CHAPTER 14  Measures taken by Members in the exercise of this
Use of Force Short of War right of self-defense shall be immediately reported to
What is the basic principle found in the UN Charter with
respect to the recognition of the autonomy of individual
states and their right to freedom from coercion and to
the integrity of their territory?
 Article 2(4) provides that, “All Members shall refrain in
their international relations from the threat or use of
force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations”.
(Bernas, 2009)
 This same provision is considered the legal prohibition
against the use of force in International Law.
(Sarmiento, 2007).
Does Article 2(4) of the UN Charter absolutely outlaw
the threat or use of force outside the UN Charter?
There are two conflicting views on this matter:
a) The Restrictive View, which is based on interpretation
of the principles underlying Article 2(4) of the UN
Charter. Its proponents claim that Article 2(4) was
written with the view of abolishing war entirely.
b) The Qualified Prohibition View, which is based on
the plain meaning of Article 2(4). Its proponents argue
that Article 2(4) only prohibits certain end results, i.e.
when force is used against the territorial integrity or
political independence of any state.
What is the nature of the prohibition of the use of force
as an international law?
 The prohibition is not just conventional law. It is a
customary international law. (Bernas, 2009)
Is the threat of force also prohibited by the UN Charter?
 In the discussion by the ICJ in the case of the Legality
of the Threat or Use of Nuclear Weapons, it declared
that, “The notions of ‘threat’ and ‘use’ of force under
Article 2, paragraph 4 stands together in the sense that
if the use of force itself in a given case is illegal – for
whatever reason - the threat to use such force will
likewise be illegal…”
What are the two considered exceptions to the general
prohibition of the use of force in Art.2, par. 4 of the UN
Charter?
1) Article 51 where the Charter recognizes the inherent
right of individual or collective self-defense if an armed
attack occurs;
2) Article 42, whereby the Security Council may take
military enforcement measures in conformity with
Chapter VII of the Chapter. (Sarmiento, 2007)
Does the general prohibition of the use of force
preclude the right to self-defense?
 Article 51 provides that the Charter shall not impair the
inherent right of individual or collective self-defense if
an armed attack occurs against a Member of the UN,
until the Security Council has taken measures
necessary to maintain international peace and security.
the Security Council and shall not in any way affect the
authority and responsibility of the Security Council
under the present Charter to take at any time such
action as it deems necessary in order to maintain or
restore international peace and security. (Bernas,
2009)
What are the limitations to the exercise of the right to
individual or collective self-defense?
1) whether self-defense be individual or collective, it can
only be exercised in response to an “armed attack”
which shall include not merely action by regular armed
forces across an international border, but also the
sending by a State of armed bands on to the territory
of another State, if such an operation, because of its
scale and effects, would have been classified as an
armed attack had it been carried out by regular armed
forces
2) collective self-defense cannot also be exercised in the
absence of a request by the State which is a victim of
the alleged attack this being additional to the
requirement that the State in question should have
declared itself to have been attacked. (Ibid)
What are the requisites of self-defense under Article 51
of the UN Charter?
1) an armed attack occurred against a member of the UN;
2) It must be “confined to cases in which the necessity of
that self-defense is instant, overwhelming, and leaving
no choice of means, and no moment for deliberation”;
3) The measures taken “must be limited by that necessity
and kept clearly within it”
4) The right of self-defense must give way to measures
that may be taken by the Security Council to maintain
international peace and security. (Sarmiento, 2007)
What are the requirements of “necessity and
proportionality” in self-defense?
 They embody the requirements for a valid act of self-
defense as formulated by US Secretary of State Daniel
Webster in his letter in the Caroline Incident. According
to him, self-defense was to “be confined to cases in
which the necessity of that self-defense is instant,
overwhelming, and leaving no choice of means, and no
moment for deliberation” and that such actions justified
by that necessity ”must be limited by that necessity and
kept clearly within it.
 These requirements apply whether a state is acting in
self-defense against an attack which has already
occurred or acting in anticipatory self-defense.
(Malone, 148
 These requirements were affirmed by the ICJ in its
decision in Nicaragua vs. US, June 27, 1986. (Ibid)
What is the right of collective self-defense?
 If the state is entitled to use force in self-defense under
Article 51, other states are entitled to come to the
defense of the attacked state in collective self-defense.
This right exists independently of the existence of a
1
 mutual defense treaty between the attacked state and
the other states which come to its defense.
May a state exercise the collective right of self-defense
without an explicit request for assistance from the state
on whose behalf the right is to be exercised?
 In Nicaragua vs US, the ICJ concluded that the US was
not entitled to come to the defense of El Salvador,
Honduras, and Costa Rica because at that time it had
not been requested to do so. It held that the exercise
of the right of collective self-defense presupposes that
an armed attack has occurred; and the victim state
draws general attention to its plight and finally, the
victim state makes an express request to other states
to come to its help.
Is anticipatory self-defense allowed?
 Opinion on the subject is divided. Those who claim the
existence of the right say that the phrase “if an armed
attack occurs” is not exclusive which is reminiscent of
the view that protection of “vital interests” justifies the
use of force
 In practical terms, however, states do not invoke the
right because they are afraid that it might be used
against them too.
What are the other measures of redress short of war
that are used by states?
a) severance of diplomatic relations
b) non intercourse
c) retorsion;
d) embargo;
e) reprisals
f) display of force;
g) pacific blockade
h) armed intervention without war;
i) international organizational sanctions. (Sarmiento,
2007)
Are these methods short of war allowed under
International Law?
 With the adoption of the UN Charter, all measures short
of war that involves the threat or use of force against
the territorial jurisdiction or political independence of
any state or in any other manner inconsistent with the
purposes of the UN are no longer allowed. (UN
Charter Art. 2[4])
 All members of the UN shall settle their international
disputes by peaceful means in such a manner that
international peace and security, and justice, are not
endangered. (Ibid, Art. 2[3])
 However, this is without prejudice to the authority of the
Security Council under Chapter VII of the UN Charter
to decide what measures are to be employed to give
effect to its decisions, and it may call upon the
Members of the UN to apply such measures which may
include:
a) complete or partial interruption of economic
relations and of rail, sea, air, postal,
telegraphic, radio, and other means of
communication;
b) the severance of diplomatic relations;
c) demonstrations;
d) blockade; and
e) other operations by air, sea or land forces.
What is severance of diplomatic relations?
 Before resorting to one or other of the various forms of
coercion, it was common for governments to break off
diplomatic relations with the offending state by recalling
their public ministers resident at the foreign capital.
However, this measure was not in itself a form of
forcible procedure, but rather to serve as a warning that
the issue between the two states had reached a point
where the injured party regarded normal diplomatic
relations as no longer compatible with the conduct of
the other state, and that sterner measures might
possibly follow. (Fenwick, 531 as cited in Sarmiento,
2007)
 Severance should be distinguished from suspension of
diplomatic relations. Suspension involves withdrawal
of diplomatic representation but not of consular
representation. (Bernas, 2009)
What is non-intercourse?
 It consists of suspension of all commercial intercourse
with a state.
What is retorsion?
 It is any action taken in “retaliation where the acts
complained of do not constitute a legal ground of
offense but are rather in the nature of unfriendly acts
but indirectly hurtful to other states.” (Fenwick, 532 as
cited in Cruz, 2000) The act of retaliation is also
unfriendly but not illegal and may be in kind or of a
different nature than the act that provoked it. Examples
of retorsions are severance of diplomatic or consular
relations, suspension of commercial intercourse,
boycott, stoppage of travel to the other state,
denunciation of treaties, imposition of higher tariffs and
other trade barriers, currency restrictions, denial of
loans and withdrawal of privileges previously enjoyed,
recognition of a rival government, and adverse
propaganda.
