Professional Documents
Culture Documents
What is a Treaty?
Elements: International agreement
States
Written
Governed by international law
[VCLT, Article 2(1)(a) and ILC Commentary]
Capacity: National/Federal Government
(but resort to Federal Constitution with regard to component state)
[VCLT, Article 6]
Bayan Muna v. Romulo (GR 159618, February 1, 2011) The RP-US NonSurrender Agreement is an Exchange of Notes constituting an intergovernmental agreement. It is an international agreement but not in treaty
form. It does not contravene the Rome Statute because the ICC recognizes the
primacy of international agreements. Primary jurisdiction rests upon the state
and secondarily with the ICC.
China National Machinery v. Santamaria (665 SCRA 189) A contract entered
into between non-state entities does not constitute an executive agreement as in
this case, North Luzon Railways Corp. and China National Machinery and
Equipment Corp.
(iii) Reservations to Treaties
GR allowed
Exceptions:
1. if prohibited by treaty itself
2. if only specific reservations are allowed
3. if incompatible with treaty purpose
Form of reservations/withdrawal/objection:
written & communicated
[VCLT, Articles 19-23]
Case law:
Reservations to the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide (Advisory Opinion, I.C.J. Reports, 1951) On the effect of
absence of reservation clause in a Convention; reservations were contemplated
but the purpose of the treaty tended to discourage; intent to prevent an
international crime.
(NOTE: in the International Criminal Court, no reservations are permitted,
Article 120)
(iv) Interpretation of Treaties
GR 1. interpret in good faith
2. ordinary meaning of word in context (resort to related text)
3. relate to object and purpose
Exception give special meaning, if parties intended
[VCLT, Articles 31-32]
Case law:
Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion, I.C.J.
Reports 221, 1950) In a dispute concerning the Peace Treaties of 1947, three
signatory states refused to comply with a three-person panel dispute settlement
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procedure for the purpose of interpreting the treaty whereby parties are required
to appoint their own representatives and, by mutual agreement, a third neutral
member of a Commission; the U.N. General Assembly asked whether the
Secretary-General may now appoint the third neutral member; in answering in
the negative, the Court observed that according to the natural and ordinary
meaning of the terms, it was intended that the appointment of the national
commissioners should precede that of the third member. Thus, the three states
(Bulgaria, Hungary and Romania) are under an obligation to appoint their
representatives to the Treaty Commissions, failing which will entail
international responsibility.
(v) Peremptory Norms of International Law Jus Cogens
GR- parties cannot enter into a treaty contrary to jus cogens or norms recognized
and accepted by the international community; non-derogable.
Examples: unlawful use of force, commission of a criminal act, trade in slaves,
piracy, genocide, human rights violations, equality of states, and selfdetermination.
[VCLT, Article 53]
(vi) Withdrawal, Termination and Rebus sic stantibus
GR allowed to withdraw in conformity with treaty and anytime with the consent
of all
Exception if no provision
Exception to exception
1. if parties intended to allow withdrawal
2. if implied by the nature of the treaty
Effect of later treaty later one prevails, if all parties conclude and they intended
later one to govern; or, if later one is incompatible with earlier one.
Rebus sic stantibus:
GR any unforeseen or fundamental change not a ground for termination or
suspension
Exception
1. if essential basis of consent, and
2. if obligation is transformed radically
Exception to exception
1. treaty establishing boundary (uti possidetis - African and South American
experience after colonizers left; intended to preserve territorial integrity in
cases of state succession.); or,
2. if the fundamental change arose from a breach by the invoking party
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Nicaragua v. U.S. ( I.C.J Reports, 1986) A formal communication that had been
committed to the OAS was held not to be a formal undertaking, but a mere political
pledge.
(ii) General Assembly Resolutions
GR resolutions and declarations of international organs can be recognized as a factor in
the custom-generating process (evidence of general practice)
Case law:
Dissenting Opinion of Judge Tanaka in the South-West Africa Cases (I.C.J. Reports,
1966) Concept of parliamentary diplomacy; resolutions and declarations of
international organizations as evidence of a general practice.
(iii) Decisions of International Organizations
R. Higgins, The Advisory Opinion on Namibia: Which U.N. Resolutions are Binding
Under Article 25 of the Charter?
GR U.N. General Assembly resolutions are merely recommendatory
Exceptions obligatory and with binding effect on all members in relation to:
1. admission of new members
2. budget approval
3. apportionment of expenses
(NOTE: Article 25 of the U.N. Charter states that U.N. members agree to accept and
carry out the decisions of the Security Council; interpreted to mean Art. 24, Ch. VIVIII on peace and security matters, i.e. intended to be obligatory.)
(iv) The Limits of State Practice
Persistent Objector a state that has persistently objected to a rule of customary
international law during the course of its emergence is not bound; this has limited role
today; in cases of new states, they are bound by customary international law (not
treaties) as a consequence of statehood
(c) Domestic Law
(i)
Diversion of Waters from the River Meuse (P.C.I.J series A/B, No. 70, 4 W.C.R. 179,
1937) Recognition of equity as part of international law in no way restricts the
(international) Court to decide the case ex aequo et bono, if the parties agree.
Distinction between equity and deciding a case ex aequo et bono:
1. Equity law cannot cover every possible situation, so, cases may be decided
using equitable principles.
