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What is a Treaty?
Elements: International agreement
States
Written
Governed by international law
[VCLT, Article 2(1)(a) and ILC Commentary]
Capacity: National/Federal Government
(but resort to Federal Constitution with regard to component state)
[VCLT, Article 6]
(ii)
[VCLT, Article 9]
Consent: signing, exchange of instruments, ratification, acceptance, accession,
approval, etc. (need for deposit, exchange and notification)
[VCLT, Articles 11-16)
Philippine Constitutional Law Application:
Article 7, Sec. 20 (foreign loans with Monetary Board concurrence)
Article 7, Sec. 21 (treaty - 2/3 Senate vote)
Article 8, Sec. 4 (constitutionality of treaty is heard en banc by SC)
Article 18, Sec. 25 ( treaty on new military bases, troops or facilities)
Case law:
Bayan v. Zamora et. al. (GR Nos. 138570, 138572, 138587 & 148680, Oct. 10,
2000) - Constitutionality of VFA in relation to Article 18, Sec. 25;
interpretation of the phrase recognized as a treaty.
Nicolas v. Romulo (GR 175888, Feb. 11, 2009) VFA as mere implementation
of the 1951 RP-US Mutual Defense Treaty; VFA is a sole executive agreement
subject to the Case-Zablocki agreement procedure; Romulo-Kenney
Agreements of Dec. 19 and 22, 2006, detaining American accused in US
embassy, is not in accord with Art. 5, Sec. 10 of VFA; distinguish the
following: (a) Art. 5, Sec. 6 custody from commission of offense until
completion of all judicial proceedings is with US, while (b) Art. 5, Sec. 10
after conviction, confinement or detention by Philippine authorities shall be
carried out in facilities agreed on by appropriate RP-US authorities.
Lim v. Executive Secretary (GR 151445, April 11, 2002) - Balikatan
Exercises Terms of Reference - does not need concurrence by Senate.
Pimentel v. Executive Secretary (462 SCRA 622)- Signing and ratification
distinguished; President may refuse to submit treaty (creating ICC) to Senate.
(NOTE: GRP already ratified the Rome Statute in August 2011)
Sps. Renato v. Hon. Rosario (GR 106064, October 13, 2005) A debt-buyback
scheme is within the power of the President to enter into under Art. VII, Sec.
20 of the Constitution.
Pharmaceutical v. DOH (GR 173034, October 9, 2007) WHO guidelines as
mere soft law.
Abaya v. Ebdane (513 SCRA 720) Exchange of Notes is a form of executive
agreement.
Province of North Cotabato v. GRP Panel (GR 183591, October 14, 2008 and
MR) Memorandum of Agreement on Ancestral Domain between GRP and
MILF is not a treaty.
Bayan Muna v. Romulo (GR 159618, February 1, 2011) The RP-US NonSurrender Agreement is an Exchange of Notes constituting an intergovernmental agreement. It is an international agreement but not in treaty
form. It does not contravene the Rome Statute because the ICC recognizes the
primacy of international agreements. Primary jurisdiction rests upon the state
and secondarily with the ICC.
China National Machinery v. Santamaria (665 SCRA 189) A contract entered
into between non-state entities does not constitute an executive agreement as in
this case, North Luzon Railways Corp. and China National Machinery and
Equipment Corp.
(iii)
Reservations to Treaties
GR allowed
Exceptions:
1. if prohibited by treaty itself
2. if only specific reservations are allowed
3. if incompatible with treaty purpose
Form of reservations/withdrawal/objection:
written & communicated
[VCLT, Articles 19-23]
Case law:
Reservations to the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide (Advisory Opinion, I.C.J. Reports, 1951) On the effect of
absence of reservation clause in a Convention; reservations were contemplated
but the purpose of the treaty tended to discourage; intent to prevent an
international crime.
(NOTE: in the International Criminal Court, no reservations are permitted,
Article 120)
(iv)
Interpretation of Treaties
GR 1. interpret in good faith
2. ordinary meaning of word in context (resort to related text)
3. relate to object and purpose
Exception give special meaning, if parties intended
[VCLT, Articles 31-32]
Case law:
Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion, I.C.J.
Reports 221, 1950) In a dispute concerning the Peace Treaties of 1947, three
signatory states refused to comply with a three-person panel dispute settlement
procedure for the purpose of interpreting the treaty whereby parties are required
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(vi)
Case law:
Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, I.C.J.
Reports, 1974) Test of rebus sic stantibus: the circumstances must have
increased the burden of the obligations to the extent of rendering the
performance of an act essentially different from that originally undertaken.
Danube Dam Case (Hungary v. Slovakia, 37 ILM, 1998)- If joint exploitation of
the investment was no longer possible because Hungary did not carry out most of
the works, A61, par. 2 of the VCLT states that impossibility of performance may
not be invoked for the termination of a treaty by a party to that treaty when it
results from that partys own breach of an obligation flowing from that treaty;
state of necessity is not a ground for terminating a treaty but may only be
invoked to exonerate one from responsibility; neither could fundamental change
of circumstances prosper because the change must be unforeseen [here, political
motive, reduced economic activity of the Project, and progress of environmental
knowledge and international environmental law are not sufficient grounds].
