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Hart’s observations:
1. Primary rules of obligations;
2. Lacks secondary rules of change and adjudication which provide for legislature
and courts;
3. Lacks a unifying rule of recognition specifying sources of law and providing
general criteria for the identification of its rules.
§ What is a Treaty?
Elements: International agreement
States
Written
Governed by international law
[VCLT, Article 2(1)(a) and ILC Commentary]
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SYNTHESIS
A7, S. 20 A7, S. 21 A18, S.25
- loans - treaty / international - foreign military bases,
- concurrence of MB agreement (e.g. WTO) troops or facilities
- President - 2/3 vote of Senate - treaty
- Example: debt buy - 2/3 vote of Senate, and
back Note: when Congress so
Executive agreement as requires, majority vote
exception to 2/3 vote in national referendum,
(e.g. exchange of notes) and recognized as a
treaty by other
contracting state
VCLT
Case law:
Bayan v. Zamora et al. (G.R. Nos. 138570, 138572, 138587 & 148680, Oct. 10,
2000) – Constitutionality of VFA in relation to Article 18, Sec. 25;
interpretation of the phrase “recognized as a treaty.”
Nicolas v. Romulo (G.R. No. 175888, Feb. 11, 2009) – VFA as mere
implementation of the 1951 RP-US Mutual Defense Treaty; VFA is a sole
executive agreement subject to the Case-Zablocki agreement procedure;
“Romulo-Kenney Agreements of Dec. 19 and 22, 2006,” detaining American
accused in US embassy, is not in accord with Art. 5, Sec. 10 of VFA;
distinguish the following: (a) Art. 5, Sec. 6 – custody from commission of
offense until completion of all judicial proceedings is with US, while (b) Art.
5, Sec. 10 – after conviction, confinement or detention by Philippine
authorities shall be carried out in facilities agreed on by appropriate RP-US
authorities.
Lim v. Executive Secretary (G.R. No. 151445, April 11, 2002) – “Balikatan
Exercises Terms of Reference” - does not need concurrence by Senate.
Pimentel v. Executive Secretary (462 SCRA 622) – Signing and ratification
distinguished; President may refuse to submit treaty (creating ICC) to Senate.
(NOTE: GRP already ratified the Rome Statute in August 2011)
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Sps. Renato v. Hon. Rosario (G.R. No. 106064, October 13, 2005) – A debt-
buyback scheme is within the power of the President to enter into under Art.
VII, Sec. 20 of the Constitution.
Deutsche Bank AG Manila Branch v. CIR (GR No. 188550, August 19, 2013)
– A requirement of the BIR to first file tax treaty reliefs application within 15
days before availing of the preferencial tax rate of 10% under the RP -
Germany tax treaty cannot prevail over a treaty relief.
CBK Power Co. v. CIR (746 SCRA 93) – reiterating Deutsche Bank case.
Landbank v. Atlanta Industries (729 SCRA 12) – loan between Landbank and
the IBRD is an executive agreement; terms therein were incorporated in a loan
between Landbank and Iligan City which exempted the agreement from the
bidding process under R.A. 9184.
Saguisag v. Executive Secretary Ochoa (G.R. No. 212426, July 12, 2016) –
EDCA is an executive agreement; mere implementation of the VFA.
§ Reservations to Treaties
GR – allowed
Exceptions:
§ if prohibited by treaty itself
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§ if only specific reservations are allowed
§ if incompatible with treaty purpose
Form of reservations/withdrawal/objection:
§ written & communicated
[VCLT, Articles 19-23]
Case law:
Reservations to the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide (Advisory Opinion, I.C.J. Reports, 1951) – On the effect of
absence of reservation clause in a Convention; reservations were contemplated
but the purpose of the treaty tended to discourage; intent to prevent an
international crime.
(NOTE: in the International Criminal Court, no reservations are permitted,
Article 120)
§ Interpretation of Treaties
GR –1. interpret in good faith
2. ordinary meaning of word in “context” (resort to related text)
Case law:
Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion, I.C.J.
Reports 221, 1950) – In a dispute concerning the Peace Treaties of 1947, three
signatory states refused to comply with a three-person panel dispute settlement
procedure for the purpose of interpreting the treaty whereby parties are required
to appoint their own representatives and, by mutual agreement, a third neutral
member of a Commission; the U.N. General Assembly asked whether the
Secretary-General may now appoint the third neutral member; in answering in
the negative, the Court observed that “according to the natural and ordinary
meaning of the terms, ‘it was intended that the appointment of the national
commissioners should precede that of the third member’.” Thus, the three states
(Bulgaria, Hungary and Romania) are under an obligation to appoint their
representatives to the Treaty Commissions, failing which will entail
international responsibility.
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GR- parties cannot enter into a treaty contrary to jus cogens or norms recognized
and accepted by the international community; non-derogable.
GR – allowed to withdraw in conformity with treaty and anytime with the consent
of all
Exception – if no provision
Exception to exception –
§ if parties intended to allow withdrawal
§ if implied by the nature of the treaty
Effect of later treaty – later one prevails, if all parties conclude and they intended
later one to govern; or, if later one is incompatible with earlier one.
Exception –
3. if essential basis of consent, and
4. if obligation is transformed radically
Exception to exception –
§ treaty establishing boundary (uti possidetis - African and South American
experience after colonizers left; intended to preserve territorial integrity in
cases of state succession.); or,
§ if the fundamental change arose from a breach by the invoking party
[VCLT, Articles 54, 56, 59, 61, 62]
Case law:
Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, I.C.J.
Reports, 1974) – Test of rebus sic stantibus: the circumstances must have
increased the burden of the obligations to the extent of rendering the
performance of an act essentially different from that originally undertaken.
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Danube Dam Case (Hungary v. Slovakia, 37 ILM, 1998)- If joint exploitation of
the investment was no longer possible because Hungary did not carry out most of
the works, A61, par. 2 of the VCLT states that impossibility of performance may
not be invoked for the termination of a treaty by a party to that treaty when it
results from that party’s own breach of an obligation flowing from that treaty;
state of necessity is not a ground for terminating a treaty but may only be
invoked to exonerate one from responsibility; neither could fundamental change
of circumstances prosper because the change must be unforeseen [here, political
motive, reduced economic activity of the Project, and progress of environmental
knowledge and international environmental law are not sufficient grounds].
Violation of other treaty rules of general international law may justify the taking
of certain measures, including countermeasures, but does not constitute a ground
for termination of the treaty; the violation by Czechoslovakia was the diversion
of the waters of the Danube in 1992).
§ Philippine Practice
§ Treaty v. Domestic Legislation- when the two instruments relate to the same subject, try
to give effect to both; if inconsistent, the later in date will control, provided that the treaty
stipulation is self-executing. But this rule only applies in the domestic sphere. A treaty,
even if contrary to a later statute, is binding in international law.
Case Law:
Sei Fujii v. California (242 P. 2d 617; 19 ILR 312, 1952)- A California alien
land law, used by California to have the property of a Japanese citizen in the
U.S. escheated to the State, was challenged as contrary to U.N. Charter,
specifically, A55 and A56 on human rights. The Court stated that the U.S.
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Constitution distinguished between self-executing and non-self executing
treaties. Here, the U.N. Charter Preamble, A1, A55 and A56 require enabling
legislation to affect private persons; the rights of private persons were not
prescribed in detail in the U.N. Charter in regard to the land law.