2. Ex aequo et bono power of ICJ to decide a case equitably outside the rules of
law.
Other examples of general principles of law: principles of liability, responsibility,
reparation, unjust enrichment, property, expropriation, indemnity, denial of justice,
right of passage, prescription, error, presumption, administrative law, procedure,
humanity, good faith, pacta sunt servanda, estoppel and human rights
(ii) Application of International Law by Domestic Courts
Case law:
Filartiga v. Pena-Irala (630 F. 2d 876, 1980) - Joelito Filartiga was kidnapped and
tortured to death by Pena-Irala who was Inspector-General of Police of Paraguay; torture
may be perpetrated under color of official authority against anyone regardless of
nationality; U.S. Alien Tort Law allowed aliens to sue and have rights (recognized in
international law) enforced before U.S. courts even for acts committed outside the U.S.
provided there is jurisdiction over the defendant in the U.S.; torturer, for civil liability
purposes, is hostis humani generis or enemy of all mankind.
Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977) schools
of thought in adopting international law to a domestic system:
1. incorporation automatic; except if in conflict with domestic system
2. transformation international law adopted thru decisions of judges, law or custom
Philippine Practice: Article 2, Sec. 2 of the Constitution:
The phrase adopts the generally accepted principles of international law as part of the
law of the land does not refer to treaties but customary international law (whether or not
codified in a treaty) and other general principles of law.
Case law:
Tanada v. Angara (272 SCRA 18) Doctrine of incorporation applied in regard to
obligations arising from ratification of GATT-WTO; pacta sunt servanda was invoked.
Mijares v. Hon. Ranada (GR 1393325, April 12, 2005) Recognition and enforcement
of judgments is among the generally accepted principles of international law.
(iii)
1. Monism- international law and municipal law belong to only one system with
international law as superior to domestic law; locates basic norm of the national legal
system in the norm of international law;
2. Dualism- international law as distinct from the domestic law system; dualism of
legal origin, subjects and subject matter; sovereign act of municipal law means it
exceeded its competence in international law but does not void municipal law.
3. Inverted monism- municipal law as superior to international law; denies the term
law to international law.
4. Harmonization- the two legal systems are harmonized and given effect.
Chapter II.
(a) States
(i)
Characteristics of Statehood
Article 1 of the Convention on Rights and Duties of States (or the 1933 Montevideo
Convention) provides for the qualifications of a State:
1. permanent population
2. defined territory
3. government
4. capacity to enter into relations
Case law:
Case Concerning Rights of Nationals of the United States of America in Morocco
(I.C.J. Reports, 176, 1952) Even if Morocco is under the Protectorate of France,
the former is still a state in international law.
Report of the Fifth Committee of First Assembly of the League of Nations, with
reference to Admission to the League of Liechtenstein (6 December 1920) Even if
denied admission, it remains a sovereign state.
Recent cases: East Timor, (South) Sudan and Kosovo
(ii) Recognition
1. of States (widely practiced; does not presuppose recognition of government)
2 theories:
(a) Declaratory theory- possession of the essential elements
(b) Constitutive theory- recognition is what constitutes a State.
Status more of an optional and discretionary political act (as seen in the
cases of the former Yugoslavia and Soviet Union)
2. of governments (recognition presupposes recognition of State)
Case law:
Tinoco Arbitration, 1923- Even if not recognized, may be de facto; juridically
cognizable.
(iii) Self-determination
Case law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples (U.N. G.A. Res. 1514 (XV), 14 December 1960) Elements of the
right to self-determination of States:
1. right to determine political status; and,
2. right to pursue their economic, social and cultural development.
Case law:
Western Sahara Case (Advisory Opinion, I.C. J. Reports, 1975) ultimate
purpose of sacred trust was the self-determination and independence of the
peoples concerned; self determination may mean emergence of new state,
association or integration with an independent state.
Current cases on secession and the concept of shared sovereignty:
e.g. The Sudan Machakos Protocol: plebiscitory consent
Northern Ireland Good Friday Agreement: plebiscitory consent
Nepal Maoist power sharing
Aceh (Indonesia) limited autonomy
Quebec attempt at a legislative vote to secede
Kosovo
(iv) Non-State Entities
1. The Commonwealth of Australia v. the State of New South Wales (32 C.L.R.
200, 1923) New South Wales is not a foreign country which may be sued
without its consent.
2. Cultural Agreement Between Province of Quebec in Canada and
France Quebec is allowed to enter into such agreement due to the
special status accorded to it under the Canadian Constitution.
3. Mandate System
Case law:
International Status of South-West Africa (Advisory Opinion, I.C.J. Reports,
1950) Mandate created by the League of Nations elapsed when the
League ceased to exist.
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding Security Council Resolution
276 of 1970 (I.C.J. Reports, 1971) It is a general principle of law that the
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United Nations
Charter of the United Nations, Articles 1, 2, 7, 104
Case law:
Reparations for Injuries Suffered in the Service of the United Nations (I.C.J.
Reports, 1949) Capacity of U.N. under international law to sue for damage
caused to an agent in the form of an international claim; but this is not the same as
saying that it has the same rights and duties as a state; personality of the U.N. is
limited by the purpose of its Charter.
(ii)
(c) Individuals
(i) Classical Rule: Human rights human being as an object of international law.
(ii) Progression of the Rule: Human being as a subject of international in a limited way.
