PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y.
2015-2016
TOPICS FOR PREFINALS
A. INTERNATIONAL LAW AND MUNICIPAL LAW
B. STATES AND GOVERNMENTS
C. INTERNATIONAL ORGANIZATIONS, INDIVIDUALS, COMPANIES
AND GROUPS
D. JURISDICTION
E. IMMUNITY FROM JURISDICTION
F. STATE RESPONSIBILITY
INTERNATIONAL LAW AND MUNICIPAL LAW
MUNICIPAL LAW
MUNICIPAL LAW
Municipal law is the technical name given by international lawyers to the
national or internal law of a state. The question of the relationship
between international law and municipal law can give rise to many
practical problems, especially if there is a conflict between the two.
Which rule prevails in the case of conflict? How do rules of international
law take effect in the internal law of states?
Two theories:
A. Dualist approach
International law and municipal law are two separate legal systems
which exist independently of each other
B. Monist approach
Has a unitary perception of the law and understands both
international and municipal law as forming part of one and the
same legal order
How does International law take effect in the domestic legal
system?
1. Doctrine of incorporation Monists usually adopt this, since the
view is that there is only one legal system. It is automatic and no
further act is needed by the government.
2. Doctrine of Transformation Dualists adopt this, since there are
two legal systems, and the only way to incorporate international
law to the legal system is through a positive act by the government
transforming it.
a. Hard/strong Transformation This requires that it is done
though legislative acts, either as a process or a policy, to be
a statute.
b. Soft/weak Transformation The process allows executive or
judicial department to incorporate in the domestic law the
international law. Transformation through judicial decisions is
prevalent. This is very relevant especially when the
international law in not a GAPIL (Generally accepted principle
of International law)
Sec 2, Art II, 1987 Constitution
The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of
the law of the land and adheres to the policy of peace, equality, justice,
freedom, cooperation, and amity with all nations.
Generally accepted principles of international law applicable in
the Philippines:
1. Through Incorporation front door; international law becomes
automatically part of the law of the land (as a statue) without
action of the government.
2. Through Transformation back door; via a positive/affirmative act
by the government transforming the international law into
domestic law.
1|U N I V E R S I T Y O F S A N C A R L O S
How is International Law transformed?
1. When Senate concurs the treaty entered into by the President
(ratification)
Art VII, Sec 21, 1987 Constitution
No treaty or international agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members of the Senate.
2. By ordinary legislation conforming/ passing laws in conformity
with international laws.
3. Judicial decisions when SC will apply the international law.
4. By official pronouncements by the Executive departments
issuances by the President, DFA, etc
When there is a conflict between international law and
municipal law, which should prevail?
The question requires levels of qualifications.
Legal System of the state
It must be characterized what International Law is involved, the same
goes with Municipal law. States differ in legal systems especially in the
hierarchy of laws.
In some States with written constitution, they adhere to supremacy of
the Constitution. As a consequence, national and local legislations will
only be valid if they conform to the Constitution.
In States without written constitution like UK, actually Britain, there is
no supremacy of the Constitution being followed.
So, that makes it a little bit complicated because in the case of the
Philippines, we treat general principles of International Law as
equivalent to statutes. That means that the general principles of
International law are equivalent to national laws or ordinary statutes
NOT municipal laws.
Therefore, even general accepted principles of International must yield
to the Constitution which is higher than our national legislation. That is
the reason why you mention about Ichiong v. Hernandez where our
treaty obligations may be superseded by a more paramount police
power of the State. Besides of course, in that case the Civilization Act
comes later after the treaty of comity between the Philippines and China.
So following the Statutory Construction, the later law superseded the
earlier law.
However, in Planas v. Gil, the SC said that while the Constitution can
even be supreme than the general accepted principles of international
law, the Constitutions validity however may be limited by the jus cogens
norm because it is non-derogable so the Constitution of all States must
yield to non-derogable jus cogens norm.
Forum where case is filed
If it has to be decided by an international court, then we can expect that
international law will be applied rather than municipal law. That is
expected of an international tribunal. But it is not right to conclude that
if the case is to be decided by a municipal forum, it will always apply
municipal laws.
If the domestic forum follows monism, then it may apply International
Law over Municipal Law assuming the Municipal Law involved is not the
Constitution but only national legislation. But if the forum follows a
dualist approach, then the domestic forum will apply Municipal Law over
International Law.
Basically, there is no difference between International Law and CIL,
except for jus cogens. In the Philippines, we apply the monist approach
in incorporation with a caveat that general principles of international law
is equivalent to CIL.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
What are deemed incorporated are the general accepted principles of
international law as part of law of the land. But again since we follow
supremacy of the Constitution, then we expect courts to apply the
Constitution.
To summarize:
A. Determine the legal system of the state
A. If supremacy of the Constitution is recognized Municipal
law prevails (except if it violates jus cogens)
B. If supremacy of the Constitution is not recognized
International law prevails
B. Determine the forum where the case is filed
A. If international court International law prevails
B. If domestic court determine whether monist or dualist
If monist International law prevails (except if the
municipal law involved is the Constitution)
If dualist Municipal law prevails
STATES AND GOVERNMENTS
PRIMER ON THE DISCUSSION OF STATEHOOD
Problem:
Singapuria is a small nation in the South Pacific. It has a small thriving
economy due to its specialization in the Information Technology (IT)
Sector, but has no active military.
Singapurias northern border with its larger neighboring state,
Malisiana, has been the subject of an ongoing dispute. The disputed
region, called Londonia, is resource rich, and its inhabitants consider
themselves to be ethnically and culturally distinct from peoples of
neighboring regions.
Ten years ago, Malisiana dramatically increased its military presence in
this disputed region. Malisiana claims that it has historical and religious
ties to Londonia and that the region has always formed part of Greater
Malisiana. In recent years, Malisiana has adopted a policy of
encouraging its citizens to migrate to Londonia, through subsidized
housing, assured military protection and tax concessions.
Two of Malisianas large trading partners have recently recognized
Malisianas territorial borders to include the disputed region. Singapuria
has consistently objected to Malisianas actions on the international
stage, maintaining that its southern border encompasses Londonia and
asserting that its territorial sovereignty is being violated- yet,
Singapuria remains militarily too weak to take any action against
Malisianas powerful military presence in Londonia.
Questions:
1. Under public international law, what are the implications of the
disputed border for Singapurias statehood?
2. How would public international laws right to self-determination
apply here?
Singapuria is claiming that it is a state. However part of its
boundary is disputed. Will this affect Singapurias statehood
because it has not actually defined its territory since part of it
is being disputed which is Londonia?
No. The dispute over its territory will not affect the statehood of
Singapuria because defined territory is not equivalent to defined
territorial boundaries.
North Sea Continental Case
The threshold for defined territory is Sufficient Consistency of Control.
There is no rule saying that land frontiers of a state must be fully
delimited and defined. What matters is that a state consistently controls
a sufficiently identifiable core of territory. To effectively comply with the
territory requisite, there must be:
2|U N I V E R S I T Y O F S A N C A R L O S
1. Sufficient consistency in the exercise of sovereignty over the
territory and that the
2. Authority must be exercised effectively.
Island of Palmas case
Re: Discovery of terra nullius is not enough to establish sovereignty. It
must be accompanied by effective control.
Facts: There were two conflicting regimes that confronted Max Huber in
this case. He was considering the fact that Spain was the one which first
discovered the Palmas. Netherlands came second but exercised effective
control and territorial sovereignty over the Islands of Palmas.
Issue: Which should prevail, discovery or actual sovereignty?
Held: Actual sovereignty. Discovery of terra nullius is not enough to
establish sovereignty. It must be accompanied by effective control.
Discovery by itself is not a mode of acquiring territory. It should be
followed by effective occupation or exercise of territorial sovereignty.
Territorial Sovereignty
The state must exercise a degree of governmental function to the
exclusion of other states which means there should be some form of
administration in the discovered territory.
Governmental functions may refer to policy and lawmaking and implementation,
and before you can do that there should be people. Which is why countries in the
past ask their people to migrate to discovered colonies to occupy the land and so
that it can be administered in accordance to its own policy.
According to Max Huber, this is what Spain failed to do in the Palmas
Case. Spain may have discovered the Islands, but they did not exercise
effective sovereignty. Discovery will only give you an inchoate right over
the discovered territory.
Until when should the discoverer enjoy that inchoate right?
Such as when State A discovers a territory today, and the next day State
B wants to occupy it, can State A use force to drive away State B
claiming that State B discovered it first and that they have inchoate right
over it?
There is no fixed threshold for inchoate right, but thresholds develop in
PIL. In the past, it takes very long to travel and therefore longer periods
of time should be afforded the inchoate right.
Although it is highly improbable to discover new territory today, the
period of time for the inchoate right to be given today should be shorter
since travel is now fast and more sophisticated as per Largos opinion.
In the case at bar
If part of a territory is disputed, it will not diminish the statehood of the
country. For Singapuria to successfully claim Londonia as part of its
territory, it should exercise effective territorial control over Londonia.
However, Singapuria may not have been able to exercise effective
control over Londonia since it is militarily weak and has not been
resisting the Malisiana.
When threshold of effective control is liberal or lower
If a territory had been claimed by an already established state, the
threshold of effective control should be liberal or lowered since the
actuation of the neighboring state (Malisiana) would in fact constitute a
violation of the territorial integrity of another state (Singapuria) and this
would amount to intervention.
Under the friendly declarations, states can no longer acquire territory
through the use of force. Therefore, the fact that Singapurias territory
is not defined does not diminish its statehood. Malisianas actions could
instead be seen as intervention on Singapuria.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Right to self-determination
The people of Londonia are ethnically and culturally distinct from
Singapuria and Malisiana. Singapuria may have a hard time claiming
Londonia because when the population is culturally and ethnically
distinct from others, then it may amount to right of self-determination.
Right to self-determination is a Jus Cogens norm and even a claim by
Singapuria in this case will not prosper since the people of Londonia may
constitute an independent state.
Limitation to the right to self-determination
However, as per Kosovo Case, the right to self-determination may be
exercised to lawfully secede from another country when the people are
oppressed. In this case, there is no fact pointed out that the people of
Londonia were oppressed as to amount to right to self-determination
resulting in secession.
The Right to self-determination may not necessarily give rise to the right
of the people of Londonia to separate themselves or secede from
Singapuria until the requirements are present.
The supposed insistence of Londonia to secede may not be lawful under
international law. Therefore, Singapuria may claim territorial integrity.
Singapuria may claim that they have respected Londonias internal right
to self-determination owing to their distinct culture and ethnicity.
Therefore, when a people are distinct culturally and ethnically from the
other state, it may unilaterally secede from a particular state, however
that latter state can claim their right to territorial integrity and insist that
their portion of territory should not be taken.
DETERMINATION OF STATEHOOD SCENARIOS
WHEN DISCUSSION OF STATEHOOD BECOME RELEVANT
There are various situations when the question of statehood arises.
Examples are when a portion of a territory has seceded, or when there
is foreign control over the affairs of an entity which claims to be a state,
or when states have formed a union but continue to retain some
autonomy, and when individual members of a federation claim
statehood.
A. Break up of a large state into several states (e.g. USSR, former
Yugoslavia, and Czechoslovakia in 1990s)
B. Secession by part of a territory (e.g. Kosovos declaration of
independence from Serbia in 2008)
C. Foreign control is exercised over the affairs of a state (e.g. US
control over the island of Palau in the Pacific Ocean before 1994)
D. Merger or Union of states (e.g. Egypt and Syria merged in 1958 to
form the United Arab Republic and Syria then seceded from the
UAR in 1961 and Egypt renamed itself Egypt)
E. Claims by constituents units or a union or federation to the
attributes of statehood (e.g. Separatist claims in Quebec)
F. Territorial or non-territorial communities which have special
international status (e.g. Palestines non-member observer state
of UN status in 2012)
SUBJECTS OF INTERNATIONAL LAW
SUBJECTS OF INTERNATIONAL LAW
Subjects of international law are entities endowed with rights and
obligations in the international order and possessing the capacity to take
certain kinds of action on the international plane. In other words, they
are those who have international personality.
Despite the increasing range of actors and participants in the
international legal system, states remain by far the most important legal
persons and despite the rise of globalisation and all that this entails,
states retain their attraction as the primary focus for the social activity
of humankind and thus for international law.
Since international law is primarily concerned with the rights and duties
of states, it is necessary to have a clear idea of what a state is.
3|U N I V E R S I T Y O F S A N C A R L O S
STATE V. GOVERNMENT
STATE V. GOVERNMENT
State consists of government and other elements of state, while the
Government is the agency through which the will of the State is
formulated, expressed and carried out. Thus, State is much broader than
government as the latter is just one of the elements of the State. States,
not governments, are the bearers of rights and duties under
international law.
Doctrine of Sate Continuity
State continues despite changes of government, people, and territory.
Doctrine of State Succession
Opposite of Continuity. When one state succeeds another, there is now
a change of sovereignty. There is already a change of legal personality
of a state, i.e. when a territory is ceded to another state.
How the state governs internally may be relevant in
recognition of government issues
Because some states may not recognize governments established by
force. Some states may also recognize a government based on its own
criteria.
Two theories of recognition:
A. Declarative theory Objective evaluation of statehood. If the four
elements are complete, there exists a State. Recognition is
immaterial. This is acknowledged by the Montevideo Convention.
B. Constitutive theory Recognition of state is an additional element
of statehood. Not a well-accepted view.
Recognition of State v. Recognition of Government
Recognition of State does not necessarily mean recognition of
government. Recognition of the State recognizes the presence of the
elements of a state. Recognition of the Government recognizes that the
government has effective control over the territory of a particular state.
ELEMENTS OF A STATE
ELEMENTS OF A STATE
Article 1, 1933 Montevido Convention on Rights and Duties of States
The state as a person of international law should possess the following
qualifications:
A. A permanent population
B. A defined territory
C. Government
D. The capacity to enter into relations with other States
PERMANENT POPULATION
PERMANENT POPULATION
People simply means a community of persons sufficient in number and
capable of maintaining the permanent existence of the community and
held together by a common bond of law. It is of no legal consequence
if they possess diverse racial, cultural, or economic interests. Nor is a
minimum population required.
Q. How many people are required?
There is no required number, so long as they are capable of
perpetuating itself through natural reproduction or migration.
TN: Liechtenstein with 34,000 in 1990 and Nauru with 14,000 people in
1999 became UN Members. Vatican City has about less than 500 citizens
and less than 900 residents. Other mini states are Micronesia, Tonga,
San Marino, Palau, and Monaco.
Bretch: Traditionally of course, continued existence of the population would
require the presence of both genders (male and female) because traditionally,
population is continued by natural methods. But modern international law has
accepted the possibility that population can actually be maintained not just by the
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
natural continued existence of that group of people but also by migration or other
scientific means like cloning (but cloning is not yet generally accepted as per Sir).
DEFINED TERRITORY
DEFINED TERRITORY
See again Island of Palmas Case on Territorial Sovereignty, and North
Sea Continental Shelf Cases on whether definition of borders is a
requirement.
The control of territory is the essence of a state
The control of territory is the essence of a state and this is the basis of
the central notion of territorial sovereignty, establishing the exclusive
competence to take legal and factual measures within that territory and
prohibiting foreign governments from exercising authority in the same
area without consent.
North Sea Continental Case
The threshold for defined territory is Sufficient Consistency of Control.
There is no rule saying that land frontiers of a state must be fully
delimited and defined. What matters is that a state consistently controls
a sufficiently identifiable core of territory. To effectively comply with the
territory requisite, there must be:
1. Sufficient consistency in the exercise of sovereignty over the
territory and that the
2. Authority must be exercised effectively.
Bretch: We have mentioned that North Sea Continental case is our authority on
the threshold that the territory should not be accurately defined otherwise states
will hardly exist by the mere expedient of questioning or disputing frontiers or
boundaries.
So it is not a good law or norm to say that for there to have a state, its boundary
or territory must be accurately defined. What is required is sufficient consistency
of control. Meaning, that the State is undeniably under the effective control of the
state concerned.
Island of Palmas Case
Here, discovery was simply considered as entitling the discovering state
with an inchoate right or inchoate title. Such discovery must be followed
by effective occupation. Thus, between mere discovery on the part of
Spain and the exercise of territorial sovereignty on the part of the
Netherlands, Max Huber favored exercise of territorial sovereignty over
mere discovery because it was established in this case that Netherlands
(Dutch government) had already exercised territorial sovereignty which
is the exercise of governmental functions to the exclusion of all others.
Meaning of Territorial Sovereignty
It refers to the right to exercise in a territory the functions of a state, to
the exclusion of any other state. It must be open in public. Discovery
could only exist as an inchoate title, as a claim to establish sovereignty
by effective occupation.
Bretch: So there must be some form of administration to the exclusion of all
others. That is why when Tomas Cloma found the Kalayaan Islands are now
effectively controlled by the Philippines, to comply with territorial sovereignty,
Marcos issued a Presidential Decree making Kalayaan Islands part of Palawan
(administrative powers to the exclusion of all others).
How large must the territory be?
There is no requirement, there is not even a requirement that it be
contiguous.
TN: Monaco has 1.95 sq. km., The Vatican City has 0.44 sq. km.
Q: What if Territory is purportedly annexed by another State? Just like
what happened to Kuwait in 1990 when it was forcibly annexed by Iraq,
did it diminish the status of Kuwait as a State?
No. It is not a norm or policy that a states status as a state will diminish
if occupied or forcibly annexed by another State.
4|U N I V E R S I T Y O F S A N C A R L O S
GOVERNMENT
GOVERNMENT
The test is effective control and not legitimacy.
No required form, but there must be effective control
There is no required form of government for purposes of statehood.
Theres even no requirement that it should be democratic or non-
democratic. However, the government must have an effective control
over its territory.
The government must be able to command obedience
The government must be organized to which the great body of
inhabitants render obedience. The government for the purposes of
Statehood must be able to command obedience. For that government
to be able to command obedience it must be able to command, pass
laws, enforce and implement them.
It should be able to command obedience in case of violation. Meaning,
there some sort of judicial system whereby if an inhabitant is found to
be violating a command, the government is able to bring that person
into some sort of judicial machinery and impose penalties.
However there is still an ongoing debate regarding failed and failing
states and whether they fail to comply with the criteria of government.
This is because temporary deprivation of effective control does not
render the state non-existent.
Two kinds of control
A. Internal sovereignty ability of the state to command obedience
within its territory or decide on its policies without the dictates of
other states or non-state actors; the capacity to establish and
maintain a legal order in the sense of constitutional autonomy.
B. External sovereignty embodied in capacity to enter into relations
with other states under the fourth element; able to enter into
relations with other states and conclude treaties without the control
of external forces.
Threshold of effective control
What is the threshold? This is the problem. Should the threshold be
higher or lower, and in what instances?
Higher threshold
If the authority of that government is contested, higher threshold is
required. So effective control test is strictly interpreted in that situation.
Lower threshold
In situations where there is no contest, then you have to apply effective
control test using the lower threshold because it is not contested. Also,
in states that have emerged out of secession relaxed interpretation.
TN: A de facto government established outside the constitutional
framework may be deemed an element if it has effective control.
CAPACITY TO ENTER INTO RELATIONS WITH OTHERS
CAPACITY TO ENTER INTO RELATIONS WITH OTHERS
Article 3, Montevideo Convention
The political existence of the state is independent of recognition by the
other states. Even before recognition, the state has the right to defend
its integrity and independence, to provide for its conservation and
prosperity, and consequently to organize itself as it sees fit, to legislate
upon its interest, administer its services and to define the jurisdiction
and competence of its courts.
Bretch: Of the two theories of recognition (constitutive and declaratory), Article
3 supports the declaratory theory since the political existence of the state is
independent of recognition by other states.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Limited Capacity to enter into international relations does
not prevent the existence of a State, like in the cases of
Protectorates, Trusteeships and Associated States.
The Montevideo Convention Article 3 speaks of capacity only, and it does
not require that its ability to enter into relations is directly exercised by
the state itself. This is precisely in situations where there is merely
limited capacity. The understanding of international community is that,
it should not diminish the status of that community as a state. The
doctrine of self-auto limitation confirms this because the state imposes
its own restrictions in its foreign affairs by entering into treaties by other
states, such as in association. The doctrine of self auto-limitation does
not result in the diminution of sovereignty. What is diminished is merely
the exercise of sovereignty.
Principle of association
Under the principle of association, you have a principal and an associate.
The associates are former colonies, wanting to have independence but
cannot yet effectively or competently enter into foreign relations. Thus,
they have to enter into an association treaty with other powerful states
and the latter will exercise the foreign relations with respect to that
territory.
Problem
Lets say in a country, there are 300 provinces and cities. This country
used to be a colony of another state, but when this colonizing state
granted this country independence, it spawned factions in the territory
of that country as there had been several groups who wanted to lead
the country.
In fact, the anointed government (chosen by the colonizing state) had
been questioned by other factions and groups resulting to civil war.
What if the government chosen by the people is in control of 100
provinces in the country, another group is in possession of 80 provinces
and cities, and 2 more groups are possessing 70 and 50 provinces and
cities respectively. There are now 4 contending governments.
Immediately after the colonizing state withdrew its control over the
territory, it made a public announcement that the duly appointed
government should run the country. But even before choosing, there
had already been political turmoil as other countries would also likely to
lead the country. (Democratic Republic of Congo)
Will there be a government in this situation for the purposes of
statehood? Has the government complied with the requirements in the
Montevideo convention?
Q. What again is the meaning of the effective control test as
required of government as an element of statehood?
Effective control test has a general connotation and you should ask a lot
of questions:
1. Is it determined by size, number or portions of the territory?
Answer: No. James Crawford said that its not the number of localities
that are being held in possession of the government that is
determinative of effective control. One thing to look into is the quality
of the locality being held.
Example, if government is only in control of a few localities but these
localities are the core localities, then it can be said that the government
has effective control.
For instance, if the Philippines will experience civil war and then the
government will be in control of Manila, Cebu, Davao and many other
highly urbanized localities, then it can be said that there is still effective
control.
5|U N I V E R S I T Y O F S A N C A R L O S
2. While in possession of these territories, what is the government
doing? Does it have administrative and government functions or not?
Read the experience of the Democratic Republic of Congo as this would
be helpful for the topic of effective control.
From Shaw: The military occupation of enemy territory is termed
belligerent occupation and international law establishes a legal
framework concerning the legal relations of occupier and occupied.
There are two key conditions for the establishment of an occupation in
this sense:
1. Former government is no longer capable of publicly exercising its
authority in the area in question and,
2. Occupying power is in a position to substitute its own authority for
that of the former government
So in relation to effective control, a belligerent occupier is deemed to
have effective control over an area when the occupation has been
established by the two key conditions. Once a belligerent occupier is
established to have occupied an area, they are responsible for any
violations done to the civilians of that occupied area.
Democratic Republic of Congo v. Uganda
Facts: Congo alleges that Uganda engaged in military and paramilitary
activities against it by occupying its territory and by actively extending
military, logistic, economic, and financial support to irregular forces.
Congolese Rebel leader Kabila with support from Uganda and Rwanda
overthrew Mobutu Seko in 1997 and renamed the country from Zaire to
Democratic Republic of Congo. However, Kabila did grant substantial
benefits to Uganda and Rwanda but subsequently reduced their
influence over Congo.
Relevant to this topic, Congo also asserts that border regions of eastern
Congo were attacked by Ugandan forces and several more areas fell
under the latters control such as Orientale province and part of the
North Kivu Province and later on Bunia and beni and to Bururu and
Mobensene and it was only after the Ugandan Army withdrew did the
occupation of the territory ended.
Congo alleged that Uganda administered the occupied zone and even
created a new province in the occupied areas (Kibali-Ituri). Uganda on
the other hand asserts that the number of troops they sent (10,000
troops) belies the argument that they occupied vast areas in Congo and
that their appointment of a governor in the occupied area is the only
attempt of interference but this was done to maintain order in that
region
Issue: Whether or not Uganda did indeed occupy parts of Congo and
exercised administrative control over the region.
Held: The Court observes that, under customary international law, as
reected in Article 42 of the Hague Regulations of 1907, territory is
considered to be occupied when it is actually placed under the authority
of the hostile army, and the occupation extends only to the territory
where such authority has been established and can be exercised.
In order to reach a conclusion as to whether a State, the military forces
of which are present on the territory of another State as a result of an
intervention, is an occupying Power in the meaning of the term as
understood in the jus in bello, the Court must examine whether there is
sufficient evidence to demonstrate that the said authority was in fact
established and exercised by the intervening State in the areas in
question.
In the present case the Court will need to satisfy itself that the Ugandan
armed forces in the DRC were not only stationed in particular locations
but also that they had substituted their own authority for that of the
Congolese Government.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016