§ State Practice
The Asylum Case (Colombia v. Peru, 17 I.L.R. 28; I.C.J. Reports, 1950) – Concept of
“regional custom”; establish that the rule invoked is in accordance with a constant and
uniform usage practiced by States in question; Colombia can not unilaterally qualify
an offense for purposes of asylum; practice is inconsistent.
North Sea Continental Shelf Case (I.C.J. Reports, 1969) – The use of the “equidistant
special circumstances principle” in delimiting continental shelves has not attained the
status of CIL; for a provision in a Convention to become CIL it must be “norm-
creating” in character.
Nuclear Test Cases (Australia v. France; New Zealand v. France, I.C.J. Reports, 1974)
– Communiqué of France to Australia and New Zealand and the U.N. General
Assembly “that the atmospheric tests will be the last of this type” is a unilateral
declaration on a factual or legal situation, made publicly and erga omnes, which
creates binding obligations.
Nicaragua v. U.S. (I.C.J Reports, 1986) – A formal communication that had been
committed to the OAS was held not to be a formal undertaking, but a mere political
pledge.
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– General Assembly Resolutions
Case law:
Dissenting Opinion of Judge Tanaka in the South-West Africa Cases (I.C.J. Reports,
1966) – Concept of “parliamentary diplomacy”; resolutions and declarations of
international organizations as evidence of a general practice.
R. Higgins, The Advisory Opinion on Namibia: Which U.N. Resolutions are Binding
Under Article 25 of the Charter?
(NOTE: Article 25 of the U.N. Charter states that U.N. members “agree to accept and
carry out the decisions of the Security Council…”; interpreted to mean Art. 24, Ch. VI-
VIII on peace and security matters, i.e. intended to be obligatory.)
§ Domestic Law
Case law:
International Status of South-West Africa, Opinion of Sir Arnold McNair (I.C.J.
Reports 128, 1950) – Obligations of the Union of South Africa in relation to the
mandate territory; application of the principles of trust in civil law.
Diversion of Waters from the River Meuse (P.C.I.J series A/B, No. 70, 4 W.C.R. 179,
1937) – Recognition of equity as part of international law in no way restricts the
(international) Court to decide the case ex aequo et bono, if the parties agree.
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Distinction between equity and deciding a case ex aequo et bono:
1. Equity – law cannot cover every possible situation, so, cases may be decided
using equitable principles.
2. Ex aequo et bono – power of ICJ to decide a case equitably outside the rules
of law.
Case law:
Filartiga v. Pena-Irala (630 F. 2d 876, 1980) – Joelito Filartiga was kidnapped and
tortured to death by Pena-Irala who was Inspector-General of Police of Paraguay; torture
may be perpetrated under color of official authority against anyone regardless of
nationality; U.S. Alien Tort Law allowed aliens to sue and have rights (recognized in
international law) enforced before U.S. courts even for acts committed outside the U.S.
provided there is jurisdiction over the defendant in the U.S.; torturer, for civil liability
purposes, is “hostis humani generis” or enemy of all mankind.
Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977) –
schools of thought in adopting international law to a domestic system:
1. incorporation – automatic; except if in conflict with domestic system
2. transformation – international law adopted thru decisions of judges, law or custom
Case law:
Tañada v. Angara (272 SCRA 18) – Doctrine of incorporation applied in regard to
obligations arising from ratification of GATT-WTO; pacta sunt servanda was
invoked.
Mijares v. Hon. Ranada (G.R. No. 1393325, April 12, 2005) – Recognition and
enforcement of judgments is among the generally accepted principles of international
law.
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§ Theories on the relationship between Municipal Law and International Law:
1. Monism – international law and municipal law belong to only one system with
international law as superior to domestic law; locates basic norm of the national
legal system in the norm of international law;
2. Dualism – international law as distinct from the domestic law system; dualism of
legal origin, subjects and subject matter; sovereign act of municipal law means it
exceeded its competence in international law but does not void municipal law.
3. Inverted monism– municipal law as superior to international law; denies the term
“law” to international law.
4. Harmonization – the two legal systems are harmonized and given effect.
§ States
§ Characteristics of Statehood
Article 1 of the Convention on Rights and Duties of States (or the 1933 Montevideo
Convention) provides for the qualifications of a State:
§ permanent population
§ defined territory
3. government
4. capacity to enter into relations
Case law:
Case Concerning Rights of Nationals of the United States of America in Morocco
(I.C.J. Reports, 176, 1952) – Even if Morocco is under the Protectorate of France,
the former is still a state in international law.
Report of the Fifth Committee of First Assembly of the League of Nations, with
reference to Admission to the League of Liechtenstein (6 December 1920) – Even
if denied admission, it remains a sovereign state.
Case study: The Holy See and the Vatican – sui generis legal personality
§ Recognition
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2 theories:
(a) Declaratory theory- possession of the essential elements; factual criteria
(b) Constitutive theory- recognition is what constitutes a State.
Status – more of an optional and discretionary political act (as seen in the
cases of the former Yugoslavia and Soviet Union)
Case law:
Tinoco Arbitration, 1923 – Even if not recognized, may be de facto; juridically
cognizable.
§ Self-determination
Case law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples (U.N. G.A. Res. 1514 (XV), 14 December 1960) – Elements of the
right to self-determination of States:
1. The Commonwealth of Australia v. the State of New South Wales (32 C.L.R.
200, 1923) – New South Wales is not a foreign country which may be sued
without its consent.
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3. Mandate System or “Sacred Trust” – colonies and certain other territories lost in
WWI by defeated enemy powers (Germany and Turkey) were placed under
tutelage with implied right to self-determination
Case law:
International Status of South-West Africa (Advisory Opinion, I.C.J. Reports,
1950) – Mandate created by the League of Nations elapsed when the League
ceased to exist.
NOTE: After WWII, the trusteeship system succeeded the mandate system,
EXCEPT for South African mandate over SW – Africa which South Africa did
not want to place under trusteeship.
Case Law:
Philconsa v. GPH (G.R. No. 218406, November 29, 2016) – The Framework
Agreement on Bangsamoro is subject to implementation through the Bangsamoro
Basic Law.
§ International Organizations
§ United Nations
Charter of the United Nations, Articles 1, 2, 7, 104
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Case law:
Reparations for Injuries Suffered in the Service of the United Nations (I.C.J.
Reports, 1949) – Capacity of U.N. under international law to sue for damage
caused to an agent in the form of an international claim; but this is not the same as
saying that it has the same rights and duties as a state; personality of the U.N. is
limited by the purpose of its Charter.
(NOTE: EU possesses the most extensive legal capacity. The community shall
in each of the Member States possess the most extensive legal capacity
accorded to legal persons under their respective municipal law. It may sue and
be sued in its own name.)
§ Individuals
(i) Classical Rule: Human rights – human being as an object of international law.
(ii) Progression of the Rule: Human being as a subject of international in a limited way.
Case law:
Judgment of the Nuremberg Tribunal – Law of war imposed a duty on individuals;
Article 228 of the Treaty of Versailles illustrates this view of individual responsibility;
acts deemed criminal in international law may be the subject of international claim; a
state cannot protect the individual accused of the crime if the state exceeded its
competence by allowing/ordering the individual to commit a crime vs. humanity;
officers liable but punishment may be mitigated if they merely followed orders.
