PONTIFICAL AND ROYAL

UNIVERSITY OF SANTO TOMAS

THE CATHOLIC UNIVERSITY OF THE PHILIPPINES

Public International Law

JUDGE CHARITO M. MACALINTAL-SAWALI

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PUBLIC INTERNATIONAL LAW

TABLE OF CONTENTS

I. General Principles of International Law…………………………………………………...……3

II. Sources of International Law………………………………………………………………….10

III. International Law and Municipal Law..……………………………………………………... 21

IV. Treaties……………………………………………………………………………………….27
V. States as Subjects of International Law..……………………………………………………...46
VI. Other Subjects of International Law..………………………………………………………...60

VII. Recognition..………………………………………………………………………………...73

VIII. Treatment of Aliens………………………………………………………………………...80

IX. Territory………...…………………………………………………………………………….93

X. Jurisdiction f States….……………………………………………………………………….111

XI. Immunity from Jurisdiction…………………………………………………………………125

XII. International Human Rights Law…………………………………………………………..148

XIII. Peaceful Settlement of International Disputes…………………………………………….164

XIV. Use of Force Short of War……….………………………………………………………..180

XV. The Law of War (International Humanitarian Law)……………………………………….196

XVI. International Environmental Law…………………………………………………………217

XVII. International Economic Law……………………………………………………………..225

SUPPLEMENTAL NOTES

i. International Courts of Justice………………………………………………………..230

ii. Rights of Refugees…………………………………………………………….……..248

CHAPTER I:
GENERAL PRINCIPLES OF
INTERNATIONAL LAW

Public International Law, Defined

Traditional - A body of rules and principles of action which are

binding upon civilized states in their relation with one another

Schwarzenberger’s - The body of legal rules which apply between

sovereign states and such other entities as have been granted
international personality

Restatement (3rd) of Foreign Relations Law of the US - The law

which deals with the conduct of states and of international
organizations and with their relations inter se, as well as with some of
their relations with persons, whether natural or juridical
The term “international law” was first used in 1870 by Jeremy
Bentham in his Introduction to the Principles of Morals and
Legislation.

Considered broadly, international law may include “public” and

“private” international law although the term is generally understood
to cover only public international law.

Scope of International Law

§ expansion of scope of international law is revolutionary

§ the expansion is affected by many factors

Is International Law a Law?

Challenges to international law as law

§ Basic challenge
§ Absence of international legislative , executive and judicial
body

In the final analysis, there is a general respect for law because of

the possible consequences of defiance either to oneself or to the
larger society.
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Theoretical Basis of International Law

What is it that gives binding force to international law has been

explained by different schools of thought
§ Naturalist
§ Positivist
§ Eclectic or Grotian

Sanctions of international law

§ The belief shared by many states in the inherent

reasonableness of international law and in their common
conviction that its observance will redound to the welfare of the
whole society of nations

§ The normal habits of obedience ingrained in the nature of man

as a social being

§ Respect for world opinion held by most states or their desire to

project an agreeable public image

§ The constant and reasonable fear that violations of international

law might visit upon the culprit the retaliation of other states

§ The machinery of UN

Functions of International Law

§ To establish peace and order in the community of nations and

to prevent the use of force in all international relations

§ To promote world friendship by levelling the barriers

§ To encourage and ensure international cooperation in the

solution of certain common problems of a political, economic,
cultural or humanitarian character
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§ To provide for the orderly management of the relations of states

on the basis of the substantive rules they have agreed to
observe as members of the international community

Distinctions with Municipal Law

§ ML is issued by a political superior for observance by those

under its authority whereas IL is not imposed upon but simply
adopted by states as a common rule of action among
themselves

§ ML consists mainly of enactments from the lawmaking authority

of each state whereas IL is derived not from any particular
legislation but from such sources as international customs,
international conventions and the general principles of law

§ ML regulates the relations of individuals among themselves or

with their own states whereas IL applies to the relations inter se
of states and other international persons

§ Violations of ML are redressed through local administrative and

judicial processes whereas questions of IL are resolved
through state-to-state transactions ranging from peaceful
methods like negotiations and arbitration to the hostile
arbitrament of force of reprisals and even war

§ Breaches of ML entail only individual responsibility whereas

responsibility for infractions of IL is usually collective.

Distinction between Public and Private International Law

Public international law governs the relationships between and

among states and also their relations with international organizations
and individual persons. On the other hand, private international law
is really domestic law which deals with cases where foreign law
intrudes in the domestic sphere where there are questions of the
applicability of foreign law or the role of foreign courts.
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Brief historical Development of International law

From ancient law to League of Nations

§ Ancient international law was characterized by exchange of

diplomatic emissaries, peace treaties, in the world of ancient
Romans and even earlier.

§ Evidence established that treaties of peace and alliances were

concluded between Jews and Romans, Syrians and Spartans.

§ The progressive rule of jus gentium, seen as a law “common to

all men”, became the law of the vast Roman Empire

§ Modern international law started with the emergence of nation-

states in the Medieval Age when the governing principles were
derived from Roman Law or Canon Law which originated from
Natural Law.

— Hugo Grotius (Dutch) became known as the Father of

Modern International Law

• Authored De Jure Belli ac Pacis

• What he called then as “law of nations” was later
renamed “international law” by British philosopher
Jeremy Bentham.
• Prior to Grotius were the following Naturalists:
- Alberico Gentili, Oxford Professor of Roman Law
(De Jure Belli)
- Francisco de Vitoria, Spanish theologian
- Francisco Suarez, Jesuit theologian
- Samuel Pufendorf, German (DE Jure Naturae
Gentium)
- Emmerich de Vattel, Swiss (The Law of Nations)
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§ The positivist approach made a new interpretation of

international not on the basis of concepts derived from reason
but rather on the basis of what actually happened in the conflict
between states.

§ The birth of the notion of sovereignty of states ushered the view

that law are commands originating from a sovereign and
backed up by threats of sanction if disobeyed.

— Under this view, IL is not a law.

Significant Milestones in the Development of IL:

§ The Peace of Westphalia that ended the Thirty Years War

(1618-1648) and established a treaty based framework for
peace cooperation. It was at this time that pacta sunt servanda
arose.

§ Congress of Vienna (1815) that ended the Napoleonic Wars

and created a sophisticated system of multilateral political and
economic cooperation.

§ Covenant of the League of Nations (1920) which included the

Treaty of Versailles that ended WWI

After the first world war, the winning countries established an

institution designed to prevent the happening of another world
war, and that is the League of Nations.

§ Consisted of 43 states including the five British dominions of

India, Canada, South Africa, Australia and New Zealand.

§ Us was not a member

§ The League created the PCIJ

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From the end of WWII to the end of Cold War

§ Since the LON failed to prevent the recurrence of a world

conflagration, the winning countries in the second world war
created UN in 1945

§ This marked the shifting of power away from Europe and the
start of a truly universal institution

§ The universalization was advanced by decolonization which

resulted in the expansion of membership of the UN

§ This period witnessed the rise of three major groupings:

— Western states
— Socialist states
— Developing countries

§ This period was the Cold War period when peace was
maintained through the balancing of the two super powers, US
and its allies on the one hand and the Soviet Union

The End of the Cold War

§ Resulted from the dissolution of the Soviet Union with the re-
emergence of international relations based on a multiple
sources of power and not mainly on ideology

§ At present, there is only one super power, the US, which acts
both as world policeman and as a global mediator

§ Socialist countries are no longer united with some of them

depending on the support of Western states

§ Developing countries seem to veered away from ideological

orientation and towards market orientation instead and towards
fighting poverty and backwardness. UN seems to have declined
as an international agency for the maintenance of peace
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CHAPTER II:
THE SOURCES OF
INTERNATIONAL LAW

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Classification of the Sources of International Law

A. Formal and Material Sources

i. Formal sources can refer to the various processes by which

rules come into existence. (treaty making, legislation, etc)

ii. Material sources are concerned with the substance and content
of the obligation. (treaty, state practice, etc)

B. Primary and Secondary Sources

i. Primary or direct sources are treaties or conventions, customs,

and the general principles of law.

ii. Secondary or indirect sources are the decisions of courts and

the writings of publicists.

C. Treaties

§ Determine the rights and duties of states just as individual

rights are determined by contracts

§ Their binding force comes from the voluntary decision of

sovereign states to obligate themselves to a mode of behaviour

§ While treaties are generally binding only on the parties, the

number of the contracting parties and the generality of the
acceptance of the rules created by the treaty can have the
effect of creating a universal law in much the same way that
general practice suffices to create customary law

§ All treaties must be observed by the parties under the principle

of pacta sunt servanda
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§ The general rule is that the treaty, to be considered a direct

source of international law, must be concluded by a sizeable
number of states and thus reflect the will or at least the
consensus of the family of nations
— The treaty need not be entered into at the outset by a
majority of states forming the international community.

— Even if originally agreed upon only by a few states, the

treaty may become binding upon the whole world if it is
intended to lay down rules for observance by all an it is
subsequently signed or acceded to by other states which
thereby submit to its provisions.

§ Examples of “law-making treaties”

• Peace of Westphalia of 1648
• The Congress of Vienna of 1815
• The Declaration of Paris of 1856
• The Geneva Red Cross Convention of 1864
• The United Nations Charter of 1945

D.Custom or Customary law

A general and consistent practice of states followed by them from a

sense of legal obligation

Two Basic elements

I. Material actor - how states behave

II. Psychological or subjective factor – why they behave the way
they do

v The Material Factor: practice of states or usus has three

elements: duration, consistency, and generality of
practice of states
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A. Duration
• The required duration can either be short or long
- The Paquete Havana Case
- North Sea Continental Shelf Cases

B. Consistency
• Continuity and repetition of practice
• The rule laid down in the Asylum case

C. Uniformity and generality

• Need not be complete but must be substantial
• In Nicaragua v US (ICJ Reports 1986), the Court
said that the practice need not be “in absolute
conformity” with the purported customary rule
and held that:
- In order to deduce the existence of
customary rules, the Court deems it
sufficient that the conduct of states should,
in general, be consistent with such rules,
and that instances of state conduct
inconsistent with a given rule should
generally have been treated as breaches of
that rule, not as indications of the
recognition of a new rule.

§ Opinio juris

• The belief that a certain form of behavior is obligatory

that makes practice an international rule
• Without it, practice is not law.
• It is also possible for customary law to develop which will
bind only several states, or even only two states but the
party claiming it must prove that it is also binding on the
other party.
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Would dissenting states be bound by custom?