In that event, any justification given by Uganda for its occupation would Special Administrative region, would still have to be under China in two
be of no relevance; nor would it be relevant whether or not Uganda had important areas:
established a structured military administration of the territory occupied
1. National defense
Facts establish that Uganda was the occupying Power in the occupied
2. Foreign affairs.
regions and is responsible for any acts of its military that violated
international obligations and for any lack of vigilance in preventing
PALESTINE
violations of human rights and international humanitarian law by other
As of 2012, Palestines status in the UN is a non-member observer state,
acts present in the occupied territory, including rebel groups acting on
and prior to 2012, it was a non-member observer entity.
their own account.
Since it is a non-member observer state, has it rendered Palestine a
General Kazini, commander of the Ugandan forces in the Congo, created
state? What is the value of the UN recognizing Palestine as a state
the new province of Kibali-Ituri and appointed Lotsove as Governor as
although a non-member? Is recognition a requirement for the
evidenced by a letter by Kazini and proven by the Porter Commission
establishment of a state?
However, other areas are not found to be occupied by Uganda since
evidence is lacking (such as the alleged occupation of Kisangani Airport
A: Two theories of recognition are declaratory and constitutive.
and the alleged supervision of the local elections by the Ugandan officers
through the Congolese rebel factions)
Article 3 of the Montevideo Convention
The political existence of the state is independent of recognition by the
SUI GENERIS STATES other states. Even before recognition, the state has the right to defend
its integrity and independence, to provide for its conservation and
SUI GENERIS STATES
prosperity, and consequently to organize itself as it sees fit, to legislate
These are entities with special status.
upon its interests, administer its services, and to define the jurisdiction
and competence of its courts.
How do regular states and international organizations view the
following?
The exercise of these rights has no other limitation than the exercise
1. Taiwan
of the rights of other states according to international law.
2. Hongkong and Macau
3. Palestine
TN: Article 3 embraces the declaratory theory. However, sir said that
4. Holy See
in regard to Palestine, Article 3 is not applicable.
TAIWAN
Q. What is the missing element of Statehood in the case of
Chang Kai Shek used to be in the mainland China with his nationalist
Palestine?
party and Mao Zhe Dong has been very influential in espousing
Palestine is claiming the West Bank and Gaza strip, but still subject to
communism which resulted to the Chinese Civil war.
the claim by Israel. But what is the extent of the supposed control by
Palestine over the West Bank and Gaza that made it problematic?
Because it was peasant based, Mao Zhe Dong was able to mount a
powerful campaign for the purposes of establishing communism. Mao
The other concern is that Palestine is also claiming that Israel is part of
Zhe Dong defeated Chang Kai Shek, making the latter move to the island
the greater Palestine before. Similar to Taiwans Case. Palestine argued
of Formosa (Taiwan) and insisted that it is still the government
that Israel occupied the territory of Palestine and Palestine described
exercising control over China.
itself to be the government of exile because it has not effectively
controlled a particular territory.
The key point affecting status has been that both governments have
claimed to represent the whole of China. No claim of separate statehood
HOLY SEE
for Taiwan has been made and in such a case it is difcult to maintain
The Holy See is a non-territorial entity because it is merely a government
that such an unsought status exists. Total lack of recognition of Taiwan
of the Vatican City. It is the Vatican City that is the territorial entity. The
as a separate independent state merely reinforces this point
one running the affairs is the Holy See, which is non-territorial. Thus,
being non-territorial, cannot be considered a State.
In 1979 the US recognised the Peoples Republic of China as the sole
and legitimate government of China. Accordingly, Taiwan would appear
However, unlike all other governments in international law, the Holy See
to be a non-state territorial entity which is capable of acting
is in fact given a very special status because of its influence.
independently on the international scene, but is most probably de jure
part of China.
TN: It is either power or influence that gives you a special status in
International Law. In US for example, it is power, but for the Holy See,
Even until now, Taiwan is still maintaining a claim on Mainland China.
it is influence.
That is why it is hard for international law to recognize Taiwan as a state
under the Montevideo Convention due to lack of effective control over
Q. What is the Holy See in relation to the Vatican City?
Mainland China. There is absence of a definite territory for Taiwan.
The Holy See exercises administrative functions in the Vatican City
HONGKONG AND MACAU
Q. What does the Holy See comprise of?
Why is it not a state under the Montevideo standards?
Pope and cardinals. The College of Cardinals and some advisers
Basic law is the form of constitution of HK. Although HK is now a part of combined are called the Holy See.
China, by reason of the expiration of the lease treaty, it still is given the
highest form of autonomy (even higher than autonomy states). Concordat
Treaty entered into by the Holy See.
By this, HK was allowed to maintain its status quo and was allowed that
their Basic Law would still be in force. Also, HK has its own government.
It is allowed to legislate its own laws.

But since it is still part of China, it cannot be a state within China. And
so China established in its basic law that the territory of HK, called