 Other author describes it as any of the forms of
counter-measures in response to an unfriendly act.
Forms of retorsion include shutting of ports to vessels
of an unfriendly state, revocation of tariff concessions
not guaranteed by treaty, or a display of naval forces
near the waters of an unfriendly state. (Bernas, 2009)
Is retorsion valid under International Law?
 As long as retorsion does not involve the threat or use
of force, it is valid under International law. (Sarmiento,
2007)
What are reprisals?
 They are an act of self-help on the part of the injured
state, responding after an unsatisfied demand to an act
contrary to international law on the part of the
offending state. They have the effect of suspending
momentarily in the relations of the two states the
observance of this or that rule of international law.
They are limited by the experience of humanity and the
2
 rules of good faith, applicable in the relation of state
with state.
 They would be illegal if a previous act contrary to
international law had not furnished the reason for them.
They aim to impose on the offending state reparation
for Arbitration, Portuguese-German Arbitral Tribunal,
1928 as cited in Cruz, 2000
 Justice Cruz enumerated the more common forms of
reprisals as to include
a) display of force, as when the US Mediterranean
Fleet proceeded to and deployed along the coasts
of Turkey in 1903 pending compliance with the
demand for the return of an American national
kidnapped by a Turkish bandit;
b) occupation of territory, as when Italy seized the
Greek island of Corfu in 1923 for the murder of
certain Italian officers in Greece;
c) embargo or the detention by the state seeking
redress of the vessels of the offending state or its
nationals, whether such vessels are found in the
territory of the former or on the high seas, as
illustrated by the action taken by Holland against
Venezuela in 1908;
d) pacific blockade, by which the vessels of the
offending state are prevented from entering or
leaving its ports by the ships of the state seeking
redress, as was done by the Great Powers against
Greece in 1886 to dissuade it from going to war
against Turkey. (2000)
When is act of reprisal legitimate?
 In the Naulilaa Arbitration Case (Portugal vs Germany),
2 RIAA 1011(1928), the Versailles Swiss arbitral panel
laid down three conditions for the legitimacy of
reprisals:
a) there must have been an illegal action on the part
of the other state;
b) they must be preceded by a request for redress of
the wrong, for the necessity of resorting to force
cannot be established if the possibility of obtaining
redress by other means is not even explored;
c) the measures adopted must not be excessive, in
the sense of being out of all proportion to the
vocation received. (Sarmiento, 2007)
In the present state of IL, may reprisals still be held
legitimate?
 Since the Kellog-Briand Pact of 1928 (Pact of Paris) all
forms of reprisals which may involve the use of force
are no longer legal. Article 2 of the Pact states that “the
settlement or solution of all disputes or conflicts of
whatever nature or of whatever origin they may be shall
never be sought except by pacific means.” This
prohibition was reaffirmed by the UN Charter, Art. 2
[3,4].
What is embargo?
 It is the prohibition of commerce and trade with the
offending state. Laying an embargo upon all vessels
of the offending state that happen at the time to be in
the ports of the state seeking redress does not
contemplate confiscation (which is considered an act
of war), except in the event that the redress for injuries
suffered should be finally refused. (Fenwick, 534 cited
in Sarmiento, 2007)
 This can consist of seizure of vessels even in the high
seas. It might also be pacific, as when a state keeps
its own vessels for fear that it might find their way in
foreign territory. There can also be collective embargo,
e.g. on import of drugs or of oil. (Bernas, 2009)
What is boycott? Does it constitute a violation of IL?
 It is a concerted action undertaken by the citizens of
one state to suspend trade and business relations with
the citizens of the offending state. So long as the
boycott is a purely voluntary act on the part of the
citizens acting individually or in concert, it is a measure
that falls outside of the scope of IL. But if any element
of governmental pressure, or even of governmental
persuasion should enter into boycott, there would be
ground for protest by the foreign government.
(Fenwick, 535 cited in Sarmiento, 2007
 It is a form of reprisal which consists of suspension of
trade or business relations with the nationals of an
offending state. Some claim that this is a form of
economic aggression which should be prohibited by
law. (Bernas, 2009)
What is blockade?
 It is any effort to cut off all maritime commerce between
an enemy state and the rest of the world. The purpose
was not only to prevent goods from reaching the
enemy but also to prevent the enemy from exporting to
the outside world and thereby sustaining its war
economy. (Sarmiento, 2007)
What three things must be specified in a declaration of
blockade?
 Article 9 of the 1909 Declaration of London concerning
Laws of Naval War enumerates the things that a
declaration of blockade must specify:
a) the date when the blockade begins;
b) the geographical limits of the coastline under
blockade;
c) the period within which neutral vessels may come
out.
Is blockade lawful in international law?
 A blockade is lawful if made upon the order or authority
of the UN Security Council pursuant to Article 42 of the
UN Charter, that is, as a measure to maintain or restore
international peace and security. Otherwise, if not
authorized by the Security Council, then it will fall under
the UN Charter’s general prohibition against the use of
force under Article 2(4). (Ibid)
In the event that none of the above-discussed methods
succeeds in settling the dispute, or even if they are not
employed, may the UN be asked or decide on its own
authority to take a hand in the settlement?
 Yes, this task is addressed principally to the Security
council but may, when the occasion requires, be taken
over by the General Assembly under proper conditions.
(Cruz, 2000)
3
What disputes are within the Security Council’s
jurisdiction?
a) all disputes affecting international peace and
security (UN Charter Arts. 24, 34)
b) all disputes which, although coming under the
“domestic jurisdiction clause,” have been
submitted to it by the parties for settlement (Ibid,
Article 2) (Cruz, 2000)
How may such disputes be brought to the attention of
the SC?
a) by the SC itself, on its own motion (Ibid, Art.39);
b) by the GA (Arts 10 & 11);
c) by the Secretary General (Art. 99);
d) by any member of the UN (Art. 35);
e) by any party to the dispute, provided that in the
case of non-members of the UN, they should
accept in advance, for purposes of the dispute, the
obligations of pacific settlement under the Charter.
(Arts. 35 & 37) (Cruz, 2000)
What are the steps under the UN Charter that shall be
taken by the SC in settling disputes brought to its
attention?
1) when it deems necessary, call on the parties to settle
the dispute by any peaceful means in their own choice
(Art 33)
2) in case the parties are unable to adjust their differences
by themselves through the peaceful methods
suggested, it may recommend appropriate measures
or methods of adjustment, taking into consideration: a)
any amicable measures already adopted by the
parties; and b) that legal disputes should as a rule be
referred to the ICJ (Art. 36);
3) if the above measures prove unavailing, then it may
recommend such actual terms of settlement as it may
consider appropriate (Art 36) which is in the nature of
a compulsory settlement of the dispute which the
parties are under obligation to abide by in the interest
of international peace and security.
4) Finally, where the terms of settlement are rejected by
any of the parties, it is empowered to take more drastic
steps which include:
4.1) preventive action which consists of measures not
involving the use of armed force, such as
complete or partial interruption of economic
relations and of rail, sea air, postal, telegraphic,
radio and other means of communication, and
severance of diplomatic relations (Art 41);
4.2) enforcement action which may be taken if the
above measures would be or have proved
inadequate, or such action by air, sea or land
forces as may be necessary to maintain or restore
international peace and security. It may include
demonstrations, blockades, and other operations
by air, sea, or land forces of members of the UN
(Art 41). (Cruz, 2000)
What is the Military Staff Committee?
 It consists of the chiefs of staff of the permanent
members of the SC or their representatives. It is
supposed to advise and assist the SC on all questions
relating to its military requirements for the maintenance
of international peace and security, the employment
and command of forces placed at its disposal, the
regulation of armaments, and possible disarmament. It
shall also be responsible under the SC for the strategic
direction of any armed forces placed at the disposal of
the said Council (Art 47). (Cruz, 2000)
What is “Uniting for Peace Resolution”?