– Rome Statute of 1998 (ICC) – Individuals may be tried for genocide, crimes against
humanity, war crimes and crime of aggression (core crimes);entry into force: July
2002; aggression remains to be undefined; only covered crimes committed after entry
into force; no death penalty, no trial in absentia
(NOTE: The Philippine law in regard to international humanitarian law is R.A. 9851,
signed into law on December 12, 2009 before the Philippine ratification of the Rome
Statute. It defines punishable acts reflective of the relevant IHL instruments,
including the concept of command responsibility.)
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(d) Corporations
Case law:
Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the
Government of the Libyan Arab Republic (Compensation for Nationalized Property,
Arbitral Awards on the Merits, 19 January 1977, 17 I.L.M., 1978) – Internationalized
contracts entered into between a state and a foreign corporation gives the latter limited
capacity by invoking in international law the rights derived from the contract.
ANSWER: Yes, for example, under (1) ICSID; (2) Iran – U.S. Claims Tribunal; and,
(3) EUCJ
SYNTHESIS
STATE - STATE – TNC STATE – STATE – STATE – STATE –
STATE (internationalized STATE STATE STATE / NSE STATE /
(in general) contract) (trade) (seas) (armed Individual
conflict) (human rights)
- ICJ -ICSID -WTO- -UNCLOS- -ICJ HRs treaty
-EUCJ DSB ITLOS -ICC mechanism
-PCA
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Chapter III. JURISDICTION OF STATES
Preliminary:
as a concept – it is the capacity to:
§ legislate or to prescribe laws/rules
§ enforce laws/rules
as power – it is exercised over:
(i) persons
(ii) property
(iii) events
i. Title to Territory
Case law:
Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent Court
of Arbitration – Test of title in international law is “continuous and peaceful
display of territorial sovereignty”; forms of acquisition of title are:
1. occupation coupled with effectiveness
2. conquest (allowed before)
3. cession, and,
4. accretion;
(NOTE: In international law, title is not sufficient without the first element of
display of State functions.)
Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53, 1933) –
Applied Island of Palmas Case.
Western Sahara Case (Advisory Opinion, I.C.J. Reports, 1975) – For occupation
to operate, territory must be terra nullius, i.e. it belonged to no one prior to
occupation.
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Government Position:
§ GRP claims over other island groups: Paracels, Pratas, Macclesfield Bank,
Scarborough Shoal, Mischief Reef
§ Effective occupation of “Kalayaan Island Group” by GRP through Tomas
Cloma, 1946; and through PD 1596 (1978) an administrative district was
formed to become a Municipality of the Province of Palawan
NOTE:
New Baselines Law is R.A. 9522 (2009): declared KIG and Scarborough Shoal as
“regime of islands” pursuant to Article 121 of UNCLOS III
Case Law:
Magallona v. Executive Secretary (G.R. No. 187167, August 16, 2011) – R.A.
9522 is constitutional; it is not intended to delineate Philippine territory but
merely regulates sea-use rights over maritime zones and continental shelves that
UNCLOS delimits.
PCA ARBITRATION
Philippine position : The Philippines’ claims (15 in total) are entirely within its (Tribunal)
jurisdiction and are fully admissible.
Chinese position : The Tribunal does not have jurisdiction over the case for the following
reasons:
§ the essence of the subject-matter is the territorial sovereignty over several maritime features
in the SCS, which is beyond the scope of the Convention and does not concern the
interpretation or application of the Convention;
§ China and the Philippines have agreed, through bilateral instruments and the Declaration on
the Conduct of Parties in the SCS, to settle their relevant disputes through negotiations;
§ assuming, arguendo, that the subject matter of the arbitration were concerned with the
interpretation or application of the Convention, that subject matter would constitute an
integral part of maritime delimitation falling within the scope of the declaration filed by
China in 2006 which excludes disputes concerning maritime delimitation from compulsory
arbitration.
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3. The claims presented by the Philippines do not concern sea boundary delimitation, and,
therefore, not subject to the exception to the dispute settlement provisions of the
Convention.
4. The Tribunal also ruled that none of the existing instruments to which Philippines and China
are parties to, which provide for other means of dispute settlement, prevent the Philippines
from bringing the present claims to arbitration.
HTE Reefs – Fiery Cross Reef, Johnson South Reef, Gaven Reef, Charteron Reef,
McKennan Reef (entitled to 12 NM territorial sea)
LTE Reefs – Mischief and Subi (no territorial sea); Mischief is within Philippine EEZ and
part of CS; only Philippines can erect structures or artificial islands on Mischief;
China’s structures are illegal; although not stated, Subi is within Philippines ECS.
NOTE:
Reed Bank (totally submerged) is part of Philippine EEZ
Ayungin Shoal (occupied by the Philippines) is an LTE within Philippine EEZ.
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(A rock above water at high tide is land territory that generates a 12 NM territorial sea and
territorial airspace above the land and its territorial sea. Reclamation may be done with due
regard to its coastal neighbors and the marine environment.)
(In the EEZ and CS, a coastal state has exclusive right to construct artificial islands or
structures on LTEs.)
4. On Scarborough Shoal:
Ruling: Scarborough Shoal is a HTE entitled to a 12 NM territorial sea only; it is a
traditional fishing ground of various fishermen from the region and China cannot
prevent Filipino fishermen from fishing.
By coastal state – conduct of naval and aerial patrols in EEZ; exploitation of resources
By other states – freedom of navigation and overflight in high seas and EEZs
Case law:
Fisheries Case (United Kingdom v. Norway, I.C.J. Reports, 1951) – Straight
baseline allowed and delimitation of territorial waters.
The Corfu Channel Case (I.C.J. Reports, 1949) – Innocent passage in international
straits allowed.
1982 Convention on the Law of the Sea, Articles 3, 8
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(b) Jurisdiction over Adjacent Maritime Seas
i. Continental Shelf
Case law:
North Sea Continental Shelf Cases (Germany v. Denmark/Holland, 8 I.L.M.
340, 1969) – What confers title ipso jure to continental shelf is the fact that the
submarine areas concerned may be deemed to be actually part of the territory
of the coastal state in the sense that, although covered with water, they are a
prolongation or continuation of that territory.
Case law:
Fisheries Jurisdiction Case (U.K. v. Iceland, Merits, I.C.J. Reports, 1974) –
Exclusive rights over fishery zone must take into account interests of other
States.
1982 Convention on the Law of the Sea, Articles 55, 56, 57, 211, 123
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Case law: (old rule)
The S.S. Lotus (2 World Court Reports, 1920) – Concurrent jurisdiction of flag
State and other State affected- this rule applies only if it happens on the high seas
(controversial decision; 6-6 vote); but see the new rule below.
New Rule: See A97, UNCLOS - the Rule today is that no penal or administrative
proceedings may be instituted against the master of a ship except before the
judicial or administrative authorities either of the:
a. flag State, or
b. State of which such person is a national.
People v. Tulin (G.R. No. 111709, August 30, 2009) – The crime of piracy is
punishable under PD 532. Even if the Philippine-operated vessel (M/T Tabangao
owned by PNOC) was outside Philippine waters, the crime of piracy is an
exception to the general rule on territoriality. Piracy is a crime against the whole
world.