Violation of other treaty rules of general international law may justify the taking
of certain measures, including countermeasures, but does not constitute a ground
for termination of the treaty; the violation by Czechoslovakia was the diversion
of the waters of the Danube in 1992).
(vii)
Philippine Practice
E.O. 459 (1997) Guidelines in the Negotiation of International Agreements
Case Law:
Sei Fujii v. California (242 P. 2d 617; 19 ILR 312, 1952)- A California alien
land law, used by California to have the property of a Japanese citizen in the
U.S. escheated to the State, was challenged as contrary to U.N. Charter,
specifically, A55 and A56 on human rights. The Court stated that the U.S.
Constitution distinguished between self-executing and non-self executing
treaties. Here, the U.N. Charter Preamble, A1, A55 and A56 require enabling
legislation to affect private persons; the rights of private persons were not
prescribed in detail in the U.N. Charter in regard to the land law.
(b) State Practice
(i)
Nicaragua v. U.S. ( I.C.J Reports, 1986) A formal communication that had been
committed to the OAS was held not to be a formal undertaking, but a mere political
pledge.
(ii)
(iii)
(iv)
Diversion of Waters from the River Meuse (P.C.I.J series A/B, No. 70, 4 W.C.R. 179,
1937) Recognition of equity as part of international law in no way restricts the
(international) Court to decide the case ex aequo et bono, if the parties agree.
Distinction between equity and deciding a case ex aequo et bono:
1. Equity law cannot cover every possible situation, so, cases may be decided
using equitable principles.
2. Ex aequo et bono power of ICJ to decide a case equitably outside the rules of
law.
Other examples of general principles of law: principles of liability, responsibility,
reparation, unjust enrichment, property, expropriation, indemnity, denial of justice,
right of passage, prescription, error, presumption, administrative law, procedure,
humanity, good faith, pacta sunt servanda, estoppel and human rights
(ii)
(iii)
1. Monism- international law and municipal law belong to only one system with
international law as superior to domestic law; locates basic norm of the national legal
system in the norm of international law;
2. Dualism- international law as distinct from the domestic law system; dualism of
legal origin, subjects and subject matter; sovereign act of municipal law means it
exceeded its competence in international law but does not void municipal law.
3. Inverted monism- municipal law as superior to international law; denies the term
law to international law.
4. Harmonization- the two legal systems are harmonized and given effect.
Chapter II.
(a)
States
(i)
Characteristics of Statehood
Article 1 of the Convention on Rights and Duties of States (or the 1933 Montevideo
Convention) provides for the qualifications of a State:
1. permanent population
2. defined territory
3. government
4. capacity to enter into relations
Case law:
Case Concerning Rights of Nationals of the United States of America in Morocco
(I.C.J. Reports, 176, 1952) Even if Morocco is under the Protectorate of France,
the former is still a state in international law.
Report of the Fifth Committee of First Assembly of the League of Nations, with
reference to Admission to the League of Liechtenstein (6 December 1920) Even if
denied admission, it remains a sovereign state.
Recent cases: East Timor, (South) Sudan and Kosovo
(ii)
Recognition
1. of States (widely practiced; does not presuppose recognition of government)
2 theories:
(a) Declaratory theory- possession of the essential elements
(b) Constitutive theory- recognition is what constitutes a State.
Status more of an optional and discretionary political act (as seen in the
cases of the former Yugoslavia and Soviet Union)
2. of governments (recognition presupposes recognition of State)
(iii)
Case law:
Tinoco Arbitration, 1923- Even if not recognized, may be de facto; juridically
cognizable.
Self-determination
Case law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples (U.N. G.A. Res. 1514 (XV), 14 December 1960) Elements of the
right to self-determination of States:
1. right to determine political status; and,
2. right to pursue their economic, social and cultural development.
Case law:
Western Sahara Case (Advisory Opinion, I.C. J. Reports, 1975) ultimate
purpose of sacred trust was the self-determination and independence of the
peoples concerned; self determination may mean emergence of new state,
association or integration with an independent state.
Current cases on secession and the concept of shared sovereignty:
e.g. The Sudan Machakos Protocol: plebiscitory consent
Northern Ireland Good Friday Agreement: plebiscitory consent
Nepal Maoist power sharing
Aceh (Indonesia) limited autonomy
Quebec attempt at a legislative vote to secede
Kosovo
(iv)
Non-State Entities
1. The Commonwealth of Australia v. the State of New South Wales (32 C.L.R.
200, 1923) New South Wales is not a foreign country which may be sued
without its consent.
2. Cultural Agreement Between Province of Quebec in Canada and
France Quebec is allowed to enter into such agreement due to the
special status accorded to it under the Canadian Constitution.