 This provides that “if the Security Council, because of
lack of unanimity of the permanent members, fails to
exercise its primary responsibility for the maintenance
of peace and security in any case where there appears
to be threat to the peace, breach of peace, or act of
aggression, the General Assembly shall consider the
matter immediately with a view to making
recommendations to the members for collective
measures, including in the case of breach of the peace
or act of aggression, the use of armed forces when
necessary, to maintain or restore international peace
and security.” (Ibid)
What if the GA is not in session at the time?
 The GA may meet in emergency special session within
24 hours of the request therefor either by any nine
members of the SC or by a majority of the members of
the UN.
 Conformably to this resolution, the General Assembly
on November 4, 1956, provided for the establishment
of an international “police force” under the UN
command to supervise the area involved in the Suez
Canal crisis, in which two of the permanent members
of the SC were directly involved. (Cruz, 2000)
Distinguish enforcement action from peacekeeping
forces?
 Enforcement action involving deployment of troops
differs from peacekeeping forces in that enforcement
action is imposed without the consent of the state
against which such action is directed, while
peacekeeping forces are deployed with the consent of
the state concerned like the first United nations
Emergency Forces (UNEF 1) which was deployed by
the GA with the consent of Egypt in 1956 and the
ONUC (Operation des Nations Unies au Congo) which
was deployed by the SC in 1960 with the consent of
Congolese government during the Congolese civil war.
(Malone, 144-145 cited in Sarmiento, 2007).
Is the preservation and maintenance of international
peace and security the “exclusive” responsibility of the
SC?
 No, the preservation and maintenance of international
peace and security is the “primary”, but not the
“exclusive,” responsibility of the SC. (Certain Expenses
Case)
 The preservation and maintenance of international
peace and security is the obligation of all members of
the UN and the responsibility of the Organization itself,
which must be discharged primarily through the SC
and secondarily through the GA. (Sarmiento, 2007)
4
Is protection of nationals abroad an aspect of the right
to self-defense in Article 51?
 Though the legitimacy of such intervention is not firmly
established in international law, the proponents believe
that such position can be defended since population is
an essential element of statehood. Others argue that
Article 2(4) does not prohibit it because it does not
compromise the “territorial integrity or political
independence” of a state.
 Examples of forcible rescue of nationals are the raid of
Entebee in Uganda and the US intrusion into
Stanleyville to rescue American students. (Bernas,
2009)
When is “humanitarian intervention” permissible?
1) If the SC determines that massive violations of human
rights occurring within a country constitute a threat to
the peace; and
SC then calls for or authorizes an enforcement action to put
an end to these violations. (Ibid)
What is intervention in international law?
 Justice Cruz includes intervention along with retorsions
and reprisals in the hostile methods of settling
international disputes.
 It is defined as an act by which a state interferes with
the domestic or foreign affairs of another state or states
through the employment of force or threat of force.
Such force may be physical or, in the present state of
world affairs, even political or economic. Lacking such
pressure, the involvement of a state in the affairs of
another, even if unsolicited, cannot be considered
intervention
 Intervention is not sanctioned in international relations
except only when it is exercised as an act of self-
defense or when it is decreed by the SC as a
preventive or enforcement action for the maintenance
of international peace and security. Other others add
as exception if intervention is agreed upon in a treaty.
Intervention may also be allowed when requested from
sister states or from the UN by the parties to a dispute
or by a state beset by rebellion. (Cruz, 2000)
CHAPTER 15
The Law of War (International Humanitarian Law)
What is International Humanitarian Law?
 It used to be known as Laws of War which provides for
instances when the use of armed force is justifiable (jus
ad bellum) and it regulates the conduct of armed
conflict (jus in bello). (Bernas, 2009)
 It is a set of rules which seeks, for humanitarian
reasons, to limit the effects of armed conflict. It
protects persons who are not or are no longer
participating in the hostilities and restricts the means
and methods of warfare. (ICRC Fact Sheet, What is
International Humanitarian Law cited in Sarmiento,
2007)
Did early international law consider war as unlawful?
 No. Early international law did not consider as unlawful
a war waged to gain political or other advantages over
another. In fact, war was in law a natural function of
the State and a prerogative of its uncontrolled
sovereignty. (Hyde, 1922 cited in Bernas, 2009)
Prior to World War II, what were the early attempts to
outlaw war?
 Early attempts to outlaw war were found inHague
Convention II in 1907, Covenant of the League of
Nations (1919), and in the Kellog-Briand Pact for the
Renunciation of War (1928). (Ibid)
What law formulated after the Second World War was
considered more effective in preventing war?
 The UN Charter which provides:“ All Members shall
refrain, in their international relations, from the threat
or use of force against the territorial integrity or political
independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
Art 2(4) (Ibid)
How can the paradox that despite the prohibition of
armed conflict, there is the proliferation of laws of war,
be explained?
Three facts can explain the paradox:
1) Those who resort to the use of arms do not give up until
they have achieved victory;
2) Given the first fact, humanitarian consideration dictates
the need for rules which curtail violence beyond what
is necessary to achieve a state’s goal; and
3) There still remains in the hearts of the soldiery an
acceptance of chivalry as a value. (Ibid)
What were the provisions of the Hague Law?
 The Conventions and Declaration in 1899 and the
conferences held in 1907 produced principles that
constitute that part of the law of armed conflict still
known as the Law of the Hague governing land and
naval warfare. Principles governing the conduct of air
warfare were to follow later.
What do Geneva Conventions of 1949 provide?
There are four Geneva “Red Cross” Conventions which
consist of the following:
1) I – Wounded and Sick in the Field;
2) II - Wounded, Sick and Shipwrecked at Sea;
3) III - Prisoners of War;
4) IV – Civilians
The essence of the Geneva Conventions is that persons
not actively engaged in warfare should be treated
humanely. The rules apply to any international armed
conflict, whether a declared war or not. (Ibid)
How are non-parties to these Conventions bound by
them?
 Since much of what are embodied in the Hague and
Geneva Conventions are customary law, non-parties to
the Convention are covered by the customary law of
armed conflict. It has become common practice when
one of the parties to the conflict is not a party to the
5
 conventions for such party to make a declaration that it
will abide by the terms of the Convention. (Ibid)
What are the three statements of the ICRC which sum
up the basic rules governing armed conflicts?
1) Soldier’s Rules;
2) Fundamental Rules of International Humanitarian Law
Applicable to Armed Conflicts; and
3) Non-international Armed Conflicts
How are the agreements or conventions on the laws of
war enforced?
The commonly accepted sanctions are:
1) protest lodged by one belligerent, usually
accompanied or followed by an appeal to world opinion
against the unlawful acts of warfare committed by the
other belligerent;
2) reparation for damages caused by the defeated
belligerent; and
3) punishment of war criminals (Cruz, 2000)
How does war commence?
 War may start with a declaration of war (The Hague
Conventions of 1907); with the rejection of an
ultimatum, or with the commission of an act of force
regarded by at least one of the belligerents as an act
of war. (Cruz, 2000)
What are the effects of the outbreak of war?
1) The laws of peace cease to regulate the relations of
the belligerents and are superseded by the laws of war.
Third states are governed by the laws of neutrality in
their dealings with the belligerents.
2) Diplomatic and consular relations between the
belligerents are terminated and their respective
representatives are allowed to return to their own
countries.
3) Treaties of political nature, such as treaties of alliance,
are automatically cancelled, but those which are
precisely intended to operate during war, such as one
regulating the conduct of hostilities between the
parties, are activated. Multipartite treaties dealing with
technical or administrative matters, like postal
conventions, are deemed merely suspended as
between the belligerents.
