PUBLIC INTERNATIONAL LAW

Public
international
law
governs
the
relationships between and among states and also
their relations with international organizations
and
individual
persons.
(Bernas,
S.J.,
Introduction to Public International Law, 2009
ed., p. 4)

(b) Dualism
1.

International law and national law,

while connected in the sense that
they are both systems of law, are
different from each other
As to source (treaties and custom
in
international
law,
and
legislation or local custom in
national law);
As regards the relations they
regulate
(relations
between
states in international law, and
relations
between
individual
persons in national law); and
Regarding
their
substance(international law is a
law between sovereign states,
while national law is a law of the
sovereign over the individual
and operate within different
spheres.
2. States may lawfully do something
within the domestic sphere, but can
be thus held liable internationally.

CONCEPTS
1.

2.

3.

Obligations erga omnes (Lat. duties

toward all): a countrys duties that
concern
issues
affecting
the
international community at large, not
just the countrys neighboring states.
(Blacks Law Dictionary, 10th ed., p.
1244) BLACKS LAW IS OUTDATED;
SUGGEST YOU CITE THE CASE DIRECTLY
Jus cogens (Lat. compelling law): a
mandatory or peremptory norm of
general international law accepted and
recognized
by
the
international
community as a norm from which no
derogation is permitted. (Blacks, p.
990)Rules of jus cogens are rules of
customary international law that are so
fundamental that they cannot be
modified by treaty.
Ex aequo et bono (Lat. according to
what is equitable and good): a
decision-maker in international law
authorized to decide ex aequo et bono
is not bound by legal rules and may
instead follow equitable principles; for
example, Art. 38(2) of the Statute of
the International Court of Justice (ICJ)
provides that the Court may decide a
case ex aequo et bono if the parties
agree thereto. (Blacks, pp. 679-680)
SAME

INTERNATIONAL AND NATIONAL LAW

Q:

There are two schools of thought as regards

the question of which between international
law and national law will prevail in case of
conflict. Which of these schools of thought is
widely practiced?
(a) Monism
1.

2.

International law and national law

are two components of one single
body of knowledge called the law.
In case of conflict between the two,
international law prevails, being the
superior legal order international
law is derived from the practice of
states, while national law is merely
law implemented by a single state
within its territory.

A:

(b) Dualism.
Prevailing practice accepts dualism (e.g. Art.
27 of the Vienna Convention on the Law of
Treaties (VCLT) provides: A party may not
invoke the provisions of its internal law as
justification for its failure to perform a
treaty.).
International law, unless made part of the
domestic system, has no role in the
settlement of domestic conflicts.
Case law on dualism as applied in the Phils.:
In a situation [...] where [a] conflict is
irreconcilable and a choice has to be made
between a rule of international law and
municipal law, jurisprudence dictates that
municipal law should be upheld by the
municipal courts for the reason that such
courts are organs of municipal law and are
accordingly bound by it in all circumstances.
The fact that international law has been made
part of the law of the land does not pertain to
or imply the primacy of international law over
national or municipal law in the municipal
sphere.(Sec. of Justice vs. Lantion, G.R. No.
139465, Jan. 18, 2000)

CONTRA:While sovereignty has traditionally

been deemed absolute and all-encompassing
on the domestic level, it is however subject
to restrictions and limitations voluntarily
agreed to by the Philippines, expressly or
impliedly, as a member of the family of
nations. [Pacta sunt servanda] international
agreements must be performed in good
faith.A state which has contracted valid
international obligations is bound to make in
its legislations such modifications as may be
necessary to ensure the fulfillment of the
obligations.(Taada vs. Angara, May 2, 1997)
Q:

The Universal Declaration of Human Rights has been

recognized by the Supreme Court as a generally
accepted principle of international law and thus part
of the law of the land in the cases of Mejoff vs.
Director of Prisons,Republic vs. Sandiganbayan,and
JBL Reyes vs. Bagatsing.
The Hague Convention and the Geneva Convention
were likewise recognized as such inKuroda vs.
Jalandoni.
The right of innocent passage as laid down in the
Third United Nations Convention on the Law of the
Sea (UNCLOS III), being customary international law,
was held in Magallona vs. Ermitaas automatically
incorporated in the corpus of Philippine law.

How does international law become part of

national law?
In dualism, there are two theories:
transformation and incorporation.

A:
1.

2.

Transformation: for international law

to become part of national law, it must
be
expressly
and
specifically
transformed into national law through
the
appropriate
constitutional
machinery (e.g. act of Congress or
Parliament).
Rationale: treaties do not
become part of the law of a
state unless consented to by
said state.
Incorporation: international law is
adopted in its full extent by national
law, and is held to be part of the law of
the land.

In the Philippines, a distinction has to be made

as regards which theory is followed:
1.

2.

Treaties need to be transformed by

means of concurrence of the Senate
pursuant to Art. VII, Sec. 21 of the
Constitution.
Customary law, treaties which have
ripened to customary law, and
generally
principles
of
laware
incorporated to the law of the land
pursuant to Art. II, Sec. 13 of the
Constitution.
The doctrine of incorporation in action:

SOURCES
Sources of international law are:
1.
2.

Recognized and accepted methods by

which legal rules come into existence;
as well as
Several ways in which the precise
content of legal rules can be identified.

Article 38(1) of the ICJ Statute does not

purport to be a list of the sources of
international law, but is instead a direction to
the ICJ authorizing it to consider various
materials when deciding disputes submitted to
it. These materials are as follows:
1.
2.
3.
4.
5.

International conventions
International customs
General principles of law
Judicial decisions
Teachings of publicists

It was intended that there be no order of

priority among the five sources; thus, the ICJ
must study and consider all five simultaneously.
Q:
A:

What prevails when custom and treaty law

conflict?
GR:
1. If treaty is later in time than
custom: the treaty prevails
(a) Treaties
represent
a
deliberate and conscious act
of law creation.
(b) Parties to the treaty will be
governed by its terms; nonparties will be governed by
customary law.
2. If
contrary
customary
law
develops subsequent to the
adoption of a treaty: the treaty
prevails
(a) The treaty continues to

XPN:

govern the relations between

parties even though a new
practice has developed
If the custom partakes of the nature of
jus cogens (see Arts. 53 and 64, VCLT),
the custom prevails.
1.

2.

3.

Any
treaty
provision
which
conflicts with a rule of jus cogens
is void, regardless of whether the
treaty came first.
Any conduct contrary to the rules
of jus cogens will usually be
regarded as illegal no matter of
often
it
is
repeated
(notwithstanding Art. 53, VCLT
stating that rules of jus cogens can
be changed by subsequent norms
leading to a new fundamental
rule, this being unlikely to
happen).
Unfortunately,
there
is
no
universal agreement as to which
rules of customary law have
attained this status.

International conventions (treaties)

1.

2.
3.

Treaties determine the rights and duties

of states just as individual rights are
determined by contracts. Their binding
force comes from the voluntary
decision of sovereign states to obligate
themselves to a form of behavior.
GR:
Treaties, to be binding, require
consent.
XPN:
Dispositive treaties are binding
erga omnes, regardless of whether
a state is a signatory thereto or
not.
Dispositive treaties are those
whereby one state creates in
favor of another, or transfers
to another, or recognizes
anothers ownership of real
rights, rights in rem, e.g.
treaties of cession including
exchange.(Arts. 53 & 64, VCLT)
Treaties are either bilateral or
multilateral.
Treaties can codify existing customary
law.

International customs
International customs are recognized as
evidence of general practice accepted as law.
Elements:

1.

State practice (usus): the material

element; includes, but is not limited to
actual activity, statements made in
respect to concrete situations or
disputes, statements of legal principle
made in the abstract, national
legislation,
and
practice
of
international obligations.
Requisites (a) Consistency/uniformity
(b) Generality
:
(c) Duration
As to consistency/uniformity:
1. No need for total consistency;
substantial consistency suffices.
2. The degree of consistency required
may vary according to the subject
matter of the rule disputed (e.g. when
a state is required to do an active
obligation, a greater degree of
consistency is required; a lesser degree
is enough when a passive obligation is
to be done).
As to generality:
1. For generality to subsist, not all states
need participate in giving the custom
due course.
2. However, it must be common to a
significant number of states.
3. The degree of generality required
varies with the subject matter (e.g.
when a custom accords onerous
obligations, there should be a greater
degree of generality as compared to a
custom that grants privileges to states
which only requires a lesser degree of
generality).
4. International law does not provide for
a specific number of states that must
engage in particular practice to have it
ripen into custom.
5. Persistent objector: dissenting states
who had objected to custom while
merely in the process of formation are
not bound thereby.
6. A lone objector can stop practice from
crystallizing into custom in rare
instances.
As to duration:
GR:
(a) The custom must exist for a
period of time.
(b) No specific number of years is
required.
XPN:
Instant customs are spontaneous
activities of a great number of
states supporting a specific line
of action.
The Martens Clause:
Formulated by the Russian publicist Fyodor
Martens, what the clause does is to put the
laws of humanity and the dictates of
public conscience on the same level as

2.

usus (1899 Hague Peace Convention), thus

suggesting that even without practice or
usus or at least without consistent practice
there can emerge a principle of law based
on laws of humanity and the dictates of
public conscience.
Opinio juris: the substantive element;
the belief that a certain form of
behavior or practice is obligatory,
without which, such practice would not
ripen into law. The degree of proof
required for opinio juris should vary
according to the subject matter of the
disputed customary rule (e.g. a claim
that a rule has attained jus cogens
status might require very clear
evidence of opinio juris, and an alleged
rule that places burdens on all states
would require clear extrinsic evidence;
on the other hand, for a rule that
grants rights or privileges to all states,
the simple fact of repeated state
activity may suffice to infer opinio
juris).

Teachings of the most highly qualified

publicists of the various nations
1.

2.

3.

Publicists
refer
to
experts/institutions which write on
international
law, covering
both
individuals and groups.
Even if the writings of publicists are of
purely evidential weight, they may be
of great importance where a rule is
vague or uncertain.
The writings of publicists can have a
direct impact on customary law for they
can help establish state practice by
predicting trends and encouraging
states to follow the predicted and
desirable path.

SUBJECTS
A subject of international law is a body or
entity recognized or accepted as being capable,
or as in fact being capable, of exercising
international rights and duties. (Dixon, p. 112)

General principles of law

States

General principles of law recognized by

civilized nations refers to principles of national
law common to the legal systems of the world. It
includes under its purview:

A state is a communityof persons, more or less

numerous, permanently occupying a fixed
territory, and possessed of a government
organized for political purposes to which the
great number of inhabitants render habitual
obedience.

1.
2.

Procedural rules (e.g. notice and

hearing, res judicata)
Substantive national law concepts (e.g.
trusts, subrogation, limited liability,
equity, estoppel, acquiescence, etc.)

Examples: prescription, estoppel, res judicata,

pacta sunt servanda.

Judicial decisions
Judicial decisions refers to pronouncements of
the:
1.
2.
3.

ICJ (usually resolves 2-3 cases per year)

Arbitral tribunals (hands and decides on
the bulk of international law cases)
Other bodies (e.g. ICC, Inter-American
Court of Human Rights, European Court
of Human Rights, Yugoslav War Tribunal,
Centre
for
the
Settlement
of
Investment Disputes, etc.)