NOTE: If there is no treaty, states may (by comity) voluntarily extradite a person
subject to human rights consideration like “non-refoulement” under the 1951
Refugee Convention. Summary deportation is allowed (de facto deportation).
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need to define in equivalent terms the offense under the laws of both states.
The offense must be understood similarly in substance in both states.
NOTE: Principle of specialty – Requesting state may not try the individual for
any pre-extradition offense other than the one for which extradition was asked,
or to him more severely than was stipulated by the law of the requesting state,
UNLESS, state of refuge waives requirement.
Case law:
In the Matter of the Requested Extradition of Joseph Patrick Thomas Doherty
(7 Vand. J.T. L., 1984) – Denial of extradition request for an IRA member in
the US who escaped from Belfast prison and convicted by Northern Irish court
in absentia for murder.
Case law:
Secretary of Justice v. Hon. Lantion (G.R. No. 139465, October 17, 2000) –
Mark Jimenez is without any right to notice and hearing during the evaluation
stage of an extradition process by the DFA under the RP-US Extradition
Treaty.
Secretary of Justice v. Muñoz (GR No. 140520, December 18, 2000) – In re: to
the RP-Hongkong Extradition Treaty, the Court held that the provisional arrest
of respondent was valid noting that the requirements of the Agreement on
documentation and the finding of probable cause have been complied with.
(See new case on Gov’t. of HongKong v. Olalia, GR 153675, April 19, 2007-
allowing Munoz bail even as an extraditee. This overturns the Purganan
ruling.)
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Government of Hongkong v. Olalia (G.R. No. 153675, April 19, 2007) – The
modern trend in public international law is the primacy placed on the worth of
the individual person and the sanctity of human rights. While extradition is not
a criminal proceeding, it is characterized by the following: (a) it entails a
deprivation of liberty on the part of the potential extraditee and, (b) the means
employed to attain the purpose of extradition is also the machinery of criminal
law. While our extradition law does not provide for the grant of bail, there is no
provision prohibiting the extraditee from filing a motion for bail, a right to due
process. The extraditee must establish “clear and convincing proof” that he or
she is not a flight risk and will abide with all the orders of the extradition court.
Montreal Convention of 1971– Article 8(2) becomes the basis for extradition
even if there is no extradition treaty with another party to the Convention.
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(ii) Civil Jurisdiction
R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws;
Sherman Act of 1890 and Federal Trade Commission Act and Clayton Act of
1914 – intended “to protect trade and commerce against unlawful restraints and
monopolies.”; should not contradict the local law.
1. State Immunity (Sovereign immunity): Head of State and the State itself
Basis: equality and independence of States
Distinguish:
a. Immunity of State – an aspect of act of State
b. Act of State theory – “acts of State carried out within its own territory
cannot be challenged in the courts of other States”; applies to acts of
agents of the State; exceptions: war crimes, crimes v. peace, crimes
against humanity. Rationale: Courts should not embarrass the Executive in
its conduct of foreign relations by questioning the acts of foreign states.
On scope of State Immunity
a. Absolute
b. Restrictive – determine nature of the act
(1) public (jure imperii) – immune
(2) private(jure gestionis) – not immune
Case law:
Victory Transport Inc. v. Comisaria General de Abastecimientos y
Transportes (35 I.L.R., 110 U.S.C.A. 2d Circ., 1994) – Act of transporting
wheat during peacetime is not an act jure imperii.
I1 Congreso del Partido- Cuban Sugar Trade (2 All E.R. 1064, 1981) –
Playa Larga is a Cuban owned vessel but operated by Mambisa, a Cuban
State Trading Co. not a Department of the Cuban Government. Mambisa
sold sugar to a Chilean Co. and shipped the merchandise thru the Playa
Larga. Restrictive immunity applied in this case.
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Philippines: Article 16, Sec. 3 of the Constitution (immunity from suit)
U.S. v. Guinto (182 SCRA 644) – The act of soliciting bids by the U.S. AF
is proprietary in nature.
Dayrit v. Phil. Pharmawealth (G.R. No. 169304, March 13, 2007) – Suing
individual petitioners in their individual capacities for damages in
connection with abuse of official positions in order for Pharmawealth not to
be awarded a contract is permissible and an actionable wrong.
Professional Video v. TESDA (G.R. No. 155504, June 26, 2009) – TESDA
performs governmental functions. State immunity applies in this case
notwithstanding TESDA’s entry into contract for production of PVC cards
for its trainees.
ATCI v. Echin (G.R. No. 178551, October 11, 2010) – Echin was hired by
ATCI in behalf of the Ministry of Public Health of Kuwait. An alleged
illegal dismissal case was filed against ATCI and the Ministry. ATCI cannot
plead immunity of the Ministry where the solidary obligation may be
frustrated.
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who was then in United Kingdom. A provisional warrant of arrest was
issued by a London magistrate under the U.K. Extradition Act of 1989.
Pinochet argued before the Divisional Court of the Queen’s Bench Division
that as former head of State, he can not be prosecuted at common law
because he acted in a sovereign capacity. The Divisional Court quashed the
warrants of arrest but on appeal before the House of Lords, it was held that
Pinochet was not immune from prosecution in U.K. courts for crimes
under international law. (Later, the House of Lords set aside its decision
because the Appellate Committee had been improperly constituted. On
rehearing, the Government of Chile intervened to “assert its own interest
and right to have these matters dealt with in Chile,” presenting immunity not
as a shield for Pinochet but for its own sovereignty.)
Remedy of individual:
§ sue in home State of diplomat
§ waiver by State of nationality of diplomat
§ declare diplomat persona non grata
Case law:
U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran, I.C.J. Reports 3,
1980) – Iran violated the 1961 and 1963 Conventions for failing to take
appropriate steps to ensure protection of U.S. embassy and staff and property
from attacks by militants students. There was state responsibility for having
even approved of the acts of these demonstrators.
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Philippines: Excerpts from the 1997 Manual on Immunities and Privileges (DFA)
Caselaw:
Diplomats/Consuls
Holy See v. Rosario (238 SCRA 524) - Holy See enjoys immunity where
the land subject of annulment was bought for site of Apostolic Nunciature.
Minucher v. CA (214 SCRA 242 and G.R No. 142396, February 11, 2003)
- A U.S. diplomatic staff who is a member of the Drug Enforcement
Administration of the DOJ was found to be immune from suit for alleged
criminal/tortuous conduct. As an agent he was allowed by the Philippine
government to conduct activities to contain the drug traffic.
International Organizations
DFA v. NLRC (262 SCRA 39) – Illegal dismissal suit against ADB;
immune.
Liang v. People (G.R. No. 125865, January 28, 2000) – A criminal case for
slander against an ADB employee may prosper because it was not done in
the exercise of official functions.
Sps. Lacierda v. Platon (G.R. No. 157141, August 31, 2005 ) – SEAFDEC
is an international organization which is immune from suits being clothed
with diplomatic immunity.