Case law:
Judgment of the Nuremberg Tribunal Law of war imposed a duty on individuals;
Article 228 of the Treaty of Versailles illustrates this view of individual responsibility;
acts deemed criminal in international law may be the subject of international claim; a
state cannot protect the individual accused of the crime if the state exceeded its
competence by allowing/ordering the individual to commit a crime vs. humanity;
officers liable but punishment may be mitigated if they merely followed orders.
(iii) Recent development:
1. Ad hoc International Criminal Tribunals (Former Yugoslavia, Rwanda and
Cambodia)
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2. Rome Statute of 1998 (ICC) Individuals may be tried for genocide, crimes
against humanity, war crimes and crime of aggression (core crimes);entry into
force: July 2002; aggression remains to be undefined; only covered crimes
committed after entry into force; no death penalty, no trial in absentia
(NOTE: The Philippine law in regard to international humanitarian law is R.A. 9851,
signed into law on December 12, 2009 before the Philippine ratification of the Rome
Statute. It defines punishable acts reflective of the relevant IHL instruments,
including the concept of command responsibility.)
(d) Corporations
Case law:
Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the
Government of the Libyan Arab Republic (Compensation for Nationalized Property,
Arbitral Awards on the Merits, 19 January 1977, 17 I.L.M., 1978) Internationalized
contracts entered into between a state and a foreign corporation gives the latter limited
capacity by invoking in international law the rights derived from the contract.
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Title to Territory
Case law:
Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent Court
of Arbitration Test of title in international law is continuous and peaceful
display of territorial sovereignty; forms of acquisition of title are:
1. occupation coupled with effectiveness
2. conquest (allowed before)
3. cession, and,
4. accretion;
(NOTE: In international law, title is not sufficient without the first element of
display of State functions.)
Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53, 1933)
Applied Island of Palmas Case.
Western Sahara Case (Advisory Opinion, I.C.J. Reports, 1975)
For occupation to operate, territory must be terra nullius, i.e. it belonged to no one
prior to occupation.
Philippine Application: Article 1 (National Territory) of 1987 Constitution
Sabah- cession
Spratlys- claimants: China, Vietnam, GRP, Malaysia, Brunei, Taiwan
-
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Government Position:
- GRP claims over other island groups: Paracels, Pratas, Macclesfield Bank,
Scarborough Shoal, Mischief Reef
- Effective occupation of Kalayaan Island Group by GRP through Tomas
Cloma, 1946; and through PD 1596 (1978) an administrative district was
formed to become a Municipality of the Province of Palawan
NOTE:
New Baselines Law is R.A. 9522 (2009): declared KIG and Scarborough Shoal as
regime of islands pursuant to Article 121 of UNCLOS III
Case Law:
Magallona v. Executive Secretary (GR 187167, August 16, 2011) R.A.
9522 is constitutional; it is not intended to delineate Philippine territory but
merely regulates sea-use rights over maritime zones and continental shelves that
UNCLOS delimits.
(ii) Airspace (flight space)
Paris Convention, October 13, 1919 State with exclusive sovereignty.
Convention on International Civil Aviation, signed at Chicago on 7 December 1944
prohibits entry of state aircraft without authorization by special agreement
(iii) Internal and Territorial Waters
Case law:
Fisheries Case (United Kingdom v. Norway, I.C.J. Reports, 1951) Straight
baseline allowed and delimitation of territorial waters.
The Corfu Channel Case (I.C.J. Reports, 1949) Innocent passage in international
straits allowed.
1982 Convention on the Law of the Sea, Articles 3, 8
(b) Jurisdiction over Adjacent Maritime Seas
(i)
Continental Shelf
Case law:
North Sea Continental Shelf Cases (Germany v. Denmark/Holland, 8 I.L.M.
340, 1969) What confers title ipso jure to continental shelf is the fact that the
submarine areas concerned may be deemed to be actually part of the territory
of the coastal state in the sense that, although covered with water, they are a
prolongation or continuation of that territory.
Gulf of Maine (Canada/USA, I.C.J. Reports, 1984)
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Criminal Jurisdiction
1. On the general theory of criminal jurisdiction
GR: Vessels on high seas are subject to authority of flag-State
Exception: piracy, slave trade, hot pursuit, right of approach
Case law: (old rule)
The S.S. Lotus (2 World Court Reports, 1920) Concurrent jurisdiction of flag
State and other State affected- this rule applies only if it happens on the high seas
(controversial decision; 6-6 vote); but see the new rule below.
New Rule: See A97, UNCLOS - the Rule today is that no penal or administrative
proceedings may be instituted against the master of a ship except before the
judicial or administrative authorities either of the:
a. flag State, or
b. State of which such person is a national.
The Attorney-General of the Government of Israel v. Eichmann (36 I.L.R. 277,
1962) Universal authority to try certain persons wherever found outside of the
place of the commission of crime; applies to serious crimes under international
law, such as, crimes against humanity, war crimes, piracy, slavery, crimes against
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Government of U.S.A. v. Hon. Purganan (GR 148571, Sept. 24, 2002)- The
right to bail in extradition is not available. The ultimate purpose of extradition
proceedings in court is to determine whether the extradition request complies
with the extradition treaty. But, in exceptional cases, bail may issue (as element
of due process), provided:
a. accused is not a flight risk; and,
b. compelling circumstances warrant.