Re: Art. 59, ICJ Statute:

GR:
No stare decisis, only res judicata.
XPN: The ICJ, from time to time, does not
follow the general rule, being a court
of law.
Examples: ICJ decisions, UN resolutions,
resolutions of other international organizations.

Elements:
1.
2.
3.
4.

A permanent population (i.e. people)

A defined territory
Government
Sovereignty:
the
supreme
and
uncontrollable power inherent in a
state by which that state is governed
(Cruz, Philippine Political Law, 2002
ed., p. 26)
Includes within its purview the
capacity to enter into legal
relations
(i.e.
legal
independence, not factual
autonomy)
* Legal independence is the
legal
capacity
to
enter
relations with other states on
their own behalf as a matter
of right (Dixon, Textbook on
International Law, 6th ed., p.
116)
Q:
How
does
a
territory
sufficiently
claim
legal
independence?
A:
When a territory declaring
factual independence is able
to claim the right of selfdetermination(Dixon,
p.
117)

(a) They
can
enter
into
international
agreements;
their representatives have
certain
privileges
and
immunities
(b) The organizations constituent
document may also provide
that
member-states
are
legally bound to comply with
decisions
on
particular
matters

International recognition:
1.

2.

Subsequent
recognition
of
the
statehood/sovereignty of an aspirant
state by members of the international
community may be sufficient to cure a
defect in an otherwise imperfect claim
to statehood (Dixon, p. 118)
Recognition will only cure
defects
in
lawful
legal
independenceand
no
other(Dixon, p. 119)
Two theories of recognition:
(a) Declaratory:recognition
is
nothing
more
than
an
acknowledgment
of
preexisting legal capacity, and is
therefore not decisive of the
entitys claim to statehood
(b) Constitutive:the
act
of
recognition is a necessary
precondition to the existence
of the capacities of statehood
or government
In general, the declaratory theory
accords with international practice.
(Dixon, p. 128)

Individuals
GR:

Individuals are not regarded as legal

persons under international law. Their link
to a state is through the concept of
nationality, which may or may not require
citizenship.
1. Individual responsibility for:
(a) War crimes
(b) Crimes against the peace
(c) Crimes against humanity
2. Personality in the form of human
rights (through which an individual
can initiate or partake in proceedings
before international tribunals)
[* commonly granted by treaty]

XPN:

International organizations
International organizations are institutions
constituted by international agreement between
two or more States to accomplish common goals.
[] Insofar as they are autonomous and beyond
the control of any one State, they have distinct
juridical personality independent of the
municipal law of the State where they are
situated. As such, they are deemed to possess a
species of international personality of their own.
(SEAFDEC-AQD vs. NLRC, 206 SCRA 283, Feb. 14,
1992)
Nature and powers:
1.

2.

3.

The
powers
of
international
organizations are limited to those
conferred on them in their constituent
document(PCIJ Advisory Opinion on the
Jurisdiction
of
the
European
Commission of the Danube, PCIJ Ser. B
No. 14)
International
organizations
enjoy
implied powers, due to the necessities
of international life [pointing] to the
need [] to possess [] such powers
(Nuclear Weapons case)
e.g. the WHO can request the
ICJ to give an advisory opinion
but only in matters expressly
or impliedly within the WHOs
competence
International organizations have a
limited
degree
of
international
personality,
especially
vis--vis
member-states

DIPLOMATIC AND CONSULAR LAW

Diplomatic law, defined; right of legation
Diplomatic law is a field of international law
concerning the practice of diplomacy, and the
rights and obligations of state representatives on
the territory of other states.(von Glahn, Law
Among Nations: An Introduction to Public
International Law, p.136)
The right of legation is the right of a state to
maintain diplomatic relations with other states;
it is governed by the Vienna Convention on
Diplomatic Relations (VCDR).

Agents of diplomatic intercourse

1.
2.
3.

Heads of state
Foreign secretary/minister
Members of diplomatic service

Diplomatic/consular immunity in general

Diplomatic agents are vested with blanket
diplomatic immunity from civil and criminal
suits.
Test: whether or not the diplomatic
agent concerned performs duties of a
diplomatic nature.
On the related doctrine of state immunity:
The doctrine of state immunity is applicable to
complaints filed against officials of the state for acts
allegedly performed by them in the discharge of

their duties.
GR:

XPN:

Immunity can be invoked where the act

involved is performed in the discharge of
official duties, and will not apply where the
public official is being sued in his private
and personal capacity as an ordinary
citizen.
However, immunity cannot be raised where
the officer of the State violates or invades
the personal and property rights of the
plaintiff, under an unconstitutional act or
under an assumption of authority which he
does not have.
Rationale: the doctrine of state immunity
cannot be used as an instrument for
perpetrating injustice

2.

3.

(Minucher v. Court of Appeals, G.R. No. 142396,

February 11, 2003)

The five diplomatic groups; their

respective immunities and the extents
thereof
4.
1.

Heads of mission
Classes:
a. Ambassadors
or
nuncios
accredited to heads of state
and other heads of missions of
equivalent rank
b. Envoys,
ministers,
and
internuncios accredited to
heads of state
c. Chargs d'affairesaccredited to
Ministers/Secretariesfor
Foreign Affairs
Immunity:
GR:
Absolute immunity from criminal
jurisdiction on the source and
receiving states
XPN:
Immunity
from
civil
and
administrative jurisdiction is not
absolute, as to three cases:
(a) 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
(b) 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
(c) An action relating to any
professional or commercial
activity exercised by the
diplomatic agent in the

5.

receiving state outside his

official functions
GR:
Members of a heads family have
the same immunity
XPN:
unless they are residents or
nationals of the receiving state.
Members of the diplomatic staff
These may be appointed from among
the nationals of the receiving state only
with the express consent of that state.
(J. Puno, concurring opinion in Liang
vs. People, G.R. No. 125865, March 26,
2001)
Immunity:
(a) Same immunity as heads of
mission
Members of the administrative and
technical staff
Immunity:
(a) Same (absolute) immunity
from criminal jurisdiction as
heads of mission
(b) Immunity
from
civil
jurisdiction applies only to acts
in official functions
Members of the service staff
Immunity:
(a) Immunity applies only in the
course of official duties, both
in
criminal
and
civil
jurisdictions
Private servants
Immunity:
(a) The immunity allowed to them
is only those to be specifically
granted by the receiving state
and insofar as they are
connected
with
the
performance of their duties

Duration of immunities:
1.

2.

The privileges are enjoyed by the envoy

from the moment he enters the
territory of the receiving state, and
shall cease only the moment he leaves
the country, or on expiry of a
reasonable time in which to do so;
although with respect to official acts,
immunity shall continue indefinitely.
Privileges are available even in
transitu, when traveling through a third
state on the way to or from the
receiving state.

Waiver of immunities:
Diplomatic privileges can be waived but the
waiver cannot be made by the individual
concerned since such immunities are not
personal to him; waiver may be made only by
the government of the sending state if it
concerns the immunities of the head of mission;
In other cases, the waiver may be made either
by the government or by the chief of the
mission.

NOTE: Diplomatic immunity is essentially a

political question and the courts should refuse
to look beyond the determination by the
executive branch.
Q:

What if the diplomatic mission committed

heinous crimes such as murder in the
receiving state? What can the host state do?
The receiving state can:
(a) Ask the mother state to lift or waive
the immunity; or
(b) Declare the mother state persona
non grata.

A:

DELETE SECTION; NON-ESSENTIAL

Appointment of diplomatic envoys;
commencement of diplomatic mission
Agrationis the process in the appointment of a
diplomatic envoy where states resort to an
informal inquiry as to the acceptability of a
particular envoy, to which the receiving state
responds
with
an
informal
conformity(agrment).
With the informal process concluded, the
diplomatic mission then commences when the
envoy presents himself at the receiving state,
generally armed with the following papers:
1.

2.
3.
4.

Lettre
de
crance
(letter
of
credence): a document with the name,
rank and general character of his
mission, and a request for favorable
reception and full credence.
Diplomatic passport
Instructions
Cipher (or code or secret key) for
communications with his country

SAME Grounds for termination of

diplomatic mission
1.
2.
3.
4.
5.
6.
7.
8.

Death
Resignation
Removal
Extinction of the State
War between the receiving and sending
states
Abolition of office
Recall
Dismissal

Consular officials
Consuls are state agents residing abroad for
various purposes but mainly in the interest of
commerce and navigation.
DELETE Kinds:
1. Consules missi: professional or career consuls
who are nationals of the sending state and are

required to devote their full time to discharge

their duties
2. Consules electi: they may or not be nationals
of the sending state and perform consular
functions only in addition to their regular
callings
Ranks:
1. Consul-general
2. Consul
3. Vice-consul
4. Consular agent

Consular functions (Art. 5, Vienna

Convention on Consular Relations [VCCR])
1.
2.

3.
4.
5.
6.
7.
8.

9.
10.
11.
12.
13.

Protect the nationals of the sending

state in the receiving state
Furthering
the
development
of
commercial, economic, cultural and
scientific relations between the sending
and receiving states
Ascertain developments in the receiving
state, and report to the sending state
Issue passports and travel documents to
nationals of the sending state
Help and assist nationals of the sending
state
Act as notary and civil registrar, and
performing
certain
administrative
functions
Safeguard the interests of nationals of
the sending state in cases of succession
mortis causa in the receiving state
Safeguarding the interests of minors
and others lacking full capacity who are
nationals of the sending state in the
receiving state
Represent nationals of the sending state
before tribunals of the receiving state
Transmit judicial and extrajudicial
documents or executing letters rogatory
or commissions
Supervision and inspection of vessels
and aircrafts having the nationality of
the sending state
Assistance to such vessels and aircrafts
Other functions entrusted by the
sending state

Appointment of consular officials

Two documents are necessary before
assumption of consular functions, namely:
1.

2.

the

Letters patent: letter of appointment

or commission which is transmitted by
the sending state to the Secretary of
Foreign Affairs of the country where the
consul is to serve
Exequatur:the authorization given to
the consul by the sovereign of the
receiving state, allowing him to
exercise his functions within the
territory

Consular immunity, distinguished from diplomatic immunity

Basis of
immunity
Immunity
from
prosecution
in the
receiving
state

DIPLOMATIC ENVOYS
Art. 32, VCDR

CONSULAR OFFICERS
Art. 41, VCCR

Immune

Not immune

GR:
XPN:

Civil and
administrativ
e immunity
in the
receiving
state

Immune
(a) In 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
purpose of the mission
(b) In 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
(c) In an action relating to any
professional or commercial
activity exercised by the
diplomatic agent in the
receiving state outside of
his official functions

GR:

XPN:

Immunity of international organizations

The immunity granted to these groups is not
based on sovereignty but on treaty and
conventions.
Some recognized international organizations
given immunity are:
1.
2.
3.
4.

Treaty, defined
1.

2.

World Health Organization (WHO)

Southeast Asian Fisheries Development
Center (SEAFDEC)
International Catholic Migration
Commission (ICMC)
Asian Development Bank (ADB)

NOTES:
1. Immunity granted to staff of an international
organization is limited only to acts done in
official functions.
2. Immunity does not cover commission of a crime
such as slander or oral defamation.(Liang vs.
People, G.R. No. 125865, January 28, 2000)

TREATIES

Immune from the jurisdiction of

judicial
or
administrative
authorities in respect of acts
performed in the exercise of
consular functions (Art. 43,
VCCR)
except as to a civil action:
(a) Arising out of a contract
concluded by a consular
officer with which he did
not enter expressly or
impliedly as an agent of the
sending state
(b) By a third party for
damages arising from an
accident in the receiving
state caused by a vehicle,
vessel or aircraft

In general international law, a treaty is

a legally binding agreement, governed
by international law, made between
international legal persons recognized
as having treaty-making capacity.
In the VCLT (a particular international
law), a treaty is an international
agreement concluded between states in
written form and governed by
international law, whether embodied in
a single instrument or two or more
related instruments and whatever its
particular designation.

