil resistance. In times of war and armed conflict. force. in a war zone. detained. Soldiers hors de combat are normally granted special protections according to the laws of war. collective punishment has resulted in atrocities. they are entitled to all the protections mentioned in GCIV. wounded. The punished group may often have no direct association with the other individuals or groups. as well as subsequent treaties. The relevant Articles are 5 and 42. (EDSA and Egypt Revolutions come into this category) Collective Punishment Collective punishment is the punishment of a group of people as a result of the behavior of one or more other individuals or groups.military function. Civilian A non-combatant civilian "in the hands" of an enemy or an Occupying Power often gains rights through the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. then. International Humanitarian Law International humanitarian law (IHL). If a combatant does not qualify as a POW. regulates the conduct of forces when engaged in war or armed conflict. is used to describe political action that relies on the use of non-violent methods by civil groups to challenge a particular power. destroying whole towns and villages where such attacks have occurred). and customary international law.

6. The emblem of the "Red Cross. Parties to a conflict and members of their armed forces do not have an unlimited choice of methods and means of warfare. They shall have the right to correspond with their families and to receive relief. distinguishes occupation from both colonialism or annexation.‖ Belligerency Military occupation/belligerent occupation is effective provisional control of a certain power over a territory which is not under the formal sovereignty of that entity. when no claim for permanent sovereignty is made by the occupying entity. The wounded and sick shall be cared for and protected by the party to the conflict which has them in its power. Captured combatants and civilians must be protected against acts of violence and reprisals." or of the "Red Crescent. 5. The law is mandatory for nations bound by the appropriate treaties. It is forbidden to kill or injure an enemy who surrenders or who is hors de combat. Civilians may also be compelled to . There are also other customary unwritten rules of war. without the volition of the actual sovereign. Together the jus in bello and jus ad bellum comprise the two strands laws of war governing all aspects of international armed conflicts. 7. While hostilities continue. many of which were explored at the Nuremberg War Trials.peace and of war of aggression. but the occupying state may establish some form of military administration over the territory and the population. Attacks shall be directed solely against military objectives. Belligerent occupation/Military occupation (http://legal-dictionary. Basic rules of IHL 1. Persons hors de combat (outside of combat) and those not taking part in hostilities shall be protected and treated humanely. By extension. No one shall be subjected to torture. residents are required to obey the occupying authorities and may be punished for not doing so. corporal punishment or cruel or degrading treatment. they also define both the permissive rights of these powers as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. Attacks shall be directed solely against military objectives. Principle of Distinction in the conduct of armed Military occupation occurs when a belligerent state invades the territory of another state with the intention of holding the territory at least temporarily. The intrinsically temporary nature of occupation.thefreedictionary. . 4. 2." shall be required to be respected as the sign of protection. the occupying state is prohibited by International Law from annexing the territory or creating another state out of it. Under the Martial Law imposed by this regime. 3.―at all times distinguish between the civilian population and combatants. Parties to a conflict shall at all times distinguish between the civilian population and combatants.

or ruse de guerre. respect private property. describe the criteria for acts qualifying as "armed conflict not of an international character". however. to achieve independence for a region. The insurgent civil authority must exercise de facto authority over the population within the determinate portion of the national territory. or to change government policies. corrupting enemy civilians or soldiers by bribes. or. provided such work does not contribute directly to the enemy war effort. In general. Good faith in dealing with an enemy must be observed as a rule of conduct. or rebel. Civilians may not be deported to the occupant's territory to perform forced labor nor impressed into military service on behalf of the occupying army. They do. a . surrender. Civil war A civil war is a war between organized groups within the same nation state or republic. The legal Government is "obliged to have recourse to the regular military forces against insurgents organized as military. and honor individual liberties." Levée en masse (French pronunciation: [ləve ɑ mɑs]. is an action taken by a belligerent in warfare to fool the enemy in order to gain intelligence or a military advantage against an enemy. Regulations of the Hague Conventions of 1907 and. Ruses of war A ruse of war. The aim of one side may be to take control of the country or a region. Among the conditions listed are four requirements:     The party in revolt must be in possession of a part of the national territory. which includes civil wars. the military authorities are obligated under international law to maintain public order. namely the new concept of the democratic citizen as opposed to a royal subject. but this does not prevent measures such as using spies and secret agents. between two countries created from a formerlyunited nation state. encouraging defection or insurrection among the enemy civilian population. existing laws and administrative rules are not to be changed. such as the repair of roads and buildings. the 1949 Geneva convention for the Protection of Civilian Persons in Time of War have attempted to codify and expand the protection afforded the local population during periods of military occupation. It denotes a short-term requisition of all able-bodied men to defend the nation and has to be viewed in connection with the political events in revolutionary France. less commonly. Although the power of the occupying army is broad.perform a variety of nonmilitary tasks for the occupying authorities. literally "massed levy" or "mass uprising") is a French term for mass conscription. or inducing the enemy‘s soldiers to desert. The Geneva Conventions do not specifically define the term "civil war". more importantly. The insurgents must have some amount of recognition as a belligerent. Although measures may be imposed to protect and maintain the occupying forces.

