CHAPTER 2

INTERNATIONAL LAW AND MUNICIPAL LAW

What are the two schools of thought that explained the relationship between international law and municipal
law?

Monism – law is viewed as a single entity of which “national” and “international” versions are merely
particular manifestation; believes in the oneness and unity of all law; posits that IL and ML are simply two
components of a single body of knowledge called ‘law”

two monist theories

first monist theory – holds that municipal law subsumes and is

superior to international law

second monist theory – holds that international law is superior

to domestic law

Dualism – believes in the dichotomy of the law; posits that there are certain well-established differences
between international law and municipal law; considers IL and ML as independent of each other, and both systems
are regarded as mutually exclusive and independent as they exist side by side within different spheres of action-the
international plane and the domestic plane

Municipal Law in International Law

What are the indications of the recognition of the existence of two legal systems, i.e. municipal and
international law?

1. Article 27 of the Vienna Convention on the Law of Treaties

- “ A party may not invoke the provisions of its internal law as justification for its failure to perform a
treaty.”

1. Article 13 of the Declaration of Rights and Duties of States adopted by the International Law
Commission in 1949

- “ Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an excuse for
failure to perform this duty.”

1. Article 38 of the ICJ Statute

- recognizes the common teachings of domestic law as part of international law

International Law in Domestic Law

How does international law become part of domestic law for “dualists”?

There are two theories:

1. doctrine of transformation

Since there is distinction between municipal law and international law, considering that they operate
separately, for international law to become part of domestic law, it must be expressly and specifically
transformed into domestic law through the appropriate constitutional machinery such as an act of
Congress or Parliament. This doctrine flows by analogy from what is applicable to treaties. Treaties do
not become part of the law of a state unless it is consented to by the state.

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 2 types of transformation theories

a. hard transformation theory – holds that only legislation can transform IL into DL; courts may apply
IL only where authorized by legislation

b. soft transformation theory – holds that either a judicial or legislative act of a state can transform IL
into DL

1. doctrine of incorporation

As an inevitable consequence of membership in the international community, with or without an

express declaration to this effect, states admitted to the family of nations are bound by the rules
prescribed by it for the regulation of international intercourse. A specific rule of International Law
becomes part of the national law without the need for express adoption. However, other states like
Austria, Germany, Korea and the Philippines deemed it fit to include in their respective constitution a
provision affirming recognition of the principles of international law. As a result In the case of the
Philippines, since treaties become a part of Philippine law only by ratification, the principle of
incorporation made possible through Article II, Section 2 of the constitution applies only to customary
law and to treaties which have become part of the customary law.

What is the nature of the incorporation theory that is applied by the 1987 Constitution?

The 1987 Constitution follows the “restrictive and automatic” incorporation theory. Restrictive,
since only generally accepted principles of IL become part of the law of the land, and automatic, in the
sense that generally accepted principles of IL automatically become part of the law of the land without
need of an act of Congress expressly adopting them or incorporating them as part of domestic law.

What then is the difference between the doctrine of transformation and doctrine of
incorporation?

The difference lies in the fact that incorporation adopts IL into NL just because it is IL, whereas
transformation requires a deliberate act on the part of the State concerned.

What is the “Fitzmaurice Compromise”?

This was explained by Sir Gerald Fitzmaurice. According to him, since IL and NL (ML) operate in different
fields, they can never be in conflict. Each one of them is supreme in its own domain, thus any conflict or question in
the domestic sphere is resolved by domestic rules while any conflict or question in the international field is settled by
international law.

If there is conflict between IL and DL, how can the conflict be resolved under the international rule?

The question on which law should prevail depends on whether the case goes to a domestic court or to an
international tribunal. It is an established principle that, before an international tribunal, a state may not plead its own
law as an excuse for failure to comply with international law.

This principle of the Vienna Convention has long been established and is generally recognized. However,
an exception is made to the rule by Article 46 of the same Convention in cases where the constitutional “violation was
manifest and concerned a rule of its internal law of fundamental importance.” The same article defines the violation
as “manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal
practice and in good faith.”

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 If the treaty that is declared unconstitutional, however, does not come under the exception, the treaty can be
ignored domestically but only at the risk of international repercussions before an international court.

How can the same conflict be resolved under the municipal rule?

When the conflict comes before domestic courts, domestic courts are bound to apply the local law. Thus,
should a conflict arise between an international agreement and the Constitution, the treaty would not be valid and
operative as domestic law.

Article VIII, Section 5, 2(a) recognizes the power of the SC to declare a treaty unconstitutional.

Does a treaty declared as unconstitutional lose its character as an international law?

No, under the “dualist” theory, which the Constitution accepts, the unconstitutionality of a treaty is purely a
domestic matter. As Article 27 of the Vienna Convention on the Law of Treaties says, “A party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”(Tanada vs Angara, MPH vs GSIS)

When there is conflict between international agreement and legislation, how shall the conflict be
resolved under the municipal rule?

The rule followed in the US and Philippines is that treaties and statutes are equal in rank and that, since
neither is superior to the other, the rule followed is that as between an earlier treaty and a later law, the later one
prevails.

However, the rule applies only in the domestic sphere. The treaty, even if contrary to later statute, remains
as international law; while an international tribunal would not have the power to reverse the nullification of the treaty in
domestic law, it can take appropriate action in favour of an aggrieved state.

TREATIES

What are treaties?

They represent the most deliberate form of commitment through which governments cooperate with one
another. International agreements is the generic term used to refer to treaties. In the absence of an international
legislative body, international agreements are a convenient tool through which states are able to project common
expectations.

What are the other names of treaties?

Treaties can assume various names such as conventions, pacts, covenants, charters, protocols, concordat,
modus vivendi, etc.

What is a concordat?

It is a treaty or agreement between the Pope and a State or Government that deals with religious matters, as
well as the recognition and privileges of the Holy See in other States.

What is the law on treaties?

The law on treaties can be found in the 1969 Vienna Convention on the Law of Treaties. It governs treaties
between states. It entered into force in January 1980. While the document is not retroactive in effect, it does
contain customary law precepts antedating 1969.

A Convention on the Law of Treaties Between States and International Organizations or Between
International Organizations was adopted on March 26, 1986. It should enter into force 30 days after the 35 th
ratification or accession of states.

How are treaties defined?

A treaty may be defined as a formal agreement, usually but not necessarily in writing, which is entered into
by states or entities possessing the treaty-making capacity, for the purpose of regulating their mutual relations

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 under the law of nations. Though, treaty may be known by other names, all agreements, when intended to
create legal as distinguished from moral obligations, are binding on the parties.

The Vienna Convention defines a treaty as “an international agreement concluded between States in written
form and governed by international law, whether embodied in a single instrument or in two or more related
instruments and whatever its particular designation.”

The Vienna Convention applies to international agreements that satisfy the Convention’s definition,
specifically that they be in writing and reflective of the intention of the parties to be bound, and governed by
international law.

Are treaties not in written form valid?

While treaties are generally in written form, there are writers who hold that even an oral agreement can be
binding. However, only written agreements that are new, come under the provisions of the Vienna Convention.

No particular form is prescribed. Thus, it was held that the exchange of notes between the two heads of
state was considered an international agreement in Qatar vs Bahrain.

What are the functions of treaties?

There are four important functions that treaties perform, according to Schwarzenberger, to wit:

1. Treaties enable parties to settle finally actual and potential conflicts.

2. They make it possible for the parties to modify the rules of international customary law by means of
optional principles or standards.

3. They may lead to a transformation of unorganized international society into one which may be
organized on any chosen level of social integration.

4. They frequently provide the humus for the growth of international customary law.

Treaties are sources of international law, they serve as the charter of international organizations, they are
used to transfer territory, regulate commercial relations, settle disputes, protect human rights, guarantee investments,
etc.

What are the kinds of treaties classified from the standpoint of their relevance as source of international law?

The following are the kinds of treaties:

1. Multilateral treaties

These are treaties open to all states of the world. They create norms which are the basis for a general rule
of law. They are either codification treaties or “law-making” treaties or they may have the character of both.

2. Treaties that create a collaborative mechanism

These can be of universal scope (e.g. regulation of allocation of radio frequencies) or regional (e.g. fishing
agreements). They operate through the organs of the different states.

3. Bilateral treaties

This is the largest category of treaties. Many of these are in the nature of contractual agreements which
create shared expectations such as trade agreements of various forms. They are sometimes called “contract
treaties.”

What are the essential requisites of a valid treaty?

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 To be valid, a treaty must: be entered into by parties with the treaty-making capacity; through their
authorized representatives; without the attendance of duress, fraud, mistake, or other vice of consent; on any lawful
subject-matter in accordance with their respective constitutional processes. Thus, the following are the essential
requisites of a valid treaty:

1. Treaty-making capacity

All states have full treaty-making capacity unless limited by reason of their status or by previous self-
imposed inhibitions.

The protectorate is restricted in the control of its external affairs by the protector-state; a neutralized state
may not agree to a defensive or offensive alliance.

However, there are instances, when even mere colonies have been allowed to sign treaties or join
international conferences as full-fledged members along with sovereign states.

The UN and its organs, such as the Security Council and the Economic and Social Council, and international
bodies like the WHO, may also enter into treaties.

2. Authorized representative

It is for municipal law to determine which organ of the state shall be empowered to enter into treaties in its
behalf.

In the Philippines, the President is authorized by the Constitution to make treaties, subject to the
concurrence of two-thirds of all the members of the Senate. This is in consonance with the general practice of
assigning the treaty-making power to the executive department of the government, subject to the consent of the
legislature or one of its branches.

What is the legal effect of a treaty concluded by an organ of the state without constitutional authority
to undertake this function?

The Harvard Research on International Law declared that, “ A state is not bound by a treaty made in its
behalf by an organ or authority not competent under the law to conclude the treaty; however, a state may be
responsible for an injury resulting to another state for reasonable reliance by the latter upon a representation that
such organ or authority was competent to conclude the treaty.” This view is disputed by writers such as Hackworth,
Hyde and Willoughby.

McNair wrote that if a party negotiating a treaty produces an authorization which appears to be complete
and regular although in fact constitutionally defective, “the other party, if it is ignorant and reasonably ignorant of the
defect, is entitled to assume that the instrument is in order and to hold the former to the obligation of the latter.”

3. Freedom of consent

Fraud or mistake has been uniformly recognized to invalidate a treaty as it would an ordinary contract.

With regard to the effect of duress to the validity of treaty, Lauterpacht stated a rule to the effect that, “ The
position has now probably changed insofar as war has been prohibited by the charter of the UN and the General
Treaty for the Renunciation of War. The state which has resorted to war in violation of its obligations under these
instruments cannot be held to apply force in a manner permitted by law. Accordingly, duress in such cases must, it is
submitted, be regarded as vitiating the treaty.”

4. Lawful Subject-Matter

Treaties with unlawful subject-matter and purposes are regarded as null and void.

5. Compliance with constitutional processes

The treaty-making process is governed by IL except with respect to the method of ratification as required by
the municipal law of most states at present. Non-compliance with this requisite will prevent enforcement of the treaty
even if already signed by the authorized negotiators.

Treaty-making Process

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 What are the usual steps in the treaty-making process?

They are: negotiation, signature, ratification and exchange of the instruments of ratification. The treaty may
then be submitted for registration and publication under the UN Charter, although this step is not essential to the
validity of the agreement as between the parties.

Negotiation may be undertaken directly of state but he may assign this task to his authorized
representatives who are provided with credentials known as full powers. It is standard practice for one of the parties
to submit a draft of the proposed treaty which, together with the counter-proposals, becomes the basis of the
subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may
even “collapse” in case the parties are unable to come to an agreement on the points under consideration.

When is a person considered as representing a State for the purpose of adopting or authenticating
the text of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty?

He is considered as representing the State for said purposes if:

1. He produces appropriate plein pouvoir (full powers); or

2. It appears from the practice of the States concerned or from other circumstances that their intention
was to consider that person as representing the State for such purposes and to dispense with full powers.
(Vienna Convention, Article 7{1})

Who are exempted from producing a “full powers”?

In virtue of their functions, the following are considered as representing their State without having to produce
full powers:

1. Heads of State, Heads of Government, and Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a treaty;

2. Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the
accrediting State and the State to which they are accredited;

3. Representatives accredited by States to an international conference or to an international

organization or one of its organs, for the purpose of adopting the text of a treaty in that conference,
organization or organ. (Vienna Convention, Article 7{2})

If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This
step is intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the
parties. However, it does not indicate the final consent of the state in cases where ratification of the treaty is required.
The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed
to sign first on the copy which he will bring home to his own state.

What are the means of expressing consent to be bound by a treaty under the Vienna Convention?

The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.(Article 11)

Ratification is the formal act by which a state confirms and accepts the provisions of a treaty concluded by
its representatives. Through ratification, contracting parties are able to examine the treaty more closely and it gives
them the opportunity to refuse to be bound by it should they find it inimical to their interests. 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.

While most treaties now expressly provide that they shall be subject to ratification according to the
constitutional processes of the negotiating states, the weight of authority is that the requirement would still hold true
even without a provision to this effect in the instrument. Thus, in the absence of a stipulation to the contrary, and
more so if ratification is expressly required, an unratified treaty cannot be a source of obligations between the parties.

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 What is the legal effect of an act relating to the conclusion of a treaty performed by a person who
cannot be considered under Article 7 of the Vienna Convention as authorized to represent a State for that
purpose?

It is without legal effect unless afterwards confirmed or ratified by that State. (VC, Art. 8)

What is alternat?

It refers to the principle which provides that a state’s own name will be listed ahead of the other signatory, or
signatories, in its own final copy of the treaty. It is a practice devised to handle sensitivities over precedence and to
maintain the principle of equality between the contracting parties.

What if the treaty is ratified in violation of the constitution of the ratifying state, as when it has not
previously received the required approval of the legislature?

The majority view on this question is that “foreign governments should be held to a knowledge of the
constitutional prerequisites for ratification in each country with which they are dealing; and that a treaty which has
been ratified without proper observance of these requisites is ipso facto invalid, whatever the proclamation of the
head of the state may assert in that respect.” (Fenwick,436)

Is there a legal obligation to ratify a treaty?

There is none but the refusal to ratify must be based on substantial grounds and not on superficial or
whimsical reasons otherwise the other state would be justified in taking offense.

At times, to avoid total rejection of a treaty, the ratification is qualified or made conditional, i.e. with
reservations, in which event the same must be accepted by the other party if these would constitute a modification of
the original agreement.

What are reservations?

Under Article 2 of the Vienna Convention, reservations is defined as a unilateral statement, however
phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State.

When may a State party to a treaty not be allowed to formulate a reservation?

Under Article 19 of the Vienna Convention, a State may, when signing, ratifying, accepting, approving or
acceding to a treaty, formulate a reservation unless:

1. The reservation is prohibited by the treaty;

2. The treaty provides that only specified reservations, which do not include the reservation in
question, may be made;

3. In cases not falling under sub-paragraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.

Under the Philippine Constitution, who has the power to ratify treaties?

The power to ratify treaties is vested in the President and not, as is commonly believed , in the legislature.

The role of the Senate is confined simply to giving or withholding its consent to the ratification.

For that matter, it is competent for the President to refuse to submit a treaty to the Senate or, having secured
its consent for its ratification, to refuse to ratify it.

But as a rule, he cannot ratify a treaty without the concurrence of two-thirds of all members of the Senate.

The last step in the treaty-making process is the exchange of the instruments of ratification, which usually
also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties.

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 Where ratification is dispensed with and no effectivity clause is embodied in the treaty, the instrument is
deemed effective upon its signature.

What if a treaty is not registered with the UN Secretariat?

Under Article 102 of the UN Charter, a treaty not registered with the Secretariat, by which it shall be
published, cannot be invoked before any organ of the UN, such as the ICJ.

Nevertheless, the treaty does not cease to be binding between the parties and may be the basis of a
litigation before some other arbitral or judicial body not connected with UN.

Binding Effect of Treaties

Who are bound by treaties?

A treaty is binding only on the contracting parties, including not only the original signatories but also other
states which, although they may not have participated in the negotiation of the agreement, have been allowed by its
terms to sign it later by a process known as accession.

Non-parties are usually not bound under the maxim pacta tertiis nec nocent nec prosunt.

What are the instances when third states may be validly held to the observance of or benefit from
the provisions of a treaty?

The following are the instances:

1. The treaty may be merely a formal expression of customary international law which, as such, is
enforceable on all civilized states because of their membership in the family of nations. Ex. Hague
Conventions of 1899 and 1907

2. It is provided under Article 2 of the UN Charter that the Organization “shall ensure that non-member
States act in accordance with the principles of the Charter so far as may be necessary for the maintenance
of international peace and security,” and under Article 103 that the obligations of member-states shall prevail
in case of conflict with “any other international agreement,” including those concluded with non-members.

3. The treaty itself may expressly extend its benefits to non-signatory states, such as the Hay-
Pauncefote Treaty of 1901, which, although concluded only by the US and Great Britain, opened teh
Panama Canal “to the vessels of commerce and war of all nations observing these Rules, on terms of entire
equality.”

What is the “most-favored-nation clause”?

It is by which parties to apparently unrelated treaties may also be linked. Under such clause, a contracting
state entitled to most-favored-nation treatment from the other may claim the benefits extended by the latter to another
state in a separate agreement.

Illustration: If X agrees to extend most-favored-nation treatment to Y and thereafter grants tariff preferences
to Z under another treaty, Y will be entitled, by virtue of its treaty with X, to enjoy the same advantages conceded to Z.

Interpretation and Observance of Treaties

How are treaties interpreted?

The basic rule in the interpretation of treaties is to give effect to the intention of the parties which should be
discoverable in the terms of the treaty itself, which ordinarily has an official text or texts to be used in case of conflicts
in the interpretation. Most treaties also contain a “protocol” or “agreed minutes” in which certain terms used in the
body are defined and clarified.

The usual canons of statutory construction are employed, as follows:

1. Specific provisions must be read in light of the whole instrument and especially of the purposes of
the treaty.

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 2. Words are to be given their natural meaning unless a technical sense was intended, and, when
they have different meanings in the contracting states, should be interpreted in accordance with the usage of
the state where they are supposed to take effect.

3. Doubts should be resolved against the imposition of obligations and in favour of the freedom and
sovereignty of the contracting parties.

4. At all events, an interpretation that will lead to an absurdity is to be avoided and a more rational
result preferred.

5. Where intrinsic aids are unavailing, resort may be made to extrinsic aids, such as the
circumstances leading to the conclusion of the treaty, statements recorded at the time of the negotiations,
the preliminary materials used, i.e. the travaux preparatories, and the like.

How may conflict in treaty interpretation be resolved?

It can be resolved only by agreement of the parties themselves or by an international body and not
unilaterally by the national courts of the contracting parties. Decisions of such courts are received with respect but
not as authority.

What is pacta sunt servanda?

It is a fundamental rule of international law which requires the performance in good faith of treaty obligations

The parties must comply with their commitments under a treaty and cannot ignore or modify its provisions
without the consent of the other signatories.

Willful disregard of a treaty is frowned upon by the society of nations and is likely to stigmatize the erring
state, especially if the other contracting parties see fit to invoke the influence of world opinion as a means of enforcing
compliance.

Violations of treaties can lead to more drastic consequences, including war.

What may a State do when its constitution conflicts with a treaty?

The State may:

1. Ask for revision of the treaty;

2. Amend its constitution to make it conform to the treaty requirement; and

3. Pay damages to the other parties for its inability to comply with its commitments.

What is the doctrine of rebus sic stantibus?

It is the equivalent exception to the maxim pacta sunt servanda. Jessup said that “the doctrine constitutes
an attempt to formulate a legal principle which would justify non-performance of a treaty obligation if the conditions
with relation to which the parties contracted have changed so materially and so unexpectedly as to create a situation
in which the exaction of performance would be unreasonable.”

Illustration: If States A and B agree upon a reciprocal use of their respective port facilities and B’s only
important port is thereafter ceded to State C, A should be released from continuing to accord the treaty privileges to
B, which is no longer able to perform its obligation.

What are the limitations to which the doctrine of rebus sic stantibus is subject to?

They are as follows:

1. It applies only to treaties of indefinite duration;

2. The vital change must have been unforeseen or unforeseeable and should not have been caused
by the party invoking the doctrine;

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 3. The doctrine must be invoked within a reasonable time; and

4. It cannot operate retroactively upon the provisions of the treaty already executed prior to the
change of circumstances.

Invalidation, Amendment and Modification, Suspension and Termination of Treaties

What are the usual grounds for invalidation of treaties?

The usual ground for invalidation of contracts can also invalidate a treaty: error of fact, fraud, corruption or
duress.

A violation of jus cogens ( a peremptory norm of general international law) invalidates a treaty. (Article 53,
VC)

When may a State invoke error in a treaty as invalidating its consent to be bound?

It may be invoked if the error relates to a fact or situation which was assumed by that State to exist at the
time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.

When can a State lose the right to assert the invalidity of a treaty?

If after becoming aware of the facts:

1. it shall have expressly agreed that the treaty is valid or remains in force or continues in operation,
as the case may be; or

2. it must by reason of its conduct be considered as having acquiesced in the validity or in its
maintenance in force or in operation

A state, moreover, with limited exception, may not plead its municipal law as a ground for invalidating a
treaty that has been entered.

What is the difference between amendment and modification?

Amendment is a formal revisions done with the participation, at least in its initial stage, by all the parties to
the treaty while modification involves only some of the parties.

How are treaties amended?

A “treaty may be amended by agreement of the parties.” The procedure that is followed is the same as that
for the formation of treaties.(Article 39, VC)

How are treaties modified?

Article 41 of the Vienna Convention provides that:

1. two or more of the parties to a multilateral treaty may conclude an agreement to modify the treaty
as between themselves alone if:

a. The possibility of such modification is provided for by the treaty; or

b. The modification in question is not prohibited by the treaty and:

i. Does not affect the enjoyment by the other parties of their rights under the treaty or the
performance of their obligations;

ii. Does not relate to a provision, derogation from which is incompatible with the effective execution of
the object and purpose of the treaty as a whole.

1. Unless in a case falling under paragraph 1(a) the treaty otherwise provides, the parties of their
intention to conclude the agreement and of the modification to the treaty for which it provides.

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 How may treaties be terminated?

Treaties may be terminated in any of the following ways:

1. By expiration of the term, which may be fixed or subject to a resolutory condition.

2. By accomplishment of the purpose

3. By impossibility of performance.

4. By loss of the subject-matter.

5. By desistance of the parties, through express mutual consent; desuetude, or the exercise of the
right of denunciation(or withdrawal), when allowed.

6. By novation.

7. By extinction of one of the parties if the treaty is bipartite.

8. By vital change of circumstances under the doctrine of rebus sic stantibus.

9. By outbreak of war between the parties in most cases, save specifically when the treaty was
intended to regulate the conduct of the signatories during the hostilities, or to cede territory, or to fix
boundaries

10. By voidance of the of the treaty because of defects in its conclusion, violation of its provisions by
one of the parties, or incompatibility with international law or the UN Charter.

What is material breach of treaty? May it lead to the termination or suspension of the operation of
the treaty?

A material breach of a treaty, consists in:

a) A repudiation of the treaty not sanctioned by the present convention; or

b) The violation of a provision essential to the accomplishment of the object or purpose of the treaty.
(Art 60,3 VC)

A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a
ground for terminating the treaty or suspending its operation in whole or in part.

A material breach of a multilateral treaty by one of the parties entitles:

a. The other parties by unanimous agreement to suspend the operation of the treaty in whole or in
part or to terminate it either:

i. In the relations between themselves and the defaulting State, or

ii. As between all the parties;

a. A party specially affected by the breach to invoke it as a ground for suspending the operation of the
treaty in whole or in part in the relations between itself and the defaulting State;

b. Any party other than the defaulting State to invoke the breach as a ground for suspending the
operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a
material breach of its provisions by one party radically changes the position of every party with respect to the
further performance of its obligations under the treaty.(Art. 60, 1 & 2)

Who has the authority to terminate the treaty?

Logically, the authority to terminate should also belong to the one who has the authority to enter into the
treaty.

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Succession to Treaties

When one State ceases to exist and is succeeded by another on the same territory, is the new State
bound by the commitments made by its predecessor?

Article 16 of the 1978 Vienna Convention on the Succession of States with Respect to Treaties that entered
into force on November 6, 1996,provides:

A newly independent State is not bound to maintain in force, or to become a party to, any treaty by reason
only of the fact that at the date of the succession of States the treaty was in force in respect of the territory to which
the succession of States relates.

This is the so-called “clean slate” rule. This rule, however, does not apply to treaties affecting boundary
regimes. Article 11 provides that a succession of States does not as such affect: a) a boundary established by a
treaty; or b) obligations and rights established by a treaty and relating to the regime of a boundary.

CHAPTER 3

States as Subject of International Law

How can subject and object of international law be distinguished?

A subject of international law is an entity that has rights and responsibilities under the law. It has an
international personality in that it can directly assert rights and be held directly responsible under the law of nations.
It has the faculty of motivation which means that it can be a proper party in transactions involving the application of
the law of nations among members of the international community. On the other hand, an object of international law
is the person or thing in respect of which rights are held and obligations assumed by the subject. It is not directly
governed by international law. Its rights are received and its responsibilities imposed indirectly, through the
instrumentality of an intermediate agency.(Cruz,2000)

Not all subjects of international law enjoy the same rights and obligations. States remain the predominant
actors, but other actors have come to be recognized.(Bernas,2009)

Commencement of existence

What are the qualifications that make an entity a state as enumerated in the Montevideo Convention
of 1933 on Rights and Duties of States?

The Montevideo Convention of 1933 on Rights and Duties of States contains the traditional statement of
the characteristics which make an entity a state. Thus, “ The state as a person of international law should possess
the following qualifications: a) a permanent population; b) a defined territory; c) government; d) the capacity to enter
into relations with other States.”

Hence, Philippines writers define “state” as a community of persons more or less numerous, permanently
occupying a definite portion of territory, independent of external control, and possessing an organized government to
which the great body of inhabitants render habitual obedience.(Bernas,2009)

How are states created?

An entity acquiring the four essential elements of people, territory, government and sovereignty is regarded
in law as having achieved the status of a state and may be treated as an international person. The generally
accepted methods by which this status is acquired are revolution, unification, secession, assertion of independence,
agreement and attainment of civilization. The US was created as a result of the revolution against British rule of the
thirteen original colonies that first formed a confederation in 1781 and then a federation in 1789. The state of Italy
grew out of the unification of the independent city states of Sardinia, Florence, Naples, Rome and others in 1870
under the so-called “principle of nationalities.” Bangladesh became a separate state when it seceded from
Pakistan in 1971. The Philippines became a state by assertion of its independence following the formal withdrawal
therefrom of American sovereignty in 1946. The Kingdom of the Netherlands was created by the Congress of
Vienna of 1815, and Poland, more recently, was revived as a separate state by agreement of the victorious powers
after WWII. Japan became an international person by attainment of civilization.(Cruz,2000)

12
 What are the elements of a state?

The following are the elements of a state:

1. People as an element of the state refers to the human person living within its territory; should be of
both sexes and sufficient in number to maintain and perpetuate themselves.

- Territory is the fixed portion of the surface of the earth in which the people of the state reside. A
defined territory is necessary for jurisdictional reasons and in order to provide for the needs of the
inhabitants. It should be big enough to be self-sufficient and small enough to be easily administered and
defended.

- Government is the agency through which the will of the state is formulated, expressed and
realized. It is necessary in international law because the state must have an entity to represent it in its
relations with other states. The form of government does not matter so long as it is able to maintain order
within the realm and comply with its responsibilities under the law of nations.

- Sovereignty is the external aspect or manifestation of sovereignty or the power of the state to
direct its own external affairs without interference or dictation from other states. The degree of its freedom in
this regard determines the status of the state as an international person. (Cruz, 2000)

May a state exist without the control of an effective government?

No, it must have an effective government that is able to carry out its duties and able to assert itself without
the aid of foreign troops. Exceptions:

a. A state may temporarily lack an effective government as a result of civil war, newly gained
independence or similar upheavals;

2. A simple change in regime and even conflicting claims of governmental authority alone will not
disqualify an entity from statehood;

3. A state occupied by an enemy in times of war continues to be a state as long as allies are fighting
on its behalf against its enemy.(Malone, 47) [Sarmiento, 2007]

How are de facto and de jure government distinguished?

A de jure government is lawfully in power even though it retains little actual power. Conversely, a de facto
government is impliedly a government which is in control but illegally so.(Sarmiento, 2007)

What are the three kinds of de facto government?

The following are the three kinds of government:

1. Government de facto is that government that gets possession and control of, or usurps, by force or
by the voice of the majority, the rightful legal government and maintains itself against the will of the latter,
such as the government of England under the Commonwealth, first by Parliament and later by Cromwell
Protector;

4. Government of paramount force which is established and maintained by military forces who invade
and occupy a territory of the enemy in the course of war, as the cases of Castine, in Maine, which was
reduced to British possession in the war of 1812, and Tampico, Mexico, occupied during the war with Mexico
by the troops of the US;

5. That established as an independent government by the inhabitants of a country who rise in

insurrection against the parent state, such as the government of the Southern Confederacy in revolt against
the Union during the war of secession. (Co Kim Cham vs Valdez Tan Keh and Dizon, 75 Phil 113)
[Sarmiento,2007)

How can nation be distinguished from state?

Though used popularly as synonymous with state, nation was restricted by many writers to mean a body of
people more or less of the same race, language, religion and historical traditions.(Fenwick, 104)[Sarmiento, 2007]

13
 How are states classified?

States may be classified as follows:

1) Sovereign states refer to those enjoying full membership in the international community. They exercise
undivided authority over all persons and property within its borders and are independent of direct control by
any other power. (Fenwick, 106)

- Neutralized states refer to those upon which the status of permanent neutrality in all future wars
was formally imposed by a group of great powers. Examples: Switzerland under the Article 84 of the 1815
Treaty of Vienna; Belgium under Article 7 of the 1839 Treaty of London. (Fenwick, 107-108)

- Dependent states refer to those that have practically complete control of their domestic affairs,
while being dependent upon another state in respect of their control over their relations with third states.
(Fenwick, 115)

a) Vassal states or states under suzerainty refer to those subject to a bond of vassalage and were in
respect to their foreign affairs dependent upon their suzerain state, to which they pay a formal homage.
Romania was a vassal state subject to the suzerainty of Turkey from 1829 to 1878. (Ibid)

2. Protectorates is a state which ahs by formal treaty placed itself under the protection of a stronger
power, surrendering to the latter control over its foreign affairs. Moroccco came under the protection of the
France and Germany in 1906 until 1911 while Ethiopia came under the protection of Great Britain, France
and Italy in 1906. (Fenwick, 119)

1) Confederation and unions are those states which are associated for certain specific purpose.

1. Real union is a special form of confederation which exists when two or more severally sovereign
states have the same monarch and for international purposes act as one state. Some examples are the
Union of Sweden and Norway until its dissolution in 1905 by the Treaty of Karlstad; Union of Austria and
Hungary from 1867 to 1918; Union of Denmark and Iceland from 1918 to 1944. (Fenwick, 121)

5. Federal state is a union of states in which the control of the external relations of all the member
states has been permanently surrendered to a central government so that only state which exists for
international purposes is the state formed by the union. Examples are USA and Swiss
confederation.(Brierly, 120)

6. Confederation is a union of states in which, though a central government exists and exercises
certain powers, it does not control the external relations of the member states, and therefore for international
purposes there exists not one but a number of states. Examples are US from 1778 to 1787 and the German
Confederation from 1820 to 1866. (Ibid.)[Sarmiento, 2007]

What determines the capacity of states?

An entity possessed with the requisite elements is ordinarily regarded as an international

person entitled to membership in the family of nations so long as it is recognized by other
states and it does not possess restricted capacity on account of either treaty obligations or its
limited resources.(Cruz, 2000)

What is the Principle of State Continuity?