Form of treaties:
1.

2.

General international law: oral or

written (as regards oral treaties,
enforceability depends upon whether
the state-parties can establish it).
Particular international law: written
only.

DELETE Four component parts of a treaty:

1.
2.
3.

4.

Title: description of the type of the

treaty.
Preamble: recites the reasons for the
treaty.
Main body: refers to the subject of the
treaty; includes provisions governing
the rights and obligations of the
parties.
Final part: contains provisions or
guidelines for entry of the treaty into
force,
accession,
reservation,
termination, etc.; may have sub-parts
depending on its scope and coverage.

3.

4.

Requisites for a valid treaty:

1.
2.
3.
4.
5.

Treaty-making capacity
Competence of the representative or
organ concluding the treaty
Consent freely given by the parties
Lawful object and subject matter
Ratification
(in
accordance
with
constitutional processes of the parties
concerned)

Kinds of treaties:
1.

2.

3.

4.

Multilateral treaties which are open to

all states of the world;they create
norms which are the basis for a general
rule of law, and may either be
codification treaties or law-making
treaties or have the character of both
Treaties that create a collaborative
mechanism; can be universal (e.g.
regulation of allocation of radio
frequencies) or regional (e.g. fishing
agreements) in scope
Bilateral treaties,many of which are in
the nature of contractual agreements
that create shared expectations (e.g.
trade agreements of various forms);
sometimes called contract treaties
Concordat;a treaty or agreement
between ecclesiastical and civil powers
to regulate the relations between the
church and the state in those matters
which, in some respect are under the
jurisdiction of both

Interpretation of treaties
A treaty shall be interpreted in good faith, in
accordance with the ordinary meaning given to
the terms of the treaty, and in light of its
objects and purpose. It could also be given
special meaning, if so indicated in the treaty.
1.

2.

Literal/Textual approach: the terms of

the treaty are to be interpreted
according to their natural and plain
meaning
Intentions of the parties: the terms of
the treaty are to be interpreted
according to the intention of the
parties at the time the treaty was

adopted; this assumes that all the

parties had the same intention and that
it is possible to divine what it was
Object-and-purpose/Teleological
approach: the terms of the treaty are
to be interpreted so as to facilitate the
attainment of the objectives of the
treaty; the object and purpose is that
desired by the parties and not that
which the court thinks was the object
and purpose
Principle of effectiveness: Ut res
magis valeat quain pereat(Lat. It is
better for a thing to have effect than to
be made void); the treaty should be
interpreted in order to ensure the
maximum effectiveness in achieving the
object and purpose of the treaty

Obligatory force of treaties (pacta sunt

servanda)
Pacta sunt servandais a principle which
provides thatevery treaty in force is binding
upon the parties to it and must be performed by
them in good faith.

The Vienna Convention on the Law of

Treaties
The VCLT is an important instrument in the law
of treaties in international law a treaty on
treaties. Nonetheless, it does not apply to all
international treaties, but only to treaties
between states and in written form [...]
governed by international law. (Arts. 1 and 2,
VCLT)
NOTE: A different Convention deals with treaties
made between international organizations or
between states and international organizations, the
1986 Vienna Convention on the Law of Treaties
between States and International Organizations or
Between International Organizations.

Steps in treaty-making
1.

Negotiation:The President is the sole

authority responsible for this, as to the
decision whether to negotiate in the
first place or not. It is only subject to
the concurrence of the Senate.
GR:
The President can delegate this
power to another and the latter
needs to produce full powers (a
formal document containing the
authority given by a state to its
representative
to
conclude
treaties on its behalf).
XPN:
Persons who do not need to
produce full powers:
(a) Heads
of
state
or
government

(b) Foreign ministers

certain provisions of the treaty in their
(c) Delegates to international
application to the state.
conferences convened for
Formulation of reservations (Art. 19, VCLT):
the purpose of adopting the
text of a treaty
GR:
A State may formulate a reservation
2. Authentication (of the text of the
XPN:
unless:
treaty): It is usually done through
(a) The reservation is prohibited by the
signatures, on behalf of the State.
treaty
3. Expression
of
consent
to
be
(b) The treaty provides that only specified
bound:This is usually done through:
(a) Signature(asignature has a
reservations, which do not include the
dual effect;thus, it could
reservation in question, may be made
authenticate and bind, as
(c) The reservation is incompatible with
provided in the treaty or full
the object and purpose of the treaty
powers)
(b) Exchange of instruments
Legal effects of reservations and of objections
(c) Ratification(binding [1] if such
to reservations (Art. 21, VCLT):
is provided in the treaty, or [2]
if it is stated that ratification
1. A reservation which:
is required for the final
(a) Modifies for the reserving state
consent of a State to be bound
in its relations with that other
by the treaty or if it is stated
party the provisions of the
that the state representative
treaty to which the reservation
signs subject to ratification)
relates
(a) There will be nothing
(b) To
the
extent
of
the
for the Senate to
reservation
concur if there is no
modifies those provisions to the same
ratification from the
extent for that other party in its
President or the state
relations with the reserving state.
representative.
The reservation does not
Case law on ratification:
modify the provisions of the
It is not correct [] to compel the Executive
treaty for the other parties to
Secretary to transmit to Senate the treaty for
the treaty inter se.
2. When a state objecting to a reservation
Senates concurrence or for the latters ratification.
has not opposed the entry into force of
Ratification is only the Presidents discretionary
the treaty between itself and the
function and since there is no ratification yet, there
reserving state, the provisions to which
is nothing for [the] Senate to give concurrence to.
the reservation relates do not apply as
(Pimentel, Jr. vs. Office of the Executive
between the two States to the extent
Secretary,G.R. No. 158088, July 6, 2005)
of the reservation.
(d) Acceptance
(e) Approval
Withdrawal of reservations and of objections
(f) Accession(also
known
as
to reservations (Art. 22, VCLT):
adhesion; the process by which
a non-signatory state becomes
1. As to withdrawal of reservations:
a party to a treaty; usually
GR:
(a) A
reservation
may
be
takes place when a State did
withdrawn at any time.
not participate in the initial
(b) The consent of a State which
negotiation or did not take
has accepted the reservation
part at all, but took part only
is not required for its
after the treaty was drawn up,
withdrawal.
which could be before or after
XPN:
unless the treaty otherwise
the entry into force of the
provides.
treaty)
2. As to withdrawal of objections to
4. Entry into force: A treaty enters into
reservations:
force in such manner and upon such
GR:
An objection to a reservation may
date as it may provide or as the
negotiating states may agree.
be withdrawn at any time.
XPN:
unless the treaty otherwise
Reservation
provides.
3. As to when a withdrawal becomes
operative:
A reservationisa unilateral statement, made by
GR:
(a) The
withdrawal
of
a
a state when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it
reservation
becomes
purports to exclude or modify the legal effect of
operative in relation to

XPN:

another contracting state

only when notice of it has
been received by that state
(b) The
withdrawal
of
an
objection to a reservation
becomes operative only when
notice of it has been received
by
the
State
which
formulated the reservation
unless:
(a) the treaty otherwise provides
(b) It is otherwise agreed

2.

DELETE Reservation, distinguished from

interpretative declaration
RESERVATION
It
excludes
or
modifies the legal
effect of certain
provisions
in
a
treaty.

INTERPRETATIVE
DECLARATION
It
only
expresses
opinions; it does not
modify legal effects of
provisions.

NOTE: Reservations do not apply in bilateral

treaties but only in multilateral treaties. In
bilateral treaties, the effect is renegotiation or
abandonment of a treaty. This takes place during
the stage of giving consent to be bound to a treaty.
DELETE Protocol de cloture:an instrument
which records the winding up of the proceedings
of a diplomatic conference and usually includes
a reproduction of the text of treaties,
conventions, recommendations and other acts
agreed upon and signed by the plenipotentiaries
attending the conference. It is not the treaty
itself and does not require the concurrence of
the Senate.

Amendment and modification of treaties

GR:
XPN:

The consent of all state-parties is required.

If allowed by the treaty itself, two states
may modify its provision only insofar as
they are concerned.

3.

4.

5.

Doctrine of unequal treaties:treaties which

have been imposed through coercion or duress
by a state of unequal character are void.
Important modes of terminating a treaty:
1.

Invalidation of treaties
The following are grounds for the invalidation of
a states consent to be bound by a treaty:
1.

Error (Art. 48, VCLT)

(a) 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
(b) Error cannot be used as the
basis for the invalidation of a
treaty if the State in question

contributed by its own conduct

to the error or if the
circumstances were such as to
put that State on notice of a
possible error
(c) An error relating only to the
wording of the text of a treaty
does not affect its validity;
Article 79(on the correction of
errors in the texts or certified
true copies of treaties)applies
in such a case
Fraud
(Art.
49,
VCLT):this
contemplates a situation where a State
has been induced to conclude a treaty
by the fraudulent conduct of another
negotiating State
Corruption of a representative of a
state (Art. 50, VCLT):corruption
exists where thethe expression of a
States consent to be bound by a treaty
has been procured through the
corruption of its representative directly
or indirectly by another negotiating
State
Coercion of a representative of a
state (Art. 51, VCLT):this is a ground
based on the expression of a States
consent to be bound by a treaty being
procured by the coercion of its
representative through acts or threats
directed against him
Coercion of a state by threat or use of
force (Art. 52, VCLT):coercion by
threat or use of force lies as a ground
where a treatys conclusion has been
procured by the threat or use of force
in violation of the principles of
international law embodied in the UN
Charter

2.

3.

