STATES AND GOVERNMENTS A minority or national group of a nation does not have
the right to withdraw from the nation, absent
Aaland Islands Case
Principle:
A minority group in the population of a de jure country
does not have the absolute right to separate itself from
that country to be incorporated into another country, or
to declare its independence.
Facts:
The Aaland Islands (plaintiff), an archipelago located
between Finland (defendant) and Sweden, asserted a
claim of self-determination and independence from
Finland in order to incorporate with Sweden so as to
protect the Aalanders’ Swedish culture and language.
In the Report of the International Committee of Jurists
Entrusted by the Council of the League of Nations with
the Task of Giving an Advisory Opinion upon the Legal
Aspects of the Aaland Islands Question, the International
Committee of Jurists of the League of Nations
determined that the question of the Aaland Islands’
assertion of self-determination and independence claims
was not solely within the jurisdiction of Finland.
As a result, the League of Nations (the League) then
appointed the Commission of Rapporteurs, consisting of
representatives of member nations, to recommend a
solution to the dispute.
The Aaland Islands and Sweden argued that, because
Finland was able to declare independence from Russia,
the Aaland Islands should be able to similarly declare
independence from Finland.
Finland stated that separation was unnecessary because
it was willing to grant the Aalanders guarantees of
protection for their language and culture and to abide by
any agreements with the Aaland Islands. In addition, a
Finnish statute existed that already gave the Aaland
Islands autonomy in regards to the administration of
schools and language.
Issue:
(1) Does a minority group in the population of a de jure
country have the absolute right to separate itself from
that country to be incorporated into another country, or
to declare its independence?
Ruling:
(1) No.
A minority group in the population of a de jure country
does not have the absolute right to separate itself from
that country to be incorporated into another country, or
to declare its independence.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
exceptional circumstances.
If minorities had an absolute right in ordinary
circumstances to break away from the nation to which
the minorities belonged, there would be no stability or
continuity within the international community.
Such a separation could only be an option in rare
situations, such as when the country could no longer
effectively exercise control or provide necessary
guarantees to the members of the group.
The asserted analogy to Finland’s declaration of
independence from Russia is not appropriate.
Finland, unlike the Aaland Islands, has been an
independent nation since long before World War I, when
Finland gained its independence. The Aaland Islands
make up only a small fraction of Finland’s territory and
population and therefore may not be treated the same
as an entire nation.
Here, the Aalanders are most concerned with the
protection of their Swedish culture and language. If
allowing separation from Finland were the only way to
protect the Aalanders’ language and culture, then such
separation might be a viable option. However, this is not
presently the case.
Separation and incorporation with Sweden are
unnecessary, because Finland has already said that it
will grant the Aalanders adequate protections. If it later
turns out that Finland has not followed through on its
promises, then separation may
be considered.
Why is it important to know if a particular group
of people in a particular territory constitute a
state?
You know that non-state actors can participate in
international relations and their acts have legal effects.
But the fact remains that among the actors in the
international sphere, we recognize that states do play
the most important role in international sphere because
basically states are the bearer of rights. And it’s also
important in some instances because some issues are
resolved on the basis if one is a state or not. That’s why
in the Aaland Islands case, Sweden before the 1st world
war was a very big state. Originally Norway was in the
north western part and Finland was in the eastern part.
Of course came the Swedish-Russian war. So Sweden
immediately gave up Finland together with the Aaland
Islands. So Russia occupied Finland, there was no
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Finland as a state yet because it was still part of
Sweden. Then eventually the people in Aaland Islands
who happen to be of Swedish origins, in culture and
language, wanted to separate from Finland. At that time
Finland was governed by the military forces of Russia.
Were in fact fighting against other forces. The
inhabitants of Aaland Islands wanted to be reunited with
Sweden and Finland resisted the plan. This was the birth
of the right of self-determination. The people of Aaland
Islands questioned the authority of Finland to resist the
plan because if Finland was to successfully resist the
secession or separation of the Aaland Islands, Finland
should be able to establish that it was already a state at
that time. Because what Finland was actually invoking
was the right to territorial integrity.
If you read the 1933 Montevideo Convention on the
Rights and Duties of States, this is the answer to the
question. We want to know whether a particular group
of people in a given territory that constitutes a state, we
want to know if they will be afforded such rights granted
to states in international law. And there are so many
rights that are afforded to states and not by non-states.
One of this is the right to territorial integrity.
But the Swedish and Finland decided to submit the issue
to an international committee of jurists which made an
opinion on the status of Finland. Because the concern
was, how could Finland be considered a state when at
that time, the performance and functions of government
was actually on the basis of how the military forces of
Russia ran the government of Finland. So that’s the most
important reason why we need to understand statehood.
Who shall be considered as possessing the rights
of states?
There are many rights such as the right to self-defense.
A community not yet attaining statehood, the most
given to is individual self-defense or self-preservation
but there’s no such thing as the right to the use of force
under the framework of self-defense. The right to
establish diplomatic missions in other states. The
inherent right to enter into treaties. The principle of
legation. And many other rights.
The other concern here is what instances do we find the
importance of analyzing if the elements are present or
not. States emerged in different ways. There are those
which emerge as a non-self governing territory. Those
colonies before that started as before as communities
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
with lesser civilization. Under traditional international
law, this is called uncivilized society. So from being
uncivilized, they community achieved a certain level of
civilization. Until it learned how to governed itself,
learned to assert its sovereignty, resisted occupation by
other states and eventually can establish all other
elements of statehood. Of course people are already
there and territory. The only question to answer is the
form of government established and capacity to enter
into relations with foreign states. That’s creating a state
out of a non-self governing territory.  this is the
traditional emergence of states. Usually out of Tera
nullius places/territories. Meaning territories that have
never been under any sovereignty or power.
In modern international law, emergence of states
happens as a result of several situations involving self-
governing territories.
If you already have a state and it’s divided into several
other states as a result of a break-up of larger
confederated states or unions. USSR for example.
Yuguslovia produced 7-8 states. Or due to the
dissolution of larger states, there may be a union.
Scholars have accepted and agreed that Article 1 of the
1933 Montevideo Convention best reflects the elements
of states.
It’s important to distinguish a state from government. Of
course government is just an element or part of a state.
The state is the juridical concept of not only of territory,
the people but also the abstract government as an
agency and the capacity to enter into foreign relations or
independence. And it is important to note also that in
international law that it is the state that possesses the
right, not the government.
DOCTRINE OF STATE CONTINUITY
Regardless of the changes in the state, whether it be
changes of the people, changes in the territory or
government which is more frequent, regardless of the
changes in the internal aspect of a state, the state as an
entity continues to exist. Why is this important?
It is important in many aspects. For example if whether
a treaty remains to be binding on a particular state.
Later on we’ll talk about the 2 kinds of succession: state
or government. We need to know whether what’s
occurring is state succession or government succession.
Of course there are several legal consequences if there
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is a change in government or the state. That’s the
principle of state continuity.
What establishes the government of a particular
state?
The constitution. The moment you replace one
constitution with another then you are replacing the
government. When we had the 1987 constitution, we
replaced the government of Marcos with that of Aquino.
That’s a change of government.
An example of state succession is when we change
sovereignty. This is discussed in the case of Macariola v.
Asuncion.
An example of change in sovereignty is from sovereign
of Spain to US to US to Philippine Republic.
Republic of the Philippines – name of government
Philippines- name of state
ELEMENTS OF A STATE
Elements of “State”
1. Permanent population
2. Defined territory
3. Government
4. Capacity to enter into relations with other states
POPULATION
There is no requirement as to number of people. The
only inherent requirement is that population be
permanent, self-sufficient. (Leichtenstein with 34,0000 in
1990 and Nauru with 14,000 in 1999. Vatican City with
500 citizens and about 800 residents. Other mini states
in Micronesia, Tonga, San Marino, Palau and Monaco)
Since the requirement is a permanent population,
how does a state maintain its population?
First way natural(taas kaayo ang jokes ni sir dire).
Second way is via migration like in the Vatican.
There’s also no requirement on nationality, that it should
consist only of one ethnicity. There’s no requirement
that it should have both gender.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
TERRITORY
Unlike in the creation of a political subdivision, where in
most jurisdictions, there is really a requirement of
definite territory because of the problem of jurisdiction.
In most cases, making a territory definite would require
a measurement, with metes and bounds as you learned
in your pubcorp. But that notion is not required in
international law. In the North Sea Continental Shelf
case, the court only requires sufficient consistency. The
possible consequence of this rule is therefore that when
a state is involved in a dispute over frontiers, it would
not diminish its meaning of state. This is how Israel was
able to justify it being a state despite Palestine having a
claim in area of Israel but contiguity is not a
requirement. So when a state is involved in territorial
dispute, that fact should not diminish the statehood of a
particular community. What is required is only
sufficient consistency, meaning the government of
that state is consistently claiming that particular
territory. And not only that, along with a defined
territory, that territory had been subject of that states
territorial sovereignty.
It’s not enough to claim that territory but you must also
established that you exercised territorial sovereignty
over that territory. And this was shown to us in the
Island of Palmas Case. And Max Huber,a judge of the
PCIJ was appointed by both Netherlands and the US as
arbitrator. The Islands of Palmas are located in the
Southern part of the Philippines. Bordering Philippines
and Indonesia.
Island of Palmas Case (Netherlands v. US,
Arbitrator Max Huber of PCIJ, 1928)
Principle:
The right of territorial sovereignty is not complete
through mere “discovery” of land. Once a State views a
new territory, it only obtains an “inchoate” title to the
land. The State does not perfect its title to the land
without effectively occupying the land within a
reasonable time following the initial discovery.
Facts:
The United States and the Netherlands submitted to the
Permanent Court of Arbitration the question of which
State owned the Island of Palmas (Palmas).
Palmas is located within the boundary of the Philippines
(territory ceded to the United States from Spain as of
the 1898 Treaty of Paris).
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Spain first discovered Palmas in the early seventeenth
century and thus claimed title to it.
However, Palmas was also considered by the
Netherlands to be a part of its territory since it began
peacefully and continuously possessing the area in 1677
or before.
Issue:
(1) Whether title to land may be gained by a State
through its continuous and peaceful display of
sovereignty over the territory in which the land is
located.
Ruling:
(1) Yes.
The Netherlands peacefully and continuously possessed
Palmas for a sufficient period of time to gain territorial
sovereignty over the island.
Territorial sovereignty over land may be gained by a
State which is not the first discoverer of the land if that
State peacefully and continuously possesses the land for
a period of time.
(2) The right of territorial sovereignty is not complete
through mere “discovery” of land. Once a State views a
new territory, it only obtains an “inchoate” title to the
land. The State does not perfect its title to the land
without effectively occupying the land within a
reasonable time following the initial discovery.
Even if a State possesses an “inchoate” title stemming
from its role as “discoverer,” this title is defeated if
another State later peacefully and continuously enters
and occupies the land for a period of time before the
discoverer State has the opportunity to do so.
Spain received its claimed title to the land through first
discovery in the early seventeenth century. At this point,
however, the title was merely “inchoate” as Spain had
not effectively occupied the land. Shortly thereafter in
1677, the Netherlands peacefully entered Palmas and
began continuously possessing it. The United States
received its claimed title to Palmas through cession from
Spain. If the United States has better title to Palmas
than the Netherlands, it will only be because Spain
successfully perfected its inchoate title by effectively
occupying Palmas before the Netherlands began
peacefully and continuously possessing it.
There is no evidence that Spain perfected its title before
the Netherlands began peacefully and continuously
possessing Palmas. Rather, all evidence suggests that
when Spain ceded its title to the United States in the
1898 Treaty of Paris, it ceded an inchoate title only. The
United States could not receive a greater title than Spain
had to give. Thus, the United States’ title to Palmas is
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
only inchoate, whereas the Netherlands peacefully and
continuously possessed the area for centuries. This fact
is sufficient to vest territorial sovereignty over Palmas in
the Netherlands, rather than the United States.
DBL: In the Treaty of Paris, the Philippine Islands was
defined. There’s a map annexed to the Treaty of Paris.
In the map, the Island of Palmas was included. So just
like any buyer of a property, the US checked the island
only to find out that the Dutch government had actually
occupied the Island of Palmas. So basically the dispute
was about who had a better right over the Island of
Palmas (the discoverer or the one who exercised
territorial sovereignty)
Territorial Sovereignty (as defined by Max Huber)
It refers to the right to exercise in a territory, to the
exclusion of any other state, the functions of a state. It
must be open and public. Discovery could only exist as
an inchoate title, as a claim to establish sovereignty by
effective occupation.
What are the functions of a state?
Exercise of governmental functions to the exclusion of
other states.
When we study later on modes of acquiring territory,
discovery alone will not give rise to the right to acquire
territory. And that’s one of the rights of a states, the
power to acquire territory. Discovery alone will not give
rise to ownership of a particular territory but it should be
coupled with effective occupation which Spain failed to
do or exercised after the discovery. Upon discovery, the
only right given to the discoverer is the inchoate title to
establish territorial sovereignty.
Although international law does not fix the period within
which this inchoate right or when this inchoate right may
expire. But what is certain, is that in a case-to-case
basis, the Island of Palmas should have been under the
Spanish rule during the 333 years of occupancy in the
Philippines (it’s near the Philippine islands after all) but
they must have failed to exercise that inchoate title. So
between discovery and territorial sovereignty, Max
Huber ruled in favour of the latter. In other words, it’s
not sufficient that you discover and claim a particular
territory but you must prove that you exercised
territorial sovereignty before you can say that that
territory is part of your state.
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There is also no requirement of contiguity.
Annexation by a foreign power of a portion of your
territory would not diminish the territory of a particular
state.
GOVERNMENT
For the government to be considered as an element of
statehood, legitimacy of that government is not
required. Because we establish a government in
accordance to the constitutional process. Meaning intra-
constitution and that government established would be a
de jure government. Because it had been lawfully or
legitimately established.
But there are also governments that established itself
outside or even against the constitutional procedure.
Military occupation by foreign forces in the past for
example. The idea in this class, is that whether the
government having effective control is de jure or de
factor, is irrelevant. De jure or de facto is only relevant if
we talk about recognition of government but for
purposes of statehood, it doesn’t matter.
Whenever you have at least 2 contesting governments in
a particular territory, that will give rise to the need to
characterize which government is de facto or de jure.
Because you don’t use de facto or de jure if there is no
contest. If there are at least 2 contesting governments,
the one that is exercising the powers of government
actually but does not have the legitimate authority to do
so, like a revolutionary government, then you call it de
facto government. It exercises powers in fact but has no
authority.
The government that had the authority but was
overthrown and now no longer exercises the powers of
government, is called de jure. So we don’t consider a
legitimate government for purposes of determining
whether there is such a government as an element of a
state.
In the Aaland Islands case, the international committee
jurists noticed that Finland became a state only in 1918.
Meaning at that relevant time when it asserted territorial
sovereignty, it wasn’t a state. It became a state in only
1918 although the case was settled because Aaland was
told not to secede because Finland committed to give
Aaland a level of autonomy that they wanted.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Why what happened in 1918 that led to international
committee of jurists to allow? Because the ruling there
indicated the way we analyzed whether a government
already has effective control. Because effective control
requires internal and external control as well. Internal
control is when there is a stable political government
that is able to command obedience and run and
administer the territory. And the external control aspect
is illustrated in that description of the international
committee of jurists, that it was only in 1918 that the
government of Finland was able to self-govern without
the aid and assistance of the military forces of Russia.
At that time, they were under the government of Russia.
It was only when the Russian troops left that they were
able to run the government without the assistance of an
outside force. That’s why Shaw said that the meaning of
independence as a supposedly separate element of
state. The ability of the state to run its government
without the assistance, it’s not without pressure or
without the dictates of other states cause if the meaning
of state is without pressure, ma ihap ra nimo pila ka
states. That is not the meaning of independence if we
say that we are outside the pressures of outside forces.
Meaning that is inevitable in international relations.
Independence, as defined by Shaw, is being to run a
government without the assistance of a foreign state.
That is taken from the pronouncement in the Aaland
Islands Case. Of course temporary deprivation of
effective control will not diminish statehood.
The question of effective control is largely dependent on
facts. That’s why continuing issue in statehood
discussion is if statehood is statehood is a question of
fact or question of law. Some scholars have advanced
the argument that truly, at the end of the day, that
statehood is a question of fact and not much on law.
Effective control may or may not be given a high or
strict threshold in international law. You should be aware
that there is a requirement of effective requirement but
we raise the threshold in certain situations and we lower
it in other situation. When does this happen?
Or a self-governing territory that had experienced for
example, collapse in rule of law. Failed states or failing
states for example. How will the collapse of governance
or rule of law affect statehood? Scholars have advance
that when a state is considered as a failed state, it lacks
the element of effective control. Meaning the
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government is unable to establish rule of law. There’s a
collapse in the rule of law.
According to scholars, we see the requirement of
effective control liberally in such a situation. If the state
is existing and it experiences some degree of collapse in
governance, it shouldn’t affect statehood. The idea is
that the collapse is a temporary occurrence that time will
come that the government can re-establish order. So
even if literally wala nay control, still it can comply with
the requirement of effective control, lower ang threshold
in this situation.
But where it involves the emergence of a new state out
of an already existing self-governing state, like in the
case of unilateral secession of a state, international law
requires a very high threshold of effective control for
that new emerging state is a state under international
law. So if the situation is that there is one territory is
ascertaining independence, they will have to establish
governance. Now whether or not it has become a new
state, would require a high threshold of effective control.
Why?
Because the mother state would resist on any
separationist movement and the resistance is actually an
exercise of a right of that state to territorial integrity. So
looking at international law, the mother state contests
and asserts that they are still in control and the new
government says that they are the ones in control,
requires a higher threshold because the mother state is
exercising a right under international law.
CAPACITY TO ENTER INTO RELATIONS WITH
OTHER STATES
The fourth element is capacity to enter relations with
other states. Limited capacity to enter into international
relations will not prevent the existence of a state.
Situations involving protectorates for example and
associated states cannot be considered as lacking in
capacity but only limited capacity. In protectorates for
example or associated states, these are usually colonized
states trying to gain independence. In most cases
former colonies would not have the competence yet to
conduct its foreign affairs so normally they would permit
through the exercise of its own sovereignty they would
permit the exercise the capacity to enter into foreign
relations by a powerful state until that protectorate or
associated state will gain full independence. During such
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
time, a different state would practice or exercise foreign
affairs.
This is in fact is justified by the principle you have
learned in Consti 1 which is called The Doctrine of Self
Auto-Limitation. This protectorates and associates
possess the capacity to enter into international relations
but by virtue of a treaty they have permitted other
states to exercise this capacity for them. In IL, we don’t
consider that as a diminution of sovereignty because
sovereignty should not diminish otherwise it is not
sovereignty. There was only a diminution of the exercise
of that sovereignty. That is Doctrine of Self Auto-
Limitation.
SUI GENERIS TERRITORIAL AND NON-
TERRITORIAL ENTITIES
I’d like you to see how states or international community
view or deal with the ff: (See Damrosche extensive
discussion on this)
We call them entities with special status because all of
these under the standards of the Montevideo Convention
with regards to elements of statehood, they cannot
pass. So they are irregular entities and cannot be
considered as states but nonetheless exercising the
powers and rights of a state.
1. Holy See
The Vatican City is a territorial state. The Holy See is the
governing authority of Vatican City but the one who
enters into a treaty is the Holy See represented by the
Pope. There is a council, Pope and a body of Cardinals.
The problem here is, the Pope enters into a treaty
independent with the Vatican City. So Holy See is a non-
territorial entity.
2. Palestine
What’s wrong with Palestine? Its ability to prove that it
has exercised effective control over the disputed areas
with Israel. In 2012, it has been elevated to non-
member state status.
*Palestine and the Holy See are non-voting members.
They can participate but cannot vote in the UN.
Members in the sense that if you list them, they are
included but they cannot vote, decide and sign
resolutions.
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 3. Taiwan
What’s the problem with Taiwan? Taiwan was able to
enter into treaties it has joined the International
Agreement on Tariffs and Trade and other treaties. Only
states can enter into these agreements and treaties.
Since due to the One China policy, states have agreed to
recognize the People’s Republic of China as representing
China so Taiwan is not recognized by other states but
although recognition does not affect the statehood but
politically, it’s dependent on recognition of other states.
Even before recognition, state has right to defend its
territory, etc. Recognition is never considered as an
element of statehood but later on you will learn that
there are legal consequences of recognition. It is not an
element of statehood but there are consequences on the
lack of recognition whenever there is recognition.
Taiwan makes it problematic for Taiwan itself to be
considered as a state under the IL because it lacks
effective control over its territory since Taiwan claims
that it is the government of Taiwan that is representing
the entire China and it has no effective control of
Mainland China. The history of Taiwan tells us that it
was occupied before by Japan for many years
(Formosa). The Communist China of Mao Zedong and
the Nationalist Government of Chiang Kai Shek and the
strategy of Mao was to take advantage of the problem of
the peasants so the Nationalist Government was toppled
down and they were forced to exit Mainland China and
transferred to Formosa and still continues up to now and
claim that they are still the government of Mainland
China. Silaragihapongahatagugproblema why they
cannot be called a state. If they give up, then they can
be called a state because they have effective control
over Taiwan. International community is also dealing
with Taiwan as they are members of international orgs,
etcand now they are happy because Donald Trump
called the head of Taiwan and recognized them while in
1979, the policy of US was the One China policy.
4. Hongkong and Macau
They are Special Administrative Regions and they are
part of Mainland China but under its basic law, they are
permitted to enter into foreign relations. They are
unique kay mastaas pa sa federal state. Hongkong
enters into treaty and in fact maintains its own military.
They have basic law but still the important areas of
governance lies in PR of China.
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PRINCIPLE OF UTI POSSIDETIS JURIS
(this came out in the bar exams)
Boundaries of colonial territories will have to be
respected by states. It started as a regional custom but
eventually accepted as a custom, more of general
principle of law than CIL.
SELF-DETERMINATION, SECESSION AND
RECOGNITION
RIGHT TO SELF-DETERMINATION
Right to self-determination consists of:
1. The right to determine the political status and is
applicable to colonial territories
2. Freedom to pursue economic, social and cultural
development.
How relevant is the people’s right to self-
determination in statehood discussion?
You have been able to understand the evolution of the
right to self-determination if you read the twin Advisory
Opinions – SC of Canada on secession of Quebec and
ICJ AO on unilateral declaration of independence of
Kosovo.
It is relevant on the discussion of statehood because our
main concern is if a particular identifiable group of
people demands secession from the state, will there be a
valid creation of a new state? under the circumstance
where secession is unilateral. Of course, there is a
secession that is bilateral meaning it is agreed upon by
the territory and the mother state. So mostly, it is
possible in the federal state. Usually they agree then
amend the constitution and you will be granted
independence. There is no question about it but if the
secession is unilateral meaning against the will of the
self-governing territory. Kosovo for example unilaterally
declared independence and now it is treated as a
separate state although some scholars question the
premature reaction of the NATO forces and the passive
reaction of the Security Council on the matter.
The right to self-determination started during the
colonial regime. There had been colonies and the
international community realized that the only way to
maintain peace in certain territories is for the colonizers
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to grant independence to colonized territories. That’s
why in 1960, the UN General Assembly issued a
resolution declaring or granting independence of all
colonies. In this document, there is recognition of what
is now called the right to self-determination. All peoples
have the right to self-determination by virtue of the right
they freely determine their political status, they freely
pursue their economic, social and cultural development.
So the origin of the right to self-determination is in the
colonial period.
Is there such a thing as the right to self-
determination in the post-colonial period or in
self-governing territories?
In the context of colonial regime, can you transpose the
right to self-determination in a situation where a
territory is already part of an existing state and it wants
to separate by reason of right to self-determination?
There is no question in colonial period because the
colonizer can grant you independence, it will give you
right to determine your political status, give you the
right to pursue economic, social and cultural
development. In the opinion of the SC of Canada
regarding secession of Quebec, while this is an opinion
of a domestic court, scholars have found the judicial
reasoning and evaluation of the court as reflective of
how these issues should be resolved.
SECESSION
1. Is there a law regulating unilateral declaration of
independence? Can any group of people simply
declare independence and there is no legal
consequence?
2. What is the difference between unilateral
declaration of independence and secession?
IC Advisory Opinion on the Unilateral Declaration
of Independence in respect of Kosovo (2010)
Facts:
The Security Resolution 1244 (1999) “determined to
resolve the grave humanitarian situation” which it had
identified and to put an end to the armed conflict in
Kosovo. It authorized the United Nations Secretary-
General to establish an international civil presence in
Kosovo in order to provide “an interim administration for
Kosovo which will provide transitional administration
while establishing and overseeing the development of
provisional democratic self-governing institutions”
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Paragraph 15 of resolution 1244 (1999) demanded that
the Kosovo Liberation Army (KLA) and other armed
Kosovo Albanian groups end immediately all offensive
actions and comply with the requirements for
demilitarization. Between February 20 and 8 September
2006, several rounds of negotiations were held, at which
delegations of Serbia and Kosovo addressed, in
particular, the decentralization of Kosovo’s governmental
and administrative functions, cultural heritage and
religious sites, economic issues, and community rights.
After the declaration of independence was issued, the
Republic of Serbia informed the Secretary-General that it
had adopted a decision stating that that declaration
represented a forceful and unilateral secession of a part
of the territory of Serbia, and did not produce legal
effects either in Serbia or in the international legal order.
Issue:
Whether the declaration of independence of Kosovo was
in accordance with International Law?
Held:
No, the Court recalls its conclusions reached earlier,
namely, “that the adoption of the declaration of
independence of 17 February 2008 did not violate
general international law, Security Council resolution
1244 (1999) or the Constitutional Framework”. Finally, it
concludes that consequently the adoption of that
declaration did not violate any applicable rule of
international law.
The Court considers that general international law
contains no applicable prohibition of declarations of
independence. In no case, however, does the practice of
States as a whole suggest that the act of promulgating
the declaration was regarded as contrary to international
law. On the contrary, State practice during this period
points clearly to the conclusion that international law
contained no prohibition of declarations of
independence.
The Court observes, however, that while the Security
Council has condemned particular declarations of
independence, in all of those instances it was making a
determination as regards the concrete situation existing
at the time that those declarations of independence
were made; it states that “the illegality attached to the
declarations of independence thus stemmed not from
the unilateral character of these declarations as such,
but from the fact that they were, or would have been,
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connected with the unlawful use of force or other
egregious violations of norms of general international
law, in particular those of a peremptory character (jus
cogens)”.
DBL: In the Kosovo Advisory Opinion, there is only one
question and that was just about whether the Unilateral
Declaration of Independence by a revolutionary
government is in accordance with IL.
Unilateral declaration of independence is not necessarily
unilateral secession because the declaration is subject of
a valuation whether it conforms with IL is simply the act
of declaring independence and precisely according to the
Advisory Opinion, IL does not prohibit that. But it doesn’t
mean that secession occurs as a result of a unilateral
declaration of independence because we distinguish
between a unilateral declaration of independence that
has become effective and a unilateral declaration of
independence which has not become effective.
The process would require (not always) but assuming
that it is a unilateral declaration of independence then
separation of a territory from the mother state and if it is
coupled with unilateral declaration of independence,
then it might just be the first step of secession.
Secession is really a process. It is not a singular act.
Unilateral declaration of independence by itself will not
necessarily translate to secession. That’s why we
distinguish between effective and ineffective declaration
of independence.
Remember Emilio Aguinaldo, he declared independence
on June 8 but that was not an effective declaration of
independence. In fact, after Spain, there was never a
state called Philippines because we were then under US
after the Treaty of Paris. That was an example of an
ineffective declaration of independence. That’s why it is
wrong to celebrate Independence Day on June 12, 1898.
(Angsaktoananga term class kay “unilateral declaration
of Independence Day! Hahaha) The real independence