6|U N I V E R S I T Y O F S A N C A R L O S
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
PRINCIPLE OF UTI POSSIDETIS JURIS
PRINCIPLE OF UTI POSSIDETIS JURIS
A general rule of international law stating that the boundaries of colonial
territories ought to become international boundaries when those
territories attained independence unless altered by agreement.
How the principle developed
This principle developed in South America in connection with the
independence of states from Spain and Portugal, it was also adopted in
1964 by the Organization of African Unity which states that all member
states pledge themselves to respect the borders existing on their
achievement of national independence.
What is the relevance of this principle in statehood discussion?
It is important in the discussion of statehood. This is not yet a customary
international law. It is at the very least a generally accepted principle of
law that had been developed. This simply means that the moment a
colonial territory had been granted independence, states are obliged to
respect the territorial boundaries of the newly established state, and
therefore complying with the definiteness requirement on territory. If a
newly colonial territory has just emerged as a state, then there shouldnt
be any problem complying with the requirement of definite territory.
SELF-DETERMINATION, SECESSION AND RECOGNITION
RIGHT TO SELF-DETERMINATION
RIGHT TO SELF-DETERMINATION
A customary international law, jus cogens and an erga omnes obligation.
This is set out in:
Art 1(2) and art 55 of the UN Charter, Art 2 of the GA Resolution entitled
Declaration on the Granting of Independence (1960)
All peoples have the right to self-determination; by virtue of that right
they freely determine their political status and freely pursue their
economic, social and cultural development
Article 1 (4) of Protocol I of the 1949 Geneva Conventions
Make the laws of international armed conflict applicable to armed
conflicts in which peoples are fighting against colonial domination and
alien occupation and against racist regimes in the exercise of the right
of self-determination
Any group within a territory claiming to be fighting against colonial
domination, alien occupation or a racist regime (national liberation
movement) is now protected by the laws of war, and that its members
are entitled to prisoner-of-war (POWs) status.
Right to self-determination consists of:
1. The right to determine the political status and is applicable to
colonial territories
2. Freedom to pursue economic, social and cultural development.
This was reiterated in the ICCPR, ICSCR, and 1970 Friendly Relations.
This is a jus cogens norm which extends even a group of people which
engages in war or armed conflict with the regular forces of that
particular state for the purpose of liberating the group, i.e. belligerents.
Belligerents
Belligerents in PIL are the parties to an armed conflict even if the armed
conflict is confined in a single territory and there is no foreign element
involved. Usually the concept of international armed conflict would
require a foreign element. An exception to that is when one particular
group is fighting against the regular forces but such group would qualify
as a national liberation movement.
To qualify as a national liberation movement (NLM), there must be an
armed conflict in which peoples are fighting against:
(1) Colonial domination (this is not applicable in recent times)
(2) Alien occupation or
(3) Racist regime
7|U N I V E R S I T Y O F S A N C A R L O S
In most cases, NLM in modern times are occasioned by racist regimes.
It will now be governed by the laws of war because it is an international
armed conflict. Any member of the belligerent groups captured will have
to be granted prisoner of war status which means that if you prosecute
someone belonging to the opposing armed group, he should be
prosecuted under the laws of international armed conflict.
Example: Instead of prosecuting for simple murder under domestic law
in a situation of an internal armed conflict, there may be a violation of
international law. It may now actually amount to murder as a war crime
under the Rome Statute.
This is the importance of the right to self-determination. If you have
been subjected to racial discrimination, then the conflict may be
elevated to an international armed conflict.
SECESSION
SECESSION
The manner in which a state is established is important in international
law. Would the states legitimacy be affected by whether or not it
violated international law in its establishment?
Does international law permit secession?
International law does not expressly permit nor prohibit secession.
What is the difference between unilateral secession and
unilateral declaration of independence?
A. Unilateral declaration of independence declaring the territory as
now separate from the mother state, and declaring that the
territory itself has established a new state.
B. Unilateral secession when a portion of a territory separates itself
from an original state.
This is crucial because the Kosovo Opinion and the Opinion of Canada
on the issue of Unilateral Declaration of Independence of Quebec were
clinical in approach. There was no declaration of whether international
law permits secession. There was also no declaration that international
law prohibits secession. However, it is settled that international law does
not prohibit unilateral declaration of independence.
Why does international law not prohibit unilateral declaration
of independence?
International law does not prohibit declaration of independence because
a mere declaration of independence may or may not result to secession.
Unilateral declaration of independence is separate from unilateral
secession. Secession is simply the effective consequence of unilateral
declaration of independence. International law treats the declaration
and the effective consequence separately.
1999 Kosovo case
The Albanian Muslims in Serbia are the minority and mostly located in
Kosovo which is a portion of Serbia. The majority in Serbia are Christians
(not really Catholic) and other religions other than Muslims. These other
religions were leaders of anti-Albanians and what they do is to
discriminate the Albanian Muslims.
Albanian Muslims holding significant positions located in Kosovo both in
public and private were replaced with Serbians. The Serbian
Government sponsored migration of Serbians to Kosovo to dilute the
population of the Muslims. There was also a mandatory official
language. Removal of certain privileges to Muslims happened including
textbooks.
This contributed in what happened in Kosovo. The Kosovars started to
organize an armed group to repel the continuing discrimination by the
Serbians in Kosovo but was met with resistance. This resulted to, in a
way, a civil war. It resulted to deaths of a lot of Albanian Muslims. But
eventually, by force, Kosovo established a parliament and declared that
it is now independent from Serbia. There was a request for an opinion
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
on whether the unilateral declaration of independence by Kosovo was in
violation of International Law.
ICJ Advisory Opinion on Kosovo (2010)
Main Question:
"Is the unilateral declaration of independence by the Provisional
Institutions of Self-Government of Kosovo in accordance with
international law?"
The ICJ declares that "general international law contains no applicable
prohibition of declarations of independence".
Even during the 18th to early 20th centuries, state practices on
secession had not resulted in international law prohibiting "declarations
of independence" as illegal. Decolonization during the second half of the
20th century developed the concept of "right to self-determination" that
justified declaration of independence of peoples in non self-governing
territories.
The right to territorial integrity of States, a customary international law,
is relevant. The ICJ acknowledges the development of the so-called
"Remedial Secession".
Bretch: Boholanos can declare independence. There is no violation of
international law. In fact, international law regulates that. But the moment people
from Bohol will establish a government and will refuse the authority of the national
government, control the territory Bohol, and start to act as an independent state,
then that is secession assuming it exercises effective control over the territory of
Bohol. That is what we mean by secession.
In the Kosovo case, secession was not tackled as an issue, only a unilateral
declaration of independence which is not prohibited by international law.
Has the ICJ recognized the theory on Remedial Secession?
It considered the debates regarding the extent on the right of Self-
Determination and to the extent, a remedial secession. But it was
beyond the scope of the question of the UN General Assembly. The
concept of the Right to Self-Determination has emerged in the colonial
context and therefore, the discussion is whether it could apply to self-
governing territories. However, context-wise, ICJ was open to the
development of what we call Remedial Right to Secession. This Kosovo
opinion mentioned the opinion of the Supreme Court of Canada in the
Quebec Case.
What is Remedial Secession?
Quebec case
In the discussion of the Quebec Case, it was a question whether Quebec
can validly secede. The outcome was, there was no basis for a valid
secession. The Supreme Court of Canada made a threshold when a
group of people may validly secede.
In this case, Quebec failed to be secede because there is no clear
showing that there was violation by the Republic of Canada. They were
given a seat of the government, showing political participation. Why is
it relevant to take a look whether had it been given political
representation?
According to the Supreme Court of Canada, the right to self-
determination must be exercised in the context or within the framework
of the sovereign state and consistent with territorial integrity. In other
words, when you say right to self-determination, the group of people
claiming to be different from the majority would be able to pursue
political, economic, social and cultural development without a need of
being separated from the State. This is termed as Internal Self-
determination.
It is external self-determination if it involves unilateral secession from
the state. The threshold to invoke such is reflective of lex ferenda norm
on the matter. According to the Supreme Court of Canada, the
international law right to self-determination only generates at best a
right to external self-determination in cases of former colonies.
8|U N I V E R S I T Y O F S A N C A R L O S
Former Colonies
Where people are oppressed or denied of meaningful access to
government to pursue their political, economic, social and cultural
development.
These situations are the bases of the Remedial Right Theory. Quebec is
not a former colony. The people have not been oppressed. It has been
established that they have not been denied meaningful access to
government to pursue their political, economic, social and cultural
development. It is important to note that their people have been holding
important positions in the government (at one point a prime minister).
Opinion of the Supreme Court of Canada in re: 1998 Secession
of Quebec
Question:
"Is there a right to self-determination under international law that would
give the National Assembly, Legislature, or Government of Quebec the
right to effect Quebec's unilateral secession from Canada?"
Secession is not authorized by the Constitution of Canada. International
law does not specifically authorize nor prohibit unilateral secession. But
states have the implied duty (erga omnes) to recognize peoples' "right
to self-determination which must however be exercised within the
framework of sovereign states and consistent with territorial integrity of
those states ("right to internal self-determination") vs. "right to external
self-determination" (unilateral secession).
When right to external self-determination may be exercised
SC of Canada:
The international law right to self-determination only generates, at best,
a right to external self-determination in situations of:
1. Former colonies, where people are oppressed, as for example
under foreign military occupation.
2. Where a definable group is denied meaningful access to
government to pursue their political economic, social, and cultural
development (meaning, where the people have been denied the
right to internal self-determination)
May the right to self-determination be considered as a basis for
unilateral secession?
Not necessarily. The right to self-determination must be exercised within
the framework of sovereign states and consistent with territorial
integrity of those states. That is internal right to self-determination. That
is the first rule. The right to self-determination should not be considered
as necessarily incompatible with territorial integrity and sovereignty of
states. It can be observed in the context of territorial integrity.
How so?
The state will not necessarily separate, such as Autonomous Region, or
a Federal set up. That is precisely why our Constitution is specific that
we are a unitary. We specify however that there shall be autonomous
regions in Muslim Mindanao and the Cordilleras. It allows the
opportunity to pursue economic, social, cultural, and political rights
within the context of one nation.
And so, basing on the SC of Canada and scholars, international law
generates at best to external self-determination in situation of former
colonies where people are oppressed, or where a definable group is
denied meaningful access to government to pursue political, cultural,
economic, social development. This is deliberate institutional
discrimination.
Bretch: That is why in the Philippines, it is very difficult for the part of our Moro
brothers to claim that there is denial to pursue political, cultural, economic, social
development because they were given the opportunity to run in the elections for
representation in the government. We decriminalized subversion. They can now
participate in party-list system. There must be deliberate, conscious effort on the
part of the government in discriminating. But if there is only a failure of chances,
that is not denial of meaningful access to government.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
RECOGNITION OF STATE
RECOGNITION
A method of accepting certain factual situations and endowing them
with legal significance.
Tinoco Arbitration
Disputing governments in Costa Rica. One is the Tinoco regime. There
was an oil concession in Costa Rica, Tinoco granted it. Later on, the
Tinoco regime was toppled down and there was a new government.
Great Britain wanted the new government to recognize the concessions
granted by Tinoco regime. The new government did not want to. They
contended that at the time of the Tinoco regime, as an effective
government, Great Britain did not recognize it. UK should be estopped.
Facts: In 1917, Costa Rica was under President Gonzalez but Tinoco
subsequently overthrew him and became himself the new President of
Costa Rica. After Tinoco retired in 1919 his government fell a month
later and then the old Constitution was restore.
The Costa Rican government after Tinoco passed the Law of Nullities
which invalidated all contracts between the executive power and private
person made without approval of the legislative branch during Tinocos
reign.
Great Britain alleges that Banco International of Costa Roca and the
Government of Costa Rica owed the Royal Bank of Canada (A British
corporation) 998,000 colonies and that the Central Costa Rica Petroleum
Company (Another British corporation) was granted by the Tinoco
administration the right to explore for an exploit oil deposits in Costa
Rica BUT the new Costa Rican government denies liability for these due
to the Law of Nullities.
Great Britain now argues that:
1. The Tinoco Government was the only government of Costa Rica at
the time the concessions and loan were granted and that there is
no other government disputing its sovereignty and the people
acquiesces to his reign
2. The succeeding government (Costa Rica in this case) could not by
legislative decree avoid responsibility for acts of the government
affecting British Subjects except in violation of international law
Costa Rica on the other hand argues that:
1. The Tinoco government is not the de facto nor de jure government
of Costa Rica
2. The contracts between Great Britain and Tinoco are void since it is
in violation of the Constitution
3. Great Britain is already estopped by the fact that it did not
recognize the Tinoco government during its incumbency, to claim
on behalf of its subjects that Tinoco;s was a government which
could confer rights binding on its successor
4. Subjects of Great Britain should instead pursue their remedies
before the courts of Costa Rica and not seek diplomatic
interference
Issues: Whether Great Britain is estopped by non-recognition of Tinocos
government for Great Britain to claim that the Tinoco Government
bound Costa Rica with contracts with the Royal Bank of Canada and the
Central Costa Rica Petroleum Company.
Held: The non-recognition of the Tinoco regime by Great Britain did not
dispute the de facto existence of that regime. The non-recognition by
other nations of a government claiming to be a national personality, is
usually appropriate evidence that it has not attained the independence
and control entitling it by international law to be classed as such.
What is true of the non-recognition of the United States in its bearing
upon the existence of a de facto government under Tinoco for thirty
months is probably in a measure true of the non-recognition by her Allies
in the European War.
9|U N I V E R S I T Y O F S A N C A R L O S
Such non-recognition for any reason, however, cannot outweigh the
evidence disclosed by this record before me as to the de facto character
of Tinoco's government, according to the standard set by international
law.
There is no estoppel since the successor government had not been led
by British non-recognition to change its position. An equitable estoppel
to prove the truth must rest on previous conduct of the person to be
estopped, which has led the person claiming the estoppel into a position
in which the truth will injure him. There is no such case here.
Estoppel was not found by the arbitrator. The evidence of the de facto
status of the Tinocos regime was not outweighed by the evidence of
non-recognition. This implies that valid contracts may be formed by
unrecognized government.
What is the difference between the Recognition of State and
Recognition of Government?
Recognition of the State recognizes the presence of the elements of a
state. Recognition of the Government recognizes that the government
has effective control over the territory of a particular state.
Bretch: Recognition, in general, could be recognition of state, recognition of
government, recognition of belligerent, recognition of material change of territory.
There are a lot of areas that have legal consequences. These are the important
regimes dealing with recognition. Generally, recognition means recognizing a fact,
a condition, a status, and giving it legal effects or consequences.
Theories on the legal effects of Recognition of State in
International Law
Recognition of state is suggested to be an additional requisite for
statehood along with Sufficient Degree of Civilization.
1. Constitutive Theory
2. Declaratory Theory
Article 3 of Montevideo Convention acknowledges Declaratory
Theory
The political existence of the state is independent of recognition by the
other states. Even before recognition, the state has the right to defend
its integrity and independence.
Bretch: Recognition had been a traditional additional requisite. But under the
Montevideo standards, in particular Article 3, recognition is however irrelevant
when it comes to statehood. True, recognition is not a legal requirement for
purposes of statehood but political reality however suggests that recognition plays
a very important role in international relations.
Co-optation
While recognition of a state is not indispensable to statehood,
particularly with respect to jus cogens and erga omnes norms, the newly
established state can only enjoy such other rights and privileges in the
international sphere through co-optation (individual and collective
recognition by already existing states that integrates the new state in
the international community)
Bretch: You may exist as a state under the Montevideo standards but if you are
not recognized by your neighbors and other states, how may you effectively
exercise certain privileges and immunities. While legally irrelevant, politically it is
important.
Is recognition of State or Government an obligation under
International law?
No. Recognition is purely discretionary and political on the part of the
executive department.
Is there an obligation not to recognize?
Generally, recognition is discretionary. However recognition is prohibited
in the following circumstances:
1. If there is a secessionist movement but there is no effective control
established, and the mother state still claiming that part of the
territory.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Bretch: It is incumbent upon third states not to recognize the government
of that secessionist group/movement in that territory. Otherwise, it may be
treated as intervention of the territorial integrity of the state affected.
2. If there is an armed conflict, no state is permitted to recognize one
over the other for purposes of aiding that other group. (regime of
neutrality)
Kadic v. Karadzic (US, 1995)
Facts: The plaintiffs-appellants are Croat and Muslim citizens of the
internationally recognized nation of Bosnia-Herzegovina, formerly a
republic of Yugoslavia. Their complaints allege that they are victims, and
representatives of victims, of various atrocities, including brutal acts of
rape, forced prostitution, forced impregnation, torture, and summary
execution, carried out by Bosnian-Serb military forces as part of a
genocidal campaign conducted in the course of the Bosnian civil war.
Karadzic, formerly a citizen of Yugoslavia and now a citizen of Bosnia-
Herzegovina, is the President of a three-man presidency of the self-
proclaimed Bosnian-Serb republic within Bosnia-Herzegovina,
sometimes referred to as Srpska, which claims to exercise lawful
authority, and does in fact exercise actual control, over large parts of
the territory of Bosnia-Herzegovina.
In his capacity as President, Karadzic possesses ultimate command
authority over the Bosnian-Serb military forces, and the injuries
perpetrated upon plaintiffs were committed as part of a pattern of
systematic human rights violations that was directed by Karadzic and
carried out by the military forces under his command. The complaints
allege that Karadzic acted in an official capacity either as the titular head
of Srpska or in collaboration with the government of the recognized
nation of the former Yugoslavia and its dominant constituent republic,
Serbia.
They sought compensatory and punitive damages, attorneys fees, and,
in one of the cases, injunctive relief. Plaintiffs grounded subject-matter
jurisdiction in the Alien Tort Act, the Torture Victim Protection Act.
Bretch: The Bosnia-Serb Republic, also known as Srpska, is a subset of Bosnia
Herzegovina. It is a separate state according to US because even if there was no
recognition, recognition is irrelevant. There were allegations of war crimes,
genocide, crimes against humanity, and also torture.
Torture can be committed when it is state-sponsored. It is called torture if it state-
sponsored. Therefore, it was important for the US to characterize the Bosnia-Serb
Republic whether it is a state to justify the claim of torture. Karadzic claimed that
it was not a state action so the claims for torture will not prosper.
Karadzic contends that appellants have not alleged violations of the
norms of international law because such norms bind only states and
persons acting under color of a states law, not private individuals.
In making this contention, Karadzic advances the contradictory positions
that he is not a state actor, even as he asserts that he is the President
of the self-proclaimed Republic of Srpska.
US has Alien Tort Act. If the complainant and the defendant are both in
the US, even if the act was committed outside the territory of US, the
action can be filed there as long as it involves TORT Law. Other causes
of action are not allowed. Karadzic happened to be in the US because
he was invited by the UN. Summons was served upon him.
Issues:
1. Whether or not some violations of the law of nations may be
remedied when committed by those not acting under the authority
of a state.
2. If so, whether or not genocide, war crimes, and crimes against
humanity are among the violations that do not require state action.
3. Whether or not a person, otherwise liable for a violation of the law
of nations, is immune from service of process because he is present
in the United States as an invitee of the United Nations.
10 | U N I V E R S I T Y O F S A N C A R L O S
Held:
1. "We do not agree that the law of nations, as in the modern era,
confines its reach to state action. Instead, we hold that certain
forms of conduct violate the law of nations whether undertaken by
those acting under the auspices of a state or only as private
individuals"
a. The Restatement (Third) of the Foreign Relations Law of the
United States (1986) (Restatement (Third) ) proclaims:
Individuals may be held liable for offenses against
international law, such as piracy, war crimes, and genocide.
b. Karadzic was deemed to be a non-state actor.
c. It was held that piracy, slave trade, and certain war crimes
may be international law violations even if not under the
auspices of a state or done only as private individuals
2. However, torture and summary executionwhen not perpetrated
in the course of genocide or war crimes are proscribed by
international law only when committed by state officials or under
color of law.
3. "Under international law, a state an entity that has a defined
territory and a permanent population, under the control of its own
government, and that engages in or has the capacity to engage in
formal relations with other such entities. Although the
Restatement's definition of statehood requires the capacity to
engage in formal relations with other states, it does not require
recognition by other states.
4. The customary international law of human rights, such as the
proscription of official torture, applies to states without distinction
between recognized and unrecognized states.
Bretch: It would be anomalous indeed if non-recognition by the United
States, which typically reflects disfavor with a foreign regime, sometimes due
to human rights abuses had the perverse effect of shielding officials of the
unrecognized regime from liability for those violations of international law
norms that apply only to state actors.
5. "Srpska is alleged to control defined territory, control populations
within its power, and to have entered into agreements with other
governments. It has a president, a legislature, and its own
currency. These circumstances readily appear to satisfy the criteria
for a state in all aspects of international law."
Bretch: This is the re-statement of foreign relations by the US but the
formulation, however, had been adopted by the scholars and even by the
ICJ itself. The CIL on Human Rights such as the proscription of official torture
applies to states without distinction between recognized and unrecognized
states.
It was not relevant when Karadzic forwarded the argument that there was a
lack of recognition, and therefore cannot be recognized as a State. It was
declared by the Court as an irrelevant factor. Srpska is alleged to control a
defined territory, control population to its power, to have entered into
agreements with other governments. It has a President, legislature, and has
its own currency. This appears to satisfy the criteria for a state in all respects
of international law.
EFFECTS OF RECOGNITION ON THE RECOGNIZING STATE
A. Full diplomatic relations, except in the case of de facto recognition
B. Right to sue in courts of recognizing state
C. Entitlement to property within recognizing state
D. Recognition being retroactive, validates past acts of recognized
state or government (i.e. act of state and sovereign immunity
covers past, present and future acts) [see Underhill vs. Hernandez]
Bretch: There are effects of recognition on the recognizing state. One of which is
full diplomatic relations. You recognize that the entity is a state so there is
diplomatic relation that may be established or the right to full legation. There is
also a right to sue in courts of recognizing state. The recognized state would also
be entitled to property within the recognizing state but it would depend on the
domestic law. In our case, we dont allow foreigners and foreign entities to own
private lands. Recognition has a retroactive effect, which means it validates past
acts of recognized state or government.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Underhill vs. Hernandez (168 U.S. 250)
Facts:
Hernandez was in command of a revolutionary army in the Venezuela
when an engagement took place with the government forces which
resulted in the defeat of the latter, and the occupation of Bolivar by the
former. Underhill was living in Bolivar, where he had constructed a
waterworks system for the city under a contract with the government,
and carried on a machinery repair business.
He applied for a passport to leave the city, which was refused by
Hernandez with a view to coerce him to operate his waterworks and his
repair works for the benefit of the community and the revolutionary
forces. Subsequently a passport was given him. The revolutionary
government under which Hernandez was acting was recognized by the
United States as the legitimate government of Venezuela.
Subsequently, Underhill sued Hernandez in the Circuit court to recover
damages caused by the refusal to grant passport, for alleged
confinement of him to his own house, and for alleged assaults and
affronts by Hernandez soldiers. Judgment being rendered for
defendant, the case was taken to the circuit court of appeals, where
judgment was affirmed, the court holding that acts of the defendant
were the acts of Venezuela and as such are not properly the subject of
adjudication in the courts of another government.
Held: Every sovereign state is bound to respect the independence of
every other sovereign state, and the courts of one country will not sit in
the judgment on the acts of the government of another, done within its
own territory (par in parem non habet imperium).
Bretch: Hernandez government was a revolutionary government. There was a
government established by constitutional means and it was toppled down by this
revolutionary government of Hernandez. Underhill runs the waterworks system.
He was refused to be granted a passport because Hernandez wanted him to
continue with the waterworks. He was somewhat detained in this case.
The relevant discussion here is that at the time that Hernandez established the
revolutionary government, it was not recognized by the US because at that
relevant time, the US was following the Wilson Doctrine that it will not recognize
the government that had been established by force. But eventually, the
government was recognized.
So the question is, if the government was not recognized at that time the act was
supposedly committed, would the US afford Venezuela, in particular the
government, immunity under the principle of state immunity (a foreign state
cannot sit in judgment with respect to acts committed abroad?
The Act of State Doctrine
Every sovereign state is bound to respect the independence of every other
sovereign state and the courts of one country will not sit in judgment on the acts
of the government of another than within its own territory. This is practically an
application of another principle of international law which is the Act of State
Doctrine. This is corollary to the principle of state immunity.
A state cannot pass judgment on the validity of acts of another state. Recognition
shall be given retroactive effect. The denial of Underhills passport is a valid act of
a head of government, thus an official act. Hernandez act is attributable to the
State so he cannot be sued. Under the act of state doctrine and principle of co-
equality of states, US did not pass judgments on the validity of such act.
RECOGNITION OF GOVERNMENT
RECOGNITION OF GOVERNMENT
Approaches:
(TN: Recognition is a political question and largely involves discretion of
the Executive)
A. Traditional
Recognizing state considers:
1. Effectiveness and control
2. Stability and permanence
3. Popular support
4. Ability and willingness to fulfill international obligations
11 | U N I V E R S I T Y O F S A N C A R L O S
B. Tobar or Wilson Doctrine
Precludes recognition of any government established by
revolutionary means until constitutional reorganization by free
election of representatives.
C. Stimson Doctrine
No recognition of a government established through external
aggression. (Adopted by the League of Nations).
D. Estrada Doctrine
If a government was established through political upheaval, a state
may not issue a declaration giving recognition to such government,
but may merely accept whatever government is in effective control
without raising the issue on recognition. Dealing or not dealing with
the government is not judgment on the legitimacy of the said
government.
Bretch: It is highly discretionary on the part of the executive and it is a political
question. It is not obligatory.
Traditional
The factors that states usually consider in deciding whether to recognize or not.
(1) effectiveness and control, (2) stability and permanence, (3) popular support,
(4) ability and willingness to fulfill international obligations. Well of course, a
foreign state may or may not follow the traditional way of looking at whether they
would recognize a foreign government or a foreign state. But aside from that,
there had been several doctrines.
Tobar Doctrine
Tobar was a prime minister of Ecuador and he espoused a threshold that
recognition is precluded when a government is established by a revolutionary
means in the meantime until constitutional reorganization by free election of
representatives. That was there standard because it is discretionary. Woodrow
Wilson of the US followed also the standard in Ecuador. It was applied in the US
as well, in particular with respect to the revolutionary government at that time.
Stimson doctrine
Stimson was the Secretary of State where he developed the principle that no
recognition of a government established through external aggression. Because
during which time, there were military occupation by other states. Stimson was
the one who said that there should not be recognition of the government that had
been established, for example, by Japanese occupation.
Estrada doctrine
Estrada is the Secretary of Foreign Affairs of Mexico. If the government was
established through a political upheaval, a state may not issue a declaration giving
recognition to such government but may merely accept the government which has
effective control without raising the issue of recognition. Dealing or not dealing
with the government is not judgment on the legitimacy of the said government.
Why is this important?
Because of the many doctrines that have been applied in the past, many authors
would prefer the Estrada doctrine as the better approach when it comes to
recognition pursuant especially to the Act of State Doctrine. If we enter into a
treaty with another country, that dealing should not be taken as a recognition of
the legitimacy of that government. It is entirely different story. We will recognize
you as legitimate for whatever reason but not simply because we have entered
into a particular foreign relation.
Recognizing or not recognizing is no judgment to the legitimacy of the government
of inquiry. This explains why of the many doctrines, Estrada doctrine have been
asked in the Bar exams many times because of the acceptability of the doctrine in
relation.
RECOGNITION OF BELLIGERENCY
RECOGNITION OF BELLIGERENCY
When we talk about recognition, it has to be contextualized. Whether
we are talking about:
1. Recognition of states.
2. Recognition of governments, or
3. Recognition of belligerency
Elements of "belligerency" for purposes of recognition:
1. Occupation of substantial portion of territory,
2. Organized civil government supported by the majority of the
inhabitants in the territory,
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016