Material breach: a repudiation of the

treaty in a manner not authorized by
the VCLT or a violation of a provision
essential to the accomplishment of the
object and purpose of the particular
treaty
Supervening impossibility: when there
is a permanent disappearance or
obstruction of an object indispensable
for the execution of the treaty so long
as this is not caused by breach of the
treaty by the party claiming to
terminate or suspend
Rebus sic stantibus (fundamental
change of circumstances):a ground the
invocation of which can release states
from obligations that have changed out
of all recognition other than to provide

an escape from what has turned out to

be a bad bargain
Requisites:
(a) The change must be
absolutely exceptional
so substantial that the
foundation of the treaty
must have altogether
disappeared
(b) The change must have
been
unforeseen
or
unforeseeable at the time
of the perfection of the
treaty
(c) The change must not have
been caused by the party
invoking the doctrine
(d) The doctrine must be
invoked
within
a
reasonable time
(e) The duration of the treaty
must be indefinite
(f) The
doctrine
cannot
operate retroactively (i.e.
it must not adversely
affect provisions which
have
already
been
complied with prior to the
vital change in the
situation)
XPN:
Rebus sic stantibus is not a
ground for terminating a treaty:
(a) If the treaty establishes
a boundary; or
(b) If
the
fundamental
change is the result of a
breach invoking it either
of an obligation under
the treaty or of any
other
international
obligation owed to any
other party to the
treaty(Art. 62, VCLT)

Treaty, distinguished from executive

agreement
TREATY
Deals
with
basic
political issues or
changes of national
policies
Permanent
agreement

EXECUTIVE
AGREEMENT
Deals
with
adjustment of details
carrying
out
established national
policies
Temporary
arrangements

Case law on treaties:

ICJ Judgments do not create automatically binding
judgments in the US domestic sphere as domestic
laws, thus, pre-empting state laws from its
application. Nothing in its language suggests that it
has a self-executing effect. [] The Senate can

ratify a self-executing treaty made by the Executive,

or, if the ratified treaty is not self-executing,
Congress can enact implementing legislation
approved by the President. (Medellin vs. Texas, 552
US 491, March 25, 2008)
As held in the case of Medellin [], treaties entered
into by the United States are not automatically part
of their domestic law unless these treaties are selfexecuting or there is an implementing legislation to
make them enforceable. We have to look at the
language of the treaty. The VFA is a self-executing
Agreement [], because the parties intend its
provisions to be enforceable, precisely because the
Agreement is intended to carry out obligations and
undertakings under the RP-US Mutual Defense Treaty.
[] The VFA is binding for this executive agreement
is a "treaty" within the meaning of that word in
international law and constitutes enforceable
domestic law vis--vis the United States (Nicolas vs.
Romulo, G.R. No. 175888, Feb. 11, 2009)

Other important matters in treaty law

Most favored nation (MFN) clause:a pledge
made by a contracting party to a treaty to grant
to other party treatment not less favorable than
that which had been given or may be granted to
the most favored among parties.
GR:
XPN:

A new State is not bound by the former

sovereign.
(a) If a State agreed to be bound; or
(b) In treaties involving boundaries or
territorial matters.

NOTES:
1. Unless a different intention appears from the
treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire
territory. (Art. 29, VCLT)
2. A State may not invoke the fact that its
consent to be bound by a treaty has been
expressed in violation of a provision of its
internal law regarding competence to conclude
treaties as invalidating its consent unless that
violation was manifest and concerned a rule of
its internal law of fundamental importance. A
violation is manifest if it would be objectively
evident to any State conducting itself in the
matter in accordance with normal practice and
in good faith. (Art. 46, VCLT)
SUGGEST TO INCLUDE GATT-WTO PROVISION
ON MFN

NATIONALITY AND STATELESSNESS

Nationality

Nationality is the status of being treated as a

national of a state for particular purposes. Each

state has wide discretion to determine who is a

national. The most common methods of
acquiring nationality at birth are through one or
both parents and/or by the place of birth.
Nationality can also be acquired by adoption and
naturalization.

Nationality principle
The nationality principle provides that the
State may exercise jurisdiction over an offender
by virtue of his being its national, without
regard to where he was at the time the offense
was committed and without respect to the
nature of the offense.
Such jurisdiction as exercised by the State has
the following aspects:
PRESCRIPTIVE
JURISDICTION
It is the power of the
State to assert its own
law over anybody or
any subject matter,
wherever
located,
subject
to
enforcement
jurisdiction.

ENFORCEMENT
JURISDICTION
It is the actual
exercise
and
enforcement of a
law over a person or
subject
matter
within the territory
of
the
State.
Otherwise,
the
solution
is
extradition.

Doctrine of effective nationality

A person having more than one nationality shall
be treated as if he had only one 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.(Art. 5, Hague Convention of
1930 on the Conflict of Nationality Laws)

their state when out of his state (e.g.

refugees)
DUE TO ITS RELEVANCE, DISCUSS FOUNDLINGS

Reintegration
Reintegration is the recovery of nationality by
individuals who are natural-born citizens of a
state.

Refugees; non-refoulement
Refugees arethose who:
1.
2.
3.

Are outside the country of his

nationality or if stateless, outside the
country of his habitual residence
Lack national protection
Fear persecution

Non-refoulement prohibits a state to return or

expel a refugee to the territory where he
escaped because his life or freedom is
threatened. The State is under obligation to
grant temporary asylum.

STATE RESPONSIBILITY
SUGGEST YOU JUST COPY PROVISIONS OF LAW
OF STATE RESPONSIBILITY
State responsibilitycomes into play when a
state violates an international obligation against
another state, and provides thata state cannot
invoke its national law for violating an
international obligation.
Instances:
1.
2.
3.
4.

Violation of a treaty, or customary law

Non-compliance with court decision
Assistance in the commission of
internationally wrongful act
Ill-treatment of nationals

Statelessness

Elements:

Statelessness is the condition or status of an

individual who is born without any nationality or
who loses his nationality without retaining or
acquiring another. Stateless individuals are
treated more or less like the subjects of a
foreign state.

1.

Any wrong suffered by a stateless person

through the act or omission of a state would be
damnumabsqueinjuria for, in theory, no state
has been offended and no international delict
committed.
Kinds of stateless persons:
1.
2.

De jure:those who have lost their

nationality and have not acquired a
new one (e.g. deserters)
De facto: those who have a nationality
but to whom protection is denied by

2.

Unlawful act or omission: where there

is a violation or breach of an
international responsibility, regardless
of fault.
The unlawful act is attributable to a
state under international law
As to unlawful activities/conduct of:

A. Organs of states
GR:

XPN
:

Always attributable to the

State, whether by the central
or local government, as long as
the
entity
concerned
is
officially an organ of the State
Acts committed by entities
considered organs of the state
even if not officially (e.g.
secret organizations) are
attributable to the State
WHAT IF COMMITTED BY A
PATROLMAN
OR
MMDA
PERSONNEL?

group
NOTE: A State can be made liable for failure to act
on or stop a non-attributable act, giving rise to an
obligation of the State under international law (e.g.
if a State does not prosecute a private individual for
violations of International Humanitarian Law [IHL]).

Internationally wrongful act of a state

An internationally wrongful act of a state:
1.
2.

Is attributable to the State under

international law
Constitutes a breach of an international
obligation of the State

Consequences:
Q
:

If an official of a state
exceeded his authority, is it an
act attributable to the state?
A: YES, when he commits the act
at issue in the performance of
his official functions.
B. Private individuals
Acts of private individuals
cannot be attributable to the
State
XPN
If the private individual is:
:
(a) Empowered
by
the
national law to act on
behalf of the State
(b) Acting on behalf of the
State
(c) Exercises elements of
governmental authority in
the absence or default of
the official authorities
and in circumstances such
as to call for the exercise
of those elements of
authority
(d) Acting as an agent of the
State
C. Revolutionaries

1.
2.
3.

GR:

GR:

The State has to make full reparation

The State is to be made liable to do
specific performance (e.g. doing what
it has failed to do)
The State could be a subject of a
countermeasure, provided(a) it is not a
violation on the prohibition on the use
of force and basic human rights or rules
of jus cogens; and (b) it must be
proportionate to the injury or wrongful
act

Defenses/circumstances
wrongfulness:
1.
2.
3.
4.
5.
6.

precluding

Consent on the part of the potential

victim-state
Legal countermeasures
Force majeure
Extreme distress (no other way to save
life)
State necessity (no other way to
safeguard an essential state interest)
Lawful self-defense

On ill treatment of aliens (e.g. unlawful

expropriation, denial of justice, direct attack or
injury) as an act of state responsibility:
For ill treatment not to be present, the treatment as
to aliens must pass a certain standard, which varies
depending on each particular case:

Acts
of
revolutionary
movements
are
not
1. International minimum standards (IMS)if the
attributable to the State
violation is related to human relations
XPN
unless if the revolutionary
The treatment of an alien, in order to
:
movement
succeeded
to
constitute
an
international
become the new government
delinquency, the treatment of an alien
of the State
should amount to an outrage, bad
D. Groups acting in another states territory:
faith, willful neglect of duty, and
are like agents of their State of origin,provided
insufficiency of governmental action

that every reasonable and impartial

1. The group must have a total dependence on
man would readily recognize its
that State; and
insufficiency(Neer vs. Mexico)
2. The State must have direct control over 2.
the National standardsif the violation is related to

unlawful expropriation

Theory of internationalization of
contracts
Internationalization of contractscontemplates
the existence of a contract entered into
between states.

GR:
XPN:

Breach of contract does not give rise to an

international obligation
unless the contract has been so
internationalized that it will give rise to
an international obligation
A contract is internationalized when
the contract provides for clauses
that settlement of disputes will be
brought
for
international
arbitrations;as a result, a State
cannot terminate a contract for a
reasonable period of time

Direct and indirect state responsibility, distinguished

Who committed the

offense/delinquenc
y?

When will liability

attach?

DIRECT STATE
RESPONSIBILITY
The international delinquency
was committed by superior
government officials or organs
(e.g. chief-of-state, national
legislature)
Immediately, because the
officials or organs acts may
not be effectively prevented
or
reversed
under
the
constitution or laws of the
State

Right of diplomatic protection

This right belongs to the State on behalf of its
own national or individuals, provided:
1.
2.

The State establishes anationality link;

and
GR:
There is an exhaustion of local
remedies in the State
The State must be given an
opportunity to do justice in
its regular way and without
unwarranted interference
by other states.
XPN:
Exhaustion may be dispensed with:
(a) If there are no remedies to
exhaust
(b) Where the courts are corrupt

INDIRECT STATE
RESPONSIBILITY
The offense was committed
by:
(a) Inferior government
officials; or
(b) Private individuals
The state will be held liable
only if, by reason of its
indifference in preventing or
punishing it, it can be
considered to have connived in
effecting its commission
(c) Where there is no adequate
machinery
for
the
administration of justice
(d) Where
the
international
delinquency results from an
act of the State

On the Calvo clause:

The Calvo clause is an invalid stipulation by virtue of
which an alien waives or restricts his right to appeal
to his own state in connection with any claim arising
from a contract with a foreign state and limits
himself to the remedies available under the laws of
the state.
Resort to diplomatic protection:

After the alien has exhausted all available local

remedies without success, he must avail himself
of the assistance of his state.
The nationality link must exist from the time of
the injury until the time the international claim
is finally settled.
NOTE: It is the executives function to invoke
diplomatic protection to its nationals on violation of
international crimes and not the courts. However,
the President cannot be compelled to do so. It is a
discretionary function.
No matter how much the Court grieves with the
Malaya Lolas for the violation of their human rights
in the hands of the Japanese during the World War
II, the Court cannot force the executive department
to initiate diplomatic protection against Japan and
in favor of the Filipinas. This is a matter of
discretion for the Executive Department. (Vinuya vs.
Romulo, G.R. No. 162230, April 28, 2010)

JURISDICTION OF STATES
The concept of jurisdictionin international law
refers to the power of a state to prescribe and
enforce criminal and regulatory laws.

nationals, wherever they may be when the

offense or civil wrong is committed.
NOTE:
1. The nationality principle is concerned with the
identity of the perpetrator of a crime.
2. A national is entitled to the diplomatic
protection of his/her state at all times, and,
as corollary, he/she is subject to its civil and
criminal jurisdiction.

Protective principle and the effects

doctrine
A state may assert its authority over matters
which produce a deleterious effect on
itirrespective of where those acts take place or
by whom they are committed. National laws
based on this principle are said to operate
extraterritorially.
The effects doctrine (Lotus Case):
A state has jurisdiction over acts occurring
outside its territory but having effects within it.
It has two (2) principles:
1.

Territoriality principle
A state has jurisdiction over all matters arising
in its territory, whether the individuals
concerned are nationals or aliens.
Aspects of territoriality:
1.

2.

3.