that we should celebrate really is July 4, 1946.
Take Note: There is no express prohibition or
there is no specific rule in IL that prohibits
unilateral declaration of independence.
Reference re Secession of Quebec
Under the international law right of self-determination, a
part of a nation may only unilaterally secede from its
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
parent nation if it is a colony, if it involves a group of
people who are oppressed by the parent nation, or if it
constitutes a definable group that is denied meaningful
access to the parent nation’s government to pursue its
political, economic, social, and cultural development.
Facts:
Quebec, a Canadian province, unilaterally desired to
secede from Canada. After considering the case, the
Governor in Council referred three questions to the
Supreme Court of Canada.
First, whether the Canadian constitution and domestic
laws permitted unilateral secession to be effected by
Quebec’s government or legislature.
Second, whether international law permitted unilateral
secession to be effected by Quebec’s government or
legislature.
Third, if international law did permit such a right when
domestic law did not, whether international law would
trump domestic law and permit unilateral secession to
be effected by Quebec’s government or legislature.
Issue:
(1) Whether, under international law, a general,
unilateral right of secession for entities exists which
trumps any domestic law to the contrary.
Ruling:
(1) No.
Under the international law right of self-determination,
a part of a nation may only unilaterally secede from its
parent nation if it is a colony, if it involves a group of
people who are oppressed by the parent nation, or if it
constitutes a definable group that is denied meaningful
access to the parent nation’s government to pursue its
political, economic, social, and cultural development.
In all other circumstances, no external right of self-
determination exists in international law, and domestic
law applies. (Denial of Right to Internal Self-
Determination)
General principles of international law do not specifically
grant nor prohibit parts of sovereign States the right to
unilaterally secede from their “parent” States. However,
just because unilateral secession is not specifically
prohibited does not mean that such a right may be
inferred.
Numerous United Nations and other international
conventions recognize the right of peoples to “self
determination,” or the right to freely choose their
sovereignty and international political status without
external pressure or interference. The term “peoples”
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may include citizens of an entire State, or merely citizens
of one part of the State.
The international right of self-determination for peoples
is normally fulfilled through internal sources—that is,
peoples are generally permitted to pursue their political,
economic, social, and cultural development within their
own State and State institutions. However, when this is
not the case, peoples may be entitled under
international law to pursue their right to self-
determination through external sources, such as
secession. Common examples of when the right to self-
determination for peoples is jeopardized internally
involve factual situations such as colonies, where people
are oppressed in some manner (such as under a foreign
military occupation), or where a definable group is
denied meaningful access to government to pursue its
political, economic, social, and cultural development.
No such circumstances exist in Quebec. There are no
signs of oppression or lack of access to government for
Quebec’s citizens, and Quebec itself is not a former
colony. Thus, while secession for Quebec could be
justified out of necessity as a “last resort” option, the
present factual circumstances do not support such an
outcome here.
Thus, there is no international law-supported right to
external self-determination for Quebec, and Canadian
domestic law governs the case. The Canada constitution
and domestic laws prohibit secession, and thus Quebec
may not legally secede from Canada.
(2) When domestic law prohibits secession, international
law generally respects this conclusion unless specific
rights regarding the “self-determination” of “peoples”
are involved, rather than just States.
DBL: But one thing is clear though, there is this
evolution of the unilateral declaration of independence
during the period of decolonization and I think I
mentioned it last time that what was the subject matter
in the opinion of the SC of Canada in the case of Quebec
whether this idea of self-determination permits an
effective secession. I told you the idea of self-
determination was talked about in the context of colonial
regime/period. Colonial territories have been granted
independence by reason of the right to self-
determination. Colonizing powers recognize that the
colonized territories and the inhabitants there were
entitled to determine freely their political status, social
and economic development. The question now is the
right whether the right to self-determination can be
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
invoked in a self-governing territory? Like Canada for
example, it is self-governing and Quebec is only a part.
So can the portion of a self-governing territory
claim the right to separate or secede by invoking
right to self-determination?
The Supreme Court in Canada said that, yes there may
be such right to self-determination but it must be
exercised within the framework of sovereign and
territorial integrity of states. So, you have your right to
self-determination, in fact it is erga omnes on the part of
states to recognize the right to self-determination If you
are an identifiable group of people and you have your
own culture and tradition and there is a need for you to
freely determine social, cultural, political and economic
development so you are invoking the right to self-
determination but it does not mean that such invocation
of the right to self-determination should already be or
right away coupled with separation or secede from a
territory because it said that it must be consistent with
the territorial integrity of states.
So the SC of Canada clarified it, this is a local case
decision but this has been quoted by many scholars
studying right to self-determination regarding what
should be the IL on the matter. Of course, secession is
the extreme.
In Kosovo Advisory Opinion, it made reference to the SC
of Canada in 1998, so in 2010 in the advisory opinion of
the ICJ, the decision of SC of Canada was quoted which
actually accepted the possibility of a “remedial
secession.” This remedial secession was worded in the
decision of the SC of Canada in the context of external
self-determination which according to the SC of Canada,
the IL on right to self-determination only generates at
best a right to external self-determination in situations:
(1) Former colonies
(2) Where a people is oppressed ex: under
foreign military occupation
(3) Definable group is denied meaningful access
to government to pursue their political,
economic, social and cultural development
This is now the meaning of what we called “remedial
right theory on secession.” In the case of Quebec for
example, it cannot be considered as a former colony, the
people are not oppressed, so in the third situation, the
SC of Canada now explained whether the people are
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denied meaningful access of the government to pursue
their political, social, cultural and economic
development. The SC ruled in the negative because the
people of Quebec were not denied of such access to the
government but in fact, they were allowed to run for
significant governmental posts. In fact since Quebec is a
federal state, it is required that someone from Quebec
should sit as a representative in the Supreme Court.
That’s why the BBL wants to copy that. There must be
someone from the Autonomous Region which will then
be called the Bangsamoro region in the Supreme Court.
In the BBL, there is also a requirement that there is a
percentage in the cabinet posts which should be from
the autonomous region.
Unlike in the case of Kosovo, it was obvious that it was a
state-sponsored ethnic cleansing and there was denial of
access to the government, even public school teachers
are removed. That’s what we call “remedial right theory
in secession.”
We have the case in 1998, the Opinion of the SC of
Canada, the ICJ recognized the value of that opinion and
made reference to that decision and the Kosovo Advisory
Opinion welcomed the application of Buchanan’s
remedial right theory in secession. But of course, what
will always be the guiding principle is that general IL
contains no applicable prohibition in the unilateral
declaration of independence. That is settled. When it
comes to secession, this is still a development in IL and I
don’t think the IL will be very much willing to accept it
as a definitive rule. That is why it is a remedial theory
only because it will encourage groups who are not
actually denied of government access to claim that they
are denied just so they can claim separation from a
territory.
RECOGNITION OF STATE
Recognition is not an element of statehood.
What is the basis to that?
Article 3 of the Montevideo Convention
“The political existence of the state is independent of
recognition by the other states. Even before recognition,
the state has the right to defend its integrity and
independence, to provide for its conservation and
prosperity, and consequently to organize itself as it sees
fit, to legislate upon its interest, administer its services
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
and to define the jurisdiction and competence of its
courts.”
So, there are two theories in the effects of recognition in
so far as the discussion on state recognition is
concerned.
1. Constitutive Theory – act of recognition
that makes the state, a state. Without the
act of recognition, it is never a state under
IL.
2. Declaratory Theory – recognizes that
statehood may be attained without need of
any such declaration and any declaration is
only confirmatory of that fact of statehood.
The more likely supported theory in IL on recognition of
states is declaratory theory. As can be gleaned from Art.
3 of the Montevideo Convention of 1933, that regardless
of recognition, that state exists as such and is entitled to
exercise territorial integrity and self-defense.
There are several subjects of recognition. There is such
a thing as:
1. Recognition of states
2. Recognition of governments
3. Recognition of belligerents
What then is the value of recognition in IL?
1. Full diplomatic relations, except in the case of de
facto recognition
2. Right to sue in the courts of the recognizing
state
3. Entitlement to property within recognizing state
4. If recognized by other states, its previous acts
will be validated
5. It can own property within the territory of the
recognizing state
What about the recognition of governments?
Situation: If State A recognizes State B, as a state,
does it also recognize the government of State B?
If State A recognizes State B as a state, it merely
recognizes that state as a state but it does not
necessarily recognize which government because it is
possible that in a particular state, there are contending
governments. It does not necessarily result in the
recognition of that government.
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Recognition of governments simply means recognition of
a government which has effective control over the
territory. According to Akehurst, if recognition of
government is made, it should also carry with it the
recognition of the state.
There is a term called “co-optation”, this term is
borrowed from scholars not in modern IL but while
recognition of a state is not indispensable to statehood,
particularly with respect to jus cogens and erga omnes
norms, the newly-established state can only enjoy
privileges in the international sphere called co-optation.
Co-optation – individual and collective
recognition by already existing states that
integrates the new state in the int’l community.
This discussion on statehood also opens another
discussion on whether statehood is a question of fact or
question of law. In fact when you notice in the sui
generis states (Holy See, Taiwan, etc) they are not
regular entities but they are treated states in the int’l
community. Effective control to a specific territory is a
question of fact. Even if we assume that Kosovo is not a
subject of oppression or indeed it was entitled to
remedial secession, the fact that Kosovo after its
unilateral declaration of independence had been
accepted as such by the community, should render or
take Kosovo as a state nonetheless. Similarly, even if
you have all the elements of statehood, from the legal
point of view but you have never been integrated in the
int’l community, it is difficult for you to exercise you
rights. You can only exercise right to self-defense but it
is a dormant right that you can exercise. You have all
elements of statehood but another state will not
recognize you as a state and will not permit you to have
diplomatic relations.
This was asked in the bar exams many times,
recognition is a highly political act, it is highly
discretionary. In fact failure to recognize would not
engage any state responsibility because it is a political
question. At the end of the day, statehood is also about
a discussion of facts and not only law because even if
you have all elements of statehood but you have never
been integrated in the international community, you’re
as good as a non-state.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Kadic v. Karadzic
Facts:
Plaintiffs, who were victims and representatives of the
victims of atrocities, appealed the dismissal of their
action against defendant, the leader of a foreign
territory, by the United States District Court for the
Southern District of NY, in an action under the Alien Tort
Act, and the Torture Victim Protection Act of 1991.
Plaintiffs, victims and representatives of victims of
atrocities, brought an action against the defendant, who
was a leader of a foreign territory. The trial court
dismissed the action.
Karadžić is facing charges on 11 counts for genocide,
crimes against humanity and severe breaches of the
Geneva Convention for his role in the 1992-1995
Bosnian war, especially for the Srebrenica massacre of
July 1995. Consolidating two 1995 indictments into one
single document, the current indictment against Karadžić
(IT-95-5/18) was confirmed on 31 May 2000.
Specifically, it includes one count of a grave breach of
the Geneva Conventions of 1949, three counts of
violations of the laws or customs of war, two counts of
genocide and five counts of crimes against humanity.
Ruling:
The court reversed and held that there was subject
matter jurisdiction under the Alien Tort Claim Act,
because aliens brought an action for a tort committed in
violation of international law. Genocide, war crimes,
torture, and summary execution are against international
law and the defendant could have been liable as a
private individual. Although defendant's foreign territory
was not recognized as a formal state, it had the
trappings of a state, including sovereignty over people
and land. As a result, defendant may have been liable
because he was the leader of a de facto government and
was acting under color of law when the atrocities
occurred. SECTION 2(a) of the Torture Victim Protection
Act of 1991 provided for subject matter jurisdiction
through the Alien Tort Claim Act. Even though defendant
was a United Nations invitee in the United States,
defendant was not immune from service of process.
Plaintiffs' claims were not a non-justiciable political
question because of the nature of the claim.
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The court reversed the judgment for defendant, leader
of a foreign territory, and ruled for plaintiffs, victims and
representatives of victims of atrocities, because there
was subject matter jurisdiction, defendant could have
been liable for genocide, war crimes, and crimes against
humanity in his private or official capacity, and there
was no immunity from service of process.
DBL: In Kadic v. Karadzic, for violations of human
rights, acts of genocide, war crimes, crimes against
humanity have been located in this small territory in
Bosnia. In US, there is this Alien Tort Act which will
permit even foreigners to file a case in the US Court to
claim for damages for violations of certain human rights.
So now the victims of these atrocities in the US filed a
case against the former leader in Srpska. The question
is, since war crimes, crimes against humanity and
genocide would not require the elements of being a
state because these are crimes which may be committed
in the context of state or even no state at all. The
perpetrators may really be condemned and convicted of
these crimes. But for the crime of torture under the
Torture Convention, torture has to be state-sponsored.
It must carry a different name. So the moment you say,
this is torture under the Torture Convention, you are
actually referring to acts of torture perpetrated by
agents of the state and therefore state-sponsored. In
the determination whether there is a violation of the
Torture Convention, because it is important for the US to
evaluate whether Srpska can be considered as a state
otherwise it is inappropriate to invoke the Torture
Convention against a leader of a territory that cannot
constitute a state. So the US in the course of its
discussion defined “state” as an entity that has a defined
territory, and a permanent population under the control
over its own government and that engages in rational
capacity to engage in formal with other such entities. In
the process it also affirmed that recognition is not an
element of statehood. So it is not important for the court
to determine if Srpska had been recognized by other
states. So as stated in the case,
“The customary international law of human
rights, such as the proscription of official torture, applies
to states without distinction between recognized and
unrecognized states.”
And eventually, the Court found the Srpska was a state.
It has a defined territory, there was control over the
population, it made mention of the threshold of
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
executive, legislative and judicial departments. So these
discussions by the Court, readily satisfied the criteria of
a state in all aspects of IL. But of course, we still want to
know whether nag-realist baang Court in this case just
so the case will progress within the framework of the
Torture Convention. Otherwise it would have ruled that
Srpska is not a state then the claim under the Torture
Convention would not prosper. That is something which
we should then qualify.
One of the consequences of recognition of the
recognizing state is that recognition has a retroactive
effect. It can validate the past acts of the government.
ACT OF STATE DOCTRINE
States being coequals, no state is permitted to pass
judgement on the validity of the acts of other sovereign
co-equal states.
Underhill v. Hernandez
Principle:
Acts of a recognized government are considered as
legitimate and acts of the state as far as the recognizing
state is concerned.
Facts:
There was a revolution that occurred in Valenzuela,
which was led by Hernandez. Hernandez rose into
power, and formed a new government. The government
was then recognized by the United States. Underhill is a
U.S. citizen. He constructed waterworks for the City of
Bolivar. He had a contract with the government with
regards to his machinery repair business.
Underhill applied for a passport to leave the city.
Hernandez refused. After a couple of days, Underhill had
successfully come back to the U.S. When he got back,
he filed a case for damages against Hernandez for
refusing to issue a passport to Underhill. The lower
court, however, ruled that Underhill was not entitled to
recover damages.
Issue:
Whether or not Underhill may recover damages.
Held:
No. Every sovereign state is bound to respect the
sovereignty of other states. This case is like a suit
against the state. The Supreme Court of the United
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State does not have the jurisdiction to sue the act of
Hernandez. The government of Hernandez is legitimate
as far as the U.S. is concerned because the latter
recognized the former. As much as possible, states
should refrain from intervening with each other.
DBL: At that time the court was confronted with the
question of, whether or not the denial of the grant of the
passport and other treatment towards Underhill was a
violation of law, but since the United States have already
recognized the revolutionary government of Venezuela
then it was impelled by the Act of State Doctrine not to
pursue/proceed further into determining the validity of
the act of that of the revolutionary government. So if the
question was whether to judge the act of the
revolutionary government, to rule if it was valid or
invalid then US Court said, we refuse to determine and
pass judgement on the validity of the act. Anyway, the
recognition of government will have the effect of
validating certain acts committed by a government,
herein case at bar is the revolutionary government.
Tinoco Arbitration
Principle:
Non-recognition does not destroy the de facto status of
the government.
Facts:
The Tinoco regime had seized power in Costa Rica by a
coup. The government was not recognized by Great
Britain. When the regime was removed, the new
government nullified all Tinoco’s contract including an oil
concession to a British company. The claim of Great
Britain was that the contract could not be repudiated
because the Tinoco government was the only
government in existence at the time of the contract was
signed. This view was not shared by Costa Rica who
claimed that Great Britain was estopped from enforcing
the contract by its non-recognition of the Tinoco regime.
The matter was sent for arbitration.
Issue:
Whether or not the acts of a de facto government,
although not recognized, are valid.
Held:
Yes. The fact that the Tinoco regime is a de facto
government validates their acts. The recognition of
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Great Britain is not necessary. The non-recognition does
not destroy the status of the Tinoco government as a de
facto government. A valid contract may be formed by an
unrecognized state. Thus, the acts of the de facto
government are valid.
DBL: While Hernandez case showcases the effect of
recognition, Tinoco would illustrates to us the effects of
non recognition of the government. When the Tinoco
government had controlled the territory of Costa Rica,
certain oil concessions or contracts have been entered
into in favor of some British company. When a new
government was established replacing that Tinoco
regime, these aforementioned contracts and concessions
have been revoked and so Great Britain complained. So
Costa Rica claimed that “well, great Britain at that time
you did not recognize the Tinoco regime as an effective
government, so you’re now estopped.”
The Arbitration said that non-recognition will not amount
to an estoppel on the part of great Britain. There was no
estoppel because the successor government have not
been led to change its position anyway because of the
non-recognition made by the British government.
RECOGNITION OF BELLIGERENCY
Whose recognition is the subject matter of
inquiry and which government would be
concerned about the effects of recognition?
The government where the belligerency takes place may
be concerned because it probably wants to acknowledge
that the belligerency has a separate international legal
personality for purposes of determining whether the
laws of war will be applicable to that. Under the 1949
Geneva Conventions, a belligerency that will be
conferred or given an international legal personality will
also be governed by the laws of war. In fact those
freedom fighters/movements invoking properly the right
of determination, they may be considered a high
contracting party in an armed conflict for purposes of
the Geneva Conventions in 1949. So for the part of the
government where the belligerency occurs, it may be
important for them in deciding whether to recognize or
not because it wants to see whether the belligerent
group will be governed by the laws of war.
Let’s contextualize, so we want that this belligerent
group to observe the laws of war so that when they
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arrest regular armed forces, then the belligerent group
would be impelled to give them the rights of a prisoner
of war. Reciprocally of course because we are now to be
governed by the Geneva Convention, the rebels who will
also be captured by the regular forces then we are also
willing to treat them as prisoners of war. And therefore
any atrocities committed either by the belligerents or by
the regular armed forces will no longer be governed by
the domestic law of the state.
Its also important for 3rd states to decide whether to
recognize belligerency in the territory of another.
Why? What would be the interest of 3 rd states
when there is an armed conflict in a territory of
another?
The 3rd states concerns would either be giving the
belligerents group international legal personality or not
in respect to the act of the belligerent groups affecting
its own nationals.
Example: There is an armed conflict in the territory of
State X where nationals of State Y may be found,
whatever happens to the nationals of State Y in State X’s
territory there is an armed conflict which will give rise to
the question as to who should be held liable? Either the
government of that state where the armed conflict
occurs or the rebel/ belligerent groups.
Later, we will study the law on state responsibility and
generally under that law anything whether the
population, government or even rebels for as long as
they are not given separate personality their acts under
certain conditions may still be accredited to that state
because they form part of the state. Whereas if you give
the rebels international legal personality, then you are
giving the rebels separate personality from that of the
state where the armed conflict occurs. So if you want to
know which regime or law should be applied to the
rebels if they commit acts of atrocities, “killing” for
example will give rise to murder and if the rebels have
not been recognized then they don’t have international
legal personality consequently they don’t have
international obligations, then they can only be
subjected to domestic prosecution under the penal law
of that state. So if its in Philippines then its murder or
rebellion under the revised penal code.
But if the belligerency is recognized by the foreign
government then instead of prosecuting the offenders
under the domestic law of that state, the killing may in
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
fact amount to what we call INTERNATIONAL CRIMES
and it can be tried under international tribunal. When we
study later on the Rome Statute, under war crimes,
nakalisted even mga crimes na can be punished
domestically. There is war crime of murder, war crime of
extermination, war crime of impregnation, etc. That’s
why recognition is very important for purposes of
determining which law will apply if belligerents commit
acts of atrocities.
Elements of "belligerency" for purposes of
recognition:
1. Occupation of substantial portion of territory
2. Organized civil government supported by the majority
of the inhabitants in the territory
3. Conflict between legitimate government and the
belligerents is serious and outcome is uncertain,
4. Belligerents are willing and able to observe laws of
war and other international obligations.
International law in general and the 1949 Geneva
conventions have offered some sort of guidelines (see 4
elements of recognition above). These are guidelines for
some states in deciding whether or not to recognize the
belligerent group. It cannot be really the law, because as
I have said recognition is a HIGHLY POLITICAL
QUESTION. But for purposes of recognition, states will
look into the following to determine whether the group
can be considered properly as belligerents in
international law and if the group does not qualify as
belligerency under international standards. International
law will simply look at the situation in that state as a
situation of INSURGENCY. The younger version of
belligerency is insurgency.
Example: When you have new people’s army (NPA) in
the Philippines still holding war against the government
but it has not occupied a substantial portion of the
territory, there may be an organization but there is no
civil government supported by majority of the
inhabitants then definitely the conflict is not that serious.
The same thing applies for what happened in
mamasapano saf44 tragedy. The manner in which they
were killed were so barbaric. So mao to niquote ang
mga radio, t.v and paper commentaries are they
governed by Geneva convention on how to treat
captured combatants? They cannot impose upon them
the principles of international law because these are not
actually rebels, the same way ISIS cannot qualify as a
belligerent group because they may have an
|15
organization but its not a civil government supported by
majority of the inhabitants of that particular territory.
We’re not saying they are not bound by any norm as to
how they would behave in treaty captured officers but
what we’re saying is its not appropriate to apply
international law with regard to these rebels/criminals
therein in the mamasapano incident. Definitely, they
have to qualify with the guidelines of belligerency if they
want to apply these standards.
So from the perspective of the 3rd State, its really
impossible for any 3rd State for that matter to even
recognize them as belligerency. That’s why it’s
incumbent upon the government to really make sure
that we don’t cause damage to 3rd States with regard to
our treatment to aliens in our territory. Because
whatever happens to them, this may be attributed to the
government since the criminals have no international
personality. That’s why if we don’t recognize them as
belligerents, its incumbent upon us to exercise control
over them otherwise if we think we cannot control them
then we should recognize them as belligerents so that
their acts will not be attributed to the Philippine
government. Those are the nuances in recognition of
belligerence.
Effects of Recognition of Belligerency
Before Recognition
The rebels are subject to the principal laws of the
legitimate government and responsibility generally
attaches to the government in which the rebels have
caused on the state with respect to their nationals
present in the territory where there is conflict of force.
After Recognition
When the belligerent community is recognized then it
will be given an international personality for the purpose
of applying the laws of war as found in the Geneva
conventions. And of course, 3rd states may now observe
neutrality.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
DOCTRINE OF STATE CONTINUITY
STATE CONTINUITY
DOCTRINE OF STATE CONTINUITY
The moment a State is established as an international
person, the State continues to be the same corporate
person whatever changes may take place in its internal
organization. This continuity of the legal personality of
the State may withstand even the most radical
transformations in its constitutions. Thus, temporary
absence of governmental control (e.g. civil war) will not
change statehood.
DBL: It is still the same State that continues to exist and
so despite changes in government, treaties shall
continue and in fact a temporary absence of
governmental control will not affect the status of the
State as such.
STATE SUCCESSION V. GOVERNMENT SUCCESSION
STATE SUCCESSION
Is when there is a change in sovereignty otherwise what
may occur is simply a government succession and we
need to know the consequences of these two. With
regard to State Succession, one principle you must take
note is the clean slate doctrine.
CLEAN SLATE DOCTRINE- the moment one state
succeeds another, the successor state is not bound by
international law to assume the obligations created by
the predecessor state when it entered into various
treaties, so treaty-based obligations are not assumed by
the successor state.
EXCEPTION:
Treaties that deal with local rights and affecting
territories. Servitudes and boundaries are binding upon
the successor state, that’s the only limitation to tabula
rasa.
It becomes optional on the part of the successor state to
whether assume the treaty-based liabilities or not, so the
most apparent effects of state succession would be
obviously the transfer of allegiance of the inhabitants.
Consequently therefore political laws are automatically
abrogated, the reason for this is that political laws
governed the relationship between the sovereign and
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the people. And so when you replace the sovereign with
another one, you therefore cancel that relationship.
Non political laws may continue unless the successor
state expressly to a law stating it is repealed or impliedly
through the enactment of news laws inconsistent with
the former.
GOVERNMENT SUCCESSION
In this scenario we distinguish between rights and
obligations. With respect to obligations we make a
further classification. This is because rights are not
adverse to the new government, then all rights of the
predecessor government will have to be inherited. The
problem is with respect to obligations because they are
adverse or burden to the successor government. In this
regard however, we make a further distinction,
distinguish between peaceful succession of government
and violent succession of government.
The term peaceful or violent has nothing to do with the
situation in changing the government. Its merely
description of the manner of changing the government.
If change is by peaceful means
It is actually referring to intra-constitutional means. im
saying this because in the past extra-constitutional
means usually described as violent means of changing
the government but the Philippines have shown to the
world that there can be extra-constitutional change of
government that can be done rather peacefully through
our EDSA revolution and it have been done/practiced
also by some states afterwards. So when we say
peaceful means, we changed one system of government
for example from the current system of government we
will replace it with the federal system of government,
may revise the constitution that is through constitutional
causes. When change of government is of peaceful
means or intra-constitutional, all obligations are inherited
by the new government.
If change is by violent means
If we change this government without following the
procedure in the constitution then that’s extra-
constitutional, meaning outside of the constitution, we
see that as violent means. That’s how traditional
international law calls that.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
If the change in government is extra-constitutional, we
make a further distinction as to the type of the
obligation. Because for obligations that arose out of the
regular administration of the government, they are
nonetheless inherited. But for obligations that are either
political or personal, the successor government will now
have the option whether or not to assume this
obligation.
What are examples of political or personal
obligations?
Before the new government is installed, it may have
engaged itself in a contract with the overthrown
government or the deposed government. Now before
that, this predecessor government may have incurred
expenses in trying to resist the establishment of the
successor government. The expenses incurred by the
predecessor government are personal expenses to that
predecessor government, those are political expenses of
the predecessor government. It doesn’t make sense if
even these obligations are to be shouldered by the very
government that impelled the predecessor government
to spend or incur obligations.
Examples of these would be, obligations incurred for the
purchase or acquisition of arms/ammunition in trying to
resist the establishment of the successor government.
Personal obligations are obligations incurred for the
private benefit of the regime, usually taking place when
corruption is involved. So when the President, borrows
money from another country or from an international
financial institution and the money is spent for personal
gains because of corruption then that becomes a
personal obligation of that regime. The successor
government will have the option to assume the
obligations or not.
Example: When Poland had been under a dictatorship
for decades, and when the dictator also incurred
obligations thru corruption. The new government
established after that was a democratic government,
declared that it was not to assume the obligations of the
dictator. And these obligations involved, among others,
the obligations towards the IMF world bank. And the IMF
world bank has a framework of permitting borrowers or
condoning obligations of borrowers. The IMF world bank
pwede na sya mucondone obligations of states but
subject to certain conditions. Poland was able to avail of
that condonation, millions of US dollars have been
|17
condoned after the dictatorship. They would be given a
PHILIPPINE PRACTICE
fresh start, same idea with insolvency/bankruptcy.