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(d) Areas Not Subject to the Jurisdiction of Individual States
Declaration of Principles Governing the Seabed and the Ocean Floor and the
Subsoil Thereof, Beyond the Limits of National Jurisdiction – Resolution 2749
XXV (1970)
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Chapter IV. RESPONSIBILITY OF STATES
(i) Scope: concerned with incidence and consequences of illegal acts and the
payment of compensation
(iv) Distinguish:
1. objective responsibility- strict liability (good or bad faith is immaterial)
2. subjective- fault theory
(v) Examples:
1. breach of treaty
2. injury to territory, property, diplomat of a State
3. injury to person/property of aliens
(vii) Requisites:
1. act/omission attributable to the State
2. breach of an international obligation
(viii) Categories:
1. Direct – when injury is against another State (any of its organs or agents).
2. Indirect – against the person or property of a national of another State.
(ix) Imputability: (direct responsibility)
§ State Organs
a. Executive – e.g. failure to take appropriate steps to punish culprits who are
police officers.
b. Legislative – e.g. if a treaty requires incorporation of certain rules in domestic
law, failure to do so entails responsibility.
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c. Judiciary – e.g. if the court commits errors in the application and
interpretation of treaties or fails to give effect to a treaty or is
unable to do so because the necessary change in or addition to,
the national law has not been made, its judgment involves the
State in a breach of treaty.
(x) Ultra vires acts of State organs and officials – considered act of State even if beyond
the competence of the agent for as long as there is proof of apparent authority or the act
was done within the general scope of authority. An example is when police officers take
revenge against another person but seemingly acted in the role of police to the average
observer.
(NOTE: Abuse of Rights – there could be compensation for the injurious consequences
of lawful acts of State organs or officials. An example is Article 22, par. 3 of the
Convention on the High Seas which allows compensation for loss or damage caused as a
result of the exercise of the right of warships to board merchants when suspicious
circumstances would warrant.)
Case law:
Youmans Case (RIAA iv. 110, 1926) – Here, soldiers were sent to protect
aliens besieged by rioters but ultimately joined in the attack which resulted in
the killing of the aliens. Soldiers inflicted personal injuries or committed
wanton destruction or looting act in disobedience of some rules laid down by
superior authority.
§ Private citizen – As a rule, acts of private citizens do not entail State responsibility. In
localized riots and mob violence, the State has the duty to take reasonable precautionary
and preventive action to protect foreign public and private property.
§ Rebels – Insurrectional movement’s act is act of State once it is established as the new
government. Belligerent groups may be held responsible for their acts during the armed
conflict. There is a duty on the part of the State to prevent or suppress the insurrection
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using the standard of due diligence; however, a higher standard of protection applies to
diplomats and consuls.
Case law:
Home Missionary Society Case (RIAA vi. 42, 1920) – This religious Society
suffered losses during the rebellion in the Protectorate of Sierra Leone. The
U.S. claimed compensation on behalf of the Society alleging that the British
Government failed to take appropriate steps for the maintenance of order. This
claim was dismissed because there was an assumption of risk on the part of the
Society and there was no failure of duty based on the facts.
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(GRP ratified the ICCPR and OP1 but is not a signatory to OP2); most
rights are self-executing rights.
These apply to certain areas of activity of aliens, like investment and trade
matters; for the protection of aliens against discriminatory acts of the host
State.
(NOTE: Alien is treated like a national of host State in all respects as to
property right – if protection pertains to the “person” of the alien, apply
international human rights law principles.)
Case law:
South-West Africa Cases, Second Phase (I.C.J. Reports, 1966, Dissenting
Opinion of Judge Tanaka) – “Apartheid” as violation of principle of
equality before the law.
(Philippines)
Mejoff v. Director of Prisons (90 Phil. 70) – Application of the UDHR by
Philippine Supreme Court in a habeas corpus case of an alien of Russian
descent who was brought to the country from Shanghai as a secret
operative by the Japanese forces. After the war, he was arrested as a
Japanese spy by the U.S. Army. He was detained by the Commonwealth
Government and was detained for 2 years after he was ordered deported.
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Article 8 of UDHR proclaimed that “everyone has the right to an effective
remedy by the competent national tribunals for acts violating …
fundamental rights…”
Central Bank Employees v. BSP (GR 148208, December 14, 2004) – The
equality provisions of international human rights instruments impose a
measure of positive obligation on State Parties to eradicate discrimination.
(Writ of Amparo)
Sec. of National Defense v. Manalo (G.R. No. 180906, October 7, 2008);
Reyes v. CA (GR 182161, December 3, 2009); Rubrico v. GMA (G.R. No.
183871, February 18, 2010); and, BOAC v. Cadapan (G.R. Nos. 184461-
62, May 31, 2011) – The writ of amparo is a remedial measure designed to
direct specific courses of action to government agencies to safeguard the
constitutional right to life, liberty and security of aggrieved individuals.
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(NOTE: Unsettled – amount of compensation and what constitutes
expropriation. Two views on the matter:
U.S. and capitalist States – “prompt, adequate, effective”
Socialist States – no compensation)
Case law:
Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the
Government of Libyan Arab Republic (Compensation for Nationalized
Property, 19 January 1977, 17 I.L.M. 1) – Companies entitled to
“restitutio in integrum” on the basis of violation of an internationalized
contract; tribunal disregarded issue of nationalization; reference to
general principles of law outside internal law – “breach of contract”;
private party has specific but limited “international capacities” in this
case.
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§ Responsibility for Environmental Harm
Case law:
The Trail Smelter Arbitration (3 R.I.A.A.1905, 1938/1941) – State is bound
to protect other States against injurious acts by individuals from within its
jurisdiction.
The Corfu Channel Case (supra.)- Albania could not permit use of its
territory to harm others.
The Stockholm Principles (1972) – The duty of States to notify other States
of activities that may have extra-territorial effect was not accepted (but see
U.N.G.A. Resolution 2995 (XXVII).
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parties to take legislative initiatives to ensure the effectiveness and
continuous improvement of the regime.
Case law:
DENR v. Concerned Residents (G.R. Nos. 171947-48, December 18,
2008) – Philippines is a member of the International Marine Organization
and a signatory to the International Convention for the Prevention of
Pollution from Ships. Clean-up of Manila Bay is a duty which covers
general pollution incidents.
§ International Claims
GR: Every State has a duty to protect its national. The State should establish its legal
interest by proving the nationality of the claim.
Forms of protection:
1. Protest
2. Enquiry
3. Negotiation
4. Submission to arbitral tribunal/court
Case law:
United States [North American Dredging Co. of Texas] v. United Mexican
States (4 R.I.A.A. 26, 1927); See dissent of Judge Nielsen in the subsequent
case of International Fisheries Co., (Nielsen’s Opinions 207, 1931) – Calvo
clause: “A contract containing a clause depriving the party subscribing to the
clause of the right to submit any claims connected with his contract to an
international commission.”; the individual can make such promise but can not
deprive his/her own state in applying international remedies; however, there is
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no rule of international law giving the State the right to intervene in order to
strike down such a lawful contract; the remedy of denial of justice is
independent of the violation of contract.
The Tattler (United States v. Great Britain, Nielsen Rep. 489, 1920) – The
American citizens’ waiver of claims (and right of libel) in consideration of the
release of the American schooner Tattler are not binding upon the U.S.
government.