Objective: a state will have jurisdiction

over offenses that are completed in its
territory, even though some element
constituting the offense (or civil wrong)
took place abroad. (Lotus case)
Subjective: a state has jurisdiction
over
all
offenses
and
matters
commencing in its territory, even if
some element of the completion of
the offense takes place in another
state (Compania Naviera Vascongado
vs. Steamship Cristina, [1938] AC485)
Extra-territorial: where jurisdiction is
exercised in such a way that allows acts
taking place abroad to be considered as
offenses within the local jurisdiction,
and individuals can thus be made
subject to local courts in respect of
those acts

Nationality principle
* See also Nationality and Statelessness.
International law permits (but does not require)
a state to exercise jurisdiction over its

2.

Subjective territorial principle: a state

has jurisdiction to prosecute and
punishpersons who have committed
crimes commenced within the state but
completed or consummated abroad
Objective territorial principle: a state
has jurisdiction to prosecute and punish
persons who have committed crimes
commenced outside the state but
consummated within its territory

Universality principle
Under international law, there are certain
crimes that are regarded as so destructive of the
international order that any state may exercise
jurisdiction in respect of them.
Universal jurisdiction is one that appears to
exist irrespective of where the act constituting
the crime takes place and the nationality of the
person committing it. Such acts include:
1. Genocide
2. Torture
3. War crimes
4. Piracy
5. Crimes against humanity
IS KIDNAPPING COVERED BY UNIVERSALITY
PRINCIPLE?

Passive personality principle

Under the passive personality principle, a state
would have jurisdiction over all crimes where
the victim was a national, irrespective of the

place where the crime was committed or the

nationality of the offender.
2.

Conflicts of jurisdiction
There are three modes in resolving conflicts of
jurisdiction:
1.

2.
3.

Balancing
test:
involves
the
employment of tripartite analysis to
determine
whether
to
assume
jurisdiction or not
International comity
Forum non conveniens:if in the
entirety of the circumstances of the
case, it would be discovered that there
is real unfairness to one of the suitors
in permitting the choice of forum which
is not the natural or proper forum,
either on the ground of convenience of
trial or the residence or domicile of
parties or of its being the locus
contractus or locus solutionis, then the
doctrineof forum non conveniens is
properly applied

Fundamental principles of extradition:

1.

2.

TREATMENT OF ALIENS
No state is under obligation to admit aliens. The
stateprerogative to admit or not to admit aliens
in certain cases and under certain conditions
flows from its right of existence and as an
attribute of sovereignty.
Exhaustion of local remedies:
Foreign nationals must utilize such censures as
are available in the local law to achieve a
satisfactory vindication of their rights before
their state of nationality can successfully
maintain a claim in international law.
Purpose: it ensures that international
tribunals are not engulfed by inter-state
claims that could have been more easily
and more profitability dealt with at the
local level.

Extradition; fundamental principles

Extradition is the process by which persons
charged with or convicted of crime against the
law of a state and found in a foreign state are
returned by the latter to the former for trial or
punishment.
1.

Applies to:

2.

3.
Does not apply to:

1.

Those merely charged with

an offense but have not
been brought to trial
Those tried and convicted
and have subsequently
escaped from custody
Those who have been
convicted in absentia
Persons merely suspected
of having committed an

offense but against whom

no charge has been laid
Person whose presence is
desired as a witness or for
obtaining or enforcing
civil judgment

3.
4.

5.

6.
7.

8.

The prevailing view is that there is no

duty to extradite in the absence of
treaty,
whether
bilateral
or
multilateral. (Dissenting Opinion, Puno,
J., in Secretary of Justice vs. Hon.
Ralph C. Lantion)
XPN:in matters involving the
commission of international
crimes
Any person may be extradited; he need
not be a citizen of the requesting state.
XPN:political
or
religious
offenders are generally not
subject to extradition
(a) XPN
to
XPN:
Attendant clause: the
assassination of head
of State or any
member of his family
is not regarded as
political offense for
purposes
of
extradition; likewise
as to the crime of
genocide.
Offense must have been committed
within the territory or against the
interest of the demanding State.
An extraditee has no right to notice and
hearing during the evaluation stage of
the extradition process. (Sec. of Justice
vs. Lantion; Cuevas vs. Muoz)
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 treaty.
Double criminality:the act for which
the extradition is sought must be
punishable in both States
As a rule, the offense charged should
be identical to an offense listed in the
extradition treaty.
XPN:in
non-list
treaties,
offenses punishable under the
laws of both states by
imprisonment of one year or
more are included among the
extraditable offenses
Bail is available in extradition cases,
provided it will be proved by clear and
convincing evidence that he is not a
flight risk and will abide with all orders
and processes of the extradition court.
(Government of Hong Kong vs. Olalia,
G.R. No. 153675, April 19, 2007)

Procedure
A request for extradition is madethrough a
diplomatic representative with:
1.
2.
3.
4.

Decision of conviction
Criminal charge and warrant of arrest
Recital of facts
Text of applicable law designating the
offense
5. Pertinent papers

DFA forwards request to DOJ

DOJ files a petition for extradition with RTC

Upon receipt of a petition for extradition and its

supporting documents, the judge must study them
and make as soon as possible, a prima facie
finding whether:
1.
2.
3.

They are sufficient in form

substance,
They show compliance with
Extradition Treaty and Law
The person sought its extraditable.

and
the

At his discretion, the judge may require the

submission of further documentation or may
personally examine the affiants and witnesses of
the petitioner.
Q:

A:

After the judge studies and

examines the petition and its
supporting documents, is a
prima facie case found?
NO The petition may be
dismissed at the
discretion of the
judge.
The
YE
judge
must
S
immediately issue a
warrant
for
the
arrest
of
the
extraditee who is at
the
same
time
summoned to answer
the petition and to
appear at scheduled
summary hearings.

Hearing

Appeal to CA within ten years whose decision shall

be final and executory

Decision to be forwarded to DFA through the DOJ

The individual is placed at the disposal of the

authorities of the requesting state, who is to
shoulder the costs and expenses therefor.

Prior to the issuance of the warrant, the judge

must not inform or notify the potential extraditee
of the pendency of the petition, lest the latter be
given the opportunity to escape and frustrate the
proceedings. The foregoing procedure will best
serve the ends of justice in extradition cases
(Government of the US v. Hon. Purganan and
Jimenez, 134 SCRA 438).

Extradition, distinguished
From deportation:
EXTRADITION
Expulsion of an alien
considered undesirable
by a local state, usually
but not necessarily to his
own State.

DEPORTATION
Surrender or recovery of
a fugitive back to a local
state,
from
another
state, by virtue of a
treaty.

From criminal proceedings:

EXTRADITION
It does not determine
guilt or innocence of the
extraditee.
Summary procedure
It is subject to a less
stringent standard of
evidence.
The decision is not final
for it is the President
who
finally
decides
whether to extradite a
person or not.

CRIMINAL PROCEEDINGS
It determines guilt or
innocence
of
the
accused.
Full blown-trial
It is subject to strict
standard of evidence.
The decision rendered is
final.

INTERNATIONAL HUMAN RIGHTS LAW

SHORTEN Human rights, defined
1.

2.

3.

Human Development Report (HDR)

definition: rights possessed by all
persons, by virtue of their common
humanity, to live a life of freedom and
dignity.
UN definition: those rights which are
inherent in our nature, and without
which we cannot live as human beings;
human
rights
and
fundamental
freedoms allow us to develop and use
our human qualities, intelligence,
talents and conscience, and to satisfy
our spiritual and other needs.
Philippine Commission on Human Rights
(PH-CHR) definition: those rights which
are supreme, inherent, and inalienable
rights to life, dignity, and selfdevelopment; the essence of these
rights makes man human.

Basic characteristics of human rights

1.
2.
3.

4.

5.

6.

7.

Inherent:They are not granted by any

person or authority.
Fundamental:Without them, the life
and dignity of man will be meaningless.
Inalienable:
(a) Cannot be rightfully taken
away from a free individual.
(b) Cannot be given away or be
forfeited.
Imprescriptible:
(a) Do not prescribe.
(b) Cannot be lost even if man
fails to use or assert them,
even by a long passage of
time.
Indivisible:
(a) Not capable of being divided.
(b) Cannot be denied even when
other rights have already been
enjoyed.
Universal:
(a) Universal in application.
(b) Applies irrespective of ones
origin, status, or condition or
place where one lives.
(c) Without national border.
Interdependent:Fulfillment/exercise of
one cannot be had w/o the realization
of the other.

DELETE Classification of human rights

Absolute and non-absolute rights:
Absolute rights cannot be limited in any way, at
any time, for any reason. Absolute rights under
theInternational Covenant on Civil and Political
Rights(ICCPR) include:

1.
2.
3.
4.
5.
6.
7.
8.

Freedom from torture and other cruel,

inhuman, or degrading treatment or
punishment (Art. 7)
Freedom from slavery/servitude (Art.
8[1],[2])
Prohibition on genocide (Art. 6[3])
Freedom from prolonged arbitrary
detention (see Art. 9[1])
Freedom from imprisonment for failure
to fulfill a contractual obligation (Art.
11)
Prohibition on retrospective operation
of penal laws (Art. 15)
Right to be recognized everywhere as a
person before the law (Art. 16)
Freedom
from
systematic
racial
discrimination (see Art. 2[1], Art. 26)

Non-absolute
restricted.

rights

can

be

qualified

or

A qualified right is where the state can lawfully

interfere under certain circumstances, usually
during a state of emergency or war, or in the
pursuit of a legitimate aim, or to uphold a
democratic principle (e.g. freedom of expression
under Art. 10).
Any right that is qualified must also be
prescribed by law, and the manner of
qualification must be necessary and
proportionate.
A restricted right is one that is acknowledged as
a restricted right in the law itself (e.g. right to
liberty under Art. 5; a person's liberty can be
restricted if he commits and is convicted of a
crime that warrants imprisonment).
Derogable and non-derogable rights:
Derogable rights are those which states can
suspend/restrict under certain circumstances, to
enable said state to respond to a serious public
emergency which threatens its life and
existence. Any derogation must be (1) for a
limited period of time, (2) proportionate to the
emergency, and (3) non-discriminatory.(Art. 4,
ICCPR)
Any right that is absolute is also non-derogable,
i.e. cannot be suspended even in a declared
state of emergency. In addition to the above
enumeration on absolute rights are more nonderogable rights:
1.
2.
3.

Right to life (see Art. 4[2])

Freedom
from
medical/scientific
experimentation w/o consent (see Art.
4[2])
Freedom of thought, conscience,
religion (see Art. 4[2])

The following come not from the ICCPR but from

the HRC's (UN Human Rights Committees)
General Comment 29:

1.

2.
3.
4.

5.

Right of persons deprived ofliberty to

be treated with humanity and respect
for the inherent dignity of the human
person
Some elements of the rights of persons
belonging to ethnic/religious/linguistic
minorities
Prohibition against taking hostages,
abductions,
or
unacknowledged
detention
Prohibition on propaganda for war and
advocacy of national/racial/religious
hatred constituting incitement to
discrimination/hostility/violence
Prohibition against re-introduction of
the death penalty if it has been
abolished

Universal Declaration of Human Rights

(UDHR)
The Universal Declaration of Human Rights
(UDHR) is a declaration adopted by the UN
General Assembly in 1948, consisting of 30
articles which have been expounded upon in
subsequent treaties and other laws (e.g. ICCPR).