Yes, unless they had consistently objected to it while the custom

was merely in the process of formation
§ Anglo-Norwegian Fisheries case (1951 ICJ Reports)

What would a contrary practice arising after a practice has been

accepted as law have?

In Fisheries Jurisdiction case (1974 ICJ Reports), the opinion

was expressed that such contrary practice can cast doubt on the
alleged law and noted great uncertainty to the existing customary law
on account of the conflicting and discordant practice of States. It
concluded that such uncertainty had a prejudicial effect to the stability
of a still developing or evolving customary law on the subject. Over
time, if the contrary practice should gain general acceptance, it might
instead become the law.

The existence of opinio juris is a matter of proof and the burden of

proving its existence falls on the state claiming it.
§ In Nicaragua v US where one of the issues was whether the
prohibition of the use of force was customary law, the ICJ said
that consent of the parties to GA Resolution 2625 (Declaration
on Principles of International Law concerning Friendly Relations
and Co-operations among States in Accordance with the
Charter of the UN), is one of the forms of expression of an
opinio juris with regard to the principle of non-use of force,
regarded as a principle of customary international law,
independently of the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of
the Charter.

Is “instant custom” possible?

It is suggested that “instant custom “ is possible. The united

action of forces that arose in a matter of months after the attack of the
World Trade Center in New York City supportive of the action taken
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by US against Osama Bin Laden may have given birth to instant

customary law classifying the attack as an armed attack under Article
51 of the UN Charter justifying collective self-defense. Though the
subject of this collective self-defense was not an attack from a state
but from a non-state organization.

The Martens Clause

§ A paragraph found in the 1899 Hague Peace Convention

§ First inserted by the Russian publicist Fyodor Martens

§ Was also included in the 1949 Vienna Convention and the First
Additional Protocol of 1977

§ The clause puts the “laws of humanity” and the “dictates of

public conscience” on the same level as “usages of states” or
usus thus suggesting that even without practice or usus or at
least without consistent practice there can emerge a principle of
law based on laws of humanity and the dictates of public
conscience.

What if a Treaty is in Conflict with a Customary Law? How can

the Conflict be Resolved?

§ If a treaty comes later than a particular custom, as between the

parties to the treaty, the treaty should prevail

— A treaty manifests a deliberate choice of the parties and

the principle of pacta sunt servanda should be follwed.

— Wimbledon case (PCIJ 1932)

— If a later treaty is contrary to a customary rule that has a

status of jus cogens, custom will prevail
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- Pursuant to Article 53 of the Vienna

Convention where it is provided that a
treaty is void if at the time of its conclusion,
it conflicts with a peremptory norm of
general international law.

§ Where custom develops after a treaty, though the rule is not

clear, it is more logical that the later custom, being the
expression of a later will, should prevail.

— Though this practice will militate against treaties.

— In practice, however, efforts are made to keep treaty alive

by reconciling it with the developing custom.
- Anglo-French Continental Shelf Case
(1979)

General Principles of Law (recognized by civilized nations)

§ Restatement referred to it as “general principles of law

recognized by or common to the world’s major legal systems”

§ They are actually principles of municipal law common to the

legal systems of the world

§ In a sense, they may be said to belong to no particular system

but are evidence rather of the fundamental unity of law

§ Most of these principles have either become part of customary

law or have been incorporated into conventional international
law

• Examples of general principles of law are:

— The general concept ion of law that every violation of an

engagement involves an obligation to make reparation
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— The affirmation that private rights acquired under one

regime does not cease upon the change of government

— The principle of estoppel

— The affirmation of general principles of law found in

domestic systems as a source of international law makes
up for the fact that there is no international legislative
system

— It is to rules generally accepted by municipal systems,...

And not to the municipal law of a particular State, that
international law refers.

D. Judicial decisions

§ Article 38 of the Statute directs the Court to apply judicial

decisions as subsidiary means for the determination of the rules
of law

§ But this is subject to Article 59 which says that “the decisions of

the court have no binding force except between the parties and
in respect of that particular case.

§ Though ICJ’s decision do not constitute stare decisis, these

decisions are not only regarded as highly persuasive in
international law circles; they have also contributed to the
formulation of principles that have become international law.

§ Examples of international law principles that originated from the

ICJ

• The principle recognizing the international personality of

international organizations

• The doctrine on “genuine link” between a person and a

state for purposes of jurisdiction
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• The straight baseline method in drawing baselines for

archipelagos

• Arbitral decisions have been also instrumental on the

formation of international law principles.*

• In considering the decisions of courts as subsidiary

means for the determination of the rules of law, Article 38
does not distinguish between those rendered by
international tribunals like the ICJ and arbitration bodies
and those promulgated by national courts.

• Both kinds of decisions are acceptable as long as they

are a correct application and interpretation of the law of
nations or, as Fenwick says, “undertake to establish the
true rule of international law”.

E. Teachings of the Most Highly Qualified Publicists of the

Various Nations

§ In many cases of first impression, the only authorities that can

be cited are writers.

§ The tradition of the court or of individual judges determine the

extent to which they are referred to.

• In common law jurisdictions, there is reluctance to use

them, more so in the US than in Britain.

• In civil law jurisdictions, there is more ready reference to

writers.

• The ICJ is generally reluctant to refer to writers but they

are often taken into consideration.
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F. Publicists are Institutions which Write on International Law.

§ The more significant ones are the following:

• The International Law Commission, an organ of the UN;

• The Institut de Droit International, The International Law

Association, a multinational body;

• The (Revised) Restatement of Foreign Relations Law of

the United States; and

• The annual publication of the Hague Academy of

International Law.

- It should be noted, that these institutions are

generally government sponsored; hence they
bear within themselves a potential for national
bias.

§ To qualify as a subsidiary means for the determination of rules

of law, the writings of publicists, must also be, a fair and
unbiased representation of international law, and by an
acknowledged authority in the field.

G. Equity

§ The PCJ had occasion to use equity as a source of law in the

case of Netherlands vs Belgium where Judge Hudson made
the following pronouncements:

— It would seem to be an important principle of equity

that where two parties have assumed an identical or a
reciprocal obligation, one party which is engaged in a
continuing non-performance of that obligation should
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not be permitted to take advantage of a similar non-

performance of that obligation by the other party.

§ Judge Hudson justified his use of equity on the basis of Article

38 of the Statute of the ICJ that expressly directs the
application of “general principles of law recognized by civilized
nations”, and in more than one nation principles of equity have
an established place in the legal system.

Equity, when accepted, is an instrument whereby conventional or

customary law may be supplemented or modified in order to achieve
justice.

H. Other Supplementary Evidence

§ UN resolutions

§ Merely recommendatory but if they are supported by

all states, they are an expression of opinio juris
communis

§ Soft law

— Not included among the sources

— They are international agreements not concluded as

treaties and therefore not covered by the Vienna
Convention on the Law of Treaties.

— Soft law can also come from administrative rules which

guide the practice of states in relation to international
organization.

— These are mostly administrative procedures

that are carried out with varying degrees of
consistency and uniformity that may eventually
ripen into customary law or become formalized
later on in treaties.
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CHAPTER III:
INTERNATIONAL LAW AND
MUNICIPAL LAW
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What are the two schools of thought that explained the

relationship between international law and municipal law?
Monism – law is viewed as a single entity of which “national”
and “international” versions are merely particular manifestation;
believes in the oneness and unity of all law; posits that IL and ML are
simply two components of a single body of knowledge called ‘law”
Two monist theories
first monist theory – holds that municipal law subsumes
and is superior to international law
second monist theory – holds that international law is
superior to domestic law
Dualism – believes in the dichotomy of the law; posits that
there are certain well-established differences between international
law and municipal law; considers IL and ML as independent of each
other, and both systems are regarded as mutually exclusive and
independent as they exist side by side within different spheres of
action-the international plane and the domestic plane

Municipal Law in International Law

What are the indications of the recognition of the existence

of two legal systems, i.e. municipal and international law?

1. Article 27 of the Vienna Convention on the Law of Treaties

- “ A party may not invoke the provisions of its internal law
as justification for its failure to perform a treaty.”
2. Article 13 of the Declaration of Rights and Duties of States
adopted by the International Law Commission in 1949
- “ Every State has the duty to carry out in good faith its
obligations arising from treaties and other sources of
international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform
this duty.”
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3. Article 38 of the ICJ Statute

- recognizes the common teachings of domestic law as part
of international law

International Law in Domestic Law

How does international law become part of domestic law for
“dualists”?
There are two theories:
1. doctrine of transformation
Since there is distinction between municipal law and
international law, considering that they operate separately,
for international law to become part of domestic law, it must
be expressly and specifically transformed into domestic law
through the appropriate constitutional machinery such as an
act of Congress or Parliament. This doctrine flows by
analogy from what is applicable to treaties. Treaties do not
become part of the law of a state unless it is consented to by
the state.
2 types of transformation theories
a. hard transformation theory – holds that only legislation
can transform IL into DL; courts may apply IL only where
authorized by legislation
b. soft transformation theory – holds that either a judicial or
legislative act of a state can transform IL into DL

2. doctrine of incorporation
As an inevitable consequence of membership in the
international community, with or without an express
declaration to this effect, states admitted to the family of
nations are bound by the rules prescribed by it for the
regulation of international intercourse. A specific rule of
International Law becomes part of the national law without
the need for express adoption. However, other states like
Austria, Germany, Korea and the Philippines deemed it fit to
include in their respective constitution a provision affirming
recognition of the principles of international law. As a result
In the case of the Philippines, since treaties become a part
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of Philippine law only by ratification, the principle of

incorporation made possible through Article II, Section 2 of
the constitution applies only to customary law and to treaties
which have become part of the customary law.

What is the nature of the incorporation theory that is

applied by the 1987 Constitution?

The 1987 Constitution follows the “restrictive and

automatic” incorporation theory. Restrictive, since only
generally accepted principles of IL become part of the law of
the land, and automatic, in the sense that generally
accepted principles of IL automatically become part of the
law of the land without need of an act of Congress expressly
adopting them or incorporating them as part of domestic law.

What then is the difference between the doctrine of

transformation and doctrine of incorporation?

The difference lies in the fact that incorporation adopts IL

into NL just because it is IL, whereas transformation requires
a deliberate act on the part of the State concerned.

What is the “Fitzmaurice Compromise”?

This was explained by Sir Gerald Fitzmaurice. According to
him, since IL and NL (ML) operate in different fields, they can never
be in conflict. Each one of them is supreme in its own domain, thus
any conflict or question in the domestic sphere is resolved by
domestic rules while any conflict or question in the international field
is settled by international law.

