PUBLIC INTERNATIONAL LAW [Nov. 9, 2019]
Because the immunity is granted by
Question therefore, “If a state refuses to obtain
jurisdiction over acts that are violation of jus cogens
norms, does the State in itself violate the same jus
cogens norm?” No, because the obligation to prosecute
is not jus cogens.
Also, if State Immunity depends on the gravity of the
offense, then what is stopping a very skilled lawyer to
override State Immunity.
To illustrate:
The violation is torture, a violation of jus cogens norm.
Committed allegedly by XYZ, and the case was filed in State
ABC. Because State Immunity is procedural, even before
maka-sulod ang case, diri pa lang naa na gate asking whether
or not I should obtain jurisdiction. Correct?
Mo ingon mo, “Dili man gud, kay acts of torture man gud
siya.” Then State ABC would say, “Let’s see kuno if torture ba
jud siya or dili”—so diha na therefore e-examine ang
evidence, nakasulod na siya sa merits of the case. Gi-skip na
ni niya na part di ba? Nistraight na siya sa Point B. Pag
analysis na niya wala man diay nakacommit og torture si XYZ
so ara na niya i-dismiss ang case. But the damage has already
been done because you have already exercised jurisdiction
over XYZ, even if subsequently na prove nimo na wala diay
siya sala.
So, State Immunity must not breach this point. Dili jud
ka dapat mo proceed sa merits, regardless of the
nature of the allegation. If the State is responsible—
because both States are sovereign—dapat walay mo-
exercise og jurisdiction over the other.
So, ang question is, pasagdan lang nato na
mangamatay silang tanan? Dili sad because you can file
a case before the ICJ. Because sa ICJ dili naman State
imong ka-level; it’s the State against an International
tribunal. So, there is no sovereign equality to speak of.
Arrest Warrant Case
An arrest warrant was issued against the minister of
foreign affairs. What did he do? He uttered racial slurs,
hate speeches which led to the termination of the
Tutsis. Being the Belgium that it is, it filed an arrest
warrant against the person.
Was the arrest warrant valid? No. Because the minister
of foreign affairs enjoys immunity rationae personae.
Meaning the immunity attaches to the position. If it
attaches to the position, we don’t even dwell into the
violation of the act.
the very position of the foreign minister.
So, again, question: Wala na jud diay ta mabuhat ani?
Dili man di ba, because:
[1] he can be prosecuted if the home state waives
immunity;
[2] he can be prosecuted in his own State—kay ang
proscription ra man is dili sa makiha in another’s
jurisdiction;
[3] he can be prosecuted before international criminal
tribunals;
[4] the moment he steps down in office, you can always
examine the validity of his acts—meaning the immunity
if personae during incumbency will be demoted to
immunity rationae materiae, meaning now is the time
for you to examine the subject matter of the acts—
whether the acts were committed in the private or
official capacity?
NOTE:
What do you need to remember in the Arrest Warrant
case: the 4 instances na pwede nimo ma -prosecute ang
foreign minister.
Obligations of Mutual Assistance Case
This is between Djibouti and France. Who are the
parties involved? The Head of Government, the
prosecutor of the Republique, and the Head of the
National Security Nag-issue of summonses si French
judge sila President and kato 2.
Was the issuance of the summons against the President
a violation of the immunity that he enjoys? No. Because
while the summons asks the President to appear before
the Court, he can refuse it altogether. Because the
summons did not provide that should he fail to appear,
he will be subjected to contempt of court. It was a mere
invitation. You did not subject the President to a
constraining act of authority.
On summonses issued to the Prosecutor and Security.
Are they entitled to rationae personae? No, because
immunity rationae personae is granted only to Heads of
State, foreign minister periodt. All the others are
entitled to rationae materiae. The problem here
however was that they were invited as accomplices to
the crime. Di man sila pwede mo-refuse. Obviously they
were being subjected to a constraining act of authority.
But was there a violation of the immunity of these
officials? No, because it was not proven that these
officials enjoy the privileged status—that they enjoy
rationae materiae. Unsa man proof nimo ana? Djibouti
in the oral proceedings could not even make up its
mind.
Tehran Hostages Case
Tehran violated its obligations under the VCDR. Why?
Because it failed to protect the premises of the mission,
and it failed to protect the inviolability of the diplomats
etc.
What made us say it failed to protect? In International
Law, there are two types of obligation: [1] conduct; and
[2] results.
An obligation of conduct simply requires the State to
perform certain conducts—meaning Art. 22 says that
the “State shall take special measures to protect the
mission.” It requires the State to do something.
While obligation to result, you must be able to produce
the desired result. Doing something is not enough in
obligations to result. Asa man ta makakita usually aning
obligations to result? In International Environmental
Law.
Art. 22 is an obligation of conduct therefore a possible
defense is: “I did everything I can.” Meaning, under the
circumstances what I did was reasonable. The question
therefore, is whether Iran did something reasonable?
No. There were 2 prior attacks in the UK and Iraqi
embassy, but they were able to deputized its military to
stop the attacks. The question is ngano wala ni nila
nabuhat sa embassy sa US? Kay wala man silay gibuhat.
Nagkasinabot ta? Oki~~ We’re done