But usually the conditions would say part of the

international corporations responsibility of the IMF world
bank and other financial institutions, dba they have
programs to help aid developing countries. Like for
example the Philippines, we are beneficiaries of some
aids and donations of some financial institutions. Here
for example, the IMF world bank would see the need to
really improve our judicial system because we really
have observed the one institution in our government
that had been severely neglected is the judicial court. I
observed some judges they have computers and
printers. So then I asked how come other courts, don’t
have it? How did SC allocate the budget? Answer, this
isn’t funded by the Sc but donated by the United States.
So Courts even in highly urbanized cities like Cebu City
cannot afford that. So if I am IMF World bank, I can
easily say we have program to help developing
countries. So instead of donating, we will just condone
100M USD of your debts provided that from your income
like tax for example, you spend this much for the
judiciary. Or you spend this much for typhoon victims,
etc. As condition for the condonation of the foreign debt.
However, after EDSA revolution tita Cory did not avail of
such option instead she declared to assume all
obligations of Pres. Marcos incurred from the IMF World
bank. So in the early 90’s, Philippine government was
pressured to pay the foreign debt. So all budget were
cut and channelled to foreign debt servicing.
To sum it all up,
Effects of Government Succession
1. All rights of predecessor government are inherited by
the new government
2. If change is by peaceful means, new government
inherits all obligations
3. If change is by violent means, new government has
the option to reject political and personal obligations,
but not those arising out of regular administration of
government.
Caveat DBL: lets skip “non-state actors” because we’ve
discussed it during the first weeks of class.
Co Kim Cham v. Valdez Tan Keh
Principle:
Decisions rendered by judge under a de facto
government are legal, as long as the cases rendered are
not under political law.
Facts:
The Philippines was under the occupation of the
Japanese military. The Japanese government, during
that time, was contended to be the de facto
government. During that period, the Commonwealth
government was allegedly suspended. It was contended
that the courts cannot exercise its functions, and do not
have jurisdiction over cases that transpired during the
Japanese occupation. The legitimate government was
allegedly not functioning. But then, General Douglas
McArthur made a declaration which states:
1. That the Government of the Commonwealth of the
Philippines is, subject to the supreme authority of the
Government of the United States, the sole and only
government having legal and valid jurisdiction over the
people in areas of the Philippines free of enemy
occupation and control;
2. That the laws now existing on the statute books of
the Commonwealth of the Philippines and the
regulations promulgated pursuant thereto are in full
force and effect and legally binding upon the people in
areas of the Philippines free of enemy occupation and
control; and.
3. That all laws, regulations and processes of any other
government in the Philippines than that of the said
Commonwealth are null and void and without legal
effect in areas of the Philippines free of enemy
occupation and control.
It was also said that the City of Manila was partially
liberated. Furthermore, it was alleged that the
Commonwealth Constitution (1935) was restored on
Feb. 27, 1945.
Issue:
Whether or not the occupation of the Japanese
invalidated the jurisdiction of the courts.

PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017 |18

Held:
Yes. This is in line with the principle of postliminy. This
principle is an international law principle that presumes
that the decisions rendered by courts of a de facto
government are deemed valid. This applies to cases that
are not political, such as civil and criminal cases. The
Japanese government was a de facto government. A de
facto government may be a military government, such
as that of the Japanese government. McArthur’s
declaration is not binding as he is not the proper
authority to create laws. Thus, decisions rendered by the
courts are valid.
Lawyers League for a Better Philippines
Principle:
A president is legitimate when the people chose him/her.
It is not up to the courts to decide on that matter, as it
is political in nature.
Facts:
On February 25, 1986, President Corazon Aquino issued
Proclamation No. 1 announcing that she and Vice
President Laurel were taking power.
On March 25, 1986, proclamation No.3 was issued
providing the basis of the Aquino government
assumption of power by stating that the "new
government was installed through a direct exercise of
the power of the Filipino people assisted by units of the
New Armed Forces of the Philippines."
Issue:
Whether or not the government of Corazon Aquino is
legitimate.
Held:
Yes. The legitimacy of the Aquino government is not a
justiciable matter but belongs to the realm of politics
where only the people are the judge.
The Court further held that:
The people have accepted the Aquino government which
is in effective control of the entire country;
It is not merely a de facto government but in fact and
law a de jure government; and
The community of nations has recognized the legitimacy
of the new government.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Saturnino vs Bermudez
Principle:
Ambiguity of the transitory provisions does not divest
the legitimate president from his/her position as the
president.
Facts:
The petitioner in this case questioned the legitimacy of
the former President Corazon C. Aquino. It was
contended that it was not clear whether the president
was either Aquino or Marcos. The same goes with the
legitimacy of the vice presidents. The vice president may
be either Vice President Salvador Laurel, Aquino’s vice
president or Vice President Arturo Tolentino, Marcos’s
vice president. The contention was based on the
transitory provisions of the 1986 Constitution.
Issue:
Whether or not President Aquino and Vice President
Laurel were legitimate.
Held:
Yes. Firstly, this case was mooted because the petitioner
does not have the standing. Furthermore, the president
is immune from suit. Second, there was no cause of
action. Petitioner’s ambiguity of the transitory provisions
is manifestly gratuitous. It is a matter of public record
and common knowledge. Thus, there can be no question
as to the legitimacy of the president and the vice
president.
JURISDICTION
JURISDICTION
Why the need to study jurisdiction after having
studied statehood?
Well, this is closely related with the element of
sovereignty which is compound with the capacity to
enter into foreign relations and the ability to command
obedience by the government. The best way a sovereign
state can manifest its sovereignty is thru the effective
exercise of its jurisdiction. In international law however
jurisdiction is perceived in several ways, we don’t just
talk about jurisdiction in judicial proceedings.
|19

FORMS OF JURISDICTION
NotetebohmCase (Liechtenstein vs. Guatemala,
ICJ, 1955)
PRINCIPLE: For a state to be able to claim diplomatic
protection over an individual, it has to be able to
establish an effective nationality link between itself
(Liechtenstein) and the individual (Friedrich Nottebohm)
it wishes to represent.
FACTS:
Liechtenstein, in behalf of Mr. Friedrich Nottebohm
instituted a claim against Guatemala on the ground that
the latter “acted in a way contrary to international law”
towards Mr. Friedrich Nottebohm and his property.
Guatemala grounded its defense on the theory that
Liechtenstein’s claim is inadmissible since Nottebohm’s
naturalization was irregularly done, and was contrary to
international law.
Facts in relation to Nottebohms naturalization :
Friedrich Nottebohm was German by birth. He moved to
Guatemala, took up his residence there and worked in
Nottebohm Hermanos, a firm established by his
brothers. He stayed in Guatemala from 1905 up to the
start of the Second World War. On October 9, 1939, he
applied for admission as a citizen of the state of
Liechtenstein. On his letter for naturalization to the
Home Commune of Liechtenstein, he asked that the
government of Liechtenstein waive its 3 year
requirement for residency and to act on his application
immediately, in exchange, he would pay additional taxes
to its government. Liechtenstein agreed and had him
naturalized and also issued to him a passport and visa
by October 20, 1939.
Does the naturalization of Nottebohm, as a citizen of
Liechtenstein, entail an obligation on the part of
Guatemala to recognize its effect? Else wise stated, does
the act of naturalizing Nottebohm under Liechtenstein’s
domestic jurisdiction have effects in the international
plane?
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
HELD:
In cases where two nationalities are in conflict with each
other, the ICJ subscribes to the real and effective
nationality of the individual. Among other factors to be
considered are his (1) habitual residence, (2) family
ties, (3) participation in public life and (4) attachment
shown by him to his country and inculcated in his
children.
The ICJ subscribes to this doctrine since it effectively
reconciles the inconsistencies of laws governing
nationality in different countries. What controls is the
effective link between the individual and the country
which wishes to espouse a claim in his behalf. This is the
rule since the purpose of these laws are to establish the
said link.
So now the question boils down to which country has
this “real and effective nationality link” in relation to
Mr. Friedrich Nottebohm. The ICJ ruled that Guatemala
has this link with Nottebohm. Guatemala was the main
seat of Friedrich Nottebohm’sinterests, he had his
business and residence therein for 34 years. He even
returned to Guatemala after having his naturalization
approved by the Home Commune of Liechtenstein. In
contrast, his dealings with Liechtenstein clearly fail to
establish this link. The ICJ says that the link established
between the state of Guatemala and Mr. Friedrich
Nottebohm which strengthened within a span of 34
years was in no way weakened by the latter’s
subsequent naturalization as a citizen of Liechtenstein.
KINDS OF JURISDICTION
1. Jurisdiction to prescribe law
The authority of a state to make its policy applicable to
persons or activities (See: Restatement 402, except for
universal jurisdiction, which is in Restatement 404)
2. Jurisdiction to adjudicate
The authority of the state to subject particular persons
or things to its courts)
DBL: This also hardly limited by territoriality. This is now
the authority of the court to decide a particular case or
subject matter brought before it.
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3. Jurisdiction to enforce
Concerned with the authority of a state to use the
resources of government to induce or compel
compliance with its law. This includes authority to arrest.
DBL: This is the one easily limited by the territoriality
principle. The problem with enforcement jurisdiction is
there is really this indispensable act of sending law
enforcers in the territory of another. If we talk about,
extra territorial enforcement jurisdiction. The problem
there is, the moment we extend our enforcement
jurisdiction to the territory of another without its consent
that of course violates a principle in International law
which is the prohibition against intervention. That’s why
the effectiveness of enforcement jurisdiction largely
depends on cooperative efforts of states. That’s why we
have an obligation to observe international comity and
maintain friendlier relations. You may need somehow a
favorable accommodation by some states in some
instances.
Hartford Fire Insurance Com v. California
PRINCIPLE: The protective principle is more general
in terms of application than the territoriality principle
since it may be applied to non – criminal cases such as
those involving torts.
FACTS:
19 states and several private complainants lodged a
complaint alleging that Hartford Fire Insurance and
other London based reinsurers engaged into a grand
conspiracy aimed at forcing certain primary insurers to
change the terms of their insurance policies in violation
of the Sherman Act. To briefly explain how to reinsurers
allegedly committed this grand conspiracy, it is
important to note that primary insurers often buy
insurance for “reinsurers” to cover part of the risk they
insure in case of catastrophic losses. Therefore, the
willingness of these “reinsurers” to do business directly
affects the businesses of the primary insurers.
Hartford Fire Insurance and other companies took steps
to revise the ISO’s CGL forms in order to include a
retroactive provision for the “claims made” portion.
These moves were said to be violations of Section 1 of
the Sherman act since it pressured the primary insurers
to the advantage of the reinsurers. The defendants
argue that the revisions they proposed were perfectly
legal in United Kingdom jurisdiction.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
May the American courts exercise jurisdiction over a non
– criminal case for a tort committed outside its
jurisdiction?
HELD:
Yes. The protective principle may also be applied to torts
and not just to criminal acts. The Protective principle has
a more general application when compared to the
territoriality principle.
Also, when an individual is covered by the laws of two
countries, it is not inconsistent to say that he may
comply with both. Therefore, even if the revisions were
perfectly legal in United Kingdom jurisdiction, that fact
alone does not constitute a bar to the application of
American antitrust law. For this reason, even if the
American Congress intended to write principles of
International Comity into the Sherman Act, American
antitrust law may still be applied since again, the fact
that the acts are considered legal in one jurisdiction
does not necessarily constitute a bar to the application
of the laws of another country affected thereby.
DBL: Certain insurance companies in London had
imposed upon insurance companies in the US which
were the beneficiaries of what we call reinsurance
policies. Especially for businessmen where millions are at
stake, they would really profile their insurance
companies and one way of doing that is check the ability
of that insurance company to pay off insurance
obligations. If youre the insurance company, one way of
having a good profile that you are capable financially of
paying off insurance obligations would be to enter into a
REINSURANCE POLICY. This means, your ability to pay
insurance holders is insured pud by another insurance
company. So if di ka kabayad, kana nga risk insured
also. In this case, insurance companies of United States
obtained reinsurance contracts with Insurance
companies in London. Ang buhat man sa London
Insurance companies kay they made PROFORMA
insurance policies ba among the insurance companies sa
US. Okay we can continue with our reinsurance policies
if you follow this, so ang mga American Insurance
companies they were forced to adopt the insurance
policy dictated by London insurance companies that
turned out to be UNFRIENDLY to policy holders in the
United States. So insurance industry in the US became
weak, they don’t have a choice. If they will not obey,
they won’t have reinsurance policies with these London
|21
companies probably ma terminated ang contract so they
were forced to revise their insurance policy.
According to the US, there was a conspiracy among the
insurance companies in London nya naa man anti-trust
law called the the SHERMAN ACT, kana kuno nga type of
monopoly or conspiracy that will adversely affect the US
economy, the SHERMAN ACT will apply. Of course, the
London companies questioned the claim that the
SHERMAN ACT can be applied to the acts of the
insurance companies in London invoking international
comity.
So what did US say about it? There is no prohibition or a
particular law or statute in the United States to be made
applicable to acts outside the United States if those
produce substantial effects in the United States. We call
it typically as the protective principle, so you noticed
that the prescriptive jurisdiction is hardly limited by
territoriality. There will always be issues on
extraterritorial application of a domestic law.
CRIMINAL JURISDICTION
PRINCIPLES/ THEORIES OF CRIMINAL
JURISDICTION
Of particular importance are the various theories and
principles in criminal jurisdiction. Criminal jurisdiction is
crossly related to adjudicative jurisdiction and it is hardly
limited by territoriality.
PRINCIPLES/ THEORIES:
A. Territorial Principle (Subjective vs. Objective)
B. Nationality Principle (Active vs. Passive)
C. Protective Principle (vs. diplomatic protection)
DBL: This is different from diplomatic protection
because in diplomatic protection, you bring the case at
the international level. In protective principle, we are
only talking about the jurisdiction of the court with
respect to acts committed outside the territory and
under a narrowly defined conditions.
Under protective principle, a state can legislate crimes
that it considers to be a threat to its security, integrity or
economic interests, regardless of the place of the
commission of the crime. Common examples include:
espionage, counterfeiting and terrorism.
D. Universality Principle (Cf: "erga omnes norms")
It is for violation of erga omnes norms.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
TERRITORIAL JURISDICTION
 Territorial Jurisdiction
- even in the territoriality principle, this will also
welcome the possibility of permitting a state to
exercise jurisdiction of an act or an offense while
committed abroad but may have been completed in
your territory or vice versa.
A. Subjective territorial principle, there is
jurisdiction to prosecute or punish crimes commenced
within their territory but completed in the territory of
another state.
B. Objective territorial principle, state can exercise
jurisdiction to offenses committed in another state but
(1) consummated or completed within that territory of
the state exercising jurisdiction or (2) producing greatly
harmful consequences to their social or economic order
inside their territory.
Example: Mexico vs US, when someone in Mexico fires
a gun and hits a person in the US. Mexico could
prosecute under the subjective territorial principle
because the act was commenced in the territory of
Mexico. US can also invoke territorial jurisdiction under
objective territoriality principle because while act was
commenced in the foreign state, its effects are produced
in the territory of US. Its been completed in US.
International law does not require primacy of
jurisdiction in this situation. For example in our domestic
if there is concurrent jurisdiction, we say the first
court/tribunal that first exercises jurisdiction will have
primacy of jurisdiction right? But in international law,
there is no international law principle that suggests that
there should be primacy of criminal jurisdiction applying
effective exercise of criminal jurisdiction. So many times
over, an individual can be prosecuted both in State A
and also in State B. There is no such thing as double
jeopardy, because this is criminal jurisdiction by different
states.
US v. Vasquez-Velasco
PRINCIPLE: Under the objective territoriallity
principle, a state may exercise criminal jurisdiction over
crimes committed outside its territory when they have
detrimental effects within said state. Furthermore, it
exercise of jurisdiction may also be justified under the
protective principle, which allows a state to exercise
jurisdiction over crimes committed outside its territory
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but nevertheless impinge on its territorial integrity,
security, or political independence.
FACTS:
Javier Vasquez – Velasco, a member of a Narcotics
Cartel based in Guadalajara, was indicted for smuggling
10 ounces of heroin and concealing the same. Said
cartel was under investigation by the American Drug
Enforcement Agency. During trial, it was seen that Javier
was also involved in the murder of John Walker, an
American author and Alberto Redalat, an American
photographer in the La Langosta restaurant, an
establishment in Guadalajara. The narcotics cartel
mistook them for DEA agents and tortured them until
one of them admitted to being a police officer.
May the US courts exercise jurisdiction over the drug
smuggling charges as well as the two murders
committed in Guadalajara?
HELD:
Yes. The US courts may exercise jurisdiction pursuant to
the objective territorial principle and the protective
principle. The objective territorial principle is that which
holds that jurisdiction may be asserted over acts
performed outside a state’s territory but produces
detrimental effects with the state. The protective
principle is that which holds jurisdiction may be asserted
over foreigners for acts committed outside a state’s
territory but impinge on the state’s territorial integrity,
security or political independence.
These principles find application in relation to the drug
smuggling charges since drug smuggling is a universally
condemned offense, thus it undeniably impinges on the
US’ territorial integrity security and political
independence.
They also find application in relation to the murder
charges. Even if neither of the victims were in fact DEA
agents, the acts of the narcotics cartel were directed
against the DEA, an American Agency. The murders of
Walker and Redalat were done to further the cartel’s
smuggling activities through intimidating the DEA from
enforcing its activities against the cartel’s smuggling
operations. In other words, even if the victims were not
really DEA agents, their murders still impinge on the US’
territorial integrity, security and political independence
since they were carried out against the DEA. The
purpose of the two murders was to intimidate the DEA
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
so that the cartel may further its drug smuggling
operations.
DBL: They were killed because these drug syndicates of
which Velasco was a member, not just suspected but
they really thought that these two John Walker and
Alberto Radelat were drug enforcement agency agents.
They thought they were DEA agents of USA and that’s
very crucial in determining whether the US was able to
justify exercise of jurisdiction, criminal jurisdiction. When
he was convicted under US law, Vasquez Velasco argued
that US penal laws cannot be applied extraterritorially.
When they mistook the victim as DEA agents then the
acts of killing were actually acts directed against US
interest. The US interest referred to here is the policy of
the United States to combat illegal drug trafficking into
the US soil. That’s a serious concern of the government
which is to prevent and combat trafficking of drugs from
South American countries. So if you kill a DEA agent,
even if it is in the territory of Mexico. Then that act
should be treated as an offense against a US interest. Of
course kung random pud to na killing or ordinary murder
its hard to justify it under the objective territorial
principle because kung nationality lang ang link, extra
territorial application of criminal law using nationality as
the link is VERY WEAK in international law. I say weak,
we’re not saying international law prohibits it but it is a
weak link in international law. Meaning it will invite a lot
of criticism by an international community if ever a state
would invoke that.
This is based on objective territoriality principle
Apart from the fact that it happened outside the US
territory, the act has detrimental effects to the US. The
acts produced gravely harmful consequences to the
social or economic order inside their territory. It has
produced harmful effects because the killing was
directed against the real agents of DEA particularly and
such threatened the security, territorial integrity and
political independence of the US.
This is also justified under the protective principle
The US can lawfully exercise jurisdiction because for US,
an act committed outside the US that may impinge on:
1) Territorial security – since this involved an act
directed against DEA, it would affect the efforts of the
US in combatting drug syndicates.
|23
2) Political independence of the US – extra-territorial
application of US penal laws to violent crimes associated
with drug trafficking is reasonable under international
law principles.
Despite the fact the crime in this case did not involve the
murder of an actual or real DEA agent, extra-territorial
jurisdiction is still appropriate because the act is really
directed against the DEA as an institution. Hence, it is
considered an act directed against the US.
NATIONALITY PRINCIPLE
NATIONALITY PRINCIPLE
What is this Nationality Principle? Whose
nationality would matter?
A. Active Nationality Principle
In the case of active nationality, as you have read, we
look at the nationality of the actor. Active nationality can
be applied in criminal and non-criminal jurisdiction.
What is an example of active nationality principle
in jurisdiction not relating to crime?
The Philippine law for example. We look at the
nationality of the author of the act subject to regulation.
If the author of the act is a Philippine citizen then we
say the law is applicable to him.
A: In general sense of course, laws affecting status (e.g.
marriage), tax laws
The key link is the nationality of the subject of the
regulation. So that is active nationality principle.
Is there active nationality principle in our
Philippine penal law?
A: Article II of the Consti on ambassadors
B. Passive Nationality Principle
For passive nationality, a state may prescribe law for
situations where its nationals are victims of the conduct
being regulated. You might want to ask why these rules
on nationality are not standardized. What I’m trying to
say is, if you have noticed, a state can actually invoke
whatever theory it can invoke to exercise jurisdiction.
The US for example, is the number one state is very
bold in its exercise of extraterritorial jurisdiction. On the
other hand, other countries, for example the Philippines,
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
are very conservative. So there are countries that are
bold in exercising jurisdiction, and there are those that
are conservative.
Don’t forget this very fundamental principle in
international law, as announced by the PCIJ in the 1947
case of France v. Turkey (Lotus Case), re-echoed in the
Advisory Opinion of the ICJ in 1986 on the Legality of
the Threat or Use of Nuclear Weapons, that in
conventional or customary law prohibiting the particular
conduct of a state, restriction to a state’s sovereignty is
never presumed. Until such time international law
develops a clear standard on jurisdiction, any state can
actually insist on a particular jurisdiction. Especially for
the first two kinds of jurisdiction – prescriptive and
adjudicative. That’s why I started my discussion with the
notion that these are hardly limited by territoriality,
because of that. Not unless the state concerned is a
party to a convention that deals with jurisdiction. In the
absence of that there is no limit.
But this idea of nationality, is it similar to
citizenship? Are we referring to the citizenship of
the person?
A: Nottebohm Case (Liechtenstein vs. Guatemala, ICJ)
Nottebohm Case (Liechtenstein vs. Guatemala,
ICJ)
Issue is the exercise of diplomatic protection as against
the acts of Guatemala.
Q: Did the ICJ, therefore, not recognize the citizenship
granted by Lichtenstein to Nottebohm? Did the ICJ say
that? Or did the ICJ say instead that what we are
dealing with here is international law?
We are dealing here with international law because this
is a diplomatic protection case. Now of course, there is a
recognition that any state will have its right,power or
authority, as a sovereign state, to determine who are
really its citizens. So who are citizens of state X? That is
for state X to determine. There is no international law or
limitation to this sovereign authority of a state to
determine who its citizens are under its own domestic
law. But the ICJ said that since this is an international
law dispute, the international law cannot just accept the
grant of citizenship of the state (although recognizing
that sovereign power of the state), as it does not bind
international law. International law would require not
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only citizenship, but also what we call real and effective
nationality.
So in international law, citizenship alone is not sufficient
to grant a state the right to grant diplomatic protection.
The Nottebohm case will have to be discussed in the
light of diplomatic protection or under the context of
diplomatic protection. But this of course illustrates the
point that the citizenship granted by the state will not
necessarily govern the determination of locus standi in
diplomatic protection cases.
So Lichtenstein was not able to convince the ICJ that,
while Nottebohm was its citizen, it had real and effective
link.
Guatemala has referred to well established principles of
international law that it is the bond of nationality
between the state which alone confers upon a state the
right of diplomatic protection.
PROTECTIVE PRINCIPLE
PROTECTIVE PRINCIPLE
What is this protective principle?
A state can legislate crimes that it considers to be a
threat to its security, integrity or economic interests
regardless of the place of the commission of the crime.
If you are to use the term “economic interests”, that is
actually referring to the way the US defines protective
principle. Restatement 402 of the US restatement on
foreign relations, would admit economic relations
because of the way they understood protective principle.
Restatement 402:
A state has jurisdiction to prescribe the law with respect
to certain conduct outside its territory by persons not its
nationals that is directed against the security of the state
or against a limited class of other state interest.
As a common law country, it is really expected to come
up with such principle “and other state interest” because
policy makers would want the court instead to develop
that particular principle rather than put it in a sort of
box-like definition. That is very typical of a common law
country.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Hartford Fire Insurance Co. vs. California (1993)
So even economic interest, as was shown in Hartford
Fire Insurance Co. vs. California (1993), is accepted by
the US. But some countries do not practice that. US
would include economic interest, however, other
countries are aware that protective principle has a very
narrow application. So definitely, security matters are
covered, espionage, falsification provision on documents.
What about the case of Osama Bin Laden? What
happened there?
US v. Osama Bin Laden (2000)
PRINCIPLE: “The passive personality principle is
increasingly accepted as applied to terrorists and other
organized attacks on a state’s nationals by reason of
their nationality, or to assassination of a state’s
diplomatic representatives or other officials”
FACTS:
Defendants were indicted with fifteen defendants with
conspiracy to murder United States nationals, to use
weapons of mass destruction against United States
nationals, to destroy United States buildings and
property, and to destroy United States defense utilities.
The Indictment also charges defendants Mohamed
SadeekOdeh, Mohamed RashedDaoud al-’Owhali, and
KhalfanKhamis Mohamed, among others, with numerous
crimes in connection with the August 1998 bombings of
the United States Embassies in Nairobi, Kenya, and Dar
es Salaam, Tanzania, including 223 counts of murder.
The Indictment also charges defendant Wadih el Hage
with numerous perjury and false statement counts. Six
of the Defendants are presently in the custody of the
Bureau of Prisons: Mamdouh Mahmud Salim, Ali
Mohamed, Wadih El Hage, Mohamed RashedDaoud Al-
Owhali, KhalfanKhamis Mohamed, and Mohamed
SadeekOdeh (“Odeh”).
Presently before the Court is Odeh’s Motion to Dismiss
Counts 5-244 for Lack of Jurisdiction, in which the other
defendants join.
Issue: May the US courts (national courts) exercise
jurisdiction over the case?
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HELD:
The objective territoriality principle provides that a state
has jurisdiction to prescribe law with respect to “conduct
outside its territory that has or is intended to have
substantial effect within its territory.” Restatement The
protective principle provides that a state has jurisdiction
to prescribe law with respect to “certain conduct outside
its territory by persons not its nationals that is directed
against the security of the state or against a limited class
of other state interests.”
The nationality principle provides that a state has
jurisdiction to prescribe law with respect to “the
activities, interests, status, or relations of its nationals
outside as well as within its territory.”
The passive personality principle provides that “a state
may apply law — particularly criminal law — to an act
committed outside its territory by a person not its
national where the victim of the act was its national.”
The universality principle provides that - “[a] state has
jurisdiction to define and prescribe punishment for
certain offenses recognized by the community of nations
as of universal concern, such as piracy, slave trade,
attacks on or hijacking of aircraft, genocide, war crimes,
and perhaps certain acts of terrorism,” regardless of the
location of their occurrence. Id. § 404
The court ruled that US had jurisdiction over the case,
justified through universality principle and passive
personality principle. Quoted portions from the case of
US v Bowman, US v Vasquez - Velasco.
DBL: Certain bombings in Kenya resulted in the damage
to US embassies and injuries to American nationals. So
the act of terrorism was committed in Kenya, meaning
outside of the US; however, the acts were directed
against the government institutions of the US.
So when Osama Bin Laden questioned the jurisdiction of
the US court over the bombings in Kenya, of course you
expect the US court to exercise protective principle. This
is a clear example fof protective principle. Of course,
since American nationals were also victims, the US also
justified its jurisdiction using the passive nationality
principle.
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UNIVERSALITY PRINCIPLE
UNIVERSALITY PRINCIPLE
Attorney General of Government of Israel v.
Eichmann (1961)
PRINCIPLE: Jurisdiction over an individual is not
voided by the illegality of his arrest.
FACTS:
Eichmann, a German nationality, was the Head of the
Jewish Office of the German Gestapo. He was the
administrator in charge of the policy that led to the
extermination of between 4,200,000 and 4,600,000 Jews
in Europe from 1941-1942.
Eichmann was found in Argentina in 1960 by persons
who were probably agents of the Israeli Government
and abducted to Israel without the knowledge of the
Argentinean Government. There he was prosecuted for
war crimes, crimes against the Jewish people, the
definition of which was modelled upon the definition of
genocide in the Genocide Convention of 1948, and
crimes against humanity. He was convicted and
sentenced to death. His appeal to the Supreme Court of
Israel was dismissed. After the kidnapping of Eichmann
from its territory, Argentina had lodged a complaint with
the Security Council of the United Nations claiming that
the act constituted a violation of its sovereignty and had
requested appropriate reparation, namely the return of
Eichmann.
Is the trial of the accused in Israel following his
kidnapping in Argentina in conflict with international law
and does it takes away the jurisdiction of the Israeli
court?
HELD:
The Security Council of the United Nations decided that
the abduction of Eichmann was a clear violation of the
Argentinean territorial sovereignty and was a violation of
international law. Under general international law, the
territorial integrity of sovereign states is inviolable. If a
state, acting through an organ the actions of which are
attributable to it, purports to exercise powers in the
territory of another state without the latter's consent, it
commits an international tort.
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BUT it was rendered moot when a joint decision of the
Governments of Argentina and Israel “cured” the
international tort committed by Israel when it entered
Argentinian territory to abduct the Eichmann.
Further, the jurisdiction of Israel is not negated by the
manner in which Eichmann was brought before the
Court. It is an established rule of law that a person
standing trial for an offence against the laws of a State
may not oppose his being tried by reason of the illegality
of his arrest or the means by which he was brought to
the jurisdiction of the court . This rule applies equally in
cases where the accused is relying on violations of
international, rather than domestic, law.
Note: The only reasonable argument for the Israeli
court seems to be on the basis of universal jurisdiction
because the crimes with which Eichmann was charged
were war crimes, genocide, and crimes against
humanity.
The court mentioned that the “crimes dealt with in this
case are not crimes under Israeli law alone, but are in
essence offences against the law of nations. Indeed, the
crimes in question are not a free creation of the
legislator who enacted the law for the punishment of
Nazis and Nazi collaborators, but have been stated and
defined in that law according to a precise pattern of
international laws and conventions which define crimes
under the law of nations.”
DBL: Of course, almost everyone knows the acts of
atrocities by the German Hitler regime in Germany. After
the creation of the special courts to go after Hitler, his
generals scattered all over the world. Eichmann was
hiding in Argentina. Argentina, apparently
uncooperative, did not turn over or arrest Eichmann. He
was kidnapped in Argentina and forcibly brought to
Israel. He was prosecuted for violating a domestic law in
Israel for an act committed outside.
There were two justifications:
1) Passive nationality principle
2) Universal character of the crime – genocide; there
was an erga omnes obligation to prosecute
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Pinochet Case
Pinochet was a former dictator of Chile. He allegedly
tortured Spaniards in Chile. When he was in UK for
medical purpose or treatment, he was served an
international warrant of arrest and was brought to Spain
for prosecution. There was a question whether Spain
could justify its jurisdiction over the acts of torture
committed by Pinochet in Chile.
Spain justified its jurisdiction justified its jurisdiction
based on the universality principle, because it is actually
erga omnes to prosecute torture. And there was also a
reliance on passive nationality because the victims were
Spanish nationals. Territoriality was of course weak
because the act was committed in Chile and not in
Spain. Active nationality was not proper because
Pinochet was not a Spanish citizen, and because there
was no threat to Spain’s national security, in so far as
torture is concerned.
EXTRADITION
RENDITION
EXTRADITION
Extradition is just one of the three methods of rendition.
Extradition is basically one of the legal and legitimate
ways to complete rendition.
Rendition
Rendition in international law refers to the delivery of
an individual from one state to another or surrendering if
applicable to persons.
Three modes of rendition in international law:
1. Extradition 