If there is conflict between IL and DL, how can the conflict be

resolved under the international rule?
The question on which law should prevail depends on whether
the case goes to a domestic court or to an international tribunal. It is
an established principle that, before an international tribunal, a state
 25

may not plead its own law as an excuse for failure to comply with
international law.
This principle of the Vienna Convention has long been
established and is generally recognized. However, an exception is
made to the rule by Article 46 of the same Convention in cases where
the constitutional “violation was manifest and concerned a rule of its
internal law of fundamental importance.” The same article defines
the violation as “manifest if it would be objectively evident to any
State conducting itself in the matter in accordance with normal
practice and in good faith.”
If the treaty that is declared unconstitutional, however, does not
come under the exception, the treaty can be ignored domestically but
only at the risk of international repercussions before an international
court.

How can the same conflict be resolved under the municipal

rule?
When the conflict comes before domestic courts, domestic
courts are bound to apply the local law. Thus, should a conflict arise
between an international agreement and the Constitution, the treaty
would not be valid and operative as domestic law.
Article VIII, Section 5, 2(a) recognizes the power of the SC to
declare a treaty unconstitutional.

Does a treaty declared as unconstitutional lose its

character as an international law?
No, under the “dualist” theory, which the Constitution accepts,
the unconstitutionality of a treaty is purely a domestic matter. As
Article 27 of the Vienna Convention on the Law of Treaties says, “A
party may not invoke the provisions of its internal law as justification
for its failure to perform a treaty.”(Tanada vs Angara, MPH vs GSIS)
 26

When there is conflict between international agreement

and legislation, how shall the conflict be resolved under the
municipal rule?
The rule followed in the US and Philippines is that treaties and
statutes are equal in rank and that, since neither is superior to the
other, the rule followed is that as between an earlier treaty and a later
law, the later one prevails.
However, the rule applies only in the domestic sphere. The
treaty, even if contrary to later statute, remains as international law;
while an international tribunal would not have the power to reverse
the nullification of the treaty in domestic law, it can take appropriate
action in favour of an aggrieved state.
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CHAPTER IV:
TREATIES
 28

What are treaties?

They represent the most deliberate form of commitment
through which governments cooperate with one another.
International agreements is the generic term used to refer to
treaties. In the absence of an international legislative body,
international agreements are a convenient tool through which
states are able to project common expectations.

What are the other names of treaties?

Treaties can assume various names such as conventions,
pacts, covenants, charters, protocols, concordat, modus vivendi,
etc.

What is a concordat?
It is a treaty or agreement between the Pope and a State or
Government that deals with religious matters, as well as the
recognition and privileges of the Holy See in other States.

What is the law on treaties?

The law on treaties can be found in the 1969 Vienna
Convention on the Law of Treaties. It governs treaties between
states. It entered into force in January 1980. While the document
is not retroactive in effect, it does contain customary law precepts
antedating 1969.
A Convention on the Law of Treaties Between States and
International Organizations or Between International Organizations
was adopted on March 26, 1986. It should enter into force 30 days
after the 35th ratification or accession of states.

How are treaties defined?

A treaty may be defined as a formal agreement, usually but not
necessarily in writing, which is entered into by states or entities
possessing the treaty-making capacity, for the purpose of
 29

regulating their mutual relations under the law of nations. Though,

treaty may be known by other names, all agreements, when
intended to create legal as distinguished from moral obligations,
are binding on the parties.
The Vienna Convention defines a treaty as “an international
agreement concluded between States in written form and
governed by international law, whether embodied in a single
instrument or in two or more related instruments and whatever its
particular designation.”
The Vienna Convention applies to international agreements that
satisfy the Convention’s definition, specifically that they be in
writing and reflective of the intention of the parties to be bound,
and governed by international law.

Are treaties not in written form valid?

While treaties are generally in written form, there are writers
who hold that even an oral agreement can be binding. However,
only written agreements that are new, come under the provisions
of the Vienna Convention.
No particular form is prescribed. Thus, it was held that the
exchange of notes between the two heads of state was considered
an international agreement in Qatar vs Bahrain.

What are the functions of treaties?

There are four important functions that treaties perform,
according to Schwarzenberger, to wit:
1. Treaties enable parties to settle finally actual and potential
conflicts.
2. They make it possible for the parties to modify the rules of
international customary law by means of optional principles
or standards.
3. They may lead to a transformation of unorganized
international society into one which may be organized on
any chosen level of social integration.
 30

4. They frequently provide the humus for the growth of

international customary law.
Treaties are sources of international law, they serve as the
charter of international organizations, they are used to transfer
territory, regulate commercial relations, settle disputes, protect
human rights, guarantee investments, etc.

What are the kinds of treaties classified from the standpoint of

their relevance as source of international law?
The following are the kinds of treaties:

1. Multilateral treaties
These are treaties open to all states of the world. They create
norms which are the basis for a general rule of law. They are either
codification treaties or “law-making” treaties or they may have the
character of both.
2. Treaties that create a collaborative mechanism
These can be of universal scope (e.g. regulation of allocation of
radio frequencies) or regional (e.g. fishing agreements). They
operate through the organs of the different states.
3. Bilateral treaties
This is the largest category of treaties. Many of these are in the
nature of contractual agreements which create shared expectations
such as trade agreements of various forms. They are sometimes
called “contract treaties.”
What are the essential requisites of a valid treaty?
To be valid, a treaty must: be entered into by parties with the
treaty-making capacity; through their authorized representatives;
without the attendance of duress, fraud, mistake, or other vice of
consent; on any lawful subject-matter in accordance with their
respective constitutional processes. Thus, the following are the
essential requisites of a valid treaty:
 31

1. Treaty-making capacity
All states have full treaty-making capacity unless limited by
reason of their status or by previous self-imposed inhibitions.
The protectorate is restricted in the control of its external affairs
by the protector-state; a neutralized state may not agree to a
defensive or offensive alliance.
However, there are instances, when even mere colonies have
been allowed to sign treaties or join international conferences as full-
fledged members along with sovereign states.
The UN and its organs, such as the Security Council and the
Economic and Social Council, and international bodies like the WHO,
may also enter into treaties.
2. Authorized representative
It is for municipal law to determine which organ of the state
shall be empowered to enter into treaties in its behalf.
In the Philippines, the President is authorized by the
Constitution to make treaties, subject to the concurrence of two-thirds
of all the members of the Senate. This is in consonance with the
general practice of assigning the treaty-making power to the
executive department of the government, subject to the consent of
the legislature or one of its branches.

What is the legal effect of a treaty concluded by an organ of the

state without constitutional authority to undertake this function?
The Harvard Research on International Law declared that, “ A
state is not bound by a treaty made in its behalf by an organ or
authority not competent under the law to conclude the treaty;
however, a state may be responsible for an injury resulting to another
state for reasonable reliance by the latter upon a representation that
such organ or authority was competent to conclude the treaty.” This
view is disputed by writers such as Hackworth, Hyde and Willoughby.
McNair wrote that if a party negotiating a treaty produces an
authorization which appears to be complete and regular although in
fact constitutionally defective, “the other party, if it is ignorant and
 32

reasonably ignorant of the defect, is entitled to assume that the

instrument is in order and to hold the former to the obligation of the
latter.”
3. Freedom of consent
Fraud or mistake has been uniformly recognized to invalidate a
treaty as it would an ordinary contract.
With regard to the effect of duress to the validity of treaty,
Lauterpacht stated a rule to the effect that, “ The position has now
probably changed insofar as war has been prohibited by the charter
of the UN and the General Treaty for the Renunciation of War. The
state which has resorted to war in violation of its obligations under
these instruments cannot be held to apply force in a manner
permitted by law. Accordingly, duress in such cases must, it is
submitted, be regarded as vitiating the treaty.”
4. Lawful Subject-Matter
Treaties with unlawful subject-matter and purposes are
regarded as null and void.
5. Compliance with constitutional processes
The treaty-making process is governed by IL except with
respect to the method of ratification as required by the municipal law
of most states at present. Non-compliance with this requisite will
prevent enforcement of the treaty even if already signed by the
authorized negotiators.

Treaty-making Process

What are the usual steps in the treaty-making process?

They are: negotiation, signature, ratification and exchange of
the instruments of ratification. The treaty may then be submitted for
registration and publication under the UN Charter, although this step
is not essential to the validity of the agreement as between the
parties.
 33

Negotiation may be undertaken directly of state but he may

assign this task to his authorized representatives who are provided
with credentials known as full powers. It is standard practice for one
of the parties to submit a draft of the proposed treaty which, together
with the counter-proposals, becomes the basis of the subsequent
negotiations. The negotiations may be brief or protracted, depending
on the issues involved, and may even “collapse” in case the parties
are unable to come to an agreement on the points under
consideration.

When is a person considered as representing a State for the

purpose of adopting or authenticating the text of a treaty or for
the purpose of expressing the consent of the State to be bound
by a treaty?
He is considered as representing the State for said purposes if:
1. He produces appropriate plein pouvoir (full powers); or
2. It appears from the practice of the States concerned or from
other circumstances that their intention was to consider that
person as representing the State for such purposes and to
dispense with full powers. (Vienna Convention, Article 7{1})

Who are exempted from producing a “full powers”?

In virtue of their functions, the following are considered as
representing their State without having to produce full powers:
1. Heads of State, Heads of Government, and Ministers for
Foreign Affairs, for the purpose of performing all acts relating
to the conclusion of a treaty;
2. Heads of diplomatic missions, for the purpose of adopting
the text of a treaty between the accrediting State and the
State to which they are accredited;
3. Representatives accredited by States to an international
conference or to an international organization or one of its
organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ. (Vienna Convention,
Article 7{2})
 34

If and when the negotiators finally decide on the terms of the

treaty, the same is opened for signature. This step is intended as a
means of authenticating the instrument and for the purpose of
symbolizing the good faith of the parties. However, it does not
indicate the final consent of the state in cases where ratification of the
treaty is required. The document is ordinarily signed in accordance
with the alternat, that is, each of the several negotiators is allowed to
sign first on the copy which he will bring home to his own state.