[TN: KA CUTE AMPOTAH
☹]
*panic sila lmao*
Albashir Case
Can State A issue a warrant of arrest against an official
of State B? No. However, if ang nag-issue og warrant of
arrest is ang international tribunal, can it do that? Yes,
because there is no longer a horizontal relationship, it is
vertical now. They are not equals.
So, naa diri ang person, what if siya ni travel sa State A.
So, ang ICC nag issue og warrant ari [State A] gisundan
jud asa siya nilakaw. Iya gisugo si State A M ai-arrest [si
person] Di ba dili na klaro ang rules? Kay if i-arrest ni
State A kaning tawhana, di ba violation na sa original
rule? Pero dili man siya nag-issue sa warrant?
Ni travel si Albashir sa Jordan, pero wala siya gi-arrest sa
Jordan. Ni-ingon si Jordan: I cannot arrest him. I cannot
exercise jurisdiction over an official of another State.
Sakto baya ang argument.
Pero ni ingon man si ICC: Dili man kay gisugo ra man
tika. It is as if I am arresting the person. Sakto sad si ICC.
So, ang question is ni violate [Jordan] sa horizontal
immunity? We don’t know because pending pa man ni
siya.
Ang problema ani guys is: if tanan states mo refuse og
arrest sa criminal because they will argue that they
enjoy state immunity, kinsa naman lang ang mo arrest
nila? Might as well abolish this Court [ICC]—meaning
the effectivity of the tribunal rests on the cooperation
of these states.
The only instance na madakpan ni siya kay if i-surrender
siya sa iyang own State. Which rarely happens.
President nimo tapos ipa-prosecute sa ICC, boang ka?
(lol)
We well just wait for the ultimate decision of the Court.
STATE RESPONSIBILITY
What is the difference between primary and secondary
rules? What does Article 1 of the ARSIWA provide?
Article 1
Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international
responsibility of that State.
Simple, you committed an act. You pay for it. ARSIWA
are secondary rules. In international law, there is the
primary rule book and the secondary rule book.
What is the content, extent, substance of the primary
rule book? Mao ni una nimo tan-awn. These are the
obligations that you look for.
What do we find in the secondary rule book such as
your ARSIWA?
[1] Whether there was a violation
[2] Whether the violation is attributable to the State
[3] Assuming there is a violation, ARSIWA will tell you
whether the violation is justified.
[4] Consequences
Do we always have to consult the secondary rule
book?
In international law, we have what we call self-
contained regime. These are primary rules that can
stand on their own. They do not depend on the
secondary rules.
An example is the VCDR.
What are the attributes of a self-contained regime:
[1] they provide the obligation
[2] foresees violation of the obligation
[3] provides for ways which the injured State can
counter the violation
State A and B enter into a treaty which enumerates the
obligations, rules on attribution, justifying
circumstances, and legal consequences. It is complete in
itself.
So, Sir, if self-contained ang VCDR, ngano nikiha man si
US in the ICJ? Sometimes even self-contained regimes
cannot provide for all the eventualities.
What makes the VCDR a self-contained regime. If a
diplomat commits violation, you have a remedy, you
can declare him as persona non grata. But is that
enough? There are certain remedies in VCDR which are
not effective to the violation committed, so we consult
the ARSIWA. Therefore, the ARSIWA is for residual
application.
You don’t have to consult the secondary rule book if the
primary rule is a self-contained regime. Also, you don’t
consult in lex specialis cases. under Art. 55 of ARSIWA.
Article 55
Lex specialis
These articles do not apply where and to the extent that the
conditions for the existence of an internationally wrongful act or the
content or implementation of the international responsibility of a
State are governed by special rules of international law.
If two states have agreed on a special rule, they enter
into a treaty, a special rule between them.
What does Article 2 provide?
Article 2
Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State.
What are the 2 elements: breach and attributable to the
State. They must concur.
If the violation is a violation of international law but the
one who committed it is a private entity you do not
consider it as an internationally wrongful act (IWA).
Article 3
Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful
is
governed by international law. Such characterization is not affected
by the characterization of the same act as lawful by internal law.
Why should the characterization not be affected by
internal law?
The characterization must be given by international law.
Otherwise, it would be an “internally” wrongful act.
Because what is stopping them to characterize it not as
illegal.
What do you understand by attribution?
It is a process. If private entities commit illegal acts
would it be considered as acts of the State? Attribution
is a process creating a link between the private
intermediary and the State.
Attribution is normative, what does it mean?
Meaning they are based on certain standards. You do
not allow your eyes emotions to get the better of you. It
is not purely factual but also legal.
Bosnian Genocide Case
The FRY supported mercenaries and paramilitaries.
They committed ethnic cleansing of the Bosnian Serbs.
Klaro na kaayo di ban a naay involvement si FRY? But
just because that is our layman’s assessment, it doesn’t
mean it complied with the rules of attribution under
international law. Just because it looks factually
connected to State doesn’t mean it is because you have
to abide with the rules. Unsa ang wala na comply?
Effective control test.