From the moment of its creation, the state continues as a juristic being notwithstanding changes in
its circumstances, provided only that they do not result in loss of any of its essential elements.
(Sapphire Case, 11 Wall.164) [Cruz, 2000]

How may a state be extinguished?

The radical impairment or actual loss of one or more of the essential elements of the state will
result in its extinction.(Ibid)

What is the concept of succession of states?

14
 In the event that a state is extinguished or is created as a result of any of the methods, state
succession takes place when one state assumes the rights and some of the obligations of another
because of certain changes in the condition of the latter.(Ibid)

What are the two kinds of state succession?

There is universal succession when a state is annexed to another state or is totally dismembered
or merges with another state to form a new state. In all of these cases, the international personality of
the former state is completely absorbed by the successor. Partial succession takes place when a
portion of the territory of a state secedes or is ceded to another or when an independent state becomes
a protectorate or a suzerainty or when a dependent state acquires full sovereignty.(Ibid)

What are the consequences of state succession?

The following are the consequences of state succession:

1. The allegiance of the inhabitants of the predecessor state in the territory affected is transferred to
the successor state.

6. Inhabitants are naturalized en masse as when Philippine citizenship was conferred on the
inhabitants in general of the PI under the provisions of the treaty of cession between Spain and the US.

7. The political laws of the former sovereign are automatically abrogated and may be restored only by
a positive act on the part of the new sovereign. But, non-political laws, such as those dealing with familial
relations, are deemed continued unless they are changed by the new sovereign or are contrary to the
institutions of the successor state.

8. Treaties of a political and even commercial nature, as well as treaties of extradition, are also
discontinued, except those dealing with local rights and duties, such as those establishing easements and
servitudes. Sometimes the successor state stipulates in appropriate treaties or by formal proclamation the
international commitments it is willing to respect

9. All the rights of the predecessor state are inherited by the successor state but this is not so where
liabilities are concerned. The successor state, in fact, can determine which liabilities to assume and which
to reject solely on the basis of its own discretion. Generally, contractual and tort liabilities do not devolve on
the successor state, although there certainly is nothing to prevent it from assuming them.(Cruz, 2000)

What is the concept of succession of governments?

There is succession of governments, where one government replaces another either peacefully or
by violent methods. In both instances, the integrity of the state is not affected; the state continues as
the same international person except only that its lawful representative is changed. Questions of
succession will, therefore, involve only the former and subsequent governments and third parties which
may be affected by their relations.(Cruz, 2000)

What are the consequences of succession of governments?

The following are the consequences of succession of governments:

a. The rights of the predecessor government are inherited, in toto by the successor government .

2. Where the new government was organized by virtue of a constitutional reform duly ratified in a
plebiscite, the obligations of the replaced government also completely assumed by the former. Where the
new government was established through violence, as by a revolution, it may lawfully reject the purely
personal or political obligations of the predecessor government but not those contracted by it in the ordinary
course of official business.(Cruz, 2000)

What are the fundamental rights of states?

The following are the fundamental rights of states:

15
 1. Independence is the capacity of the state to provide for its own well-being and development free
from the domination of other states, providing it does not impair or violate their legitimate rights. As a right, it
means the right to exercise within its portion of the globe, to the exclusion of others, the functions of a state.
However, restrictions upon a state’s liberty arising either from customary law or from treaties do not deprive
a state of independence. Flowing from this right are the rights of jurisdiction over its territory and permanent
population, the right to self defense and the right of legation.(Bernas, 2009)

What are the two kinds of independence?

They are internal independence or right of national self-government and external independence.
The former refers to the supreme authority or jurisdiction of the state to control all persons or
property within its territorial domain. The latter refers to the supreme power of the state to
determine the relations it desires to maintain with other states, without interference on the part of
any third state.

What is the right to self-determination?

Sovereignty or independence from outside control is related but not identical with the concept of the
right to self-determination. The various levels of claims to self-determination may be broken into
two main categories: first is the establishment of new states – that is the claim by a group within an
established state to break away and form a new entity. Second can simply be claims to be free
from external coercion, or the claim to overthrow effective rulers and establish a new government,
that is, the assertion of the right of revolution; or the claim of people within an entity to be given
autonomy.

International Law has not recognized a right of secession from a legitimate existing state.(Bernas,
2009)

4. Equality refers to equality of legal rights irrespective of the size or power of the state.(Ibid)

What is the doctrine of equality of states?

It means that all states are equal in International Law despite of their obvious
factual inequalities as to size, population, wealth, strength, or degree of
civilization.(Sarmiento,2007)

What are the consequences that follow from the above doctrine?

Oppenheim enumerates four consequences that follow from the doctrine of

equality of states:

a) When a question arises which has to be settled by consent, every state has a right to a vote and to
one vote only.

4. The vote of the weakest state has as much weight as the vote of the most powerful;

5. No state can claim jurisdiction over another; and

6. The courts of one state do not as a rule question the validity of the official acts of another state in
so far as those acts purport to take effect within the latter’s jurisdiction. [Oppenheim, International Law, 6 th
ed.,vol.1,p.238] (Sarmiento, 2007)

1. The theory of the right to peaceful co-existence was elaborated in 1954 as the Five Principles of
Co-existence by India and China and includes mutual respect for each other’s territorial integrity and
sovereignty, mutual non-aggression, non-interference in each other’s affairs and the principle of equality.
This has also been expressed in other documents such as the 1970 Declaration on Principles of
International Law Friendly Relations and Cooperation Among States. (Bernas, 2009)

What are the duties of states?

1. To refrain from intervention in the internal or external affairs of any other state (Art 3)

4. To refrain from fomenting civil strife in the territory of another state, and to prevent the organization

16
within its territory of activities calculated to foment such civil strife. (Art. 4)

5. To treat all persons under its jurisdiction with respect for human rights and fundamental freedoms,
without distinction as to race, sex, language, or religion. (Art. 6)

6. To ensure that conditions prevailing in its territory do not menace international peace and order.
(Art. 7)

7. To settle its disputes with other States by peaceful means in such a manner that international
peace and security, and justice, are not endangered. (Art. 8)

8. To refrain from resorting to war as an instrument of national policy, and to refrain from the threat or
use of force against the territorial integrity or political independence of another State, or in any other manner
inconsistent with International Law and order.

9. To refrain from giving assistance to any State which is acting in violation of Article 9, or against
which the UN is taking preventive or enforcement action. (Art.10)

10. To refrain from recognizing any territorial acquisition by another State acting in violation of Article 9.
(Art.11)

11. To carry out in good faith its obligations arising from treaties and other sources of International Law,
and it may not invoke provisions in its constitution or its laws as an excuse for failure to perform this duty.
(Art. 13)

12. To conduct its relations with other States in accordance with International Law and with the
principle that the sovereignty of each State is subject to the supremacy of International Law. (Art. 14)
[Sarmiento, 2007]

What are some incomplete subjects of International Law?

The following are some incomplete subjects:

1. Protectorates are dependent states which have control over their internal affairs but whose
external affairs are controlled by another state. They are sometimes referred to as autonomous states,
vassal states, semi-sovereign or dependent states.

2. Federal state is a union of previously autonomous entities. It may be an arrangement that may
involve placing full authority in a central organ while another arrangement might lodge authority in the
individual entities to the detriment of the central organ. The central organ will have personality in
international law; but the extent of international personality of the component entities can be a problem.

3. Mandated and trust territories- Mandated territories were territories placed by the League of
Nations under one or other of the victorious allies of World War I. The mandate system was replaced by the
trusteeship system after World War II under the Trusteeship Council. The Carolines, Marianas and Marshall
Islands were placed under the trusteeship of the US. These have been in the process of evolution and self-
determination since 1986.

4. Taiwan seems to be a non-state territory which de jure is part of China. But it is too affluent and
strategically located to be overlooked by international actors. It is interesting that when Taiwan sought
accession to the GATT treaty it did not do so as a state but as part of a “customs territory.”

5. The Sovereign Order of Malta has diplomatic relations with over forty states. There was a time
when the order had sovereignty over Malta. This has since been lost but the Italian Court of Cassation in
1935 recognized its international personality.

6. The Holy See and Vatican City. IN 1929, the Lateran Treaty was signed with Italy which
recognized the state of the Vatican City and "the sovereignty of the Holy See in the field of international
relations as an attribute that pertains to the very nature of the Holy See, in conformity with its traditions and
the demands of its mission in the world.” It has no permanent population. (Bernas, 2009)

6. Other Subjects of International Law

17
 What are international organizations?

An international organization is an organization that is set up by treaty

among two or more states. It is different from non- governmental organizations (NGO) which are set up by private
persons. The constituent document of international organizations therefore is a treaty. For this
reason, only states are members of international organizations.

An international organization has international personality but its powers and

privileges are limited by the constituent instrument that created it. It also enjoys immunity which is based
on the need for effective exercise of its functions and is derived from the treaty creating it.(Bernas, 2009)

What is the League of Nations?

It was an international organization created after WW1. It was established after the Paris Peace
Conference of 1919 which was organized by the victors of First World War to negotiate peace treaties between
the Allied and Associated Powers and the defeated Central Powers. The Covenant establishing the League was
part of the Treaty of Versailles. The League of Nations formally came into existence on January 10, 1920 with
headquarters at Geneva, Switzerland. Its organization included the Council, the Assembly and the Secretariat.
Autonomous but closely connected to the League of Nations were the Permanent Court of International Justice and
the International Labor Organization. (Sarmiento, 2007)

What factors led to its demise?

The outbreak of the Second World War was the immediate cause of its demise. Other factors
are:

1. While its was supported by US President Woodrow Wilson, the US Senate did not ratify the
Versailles Treaty mainly objecting to Article 16 that says in part:

“ Should any member of the League resort to war in disregard of its covenants, it shall ipso facto be
deemed to have committed an act of war against all other members of the League xxx. It shall be duty of
the of the Council in such case to recommend to the several governments concerned what effective
military, naval, or air force the members of the League shall severally contribute to the armed forces to be
used to protect the covenants of the League.”

2. The League was generally weak because even the military sanctions that may be taken pursuant to
the second sentence of Article 16 were not considered to be legally binding obligations.

3. Difficulty of the Council in enacting resolutions because of the required unanimous vote of all its
members, so conclusive and effective action was difficult, if not impossible.(Sarmiento, 2007)

What is the United Nations Organization?

The United Nations is a public organization of states that was established by the
intergovernmental cooperation after the end of WWII. It was established on October 24, 1945 by 51 countries
as an outcome of the initiatives taken by the US, USSR, Great Britain and China. (Ibid)

Does the UN have juridical personality?

Yes, the UN shall possess juridical personality. It shall have the capacity: a) to contract; b) to
acquire and dispose of immovable and movable property; and c) to institute legal proceedings. (Convention on
the Privileges and Immunities of the UN, Art 1)[Sarmiento, 2007]

What is the legal capacity of the UN in the territory of its Members?

The UN shall enjoy in the territory of each of its Members such legal capacity as may be necessary
for the exercise of its functions and the fulfilment of its purposes.(UN Charter, Article 104) [Ibid]

What is the UN charter?

The UN Charter is a lengthy document consisting of 111 articles besides the Preamble and
the concluding provisions. It also includes the Statute of the ICJ which is annexed to and made an integral
part of it.

18
 The Charter may be considered a treaty because it derives its binding force from the agreement of
the parties to it. It may also be regarded as a constitution in so far as it provides for the organization and
operations of the different organs of the UN and for the adoption of any change in its provisions through a
formal process of amendment. (Cruz, 2000)

Is the UN Charter applicable only to UN members?

The Charter is intended not only to the members but also to non-member states “so far as may
be necessary for the maintenance of international peace and security.” (Ibid)

What is the principle of Charter Supremacy?

In the event of conflict between the obligations of the members of UN under the Charter
and their obligations under any other international agreement, their obligations under the Charter shall
prevail. (UN Charter, Art 103) [Sarmiento, 2007]

How may amendments to the Charter come into force?

Amendments to the Charter shall come into force when they have been adopted by a vote of
two-thirds of the members of the General Assembly and ratified in accordance with their respective
constitutional processes by two-thirds of the members of the UN, including all the permanent
members of the Security Council. (UN Charter, Article 108)

What is the Preamble to the Charter?

It introduces the Charter and sets the common intentions that moved the original members to
unite their will and efforts to achieve their common Purposes. (Cruz, 2000)

What are the Purposes of UN?

According to the UN Charter, it has four purposes: to maintain international peace and security, to
develop friendly relations among nations, to cooperate in solving international problems and in promoting
respect for human rights and to be a center for harmonizing the actions of nations.(Art 1, UN Charter) [Ibid]

What are the Principles of UN?

Under Article 2 of the Charter, the Principles deal with the methods and the regulating norms
according to which the UN and its members shall discharge their obligations and endeavour to achieve their
common ends. The seven cardinal principles are the following:

1) The organization is based on the principle of the sovereign equality of all its Members.

a. All Members, in order to ensure to all of them the rights and benefits resulting from membership,
shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

b. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.

c. All members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with the
Purposes of the United Nations.

d. All Members shall give the UN every assistance in any action it takes in accordance with the
present Charter, and shall refrain from giving assistance to any state against which the UN is taking
preventive or enforcement action.

e. The Organization shall ensure that states which are not Members of the UN act in accordance with
these Principles so far as may be necessary for the maintenance of international peace and security.

f. Nothing contained in the present Charter shall authorize the UN 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; but this principle shall not prejudice the application of enforcement
measures under Chapter VII. (Cruz, 2000)

19
 What are the classes of Members in the UN?

They are the original and non-original members. The former refer to those states which
participated in the UN Conference on International Organization at San Francisco, pre-signed the
Declaration by the UN of January 1, 1942, signed and duly ratified the Charter. There were 51 original
members, including the Philippines. The latter refer to those states which were admitted to membership
by a decision of two-thirds majority vote in the General Assembly upon the recommendation of a
qualified majority in the Security Council. (UN Charter, Art.3)[Sarmiento, 2007]

What are the qualifications for membership in the UN?

Membership to UN is open to peace-loving states which accept the obligations contained

in the Charter and, in the judgment of the Organization, are able and willing to carry out these obligations. (UN
Charter, Art.4) [Ibid]

How is the admission of a State to the UN effected?

The admission of state to membership in the UN is effected by two-thirds majority of the members
voting and present in the General Assembly upon the recommendation of a qualified majority in the Security
Council. (UN Charter, Art.4, 18{2}) [Ibid]

May a member of UN be suspended?

Yes, a member against which preventive or enforcement action has been taken by the
Security Council may be suspended from the exercise of the rights and privileges of membership by two-
thirds majority of the members present and voting in the General Assembly upon the recommendation of a
qualified majority in the Security Council. However, the member will not actually be suspended from its
membership, but only from the exercise of the rights and privileges of membership. The exercise of these rights
and privileges may be restored by the Security Council. (UN Charter, Art. 5, 18{2}) [Ibid]

May a Member be expelled from the UN?

Yes, a member which has persistently violated the Principles contained in the Charter may be
expelled from the Organization by two-thirds majority of the members present and voting in the General
Assembly upon the recommendation of a qualified majority in the Security Council. (UN Charter, Art.
6, 18{2})

Can members withdraw from UN?

No provision on withdrawal from membership was included in the Charter because of the fear that
it might encourage successive withdrawals that would weaken the Organization. Nevertheless, the San
Francisco Conference approved a special committee report which, while not categorically permitting or prohibiting
withdrawal, expressed the view that a member might withdraw from the UN if: a) the Organization was
revealed to be unable to maintain peace or could do so only at the expense of law and justice; b) the member’s
rights and obligations as such were changed by a Charter amendment in which it had concurred or
which it finds itself unable to accept; or c) and amendment duly accepted by the necessary majority either in
the General Assembly or in a general conference is not ratified. (Cruz, 2000)

What are the principal Organs of the UN?

They are the General Assembly, Security Council, Economic and Social Council, Trusteeship
Council, ICJ and Secretariat.

What is the composition of the General Assembly?

It shall consist of all members of the UN, each of which is entitled to send not more five
representatives and five alternates as well as such technical staff as it may need. (Ibid)

How are the functions of the GA classified?

1) Deliberative – initiating studies and making recommendations toward the progressive development
of IL and its codification and recommending measures for the peaceful adjustment of any situation which it
deems likely to impair the general welfare or friendly relations among nations

20
 4. Supervisory – receiving and considering annual and special reports from the other organs of the
UN, making recommendations for the coordination of their various functions, and approving trusteeship
agreements in non-strategic areas

5. Financial – consideration and approval of the budget of the Organization, the apportionment of
expenses among its members and the approval of financial arrangements with specialized agencies

6. Elective – election of the non-permanent members of the SC, all the members of the Economic and
Social Council, and some of the members of the Trusteeship Council, as well as, in concurrence with the
SC, the Secretary-General and the judges of the ICJ

7. Constituent – admission of members and the amendment of the Charter of the UN (Ibid)

What are the rules on voting in the GA?

Each member of the GA shall have one vote. However, a member which is in arrears in the
payment of its final contributions to the Organization shall have no vote if the amount of its arrears equals
or exceeds the amount of the contributions due from it for the preceding two full years. But the GA may,
nevertheless, permit such a member to vote if it is satisfied that the failure to pay is due to conditions
beyond the control of the member. (UN Charter, Arts 18, 19)

Distinction is also made between “important questions” and all other questions. Decisions on
important questions shall be made by a two-thirds majority of the members present and voting, while
decisions on other questions shall be made by a majority of the members present and voting. (UN
Charter, Art.18) [Sarmiento, 2007]

What are the “important” questions that require two-thirds majority vote in the GA?

Important questions shall include:

1. Recommendations with respect to the maintenance of international peace and security;

2. Election of non-permanent members of the SC;

3. Election of members of the Ecosoc;

4. Election of members of the Trusteeship Council;

5. Admission of new members to the UN;

6. Suspension of the rights and privileges of membership;

7. Expulsion of members;

8. Questions relating to the operation of the trusteeship system;

9. Budgetary questions (UN Charter, Art 18{2}) [Sarmiento, 2007]

What is the Security Council?

It is the principal organ of the UN that has been conferred by the members of UN with the
primary responsibility for the maintenance of international peace and security. (UN Charter, Art 24)

What is the composition of the Security Council?

The SC shall consist of 15 members. Five of these members are permanent members (Republic
of China, France, Russia, UK of Great Britain and Northern Ireland, and the USA) and the other 10 are
elected by the GA as non-permanent members for a term of 2 years without eligibility for immediate reelection. (UN
Charter, Art 23)

The presidency of the SC shall be held in turn by the members of the Council in the English
alphabetical order of their names. Each President shall hold office for one calendar month.(Provisional Rules
of the SC, Rule 18) [Sarmiento, 2007]

21
 Are the decisions of the SC binding on the members of the UN?

Under Art. 25 of the UN Charter, all members agree to accept and carry out the decisions of the
SC. While other organs of the UN make recommendations to Governments, the SC alone has the power
to take decisions which member States are obligated to carry out.

Explain the Yalta Voting Formula?

It resulted from a compromise between the US, the Soviet Union and the UK at the conference
of Yalta in Feb 1945. This proposal subjected voting in the SC to unanimity of the permanent members, both
with regard to enforcement action and the peaceful settlement of disputes, although in the latter case States party
to the dispute were obliged to abstain. (Wouters, 5) [Sarmiento, 2007]

Under this formula, codified in Art 27, each member of the SC shall have one vote, but distinction
is made between the permanent members and the non-permanent members in the resolution of non-
procedural questions.

Procedural questions are to be decided by the affirmative vote of any nine or more members.
Non-procedural or substantive questions are to be decided by an affirmative vote of nine members including
the concurring votes of the permanent members. This is the rule of “Great Power Unanimity”, often referred to
as “Veto Power.”

Is the so-called “double veto” still in practice?

As the determination of whether a question is procedural or substantive is considered as non-

procedural, it allowed any permanent of the Council to exercise its “veto power” twice, thus the practice known
as “double veto”. A veto is first used to establish that a given question is non-procedural, and then on the vote on
the question itself.

This procedural manipulation was soon overcome procedural maneuver. The President of the
Council could rule that the procedural/non-procedural question is itself procedural and not subject to veto;
presidential rulings in this regard are final unless reversed by nine votes, with no state having a veto power.
(Sarmiento, 2007)

What is the composition and function of the Economic and Social Council?

It shall consist of 54 members elected by the General Assembly. (UN Charter, Art.61)

It may make or initiate studies and reports with respect to international economic, social,
cultural, educational, health, and related matters and may make recommendations with respect to any such
matters to the General Assembly, to the Members of UN, and to the specialized agencies concerned. It may
also make recommendations for the purpose of promoting respect for, and observance of, human
rights and fundamental freedoms for all, prepare draft conventions for submission to the General assembly
and call international conferences on matters falling within its competence. (UN Charter, Art 62) (Ibid)

What is the Trusteeship Council?

It is the organ that is responsible for administering trusteeship territories that are not yet self-
governing.

The TC shall consist of the ff:

1. Members that are administering trust territories;

2. Permanent members of the SC;

3. As many other members as the GA as may be necessary to ensure that the total number of
members of the TC is equally divided between those Members of the UN which administer trust territories
and those which do not.

What are mandates and trust territories?

22
 Mandates are colonies and territories which as a consequence of WWI have ceased to be under
the sovereignty of the States which formerly governed them and which were inhabited by peoples not yet able to
stand by themselves and placed under a system of mandates under Article 22 of the Covenant of the League of
Nations (Treaty of Versailles).

Trust territories are those which have been placed under the international trusteeship system
established by Chapters 11-13 of the UN Charter that included a) territories held under mandate; b)
territories which maybe detached from enemy states as a result of WWII , and c) territories voluntarily
placed under the system by states responsible for their administration.

International Court of Justice

The Secretariat

Other Agencies

Regional organizations

International Administrative Bodies

Insurgents

Protocol II

Common Article 3

National Liberation Movements

Individuals

Nationality

Acquisition

Loss

Conflict of Nationality Laws

Doctrine of Effective Nationality

Doctrine of Indelible Allegiance

Doctrine of Nemo Potest Exuere Patriam

Right of Expatriation

Individual as a subject of international law

Statelessness

CHAPTER 3

What is the International Court of Justice?

It is the principal judicial organ of the UN and the successor of the PCIJ of the League of Nations. It
functions in accordance with its Statute that is annexed to the Charter of the UN, and patterned upon the Statute of
the PCIJ. (UN Charter, Art.92) [Sarmiento, 2007]

What is the primary function of the Court?

The primary function of the Court is to decide international legal disputes submitted to it by states in
accordance with International Law.

23
Is being a party to the Statute of the ICJ tantamount to the acceptance of the jurisdiction of the court?

Being party to the Statute, does not mean acceptance of the jurisdiction of the Court. It simply means that
the state may accept the jurisdiction of the court. The Statute opens the court’s door to member states. Only states
may be parties in the court. (Bernas, 2009)

What is the cardinal rule in international courts?

The cardinal rule in international courts is that states cannot be compelled to submit disputes to international
adjudication unless they have consented to it either before a dispute has arisen or thereafter. States are also free to
limit their acceptance to certain types of disputes and to attach various conditions or reservations to their acceptance.
(Ibid)

What is an international legal dispute?

An international legal dispute is a disagreement between states on a question of law or fact, a conflict, a
clash of legal views or of interests. (The Mavrommatis Palestine Concessions, Greece vs Great Britain, August 30,
1924, PCIJ, Ser B, No.3, 1924)

Where is the seat of the ICJ? How many are its members? What is the term of their office?

1. The Seat of the Court is at the Peace Palace in the Hague, Netherlands. This shall not prevent the
Court from sitting and exercising its functions elsewhere whenever the Court considers it desirable. (ICJ
Statute, Art.22)

- The Court shall consist of fifteen members, no two of whom maybe nationals of the same state.
(Ibid, Art.3)

- The members of the Court shall be elected for nine years and may be re-elected. (Ibid, Art.13)
[Sarmiento, 2007]

What are the qualifications of its members?

Members shall be independent judges, elected regardless of their nationality from among persons of high
moral character, who possess the qualifications required in their respective countries for appointment to the highest
judicial offices, or are jurisconsults of recognized competence in International Law. (Ibid, Art. 2) [Ibid}

Do the members of the Court represent their governments?

No, the members of the Court do not represent their governments but are independent magistrates. (Ibid,
Art. 2)

Who may be parties to contentious cases?

Only states may be parties in contentious cases before the Court. (Ibid, Art.34)

Is the Court open to states that are not members of the UN?

Yes, but the conditions under which the Court shall be open to other states which are not members of the
UN shall, subject to the special provisions contained in treaties in force, be laid down by the Security Council, but in
no case shall such conditions place the parties in a position of inequality before the court. When a state which is not
a member of the UN is a party to a case, the Court shall fix the amount which that party is to contribute towards the
expenses of the Court, except if such state is bearing a share of the expenses of the Court. (Ibid, Art 34)

Who may request for an advisory opinion?

Under Art. 96 of the UN Charter, only the principal organs of the Organization and other specialized
agencies, which may be so authorized by the General Assembly, may request the ICJ to give an advisory opinion on
any legal question. (Sarmiento, 2007)

What are the preconditions before the ICJ may give advisory opinions?

They are as follows:

24
 1. The advisory opinion must be requested by an organ duly authorized to seek it under the UN
Charter;

2. It must be requested on a legal function; and

3. Except in the case of the General Assembly or the Security Council, that questions should be one
arising within the scope of the activities of the requesting organ. (Application for Review of Judgment No.
273 of the UN Administrative Tribunal, Advisory Opinion, ICJ Reports 1982) [Ibid]

What is the bearing of the lack of consent of States, parties to a dispute, on the jurisdiction of the ICJ to give
an advisory opinion?

The consent of States, parties to a dispute, is the basis of the Court’s jurisdiction in contentious cases.
However, the situation is different in regard to advisory proceedings even where the Request for an Opinion relates to
a legal question actually pending between States. The Court’s reply is only an advisory character: as such, it has no
binding force.

It follows that no State, whether a member of the UN or not, can prevent the giving of an advisory opinion
which the UN considers to be desirable in order to obtain enlightenment as to the course of action it should take.

The Court’s opinion is given not to the States, but to the organ which is entitled to request it; the reply of the
Court, itself an “organ of the UN’s, represents its participation in the activities of the Organization, and in principle,
should not be refused. (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, advisory
Opinion, ICJ Reports 1950, p. 71; See also Western Sahara, ICJ Reports 1975, p. 24, par.31) [Ibid]

What is the legal status of advisory opinions of the ICJ?

In principle, the Court’s advisory opinions are consultative in character and are therefore not binding as such
on the requesting bodies. Certain instruments or regulations can, however, provide in advance that the advisory
opinion shall be binding. (Ibid)

What is the Secretariat?

It is the chief administrative organ of the United Nations and which is headed by the Secretary-General. The
Secretary-General is chosen by the General Assembly upon recommendation of the Security Council. His term is
fixed at five years by resolution of the General Assembly, and he may be re-elected. (UN Charter, Art. 97)

What are the functions of the Secretary-General?

The Secretary-General shall be the chief administrative officer of the UN. He shall act in that capacity in all
meetings of the General Assembly, of the Security Council, of the Economic and Social Council, and of the
Trusteeship Council, and shall perform such other functions as are entrusted to him by these organs.

The Secretary-General shall make an annual report to the General Assembly on the work of the
Organization. He may also bring to the attention of the Security Council any matter which in his opinion may threaten
the maintenance of international peace and security. (UN Charter, Arts 98 & 99)

What are the other agencies of UN?

These are the so-called specialized agencies which include: United Nations Educational, Scientific and
Cultural Organization (UNESCO); the International Civil Aviation Organization (ICAO), the World Health Organization
(WHO), the Food and Agricultural Organization (FAO), the World Bank and the International Monetary Fund (IMF).

What are regional organizations?

They are neither organs or subsidiary organs of the UN. They are autonomous international organizations
having an institutional affiliation with the UN by concluding agreements with the UN. They are international institutions
created by international agreements for the purpose of dealing with regional problems in general or with specific
matters be they economic, military or political. Example is the ASEAN

What is the ASEAN?

25
 It is the regional organization of South East Asian nations and was established on August 8, 1967 in
Bangkok, Thailand with the signing of the Bangkok Declaration by the 5 original member countries namely Indonesia,
Malaysia, Philippines, Singapore and Thailand.

Brunei Darussalam joined the Association on January 8, 1984 while Vietnam became the 7 th member on
July 28, 1995. Laos and Myanmar were admitted on July 23, 1997. Cambodia also became a member in 1999.
(Bernas, 2009)

What are the 3 main objectives of the ASEAN Nations?

They are as follows:

1. To promote the economic, social and cultural development of the region through cooperative programs;

- To safeguard the political and economic stability of the region against big power rivalry; and

- To serve as a forum for the resolution of intra-regional differences. (Ibid)

What are the aims and purposes of the Association as stated in its Declaration?

They are as follows:

1) To accelerate economic growth, social progress and cultural development in the region and

3. To promote regional peace and stability through abiding respect for justice and the rule of law in the
relationship among countries in the region and adherence to the principles of the UN Charter . (Ibid)

Enumerate the fundamental principles of the ASEAN.

The fundamental principles of the ASEAN as contained in the Treaty of Amity and Cooperation in Southeast
Asia are as follows:

a) Mutual respect for the independence, sovereignty, equality, territorial integrity, and national identity
of all nations;

b. The right of every State to lead its national existence free from external interference, subversion or
coercion;

c. Non-interference in the internal affairs of one another;

d. Settlement of differences or disputes by peaceful manner;

e. Renunciation of the threat or use of force; and

f. Effective cooperation among themselves. (Ibid)

What is the ASEAN Vision 2020?

The ASEAN Vision 2020, adopted by the ASEAN Leaders on the 30 th anniversary of ASEAN , agreed on a
shared vision of ASEAN as a concert of Southeast Asian Nations, outward looking, living in peace, stability and
prosperity, bonded together I n partnership in dynamic development and in a community of caring societies.

In 2003, the ASEAN leaders resolved that an ASEAN Community shall be established comprising 3 pillars,
namely:

1. ASEAN Security Community;

7. ASEAN Economic Community; and

8. ASEAN Socio-Cultural Community

What is the ASEAN Regional Forum?

26
 In recognition of security interdependence in the Asia-Pacific Region, ASEAN established the ASEAN
Regional Forum (ARF) in 1994. The ARF’s agenda aim to evolve in three broad stages, namely the promotion of
confidence building, development of preventive diplomacy and elaboration approaches to conflicts.

The present participants in the ARF include: Australia, Brunei Darussalam, Cambodia, Canada, China,
European Union, India, Indonesia, Japan, Democratic Republic of Korea, Republic of Korea, Lao PDR, Malaysia,
Mongolia, Myanmar, New Zealand, Pakistan, Papua New Guinea, the Philippines, the Russian Federation,
Singapore, Thailand, the US and Vietnam.

The ARF discusses major regional security issues in the region, including the relationship amongst the major
powers, non-proliferation, counter-terrorism, transnational crime, South China Sea and the Korean Peninsula, among
others.

What is the ASEAN Free Trade Area (AFTA)?

The AFTA which was launched in 1992, aims to promote the region’s competitive advantage as a single
production unit. The elimination of tariff and non-tariff barriers among Member Countries is expected to promote
greater economic efficiency, productivity and competitiveness. (sarmiento,2007)

What are International Administrative Bodies?

These are administrative bodies created by agreement among states which may be vested with international
personality when two conditions concur, to wit:

1. Their purposes are mainly non-political

2. That they are autonomous or not subject to the control of any state.

Examples are the European Commission of the Danube and the Central Commission for the Navigation of the Rhine.
(Cruz, 2000)

Insurgents

What is the 1977 Protocol II to the Geneva Conventions?

It is the first and only international agreement exclusively regulating the conduct of parties in anon-
international armed conflict. It “develops and supplements Article 3, common to the Geneva Conventions of August
12, 1949 without modifying its existing conditions or application.” (Bernas, 2009)

What is a non-international armed conflict under Protocol II?