Banco Nacional de Cuba v. Peter L.F. Sabbatino (376 U.S. 398, 1964) – The
Cuban Government characterized the reduction in the Cuban sugar quota by
the U.S. as an act of “aggression, for political purpose,” which prompted the
Cuban President to nationalize by forced expropriation property or enterprises
in which American nationals had an interest. The U.S. Supreme Court held
that “(h)owever offensive to the public policy of (the U.S.) and its constituent
States an expropriation of this kind may be, we conclude that both the national
interest and progress toward the goal of establishing the rule of law among
nations are best served by maintaining intact the act of state doctrine in this
realm of its application.”
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Alfred Dunhill of London Inc. v. The Republic of Cuba (425 U.S. 682, 48
L.Ed. 2d.301, 1976) – U.S. Supreme Court did not apply the act of state
doctrine to this case wherein the Cuban Government failed to return to Alfred
Dunhill of London, Inc. funds mistakenly paid by Dunhill for cigars that had
been sold to Dunhill by certain expropriated Cuban cigar businesses. The act
relied upon by Cuba was an act arising out of the conduct by Cuba’s agents in
the operation of cigar businesses for profit.
Buttes Gas and Oil Co. and Another v. Hammer and Another (3 W.L.R. 787,
H.L., 1981) – In a litigation instituted in the U.K. between two petroleum
companies, there were allegations of conspiracy to cheat and defraud the U.K.
involving foreign rulers in the Persian Gulf region. The plaintiffs (Buttes)
applied for an order that the court should not exercise jurisdiction in respect of
specified matters said to be “acts of state” of the governments of Sharjah,
Umm al Qaiwain, Iran and the U.K. The issue arose from a press conference
given in London in 1970 by Dr. Hammer wherein he accused Buttes of using
improper methods and colluding with the ruler of Sharjah to backdate a decree
by the ruler extending the territorial waters of Sharjah, from 3 miles to 12
miles so as to obtain for themselves the benefit of the oil-bearing deposit at
the location which Dr. Hammer claimed was discovered by and belonging to a
competitor of Buttes. It was held that the court cannot entertain the suit for it
would bring to trial non-justiciable issues.
(Philippines)
Vinuya v. Romulo (619 SCRA 533) – Espousal of claim on behalf of the
“Malaya Lolas” is discretionary upon the State (Peace Treaty of 1951 satisfied
claims).
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Chapter V. RESOLUTION OF DISPUTES
– Use of Force
§ General
Right to Protect
As restated in 2005 World Summit Outcome, the doctrine contemplates international action
where a state fails to protect its own citizens:
“Each individual State has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention
of such crimes, including their incitement… the international community… also has the
responsibility … to help protect populations [from such matters]… we are prepared to take
collective action, in a timely and decisive manner, through the Security Council in accordance
with the charter, including Chapter VII on a case-by-case basis.” (2005 World Summit.. paras
138-139)
Note: Security Council reaffirmed this “responsibility to protect” (SC Resolution 1674 UN
doc/S/RES/1674 (2006))
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Note:
Security Council indirectly incorporated that text into SC Resolution 1973 on LIBYA.
“reiterated the responsibility of the Libyan authorities to protect the Libyan population
and allowed the collective use of force under Chapter VII.”
Case law:
§ Jurisdiction
§ Aerial Incidence Case
§ Nicaragua v. U.S.
§ Case Concerning East Timor
§ Provisional Measures
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§ Nicaragua v. U.S.
§ Case Concerning Legality of Use of Force
§ Intervention
§ El Salvador v. Honduras
§ International Arbitration
Frabelle Fishing Corp. v. Philamlife (G.R. No. 158560, August 17, 2007) – To
brush aside a contractual agreement calling for arbitration would be a step
backward.
Gonzalez v. Hon. Pimentel (G.R. No. 167994, January 22, 2007) – RA 876
recognizes the contractual nature of arbitration agreement.
RCBC v. Banco de Oro (687 SCRA 583) – Partiality of the Chairman of the
Arbitral Tribunal was manifested when the Chairman gave the parties copies
of the ICC Bulletin which may have equipped RCBC with legal arguments.
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Chapter VI. SPECIAL TOPICS IN INTERNATIONAL LAW
(ii) Purpose:
(iv) Membership
(v) Organs of UN
Security Council}
ECOSOC } “council”
Trusteeship }
Secretariat }
ICJ } “organs”
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(vi) Security Council:
(viii) Secretariat
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(iv) GR: State duty to refrain from injuring others through economic acts.
(v) Safeguards and Escape Clauses: The GATT authorizes countervailing duties
on the importation of subsidized products only if the effect of subsidization is
such as to cause or threaten material injury to or to retard materially the
establishment of a domestic industry. It also permits the antidumping duty to
be in the full amount of the margin of dumping whenever there is a sale in the
importing State below “normal value.” An escape clause in GATT allows a
State party to suspend its obligation or withdraw or modify a concession with
respect to a product if, as a result of unforeseen developments the product is
being imported into its territory in such increased quantities and under such
conditions as to threaten serious injury to domestic producers.
(vi) Generalized System of Preferences: U.S. Trade Act of 1974 authorizes a GSP
which gives the President power to designate States as eligible to introduce
eligible goods free of duty or subject to reduced goods.
(viii) Free Trade Area (e.g. AFTA, NAFTA): eliminates barriers on trade among
members, but leaves each member State free to determine barriers to the
outside world.
(ix) Customs Union (e.g. EU): a grouping of States in which duties and other
restrictions are eliminated with respect to substantially all trade among
members, and substantially the same duties and other regulations are applied
by all members of the union to imports from all other States.
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3. 1963-2001– 12 multilateral treaties
a. On civil aviation (1963 Tokyo, 1970 Hague and 1971 Montreal)
b. Violence v. State leaders/officials/diplomats (1973) Convention
Preventing Crimes v. Internationally Protected Persons)
c. On taking hostages (1979)
d. On terrorist bombings (1996)
e. On financing of terrorism (1999)
(iii) Post 9-11-01: UN Security Council Resolution 1373 acting under Chapter VII
of the UN Charter on threats to peace and on aggression established the
“Counter-Terrorism Committee”
(ii) UNSCR 678: authorized the use of force to enforce Iraq’s obligation to
disarm.
(iii) UNSCR 687: authorized use of force against Iraq to eject it from Kuwait and
to restore peace in the area.
(iv) UNSCR 1441: provided for serious consequences should Iraq fail to comply
with its duty to disarm and cooperate with the UN Inspection team. The
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resolution also recognized that Iraq has continued to be in “material breach”
of past resolutions and gave it the last opportunity to comply.
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§ Codification: Hague Peace Conferences of 1899 and 1907
Included:
§ land and naval warfare
§ “belligerents” subject to law of nations
§ measures over occupied territory
§ rights and duties of neutral states
§ prohibition on arms, projectiles or material calculated to cause
unnecessary suffering
(NOTE: Apart from 1954 Hague Convention for Protection of Cultural
Property in Time of Armed Conflict, rules of war remained codified in1907.)