2. Deportation 

3. Abduction of foreign nationals aboard (this is
controversial) 

In deportation of course, there is no guarantee that the
person being deported will really reach the territory of
the state interested in prosecuting him.
In one bar exam, the question was distinguish
extradition and deportation. You can give at least two
distinctions. First, deportation does not require a treaty.
Second, it is just a unilateral act of a State to invoke a
ground for purposes of deporting an alien. There is no
|27
requirement of a treaty. The third one, if you can go
further in distinguishing, the destination of the deportee
is never assumed. It is just expelling a person. Whether
that person will go to state A or B, there is no obligation
because it is just deportation. With respect to
extradition, it is not a unilateral act as it is in fact a
bilateral one. It is based on a treaty. And the requesting
state would be entitled to the custody of the person
subject of the request.
The third method is, of course, controversial. It involves
the abduction of an individual. The first two, are
however, settled.
What are the conditions of extradition?
A: The duty to deliver an accused person to the custody
of the requesting state via extradition can only be done
if there is an (1) extradition treaty. It is a purely treaty
based obligation. There is no CIL regarding this
obligation.
Then part of the nature of extradition proceedings is
that, (2) the person being extradited must have been
charged or convicted of an extraditable offense. One
readily available principle in international law is the
principle of fairness or good faith. So, it is not fair for the
state to extradite a person who has not been charged or
convicted of an extraditable offense.
As you will see later on, offenses are either extraditable
or non-extraditable – this would depend on the treaty.
So the third condition requires that (3) the offense must
be extraditable. In order to make an offense extraditable
is to make the offense one of the listed extraditable
offenses, or the treaty can provide for what is usually
called the “dual criminality clause”. States A and B
may agree in the treaty of extradition, that any other
offense that is not listed as an extraditable offense in the
treaty may still be subject to an extradition request
provided that the offense is punished by both states.
Common principles regarding extradition:
- No treaty, no obligation to extradite.
- Pacta sunt servanda applies. This means that if
there is such a treaty-based obligation, refusal to
comply with the obligation becomes an IWA in
violation of pacta sunt servanda.
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- Dual purposes of prosecution and execution.
- Incidentally because of the value of the freedom of
expression, in fact the International Human Rights
Court, has given a higher value to freedom of
expression, extradition could not cover political
offenses because it will run counter to the principle
of asylum. Normally, extradition treaties will provide
for what is known as an “attenat clause” in an
extradition treaty. Attentat Clause is usually found
in an extradition treaty. Parties will agree that since
extradition treaty should not cover political
offenses, they would provide there a reservation in
a way, that the mere killing or assassination of a
head of state/government should not be necessarily
or automatically considered political offense. It
would be a political offense if it was pursuant to
rebellion. But if it was pure murder pursuant to
rebellion, then the person may still be extradited as
it is not a political offense.
- “Rule of Specialty” must be followed. What is this?
Extradition process begins with a request, and the
request will indicate the offense upon which the
request is being made. If the request is for the
crime of murder, the principle of fairness also
mandates and requires, that when the other state
obliges as a result of the extradition treaty, then the
person subject of extradition should be prosecuted
only for murder. It cannot be that the request was
for murder and then the person requested, upon
reaching the territory of the requesting states, will
be prosecuted for rape. As I’ve said, international
law also depends on the good faith of states.
- Ex-post facto law prohibition does not apply. The
principle of legality is found in common law. In civil
law, we have nullum crimen nulla pine sine lege,
meaning there is no crime if there is no law
punishing it. The way to observe such principle of
legality, meaning a crime can only be considered a
crime when there is a law punishing it. We cannot
permit a later law to be made applicable to an act
when performed was not yet considered a crime.
This is the most sound argument forwarded by
Hitler during the Nuremburg trial. But ex-post facto
law presupposes that the law is a penal law.
The problem is usually this: X committed the crime
of ____ and he went to the territory of state A. He
committed the crime in 2010. Realizing that state A
and state B, the state where X came from, they
made an extradition treaty. In 2016
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Question: Can X be extradited for a crime he
committed in 2010 when there was no extradition
treaty yet?
Answer: Extradition treaty is not a penal law. So,
ex-post facto law cannot be applied.
ABDUCTION
ABDUCTION
What is the justification of the term male captus,
bene detentus? Do you think it’s a fair principle?
In other words, the court will still acquires
jurisdiction over the person wrongfully detained?
Note: Enforcement jurisdiction always runs counter to
principle of prohibition against intervention. The moment
tou send your police personnel to the foreign state
without its permission, that is automatically intervention.
A:Ker-Frisbie doctrine
KER v. Illinois, 119 U.S. 436 (1886)
PRINCIPLE:
Illegal abduction does not invalidate jurisdiction for as
long as he the accused receives proper and fair trial
respecting his right to due process of law.
FACTS:
Ker was wanted in Illinois for embezzling money from a
Chicago bank. The bank discovered that Ker (a US
citizen) was living in Peru, obtained the necessary
extradition papers, and hired a Pinkerton agent named
Julian to accept Ker from the Peruvian Government and
transport him back to Chicago. But Chilean forces
occupied Lima at that time, and the Peruvian
Government was in exile. Formal extradition proceedings
were therefore difficult and Julian "without presenting
[the papers] to any officer of the Peruvian government,
or making any demand on that government for the
surrender of Ker, forcibly and with violence arrested Ker.
He then transported Ker back to US soil.
Ker objected to his prosecution in the United States on
the ground that his right to due process had been
violated by the illegal arrest.
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HELD:
While the United States Supreme Court conceded that
Ker had been kidnapped, it held that the purpose of due
process lay in fair trials, and that an illegal abduction
would not preclude jurisdiction so long as the
indictment was proper and a fair trial ensued.
FRISBIE v. Collins, 342 U.S. 519 (1952)
PRINCIPLE: same as Kerr
FACTS:
Collins was in jail for murder. He alleges that while he
was living in Chicago, police officers from Michigan
forcibly seized, handcuffed, blackjacked and brought him
to Michigan. The Respondent argued that this conduct
violated the Fourteenth Amendment Due Process Clause
and the Federal Kidnapping Act.
Note: Michigan & Chicago are different States which
exercise different jurisdictions; therefore, this is a
domestic use of the Ker-Frisbie Doctrine.
HELD:
“[t]his Court has never departed from the rule
announced in [Ker v. Illinois], that the power of a court
to try a person for crime is not impaired by the fact that
he had been brought within the court’s jurisdiction by
reason of a ‘forcible abduction.’ ”
“There is nothing in the Constitution that requires a
court to permit a guilty person rightfully convicted to
escape justice because he was brought to trial against
his will.”
DBL: It all boiled down to the question of due process.
But the moment the accused is brought to court, the
notion of due process is still observed (the right to
counsel, to present evidence, and such other rights of
the accused).
There is nothing wrong with illegal abduction or arrest
because the moment the person is brought to court
anyway, he is given the right to due process. Is this
right? Can you think of another justification? Forget
about due process.
A: The illegality of the arrest is never imputed to the
Court. Who arrests? Law enforcement agencies. As such,
it does not affect the jurisdiction of the court. The act of
|29
the arresting authority is executive in nature, not
judicial.
Take note of the two reasons given:
1. It cannot deprive the jurisdiction of the court
because the argument that it affects due
process is not really a sound argument in this
regard. When we speak of due process, we refer
to a procedure in court. And where when the
accuse is already in the custody of the court, the
court still grants the accuse all rights that he
deserves. All rights pertinent to due process. So
if this rights are still observed, so a claim of
denial of due process would not be a valid claim
because due process is really observed.
2. It shouldn’t affect the jurisdiction of the court
because the court actually has no participation
and therefore, the illegality of the arrest should
not affect the jurisdiction of the court. Because
the officers making the arrest are not officers of
the court. But these are actually law officers
pertaining to the executive department.
Attorney General of Government of Israel v.
Eichmann (1961)
DBL: One argument here was Israel could not have
jurisdiction over the person of Eichmann because he was
illegally abducted in Argentina. Again, male captus, bene
detentus. Illegality of the arrest will not affect the
jurisdiction of the court.
Ker-Frisbie v. Collins (1952) ; Ker v. Illinois
(1886)
The power of a court to try a person in a case is not
impaired by the fact that they have been brought before
the court by a forcible abduction. There is nothing in the
US constitution that requires a court to permit a guilty
person to escape justice because he was brought to
court through forcible abduction.
This is the same with US v. Alvarez-Machain.
US v. Alvarez-Machain
PRINCIPLE:
Abduction does not invalidate jurisdiction. This is further
bolstered by the lack of express provision in the
extradition treaty between the two countries, especially
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
if it can be proven that neither party intended to prohibit
such.
FACTS:
Machain, is a citizen and resident of Mexico. He was
indicted for participating in the kidnap and murder of US
DEA special agent Salazar and a Mexican pilot. The
D.E.A. believes that Machain, a medical doctor,
participated in the murder by prolonging agent Salazar's
life so that others could further torture and interrogate
him.
On April 2, 1990, Machain was forcibly kidnapped from
his medical office in Guadalajara, Mexico, to be flown by
private plane to El Paso, Tex., where he was arrested by
D.E.A. officials. The District Court concluded that D.E.A.
agents were responsible for respondent's abduction,
although they were not personally involved in it.
By contending that his abduction violated a U.S.-Mexico
extradition treaty, Machain sought to dismiss the
indictment. Further, at trial, Alvarez alleged that during
his captivity he was beaten, drugged, and shocked on
the soles of his feet with an electrical apparatus
HELD:
The Court ruled that Alvarez, regardless of the way in
which his custody had been obtained, could be tried by
American courts.
The Court notes that “there is no express promise by
either party to refrain from forcible abductions in the
territory of the other nation. Relying on that omission,
the Court, in effect, concludes that the treaty merely
creates an optional method of obtaining jurisdiction over
alleged offenders, and that the parties silently reserved
the right to resort to self-help whenever they deem force
more expeditious than legal process. If the United
States, for example, thought it more expedient to torture
or simply to execute a person rather than to attempt
extradition, these options would be equally available
because they, too, were not explicitly prohibited by the
treaty.”
After finding that the abduction did not fall within the
purview of the extradition treaty, the Court concluded
that, absent an applicable treaty limitation, the
prerogative for the undertaking fell solely within the
constitutional domain of the Executive.
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Note:
In reaching this decision, the Court ignored or rejected a
number of legal principles thought by many to preclude
or limit the reach of the United States in its actions
abroad. Particularly, by effectively vindicating the
conduct of the Executive branch in this case, the
Supreme Court announced that neither the Due Process
Clause of the Fifth Amendment nor international treaties,
outside of a very narrow, literal construction, limit the
power of the Executive in the extraterritorial
enforcement of criminal justice. Even more significantly,
the Court refused to recognize fundamental, normative
principles of customary international law, either directly
or through the medium of the extradition treaty.
DBL: Mexico, however, made a strong argument that
there was an extradition treaty. Why then did the US
abduct Alvarez? The US said that there is no
international law principle that precludes abduction of a
criminal just because there is an extradition treaty.
Further, Mexico was fully aware of the US practice of
abducting criminals. By the time the treaty was entered
into, there should have been a provision on abducting
criminals. Go back to the Lotus case, in the absence of a
clear conventional or CIL, a restriction on sovereignty of
a state should not be presumed.
In 1974 though, this was already the beginning of the
recognition of the international community of the need
to value human rights and human dignity in general.
Because of this, the perspective of the international
community has been changed. Because of this
recognition, when abduction has been accompanied with
torture or outrageous conduct that are so shocking to
the conscience, the court cannot just close its eyes of
the fact, and it will require that it divest itself of
jurisdiction.
As such, the principle of male captus, bene detentusis
not absolute. However, the illegality of abduction alone
does not affect the jurisdiction of the court.
Justice Mansfield: We view due process as now requiring
a court to divest itself of jurisdiction over the person of
the defendant if it has been acquired as a result of
government’s deliberate, unnecessary and unreasonable
invasion of the accused person’s constitutional rights.
The court is now an active court, not anymore passive.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
EXCEPTION TO THE GENERAL RULE:
US v. Toscanino
Toscanino was abducted in Uruguay and taken to Brazil
and for 17 days he was subjected to brutal torture.
Where the illegality of arrest has been accompanied with
brutality, torture or other outrageous conduct that the
arrest had been done in a manner that is so shocking to
the conscience, due process requires that the district
court divests itself of its jurisdiction. So this affects due
process. The illegality of the arrest will not affect due
process but the brutality and torture will affect due
process.
There’s a good explanation to the paradigm shift in the
case of the US court on the matter. You noted in the
past, under the old traditional PIL, most norms are
created are basically pertaining to the state. That’s why
our observation had been traditional PIL had been state-
centered. But modern IL is now individual-centered kind
of IL. And so, especially in the advent of the Universal
Declaration of Human Rights and the 2 covenants on
civil and political rights and economic, cultural and social
rights. Rights of individuals had been given attention
now by the international committee. And so to the
extent of this kind of illegal arrest violates the very
dignity of the accused individual, then it violates due
process.
“We view due process as now requiring a court to divest
itself of jurisdiction over the person of the defendant
where it has been acquired as the result of the
government’s deliberate, unnecessary and unreasonable
invasion of the accused’s constitutional rights.”
This is an exception to the Ker-Frisbee doctrine as it is
known in the US or also known as male captus bene
detentus in PIL.
US ex rel. Lujan v. Gengler
In the same year though, the US clarified in this case the
exception in Toscanino. Here there was also a
government sponsored abduction, a prolonged
interrogation and detention but according to the court,
that was the worst part of the illegality of the arrest.
Prolonged detention and interrogation but never been
similar conduct that in the case of Toscanino. No torture
or brutality or outrageous conduct according to the
court. The worst done was that the accused was
blindfolded the whole time.
|31
The conduct has to be so shocking to violate due
process.
IMMUNITY FROM JURISDICTION
DOCTRINE OF QUALIFIED IMMUNITY
Doctrine of Qualified Immunity
(Restrictive Theory of State Immunity)
The principle of state immunity from suit may be
discussed in the context of immunity of a particular state
from suit within its territory and immunity of states from
suit in the territory of another.
In IL, we always speak of the immunity of a state in the
territory of another. We’re talking here of a situation
where a state is sued in the forum in the court of
another state. We’re not talking about of a situation
where a case is filed in the RTC of Cebu against the
Philippine state. That pertains to Consti 1. If we’re
talking about filing a case in the RTC in Cebu against the
US, then that becomes IL state immunity discussion. We
focus on that only.
The reason as you already learned, co-equality of states
Par en parem non habet imperium comes into play. No
state can exercise jurisdiction over another state. The
states being co-equal.
That principle is customary international law. However,
while in the past, the principle of state immunity had
been absolute. Meaning it can be invoked by a state
regardless of the function or act involved, modern IL has
adopted the restrictive theory of state immunity.
There is now a need to distinguish between
governmental also known as public functions v.
Proprietary or private functions.
We distinguish between jure imperii and jure gestionis.
That we make such a distinction now is CIL. Not just
state immunity is CIL but the doctrine that we restrict it,
the application of governmental acts is also CIL.
The distinction (as you read in your textbook) is also for
the int’l court to respond to the needs of the state. IN
the past, most acts of the state had been governmental
or public, now a days, states have already engaged in
activities that used to be the domain of private
individuals or entities.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
Let’s talk about Singapore. They operate Singapore
airline. So the international committee adapted to these
new undertakings of states, thereby establishing the
restrictive theory of state immunity.
In the Philippines, we have situations involving foreign
court. These had been considered jure imperii, lease of
an apartment building by foreign government for the use
of military officers. Conduct of public bidding for the
repair of a wharf at the US naval station.
The idea was that although it was a repair of a wharf,
the wharf was used by the US naval station so the
activity of the public bidding was governmental.
Acts Jure gestionis (Private)
1. The hiring of a cook in the recreation center,
consisting of 2 restaurants, a cafeteria, bakery,
a store and a coffee and pastry shop at the John
Hay Air Station in Baguio City to cater to
American servicemen and the general public
2. The bidding for the operation of barber shops in
the Clark Air Base in Angeles City
Verlinden v. Central Bank of Nigeria
PRINCIPLE: The restrictive theory of sovereign
immunity is confined to suits involving jure imperii
(sovereign acts) and not jure gestonis (proprietary acts).
FACTS:
A contract between the Federal Republic of Nigeria and
petitioner Dutch corporation for the purchase of cement
by Nigeria provided that Nigeria was to establish a
confirmed letter of credit for the purchase price.
Subsequently, petitioner sued respondent bank, an
instrumentality of Nigeria, in Federal District Court,
alleging that certain actions by respondent constituted
an anticipatory breach of the letter of credit. Petitioner
alleged jurisdiction under the provision of the Foreign
Sovereign Immunities Act of 1976 (Act), 28 U.S.C. §
1330(a), granting federal district courts jurisdiction
without regard to the amount in controversy of
"any nonjury civil action against
a foreign state . . . as to any
claim for relief in personam with
respect to which the foreign state
is not entitled to immunity either
under sections 1605-1607 of this
title or under any applicable
international agreement."
|32
The District Court, while holding that the Act permitted
actions by foreign plaintiffs, dismissed the action on the
ground that none of the exceptions to sovereign
immunity specified in the Act applied. The Court of
Appeals affirmed, but on the ground that the Act
exceeded the scope of Art. III of the Constitution, which
provides, in part, that the judicial power of the United
States shall extend to "all Cases . . . arising under [the]
Constitution, the Laws of the United States, and Treaties
made . . . under their Authority," and to "Controversies .
. . between a State, or the Citizens thereof, and foreign
States, Citizens, or Subjects." The court held that neither
the Diversity Clause nor the "Arising Under" Clause of
Art. III is broad enough to support jurisdiction over
actions by foreign plaintiffs against foreign sovereigns.
HELD:
1. For the most part, the Act codifies, as a matter of
federal law, the restrictive theory of foreign sovereign
immunity under which immunity is confined to suits
involving the foreign sovereign's public acts, and does
not extend to cases arising out of its strictly commercial
acts. If one of the specified exceptions to sovereign
immunity applies, a federal district court may exercise
subject matter jurisdiction under § 1330(a), but if the
claim does not fall within one of the exceptions, the
court lacks such jurisdiction.
For the most part, the Act codifies, as a matter of
federal law, the restrictive theory of sovereign immunity.
A foreign state is normally immune from the jurisdiction
of federal and state courts, 28 U.S.C. § 1604, subject to
a set of exceptions specified in §§ 1605 and 1607. Those
exceptions include actions in which the foreign state has
explicitly or impliedly waived its immunity, § 1605(a)(1),
and actions based upon commercial activities of the
foreign sovereign carried on in the United States or
causing a direct effect in the United States, §
1605(a)(2). [Footnote 11] When one of these or the
other specified exceptions applies, "the foreign state
shall be liable in the same manner and to the same
extent as a private individual under like circumstances,"
2. On its face, 1330(a) allows a foreign plaintiff to sue a
foreign sovereign in federal court provided the
substantive requirements of the Act are satisfied. The
Act contains no indication of any limitation based on the
plaintiff's citizenship. And, when considered as a whole,
the legislative history reveals an intent not to limit
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
jurisdiction under the Act to actions brought by American
citizens.
3. Congress did not exceed the scope of Art. III by
granting federal district courts subject matter jurisdiction
over certain civil actions by foreign plaintiffs against
foreign sovereigns where the rule of decision may be
provided by state law. While the Diversity Clause of
Art. III (i.e. the judicial power extends to controversies
between "a State, or the Citizens thereof, and foreign
States," covers actions by citizens of States. Yet diversity