4) Individuals are impressed with enemy character:
a) under the nationality test, if they are nationals of
the other belligerent, wherever they may be; b)
b) under the domiciliary test, if they are domiciled
aliens in the territory of the other belligerent, on
the assumption that they contribute to its
economic resources; and
c) under the activities test, if being foreigners, they
nevertheless participate in the hostilities in favor of
the other belligerent.
Corporations and other juridical persons, on the
other hand, are regarded as enemies if a majority
or a substantial portion of their capital stock is in
the hands of enemy nationals or if they have
incorporated in the territory or under the laws of
the other belligerent.
5) Enemy public property found in the territory of the other
belligerent at the outbreak of hostilities is, with certain
exceptions, subject to confiscation. Enemy private
property may be sequestered, subject to return,
reimbursement or other disposition after the war in
accordance with the treaty of peace. (Ibid)
Who are combatants?
The following are regarded as combatants:
1) the members of the armed forces, whether pertaining
to the army, the navy or the air force, except those not
actively engaged in combat, such as chaplains and
medical personnel;
2) the irregular forces, such as the francstireurs or the
guerillas, provided, that: a) they are commanded by a
person responsible for his subordinates; b) they wear
a fixed distinctive sign recognizable at a distance; c)
they carry arms openly; and d) they conduct their
operations in accordance with the laws and customs of
war.
3) the inhabitants of unoccupied territory who, on
approach of the enemy, spontaneously take arms to
resist the invading troops without having had time to
organize themselves, provided only that they carry
arms openly and observe the laws and customs of war.
This is often referred to as levee en masse.
4) the officers and crew of merchant vessels who forcibly
resist attack.
What are the rights accorded to combatants when
captured?
1) right to the proper respect commensurate with their
rank;
2) right to adequate food and clothing;
3) right to safe and sanitary quarters;
4) right to medical assistance;
5) right to refuse to give military information or render
military service against their own state;
6) right to communicate with their families.
Non-combatants or those who do not engage directly in
hostilities do not enjoy identical rights when captured but
are protected from inhumane treatment under the Geneva
Convention of 1949 relative to the treatment of civilian
persons in time of war.
What are the three basic principles underlying the rules
of warfare?
1) Principle Of Military Necessity
 Under this principle, the belligerents may, subject to the
other principles, employ any amount and kind of force
to compel the complete submission of the enemy with
the least possible loss of lives, time and money.
Measures such as sieges, blockades, bombardments,
and devastation of property, which may involve direct
hardships on the non-combatants within the area
affected, are undertaken under this principle.
2) Principle Of Humanity
 This principle prohibits the use of any measure that is
not absolutely necessary for the purposes of the war,
such as the poisoning of wells and weapons, the
6
 employment of dumdum or expanding bullets and
asphyxiating gases, the destruction of works of art and
property devoted to religious or humanitarian
purposes, the bombarding of undefended places, and
attack of hospital ships.
 When an enemy vessel is sunk, the other belligerent
must see to the safety of the persons on board. Pillage
(taking of goods by force in time of war) is prohibited.
The wounded and the sick must be humanely treated
without distinction of nationality by the belligerent in
whose power they are. The rule that a combatant who
surrenders may not be killed and the agreements
relating to the treatment of prisoners of war also fall
under this principle.
3) Principle Of Chivalry
 This principle is the basis of such rules as those that
require the belligerents to give proper warning before
launching a bombardment or prohibit the use of perfidy
(treachery or faithlessness) in the conduct of hostilities.
 False flags are not allowed in land warfare, but war
vessels may sail under a flag not their own, subject
only to the requirement that they haul it down and hoist
their own flag before attacking the other belligerent.
Espionage is also prohibited. (Ibid)
When can an individual be considered a spy?
 An individual can only be considered a spy if, acting
clandestinely or on false pretenses, he obtains, or
seeks to obtain, information in the zone of operations
of a belligerent, with the intention of communicating it
to the hostile party. Spies are subject to the municipal
law of the other belligerent except that, as provided in
the Hague Conventions of 1907, “a spy taken in the act
cannot be punished without previous trial”. A spy who
succeeds in rejoining his army and is later captured
incurs no responsibility for his previous acts of
espionage and is entitled to be treated as a prisoner of
war. (Articles 30 & 31 as cited in Cruz, 2000)
Is booty or personal property found in the battlefield
subject to confiscation?
 Yes, except only the personal belongings of the
individual combatants which have no military value
such as jewelry.
Distinguish theatre of war from region of war?
 The first is the place where the hostilities are actually
conducted while the second is the greater area where
the belligerents may lawfully engage each other.
When is a territory deemed occupied by a belligerent?
 It is deemed occupied when it is actually placed under
the authority of the hostile army, but this occupation is
limited only to the area where such authority has been
established and can be effectively exercised. It is not
necessary that every square foot of the territory in
question be actually occupied, as it doubtless suffices
that the occupying army can, within a reasonable time,
send detachment of troops to make its authority felt
within the occupied district. (Hyde, Vol.2, 364 cited in
Cruz, 2000)
What are the consequences of belligerent occupation?
1) It does not result in transfer or suspension of the
sovereignty of the legitimate government although it
may at the moment be unable to exercise it.
2) The belligerent occupant cannot perform such acts as
declaring the independence of the occupied territory or
requiring its inhabitants to renounce their allegiance to
the lawful government.
3) The belligerent is required to restore and ensure public
order and safety while respecting, unless absolutely
prevented, the laws in force in the country more
particularly with regard to family honor and rights, the
lives of persons, private property, and religious
convictions and practice. (Hague Convention No. IV,
1907, Reg., Arts 53-56)
4) Whenever necessary, the belligerent occupant may
promulgate new laws, non-political as well as political,
provided they do not contravene the generally
accepted principles of international law. Political laws
are automatically abrogated upon the end of the
occupation but the non-political laws may continue
even beyond the occupation unless they are expressly
repealed or modified by the legitimate government.
(HiladovsDela Costa, April 30, 1949)
5) The belligerent occupant is permitted to exact from the
populace contributions over and above the regular
taxes for the needs of the army of occupation or for the
administration of the territory. (HC No. IV, 1907, Reg.,
Arts 49-51) It may also, for valuable consideration,
make requisitions of things or services for the needs of
the occupying forces. (Ibid, Art.52)
6) The belligerent occupant is permitted to introduce
military currency, provided the purpose is not to debase
the country’s economy. Thus, in Haw Pia vs China
Banking Corporation (80 Phil 604), the Supreme Court
upheld the validity of the payments made by the
plaintiff in Japanese military notes to settle a loan
extended to her in Philippine currency before the
outbreak of the Pacific war.
7) Private property cannot be confiscated, but those
susceptible of military use may be seized, subject to
restoration or compensation when peace is made. (HC
No. IV, Reg., Arts 53-56) The property of municipalities
and of institutions dedicated to religion, charity and
education, and the arts and sciences, even when state-
owned, shall be treated as private property, and their
destruction is expressly forbidden.
8) The army of occupation can only take possession of
cash, funds and realizable securities which are strictly
the property of the state, depots of arms, means of
transport, stores and supplies, and generally movable
property of the state, depots of arms, means of
transport, stores and supplies, and generally movable
property belonging to the state which may be used for
military operations. All appliances, whether on land, at
sea, or in the air, adapted for the transmission of news,
or for the transport of persons or things, exclusive of
cases governed by naval law, depots of arms and
generally all kinds of ammunition of war may be seized
but must be restored and compensation fixed when
peace is made.