 traps that are attached or associated in any way with:  emblems. annex 10 October 1980:  traps that are apparently harmless portable objects. however.  burial. forbidden if they contravene any generally accepted rule. the death of civilians during an armed conflict. that contain an explosive charge. They are. or signals internationally recognized. does not in itself constitute a war crime.  sick. signs. even when it is known that some civilian deaths or injuries will occur. or places of worship which constitute a cultural or spiritual heritage of people. whereby belligerents must distinguish between combatants and civilians. When landmines were not marked or reported. they are perfidious per the Geneva Conventions. Ruses of war are legitimate so long as they do not involve treachery or perfidy on the part of the belligerent resorting to them.belligerent may resort to those measures for mystifying or misleading the enemy against which the enemy ought to take measures to protect itself.  objects of a religious nature. Distinction ―Under international humanitarian law and the Rome Statute.  toys for children or other portable objects. works of art. no matter how grave and regrettable. or medical transportation. or when they are disguised.  historic monuments. Article 8(2)(b)(iv) criminalizes: . and are specifically designed to produce a detonation when you move or approach it.  food or drink. supplies. Principle of Proportionality in armed conflict The harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective. cremation. wounded. proportionality and distinction are important factors in assessing military necessity.  facilities. Principles of Proportionality and Distinction in Armed Conflict Under international humanitarian law governing the legal use of force in an armed conflict. A crime occurs if there is an intentional attack directed against civilians (principle of distinction) (Article 8(2)(b)(i)) or an attack is launched on a military objective in the knowledge that the incidental civilian injuries would be clearly excessive in relation to the anticipated military advantage (principle of proportionality) (Article 8(2)(b)(iv). Principle of Distinction in armed conflict Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict. equipment. or graves. or dead. International humanitarian law and the Rome Statute permit belligerents to carry out proportionate attacks against military objectives.  kitchen utensils or appliances.

15. are three important principles of international humanitarian law governing the legal use of force in an armed conflict. the infliction of suffering for the sake of suffering or for revenge .Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread. inter alia. The application of Article 8(2)(b)(iv) requires. an assessment of: (a) the anticipated civilian damage or injury. in general. Military necessity is governed by several constraints: an attack or action must be intended to help in the military defeat of the enemy. . Military necessity. and the harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated. and of other persons whose destruction is incidentally unavoidable in the armed contests of the war . (c) and whether (a) was "clearly excessive" in relation to (b). responsible to one another and to God. it must be an attack on a military objective. . ICC Military Necessity ―Military necessity. Art. and proportionality. long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.‖ — Luis Moreno-Ocampo Chief Prosecutor. as understood by modern civilized nations. Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance . Military necessity was defined in the 1863 Leiber Code. . along with distinction. consists in the necessity of those measures which are indispensable for securing the ends of the war. Art. . . military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult. Article 8(2)(b)(iv) draws on the principles in Article 51(5)(b) of the 1977 Additional Protocol I to the 1949 Geneva Conventions. and which are lawful according to the modern law and usages of war. which bound Union forces during the Civil War. but restricts the criminal prohibition to cases that are "clearly" excessive. The Code‘s three articles on military necessity provided the touchstone for subsequent development of the principle: Art. .‖ ~ Michael N. Men who take up arms against one another in public war do not cease on this account to be moral beings. 14. 16. Military necessity admits of all direct destruction of life or limb of armed enemies. Schmitt. [A]nd. (b) the anticipated military advantage. Military necessity does not admit of cruelty—that is.