Rodriguez v. RTC of Manila (GR 157977, February 27, 2006) A prospective
extraditee is entitled to notice and hearing before the cancellation of his or her
own bail.
(NOTE: Purganan ruling overturned by 2007 Govt. of Hongkong case.)
Government of Hongkong v. Olalia (G.R. 153675, April 19, 2007) The
modern trend in public international law is the primacy placed on the worth of
the individual person and the sanctity of human rights. While extradition is not
a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and, (b) the means
employed to attain the purpose of extradition is also the machinery of criminal
law. While our extradition law does not provide for the grant of bail, there is no
provision prohibiting the extraditee from filing a motion for bail, a right to due
process. The extraditee must establish clear and convincing proof that he or
she is not a flight risk and will abide with all the orders of the extradition court.
4. On the rules governing commission of crimes on board an aircraft
Tokyo Convention of 1963 for extradition purposes, a crime may be
considered as having been committed in the state of registry of the aircraft;
but jurisdiction by another Contracting State may be had if the offense:
(a) has an effect on its territory;
(b) has been committed by or against its national or a permanent resident
therein;
(c) is against its national security;
(d) relates to a breach of its national rules on flight;
(e) is the subject of an exercise of jurisdiction necessary to ensure the
observance of an obligation of such state under a multilateral agreement.
Montreal Convention of 1971- Article 8(2) becomes the basis for extradition
even if there is no extradition treaty with another party to the Convention.
5. On Visiting Forces/Military Bases see Nicolas case.
(ii) Civil Jurisdiction
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R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws;
Sherman Act of 1890 and Federal Trade Commission Act and Clayton Act of
1914 intended to protect trade and commerce against unlawful restraints and
monopolies.; should not contradict the local law.
(iii) Immunity from Jurisdiction
1. State Immunity (Sovereign immunity): Head of State and the State itself
Basis: equality and independence of States
Distinguish:
a. Immunity of State- an aspect of act of State
b. Act of State theory- acts of State carried out within its own territory
cannot be challenged in the courts of other States; applies to acts of
agents of the State; exceptions: war crimes, crimes v. peace, crimes against
humanity. Rationale: Courts should not embarrass the Executive in its
conduct of foreign relations by questioning the acts of foreign states.
On scope of State Immunity
a. Absolute
b. Restrictive determine nature of the act
(1) public (jure imperii) immune
(2) private(jure gestionis) - not immune
Case law:
Victory Transport Inc. v. Comisaria General de Abastecimientos
y Transportes (35 I.L.R., 110 U.S.C.A. 2d Circ., 1994) Act of
transporting wheat during peacetime is not an act jure imperii.
Government of the Democratic Republic of the Congo v. Venne (22 D.L.R.
(3d) 669, 1972) Congos entry into contract with a Canadian architect for
sketching its pavilion is a public act.
I1 Congreso del Partido- Cuban Sugar Trade (2 All E.R. 1064, 1981)
Playa Larga is a Cuban owned vessel but operated by Mambisa, a Cuban
State Trading Co. not a Department of the Cuban Government. Mambisa
sold sugar to a Chilean Co. and shipped the merchandise thru the Playa
Larga. Restrictive immunity applied in this case.
Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881,
1977 Issuance by Nigerian CB of letter of credit is purely commercial in
character and may be basis of suit)
Philippines: Article 16, Sec. 3 of the Constitution (immunity from suit)
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Pinochet argued before the Divisional Court of the Queens Bench Division
that as former head of State, he can not be prosecuted at common law
because he acted in a sovereign capacity. The Divisional Court quashed the
warrants of arrest but on appeal before the House of Lords, it was held that
Pinochet was not immune from prosecution in U.K. courts for crimes
under international law. (Later, the House of Lords set aside its decision
because the Appellate Committee had been improperly constituted. On
rehearing, the Government of Chile intervened to assert its own interest
and right to have these matters dealt with in Chile, presenting immunity not
as a shield for Pinochet but for its own sovereignty.)
(NOTE: The following remedies exist:
Pinochet may be tried (a) in his own country; (b) in any other country that
can assert jurisdiction, provided Chile waives immunity; (c) before the
International Criminal Court; or, (d) before a specially constituted
international court.)
2. Diplomatic and Consular Immunity
Vienna Convention on Diplomatic Relations (1961)- mostly codification of
customary international law
Vienna Convention on Consular Relations (1963)- some customary international
law
Gen. Convention on the Privileges and Immunities of the U.N. (1946)
Remedy of individual:
1. sue in home State of diplomat
2. waiver by State of nationality of diplomat
3. declare diplomat persona non grata
Case law:
U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran, I.C.J. Reports 3,
1980) Iran violated the 1961 and 1963 Conventions for failing to take
appropriate steps to ensure protection of U.S. embassy and staff and property
from attacks by militants students. There was state responsibility for having
even approved of the acts of these demonstrators.
Regina v. Palacios (7 D.L.R. 112, 4th, 1984) diplomatic immunity ceases to
be enjoyed at the moment the diplomat leaves the country, or on expiry of a
reasonable period in which to do so.
Philippines: Excerpts from the 1997 Manual on Immunities and Privileges (DFA)
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Case law:
Diplomats/Consuls
Holy See v. Rosario (238 SCRA 524) - Holy See enjoys immunity where
the land subject of annulment was bought for site of Apostolic Nunciature.