What are the means of expressing consent to be bound by a

treaty under the Vienna Convention?
The consent of a State to be bound by a treaty may be
expressed by signature, exchange of instruments constituting a
treaty, ratification, acceptance, approval or accession, or by any other
means if so agreed.(Article 11)
Ratification is the formal act by which a state confirms and
accepts the provisions of a treaty concluded by its representatives.
Through ratification, contracting parties are able to examine the treaty
more closely and it gives them the opportunity to refuse to be bound
by it should they find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny and consent of a
department of the government other than that which negotiated them.
While most treaties now expressly provide that they shall be
subject to ratification according to the constitutional processes of the
negotiating states, the weight of authority is that the requirement
would still hold true even without a provision to this effect in the
instrument. Thus, in the absence of a stipulation to the contrary,
and more so if ratification is expressly required, an unratified treaty
cannot be a source of obligations between the parties.

What is the legal effect of an act relating to the conclusion of a

treaty performed by a person who cannot be considered under
Article 7 of the Vienna Convention as authorized to represent a
State for that purpose?
It is without legal effect unless afterwards confirmed or ratified
by that State. (VC, Art. 8)
 35

What is alternat?
It refers to the principle which provides that a state’s own name
will be listed ahead of the other signatory, or signatories, in its own
final copy of the treaty. It is a practice devised to handle sensitivities
over precedence and to maintain the principle of equality between the
contracting parties.

What if the treaty is ratified in violation of the constitution of the

ratifying state, as when it has not previously received the
required approval of the legislature?
The majority view on this question is that “foreign governments
should be held to a knowledge of the constitutional prerequisites for
ratification in each country with which they are dealing; and that a
treaty which has been ratified without proper observance of these
requisites is ipso facto invalid, whatever the proclamation of the head
of the state may assert in that respect.” (Fenwick,436)

Is there a legal obligation to ratify a treaty?

There is none but the refusal to ratify must be based on
substantial grounds and not on superficial or whimsical reasons
otherwise the other state would be justified in taking offense.
At times, to avoid total rejection of a treaty, the ratification is
qualified or made conditional, i.e. with reservations, in which event
the same must be accepted by the other party if these would
constitute a modification of the original agreement.

What are reservations?

Under Article 2 of the Vienna Convention, reservations is
defined as a unilateral statement, however phrased or named, made
by a State, when signing, ratifying, accepting, approving or acceding
to a treaty, whereby it purports to exclude or to modify the legal effect
of certain provisions of the treaty in their application to that State.
 36

When may a State party to a treaty not be allowed to formulate

a reservation?
Under Article 19 of the Vienna Convention, a State may, when
signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless:
1. The reservation is prohibited by the treaty;
2. The treaty provides that only specified reservations, which
do not include the reservation in question, may be made;
3. In cases not falling under sub-paragraphs (a) and (b), the
reservation is incompatible with the object and purpose of
the treaty.

Under the Philippine Constitution, who has the power to ratify

treaties?
The power to ratify treaties is vested in the President and not,
as is commonly believed , in the legislature.
The role of the Senate is confined simply to giving or
withholding its consent to the ratification.
For that matter, it is competent for the President to refuse to
submit a treaty to the Senate or, having secured its consent for its
ratification, to refuse to ratify it.
But as a rule, he cannot ratify a treaty without the concurrence
of two-thirds of all members of the Senate.
The last step in the treaty-making process is the exchange of
the instruments of ratification, which usually also signifies the
effectivity of the treaty unless a different date has been agreed upon
by the parties.
Where ratification is dispensed with and no effectivity clause is
embodied in the treaty, the instrument is deemed effective upon its
signature.
 37

What if a treaty is not registered with the UN Secretariat?

Under Article 102 of the UN Charter, a treaty not registered with
the Secretariat, by which it shall be published, cannot be invoked
before any organ of the UN, such as the ICJ.
Nevertheless, the treaty does not cease to be binding between
the parties and may be the basis of a litigation before some other
arbitral or judicial body not connected with UN.

Binding Effect of Treaties

Who are bound by treaties?

A treaty is binding only on the contracting parties, including not
only the original signatories but also other states which, although they
may not have participated in the negotiation of the agreement, have
been allowed by its terms to sign it later by a process known as
accession.
Non-parties are usually not bound under the maxim pacta tertiis
nec nocent nec prosunt.

What are the instances when third states may be validly held to
the observance of or benefit from the provisions of a treaty?
The following are the instances:
1. The treaty may be merely a formal expression of customary
international law which, as such, is enforceable on all
civilized states because of their membership in the family of
nations. Ex. Hague Conventions of 1899 and 1907
2. It is provided under Article 2 of the UN Charter that the
Organization “shall ensure that non-member States act in
accordance with the principles of the Charter so far as may
be necessary for the maintenance of international peace and
security,” and under Article 103 that the obligations of
member-states shall prevail in case of conflict with “any
other international agreement,” including those concluded
with non-members.
 38

3. The treaty itself may expressly extend its benefits to non-

signatory states, such as the Hay-Pauncefote Treaty of
1901, which, although concluded only by the US and Great
Britain, opened teh Panama Canal “to the vessels of
commerce and war of all nations observing these Rules, on
terms of entire equality.”

What is the “most-favored-nation clause”?

It is by which parties to apparently unrelated treaties may also
be linked. Under such clause, a contracting state entitled to most-
favored-nation treatment from the other may claim the benefits
extended by the latter to another state in a separate agreement.
Illustration: If X agrees to extend most-favored-nation treatment
to Y and thereafter grants tariff preferences to Z under another treaty,
Y will be entitled, by virtue of its treaty with X, to enjoy the same
advantages conceded to Z.

Interpretation and Observance of Treaties

How are treaties interpreted?

The basic rule in the interpretation of treaties is to give effect to
the intention of the parties which should be discoverable in the terms
of the treaty itself, which ordinarily has an official text or texts to be
used in case of conflicts in the interpretation. Most treaties also
contain a “protocol” or “agreed minutes” in which certain terms used
in the body are defined and clarified.
The usual canons of statutory construction are employed, as
follows:
1. Specific provisions must be read in light of the whole
instrument and especially of the purposes of the treaty.
2. Words are to be given their natural meaning unless a
technical sense was intended, and, when they have different
meanings in the contracting states, should be interpreted in
accordance with the usage of the state where they are
supposed to take effect.
 39

3. Doubts should be resolved against the imposition of

obligations and in favour of the freedom and sovereignty of
the contracting parties.
4. At all events, an interpretation that will lead to an absurdity is
to be avoided and a more rational result preferred.
5. Where intrinsic aids are unavailing, resort may be made to
extrinsic aids, such as the circumstances leading to the
conclusion of the treaty, statements recorded at the time of
the negotiations, the preliminary materials used, i.e. the
travaux preparatories, and the like.

How may conflict in treaty interpretation be resolved?

It can be resolved only by agreement of the parties themselves
or by an international body and not unilaterally by the national courts
of the contracting parties. Decisions of such courts are received with
respect but not as authority.

What is pacta sunt servanda?

It is a fundamental rule of international law which requires the
performance in good faith of treaty obligations
The parties must comply with their commitments under a treaty
and cannot ignore or modify its provisions without the consent of the
other signatories.
Willful disregard of a treaty is frowned upon by the society of
nations and is likely to stigmatize the erring state, especially if the
other contracting parties see fit to invoke the influence of world
opinion as a means of enforcing compliance.
Violations of treaties can lead to more drastic consequences,
including war.

What may a State do when its constitution conflicts with a

treaty?
The State may:
 40

1. Ask for revision of the treaty;

2. Amend its constitution to make it conform to the treaty
requirement; and
3. Pay damages to the other parties for its inability to comply
with its commitments.
What is the doctrine of rebus sic stantibus?
It is the equivalent exception to the maxim pacta sunt servanda.
Jessup said that “the doctrine constitutes an attempt to formulate a
legal principle which would justify non-performance of a treaty
obligation if the conditions with relation to which the parties
contracted have changed so materially and so unexpectedly as to
create a situation in which the exaction of performance would be
unreasonable.”
Illustration: If States A and B agree upon a reciprocal use of
their respective port facilities and B’s only important port is thereafter
ceded to State C, A should be released from continuing to accord the
treaty privileges to B, which is no longer able to perform its obligation.

What are the limitations to which the doctrine of rebus sic

stantibus is subject to?
They are as follows:
1. It applies only to treaties of indefinite duration;
2. The vital change must have been unforeseen or
unforeseeable and should not have been caused by the
party invoking the doctrine;
3. The doctrine must be invoked within a reasonable time; and
4. It cannot operate retroactively upon the provisions of the
treaty already executed prior to the change of
circumstances.
 41

Invalidation, Amendment and Modification, Suspension and

Termination of Treaties

What are the usual grounds for invalidation of treaties?

The usual ground for invalidation of contracts can also
invalidate a treaty: error of fact, fraud, corruption or duress.
A violation of jus cogens ( a peremptory norm of general
international law) invalidates a treaty. (Article 53, VC)

When may a State invoke error in a treaty as invalidating its

consent to be bound?
It may be invoked if the error relates to a fact or situation which
was assumed by that State to exist at the time when the treaty was
concluded and formed an essential basis of its consent to be bound
by the treaty.

When can a State lose the right to assert the invalidity of a

treaty?
If after becoming aware of the facts:
1. it shall have expressly agreed that the treaty is valid or
remains in force or continues in operation, as the case may
be; or
2. it must by reason of its conduct be considered as having
acquiesced in the validity or in its maintenance in force or in
operation
A state, moreover, with limited exception, may not plead its
municipal law as a ground for invalidating a treaty that has been
entered.
 42

What is the difference between amendment and modification?

Amendment is a formal revisions done with the participation, at
least in its initial stage, by all the parties to the treaty while
modification involves only some of the parties.

How are treaties amended?

A “treaty may be amended by agreement of the parties.” The
procedure that is followed is the same as that for the formation of
treaties.(Article 39, VC)

How are treaties modified?

Article 41 of the Vienna Convention provides that:
1. two or more of the parties to a multilateral treaty may
conclude an agreement to modify the treaty as between
themselves alone if:
a. The possibility of such modification is provided for by
the treaty; or
b. The modification in question is not prohibited by the
treaty and:
i. Does not affect the enjoyment by the other
parties of their rights under the treaty or the
performance of their obligations;
ii. Does not relate to a provision, derogation from
which is incompatible with the effective
execution of the object and purpose of the
treaty as a whole.
2. Unless in a case falling under paragraph 1(a) the treaty
otherwise provides, the parties of their intention to conclude
the agreement and of the modification to the treaty for which
it provides.
 43

How may treaties be terminated?