3. Mandate System
Case law:
International Status of South-West Africa (Advisory Opinion, I.C.J. Reports,
1950) Mandate created by the League of Nations elapsed when the
League ceased to exist.
Legal Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding Security Council Resolution
276 of 1970 (I.C.J. Reports, 1971) It is a general principle of law that the
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United Nations
Charter of the United Nations, Articles 1, 2, 7, 104
Case law:
Reparations for Injuries Suffered in the Service of the United Nations (I.C.J.
Reports, 1949) Capacity of U.N. under international law to sue for damage
caused to an agent in the form of an international claim; but this is not the same as
saying that it has the same rights and duties as a state; personality of the U.N. is
limited by the purpose of its Charter.
(ii)
(c) Individuals
(i) Classical Rule: Human rights human being as an object of international law.
(ii) Progression of the Rule: Human being as a subject of international in a limited way.
Case law:
Judgment of the Nuremberg Tribunal Law of war imposed a duty on individuals;
Article 228 of the Treaty of Versailles illustrates this view of individual responsibility;
acts deemed criminal in international law may be the subject of international claim; a
state cannot protect the individual accused of the crime if the state exceeded its
competence by allowing/ordering the individual to commit a crime vs. humanity;
officers liable but punishment may be mitigated if they merely followed orders.
(iii) Recent development:
1. Ad hoc International Criminal Tribunals (Former Yugoslavia, Rwanda and
Cambodia)
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2. Rome Statute of 1998 (ICC) Individuals may be tried for genocide, crimes
against humanity, war crimes and crime of aggression (core crimes);entry into
force: July 2002; aggression remains to be undefined; only covered crimes
committed after entry into force; no death penalty, no trial in absentia
(NOTE: The Philippine law in regard to international humanitarian law is R.A. 9851,
signed into law on December 12, 2009 before the Philippine ratification of the Rome
Statute. It defines punishable acts reflective of the relevant IHL instruments,
including the concept of command responsibility.)
(d) Corporations
Case law:
Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the
Government of the Libyan Arab Republic (Compensation for Nationalized Property,
Arbitral Awards on the Merits, 19 January 1977, 17 I.L.M., 1978) Internationalized
contracts entered into between a state and a foreign corporation gives the latter limited
capacity by invoking in international law the rights derived from the contract.
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Title to Territory
Case law:
Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent Court
of Arbitration Test of title in international law is continuous and peaceful
display of territorial sovereignty; forms of acquisition of title are:
1. occupation coupled with effectiveness
2. conquest (allowed before)
3. cession, and,
4. accretion;
(NOTE: In international law, title is not sufficient without the first element of
display of State functions.)
Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53, 1933)
Applied Island of Palmas Case.
Western Sahara Case (Advisory Opinion, I.C.J. Reports, 1975)
For occupation to operate, territory must be terra nullius, i.e. it belonged to no one
prior to occupation.
Philippine Application: Article 1 (National Territory) of 1987 Constitution
Sabah- cession
Spratlys- claimants: China, Vietnam, GRP, Malaysia, Brunei, Taiwan
-
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Government Position:
- GRP claims over other island groups: Paracels, Pratas, Macclesfield Bank,
Scarborough Shoal, Mischief Reef
- Effective occupation of Kalayaan Island Group by GRP through Tomas
Cloma, 1946; and through PD 1596 (1978) an administrative district was
formed to become a Municipality of the Province of Palawan
NOTE:
New Baselines Law is R.A. 9522 (2009): declared KIG and Scarborough Shoal as
regime of islands pursuant to Article 121 of UNCLOS III
Case Law:
Magallona v. Executive Secretary (GR 187167, August 16, 2011) R.A.
9522 is constitutional; it is not intended to delineate Philippine territory but
merely regulates sea-use rights over maritime zones and continental shelves that
UNCLOS delimits.
(ii)
(iii)
Continental Shelf
Case law:
North Sea Continental Shelf Cases (Germany v. Denmark/Holland, 8 I.L.M.
340, 1969) What confers title ipso jure to continental shelf is the fact that the
submarine areas concerned may be deemed to be actually part of the territory
of the coastal state in the sense that, although covered with water, they are a
prolongation or continuation of that territory.
Gulf of Maine (Canada/USA, I.C.J. Reports, 1984)
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Criminal Jurisdiction
1. On the general theory of criminal jurisdiction
GR: Vessels on high seas are subject to authority of flag-State
Exception: piracy, slave trade, hot pursuit, right of approach
Case law: (old rule)
The S.S. Lotus (2 World Court Reports, 1920) Concurrent jurisdiction of flag
State and other State affected- this rule applies only if it happens on the high seas
(controversial decision; 6-6 vote); but see the new rule below.
New Rule: See A97, UNCLOS - the Rule today is that no penal or administrative
proceedings may be instituted against the master of a ship except before the
judicial or administrative authorities either of the:
a. flag State, or
b. State of which such person is a national.