Minucher v. CA (214 SCRA 242 and G.R. No. 142396, February 11, 2003)
- A U.S. diplomatic staff who is a member of the Drug Enforcement
Administration of the DOJ was found to be immune from suit for alleged
criminal/tortuous conduct. As an agent he was allowed by the Philippine
government to conduct activities to contain the drug traffic.
Indonesia v. Vinzon (GR 154705, June 26, 2003) An Indonesian
Official entered into a maintenance agreement to maintain specified
equipment at the embassy. The agreement referred to Philippine law for
purposes of any dispute settlement. The court held that this did not
constitute a waiver of diplomatic immunity. Submission to local
jurisdiction must be clear and unequivocal.
Deutsche v. CA (GR 152318, April 16, 2009) The GTZ is equivalent to a
Philippine corporation organized under the Corporation Code but owned
by the government. It must secure an executive endorsement of its claim
of sovereign or diplomatic immunity.
International Organizations
DFA v. NLRC (262 SCRA 39) - Illegal
immune.
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1. restitution
2. damages
(vii) Requisites:
1. act/omission attributable to the State
2. breach of an international obligation
(viii) Categories:
1. Direct when injury is against another State (any of its organs or agents).
2. Indirect against the person or property of a national of another State.
(ix) Imputability: (direct responsibility)
1. State Organs
a. Executive e.g. failure to take appropriate steps to punish culprits who are
police officers.
b. Legislative e.g. if a treaty requires incorporation of certain rules in domestic
law, failure to do so entails responsibility.
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c. Judiciary e.g. if the court commits errors in the application and interpretation
of treaties or fails to give effect to a treaty or is unable to do so because the
necessary change in or addition to, the national law has not been made, its
judgment involves the State in a breach of treaty.
2. Territorial governmental authority (LGUs)
3. Persons/groups authorized by the State
(x) Ultra vires acts of State organs and officials considered act of State even if beyond
the competence of the agent for as long as there is proof of apparent authority or the act
was done within the general scope of authority. An example is when police officers take
revenge against another person but seemingly acted in the role of police to the average
observer.
(NOTE: Abuse of Rights there could be compensation for the injurious consequences of
lawful acts of State organs or officials. An example is Article 22, par. 3 of the Convention
on the High Seas which allows compensation for loss or damage caused as a result of the
exercise of the right of warships to board merchants when suspicious circumstances
would warrant.)
Case law:
Youmans Case (RIAA iv. 110, 1926) Here, soldiers were sent to protect aliens
besieged by rioters but ultimately joined in the attack which resulted in the
killing of the aliens. Soldiers inflicted personal injuries or committed wanton
destruction or looting act in disobedience of some rules laid down by superior
authority.
Caire Claim Case (France v. Mexico, French-Mexican Claims Commission,
RIAA v. 516, 1929)- A French national was killed in Mexico by Mexican
forces after failing to pay ransom money. Objective responsibility applies in
this case wherein the military officers conducted themselves as officers in the
brigade. The officers even used the means placed at their disposition by virtue
of their capacity. The ultimate test is the amount of State control which ought
to have been exercised under the circumstances. (But distinguish this from the
earlier case of Youmans.)
(xi) Acts of private citizens and rebels:
1. Private citizen- As a rule, acts of private citizens do not entail State responsibility.
In localized riots and mob violence, the State has the duty to take reasonable
precautionary and preventive action to protect foreign public and private
property.
2. Rebels- Insurrectional movements act is act of State once it is established as the
new government. Belligerent groups may be held responsible for their acts during
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the armed conflict. There is a duty on the part of the State to prevent or suppress
the insurrection using the standard of due diligence; however, a higher standard
of protection applies to diplomats and consuls.
Case law:
Home Missionary Society Case (RIAA vi. 42, 1920) This religious Society
suffered losses during the rebellion in the Protectorate of Sierra Leone. The
U.S. claimed compensation on behalf of the Society alleging that the British
Government failed to take appropriate steps for the maintenance of order. This
claim was dismissed because there was an assumption of risk on the part of the
Society and there was no failure of duty based on the facts.
(xii) International crimes and delicts
International Law Commission Draft Articles on State Responsibility, Articles 110, 19
(b) Responsibility for Acts Affecting Individuals
(i) Traditional International Liability
1. Theory
of denial of justice
Case law:
United States (Chattin) v. Mexico (4 R.I.A.A. 282, 1927 The arrest, trial and
conviction of an American national in Mexico was deemed irregular and in
violation of international standards, thus, giving rise to responsibility.
2. Harvard Research Draft, definition (Article 9) unwarranted delay or
obstruction of access to courts, gross deficiency in the administration of
judicial or remedial process, failure to provide those guarantees which are
generally considered indispensable to the proper administration of justice, or a
manifestly unjust judgment. An error of a national court which does not
produce manifest injustice is not a denial of justice.
(ii) International Protection of Human Rights
1. Human Rights Principles and Enforcement Mechanisms
a. U.N. Charter, Articles 1(3), 55, 56 State obligation to respect and
promote human rights.
b. Universal Declaration of Human Rights (1948) Deemed by some
international legal scholars as customary international law.
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27
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1.
2.
3.
4.