Article 14
Article 15
Article 16
Article 17
Article 18
Article 19
Article 20
Article 21
Article 22
Article 23
Article 24
Article 25
Article 26
Article 27
Article 28
Article 29
Article 30

Legal effect(s):
1.
2.

3.

Not a treaty
Explicitly adopted for the purpose of
defining the meaning of the words
"fundamental freedoms" and "human
rights" appearing in the UN Charter,
which is binding on all member states,
and as such, a fundamental constitutive
document of the UN
Forms part of customary international
law (D'Amato, International Law:
Process and Prospect, 1986 ed., pp.
123147)

International Covenant on Civil and

Political Rights (ICCPR)
The portions of the ICCPR relevant to the
subject comprise three parts:
Part 1 (Art. 1):
1.

Articles:
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12

Article 13

Right to equality
Freedom from discrimination
Right to life, liberty, personal
security
Freedom from slavery
Freedom from torture and degrading
treatment
Right to recognition as a person
before the law
Right to equality before the law
Right to remedy by competent
tribunal
Freedom from arbitrary arrest and
exile
Right to fair public hearing
Right to be considered innocent until
proven guilty
Freedom from interference with
privacy,
family,
home
and
correspondence
Right to free movement in and out of

the country
Right to asylum in other countries
from persecution
Right to a nationality and the
freedom to change it
Right to marriage and family
Right to own property
Freedom of belief and religion
Freedom of opinion and information
Right of peaceful assembly and
association
Right to participate in government
and in free elections
Right to social security
Right to desirable work and to join
trade unions
Right to rest and leisure
Right to adequate living standard
Right to education
Right to participate in the cultural
life of community
Right to a social order that
articulates this document
Community duties essential to free
and full development
Freedom from state or personal
interference in the above rights

2.

Right of all peoples to selfdetermination, including the right to

"freely determine their political status",
pursue their economic, social and
cultural goals, and manage and dispose
of their own resources
A negative right of a people not to be
deprived of its means of subsistence,
and imposes an obligation on those
parties still responsible for non-selfgoverning
and
trust
territories
(colonies) to encourage and respect
their self-determination

Part 2 (Arts. 25):

1.

2.

Obligation of state-parties to legislate

where necessary to give effect to the
rights recognized in the ICCPR, and to
provide an effective legal remedy for
any violation of those rights
Requirement that these rights be
recognized "without distinction of any
kind, such as race, color, sex, language,
religion, political or other opinion,
national or social origin, property, birth
or other status," and to ensure that
they are enjoyed equally by women

3.

That these rights can only be limited "in

time of public emergency which
threatens the life of the nation"
XPN:No derogation re:
(a) Right to life
(b) Freedom from torture and
slavery
(c) Freedom from retrospective
law
(d) Right to personhood
(e) Freedom
of
thought,
conscience and religion

Part 3 (Arts. 627) lists the rights themselves.

These include rights to:
1.
2.

3.

4.

5.

6.
7.

Physical integrity, in the form of the

right to life and freedom from torture
and slavery (Arts. 6, 7, 8)
Liberty and security of the person, in
the form of freedom from arbitrary
arrest and detention and the right to
habeas corpus (Arts. 911)
Procedural fairness in law, in the form
of rights to due process, a fair and
impartial trial, the presumption of
innocence, and recognition as a person
before the law (Arts. 14, 15, 16)
Individual liberty, in the form of the
freedoms of movement, thought,
conscience and religion, speech,
association and assembly, family rights,
the right to a nationality, and the right
to privacy (Arts. 12, 13, 1724)
Prohibition of any propaganda for war
as well as any advocacy of national or
religious
hatred
that
constitutes
incitement to discrimination, hostility
or violence by law (Art. 20)
Political participation, including the
right to join a political party and the
right to vote (Art. 25)
Non-discrimination, minority rights and
equality before the law(Arts. 26, 27)

Many of these rights include specific actions

which must be undertaken to realize them.

International Convention on Economic,

Social, and Cultural Rights (ICESCR)

2.
3.

Part 3(Arts. 615) lists the rights themselves.

These include rights to:

INTERNATIONAL HUMANITARIAN LAW

AND NEUTRALITY
International humanitarian law (IHL)(also
known as the law of war or the law of armed
conflict) 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.

Categories of armed conflicts

1.

Part 2(Arts. 25):

1.

Principle of progressive realization:

some of the rights (e.g. the right to
health) may be difficult in practice to
achieve in a short period of time, and
that states may be subject to resource

Work, under "just and favourable

conditions", with the right to form and
join trade unions (Arts. 6, 7, 8)
Social
security,
including
social
insurance (Art. 9)
Family life, including paid parental
leave and the protection of children
(Art. 10)
An adequate standard of living,
including adequate food, clothing and
housing,
and
the
"continuous
improvement of living conditions"(Art.
11)
Health,
specifically
"the
highest
attainable standard of physical and
mental health" (Art. 12)
Education, including free universal
primary education, generally available
secondary education and equally
accessible higher education. This should
be directed to "the full development of
the human personality and the sense of
its dignity", and enable all persons to
participate effectively in society (Arts.
13, 14)
Participation in cultural life(Art. 15)

Many of these rights include specific actions

which must be undertaken to realize them.

The ICESCR follows the structure of the UDHR

and ICCPR. The portions relevant to the subject
comprise three parts:
Part 1(Art. 1) is the same as Part 1 of the
ICCPR.

constraints, but requires them to act as

best they can within their means
Same as Part 2, item 2 in the earlier
discussion on the ICCPR.
Same as Part 2, item 3 in the earlier
discussion on the ICCPR.

2.

International armed conflicts: those in

which at least two States are involved;
subject to a wide range of rules,
including those set out in the four
Geneva Conventions and Additional
Protocol (AP) I.
Non-international armed conflicts:
those restricted to the territory of a
single state, involving either regular
armed forces fighting groupsof armed
dissidents, or armed groups fighting
each other; a more limited range of

3.

rules apply to internal armed conflicts

and are laid down in Common Article 3
to the four Geneva Conventions as well
as in AP II.
War of national liberation:armed
conflicts in which peoples are fighting
against colonial domination and alien
occupation and against racist regimes in
the exercise of their right to selfdetermination.

8.

Core international obligations of states in

IHL
The Geneva Conventions mandate states to give
humane protection to persons not actively
engaged in warfare. The rules apply to any
international armed conflict, whether a declared
war or not. It gives protection to the:
1.
2.
3.
4.

Wounded and sick in the field

Wounded, sick and shipwrecked at sea
Prisoners of war
Civilians

State-parties to an international armed conflict

are thus obliged to abide by the following rules:
1.

2.
3.

4.
5.

6.

7.

The parties to a conflict must at all

times distinguish between the civilian
population and combatants in order to
spare the civilian population and
civilian property. The protection
extends to the civilian population as a
whole and individualsalike.
Attacks may be made solely against
military objectives.
People who do not or can no longer
take part in the hostilities are entitled
to respect for their lives and for their
physical and mental integrity. Such
people must in all circumstances be
protected and treated with humanity,
without any unfavorable distinction
whatever.
It is forbidden to kill or wound an
adversary who surrenders or who can no
longer take part in the fighting.
Neither the parties to the conflict nor
members of their armed forces have an
unlimited right to choose methods and
means of warfare.
It is forbidden to use weapons
or methods of warfare that are
likely to cause unnecessary
losses or excessive suffering.
The wounded and sick must be
collected and cared for by the party to
the conflict which has them in its
power.
Medical personnel, establishments,
transports and equipment must be
spared.
The red cross or red crescent
on a white background is the
distinctive sign indicating that

such persons and objects must

be respected.
Captured combatants and civilians who
find themselves under the authority of
the adverse party are entitled to
respect for their lives, their dignity,
their personal rights and their political,
religious and other convictions. They
must be protected against all acts of
violence or reprisal. They are entitled
to exchange news with their families
and receive aid. They must enjoy basic
judicial guarantees.(based on the four
Geneva Conventions and the APs)

Principles of IHL
IHL is founded upon the following principles:
1.
2.
3.
4.
5.
6.

Distinction between civilians and

combatants
Prohibition of attacks against those hors
de combat (those who are sick and
wounded, prisoners of war)
Prohibition on the infliction of
unnecessary suffering
Principle of proportionality
Notion of necessity
Principle of humanity

Distinction between civilians and combatants:

The parties to the conflict must at all times
distinguish between civilians and combatants.
Attacks may only be directed against
combatants. Attacks must not be directed
against civilians. (Rule 1, Customary Rules of
IHL)
Terms of note:
1. Attack: act of violence against the adversary,
whether in offense or in defense (Art. 49, AP I)
2. Combatant: a person who engages directly in
the hostilities of armed conflict
(a) Non-privileged: those who, when caught,
are not considered prisoners of war
i. Spies:
Those who act clandestinely or
under false pretenses to obtain
or seek to obtain information in
the zone of operations of the
other, with the intention of
communicating it to the hostile
party
When captured, a spy may be
proceeded against under the
municipal law of the other
belligerent, although under The
Hague Convention, he may not
be executed without a trial
However, if a spywas captured
after he has succeeded in
rejoining his army, he must be

treated as a prisoner of war

Mercenaries:
Must be especially recruited to
fight for a particular armed
conflict, as a combatant
Must take direct part in the
hostilities
Motivated essentially by the
desire for personal gain and is,
in fact, provided material
compensation
(b) Privileged:those who, when captured,
enjoy the privileges of a prisoner of war.
i. Regular armed forces: aside from the
persons
actually
comprising
a
belligerents regular armed forces,
the term also includes
Ancillary services, like doctors
and chaplains
Those who accompany the
armed
forces
(e.g.
war
correspondents)
Levees en masse: inhabitants of
unoccupied territory who, on
approach
of
the
enemy,
spontaneously take up arms to
resist the invading troops
without having had the time to
organize
themselves,
providedthey
[1] Carry arms openly
[2] Observe the laws and
customs of war
Franc-tireurs
or
guerillas:
provided that they
[1] Are commanded by a
person responsible for
his subordinates
[2] Wear
a
fixed,
distinctive emblem
[3] Carry
their
arms
openly
[4] Observe the laws and
customs of war
Officers and crew of merchant
vessels who forcibly resist
attack
Civilian; non-combatant: a person who does
not engage directly in the hostilities
1. Protected civilians must be:
i. Treated humanely at all times and
protected against acts or threats of
violence, insults and public curiosity
ii. Entitled to respect for their honor,
family rights, religious convictions
and practices, and their manners and
customs
iii. Specially protected, for example in
safety zones, if wounded, sick, old,
children
under
15,
expectant
ii.

3.

mothers or mothers of children under

7
iv. Enabled to exchange family news of
a personal kind
v. Helped to secure news of family
members dispersed by the conflict
vi. Allowed to practice their religion
with ministers of their own
faith(Fourth Geneva Convention)
NOTE: Civilians who are interned
(imprisoned) have the same rights as
prisoners of war. They may also ask to
have their children interned with
them, and wherever possible families
should be housed together and
provided with the facilities to continue
normal family life. Wounded or sick
civilians, civilian hospitals and staff,
and hospital transport by land, sea or
air must be specially respected and
may be placed under protection of the
red cross/crescent emblem.
2.