but instead is motivated by humanitarian It is an intervention in the sense that it entails interfering in the internal affairs of a state by sending military forces into the territory or airspace of a sovereign state that has not committed an act of aggression against another state. The intervention is in response to situations that do not necessarily pose direct threats to states‘ strategic interests. wounded. Superior Responsibility – the responsibility of a civilian to be held accountable over the conduct of every person who acts under his authority. These persons are specifically the sick. when it should occur. prisoners and civilians not taking direct part in the hostilities. ethics. but the law also covers others such as medical and religious personnel. a general consensus on some of its essential characteristics:   Humanitarian intervention involves the threat and use of military forces as a central feature. who should intervene. however.icrc.  The subject of humanitarian intervention has remained a compelling foreign policy issue.htm) Protected persons in wartime are all those who benefit from protection under treaty-based and customary international humanitarian law. shipwrecked. the field of analysis (such as law. . Moreover. whether humanitarian intervention is limited to punishment actions. Doctrine of Humanitarian Intervention Humanitarian intervention is a state's use of "military force against another state when the chief publicly declared aim of that military action is ending human-rights violations being perpetrated by the state against which it is directed. International Humanitarian Law – Note: Geneva Convention is only a part of this. There is. humanitarian workers and civil defense staff. Protected persons under International Humanitarian Law (http://www. it has sparked normative and empirical debates over its legality. as it highlights the tension between the principle of state sovereignty – a defining pillar of the UN system and international law – and evolving international norms related to human rights and the use of force." There is no one standard or legal definition of humanitarian intervention. the ethics of using military force to respond to human rights violations. especially since NATO‘s intervention in Kosovo in 1999. and whether it is effective. or politics) often influences the definition that is chosen. Differences in definition include variations in whether humanitarian interventions is limited to instances where there is an absence of consent from the host state.Command Responsibility – the responsibility of a commanding officer over the conduct of his subordinates acting upon his authority or orders. and whether humanitarian intervention is limited to cases where there has been explicit UN Security Council authorization for action.

e. and weaker of the two merging entities. into a single entity. joining) is the de jure incorporation of some territory into another geo-political entity (either adjacent or non-contiguous). the original owner may reclaim that property without payment of compensation. it is implied that the territory and population being annexed is the smaller. one acting unilaterally against the other in order to seize territory. Annexation involves forcible expansion of territory involving at least two sovereign entities. Usually. A city's boundaries are expanded by adding territories not already incorporated as cities or villages (in the case of amalgamation). is a specific version of the maxim ex injuria jus non oritur (law does not arise from injustice). barring physical size. or amalgamation (where the authorities of both sides are asked if they agree with the merge). countries and intergovernmental organizations). etc. towns. It can also imply a certain measure of coercion. as opposed to being units of a single political entity in the case of amalgamation. providing for the invalidity of all illegitimate acts that an occupant may have performed on a given territory after its recapture by the legitimate sovereign. Uti possidetis (Latin for "as you possess") is a principle in international law that territory and other property remains with its possessor at the end of a conflict. Annexation is similar to amalgamation. unless otherwise provided for by treaty. if such a treaty doesn't include conditions regarding the possession of property and territory taken during the war. counties. Annexation differs from cession and amalgamation.Postliminium The principle of postliminium. annexation is a unilateral act where territory is seized and held by one state and legitimized via general recognition by the other international bodies (i. as a part of public international law. This term is used when the process occurs within a sovereign entity. Annexation. Amalgamation and Cession distinguished Annexation (Latin ad. . more peripheral. etc. Uti possidetis – retention of properties after belligerent occupation of a belligerent state’s military forces. A merger or amalgamation in a political or administrative sense is the combination of two or more political or administrative entities such as municipalities (in other words cities. Therefore. if the occupant has appropriated and sold public or private property that may not legitimately be appropriated by a military occupant. and nexus. districts. because unlike cession where territory is given or sold through treaty. expansionism or unilateralism on the part of the stronger of the merging entities. to. 2. but differs in being applied mainly to two cases: 1.). The units joined in annexation are sovereign entities before the process. then the principle of uti possidetis will prevail.

cession is voluntary or at least apparently so. and the formulation of foreign policy.pdf) ―As defined by international lawyers. the prohibition of intervention ―is a corollary of every state‘s right to sovereignty. Intervention is ―prohibited where it bears upon matters in which each state is permitted to decide freely by virtue of the principle of state sovereignty‖ (p. economic. and also to the international legal limits on a State’s jurisdiction to prescribe and to enforce. a giving up. it is a principle of customary international law that states and international organizations may not interfere or intervene in matters within the domestic jurisdiction of other states (see § 5 of Chapter 20). This principle is enshrined in the Charter of the United Nations (CUN). This has been the case even when state acts violate the rights of the state‘s own people. As discussed in Malcolm Shaw‘s standard reference work International Law. the intervening state may use its own agents to carry out the policies that it desires. to decide freely. social and cultural system. 1039). One of these is the choice of a political. It is closely linked to the concept of domestic affairs. intervention is unsolicited interference by one state in the affairs of another.In international law cession commonly refers to land transferred by treaty. territorial integrity and political independence‖ (p 428). state action with respect to purely domestic affairs have traditionally been shielded by immunity in the international arena. . It may take the form of military action or economic or political 0207. Principle of Non-Intervention The principle of non-intervention is the mirror image of the sovereignty of States. Intervention may be directed against a single state or factions within it. a relinquishment of jurisdiction by a board in favor of another agency. States yield because they fear military coercion or nonmilitary punitive actions or because they cannot stop the intervening state's agents or activities. or it may involve interference with the interactions among a group of states.7 CUN). International law historically would only apply when foreign nationals fall victims to the crimes of a state. 2.‖ (From: THE PRINCIPLE OF NON-INTERVENTION IN CONTEMPORARY INTERNATIONAL LAW: NON-INTERFERENCE IN A STATE‘S INTERNAL AFFAIRS USED TO BE A RULE OF INTERNATIONAL LAW: IS IT STILL? – Chatham House http://www. by the principle of State sovereignty. nonintervention is the avoidance of such interference. Alternatively.chathamhouse. Under this historic principle. Ballentine's Law Dictionary defines cession as "a surrender. which states: ―Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter‖ (art." In contrast with annexation. What is prohibited is dictatorial interference in what the International Court of Justice referred to in Nicaragua as ―matters which each State is permitted. what the French tend to call domaine réservé. As Oppenheim says. These pressures force states to act in a manner prescribed or foreordained by the intervening state. where property is forcibly given up.