Forms of protection:
Protest
Enquiry
Negotiation
Submission to arbitral tribunal/court
States an expropriation of this kind may be, we conclude that both the national
interest and progress toward the goal of establishing the rule of law among
nations are best served by maintaining intact the act of state doctrine in this
realm of its application.
Alfred Dunhill of London Inc. v. The Republic of Cuba (425 U.S. 682, 48 L.Ed.
2d.301, 1976) U.S. Supreme Court did not apply the act of state doctrine to
this case wherein the Cuban Government failed to return to Alfred Dunhill of
London, Inc. funds mistakenly paid by Dunhill for cigars that had been sold to
Dunhill by certain expropriated Cuban cigar businesses. The act relied upon
by Cuba was an act arising out of the conduct by Cubas agents in the
operation of cigar businesses for profit.
Buttes Gas and Oil Co. and Another v. Hammer and Another (3 W.L.R. 787,
H.L., 1981) In a litigation instituted in the U.K. between two petroleum
companies, there were allegations of conspiracy to cheat and defraud the U.K.
involving foreign rulers in the Persian Gulf region. The plaintiffs (Buttes)
applied for an order that the court should not exercise jurisdiction in respect of
specified matters said to be acts of state of the governments of Sharjah,
Umm al Qaiwain, Iran and the U.K. The issue arose from a press conference
given in London in 1970 by Dr. Hammer wherein he accused Buttes of using
improper methods and colluding with the ruler of Sharjah to backdate a decree
by the ruler extending the territorial waters of Sharjah, from 3 miles to 12
miles so as to obtain for themselves the benefit of the oil-bearing deposit at
the location which Dr. Hammer claimed was discovered by and belonging to a
competitor of Buttes. It was held that the court cannot entertain the suit for it
would bring to trial non-justiciable issues.
(Philippines)
Vinuya v. Romulo (619 SCRA) Espousal of claim on behalf of the Malaya
Lolas is discretionary upon the State (Peace Treaty of 1951 satisfied claims).
32
Chapter V.
RESOLUTION OF DISPUTES
General
Grotius, On The Rights of War and Peace (1901)
General Treaty for the Renunciation of War
Briand-Kellogg Pact (1928)
Charter of the United Nations, Articles 2 (3) (4), Articles 39-42
General Assembly Resolution 3314 XXX on the Definition of Aggression
Pro-democratic Invasion
34
(v) Organs of UN
General Assembly } assembly
Security Council}
ECOSOC
} council
Trusteeship
}
Secretariat }
35
ICJ
} organs
(viii) Secretariat
- Secretary-General appointed by GA upon recommendation of SC; non- procedural
matter subject to veto; chief administrative officer
- quota in hiring UN personnel
(ix) Enforcement Action and UN Forces
- Chapter VII- threats to peace, breaches of peace and acts of aggression
- 2 forms of enforcement action:
Art. 41- non-military- cut economic relations/ communications/ diplomatic
relations
Art. 42- military
(NOTE: Art. 43- State consent to join military action is necessary)
(x) Economic and Social Cooperation
- Arts. 55 and 56: standard of living and human rights
- ECOSOC members elected each year for 3-yr. term
- e.g. FAO, IMCO, ICAO, ILO, IBRD, IMF, IFAD, UNESCO, UPU, WHO
(b) International Economic Law
(i) Bretton Woods system: designed to reconstruct world economic system in
matters of trade (GATT/WTO) and finance (WB and IMF)
(ii) Core principles:
36
1. comparative advantage
2. economies of scale
(iii) Fundamental Norms:
1. most favoured nation - is an obligation to treat that State, its nationals or
goods, no less favorably than any other State, its nationals or goods
2. national treatment is an obligation to treat the nationals or goods of
another State as the State treats its own nationals or goods
(iv) GR: State duty to refrain from injuring others through economic acts.
(v) Safeguards and Escape Clauses: The GATT authorizes countervailing duties on
the importation of subsidized products only if the effect of subsidization is such
as to cause or threaten material injury to or to retard materially the establishment
of a domestic industry. It also permits the antidumping duty to be in the full
amount of the margin of dumping whenever there is a sale in the importing State
below normal value. An escape clause in GATT allows a State party to
suspend its obligation or withdraw or modify a concession with respect to a
product if, as a result of unforeseen developments the product is being imported
into its territory in such increased quantities and under such conditions as to
threaten serious injury to domestic producers.
(vi) Generalized System of Preferences: U.S. Trade Act of 1974 authorizes
a GSP which gives the President power to designate States as eligible to
introduce eligible goods free of duty or subject to reduced goods.
(vii) Specialized Dispute Settlement Body
(viii) Free Trade Area (e.g. AFTA, NAFTA): eliminates barriers on trade among
members, but leaves each member State free to determine barriers to the outside
world.
(ix) Customs Union (e.g. EU): a grouping of States in which duties and other
restrictions are eliminated with respect to substantially all trade among members,
and substantially the same duties and other regulations are applied by all
members of the union to imports from all other States.
(c) Global Terrorism
(i) No precise definition but only operative definition
(ii) History of instruments:
1. 1973 International Convention for Prevention and Punishment of
terrorism- all criminal acts directed v. a State and intended or
calculated to create a state of terror
2. 1972- after the Munich Tragedy, UN initiative to prevent terrorism
37
38
42
1. Persons taking no active part in hostilities to be treated humanely without any adverse
distinction based on race, color, religion or faith, sex, birth or wealth.