3. Conflict between legitimate government and the belligerents is
serious and outcome is uncertain,
4. Belligerents are willing and able to observe laws of war and other
international obligations.
Distinguish between belligerency and insurgency
In international law, we distinguish between insurgents and belligerents.
Why is there a need to distinguish the two? Usually the distinction is the
reason for the refusal on the part of the government to recognize the
other armed group as belligerents and they will just be recognized as
mere insurgents.
Purpose:
1. If the opposing armed group is recognized as belligerents, it would
trigger the application of another regime which is the Laws of War.
And the regime on armed conflict will now govern the relationship
between the government and the belligerents. The moment they
will be governed by the Laws of War, each party will now observe
certain rules in the conduct of war.
Example: Most obvious rule to apply in dealing with the belligerents and if
it is a National Liberation Movement for example, are the four Geneva
Conventions of Armed Conflict and so members of the belligerents, the
moment they are captured, shall be afforded the rights and privileges of
Prisoners of War. Thus recognition limits the manner you are dealing with
the belligerents.
2. Any crime committed in an armed conflict will be now governed by
international law. If it is now governed by international law then
crimes that constitute international crimes will now be within the
jurisdiction of international criminal court.
Example: Killings may constitute Murder may be punishable as War Crime
for as long as the elements are present and at the same time of killing, act
may constitute Murder under the Domestic Law and now punishable by the
Revised Penal Code.
Bretch: If I were the government, I will not grant you the status of belligerency
because when you kill and it constitutes a murder, we will want to prosecute you
under our domestic law rather than surrendering you in an international court and
make them punish you for a war crime. In most cases, threshold would be higher
when international courts will prosecute the case.
Trade off: If you do not recognize the belligerents, then you are not
acknowledging that the other armed group will have a separate personality.
Therefore, acts committed by the insurgents (because we no longer call them
belligerents), that will harm or damage the interests of other states as for example,
the insurgent will kill and there is failure on the part of the government to prevent
it, either by omission or by negligence, it may amount to an internationally
wrongful act for failing to afford foreigners just and fair treatment. And so it is
possible that the act of the insurgents will be attributable to the State.
If we do not want that, then we shall recognize them as belligerents for them to
be given an international personality and such, their acts will not be attributed to
the State.
Effects of Recognition of Belligerency
Before recognition
The rebels are subject to the municipal laws of the legitimate
government and responsibility generally attaches to the government for
any damage the rebels may cause third states.
Bretch: But not automatically though. We will study this later on under what
circumstances acts of insurgents may be attributed to the State. Usual scenario
would be acts of rebels will injure or kill aliens in the territory of that state.
After recognition
The belligerent community is treated as an "international person" for
purposes of the conflict and will be governed by the "laws of war" in its
dealings with the government (and can be held responsible
internationally). The latter not be held liable for any damage the rebels
may cause. Its acts will no longer be attributed to the State.
Bretch: Thats the importance of distinguishing insurgency from belligerency. But
isnt it subjective because the government may now choose to recognize them or
not as belligerents? But of course, the State or the government may not be
compelled to recognize the belligerence.
But as a matter of necessity, in most cases, governments do recognize belligerency
in situations where it is no longer easy to control armed groups and to also save
the State from trouble.
DOCTRINE OF STATE CONTINUITY
STATE CONTINUITY
DOCTRINE OF STATE CONTINUITY
The moment a State is established as an international person, the State
continues to be the same corporate person whatever changes may take
place in its internal organization. This continuity of the legal personality
of the State may withstand even the most radical transformations in its
constitutions. Thus, temporary absence of governmental control (e.g.
civil war) will not change statehood.
Bretch: It is still the same State that continues to exist and so despite changes in
government, treaties shall continue and in fact a temporary absence of
governmental control will not affect the status of the State as such.
STATE SUCCESSION V. GOVERNMENT SUCCESSION
STATE SUCCESSION
Where there is a change in legal personality of a state, state succession
occurs. This involves substitution of new sovereign over a territory. This
happens in cases of cession, annexation, merger, consolidation and
decolonization. It will have legal effects in treaty and international
obligations of the predecessor State (Cf. Clean Slate Doctrine/Tabula
Rasa".
Bretch: It is important to distinguish between the State Succession and
Government Succession because whenever there is State succession, there will be
legal effects on treaties and international obligations.
What if there is a revolution in a State and the government is overthrown
and replaced by a new one?
There is state succession because there is change of sovereignty which
means that there is a change in the legal personality of the State.
What will change the legal personality of a State?
A change in sovereignty. So, when a territory is ceded to another State,
State A cedes territory X to State B, there is a change of sovereignty
with respect to territory X, while it used to be under State A it is now
under a new sovereign which State B.
Macariola v. Asuncion
Cession of a territory involves State succession. So the Philippines, when
we were ceded to US by Spain during the Treaty of Paris, there was
State succession.
Clean Slate Doctrine
The leading doctrine relevant to State succession is the clean slate
doctrine or tabula rasa. This doctrine does not apply in a mere
government succession.
The doctrine means that the new sovereign or the successor sovereign
will have the right to decide which treaty or obligation it will assume
after it has established its own sovereign. It is a fresh start. So treaties
entered by the predecessor state may or may not be assumed or
inherited by the successor state.
We do not say that it is not assumed or inherited because the successor
state will have the option to assume it or not. Do not think that all
treaties involve unfavorable obligations because the predecessor state
may be a favored nation in a treaty and thus the successor state may
want to assume.