It is an armed conflict that takes place in the territory of a High Contracting Party between its armed forces
and dissident armed forces or other organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted military operations and to
implement this Protocol. (Art. 1, Protocol II) [Ibid]

Does Protocol II apply to internal disturbance and tensions?

Article 1 provides that the “Protocol shall not apply to situations of internal disturbances and tensions, such
as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.” This
holds true even if the armed forces of the territory may have been called upon to suppress the disorder. [Ibid]

What then are the requirements for the “material field of application” of Protocol II?

They are as follows:

1. The armed dissidents must be under responsible command

10. They must exercise such control over a part of its territory as to enable them to carry out sustained
and concerted military operations.

Does Protocol II apply to the conflict between Philippine government and the NDF and its NPA and that
between the government and the MNLF and MILF in Mindanao?

27
 No, considering that the government has been able to maintain consistently that the NDF and its NPA have
not crossed the threshold requiring control over the territory and thus, what applies to them as well as the MNLF and
MILF in Mindanao is Common Article 3 and not Protocol II. [Ibid]

What then is the status of the insurgent groups that satisfy the material field of application of Protocol II?

These groups may be regarded as “para-statal entities possessing definite if limited form of international
personality”. [Ibid]

What are the two specific attributes of this “personality”?

They are as follows:

a) They are recognized as having belligerent status against the de jure government thus other states
are required to maintain neutrality regarding them.

2. They are seen as having treaty making capacity. [Ibid]

What is Common Article 3?

It is an Article 3 common to all Geneva Conventions that assures the promulgation of minimum protection to
cover internal conflict. It says:

Art. 3. In the case of armed conflict not of an international character occurring in the territory
of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the
following provisions:

a) Persons taking no active part in the hostilities, including members of the armed forces who have
laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any adverse distinction founded on race, color,
religion or faith, sex, birth or wealth, or any other similar criteria.

To this end, the following acts are and shall remain prohibited at any time and in any place
whatsoever with respect to the above- mentioned persons:

a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

7. Taking of hostages;

8. Outrages upon personal dignity, in particular humiliating and degrading treatment;

9. The passing of sentences and the carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.

a) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may
offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the
conflict. [Ibid]

What does the last sentence of the Article 3 mean?

It means that the application does not convert the conflict into an international one and therefore
does not preclude the possibility that any participant in the conflict may be prosecuted for treason. Further,
although rebels have the protection of Common Article 3, they do not thereby gain the status of subjects of
international law unless they satisfy the “material field of application” of Protocol II. [Ibid]

28
What are National Liberation Movements?

They are organized groups fighting in behalf of a whole people for freedom from colonial powers. According
to the First Protocol of the 1977 Geneva Convention, they are “peoples fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the charter of
the UN.” [Ibid]

What are the characteristics of national liberation movements?

1) They can be based within the territory which they are seeking to liberate or they might find a base
in a friendly country

13. Although control over a territory and people is not essential to their legitimacy, the ultimate goal of
controlling a definite territory is necessary for them to be recognized as international subjects.

14. They must have an organization capable of coming into contact with other international
organizations.

What is the status of Individuals in International Law?

Before, human beings were exclusively under the control of states. They were mere objects or at best
“beneficiaries” of international law. With the greater global awareness of human rights individuals have now come to
be recognized as possessing albeit limited rights and obligations in international law. Antonio Cassese described this
status of individuals with reference to states, in international law, as follows:

To differentiate the position of individuals from that of States, it can be maintained that while States
have international legal personality proper, individuals have a limited locus standi in international law.
Furthermore, unlike States, individuals have a limited array of rights and obligations: on this score, one can
speak of a limited legal capacity(in this respect they can be put on the same footing as other non-State
international subjects: insurgents, international organizations, and national liberation movements).

What is Nationality? (Cruz, 2000)

It is the tie that binds an individual to his state, from which he can claim protection and whose laws he is
obliged to obey. It is membership in a political community with all its concomitant rights and obligations.

What are the modes of acquisition of nationality?

They are as follows:

a) Birth

1. Jure soli where the individual acquires the nationality of the state where he is born

g. Jure sanguinis where the individual acquires the nationality of his parents

a) Naturalization is a process by which a foreigner acquires, voluntarily or by operation of law, the

nationality of another state.

a) Direct naturalization which is effected through any of the following:

a. By individual proceedings, usually judicial, under general naturalization laws;

b. By special act of the legislature, often in favor of distinguished foreigners who have rendered some
notable service to the local state;

c. By collective change of nationality (naturalization en masse) as a result of cession or subjugation;

and

d. In some cases, by adoption of orphan minors as nationals of the state where they are born.

a) Derivative naturalization in turn is conferred by:

29
 2.1. on the wife of the naturalized husband

2.2. on the minor children of the naturalized parent; and

2.3 on the alien woman upon marriage to a national

Derivative naturalization does not always follow as a matter of course, for it is usually made
subject to stringent restrictions and conditions.

What is multiple nationality?

It is the status where one individual finds himself in possession of more than one nationality because of the
concurrent application to him of the municipal laws of the states claiming him as their national.

What is the doctrine of indelible allegiance?

Under this doctrine , an individual may be compelled to retain his original nationality notwithstanding that he
has already renounced or forfeited it under the laws of a second state whose nationality he has acquired.

How may nationality be lost?

It may be lost voluntarily or involuntarily. Voluntary methods include renunciation (express or implied) and
request for release, both of which usually precede the acquisition of a new nationality. Involuntary methods are
forfeiture as a result of some disqualification or prohibited act like enlistment in a foreign army or long continued
residence in a foreign state, and substitution of one nationality for another following a change of sovereignty or any
act conferring derivative naturalization.

How does the Hague Convention of 1930 on the Conflict of Nationality Laws provide against conflicts arising
from divergent municipal laws on nationality?

The said convention provides as follows:

Art. 1 It is for each State to determine under its law who are its nationals. This law shall be recognized by other
States in so far as it is consistent with international conventions, international customs, and the principles of law
generally recognized with regard to nationality

Art. 2. Any question as to whether a person possesses the nationality of a particular State shall be determined in
accordance with the law of the State.

Art. 3 Subject to the provisions of the present Convention, a person having two or more nationalities may be regarded
as its national by each of the States whose nationality he possesses.

Art. 4. A State may not afford diplomatic protection to one of its nationals against a State whose nationality such
person also possesses.

Art. 5. Within a third State, a person having more than one nationality shall be treated as if he had only one. Without
prejudice to the application of its laws in matters of personal status and of any convention in force, a third State shall,
of the nationalities which any such person possesses, recognize exclusively in its territory either the nationality of the
country in which he is habitually and principally resident or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected. (Principle of Effective or Active Nationality)

Art. 6. Without prejudice to the liberty of a State to accord wider rights to renounce its nationality, a person possessing
two nationalities acquired without any voluntary act on his part may renounce one of them with the authorization of
the State whose nationality he desires to surrender. This authorization may not be refused in the case of a person
who has his habitual and principal residence abroad, if the condition laid down in the law of the State whose
nationality he desires to surrender are satisfied.

What is the Doctrine of Nemo Potest Exuere Patriam? (Sarmiento, 2007)

This is the doctrine that the bond of nationality once forged could never be broken. This is the basis of the
doctrine of indelible allegiance. The US used this common law doctrine in the early decades of its national life. Born
a citizen of the US, no one might transfer his allegiance to another state without the consent of the state which had
first claim upon him.

30
What is the Right of Expatriation? (Ibid)

It is the right of a person to renounce his nationality or allegiance to his original State. It finds support in
Article 15 of the Universal Declaration of Human Rights which states that “No one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.”

When may an act of an individual become an Act of State?

An act of an individual becomes an Act of State if it may be imputed on the State. This is usually determined
on the basis of the national legal order, the law of the state whose act is in question. An act the performance of which
is not prescribed or permitted by the law of the state cannot be , imputed on the state, i.e., interpreted as an act of
state. However, such an act may, according to International Law, have the same legal effect as an act imputable to
the state, especially if the act is performed by an individual who, as an organ of the state, is competent under the law
to represent the state in relation to other states, such as Head of State. (Kelsen, 117) [Sarmiento, 2007]

Can private individuals be regarded as subjects of IL?

Yes, especially in the field of the recognition of fundamental human rights, the individual has come to be a
subject, rather than an object of IL. (Fenwick, 134) Rights are now assumed and obligations imposed directly upon
individuals.

In the field of international human rights, the rights of individuals as against states are now protected and
their violation afforded remedies. In international humanitarian law, individual criminal responsibility is now imposed
for the commission of the crimes of genocide, war crimes, and crimes against humanity, among others. In
international criminal court, victims of international crimes are now given legal personality before the court, not as
mere witnesses for the prosecution, but as parties who may directly participate in the proceedings. [Ibid]

What is Statelessness? (Cruz, 2000)

It is the condition or status of an individual who is born without any nationality or who loses his nationality
without retaining or acquiring another.

In such case, from the traditional viewpoint, the individual is powerless to assert any right that otherwise
would be available to him under international law were he a national of a particular state.

Any wrong suffered by him through the act or omission of a state would be damnum absque injuria for in
theory no other state had been offended and no international delinquency committed as a result of damage caused
upon him.

This is so because any injury to the individual by a foreign jurisdiction is, legally speaking, not a violation of
his own right but of the right of his state to the protection of its nationals; the right to complain belongs not to him but
to the state of which he is a national.

Recognition

What are the Objects of recognition?

Recognition may be extended to a state, to a government, or to a belligerent community. Recognition of a

state is generally held to be irrevocable and imports the recognition of its government. Recognition of a
government, on the other hand, may be withdrawn and does not necessarily signify the existence of a state as the
government may be that of a colony.(Hackworth, 166; Fenwick, 157) Recognition of belligerency does not produce
the same effects as the recognition of states and governments because the rebels are accorded international
personality only in connection with the hostilities they are waging. (Wilson and Tucker, 69-72) [Cruz, 2000]

What are the Kinds of Recognition?

It may be either express or implied. Express recognition may be verbal or in writing. It may be extended
through a formal proclamation or announcement, a stipulation in a treaty, a letter or telegram, or on the occasion of
an official call or conference. Examples: the state of Israel and its provisional government were recognized by the US
in a statement released to the press by President Harry S. Truman on May 14, 1948; The Communist Government of
Russia, was recognized by Italy in a treaty concluded between the two countries in 1924;and a simple telegram
sufficed to extend American recognition to Poland after WW1

31
 Recognition is implied when the recognizing state enters into official intercourse with the new member by
exchanging a diplomatic representatives with it, concluding with it a bipartite treaty dealing comprehensively with their
relations in general or, acknowledging its flag or otherwise entering into formal relations with it. (Fenwick, 137).

In the case of a belligerent community, recognition is implied when the legitimate government blockades a
port held by the former or when other states observe neutrality in the conflict. (Bishop, 261) [Ibid]

What is required of an act for it to be considered as an act constituting recognition?

The act constituting recognition shall give a clear indication of an intention:

1) To treat with the new state as such; or

4. To accept the new government as having authority to represent the state it purports to govern and
to maintain diplomatic relations with it; or

5. To recognize in the case of insurgents that they are entitled to exercise belligerent rights.
(Hackworth, 166) [Ibid]

What is the effect of common membership in an international organization of states that have not previously
recognized each other?

They are deemed to recognize each other only within the said body and not elsewhere. Example: The Phil
and Soviet Union for many years dealt officially with each other in the UN, of which they are both charter members,
but did not otherwise maintain relations outside the Organization until they exchanged diplomatic recognition in 1975.
[Ibid]

What is Recognition of States?

The recognition of a new state is the free act by which one or more states acknowledge the existence on a
definite territory of a human society politically organized, independent of any existing state, and capable of observing
the obligations of international law, and by which they manifest therefore their intention to consider it a member of the
international community.(Art 1, Institute de Droit International)

The recognition of a new state comes easy when it is established through peaceful methods such as
plebiscite or agreement. Examples: Norway and Sweden, upon their formal separation in 1905 were unhesitatingly
extended recognition; same is true with Egypt, when it was declared independent by Great Britain in 1922 and also to
the Philippines upon the withdrawal of American sovereignty there from in 1946. But the act of France in recognizing
the newly established USA in 1778 was resented by Great Britain which shortly thereafter declared war against the
French. The recognition made by US to Brazil was not received with much antagonism by parent state Portugal
which had evidently lost interest in its former colony.[Ibid]

What is the Recognition of Governments?

The recognition of the new government of a state which has been already recognized is the free act by
which one or several states acknowledge that a person or a group of persons is capable of binding the state which
they claim to represent and witness their intention to enter into relations with them. (Art. 9, Ibid)

Similar to the recognition of states, the recognition of governments is usually decided mainly on the basis of
political considerations. Premature recognition may lead to international misunderstanding if the new government
has been established through violent methods. There is no problem if the change of government is caused through
peaceful means but in the case the new government is installed through violent means and it claims the right to
represent the state to the exclusion of the former, the former or de jure government might have a cause for complaint
if recognition is extended by other governments to the de facto government. [Cruz, 2000]

What is the Tobar or Wilson principle?

Under this principle, which was expressed in a treaty of the Central American Repulics in 1907 at the
suggestion of Foreign Minister Tobar of Ecuador and reiterated in 1913 by President Woodrow Wilson of the US,
recognition shall not be extended to any government established by revolution, civil war, coup d’etat or other forms of
internal violence until the freely elected representatives of the people have organized a constitutional government.
[Ibid]

32
What is Stimson Principle?

This principle was formulated by US Secretary of State Stimson and was adopted by the League of Nations
in a resolution declaring that it was “incumbent upon the members of the League of Nations not to recognize any
institution, treaty or agreement which may be brought about by means contrary to the Covenant of the League of
Nations or to the Pact of Paris.”[Ibid]

What is Estrada Doctrine?

Minister Genaro Estrada of Mexico announced in 1930 a doctrine that now bears his name. Under this
doctrine, the Mexican government declared that it would, as it saw fit, continue or terminate its relations with any
country in which a political upheaval had taken place “and in so doing does not pronounce judgment, regarding the
right of foreign nations to accept, maintain, or replace their governments or authorities.” [Ibid]

What are the criteria in recognizing a new government based on the present practice of most states?

They are as follows:

a) That the government must be able to maintain order within the state and to repel external
aggression known as the objective test; and

2. That the government is willing to comply with its international obligations known as the subjective
test. (Fenwick, 159-162)[Ibid]

What are the distinctions between recognition de jure and recognition de facto?

They are the following:

1. Recognition de jure is relatively permanent while recognition de facto is provisional;

c. Recognition de jure vests title in the government to its properties abroad while recognition de facto
does not;

d. Recognition de jure brings about full diplomatic relations while recognition de facto is limited to
certain juridical relations.(Oppenheim-Lauterpacht, 136-137)[Ibid]

What are the effects of Recognition of States and Governments?

The following are the consequences of the recognition of state and governments:

1. Full diplomatic relations are established except where the government recognized is de facto.

iii. The recognized state or government acquires the right to sue in the courts of the recognizing state.

iv. The recognized state or government has a right to the possession of the properties of its
predecessor in the territory of the recognizing state.

v. All acts of the recognized state or government are validated retroactively, preventing the
recognizing state from passing upon their legality in its own courts.[Ibid]

What is Recognition of Belligerency?

A belligerency is supposed to be a merely internal affair of the state and does not produce international
repercussion. But when the conflict widens and aggravates, it may be necessary, for practical reasons, to consider
the formal recognition of the belligerent community. Such recognition is usually extended where the following
conditions are established:

1. There must be an organized civil government directing the rebel forces.;

11. The rebels must occupy a substantial portion of the territory of the state.

12. The conflict between the legitimate government and the rebels must be serious, making the
outcome uncertain.

33
 13. The rebels must be willing and able to observe the laws of war. [Ibid]

What are the consequences of recognition of belligerency?

They are as follows:

1) Upon recognition by the parent state, the belligerent community is considered a separate state for purposes
of the conflict it is waging against the legitimate government. Thus:

1. their relations with each other shall, for the duration of hostilities, be governed by the laws of war,
and their relations with other states shall be subject to the laws of neutrality;

b. the troops of either belligerent, when captured, shall be treated as prisoners of war;

c. the parent state shall no longer be liable for any damage that may be caused to third states by the
rebel government;

d. both belligerents may exercise the right of visit and search upon neutral merchant vessels;

e. the rebel government, equally with the legitimate government, shall be entitled to full war status as
regards all other states and may establish blockades, maintain prize courts and take other allowable war
measures.

1) Where recognition is extended by third states, the above consequences are effective only as to them
and do not bind other states not extending recognition. It is only where the recognition is made by
the parent state that the effects thereof become general and are legally applicable to all other states. [Ibid]

Treatment of Aliens

What is the concept of protection of aliens?

No states is obliged to admit aliens into its territory unless there is a treaty requiring it. This springs from
sovereignty of the state. Though, it is difficult to deny admission to all. Hence, states impose legal standards for
admission and once admitted, at least under democratic regimes, aliens may not be expelled without due process.

From the perspective of the state of their nationality, aliens are “nationals abroad”. Therefore, they remain
important for the state of their nationality. Thus, states have common interest in the protection of aliens. [Bernas,
2009]

What is the doctrine of state responsibility?

Under this doctrine, a state may be held responsible for:

1) An international delinquency,

iii. directly or indirectly imputable to it,

iv. which causes injury to the national of another state.

Under this doctrine, liability will attach to the state where its treatment of the aliens fall below the
international standard of justice or where it is remiss in according him the protection or redress that is warranted by
the circumstances. (Cruz, 2000)

What are the two kinds of state responsibility?

a) Direct state responsibility attaches where the international delinquency was committed by
superior government officials or organs like the chief of state or the national legislature as their acts may not
be effectively prevented or reversed under the constitution and laws of the state.

b) Indirect state responsibility results where the offense is committed by inferior government
officials or, more so, by private individuals, although the state will be held liable if, by reason of its
indifference in preventing or punishing it, it can be considered to have connived in effect in its commission.
[Ibid]

34
What is an international wrongful act?

There is an internationally wrongful act of a State when conduct consisting of an action or omission:

a) is attributable to the State under international law; and

b) constitutes a breach of an international obligation of the State. (Art. 2, Articles on Responsibility of

States for Internationally wrongful Acts, International Law Commission, 2001) [Bernas, 2009]

What is international standard of justice?

It has no precise definition. It is described as the standard of the reasonable states, as referring to the
ordinary norms of official conduct observed in civilized jurisdictions. [Cruz, 2000]

What is the concept of diplomatic protection?

It is the instrument used for the protection of aliens which is based on the traditional notion that the individual
is an inappropriate subject of international law and must have recourse to his or her state of nationality for protection.
The theory underlying the system is that injury to a national abroad is injury to the individual’s state of nationality.
Thus, the interest of the state is in the redress of the injury to itself and not of the injury to the individual.[Bernas,
2009]

What are the two standards for the protection of aliens?

They are as follows:

a) “national treatment” or “equality of treatment”

Aliens are treated in the same manner as nationals of the state where they reside. Here,
aliens would enjoy the same benefits as local nationals but if the state is tyrannical and its municipal laws are
harsh and violative of human rights even to its citizens, then aliens would likewise be subject to such
harsh laws.

b) minimum international standard

However harsh the municipal laws might be against a state’s own citizens, aliens should be
protected by certain minimum standards of humane protection.

What conducts are attributable to the state?

In Chapter 2 of the Responsibility of States for Internationally Wrongful Acts, the following conducts are
considered as acts of state; to wit:

a) The conduct of any of its organs, whether exercising legislative, executive, judicial or any other
functions. (Art.4)

b) The conduct of a person or entity which is empowered by the law of that State to exercise
governmental authority provided the person or entity is acting in that capacity in the particular instance.
(Art.5)

c) The conduct of a person or group of persons that is in fact acting on the instructions of, or under
the direction or control of, that State in carrying out the conduct. (Art.8)

d) The conduct of a person or group of persons that is in fact exercising governmental authority in the
absence or default of the official authorities and in circumstances such as to call for the exercise of that
authority. (Art. 9)

e) The conduct of an insurrectional movement which becomes the new Government of a State.
(Art.10[1])

f) The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in
part of the territory of a pre-existing State or in a territory under its administration, shall be considered an act
of the new State. (Art.10[1])

35
 g) Conduct which the State acknowledges and adopts as its own. (Art.11) [Sarmiento, 2007]

What is the concept of failure of protection or redress?

Under this concept, a state may still be held liable even if its laws conform to the international standard of
justice if:

a) It does not make reasonable efforts to prevent injury to the alien; an

b) having done so unsuccessfully, fails to repair such injury. [Cruz, 2000]

What is the concept of exhaustion of local remedies?

Under this concept, even when the liability of the state has already been established, its enforcement cannot
be claimed by the injured foreigner unless he first exhausts all available local remedies for the protection or
vindication of his rights.(Schwarzenberger, 166) [Ibid]

It is generally accepted that the state must be given an opportunity to do justice in its own regular way and
without unwarranted interference with its sovereignty by other states. [Ibid]

“ …where there is a judicial remedy, it must be sought; and only if it is sought in vain does diplomatic
interposition become proper.” (Harvard Research Draft on the Responsibility of States, 23 A.J.I.L., Sp. Supp.133)
[Ibid]

What are the exceptions to the adherence to the concept of exhaustion of local remedies?

They are as follows:

a) there are no remedies to exhaust;

b) where the laws are intrinsically defective;

c) where there is laxity or arbitrariness in their enforcement;

d) where the courts are corrupt;

e) where there is no adequate machinery for the administration of justice; or

f) “acts of state” which are not subject to judicial review. [Ibid]

When may an injured foreigner resort to diplomatic protection?

If he has exhausted all local remedies but without success, he may then avail himself of the assistance of
his state – but only if he has a state. If he has no state, he will have no party to represent him, and he by himself,
being a mere individual, cannot institute his claim in his own name.[Ibid]

How important is the tie of nationality in seeking diplomatic protection?

The tie of nationality is required to exist from the time of the injury until the time the international claim is
finally settled. (Schwarzenberger, 169) When this tie is broken, the claim itself is deemed automatically abated. If,
therefore, the injured national dies while the claim is under consideration and it should happen that his heirs are not
nationals of the claimant state, the claim will lapse.

Though this requirement may now yield to the view that the individual as such should be allowed to institute
an international claim against a foreign state for violation of his own personal rights. [Ibid]

What constitutes enforcement of claim?

An international claim for damages may be resolved through negotiation or, if this fails, any of the other
methods of settling disputes, like good offices, arbitration, and judicial settlement. There have been cases also where
hostile and forcible measures have been employed and when war itself has been resorted to as means of compelling
compliance with the demands of the injured state.

36
 When state responsibility is established or acknowledged, the duty to make reparation will arise which may
either take the form of restitution (an obligation to re-establish the situation which existed before the wrongful act
was committed, provided it is not materially impossible- Responsibility of States for Internationally Wrongful
Acts,Art35 ) or, where this is not possible, satisfaction (When the injury cannot be made good by restitution or
compensation, it may consist in an acknowledgement of the breach, an expression of regret, a formal apology or
another appropriate modality, but it shall not be out of proportion to the injury and may not take a form humiliating to
the responsible State-Ibid, Art 37) or compensation (an obligation to compensate for the damage caused thereby,
insofar as such damage is not made good by restitution; shall cover any financially assessable damage including loss
of profits insofar as it is established-Ibid,Art 36), , or all three of these together. Thus, the settlement may consist of
the restoration or replacement of the object of the offense, a formal apology by the delinquent state and
payment of damages as well. [Ibid]

How can state responsibility be avoided?

Under the Calvo clause, which is sometimes incorporated by local states in contracts , an alien waives or
restricts his right to appeal to his own state in connection with any claim arising from the contract and agrees to limit
himself to the remedies available under the laws of the local state. [Ibid]

But this was rejected in North American Dredging Company Claim (1926) by the Mexico-US General Claims
Commission. Accordingly, the right to seek redress is a sovereign prerogative of a state and a private individual has
no right to waive the state’s right.

Distinguish Calvo Doctrine from the Calvo Clause.

The Calvo doctrine makes the state not responsible for losses suffered by aliens in time of civil war. This
doctrine is named after Argentine jurist Carlos Calvo who argued in his treaties on International Law (Derecho
internacional teurico y practico de Europa y America [1868]) that a state could not accept responsibility for losses
suffered by foreigners as a result of civil war or insurrection, on the ground that to admit responsibility in such cases
would be to menace the independence of weaker states by subjecting them to the intervention of strong states, and
would “establish an unjustifiable inequality between nationals and foreigners.”

Calvo clause on the other hand, is used chiefly in contracts between a government and aliens. It prevents
appeals by aliens to their home governments for diplomatic intervention in behalf of their contract rights. Its general
tenor is that the alien agrees that any dispute that might arise out of the contract is to be decided by the national
courts in accordance with national law and is not to give rise to any international reclamation. In some cases, the
alien is to be “considered a national” for the purpose of the contract. (Fenwick, 292) [Sarmiento, 2007]

What are the preliminary objections which if not answered may lead to the loss of the claim of denial of
justice?

The claim of denial of justice in cases founded on diplomatic protection or on injury to aliens, may be lost
due to failure to answer some preliminary objections which include lack of nationality link and failure to exhaust
national remedies. [Bernas, 2007]

How is expropriation of alien property done to avoid committing an international wrong?

The expropriation “shall be based on grounds or reasons of public utility, security or the national interest
which are recognized as overriding purely individual or private interests, both domestic and foreign. In such cases
the owner shall be paid appropriate compensation in accordance with the rules in force in the state taking such
measures in the exercise of its sovereignty and in accordance with international law.”

What is the concept of exclusion of aliens?

State liability to aliens may also be avoided by refusing their admission. Though, this is not regarded as
sound policy since it would provoke retaliation in kind and ultimately isolate its nationals from the rest of the
international community. Conversely, it would not be advisable either if the entry of aliens were allowed
indiscriminately because they might pose a danger to the welfare and especially the security of the admitting country.
Thus, the practice of most states now is to regulate the immigration and stay of aliens and to provide for their
deportation whenever warranted. In proper cases, arrangements may also be made for the extradition of alien
fugitives. [Cruz, 2000]

What is the difference between deportation and exclusion?

37
 Deportation is the removal of an alien out of the country, simply because his presence is deemed
inconsistent with the public welfare, and without any punishment being imposed or contemplated, either under the
laws of the country out of which he is sent, or under those of the country to which he is taken. While exclusion is the
denial of entry to an alien. [Ibid]

What is the concept of Extradition?

It is the surrender of a person by one state to another state where he is wanted for prosecution or, if already
convicted, for punishment.

It differs from deportation because it is effected at the request of the state of origin whereas deportation is
the unilateral act of the local state; it is based on offenses generally committed in the state of origin whereas
deportation is based on causes arising in the local state; and it calls for the return of the fugitive to the state of origin
whereas an undesirable alien may be deported to a state other than his own or the state of origin. [Ibid]

What is the basis of extradition?

It is based on treaty between the state of refuge and the state of origin. In the absence of such treaty, the
local state has every right to grant asylum to the fugitive and to refuse to deliver him back to the latter state even if he
is its national. If, notwithstanding this right, the surrender requested is still effected by the state of asylum, it is not
because of a demandable duty on its part but in pursuance of policy or as a gesture of comity. [Ibid]

What are the fundamental principles of extradition?

They are as follows:

1) Extradition is based on the consent of the state of asylum as expressed in a treaty or manifested as
an act of goodwill. (Fenwick, 331]

2) Under the principle of specialty, a fugitive who is extradited may be tried only for the crime specified
in the request for extradition and included in the list of offenses in the extradition treaty. (US vs Rauscher,
119, US 407) If he is charged with any other offense committed before his escape, the state of refuge- and
not the accused- has a right to object; nevertheless, the prosecution will be allowed if the extraditing state
agrees or does not complain.

3) Any person may be extradited, whether he be a national of the requesting state, of the state of
refuge or of another state. (Oppenheim-Lauterpacht,698) The practice of many states now, is not to extradite
their own nationals but to punish them under their own laws in accordance with the nationality principle of
criminal jurisdiction.

4) Political and religious offender are generally not subject to extradition. It has been held that “in
order to constitute an offense of a political character, there must be two or more parties in the state, each
seeking to impose the government of their own choice on the other.” (In re Meunier, 2 Q.B. 415, 1984)

What is attentat clause?

Under this clause, the murder of the head of state or any member of his family is not to be
regarded as apolitical offense for purposes of extradition.

5) In the absence of special agreement, the offense must have been committed within the territory or
against the interests of the demanding state.

6) The act for which the extradition is sought must be punishable in both the requesting and requested
states under what is known as the rule of double criminality.

What are the differences between an extradition proceeding and a criminal proceeding?

They are as follows:

1) extradition proceeding (ep) is summary in nature while criminal proceedings (cp) involve a full-
blown trial;

2) in contradistinction to a cp, the rules of evidence in ep allow admission of evidence under less

38
 stringent standards;

3) a criminal case requires proof beyond reasonable doubt for conviction while a fugitive may be
ordered extradited “upon showing of the existence of a prima facie case.”

4) In a criminal case, judgment becomes executor upon being rendered final, while in ep, our courts
may adjudge an individual extraditable but the President has the final discretion to extradite him. (Secretary
of Justice vs Lantion, Oct 17, 2000)

Is the right to bail applicable in extradition cases?

In Rodriguez vs Judge (Feb 27, 2006), the Court held that bail may be granted to a possible extradite only
upon a clear and convincing showing:

a) That he will not be a flight risk or a danger to the community; and

b) That there exist special, humanitarian and compelling circumstances.

What is reconduction to the border?

Reconduction to the border is the forcible expulsion of undesirable aliens by arresting them and
reconducting them to the border or their home state. It is a police to police expulsion without any conditions and
without judicial intervention. [Sarmiento, 2007]

What is “disguised extradition?

There is “disguised extradition” where deportation is used to achieve extradition. [Ibid]

What is irregular rendition?

Irregular rendition is a practice of some states that is borne of frustration caused by the unwillingness of a
country upon which a valid extradition request has been made to carry out its international obligation. Example:
When US retrieved John Surratt, who was accused of conspiracy in the assassination of Abraham Lincoln. Surrat
was snatched forcibly by US agents from Alexandria, Egypt, where he had fled following the assassination.
(Newhouse) [Sarmiento, 2007]

What are the different varieties of irregular renditions?

They are as follows:

a) Transnational forcible abduction

- One sovereign may simply kidnap the culprit seeking refuge in a foreign land, an action that is
invariably against the law of the foreign jurisdiction.

- Example is the 1960 kidnapping of Adolph Eichmann by Israeli agents in Argentina. Eichmann was
one of the principal participants in Hitler’s Final Solution.

a) Informal surrender or “disguised extradition”

- Without process, the foreign jurisdiction may simply grant permission or silently accede to the
requesting state’s demand for the surrender of the fugitive or it may affirmatively move to deport or expel
him or her.

a) Lures

- Tricked by subterfuge or deception, the fugitive may be lured from an extradition refuge to the
territory of the pursuing State, international waters, or to another country permitting extradition to the
pursuing State.(Newhouse) [Sarmiento, 2007]

What is the Ker-Frisbie Doctrine

39
 It is a doctrine that holds that criminal defendants may be tried regardless of whether their presence before
the court was secured from outside its territorial jurisdiction by means other than pursuant to a valid extradition.[Ibid]

CHAPTER 5

Territory

Acquisition and Loss of Territory

What are the modes of acquiring and losing territory?

They are as follows:

1) Acquisition

1. Discovery and occupation

It is an original mode of acquisition by which territory not belonging to any state, or terra
nullius, is placed under the sovereignty of the discovering state.