- Prohibited acts:
a.
Violence to life and person
b.
Hostage-taking
c.
Outrages upon human dignity
d.
Passing of sentences and carrying out of executions in the absence
of due process
2. Wounded and sick are to be cared for
P II, 1977
- armed forces v. dissident forces
Test:
a.
Responsible command
b.
Exercise such control over part of territory
c.
Able to carry out sustained and concerted military operations
d.
Able to implement P II
- Excluded:
a.
Internal disturbances
b.
Tensions
c.
Riots
d.
Sporadic acts of violence
- Specific rights:
a.
Protection v. violence to life, health
b.
Protection v. torture, collective punishment, hostage-taking,
terrorism
c.
Protection v. outrage upon personal dignity, rapes and prostitution,
pillage
d.
Protection of children, civilians
e.
Protection of works/installations which may cause severe losses
f.
Protection of displaced civilians
g.
Protection of prisoners/detainees
h.
Protection of wounded/sick
-
Use of Protecting Power: Switzerland; to look after nationals of one State in the control of
one of conflicting parties
International Fact- Finding (PI):grave breaches of GC
Ad Hoc Inquiry (both parties)
War crimes: subject to universal jurisdiction (e.g. Nuremberg Charter, A6- individual
responsibility for violations, etc)
Martens Clause- Russian delegate (Hague)
43
1. unforeseen cases should, in the absence of a written undertaking, not to be left to the
arbitrary judgment of military commanders
2. civilians and combatants remain under the protection of the principles of the law
of nations.
(f) The Rome Statute (ICC) and R.A. No. 9851 Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity
Part 1.Establishment of the Court
The Court (Article 1)
Complementary to national criminal jurisdictions
Relationship of the Court with the United Nations (Article 2)
An agreement approved by the Assembly of States Parties
Seat of the Court (Article 3)
The Hague
May sit elsewhere, whenever it considers it desirable
Legal Status and Powers of the Court (Article 4)
International legal personality
May exercise its functions and powers on the territory of any State and, by special
agreement; on the territory of any other State
Crimes within the Jurisdiction of the Court (Article 5)
The crime of genocide;
Crimes against humanity;
War crimes;
The crime of aggression.
Genocide (Article 6)
Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnic, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Crimes Against Humanity (Article 7)
Any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
44
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
Extermination;
Enslavement;
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
Torture;
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
Persecution against any identifiable group or collectivity;
Enforced disappearance of persons;
The crime of apartheid;
Other inhumane acts.
(b)
Other serious violations of the laws and customs applicable in international armed
conflict:
(i)
Attacks against the civilian population;
(ii)
Attacks against civilian objects;
(iii)
Attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping;
(iv)
Attack in the knowledge that such attack will cause incidental loss of life
or injury and severe damage to the natural environment;
(v)
Attacking towns, villages, dwellings or buildings which are undefended;
(vi)
Killing or wounding a combatant having laid down his arms;
(vii)
Improper use of a flag of truce, of the flag or of the military insignia and
uniform of the enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions;
(viii)
Transfer by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of all parts of
the population of the occupied territory within or outside this territory;
45
(ix)
(x)
(xi)
(xii)
(xiii)
(xiv)
(xv)
(xvi)
(xvii)
(xix)
(xx)
(xxi)
(xxii)
(xxiii)
(xxiv)
(xxv)
(xxvi)
(c)
(d)
(e)
(f)
46
If a State becomes a Party to this Statute after its entry into force, jurisdiction only with
respect to crimes committed after the entry into force of this Statute for that State, unless
that State has made a declaration under article 12, paragraph 3.
If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise
of jurisdiction by the Court with respect to the crime in question.
47
Challenges to the jurisdiction of the Court or the admissibility of a case (Article 19)
The Court may, on its own motion, determine the admissibility of a case.
Challenges to the admissibility of a case may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear has
been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground that it is investigating or
prosecuting the case or has investigated or prosecuted or;
(c) A State from which acceptance of jurisdiction is required under article 12.
Admissibility of a case or the jurisdiction of the Court may be challenged only once by
any person or State referred to in paragraph 2. Challenge shall take place prior to or at the
commencement of the trial. Challenges to the admissibility of a case, at the
commencement of a trial, or subsequently with leave of the Court, may be based only on
article 17, paragraph 1(c).
If the Court has decided that a case is inadmissible under article 17, the Prosecutor may
submit a request for a review of the decision.
49
Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
executing its jurisdiction over such a person.
52
Role of the Pre-Trial Chamber in relation to a unique investigative opportunity (Article 56)
Take testimony which may not be available subsequently for the purpose of a trial.
Functions and powers of the Pre-Trial Chamber (Article 57)
Protection and privacy of victims and witnesses, preservation of evidence, protection of
persons who have been arrested.
Seek the cooperation of States to take protective measures for the purpose of forfeiture.
Arrest proceedings in the custodial State (Article 59)
Before the competent judicial authority in the custodial State.
Right to apply for interim release pending surrender.
Pre-Trial Chamber shall be notified of any request for interim release.
Initial proceedings before the Court (Article 60)
Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes.