Treaties may be terminated in any of the following ways:
1. By expiration of the term, which may be fixed or subject to a
resolutory condition.
2. By accomplishment of the purpose
3. By impossibility of performance.
4. By loss of the subject-matter.
5. By desistance of the parties, through express mutual
consent; desuetude, or the exercise of the right of
denunciation(or withdrawal), when allowed.
6. By novation.
7. By extinction of one of the parties if the treaty is bipartite.
8. By vital change of circumstances under the doctrine of rebus
sic stantibus.
9. By outbreak of war between the parties in most cases, save
specifically when the treaty was intended to regulate the
conduct of the signatories during the hostilities, or to cede
territory, or to fix boundaries
10. By voidance of the of the treaty because of defects in its
conclusion, violation of its provisions by one of the parties, or
incompatibility with international law or the UN Charter.

What is material breach of treaty? May it lead to the termination

or suspension of the operation of the treaty?
A material breach of a treaty, consists in:
a) A repudiation of the treaty not sanctioned by the present
convention; or
b) The violation of a provision essential to the accomplishment
of the object or purpose of the treaty. (Art 60,3 VC)
A material breach of a bilateral treaty by one of the parties
entitles the other to invoke the breach as a ground for terminating the
treaty or suspending its operation in whole or in part.
A material breach of a multilateral treaty by one of the parties
entitles:
 44

a. The other parties by unanimous agreement to suspend the

operation of the treaty in whole or in part or to terminate it
either:
i. In the relations between themselves and the
defaulting State, or
ii. As between all the parties;
b. A party specially affected by the breach to invoke it as a
ground for suspending the operation of the treaty in whole or
in part in the relations between itself and the defaulting
State;
c. Any party other than the defaulting State to invoke the
breach as a ground for suspending the operation of the
treaty in whole or in part with respect to itself if the treaty is
of such a character that a material breach of its provisions by
one party radically changes the position of every party with
respect to the further performance of its obligations under
the treaty.(Art. 60, 1 & 2)

Who has the authority to terminate the treaty?

Logically, the authority to terminate should also belong to the
one who has the authority to enter into the treaty.

Succession to Treaties

When one State ceases to exist and is succeeded by another on

the same territory, is the new State bound by the commitments
made by its predecessor?
Article 16 of the 1978 Vienna Convention on the Succession of
States with Respect to Treaties that entered into force on November
6, 1996,provides:
A newly independent State is not bound to maintain in force, or
to become a party to, any treaty by reason only of the fact that at the
date of the succession of States the treaty was in force in respect of
the territory to which the succession of States relates.
 45

This is the so-called “clean slate” rule. This rule, however,

does not apply to treaties affecting boundary regimes. Article 11
provides that a succession of States does not as such affect: a) a
boundary established by a treaty; or b) obligations and rights
established by a treaty and relating to the regime of a boundary.
 46

CHAPTER V:
STATES AS SUBJECT OF
INTERNATIONAL LAW
 47

How can subject and object of international law be

distinguished?
A subject of international law is an entity that has rights and
responsibilities under the law. It has an international personality in
that it can directly assert rights and be held directly responsible under
the law of nations. It has the faculty of motivation which means that it
can be a proper party in transactions involving the application of the
law of nations among members of the international community. On
the other hand, an object of international law is the person or thing in
respect of which rights are held and obligations assumed by the
subject. It is not directly governed by international law. Its rights are
received and its responsibilities imposed indirectly, through the
instrumentality of an intermediate agency.(Cruz,2000)
Not all subjects of international law enjoy the same rights and
obligations. States remain the predominant actors, but other actors
have come to be recognized.(Bernas,2009)

Commencement of existence

What are the qualifications that make an entity a state as

enumerated in the Montevideo Convention of 1933 on Rights
and Duties of States?
The Montevideo Convention of 1933 on Rights and Duties
of States contains the traditional statement of the characteristics
which make an entity a state. Thus, “ The state as a person of
international law should possess the following qualifications: a) a
permanent population; b) a defined territory; c) government; d) the
capacity to enter into relations with other States.”
Hence, Philippines writers define “state” as a community of
persons more or less numerous, permanently occupying a definite
portion of territory, independent of external control, and possessing
an organized government to which the great body of inhabitants
render habitual obedience.(Bernas,2009)
 48

How are states created?

An entity acquiring the four essential elements of people,
territory, government and sovereignty is regarded in law as having
achieved the status of a state and may be treated as an international
person. The generally accepted methods by which this status is
acquired are revolution, unification, secession, assertion of
independence, agreement and attainment of civilization. The US was
created as a result of the revolution against British rule of the thirteen
original colonies that first formed a confederation in 1781 and then a
federation in 1789. The state of Italy grew out of the unification of the
independent city states of Sardinia, Florence, Naples, Rome and
others in 1870 under the so-called “principle of nationalities.”
Bangladesh became a separate state when it seceded from Pakistan
in 1971. The Philippines became a state by assertion of its
independence following the formal withdrawal therefrom of American
sovereignty in 1946. The Kingdom of the Netherlands was created
by the Congress of Vienna of 1815, and Poland, more recently, was
revived as a separate state by agreement of the victorious powers
after WWII. Japan became an international person by attainment of
civilization.(Cruz,2000)

What are the elements of a state?

The following are the elements of a state:
1. People as an element of the state refers to the human person
living within its territory; should be of both sexes and sufficient
in number to maintain and perpetuate themselves.
2. Territory is the fixed portion of the surface of the earth in which
the people of the state reside. A defined territory is necessary
for jurisdictional reasons and in order to provide for the needs
of the inhabitants. It should be big enough to be self-sufficient
and small enough to be easily administered and defended.
3. Government is the agency through which the will of the state is
formulated, expressed and realized. It is necessary in
international law because the state must have an entity to
represent it in its relations with other states. The form of
government does not matter so long as it is able to maintain
 49

order within the realm and comply with its responsibilities under
the law of nations.
4. Sovereignty is the external aspect or manifestation of
sovereignty or the power of the state to direct its own external
affairs without interference or dictation from other states. The
degree of its freedom in this regard determines the status of
the state as an international person. (Cruz, 2000)

May a state exist without the control of an effective government?

No, it must have an effective government that is able to carry
out its duties and able to assert itself without the aid of foreign troops.
Exceptions:
1. A state may temporarily lack an effective government as a
result of civil war, newly gained independence or similar
upheavals;
2. A simple change in regime and even conflicting claims of
governmental authority alone will not disqualify an entity from
statehood;
3. A state occupied by an enemy in times of war continues to be a
state as long as allies are fighting on its behalf against its
enemy.(Malone, 47) [Sarmiento, 2007]

How are de facto and de jure government distinguished?

A de jure government is lawfully in power even though it retains
little actual power. Conversely, a de facto government is impliedly a
government which is in control but illegally so.(Sarmiento, 2007)

What are the three kinds of de facto government?

The following are the three kinds of government:
1. Government de facto is that government that gets possession
and control of, or usurps, by force or by the voice of the
majority, the rightful legal government and maintains itself
 50

against the will of the latter, such as the government of England

under the Commonwealth, first by Parliament and later by
Cromwell Protector;
2. Government of paramount force which is established and
maintained by military forces who invade and occupy a territory
of the enemy in the course of war, as the cases of Castine, in
Maine, which was reduced to British possession in the war of
1812, and Tampico, Mexico, occupied during the war with
Mexico by the troops of the US;
3. That established as an independent government by the
inhabitants of a country who rise in insurrection against the
parent state, such as the government of the Southern
Confederacy in revolt against the Union during the war of
secession. (Co Kim Cham vs Valdez Tan Keh and Dizon, 75
Phil 113) [Sarmiento,2007)

How can nation be distinguished from state?

Though used popularly as synonymous with state, nation was
restricted by many writers to mean a body of people more or less of
the same race, language, religion and historical traditions.(Fenwick,
104)[Sarmiento, 2007]

How are states classified?

States may be classified as follows:
1. Sovereign states refer to those enjoying full membership in the
international community. They exercise undivided authority
over all persons and property within its borders and are
independent of direct control by any other power. (Fenwick,
106)
2. Neutralized states refer to those upon which the status of
permanent neutrality in all future wars was formally imposed by
a group of great powers. Examples: Switzerland under the
Article 84 of the 1815 Treaty of Vienna; Belgium under Article 7
of the 1839 Treaty of London. (Fenwick, 107-108)
 51

3. Dependent states refer to those that have practically complete

control of their domestic affairs, while being dependent upon
another state in respect of their control over their relations with
third states. (Fenwick, 115)
a. Vassal states or states under suzerainty refer to those
subject to a bond of vassalage and were in respect to
their foreign affairs dependent upon their suzerain
state, to which they pay a formal homage. Romania
was a vassal state subject to the suzerainty of Turkey
from 1829 to 1878. (Ibid)
b. Protectorates is a state which ahs by formal treaty
placed itself under the protection of a stronger power,
surrendering to the latter control over its foreign affairs.
Moroccco came under the protection of the France and
Germany in 1906 until 1911 while Ethiopia came
under the protection of Great Britain, France and Italy
in 1906. (Fenwick, 119)
4. Confederation and unions are those states which are
associated for certain specific purpose.
a. Real union is a special form of confederation which
exists when two or more severally sovereign states
have the same monarch and for international purposes
act as one state. Some examples are the Union of
Sweden and Norway until its dissolution in 1905 by the
Treaty of Karlstad; Union of Austria and Hungary from
1867 to 1918; Union of Denmark and Iceland from
1918 to 1944. (Fenwick, 121)
b. Federal state is a union of states in which the control of
the external relations of all the member states has
been permanently surrendered to a central
government so that only state which exists for
international purposes is the state formed by the union.
Examples are USA and Swiss confederation.(Brierly,
120)
c. Confederation is a union of states in which, though a
central government exists and exercises certain
 52

powers, it does not control the external relations of the

member states, and therefore for international
purposes there exists not one but a number of states.
Examples are US from 1778 to 1787 and the German
Confederation from 1820 to 1866. (Ibid.)[Sarmiento,
2007]

What determines the capacity of states?

An entity possessed with the requisite elements is
ordinarily regarded as an international person entitled
to membership in the family of nations so long as it is
recognized by other states and it does not possess
restricted capacity on account of either treaty
obligations or its limited resources.(Cruz, 2000)

What is the Principle of State Continuity?

From the moment of its creation, the state continues as a
juristic being notwithstanding changes in its circumstances,
provided only that they do not result in loss of any of its
essential elements. (Sapphire Case, 11 Wall.164) [Cruz,
2000]

How may a state be extinguished?

The radical impairment or actual loss of one or more of
the essential elements of the state will result in its
extinction.(Ibid)

What is the concept of succession of states?