jurisdiction is not sufficiently broad to support a grant of
jurisdiction over actions by foreign plaintiffs, since a
foreign plaintiff is not "a State, or [a] Citize[n] thereof.")
is not broad enough to support such subject matter
jurisdiction, the "Arising Under" Clause(i.e. Congress
may confer on the federal courts jurisdiction over any
case or controversy that might call for the application of
federal law)is an appropriate basis for the statutory
grant of jurisdiction. In enacting the Act, Congress
expressly exercised its power to regulate foreign
commerce, along with other specified Art. I powers. The
Act does not merely concern access to the federal
courts, but rather governs the types of actions for which
foreign sovereigns may be held liable in a federal court
and codifies the standards governing foreign sovereign
immunity as an aspect of substantive federal law. Thus,
a suit against a foreign state under the Act necessarily
involves application of a comprehensive body of
substantive federal law, and hence "arises under" federal
law within the meaning of Art. III.
4. Since the Court of Appeal, in affirming the District
Court, did not find it necessary to address the statutory
question of whether the present action fell within any
specified exception to foreign sovereign immunity, the
court on remand must consider whether jurisdiction
exists under the Act itself.
DBL: Verlinden was a contractor of cement. Nigeria, the
government purchased a cement from Verlinden. So a
letter of credit was established in a bank to assure that
the moment the goods are delivered to the port of
destination, then the letter of credit will assure the
payment. Central Bank of Nigeria who issued the letter
of credit, it refused to honor the transaction. So
Verlinden sued the Central Bank. And you know when
you sue an instrumentality of a government, easily that
will require the national government to satisfy the
judgment in the form of money. Easily this is a suit
|33
against the state scenario. But was the invocation of
state immunity by the Central Bank, or rather the
government of Nigeria, in the territory of the US upheld?
US Court said no, the case was dismissed on the basis of
state immunity. That even though they are suing the
central bank of Nigeria, the transaction however was
commercial. The restrictive theory of foreign sovereign
immunity under which immunity is confined to suits
involving (something) of its acts, public act does not
extend to cases arising out of strictly commercial acts.
So in this case, the purchase of cement apparently was
considered commercial.
Jones v. Minister of Interior of Saudi Arabia
PRINCIPLE: The protection of state immunity is
essentially procedural. Filing a suit for damages against
its agent performing jure imperii cannot circumvent this.
FACTS:
The claimants said that they had been tortured by Saudi
police when arrested on false charges.
On 6 June 2002 Mr. Jones, the claimant in the first
action giving rise to this appeal, issued High Court
proceedings against two defendants: the Ministry of
Interior of the Kingdom of Saudi Arabia (“the Kingdom”),
which (it is accepted) is for present purposes the
Kingdom itself; and Lieutenant Colonel Abdul Aziz, sued
as servant or agent of the Kingdom. He claimed
aggravated and exemplary damages for assault and
battery, trespass to the person, false imprisonment and
torture in the Kingdom between March and May 2001.
Messrs Mitchell, Sampson and Walker are the claimants
in the second action giving rise to this appeal. They
issued High Court proceedings on 12 February 2004
against four defendants. The first two defendants were
sued as officers in the Kingdom’s police force. The third
defendant was sued as a colonel in the Ministry of
Interior of the Kingdom and deputy governor of a prison
in which the claimants were confined. The fourth
defendant was sued as head of the Ministry of Interior.
They claimed aggravated damages for assault and
negligence, contending that they had been subjected to
torture by the first two defendants, which the third and
fourth defendants had caused or permitted or
negligently failed to prevent.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
They sought damages, and appealed against an order
denying jurisdiction over the defendants. They said that
the allegation of torture allowed an exception to state
immunity.
HELD:
The Kingdom’s appeal succeeded.
1. The protection of state immunity was essentially a
procedural one. It was not a matter where the court had
a choice, and the Court of Appeal had been wrong to
take to itself any discretion. Torture cannot be justified
by any rule of domestic or international law, but the
question at issue was whether such a norm conflicts with
a rule which accords state immunity: ‘The jus cogens is
the prohibition on torture. But the United Kingdom, in
according state immunity to the Kingdom, is not
proposing to torture anyone. Nor is the Kingdom, in
claiming immunity, justifying the use of torture. It is
objecting in limine to the jurisdiction of the English court
to decide whether it used torture or not.’
The International Court of Justice has made plain that
breach of a jus cogens norm of international law does
not suffice to confer jurisdiction. In Congo v. Rwanda,
the ICJ said,
“State immunity is a procedural rule going to the
jurisdiction of a national court. It does not go to
substantive law; it does not contradict a
prohibition contained in a jus cogens norm but
merely diverts any breach of it to a different
method of settlement. Arguably, then, there is
no substantive content in the procedural plea of
State immunity upon which a jus cogens
mandate can bite.”
2. A state is not criminally responsible in international or
English law, and therefore cannot be directly impleaded
in criminal proceedings. The prosecution of a servant or
agent for an act of torture within article 1 of the Torture
Convention is founded on an express exception from the
general rule of immunity. It is, however, clear that a civil
action against individual torturers based on acts of
official torture does indirectly implead the state since
their acts are attributable to it. Were these claims
against the individual defendants to proceed and be
upheld, the interests of the Kingdom would be obviously
affected, even though it is not a named party.
|34
Part I of the 1978 Act was not disproportionate as
inconsistent with a peremptory norm or iuscogens of
international law and its application did not infringe the
claimants’ rights under article 6 of the ECHR.
3. Lord Bingham said: ‘. . the claimants must show that
the restriction is not directed to a legitimate objective
and is disproportionate. They seek to do so by
submitting that the grant of immunity to the Kingdom on
behalf of itself or its servants would be inconsistent with
a peremptory norm of international law, a jus cogens
applicable erga omnes and superior in effect to other
rules of international law, which requires that the
practice of torture should be suppressed and the victims
of torture compensated . There is no evidence that
states have recognized or given effect to an international
law obligation to exercise universal jurisdiction over
claims arising from alleged breaches of peremptory
norms of international law, nor is there any consensus of
judicial and learned opinion that they should. This is
significant, since these are sources of international law.
But this lack of evidence is not neutral: since the rule on
immunity is well-understood and established, and no
relevant exception is generally accepted, the rule
prevails.’
4. Lord Hoffmann said: ‘But the same approach cannot
be adopted in international law, which is based upon the
common consent of nations. It is not for a national court
to ‘develop’ international law by unilaterally adopting a
version of that law which, however desirable, forward-
looking and reflective of values it may be, is simply not
accepted by other states.’
DBL: This involves several individuals, British individuals
who had been subjected to torture in Saudi Arabia. One
had been detained for 67 days without trial. Of course
eventually, he was released but after prolonged
detention, subject to torture and starvation. When they
reached UK, they sued the Minister of Saudi Arabia for
the torture conducted by officers of Saudi Arabian
government. There was an invocation of state immunity.
The counter-argument was, just like in Pinochet, acts of
torture cannot be protected by immunity from suit by a
head of state. But according to the court, since the case
was not under the torture convention or that it was not
a criminal case but only for damages. The court
said that there is no sufficient evidence of state practice
that leads to the conclusion that in cases of torture, a
state would not enjoy immunity from civil proceedings.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
And because it was just a civil proceeding for damages,
state immunity was still an appropriate defense on the
part of the government.
Saudi Arabia v. Nelson
PRINCIPLE: A foreign state's exercise of the alleged
abuses of power has long been understood for purposes
of the restrictive theory as peculiarly sovereign in nature.
FACTS:
The respondents Nelson, a married couple, filed this
action for damages against petitioners, the Kingdom of
Saudi Arabia, a Saudi hospital, and the hospital's
purchasing agent in the United States. They alleged,
among other things, that respondent husband (he was a
monitoring systems engineer) suffered personal injuries
as a result of the Saudi Government's unlawful detention
and torture of him and petitioners' negligent failure to
warn him of the possibility of severe retaliatory action if
he attempted to report on the job hazards (i.e.
discovered safety defects in the Hospital's oxygen and
nitrous oxide lines that posed fire hazards and otherwise
endangered patients' lives.) The Nelsons asserted
jurisdiction under the Foreign Sovereign Immunities Act
of 1976, 28 U.S.C. § 1605(a)(2), which confers
jurisdiction where an action is "based upon a commercial
activity carried on in the United States by the foreign
state." The District Court dismissed for lack of subject
matter jurisdiction. The Court of Appeals reversed,
concluding that respondent husband's recruitment and
hiring were "commercial activities" upon which the
Nelsons' action was "based" for purposes of
§1605(a)(2).
HELD:
The Nelsons' action is not "based upon a commercial
activity" within the meaning of the first clause of
§1605(a)(2), and the Act therefore confers no
jurisdiction over their suit.
(a) This action is not "based upon" a commercial
activity.The Act defines such activity as "commercial
activity carried on by such state and having substantial
contact with the United States," §1603(e), and provides
that a commercial activity may be "either a regular
course of commercial conduct or a particular commercial
transaction or act," the "commercial character of [which]
shall be determined by reference to" its "nature," rather
than its "purpose." Although the Act does not define
|35
"based upon," the phrase is most naturally read to mean
those elements of a claim that, if proven, would entitle a
plaintiff to relief under his theory of the case, and the
statutory context confirms that the phrase requires
something more than a mere connection with, or
relation to, commercial activity. Even taking the Nelsons'
allegations about respondent husband's recruitment and
employment as true, those facts alone entitle the
Nelsons to nothing under their theory of the case. While
these arguably commercial activities may have led to the
commission of the torts that allegedly injured the
Nelsons, it is only those torts upon which their action is
"based" for purposes of the Act.
(b) Petitioners' tortious conduct fails to qualify
as "commercial activity" within the meaning of the Act.
This Court has ruled that the Act largely codifies the so
called "restrictive" theory of foreign sovereign immunity,
Republic of Argentina v. Weltover, Inc., and that a state
engages in commercial activity under that theory where
it exercises only those powers that can also be exercised
by private citizens, rather than those powers peculiar to
sovereigns, id., at ___. The intentional conduct alleged
here (the Saudi Government's wrongful arrest,
imprisonment, and torture of Nelson) boils down to
abuse of the power of the police. However monstrous
such abuse undoubtedly may be, a foreign state's
exercise of that power has long been understood for
purposes of the restrictive theory as peculiarly sovereign
in nature. The Nelsons' argument that respondent
husband's mistreatment constituted retaliation for his
reporting of safety violations, and was therefore
commercial in character, does not alter the fact that the
powers allegedly abused were those of police and penal
officers. In any event, that argument goes to the
purpose of petitioners' conduct, which the Act explicitly
renders irrelevant to the determination of an activity's
commercial character.
(c) The Nelsons' attempt to claim failure to warn
is merely a semantic ploy. A plaintiff could recast
virtually any claim of intentional tort committed by
sovereign act as a claim of failure to warn. To give
jurisdictional significance to this feint of language would
effectively thwart the Act's manifest purpose to codify
the restrictive theory of foreign sovereign immunity.
(opinion of Burger, C. J.)
DBL: Nelson was assigned in a hospital in Saudi Arabia.
He must have noticed some malpractice, affecting
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
sanitary issues so he voiced it out. He was kidnapped
and tortured by police. This is an important case
because the US court because they adopted the test
called nature of the conduct test. This is one of the
tests we conduct to determine if an act is jure imperii or
jure gestionis. One is nature and the other is purpose.
And in the 2004 UN Convention, it gives primacy to
nature but does not disregard purpose.
So what is reflected in the UN convention is being
practiced by the US. The conduct was not commercial as
the powers allegedly abused were those of police and
penal officers. Since torture is a governmental order.
The first argument was that the activity involved was the
hospital, a private entity but the court did not uphold
this since they said the basis for the case filed was the
torture, not that he was employed in the hospital. So it
was not the nature of the operation of the hospital that
was crucial but the act of torture against Nelson.
Argentine Republic v. Amerada Hess Shipping
Corp
PRINCIPLE: A foreign state cannot waive its immunity
by signing an international agreement that does not
mention a waiver of immunity to suit in United States
courts or even the availability of a cause of action in the
United States.
FACTS:
A crude oil tanker owned by respondent United Carriers,
Inc., a Liberian corporation, and chartered to respondent
Amerada Hess Corp., also a Liberian corporation, was
severely damaged when it was attacked in international
waters by Argentine military aircraft during the war
between Great Britain and petitioner Argentine Republic
over the Falkland Islands (Malvinas) off the Argentine
coast. Respondents brought separate actions against
petitioner in Federal District Court for the damage they
sustained in the attack. They invoked the District Court's
jurisdiction under the Alien Tort Statute (ATS), which
confers original jurisdiction on district courts over civil
actions by an alien for a tort committed in violation of
the law of nations or a treaty of the United States.
Amerada Hess also brought suit under the general
admiralty and maritime jurisdiction of federal courts, 28
U.S.C. § 1333, and "the principle of universal
jurisdiction, recognized in customary international law."
The District Court dismissed respondents' complaints for
|36
lack of subject matter jurisdiction, ruling that their
actions were barred by the Foreign Sovereign
Immunities Act of 1976 (FSIA). The FSIA provides in 28
U.S.C. § 1604 that
"[s]ubject to existing international agreements
to which the United States [was] a party at the
time of the enactment of this Act[,] a foreign
state shall be immune from the jurisdiction"
of United States courts except as provided in 28 U.S.C.
§§ 1605-1607, and further provides in 28 U.S.C. §
1330(a) that
"[t]he district courts shall have original
jurisdiction without regard to amount in
controversy of any nonjury civil action against a
foreign state . . . as to any claim for relief in
personam with respect to which the foreign
state is not entitled to immunity"
under §§ 1605-1607 or any applicable
international agreement. The Court of Appeals reversed,
holding that the District Court had jurisdiction over
respondents' consolidated action under the ATS.
HELD:
The FSIA provides the sole basis for obtaining
jurisdiction over a foreign state in United States courts,
and the District Court correctly dismissed the action
because the FSIA did not authorize jurisdiction over
petitioner under the facts of this case.
(a) The FSIA's text and structure demonstrate
Congress' intention that the FSIA be the sole basis for
obtaining jurisdiction over a foreign state in United
States courts. Sections 1604 and 1330(a) work in
tandem: § 1604 bars United States courts from
exercising jurisdiction when a foreign state is entitled to
immunity, and § 1330(a) confers jurisdiction on district
courts to hear suits brought by both United States
citizens and aliens when a foreign state is not entitled to
immunity.
(b) From Congress' decision in the FSIA to deny
immunity to foreign states in cases involving property
taken in violation of international law in § 1605(a)(3),
the plain implication is that immunity is granted in those
cases involving alleged violations of international law
that do not come within one of the FSIA's exceptions.
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
(c) Congress' failure in the FSIA to enact a pro
tantorepealer of the ATS when it passed the FSIA in
1976 may be explained at least in part by the lack of
certainty as to whether the ATS conferred jurisdiction in
suits against foreign states. In light of the
comprehensiveness of the FSIA's scheme, it is doubtful
that even the most meticulous draftsman would have
concluded that Congress also needed to amend pro
tanto the ATS and presumably other grants of subject
matter jurisdiction in Title 28.
(d) The rule of statutory construction under
which repeals by implication are disfavored does not
apply here. This case does not involve two statutes that
supplement one another, nor is it a case where a more
general statute is claimed to have repealed by
implication an earlier statute dealing with a narrower
subject. Congress' decision to deal comprehensively with
the subject of foreign sovereign immunity in the FSIA,
and the express provision in § 1604 that "a foreign state
shall be immune from the jurisdiction" of United States
courts except as provided in §§ 1605-1607, preclude a
construction of the ATS that permits the instant action.
(e) Congress dealt with the admiralty jurisdiction
of the federal courts when it enacted the FSIA. Section
1605(b) expressly permits an in personam suit in
admiralty to enforce a maritime lien against a vessel or
cargo of a foreign state. Unless the present case is
within § 1605(b) or another exception to the FSIA, the
statute conferring general admiralty and maritime
jurisdiction on the federal courts does not authorize this
suit against petitioner.
TN: Exceptions under the FSIA include: cases
involving the waiver of immunity, § 1605(a)(1),
commercial activities occurring in the United
States or causing a direct effect in this country,
§ 1605(a)(2), property expropriated in violation
of international law, § 1605(a)(3), inherited, gift,
or immovable property located in the United
States, § 1605(a)(4), non-commercial torts
occurring in the United States, § 1605(a)(5), and
maritime liens, § 1605(b)
(f) The District Court correctly determined that
none of the exceptions enumerated in the FSIA applies
to the facts of this case. The exception for non-
commercial torts in § 1605(a)(5) is limited by its terms
to cases in which the damage to or loss of property
occurs in the United States. The FSIA's definition of
|37
"United States" in § 1603(c) as including all "territory
and waters, continental and insular, subject to the
jurisdiction of the United States" cannot be construed to
include petitioner's attack on the high seas.
(g) The Geneva Convention on the High Seas
and the Pan American Maritime Neutrality Convention
entered into by petitioner and the United States do not
create an exception to the FSIA. A foreign state cannot
waive its immunity under § 1605(a)(1) by signing an
international agreement that does not mention a waiver
of immunity to suit in United States courts or even the
availability of a cause of action in the United States. Nor
does the Treaty of Friendship, Commerce and Navigation
between the United States and Liberia carve out an
exception to the FSIA. That Treaty provides that United
States and Liberian nationals shall have access to the
courts of each country "on conforming to the local laws,"
and the FSIA is clearly one of the "local laws" to which
respondents must conform before bringing suit in United
States courts.
DBL: The court used the nature test. The commercial
character of a transaction is to be determined with
reference to the course of conduct rather than by
reference to its purpose. If you look at the UN
Convention of Jurisdictional Immunities, there’s an
enumeration of what constitutes of commercial
transactions.
And you have here the test. It says:
In determining whether a contract or transaction is a
commercial transaction under paragraph 1(c) of the
convention, reference should be made primarily to the
nature of the contract or transaction or conduct.
However, while primacy is given to nature, purpose is
not irrelevant. But its purpose should also be taken
account if the parties to the contract or transaction so
agreed or if in the practice of the state in the forum, that
purpose is relevant to determining the non-commercial
character of that transaction.
Commercial transactions:
(i) Any commercial contract or transactions for
the sale of goods or supply of services;
(ii) Any contract for a loan or other transaction
of a financial nature, including any
obligation of guarantee or of indemnity in
respect of any such loan or transaction;
PUBLIC INTERNATIONAL LAW | DBL | EH – 407 S. Y. 2016-2017
(iii) Any other contract or transaction that is of
commercial, industrial, trading or
professional nature
The question here is this: how do we apply the
nature test and how do we apply the purpose
test? What’s the basic question?
You can get the answer from the case of Argentine
Republic v. Amerada. Basically it’s a commercial activity
if a private party could engage in for profit. Ultimate
question is, what is the transaction, activity or contract?
Is it something that a private individual or entity can
engage in? If yes, then by nature that activity is
commercial. If that activity that only the government can
engage in, then that is an activity that is by nature
governmental. Like collection of tax.
Example lease by a foreign government of apartment
buildings for use of its military officers. So this is a
contract of lease, by nature is it something that can be
done by a private party? Of course. So regardless of the
purpose, the purpose there is that the apartment
buildings will be used for military officers. So we give
primacy to nature, that would not have been jure
imperii. Since it’s a contract of lease.
If you apply the nature test, a contract of lease is by
nature, commercial or private. In our SC was to be
consistent with IL, then it should have focused on the
nature.
Public bidding (governmental), by nature, although in
the case of Ruiz, primacy was given to the purpose. The
discussion was that since it was a public bidding, since it
involved wharf for the use of US naval forces,
governmental.
The bidding for the operation of barber shops in the
Clark Air Base in Angeles City, clearly bidding is a
governmental act but since it involves barber shop in the
Clark Air Base so the purpose was made commercial. So
jure gestionis.
In the Philippines, the SC looks at more than the
purpose than the nature. US is nature test.
|38