12 | U N I V E R S I T Y O F S A N C A R L O S
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
What acts are done by successor states after succession to signify the
chosen option?
Not aware of any specific form on how it is done. An acceptable act that
the government will do will be a mere issuance of a proclamation as it
would already suffice. Under Australia vs. France, unilateral act of a state
would bind the State, thus a mere proclamation that you are succeeding
the treaty entered by the predecessor state would bind the successor.
If after succession, the state is still silent about its option, what will be
the presumption?
Lotus case provides a state can only be obliged and therefore its
sovereignty be limited, only to the extent that there is a clear
International law or conventional law that restricts it.
So when it is silent as to whether it is bound by a treaty, then the
presumption is it is not bound because that is what is presumed by law.
Restriction to ones sovereignty is never presumed.
Effects of State Succession
1. Transfer of allegiance of inhabitants (thats an expected
consequence)
2. Political laws are automatically abrogated. Non- political laws are
deemed continued unless expressly repealed or inconsistent with
domestic laws of new sovereign.
3. Public property are acquired. Torts liability are not acquired the
new sovereign has option to assume liability
4. Treaties of predecessor state are not binding on new sovereign
except those dealing with local rights and affecting territory (e.g.
servitudes and boundaries)
GOVERNMENT SUCCESSION
Government succession could take place ether through:
1. Revolution (non- peaceful means of changing government), or
2. Changing the Constitution by adopting a new system (peaceful
means)
So when we have elections, will that involve a change in government?
No, it is only a change in administration.
Effects of Government Succession
1. All rights of predecessor government are inherited by the new
government
2. If change is by peaceful means, new government inherits all
obligations
3. If change is by violent means, new government has the option to
reject political and personal obligations, but not those arising out
of regular administration of government.
Bretch: We should distinguish one from another. Regardless of how a state
succeeds another, the successor always has the option whether or not to assume
the obligations of the predecessor state. In the case of government succession,
we must make a distinction.
First, all the rights of course are obviously inherited by the new government. But
in the case of obligations, we distinguish peaceful change of government and non-
peaceful change of government.
If change is by peaceful means
The new government also inherits all the obligations.
If change is by violent means
The new government has the option of rejecting obligations provided these
obligations are either political or personal obligations. Obligations arising out of
regular administration of government must be assumed.
Example of political obligations
De jure government must have resisted the revolutionary movement and in the
course of de jure governments effort to fight the revolutionary movement, it might
have incurred obligations such as purchase of weapons or strengthening of
military. The successor government, by common sense, should be given the option
whether to assume it or not.
13 | U N I V E R S I T Y O F S A N C A R L O S
Example of personal obligations
Those obligations incurred by the government not for some valid and legitimate
public purposes but personal to the administrators, like borrowing money from the
World Bank which had not been used for public purposes and therefore corrupted
and thus personal.
Borrowings of Marcos from IMF which was not proven to be used for public
purposes, Cory however decided to assume the obligation where we have
supposedly the option not to assume. Unlike Poland, which chose not to assume
the obligation in exchange to IMFs conditions on how the money shall be used
but still, this is to redound to the benefit of the public.
INTL ORGS, INDIVIDUALS, COMPANIES AND GROUPS
INTERNATIONAL ORGANIZATIONS
INTERNATIONAL ORGANIZATIONS
A. Established through the agreements by States (e.g. UN)
B. International Organizations are different from NGOs which are
established by individuals or private organizations (e.g.
Greenpeace and Amnesty International)
C. See again Reparation for Injuries case where UN was recognized
as having legal personality to espouse a claim.
INDIVIDUALS
INDIVIDUALS
Generally considered "objects" of international law, especially insofar as
international rights are concerned.
(Cf: "Espousal claims" by States)
(Cf: Right to self-determination")
Insofar as international duties are concerned, they may be called
subjects" of international law to the extent that their breach of
international law is internationally actionable. (e.g. Individual
Responsibility in IHL)
How may individuals rights be brought before the international
tribunal?
The only way individuals rights will be brought before the international
tribunal is when the State will espouse the claim of the individual. This
comes usually in the form of diplomatic protection.
When may a State validly exercise the Right to Diplomatic
Protection?
This involves situation where injuries are suffered by foreigners in the
territory of another state.
1. There should be a nationality link
2. There must be observance of prior exhaustion of administrative
remedies at the domestic level
1 There should be a nationality link
Barcelona Traction case
There should be the nationality link for a state to be able to exercise
diplomatic protection. In other words, it should be exercising diplomatic
protection over its own national.
But nationality principle in international law is not similar to citizenship.
Precisely in the Nottebohm case, the requirement is not citizenship but
effective nationality.
Nottebohm case
Facts: Nottebohm was a German national who has business in
Guatemala for 34 years. Germany was engaged in war against Poland.
If theres war, one of the rights of states engaged in war would be to
forfeit properties of nationals of the enemy state.
Nottebohm wanted to acquire another citizenship so that he would not
be subjected to forfeiture of assets. He went to Liechtenstein and asked
that he be granted citizenship. He went back to Guatemala but he was
arrested because he was a national of an enemy state, but Lichtenstein
said that he was no longer a German national and that there was
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
violation of international law because he was subjected to a process
applicable only to nationals of enemy state.
The personality of Liechtenstein was questioned whether it has the
authority or right to claim diplomatic protection in favor Nottebohm.
Liechtenstein said that it has personality because Nottebohm was a
citizen now of Lichtenstein.
Issue: Whether Liechtenstein has the right to claim diplomatic protection
in favor of Nottebohm.
Held: No. It is true that every State has the right to determine who will
be their citizens and come up with their citizenship laws. However, at
the international level, the citizenship law of any state will not
necessarily bind the international tribunal. Thus, for purposes of
diplomatic protection, the same is not conclusive. What is conclusive is
the effective link or otherwise known as the effective nationality
principle.
In this case however, it was observed that Nottebohm had more link
with Guatemala than in Liechtenstein. He never stayed in Liechtenstein
for a long period thus for purposes of diplomatic protection, his
nationality was not that of Liechtenstein.
2 There should be observance of prior exhaustion of
administrative remedies at the domestic level
You cannot right away espouse a claim if you have not yet exhausted
all remedies available at the domestic level.
If it is about questioning the detention of a national, seek first relief from
the courts of any appropriate tribunal or agency at the domestic level.
When there is failure to obtain such demanded relief, then that will be
the time that you will be able to exercise diplomatic protection.
JURISDICTION
KINDS OF JURISDICTION
JURISDICTION
Is jurisdiction territorial? If yes, in what instances may
jurisdiction be exercised extra-territorially?
In answering this question, there is a need to understand first what is
meant be jurisdiction. Jurisdiction is all-encompassing. Its not just about
criminal or even jurisdiction of the court. It could involve jurisdiction of
an enforcement body of a state or agency of executive department. That
is why in international law, we distinguish different kinds of jurisdiction.
Kinds of jurisdiction:
1. Jurisdiction to prescribe law
The authority of a state to make its policy applicable to persons or
activities (See: Restatement 402, except for universal jurisdiction,
which is in Restatement 404)
2. Jurisdiction to adjudicate
The authority of the state to subject particular persons or things to
its courts)
3. Jurisdiction to enforce
Concerned with the authority of a state to use the resources of
government to induce or compel compliance with its law. This
includes authority to arrest.
1 Jurisdiction to Prescribe Law
Art. 14 of the Civil Code
Penal laws and those of public security and safety shall be obligatory
upon all who live or sojourn in the Philippine territory, subject to the
principles of public international law and to treaty stipulations.
In other words, our laws shall be made applicable to all persons who
live and sojourn in the Philippine territory.
14 | U N I V E R S I T Y O F S A N C A R L O S
You know that there is jurisdiction to prescribe law particularly taking
for example practices of the United States. Their statutes may be applied
to persons even outside the US. In our case, we do extend certain laws
extra-territorially. That is why we cannot say jurisdiction is only
territorial.
Examples:
1. The application of income tax laws We distinguish between
residents and non-residents Filipinos. For resident citizens, we
impose income tax for income earned within and without. For non-
resident citizens, we only impose tax for income earned within. For
income earned outside, that is extra-territorial application of our
income tax laws.
2. Laws dealing with status We apply nationality principle. So,
wherever our citizens may be found, under nationality principle,
their status married or single, will be observed by them even
outside the Philippines.
2 Jurisdiction to Adjudicate
This is jurisdiction of the court. We will talk about extra-territorial
jurisdiction of the court with respect to criminal jurisdiction.
3 Jurisdiction to Enforce
Like implementing warrants of arrest abroad. It can be done with the
permission of the state where the subject of the warrant may be found.
If it is without consent, that is another story. We will talk about the
consequences later on.
In other words, jurisdiction may be applied or exercised territorially or
extra-territorially depending on the context.
CRIMINAL JURISDICTION
PRINCILES/THEORIES OF CRIMINAL JURISDICTION
PRINCIPLES/ THEORIES:
A. Territorial Principle (Subjective vs. Objective)
B. Nationality Principle (Active vs. Passive)
C. Protective Principle (vs. diplomatic protection)
Bretch: This is different from diplomatic protection because in diplomatic
protection, you bring the case at the international level. In protective
principle, we are only talking about the jurisdiction of the court with respect
to acts committed outside the territory and under a narrowly defined
conditions.
Under protective principle, a state can legislate crimes that it considers to be
a threat to its security, integrity or economic interests, regardless of the
place of the commission of the crime. Common examples include: espionage,
counterfeiting and terrorism.
D. Universality Principle (Cf: "erga omnes norms")
It is for violation of erga-omnes norms.
TERRITORIAL JURISDICTION
TERRITORIAL JURISDICTION
State has jurisdiction over property, persons, acts, or events occurring
within its territory.
A. Subjective Territorial Principle
Jurisdiction to prosecute or punish crimes commenced within their
territory but completed or consummated in the territory of another
state.
B. Objective Territorial Principle
Certain states apply their territorial jurisdiction to offenses or acts
commenced in another state, but:
(i) Consummated or completed within their territory, or
(ii) Producing gravely harmful consequences to the social or
economic order inside their territory.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Bretch: Caveat: We are not talking about international law here. We are talking
about the approaches by some states, except that even up to now, issues on
jurisdiction have not been settled categorically. Of course, there are portions of
the discussion that may be considered clear.
Example:
Territoriality principle for crimes.
This requires that if the crime is committed in the territory of that state, then the
state has definitely jurisdiction over the crime. But whether this may be expanded
under subjective and objective territoriality, international law has not limit that
with definiteness.
So, to the extent that international law has not limited the exercise and some
forms of it, like extra-territorial jurisdiction, then applying Lotus case, the state
should be permitted to do so.
We are dealing here with sovereign states. If there is a particular act of a certain
state, then there is a need to establish that there is an international law or
conventional international law that restrict that. There is no international law
limiting extra-territorial exercise of criminal jurisdiction, not unless, the crime
involved is covered by a particular regime or convention. In which case, the
practice of state of applying its criminal jurisdiction abroad maybe restricted validly
under pacta sunt servanda.
Illustrative example:
Someone in Canada fires a gun, and hits a person in the US.
A. Canada could prosecute under the subjective territorial principle,
because the act commenced within Canada.
B. The US can prosecute under the objective territorial principle
because the act was completed in the US.
Bretch: In this case, Canada can prosecute under the subjective territorial
principle because it was commenced in Canada and the US can also prosecute
under the objective territorial principle because it was consummated in the US.
There may therefore be a conflict in the exercise of jurisdiction. So, states have to
settle the differences by other means. So, if Canada and US have an extradition
treaty, this issue will be settled by applying the extradition treaty. If this is an
extraditable offense, then if the US will request for extradition and Canada will
grant it, then there will be no issue anymore.
United States v. Vasquez-Velasco (1972)
Facts: Javier Vasquez-Velasco, a member of a drug cartel in Mexico and
several other members, beat and killed John Walker, an American citizen
writing a novel in Mexico and Alberto Radelat, a photographer and U.S.
legal resident.
At trial, the US argued that Vasquez-Velasco and his three co-defendants
committed the crimes to further their positions in a Guadalajara drug
cartel. The murders Velasco was charged with were allegedly retaliatory
actions against a US Drug Enforcement Agency (DEA) crackdown. He
was convicted under U.S. law. On appeal, Vasquez-Velasco argued that
U.S. penal laws do not apply extraterritorially.
Issue: Whether US can apply its penal laws extraterritorially to exercise
jurisdiction over Velasco and his three co-defendants.
Held: Yes. Based on the objective territoriality principle, extraterritorial
application of US penal laws to violent crimes associated with drug
trafficking is reasonable under international law principles, since it is a
serious and universally condemned offense. Despite the fact that the
crimes in this case did not involve the murder of a DEA agent,
extraterritorial jurisdiction is still appropriate because, according to the
government's theory, the cartel members mistook Walker and Radelat
for DEA agents. As in Felix-Gutierrez, the crime was directed against the
United States.
It was also justified under the protective principle under which the
jurisdiction is asserted over foreigners for an act committed outside of
the US that may impinge on the territorial integrity, security, or political
independence of the US.
15 | U N I V E R S I T Y O F S A N C A R L O S
What is the relevance of Vasquez-Velasco?
This is based on objective territoriality principle
Apart from the fact that it happened outside the US territory, the act
has detrimental effects to the US. The acts produced gravely harmful
consequences to the social or economic order inside their territory. It
has produced harmful effects because the killing was directed against
the real agents of DEA particularly and such threatened the security,
territorial integrity and political independence of the US.
This is also justified under the protective principle
The US can lawfully exercise jurisdiction because for US, an act
committed outside the US that may impinge on:
1) Territorial security since this involved an act directed against
DEA, it would affect the efforts of the US in combatting drug
syndicates.
2) Political independence of the US extra-territorial application of US
penal laws to violent crimes associated with drug trafficking is
reasonable under international law principles.
Despite the fact the crime in this case did not involve the murder of an
actual or real DEA agent, extra-territorial jurisdiction is still appropriate
because the act is really directed against the DEA as an institution.
Hence, it is considered an act directed against the US.
Hartford Fire Insurance Co. vs. California (1993)
Re: Protective principle may cover not just criminal cases but even torts
or non-criminal cases. Protective principle has therefore a more general
application than the territoriality principle.
Facts: Claiming that Hartford Fire Insurance and other London-based
reinsurers had allegedly engaged in unlawful conspiracies to affect the
market for insurance in the United States, California instituted an action
against Hartford, under the Sherman Act, which the reinsurers sought
to dismiss under the principle of international comity.
Issue: Whether a practice that may not amount into a crime, such as a
tortious practice in London may be a subject to a case in the US.
Held: Where a person subject to regulation by two states can comply
with the laws of both, jurisdiction may be exercised over foreign conduct
since no conflict exists. The Sherman Act applies to foreign conduct that
was meant to produce and does in fact produce some substantial effect
in the United States. Even assuming that a court may decline to exercise
Sherman Act jurisdiction over foreign conduct, international comity
would not prevent a U.S. court from exercising jurisdiction in the
circumstances alleged here.
Bretch: This does not involve a mere insurance, otherwise this would only affect
the economy of England. This involved re-insurance practices.
For example, if there is an insurance in the US, and it is re-insured in London,
some re-insurers in London would enter into agreements with other companies.
According to the US, this would then affect the market of the insurance companies
of the US which has reinsurance policies with companies in London, consequently
affecting the economy of the US.
Territoriality principle in either subjective or objective forms will be applied in
criminal case. But as shown in this case, a law that is termed the Sherman Act
may be applied extra-territorially, and so this protective principle may cover not
just criminal cases but even torts, non-criminal cases. Protective principle has
therefore a more general application than territoriality principle.
What about jurisdiction to enforce this decision?
There are cases where the wronged states exercised jurisdiction but
werent able to enforce jurisdiction because it would affect the
sovereignty of other states.
One of the problems in international law is enforcement. While there
may be an agreement a court has validly exercised jurisdiction, but the
enforcement of its decision may encounter problems later.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
In the same manner that even the position of the ICJ may encounter
problems with regard to enforcement because of sovereignty of states.
That is why enforcement of international law would generally rely on
cooperation between states.
If a person is found in the territory of other states which has extradition
treaty, the two states can avail of the extradition mechanism or if upon
the request of the other state where the court is located and the other
states would voluntarily enforce through its own police or forces, then,
that can be done.
That is why we have an international police INTERPOL for example that
may be requested to implement processes that have been allowed by
other states. But if the other states would not, this would amount to
another form of rendition if we are to secure or obtain jurisdiction over
the person of another and if we want to bring the person to the
jurisdiction of the court then it can be done in various ways.
Extradition is the most common way. Voluntary rendition is also another.
And another one practiced by US is abduction. Consent is not anymore
given, that is why they have to be abducted. There could be other ways
such as deportation, extradition, voluntary arrest and last one would be
abduction.
Hence, having jurisdiction is one and enforcement of the decision of the
court is another.
NATIONALITY PRINCIPLE
NATIONALITY PRINCIPLE
A. Active Nationality
States may regulate the conduct of their nationals wherever they
are in the world. This pertains to the nationality of the actor.
B. Passive Nationality
A state may prescribe law for situations where its nationals are
victims of the conduct being regulated. This has limited scope,
usually applicable to terrorist attacks. This pertains to the
nationality of the victim.
We are talking here of jurisdiction to adjudicate not
enforcement? But theres no other principle/regime to follow
when it comes to enforcement but territoriality?
Theres also active and passive nationality in jurisdiction to prescribe.
But as to enforcement, the problem with enforcement really is that, the
state extends its exercise of power to the territory of the other state.
Sometimes, one state may provide in its domestic law to enforce even
outside, but if such enforcement is actualized or realized in the territory
of the other, then usually it will pose a problem on sovereignty issues if
the other states would not readily cooperate.
So true, there is no specific or clear regime recognizing jurisdiction to
enforce which can be validated without the consent of the other state.
This is because the arm of the government is extended in the territory
of another. Jurisdiction to enforce may only be realized or actualized
probably when states have established a treaty providing for a
framework. When that happens, there is consent.
For purposes of nationality claims and in particular as to
diplomatic protection, the leading case is Nottebohm. Effective
nationality theory is applied not citizenship.
Nottebohm Case (Liechtenstein vs. Guatemala, ICJ)
Re: Real and effective link with the state of nationality is necessary.
Effective nationality theory
Nationality as a basis for exercising jurisdiction must be real and
effective to give a right to a state who has conferred it. Right to
diplomatic protection and protection by means of international judicial
16 | U N I V E R S I T Y O F S A N C A R L O S
proceedings only arises when proper nationality link exist between the
individual concerned and the state seeking to exercise such rights.
ICJ: Guatemala has referred to a well-established principle of
international law that "it is the bond of nationality between the State
and the individual which alone confers upon the State the right of
diplomatic protection".
The courts of third States, when they have before them an individual
whom two other States hold to be their national, seek to resolve the
conflict by having recourse to international criteria and their prevailing
tendency is to prefer the real and effective nationality.
PROTECTIVE PRINCIPLE
PROTECTIVE PRINCIPLE
A state can legislate crimes that it considers to be a threat to its security,
integrity or economic interests regardless of the place of the commission
of the crime.
Common examples include: espionage and counterfeiting currency.
Bretch: As part of emerging CIL, terrorism may also be considered (this is still to
be confirmed). In the case of Osama Bin Laden, US applied the passive nationality
principle and protective principle.
Restriction to state sovereignty is not presumed
When we study jurisdiction, we analyze the practice of states and their
approaches to the exercise of criminal jurisdiction. The exercise of
jurisdiction is the exercise of sovereignty. Jurisdiction is the
manifestation of a states sovereignty. The moment a state adopts a
particular method in exercising criminal or civil jurisdiction, the only way
that may be limited or restricted is by way of conventional or clear
customary international law restricting the exercise of the jurisdiction.
Normally and in many cases, it is acceptable.
Bretch: In the US, the state can exercise jurisdiction that are a threat to its
security, territorial integrity or economic interest (in particular with US). Some
jurisdiction will be more conservative in limiting their protective principle of
jurisdiction only to issues of security and probably integrity but not so much of
economic interest. The US is very aggressive and bold in asserting criminal
jurisdiction extraterritorially that it would exercise jurisdiction even if the act or
conduct affects economic interest of the US.
Restatement 402
A state has jurisdiction to prescribe the law with respect to certain
conduct outside its territory by persons not its nationals that is directed
against the security of the state or against a limited class of other state
interest.
How was the protective principle adopted by the US in its
restatement of foreign relations 402?
Other State interests may be broad since the US welcomes the
possibility of formation, evolution, development of whatever interest
may be in danger. But most authorities would make a caveat that the
protective principle is understood to be not a catch all principle. It is
usually limited to acts that will endanger security and now emerging
even terroristic acts, acts violating customs and immigration laws,
perjury before consular officials and in the US in particular, economic
interest.
United States v. Columba-Collela (1979)
Facts: A British citizen living in Mexico agrees to sell a carnapped car
that is in Mexico but was stolen from Texas by someone else.
Carnapping done in the US
Issue: Can the British citizen be prosecuted under US law?
Held:
Protective Principle?
The protective principle does not bear on this case because the case
does not involve a threat to the national security or directly interfere
with government operations.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Objective Territoriality Principle?
No. The man did not steal the car and while the selling of the car may
make it harder for the victim to get his car back, this connection to harm
the US is with only minimal effect. The man would probably be punished
for selling the stolen car, so no connection to the harm in the US.
Passive Nationality Principle?
(Jurisdiction over the offender for cases committed for its own nationals)
Passive personality does not apply here because passive personality
covers only a narrow category of crimes that does not usually include
murder, let alone car fencing.
How is this different from the case of Vasquez?
The case of Vasquez is different because it was considered as a case
against the institution, the department of Drug Enforcement Agency. It
was not treated simply as a murder but an offense against the
institution. It is not applicable in the case of murder more so, in the case
of car fencing.
United States v. Bowman
Re: Even as against United States own citizens, the protective principle
may still apply.
Facts: The indictment charged Wry (Master) and bowman (Engineer),
officers of the Dio (owned by the US), for planning to order, through
Johnston & Co., and receipt for, 1,000 tons of fuel oil from the Standard
Oil Company, but to take only 600 tons aboard, and to collect cash for
a delivery of 1,000 tons through Johnston & Co. from the Fleet
Corporation, and then divide the money paid for the undelivered 400
tons among them (with two other defendants).
Held: A criminal statute dealing with acts that are directly injurious to
the government and are capable of perpetration without regard to
particular locality, and subjecting all who commit them to punishment,
is to be construed as applicable to citizens of the United States upon the
high seas or in a foreign country, though there be no express declaration
to that effect.
Bretch: This involves malversation and misappropriation of fuel oil in a ship or
vessel. According to the US court, even as against its own US citizens, the
protective principle may still apply. This decision was before the Restatement.
In the restatement it says certain conduct outside its territory by persons not its
nationals that is directed against the security of the state or against a limited class
of other state interest. We notice that the restatement states persons not its
nationals.
This ruling in US v. Bowman can be rationalized with the Restatement because the
Restatement states that protective principle applies to foreign nationals, but it did
not say it applies to foreign nationals only.
There is a distinction between protective principle declared by the US as applicable
to foreign nationals and statement that it is not applicable to its own citizen. There
is never a statement that it is not applicable to its own citizens. Therefore that
statement, persons not its nationals, should be construed as permitting
application permitting protective principle as against foreign nationals but without
necessarily prohibiting the application of protective principle even as against its
own nationals.
United States v. Romero-Galue
Re: Possession of narcotics intended for the US even if this was
committed by foreign nationals on foreign vessels in high seas.
Held: US could still exercise jurisdiction over the Panamanian ship even
if there is no treaty because the protective principle would allow the US
to prosecute foreign nationals on foreign vessels on the high seas for
possession of narcotics (which in some way inherently harmed the US).
The protective principle permits a nation to assert jurisdiction over a
person whose conduct outside the nation's territory threatens the
nation's security or could potentially interfere with the operation of its
governmental functions.
17 | U N I V E R S I T Y O F S A N C A R L O S
Bretch: By putting and other state interests in the Restatement, a lot can fit in
this such as the policy of US to combat drug syndicates. Combatting drug syndicate
is part of governmental operations. If you commit an act that relates to drugs,