In the event that a state is extinguished or is created as a
result of any of the methods, state succession takes place
when one state assumes the rights and some of the
obligations of another because of certain changes in the
condition of the latter.(Ibid)

What are the two kinds of state succession?

There is universal succession when a state is annexed
to another state or is totally dismembered or merges with
another state to form a new state. In all of these cases, the
 53

international personality of the former state is completely

absorbed by the successor. Partial succession takes place
when a portion of the territory of a state secedes or is ceded
to another or when an independent state becomes a
protectorate or a suzerainty or when a dependent state
acquires full sovereignty.(Ibid)

What are the consequences of state succession?

The following are the consequences of state succession:
1. The allegiance of the inhabitants of the predecessor state
in the territory affected is transferred to the successor
state.
2. Inhabitants are naturalized en masse as when Philippine
citizenship was conferred on the inhabitants in general of
the PI under the provisions of the treaty of cession
between Spain and the US.
3. The political laws of the former sovereign are
automatically abrogated and may be restored only by a
positive act on the part of the new sovereign. But, non-
political laws, such as those dealing with familial relations,
are deemed continued unless they are changed by the
new sovereign or are contrary to the institutions of the
successor state.
4. Treaties of a political and even commercial nature, as well
as treaties of extradition, are also discontinued, except
those dealing with local rights and duties, such as those
establishing easements and servitudes. Sometimes the
successor state stipulates in appropriate treaties or by
formal proclamation the international commitments it is
willing to respect
5. All the rights of the predecessor state are inherited by the
successor state but this is not so where liabilities are
concerned. The successor state, in fact, can determine
which liabilities to assume and which to reject solely on
the basis of its own discretion. Generally, contractual and
tort liabilities do not devolve on the successor state,
 54

although there certainly is nothing to prevent it from

assuming them.(Cruz, 2000)

What is the concept of succession of governments?

There is succession of governments, where one
government replaces another either peacefully or by violent
methods. In both instances, the integrity of the state is not
affected; the state continues as the same international
person except only that its lawful representative is changed.
Questions of succession will, therefore, involve only the
former and subsequent governments and third parties which
may be affected by their relations.(Cruz, 2000)

What are the consequences of succession of

governments?
The following are the consequences of succession of
governments:
1. The rights of the predecessor government are inherited,
in toto by the successor government .
2. Where the new government was organized by virtue of a
constitutional reform duly ratified in a plebiscite, the
obligations of the replaced government also completely
assumed by the former. Where the new government was
established through violence, as by a revolution, it may
lawfully reject the purely personal or political obligations
of the predecessor government but not those contracted
by it in the ordinary course of official business.(Cruz,
2000)

What are the fundamental rights of states?

The following are the fundamental rights of states:

1. Independence is the capacity of the state to provide for
its own well-being and development free from the
domination of other states, providing it does not impair or
violate their legitimate rights. As a right, it means the right
to exercise within its portion of the globe, to the exclusion
 55

of others, the functions of a state. However, restrictions

upon a state’s liberty arising either from customary law or
from treaties do not deprive a state of independence.
Flowing from this right are the rights of jurisdiction over its
territory and permanent population, the right to self
defense and the right of legation.(Bernas, 2009)
What are the two kinds of independence?
They are internal independence or right of national self-
government and external independence. The former
refers to the supreme authority or jurisdiction of the state
to control all persons or property within its territorial
domain. The latter refers to the supreme power of the
state to determine the relations it desires to maintain with
other states, without interference on the part of any third
state.

What is the right to self-determination?

Sovereignty or independence from outside control is
related but not identical with the concept of the right to
self-determination. The various levels of claims to self-
determination may be broken into two main categories:
first is the establishment of new states – that is the claim
by a group within an established state to break away and
form a new entity. Second can simply be claims to be
free from external coercion, or the claim to overthrow
effective rulers and establish a new government, that is,
the assertion of the right of revolution; or the claim of
people within an entity to be given autonomy.
International Law has not recognized a right of secession
from a legitimate existing state.(Bernas, 2009)

2. Equality refers to equality of legal rights irrespective of

the size or power of the state.(Ibid)
 56

What is the doctrine of equality of states?

It means that all states are equal in International Law
despite of their obvious factual inequalities as to size, population,
wealth, strength, or degree of civilization.(Sarmiento,2007)

What are the consequences that follow from the above doctrine?
Oppenheim enumerates four consequences that follow
from the doctrine of equality of states:
a. When a question arises which has to be settled
by consent, every state has a right to a vote and
to one vote only.
b. The vote of the weakest state has as much
weight as the vote of the most powerful;
c. No state can claim jurisdiction over another; and
d. The courts of one state do not as a rule question
the validity of the official acts of another state in
so far as those acts purport to take effect within
the latter’s jurisdiction. [Oppenheim, International
Law, 6th ed.,vol.1,p.238] (Sarmiento, 2007)
3. The theory of the right to peaceful co-existence was
elaborated in 1954 as the Five Principles of Co-existence
by India and China and includes mutual respect for each
other’s territorial integrity and sovereignty, mutual non-
aggression, non-interference in each other’s affairs and
the principle of equality. This has also been expressed in
other documents such as the 1970 Declaration on
Principles of International Law Friendly Relations and
Cooperation Among States. (Bernas, 2009)

What are the duties of states?

1. To refrain from intervention in the internal or external
affairs of any other state (Art 3)
 57

2. To refrain from fomenting civil strife in the territory of

another state, and to prevent the organization within its
territory of activities calculated to foment such civil
strife. (Art. 4)
3. To treat all persons under its jurisdiction with respect
for human rights and fundamental freedoms, without
distinction as to race, sex, language, or religion. (Art.
6)
4. To ensure that conditions prevailing in its territory do
not menace international peace and order. (Art. 7)
5. To settle its disputes with other States by peaceful
means in such a manner that international peace and
security, and justice, are not endangered. (Art. 8)
6. To refrain from resorting to war as an instrument of
national policy, and to refrain from the threat or use of
force against the territorial integrity or political
independence of another State, or in any other manner
inconsistent with International Law and order.
7. To refrain from giving assistance to any State which is
acting in violation of Article 9, or against which the UN
is taking preventive or enforcement action. (Art.10)
8. To refrain from recognizing any territorial acquisition by
another State acting in violation of Article 9. (Art.11)
9. To carry out in good faith its obligations arising from
treaties and other sources of International Law, and it
may not invoke provisions in its constitution or its laws
as an excuse for failure to perform this duty. (Art. 13)
10. To conduct its relations with other States in
accordance with International Law and with the
principle that the sovereignty of each State is subject
to the supremacy of International Law. (Art. 14)
[Sarmiento, 2007]
 58

What are some incomplete subjects of International

Law?

The following are some incomplete subjects:

1. Protectorates are dependent states which have control
over their internal affairs but whose external affairs are
controlled by another state. They are sometimes referred
to as autonomous states, vassal states, semi-sovereign
or dependent states.
2. Federal state is a union of previously autonomous
entities. It may be an arrangement that may involve
placing full authority in a central organ while another
arrangement might lodge authority in the individual
entities to the detriment of the central organ. The central
organ will have personality in international law; but the
extent of international personality of the component
entities can be a problem.
3. Mandated and trust territories- Mandated territories
were territories placed by the League of Nations under
one or other of the victorious allies of World War I. The
mandate system was replaced by the trusteeship system
after World War II under the Trusteeship Council. The
Carolines, Marianas and Marshall Islands were placed
under the trusteeship of the US. These have been in the
process of evolution and self-determination since 1986.
4. Taiwan seems to be a non-state territory which de jure is
part of China. But it is too affluent and strategically
located to be overlooked by international actors. It is
interesting that when Taiwan sought accession to the
GATT treaty it did not do so as a state but as part of a
“customs territory.”
5. The Sovereign Order of Malta has diplomatic relations
with over forty states. There was a time when the order
had sovereignty over Malta. This has since been lost but
the Italian Court of Cassation in 1935 recognized its
international personality.
 59

6. The Holy See and Vatican City. IN 1929, the Lateran

Treaty was signed with Italy which recognized the state of
the Vatican City and "the sovereignty of the Holy See in
the field of international relations as an attribute that
pertains to the very nature of the Holy See, in conformity
with its traditions and the demands of its mission in the
world.” It has no permanent population. (Bernas, 2009)
 60

CHAPTER VI:
OTHER SUBJECTS OF
INTERNATIONAL LAW
 61

What are international organizations?

An international organization is an organization that is set up by
treaty among two or more states. It is different from non-
governmental organizations (NGO) which are set up by private
persons. The constituent document of international organizations
therefore is a treaty. For this reason, only states are members of
international organizations.
An international organization has international personality but
its powers and privileges are limited by the constituent instrument
that created it. It also enjoys immunity which is based on the
need for effective exercise of its functions and is derived from the
treaty creating it.(Bernas, 2009)

What is the League of Nations?

It was an international organization created after WW1. It was
established after the Paris Peace Conference of 1919 which was
organized by the victors of First World War to negotiate peace
treaties between the Allied and Associated Powers and the defeated
Central Powers. The Covenant establishing the League was part of
the Treaty of Versailles. The League of Nations formally came into
existence on January 10, 1920 with headquarters at Geneva,
Switzerland. Its organization included the Council, the Assembly and
the Secretariat. Autonomous but closely connected to the League of
Nations were the Permanent Court of International Justice and the
International Labor Organization. (Sarmiento, 2007)

What factors led to its demise?

The outbreak of the Second World War was the immediate cause of
its demise. Other factors are:
1. While its was supported by US President Woodrow Wilson,
the US Senate did not ratify the Versailles Treaty mainly
objecting to Article 16 that says in part:
“ Should any member of the League resort to war in disregard
of its covenants, it shall ipso facto be deemed to have committed an
act of war against all other members of the League xxx. It shall be
 62

duty of the of the Council in such case to recommend to the several

governments concerned what effective military, naval, or air force the
members of the League shall severally contribute to the armed forces
to be used to protect the covenants of the League.”
2. The League was generally weak because even the military
sanctions that may be taken pursuant to the second
sentence of Article 16 were not considered to be legally
binding obligations.
3. Difficulty of the Council in enacting resolutions because of
the required unanimous vote of all its members, so
conclusive and effective action was difficult, if not
impossible.(Sarmiento, 2007)

What is the United Nations Organization?

The United Nations is a public organization of states that
was established by the intergovernmental cooperation after the end
of WWII. It was established on October 24, 1945 by 51 countries
as an outcome of the initiatives taken by the US, USSR, Great
Britain and China. (Ibid)

Does the UN have juridical personality?