2004 UN CONVENTION ON JURISDICTIONAL
IMMUNITIES OF STATES AND THEIR PROPERTY
Article 5. State immunity
A state enjoys immunity, in respect of itself and its
property, from the jurisdiction of the courts of another
State subject to the provisions of the present
Convention.
Property
Even in cases where a state is not a party to a case, but
the case nonetheless involves property of that state,
then that state may be permitted to intervene and
invoke state immunity from suit. State immunity under
the UN convention involves at least 2 situations:
1. Where the state invoking immunity is a party
2. Where the state invoking state immunity is not a
party but the case involves property of that
state.
Jurisdiction of the courts of another state- so the
CIL on state immunity definitely applies to the exercise
of the jurisdiction of the court.
Definition of Terms under the 2004 UN
Convention on Jurisdictional Immunities:
(a) “court” means any organ of a State, however
named, entitled to exercise judicial functions;
(b) “State” means:
(i) the State and its various organs of government;
(ii) constituent units of a federal State or political
subdivisions of the State, which are entitled to perform
acts in the exercise of sovereign authority, and are
acting in that capacity;
(iii) agencies or instrumentalities of the State or other
entities, to the extent that they are entitled to perform
and are actually performing acts in the exercise of
sovereign authority of the State;
(iv) representatives of the State acting in that capacity;
(c) “commercial transaction” means:
(i) any commercial contract or transaction for the sale of
goods or supply of services;
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(ii) any contract for a loan or other transaction of a
financial nature, including any obligation of guarantee or
of indemnity in respect of any such loan or transaction;
(iii) any other contract or transaction of a commercial,
industrial, trading or professional nature, but not
including a contract of employment of persons.
3. In determining whether a contract or transaction
is a “commercial transaction” under paragraph 1
(c), reference should be made primarily to the
nature of the contract or transaction, but its
purpose should also be taken into account if the
parties to the contract or transaction have so
agreed, or if, in the practice of the State of the
forum, that purpose is relevant to determining
the non-commercial character of the contract or
transaction.
Take note of the definitions because it will tell you the
scope of the terms used in the convention. When you
talk about the state, it involves the federal state also.
Local government and political subdivisions is included.
Courts
In the definition, there is no restriction to the application
of the concept of courts that this court should be in the
judicial department. There is nothing in the convention
that restricts the concept of courts to agencies in the
judicial department. As long as it exercises judicial
functions.
If you have an administrative agency also exercising
quasi-judicial function and this involves property of a
state, that would trigger the invocation of state
immunity. Also according to the international law
commission, the concept of court proceeding is not
limited to the actual proceeding in court but even the
preliminary stages before the actual court proceeding
should be covered.
May be possible that a plaintiff may get a preliminary
relief or provisional relief from a court even before the
actual filing of the case. If this involves property of the
state, even if it’s not in the jurisdiction of the court, the
state can still involve state immunity.
In the Philippines, Philippine Veteran’s Association v. Del
Mar and in the case of Lansang v. CA, when is it
appropriate to invoke state immunity from suit?
When there’s an act of appropriation of public funds and
government property. The justification is that under our
system, no public money or property shall be taken out
of our public treasury without the required
appropriation. The only way that public fund would be
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taken out from public treasure when there is an
appropriation law. So it cannot be that public money
would be taken out from public treasury as a result from
the judgment of the court.
So in any case that would not require the Philippine
government to do that affirmative act of appropriating
funds or property, state immunity may be invoked. This
applies in a situation where we’re suing the Philippine
government in our own court.
In IL, it’s a little broader and more comprehensive ang
scope. Not only fund or property, where the state is not
named as a party to the proceeding, so it’s possible that
the state is not named as a party since it’s possible that
an official is sued. Or not really an official of a state but
the case involves either property, rights, interest or
activities, this would trigger invocation state immunity
from suit. That is IL application of the doctrine of state
immunity from suit.
And it should apply this norm because we observe the
incorporation clause. Not only CIL becomes part of the
law of the land but also generally accepted principles.
Even principle that have not ripened to CIL but general
principles of international law, become part of the law of
the land by incorporation.
Most principles are similar to state immunity domestic
discussion. For example, it’s a foreign state that initiates
the case in the court of another state and it opens itself
to a counter-claim. Or it gauges in a private contract,
naa gihapon ng waiver. (read the entire document)
HEAD OF STATE AND DIPLOMATIC
IMMUNITY
Immunity of Former Head of State in Criminal
Proceedings
U.S. v. Noriega 117 F.3d 1206 (1997)
PRINCIPLE:
In order to benefit from head of state immunity, a
government official must be recognized by the
immunizing state as the head of state. However,
recognition is considered a discretionary function, with
there generally being no legal duty to recognize the
validity of a state or its leader.
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FACTS:
Noriega was the commander of the Panamian Defense
Forces (PDF).He became the military dictator of Panama
from 1983 to 1989.During the 1989 U.S. invasion of
Panama, he was removed from power, captured,
detained as a prisoner of war, and flown to the United
States. Noriega and his 12 conspirators were indicted for
engaging in a criminal enterprise in violation of U.S.
racketeering and drug laws. The indictment alleged that
Noriega participated "in an international conspiracy to
import cocaine and materials used in producing cocaine
into and out of the United States. Furthermore, Noriega
was alleged to have exploited his official position as
commander- in-chief of the Panamanian Defense Forces
(PDF) by receiving payoffs from the Colombia-based
Medellin Cartel (Cartel) in exchange for his assistance.
Specifically, the indictment alleged that Noriega
protected cocaine shipments from Columbia through
Panama to the United States, arranged for the sale and
shipment of ether and acetone, chemicals used for the
production of cocaine, to the Cartel, provided a refuge
and base of operations for members of the Cartel in
Panama, and assured the safe passage of millions of
dollars in narcotics proceeds from the United States.
Issue was whether Noriega can invoke head of state
immunity
HELD:
No.
In order to benefit from head of state immunity, a
government official must be recognized by the
immunizing state as the head of state. However,
recognition is considered a discretionary function, with
there generally being no legal duty to recognize the
validity of a state or its leader.
It was evident that the General was merely the
commander of the PDF, and was never recognized by
the Panamanian Constitution or the United States as
Panama's head of state but rather continued to
recognize President Eric Arturo Delvalle as the legitimate
leader of Panama while Noriega was in power.
Panama had not even sought immunity on behalf of
Noriega through the State Department.
Even if recognized as the de facto leader of Panama, the
court opined, the grant of immunity is a privilege that
may be freely withheld by the United States. Thus,
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because the FSIA did not control head of state immunity
determinations, the court looked to the Executive Branch
for guidance. By pursuing Noriega's capture and
prosecution, the court reasoned, the Executive Branch
had affirmatively manifested its intent to deny any form
of immunity for Noriega.
The Pinochet Case (2001)
PRINCIPLE: Current and former heads of state may
not claim immunity against prosecution for acts which
have been made jus cogens norm under international
law.
Although the immunity generally applies to both current
and former heads of a state as a diplomatic norm, and
shields current and former officials from suit for acts
committed while acting within their official capacities.
However, when acts taken in an official capacity
constitute universal crimes, the official actor ceases to
be immune from suit.
FACTS:
In 1998, a Spanish judge for extradition requested that
an English magistrate issue a warrant for the arrest of
Pinochet, the former head of state of Chile. The request
for a warrant charged that while head of state, Pinochet
conspired with others to take hostage, torture, and kill
numerous people, including Spanish citizens.
Pinochet was arrested and brought before an English
court. However, he argued that he was immune from
arrest and could not properly be extradited. Issue was
on whether a current or former head of state may claim
immunity against prosecution for acts which have been
made universal crimes under international law.
HELD:
No. Current and former heads of state may not claim
immunity against prosecution for acts which have been
made jus cogens norm under international law.
a) Pinochet may not claim immunity for the crime of
torture because this act has been made a universal
crime by the International Convention Against Torture
and other Cruel, Inhuman, or Degrading Treatment or
Punishment of 1984 (Torture Convention).Additionally,
Pinochet is only extraditable for torture committed after
1988 (when Pinochet’s offensive acts were recognized as
a crime under both U.K. and Spanish law).
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b) Although the immunity generally applies to both
current and former heads of a state as a diplomatic
norm, and shields current and former officials from suit
for acts committed while acting within their official
capacities. However, when acts taken in an official
capacity constitute universal crimes, the official actor
ceases to be immune from suit. A “universal crime” is
seen as a “crime against all” which any State is
authorized to punish because the crime is so significant
as to warrant punishment without jurisdictional
adjudication.
c) Following the Nuremburg trials after World War II, the
international community began recognizing torture—with
or without the presence of war and hostilities—as a war
crime or crime against humanity. Modern United Nations
tribunals in Yugoslavia and Rwanda have recognized
torture as a “universal crime,” and the international law
prohibiting torture has been accepted as jus cogens, or a
peremptory norm. The jus cogens nature of torture
permits States to take universal jurisdiction over the act
wherever it is committed. Universal jurisdiction implies
that the offense may be punished by any State,
regardless of whether it experienced the effects of the
crime, because the criminals are “common enemies of all
mankind and all nations have an equal interest in their
apprehension and prosecution.”
d) When Pinochet instituted an official regime of torture
for Chilean citizens, he engaged in universal crimes and
thus relinquished his official immunity based on
principles of international law. Additionally, Pinochet
violated the Torture Convention of 1984, which codified
the international crime of torture and required all
signatories to designate torture as a crime within their
own legal systems. In response to the passage of the
Torture Convention, England passed a law in December
1988 implementing the Convention’s provisions within its
own borders. Chile and Spain also passed laws
implementing the provisions of the Torture Convention
by this date. Thus, Pinochet is liable for violating
principles of universal law and the Torture Convention,
as implemented by England, Spain, and Chile when he
committed acts following December 1988. However,
England could not extradite Pinochet to Spain for acts
which did not constitute a crime recognized by English
law at the time of their commission, and thus for
extradition purposes, Pinochet is only found guilty of
tortuous acts occurring after December 1988.
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What is the scope of immunity of a head of state?
The question can be answered by first distinguishing the
two principles governing immunity. This is applicable to
head of states and diplomatic officials.
Immunity of the head of state is governed by two
regimes.
1. Immunity ratione personae – we look at the person. If
he is an incumbent head of state, then he is immune.
The immunity attaches to the person and not to his
function.
2. Immunity ratione materiae – applies to former heads
of states. Here, we look at the function. If the function is
official, immunity continues. Otherwise, there is no more
immunity. Immunity attaches to the materiality of the
function, whether it’s related or not.
longer incumbent). When he was prosecuted for torture,
he invoked immunity of head of state.
His lawyer said that in order to invoke immunity rationae
personae, it had to align to his function ang torture. So
Pinochet said that yes he tortured and it was upon his
order as head of state. So that the immunity would
apply to his function, he admitted to the torture and the
torture was admitted as his order as head of state.
According to the House of Lords of UK, the absolute
prohibition of torture is a jus cogens norm and even if i-
official ang order, it overrides the immunity afforded to
the former head of state in criminal proceedings. The
commission of the crime against humanity and jus
cogens cannot be done in an official capacity of a state.
It can never be official ang torture because it violates jus
cogens norm.