9) The occupying state shall be regarded only as
administrator and usufructuary of public buildings, real
7
 estate, forests, agricultural estates belonging to the
hostile state and situated in the occupied territory.
(Ibid, Art 55)
This rule was applied in Banaag vs Singson
Encarnacion (April 19, 1949), where a lease of five
years granted by Philippine Executive Commission in
1942 over certain municipal fisheries was deemed
automatically canceled upon the re-establishment of
the Commonwealth government. (Ibid)
What is the right of postliminy or postliminium?
 It “is that in which persons or things taken by the enemy
are restored to the former state on coming actually into
the power of the nation to which they belong”. (Vattel in
Leitensdorfervs Webb, 1 N.M. 34, 44 cited in Cruz,
2000) In its broadened concept, the jus postliminium
also imports the reinstatement of the authority of the
displaced government once control of the enemy is lost
over the territory affected.
 Thus, upon the end of a belligerent occupation, the
laws of the re-established government are revived and
all acts taken by the belligerent occupant which it could
not legally do under the law of nations, as well as lawful
acts of a political complexion, are invalidated.
What are the non-hostile intercourse?
1) A flag of truce is a white flag carried by an individual
authorized by one belligerent to enter into
communications with the other. The bearer, or
parlementaire, is entitled to inviolability as long as he
does not take advantage of his privileged position to
commit an act of treachery. But the other belligerent is
not obliged to receive a flag of truce. (HC No.IV, 1907,
Reg., Arts. 32, 34; Fenwick, 578; Wilson and Tucker,
294 cited in Cruz, 2000)
2) Cartels are agreements to regulate intercourse during
war on such matters as postal and telegraphic
communication, the reception of flags of truce, and the
exchange of prisoners. A cartel ship is a vessel sailing
under a safe-conduct for the purpose of carrying
exchanged prisoners of war. (Fenwick, 575; Wilson
and Tucker, 295 cited in Cruz, 2000)
3) A passport is a written permission given by the
belligerent government or its authorized agent to the
subjects of the enemy state to travel generally in
belligerent territory. (Wilson and Tucker, 295 cited in
Cruz, 2000)
4) A safe-conduct is a pass given to an enemy subject
or to an enemy vessel allowing passage between
defined points. This is given either by the belligerent
government or by the commander of the area within
which it is effective. (Ibid)
5) A safeguard is a protection granted by a commanding
office either to enemy persons or property within his
command. When it is enforced by a detail of men, they
must use extreme measures, if necessary to fulfill their
trust, and are themselves exempt from attack or
capture by the enemy.
6) A license to trade is a permission given by the
competent authority to individuals to carry on trade
even though there is a state of war. A general license
grants to all the subjects of the enemy state or to all its
own subjects the right to trade in specified places or in
specified articles. A special license grantsto a certain
person the right to trade in the manner specified in his
license. (Ibid, 296)
Distinguish suspension of arms from armistice.
 A suspension of arms is a temporary cessation of the
hostilities by agreement of the local commanders for
such purposes as the gathering of the wounded and
the burial of the dead. (Fenwick, 579; Wilson and
Tucker, 297)
 Whereas, armistice is the suspension of all hostilities
within a certain area (local) or in the entire region of the
war (general) agreed upon by the belligerent
governments, usually for the purpose of arranging the
terms of the peace. The purpose of the armistice is
political while that of suspension of arms is military;
armistice may be concluded only by the commanders-
in-chief of the belligerent governments while
suspension of arms may be agreed upon by the local
commanders; and armistice is usually in writing while
suspension of arms may be oral. (Cruz, 2000)
What is a cease-fire?
 A cease-fire is an unconditional stoppage of hostilities
by order of an international body like the UN Security
Council for the purpose of employing peaceful means
of settling the differences between the belligerents.
(Salonga and Yap, 451-452 cited in Cruz, 2000)
What is a truce?
 A truce is sometimes used interchangeably with
armistice but is now generally regarded as a cease-fire
with conditions attached. (Fenwick, 579 cited in Cruz,
2000)
What is a capitulation?
 It is the surrender of military forces, places or districts
in accordance with the rules of military honor. (HC
No.IV, 1907, Reg. Art. 35)
How may war be terminated?
War may be terminated by any of the following:
1) Simple Cessation Of Hostilities
 Among the wars that were terminated by simple
cessation of hostilities are those between Sweden and
Poland in 1716, between France and Spain in 1720,
between Spain and its American colonies in 1825, and
between France and Mexico in 1862-67. Under this
method, property or territory in the possession of the
respective belligerents upon the termination of the war
is retained by them in accordance with the principle of
utipossidetis. This is to be distinguished from the
usual stipulation for the status quo ante, which calls
for the complete restoration to their former owners of
property or territory that may have changed hands
during the hostilities, with the exception only of prize
and booty.
2) Negotiated Treaty Of Peace
 At times, belligerents may be unable to effect a
decisive victory against each other and may decide
8
 finally to settle their disagreement in what is known as
a negotiated treaty of peace. One example was the
case of Great Britain and the US when they terminated
the War of 1812 with the conclusion of the Treaty of
Ghent.
3) Defeat Of One Of The Belligerents
 The surrender of the defeated belligerent may either be
conditional or unconditional. In the former case, a
treaty of peace is concluded embodying the condition
specified in the surrender; in the latter, the victorious
belligerent usually issues a unilateral declaration
announcing the end of the war, to be followed with a
peace treaty dictated by it and specifying the rules on
the settlement of the obligations of the vanquished
state and the disposition of its territories.
What are the consequences of war?
1) The implied judgment that the vanquished belligerent
is the guilty party in the dispute that caused the
hostilities; and
2) Nationals of the vanquished state may be protected
and punished as war criminals and for other violations
of international law who may not escape responsibility
on the ground that they were merely acting on orders
of their state; Here, the state itself is liable for issuing
such orders and the individuals for obeying them
provided a moral choice was possible.
In Yamashita vs Styer (75 Phil 563), the Commander
General of the Imperial Japanese Forces in the Philippines
was convicted of war atrocities by a military commission
and sentenced to death by hanging. He questioned his trial
and conviction on the ground that the military commission
had no authority or jurisdiction to try him, but the Philippine
Supreme Court and the US Supreme Court affirmed the
sentence. The latter court declared that the acts directed
against the civilian population of an occupied country and
against prisoners of war are recognized in international law
as violations of the law of war. (Cruz, 2000)
When is a state said to be neutral?
 A state is neutral if it does not take part, directly or
indirectly, in a war between other states.
How does neutrality differ from neutralization?
 Neutrality is dependent solely on the attitude of the
neutral state, which is free to join any of the belligerents
anytime it sees fit,
 while neutralization is the result of a treaty wherein
the duration and the other conditions of the
neutralization are agreed upon by the neutralized state
and other powers. This agreement governs the
conduct of the signatories whereas neutrality is
governed by the general law of nations. Neutrality
obtains only during war while neutralization is intended
to operate in time of peace as well as in time of war.
Only states may become neutral but portions of states,
like islands, rivers and canals, may be neutralized.
May there be neutrality among members of the UN?
 Yes, a state can become a member of the UN and still
maintain its neutrality. At present, several neutral
states, like Austria, Finland, Ireland, Sweden, and
recently Switzerland in 2002, are members of the UN.
(sarmiento, 2007)
What are the rights and duties of a neutral state?
 A neutral state has the right and duty to abstain from
taking part in the hostilities and from giving assistance
to either belligerent; to prevent its territory and other
resources from being used in the conduct of hostilities
by the belligerents, and to acquiesce in certain
restrictions and limitations that the belligerents may
find necessary to impose, especially in connection with
international commerce. (Schwarzenberger, 208, cited
in Cruz, 2000)
What are the obligations of belligerents?