The Attorney-General of the Government of Israel v. Eichmann (36 I.L.R. 277,
1962) Universal authority to try certain persons wherever found outside of the
place of the commission of crime; applies to serious crimes under international
law, such as, crimes against humanity, war crimes, piracy, slavery, crimes against
15
16
Government of U.S.A. v. Hon. Purganan (GR 148571, Sept. 24, 2002)- The
right to bail in extradition is not available. The ultimate purpose of extradition
proceedings in court is to determine whether the extradition request complies
with the extradition treaty. But, in exceptional cases, bail may issue (as element
of due process), provided:
a. accused is not a flight risk; and,
b. compelling circumstances warrant.
Rodriguez v. RTC of Manila (GR 157977, February 27, 2006) A prospective
extraditee is entitled to notice and hearing before the cancellation of his or her
own bail.
(NOTE: Purganan ruling overturned by 2007 Govt. of Hongkong case.)
Government of Hongkong v. Olalia (G.R. 153675, April 19, 2007) The
modern trend in public international law is the primacy placed on the worth of
the individual person and the sanctity of human rights. While extradition is not
a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and, (b) the means
employed to attain the purpose of extradition is also the machinery of criminal
law. While our extradition law does not provide for the grant of bail, there is no
provision prohibiting the extraditee from filing a motion for bail, a right to due
process. The extraditee must establish clear and convincing proof that he or
she is not a flight risk and will abide with all the orders of the extradition court.
4. On the rules governing commission of crimes on board an aircraft
Tokyo Convention of 1963 for extradition purposes, a crime may be
considered as having been committed in the state of registry of the aircraft;
but jurisdiction by another Contracting State may be had if the offense:
(a) has an effect on its territory;
(b) has been committed by or against its national or a permanent resident
therein;
(c) is against its national security;
(d) relates to a breach of its national rules on flight;
(e) is the subject of an exercise of jurisdiction necessary to ensure the
observance of an obligation of such state under a multilateral agreement.
Montreal Convention of 1971- Article 8(2) becomes the basis for extradition
even if there is no extradition treaty with another party to the Convention.
5. On Visiting Forces/Military Bases see Nicolas case.
(ii)
Civil Jurisdiction
17
R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws;
Sherman Act of 1890 and Federal Trade Commission Act and Clayton Act of
1914 intended to protect trade and commerce against unlawful restraints and
monopolies.; should not contradict the local law.
(iii)
18
Minucher v. CA (214 SCRA 242 and G.R. No. 142396, February 11, 2003)
- A U.S. diplomatic staff who is a member of the Drug Enforcement
Administration of the DOJ was found to be immune from suit for alleged
criminal/tortuous conduct. As an agent he was allowed by the Philippine
government to conduct activities to contain the drug traffic.
Indonesia v. Vinzon (GR 154705, June 26, 2003) An Indonesian
Official entered into a maintenance agreement to maintain specified
equipment at the embassy. The agreement referred to Philippine law for
purposes of any dispute settlement. The court held that this did not
constitute a waiver of diplomatic immunity. Submission to local
jurisdiction must be clear and unequivocal.
Deutsche v. CA (GR 152318, April 16, 2009) The GTZ is equivalent to a
Philippine corporation organized under the Corporation Code but owned
by the government. It must secure an executive endorsement of its claim
of sovereign or diplomatic immunity.
International Organizations
DFA v. NLRC (262 SCRA 39) - Illegal
immune.
22
1. restitution
2. damages
(vii) Requisites:
1. act/omission attributable to the State
2. breach of an international obligation
(viii) Categories:
1. Direct when injury is against another State (any of its organs or agents).
2. Indirect against the person or property of a national of another State.
(ix) Imputability: (direct responsibility)
1. State Organs
a. Executive e.g. failure to take appropriate steps to punish culprits who are
police officers.
b. Legislative e.g. if a treaty requires incorporation of certain rules in domestic
law, failure to do so entails responsibility.
c. Judiciary e.g. if the court commits errors in the application and interpretation
of treaties or fails to give effect to a treaty or is unable to do so because the
23
necessary change in or addition to, the national law has not been made, its
judgment involves the State in a breach of treaty.
2. Territorial governmental authority (LGUs)
3. Persons/groups authorized by the State
(x) Ultra vires acts of State organs and officials considered act of State even if beyond
the competence of the agent for as long as there is proof of apparent authority or the act
was done within the general scope of authority. An example is when police officers take
revenge against another person but seemingly acted in the role of police to the average
observer.
(NOTE: Abuse of Rights there could be compensation for the injurious consequences of
lawful acts of State organs or officials. An example is Article 22, par. 3 of the Convention
on the High Seas which allows compensation for loss or damage caused as a result of the
exercise of the right of warships to board merchants when suspicious circumstances
would warrant.)
Case law:
Youmans Case (RIAA iv. 110, 1926) Here, soldiers were sent to protect aliens
besieged by rioters but ultimately joined in the attack which resulted in the
killing of the aliens. Soldiers inflicted personal injuries or committed wanton
destruction or looting act in disobedience of some rules laid down by superior
authority.