then that would interfere its governmental function and therefore the protective
principle will apply.
Attorney General of Government of Israel v. Eichmann (1961)
Facts: Israel tried and convicted Adolf Eichmann, who had been
captured by Israeli agents in Argentina and brought to Israel for trial.
Eichmann was charged of committing crimes against Jewish people,
crimes against humanity, war crimes, and membership in hostile
organization as defined in Israels Nazis and Nazi Collaborators
Punishment Law. Eichmann argued that the court had no jurisdiction
because he was captured in a foreign country in violation of international
law.
Bretch: Eichmann was one of those in charge of purging in Germany committing
genocide against Jewish nationals. More than 4 million Jewish nationals were killed
as a result of that operation and Eichmann was instrumental, having held
significant higher position in the military hierarchy in Germany. He was one of
those wanted by Govt. of Israel.
Eichmann was found in Argentina through some secret agents. He was in
Argentina and he was forcibly abducted in Argentina without the consent of
Argentinian Govt. He was forcibly brought to Israel and was prosecuted for crimes
against humanity and war crimes among others and he was charged in domestic
court for the killing of the Jewish people in Germany. Argument of Eichmann was
that the court of Israel cannot acquire jurisdiction because he was captured in a
foreign country violating an international law and the crime was not committed in
the territory of Israel.
For the purposes of applying the protective and universal jurisdiction:
Court: From the point of view of International law, the power of the
state of Israel to enact the law in question is based on a dual foundation:
the universal character of the crimes in question and their specific
character intended to exterminate the Jewish people.
Bretch: Out of all principles of jurisdiction (objective subjective territoriality,
nationality principle both passive and active nationality, protective principle and
universal jurisdiction) the least controversial is Universal jurisdiction. It may be
controversial only for situations where it may apply to new methods of committing
crimes or new class of crimes like terrorism. Universal jurisdiction is already
established for other crimes such as torture, genocide, piracy, slavery. It becomes
contentious if it applies to new crimes like terrorism. It was considered permissible
for courts of Israel to exercise jurisdiction.
US v. Osama Bin Laden (2000)
Facts: Defendants are charged with a variety of crimes stemming from
the August 1998 bombings of the US Embassies in Nairobi, Kenya.
Court: The passive personality principle is increasingly accepted as
applied to terrorists and other organized attacks on a states nationals
by reason of their nationality, or to assassination of a states diplomatic
representatives or other officials (citing restatement 402).
Universal jurisdiction is increasingly accepted for certain acts of
terrorism (Restatement 404). Both universal jurisdiction and the
protective principle are bases for jurisdiction by the United States over
the death of the foreign citizens.
Bretch: Where was the crime committed? Where was terrorism committed? Kenya
but involving the embassies of US. Crime was committed in Kenya but the victims
were US nationals and the territory of US. Passive nationality principle was
accepted.
Pinochet Case
Facts: Pinochet was a former dictator of Chile. He is an anti-Spaniard.
He tortures Spaniards in Chile. When a new democratic government was
installed, Pinochet went to UK for medical treatment.
When Spanish courts subjected him, there was a hearing of whether a
warrant upon request of Spanish government be implemented in UK as
against Pinochet. There was a hearing in UK of whether or not the
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Spanish government could acquire criminal jurisdiction over Pinochet to
justify the issuance of warrant in UK.
What were the methods or forms of criminal jurisdiction
applied in this case?
A. Spain relied on Universal Jurisdiction to argue for Pinochets
extradition from England to Spain. It also relied on passive
nationality because Spanish citizens were killed in Chile. Passive
nationality/personality was found to be more persuasive than
Universal Jurisdiction.
B. No territorial Jurisdiction since the torture happened in Chile,
not Spain. Both objective and subjective because the acts of
torture was committed in Chile.
C. No active Nationality Pinochet was not Spanish, but a national
of Chile.
D. No protective Principle there was no imminent threat to Spains
national security from Spain. It was an act of torture committed
against Spanish nationals.
EXTRADITION
RENDITION
RENDITION
Rendition means to deliver an individual from one state to another or
surrender if applicable to persons. Extradition is one of three basic forms
of rendition.
Three methods of rendition in international law:
1. Extradition
2. Deportation
3. Abduction of foreign nationals aboard (this is controversial)
How do you distinguish extradition from deportation?
Deportation
A unilateral act of the state because it is not dependent upon the request
of a state not dependent on a treaty. The destination of the deportee is
irrelevant because the act of the deportation is simply expelled of the
territory of a particular state. Wherever you go will no longer be the
business of the deporting state.
Extradition
The requesting state expects under pacta sunt servanda to receive the
extradited individual. There may be a request.
Three points of distinction remember:
1. Unilateral
2. Not dependent on a treaty
3. Destination of the deportee is irrelevant
EXTRADITION
EXTRADITION
Conditions:
1. It must be pursuant to a treaty
2. The person to be extradited had been charged or convicted of
extraditable offense
3. Extraditable offense is either (1) listed or (2) covered by Double
or Dual Criminality Principle/Clause
Whats the difference between listed offenses and offenses
covered by double or dual criminality principle/clause?
Normally, the states party to the extradition treaty enumerate the
offenses covered by the extradition. States are aware that there may be
some crimes that will be punished by one state as a result of a new
form, manner or way of committing a crime, like for example you
entered into an extradition treaty in 1970s.
18 | U N I V E R S I T Y O F S A N C A R L O S
I dont think the people during 1970 have anticipated cybercrime. The
best approach is to adjust the provisions or terms of the extradition
treaty. The other approach is to keep on adjusting it every now and
then. They will provide for those offenses not covered by or not included
in the list, they may still be considered extraditable offense, if such
offense is punished by states parties to the extradition treaty. So, if it is
punished in State A and punished in State B, it becomes extraditable
offense only if that is the intention of the parties.
Basic Principles in Extradition
A. The obligation to extradite is treaty-based
B. Pacta sunt servanda applies
C. Dual purposes: 1. Prosecution, 2. Execution
D. Could not cover political offenses cf: Attentat Clause
E. Rule of Specialty must be followed
F. Ex post facto law prohibition does not apply.
1 The obligation to extradite is treaty-based.
No treaty, no obligation to extradite. But if voluntary extradition, then
there is no problem. But if a State refuses to extradite, can we compel?
If there is no treaty, then no compulsion.
2 Pacta sunt servanda applies
This means that if there is a treaty and all of the conditions for the
application to the extradition treaty are present, there is a person
charged or convicted and the offense is extraditable, yet the other party
refuses to extradite, then such State violates the principle of Pacta Sunt
Servanda. The refusal is not just invalid under International Law but can
also constitute as internationally wrongful act (IWA).
If it constitutes IWA, this will trigger the application of another regime
in PIL, the secondary regime of State Responsibility. What happens
then? There may be consequences of secession of the act if it is still
continuing, with a promise of non-repetition, reparation and restitution.
The party violating the treaty may open itself as well to a possibility of
the other party being permitted to use counter-measures.
3 Could not cover political offenses cf: Attentat Clause
This is CIL. Why? Because there is the right to asylum which is also CIL.
Political offenses are closely link with the exercise of the freedom of
expression therefore the international covenant of civil and political
rights, for example, may be applicable in this situation. If one is granted
asylum, any extradition treaty will not apply.
Attentat Clause is usually found in an extradition treaty. Parties will
agree that since extradition treaty should not cover political offenses,
they would provide there a reservation in a way, that the mere killing or
assassination of a head of state/government should not be necessarily
or automatically considered political offense. Thats why theres an
extradition hearing.
4 Rule of Specialty must be followed
In order to comply and to make sure that due process is also observed,
even for criminals or accused individuals, there is Rule of Specialty.
Under this rule, the requesting state is not permitted to prosecute the
extradited individual for offenses that is not covered by the request.
So if say, the extraditable offense is murder and the requesting state
requested with the ground of murder, thats fine. But if the extradited
person arrives and the requesting state prosecutes him/her for
kidnapping or any other offense, that will violate the due process of the
accused in the extradition proceeding.
5 Ex post facto law prohibition does not apply.
Example: The treaty was entered into by state parties A and B in 2010
which entered into force also in 2010. X committed the crime in 2005.
In 2011, he was prosecuted for that crime. Can you invoke the ex post
facto law prohibition, such that X cannot be extradited because when
he committed the crime, the treaty did not yet enter into force?
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
No. It is not applicable because an extradition treaty is not a penal law.
It is just a mechanism of rendition. It does not impose a penalty.
Example:
X, a Filipino, had committed an offense in the US. He was not arrested
there but he was able to flee and stay in the Philippines. The case for
estafa, fraud and other criminal cases were filed in US. When the US
found out that X in the Philippines, they requested for extradition. The
Philippines honored the request and conducted extradition proceedings
in the Philippines.
Pursuant to the proceeding, a warrant was issued against X and he was
arrested and detained in a facility. X, however, applied for bail. RTC of
Makati City refused to issue or grant bail on the ground that an
extradition proceeding is not a criminal proceeding and the right to bail
pertains only to an accused. Is the trial court judge correct in denying
the petition for bail?
Mark Jimenez case
Mark Jimenez case the one about Hong Kong, SC affirmed the decision
of the RTC that extradition proceeding is not a criminal proceeding. The
purpose of extradition is to simply surrender or bring the person of an
accused to the territory of the requesting state. There is no imposition
of penalty or rendition of conviction.
But a few years later, SC became more liberal because they emphasize
on understanding the importance of an individual now in international
law. States began to treat or see individuals in a different way,
recognizing human rights now of individuals as indeed universal in
character. Therefore, states are mandated to observe the principle of
international human rights law and the ICCPR Art 19 which includes the
freedom of individual from arbitrary detention.
Liberty of an individual is a recognized right under the international
human rights law. SC said, while it is true that extradition proceeding is
not a criminal proceeding, it has the earmark of a criminal proceeding.
This is because the respondent in the extradition proceeding will be
subjected to arrest and detention. And to the extent that an individual
enjoys human rights in the international level, may be restricted of his
movements or his freedom will be restrained, then right to bail must be
granted. Not because extradition proceeding has been perceived as a
criminal proceeding but simply because it restricts, nonetheless, the
freedom or the liberty of an individual.
ABDUCTION
ABDUCTION
Abduction of criminals in the territory of another state is understood as
intervention and therefore violates customary law and the UN charter
[Art 2 (4)].
Bretch: Individuals freedom or liberty under international human rights law
should be respected. Prohibition of torture under ICCPR is a non-derogable right.
It can only be justified if done invoking self-defense. But, the illegal
apprehension will not affect the jurisdiction of the apprehending state
(male captus, bene detentus) unless the defendant was secured through
torture, brutality or similar outrageous conduct.
Question:
There is a criminal and then he is in the territory of a state but must be
prosecuted in another state and then abducted. Has the abducting state
committed a violation in international law?
Most scholars would agree that abducting a criminal in abroad is
intervention. If there is consent, then no intervention. However, there
is a principle that first originated in domestic legal systems, particularly
USA male captus bene dentus which is now a general principle of law.
This means wrongfully captured, validly detained. The principle states
that even if the arrest of the criminal was in violation of law, it does not
19 | U N I V E R S I T Y O F S A N C A R L O S
affect the jurisdiction of the court. And therefore, the detention is
considered valid even if the arrest is irregular.
Do you not think this principle is irregular?
No. Male Captus Bene Detentus is justifiable for two reasons:
1. Because fundamental individual rights such as the right to due
process is still recognized. In cases of abduction, the person is still
given the right to be heard, the right to counsel and the right to
present witnesses. When he goes to trial, he is still accorded with
the threshold of due process that international law demands.
2. Because if you question the jurisdiction of the court, you should
question the jurisdiction on the basis of a judicial function involved.
In this case, an arrest is done by law enforcers from the executive
department. So the principle that no one should benefit from its
own wrongdoing will not apply because the irregularity of the
exercise of the functions of the executive department should not
affect another branch of the government. That is why it will not
affect the jurisdiction of the court.
Attorney General of Government of Israel v. Eichmann (1961)
Israeli agents had abducted Eichmann from Argentina without consent
of Argentinian Government. Eichmann argued before the Israeli court
that the illegal act of abduction took away the jurisdiction of Israeli
courts to try him and he should be returned to Argentina to be tried
there.
Argentina complained to the UN about this abduction, demanding not
only compensation for unlawful intervention on its territory, but also for
the return of Eichmann. The issue was however mooted by an
Agreement entered into by Argentina and Israel.
Ker v. Illinois
The treaties of the extradition to which the US are parties do not
guarantee a fugitive from the justice of one of the countries an asylum
in the other. They do not give such person any greater or more sacred
right of asylum that he had before. They only make a provision that for
certain crimes, he shall be deprived of that asylum and surrendered to
justice, and they prescribe the mode in which this shall be done.
How far such forcible transfer of the defendant so as to bring him within
the jurisdiction of the state where the offense was committed may be
set up against the right to try him is the province of the state court to
decide, and presents no question in which this court can review its
decision.
Ker-Frisbie v. Collins
The courts power to try a person for a crime is not impaired with the
fact that he was brought to court through abduction. There is nothing
in the Constitution that requires the court to permit a guilty person to
escape justice just because he was brought to trial against his will.
US v. Alvarez-Machain
The presence of an extradition treaty between the US and another
national does not necessarily preclude obtaining a citizen of that nation
through abduction. It has long been the rule that abduction, in and of
itself, does not invalidate a prosecution against a foreign national. The
only question therefore is whether the abduction violates any extradition
treaty that may be in effect between the US and the nation in which the
abductee was found. Here, the US-Mexican authorities presumably were
aware of the USs long standing law regarding abductions and did not
insist on including a prohibition against abductions.
Bretch: Abducted in Mexico, tried in US. Mexicos argument was that US and
Mexico had an extradition treaty, so it should bar other methods of rendition. US
should have coursed through an extradition system. US said that if there was an
extradition treaty, we should have explicitly prohibited abduction as a mode of
rendition. US also said that when they entered in the treaty, Mexico knew that US
abducts always. But of course this case had highly been criticized. Whether this
practice is acceptable, I dont think so.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
US v. Toscanino
Toscanino was abducted in Uruguay by an agent of the US, taken to
Brazil, and brutally tortured and interrogated for 17 days. He was then
placed on a civilian aircraft bound for the US and arrested on arrival. He
contended that the district court lacked jurisdiction over him because
the circumstances of his arrest. Notwithstanding Ker-Frisbie, the US
Court of Appeals for the Second Circuit agreed, ruling that, if the
allegations were true, they were so shocking to the conscience that due
process required that the district court divest itself of jurisdiction.
Court (through J. Mansfield):
We view due process as now requiring a court to divest itself of
jurisdiction over the person of the defendant where it has been acquired
as the result of the governments deliberate, unnecessary and
unreasonable invasion of the accuseds constitutional rights.
Bretch: The court also said that these acts of torture, brutality should never be
ignored by courts especially by liberal countries. Abducting of an individual is one
thing, subjecting them to torture is another.
US ex rel. Lujan v. Gengler
Government-sponsored abduction, in and of itself, did not constitute
conduct sufficiently shocking to violate due process and therefore did
not trigger the Toscanino exception required more such as kidnapping
combined with torture at the hands of agents of the US Government.
Bretch: The US court did not apply Tuscanino and went back to Ker-Frisbie. You
know why? While the person was detained and blindfolded, there was no proof
that there was torture. The court said that detention and blindfolded are not
enough. They are not brutal. There must be additional outrageous conduct. No
acts that are so shocking that would violate due process that would trigger the
application of Tuscanino doctrine.
IMMUNITY FROM JURISDICTION
IMMUNITY FROM JURISDICTION
IMMUNITY FROM JURISDICTION
Sovereign or state immunity (cf. 2004 UN Convention on Jurisdictional
Immunities of States and their Property [UN Doc A/Res/59/38]
Bretch: The UN Convention on Jurisdictional Immunities of States and their
Property is supposed to be a codification of international law on immunities of
state as an entity and its properties. However, in 2009 there were only about 6 or
less than 10 to ratify the convention. There is still hesitation to ratify this
convention.
Relevance of the topic on jurisdiction
We talked about the concept of sovereignty, why talk about jurisdiction?
Because jurisdiction is the manifestation of sovereignty. If you are a
sovereign state, then you can exercise jurisdiction. It can be exercised
extra-territorially subject to the condition of genuine connection.
Part of the concept of sovereignty is the understanding that each state
is co-equal. Par en parem non habet imperium. Because states are co-
equal, no state can exercise jurisdiction over the other in the territory of
that state. This is where immunity from jurisdiction comes in.
A. Immunity from suit
B. Immunity of head of state
C. Immunity of former head of state
D. Immunity of foreign ministers
E. Immunity of diplomats and consuls
F. Immunity of international organizations
Immunity from jurisdiction may be applied either through the
application of CIL or treaty.
This regime may be applied through the application of CIL or application
of treaty-based international law. States can enter into treaties with the
intent to confer certain regimes of immunity to certain individuals. Ex.
State A and B enter into a treaty whereby a particular office which is not
public in character but agreed upon by states that that office, its
20 | U N I V E R S I T Y O F S A N C A R L O S
premises and the people operating or manning that office will be
immune from the jurisdiction of the host state. The immunity here is
treaty-based because these are not diplomats, head of states, etc.
Take note: What we will be talking about are immunities and privileges
that are usually CIL in character and as can be gleaned from the
Convention of Diplomatic and Consular Relations.
The rules on jurisdictional immunity have been evolving and states
cannot agree on what CIL to codify until 2004. The Convention on
Jurisdictional Immunities of States and their Property.
Read: Sovereign or State immunity
(cf. 2004 UN Convention on Jurisdictional Immunities of States and their
Property [UN Doc A/Res/59/38]
Less than 20 articles. READ.
This Convention is supposed to be a codification of international law on
immunities of state as an entity and its properties. However, in 2009
there were only about 6 or less than 10 to ratify the convention. There
is still hesitation to ratify this convention.
Codified the CIL of Doctrine of Qualified Immunity
State immunity is not absolute
The immunity of the State is not anymore absolute. It will apply only to
acts performed by that state in its governmental, public or political
functions. If otherwise, the doctrine of state immunity will not apply.
State immunity from suit in international law and domestic law
are different
Before we apply state immunity from suit in the domestic level, we have
to check first our domestic laws regarding it.
State immunity from suit may contemplate of a situation where a citizen
files a suit against the state in the court of that state. What kind of suit
may or may not prosper consult the domestic legal system of that
state because there is no uniform practice.
In the Philippines
Sate immunity from suit is limited to suits where it involves an obligation
on the part of the government to satisfy the judgment of that suit
assuming the plaintiff wins, when the judgment compels the
government to pay in the form of damages (monetary) or public
property.
If the basis of the claim is contract the State has descended into the
level of a private individual. Thus, the state can be sued ex-contractu,
but requires prior exhaustion of remedies. Go first to the Commission on
Audit. If they deny your claim, thats the time you go to court within 60
days.
Under International law
In International Law, it is not usually the case that the state is deemed
to have descended into the level of a private individual if it enters into a
contract. We apply the doctrine of qualified immunity. Under this
doctrine, we distinguish between jure imperii and jure gestionis. This is
CIL. The doctrine is CIL and the act of distinguishing is also CIL. What
is not CIL are the methods of determining or characterizing the function
as public or private.
What situation is contemplated: Suit filed by a person in the court of
another and impleading another State.
DOCTRINE OF QUALIFIED IMMUNITY
DOCTRINE OF QUALIFIED IMMUNITY
(Restrictive Theory of State Immunity)
The immunity of the sovereign is recognized only with regard to public
acts or acts jure imperii of a state, but not with regard to private acts or
acts jure gestionis.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Distinguish between jure imperii and jure gestionis
What is the test to determine whether it is a public or private function?
A. Nature test
B. Purpose test
State immunity from suit contemplates of a situation where a domestic
court is required to apply state immunity from suit principle. It will vary
depending on which state or which court the case is pending. If this is
in the USA, based on observation, the USA would apply the nature test.
Nature test
It is not the purpose of the contract that governs the character of the
function involved, but whether the nature of the transaction can be done
or undertaken by a private individual or entity. If it can, then the nature
of the contract is private.
Example: Contract of purchasing cement. Can a private individual do
that? Of course. So if the court would use this test, then the invocation
of state immunity from suit will be denied.
Purpose test
It is not the nature of the contract that will govern, but rather its
purpose. Thus, if the purpose of the purchase of cement is to build a
naval base or any government infrastructure, then it is a public function.
If however, it is for reclamation or other proprietary purposes, then it is
deemed private.
Important: Whether what is used is nature or purpose test is not a
CIL. What is CIL is that we have to distinguish whether jure imperii or
jure gestionis. The application of the two tests will depend on the court
involved.
In the Philippines
The Supreme Court is not consistent whether we are using nature or
purpose test. Among the factors that may affect is the mandatory
requirement of the members of the Supreme Court (70 years old).
The SC had considered the following transaction by a foreign state with
private parties as jure imperii (Government):
1. Lease by a foreign government of apartment buildings for use of
its military officers
2. The conduct of public bidding for the repair of a wharf at a US
Naval Station
3. The change of employment status of base employees
Acts Jure gestionis (Private)
1. The hiring of a cook in the recreation center, consisting of 2
restaurants, a cafeteria, bakery, a store and a coffee and pastry
shop at the John Hay Air Station in Baguio City to cater to American
servicemen and the general public
2. The bidding for the operation of barber shops in the Clark Air Base
in Angeles City
Central Bank v. Nigeria
For the most part, the Act (Foreign Sovereign Immunities Act [FSIA] of
1976) codifies, as a matter of federal law, the restrictive theory of
foreign sovereign immunity under which immunity is confined to suits
involving the foreign sovereigns public acts, and does not extend to
cases arising out of its strictly commercial acts.
Jones v. Min of Interior of Saudi Arabia
Facts: British nationals were tortured in Saudi Arabia. The allegations
were that it was perpetrated by government officials. A civil case of
damages was filed in the domestic court.
Issue: Can state immunity from suit be applied in cases of torture and
where the action filed is civil in nature?
Held: The House of Lords of UK ruled that there was as yet not enough
evidence of state practice which would lead to the conclusion that in
cases of torture, a state would not enjoy immunity from civil
21 | U N I V E R S I T Y O F S A N C A R L O S
proceedings, especially when the acts of torture are perpetrated by state
officials. Immunity in civil proceedings still apply.
Contra-distinguished from the Pinoche case
Involves a former head of state. Act involved is torture. Torture is not
an official act. Prohibition against torture is erga omnes. It is a jus
cogens norm. Thus, it is paramount to the principle of state immunity.
Incumbency of head of state Immunity ratione personae
Immunity of the head of state as a person.
When his term ends Immunity ratione materiae
Immunity of the head of state not as a person. Now we look at the
function. If function is official immunity continues. If not official no
more immunity.
Saudi Arabia v. Nelson
Facts: American employee of a Saudi hospital brought a civil action
against the Kingdom of Saudi Arabia, the hospital, and the hospitals
purchasing agent in US, based on injuries arising from his alleged
detention and torture by the Saudi government and the failure of the
hospital to warn him of the risk of being tortured in his attempt to report
on-the-job hazard.
Held: The court says that the conduct was not commercial as the powers
allegedly abused were those of police and penal officers, which are
powers that no private person has, and are not commercial in nature.
The nature of the conduct of the suit is torture, and that is not something
for which people engage in trade or commerce.
Bretch: Here, Nelson was assigned in a government hospital in Saudi Arabia. He
was complaining because he found out that they were lacking facilities and it was
substandard in security and safety. He wanted to expose the practices of the
government hospital. He was tortured.
The US did not continue with the merits of the case because it was a civil case and
not a case on violation of a jus cogens norm.
Argentine Republic v. Amerdad Hess
Facts: Two Liberian corporations sued the Argentine Republic in a US
district court to recover damages for a tort committed by its armies on
the high seas in violation of international law. The plaintiffs did not bring
suit under the FSIA, but under the Alien Torts Claims Act.
Held: The commercial character of a transaction is to be determined
with reference to the nature of the course of conduct rather than by
reference to its purpose. Basically, its an activity that a private party
could engage in for profit. The government act doesnt necessarily have
to be for profit it has to be something a private party would do in trade
or commerce.
HEAD OF STATE AND DIPLOMATIC IMMUNITY
Take note that the recognition of the person involved whether or not he
is a Head of State is a political question in the territory or in the place
where the suit is filed.
United States v. Nonega
Facts: Noriega was abducted to the United States and brought to trial
for his involvement in cocaine trafficking.
Held: The executive branch (George Bush) did not consider Noriega to
be the head of state of Panama, so he did not receive head of state
immunity. The US had recognized instead Delvalle, and later Endara, as
legitimate heads of state of Panama.
Bretch: Here, there was a de facto and de jure heads of state. Thus, recognition
is entirely discretionary on the part of other states.
Important: Immunity of a current head of state is absolute. But if it is
a former head of state, only acts done in his official capacity will be