After distinguishing, you also distinguish incumbent from

non-incumbent officials. For head of state(incumbent),
it’s immunity ratione personae. Which means during the
incumbency of the head of state(IL ni), immunity of the
head of state is absolute.

If you’re talking about the immunity of the incumbent

head of state, the principle applicable is immunity
ratione personae. Regardless of the act is related or not
related, even if the president kills or commits the crime
of rape or slander. Apparently the immunity is absolute.

This paramount importance of this immunity is really

because the president is performing the functions to all
his constituents. You obstruct his official functioning, you
prejudice the people. You deprive the people of an
effective representation. The paramount interest of the
state is above the prosecution of the criminal.

But in the case of the former head of state, the

immunity applicable is no longer immunity rationae
personae but not immunity rationae materiae. This is
where we ask the question whether the act was related
to his function. So the immunity now attaches not to the
person but now it attaches to the function. Which means
that for acts of the head of state that are in relation to
his function, that immunity can still be invoked.

But where the act is no longer related to the function,

after incumbency, the head of state no longer enjoys
such immunity. This is still CIL.

Pinochet was a dictator in Chile when he was found in

UK, allegedly for medical reasons. Although the British
agents say that he was negotiating a transaction of arms
in Chile. At that time he was the former head of state(no
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Distinction of immunity ratione personae &
immunity ratione materiae
If incumbent head of state the immunity applicable to it
is immunity ratione personae, so you don’t characterized
the act involved whether it is related to the function of
the incumbent head of state. It does not matter for as
long as he is incumbent, it immediately attaches to the
person. But after incumbency, the immunity applicable
to him would already be immunity ratione materiae. So
this time around, it should distinguish whether the act
subject of the case was done in the official capacity of
the head of state or not. So consequently, for acts that
is not done in the official capacity of the head of state
the immunity ceases.
The immunity of head of State will have to be
contextualized only in a situation where the court
exercising jurisdiction is a court of another state. That
makes sense because the foundation of immunity of
state is the principle of coequality among state. And
therefore subjecting the head of state to the jurisdiction
of another court would indeed be a violation of the
coequality principle.
However, if the court exercising jurisdiction in a criminal
case is an international criminal court, then there’s no
point invoking immunity from suit of head of state
because its not a domestic court so there is no occasion
to say that one state is exercising jurisdiction over the
state.
Although, I understand that especially African states
they questioned the propriety of even the creation of the
international criminal court. And there are several cases
where their own presidents have not been surrendered
by their own people to the international criminal court
(ICC) because they don’t believe in the ICC anyway. But
to say that the former or incumbent head of state is
immune is not relevant in the international criminal
court.
DBL: We’re done with ACT OF STATE DOCTRINE so
please go back to Underhill v. Hernandez, still the same
principle. That’s a byproduct of the sovereign coequality
principle.
The study of the Vienna Convention of Diplomatic
Relations (VCDR) and Vienna Convention of Consular
Relations (VCCR), of the several conventions initiated by
the United Nations and drafted by the International Law
Commissions, the VCDR is probably one of those
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conventions that have more or less stable, legitimate,
acceptable provisions. As analyzed by scholars, this is
brought about by the fact that provisions here rely
heavily on the reciprocal benefits States will derive from
compliance of the provisions in good faith.
INVIOLABILITY OF FOREIGN
DIPLOMATIC MISSION
Article 22
1. The premises of the mission shall be inviolable.
The agents of the receiving State may not enter
them, except with the consent of the head of
the mission.
2. The receiving State is under a special duty to
take all appropriate steps to protect the
premises of the mission against any intrusion or
damage and to prevent any disturbance of the
peace of the mission or impairment of its
dignity.
3. The premises of the mission, their furnishings
and other property thereon and the means of
transport of the mission shall be immune from
search, requisition, attachment or execution.
One of the fundamental provisions in VCDR, all states
have agreed to treat the premises of the diplomatic
mission as inviolable. And that one state is expected to
abide by the principle because of the expectation of
reciprocity by the other states concerned. Because of
that a lot of states do respect inviolability of foreign
diplomatic mission.
So please take note of article 22 this is one of the
foundations of the VCDR. It consists of two parts:
(1) the negative duty to refrain from entering the
premises without the consent of the head of the
nation
(2) the positive duty to protect the premises against
any intrusion, damage, disturbance, etc.
Other related articles:
Article 24
The archives and documents of the mission shall be
inviolable at any time and wherever they may be.
1
Article 30
1. The private residence of a diplomatic agent shall
enjoy the same inviolability and protection as
the premises of the mission.
2. His papers, correspondence and, except as
provided in paragraph 3 of article 31, his
property, shall likewise enjoy inviolability.
Article 45
If diplomatic relations are broken off between two
States, or if a mission is permanently or temporarily
recalled:
(a) The receiving State must, even in case of armed
conflict, respect and protect the premises of the
mission, together with its property and archives;
(b) The sending State may entrust the custody of
the premises of the mission, together with its
property and archives, to a third State
acceptable to the receiving State;
(c) The sending State may entrust the protection of
its interests and those of its nationals to a third
State acceptable to the receiving State
This negative obligation not to enter includes immunity
from processes like search, execution, attachment and
other court processes. The inviolability extends even in
cases of armed conflict, so even if there is an ongoing
war between the parties concerned, the immunity of the
premises continues. This extends also to the archives
and documents to the mission and also even the
ambassador’s residence, papers and correspondence.
Whether or not the inviolability rule permits an
exception? What if in a situation of extreme
urgency like bomb threat, fire or terrorism?
The answer is the inviolability principle is ABSOLUTE.
The International Law commission said, the moment you
put an exception that will open the flood gates of several
possibilities of abuses. Please take note of the point
which is that inviolability simply means that the receiving
state or its authorities cannot enter the premises
WITHOUT THE CONSENT of the head of the mission.
The inviolability rule does not say that there’s no way
the officials of the receiving state cannot enter into the
diplomatic mission premises. Like for example there’s a
fire, normally the head of the mission could ask for help
and so the fire truck can enter the premises. Basically,
this will all therefore boil down to the responsibility of
the head of the mission.
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NON-INTERFERENCE WITH MISSION’S
OFFICIAL COMMUNICATION
Article 27
1. The receiving State shall permit and protect free
communication on the part of the mission for all
official purposes. In communicating with the
Government and the other missions and
consulates of the sending State, wherever
situated, the mission may employ all appropriate
means, including diplomatic couriers and
messages in code or cipher. However, the
mission may install and use a wireless
transmitter only with the consent of the
receiving State.
2. The official correspondence of the mission shall
be inviolable. Official correspondence means all
correspondence relating to the mission and its
functions.
3. The diplomatic bag shall not be opened or
detained.
4. The packages constituting the diplomatic bag
must bear visible external marks of their
character and may contain only diplomatic
documents or articles intended for official use.
5. The diplomatic courier, who shall be provided
with an official document indicating his status
and the number of packages constituting the
diplomatic bag, shall be protected by the
receiving State in the performance of his
functions. He shall enjoy person inviolability and
shall not be liable to any form of arrest or
detention.
6. The sending State or the mission may designate
diplomatic couriers ad hoc. In such cases the
provisions of paragraph 5 of this article shall
also apply, except that the immunities therein
mentioned shall cease to apply when such a
courier has delivered to the consignee the
diplomatic bag in his charge.
7. A diplomatic bag may be entrusted to the
captain of a commercial aircraft scheduled to
land at an authorized port of entry. He shall be
provided with an official document indicating the
number of packages constituting the bag but he
shall not be considered to be a diplomatic
courier. The mission may send one of its
members to take possession of the diplomatic
2
 bag directly and freely from the captain of the
aircraft.
Art. 27 is about the prohibition of the interference to the
mission’s official communication. There’s a high
possibility that official communication by an ambassador
to his president could be intercepted. And because of
reciprocity, all states will never permit also other states
to intercept their own communication. If you have to
understand, embassies also serve as spies in the
territory of other states. That’s why embassies in other
states which are also doing intelligence gathering, would
deem it would be to the best interest of all the states
involved to really comply with the prohibition on
interference with the mission’s official communication.
And this brings us to the bar question about diplomatic
bag…
What is a DIPLOMATIC BAG?
The rule is found in the 1989 ILC Draft articles on
Diplomatic Courier. The prohibition of its interference or
violation of the inviolability of the bag covers DIRECT
and INDIRECT interference with the electronic
examinations. But of course, what’s practiced now is
that they are still subject to electronic examination
provided that only the state knows this and it cannot
intercept the communication. There’s no x-ray machine
yet that could read the contents of the papers right? So
far there is none. But suspicion on the illegality of the
contents of the bag will permit the authorities to have
the diplomatic bag opened but in the presence of the
representative of the sending state, remember
reasonable suspicion. But for it to qualify as a diplomatic
bag, it must have visible external marks of its character
and must only contain diplomatic documents or official
articles.
DIPLOMATIC IMMUNITY
Article 29
The person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. The
receiving State shall treat him with due respect and shall
take all appropriate steps to prevent any attack on his
person, freedom or dignity.
The diplomatic immunity, referring to the immunity of
the members of the diplomatic mission (diplomats) also
have personal inviolability meaning they cannot be
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subjected to jurisdiction, criminal, civil, detention,
subpoena either as party to the case or as witness. But
please take note of what has been observed as a change
in the rationale for the grant of diplomatic immunity.
Traditional justification- refers to extra territoriality
theory as justification for diplomatic immunity pursuant
to co-equality of states.
Modern justification- refers to functional necessity
which means diplomats must enjoy protection in order
for them to discharge their duties more effectively and
efficiently.
International law has developed in that regard, the
primary justification now for the diplomatic immunity is
what we call “Functional Necessity”. That is a very
crucial development in international law which illustrated
in this bar question below
Bar Question: State A(sending state) sent Ambassador
X at their embassy in the territory of State B(receiving
state). Ambassador X at one time took a vacation in
State C, another state. This is where he was found
having been in company of a minor which is illegal and
therefore Ambassador X was arrested and detained in
State C. Can Ambassador X invoke his diplomatic
immunity?
DBL Answer: So if your initial idea is “Representative
character theory”, it cannot be justified because when
he was in state C for vacation and not representing
State A. “Extraterritoriality principle” cannot apply also
because its clearly outside the embassy. But if you apply
“Functional Necessity” then the only thing that matters is
whether the process, which was the arrest and the
prosecution, would hamper the functioning of the
ambassador. Definitely yes, he can’t go home anymore
and he can’t represent State A anymore and cannot
discharge the function there in State B. So to sum it up,
Ambassador X can still invoke diplomatic immunity under
the “Functional necessity” theory, provided he is the
incumbent Ambassador.
Article 31
1. A diplomatic agent shall enjoy immunity from
the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable
property situated in the territory of the receiving
3
 State, unless he holds it on behalf of the
sending State for the purposes of the mission;
(b) An action relating to succession in which the
diplomatic agent is involved as executor,
administrator, heir or legatee as a private
person and not on behalf of the sending State;
(c) An action relating to any professional or
commercial activity exercised by the diplomatic
agent in the receiving State outside his official
functions.
2. A diplomatic agent is not obliged to give
evidence as a witness.
3. No measures of execution may be taken in
respect of a diplomatic agent except in the cases
coming under subparagraphs (a), (b) and (c) of
paragraph 1 of this article, and provided that the
measures concerned can be taken without
infringing the inviolability of his person or of his
residence.
4. The immunity of a diplomatic agent from the
jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending
State.
Article 37
1. The members of the family of a diplomatic agent
forming part of his household shall, if they are
not nationals of the receiving State, enjoy the
privileges and immunities specified in articles 29
to 36.
2. Members of the administrative and technical
staff of the mission, together with members of
their families forming part of their respective
households, shall, if they are not nationals of or
permanently resident in the receiving State,
enjoy the privileges and immunities specified in
articles 29 to 35, except that the immunity from
civil and administrative jurisdiction of the
receiving State specified in paragraph 1 of
article 31 shall not extend to acts performed
outside the course of their duties. They shall
also enjoy the privileges specified in article 36,
paragraph 1, in respect of articles imported at
the time of first installation.
3. Members of the service staff of the mission who
are not nationals of or permanently resident in
the receiving State shall enjoy immunity in
respect of acts performed in the course of their
duties, exemption from dues and taxes on the
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emoluments they receive by reason of their
employment and the exemption contained in
article 33.
4. Private servants of members of the mission
shall, if they are not nationals of or permanently
resident in the receiving State, be exempt from
dues and taxes on the emoluments they receive
by reason of their employment. In other
respects, they may enjoy privileges and
immunities only to the extent admitted by the
receiving State. However, the receiving State
must exercise its jurisdiction over those persons
in such a manner as not to interfere unduly with
the performance of the functions of the mission.
Private residence of the diplomat need not necessarily
that he owns the residence. Even if it is just rented or
even just a hotel room, it will still enjoy the same
inviolability.
Immunity of the ambassador in criminal cases is
absolute. But in civil cases, there are 3 exceptions:
(1) Where the ambassador is sued as executor or
administrator of the property
(2) Where the transaction is commercial
(3) Where the property is held not for and in behalf of
the mission but in his private capacity.
Immunity extends to diplomats’ members of the family,
administrative & technical staff including the members of
their own families in criminal jurisdiction only.
So if its civil and administrative jurisdiction, this
inviolability would only apply is the acts subject of the
case is INTRAVIRES (within the powers).
Its similar to the immunity of the consul because its
immunity is only when the function involved is official,
so if nagpabribe sya in the issuance of certain travel
papers its part of his official function. But if he commits
rape in the receiving state then it has nothing to do with
his function as administrative staff of the ambassador.
The act then becomes ULTRA VIRES (beyond the
powers) and therefore even in criminal jurisdiction,
inviolability will still not apply.
Obviously, under Art. 31 this does not preclude the
sending state to exercise criminal jurisdiction over the
offense. But the remedy of the receiving state is to
declare the diplomat persona nongrata or severe the
4
diplomatic relations. So as I mentioned earlier, immunity
ratione personae attaches to the person. Immunity
ratione materiae attaches to the act. The same principle
applies to the diplomats.
Again in criminal jurisdiction, inviolability is absolute.
However it’s not absolute in regard to administrative and
technical staff including their family members because
the immunity extends only to acts INTRA VIRES but for
acts ULTRA VIRES immunity in criminal jurisdiction will
no longer apply with respect to administrative &
technical staff and family members. But for members of
the missions, like the diplomat themselves, immunity in
criminal jurisdiction is absolute. But after their
incumbency, it becomes immunity ratione materiae. So
the immunity of diplomats extends to arrests and
detention as confirmed in the Democratic Republic of
Congo v. Belgium case.
Distinction between diplomatic office and
consular office as to function?
The embassy/ diplomatic office exists to foster political,
governmental relationship between the sending and
receiving state, Whereas consular office is for the
private, commercial functions of the sending state.
Example of that would be authentication of foreign
documents, like lets say Special power of attorney, our
clients in the US would not have to come here to
execute the SPA because it allowed that they execute
the document there in the US authorizing someone here
in the Philippines to represent them. But before a
foreign government would be admitted and recognize by
the court, it must be authenticated in the consular
office. That’s what they call red ribbon.
Democratic Republic Congo v. Belgium
PRINCIPLE: Under international law, a State’s minister
of foreign affairs enjoys immunity from criminal
prosecution and inviolability when abroad for the
duration of his or her office, subject to four exceptions.
FACTS:
On April 11, 2000, Belgium issued an international arrest
warrant against AbdoulayeYerodiaNdombasi, the acting
minister for foreign affairs of the Democratic Republic of
the Congo (DRC).He was charged with inciting genocide
for publicly encouraging the Congolese population to kill
members of a rebellion against the government,
primarily ethnic Tutsis.
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Belgium sought the minister’s extradition on allegations
of grave violations of international humanitarian law.
The warrant was transmitted to the International
Criminal Police Organization (Interpol) and was
circulated internationally.
DRC filed suit against Belgium in the International Court
of Justice (ICJ) on the ground that Belgium violated
international law by issuing the arrest warrant.DRC
argued that the minister should enjoy official immunity
from suit. Additionally, DRC argued the arrest warrant
prevented its minister from leaving the State and thus
prevented him from exercising his official duties.
Issue: Whether, under international law, a State’s
minister of foreign affairs enjoys immunity from criminal
prosecution and inviolability when abroad for the
duration of his or her office.
HELD:
a) Yes. Under international law, a State’s minister of
foreign affairs enjoys immunity from criminal
prosecution and inviolability when abroad for the
duration of his or her office. This is a protection
available to ministers of foreign affairs under customary
international law. Ministers need such a protection not
for their own benefit, but so they are able to perform
the functions of their jobs (including significant
international travel) unencumbered. This immunity from
criminal suit extends to acts committed by the minister
in either his official or personal capacity, either before or
during his tenure in office. This broad immunity is
necessary because any criminal prosecution, regardless
of its nature, would have the effect of prohibiting the
minister from adequately performing his job; a matter
which could negatively impact the diplomatic relations of
his State.
b) This rule of absolute immunity for ministers of foreign
affairs has no exceptions based on either international
practice or the laws governing international tribunals.
There is no recognized exception to immunity even if the
minister is accused of committing war crimes or crimes
against humanity. However, there is an important
distinction between immunity from criminal prosecution
for ministers while in office, versus a complete absence
of criminal liability.
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c) The immunities enjoyed under international law by a
current or former minister of foreign affairs do not
represent a bar to criminal prosecution in four specific
circumstances.
(1) Ministers enjoy no criminal immunity under
international law in their own countries, and
may thus be tried by those countries’ courts in
accordance with the relevant rules of domestic
law.
(2) Ministers will cease to enjoy immunity from
foreign jurisdiction if the State which they
represent or have represented decides to waive
that immunity.
(3) After a person ceases to hold the office of
minister of foreign affairs, he or she will no
longer enjoy all of the immunities accorded by
international law in other States.
Indonesia v. Vinzon
Republic of Indonesia entered into a contract with a
contractor for the repair of cooling equipments. The
Embassy of Indonesia contracted it, but they pre-
terminated the contract. So the contractor sued for
breach of contract where there was an argument by the
Republic of Indonesia of state immunity, the counter
argument was “it is found in the contract that any and
all suits arising from this contract can only be filed in the
courts of Makati”. Accordingly daw that provision
signifies the consent of the Republic of Indonesia to be
sued. But the court said that is not a sufficient evidence
of the waiver of Indonesia of its consent to be sued,
because for all you know that provision can be exercised
by the Indonesia if it’s the one initiating the case. So this
cannot be interpreted as consent to be sued.

(4) A current or former minister of foreign

affairs may be subject to criminal proceedings
before certain international criminal courts (such
as the United Nations criminal tribunals for the
former Yugoslavia and Rwanda), where those
courts have jurisdiction.

DBL: affirms that even ministers of foreign affairs enjoy

the same immunity as such of the head of state and the
diplomats, the justification is that although he is not a
diplomat but since the minister of foreign affairs
exercises diplomatic functions nonetheless he still enjoys
immunity. Even for international crimes. For as long as
the court is a domestic court, even if in one state the
offense is an international crime like a crime against
humanity but he will be prosecuted in a domestic court,
immunity can still be invoked.
There’s no prohibition that a state would punish
international crimes in fact they are required to have
statutes penalizing international crimes pursuant to the
complementarity principle in IL

Do you get the difference? Don’t confuse this with the

Pinochet case discussion. Pinochet was different because
immunity cannot be invoked anymore since crime
involved is torture and it not part of his official act and
was violation of a jus cogens norm thus it is paramount
to the principle of state immunity and lastly, Pinochet
also at that time was no longer an incumbent head of
state.

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