 They are bound to respect the status of the neutral
state, avoiding any act that will directly involve it in their
conflict, and to submit to any lawful measures it may
take to maintain or protect its neutrality.
Is the use of neutral territory completely barred to the
belligerents?
 No. The passage of sick and wounded troops is
allowed through a neutral state provided personnel and
materials of war are not also carried. (HC V 1907 Art.
12.) Persons bound for enlistment in the belligerent
armies may cross the neutral frontiers if they do so
individually or separately and not as a body. (HC V
1907 Art 6) The neutral state itself may give refuge to
troops from the belligerent forces but must intern them
as far as possible, at a distance from the theatre of war.
(HC V 1907 Art. 11) Escaped prisoners of war need
not be detained by the neutral state but must be
assigned a place of residence if they are allowed to
remain. (HC V 1907 Art 13)
Is the neutral state obliged to prevent the export from
or transit through its territory of war supplies
purchased from private traders by the belligerents in
the ordinary course of commerce?
 No. But it is required to take reasonable diligence in
preventing the delivery of vessels constructed and
armed in its territory for use by any of the belligerents.
(In Alabama Claims Case, Great Britain was found
liable in damages to the US for violation of this duty.)
Is the neutrality of one state compromised when its
nationals enlist in a belligerent army or engage in
commerce with any of the belligerents?
 No. The neutrality of the state is not compromised in
the absence of special rules imposing upon the neutral
state the duty of intervening in the transaction. Except
for these, international law considers the relationship
as strictly between the individual and the belligerent
states and whatever hardships may be suffered by its
nationals as a result thereof must, as a rule, be
acquiesced in by the neutral state.
9
What is contraband?
 It refers to goods which, although neutral property may
be seized by a belligerent because they are useful for
war and are bound for a hostile destination. Absolute
contraband are necessarily useful for war under all
circumstances, like rifles and ammunition (Declaration
of London, Articles 22, 24), whereas conditional
contraband, like food and clothes, have both civilian
and military purposes. “Free list” includes goods
useful for war and bound for the belligerents but
exempted from the law on contraband for humanitarian
reasons like medicines and medical supplies for the
use of the sick and the wounded.
 Absolute contraband are subject to seizure so long as
they are bound for enemy or enemy-held territory, (Ibid,
Art 29) but conditional contraband may be seized only
when it can be shown that they are destined for the
armed forces or the authorities of the belligerent
government. (Ibid, Art. 33)
What is the doctrine of ultimate consumption?
 Under this doctrine, goods intended for civilian use
which may ultimately find their way to and be
consumed by the belligerent forces are also liable to
seizure on the way. (Cruz, 2000)
What is the doctrine of infection?
 Under this doctrine, if innocent goods belonging to the
same owner are shipped together with contraband
which are subject to condemnation, innocent goods
may also be confiscated. (Declaration of London, Art.
42)
Is the vessel carrying the contraband subject also to
confiscation?
 Only if the contraband are more than one-half of the
total cargo by weight, value, freight or volume (Ibid, Art
40)
What is the doctrine of ultimate destination?
 Under this doctrine, the liability of contraband to
capture is determined not by their ostensible but by
their real destination. (Cruz, 2000)
 This doctrine is called the doctrine of continuous
voyage when the goods are reloaded at the
intermediate port on the same vessel and the doctrine
of continuous transport when they are reloaded on
another vessel or other form of transportation. (Ibid)
What is unneutral service?
 It consists of acts, of a more hostile character than
carriage of contraband or breach of blockade, which
are undertaken by merchant vessels of a neutral state
in aid of any of the belligerents. (Ibid)
When is a neutral vessel liable to condemnation for
unneutral service?
a) if it is making a voyage special with a view to the
transport of individual passengers who are embodied
in the armed forces of the enemy or with a view to the
transmission of information in the interest of the
enemy; or
b) if with the knowledge of the owner, or the one who
charters the entire vessel, or of the master, it is
transporting a military detachment of the enemy or one
or more persons who, during the voyage, lend direct
assistance to the operations of the enemy. The cargo,
if belonging to the owner of the vessels, is likewise
confiscable. (Declaration of London, Art. 45)
When is a neutral vessel liable to condemnation and to
be treated as a merchant vessel of the enemy?
1) if it takes a direct part in the hostilities;
2) if it is under the orders or control of an agent
placed on board by the enemy government;
3) if it is chartered entirely by the enemy government;
or
4) if it is at the time and exclusively either devoted to
the transport of enemy troops or the transmission
of information in the interest of the enemy. The
goods belonging to the owner of the vessel are
likewise liable to condemnation. (Ibid, Art 46)
What is angary?
 By the right of angary, a belligerent may, upon
payment of just compensation, seize, use or destroy, in
case of urgent necessity for purposes of offenses or
defense, neutral property found in its territory, in enemy
territory, or on the high seas. (Oppenheim-Lauterpacht,
Vol 2, 28 cited in Cruz, 2000)
Thus, the exercise of this right is conditioned upon three
requisites:
1. that the property is in the territory under the control
or jurisdiction of the belligerent;
2. that there is urgent necessity for the taking; and
3. that just compensation is paid to the owner. (Cruz,
2000)
What is a prize court? What are its duties and
jurisdiction?
 Prize courts are domestic tribunals of a belligerent
state that determined the legality of the capture by a
belligerent of enemy or neutral merchant vessels and
of their liability to confiscation.
Although the authority and the jurisdiction of prize
courts were derived from national law, the rules which they
applied were the rules of International Law, except in so far
as special national legislation might have prescribed a
particular interpretation of these rules. (Fenwick, 644 cited
in Sarmiento, 2007)
How is neutrality terminated?
1) when the neutral state itself joins the war;
2) upon the conclusion of peace (Cruz, 2000)
Do civil wars or rebellion violate international law?
 No, Article 2(4) of the UN Charter does not apply to
internal conflicts. (Bernas, 2009)
Is outside help for governments experiencing rebellion
legitimate?
 Generally, yes, provided requested by the government.
However, aid to rebels is contrary to international law.
10
What international law on armed conflict is applicable
to internal conflicts?
 Common Article 3 of each of the four Geneva
Conventions provides for minimum humanitarian
protection in cases of internal conflict.
What is Protocol II?
 It is the first and only international agreement
exclusively regulating the conduct of parties in a non-
international armed conflict promulgated in 1977. It
“develops and supplements Article 3 common to the
Geneva Conventions of 12 August 1949 without
modifying its existing conditions or application.” A
definition of a non-international armed conflict covered
by this expanded guarantee is found in Article 1. It
states:
 A non-international armed conflict are armed
conflicts which take place in the territory of a High
Contracting Party between its armed forces and
dissident armed forces or other organized armed
groups which, under responsible command, exercise
such control over a part of its territory as to enable
them to carry out sustained and concerted military
operations and to implement this Protocol. (Bernas,
2009)
Is Protocol II applicable to situations of internal
disturbances and tensions?
 No, Protocol II shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and
sporadic acts of violence and other acts of a similar
nature, as not being armed conflicts. (Art 1 of the
Protocol II) This is true even if the armed forces of the
territory may have been called upon to suppress the
disorder. (Ibid)
May terrorist attacks be the subject of an enforcement
action by the UN Security Council?
 Yes, terrorist attacks may be considered as threats to
international peace and security which would justify the
calling of enforcement actions under Chapter VII of the
UN Charter. (Sarmiento, 2007)
Are terrorist acts subject to IHL?
 No. Banditry, unorganized and short-lived
insurrections, and terrorist activities are not subject to
IHL.
CHAPTER 16
INTERNATIONAL ENVIRONMENTAL LAW
How does the Philippine Constitution express the
concern about the environment?