Yes, the UN shall possess juridical personality. It shall
have the capacity: a) to contract; b) to acquire and dispose of
immovable and movable property; and c) to institute legal
proceedings. (Convention on the Privileges and Immunities of the
UN, Art 1)[Sarmiento, 2007]

What is the legal capacity of the UN in the territory of its

Members?
The UN shall enjoy in the territory of each of its Members
such legal capacity as may be necessary for the exercise of its
functions and the fulfillment of its purposes.(UN Charter, Article
104) [Ibid]
 63

What is the UN charter?

The UN Charter is a lengthy document consisting of 111
articles besides the Preamble and the concluding provisions. It
also includes the Statute of the ICJ which is annexed to and made
an integral part of it.
The Charter may be considered a treaty because it
derives its binding force from the agreement of the parties to it. It
may also be regarded as a constitution in so far as it provides for
the organization and operations of the different organs of the UN and
for the adoption of any change in its provisions through a formal
process of amendment. (Cruz, 2000)

Is the UN Charter applicable only to UN members?

The Charter is intended not only to the members but also
to non-member states “so far as may be necessary for the
maintenance of international peace and security.” (Ibid)

What is the principle of Charter Supremacy?

In the event of conflict between the obligations of the
members of UN under the Charter and their obligations under any
other international agreement, their obligations under the Charter
shall prevail. (UN Charter, Art 103) [Sarmiento, 2007]

How may amendments to the Charter come into force?

Amendments to the Charter shall come into force when
they have been adopted by a vote of two-thirds of the members of
the General Assembly and ratified in accordance with their
respective constitutional processes by two-thirds of the members of
the UN, including all the permanent members of the Security
Council. (UN Charter, Article 108)
 64

What is the Preamble to the Charter?

It introduces the Charter and sets the common intentions
that moved the original members to unite their will and efforts to
achieve their common Purposes. (Cruz, 2000)

What are the Purposes of UN?

According to the UN Charter, it has four purposes: to
maintain international peace and security, to develop friendly
relations among nations, to cooperate in solving international
problems and in promoting respect for human rights and to be a
center for harmonizing the actions of nations.(Art 1, UN Charter)
[Ibid]

What are the Principles of UN?

Under Article 2 of the Charter, the Principles deal with the
methods and the regulating norms according to which the UN and its
members shall discharge their obligations and endeavour to achieve
their common ends. The seven cardinal principles are the following:
1. The organization is based on the principle of the sovereign
equality of all its Members.
2. All Members, in order to ensure to all of them the rights and
benefits resulting from membership, shall fulfill in good faith
the obligations assumed by them in accordance with the
present Charter.
3. All Members shall settle their international disputes by
peaceful means in such a manner that international peace
and security, and justice, are not endangered.
4. All members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
5. All Members shall give the UN every assistance in any
action it takes in accordance with the present Charter, and
 65

shall refrain from giving assistance to any state against

which the UN is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not
Members of the UN act in accordance with these Principles
so far as may be necessary for the maintenance of
international peace and security.
7. Nothing contained in the present Charter shall authorize the
UN to intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the
present Charter; but this principle shall not prejudice the
application of enforcement measures under Chapter VII.
(Cruz, 2000)

What are the classes of Members in the UN?

They are the original and non-original members. The
former refer to those states which participated in the UN
Conference on International Organization at San Francisco, pre-
signed the Declaration by the UN of January 1, 1942, signed and
duly ratified the Charter. There were 51 original members, including
the Philippines. The latter refer to those states which were admitted
to membership by a decision of two-thirds majority vote in the
General Assembly upon the recommendation of a qualified
majority in the Security Council. (UN Charter, Art.3)[Sarmiento,
2007]

What are the qualifications for membership in the UN?

Membership to UN is open to peace-loving states which
accept the obligations contained in the Charter and, in the
judgment of the Organization, are able and willing to carry out these
obligations. (UN Charter, Art.4) [Ibid]
 66

How is the admission of a State to the UN effected?

The admission of state to membership in the UN is
effected by two-thirds majority of the members voting and
present in the General Assembly upon the recommendation of a
qualified majority in the Security Council. (UN Charter, Art.4,
18{2}) [Ibid]

May a member of UN be suspended?

Yes, a member against which preventive or enforcement
action has been taken by the Security Council may be suspended
from the exercise of the rights and privileges of membership by
two-thirds majority of the members present and voting in the
General Assembly upon the recommendation of a qualified majority in
the Security Council. However, the member will not actually be
suspended from its membership, but only from the exercise of the
rights and privileges of membership. The exercise of these rights and
privileges may be restored by the Security Council. (UN Charter, Art.
5, 18{2}) [Ibid]

May a Member be expelled from the UN?

Yes, a member which has persistently violated the
Principles contained in the Charter may be expelled from the
Organization by two-thirds majority of the members present and
voting in the General Assembly upon the recommendation of a
qualified majority in the Security Council. (UN Charter, Art. 6,
18{2})

Can members withdraw from UN?

No provision on withdrawal from membership was
included in the Charter because of the fear that it might encourage
successive withdrawals that would weaken the Organization.
Nevertheless, the San Francisco Conference approved a special
committee report which, while not categorically permitting or
prohibiting withdrawal, expressed the view that a member might
withdraw from the UN if: a) the Organization was revealed to be
 67

unable to maintain peace or could do so only at the expense of law

and justice; b) the member’s rights and obligations as such were
changed by a Charter amendment in which it had concurred or
which it finds itself unable to accept; or c) and amendment duly
accepted by the necessary majority either in the General Assembly
or in a general conference is not ratified. (Cruz, 2000)

What are the principal Organs of the UN?

They are the General Assembly, Security Council,
Economic and Social Council, Trusteeship Council, ICJ and
Secretariat.

What is the composition of the General Assembly?

It shall consist of all members of the UN, each of which is
entitled to send not more five representatives and five
alternates as well as such technical staff as it may need. (Ibid)

How are the functions of the GA classified?

1. Deliberative – initiating studies and making
recommendations toward the progressive development of IL
and its codification and recommending measures for the
peaceful adjustment of any situation which it deems likely to
impair the general welfare or friendly relations among
nations
2. Supervisory – receiving and considering annual and special
reports from the other organs of the UN, making
recommendations for the coordination of their various
functions, and approving trusteeship agreements in non-
strategic areas
3. Financial – consideration and approval of the budget of the
Organization, the apportionment of expenses among its
members and the approval of financial arrangements with
specialized agencies
 68

4. Elective – election of the non-permanent members of the

SC, all the members of the Economic and Social Council,
and some of the members of the Trusteeship Council, as
well as, in concurrence with the SC, the Secretary-General
and the judges of the ICJ
5. Constituent – admission of members and the amendment of
the Charter of the UN (Ibid)

What are the rules on voting in the GA?

Each member of the GA shall have one vote. However, a
member which is in arrears in the payment of its final
contributions to the Organization shall have no vote if the amount of
its arrears equals or exceeds the amount of the contributions due
from it for the preceding two full years. But the GA may,
nevertheless, permit such a member to vote if it is satisfied that the
failure to pay is due to conditions beyond the control of the member.
(UN Charter, Arts 18, 19)
Distinction is also made between “important questions”
and all other questions. Decisions on important questions shall be
made by a two-thirds majority of the members present and voting,
while decisions on other questions shall be made by a majority of the
members present and voting. (UN Charter, Art.18) [Sarmiento, 2007]

What are the “important” questions that require two-thirds

majority vote in the GA?
Important questions shall include:
1. Recommendations with respect to the maintenance of
international peace and security;
2. Election of non-permanent members of the SC;
3. Election of members of the Ecosoc;
4. Election of members of the Trusteeship Council;
5. Admission of new members to the UN;
 69

6. Suspension of the rights and privileges of membership;

7. Expulsion of members;
8. Questions relating to the operation of the trusteeship system;
9. Budgetary questions (UN Charter, Art 18{2}) [Sarmiento,
2007]

What is the Security Council?

It is the principal organ of the UN that has been conferred
by the members of UN with the primary responsibility for the
maintenance of international peace and security. (UN Charter,
Art 24)

What is the composition of the Security Council?

The SC shall consist of 15 members. Five of these
members are permanent members (Republic of China, France,
Russia, UK of Great Britain and Northern Ireland, and the USA)
and the other 10 are elected by the GA as non-permanent members
for a term of 2 years without eligibility for immediate reelection.
(UN Charter, Art 23)
The presidency of the SC shall be held in turn by the
members of the Council in the English alphabetical order of their
names. Each President shall hold office for one calendar
month.(Provisional Rules of the SC, Rule 18) [Sarmiento, 2007]

Are the decisions of the SC binding on the members of the UN?

Under Art. 25 of the UN Charter, all members agree to
accept and carry out the decisions of the SC. While other organs
of the UN make recommendations to Governments, the SC alone
has the power to take decisions which member States are
obligated to carry out.
 70

Explain the Yalta Voting Formula?

It resulted from a compromise between the US, the Soviet
Union and the UK at the conference of Yalta in Feb 1945. This
proposal subjected voting in the SC to unanimity of the permanent
members, both with regard to enforcement action and the peaceful
settlement of disputes, although in the latter case States party to the
dispute were obliged to abstain. (Wouters, 5) [Sarmiento, 2007]
Under this formula, codified in Art 27, each member of
the SC shall have one vote, but distinction is made between the
permanent members and the non-permanent members in the
resolution of non- procedural questions.
Procedural questions are to be decided by the affirmative
vote of any nine or more members. Non-procedural or substantive
questions are to be decided by an affirmative vote of nine members
including the concurring votes of the permanent members. This is
the rule of “Great Power Unanimity”, often referred to as “Veto
Power.”

Is the so-called “double veto” still in practice?

As the determination of whether a question is procedural
or substantive is considered as non-procedural, it allowed any
permanent of the Council to exercise its “veto power” twice, thus the
practice known as “double veto”. A veto is first used to establish that
a given question is non-procedural, and then on the vote on the
question itself.
This procedural manipulation was soon overcome
procedural maneuver. The President of the Council could rule that
the procedural/non-procedural question is itself procedural and not
subject to veto; presidential rulings in this regard are final unless
reversed by nine votes, with no state having a veto power.
(Sarmiento, 2007)
 71

What is the composition and function of the Economic and

Social Council?
It shall consist of 54 members elected by the General
Assembly. (UN Charter, Art.61)
It may make or initiate studies and reports with respect to
international economic, social, cultural, educational, health, and
related matters and may make recommendations with respect to any
such matters to the General Assembly, to the Members of UN, and to
the specialized agencies concerned. It may also make
recommendations for the purpose of promoting respect for, and
observance of, human rights and fundamental freedoms for all,
prepare draft conventions for submission to the General assembly
and call international conferences on matters falling within its
competence. (UN Charter, Art 62) (Ibid)

What is the Trusteeship Council?