The territory need not be uninhabited provided it can be established that the natives are not
sufficiently civilized and can be considered as possessing not rights of sovereignty but only rights of
habitation. (Cruz, 2000)

Discovery of terra nullius is not enough to establish sovereignty. It must be accompanied

by effective control as held in the Las Palmas Case (Permanent Court Arbitration, 1928) [Bernas, 2009]

Effective control is relative and may depend on the nature of the case – e.g. whether the
territory is inhabited or not and how fierce the occupants are. Where there are two or more claimants to a
territory, effective control is also relative to the strength of claims. (Eastern Greenland Case PCIJ 1933)
[Bernas, 2009]

What is hinterland doctrine?

Under the hinterland doctrine, the state that discovers and occupies the coast shall also have
an exclusive right to occupy the hinterland, i.e. the inland region lying behind a port. [Sarmiento, 2007]

What is the doctrine of inchoate title?

It means that since an effective occupation must usually be a gradual process it is considered
that some weight should be given to mere discovery, and it is regarded therefore as giving an “inchoate
title”, that is to say, a temporary right to exclude other states until the

State of the discoverer has had a reasonable time within which to make an effective occupation, or a
sort of option to occupy which other states must respect while it lasts. (Briely, 154) [Ibid]

- Prescription

Like occupation, it requires effective control. But unlike occupation, the object of
prescription is not terra nullius. Thus, the required length of effective control is longer than in occupation.
Prescription, might however, be negated by a demonstrated lack of acquiescence by the prior
occupant. (Las Palmas Case) [Bernas, 2009]

- Cession

It occurs when the acquiring sovereign derives its title to a new territory by the ceding
sovereign’s transferring to it the supreme power over that territory. Sovereigns can effect cession only in a
treaty between the ceding and acquiring sovereigns. Cession requires possession or occupation by the

40
acquiring sovereign. When such occupation takes place, the subjects domiciled in the newly acquired
insular area become nationals of the acquiring sovereign.(Perl, 13) [Sarmiento, 2007]

- Subjugation

Territory is deemed acquired by subjugation when, having been previously conquered or

occupied in the course of war by the enemy, it is formally annexed to it at the end of that war. Conquest alone
confers only an inchoate right on the occupying state; it is the formal act of annexation that completes
the acquisition. (Cruz, 2000)

- Accretion and Avulsion

These can also lead to sovereignty over territory. This is sovereignty by operation of nature.
Accretion is the gradual increase of territory by the action of nature while avulsion is a sudden change resulting
for instance from the action of a volcano. [Bernas,2009]

1) Loss

i. Abandonment or dereliction

Territory is lost by dereliction when the state exercising sovereignty over it physically
withdraws from it with the intention of abandoning it altogether. Two conditions must concur, namely, the
act of withdrawal and the intention to abandon.

2. Cession

It is a method by which territory is transferred from one state to another by agreement

between them. It being essentially consensual, transfer of title is effected upon the meeting of the minds of the
parties and does not have to bide the actual delivery of the ceded territory to the acquiring state.

3. Subjugation

Territory is lost through conquest during war.

4. Prescription

It requires long, continued and adverse possession to vest acquisitive title in the claimant.

5. Erosion

6. Revolution

7. Natural causes (Cruz, 2000)

What are the components of territory?

They are the following:

1. Terrestrial domain

It refers to the land mass, which may be integrate, as in the case of Iran, or dismembered, as in
the case of the US, or partly bounded by water like Burma, or consist of one whole island like Iceland.
It may also be composed of several islands, like the Philippines and Indonesia, which are known as mid-ocean
archipelagoes, as distinguished from the coastal archipelagoes like Greece. [Ibid]

What are State boundaries or frontiers?

They are the barriers distinguishing one state’s territory from another state’s territory. They
extend not only across but both upwards and downwards into the airspace and subsurface areas.
Boundaries are most often determined by agreements between parties, rather than being dictated
by principles of International Law. (Malone, 48) [Sarmiento, 2007]

- Maritime and fluvial domain

41
 It consists of the bodies of water within the land mass and the waters adjacent to the coasts of the
state up to a specified limit. This includes the internal waters in the land-locked lakes, the rivers and man-
made canals within the land mass, and in certain bays, gulfs and straits, as well as the external waters in the
territorial sea. [Ibid]

i. Rivers

They may be classified into national, multi-national, international, and boundary. National rivers
are those that are situated completely in the territory of one state (Pasig River) as distinguished
from the multinational rivers (Congo River in Africa, Mekong River in Asia) that flow through the territories of
several states. An international river is one that is navigable from the open sea and is open to the use of
vessels from all states (Rhine and Danube). Boundary river divides the territories of the riparian states (St.
Lawrence River between Canada and the US). [Ibid]

4. Bay

It is a well-marked indentation whose penetration is in such proportion to the width of its mouth
as to contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall
not, be regarded as a bay unless its area is as large as or larger than that of a semi-circle whose diameter is a line
drawn across the mouth of that indentation. [Ibid]

What are historic bays?

They are those whose waters have always been considered internal by the international
community notwithstanding that their openings are more than 24 miles in width. Examples: Bay of Cancale
in France; the Bay of El Arab in Egypt; Chesapeake Bay in the US, Hudson Bay in Canada and the
Zuyder Zee in Holland. [Ibid]

What is the Thalweg doctrine?

It aims to resolve water boundary disputes. According to this doctrine, the boundary between two
states divided by a flowing body of water should be drawn along the thalweg, which is the deepest portion
of the channel. [Sarmiento, 2007]

5. Territorial sea

It may be described as the belt of waters adjacent to the coasts of the state, excluding the
internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction. [Ibid]

What were the three (3) UN Conferences on the Law of the Sea?

1. The First Conference was held in 1958 at Geneva, Switzerland and resulted in the adoption of the
Convention on the Territorial Sea and the Contiguous Zone, the Convention on Fishing and the Living
Resources of the High Seas, and the Convention on the Continental Shelf.

But it failed to define the breadth of the territorial sea; and, moreover, the Conventions adopted therein
were ratified by only forty states. The Philippines did not ratify because of the absence of provisions
recognizing the archipelago doctrine it was advocating.

2. The Second Conference was held in in 1960, again at Geneva, but it also left unresolved the
question of the breadth of the territorial sea.

3. The Third Conference in 1970 by the UN, led to the adoption of a new Convention on the Law of
the Sea, which was signed in Jamaica in 1982 by 119 of the 150 conferee-states. This Convention took
effect on November 16, 1994, after its ratification by more than the required 60 of the signatory states.
(Cruz, 2000)

Also known as the Convention on the Law of the Sea of 1982, it is now the prevailing law on maritime
domain. Many of its provisions are a repetition of earlier convention law or a codification of customary law.
Territorial sea is now the belt of sea outwards from the baseline and up to 12 nautical miles beyond. Where the
application of the 12 mile rule to neighboring littoral states would result in overlapping, the rule now
established is that the dividing line is a median line equidistant from the opposite baselines. But the

42
 equidistance rule does not apply where historic title or other special circumstances require a different
measurement, Article 15, 1982 LOS. [Bernas, 2009]

What is baseline?

It is the low-water mark along the coast from which the belt of the territorial sea is measured. (UNCLOS, Art
3) [Sarmiento 2007]

What determines the validity of baseline delineations?

The validity of baseline delineations is determined by International Law.(Fisheries Case) [Ibid]

Two ways to draw the baseline:

- Normal baseline is one drawn following the “low-water line along the coast as marked on large-
scale charts officially recognized by the coastal State.” This line follows the curvatures of the coast and
therefore would normally not consist of straight lines.

g. Straight baseline method uses straight lines which are drawn connecting selected points on the
coast without appreciable departure from the general shape of the coast. [Bernas, 2009]

What are the limitations on the use of straight-baseline method?

The ICJ imposed the following limitations on the use of the straight-baseline method:

1. The baseline must not depart to any appreciable extent from the general direction of the coast;

11. The areas lying within these lines must be particularly closely linked to the land formations which
divide or surround them;

12. Account should be taken of certain economic interests peculiar to a region when their reality and
importance are clearly evidenced by a long usage. (UK vs Norway, UNCLOS, Art.7) [ Sarmiento, 2007]

Distinguish the territorial sea and the internal waters of the Philippines.

The territorial sea is an adjacent belt of sea which may extend up to a breadth of 12 nautical miles from the
baseline over which the sovereignty of a coastal State extends. (UNCLOS, Arts. 2,3)

Article 1 of the 1987 Constitution defines the internal waters of the Philippines as “the waters around,
between, and connecting the islands of the archipelago, regardless of their breadth and dimensions.” Under Article 7
of the LOS Convention, waters on the landward side of the baseline of the territorial sea form part of the internal
waters of the State. [Sarmiento, 2007]

What is the concept of sovereignty over territorial sea?

The sovereignty of the coastal state over its territorial sea and the airspace above it as well as the seabed
under is the same as its sovereignty over its land territory. (Art 2, LOS)

However, the sea is subject to the right of innocent passage by other states. The rule on innocent passage
applies to ships and aircraft. Submarines must surface. [Bernas,2009]

May a foreign nuclear-powered ship and the ships carrying nuclear or other inherently dangerous or noxious
substances exercise the right of innocent passage through the territorial sea of another state?

Yes, however, they should carry documents and observe special precautionary measures established for
such ships by international agreements. (UNCLOS, Art 23) [Sarmiento,2007]

What is innocent passage?

It is passage that is not prejudicial to the peace, good order or security of the coastal state. Coastal states
have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent
passage that it determines to be not innocent. The rule on innocent passage is also applicable to Corfu Channel
Case (UK vs Albania, 1949, ICJ Rep). [Ibid]

43
When is delayed or discontinuous passage allowed?

The passage shall be continuous and expeditious. However, passage may include stopping and anchoring,
but only in the following cases:

a. The delayed passage is incidental to ordinary navigation;

10. It is rendered necessary by force majeure or distress; or

11. For the purpose of rendering assistance to persons, ships or aircraft in danger or distress.
(UNCLOS, Article 18{2}) [Ibid]

What is the right of transit passage?

It means the exercise of the freedom of navigation and overflight solely for the purpose of continuous and
expeditious transit of the strait between one part of the high seas or an exclusive economic zone and another part of
the high seas or an exclusive economic zone and another part of the high seas or an exclusive economic zone.

This requirement of continuous and expeditious transit does not preclude passage through the strait for the
purpose of entering, leaving or returning from a State bordering the strait, subject to the conditions of entry to that
State. (UNCLOS, Art 38{2}) [Ibid]

Differentiate transit passage from innocent passage.

1. Transit passage applies through straits, while innocent passage applies through territorial seas;

2. Transit passage covers navigation and overflight by aircrafts, while innocent passage covers
navigation only;

3. Transit passage may not be unilaterally suspended while innocent passage may be unilaterally
suspended. (UNCLOS, Art. 25{3}) [Ibid]

What are internal waters?

They are all waters (part of the sea, rivers, lakes, etc) landwards from the baseline of the territory.
Sovereignty over these waters is the same extent as sovereignty over land, and it is not subject to the right of
innocent passage. [Ibid]

Do merchant vessels have a right of access to the ports of another state?

Yes, the freedom of access to ports by foreign merchant vessels is a rule of custom conditioned upon
reciprocity. But, landlocked nations may not be denied freedom on access to ports of another solely because of their
inability to reciprocate. (UNCLOS, Art 131) [Ibid]

May a coastal state deny access to its ports to foreign vessels?

The ports of every coastal state must be open to foreign vessels, as a rule. Though their ports may be
closed but only when the vital interest of the state so require. (Saudi Arabia vs ARAMCO, Award of August 23, 1938)

What are the principal theories on the jurisdiction of authorities of a coastal state over crimes committed on
board foreign merchant ships which enter or dock in its ports? Which of the theories is followed in this
jurisdiction?

i. Under the English rule, the coastal state shall have jurisdiction over all offenses committed on
board such vessels, except only where they do not compromise the peace of the port.

5. Under the French rule, the flag state shall have jurisdiction over all offenses committed on board
such vessels, except only where they compromise the peace of the port. (Cruz, 2000)

It is the English rule that is applicable in this jurisdiction. (People vs Wong Cheng, GR No. L-18924, October
19, 1922)

44
 What are archipelagic waters?

They are internal waters areas enclosed after the straight baseline, pursuant to the method set forth in
Article 7 (Law of the Sea) has been established. [Ibid]

Is there a right of innocent passage through archipelagic waters?

Yes. Article 52 of the LOS Convention provides that ships of all states enjoy the right of innocent passage
through archipelagic waters. But this right cannot be invoked inside the closing lines within the archipelagic waters
which had been drawn for the delimitation of internal waters. (UNCLOS, Art.50) [Ibid]

What are the limitations on the right of an archipelagic state to suspend the right of innocent passage of
foreign ships in archipelagic waters?

They are as follows:

1. The suspension is made without discrimination in form or in fact among foreign ships;

3. The suspension is only temporary;

4. It must specify the areas of its archipelagic waters where innocent passage shall not be allowed;

5. Such suspension is essential for the protection of its security; and

6. Such suspension shall take effect only after having been duly published. (UNCLOS, Art. 52{2})
[Ibid]

What is archipelagic sea lanes passage?

Under Article 53(3) of the UNCLOS, it means the exercise in accordance with the LOS Convention of the
rights of navigation and over flight in the normal mode solely for the purpose of continuous, expeditious and
unobstructed transit between one part of the high seas or an exclusive economic zone. [Ibid]

Is there a right of archipelagic sea lanes passage?

Yes, under UNCLOS Article 53 (1, 2) an archipelagic state may designate sea lanes and air routes above,
suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic
waters and the adjacent territorial sea. All ships and aircraft enjoy the right of archipelagic sea lanes passage in such
sea lanes and air routes. [Ibid]

Define archipelago and archipelagic state.

An archipelago means a group of islands, including parts of islands, interconnecting waters and other
natural features which are so closely interrelated that such islands, waters and other natural features form an intrinsic
geographical, economic and political entity, or which historically have been regarded as such.

An archipelagic state means a state constituted wholly by one or more archipelagos and may include other
islands. (UNCLOS, Art 46) [Sarmiento, 2007]

What is the archipelagic theory?

The archipelagic theory considers a group of islands which are so closely interrelated and their
interconnecting waters as one geographical unit. The theory allows an archipelagic baselines joining the outermost
points of the outermost islands and drying reefs of the archipelago. The waters regardless of their depth or distance
from the coast, and within these archipelagic waters, the archipelagic state may draw closing lines for the delimitation
of its internal waters. (UNCLOS, Arts. 46, 47, 50) [Ibid]

What is contiguous zone?

It is the area of water not exceeding 24 nautical miles from the baseline. It thus extends 12 nautical miles
from the edge of the territorial sea. The coastal state exercises authority over that area to the extent necessary to
prevent infringement of its customs, fiscal, immigration or sanitation authority over its territorial waters or territory and
to punish such infringement.(Article 33, 1 & 2) [Ibid]

45
What is exclusive economic zone or “patrimonial sea”?

It is an area extending not more than 200 nautical miles beyond the baseline. The coastal state has rights
over the economic resources of the sea, seabed and subsoil – but the right does not affect the right of navigation and
overflight of other states. This is a compromise between those who wanted a 200-mile territorial sea and those who
wanted to reduce the powers of coastal states.

The provisions on the exclusive economic zone are both a grant of rights to and an imposition of obligations
on coastal states relative to the exploitation, management and preservation of the resources found within the zone.
[Ibid]

What are the two primary obligations of the coastal states?

1. They must ensure through proper conservation and management measures that the living
resources of the EEZ are not subjected to over-exploitation which includes the duty to maintain and restore
populations of harvested fisheries at levels which produce a “maximum sustainable yield.”

2. They must promote the objective of “optimum utilization” of the living resources thus they should
determine the allowable catch of living resources. If the coastal state does not have the capacity to harvest
the allowable catch, it must grant access to other states. (Arts. 55 to 75) [Ibid]

The delimitation of the overlapping exclusive economic zone between adjacent states is determined by
agreement.

What is continental shelf?

Otherwise known as archipelagic or insular shelf for archipelagos refers to a) the seabed and subsoil of the
submarine areas adjacent to the coastal state but outside the territorial sea, to a depth of two hundred meters or,
beyond that limit, to where the depth allows exploitation, and b) the seabed and subsoil of areas adjacent to islands.

The coastal state has the right to explore and exploit its natural resources, to erect installations needed, and
to erect a safety zone over its installations with a radius of 500 meters. The right does not affect the right of
navigation of others. Moreover, the right does not extend to non-resource materials in the shelf area such as
wrecked ship and their cargoes. [Ibid]

What are the three competing views regarding the legal regime governing the exploitation of the mineral
resources of the deep sea bed?

They are as follows:

1. “Common heritage of mankind” view is adopted by the UN General Assembly in the Declaration of
Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof Beyond the Limits of
National Jurisdiction (Resolution No. 2749 [XXV], December 17, 1970.) It declared that:

1. The sea-bed and ocean floor, and the subsoil thereof, beyond the limits of national jurisdiction (referred to as
area), as well as the resources of the area, are the common heritage of mankind;

2. The area shall not be subject to appropriation by any means by states of persons, natural or
juridical, and no state shall claim sovereignty or sovereign rights over any part thereof;

3. The area shall be open to use exclusively for peaceful purposes by all states, whether coastal or
landlocked, without discrimination;

4. The exploration of the area and the exploitation of its resources shall be carried out for the benefit
of mankind as a whole.

1. “Freedom of the high seas” view considers the deep seabed and the subsoil as part of the freedom
of the high seas that are open for exploration and exploitation by any state but not subject to exclusive
claims or appropriation;

2. “Res nullius view” regards the sea bed and the subsoil as owned by no one and may be explored
and exploited by the first state which claims the area to the exclusion of other states. [Sarmiento, 2007]

46
What is an island?

Under Article 121 of the LOS, an island is a naturally formed area of land, surrounded by water, which is
above water at high tide. It can have its own territorial sea, exclusive zone and continental shelf. However, rocks
“which cannot sustain human habitation or economic life” only have a territorial sea.

Artificial islands or installations are not islands in the sense of Article 121. But coastal states may establish
safety zones around artificial islands and prescribe safety measures around them. (Art. 60{4} and {5}) [Bernas, 2009]

What are high seas?

They are all parts of the sea that are not included in the territorial sea or in the internal waters of a State.
(Article 1, Geneva Convention)

The high seas are subject to six freedoms:

1) Freedom of navigation;

h. Freedom of overflight;

i. Freedom of fishing;

j. Freedom to lay submarine cables and pipelines;

k. Freedom to construct artificial islands and structures; and

l. Freedom of scientific research.

What is hot pursuit ?

Under Article 111 of the LOS, hot pursuit of a foreign vessel is allowed where there is good reason to believe
that the ship has violated laws or regulations of a coastal state. The pursuit must start when the foreign vessel is
within the internal waters, the archipelagic waters, the territorial waters or the contiguous zone of the pursuing state.
Without being interrupted, the pursuit may continue into the high seas. If the foreign vessel is in the contiguous zone,
it may be pursued only for violations of the rights of the coastal state in the contiguous zone.

Hot pursuit also applies to violations of applicable laws and regulations of the coastal state in the exclusive
economic zone of the continental shelf including the safety zones of the shelf.

It must stop as soon as the ship pursued enters the territorial waters of its own state or of a third state.

It may be carried out only by warships or military aircraft, or any other ship or aircraft properly marked for that
purpose. [Bernas, 2009]

What is the aerial domain?

It is the airspace above the terrestrial domain and the maritime and fluvial domain of the state to an
unlimited altitude but not including outer space.

Every State “has complete and exclusive sovereignty over the airspace above its territory”. (Paris
Convention on Aerial Navigation; and Chicago Convention on International Civil Aviation) [Cruz, 2000]

What is the authority of a State over the airspace above the high seas?

The airspace above the high seas shall be free from the control or sovereignty of any state. [Sarmiento,
2007]

What are the five air freedoms?

1. Overflight or the privilege to fly across its territory without landing;

2. Non-traffic landing or the privilege to land for non-traffic purposes;

47
 3. Putting down traffic or the privilege to put down passengers, mail and cargo taken on in the territory
of the State whose nationality the aircraft possesses;

4. Picking up traffic or the privilege to take on passengers, mail and cargo destined for the territory of
the State whose nationality the aircraft possesses; and

5. International traffic or the privilege to take on passengers, mail and cargo destined for the territory
of any other contracting State and the privilege to put down passengers, mail and cargo coming from any
such territory. [Ibid]

What is outer space?

It is the region beyond the earth’s atmosphere and is not subject to the jurisdiction of any state.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all
states without discrimination of any kind, on a basis of equality and in accordance with international law.

It is not subject to national appropriation by claim of sovereignty, by means of use or occupation or by any
other means. [Cruz, 2000]

Which state shall retain jurisdiction and control over launched into outer space?

The State launching an object into outer space shall retain jurisdiction and control over such object, and over
any personnel thereof, while in outer space or on a celestial body. [Ibid]

Which State shall be internationally liable for any damage that may be caused by such object to another state
or to any person?

It shall be the state launching the object into outer space.

CHAPTER 6

Jurisdiction of States

What is jurisdiction?

It is the authority exercised by a state over persons and things within or sometimes outside its territory,
subject to certain exceptions. (Cruz, 2000)

Jurisdiction also means the authority to affect legal interests. With respect to the powers of the government,
jurisdiction can be: 1) jurisdiction to prescribe norms of conduct (legislative jurisdiction; 2) jurisdiction to enforce the
norms prescribed (executive jurisdiction), and 3) jurisdiction to adjudicate (judicial jurisdiction). [Bernas, 2009]

What may be subject to the jurisdiction of a state?

Jurisdiction may be exercised by a state over:

1. its nationals;

- the terrestrial domain;

- the maritime and fluvial domain;

- the continental shelf;

- the open seas;

- the aerial domain;

- outer space; and

48
 - other territories. (Cruz, 2000)

What are the two kinds of jurisdiction? (Cruz, 2000)

It can be generally classified as personal and territorial.

1) Personal jurisdiction

It is the power exercised by a state over its nationals and is based on the theory that a national is entitled to
the protection of his state wherever he may be and is, therefore, bound to it by a duty of obedience and allegiance.

Such duty follows the national even when he is outside the territory of his state and he may not ordinarily be
excused from it unless he is prepared to renounce his own nationality.

The fact that personal jurisdiction is not easy to enforce does not detract from the legal power possessed by
the state over its nationals abroad.

Examples of the assertion of its personal jurisdiction by the Philippines are found in the following provisions
of laws:

Article 15 of the New Civil Code which provides that “laws relating to family rights and duties, or to the
status, condition and legal capacity of persons, are binding upon citizens of the Philippines, even though living
abroad.”

Article 16 of the New Civil Code which states that “intestate and testamentary succession, both with
respect to the order of succession and to the amount of successional rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country wherein said property may
be found.”

Section 21 of the Revised Internal Revenue Code provides for jurisdiction to tax Filipino citizens , even if
not residing in the Philippines for income received by them from all sources. (Cruz, 2000)

However, international law limits itself to criminal rather than civil jurisdiction which is a subject for private
international law or conflicts of law.

What are the principles of criminal jurisdiction? (Bernas, 2009)

The following are the five principles of criminal jurisdiction:

a) The Territoriality Principle

Sovereignty over territory is the fundamental source of jurisdiction. A state has absolute, but not necessarily
exclusive, power to prescribe, adjudicate and enforce rules for conduct that occurs within its territory. Thus, it is vital
that boundaries be determined.

How does the Third Restatement summarize the rules on boundaries where states are not islands
but parts of a larger land mass?

The rules are summarized as follows:

1. The boundary separating the land areas of two states is determined by acts of the states
expressing their consent to its location.

- Unless a consent to a different rule has been expressed,

a. When the boundary between two states is a navigable river, its location is the middle of the channel
of navigation (Thalweg doctrine);

6. When the boundary between two states is a non-navigable river or a lake, its location is the middle
of the river or lake.

What is the so-called “effects doctrine”?

49
 It is an aspect of the territoriality principle. Under this doctrine, a state also has jurisdiction over acts
occurring outside its territory but having effects within it. This doctrine consists of two principles:

1. Subjective territorial principle

Under this principle, a state has jurisdiction to prosecute and punish for crime commenced within the state
but completed or consummated abroad.

h. Objective territorial principle

It says that a state has jurisdiction to prosecute and punish for crime commenced outside the state but
consummated within its territory.

2. The Nationality Principle

Under this principle, every state has jurisdiction over its nationals even when those nationals are outside
the state.

As to corporations, a state has jurisdiction over corporations organized under its laws. Many states assert
jurisdiction over corporations whose principal place of business or registered office is located in their territories.
Although still a controversial practice, states have also sought to regulate corporations organized or having their
principal place of business abroad when these corporations are owned or controlled by nationals. Still more
controversial, are multi-national corporations which register various addresses for different purposes.

A state has jurisdiction over vessels flying its flag. But flags of convenience might be challenged on the
ground of lack of sufficient link. This principle is generally applicable to aircraft and spacecraft.

Stateless persons or those who do not have a nationality are either de jure or de facto. De jure stateless
persons are those who have lost their nationality, if they had one, and had not acquired a new one. De facto
stateless are those who had nationality but to whom protection is denied by their state when out of the state.

Though not protected by any state, stateless persons are protected against violation of their human rights
through adherence to generally accepted principles of international law and observance of treaty obligations. (Mejoff
vs Director of Prisons, 90 Phil 70, 1951)

3. The Protective Principle

In accordance with this principle, a state may exercise jurisdiction over conduct outside its territory that
threatens its security, as long as that conduct is generally recognized as criminal by states in the international
community. (Restatement 402{3}) This conditional clause does not include acts committed in the exercise of the
liberty guaranteed an alien by the law of the place where the act was committed. [Bernas, 2009]

What are the examples of acts covered by this principle?

These include plots to overthrow the government, forging its currency, and plot to break its immigration
regulations. (Joyce vs Director of Public Prosecutions, House of Lords 1946)

What is the limitation on the application of the protective principle?

The principle shall only be applicable to those offenses posing a direct, specific threat to national security.
(US vs Yunis 681 F. Supp.896 {1998})

4. The Universality Principle

This principle recognizes that certain activities, universally dangerous to states and their subjects, require
authority in all community members to punish such acts wherever they may occur, even absent a link between the
state and the parties or the acts in question. This principle started with piracy.

What are the crimes covered by this principle?

These include piracy, genocide, crimes against humanity, war crimes, aircraft piracy and terrorism. There is
also a growing support for universal jurisdiction over crimes against human rights.

50
 What is piracy?

In international law, it means any illegal act of violence or depredation committed for private ends on the
high seas or outside the territorial control of any state.

What is genocide?

Under Article 6 of the Statute of the International Criminal Court, it means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a) Killing members of the group;

4. Causing serious bodily or mental harm to members of the group;

5. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;

6. Imposing measures intended to prevent births within the group;

7. Forcibly transferring children of the group to another group.

What are crimes against humanity?

Under Article 7 of the Statute of the ICC, it means any of the following acts when committed as part of a
wide-spread or systematic attack directed against any civilian population, with knowledge of the attack:

i. Murder;

3. Extermination;

4. Enslavement;

5. Deportation or forcible transfer of population;

6. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of

international law;

7. Torture;

8. Rape; sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity;

9. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any act referred to in this paragraph or any crime
within the jurisdiction of the Court:

10. Enforced disappearance of persons;

11. The crime of apartheid;

12. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health.

What are war crimes?

It means grave breaches of the Geneva Conventions of August 12, 1949, which are any of the acts
enumerated under Article 8 of the ICC Statute against persons or property protected under the provisions of the
relevant Geneva Convention.

51
 What is terrorism?

Any other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking
an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context,
is to intimidate a population, or to compel a Government or an international organization to do or abstain from doing
any act. (UN General Assembly Resolution No 54/109 adopted on February 25, 2000 entitled The International
Convention for the Suppression of the Financing of Terrorism) [Sarmiento, 2007]

5. The Passive Personality Principle

Under this principle, a state may apply law – particularly criminal law – to an act committed outside its
territory by a person not its national where the victim of the act was its national.

This principle has not been ordinarily accepted for ordinary torts or crimes, but it is increasingly accepted as
applied to terrorist and other organized attacks on a state’s nationals by reason of their nationality, or to assassination
of a state’s diplomatic representatives or other officials.

What are the three modes of resolving conflict of jurisdiction?

They include the following:

1. The balancing test (Timberlane Lumber Co. vs Bank of America, 549 F2d 597)

13. International comity (Hartford Fire Insurance Co. vs California, 509 US 764, 1993)

14. Forum non conveniens (Piper Aircraft Co. vs Reyno, 454 US 235, 1981)

2. Territorial jurisdiction (Cruz, 2000)

As a general rule, a state has jurisdiction over all persons and property within its territory. The jurisdiction of
the nation within its own territory is necessary, exclusive and absolute. It is susceptible of no limitation not imposed
by itself.

1. Land Jurisdiction

Subject to exceptions, everything found within the terrestrial domain of the state is under its jurisdiction.
Nationals and aliens, including non-residents, are bound by its laws, and no process from a foreign government can
take effect for or against them within the territory of the local state without its permission

As against all other states, the local state has exclusive title to all property within its territory, which it may
own in its own corporate capacity or regulate when under private ownership through its police power or forcibly
acquire through the power of eminent domain and be subject to its taxing power.

2. Maritime and fluvial jurisdiction

Generally, the internal waters of a state are assimilated to the land mass and subjected to the same degree
of jurisdiction exercised over the terrestrial domain. This rule covers the so-called enclosed waters, such as the
land-locked lakes, national rivers and man-made canals.

Civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels wherever
they may be, provided they are not engaged in commerce. Foreign merchant vessels docked in a local port or bay
are under the jurisdiction of the coastal state in civil matters but criminal jurisdiction is determined according to either
the English rule or French rule.

The jurisdiction of the state over its interior waters is more exclusive than that which it exercises over its
territorial waters. Subject only to a few exceptions, it is the right of the coastal state to enforce all its laws to the full
extent in its territorial waters and in proper cases to bar both public and merchant foreign vessels from entering the
same. It may even use force, if necessary, to prevent any encroachment on its territorial integrity.

Under the archipelago doctrine espoused by the Philippines, “the waters around, between and connecting
the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the

52
Philippines.” Being internal waters, they are subject to the exclusive jurisdiction of the Philippines. Although this
claim has been substantially accepted in the 1982 Convention on the Law of the Sea, it has been provided that
archipelagic sea lanes are to be laid on these waters over which foreign ships will have the right of passage as if they
were open sea.

Thus, a foreign vessel need not go around our internal waters but may use these archipelagic sea lanes in
negotiating the distance from one point of the open sea to another.

3. “Protective jurisdiction” over contiguous zone

This claim of some states has been confirmed by the Convention on the Territorial Sea and Contiguous
Zone, where it is provided that “in a zone of the high seas contiguous to its territorial sea, the coastal state may
exercise the control necessary to: prevent infringement of its customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea; and punish infringement of the above regulations within its territory or territorial
sea.

4. Jurisdiction over continental shelf

The coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources
and for this purpose it may erect on its installations and equipment as may be necessary.

However, this right shall not affect the legal nature of the superjacent waters as open seas or of the airspace
above such waters and their use as such by other states shall not be impaired or disturbed.

The coastal states is allowed to establish on the open seas immediately above the installations a safety
zone with a radius of 500 meters over which it may exercise jurisdiction for the protection of its properties underneath.

What if the coastal state does not exercise its right to explore the continental shelf or exploit its
resources?

Since this right is exclusive to the coastal state, if the latter does not explore the continental shelf or exploit
its natural resources, no one may undertake these activities or make a claim to the continental shelf without the
consent of the coastal state.

5. Jurisdiction over the EEZ or patrimonial sea

All living and non-living resources found therein belong exclusively to the coastal state.

6. Jurisdiction over the open seas

Open seas or high seas are res communes and available to the use of all states for purposes of navigation,
flying over them, laying submarine cables or fishing. In times of war, hostilities may be waged on the open seas.

In what instances may a state exercise jurisdiction on the open seas?