Rules of Attribution
Article 4
Conduct of organs of a State
1. The conduct of any State organ shall be considered an act of that
State under international law, whether the organ exercises
legislative, executive, judicial or any other functions, whatever
position it holds in the organization of the State, and whatever its
character as an organ of the central government or of a territorial
unit of the State.
2. An organ includes any person or entity which has that status in
accordance with the internal law of the State.
What do you mean the structural test of attribution?
What is the primary consideration?
Focus analysis on the organizational structure of the
State. Under this test, you only need to look at the
internal law. If that entity is mentioned in the internal
law as an organ of the State, it is an organ of the State,
regardless of what it performs. You look at the
institutional relationship.
Article 5
Conduct of persons or entities exercising elements of
governmental authority
The conduct of a person or entity which is not an organ of the State
under article 4 but which is empowered by the law of that State to
exercise elements of the governmental authority shall be considered
an act of the State under international law, provided the person or
entity is acting in that capacity in the particular instance.
Article 5 is the functional test, why?
The organ is not defined in the internal law but it
performs elements of governmental authority pursuant
to a law, so it will be considered as an organ of the State
under Article 5. This pertains to act jure imperii.
Article 6
Conduct of organs placed at the disposal of a State by another
State
The conduct of an organ placed at the disposal of a State by another
State shall be considered an act of the former State under
international law if the organ is acting in the exercise of elements of
the governmental authority of the State at whose disposal it is
placed.
It is about loan or borrowed state organs so that they
can perform elements of governmental authorities.
Who are these organs? Those organs only under the
structural test.
[1] must perform governmental elements of …
[2] under exclusive control of the borrowing state
[3] performs act in conjunction with the organs
Jaloud Case
Jaloud died during the Iraq war. The father sued. UK
said it was not responsible but Netherlands. The latter
said that those state organs were placed under UK’s
disposal, it is the leader of the encampment. Sakto unta
si N if ma prove niya na UK has the exclusive control.
Article 7
Excess of authority or contravention of instructions
The conduct of an organ of a State or of a person or entity
empowered to exercise elements of the governmental authority
shall be considered an act of the State under international law if the
organ, person or entity acts in that capacity, even if it exceeds its
authority or contravenes instructions.
Article 7 pertains to the question of whether ultra vires
acts of the State organs will be attributable to the State.
If they exceed their authority would the State be bound?
Yes.
Velasquez Rodriguez
The argument of Honduras, when he was abducted the
police were acting in their private capacity, they were
not even wearing uniforms. The acts were allegedly not
sanctioned by the Government. But ofc it is not true
because even ultra vires acts of state organs are
covered by the rules on attribution.
Article 8
Conduct directed or controlled by a State
The conduct of a person or group of persons shall be considered an
act of a State under international law if the person or group of
persons is in fact acting on the instructions of, or under the direction
or control of, that State in carrying out the conduct.
It is based on control. What must be its extent? Tadic:
overall; Bosnian: effective. Which is the correct one?
Depends on the application.
What must be the level of instruction? Nicaragua:
specific acts. ILC: general instructions will suffice so long
as it is germane
When is there effective control? When the relationship
is characterized by complete control and dependence.
There is no real autonomy on the part of the private
entities.
Nicaragua Case
Who are the private entities? Contras. They launched an
attack. There is no US participation because there is no
evidence to show that the Contras would not be able to
do the same acts without the US participation.
Was the US completely absolved? No. While the acts of
the Contras were not attributable to US. There were
separate acts of bombing the ports and funding the
Contras which is illegal for interfering with the domestic
affairs of Nicaragua.
Tadic Case
Tadic is controversial because it laid down the test of
overall control test. Nicaragua is the effective control
test.
is an allegation of a special remedy. One does not
simply say that a State has breached international law.
xxx
Bosnia now filed a case against FRY in the ICJ, because it
previously said FRY was involved in the Tadic case.
Therefore, now it is a question of State Responsibility.
Since imo gikiha kay ang state, imoha gamiton is ang
effective control test.
Did the ICJ rejected the effective control test? Yes, in the
realm of State responsibility but it did not reject overall
control test in its entirety.