Caire Claim Case (France v. Mexico, French-Mexican Claims Commission,
RIAA v. 516, 1929)- A French national was killed in Mexico by Mexican
forces after failing to pay ransom money. Objective responsibility applies in
this case wherein the military officers conducted themselves as officers in the
brigade. The officers even used the means placed at their disposition by virtue
of their capacity. The ultimate test is the amount of State control which ought
to have been exercised under the circumstances. (But distinguish this from the
earlier case of Youmans.)
(xi) Acts of private citizens and rebels:
1. Private citizen- As a rule, acts of private citizens do not entail State responsibility.
In localized riots and mob violence, the State has the duty to take reasonable
precautionary and preventive action to protect foreign public and private
property.
2. Rebels- Insurrectional movements act is act of State once it is established as the
new government. Belligerent groups may be held responsible for their acts during
the armed conflict. There is a duty on the part of the State to prevent or suppress
the insurrection using the standard of due diligence; however, a higher standard
of protection applies to diplomats and consuls.
24
Case law:
Home Missionary Society Case (RIAA vi. 42, 1920) This religious Society
suffered losses during the rebellion in the Protectorate of Sierra Leone. The
U.S. claimed compensation on behalf of the Society alleging that the British
Government failed to take appropriate steps for the maintenance of order. This
claim was dismissed because there was an assumption of risk on the part of the
Society and there was no failure of duty based on the facts.
(xii) International crimes and delicts
International Law Commission Draft Articles on State Responsibility, Articles 110, 19
(b) Responsibility for Acts Affecting Individuals
(i) Traditional International Liability
1. Theory of
denial of justice
Case law:
United States (Chattin) v. Mexico (4 R.I.A.A. 282, 1927 The arrest, trial and
conviction of an American national in Mexico was deemed irregular and in
violation of international standards, thus, giving rise to responsibility.
2. Harvard Research Draft, definition (Article 9) unwarranted delay or
obstruction of access to courts, gross deficiency in the administration of
judicial or remedial process, failure to provide those guarantees which are
generally considered indispensable to the proper administration of justice, or a
manifestly unjust judgment. An error of a national court which does not
produce manifest injustice is not a denial of justice.
(ii) International Protection of Human Rights
1. Human Rights Principles and Enforcement Mechanisms
a. U.N. Charter, Articles 1(3), 55, 56 State obligation to respect and
promote human rights.
b. Universal Declaration of Human Rights (1948) Deemed by some
international legal scholars as customary international law.
c. International Covenant on Civil and Political Rights (1966) and Optional
Protocols 1 and 2 OP1 is on individual communications procedure through
the HR Committee. OP2 is of the abolition of the death penalty (GRP ratified
25
the ICCPR and OP1 but is not a signatory to OP2); most rights are selfexecuting rights.
d. International Covenant on Economic, Social & Cultural Rights
(1966) There is only a reportorial duty; generally, ecosoc rights are based on
progressive realization principle. Ratified by GRP.
e. Convention on the Elimination of Racial Discrimination (1969) There are
individual communications procedure and State to State communications.
Ratified by GRP.
f. Convention on the Elimination of Discrimination against Women (1981)
and Optional Protocol (2000) There is an optional protocol on individual
communication and inquiry procedures. All ratified by GRP.
g. Convention against Torture (1987) There are individual communications
procedure and State to State communications. Ratified by GRP.
h. Convention on the Rights of the Child (1990) and Optional Protocols on
Sale, Prostitution and Pornography (2002) and Children in Situations of
Armed Conflict (2002)- There is a reportorial duty to a CRC Committee. All
ratified by GRP.
i. Migrant Workers Convention (2003) Ratified by GRP
2.
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30
31
Alfred Dunhill of London Inc. v. The Republic of Cuba (425 U.S. 682, 48 L.Ed.
2d.301, 1976) U.S. Supreme Court did not apply the act of state doctrine to
this case wherein the Cuban Government failed to return to Alfred Dunhill of
London, Inc. funds mistakenly paid by Dunhill for cigars that had been sold to
Dunhill by certain expropriated Cuban cigar businesses. The act relied upon
by Cuba was an act arising out of the conduct by Cubas agents in the
operation of cigar businesses for profit.
Buttes Gas and Oil Co. and Another v. Hammer and Another (3 W.L.R. 787,
H.L., 1981) In a litigation instituted in the U.K. between two petroleum
companies, there were allegations of conspiracy to cheat and defraud the U.K.
involving foreign rulers in the Persian Gulf region. The plaintiffs (Buttes)
applied for an order that the court should not exercise jurisdiction in respect of
specified matters said to be acts of state of the governments of Sharjah,
Umm al Qaiwain, Iran and the U.K. The issue arose from a press conference
given in London in 1970 by Dr. Hammer wherein he accused Buttes of using
improper methods and colluding with the ruler of Sharjah to backdate a decree
by the ruler extending the territorial waters of Sharjah, from 3 miles to 12
miles so as to obtain for themselves the benefit of the oil-bearing deposit at
the location which Dr. Hammer claimed was discovered by and belonging to a
competitor of Buttes. It was held that the court cannot entertain the suit for it
would bring to trial non-justiciable issues.