 Article II, Section 16 provides that, “The State shall
protect and advance the right of the people to a
balanced and healthful ecology in accord with the
rhythm and harmony of nature.
 The discussions in the 1986 Constitutional
Commission manifested a clear desire to make
environmental protection and ecological balance
conscious objects of police power. (4 Record of the
Constitutional Commission 912-916 cited in Bernas,
2009)
What are the foremost environmental cases decided by
the Supreme Court upholding the constitutional
provisions on environmental concerns?
1) Oposa vs Factoran 224 SCRA 792 (1993)
2) LLDA vs CA 231 SCRA 292 (1994)
3) Social Justice Society vs Atienza February 13, 2008
4) MMDA vs Residents of Manila Bay December 18, 2008
Why is the protection of the environment considered a
challenge to the development of international law?
 The protection of the environment is considered a
challenge to the development of international law
because its demands cannot be met without intrusion
into the domestic jurisdiction and sovereignty of states.
The nature and magnitude of the challenge are such
that they require not only the joint action of states but
also the involvement of non-state actors. (Bernas,
2009)
What consist concern of environmental protection?
 The concern of environmental protection is not just
about the atmosphere, the sea, the land, flora and
fauna. It is also about the preservation of the cultural
heritage of mankind as found in archeological and
artistic remains. (Ibid)
What is the goal of environmental protectionists?
 Their goal is the rational use of the elements that make
up the environment through control, reduction and,
wherever possible, elimination of the causes of
environmental degradation. (Ibid)
Are environmental concerns related to human rights
issues?
 Yes, they are inseparably related. In the Danube Dam
Case, the ICJ held that, “The protection of the
environment is a …vital part of contemporary human
rights doctrine, for it is a sine qua non for numerous
human rights such as the right to health, and the right
to life itself.” (ICJ Rep 1997 cited in Bernas, 2009)
Who have environmental rights?
 The real object of protection in protecting the
environment are persons capable of having rights.
(Ibid)
What is sustainable development?
 It is an important concept in the field both of economics
and environmental rights. The concept of sustainable
development encourages development in a manner
and according to methods which do not compromise
the ability of future generation and other states to meet
their needs.
What is long-range transboundary air pollution?
 It means air pollution whose physical origin is situated
wholly or in part within the area under the national
jurisdiction of one State and which has adverse effects
in the area under the jurisdiction of another State at
11
 such a distance that it is not generally possible to
distinguish the contribution of individual emission
sources or groups of sources. (1979 Convention on
Long-Range Transboundary Air Pollution, Art. 1[b]
cited in Sarmiento, 2007)
What is the Good Neighborliness principle?
 This principle prohibits States from using or permitting
the use of its territory in a manner that is injurious to
another State, or that other State’s persons or property.
This principle is now codified in Principle 21 of the
Stockholm Declaration and in principle 2 of the Rio
Declaration (Earth Summit). (Sarmiento, 2007)
What Roman law principle underlies the Good
Neighborliness Principle?
 Sic utere tuout alienum non laedas. So use your own
as not to injure the rights of others.
What are the possible bases of liability for
transboundary pollution under International Law?
There are several theories of liability for transboundary
pollution:
a) An absolute duty to protect against harm from ultra-
hazardous activities, which if violated, results in a state
being held strictly liable;
b) “Abuse of Rights” Theory: responsibility for negligent
or intentional acts;
c) “Good Neighborliness” Principle: liability for a State
which permits transboundary pollution to exceed that
which neighbors can reasonably be expected to
endure. (Malone, 217 cited in Sarmiento, 2007)
What are the major instruments that have shaped the
modern development of international environmental
law?
a) The Stockholm Declaration on the Human
Environment which was adopted at the 1972 UN
Convention on the Human Environment, held in
Stockholm, Sweden;
b) The Rio Declaration on Environment and
Development, which was adopted at the 1992 Rio
Conference on Environment and Development, also
known as the “Earth Summit” – it reaffirms the
Stockholm Declaration with the goal of establishing a
new and equitable global partnership through the
creation of new levels of cooperation among States,
key sectors of societies and people. (Ibid)
What are the important principles contained in the
Stockholm Declaration on the Human Environment?
a) Principle 1: Man has the fundamental right to freedom,
equality and adequate conditions of life, in an
environment of a quality that permits a life of dignity
and well-being, and he bears a solemn responsibility to
protect and improve the environment for present and
future generations.
b) Principle 21 (Principle of Good Neighborliness) States
have 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.
c) Principle 22: States shall cooperate to develop further
the International Law regarding liability and
compensation for the victims of pollution and other
environmental damage caused by activities within the
jurisdiction or control of such states to areas beyond
their jurisdiction. (Ibid)
What are some of the important principles contained in
the 1982 Rio Declaration (Earth Summit)?
a) Principle 1: States have the sovereign right to exploit
their own resources pursuant to their own
environmental and developmental 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.
b) Principle 2: The right to development must be fulfilled
so as to equitably meet developmental and
environmental needs of present and future
generations.
c) Principle 3: States shall develop national law regarding
liability and compensation for the victims of pollution
and other environmental damage.
d) Principle 4: States shall immediately notify other States
of any natural disasters or other emergencies that are
likely to produce sudden harmful effects on the
environment of those States. Every effort shall be
made by the international community to help States so
afflicted.
e) Principle 5: warfare is inherently destructive of
sustainable development. States shall therefore
respect International Law providing protection for the
environment in times of armed conflict and cooperate
in its further development, as necessary.
f) Principle 6: States shall resolve all their environmental
disputes peacefully and by appropriate means in
accordance with the Charter of the UN. (Ibid)
What is the Principle of Common but Differentiated
Responsibility?
This principle is embodied in Principle 7 of the Rio
Declaration which states:
 “States shall cooperate in a spirit of global partnership
to conserve, protect and restore the health and
integrity of the earth’s ecosystem. In view of the
different contributions to global environmental
degradation, States have common but differentiated
responsibilities.
 The developed countries acknowledge the
responsibility that they bear in the international pursuit
to sustainable development in view of the pressures
their societies place on the global environment and of
the technologies and financial resources they
command.”
What is the Precautionary Approach?
 This approach is contained in Principle 15 of the Rio
Declaration, which states:
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“In order to protect the environment, 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 a reason for postponing cost-effective measures
to prevent environmental degradation.” (
May a State be held responsible by another State for
trans-boundary pollution caused by private parties
within its jurisdiction?
Yes. The Trail Smelter Case (US vs Canada, 1941)
established the two fundamental principles of liability for
trans-boundary pollution under International Law:
a) First, a state must show material damage and
causation to be entitled to legal relief; and
b) Second, a state has a duty to prevent, and may be held
responsible for pollution by private parties within its
jurisdiction if such pollution results in demonstrable
injury to another state.
In the said case, the Arbitration Tribunal held that Canada
was legally responsible for the actions of the privately-
owned smelter near Trail, Canada, ordered Canada to pay
damages, and required the smelter to refrain from causing
further damage in the US.
May a downstream state object to the use of the water
by an upstream state?
 A downstream state may not oppose the upstream
state’s use of the water provided the upstream state
will not alter the waters of a river or lake. (Lake Lanoux
Arbitration, France vs Spain cited in Sarmiento, 2007)
INTERNATIONAL ECONOMIC LAW
What is international economic law?
 “The law of international economic relations in its
broadest sense includes all the international law and
international agreements governing economic
transactions that cross state boundaries or that
otherwise have implications for more than one state,
such as those involving the movement of goods, funds,
persons, intangibles, technology, vessels or aircraft.”(
The 3rd Restatement of Foreign Relations Law cited in
Bernas, 2009)
What are the four characteristics of IEL?
1) IEL is part of international law as treaties make this so.