Comparison between Tadic and Bosnian Genocides
They are based on the same set of facts, but lahi ang
gikiha. In Tadic, you sued an individual. In BG, a case is
filed against the State.
But ngano kailangan magdiscuss og overall control test
ang Tadic, na individual raman kaha ang gikiha? A case
was filed against the individual for violation of IHL.
When does IHL apply? In armed conflict. But what kind
of armed conflict? International Armed Conflict.
But Bosnia still lost because of jurisdictional blunder.
(To sum it up)
The overall control test may be applied in all cases
except for State Responsibility where you apply the
effective control test.
--nothing follows--

Therefore, in Tadic napugos ta og prove na 2 states are

involved in a war under which Tadic committed the
violation.

Tadic used to be a prison guard who rose to the ranks of

captain of the Scorpions and VRS. Kinsa man diay ni si
Republika?

Ang nahitabo sa Bosnian case, the Bosnians had

enough, they wanted to be independent because they
suffered from ethnic cleansing. Republika is a nationalist
group that opposed the independence of the Bosnian
Serbs. FRY would oppose their independence
movements. They attacked the Bosnian Serbs. So FRY
supported them.

So, in Tadic, napugos to involve 2 States, naa naman si

Bosnia, so napugos to add Yugoslavia to make it
international armed conflict.

Ang acts kuno ni Tadic kay related sa Yugoslavia under

the overall control test. Tadic was not about State
responsibility, it was about individual criminal
responsibility. So you do not have to apply a strict test.
Ngano mo apply ka og strict test—effective control test
—because an allegation of violation of international law