immune.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
The commission of a crime against humanity and jus cogens
cannot be done in an official capacity on behalf of a state.
Pinochet case
The House of Lords of UK ruled that the absolute prohibition of torture,
a jus cogens norm overrides immunity afforded to a former Head of
State in criminal proceedings. The commission of a crime against
humanity and jus cogens cannot be done in an official capacity on behalf
of a state.
The House of Lords who determined that Pinochet could be extradited
from Britain to Spain said that if he were still a head of state he would
be immune from prosecution, even for torture.
Rationale for immunity: To assure heads of state that they will be able
to represent their countries and not have to fight off suits while travelling
abroad;
Being a former Head of State, Pinochet had immunity ratione materiae,
but not immunity rational personae (kinds of immunity usually applied
to diplomatic immunity)
Bretch: In Pinochets case, he invoked that he was immune because he was the
head of the State. Spain said he is not because he is a former head of state, so he
can only avail of immunity ratione materiae. The act involved was torture. Pinochet
said that it was state-sponsored. House of Lords did not subscribe to it, saying
that even though torture was done by officials, the prohibition against torture is
erga omnes. This character of jus cogens norm prevails the supposed invocation
of immunity of head of state. It overrides the invocation of immunity in a criminal
proceeding.
Immunity of the head of state is governed by two regimes.
1. Immunity ratione personae we look at the person. If he is an incumbent
head of state, then he is immune.
2. Immunity ratione materiae applies to former heads of states. Here, we look
at the function. If the function is official, immunity continues. Otherwise, there
is no more immunity.
Important: Do not apply state immunity from suit discourse if the court
where the case is pending is not a court of any other state. Thus, if a
head of state is to be prosecuted in an international court and not by a
domestic court, immunity from suit of head of state is an IRRELEVANT
discussion.
Thus, distinction must be made between Domestic jurisdiction over head
of state and jurisdiction of international Criminal Court for International
crime.
There is no crime when there is no law punishing it.
The legality principle there must be a law that declares the act as a
crime.
Foreign ministers enjoy the same immunity as heads of state
because they likewise exercise diplomatic functions
DRC v. Belgium (Arrest Warrant Case)
Involves a foreign minister not a head of state. According to the ICJ, a
foreign minister will also enjoy immunity from suit similar to the head of
state. This is CIL, because the foreign affairs minister (Sec of foreign
affairs) is involved in the exercise of diplomacy or diplomatic functions.
Diplomatic function those which promote, protect and preserve the
interest of the state in a foreign territory. Involves promotion of
relationship between states.
Why is there a special regime for public officials exercising
diplomatic functions?
Because in International relations, all states agree that the maintenance
of peace can be achieved through diplomatic communication. The whole
point of International law is to maintain peace.
22 | U N I V E R S I T Y O F S A N C A R L O S
ACT OF STATE DOCTRINE
ACT OF STATE DOCTRINE
Courts generally will not pass judgment on the validity of the public and
official acts of a foreign government within its own territory
Rationale for the Act of State Doctrine:
Co-equality among states and respect for sovereignty of foreign states.
Underhill v. Hernandez
Every sovereign State is bound to respect the independence of every
other sovereign State, and the courts of one country will not sit in
judgment on the acts of the government of another done within its own
territory. Redress of grievances by reason of such acts must be obtained
through the means open to be availed of by sovereign powers as
between themselves.
W.S Kirkpatrick and Co. v. Environmental Tectonics Corp.
Facts: Kirkpatrick won a bid on a contract by paying a bribe to some
officials of the Nigerian government; Tectonics was a losing bidder.
Tectonics filed a damage suit against Kirkpatrick in US court.
Held: The act of state doctrine does NOT apply here. Act of state issues
only arise when a court must decide that is, when the outcome of the
case turns upon the effect of official action by a foreign sovereign.
When that question is not in the case, neither is the act of state doctrine.
That is the situation here. The determination as to whether the bribe
took place and influenced the outcome of the contract does not require
the court to decide whether or not to give legal effect to an official (???)
Nigeria in its own territory.
INVIOLABILITY OF THE FOREIGN DIPLOMATIC MISSION
INVIOLABILITY OF THE PREMISES OF FOREIGN DIPLOMATIC
MISSION
Inviolability covers
1. Inviolability of the persons of the members of the diplomatic
mission
2. Inviolability of the premises of embassies and consulates
Legal status of Embassies and Consulates
Basic Rule: Inviolability of premises. No exceptions.
Sec 22, Vienna Convention on Diplomatic Relations
VCDR Both a codification of CIL and progressive development of IL
The premises of a foreign diplomatic mission are inviolable and no
person, even a member of the government of the receiving state, may
enter the premises without the authority of the mission. The receiving
state has in fact the duty to protect the mission against intrusion and
damage and to prevent disturbance of the peace of the mission or
impairment of its dignity.
There are two duties involved here:
1. Negative duty to refrain from entering the premises without the
consent of the head of the mission.
2. Affirmative duty protect the premises against intrusion and
damage, disturbance, etc.
Art 22 sets out the negative (not to enter) and positive (to protect)
obligations of the receiving state, including immunity from processes
(search, execution, attachment, etc)
Inviolability extends:
(a) In cases of armed conflict [Art 45]
(b) To archives and documents of the mission [Art 24]
(c) To the ambassadors residence , papers and correspondence
[Art30]
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Is the inviolability absolute?
Yes. It is absolute absolutely barred from entering. The only way you
can enter is through the consent. In case of bomb threats, you need the
permission of the head of the mission.
Rationale: Because people can always enter the mission in the pretext
of addressing something urgent, something that require immediate
action. Consent will be given if the circumstances will warrant it.
States can waive their inviolability
Waiver must be express
THEORIES BEHIND THE INVIOLABILITY
A. Extraterritoriality theory
Premises of the mission is an extension of the territory of the
sending state.
Bretch: Traditionally, the justification why the premises and the members
of the diplomatic mission should enjoy immunity is because they are
considered as extensions of the sending state.
Lotus case
Turkey can exercise jurisdiction over the death of the Turkish nationals in a
collision case which occurred in the high seas. Court applied the objective
territoriality principle. Since the individuals died on board a Turkish vessel
like the vessel is an extension of the territory of Turkey.
This is apart from the discussion that restriction to state sovereignty is never
presumed. It is only when there is clear CIL or conventional law can it be
restricted.
B. Representational theory
The mission is the representation of the sending state.
Bretch: Embassies, consulates and members of the diplomatic mission are
immune from processes because they are representatives of the sending
state.
C. Functional necessity theory
The more acceptable theory justifying inviolability. Refusal to
comply will disrupt the efficient and effective exercise of diplomatic
functions. Also because this is what the receiving state also expects
from other foreign states as a principle of reciprocity.
Bretch: This is the more acceptable theory in justifying inviolability. This
should be the justification. This means that there is an obligation not to
disrupt the efficient and effective exercise of diplomatic functions.
NON-INTERFERENCE WITH MISSIONS OFFICIAL COMM
NON-INTERFERENCE WITH OFFICIAL COMMUNICATION
Under Article 27 of the VCDR
A receiving state shall permit and protect the free communication on
behalf of the mission for all official purposes. Such official
communication shall not be interfered with. The diplomatic bag shall not
be opened or detained.
Exceptions:
The use of sniffer dogs and external examination of the bag is, however,
permitted customarily per ILC draft articles. A reasonable suspicion that
the bag contains illegal article will also allow the authorities to have the
bag opened in the presence of a representative of the sending state.
The bag, however, must bear visible external marks of its character and
contain only diplomatic documents or official articles.
Bag includes any kind of receptacle bearing visible external marks of
its character.
What about electronic examinations?
See Art 28 of the 1989 ILC Draft Articles on Diplomatic Courier and
Diplomatic Bag: directly or indirectly.
23 | U N I V E R S I T Y O F S A N C A R L O S
Still not settled because it is similar to opening the same if by reason of
technology, the examiner can really tell what is inside the bag. This is
still subject to debate.
But because of the rise of terrorism, states would more likely favor
electronic examinations.
DIPLOMATIC IMMUNITY
DIPLOMATIC IMMUNITY
Diplomats have personal inviolability (Art 29)
The rationale for diplomatic immunity has changed
A. Tradition justification
The sovereignty of the state and the respect due the other state
(co-equality principle)
B. Modern definition
Functional necessity diplomats must enjoy protection in order for
them to discharge their duties more effectively and efficiently.
Principle of personal inviolability existed even before the VCDR
The VCDR is also a codification of CIL. The idea of personal inviolability
existed already even before the VCDR. In the Preamble of the VCDR,
the inviolability of diplomatic agents is not to give personal benefit for
diplomatic agents, but in order for him or her to perform his or her
functions effectively.
Realizing that the purpose of such privileges and immunities is not to
benefit individuals but to ensure the efficient performance of the
functions of diplomatic missions as representing States.
The immunity is absolute
While still an incumbent ambassador, he is immune from processes. The
immunity is absolute. The only remedy is to declare him as persona non
grata. Immunity ratione materia extends even to territories outside
the receiving state. The immunity attaches to the person, wherever he
may go.
Problem
An ambassador of State A was assigned in State B. States A and B has
a healthy diplomatic relation. State A sends an ambassador was sent to
State B. one summer, the ambassador took a day off and went to State
C for a vacation. The ambassador was found to be in the company of a
minor. In the law of State C, any person found in the company in a
minor who is not related to the minor shall be presumed guilty of a
crime.
The ambassador was arrested and detained for investigation by
authorities of State C. State A argues that the ambassador enjoy
diplomatic immunity. State C argues that inviolability of the ambassador
is only required from the receiving state. Decide.
Answer The diplomatic immunity attaches to the person. This means
that wherever the person is, as long as he is an incumbent diplomat,
then he is immune from any kind of processes (not just prosecution).
Bretch: The immunity of the ambassador is immunity ratione personae. It is
absolute as long as he is incumbent. In fact, the only remedy on the part of the
receiving state is to declare him persona non grata. This has nothing to do on
whether or not the act is related to the function. The act is irrelevant.
When he is no longer an ambassador, then apply the regime of immunity ratione
materiae.
Does State C have the duty to respect this inviolability? Under functional necessity,
they must enjoy protection so that they can discharge function effectively. This is
the modern approach. This is acknowledged by the ICJ in DRC vs Belgium (Arrest
Warrant Case).
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
UK Case
In a local case decided by the House of Lords in the UK, an ambassador
from Sierra Leone for the Embassy in Rome was arrested in London. He
went to London to by some furnishings. The personal inviolability was
still applied even if the ambassador is found in a third state.
The prosecution forwards the argument that personal inviolability should
only be granted if the ambassador is in transit. It turns out that they
were in London to buy some furnishings, therefore, they were not in
transit. However, diplomatic immunity was still upheld and the HK Lords
applied functional necessity theory.
SCOPE OF DIPLOMATIC PERSONAL INVIOLABILITY
1. Personal residence (whether owned or not, hotel room or
apartment. Ownership is not material)
Bretch: In case of hotel room, if that is the customary residence of the
ambassador, it is still covered by of Personal Inviolability
2. Papers and correspondence
3. Property
Criminal Case
Immunity of diplomatic agents are absolute. The only remedy is to declare
ambassador persona non-grata plus severance of diplomatic ties by recalling
the ambassador of the aggrieved state.
Civil and Admin Cases
GR: Personal inviolability
Exceptions: (cases where the personal inviolability does not apply)
a) Art. 31 (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.
Example:
Ambassador A has a residence built by sending state. It can be
assumed that he stays in that residence. He opted to buy a condo unit
and have it rented for a fee. This condo is not used for a diplomatic
mission neither is it used by the diplomatic agent for and behalf of the
sending state. Then, diplomatic immunity will not apply.
b) Art.31 (b) If the action involves an ambassador in his capacity as
executor, administrator, heir or legatee.
Executor appointed by the decedent/testator to implement the last
will and testament after the death of the decedent. If none have been
mentioned, a relative may apply before the court to become an
administrator.
c) Art. 31 (c) If the action arises out of a commercial undertaking by
the ambassador.
4. As witness (cannot be compelled to become a witness)
5. Processes
6. Extends to members of the family
7. Extends to administrative and technical staff and their members of
the family in criminal jurisdiction
8. Extends to civil and administrative jurisdiction over the foregoing
persons and to members of the service staff when acts are intra
vires
9. Does not cover jurisdiction of sending state
Bretch: This does not bar the sending states from exercising jurisdiction
over the acts committed by its own diplomatic agents. In the same way, it
can waive its diplomatic immunity. But it must be expressed.
Cases where ambassadors may no longer enjoy personal
inviolability
1. Personal property but not held for and in behalf of the sending
state
2. If the action involves an ambassador in his capacity as executor,
administrator, heir or legatee
3. If the action arises out of a commercial undertaking by the
ambassador
24 | U N I V E R S I T Y O F S A N C A R L O S
TWO CATEGORIES OF DIPLOMATIC IMMUNITY
Applies also to heads of states and ministers of foreign affairs as per CIL
and ICJ in the Arrest warrant case.
1. Immunity ratione personae
Immunity that attached to the person of the diplomat while he is a
diplomat. This is irrelevant for former diplomats.
Bretch: This is the regime applied for incumbent heads of state, foreign
affairs ministers, or diplomatic agents. Take note of the exceptions in civil
and admin cases (Art.31 of VDC) in the case of diplomats.
2. Immunity ratione materiae
Former officials, the focus is on the act. This is normally irrelevant
while a person is a diplomat. When a person ceases to be a
diplomat, or his government waives his immunity, the person
retains substantive immunity for actions he performs in his civil
function while still diplomats.
Bretch: Former heads of state, foreign affairs ministers, or diplomatic
agents. You dont look at the person, you look at the functions or activities
involved. If the activity is not related to his function, then immunity cannot
be invoked anymore.
PERSONAL AND FUNCTIONAL IMMUNITY OF DIPLOMATIC
OFFICIALS
In terms of immunity from jurisdiction, a distinction must be drawn
between civil and criminal process.
Criminal jurisdiction
Diplomatic agents have total immunity from the law of the receiving
state and the only remedy available to the receiving state is to declare
the diplomat persona non grata. The immunity from criminal jurisdiction
applies to any offense committed by the diplomat whether official or not.
Civil jurisdiction
In terms of civil jurisdiction, diplomats are immune from civil jurisdiction
of the receiving state except in three (3) cases. The immunity of
diplomats extends to arrests and detentions. (See: DR of Congo v.
Belgium, 2002)
FUNCTIONAL IMMUNITY OF CONSULAR OFFICIALS
As for consuls however, although they enjoy more or less the same
immunities and privileges as diplomats, their immunity from criminal and
civil jurisdiction extends to their official acts only.
Bretch: For consuls, the Convention on Consular Immunities limits the immunity
to official functions only. The reason for that is he is not actually exercising a
governmental function.
Distinction between consular and diplomatic function.
A diplomatic function involves the political, governmental and public
functions of the state. The granting of visa, (who can enter or not enter)
is a diplomatic function. For non-political, non-governmental function,
thus, commercial, proprietary, and private function of the state, this is
a consular function.
Examples of consular functions:
1. Solemnizing marriage
2. Issuance of capacity to contract marriage
Bretch: There is no law that says that if it is private, it has to be done by the
consul, or if governmental, it has to be the ambassador. The government can
decide to save on funds to just even require the ambassador to exercise some
consular functions.
Belguim v. Congo (ICJ)
Facts: An international arrest warrant was issued for the arrest of a
foreign minister of the Congo for crimes under international law.
Issue: Do head of state immunities apply to international crimes?
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
Ruling: Yes. Immunity for current foreign ministers is absolute, even for
international crimes there is no exception to head of state immunity
for all violations of international law (including jus cogens, CIL, etc.)
Bretch: Do not be confused because in this case, the prosecution was to be done
in a domestic court. In which case, immunity of the accused whether as a head of
state or foreign affairs minister becomes a concern (because of the principle of co-
equality).
However, if the case is before an international criminal court, the discussion on
immunity of heads of states, ambassadors of foreign affairs ministers becomes
IRRELEVENT because par in parem non habet imperium does not apply.
For instance, Milosevic of the former Yugoslavia was charged for war crimes in the
International Criminal Court for the former Yugoslavia. Immunity was forwarded
but it was denied because of the irrelevancy of the principle.
Q. If you charge them in international criminal court, isnt it
that it might get in the way of their functions, under principle
of functional necessity?
The ICC had been established by states themselves. Theoretically, the
idea of immunity has been waived in part in advance because of the
consent given by states when they ratified the ICC.
Second, there is a more paramount consideration than the functional
necessity. Here, the crimes committed are international crimes like
genocide, war crimes, acts of aggression and crimes against humanity
crimes which are really serious which override the invocation of state
immunity.
The idea of functional necessity is states hampering functions of the
diplomats, but in this case, theoretically, its not the state that
hampers/disturbs the functions of the diplomats.
PHILIPPINE PRACTICE
PHILIPPINE PRACTICE
Republic of Indonesia v. Vinzon
The mere entering into a contract by a foreign State with a private party
cannot be construed as the ultimate test of whether or not it is an act
jure imperii or jure gestionis. The State may enter into contracts with
private entities to maintain the premises, furnishings and equipment of
the embassy and the living quarters of its agents and officials, and such
acts are public acts.
Bretch: Its not that when a state enters into a contract, it descends to the level
of private individual and therefore can be sued ex contractu. This is applicable only
to a situation where a case is filed in the Philippines as against the Philippines.
But where the situation is a case is filed in the Philippine court as against a foreign
state, we distinguish between jure imperii or jure gestionis.
In this case, the ambassador entered into contract for the maintenance for the
plumbing, electrical, air-conditioning, in his condo unit used for diplomatic
function. It was stated in the maintenance agreement, that any suit arising out of
this contract shall be brought before the appropriate tribunal in the City of Manila
(Makati actually).
The contractor argued because the ambassador pre-terminated the contract, that
the stipulation is an evidence of a waiver of immunity. The Supreme Court says
that is not the kind of waiver contemplated by the waiver requirement. For all you
know that provision was also entered into by Republic of Indonesia to make use
of that provision if it decides to initiate a suit. That is not a waiver of immunity
from suit.
Q. What is the effect if the state commences the suit?
The state now exposes itself to any counterclaim.
WHO v. Aquino
Immunities may be covered by special regimes and not CIL.
Officer of WHO assigned in the Philippines was entitled to diplomatic
immunity pursuant to the Host Agreement executed on July 22, 1951
between the Philippine Government and the WHO.
25 | U N I V E R S I T Y O F S A N C A R L O S
Minucher v. CA
A foreign agent (DEA) operating within a territory can be cloaked with
immunity from suit when it can be established that he is acting within
the directives of the sending state and when the Philippines has given
imprimatur to his presence here.
Bretch: It is not necessary that it is specifically granted, its enough that his
presence had been recognized, otherwise his being an agent of the DEA will be
exposed. This is proven by confidential communication by the agencies involved.
Liang v. People
The commission of a crime (slander) is not part of official duty. ADBs
immunity covers official duty.
STATE RESPONSIBILITY
STATE RESPONSIBILITY
ILC Draft Articles on State Responsibility for Internationally
Wrongful Acts (ARSIWA)
A material for studying state responsibility regime. This has been
prepared experts appointed as special rapporteur to the ILC. Because
they are experts in the field, it is expected that they codified CIL. This
includes also progressive development of international law in certain
areas. This is at the very least persuasive to the court under Art 38 (b)
subsidiary means of determining sources apart from judicial decisions
and opinions of most highly qualified publicists.
The Draft Articles provides merely for secondary rules
The ILC Draft Articles on State Responsibility for Internationally
Wrongful Acts (ARSIWA) provides merely for secondary rules in state
responsibility.
Bretch: What constitutes internationally wrongful act is governed by the primary
rules which may include the law of treaties. You do not go directly to ARSIWA
because it is just a secondary rule.
Read: 2001 Draft Articles on State Responsibility for Internationally
Wrongful Acts with Commentaries.
Internationally wrongful act
Draft Article 2 of the ILC:
1. Action or omission attributable to the State under International Law
2. Constitutes a breach of international obligation of the State
Add: The nexus requirement.
The nexus requirement
To hold a state responsible, two elements are required:
1) Internationally wrongful act
2) It be attributed to the state
There must be a nexus or connection of that act and the non-compliance
or a breach of an international obligation.
Important: What constitutes Internationally Wrongful Act is governed
by the primary rules.
Example1: If the question is whether State A is responsible for the non-
compliance of particular provision of a treaty with State B, we want to
know whether this will give rise to responsibility. Does it constitute IWA?
Do not go directly to the ARSIWA. The first approach is to look for
primary rules which include the law of treaties. You have to note
whether this non-compliance constitute a material breach as basis for
internationally wrongful act and termination. Meaning if there is non-
compliance of a provision, then it is a violation of pacta sunt servanda
and if the state fails to observe such, it will give rise to state
responsibility.
Example2: If the question is whether State A should be held liable for
permitting transboundary of pollution, another primary rule is applicable,
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016
not yet ARSIWA. You go to International Environmental Law. That is
why state responsibility does not provide for what constitutes IWA. It is
taken cared of by the primary rules of the matter.
TN: Regime of state responsibility mentions of both act and omission as
required by a regime.
TWO THEORS ON STATE RESPONSIBILITY
A. Strict liability theory objective or risk theory; liability attaches
irrespective of bad or good faith. Here, a mere violation of
international law whether it results to damage or not engages state
responsibility.
B. Fault liability theory subject theory; liability attaches only
upon proof of dolo (intent) or fault (negligence).
In International Environmental law, you can look for a regime where
fault is a requirement and its threshold in order to engage state
responsibility.
There were states that started the discussion on two areas:
1. Is injury or damage a factor to be considered for the purposes of
engaging state responsibility?
2. Is bad faith or good faith relevant in determining whether a
particular IWA will engage state responsibility?
ILC decided not to put anything in these matters in the final wordings
of ILC. There is nothing in the wordings of the text that require damage
or injury. So, under objective test, a mere violation of international law
whether it results to damage or not should engage state responsibility.
The ILC is quick to say that this is one area therefore that should allow
state practice to develop. We leave it to the states as to what they really
want.
On the matter of whether or not fault is required as an element of state
responsibility, ILC says lets allow the states to develop the norm of
whether there should be fault or no fault.
TN: These a mere theories, they are not regimes of state responsibility.
Professor James Crawford
Opined for a good reason for that [silence of the wordings of the ILC
text as to what standard must be applied] because of the varying
approaches on the primary rules of the matter. If we talk about
international environmental law regime, there are conventions that
provide due diligence requirement. If theres due diligence requirement,
then non-compliance of the requirement mean theres fault. If theres a
regime that do not provide, fault is not relevant. In other words, the
element of fault or intent is closely linked to the primary rules. State
responsibility regime is just secondary.
Example. Non-intervention
There are scholars that advance that intervention should not be tested
on a motive of the intervening state, it is on the effect or consequence
of the act of intervention. If the act of intervention materially disrupts
the domestic affairs of the victim state, regardless of the intention of
the intervening state, there is intervention. There is a regime where bad
faith or good faith is irrelevant.
Example: International Environmental Law
Look for a regime where fault is a requirement. If it is a requirement,
what is the threshold of that fault to constitute as the fault required in
order to engage state responsibility?
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ARSIWA
ARSIWA
Part I General Principles on State Responsibility
A. Chapter I Basic Principles
Example: Whether an act is wrongful or not, it is not determined on domestic
law, it is to be determined on international law. (Art. 3)
B. Chapter II Attribution
C. Chapter III International Wrongful Act
Example: Violation of obligation regardless of the source whether treaty or
not treaty. In international law, ILC refuses to take characterization for as
long as it a wrongful conduct whether it is civil or criminal tortuous, it
does not matter.
D. Chapter IV Responsibility for acts of other states
E. Chapter V Preclusions or Defenses
Example: Non-compliance of the prior exhaustion of local remedies
requirement, or non-compliance of the nationality link in the context of
diplomatic protection
Part II Consequences of Responsibility (Cessation; Reparation
restitution, compensation and satisfaction)
Cessation corresponding assurances of non-repetition
Reparation:
o Restitution return of something taken
o Compensation damage can be financially assessed
o Satisfaction damage that cannot be financially assessed like public
apology
Part III Implementation of responsibility and Countermeasures
Part IV General Provisions
ARSIWA is a lex generalis on state responsibility, so that if there exists
a special regime dealing with state responsibility then that can be
considered a lex specialis. In which case, ARSIWA may be set aside.
DOCTRINE OF IMPUTABILITY
DOCTRINE OF IMPUTABILITY
A State is liable only for its own acts and omissions, and in this context,
the State is identified with its governmental organs and apparatus, not
with the population (nor with private acts of government agents v. ultra
vires acts)
Governmental Organs or Apparatus
Domestic Administrative Law is irrelevant. The issue is to be settled
applying International Law principles.
Ways by which an IWA may be attributed to the State:
1. Art 4 and Arts 5-7
State actors or Organs (Article 4)
Act of any state organ or official without regard to nature of
function (executive, legislative, judicial and all other governmental
functions)
What constitutes state organs?
Renvoi provision: An organ includes any person or entity which has
that status in accordance with the internal law of the State. (Art.4
(2) of ARSIWA)
If in the internal law of the state that it is governmental function,
then it is a governmental function. Remember though, international
court can still make a final assessment as to whether or not it is a
governmental function.
PUBLIC INTERNATIONAL LAW l Atty. Bretch Largo l For the exclusive use of EH 407 A.Y. 2015-2016