Protected civilians must not be:

i. Discriminated against because of
race, religion or political opinion
ii. Forced to give information
iii. Used to shield military operations or
make an area immune from military
operations
iv. Punished for an offence he or she has
not personally committed
v. Women must not be indecently
assaulted, raped, or forced into
prostitution(Fourth
Geneva
Convention)
Civilians are protected against attack, unless
and for such time as they take a direct part in
hostilities.(Rule 6, Customary Rules of IHL; Art.
51(3), AP I)
Elements of direct participation:
[1] The act must be likely to adversely
affect the military operations or
military capacity of a party to an
armed conflict or, alternatively, to
inflict death, injury, or destruction
on persons or objects protected
against direct attack (threshold of
harm)
[2] There must be a direct causal link
between the act and the harm
likely to result either from that act
or from a coordinated military
operation of which that act
constitutes an integral part (direct
causation)
[3] The act must be specifically
designed to directly cause the
required threshold of harm in
support of a party to the conflict

and to the detriment of another

(belligerent nexus)
Prohibition of attacks against those hors de
combat:
The prohibition to attack any person hors de
combat (i.e. the sick and wounded; prisoners of
war [POW]) is a fundamental rule under IHL.
Ex.:
GR:
XPN:

A soldier could be targeted lawfully under

normal circumstances
butif he surrenders or is wounded and no
longer poses a threat, then it is prohibited
to attack him.

A person hors de combat who meets the criteria

of being a POW may be entitled to extensive
protections.
Rights of a POW(Third Geneva Convention):
POWs must be:
1.

Treated humanely with respect for their

persons and their honor
2. Enabled to inform their next of kin and the
Central Prisoners of War Agency (ICRC
[International Committee of the Red Cross]) of
their capture
3. Allowed to correspond regularly with relatives
and to receive relief parcels
4. Allowed to keep their clothes, feeding utensils
and personal effects
5. Supplied with adequate food and clothing
6. Provided with quarters not inferior to those of
their captor's troops
7. Given the medical care their state of health
demands
8. Paid for any work they do
9. Repatriated if certified seriously ill or wounded
(but they must not resume active military
duties afterwards)
10. Quickly released and repatriated when
hostilities cease
POWs must not be:
1.
2.

3.

4.

5.

Compelled to give any information other than

their name, age, rank and service number
Deprived of money or valuables without a
receipt (and these must be returned at the
time of release)
Given individual privileges other than for
reasons of health, sex, age, military rank or
professional qualifications
Held in close confinement except for breaches
of the law, although their liberty can be
restricted for security reasons
Compelled to do military work, nor work which
is dangerous, unhealthy or degrading

Prohibition on the infliction of unnecessary

suffering:
The use of means and methods of warfare which
are of a nature to cause superfluous injury or
unnecessary suffering is prohibited. (Rule 70,
Customary Rules of IHL)
Unnecessary suffering connotesharm greater
than that unavoidable to achieve legitimate
military objectives.(Nuclear Weapons case)
The prohibition of the use of means and methods
of warfare which are of a nature to cause
superfluous injury or unnecessary suffering is set
forth in a large number of treaties, such as:
1.
2.
3.

Chemical and biological weapons

(Geneva Gas Protocol, Convention on
Certain Conventional Weapons)
Blinding laser weapons (Convention on
Certain Conventional Weapons)
Anti-personnel
landmines
(Ottawa
Convention)

Necessity and proportionality:

1.

2.

The test of necessity requires a

determination of whether not doing a
certain course of action would cause
more harm to the doers side.
The test of proportionality is whether
the anticipated civilian damage or
injury caused by an attack is not
excessive to the direct military
advantage anticipated.

Incidental harm caused by a certain action might

have been necessary, but still disproportionate.
Principle of humanity:all humans have the
capacity and ability to show respect and care for
all, even their sworn enemies.

The law on neutrality

Principles and definitions:
1.

2.

Principle of inviolability: the territory

of a neutral state is inviolable; it is
prohibited to commit any act of
hostility whatsoever on such territory.
(Art. 1, Hague Convention No. V)
Neutrality: the formal position taken by
a State which is not participating in an
armed conflict or which does not want
to become involved; entails specific
rights and duties
(a) The right to stand apart from
and not be adversely affected
by the conflict
(b) A duty of non-participation and
impartiality
To obtain neutral status, the State
does not have to make a formal
declaration, nor do other States or

3.
4.

parties formally have to recognize

1.
such status. A formal declaration
will only have the effect of making
neutral status better known.
Neutral space: the national territory of
the neutral State, its territorial waters
and its national air space.
Neutral persons: nationals of neutral
States; they lose their neutral status if
(a) they commit hostile acts against a
belligerent, or (b) join the armed forces
of a belligerent party.
(a) Neutral persons are to
be treated in the2.
If their home State
same way as they
maintains
normal
would
be
in
diplomatic
relations
peacetime.
with the belligerent
(b) They remain under
State
diplomatic
protection.
Neutral
persons
are
entitled to be treated as
If there are no such
protected persons under
diplomatic relations
the
Fourth
Geneva3.
Convention

Duties of belligerent states:

1.
2.

4.

Establish a neutrality policy ensuring

respect for neutral space
Issue clear instructions and orders to
the armed forces in action in the
vicinity of neutral space to avoid
violations

Duties of neutral states:

1.

2.

Put in place policies and instructions

(a) to ensure and enforce the
protection of its neutrality in the
neutral space for which it is responsible
in relation to the belligerent parties
and in particular their armed forces;
and (b) on how they are to operate in
relation to the defence of their
territory and in dealing with incursions
Particular obligations:
(a) To ensure respect for its
neutrality, using force if
necessary
to
repel
any
violation of its territory
(b) Treat the opposing belligerent
States impartially
(c) Never assist a party to the
armed conflict
XPN: Existing non-military
telecommunications,
in
particular those owned by
public companies, may be
used by the parties to the
conflict

Practical provisions regarding the law of

neutrality:

5.

6.

Treatment of members of belligerent

armed forces: Neutral States receiving
troops belonging to the belligerent
armies on their territory must intern
them. Internees who are held in neutral
territory may be kept in camps or other
secure places. Officers may, at the
discretion of the neutral State, be
released on parole but are not allowed
to leave neutral territory without
permission.
During
internment,
internees are to be fed and clothed and
allowed relief supplies.
Hot pursuit into neutral territory:
Generally, if belligerent forces enter
neutral territory and the neutral
authority is unable or unwilling to expel
or intern them, the adverse party is
entitled to undertake their hot pursuit
and attack them there. (The mere
presence of belligerent forces does not
justify hot pursuit, there must be some
failure by the neutral State to uphold
its neutrality.)
Military equipment: Military equipment
taken from belligerent internees has to
be kept by the neutral State until the
end of hostilities.
Treatment of military medical and
religious personnel from belligerent
armed forces: Apply the Geneva
Conventions (a) if you need them to
tend to the medical or spiritual needs
of other interned members of the
belligerent armed forces, retain them
for as long as their services are
required; (b) if you do not need them
for that purpose, repatriate them.
Treatment of former POWs: Escaped
POWs who reach neutral territory or
POWs who are held by a belligerent
party seeking refuge there are to be
left at liberty. If the neutral State
tolerates their stay on its territory, it
can assign them a place of residence.
The wounded and sick: The Geneva
Conventions and AP I shall apply.

LAW OF THE SEA

The current law of the sea is a mix of customary
and treaty law, and at its forefront is the 1982
United Nations Convention on the Law of the
Sea (UNCLOS).(NOTE: All codal citations in this
chapter are from UNCLOS unless otherwise
provided.)
Q:
A:

Do the provisions of the UNCLOS bind nonparties thereto?

YES. Many of the principles therein will be
binding on states outside the Convention as a
matter of customary international law
because of its comprehensive nature, its
development over nine years, and a twelveyear wait before its entry into force. (Dixon,

p. 209)
In addition, the UNCLOS as a whole
(Continental Shelf case [Libya vs. Malta],
1985 ICJ Rep 13) and its provisions on the
Exclusive Economic Zone (EEZ) (Continental
Shelf Case [Tunisia vs. Libya], 1982 ICJ Rep
18) were held by the ICJ to be recognized as
part of customary law.

Baselines
A baseline is the starting point for delimiting a
coastal state's maritime zones.
Methods of drawing baselines:
1.

2.

Normal method:The territorial sea is

drawn from the low-water mark of the
coast as marked on large scale charts
officially recognized by the coastal
state. (Art. 5) This line follows the
curvatures of the coast and therefore
would normally not consist of straight
lines.
Straight method:Straight lines are
made to connect appropriate points
(base points) on the coast without
departing radically from its general
direction. The waters inside these lines
are internal waters. It applies only on
archipelagic states like the Philippines.
This is employed in the localities where
the coast line is deeply indented or
there is a fringe of islands along the
coast in its immediate vicinity. (Art. 7)

NOTE: The Philippines currently has 101 base

points. (R.A. 9522)

Archipelagic states
An archipelago is a group of islands, including
parts of islands, interconnecting waters and
other natural features which are so closely
interrelated that [they] form an intrinsic
geographical, economic, and political entity, or
which historically have been regarded as such.
(Art. 46)
Archipelagic states may use straight baselines
to join the outer islands of the archipelago and
serve as the points from which the territorial sea
is measured.
Waters within the straight baselines are called
archipelagic waters, upon which the state has
full sovereignty.
The right of innocent passage exists in
archipelagic waters, but subject to the
states prerogative to suspend such in
order to avert a threat to security(Art.
52)

A non-suspendable right of archipelagic sea

lanes passageexists through archipelagic waters
in respect of routes normally used for
international navigation.(Art. 54)
This also includes overflight.

Internal waters
Internal waters are all waters landwards from
the baseline of the territory. Sovereignty over
these waters is the same in extent as
sovereignty over land, and not subject to the
right of innocent passage. It extends up to the
territorial sea.
* See also discussion on archipelagic waters,
likewise internal, but upon which the right of
innocent passage exists.

Territorial sea
The territorial sea is a belt of sea adjacent to a
states coast over which the sovereignty of a
State extends beyond its land territory and
internal waters. (Art. 2)Its permissible width
spans 12 nautical miles from the baselines. (Art.
3)
Nature and extent:
1.
2.
3.