under this doctrine.7 CUN). it never gained acceptance outside the Americas and was never the object of any long-term application.blogspot. the governments or changes in government of other nations. to go free through the application of the principle of nonintervention. Calvo Doctrine The Calvo Doctrine is a foreign policy doctrine which holds that jurisdiction in international investment disputes lies with the country in which the investment is located. Practice thus departed from precedent with the establishment of these military tribunals.which is a de facto situation-produces legal effects. As regards International Law. this changed. has no recourse but to use the local courts. positively or negatively.After World War II.wordpress. Under this exception to the principle of nonintervention. respectively. international human rights law has ignored the principle of nonintervention. the Allied Powers made a firm decision not to allow the German and Japanese authorities responsible for war crimes. . even where such occupation has no valid basis and results from a pure act of force. including those who committed such crimes against their own citizens. and other states or international organizations may intervene to assure that these rights are respected if a state fails to insure them. However. states are obliged under their human rights treaties to respect the rights of both their own citizens as well as aliens within their borders. The Calvo Doctrine thus proposed to prohibit diplomatic protection or (armed) intervention before local resources were Tobar or Wilson Doctrine (http://asteroids08. rather than those of their home country. An investor. however. since doing so would be a miscarriage of justice. Since then. peaceful resolution of disputes and self-determination of all nations. the fact that an occupation of It proposes that any government resulting from a coup d’etat must first be confirmed by free elections before being recognized. Due to the atrocities committed in the war. Under current practice. in cases involving the most egregious crimes.html) Estrada Doctrine The Estrada Doctrine states that foreign governments should not judge. in that such action would imply a breach to their sovereignty.‖ (From: The Principle of Nonintervention within the Context of the Uprisings across the Middle East http://johnbalouziyeh. 2. the Nuremberg International Military Tribunal and the International Military Tribunal for the Far East were established to try the war crimes of Nazi Germany and Imperial Japan. The CUN incorporates this premise when articulating an exception to the general rule of sovereignty: the principle of nonintervention ―shall not prejudice the application of enforcement measures under Chapter VII [of the Charter]‖ (art. This policy was said to be based on the principles of non-intervention.

and d) consented by a public official (Torture and Ill-Treatment n. . and Italy.d. or intimidating or coercing him or a third person. whether physical or mental. revenge. Torture Torture is the act of inflicting severe pain (whether physical or psychological) as a means of punishment. punishing him for an act he or a third person has committed or is suspected of having committed. The Drago Doctrine itself was a response to the actions of Britain. adding that arbitration and litigation should always be used first. including the United States. is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession. but that fall short of torture Inhumane treatment – key word is humiliate Degrading treatment – key word is debase Cruel treatment .acts that inflict mental or physical suffering. humiliation.Drago Doctrine It set forth the policy that no foreign power. c) done for the purpose of eliciting information or other objectives. could use force against an American nation to collect debt. Germany. or for any reason based on discrimination of any kind. which are: a) the act must be done with intent. A modified version by Horace Porter was adopted at The Hague in 1907. b) there is extreme pain and suffering. Inhuman or degrading treatment . or simply as an act of cruelty. acquired under president Cipriano Castro. forcing information or a confession.). who had blockaded and shelled ports in response to Venezuela's massive debt. Inhuman or Degrading Treatment or Punishment torture is defined as: "any act by which severe pain or suffering. anguish. when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity".The deliberate and malicious infliction of mental or physical pain upon persons or animals. It was supplanted in 1904 by the Roosevelt Corollary. In the Convention against Torture and Other Cruel. fear or debasement. (Article 1) Four elements must exist to be considered torture under the definition.

to have it impartially investigated. including rehabilitation and the right of victims to make a complaint. This includes:     Right to be protected from torture Duty to prosecute torturers Right not to be expelled.International and regional human rights law protect a number of key rights relating to torture and inhuman or degrading treatment. returned or extradited to another state where one may face danger Right of victims to obtain redress. and to be protected from retaliation for making complaints Committee Against Torture – 6 members . fair compensation.

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