- Over its vessels

The flag state has jurisdiction over its public vessel at all times, whether they be in its own territory, in the
territory of other states or on the open areas. Such jurisdiction is exercised over merchant vessels when the latter
are within its territory, when jurisdiction is waived or cannot be exercised by the territorial sovereign, or when such
vessels are on the open seas.

6. Over pirates

Being enemies of mankind, pirates may be captured on the open seas by the vessels of any state, to whose
territory they may be brought for trial and punishment. Where a pirate vessel attempts to escape into the territorial
waters of another state, the pursuing vessel may continue the chase but is obliged of turning over the pirates, when
captured, to the coastal state authorities. Piracy is committed for private ends, not political motives thus insurgents,
may not be treated as pirates.

7. In the exercise of the right of visit and search

53
 Under the laws of neutrality, the public vessels or aircraft of a belligerent state may visit and search any
neutral merchant vessel on the open seas and capture it if it is found or suspected to be engaged in activities
favorable to the other belligerent.

8. Under the doctrine of hot pursuit

If a foreign merchant vessel committed an offense within the territorial waters of the coastal state, its own
vessels may pursue the offending vessel into the open sea and upon capture bring it back to its territory for
punishment.

The hot pursuit to be lawful must be begun before the offending vessel has left the territorial waters, or the
contiguous zone of the coastal state with respect to violation of rights enforceable thereon. The pursuit must also be
continuous or unabated; otherwise, it will be deemed to have “cooled” and can no longer be resumed.

1. Aerial jurisdiction

It is a generally accepted principle that the local state has jurisdiction over the airspace above it to an
unlimited height, or at the most up to where outer space begins. Thus, no foreign aircraft, civil or military, may pass
through the aerial domain of a state without its consent.

What is the extent of jurisdiction of the state of registration of the aircraft?

Under the Convention on Offenses and Certain Other Acts Committed on Board Aircraft (September 14,
1963), the state of registration of the aircraft has jurisdiction over offenses and acts committed on board while it is in
flight or over the high seas or any other area outside the territory of any state.

What are the exceptions to this rule?

Other states may exercise jurisdiction over such aircraft when:

1. The offense has effect on the territory of such state;

12. The offense has been committed by or against a national or permanent resident of such state;

13. The offense is against the security of such state;

14. The offense consists of a breach of any rules or regulations relating to the flight or maneuver of
aircraft in force in such state;

15. The exercise of jurisdiction is necessary to ensure the observance of any obligation of such state
under a multilateral international agreement.

1. Outer space

Outer space or the region beyond the earth’s atmosphere, like open seas, is not subject to the jurisdiction of
any state.

Outer space, including the moon and other celestial bodies, shall be free for exploration and use by all
states without discrimination of any kind, on the basis of equality and in accordance with international law. But they
are not subject to national appropriation by claim of sovereignty, by means of use, occupation or any other means.

A state launching an object into outer space shall retain jurisdiction and control over such object, and over
any personnel thereof, while in outer space or on celestial body.

Such state shall be internationally liable for any damage that may be caused by such object to another state
or to any person.

54
 2. Other territories

When may a state extend its jurisdiction beyond its territory and over territory not falling under its
sovereignty by virtue of customary or conventional international law?

1. Through assertion of its personal jurisdiction over its nationals abroad or the exercise of its right to
punish certain offenses committed outside its territory against its national interests even if the offenders are
non-resident aliens.

2. On the basis of its relations with other states or other territories, as when it establishes a colonial
protectorate, or administers a trust territory, or occupies enemy territory in time of war.

3. When the local state waives jurisdiction over persons and things within its territory. Example is the
jurisdiction of sending state over its army sent to foreign shores. Another example are the exceptions to the
English and French rules on criminal jurisdiction over foreign merchant vessels.

4. Through acquisition of extraterritorial rights.

What is the distinction between exterritoriality and extraterritoriality?

Exterritoriality refers to the exemption of persons and property from the local jurisdiction on the basis of
international custom whereas extraterritoriality applies only to persons and is based on treaty or convention.
Because of the rise of nationalism and the sovereign equality of states, extraterritoriality has become discredited.
However, exterritoriality remains a respected principle of international law as illustrated by the immunities of the head
of state in a foreign country.

5. Through the enjoyment of easements or servitudes, such as the easement of innocent passage or
the easement or arrival under stress. (Portuguese Enclaves Case)

CHAPTER 7

Immunity from Jurisdiction

Immunity from Jurisdiction

What is the general rule on the jurisdiction of a state within its territory?

The jurisdiction of a state within its territory is complete and absolute.

What are the two categories of exceptions to this rule?

- Sovereign immunity

1. Immunity of the head of state

- Immunity of the state itself

- Immunity of the representative of states or diplomatic and consular immunities (Bernas, 2009)

Immunity of head of state

Does the immunity of a head of state apply when the subject of the suit is a private matter?

Yes, in the case of Mighell vs Sultan of Johore, the case for breach of promise to marry filed against the
Sultan of Johore was dismissed upon verification of his being a sitting foreign sovereign. The immunity that is
recognized is absolute for a sitting head of state. (1 QB 148, 1894)

Is this immunity still available to an individual who is no longer a head of state?

Yes, as held in the Pinochet Case, a former head of state enjoys immunity ratione materiae in relation to
acts done by him as head of state as part of his official functions as head of state.(March 24, 1999, House of Lords)

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State Immunity

What is the traditional rule of State Immunity?

It exempts a state from being sued in the courts of another State without its consent or waiver. This rule is a
necessary consequence of the principles of independence and equality of States. (USA vs Ruiz, May 22, 1985)

What is the restrictive application of State Immunity?

There is a need to distinguish the activities of states into sovereign and governmental acts (jure imperii) and
private, commercial and proprietary acts (jure gestionis). State immunity now extends only to acts jure imperii. This
application of State immunity is now the rule in the US, UK and other states in western Europe.

The restrictive application of State immunity is proper only when the proceedings arise out of commercial
transactions of the foreign sovereign, its commercial activities or economic affairs. It does not apply where the
contract relates to the exercise of its sovereign functions. (Ibid)

May the mere entering into a contract by a foreign State with a private party be construed as the
ultimate test of whether or not it is an act jure imperii or jure gestionis?

The act of entering into a contract by a foreign state with a private party cannot be construed as the ultimate
test of whether or not it is an act jure imperii or jure gestionis. Such act is only the start of the inquiry if the foreign
state is engaged in the regular conduct of a business. If the foreign state is not engaged regularly in a business or
commercial activity, the particular act or transaction must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii. (Republic of Indonesia vs Vinzon June 26,
2003)

What are the examples of acts of foreign states that had been considered as an act jure imperii by
the Supreme Court?

1. The conduct of public bidding for the repair of a wharf at a US Naval station. The projects are an
integral part of the naval base which is devoted to the defense of both the US and the Philippines, a function
of the government of the highest order; they are not utilized for nor dedicated to commercial or business
purposes.(USA vs Ruiz, 136 SCRA 487, 1987)

2. Entering into a Maintenance Agreement by Indonesia for specified equipment at its Embassy like
air conditioning units, generator sets, electrical facilities, water heaters, and water motor pumps. The SC
held that the establishment of a diplomatic mission is an act jure imperii. The State may enter into contracts
with private entities to maintain the premises, furnishings and equipment of the embassy and the living
quarters of its agents and officials. (Republic of Indonesia vs Vinzon, June 26, 2003)

Cite examples of acts of foreign states that had been considered as an act jure gestionis by the
Supreme Court?

Hiring of a cook in the recreation center catering to American servicemen and the general public at the John
Hay Air Station in Baguio City and the bidding for the operation of barber shops in Clark Air Base in Angeles City (US
vs Rodrigo, 182 SCRA 644, 1990)

Can there be a claim of immunity when the acts of a state official were committed outside the scope
of authority and contrary to law?

In US vs Reyes, it was held that immunity does not extend to a “public official who is made to account in his
capacity as such for acts contrary to law and injurious to the rights of plaintiff… The rationale for this ruling is that the
doctrine of state immunity cannot be used as an instrument for perpetrating an injustice.” (March 1, 1993)

How should a state claiming sovereign immunity proceed?

When a state or international agency wishes to plead sovereign or diplomatic immunity in a foreign court, it
requests the Foreign Office of the state where it is sued to convey to the court that said defendant is entitled to
immunity. (The Holy See vs RTC December 1, 1994)

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 In the Philippines, the practice is for the foreign government or the international organization to first secure
an executive endorsement of its claim of sovereign or diplomatic immunity. (Bernas, 2009)

What is the proper course of action that may be taken by a party aggrieved by the acts of a foreign
sovereign enjoying immunity?

He can ask his own government to espouse his cause through diplomatic channels. (Ibid)

Explain the process of “suggestion”.

It is the procedure followed in the United States where the foreign state or the international organization
sued in an American court requests the Secretary of State to make a determination as to whether it is entitled to
immunity. If the Secretary of State finds that the defendant is immune from suit, he, in turn, asks the Attorney
General to submit to the Court a “suggestion” that the defendant is entitled to immunity.

In England, a similar procedure is followed, only the Foreign Office issues a certification to that effect instead
of submitting a “suggestion”. (Sarmiento, 2007)

What is the practical justification for the doctrine of sovereign immunity?

The practical justification for the doctrine of sovereign immunity is that there can be no legal right against the
authority that makes a law on which the right depends. In the case of foreign States, the rule is derived from the
principle of the sovereign equality of States, as expressed in the maxim par in parem non habet imperium. All states
are sovereign equals and cannot assert jurisdiction over one another. A contrary attitude would “unduly vex the
peace of nations.” (Sanders vs Veridiano II, 162 SCRA 88, 1988)

What are the exceptions to the Doctrine of State Immunity?

Under the UN Convention on the Jurisdictional Immunities of States and their Property, the defense of State
Immunity is not applicable in the following cases:

1. When there is waiver of State immunity (Art. 7);

- If the State itself has instituted the proceedings (Art. 8);

- Any counterclaim out of the same legal relationship or facts as the claim presented by the State
(Art. 9);

- Commercial transactions with private individuals or entities (State immunity applies to commercial
transactions between States) (Art. 10);

- Death or injury to the person, or damage to or loss of tangible property, caused by an act or
omission which is alleged to be attributable to the State (Art.12);

- Right or interest of the State in movable or immovable property arising by way of succession or
donation (Art. 13);

- Alleged infringement of patent, industrial design, trade name or business name, trade mark,
copyright or any other form of intellectual or industrial property (Art. 14);

- Participation in a company or other collective body, whether incorporated or unincorporated (Art.

15)

- Proceeding which relates to the operation of a ship other than a warship (Art. 16);

- Proceedings involving the effects of an arbitration agreement (Art. 17) (Sarmiento, 2007)

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Diplomatic and consular immunities

How can the diplomatic and consular immunities be described?

They are personal in the sense that they benefit the person but the purpose of the immunities given to the
diplomatic and consular representatives is functional, that is, to enable them to perform their functions properly.
(Bernas, 2009)

Who are diplomats?

They are foreign representatives concerned with the political relations of states. (Ibid)

How does a diplomatic mission commence?

The head of the mission is considered as having taken up his functions in the receiving state either when he
has presented his credential or when he has notified his arrival and a true copy of his credentials has been presented
to the foreign ministry of the receiving state. (Vienna Convention on Diplomatic Relations, 1961, Art VII, Sec 16)

The credentials of the diplomatic agent include chiefly the letter of credence, or letter de creance, by means
of which he is accredited to the receiving State with the request that full faith and credit be given to his official acts on
behalf of the sending state. In addition to this document, the envoy usually carries his diplomatic passport, his official
instructions and a cipher or code book for use in sending secret communications to his government.

Unless the receiving State had previously given its agreement to his appointment, the diplomatic
representative cannot claim the usual privileges and immunities of his office until he is formally accepted. (Cruz,
2007)

What are the functions of a diplomatic mission?

1. Representing the sending State in the receiving State;

7. Protecting in the receiving State the interests of the sending State and of its nationals, within the
limits permitted by international law;

8. Negotiating with the Government of the receiving State;

9. Ascertaining by all lawful means conditions and developments in the receiving State, and reporting
thereon to the Government of the sending State;

10. Promoting friendly relations between the sending State and the receiving State, and developing
their economic, cultural and scientific relations. (Art 3, VCDR)

What is the nature of the diplomatic relations between states?

Diplomatic relations between states are purely by mutual consent. Before the head of the mission is sent to
the receiving state, an agreement must first be obtained. The receiving state is under no obligation to give reasons
for refusing an agreement. (Art. 4) The “receiving State may at any time, and without having to explain its decision,
notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona
non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State
shall, as appropriate, either recall the person concerned or terminate his functions with the mission. A person may be
declared non grata or not acceptable before arriving in the territory of the receiving State.” (Art. 9)

Who are the diplomatic representatives that can enjoy immunities?

a) The “head of the mission” who is the person charged by the sending State with the duty of acting in
that capacity;

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 i. The “members of the mission” are the head of the mission and the members of the staff of the
mission;

j. The “members of the staff of the mission” are the members of the diplomatic staff, of the
administrative and technical staff and of the service staff of the mission;

k. The “members of the diplomatic staff” are the members of the staff of the mission having diplomatic
rank;

l. A “diplomatic agent” is the head of the mission or a member of the diplomatic staff of the mission;

m. The “members of the administrative and technical staff” are the members of the staff of the mission
employed in the administrative and technical service of the mission;

n. The “members of the service staff” are the members of the staff of the mission in the domestic
service of the mission;

o. A “private servant” is a person who is in the domestic service of a member of the mission and who
is not an employee of the sending State;

p. The “premises of the mission” are the buildings or parts of buildings and the land ancillary thereto,
irrespective of ownership, used for the purposes of the mission including the residence of the head of the
mission. (Art. 1)

What are the privileges and immunities of diplomatic missions under the Vienna Convention on
Diplomatic Relations?

1. The right to use the flag and emblem of the sending State on the premises of the mission, including
the residence of the head of the mission, and on his means of transport. (Art 20)

8. The premises of the mission shall be inviolable. The agents of the receiving State may not enter
them, except with the consent of the head of the mission. The premises of the mission, their furnishings and
other property thereon and the means of transport of the mission shall be immune from search, requisition,
attachment or execution. (Art 22)

9. Exemption from all national, regional or municipal dues and taxes in respect of the premises of the
mission, whether owned or leased, other than such as represent payment for specific services rendered. (Art
23)

10. The archives and documents of the mission shall be inviolable at any time and wherever they may
be. (Art 24)

11. The receiving State shall permit and protect free communication on the part of the mission for all
official purposes, including diplomatic couriers and messages in code or cipher. (Art 27[1])

12. The official correspondence of the mission shall be inviolable. (Art 27[2])

13. The diplomatic bag shall not be opened or detained. (Art 27[3])

14. The fees and charges levied by the mission in the course of its official duties shall be exempt from
all dues and taxes. Art 28)

Does the Constitutional provision against alienation of lands to foreigners apply to alienations of the
same in favor of foreign governments to be used as chancery or residence of its diplomatic representatives?

No, it does not. Article 21 of the Vienna Convention on Diplomatic Relations provides that “the receiving
State shall either facilitate the acquisition on its territory, in accordance with its laws, by the sending State of premises

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necessary for its mission or assist the latter in obtaining accommodation in some other way. It shall also, where
necessary, assist missions in obtaining suitable accommodation for their members.”

What are the privileges and immunities of diplomatic agents?

1. The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention. (Art 29);

2. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission. (Art 30);

3. Immunity from the criminal jurisdiction of the receiving State (Art 31[1]);

4. A diplomatic agent is not obliged to give evidence as a witness. (Art 31[2]);

5. A diplomatic agent shall with respect to services rendered for the sending State be exempt from
social security provisions which may be in force in the receiving State. (Art 33);

6. Exemption from all dues and taxes, personal or real, national, regional or municipal (Art 34);

7. Exemption from all personal services, from all public service of any kind whatsoever (Art 35);

8. Exemption from all customs duties, taxes, and related charges (Art 36).

Are diplomatic agents also entitled to immunity from civil and administrative jurisdiction of the
receiving State?

Yes, diplomats shall enjoy immunity from its civil and administrative jurisdiction, except in the case of:

1) A real action relating to private immovable property situated in the territory of the receiving State, unless he
holds it on behalf of the sending State for the purposes of the mission;

15. An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;

16. An action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions. (Art. 31[1])

Can an action for recovery of property filed against a foreign ambassador who failed to pay rentals
for a leased personal vacation home, prosper?

Yes, the action can prosper. An ambassador does not enjoy immunity from civil and administrative
jurisdiction in the case of a real action relating to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission. (Art 31) (Sarmiento, 2007)

In the same action for recovery of property, can the plaintiff ask for attachment?

No, plaintiff cannot ask for attachment. The properties of an Ambassador shall be inviolable (Art 30).
Furthermore, Section 4 of RA No 75 states that any writ or process whereby

The person of any ambassador or public minister of any foreign State, authorized and received as such by
the President, or any domestic servant of any such ambassador or minister is arrested or imprisoned, or his goods or
chattels are distrained, seized, or attached, shall be deemed void. (Sarmiento, 2007)

Can the plaintiff in the above action stop the departure of the foreign ambassador from the receiving
State?

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 The plaintiff cannot stop the departure of the ambassador as the person of the diplomatic agent shall be
inviolable and he shall not be liable to any form of arrest or detention. (Art 29)

What are the privileges and immunities of the members of the administrative and technical staff of
the mission?

Members of the administrative and technical staff of the mission, together with members of their families
forming part of their respective households, shall, if they are not nationals of or permanently resident in the receiving
State, be entitled to the same privileges and immunities, except that the immunity from civil and administrative
jurisdiction of the receiving State shall not extend to acts performed outside the course of their duties. (VCDR, Art
37[2]) (Sarmiento, 2007)

What are the privileges and immunities of the members of the service staff of a diplomatic mission?

Members of the service staff of the mission who are not nationals or permanently resident in the receiving
State shall enjoy immunity in respect of acts performed in the course of their duties. They shall also enjoy exemption
from dues and taxes on the emoluments they receive by reason of their employment. (VCDR, Art 37[3]) (Ibid)

What are the privileges and immunities of the private servants of members of a diplomatic mission?

Private servants of members of the mission shall, if they are not nationals of or permanently resident in the
receiving State, be exempt from dues and taxes on the emoluments they receive by reason of their employment. In
other respects, they may enjoy privileges and immunities only to the extent admitted by the receiving State.
However, the receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere
unduly with the performance of the functions of the mission. (VCDR, Art 37[4]) (Sarmiento, 2007)

What are the privileges and immunities of diplomatic agents, other members of the staff of the
mission and private servants who are nationals or permanent residents of the receiving State?

Except in so far as additional privileges and immunities may be granted by the receiving State, a diplomatic
agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and
inviolability, in respect of official acts performed in the exercise of his functions. Other members of the staff of the
mission and private servants who are nationals of or permanently resident in the receiving State shall enjoy privileges
and immunities only to the extent admitted by the receiving State. (VCDR, Art.38) (Ibid)

Does the immunity of a diplomatic agent from the jurisdiction of the receiving State also exempt him
from the jurisdiction of the sending State?

No, he will always be subject at all times to the jurisdiction of his State.(VCDR, Art. 31[4]) (Ibid)

Is the personal baggage of a diplomatic agent subject to customs check and inspections?

No, the personal baggage of a diplomatic agent shall be exempt from inspection, unless there are serious
grounds for presuming that it contains articles that are neither for the official use of the diplomatic mission nor for the
personal use of the diplomatic agent or members of his family forming part of his household, or articles the import or
export of which is prohibited by the law or controlled by the quarantine regulations of the receiving State. In any
case, such inspection shall be conducted only in the presence of the diplomatic agent or of his authorized
representative. (VCDR, Art. 36[2]) (Ibid)

May the immunity of diplomatic agents from the jurisdiction of the receiving State be waived?

The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article 37 may
be waived by the sending State. (VCDR, Art 32[1]) (Bernas, 2009)

May the waiver of immunity of diplomatic agents from the jurisdiction of the receiving State be
impliedly waived?

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 As a general rule, waiver of diplomatic immunity must always be express. However, the initiation of
proceedings by a diplomatic agent shall preclude him from invoking immunity from jurisdiction in respect of any
counterclaim directly connected with the principal claim. (VCDR, Art.32) (Sarmiento, 2007)

Does waiver of diplomatic immunity include consent to the execution of an adverse judgment
against the diplomatic agent?

No, a separate waiver is necessary for the execution of an adverse judgment against a diplomatic agent.
Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be held to imply waiver
of immunity in respect of the execution of the judgment. (VCDR, Art. 32[4])

Are members of the family of a diplomatic agent entitled to the privileges and immunities accorded
to diplomatic agents?

Yes, provided they form part of the household of the diplomatic agent and they are not nationals of the
receiving State. (VCDR, Art 37[1])

What are the duties of all persons enjoying such privileges and immunities?

It is their duty to respect the laws and regulations of the receiving State (Art. 41) and not to practice for
personal profit any professional or commercial activity in the receiving State (Art 42)

When shall a person entitled to privileges and immunities enjoy them?

He shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up
his post or, if already in its territory, from the moment when his appointment is notified to the Ministry for Foreign
Affairs or such other ministry as may be agreed. (VCDR, Art 39[1]) (Bernas, 2009)

When shall such privileges and immunities cease?

When the functions of a person enjoying privileges and immunities have come to an end, such privileges
and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period
in which to do so, but shall subsist until that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the mission, immunity shall continue to
subsist. (VCDR, Art 39[2]) (Bernas, 2009)

Consuls and consular immunities

Who are consuls?

They are foreign representatives who attend to administrative and economic issues such as the issuance of
visas. They are not concerned with political matters. (Ibid)

How is the head of a consular mission admitted to the exercise of his functions?

After being given the letter patent or lettre de provision, which is the commission issued by the sending
State, he is admitted as head of a consular mission by an authorization from the receiving State termed as
exequatur. There is no prescribed form, but without it, he may not enter upon his duties. The receiving State may at
any time notify the sending State that a consular officer is persona non grata or that any other member of the
consular staff is not acceptable. In that event, the sending State shall, as the case may be, either recall the person
concerned or terminate his functions with the consular post. (Ibid)

What are the functions of consuls?

The functions of consuls may be divided into duties pertaining to commerce and navigation, duties
respecting the issuance of passports and visas, and duties of protection of nationals. (Cruz, 2000) (VCCR, Art. 5[a-
m])

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 What are the duties of the receiving State with respect to a consular mission?

The receiving State has the duty to protect the consular premises, archives and interests of the sending
state. ( Vienna Convention on Consular Relations, Arts 27, 31, 32, 33) The receiving State must insure the
unimpeded functioning of the consular offices. (Ibid)

What are the privileges and immunities of consular officers?

a) Consular officers shall not be liable to arrest or detention pending trial, except in the case of a
grave crime and pursuant to a decision by the competent judicial authority. (VCCR, Art 41)

3. Consular officers and employees shall not be amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in respect of acts performed in the exercise of consular
functions, except in a civil action either:

- Arising out of a contract concluded by a consular officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the sending State; or

9. By a third party for damage arising from an accident in the receiving State caused by a vehicle,
vessel or aircraft (VCCR, Art 43)

a) Members of a consular post are under no obligation to give evidence concerning matters
connected with the exercise of their functions or to produce official correspondence and documents relating
thereto. They are also entitled to decline to give evidence as expert witnesses with regard to the law of the
sending State. (VCCR, Art 44)

4. Consular officers and employees shall also be exempted from registration of aliens and residence
permits, work permits, taxation, custom duties and inspections, and from personal services and contribution.
(Sarmiento, 2007)

Distinguish the privileges or immunities of diplomatic envoys and consular officers from criminal or
civil jurisdiction of the receiving State.

As to criminal jurisdiction, diplomatic envoys shall not be liable to any form of arrest or detention and they
shall enjoy immunity from the criminal jurisdiction of the receiving State. (VCDR, Arts 29, 31) Consular officers, on
the other hand, shall not enjoy immunity from criminal jurisdiction. If criminal proceedings are instituted against a
consular officer, he must appear before the competent authorities. However, they shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision of a competent judicial
authority. (VCCR, Art 41)

As to civil jurisdiction, diplomatic envoys shall enjoy immunity, except in the case of a) a real action relating
to private immovable property situated in the territory of the receiving State, b) an action relating to succession in
which they are involved as a private person and not on behalf of the sending State, c) an action relating to any
professional or commercial activity exercised by the diplomatic envoys in the receiving State outside their official
functions. (VCDR, Art 31) Consular officers, on the other hand, shall also enjoy immunity from civil jurisdiction,
except in respect of a civil action either: a) arising out of a contract concluded by a consular officer in which the officer
acted in his personal capacity; or b) by a third party for damage arising from an accident in the receiving State caused
by a vehicle, vessel or aircraft. (VCCR, Art 43).

May a consul claim immunity from criminal jurisdiction of the local court ?

No, a consul is not entitled to the privileges and immunities of an ambassador or minister, but is subject to
the laws and regulations of the country to which he is accredited. A consul is not exempt from criminal prosecution
for violations of the laws of the country where he resides.

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 Article 41 of the Vienna Convention on Consular Relations provides that if criminal proceedings are
instituted against a consular officer, he must appear before the competent authorities. Consular officers shall not be
liable to arrest or detention pending trial, except in case of a grave crime and pursuant to a decision by the competent
judicial authority. (Sarmiento, 2007)

Who may waive the privileges and immunities of consular officers and employees?

The sending State may waive, with regard to a member of the consular post, any of the privileges and
immunities afforded to the latter. The waiver shall in all cases be express and shall be communicated to the receiving
State in writing. However, the initiation of proceedings by a consular officer or a consular employee in a matter where
he might enjoy immunity from jurisdiction shall preclude him from invoking immunity from jurisdiction in respect of any
counterclaim directly connected with the principal claim. (VCCR, Art. 45) (Ibid)

May the waiver of immunity from jurisdiction for purposes of civil or administrative proceedings
deemed to imply the waiver of immunity from the measures of execution resulting from the judicial decision?

No, a separate waiver shall be necessary for the execution of a judicial decision. (VCCR, Art 45[4])

Immunities of International Organizations

What is the basis of immunity of international organizations?

The basis of immunity of international organizations is the need for the effective exercise of their functions.

What are the bases of immunities and privileges of the UN?

They are Article 105 of the UN Charter, the General Convention on the Privileges and Immunities of the
United Nations (1946) and by the Convention and Privileges of Specialized Agencies (1947).

What are the privileges and immunities of the UN?

1. The Organization, its property and assets wherever located and by whomsoever held, shall enjoy
immunity from every form of legal process except in so far as in any particular case it has expressly waived
its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of
execution; I(Art II, Sec 2)

16. Its premises shall be inviolable. Its property and assets, wherever located and by whomsoever
held, shall be immune from search, requisition, confiscation, expropriation and any other form of
interference. (Art. II, Sec 3)

17. Its archives, and in general all documents belonging to it or held by it, shall be inviolable wherever
located. (Art. II Sec 4)

18. The Organization, its assets, income and other property shall be exempt from all direct taxes,
customs duties and prohibitions and restrictions on imports and exports in respect of articles imported or
exported by the UN for its official use and in respect of its publications. (Art II, Sec 7) – Convention on the
Privileges and Immunities of the UN

What are the privileges and immunities of the Secretary General and other officials of the UN?

1. Immunity from legal process in respect of words spoken or written and all acts performed by them
in their official capacity;

6. Exemption from taxation on the salaries and emoluments paid to them by the UN;

7. Immunity from national service obligations;

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 8. Immunity, together with their spouses and relatives dependent on them, from immigration
restrictions and alien registration;

9. To be accorded the same privileges in respect of exchange facilities as are accorded to the officials
of comparable ranks forming part of diplomatic missions to the Government concerned;

10. To be given, together with their spouses and relatives dependent on them, the same repatriation
facilities in time of international crisis as diplomatic envoys;

11. To have the right to import free of duty their furniture and effects at the time of first taking up their
post in the country in question. (Art V, Sec 18 of the Convention on the Privileges and Immunities of the
United Nations)

What are the privileges and immunities of the representatives of states to the principal and
subsidiary organs of the UN and to conferences convened by the UN?

1. Immunity from personal arrest or detention and from seizure of their personal baggage, and, in
respect of words spoken or written and all acts done by them in their capacity as representatives, immunity
from legal process of every kind;

3. Inviolability for all papers and documents;

4. The right to use codes and to receive papers or correspondence by courier or in sealed bags;

5. Exemption in respect of themselves and their spouses from immigration restrictions, aliens
registration or national service obligations in the state they are visiting or through which they are passing in
the exercise of their functions;

6. The same facilities in respect of currency or exchange restrictions as are accorded to

representatives of foreign governments on temporary official missions;

7. The same immunities and facilities in respect of their personal baggage as are accorded to
diplomatic envoys, and also;

8. Such other privileges, immunities and facilities not inconsistent with the foregoing as diplomatic
envoys enjoy, except that they shall have no right to claim exemption from customs duties on goods
imported (otherwise than as part of their personal baggage) or from excise duties or sales taxes. (Art IV, Sec
11 of the Convention on the Privileges and Immunities of the UN)

The Act of State Doctrine

May the acts of a sovereign power be impugned in the courts of another sovereign country?

It is the doctrine that protects the sovereignty of states by judicial deference to the public acts of a foreign
state done on that state’s territory. Under this doctrine, “the courts of one country will not sit in judgment on the acts
of the government of another, done within its own territory”. (Underhill vs Hernandez)

What is the nature of the act of state doctrine?

It is a rule not of international law but of judicial restraint in domestic law whereby courts refrain from making
decisions in deference to the executive who is the principal architect of foreign relations. (Bernas, 2009)

CHAPTER 8

Lesson 12 International Human Rights Law

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What were the earlier doctrines preceding the developing doctrine on human rights prior to the birth of the
UN?

These include doctrines on humanitarian intervention, state responsibility for injury to aliens, protection of
minorities, League of Nation’s Mandates and Minorities Systems, and international humanitarian law (which is the
human rights law in time of war).

What is the difference between the Asian and Western view on human rights?

The Western view puts emphasis on the individual while Asians give emphasis on the community.

How did the Western tradition on human rights develop?

It has developed from the Natural Law view that certain rights exist as a result of a law higher than positive
or man-made law. This higher law itself emanates from the nature of man which demands certain immunities or
liberties.

This view flourished flourished in the 17 th century and provided a recourse against arbitrary power. Much of
what the Natural Law held has already become part of customary or conventional law and has served as a
counterforce against a positivist emphasis on the importance of the state.

What are the three (3) generations of human rights?

The first generation consists of the traditional civil and fundamental rights; the second generation, social and
economic rights; third generation, right to peace, clean environment, self-determination, common heritage of
mankind, development, minority rights. There is still a dispute about the cultural in human rights.

What distinguishes post WWII developments from earlier human rights tradition?

It is the growing acceptance of the view that the way nations treat people under their jurisdiction is no longer
just a domestic concern but also one that calls for the attention of the international community. This view represents
a chipping away at the old concept of sovereignty and it recognizes that individuals can be subjects of international
law and that they can find protection and remedies within the international community against abuses by their own
government.

What is the role played by the UN in the development of the new international law on human rights?

It became the cradle for the development of the new international law on human rights. However, the UN
Charter's own provisions on human rights were preliminary. They did not make human rights law but they
represented a beginning which later would develop into international law.

What then are the notable defects/flaws in the provisions of the Charter?

In the charter, there are no definitions of human rights, there is no clear commitment of members to avoid
violations, and there is set down no instrument for the correction or vindication of violations of human rights that might
occur. Nations' sensitivity to their sovereignty is reflected in Article 2(7) of the UN Charter. (provision on non-
interference of UN with domestic affairs)

What is the Universal Declaration of Human Rights?

It was adopted and proclaimed by the General Assembly on December 10, 1948. It was not seen as a law
but only as a “common standard” for nations to attempt to reach. Its authority is primarily moral and political.

What is the distinction between a mere declaration and a covenant?