The territorial sea is inherent in

statehood.
The state also has sovereignty over the
airspace and subsoil of the territorial
sea.
International law has placed limitations
on the exercise of a coastal states
jurisdiction over its territorial sea in
certain circumstances, on the ground of
international comity:
(a) A state should not exercise its
criminal
jurisdiction
over
foreign
vessels
in
the
territorial sea(Art. 27)
(b) A state should not stop or
divert foreign ships for the
purpose of exercising civil
jurisdiction (Art. 28)
(c) Ships of all states are to enjoy
the right of innocent passage
through the territorial sea
(Art. 17)
XPN: the right of innocent
passage
may
be
suspended by the coastal
state if essential for the
protection
of
its
security(Art. 17)
(a) XPN to XPN: the right
of innocent passage is
non-suspendable
through straits used
for
international
navigation
(Corfu
Channel case, 1949
ICJ Rep. 4)

Delimitation:
On the right of innocent passage:
As itregards
In order for a ship to avail of this right,
must bedelimitation of the territorial sea
between opposite and adjacent states:
both in passage and innocent.
GR:

The territorial sea may not extend beyond

Passage: progress through the territorial the
sea median line which is equidistant from
the
amounts to passage if (a) it is for the purpose of nearest points of the baselines of the
traversing the sea or entering internal waters coastal states (i.e. halfway between the
coasts)
is continuous and expeditious,and (c)
XPN:
(a) Agreement between the parties
anchorage when necessary for normal navigation
(b) Where historic title or other special
(Art. 18)
circumstances
indicates
otherwise(Art. 15)
Innocent: passage is innocent so long as it
prejudicial to the peace, good order or security of
Exclusive Economic Zone (EEZ)
the coastal state(Art. 19(1)); whether passage is
innocent depends on a case-to-caseThe
basis
EEZ is a belt of sea, adjacent to the coast,
Channel case)
extending up to 200 nautical miles from the
However, Art. 19(2) provides for
a list ofofthe territorial sea.
baselines
activities ipso facto deemed prejudicial to the
Nature and extent:
defense or security of the coastal state:
(a) Any threat or use of force against the
1. The
sovereignty,
territorial
integrity
or EEZ is not inherent in statehood,
and has to be specifically claimed by
political independence of the coastal
states.
state, or in any other manner in 2.
violation
Within the EEZ, the coastal state is
of the principles of international given
law sovereign rights for the purpose
of exploring and exploiting all natural
embodied in the UN Charter
resources
of the area, whether living or
(b) Any exercise or practice with weapons
of
non-living.(Art. 56)
any kind
rights:
denotes
(c) Any act aimed at collecting informationto Sovereign
the prejudice of the defence or security of exclusivity but does not give the
coastal state dominium over the
the coastal state
EEZ; the coastal state does not
(d) Any act of propaganda aimed at affecting
have complete control over the
the defence or security of the coastal EEZ
state
3. The coastal state is also given certain
(e) The launching, landing or taking on board
rights to establish artificial islands,
of any aircraft
conduct research, and utilize super(f) The launching, landing or taking on board
adjacent waters.(Ibid.)
4. The waters of the EEZ are sui juris
of any military device
the coastal state has certain
(g) The loading or unloading of (where
any
exclusive
rights for the functional
commodity, currency or person contrary
to
purpose
of
enjoying EEZ rights but
the customs, fiscal, immigration or
where many of the freedoms of the
sanitary laws and regulations of the
high seas are preserved).
coastal state
5. The coastal state is under a number of
(h) Any act of willful and serious pollution
obligations as regards the EEZ, some of
contrary to the UNCLOS
which are to conserve its living
(i) Any fishing activities
resources (Art. 61) and share such with
(j) The carrying out of research or survey
other states in appropriate cases (Art.
activities
62(2)).
(k) Any act aimed at interfering with
any There is no obligation to share or
systems of communication or any other conserve the non-living resources
facilities or installations of the coastal of the EEZ, for they are to be
utilized in conformity with the
state
(l) Any other activity not having a direct continental shelf regime (Art.
56(3))
bearing on passage
Other states rights in the EEZ:
If passage is not innocent, the coastal state may
take steps necessary to prevent such passage.
1. Other states cannot freely fish in
another states EEZ, without prejudice
In the case of warships: they are to be required
to the sharing mechanism under Art.
to leave the territorial sea immediately
62(2).

2.

3.

Other states can avail of those

freedoms of the seas such as (a)
navigation, (b) overflight, (c) laying of
submarine cables, and (d) other
internationally lawful uses of the sea
related to these freedoms, except as
modified by the UNCLOS in respect of
coastal state jurisdiction.(Art. 58)
Restrictions on other states rights to
the EEZ that are not specifically laid
down by the UNCLOS are not to be
presumed lightly. (MV Saiga (No. 2)
case)

2.
3.

Nature and extent:

1.
2.

Delimitation:
Delimitation of the EEZ between opposite and
adjacent states shall be affected by agreement
on the basis of international law [] in order to
achieve an equitable solution. (Art. 74)
Overlap with the continental shelf:
Q:

Being that the continental shelf extends in

law to a minimum of 200 nautical miles within
which the coastal state is given rights over
non-living natural resources (e.g. oil and gas)
there is a geographical overlap within the
200-mile limit with the EEZ in respect of
these. Under which provisions of the UNCLOS
are non-living natural resources to be
extracted?
Extraction of non-living resources from the
EEZ is to be carried out in conformity with
the provisions on the continental shelf.
(Art. 56(3))Even if the EEZ and the
continental shelf share a common maritime
boundary and even though they do overlap
considerably in substance, they remain
juridically distinct they are parallel but
separate.

A:

3.

4.

A.

2.

As a physical feature, the shelf consists of:

1.

A relatively shallow plateau of land

adjacent to the coast (the shelf
proper)

Seaward limit
1.

2.

The continental shelf of a coastal state

comprises the seabed and subsoil of the
submarine areas that extend beyond its
territorial
sea
throughout
the
natural
prolongation of its land territory to:
The outer edge of the continental
margin; or
A distance of 200 nautical miles from
the baselines from which the breadth of
the territorial sea is measured where
the outer edge of the continental
margin does not extend up to that
distance.(Art. 76(1))

Continental shelf rights are inherent in

statehood.(North Sea Continental Shelf
cases; Art. 77(3))
However, the coastal state does not
have sovereignty over the shelf, but
sovereign rights for the purpose of
exploring and exploiting its natural
resources. (Art. 77)
Natural resources:
(a) Non-living natural resources
(e.g. oil, gas) of the seabed
and subsoil
(b) Certain sedentary species
(e.g. coral, oysters, sponges)
If the coastal state does not undertake
such exploration or exploitation, then
no other state may do so without its
permission.(Art. 77(2))
The waters above the shelf prima facie
retain their status as high seas. (Art.
78)
XPN: This is not the case for
waters within the 200-mile limit
where the EEZ regime will operate

Delimitation of the shelf:

Continental shelf

1.

A steep slope going to near the ocean

floor (the slope)
A gradual incline going to the ocean
floor itself (the continental rise)

B.

All states, regardless of the physical

shape for the shelf, have a continental
shelf in law up to 200 nautical miles
from the baselines of the territorial
sea, even if there is no physical shelf or
if it stops short of 200 miles.(Art.
76(1))
Where the shelf goes beyond 200
nautical miles as a physical feature, the
coastal state has shelf rights to the
outer edge of the continental rise
(Ibid.)
XPN: The continental shelf in law
cannot extend beyond 350 nautical
miles from the baselines of the
territorial sea or 100 nautical
miles from the 2,500-meter
isobath (Art. 76(5))
Terms of note:
2,500-meter isobath: an imaginary line connecting
the depth all points having the same depth of 2,500
meters below the waters surface (Ibid.)

Opposite and adjacent states

Delimitation between opposite or adjacent
states must be effected by agreement on
the basis of international law [] in order to
achieve an equitable solution. (Art. 83(1))

The ICJ, in Tunisia vs. Libya, held that shelf

delimitation must be based on flexible
criteria designed to achieve a just result in
the circumstances of each case (i.e. caseto-case basis).

International Tribunal for the Law of the

Sea
The International Tribunal for the Law of the
Sea (ITLOS) is an independent judicial body
established by the UNCLOS to adjudicate
disputes arising out of the interpretation and
application of the Convention.
Composition: 21 independent members, elected
from among persons enjoying the highest
reputation for fairness and integrity and of
recognized competence in the field of the law of
the sea.
Jurisdiction:
1.
2.

Any
dispute
concerning
the
interpretation or application of the
UNCLOS
All matters specifically provided for in
any other agreement which confers
jurisdiction on the Tribunal (Art. 21,
ITLOS Statute)

The ITLOS is open to:

1.
2.
3.

States and international organizations

which are parties to the UNCLOS
Entities other than state-parties (i.e.,
states, organizations not parties to the
UNCLOS)
State enterprises and private entities
"in any case expressly provided for in
[the ITLOS Statute] or in any case
submitted pursuant to any other
agreement conferring jurisdiction on
the Tribunal which is accepted by all
the parties to that case" (Art. 20, ITLOS
Statute)

MADRID PROTOCOL AND THE PARIS

CONVENTION FOR THE PROTECTION
OF INDUSTRIAL PROPERTY
The Madrid Protocol
The Madrid Protocol is a treaty administered by
the World Intellectual Property Organization
(WIPO). It took effect on November 2, 2003.
The Madrid Protocol and its companion treaty,
the Madrid Agreement of 1891, are the
governing instruments of the Madrid System for
the International Registration of Marks. The two
treaties create a centralized filing system which
simplifies the process of obtaining and
maintaining national trademark registrations in
the member countries of the Madrid Union.

The applying member-state

files
an
International
Application
with
the
International Bureau of WIPO
in Geneva, Switzerland.

The
Bureau
then issues an
International
Registration.

The Paris Convention

The Paris Convention gives persons in
Contracting States the same rights as nationals
in other Contracting States and provides for a
six-month right of priority for trademarks.
This six-month priority means that those who
file applications in a Contracting State to the
Convention may rely on that filing date as their
priority date when they file in other Contracting
States, provided that they file in the other
States within six months after the original
application was filed.

INTERNATIONAL ENVIRONMENTAL LAW

Environmental law, in general,is comprised of
that body of standards that governments
establish to manage natural resources and
environmental quality. The broad categories of
natural resources and environmental quality
include such areas as air and water pollution,
forests
and
wildlife,
hazardous
waste,
agricultural practices, wetlands, and land-use
planning.
Most of international environmental law
concerns general principles agreed upon among
nations. Although these principles sometimes
oblige countries to adopt implementing
legislation, they are not usually enforceable on
their own in court. The soft status of
international environmental law is a result of
concerns over sovereignty.(Global Change
Instruction Program, What is International
Environmental Law?, p. 1)

Principle 21 of the Stockholm Declaration

States have, in accordance with the UN Charter
and the principles of international law:
1.

The sovereign right to exploit their own

resources pursuant to their own
environmental policies
2. 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
WHERE IS CLIMATE CHANGE? YOU NEED
EXPANSIVE COVERAGE ON CC.

INTERNATIONAL ECONOMIC LAW

International economic law (also international

trade law) focuses on how countries conduct
trade in goods and services across national
borders.

like domestic products, with regard to laws and

regulations affecting their internal sale, offering
for sale, purchase, transportation, distribution
or use.

General Agreement on Tariffs and Trade

(GATT)

HOW ABOUT PROHIBITION ON QUANTITATIVE

RESTRICTIONS, ETC.?
Articles XI and XX

The GATT is a multilateral agreement regulating

international trade. The GATT as originally
drafted was modified by the GATT 1994, a
creation of the Uruguay Round that also brought
about the formation of the World Trade
Organization (WTO).
The GATT has thirty-eight (38) Articles dealing
with the rights and obligations of state-parties
with regard to different aspects of international
trade.

Important provisions of the GATT

Article I: Most-Favored Nation (MFN) treatment
In a GATT-WTO member-states imposition of a
trade regulation allowed in the GATT, all
affected nations should be afforded the
treatment given to the most favored country
out of all of them.
Article III: No less favorable treatment
Imported
products
should
be accorded
treatment no less favorable than that given to

GR:

XPN:

Art. XI: Trade restrictions should be in the

form of duties, taxes and other charges
whether effective through quotas, import
and export licenses and other measures. All
new trade measures to be in the form of
tariffs.
Art. XX:State-parties to the GATT-WTO are
allowed to impose/enact measures not
enumerated in Art. XI against certain
imports for reasons including public morals,
health, anti-prison labor policies, and
protection/preservation
of
national
historic/cultural treasures, provided such
measures are non-arbitrary and nondiscriminatory.
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CASES