2) IEL is intertwined with municipal law since the
balancing of economic treaty law with municipal law is
important.
3) IEL requires multi-disciplinary thinking involving not
only economics but also political science, history,
anthropology, geography, and other disciplines.
4) Empirical research is very important for understanding
its operation. (Ibid)
What were the two main objectives of the Bretton
Woods Conference of 1944?
1) to advance the reduction of tariffs and other trade
barriers; and
2) to create a global framework designed to minimize
economic conflicts
What were the economic institutions established out of
the mentioned conference?
1) International Monetary Fund
- Its function was to provide short-term financing to
countries in balance of payments difficulties.
2) International Bank for Reconstruction and
Development (World Bank)
- It was designed to provide long-term capital to
support growth and development.
3) International Trade Organization (ITO)
- It was intended to promote a liberal trading system
by proscribing certain protectionist trade rules.
- The intended function of the ITO was eventually
taken over by the General Agreement on Tariff and
Trade ( GATT) and its successor the World Trade
Organization. (Ibid)
What are the most important trade oriented
institutions?
 The GATT and the WTO are the most important trade
oriented institutions. They shape domestic import and
export laws which impact on international trade on
goods and services
 GATT went through a series of modifications Rounds
with the Uruguay Round of 1994 as the final one. The
final agreement proposed the establishment of a World
Trade Organization which would oversee the operation
of GATT and a new General Agreement on Trade and
Services.
What are the key principles of international trade law?
1) Agreed tariff levels
- The GATT contains specified tariff levels for each
state and each state agrees not to raise tariff
levels above those contained in the schedule
though these can be renegotiated.
2) The most favored nation principle (MFN)
- This clause embodies the principle of non-
discrimination. This means that any special
treatment given to a product from one trading
partner must be made available for like products
originating from one trading partner must be made
available for like products originating from or
destined for other contracting partners. In
practice, this generally refers to tariff concessions.
3) Principle of national treatment
- This prohibits discrimination between domestic
producers and foreign producers. In practice, this
means that once foreign producers have paid the
proper border charges, no additional burdens may
be imposed on foreign products.
4) Principle of tariffication
- The principle prohibits the use of quotas on
imports or exports and the use of licenses on
importation or exportation. The purpose of the
principle is to prevent the imposition of non-tariff
barriers. But GATT provides for exceptions on a
quantitative and temporary basis for balance of
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 payments or infant industry reasons in favor of
developing states.
What are the exceptions to key principles?
1) exceptions which are general in nature such as those
referring to public morals, public health, currency
protection, products of prison labor, national treasures
of historic, artistic or archeological value, and
protection of exhaustible natural resources;
2) Security exceptions and regional trade exceptions; and
3) Exceptions for developing nations. (Ibid)
How does WTO provide for dispute resolution?
 A Dispute Settlement Body (DSB) has been
established by the WTO Agreement which consists of
the General Council of the WTO and operates under
the Understanding on Rules and Procedures
Governing the Settlement of Disputes 1994 (DSU).
Each state has a right to the establishment of a Panel.
The DSU has also provided for a permanent Appellate
Body, consisting of persons with recognized expertise
in law, to handle appeals from a Panel decision.(Ibid)
What consist the expanded scope of the multilateral
trade regime of the Uruguay Round of 1994?
 It now includes intellectual property, services, sanitary
and physio-sanitary measures and investment, as well
as the strengthening of the rules on subsidies,
countervailing duties and antidumping.
 Thus, IEL has become a very specialized field and it is
affecting the sovereignty of states and their capacity to
give force to national policy objectives.
(ADDITIONAL TOPIC)
RIGHTS OF REFUGEES
What does the term “refugee” mean?
 The term shall apply to any person who, owing to well-
founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social
group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that
country; or who, not having a nationality and being
outside the country of his former habitual residence as
a result of such events, is unable or, owing to such fear,
is unwilling to return to it. (Art 1 of the 1951 Convention
relating to the Status of Refugees [Refugee
Convention], which entered into force on April 22,
1954, and as modified by the 1966 Protocol relating to
the Status of Refugees, which entered into force on
October 4, 1967 as cited in Sarmiento, 2007)
What are the obligations of refugees to the country
where they find themselves?
 He should conform to its laws and regulations as well
as to measures taken for the maintenance of public
order. (Refugee Convention, Art 2 cited in Sarmiento,
2007)
What are the rights of refugees?
 Under the 1951 Refugee Convention, the contracting
states shall accord to refugees within their territories
treatment at least as favorable as that accorded to their
nationals with respect to:
1) freedom to practice their religion and freedom as
regards the religious education of their children;
(Art 4)
2) protection of industrial property, such as
inventions, designs or models, trademarks, trade
names, and of rights in literary, artistic and
scientific works; (Art.14)
3) access to the courts, including legal assistance
and exemption from cautiojudicatumsolvi; (Art 16)
4) general distribution of products in short supply;
(Art 20)
5) housing; (Art 21)
6) public elementary education; (Art 22)
7) public relief and assistance; (Art 23)
8) labor legislation and social security benefits. (Art
24)
Moreover, the contracting states shall accord to refugees
treatment as favorable as possible and, in any event, not
less favorable than that accorded to aliens generally in the
same circumstances, as regards:
1) the acquisition of movable and immovable property
and other rights pertaining thereto; (Art 13)
2) participation in non-political and non-profit making
associations and trade unions; (Art 15)
3) the right to engage in wage-earning employment; (Art
17)
4) the right to engage on his own account in agriculture,
industry, handicrafts and commerce and to establish
commercial and industrial companies; (Art 18)
5) the practice of a liberal profession; (Art 19)
6) right to choose their place of residence and to move
freely within its territory. (Art 26)
Furthermore, the contracting states shall issue identity
papers and travel documents to any refugee in their territory
who does not possess a valid travel document. (Arts 27, 28)
May a state party to the 1951 Refugee Convention expel
a refugee from its territory?
 As a state party to the 1951 Refugee Convention, it
shall not expel a refugee in their territory save on
grounds of national security or public order. In any
event, the expulsion of such a refugee shall be only in
pursuance of a decision reached in accordance with
due process of law.
 Except where compelling reasons of national security
otherwise require, the refugee shall be allowed to
submit evidence to clear himself, and to appeal to and
be represented for the purpose before competent
authority or a person or persons specially designated
by the competent authority.
 The state party shall also allow such a refugee a
reasonable period within which to seek legal admission
into another country. (Art 32) (Ibid)
Is there a right of asylum under International Law?
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 Articles 13 and 14 of the Universal Declaration of
Human Rights and the General Assembly’s 1967
Declaration on Territorial Asylum recognize the “right to
leave any country, including one’s own” and the “right
to seek and to enjoy in other country’s asylum from
persecution.” Those rights, however are not coupled
with a corresponding state obligation to grant asylum.
 Thus, all states have the right to grant asylum, but the
individual has no right to demand asylum. (Malone,
127 cited in Sarmiento, 2007)

What is diplomatic asylum?

 It is the granting of refuge by a state in its embassies,
ships or aircraft in the territory of another state. Once
diplomatic asylum is granted, there is a right of safe
conduct from the foreign state. Beyond that, the rules
of asylum are generally based on treaty rather than on
Customary International Law. (Malone, 128 cited in
Sarmiento, 2007)

What is the principle of non-refoulement?

 No contracting state shall expel or return a refugee in
any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on
account of his race, religion, nationality, membership of
a particular social group or political opinion
 However, this would not apply where there are
reasonable grounds for regarding the refugee as a
danger to the security of the country in which he is, or
who, having been convicted by a final judgment of a
particular serious crime, constitutes a danger to the
community of that country. (Refugee Convention,
Art.33 cited in Sarmiento, 2007)

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