(Philippines)
Vinuya v. Romulo (619 SCRA) Espousal of claim on behalf of the Malaya
Lolas is discretionary upon the State (Peace Treaty of 1951 satisfied claims).
32
Chapter V.
RESOLUTION OF DISPUTES
General
Grotius, On The Rights of War and Peace (1901)
General Treaty for the Renunciation of War
Briand-Kellogg Pact (1928)
Charter of the United Nations, Articles 2 (3) (4), Articles 39-42
General Assembly Resolution 3314 XXX on the Definition of Aggression
Pro-democratic Invasion
(ii)
(iii)
Case law:
1. Jurisdiction
a. Aerial Incidence Case
b. Nicaragua v. U.S.
c. Case Concerning East Timor
2. Provisional Measures
a. Nicaragua v. U.S.
b. Case Concerning Legality of Use of Force
3. Intervention
a. El Salvador v. Honduras
(ii)
International Arbitration
Case law: (Philippines)
Del Monte v. CA (GR 136154, February 7, 2001) The trial court found it
expedient to proceed with trial in the interest of justice instead of allowing
simultaneous arbitration proceedings. The Philippines under RA 876 authorizes
arbitration of domestic disputes. It adhered to the 1958 Convention on
Recognition and Enforcement of Foreign Arbitral Awards through Senate
Resolution 71 of May 10, 1965.
LM Power v. Capitol Industrial Construction (GR 141833, March 26, 2003)
Arbitration clause does not divest courts of jurisdiction to pass upon findings of
arbitral bodies.
Frabelle Fishing Corp. v. Philamlife (GR 158560, August 17, 2007) To brush
aside a contractual agreement calling for arbitration would be a step backward.
Gonzalez v. Hon. Pimentel (GR 167994, January 22, 2007) RA 876 recognizes
the contractual nature of arbitration agreement.
RCBC v. Banco de Oro (687 SCRA 583) Partiality of the Chairman of the
Arbitral Tribunal was manifested when the Chairman gave the parties copies
of the ICC Bulletin which may have equipped RCBC with legal arguments.
34
(v) Organs of UN
General Assembly } assembly
Security Council}
ECOSOC
} council
Trusteeship
}
Secretariat }
ICJ
} organs
(vi) Security Council:
35
(viii) Secretariat
- Secretary-General appointed by GA upon recommendation of SC; non- procedural
matter subject to veto; chief administrative officer
- quota in hiring UN personnel
(ix) Enforcement Action and UN Forces
- Chapter VII- threats to peace, breaches of peace and acts of aggression
- 2 forms of enforcement action:
Art. 41- non-military- cut economic relations/ communications/ diplomatic
relations
Art. 42- military
(NOTE: Art. 43- State consent to join military action is necessary)
(x) Economic and Social Cooperation
- Arts. 55 and 56: standard of living and human rights
- ECOSOC members elected each year for 3-yr. term
- e.g. FAO, IMCO, ICAO, ILO, IBRD, IMF, IFAD, UNESCO, UPU, WHO
(b) International Economic Law
(i) Bretton Woods system: designed to reconstruct world economic system in
matters of trade (GATT/WTO) and finance (WB and IMF)
(ii) Core principles:
1. comparative advantage
2. economies of scale
(iii) Fundamental Norms:
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Theory of just war (in conformity with Divine Will)- this justified Christianization
of Roman Empire; goal- correct wrongdoing
Europe nation-states changed the concept on account of sovereignty
Prescribed rule: attempt to negotiate and resolve disputes
Goal: maintain order by peaceful means
Norms of just war:
a. Immunity of innocent persons
b. Proportionate use of force
After the Peace of Westphalia (1648)- just war disapproved
Rule: States were sovereign and equal, no one State could judge whether
anothers cause was just or not.
Norm: balance of power
st
1 WW- ended balance of power; raised the question of unjust war
League of Nations- duty to submit disputes likely to lead to a rupture to
arbitration/judicial settlement/inquiry by the League; State may resort to force
after judgment
1928- Kellogg-Briand Pact- renunciation of war as instrument of national
policy
UN Charter- A2(4): refrain from the threat or the use of force against the
territorial integrity or political independence of any State
(NOTE: This provision is declaratory of Customary International Law.
The term force rather than war is better to cover situations in which
violence is employed which fall short of the technical requirements of the
state of war.)
Exceptions:
1.
Collective measures by UN
2.
Self-defense
- 1929 Conventions: revised 1864 and 1906 instruments and dealt with rules concerning
the wounded and sick in armies in the field and POWs
- replaced by Four Geneva Red Cross Conventions of 1949
>Included:
1. amelioration of the condition of the wounded and sick in armed forces in
the field
2. amelioration of the condition of the wounded, sick and ship-wrecked
members of the armed forces at sea
3. POWs treatment
4. protection of civilians
>Basic Principle: persons not actively in warfare should be treated humanely.