1) The core of an international covenant lies a meeting of minds of the contracting parties on the
specific duties and obligations they intend to assume, and the agreement that the undertakings

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 must be effectively informed. A declaration by contrast admits the presumption that something less
than full effectiveness in terms of law is intended.

2) A covenant leaves nos doubt about the legal nature of the provisions it contains, whereas a
declaration is often deemed to enunciate moral rules only.

3) The vinculum juris created by a covenant generally absent from a declaration, places a duty on the
contracting parties to bring their laws and practices into accord with the accepted international
obligations and not to introduce new laws or practices which would be at variance with such
obligations. (Vratislav Pechota)

How does The Covenant on Civil and Political Rights provide for right to life, liberty and property and
equality?

The Covenant's provision on the right to life in Article 6(1) and its provision on genocide Article 6(4) and the
general guarantee of liberty in Article 9(1) do not go beyond what Article III, Section 1 of the Philippine Bill of Rights
guarantees. The Covenant does not also say when protected life begins, whereas the Philippines protects “the life of
the unborn from conception.”

There is likewise no provision on the right to property in the Covenant though there exists a provision in
Article 17(1) in the Universal Declaration. It has been explained that in such a time “when property rights had lost
much of their previous sanctity, it was inevitable that the Commission would find it difficult to draft a text that would
command general acceptance.” (Pechota)

The Covenant in Article 6(2) expresses a bias for the abolition of the death penalty and allows its imposition,
in countries which still have a death penalty, only after conviction for the most serious crimes. The Covenant adds in
Article 6(6) that “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by
any State Party to the present Covenant.” In fact, in the Second Optional Protocol to the Covenant, signed at the
General Assembly meeting on December 15, 1989, Article 1 says: 1) No one within the jurisdiction of a State Party to
the Present Protocol shall be executed. 2) Each State Party shall take all necessary measures to abolish the death
penalty within its jurisdiction.”

The 1987 Constitution prohibited the imposition of the death penalty unless a new law is passed imposing
death for “heinous crimes.” Congress restored the death penalty for heinous crimes but RA 9346 has since
disallowed it.

Provisions on physical liberty, and arrests and detention found in Articles 8, 9 and 11 of the Covenant are
more than adequately covered by corresponding provisions of the Bill of Rights.

The rights of an accused found in Articles 14 and 15 of the Covenant have long been provided for in the
Philippine accusatory system as found in the Constitution. However, the Covenant in Article 14 is more restrictive in
the matter of publicity of criminal proceedings “where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children.” These standards would not easily pass
the Philippine tests for publicity and free press.

The Covenant also provides in Article 9(5) that a victim of unlawful arrest or detention shall have an
enforceable right to compensation; and in Article 14(6) that a victim of miscarriage of justice “shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable
to him.” The Philippine Constitution only asks compensation in Section 12(4) of the Bill of Rights where the
legislature is asked to compensate violations of rights of a person under investigation.

The guarantee of equality found in Article 26 of the Covenant is the Bill of Rights' more terse “equal
protection””clause in Article III, Section 1. The guarantee is of legal equality. It does not embody the aspiration
towards lesser material inequality.

How does the Covenant provide for torture, ill-treatment and prison conditions?

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 Articles 7 and 10 of the Covenant prohibit torture and other forms of ill-treatment that offend not only against
bodily integrity but also against personal dignity and the requirement of humane prison conditions.

The UN Human Rights Commission has expressed the view that imprisonment “ïn conditions seriously
detrimental to a prisoner's health” constitutes violations of Articles 7 and 10(1) of the Covenant.

What are three rights that constitute freedom of movement under the Convention and what are the
limitations to these rights?

These are found in Articles 12(1) and (2) and these include the rights to travel within the country, the right to
leave the country and the right to change one's residence. The limitations on these three rights are found in Article
12(3) and consist of “”those provided by law, are necessary to protect national security, public order (ordre public),
public health or morals or the rights and freedoms of others, and are consistent with the other rights in the present
Covenant.”

They are similar to the limitations found in the Philippine Bill of Rights except that unlike the Philippine
provision, it does not require a court order for impairment of liberty of abode.

The Covenant unlike the Philippine Constitution, in Article 12(4) separates the right to return to one's country
from the right to leave one's country. The limit to the right to return to one's country in the Covenant is implied in the
word “arbitrarily”. “No one shall be arbitrarily deprived of the right to enter his own country.”” The Covenant intends to
make the limitation more narrow than for the right to leave the country since exile is now prohibited by customary law
and the prohibition of exile may even be jus cogens.

How did the Philippine Supreme Court interpret the separation of the right to leave one's country and the
right to return to one's country?

The Court's argument was that since the Declaration of Human Rights and the Covenant on Human Rights
separate the right to leave the country from the right to return to one's country, the two rights are distinct and the right
to return to one's country is not guaranteed by the specific guarantees for the right to travel and liberty of abode and
that therefore President Marcos could not appeal to Section 6 of the Bill of Rights. The vote was 8 to 7.

Distinguish “having a legal personality” from “having a capacity to act.”

Legal personality belongs to all, whether citizens or aliens while capacity to act may not be available to
some by reason, for instance of infancy, minority, or insanity.

What is meant by the guarantee to protect the right to be recognized as a person before the law, in Article 16
of the Covenant?

The guarantee in its fullness means that state parties must “treat every human being everywhere, male or
female, young or old, alien or citizen, as a person before the law, enjoying the protection of the law and of the forces
of the law, with power to have rights and assume obligations: to own, acquire, and dispose of property; to make
contracts; to sue and be sued; and to invoke other legal remedies.”

No specific guarantee appears in the Constitution but that is presumed to exist runs through the entire
document.

Is there any statement in the Covenant when does one become a person?

It does not. The Philippine Constitution protects “the life of the unborn from conception;” but it does not say
that the unborn is a person. Though the Civil Code says that for purposes beneficial to him the unborn is considered
a person.

What are the limits on external exercise of freedom of thought, conscience and religion?

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 External exercise of freedom of thought, conscience and religion is guaranteed subject to the protection of
public safety, order, health, or morals or the fundamental rights of others.

What are the two-fold aspect of the concern for minorities?

The first is the fear of “a secessionist movement by minorities, threatening territorial integrity of the state, or
about the danger of interference by other states with which the minorities are connected by ties of race, national
origin, language, or religion. The second is a genuine “concern for the human rights of minorities and the desire “that
minorities will flourish so as to preserve that diversity of the human race..”

What are the two important rights covered by the right to self-determination?

1) the right “freely to determine their political status and freely pursue their economic, social and
cultural development”;

2) the right “for their own ends, to freely dispose of the natural wealth and resources without prejudice
to any obligations arising out of international cooperation, based upon the principle of mutual
benefit, and international law.”

But minorities does not have a right of self-determination in the sense of the right to secede.

What are the internal and external aspects of self-determination?

The internal right of self-determination consists of the right “freely to determine their political status and
freely pursue their economic, social and cultural development” and the right, “for their own ends, to freely dispose of
the natural wealth and resources without prejudice to any obligations arising out of international cooperation, based
upon the principle of mutual benefit, and international law.” These also necessarily include the other related political
rights.

The external right of self-determination belongs to colonies and to non-self-governing and trust territories.

What is the nature and significance of the Protocol to the Covenant?

It was adopted by the United Nations on December 16, 1966 as a supplement to the Covenant on Civil and
Political Rights and entered into force on March 23, 1976. The Philippines has ratified the protocol.

This separate treaty is designed to enable private parties who are victims of human rights violations.
However, complaints may be filed only against states which have ratified the Protocol. There is an eighteen-member
Human Rights Committee created by the Covenant which receives and handles the complaints.

Why is there a division between civil and political rights, in one hand, and economic, social and cultural
rights, on the other?

The reasons for the division are both ideological and practical.

Ideologically, the contest was between Western countries on the one hand and socialist and Third World
countries on the other. The American delegation argued that its government would find difficulty in accepting a treaty
containing economic and cultural rights beyond those guaranteed by the Constitution. For the socialist and Third
World countries, on the other hand, the absence of economic, social and cultural guarantees could render civil and
political guarantees meaningless.

On the practical level, it became obvious that implementing civil and political guarantees, the classical “Thou
shalt nots” of the Western tradition, could be done immediately; whereas the implementation of economic, social and
cultural rights could only be done gradually and dependently on development conditions. Thus, the decision to
divide, which would at least assure approval of a document on civil and political rights.

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 However, Article I of both Covenants say exactly the same thing about the right of self-determination of
people. There are substantial overlappings on other subjects of the Covenants.

What are the rights included in the Covenant on Economic, Social and Cultural Rights?

Included are the social welfare rights stated in detail which consist of the right to work (Article 6); to
favorable conditions of work (Article 7), to form free trade unions (Article 8), to social security and insurance (Article
9), to special assistance for families (Article 10), to adequate standard of living (Article 11), to the highest standard of
physical and mental health (Article 12), to education including compulsory primary education (Article 13 & 14), and to
the enjoyment of cultural and scientific benefits and international contacts (Article 15).

These correspond to the economic, social and cultural rights that are also found in the Constitution,
principally Article XIII (Social Justice), Article XIV (Education, Science and Technology, Arts, Culture, and Sports), and
Article XV (The Family).

What is the duty of the Philippines to implement provisions of these international human rights law?

Since the Philippines is a party not only to the UN Charter and the Universal Declaration of Human Rights
but also to the two Covenants as well as to the Optional Protocol to the Covenant on Civil and Political Rights, it is
bound, both in its domestic sphere and its foreign relations, “to bring its laws and practices into accord with the
accepted international obligations and not to introduce new laws or practices which would be at variance with such
obligations.” The duty of each State Party to implement the Covenant on Civil and Political Rights is provided for in
its Article 2. (Bernas, 2009)

Treaty commitments become part of domestic law. The self-executing provisions of the Covenants must be
implemented in domestic law. Those which are not, must be attended to by “necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant”, which may either be legislative or by
executive measures.

What principle governs the duty of each State Party to implement the provisions of the Covenant on
Economic, Social and Cultural rights?

It is the principle of progressive realization as embodied in Article 2, thereof. Each State Party is mandated
to take steps, individually and through international assistance and cooperation, especially economic and technical, to
the maximum of its available resources, with a view to achieving progressively the full realization of the rights
recognized in the Convention by all appropriate means, including particularly the adoption of legislative measures.

Progressive realization means “that a state is obligated to undertake a program of activities… and to realize
those rights which are “recognized” by the Economic Covenant. While the obligation of progressive realization is
limited by resource constraints, the Economic Covenant indicates that priority should be given to social welfare and
that the level of effort should increase over time. These obligations apply to any state that has ratified the Economic
Covenant, regardless of that state’s economic resources.”

What are the other conventions on Human Rights?

These include the 1948 Genocide Convention, the 1966 Convention on the Elimination of All Forms of
Racial Discrimination, the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, the
1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, the 1989
Convention on the Rights of the Child, and the 1990 Convention on Migrant Workers.

What are some human rights principles that have become customary law in the light of state practice?

These include the prohibition of torture, genocide, slavery and the prohibition of discrimination.

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What are the two important procedures being adopted by the Human Rights Commission for responding to
violation of human rights?

An important UN body is the Human Rights Commission, a subsidiary organ of ECOSOC. It is adopting two
different procedures for responding to violations of human rights.

2) Confidential consideration under ECOSOC Resolution 1503

It is also known as the 1503 Procedure or confidential procedure. It authorizes the Sub-Commission on Prevention of
Discrimination and Protection of Minorities to appoint a working group consisting of not more than five members to
meet once a year in private meetings to consider all communications, including replies of the government concerned,
with a view to bringing to the attention of the Sub-Commission those communications which appear to reveal a
pattern of gross and reliably attested violations of human rights.

The confidential findings of the Sub-Commission are brought to the attention of the Commission on Human rights.
The Commission on Human Rights is expected to submit its report and recommendation to the Economic and Social
Council. The procedure is kept confidential until such time as the Commission on Human Rights decided to make
recommendation to the ECOSOC.

3) Public debate procedure under ECOSOC Resolution 1235

The Commission on Human Rights was established in 1946 as a subsidiary organ of ECOSOC. In 1967, ECOSOC
Resolution 1235 authorized the Commission and its Subsidiary Commission on Prevention of Discrimination and
Protection of Minorities to examine reports relevant to gross violations of human rights and to examine reports
relevant to gross violations of human rights and to examine whether the violations revealed a consistent pattern and
thereafter make recommendations to ECOSOC.

Two types of activities are carried out by this procedure: First, it holds annual public debates in which governments
and NGOs are given the opportunity to identify publicly country specific situations which deserve attention. Second, it
engages in studies and investigations of particular situations through the use of various techniques the Commission
might deem appropriate.

What can result from these procedures?

Results may include embarrassment of countries referred that might generate change in policy; pressure on
government to take the issue on a bilateral or multilateral level; statements of exhortation from the Commission or call
from the Commission for all available information; the Commission might appoint a Special Rapporteur to examine
and submit a report on the issue; the Commission might ask the Security Council to take up the issue with a view to
promulgating sanctions.

What is the International Criminal Court?

It is the first permanent, treaty based, international criminal court established to promote the rule of law and
ensure that the gravest international crimes do not go unpunished.

It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the
most serious crimes of international concern, as referred to in the Rome Statute, and shall be complementary to
national criminal jurisdictions. (Rome Statute, Art. 1) (Sarmiento, 2007)

It was established by the Rome Statute of the International Criminal Court on July 17, 1998, when 120
States participating in the “United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an
International Criminal Court” adopted the Statute. The Statute enteres into force on July 1, 2002 and anyone who
commits any of the crimes under the Statute after this date will be liable for the prosecution by the Court.

What is the Rome Statute?

The Rome Statute established the ICC. The Statute was opened for signature by

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All states in Rome on July 17, 1998 and had remained open for signature until December 31, 2000 at the UN
Headquarters in New York. The Statute entered into force on July 1, 2002.

May the provisions of the Rome Statute be given retroactive effect?

No, the Rome Statute applies the principle of non-retroactivity ratione personae. Article 24 of the Statute
states that “no person shall be criminally responsible under this Statute for conduct prior to the entry into force on
July 1, 2002 and therefore crimes committed prior to that date will not be liable for prosecution by the ICC.

Where is the seat of the ICJ?

The seat of the Court is The Hague in The Netherlands. The Court will be temporarily housed at “de Arc” on
the outskirts of The Hague before moving to its permanent premises at the Alexanderkazerne. (Art. 3)

Does the ICC have international legal personality?

Yes, the Court shall have international legal personality. It shall also have such legal capacity as may be
necessary for the exercise of its functions and the fulfillment of its purposes.

What are the crimes falling under the jurisdiction of the ICC?

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the fo9llowing
crimes:

2) The crime of genocide;

3) Crimes against humanity;

4) War crimes;

5) The crime of aggression.

Would the ICC replace national or domestic criminal courts?

No, it will not replace national or domestic courts but will be complementary to national criminal jurisdiction.
The Court will only investigate and prosecute if a State is unwilling or unable to genuinely prosecute. This will be
determined by the judges. Unjustified delays in proceedings as well as proceedings which are merely intended to
shield persons from criminal responsibility will not render a case inadmissible before the ICC (Art. 17)

May the accused be tried in absentia before the ICC?

No, the Rome Statute applies the principle of presence. Article 63 of the Statute states that the accused
shall be present during the trial.

However, if the accused, being present before the Court, continues to disrupt the trial, the Trial Chamber
may remove the accused and shall make provision for him or her to observe the trial and instruct counsel from
outside the courtroom, through the use of communications technology, if required. Such measures shall be taken
only in exceptional circumstances after other reasonable alternatives have proved inadequate, and only for such
duration as is strictly required.

Is the rule on presumption of innocence applicable to the ICC?

Yes, Article 66 of the Statute affirms the rule on presumption of innocence until proved guilty before the
Court in accordance with the applicable law. The onus (burden) is on the Prosecutor to prove the guilt of the accused
and in order to convict the accused, the Court must be convinced of the guilt of the accused beyond reasonable
doubt.

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CHAPTER 9

Peaceful Settlement of International Disputes

What is international dispute?

A dispute in internationa law is a technical term which means “ä disagreement on a point of law or fact, a
conflict of legal views or interests between two persons.” A disagreement does not amount to a dispute if its
resolution would have no practical effect on the relationship between the parties. Ex: disagreements over the
interpretation of a treaty or about state boundaries or about state responsibility (Bernas, 2009)

An international dispute is an actual disagreement between states regarding the conduct to be taken by one
of them for the protection or vindication of the interests of the other. Where the disagreement has not yet ripened into
a full-blown conflict or the issues have not yet been sufficiently formulated and defined, there is what is known as a
situation. A situation is, therefore, the initial stage of a dispute. (Cruz, 2000)

What are the two kinds of international dispute?

1) Legal if it involves justiciable rights based on law or fact susceptible of adjudication by a judicial or arbitral
tribunal. Ex. Conflict on the interpretation of a treaty or the ascertainment of the boundaries of adjacent states; and
2) Political if it cannot be decided by legal processes on the basis of the substantive rules of international law
because the differences of the parties spring from animosities in their mutual attitudes rather than from an
antagonism of legal rights. Ex. When a state, in the exercise of its sovereign rights, enacts immigration laws
discriminating against the nationals of another state over the latter's protest. Here, the solution cannot be found in
the courts but through diplomacy. (Ibid)

Would a suit brought by a State in behalf of one of its nationals against another State constitute an
international legal dispute between the two States?

Yes, upon the filing of a suit by a State in behalf of its national, the dispute then entered upon a new phase;
it entered the domain of International Law, and became a dispute between two States. (Sarmiento, 2007)

Is there any obligation on the part of each state party to a dispute to settle?

There is none except those which according to Article 33 of the UN Charter, might endanger peace and
security. However, if a decision is made to settle disputes, the obligation is to settle them by peaceful means.
(Bernas, 2009)

What is the role of UN in the settlement of international disputes?

One of the principal purposes of the UN is to bring about the settlement of international disputes by peaceful
means, and in conformity with the principles of justice and International Law.(UN Charter Art.1.1)

The UN is also based on the principle that all its members shall settle their international disputes by peaceful
means in such a manner that international peace and security, and justice, are not endangered. (Ibid, Art 2.3)

Article 33 of the Charter further calls for peaceful settlement of disputes by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of
their own choice. (Sarmiento, 2007)

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May a member of the UN bring a dispute to the attention of the General Assembly?

Yes, any member of the UN may bring any dispute, or any situation which might lead to international friction
or give rise to a dispute, any situation of the nature to the attention of the General Assembly. It may also be brought
directly to the attention of the Security Council. (UN Charter, Art. 35.1) (Ibid)

May a state which is not a member of the UN bring a dispute to the attention of the Security Council or of the
General Assembly?

Yes, a non-member state may bring to the attention of the Security Council or of the General Assembly any
dispute provided that:

1) it is a party to the dispute; and

2) it accepts in advance, for the purposes of the dispute, the obligations of pacific settlement provided in the
Charter. (Ibid)

What are the powers of the General Assembly with respect to the disputes that are brought to its attention?

They are limited to establishing fact-finding missions and making recommendations. But although the
actions of the General Assembly may have significant political influence, states are under no obligation to cooperate
with the fact-finding missions or to follow recommendations. (Ibid)

What are the powers of the Security Council with respect to the disputes that are brought to its attention?

Under Article 33 of the UN Charter, the SC shall, when it deems necessary, call upon the parties to settle
their disputes by peaceful means, like negotiation, enquiry, mediation, conciliation, arbitration, judicial seetlement,
resort to regional agencies or arrangements, or other peaceful means of their own choice.

Under Article 34, the Security Council may investigate any dispute in order to determine whether the
continuance of the dispute or situation is likely to endanger the maintenance of international peace and security and if
so, under Article 37, itshall decide whetherbto take appropriate action or to recommend such terms of settlement as it
may consider appropriate.

In making recommendations, however, the SC should also take into consideration that legal disputes should
as a general rule be referred by the parties to the ICJ. (UN Charter, Art 36.3) (Ibid)

How may the peaceful means of settling disputes under the UN Charter be classified?

1) non-judicial methods- negotiation, enquiry, mediation, conciliation

2) quasi-judicial method- arbitration,
3) judicial method
The above means are also classificied into diplomatic and judicial methods.(Bernas, 2009)

What are the amicable means of settling international disputes?

2) negotiation – a process of bargaining between the two parties in search of a solution of disputes (Sarmiento,
2007); it is generally the first step taken in the settlement of an international dispute which is a discussion undertaken

74
by the parties themselves of their respective claims and counterclaims with a view to their just and orderly
adjustment; the conversations may be brief or protracted, depending on the issues in contention and perhaps also on
considerations of national pride; where the talks prosper and agreement is reached, it is usually formalized in a treaty
or, more directly effected through the rectification of the injury caused to the claimant state. (Cruz, 2000)
3) enquiry – a method of elucidating the points of difference and agreement to both sides in the hope that it
would facilitate the understanding of the issues of the disputes. The UN is empowered to call the parties concerned
to explain their position on a dispute and may attempt to narrow their differences, reconcile their opposing views and
if necessary recommend a just and fair solution. Ex. In 1992-1993, US and Chile, set up an Enquiry Commission to
determine the amount of damages to be paid to the \us by Chile for allegedly killing two persons in Washington by
Chilean intelligence officers and the dispute was settled.(Sarmiento, 2007); the findings of the party making the
inquiry are not conclusive upon the disputing states but they nevertheless may exert a strong moral influence in the
settlement of the conflict.(Cruz, 2000)
4) good offices – or sometime referred to as “quiet diplomacy”since the process often involves entrusting the
dispute to personalities with special qualification on whom both parties agree. This might involve heads of State or
the Secretary-General of the UN, or their designees;(Sarmiento, 2007); this is usually employed when the parties are
no longer on speaking terms, or when they have severed diplomatic relations or have actually commenced hostilities.
Ex. The Russo-Japaneses War was terminated through the good offices of President Theodore Roosevelt of the US
who succeeded in bringing the parties together to the conference table for the conclusion of a negotiated peace.
(Cruz, 2000)
5) mediation – like good offices, mediation is an adjunct of negotiation, but with the mediator as an active
participant, authorized, and even expected, to advance his own proposals and to interpret, as well as to transmit,
each party's proposals to each other. Ex. In 1978, US President Jimmy Carter mediated between Egypt and Israel
and achieved the Camp David Agreement in March 1979. Under the agreement, Egypt recognized diplomatically
Israel and in return Israel withdrew its troops from Sinai Peninsula, occupied by Israel in the 1967 war; (Sarmiento,
2007) here, the third party has more active involvement and does not merely provide the opportunity for the
antagonists to negotiate but also actively participates in their discussions in order to reconcile their conflicting claims
and appease their feelings of resentment; the suggestions of the mediator are merely persuasive, however, and may
be rejected without offense by the parties to the dispute.(Cruz, 2000)
6) conciliation – a method that combines the characteristics of both enquiry and mediation. While mediation is
ordinarily carried out by one person, conciliation is usually conducted by an organization (such as ASEAN or NATO).
Ex. Malaysia, Bangladesh and Pakistan were given the task by OIC to broker peace between Iran and Iraq war
during the 80's) (Sarmiento, 2007); the recommendations made are not binding though unlike in mediation, the
services of the conciliator are not offered by the third party but solicited by the parties in dispute. (Cruz, 2000)
7) arbitration – it is a quasi-judicial method of settlement of disputes. Here, the parties cross a line between
diplomatic methods of settling disputes and adjudication. The contrast is sharpened by the fact that an arbitral award
is a binding decision. In choosing arbitration, the parties to a dispute invite another entity to resolve it for them. But
arbitration allows the parties to constitute and to operate their own court. Thus, it has attracted States in disputes
since they can select individuals as arbitrators in whom they have confidence and thus can at least influence the
procedure that will be employed to resolve their conflict. (Sarmiento, 2007)
What are the advantages and disadvantages of arbitration as a method of settlement of disputes?

Advantages:

a) it is more conclusive than the other forms of non-judicial dispute settlement

because the decisions of the arbitral panels are binding upon the parties;

b) the disputing parties retain greater control in the arbitration process because
they appoint the arbitrators;

c) the parties may designate the procedures and the laws to be applied;

d) arbitration is less formal and less contentious than adjudication; and

e) both the arbitration proceedings and decisions can be kept confidential, a

great advantage in disputes regarding sensitive matters. (Malone, 106) (Sarmiento,
2007)

Disadvantages:

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 a) if the parties do not specify procedures, arbitration may be a very
cumbersome and time-consuming process;

b) arbitration panels do not have the authority of courts to conduct discovery or

subpoena witnesses; and

c) the parties themselves pay for the entire cost of the arbitration. (Ibid) (Ibid)

Is there an obligation to arbitrate?

There is no International Law requirement or obligation to arbitrate, unless the parties to a

dispute previously consented to submit to arbitration through an arbitral clause or arbitration convention. (Ibid)

What is a compromise d 'árbitage?

It is an agreement expressing the consent of the parties to the dispute to submit to arbitration and
outlining the constitution of the arbitral panel, the rules of procedure, the issues to be decided and the binding
nature of the arbitral decision. (Malone, 107) (Ibid)

What are the three types of arbitral agreements?

a) an arbitration clause that is incorporated as part of a treaty, commonly found

in commercial treaties.

b) treaties whose sole function is to establish methods for the arbitration of

disputes Ex. The Hague Convention for the Pacific Settlement of Disputes

c) ad-hoc arbitral agreements Ex. The agreement for the settlement of claims
between the US and Iran (1981) (Bernas, 2009)

May arbitral decisions be challenged?

The four most commonly accepted bases of challenge are:

a) that the arbitral body exceeded its powers;

b) that there was corruption on the part of a member of the body;

c) that there was failure to state the reasons for the awards or a serious
departure from a fundamental rule of procedure;

d) that the aundertaking to arbitrate or the compromis is a nullity. (Ibid)

May domestic courts refuse to give recognition to awards given by foreign arbitral tribunals?

Yes, provided that the grounds for refusal are among those found in the UN Convention on
the Recognition and Enforcement of Foreign Arbitral Awards (The New York Convention) adopted in June 10,
1958.(Bernas, 2009 and Sarmiento, 2007)

8) judicial settlement – it is a decision by a court. In the UN system, the ICJ is an integral part of the UN, and
the court, with seat at The Hague (The Netherlands), decides inter-states disputes. States must agree to refer to the
Court for decision. However there is reluctance of states to refer disputes to the Court. (Sarmiento, 2007)
Does being a party to the Statute of the ICJ mean acceptance of the jurisdiction of the Court?

No. It simply means that the state may accept the jurisdiction of the court. The Statute opens the
court's doors to member states and only states may be parties in the court. (Bernas, 2009) However, a non-

76
member may become a party on conditions to be determined in each case by the General Assembly upon the
recommendation of the Security Council. (ICJ Statute Art. 93.2)

What is the cardinal rule in international courts?

States cannot be compelled to submit disputes to international adjudication unless they have
consented to it either before a dispute has arisen or thereafter. States are also free to limit their acceptance
to certain types of disputes and to attach various conditions or reservations to their acceptance.(Ibid)

What are the similarities between arbitration and judicial settlement?

a) nature of the proceedings;

b) binding character of the decisions

c) the disputes submitted for adjudication are legal rather than political. (Cruz,
2000)

How do they differ?

The two methods differ in the following points:

a) the judicial tribunal is, generally, a preexisting and permanent body whereas
the arbitral tribunal is an ad hoc body created and filled by the parties to the dispute
themselves.

b) Jurisdiction in judicial settlement is usually compulsory whereas submission

to arbitration is voluntary.

c) the law applied by the tribunal in judicial settlement is independent of the will
of the parties but may be limited by them in arbitration proceedings.(Ibid)

International Court of Justice

What is the ICJ?

It is the UN's principal judicial organ. It succeeded the Permanent Court of International
Court of Justice established by the League of Nations. It came into being in 1945 through the Statute of the
Court. All members are ipso facto parties to the Statute of the ICJ. (Ibid)

What is its composition?

ICJ is composed of fifteen members [Statute of the ICJ, Art.3.(1)] who are elected by
absolute majority vote in the General Assembly and the Security Council [Ibid, Art.4, 10(1)]. The
judges must be of high moral character and possess the qualifications required in their respective
countries for appointment to their highest judicial offices or are jurisconsults of recognized competence in
international law.(Ibid, Art. 2). No two of them may be nationals of the same state [Ibid, Art
3(1)], and in the event that more than one national of the same state obtain the required majorities, only the
eldest shall be considered elected.[UN Charter, Art. 10(1)]. The election of the judges should assure the
representation in the Court of the main forms of civilization and the principal legal systems of the world. (Ibid, Art.
9). (Cruz, 2000)

What is the term of the members of the Court?

They have a term of nine years and may be re-elected. The term of the original members were
staggered in such a way as to provide for the election of one-third of the membership at three-year intervals.(UN
Charter, Art. 13) No judge can be removed unless, in the unanimous opinion of the other members, he has ceased

77
to fulfill the required conditions.[Ibid, Art. 18(1)] The Court shall elect its President and Vice- President, who
shall serve for three years and may be reelected.[Ibid, Art. 21(1)]

How shall the Court hold its sessions?

It shall remain permanently in session, at the Hague or elsewhere, except during the judicial
vacations [Ibid, Arts 22(1), 23(1)], and may meet either en banc [Ibid, Art 25(1)] or in chambers composed of
three or more judges, to deal with particular categories of cases such as those relating to labor, transit and
communications [Ibid, Art 26(1)]. All questions are decided by a majority of the judges present [Ibid, Art 55(1)],
the quorum being nine when the full Court is sitting [Ibid, Art.25(3)].

What are the functions of the Court ?

The functions of the Court are to decide contentious cases and to render advisory opinions
(UN Charter, Chapter II, IV). (Cruz, 2000).

What is the jurisdiction of the ICJ?

Its jurisdiction comprises all cases which the parties refer to it and all matters specially provided
for in the Charter of the UN or in treaties and conventions in force. [ICJ Statute, Article 36(1)](Sarmiento, 2007)

Give two limitations on the jurisdiction of the ICJ under its Statute.

a) only states may be parties in contentious cases before the Court (ICJ Statute, Art.
34) and

b) the consent of the states is needed for the court to acquire jurisidction (Ibid,
Art 36) (Ibid)

When is the Court competent to entertain a dispute between states?

Only if the states concerned have accepted its jurisdiction in one or more of the following ways:

a) by the conclusion between them of a special agreement (Compromis) to

submit the dispute to the Court [ICJ Statute, Art 36(1)]

b) by virtue of a jurisdicttional clause, i.e. typically, when they are parties to a

treaty containing a provision whereby in the event of a disagreement over its interpretation
or application, one of them may refer the dispute to the Court (Ibid)

c) through the reciprocal effect of declarations made by them under the Statute
whereby each has accepted the jurisdiction the jurisdiction of the Court as compulsory in
the event of a dispute with another State nhaving made a similar declaration. [Ibid, Art.
36(2)]

In cases of doubt as to whether the Court has jurisdiction, it is the Court itself which
decides. (Sarmiento, 2007)

What is the “compulsory jurisdiction” of the Court under the “optional jurisdiction” clause?

The optional system is operative only for states that “at any time declare that they recognize as
compulsory ipso facto and without special agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes concerning: a) the interpretation of a treaty; b) any
question of international law; the existence of any fact which, if established, would constitute a breach of an
international obligation.” [ICJ Statute, Art. 36(2)] (Bernas, 2009)

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 The declaration in the optional system may be made unconditionally or on condition of
reciprocity on the part of several or certain states, or for a certain time. They shall be deposited with the Secretary-
General of the UN, who shall transmit copies thereof to the parties to the Statute and to the Registrar of the
Court. [Ibid, Arts 3, 4] (Sarmiento, 2007)

What is the Doctrine of Prorogated or Extended Jurisdiction of the ICJ?