Confirmation of the charges before trial (Article 61)
Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor
intends to seek trial;
Hearing in the absence of the person charged;
Waived right;
Fled or cannot be found;
Determine whether there is sufficient evidence to establish substantial grounds to believe
that the person committed each of the crimes charged;
Once the charges have been confirmed the Presidency shall constitute a Trial Chamber.
Part 6. The Trial
Place of trial (Article 62)
The seat of the Court.
Trial in the presence of the accused (Article 63)
Functions and powers of the Trial Chamber (Article 64)
53
Unlawful arrest;
Reversed conviction;
Manifest miscarriage of justice.
Examination of places;
Execution of searches and seizures;
Provision of records and documents;
Protection of victims and witnesses;
Freezing or seizure of proceeds, property and assets for the purpose of eventual
forfeiture;
State Party may deny a request which relates to its national security;
Request the temporary transfer of a person in custody for purposes of identification.
Person surrendered shall not be proceeded against for any conduct committed prior to
surrender.
Funds of the Court and of the Assembly of States Parties (Article 115)
Assessed contribution;
Funds provided by the United Nations.
Voluntary contributions (Article 116)
Assessment of contributions (Article 117)
Annual audit (Article 18)
Part 13. Final Clauses
Settlement of disputes (Article 119)
Decision of the Court;
Any other dispute between two or more Sates Parties referred to the Assembly of States
Parties. Assembly may itself seek to settle or may make referral to the International Court
of Justice.
Reservations (Article 120)
No reservations.
Amendments (Article 121)
Expiry of seven years, submitted to the Secretary-General of the United Nations;
Amendments to provisions of an institutional nature (Article 122)
Review of the Statute (Article 123)
Transitional Provision (Article 124)
May declare that, for a period of seven years after the entry into force of this Statute for
the State concerned, it does not accept the jurisdiction of the Court with respect to the
category of crimes referred to in article 8 when a crime is alleged to have been committed
by its nationals or on its territory.
Signature, ratification, acceptance, approval or accession (Article 125)
Entry into force (Article 126)
Withdrawal (Article 127)
Authentic texts (Article 128)
Case Study
Application of International Criminal Law to Philippine Municipal Law: R.A. 9851- Issues
and Concerns
59
Preliminary Considerations
Chapter I: Declaration of Principles
1. Doctrine of Incorporation generally accepted principles of I.L. (par. a)
2. Adoption of IHL (par. d)
3. Fair Trial follow international standards (par. f)
4. No implied recognition of belligerency shall not affect legal status of the parties
to a conflict (par. g)
Chapter II Definition
1. Armed Conflict (par. c)
State v. State (International Character)
Protracted Armed Violence: Government v. Organized Armed Groups (NonInternational)
Armed Groups v. Armed Groups (Non-International)
(NPA v. MILF)
(MILF v. ASG)
2. Standards of Armed Forces (par. d)
a. Responsible Command
b. Disciplinary System
c. Compliance with IHL
3. Enforced or Involuntary Disappearance
Stateless or Refugee
Chapter III: Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity
1. War Crimes Four (4) Geneva Conventions and Protocols
a. International Armed Conflict
Willful killing
Torture
Wanton destruction of property (outside military necessity)
Unfair trial of POW
Arbitrary deportation
Hostage-taking
Forced military service
Unjustifiable delay in repatriation of prisoners
b. Non-International Armed Conflict
Common A3 of Geneva Conventions violations willful killing, torture, outrages
upon personal dignity, hostage-taking, no judicial process
60
in camera
electronic evidence presentation
Limit on access to information
2. Reparations to Victims
Restitution, compensation, rehabilitation
II.
Concept of Environment
B.
Hofrichters x x x equal access to natural resources and the rights to clean air
and water, adequate health care, affordable shelter, and a safe workplace x x x.
Preliminary Considerations
62
A.
B.
III.
The Core Environmental Law Rights and Duties In Relation to Philippine Constitutional
Law Framework
A. Right to Life and Health
INTERNATIONAL
ratio
legis
(ECOSOC)
of
environmental law
more than absence of illness
W.H.O. the attainment by all citizens
x x x of a level of health that will
permit them to lead a socially and
economically productive life
Health problems related to x x x
environmental living conditions; health
status is a first indicator of
environmental degradation x x x
CONSTITUTION
64
B. Freedom of Association
INTERNATIONAL
A 20, UDHR
A 21, ICCPR
CONSTITUTION
A 19, UDHR
A 19, ICCPR
Principle 10: Rio Declaration (access
to environmental information)
Principles 18 and 19 (notification in
transboundary environmental disasters)
CONSTITUTION
D. Sectoral Concerns
INTERNATIONAL
1. Indigenous Peoples
ILO 169 (Tribal Population)
UNDRIPS, 2007
Principle 22, Rio Declaration +
Chapter 26, Agenda 21
2. Women
Principle 20, Rio Declaration
1993 Vienna Declaration
Part 1, par (18) equal
CONSTITUTION
A12, S.5 (ancestral domain) in
relation to A2, S.22 (indigenous
peoples),
A10,
S.15-21
(autonomous region), A13, S.6
(ancestral lands)
A2, S.14 (women), A13, S.14
(women)
65
participation of women
3. Children
Article 29, par 9 (e), CRC
4. Migrant Workers
Migrant Workers Convention
5. Disabled
Environmental
factors
responsible for disability
often
V.
66