§ 1929 Conventions: revised 1864 and 1906 instruments and dealt with rules
concerning the wounded and sick in armies in the field and POWs
>Other Principles:
- Standard of care of POWs
- Prohibition on deportation
- Prohibition on indiscriminate distribution of property
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§ GC 3- POWs
Definition of POWs:
§ Members of Armed Force (including militias and volunteer corps)
§ Other militias and volunteer corps (including organized resistance movement)
Tests:
§ Commanded by person responsible for subordinates
§ Use of fixed distinctive sign
§ Carry arms openly
§ Operates in laws/ customs of war
§ Treatment of POWS:
§ No violence, intimidation, insults and public curiosity e.g Breach- display
POWs on TV confessing and criticizing governments (Iraq)
§ Information allowed - name, date of birth, serial number… but one cannot
use coercion to get information
§ Put in camps (away from combat zones)
§ A23- cannot use presence of POWs to render certain points immune from
military operations
§ POWs subject to laws of the State holding them
§ May be disciplined and prosecuted for war crimes
§ May be prosecuted for crimes against the holding State
- During hostilities:
A48, 81, P1– distinguish: population and combatants; civilian and military;
objectives
A51– civilians cannot be object of attack
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- prohibits acts or threats to violence or to spread terror
- no indiscriminate attack
A52– civilian objects shall not be object of attack
A53 and 1954 Convention on Cultural Property – cultural property and places of
worships, protected.
A54 – objects indispensable for survival of civilians (e.g. foodstuffs, agricultural
areas, livestock, water supplies, irrigation…)
A56 – installations containing dangerous forces (e.g. dams, dykes, nuclear
generating stations…)
Held: CIL (no need to be party to Hague Peace Conference or GC)- “overriding
consideration of humanity”
Note: On legality of possession or threat or use of nuclear weapons- not prohibited (for
self-defense) [see Nuclear Weapons Non-proliferation Treaty]
§ Disallowed weapons:
§ projectiles (St. Petersburg, 1868)
§ dum-dum bullets (Hague, 1899)
§ asphyxiating and deleterious gases (Hague, 1899) (Gen. Prot., 1925)
§ not detectible by x-ray (1980 Conventional Weapons Treaty, Prot. 1)
§ mines and booby- traps v. civilians (PII of 1980 CWT)
§ incendiary devices v. civilians or military objectives (P III of 1980 CWT)
Note: protect the environment from long-term and severe damage: A55, P1, GC; 1977
Convention on Prohibition of Military or any other Hostile Use of Environmental
Modification Techniques
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§ Therefore, A3 of the ITWCFY Statute gave jurisdiction “regardless of whether they
occurred within an internal or an international armed conflict.”
§ Non International Armed Conflict - Common A3 of 1949 GC and P II, 1977
Note: may range from full-scale civil wars to minor disturbances…
§ Protection accorded:
§ Persons taking no active part in hostilities to be treated humanely without any adverse
distinction based on race, color, religion or faith, sex, birth or wealth.
§ Prohibited acts:
§ Violence to life and person
§ Hostage-taking
§ Outrages upon human dignity
§ Passing of sentences and carrying out of executions in the absence of due process
§ Wounded and sick are to be cared for
§ P II, 1977
§ “armed forces” v. “dissident forces”
Test:
§ Responsible command
§ Exercise such control over part of territory
§ Able to carry out sustained and concerted military operations
§ Able to implement P II
§ Excluded:
§ Internal disturbances
§ Tensions
§ Riots
§ Sporadic acts of violence
§ Specific rights:
§ Protection v. violence to life, health
§ Protection v. torture, collective punishment, hostage-taking, terrorism
§ Protection v. outrage upon personal dignity, rapes and prostitution, pillage
§ Protection of children, civilians
§ Protection of works/installations which may cause severe losses
§ Protection of displaced civilians
§ Protection of prisoners/detainees
§ Protection of wounded/sick
§ Use of “Protecting Power”: Switzerland; to look after nationals of one State in the control
of one of conflicting parties
§ International Fact- Finding (PI):–grave breaches of GC
§ Ad Hoc Inquiry (both parties)
§ War crimes: subject to universal jurisdiction (e.g. Nuremberg Charter, A6- individual
responsibility for violations, etc…)
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§ Martens Clause- Russian delegate (Hague)
§ “unforeseen cases should, in the absence of a written undertaking, not to be left to the
arbitrary judgment of military commanders…”
§ “civilians and combatants remain under the protection… of the principles of the law of
nations.”
(f) The Rome Statute (ICC) and R.A. No. 9851 “Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity”
Genocide (Article 6)
§ Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnic, racial or religious group, as such:
§ Killing members of the group;
§ Causing serious bodily or mental harm to members of the group;
§ Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
§ Imposing measures intended to prevent births within the group;
§ Forcibly transferring children of the group to another group.
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§ Enslavement;
§ Deportation or forcible transfer of population;
§ Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
§ Torture;
§ Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
§ Persecution against any identifiable group or collectivity;
§ Enforced disappearance of persons;
§ The crime of apartheid;
§ Other inhumane acts.
(b) Other serious violations of the laws and customs applicable in international armed
conflict:
§ Attacks against the civilian population;
§ Attacks against civilian objects;
§ Attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping;
§ Attack in the knowledge that such attack will cause incidental loss of life
or injury and severe damage to the natural environment;
§ Attacking towns, villages, dwellings or buildings which are undefended;
§ Killing or wounding a combatant having laid down his arms;
§ Improper use of a flag of truce, of the flag or of the military insignia and
uniform of the enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions;
§ Transfer by the Occupying Power of parts of its own civilian population
into the territory it occupies, or the deportation or transfer of all parts of
the population of the occupied territory within or outside this territory;
§ Attacks against buildings dedicated to religion, education, art, science or
charitable purposes, historic monuments, hospitals and places where the
sick and wounded are collected;
§ Physical mutilation;
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§ Killing or wounding treacherously individual belonging to the hostile
nation or army;
§ Declaring that no quarter will be given;
§ Destroying or seizing the enemy’s property;
§ Declaring abolished the rights and actions of the nationals of the hostile
party;
§ Compelling the nationals of the hostile party to take part in the operations
of war directed against their own country;
§ Pillaging a town or place;
§ Employing poison;
§ Employing bullets which expand or flatten;
§ Employing weapons which are of a nature to cause superfluous injury
provided that such weapons are the subject of a comprehensive
prohibition;
§ Outrages upon personal dignity;
§ Committing rape or any other form of sexual violence;
§ Utilizing the presence of a civilian to render certain points immune from
military operations;
§ Attacks against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions;
§ Using starvation of civilians as a method of warfare ;
§ Enlisting children under the age of 15
(c) In the case of an armed conflict not of an international character, serious violations
of article 3 common to the four Geneva Conventions of 12 August 1949:
(a) Violence to life and person;
(b) Outrages upon personal dignity;
(c) Taking of hostages;
(d) Passing of sentences and the carrying out of executions without previous
judgement.
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Preconditions to the exercise of jurisdiction (Article 12)
§ In the case of article 13, par. (a) or (c), the Court may exercise its jurisdiction if one or
more of the following States are Parties to this Statute or have accepted the jurisdiction of
the Court in accordance with paragraph 3;
n The State on the territory of which the conduct in question occurred or, if the crime
was committed on board a vessel or aircraft, the State of registration of that vessel
or aircraft;
n The State of which the person accused of the crime is a national.
§ If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise
of jurisdiction by the Court with respect to the crime in question.