Therefore, it prohibits:
Taking of hostages
Torture
Illegal executions
Reprisals
>Other Principles:
1. Standard of care of POWs
2. Prohibition on deportation
3. Prohibition on indiscriminate distribution of property
1.
2.
3.
4.
5.
40
41
Prohibited acts:
a.
b.
c.
d.
Use of Protecting Power: Switzerland; to look after nationals of one State in the control of
one of conflicting parties
International Fact- Finding (PI):grave breaches of GC
Ad Hoc Inquiry (both parties)
War crimes: subject to universal jurisdiction (e.g. Nuremberg Charter, A6- individual
responsibility for violations, etc)
Martens Clause- Russian delegate (Hague)
1. unforeseen cases should, in the absence of a written undertaking, not to be left to the
arbitrary judgment of military commanders
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2. civilians and combatants remain under the protection of the principles of the law
of nations.
(f) The Rome Statute (ICC) and R.A. No. 9851 Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity
Part 1.Establishment of the Court
The Court (Article 1)
Complementary to national criminal jurisdictions
Relationship of the Court with the United Nations (Article 2)
An agreement approved by the Assembly of States Parties
Seat of the Court (Article 3)
The Hague
May sit elsewhere, whenever it considers it desirable
Legal Status and Powers of the Court (Article 4)
International legal personality
May exercise its functions and powers on the territory of any State and, by special
agreement; on the territory of any other State
Crimes within the Jurisdiction of the Court (Article 5)
The crime of genocide;
Crimes against humanity;
War crimes;
The crime of aggression.
Genocide (Article 6)
Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnic, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Crimes Against Humanity (Article 7)
Any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
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Other serious violations of the laws and customs applicable in international armed
conflict:
(i) Attacks against the civilian population;
(ii) Attacks against civilian objects;
(iii)
Attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping;
(iv)Attack in the knowledge that such attack will cause incidental loss of life
or injury and severe damage to the natural environment;
(v) Attacking towns, villages, dwellings or buildings which are undefended;
(vi)Killing or wounding a combatant having laid down his arms;
(vii)
Improper use of a flag of truce, of the flag or of the military
insignia and uniform of the enemy or of the United Nations, as well as of
the distinctive emblems of the Geneva Conventions;
(viii)
Transfer by the Occupying Power of parts of its own civilian
population into the territory it occupies, or the deportation or transfer of all
parts of the population of the occupied territory within or outside this
territory;
(ix)Attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the
sick and wounded are collected;
45
(d)
(e)
(f)
46
If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise
of jurisdiction by the Court with respect to the crime in question.
47
Challenges to the jurisdiction of the Court or the admissibility of a case (Article 19)
The Court may, on its own motion, determine the admissibility of a case.
Challenges to the admissibility of a case may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear has
been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground that it is investigating or
prosecuting the case or has investigated or prosecuted or;
(c) A State from which acceptance of jurisdiction is required under article 12.
Admissibility of a case or the jurisdiction of the Court may be challenged only once by
any person or State referred to in paragraph 2. Challenge shall take place prior to or at the
commencement of the trial. Challenges to the admissibility of a case, at the
commencement of a trial, or subsequently with leave of the Court, may be based only on
article 17, paragraph 1(c).
If the Court has decided that a case is inadmissible under article 17, the Prosecutor may
submit a request for a review of the decision.
48
Conduct in question constitutes, at the time it takes place, a crime within the jurisdiction
of the Court.
(i) Either knew or owing to the circumstances at the time, should have known that the
forces were committing or about to commit such crimes;
(ii) Failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.
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Remain silent.
Legal assistance.
Questioned in the presence of counsel.
Role of the Pre-Trial Chamber in relation to a unique investigative opportunity (Article 56)
Take testimony which may not be available subsequently for the purpose of a trial.
Functions and powers of the Pre-Trial Chamber (Article 57)
Protection and privacy of victims and witnesses, preservation of evidence, protection of
persons who have been arrested.
Seek the cooperation of States to take protective measures for the purpose of forfeiture.
Arrest proceedings in the custodial State (Article 59)
Before the competent judicial authority in the custodial State.
Right to apply for interim release pending surrender.
Pre-Trial Chamber shall be notified of any request for interim release.
Initial proceedings before the Court (Article 60)
Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes.
Confirmation of the charges before trial (Article 61)
Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor
intends to seek trial;
Hearing in the absence of the person charged;
Waived right;
Fled or cannot be found;
Determine whether there is sufficient evidence to establish substantial grounds to believe
that the person committed each of the crimes charged;
Once the charges have been confirmed the Presidency shall constitute a Trial Chamber.
Part 6. The Trial
Place of trial (Article 62)
The seat of the Court.