Under this doctrine, the manifestation of consent to jurisdiction of the Court may be made even
after a case is filed, but until such consent to jurisdiction is made, the case cannot be entered in the General List
(docket of the Court). (Ibid)

What then is Forum Prorogatum?

Otherwise known as the “prorogated” jurisdiction, it is the jurisdiction of the ICJ that is based that
is based upon the consent of the defendant State that is given after the the initiation of the proceedings. The
procedure for prorogated jurisdiction is found in Article 38(5) of the ICJ Rules of Court which in essence
mandates that unless and until the defendant State gives its consent, the application though transmitted to that
State, shall not be entered in the General List, nor any action be taken in the proceedings. (Ibid)

What is the legal effect of decisions of the ICJ in contentious cases?

Each member of the UN undertakes to comply with the decision of the International Court of
Justice in any case to which it is a party. [UN Charter, Art 98(1)] However, the decision of the Court has no
binding force except between the parties and in respect of that particular cases. (ICJ Statute, Art. 59) (Ibid)

Is the ICJ bound by the Doctrine of Stare Decisis?

No. While Article 38 of the Statute of the ICJ provides that the Court shall apply judicial decisions
as subsidiary means for the determination of rules of law in deciding such disputes as are submitted to it, the
same, however, is subject to Article 59 which states that “the decision of the Court has no binding force
except between the parties and in respect of that particular case.” Nonetheless, the Court does look to prior
holdings as being highly persuasive. (Ibid)

What is the remedy in case a party fails to comply with the judgment of the Court?

If any party to a case fails to perform the obligations incumbent upon it under a judgment
rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. (UN
Charter, Art 94) (Ibid)

Is it mandatory for UN members to submit their disputes or differences for resolution of the ICJ?

No, nothing in the Charter shall prevent Members of the UN from entrusting the solution of their
differences to other tribunals by virtue of agreements already in existence or which may be concluded in the
future. (UN Charter, Art. 95) (Ibid)

What are the provisional measures of the ICJ?

Article 41 of the ICJ Statute provides that the Court shall have the power to indicate, if it
considers that circumstances so require, any provisional measures which ought to be taken to preserve the
repsective rights of either party. Pending the final decision, notice of the measures suggested shall fortwith be
given to the parties and to the Security Council.

Is intervention allowed before the ICJ?

Article 62 of the Statute provides that should a state consider that it has an interest of a legal
nature which may be affected by the decision in the case, it may submit a request to the Court to be permitted

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to intervene. It shall be for the Court to decide upon this request. While Article 63 mandates that whenever the
construction of a convention to which states other than those concerned in the case are parties is in
question, the Registrar shall notify all such states. Every states notified has the right to intervene in
the proceedings; but if it uses this right, the construction given by the judgment will be equally binding upon it.

Is revision of the ICJ judgment allowed?

An application for revision of a judgment may be made only when it is based upon the
discovery of some fact of such a nature as to be a decisive factor, which fact was, when thejudgment was given,
unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to
negligence. The proceedings for revision shall be opened by a judgment of the Court expressly recording the
existence of the new fact, recognizing that it has such a character as to lay the case open to revision, and declaring
the application admissible on this ground. The Court may require previous compliance with the terms of the
judgment before it admits proceedings in revision. The application for revision must be made at latest
within six months of the discovery of the new fact. No application for revision may be made
after the lapse of ten years from the date of the judgment. (ICJ Statute, Article 61)

What are the other international courts?

1) The Court of Justice of the European Communities

It is also called the European Court of Justice which is the Supreme Court of the European Union and has its seat in
Luxembourg. Natural or legal person may bring action before the Court if he is the addressee of of an act of a
Community institution, or he is directly and individually concerned by a leagl measure taken by one of the Community
institutions. In addition, a reference for a preliminary ruling also gives citizens the possibility of access to the Court of
Justice by means of questions put by the national courts in the context of cases brought under national law. The
primary function of the Court of Justice is to examine the legality of Community acts and to ensure, in particular by
examining references for a preliminary ruling, that Community law is interpreted and applied uniformly. It also applies
Community law and resolves disputes between Community institutions or between those institutions and the Member
States ( or even between Member States themselves).

2) The Benelux Court of Justice

It was established by Belgium, the Netherlands and Luxembourg and is modeled after the European Court of Justice
that began its activities in 1974. Its main function is to promote the uniform interpretation of common legal rules for
which it has become competent. When a national judge feels that a rule of Benelux law is unclear in the case at
hand, the court in question has the possibility and sometimes the obligation to refer to the Benelux Court of Justice
for a preliminary ruling. The question referred to for a preliminary ruling is the starting point for proceedings before
the Benelux Court, in which the views of the litigating parties, the Ministers of Justice and the Benelux public
prosecution authority can be expressed. Finally, the Court delivers a binding judgment laying down the interpretation
of the rule of law.

3) The EFTA Court of Justice

It is the Court of the EFTA States parties to the European Economic Area
Agreement (EEA) which include Iceland, Liechtenstein and Norway. It has its seat in Luxembourg since
1996. The principal jurisdiction of the Court is on matters involving interpretation of the law of the EEA, disputes
between the contracting parties, and between the EFTA Surveillance Authority and the addressee of a decision of the
authority or a person directly and individually concerned by such a decision. Natural or legal person may bring an
action if he is the addressee of a decision of the EFTA Surveillance Authority, or he is directly and individually
concerned by such a decision. A reference for an advisory opinion also gives citizens the possibility of access to the
EFTA Court by means of questions put by national courts in the context of cases brought under national law.

4) The European Court of Human Rights

Known as the “Strasbourg Court”, it was established in November 1998 pursuant to the entry into force of Protocol
No. 11 to the European Convention for the Protection of Human Rights (1950) establishing a single court sitting
fulltime and replacing the European Commission of Human Rights (1954) and the European Court of Human Rights
(1959). It has its seat in Strasbourg, France. Its primary function is to ensure compliance by the High Contracting
Parties with their commitments arising from the European Convention for the Protection of Human Rights. The Court

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hears and decides complaints of human rights violations allegedly committed by States Parties, and brought to the
Court either by other States Parties or by individual subject to the jurisdiction of a State Party. Any contracting state
(inter-State application) or any individual claiming to be the victim of a breach of the Convention (individual
application) may make an application directly to the Court alleging a violation by a Contracting State of a right
guaranteed by the Convention. An application may be made to the Court by any natural person, non-governmental
organization or group of individuals claiming to be the victim of a violation by one of the Contracting Parties of a right
guaranteed by the Convention for the Protection of Human Rights or its protocols. The Court may deal with the
matter only after all domestic remedies have been exhausted and within six months of the final national decision.
The Court will declare an individual application inadmissible if it is anonymous or substantially the same as a matter
that has already been examined by the Court, or has already been submitted to another procedure of international
investigation or settlement, or if the Court considers it to be contrary to the provisions of the Convention or its
protocols, or clearly unfounded or abusive. (Sarmiento, 2007)

8. action by regional organizations – this may be resorted to by the parties on their own volition or
taken by the body itself at its own instance if allowed by agreement of the members. One of these
regional orgaizations is the ASEAN.

CHAPTER 10

Use of Force Short of War – May 7, 2016

What is the basic principle found in the UN Charter with respect to the recognition of the autonomy of
individual states and their right to freedom from coercion and to the integrity of their territory?

Article 2(4) provides that, “All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations”. (Bernas, 2009)

This same provision is considered the legal prohibition against the use of force in International Law.
(Sarmiento, 2007).

Does Article 2(4) of the UN Charter absolutely outlaw the threat or use of force outside the UN Charter?

There are two conflicting views on this matter:

a) The restrictive view, which is based on interpretation of the principles underlying Article 2(4) of the UN
Charter. Its proponents claim that Article 2(4) was written with the view of abolishing war entirely.

b) the qualified prohibition view, which is based on the plain meaning of Article 2(4). Its proponents argue
that Article 2(4) only prohibits certain end results, i.e. when force is used against the territorial integrity or political
independence of any state. (Ibid)

What is the nature of the prohibition of the use of force as an international law?

The prohibition is not just conventional law. It is a customary international law. (Bernas, 2009)

Is the threat of force also prohibited by the UN Charter?

In the discussion by the ICJ in the case of the Legality of the Threat or Use of Nuclear Weapons, it declared
that, “The notions of ‘threat’ and ‘use’ of force under Article 2, paragraph 4 stands together in the sense that if the use
of force itself in a given case is illegal – for whatever reason - the threat to use such force will likewise be illegal…”
(Ibid)

What are the two considered exceptions to the general prohibition of the use of force in Art. 2, par. 4 of the
UN Charter?

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 a) Article 51 where the Charter recognizes the inherent right of individual or collective self-defense if an
armed attack occurs;

b) Article 42, whereby the Security Council may take military enforcement measures in conformity with
Chapter VII of the Chapter. (Sarmiento, 2007)

Does the general prohibition of the use of force preclude the right to self-defense?

Article 51 provides that the Charter shall not impair the inherent right of individual or collective self-defense if
an armed attack occurs against a Member of the UN, until the Security Council has taken measures necessary to
maintain international peace and security.

Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security Council under the
present Charter to take at any time such action as it deems necessary in order to maintain or restore international
peace and security. (Bernas, 2009)

What are the limitations to the exercise of the right to individual or collective self-defense?

a) whether self-defense be individual or collective, it can only be exercised in response to an “armed attack”
which shall include not merely action by regular armed forces across an international border, but also the sending by
a State of armed bands on to the territory of another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack had it been carried out by regular armed forces;

b) collective self-defense cannot also be exercised in the absence of a request by the State which is a victim
of the alleged attack this being additional to the requirement that the State in question should have declared itself to
have been attacked. (Ibid)

What are the requisites of self-defense under Article 51 of the UN Charter?

a) an armed attack occurred against a member of the UN;

b) It must be “confined to cases in which the necessity of that self-defense is instant, overwhelming, and
leaving no choice of means, and no moment for deliberation”;

c) The measures taken “ must be limited by that necessity and kept clearly within it”;

d) The right of self-defense must give way to measures that may be taken by the Security Council to
maintain international peace and security. (Sarmiento, 2007)

What are the requirements of “necessity and proportionality” in self-defense?

They embody the requirements for a valid act of self-defense as formulated by US Secretary of State Daniel
Webster in his letter in the Caroline Incident. According to him, self-defense was to “be confined to cases in which
the necessity of that self-defense is instant, overwhelming, and leaving no choice of means, and no moment for
deliberation” and that such actions justified by that necessity ”must be limited by that necessity and kept clearly within
it.”

These requirements apply whether a state is acting in self-defense against an attack which has already
occurred or acting in anticipatory self-defense. (Malone, 148)

These requirements were affirmed by the ICJ in its decision in Nicaragua vs. US, June 27, 1986. (Ibid)

What is the right of collective self-defense?

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 If the state is entitled to use force in self-defense under Article 51, other states are entitled to come to the
defense of the attacked state in collective self-defense. This right exists independently of the existence of a mutual
defense treaty between the attacked state and the other states which come to its defense. (Ibid)

May a state exercise the collective right of self-defense without an explicit request for assistance from the
state on whose behalf the right is to be exercised?

In Nicaragua vs US, the ICJ concluded that the US was not entitled to come to the defense of El Salvador,
Honduras, and Costa Rica because at that time it had not been requested to do so. It held that the exercise of the
right of collective self-defense presupposes that an armed attack has occurred; and the victim state draws general
attention to its plight and finally, the victim state makes an express request to other states to come to its help. (Ibid)

Is anticipatory self-defense allowed?

Opinion on the subject is divided. Those who claim the existence of the right say that the phrase “if an
armed attack occurs” is not exclusive which is reminiscent of the view that protection of “vital interests” justifies the
use of force.

In practical terms, however, states do not invoke the right because they are afraid that it might be used
against them too. (Ibid)

What are the other measures of redress short of war that are used by states?

a) severance of diplomatic relations;

b) non intercourse;

c) retorsion;

d) embargo;

e) reprisals;

f) display of force;

g) pacific blockade;

h) armed intervention without war;

i) international organizational sanctions. (Sarmiento, 2007)

Are these methods short of war allowed under International Law?

With the adoption of the UN Charter, all measures short of war that involves the threat or use of force
against the territorial jurisdiction or political independence of any state or in any other manner inconsistent with the
purposes of the UN are no longer allowed. (UN Charter Art. 2[4])

All members of the UN shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered. (Ibid, Art. 2[3])

However, this is without prejudice to the authority of the Security Council under Chapter VII of the UN
Charter to decide what measures are to be employed to give effect to its decisions, and it may call upon the Members
of the UN to apply such measures which may include:

a) complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and
other means of communication;

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 b) the severance of diplomatic relations;

c) demonstrations;

d) blockade; and

e) other operations by air, sea or land forces. (Ibid)

What is severance of diplomatic relations?

Before resorting to one or other of the various forms of coercion, it was common for governments to break
off diplomatic relations with the offending state by recalling their public ministers resident at the foreign capital.
However, this measure was not in itself a form of forcible procedure, but rather to serve as a warning that the issue
between the two states had reached a point where the injured party regarded normal diplomatic relations as no
longer compatible with the conduct of the other state, and that sterner measures might possibly follow. (Fenwick, 531
as cited in Sarmiento, 2007)

Severance should be distinguished from suspension of diplomatic relations. Suspension involves

withdrawal of diplomatic representation but not of consular representation. (Bernas, 2009)

What is non-intercourse?

It consists of suspension of all commercial intercourse with a state.

What is retorsion?

It is any action taken in “retaliation where the acts complained of do not constitute a legal ground of offense
but are rather in the nature of unfriendly acts but indirectly hurtful to other states.” (Fenwick, 532 as cited in Cruz,
2000) The act of retaliation is also unfriendly but not illegal and may be in kind or of a different nature than the act
that provoked it. Examples of retorsions are severance of diplomatic or consular relations, suspension of commercial
intercourse, boycott, stoppage of travel to the other state, denunciation of treaties, imposition of higher tariffs and
other trade barriers, currency restrictions, denial of loans and withdrawal of privileges previously enjoyed, recognition
of a rival government, and adverse propaganda.(Ibid)

Other author describes it as any of the forms of counter-measures in response to an unfriendly act. Forms
of retorsion include shutting of ports to vessels of an unfriendly state, revocation of tariff concessions not guaranteed
by treaty, or a display of naval forces near the waters of an unfriendly state. (Bernas, 2009)

Is retorsion valid under International Law?

As long as retorsion does not involve the threat or use of force, it is valid under International law. (Sarmiento,
2007)

What are reprisals?

They are an act of self-help on the part of the injured state, responding after an unsatisfied demand to an act
contrary to international law on the part of the offending state. They have the effect of suspending momentarily in the
relations of the two states the observance of this or that rule of international law. They are limited by the experience
of humanity and the rules of good faith, applicable in the relation of state with state.

They would be illegal if a previous act contrary to international law had not furnished the reason for them.
They aim to impose on the offending state reparation for Arbitration, Portuguese-German Arbitral Tribunal, 1928 as
cited in Cruz, 2000)

Justice Cruz enumerated the more common forms of reprisals as to include a) display of force, as when
the US Mediterranean Fleet proceeded to and deployed along the coasts of Turkey in 1903 pending compliance with
the demand for the return of an American national kidnapped by a Turkish bandit; b) occupation of territory, as

84
when Italy seized the Greek island of Corfu in 1923 for the murder of certain Italian officers in Greece; c) embargo or
the detention by the state seeking redress of the vessels of the offending state or its nationals, whether such vessels
are found in the territory of the former or on the high seas, as illustrated by the action taken by Holland against
Venezuela in 1908; d) pacific blockade, by which the vessels of the offending state are prevented from entering or
leaving its ports by the ships of the state seeking redress, as was done by the Great Powers against Greece in 1886
to dissuade it from going to war against Turkey. (2000)

When is act of reprisal legitimate?

In the Naulilaa Arbitration Case (Portugal vs Germany), 2 RIAA 1011(1928), the Versailles Swiss arbitral
panel laid down three conditions for the legitimacy of reprisals:

a) there must have been an illegal action on the part of the other state;

b) they must be preceded by a request for redress of the wrong, for the necessity of resorting to force cannot
be established if the possibility of obtaining redress by other means is not even explored;

c) the measures adopted must not be excessive, in the sense of being out of all proportion to the vocation
received. (Sarmiento, 2007)

In the present state of IL, may reprisals still be held legitimate?

Since the Kellog-Briand Pact of 1928 (Pact of Paris) all forms of reprisals which may involve the use of force
are no longer legal. Article 2 of the Pact states that “the settlement or solution of all disputes or conflicts of whatever
nature or of whatever origin they may be shall never be sought except by pacific means.” This prohibition was
reaffirmed by the UN Charter, Art. 2 [3,4]. (Ibid)

What is embargo?

It is the prohibition of commerce and trade with the offending state. Laying an embargo upon all vessels of
the offending state that happen at the time to be in the ports of the state seeking redress does not contemplate
confiscation (which is considered an act of war), except in the event that the redress for injuries suffered should be
finally refused. (Fenwick, 534 cited in Sarmiento, 2007)

This can consist of seizure of vessels even in the high seas. It might also be pacific, as when a state keeps
its own vessels for fear that it might find their way in foreign territory. There can also be collective embargo, e.g. on
import of drugs or of oil. (Bernas, 2009)

What is boycott? Does it constitute a violation of IL?

It is a concerted action undertaken by the citizens of one state to suspend trade and business relations with
the citizens of the offending state. So long as the boycott is a purely voluntary act on the part of the citizens acting
individually or in concert, it is a measure that falls outside of the scope of IL. But if any element of governmental
pressure, or even of governmental persuasion should enter into boycott, there would be ground for protest by the
foreign government. (Fenwick, 535 cited in Sarmiento, 2007)

It is a form of reprisal which consists of suspension of trade or business relations with the nationals of an
offending state. Some claim that this is a form of economic aggression which should be prohibited by law. (Bernas,
2009)

What is blockade?

It is any effort to cut off all maritime commerce between an enemy state and the rest of the world. The
purpose was not only to prevent goods from reaching the enemy but also to prevent the enemy from exporting to the
outside world and thereby sustaining its war economy. (Sarmiento, 2007)

What three things must be specified in a declaration of blockade?

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 Article 9 of the 1909 Declaration of London concerning Laws of Naval War enumerates the things that a
declaration of blockade must specify:

a) the date when the blockade begins;

b) the geographical limits of the coastline under blockade;

c) the period within which neutral vessels may come out. (Ibid)

Is blockade lawful in international law?

A blockade is lawful if made upon the order or authority of the UN Security Council pursuant to Article 42 of
the UN Charter, that is, as a measure to maintain or restore international peace and security. Otherwise, if not
authorized by the Security Council, then it will fall under the UN Charter’s general prohibition against the use of force
under Article 2(4). (Ibid)

In the event that none of the above-discussed methods succeeds in settling the dispute, or even if they are
not employed, may the UN be asked or decide on its own authority to take a hand in the settlement?

Yes, this task is addressed principally to the Security council but may, when the occasion requires, be taken
over by the General Assembly under proper conditions. (Cruz, 2000)

What disputes are within the Security Council’s jurisdiction?

a) all disputes affecting international peace and security (UN Charter Arts. 24, 34);

b) all disputes which, although coming under the “domestic jurisdiction clause,” have been submitted to it by
the parties for settlement (Ibid, Article 2) (Cruz, 2000)

How may such disputes be brought to the attention of the SC?

a) by the SC itself, on its own motion (Ibid, Art.39);

b) by the GA (Arts 10 & 11);

c) by the Secretary General (Art. 99);

d) by any member of the UN (Art. 35);

e) by any party to the dispute, provided that in the case of non-members of the UN, they should accept in
advance, for purposes of the dispute, the obligations of pacific settlement under the Charter. (Arts. 35 & 37) (Cruz,
2000)

What are the steps under the UN Charter that shall be taken by the SC in settling disputes brought to its
attention?

1) when it deems necessary, call on the parties to settle the dispute by any peaceful means in their own
choice (Art 33);

b) in case the parties are unable to adjust their differences by themselves through the peaceful methods
suggested, it may recommend appropriate measures or methods of adjustment, taking into consideration: a) any
amicable measures already adopted by the parties; and b) that legal disputes should as a rule be referred to the ICJ
(Art. 36);

c) if the above measures prove unavailing, then it may recommend such actual terms of settlement as it may
consider appropriate (Art 36) which is in the nature of a compulsory settlement of the dispute which the parties are
under obligation to abide by in the interest of international peace and security.

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 d) finally, where the terms of settlement are rejected by any of the parties, it is empowered to take more
drastic steps which include:

1) preventive action which consists of measures not involving the use of armed force, such as
complete or partial interruption of economic relations and of rail, sea air, postal, telegraphic, radio and other
means of communication, and severance of diplomatic relations (Art 41);

2) enforcement action which may be taken if the above measures would be or have proved
inadequate, or such action by air, sea or land forces as may be necessary to maintain or restore international peace
and security. It may include demonstrations, blockades, and other operations by air, sea, or land forces of members
of the UN (Art 41). (Cruz, 2000)

What is the Military Staff Committee?

It consists of the chiefs of staff of the permanent members of the SC or their representatives. It is supposed
to advise and assist the SC on all questions relating to its military requirements for the maintenance of international
peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and
possible disarmament. It shall also be responsible under the SC for the strategic direction of any armed forces
placed at the disposal of the said Council (Art 47). (Cruz, 2000)

What is “Uniting for Peace Resolution”?

This provides that “if the Security Council, because of lack of unanimity of the permanent members, fails to
exercise its primary responsibility for the maintenance of peace and security in any case where there appears to be
threat to the peace, breach of peace, or act of aggression, the General Assembly shall consider the matter
immediately with a view to making recommendations to the members for collective measures, including in the case of
breach of the peace or act of aggression, the use of armed forces when necessary, to maintain or restore
international peace and security.” (Ibid)

What if the GA is not in session at the time?

The GA may meet in emergency special session within 24 hours of the request therefor either by any nine
members of the SC or by a majority of the members of the UN.

Conformably to this resolution, the General Assembly on November 4, 1956, provided for the establishment
of an international “police force” under the UN command to supervise the area involved in the Suez Canal crisis, in
which two of the permanent members of the SC were directly involved. (Cruz, 2000)

Distinguish enforcement action from peacekeeping forces?

Enforcement action involving deployment of troops differs from peacekeeping forces in that enforcement
action is imposed without the consent of the state against which such action is directed, while peacekeeping forces
are deployed with the consent of the state concerned like the first United nations Emergency Forces (UNEF 1) which
was deployed by the GA with the consent of Egypt in 1956 and the ONUC (Operation des Nations Unies au Congo)
which was deployed by the SC in 1960 with the consent of Congolese government during the Congolese civil war.
(Malone, 144-145 cited in Sarmiento, 2007).

Is the preservation and maintenance of international peace and security the “exclusive” responsibility of the
SC?

No, the preservation and maintenance of international peace and security is the “primary”, but not the
“exclusive,” responsibility of the SC. (Certain Expenses Case)

The preservation and maintenance of international peace and security is the obligation of all members of the
UN and the responsibility of the Organization itself, which must be discharged primarily through the SC and
secondarily through the GA. (Sarmiento, 2007)

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Is protection of nationals abroad an aspect of the right to self-defense in Article 51?

Though the legitimacy of such intervention is not firmly established in international law, the proponents
believe that such position can be defended since population is an essential element of statehood. Others argue that
Article 2(4) does not prohibit it because it does not compromise the “territorial integrity or political independence” of a
state.

Examples of forcible rescue of nationals are the raid of Entebee in Uganda and the US intrusion into
Stanleyville to rescue American students. (Bernas, 2009)

When is “humanitarian intervention” permissible?

a) if the SC determines that massive violations of human rights occurring within a country constitute a threat
to the peace; and

b) SC then calls for or authorizes an enforcement action to put an end to these violations. (Ibid)

What is intervention in international law?

Justice Cruz includes intervention along with retorsions and reprisals in the hostile methods of settling
international disputes.

It is defined as an act by which a state interferes with the domestic or foreign affairs of another state or
states through the employment of force or threat of force. Such force may be physical or, in the present state of world
affairs, even political or economic. Lacking such pressure, the involvement of a state in the affairs of another, even if
unsolicited, cannot be considered intervention.

Intervention is not sanctioned in international relations except only when it is exercised as an act of self-
defense or when it is decreed by the SC as a preventive or enforcement action for the maintenance of international
peace and security. Other others add as exception if intervention is agreed upon in a treaty. Intervention may also be
allowed when requested from sister states or from the UN by the parties to a dispute or by a state beset by rebellion.
(Cruz, 2000)

CHAPTER 11

The Law of War (International Humanitarian Law)

What is International Humanitarian Law?

It used to be known as Laws of War which provides for instances when the use of armed force is justifiable
(jus ad bellum) and it regulates the conduct of armed conflict (jus in bello). (Bernas, 2009)

It is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects
persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.
(ICRC Fact Sheet, What is International Humanitarian Law cited in Sarmiento, 2007)

Did early international law consider war as unlawful?

No. Early international law did not consider as unlawful a war waged to gain political or other advantages
over another. In fact, war was in law a natural function of the State and a prerogative of its uncontrolled sovereignty.
(Hyde, 1922 cited in Bernas, 2009)

Prior to World War II, what were the early attempts to outlaw war?

Early attempts to outlaw war were found in Hague Convention II in 1907, Covenant of the League of Nations
(1919), and in the Kellog-Briand Pact for the Renunciation of War (1928). (Ibid)

What law formulated after the second world war was considered more effective on preventing war?

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 The UN Charter which provides:“ All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.” Art 2(4) (Ibid)

How can the paradox, that despite the prohibition of armed conflict there is the proliferation of laws of war,
be explained?

Three facts can explain the paradox:

1) Those who resort to the use of arms do not give up until they have achieved victory;

2) Given the first fact, humanitarian consideration dictate the need for rules which curtail violence beyond
what is necessary to achieve a state’s goal; and

3) There still remains in the hearts of the soldiery an acceptance of chivalry as a value (Ibid)

What were the provisions of the Hague Law?

The Conventions and Declaration in 1899 and the conferences held in 1907 produced principles that
constitute that part of the law of armed conflict still known as the Law of the Hague governing land and naval warfare.
Principles governing the conduct of air warfare were to follow later. (Ibid)

What do Geneva Conventions of 1949 provide?

There were four Geneva “Red Cross” Conventions which consist of the following:

1) I – Wounded and Sick in the Field;

2) II - Wounded, Sick and Shipwrecked at Sea;

3) III - Prisoners of War;

4) IV – Civilians

The essence of the Geneva conventions is that persons not actively engaged in warfare should be treated
humanely. The rules apply to any international armed conflict, whether a declared war or not. (Ibid)

How are non-parties to these Conventions bound by them?

Since much of what is embodied in the Hague and Geneva Conventions are customary law, non-parties to
the Convention are covered by the customary law of armed conflict. It has become common practice, when one of
the parties to the conflict is not a party to the conventions, for such party to make a declaration that it will abide by the
terms of the Convention. (Ibid)

What are the three statements of the ICRC which sum up the basic rules governing armed conflicts?

1. Soldier’s Rules;

2. Fundamental Rules of International Humanitarian Law Applicable to Armed Conflicts; and

3. Non-international Armed Conflicts

How are the agreements or conventions on the laws of war enforced?

The commonly accepted sanctions are:

1) protest lodged by one belligerent, usually accompanied or followed by an appeal to world opinion against
the unlawful acts of warfare committed by the other belligerent;

2) reparation for damages caused by the defeated belligerent; and

3) punishment of war criminals (Cruz, 2000)

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How does war commence?

War may start with a declaration of war (The Hague Conventions of 1907); with the rejection of an
ultimatum, or with the commission of an act of force regarded by at least one of the belligerents as an act of war.
(Cruz, 2000)

What are the effects of the outbreak of war?

1) The laws of peace cease to regulate the relations of the belligerents and are superseded by the laws of war. Third
states are governed by the laws of neutrality in their dealings with the belligerents.

2) Diplomatic and consular relations between the belligerents are terminated and their respective representatives are
allowed to return to their own countries.

3) Treaties of political nature, such as treaties of alliance, are automatically cancelled, but those which are precisely
intended to operate during war, such as one regulating the conduct of hostilities between the parties, are activated.
Multipartite treating dealing with technical or administrative matters, like postal conventions, are deemed merely
suspended as between the belligerents.

4) Individuals are impressed with enemy character:

a) under the nationality test, if they are nationals of the other belligerent, wherever they may be; b) under
the domiciliary test, if they are domiciled aliens in the territory of the other belligerent, on the assumption
that they contribute to its economic resources; and c) under the activities test, if being foreigners, they
nevertheless participate in the hostilities in favor of the other belligerent.

Corporations and other juridical persons, on the other hand, are regarded as enemies if a majority or a
substantial portion of their capital stock is in the hands of enemy nationals or if they have incorporated in the
territory or under the laws of the other belligerent.

5) Enemy public property found in the territory of the other belligerent at the outbreak of hostilities is, with certain
exceptions, subject to confiscation. Enemy private property may be sequestered, subject to return, reimbursement or
other disposition after the war in accordance with the treaty of peace. (Ibid)

Who are combatants?

The following are regarded as combatants:

1) the members of the armed forces, whether pertaining to the army, the navy or the air force, except those not
actively engaged in combat, such as chaplains and medical personnel;

2) the irregular forces, such as the francs tireurs or the guerillas, provided, that: a) they are commanded by a person
responsible for his subordinates; b) they wear a fixed distinctive sign recognizable at a distance; c) they carry arms
openly; and d) they conduct their operations in accordance with the laws and customs of war.

3) the inhabitants of unoccupied territory who, on approach of the enemy, spontaneously take arms to resist the
invading troops without having had time to organize themselves, provided only that they carry arms openly and
observe the laws and customs of war. This is often referred to as levee en masse.

4) the officers and crew of merchant vessels who forcibly resist attack.

What are the rights accorded to combatants when captured?

1) right to the proper respect commensurate with their rank;

2) right to adequate food and clothing;

3) right to safe and sanitary quarters;

4) right to medical assistance;

5) right to refuse to give military information or render military service against their own state;

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 6) right to communicate with their families.

Non-combatants or those who do not engage directly in hostilities do not enjoy identical rights when
captured but are protected from inhumane treatment under the Geneva Convention of 1949 relative to the
treatment of civilian persons in time of war.

What are the three basic principles underlying the rules of warfare?

1) principle of military necessity

Under this principle, the belligerents may, subject to the other principles, employ any amount and kind of
force to compel the complete submission of the enemy with the least possible loss of lives, time and money.
Measures such as sieges, blockades, bombardments, and devastation of property, which may involve direct
hardships on the non-combatants within the area affected, are undertaken under this principle.

2) principle of humanity

This principle prohibits the use of any measure that is not absolutely necessary for the purposes of the war,
such as the poisoning of wells and weapons, the employment of dumdum or expanding bullets and asphyxiating
gases, the destruction of works of art and property devoted to religious or humanitarian purposes, the bombarding of
undefended places, and attack of hospital ships.

When an enemy vessel is sunk, the other belligerent must see to the safety of the persons on board. Pillage
( taking of goods by force in time of war) is prohibited. The wounded and the sick must be humanely treated without
distinction of nationality by the belligerent in whose power they are. The rule that a combatant who surrenders may
not be killed and the agreements relating to the treatment of prisoners of war also fall under this principle.

3) the principle of chivalry

This principle is the basis of such rules as those that require the belligerents to give proper warning before
launching a bombardment or prohibit the use of perfidy (treachery or faithlessness) in the conduct of hostilities.

False flags are not allowed in land warfare, but war vessels may sail under a flag not their own, subject only
to the requirement that they haul it down and hoist their own flag before attacking the other belligerent. Espionage is
also prohibited. (Ibid)

When can an individual be considered a spy?