How can executive commit IWA?

Order of the President as the commander in chief of armed forces
of using force against another state.

How can legislative commit IWA?

Failure to comply Convention on the Elimination of all forms of
Discrimination

How can judicial commit IWA?

Fair and just treatment as the minimum standard for treatment of
aliens. Maltreatment of the courts in denying due process is
attributable to the state.

Quasi-State organs (Articles 5-7)

Act of a person or entity empowered to exercise governmental
authority even if such act is in excess of authority or contravenes
instructions.

2. Non-State Organs (Arts 8-10)

Article 8
Acts done pursuant to the instruction of, or under the direction or
control of the State (what is the threshold of direction or control?)
Article 9
Act done in the exercise of governmental authority in default of
official authorities.

Article 10
Conduct of rebel movement which becomes the new Government
of a State.

3. All other acts adopted by the State (Art 11)

Conduct is adopted by the State, either expressly or by conduct, as
its own.

Bretch: From Art.5-11, normally, it is required that the actor or proprietor of the
wrongful act is established. Absence of evidence, at least approximating the
identity of the perpetrator of the act, its difficult to attribute such act under Art.5-
11. But that specific threshold, according to Prof Crawford is not applicable to state
organ. It is not really required that theres a specific identity of the actor.

Corfu Channel Case

Albania was charged for an internationally wrongful act for its failure to inform
passing vessels within its territorial sea (within its control) that there are mines
therein. Theres no need to identify the actor or proprietor of the wrongful act.

But for Art.5-11, actor must be specifically identified. You need to establish a
certain level of relationship.

ACT OF THE POPULATION V. GOVERNMENTAL APPARATUS

Under the Doctrine of Imputability, there is a distinction between the
act of the population and the act of the governmental apparatus. In
order to impute the act as the Act of the State, it must refer to the
government, its organ or any of its apparatus.

First situation: X (Filipino) killed Y (American) in Mactan Cebu,

Philippines. Is the Philippines liable? You still have to determine whether
X is an agent of the State or a private individual.

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