Trial in the presence of the accused (Article 63)
Functions and powers of the Trial Chamber (Article 64)
Fair and expeditious;
Production of evidence;
Protection of the accused, witnesses and victims;
Public;
Read to the accused the charges;
Rule on the admissibility or relevance of evidence.
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54
Part 7. Penalties
Applicable penalties (Article 77)
Maximum of 30 years;
Life imprisonment when justified by the extreme gravity;
Forfeiture.
Determination of the sentence (Article 78)
Deduct the time spent in detention.
Trust Fund (Article 79)
Benefit of victims of crimes.
Non-prejudice to national application of penalties and national law (Article 80)
Part 8. Appeal and Revision
Appeal against decision of acquittal or conviction or against sentence (Article 81)
Prosecutor may make an appeal:
Procedural error;
Error of fact;
Error of law.
Convicted person, or the Prosecutor on that persons behalf, may make an appeal:
Procedural error;
Error of fact;
Error of law.
Ground that affects the fairness or reliability of the proceedings.
Appeal against other decisions (Article 82)
Proceedings on appeal (Article 83)
Revision of conviction or sentence (Article 84)
New evidence;
Decisive evidence was false;
One or more of the judges has committed act of serious misconduct.
Compensation to an arrested or convicted person (Article 85)
Unlawful arrest;
Reversed conviction;
Manifest miscarriage of justice.
Part 9. International Cooperation and Judicial Assistance
Requests for cooperation: general provisions (Article 87)
55
State Party may deny a request which relates to its national security;
Request the temporary transfer of a person in custody for purposes of identification.
to a conflict (par. g)
Chapter II Definition
1. Armed Conflict (par. c)
State v. State (International Character)
Protracted Armed Violence: Government v. Organized Armed Groups (NonInternational)
Armed Groups v. Armed Groups (Non-International)
(NPA v. MILF)
(MILF v. ASG)
2. Standards of Armed Forces (par. d)
a. Responsible Command
b. Disciplinary System
c. Compliance with IHL
3. Enforced or Involuntary Disappearance
Stateless or Refugee
Chapter III: Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity
1. War Crimes Four (4) Geneva Conventions and Protocols
a. International Armed Conflict
Willful killing
Torture
Wanton destruction of property (outside military necessity)
Unfair trial of POW
Arbitrary deportation
Hostage-taking
Forced military service
Unjustifiable delay in repatriation of prisoners
b. Non-International Armed Conflict
Common A3 of Geneva Conventions violations willful killing, torture, outrages
upon personal dignity, hostage-taking, no judicial process
c. Other serious violations of customs applicable in armed conflict
Guide to type of violations:
1.
Attacks vs. non-combatants, peace-keeping missions
2.
Attacks vs. non-military targets
3.
Severe damage to environment
4.
Improper use of flag of truce, enemy uniform, protective signs
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5.
Physical mutilation or scientific experimentation of subject persons
6.
Perfidy
7.
Displacement of civilian population
8.
Torture, humiliation
9.
Sexual violence
10.
Inhumane methods of warfare
2. Genocide destroy a stable group (national, ethnic, racial, religious or social)
3. Other Crimes Against Humanity widespread or systematic attack v. civilian
population
II.
A.
Concept of Environment
Basic Elements of the Earth: air, land and water
All living elements of the earth as well as natural resources
Holistic: place of humans in the environment
B.
Preliminary Considerations
A.
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development that meets the needs of the present without compromising the
ability of future generations to meet their own needs.
B.
III.
63
The Core Environmental Law Rights and Duties In Relation to Philippine Constitutional
Law Framework
A. Right to Life and Health
INTERNATIONAL
ratio
legis
(ECOSOC)
of
environmental law
more than absence of illness
W.H.O. the attainment by all citizens
x x x of a level of health that will
permit them to lead a socially and
economically productive life
Health problems related to x x x
environmental living conditions; health
status is a first indicator of
environmental degradation x x x
CONSTITUTION
B. Freedom of Association
64
INTERNATIONAL
A 20, UDHR
A 21, ICCPR
CONSTITUTION
A 19, UDHR
A 19, ICCPR
Principle 10: Rio Declaration (access
to environmental information)
Principles 18 and 19 (notification in
transboundary environmental disasters)
CONSTITUTION
D. Sectoral Concerns
INTERNATIONAL
1. Indigenous Peoples
ILO 169 (Tribal Population)
UNDRIPS, 2007
Principle 22, Rio Declaration +
Chapter 26, Agenda 21
CONSTITUTION
A12, S.5 (ancestral domain) in
relation to A2, S.22 (indigenous
peoples),
A10,
S.15-21
(autonomous region), A13, S.6
(ancestral lands)
2. Women
Principle 20, Rio Declaration
1993 Vienna Declaration
Part 1, par (18) equal
participation of women
3. Children
Article 29, par 9 (e), CRC
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4. Migrant Workers
Migrant Workers Convention
5. Disabled
Environmental
factors
responsible for disability
often
V.
66