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PUBLIC INTERNATIONAL LAW (As of October 30, 2017)
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Preliminary rulings regarding admissibility (Article 18)
§ The prosecutor shall notify all States Parties
§ Within one month of receipt of that notification, a State may inform the Court that it is
investigating or has investigated its nationals or others within its jurisdiction
§ Challenges to the jurisdiction of the Court or the admissibility of a case (Article 19)
1. The Court may, on its own motion, determine the admissibility of a case.
2. Challenges to the admissibility of a case may be made by:
(a) An accused or a person for whom a warrant of arrest or a summons to appear has
been issued under article 58;
(b) A State which has jurisdiction over a case, on the ground that it is investigating or
prosecuting the case or has investigated or prosecuted or;
(c) A State from which acceptance of jurisdiction is required under article 12.
(a) Admissibility of a case or the jurisdiction of the Court may be challenged only once by any
person or State referred to in paragraph 2. Challenge shall take place prior to or at the
commencement of the trial. Challenges to the admissibility of a case, at the commencement
of a trial, or subsequently with leave of the Court, may be based only on article 17, paragraph
1(c).
(b) If the Court has decided that a case is inadmissible under article 17, the Prosecutor may
submit a request for a review of the decision.
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Part 4.Composition and Administration of the Court
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Removal from office (Article 46)
§ Serious misconduct or a serious breach of duties.
§ Unable to exercise the functions.
§ Made by the Assembly of States Parties.
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PUBLIC INTERNATIONAL LAW (As of October 30, 2017)
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Role of the Pre-Trial Chamber in relation to a unique investigative opportunity (Article 56)
(a) Take testimony which may not be available subsequently for the purpose of a trial.
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PUBLIC INTERNATIONAL LAW (As of October 30, 2017)
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Presumption of innocence (Article 66)
– Beyond reasonable doubt.
Article 68
n Protection of the victims and witnesses;
n Proceedings in camera.
Part 7. Penalties
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C. Protection of information;
D. Where a State Party fails to comply with a request to cooperate, refer the matter to the
Assembly of States Parties or to the Security Council.
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Postponement of execution of a request in respect of ongoing investigation or prosecution
(Article 94)
• Postponement shall be no longer than is necessary to complete the relevant
investigation or prosecution.
Contents of request for other forms of assistance under article 93 (Article 96)
§ In writing. In urgent cases, any medium capable of delivering a written record.
Cooperation with respect to waiver of immunity and consent to surrender (Article 98)
§ Court may not proceed with a request for surrender or assistance which would require the
requested State to act inconsistently with its obligations under international law with
respect to the State or diplomatic immunity of a person or property of a third State, unless
the Court can first obtain the cooperation of that third State for the waiver of the
immunity.
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PUBLIC INTERNATIONAL LAW (As of October 30, 2017)
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Part 10. Enforcement
Funds of the Court and of the Assembly of States Parties (Article 115)
(a) Assessed contribution;
(b) Funds provided by the United Nations.
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Case Study
Application of International Criminal Law to Philippine Municipal Law: R.A. 9851- Issues
and Concerns
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Preliminary Considerations
n Chapter I: Declaration of Principles
1. Doctrine of Incorporation – generally accepted principles of I.L. (par. a)
2. Adoption of IHL (par. d)
3. Fair Trial – follow international standards (par. f)
4. No implied recognition of belligerency – shall not affect legal status of the parties
to a conflict (par. g)
§ Chapter II – Definition
1. Armed Conflict (par. c)
§ State v. State (International Character)
§ Protracted Armed Violence: Government v. Organized Armed Groups (Non-
International)
§ Armed Groups v. Armed Groups (Non-International)
(NPA v. MILF)
(MILF v. ASG)
2. Standards of Armed Forces (par. d)
a. Responsible Command
b. Disciplinary System
c. Compliance with IHL
3. Enforced or Involuntary Disappearance
§ State or political organization (Non-State Actor)
Note: Only instance NSA mentioned (?)
4. Forced pregnancy
1. To affect ethnic composition (Africa, Bosnia)
5. Perfidy (par. j)
(a) Betrayal of confidence of an adversary
6. Protected Person (par. q)
§ Stateless or Refugee
§ Chapter III: Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity
1. War Crimes – Four (4) Geneva Conventions and Protocols
a. International Armed Conflict
§ Willful killing
§ Torture
§ Wanton destruction of property (outside military necessity)
§ Unfair trial of POW
§ Arbitrary deportation
§ Hostage-taking
§ Forced military service
§ Unjustifiable delay in repatriation of prisoners
b. Non-International Armed Conflict
1. Common A3 of Geneva Conventions violations – willful killing, torture, outrages
upon personal dignity, hostage-taking, no judicial process
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c. Other serious violations of customs applicable in armed conflict
1. Guide to type of violations:
§ Attacks vs. non-combatants, peace-keeping missions
§ Attacks vs. non-military targets
§ Severe damage to environment
§ Improper use of flag of truce, enemy uniform, protective signs
§ Physical mutilation or scientific experimentation of subject persons
§ Perfidy
§ Displacement of civilian population
§ Torture, humiliation
§ Sexual violence
§ Inhumane methods of warfare
2. Genocide – destroy a stable group (national, ethnic, racial, religious or social)
3. Other Crimes Against Humanity – widespread or systematic attack v. civilian
population
3. Responsibility of Superiors
(a) Actual or presumed knowledge; and
(b) Failure to address, investigate or prosecute
4. Imprescriptibility
5. Orders from a Superior
Note: Exculpatory if
(a) Under legal obligation to obey
(b) Lack of knowledge of unlawfulness of order
(c) Order not manifestly unlawful
Note: “manifestly unlawful” – genocide, crimes v. humanity
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2. Reparations to Victims
§ Restitution, compensation, rehabilitation
A. Concept of Environment
• Basic Elements of the Earth: air, land and water
• All living elements of the earth as well as natural resources
• Holistic: place of humans in the environment
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2. Preliminary Considerations
Principle 21 – “states have, in accordance with the Charter of the United Nations and the
Principles of International Law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of
other states or of areas beyond the limits of national jurisdiction.”
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§ Rio Declaration (1992) and AGENDA 21
Principle 10
– “x x x participation of all concerned citizens x x x”
– “x x x access to information concerning the environment x x x”
– “x x x effective access to judicial and administrative proceedings x x x”
Principle 15
– “x x x the precautionary approach shall be widely applied by states according to their
capabilities. Where there are threats of serious or irreversible damage, lack of full
scientific certainty shall not be used as reason for postponing cost-effective measures to
prevent environmental degradation.”
Principle 16
– “x x x the polluter should, in principle, bear the cost of pollution, x x x”
Principle 17
– “x x x EIA x x x as a national instrument x x x”
4. The Core Environmental Law Rights and Duties In Relation to Philippine Constitutional
Law Framework
INTERNATIONAL CONSTITUTION
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§ Freedom of Association
INTERNATIONAL CONSTITUTION
INTERNATIONAL CONSTITUTION
§ Sectoral Concerns
INTERNATIONAL CONSTITUTION
1. Indigenous Peoples § A12, S.5 (ancestral domain) in
1. ILO 169 (Tribal Population) relation to A2, S.22 (indigenous
2. UNDRIPS, 2007 peoples), A10, S.15-21
3. Principle 22, Rio Declaration + (autonomous region), A13, S.6
Chapter 26, Agenda 21 (ancestral lands)
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4. Migrant Workers – A13, S.3 (overseas workers)
§ Migrant Workers’ Convention
Jurisprudence:
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