An individual can only be considered a spy if, acting clandestinely or on false pretenses, he obtains, or
seeks to obtain, information in the zone of operations of a belligerent, with the intention of communicating it to the
hostile party. Spies are subject to the municipal law of the other belligerent except that, as provided in the Hague
Conventions of 1907, “ a spy taken in the act cannot be punished without previous trial”. A spy who succeeds in
rejoining his army and is later captured incurs no responsibility for his previous acts of espionage and is entitled to be
treated as a prisoner of war. (Articles 30 & 31 as cited in Cruz, 2000)

Is booty or personal property found in the battlefield subject to confiscation?

Yes, except only the personal belongings of the individual combatants which have no military value such as
jewelry.

Distinguish theatre of war from region of war?

The first is the place where the hostilities are actually conducted while the second is the greater area where
the belligerents may lawfully engage each other.

When is a territory deemed occupied by a belligerent?

It is deemed occupied when it is actually placed under the authority of the hostile army, but this occupation is
limited only to the area where such authority has been established and can be effectively exercised. It is not
necessary that every square foot of the territory in question be actually occupied, as it doubtless suffices that the
occupying army can, within a reasonable time, send detachment of troops to make its authority felt within the
occupied district. (Hyde, Vol.2, 364 cited in Cruz, 2000)

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What are the consequences of belligerent occupation?

1. It does not result in transfer or suspension of the sovereignty of the legitimate government although it may at the
moment unable to exercise it.

2. The belligerent occupant cannot perform such acts as declaring the independence of the occupied territory or
requiring its inhabitants to renounce their allegiance to the lawful government.

3. The belligerent is required to restore and ensure public order and safety while respecting, unless absolutely
prevented, the laws in force in the country more particularly with regard to family honor and rights, the lives of
persons, private property, and religious convictions and practice. (Hague Convention No. IV, 1907, Reg., Arts 53-56)

4. Whenever necessary, the belligerent occupant may promulgate new laws, non-political as well as political,
provided they do not contravene the generally accepted principles of international law. Political laws are
automatically abrogated upon the end of the occupation but the non-political laws may continue even beyond the
occupation unless they are expressly repealed or modified by the legitimate government. (Hilado vs Dela Costa, April
30, 1949)

5. The belligerent occupant is permitted to exact from the populace contributions over and above the regular taxes for
the needs of the army of occupation or for the administration of the territory. (HC No. IV, 1907, Reg., Arts 49-51) It
may also, for valuable consideration, make requisitions of things or services for the needs of the occupying forces.
(Ibid, Art.52)

6. The belligerent occupant is permitted to introduce military currency, provided the purpose is not to debase the
country’s economy. Thus, in Haw Pia vs China Banking Corporation (80 Phil 604), the Supreme Court upheld the
validity of the payments made by the plaintiff in Japanese military notes to settle a loan extended to her in Philippine
currency before the outbreak of the Pacific war.

7. Private property cannot be confiscated, but those susceptible of military use may be seized, subject to restoration
or compensation when peace is made. (HC No. IV, Reg., Arts 53-56) The property of municipalities and of
institutions dedicated to religion, charity and education, and the arts and sciences, even when state-owned, shall be
treated as private property, and their destruction is expressly forbidden. (Ibid)

8. The army of occupation can only take possession of cash, funds and realizable securities which are strictly the
property of the state, depots of arms, means of transport, stores and supplies, and generally movable property of the
state, depots of arms, means of transport, stores and supplies, and generally movable property belonging to the state
which may be used for military operations. (Ibid) All appliances, whether on land, at sea, or in the air, adapted for the
transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of
arms and generally all kinds of ammunition of war may be seized but must be restored and compensation fixed when
peace is made.(Ibid)

9. The occupying state shall be regarded only as administrator and usufructuary of public buildings, real estate,
forests, agricultural estates belonging to the hostile state and situated in the occupied territory. (Ibid, Art 55)

This rule was applied in Banaag vs Singson Encarnacion (April 19, 1949), where a lease of five years granted by
Philippine Executive Commission in 1942 over certain municipal fisheries was deemed automatically canceled upon
the re-establishment of the Commonwealth government. (Ibid)

What is the right of postliminy or postliminium?

It “is that in which persons or things taken by the enemy are restored to the former state on coming actually
into the power of the nation to which they belong”. (Vattel in Leitensdorfer vs Webb, 1 N.M. 34, 44 cited in Cruz, 2000)
In its broadened concept, the jus postliminium also imports the reinstatement of the authority of the displaced
government once control of the enemy is lost over the territory affected.

Thus, upon the end of a belligerent occupation, the laws of the re-established government are revived and
all acts taken by the belligerent occupant which it could not legally do under the law of nations, as well as lawful acts
of a political complexion, are invalidated.

What are the non-hostile intercourse?

1. A flag of truce is a white flag carried by an individual authorized by one belligerent to enter into communications
with the other. The bearer, or parlementaire, is entitled to inviolability as long as he does not take advantage of his

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privileged position to commit an act of treachery. But the other belligerent is not obliged to receive a flag of truce.
(HC No. IV, 1907, Reg., Arts. 32, 34; Fenwick, 578; Wilson and Tucker, 294 cited in Cruz, 2000)

2. Cartels are agreements to regulate intercourse during war on such matters as postal and telegraphic
communication, the reception of flags of truce, and the exchange of prisoners. A cartel ship is a vessel sailing under
a safe-conduct for the purpose of carrying exchanged prisoners of war.(Fenwick, 575; Wilson and Tucker, 295 cited in
Cruz, 2000)

3. A passport is a written permission given by the belligerent government or its authorized agent to the subjects of
the enemy state to travel generally in belligerent territory. (Wilson and Tucker, 295 cited in Cruz, 2000)

4. A safe-conduct is a pass given to an enemy subject or to an enemy vessel allowing passage between defined
points. This is given either by the belligerent government or by the commander of the area within which it is effective.
(Ibid)

5. A safeguard is a protection granted by a commanding office either to enemy persons or property within his
command. When it is enforced by a detail of men, they must use extreme measures, if necessary to fulfill their trust,
and are themselves exempt from attack or capture by the enemy.

6. A license to trade is a permission given by the competent authority to individuals to carry on trade even though
there is a state of war. A general license grants to all the subjects of the enemy state or to all its own subjects the
right to trade in specified places or in specified articles. A special license grants to a certain person the right to trade
in the manner specified in his license. (Ibid, 296)

Distinguish suspension of arms from armistice.

A suspension of arms is a temporary cessation of the hostilities by agreement of the local commanders for
such purposes as the gathering of the wounded and the burial of the dead. (Fenwick, 579; Wilson and Tucker, 297)
Whereas, armistice is the suspension of all hostilities within a certain area (local) or in the entire region of the war
(general) agreed upon by the belligerent governments, usually for the purpose of arranging the terms of the peace.
The purpose of the armistice is political while that of suspension of arms is military; armistice may be concluded only
by the commanders-in-chief of the belligerent governments while suspension of arms may be agreed upon by the
local commanders; and armistice is usually in writing while suspension of arms may be oral. (Cruz, 2000)

What is a cease-fire?

A cease-fire is an unconditional stoppage of hostilities by order of an international body like the UN Security
Council for the purpose of employing peaceful means of settling the differences between the belligerents. (Salonga
and Yap, 451-452 cited in Cruz, 2000)

What is a truce?

A truce is sometimes used interchangeably with armistice but is now generally regarded as a cease-fire with
conditions attached. (Fenwick, 579 cited in Cruz, 2000)

What is a capitulation?

It is the surrender of military forces, places or districts in accordance with the rules of military honor. (HC No.
IV, 1907, Reg. Art. 35)

How may war be terminated?

War may be terminated by any of the following:

1) simple cessation of hostilities

Among the wars that were terminated by simple cessation of hostilities are those between Sweden and
Poland in 1716, between France and Spain in 1720, between Spain and its American colonies in 1825, and between
France and Mexico in 1862-67. Under this method, property or territory in the possession of the respective
belligerents upon the termination of the war is retained by them in accordance with the principle of uti possidetis.
This is to be distinguished from the usual stipulation for the status quo ante, which calls for the complete
restoration to their former owners of property or territory that may have changed hands during the hostilities, with the
exception only of prize and booty.

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 2) negotiated treaty of peace

At times, belligerents may be unable to effect a decisive victory against each other and may decide finally to
settle their disagreement in what is known as a negotiated treaty of peace. One example was the case of Great
Britain and the US when they terminated the War of 1812 with the conclusion of the Treaty of Ghent.

3) defeat of one of the belligerents

The surrender of the defeated belligerent may either be conditional or unconditional. In the former case, a
treaty of peace is concluded embodying the condition specified in the surrender; in the latter, the victorious belligerent
usually issues a unilateral declaration announcing the end of the war, to be followed with a peace treaty dictated by it
and specifying the rules on the settlement of the obligations of the vanquished state and the disposition of its
territories.

What are the consequences of war?

1) the implied judgment that the vanquished belligerent is the guilty party in the dispute that caused the hostilities;

2) nationals of the vanquished state may be protected and punished as war criminals and for other violations of
international law who may not escape responsibility on the ground that they were merely acting on orders of their
state; here the state itself is liable for issuing such orders and the individuals for obeying them provided a moral
choice was possible

In Yamashita vs Styer (75 Phil 563), the Commander General of the Imperial Japanese Forces in the
Philippines was convicted of war atrocities by a military commission and sentenced to death by hanging. He
questioned his trial and conviction on the ground that the military commission had no authority or jurisdiction to try
him, but the Philippine Supreme Court and the US Supreme Court affirmed the sentence. The latter court declared
that the acts directed against the civilian population of an occupied country and against prisoners of war are
recognized in international law as violations of the law of war. (Cruz, 2000)

When is a state said to be neutral?

A state is neutral if it does not take part, directly or indirectly, in a war between other states.

How does neutrality differ from neutralization?

Neutrality is dependent solely on the attitude of the neutral state, which is free to join any of the belligerents
anytime it sees fit, while neutralization is the result of a treaty wherein the duration and the other conditions of the
neutralization are agreed upon by the neutralized state and other powers. This agreement governs the conduct of
the signatories whereas neutrality is governed by the general law of nations. Neutrality obtains only during war while
neutralization is intended to operate in time of peace as well as in time of war. Only states may become neutral but
portions of states, like islands, rivers and canals, may be neutralized.

May there be neutrality among members of the UN?

Yes, a state can become a member of the UN and still maintain its neutrality. At present, several neutral
states, like Austria, Finland, Ireland, Sweden, and recently Switzerland in 2002, are members of the UN. (sarmiento,
2007)

What are the rights and duties of a neutral state?

A neutral state has the right and duty to abstain from taking part in the hostilities and from giving assistance
to either belligerent; to prevent its territory and other resources from being used in the conduct of hostilities by the
belligerents, and to acquiesce in certain restrictions and limitations that the belligerents may find necessary to
impose, especially in connection with international commerce. (Schwarzenberger, 208, cited in Cruz, 2000)

What are the obligations of belligerents?

They are bound to respect the status of the neutral state, avoiding any act that will directly involve it in their
conflict, and to submit to any lawful measures it may take to maintain or protect its neutrality.

Is the use of neutral territory completely barred to the belligerents?

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 No. The passage of sick and wounded troops is allowed through a neutral state provided personnel and
materials of war are not also carried. (HC V 1907 Art. 12.) Persons bound for enlistment in the belligerent armies
may cross the neutral frontiers if they do so individually or separately and nota s a body. (HC V 1907 Art 6) The
neutral state itself may give refuge to troops from the belligerent forces but must intern them as far as possible, at a
distance from the theater of war. (HC V 1907 Art. 11) Escaped prisoners of war need not be detained by the neutral
state but must be assigned a place of residence if they are allowed to remain. (HC V 1907 Art 13)

Is the neutral state obliged to prevent the export from or transit through its territory of war supplies
purchased from private traders by the belligerents in the ordinary course of commerce?

No. But it is required to take reasonable diligence in preventing the delivery of vessels constructed and
armed in its territory for use by any of the belligerents. (in Alabama Claims Case, Great Britain was found liable in
damages to the US for violation of this duty)

Is the neutrality of one state compromised when its nationals enlist in a belligerent army or engage in
commerce with any of the belligerents?

No. The neutrality of the state is not compromised in the absence of special rules imposing upon the neutral
state the duty of intervening in the transaction. Except for these, international law considers the relationship as
strictly between the individual and the belligerent states and whatever hardships may be suffered by its nationals as a
result thereof must, as a rule, be acquiesced in by the neutral state.

What is contraband?

It refers to goods which, although neutral property may be seized by a belligerent because they are useful
for war and are bound for a hostile destination. Absolute contraband are necessarily useful for war under all
circumstances, like rifles and ammunition (Declaration of London, Articles 22, 24), whereas conditional contraband,
like food and clothes, have both civilian and military purposes. “Free list” includes goods useful for war and bound
for the belligerents but exempted from the law on contraband for humanitarian reasons like medicines and medical
supplies for the use of the sick and the wounded.

Absolute contraband are subject to seizure so long as they are bound for enemy or enemy-held territory,
(Ibid, Art 29) but conditional contraband may be seized only when it can be shown that they are destined for the
armed forces or the authorities of the belligerent government. (Ibid, Art. 33)

What is the doctrine of ultimate consumption?

Under this doctrine, goods intended for civilian use which may ultimately find their way to and be consumed
by the belligerent forces are also liable to seizure on the way. (Cruz, 2000)

What is the doctrine of infection?

Under this doctrine, if innocent goods belonging to the same owner are shipped together with contraband
which are subject to condemnation, innocent goods may also be confiscated. (Declaration of London, Art. 42)

Is the vessel carrying the contraband subject also to confiscation?

Only if the contraband are more than one-half of the total cargo by weight, value, freight or volume (Ibid, Art
40)

What is the doctrine of ultimate destination?

Under this doctrine, the liability of contraband to capture is determined not by their ostensible but by their
real destination. (Cruz, 2000)

This doctrine is called the doctrine of continuous voyage when the goods are reloaded at the intermediate
port on the same vessel and the doctrine of continuous transport when they are reloaded on another vessel or other
form of transportation. (Ibid)

What is unneutral service?

It consists of acts, of a more hostile character than carriage of contraband or breach of blockade, which are
undertaken by merchant vessels of a neutral state in aid of any of the belligerents. (Ibid)

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When is a neutral vessel liable to condemnation for unneutral service?

a) if it is making a voyage special with a view to the transport of individual passengers who are embodied in the
armed forces of the enemy or with a view to the transmission of information in the interest of the enemy; or

b) if with the knowledge of the owner, or the one who charters the entire vessel, or of the master, it is transporting a
military detachment of the enemy or one or more persons who, during the voyage, lend direct assistance to the
operations of the enemy. The cargo, if belonging to the owner of the vessels, is likewise confiscable.(Declaration of
London, Art. 45)

When is a neutral vessel liable to condemnation and to be treated as a merchant vessel of the enemy?

a) if it takes a direct part in the hostilities;

b) if it is under the orders or control of an agent placed on board by the enemy government;

c) if it is chartered entirely by the enemy government; or

d) if it is at the time and exclusively either devoted to the transport of enemy troops or the transmission of information
in the interest of the enemy. The goods belonging to the owner of the vessel are likewise liable to condemnation.
(Ibid, Art 46)

What is angary?

By the right of angary, a belligerent may, upon payment of just compensation, seize, use or destroy, in case
of urgent necessity for purposes of offenses or defense, neutral property found in its territory, in enemy territory, or on
the high seas. (Oppenheim-Lauterpacht, Vol 2, 28 cited in Cruz, 2000)

Thus, the exercise of this right is conditioned upon three requisites:

a) that the property is in the territory under the control or jurisdiction of the belligerent;

b) that there is urgent necessity for the taking; and

c) that just compensation is paid to the owner. (Cruz, 2000)

What is a prize court? What are its duties and jurisdiction?

Prize courts are domestic tribunals of a belligerent state that determined the legality of the capture by a
belligerent of enemy or neutral merchant vessels and of their liability to confiscation.

Although the authority and the jurisdiction of prize courts were derived from national law, the rules which
they applied were the rules of International Law, except in so far as special national legislation might have prescribed
a particular interpretation of these rules. (Fenwick, 644 cited in Sarmiento, 2007)

How is neutrality terminated?

1) when the neutral state itself joins the war;

2) upon the conclusion of peace (Cruz, 2000)

Do civil wars or rebellion violate international law?

No, Article 2(4) of the UN Charter does not apply to internal conflicts. (Bernas, 2009)

Is outside help for governments experiencing rebellion legitimate?

Generally, yes, provided requested by the government. However, aid to rebels is contrary to international
law.

What international law on armed conflict is applicable to internal conflicts?

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 Common Article 3 of each of the four Geneva Conventions provides for minimum humanitarian protection in
cases of internal conflict.

What is Protocol II?

It is the first and only international agreement exclusively regulating the conduct of parties in a non-
international armed conflict promulgated in 1977. It “develops and supplements Article 3 common to the Geneva
Conventions of 12 August 1949 without modifying its existing conditions or application.” A definition of a non-
international armed conflict covered by this expanded guarantee is found in Article 1. It states:

A non-international armed conflict are armed conflicts which take place in the territory of a High Contracting
Party between its armed forces and dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol. (Bernas, 2009)

Is Protocol II applicable to situations of internal disturbances and tensions?

No, Protocol II shall not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence and other acts of a similar nature, as not being armed conflicts. (Art 1 of the Protocol II)
This is true even if the armed forces of the territory may have been called upon to suppress the disorder. (Ibid)

May terrorist attacks be the subject of an enforcement action by the UN Security Council?

Yes, terrorist attacks may be considered as threats to international peace and security which would justify
the calling of enforcement actions under Chapter VII of the UN Charter. (Sarmiento, 2007)

Are terrorist acts subject to IHL?

No. Banditry, unorganized and short-lived insurrections, and terrorist activities are not subject to IHL. (Ibid)

CHAPTER 12

Supplemental Notes

Rights of Refugees

What does the term “refugee” mean?

The term shall apply to any person who, owing to well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who,
not having a nationality and being outside the country of his former habitual residence as a result of such events, is
unable or, owing to such fear, is unwilling to return to it. (Art 1 of the 1951 Convention relating to the Status of
Refugees [Refugee Convention], which entered into force on April 22, 1954, and as modified by the 1966 Protocol
relating to the Status of Refugees, which entered into force on October 4, 1967 as cited in Sarmiento, 2007)

What are the obligations of refugees to the country where they find themselves?

He should conform to its laws and regulations as well as to measures taken for the maintenance of public
order. (Refugee Convention, Art 2 cited in Sarmiento, 2007)

What are the rights of refugees?

Under the 1951 Refugee Convention, the contracting states shall accord to refugees within their territories
treatment at least as favorable as that accorded tot heir nationals with respect to:

a) freedom to practise their religion and freedom as regards the religious education of their children; (Art 4)

b) protection of industrial property, such as inventions, designs or models, trade marks, trade names, and of rights in
literary, artistic and scientific works; (Art.14)

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c) access to the courts, including legal assistance and exemption from cautio judicatum solvi; (Art 16)

d) general distribution of products in short supply; (Art 20)

e) housing; (Art 21)

f) public elementary education; (Art 22)

g) public relief and assistance; (Art 23)

h) labor legislation and social security benefits. (Art 24)

Moreover, the contracting states shall accord to refugees treatment as favorable as possible and, in any
event, not less favorable than that accorded to aliens generally in the same circumstances, as regards:

a) the acquisition of movable and immovable property and other rights pertaining thereto; (Art 13)

b) participation in non-political and non-profit making associations and trade unions; (Art 15)

c) the right to engage in wage-earning employment; (Art 17)

d) the right to engage on his own account in agriculture, industry, handicrafts and commerce and to establish
commercial and industrial companies; (Art 18)

e) the practice of a liberal profession; (Art 19)

f) right to choose their place of residence and to move freely within its territory. (Art 26)

Furthermore, the contracting states shall issue identity papers and travel documents to any refugee in their
territory who does not possess a valid travel document. (Arts 27, 28) (Ibid)

May a state party to the 1951 Refugee Convention expel a refugee from its territory?

As a state party to the 1951 Refugee Convention, it shall not expel a refugee in their territory save on
grounds of national security or public order. In any event, the expulsion of such a refugee shall be only in pursuance
of a decision reached in accordance with due process of law.

Except where compelling reasons of national security otherwise require, the refugee shall be allowed to
submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or
a person or persons specially designated by the competent authority.

The state party shall also allow such a refugee a reasonable period within which to seek legal
admission into another country. (Art 32) (Ibid)

Is there a right of asylum under International Law?

Articles 13 and 14 of the Universal Declaration of Human Rights and the General Assembly’s 1967
Declaration on Territorial Asylum recognize the “right to leave any country, including one’s own” and the “right to seek
and to enjoy in other country’s asylum from persecution.” Those rights, however are not coupled with a
corresponding state obligation to grant asylum.

Thus, all states have the right to grant asylum, but the individual has no right to demand asylum. (Malone,
127 cited in Sarmiento, 2007)

What is diplomatic asylum?

It is the granting of refuge by a state in its embassies, ships or aircraft in the territory of another state. Once
diplomatic asylum is granted, there is a right of safe conduct from the foreign state. Beyond that, the rules of asylum
are generally based on treaty rather than on Customary International Law. (Malone, 128 cited in Sarmiento, 2007)

What is the principle of nonrefoulement?

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 No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion.

However, this would not apply where there are reasonable grounds for regarding the refugee as a danger to
the security of the country in which he is, or who, having been convicted by a final judgment of a particular serious
crime, constitutes a danger to the community of that country. (Refugee Convention, Art.33 cited in Sarmiento, 2007)

International Environmental Law

How does the Philippine Constitution express the concern about the environment?

Article II, Section 16 provides that, “ The State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature.”

The discussions in the 1986 Constitutional Commission manifested a clear desire to make environmental
protection and ecological balance conscious objects of police power. (4 Record of the Constitutional Commission
912-916 cited in Bernas, 2009)

What are the foremost environmental cases decided by the Supreme Court upholding the constitutional
provisions on environmental concerns?

1. Oposa vs Factoran 224 SCRA 792 (1993)

2. LLDA vs CA 231 SCRA 292 (1994)

3. Social Justice Society vs Atienza February 13, 2008

4. MMDA vs Residents of Manila Bay December 18, 2008

Why is the protection of the environment considered a challenge to the development of international law?

The protection of the environment is considered a challenge to the development of international law because
its demands cannot be met without intrusion into the domestic jurisdiction and sovereignty of states. The nature and
magnitude of the challenge are such that they require not only the joint action of states but also the involvement of
non-state actors. (Bernas, 2009)

What consist concern of environmental protection?

The concern of environmental protection is not just about the atmosphere, the sea, the land, flora and fauna.
It is also about the preservation of the cultural heritage of mankind as found in archeological and artistic remains.
(Ibid)

What is the goal of environmental protectionists?

Their goal is the rational use of the elements that make up the environment through control, reduction and,
wherever possible, elimination of the causes of environmental degradation. (Ibid)

Are environmental concerns related to human rights issues?

Yes, they are inseparably related. In the Danube Dam Case, the ICJ held that, “The protection of the
environment is a …vital part of contemporary human rights doctrine, for it is a sine qua non for numerous human
rights such as the right to health, and the right to life itself.” (ICJ Rep 1997 cited in Bernas, 2009)

Who have environmental rights?

The real object of protection in protecting the environment are persons capable of having rights. (Ibid)

What is sustainable development?

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 It is an important concept in the field both of economics and environmental rights. The concept of
sustainable development encourages development in a manner and according to methods which do not compromise
the ability of future generation and other states to meet their needs. (Ibid)

What is long-range transboundary air pollution?

It means air pollution whose physical origin is situated wholly or in part within the area under the national
jurisdiction of one State and which has adverse effects in the area under the jurisdiction of another State at such a
distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of
sources. (1979 Convention on Long-Range Transboundary Air Pollution, Art. 1[b] cited in Sarmiento, 2007)

What is the Good Neighborliness principle?

This principle prohibits States from using or permitting the use of its territory in a manner that is injurious to
another State, or that other State’s persons or property. This principle is now codified in Principle 21 of the Stockholm
Declaration and in principle 2 of the Rio Declaration (Earth Summit). (Sarmiento, 2007)

What Roman law principle underlies the Good Neighborliness Principle?

Sic utere tuo ut alienum non laedas. So use your own as not to injure the rights of others. (Ibid)

What are the possible bases of liability for transboundary pollution under International Law?

There are several theories of liability for transboundary pollution:

a) An absolute duty to protect against harm from ultrahazardous activities, which if violated, results in a state being
held strictly liable;

b) “Abuse of Rights” Theory: responsibility for negligent or intentional acts;

c) “Good Neighborliness” Principle: liability for a State which permits transboundary pollution to exceed that which
neighbors can reasonably be expected to endure. (Malone, 217 cited in Sarmiento, 2007)

What are the major instruments that have shaped the modern development of international environmental
law?

a) The Stockholm Declaration on the Human Environment which was adopted at the 1972 UN Convention on the
Human Environment, held in Stockholm, Sweden;

b) The Rio Declaration on Environment and Development, which was adopted at the 1992 Rio Conference on
Environment and Development, also known as the “Earth Summit” – it reaffirms the Stockholm Declaration with the
goal of establishing a new and equitable global partnership through the creation of new levels of cooperation among
States, key sectors of societies and people. (Ibid)

What are the important principles contained in the Stockholm Declaration on the Human Environment?

a) Principle 1: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment
of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations.

b) Principle 21 (Principle of Good Neighborliness) States have the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or
control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction.

c) Principle 22: States shall cooperate to develop further the International Law regarding liability and compensation
for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of
such states to areas beyond their jurisdiction. (Ibid)

What are some of the important principles contained in the 1982 Rio Declaration (Earth Summit)?

a) Principle 2: States have the sovereign right to exploit their own resources pursuant to their own environmental and
developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause
damage to the environment of other States or of areas beyond the limits of national jurisdiction.

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b) Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental
needs of present and future generations.

c) Principle 13: States shall develop national law regarding liability and compensation for the victims of pollution and
other environmental damage.

d) Principle 18: States shall immediately notify other States of any natural disasters or other emergencies that are
likely to produce sudden harmful effects on the environment of those States. Every effort shall be made by the
international community to help States so afflicted.

e) Principle 24: warfare is inherently destructive of sustainable development. States shall therefore respect
International Law providing protection for the environment in times of armed conflict and cooperate in its further
development, as necessary.

f) Principle 26: States shall resolve all their environmental disputes peacefully and by appropriate means in
accordance with the Charter of the UN. (Ibid)

What is the Principle of Common but Differentiated Responsibility?

This principle is embodied in Principle 7 of the Rio Declaration which states:

“States shall cooperate in a spirit of global partnership to conserve, protect

and restore the health and integrity of the earth’s ecosystem. In view of the different

contributions to global environmental degradation, States have common but

differentiated responsibilities. The developed countries acknowledge the responsibility

that they bear in the international pursuit to sustainable development in view of the

pressures their societies place on the global environment and of the technologies and

financial resources they command.” (Ibid)

What is the Precautionary Approach?

This approach is contained in Principle 15 of the Rio Declaration, which states:

“In order to protect the environment, the precautionary approach shall

be widely applied by States according to their capabilities. Where there are

threats of serious or irreversible damage, lack of full scientific certainty shall

not be used as a reason for postponing cost-effective measures to prevent

environmental degradation.” (Ibid)

May a State be held responsible by another State for transboundary pollution caused by private parties
within its jurisdiction?

Yes. The Trail Smelter Case (US vs Canada, 1941) established the two fundamental principles of liability for
transboundary pollution under International Law:

a) First, a state must show material damage and causation to be entitled to legal relief; and

b) Second, a state has a duty to prevent, and may be held responsible for pollution by private parties within
its jurisdiction if such pollution results in demonstrable injury to another state.

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 In the said case, the Arbitration Tribunal held that Canada was legally responsible for the actions of
the privately-owned smelter near Trail, Canada, ordered Canada to pay damages, and required the smelter
to refrain from causing further damage in the US. (Ibid)

May a downstream state object to the use of the water by an upstream state?

A downstream state may not oppose the upstream state’s use of the water provided the upstream state will
not alter the waters of a river or lake. (Lake Lanoux Arbitration, France vs Spain cited in Sarmiento, 2007)

nternational Economic Law

What is international economic law?

“The law of international economic relations in its broadest sense includes all the international law and
international agreements governing economic transactions that cross state boundaries or that otherwise have
implications for more than one state, such as those involving the movement of goods, funds, persons, intangibles,
technology, vessels or aircraft.”( The 3rd Restatement of Foreign Relations Law cited in Bernas, 2009)

What are the four characteristics of IEL?

1. IEL is part of international law as treaties make this so.

2. IEL is intertwined with municipal law since the balancing of economic treaty law with municipal law is important.

3. IEL requires multi-disciplinary thinking involving not only economics but also political science, history, anthropology,
geography, and other disciplines.

4. Empirical research is very important for understanding its operation. (Ibid)

What were the two main objectives of the Bretton Woods Conference of 1944?

1. to advance the reduction of tariffs and other trade barriers; and

2. to create a global framework designed to minimize economic conflicts (Ibid)

What were the economic institutions established out of the mentioned conference?

1. International Monetary Fund

Its function was to provide short-term financing to countries in balance of payments difficulties.

2. International Bank for Reconstruction and Development (World Bank)

It was designed to provide long-term capital to support growth and development.

3. International Trade Organization (ITO)

It was intended to promote a liberal trading system by proscribing certain protectionist trade rules.

The intended function of the ITO was eventually taken over by the General Agreement on Tariff and Trade
(GATT) and its successor the World Trade Organization. (Ibid)

What are the most important trade oriented institutions?

The GATT and the WTO are the most important trade oriented institutions. They shape domestic import and
export laws which impact on international trade on goods and services.

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 GATT went through a series of modifications Rounds with the Uruguay Round of 1994 as the final one. The
final agreement proposed the establishment of a World Trade Organization which would oversee the operation of
GATT and a new General Agreement on Trade and Services. (Ibid)

What are the key principles of international trade law?

1. Agreed tariff levels

The GATT contains specified tariff levels for each state and each state agrees not to raise tariff levels above
those contained in the schedule though these can be renegotiated.

2. The most favored nation principle (MFN)

This clause embodies the principle of non-discrimination. This means that any special treatment given to a
product from one trading partner must be made available for like products originating from one trading partner must
be made available for like products originating from or destined for other contracting partners. In practice, this
generally refers to tariff concessions.

3. Principle of national treatment

This prohibits discrimination between domestic producers and foreign producers. In practice, this means
that once foreign producers have paid the proper border charges, no additional burdens may be imposed on foreign
products.

4. Principle of tariffication

The principle prohibits the use of quotas on imports or exports and the use of licenses on importation or
exportation. The purpose of the principle is to prevent the imposition of non-tariff barriers. But GATT provides for
exceptions on a quantitative and temporary basis for balance of payments or infant industry reasons in favor of
developing states.(Ibid)

What are the exceptions to key principles?

1. exceptions which are general in nature such as those referring to public morals, public health, currency protection,
products of prison labor, national treasures of historic, artistic or archeological value, and protection of exhaustible
natural resources;

2. security exceptions and regional trade exceptions; and

3, exceptions for developing nations. (Ibid)

How does WTO provide for dispute resolution?

A Dispute Settlement Body (DSB) has been established by the WTO Agreement which consists of the
General Council of the WTO and operates under the Understanding on Rules and Procedures Governing the
Settlement of Disputes 1994 (DSU). Each state has a right to the establishment of a Panel. The DSU has also
provided for a permanent Appellate Body, consisting of persons with recognized expertise in law, to handle appeals
from a Panel decision.(Ibid)

What consist the expanded scope of the multilateral trade regime of the Uruguay Round of 1994?

It now includes intellectual property, services, sanitary and physiosanitary measures and investment, as well
as the strengthening of the rules on subsidies, countervailing duties and antidumping.

Thus, IEL has become a very specialized field and it is affecting the sovereignty of states and their capacity
to give force to national policy objectives. (Ibid)

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