It is the organ that is responsible for administering
trusteeship territories that are not yet self-governing.
The TC shall consist of the ff:
1. Members that are administering trust territories;
2. Permanent members of the SC;
3. As many other members as the GA as may be necessary to
ensure that the total number of members of the TC is equally
divided between those Members of the UN which administer
trust territories and those which do not.

What are mandates and trust territories?

Mandates are colonies and territories which as a
consequence of WWI have ceased to be under the sovereignty of the
States which formerly governed them and which were inhabited
by peoples not yet able to stand by themselves and placed under
a system of mandates under Article 22 of the Covenant of the
League of Nations (Treaty of Versailles).
 72

Trust territories are those which have been placed under

the international trusteeship system established by Chapters 11-13
of the UN Charter that included a) territories held under mandate; b)
territories which maybe detached from enemy states as a result of
WWII , and c) territories voluntarily placed under the system by states
responsible for their administration.
International Court of Justice
The Secretariat
Other Agencies
Regional organizations
International Administrative Bodies
Insurgents
Protocol II
Common Article 3
National Liberation Movements
Individuals
Nationality
Acquisition
Loss
Conflict of Nationality Laws
Doctrine of Effective Nationality
Doctrine of Indelible Allegiance
Doctrine of Nemo Potest Exuere Patriam
Right of Expatriation
Individual as a subject of international law
Statelessness

 73

CHAPTER VII:
RECOGNITION
 74

What are the Objects of recognition?

Recognition may be extended to a state, to a government, or to
a belligerent community. Recognition of a state is generally held to
be irrevocable and imports the recognition of its government.
Recognition of a government, on the other hand, may be withdrawn
and does not necessarily signify the existence of a state as the
government may be that of a colony.(Hackworth, 166; Fenwick, 157)
Recognition of belligerency does not produce the same effects as
the recognition of states and governments because the rebels are
accorded international personality only in connection with the
hostilities they are waging. (Wilson and Tucker, 69-72) [Cruz, 2000]

What are the Kinds of Recognition?

It may be either express or implied. Express recognition may
be verbal or in writing. It may be extended through a formal
proclamation or announcement, a stipulation in a treaty, a letter or
telegram, or on the occasion of an official call or conference.
Examples: the state of Israel and its provisional government were
recognized by the US in a statement released to the press by
President Harry S. Truman on May 14, 1948; The Communist
Government of Russia, was recognized by Italy in a treaty concluded
between the two countries in 1924;and a simple telegram sufficed to
extend American recognition to Poland after WW1
Recognition is implied when the recognizing state enters into
official intercourse with the new member by exchanging a diplomatic
representatives with it, concluding with it a bipartite treaty dealing
comprehensively with their relations in general or, acknowledging its
flag or otherwise entering into formal relations with it. (Fenwick, 137).
In the case of a belligerent community, recognition is implied
when the legitimate government blockades a port held by the former
or when other states observe neutrality in the conflict. (Bishop, 261)
[Ibid]
 75

What is required of an act for it to be considered as an act

constituting recognition?
The act constituting recognition shall give a clear indication of
an intention:
a) To treat with the new state as such; or
b) To accept the new government as having authority to represent
the state it purports to govern and to maintain diplomatic
relations with it; or
c) To recognize in the case of insurgents that they are entitled to
exercise belligerent rights. (Hackworth, 166) [Ibid]

What is the effect of common membership in an international

organization of states that have not previously recognized each
other?
They are deemed to recognize each other only within the said
body and not elsewhere. Example: The Phil and Soviet Union for
many years dealt officially with each other in the UN, of which they
are both charter members, but did not otherwise maintain relations
outside the Organization until they exchanged diplomatic recognition
in 1975. [Ibid]

What is Recognition of States?

The recognition of a new state is the free act by which one or
more states acknowledge the existence on a definite territory of a
human society politically organized, independent of any existing
state, and capable of observing the obligations of international law,
and by which they manifest therefore their intention to consider it a
member of the international community.(Art 1, Institute de Droit
International)
The recognition of a new state comes easy when it is
established through peaceful methods such as plebiscite or
agreement. Examples: Norway and Sweden, upon their formal
separation in 1905 were unhesitatingly extended recognition; same is
true with Egypt, when it was declared independent by Great Britain in
 76

1922 and also to the Philippines upon the withdrawal of American

sovereignty there from in 1946. But the act of France in recognizing
the newly established USA in 1778 was resented by Great Britain
which shortly thereafter declared war against the French. The
recognition made by US to Brazil was not received with much
antagonism by parent state Portugal which had evidently lost interest
in its former colony.[Ibid]

What is the Recognition of Governments?

The recognition of the new government of a state which has
been already recognized is the free act by which one or several
states acknowledge that a person or a group of persons is capable of
binding the state which they claim to represent and witness their
intention to enter into relations with them. (Art. 9, Ibid)
Similar to the recognition of states, the recognition of
governments is usually decided mainly on the basis of political
considerations. Premature recognition may lead to international
misunderstanding if the new government has been established
through violent methods. There is no problem if the change of
government is caused through peaceful means but in the case the
new government is installed through violent means and it claims the
right to represent the state to the exclusion of the former, the former
or de jure government might have a cause for complaint if recognition
is extended by other governments to the de facto government. [Cruz,
2000]

What is the Tobar or Wilson principle?

Under this principle, which was expressed in a treaty of the
Central American Repulics in 1907 at the suggestion of Foreign
Minister Tobar of Ecuador and reiterated in 1913 by President
Woodrow Wilson of the US, recognition shall not be extended to any
government established by revolution, civil war, coup d’etat or other
forms of internal violence until the freely elected representatives of
the people have organized a constitutional government. [Ibid]
 77

What is Stimson Principle?

This principle was formulated by US Secretary of State Stimson
and was adopted by the League of Nations in a resolution declaring
that it was “incumbent upon the members of the League of Nations
not to recognize any institution, treaty or agreement which may be
brought about by means contrary to the Covenant of the League of
Nations or to the Pact of Paris.”[Ibid]

What is Estrada Doctrine?

Minister Genaro Estrada of Mexico announced in 1930 a
doctrine that now bears his name. Under this doctrine, the Mexican
government declared that it would, as it saw fit, continue or terminate
its relations with any country in which a political upheaval had taken
place “and in so doing does not pronounce judgment, regarding the
right of foreign nations to accept, maintain, or replace their
governments or authorities.” [Ibid]

What are the criteria in recognizing a new government based on

the present practice of most states?
They are as follows:
a) That the government must be able to maintain order within the
state and to repel external aggression known as the objective
test; and
b) That the government is willing to comply with its international
obligations known as the subjective test. (Fenwick, 159-
162)[Ibid]

What are the distinctions between recognition de jure and

recognition de facto?
They are the following:
a) Recognition de jure is relatively permanent while recognition de
facto is provisional;
 78

b) Recognition de jure vests title in the government to its

properties abroad while recognition de facto does not;
c) Recognition de jure brings about full diplomatic relations while
recognition de facto is limited to certain juridical
relations.(Oppenheim-Lauterpacht, 136-137)[Ibid]

What are the effects of Recognition of States and Governments?

The following are the consequences of the recognition of state
and governments:
a) Full diplomatic relations are established except where the
government recognized is de facto.
b) The recognized state or government acquires the right to sue in
the courts of the recognizing state.
c) The recognized state or government has a right to the
possession of the properties of its predecessor in the territory of
the recognizing state.
d) All acts of the recognized state or government are validated
retroactively, preventing the recognizing state from passing
upon their legality in its own courts.[Ibid]

What is Recognition of Belligerency?

A belligerency is supposed to be a merely internal affair of the
state and does not produce international repercussion. But when the
conflict widens and aggravates, it may be necessary, for practical
reasons, to consider the formal recognition of the belligerent
community. Such recognition is usually extended where the following
conditions are established:
a) There must be an organized civil government directing the rebel
forces.;
b) The rebels must occupy a substantial portion of the territory of
the state.
 79

c) The conflict between the legitimate government and the rebels

must be serious, making the outcome uncertain.
d) The rebels must be willing and able to observe the laws of war.
[Ibid]

What are the consequences of recognition of belligerency?

They are as follows:
a) Upon recognition by the parent state, the belligerent community
is considered a separate state for purposes of the conflict it is
waging against the legitimate government. Thus:
1) their relations with each other shall, for the duration of
hostilities, be governed by the laws of war, and their
relations with other states shall be subject to the laws
of neutrality;
2) the troops of either belligerent, when captured, shall
be treated as prisoners of war;
3) the parent state shall no longer be liable for any
damage that may be caused to third states by the
rebel government;
4) both belligerents may exercise the right of visit and
search upon neutral merchant vessels;
5) the rebel government, equally with the legitimate
government, shall be entitled to full war status as
regards all other states and may establish blockades,
maintain prize courts and take other allowable war
measures.
b) Where recognition is extended by third states, the above
consequences are effective only as to them and do not
bind other states not extending recognition. It is only where
the recognition is made by the parent state that the effects
thereof become general and are legally applicable to all
other states. [Ibid]
 80

CHAPTER VIII:
TREATMENT OF ALIENS
 81

What is the concept of protection of aliens?

No states is obliged to admit aliens into its territory unless there
is a treaty requiring it. This springs from sovereignty of the state.
Though, it is difficult to deny admission to all. Hence, states impose
legal standards for admission and once admitted, at least under
democratic regimes, aliens may not be expelled without due process.
From the perspective of the state of their nationality, aliens are
“nationals abroad”. Therefore, they remain important for the state of
their nationality. Thus, states have common interest in the protection
of aliens. [Bernas, 2009]

What is the doctrine of state responsibility?

Under this doctrine, a state may be held responsible for:
a) An international delinquency,
b) directly or indirectly imputable to it,
c) which causes injury to the national of another state.
Under this doctrine, liability will attach to the state where its
treatment of the aliens fall below the international standard of justice
or where it is remiss in according him the protection or redress that is
warranted by the circumstances. (Cruz, 2000)

What are the two kinds of state responsibility?

a) Direct state responsibility attaches where the international
delinquency was committed by superior government officials or
organs like the chief of state or the national legislature as their
acts may not be effectively prevented or reversed under the
constitution and laws of the state.
b) Indirect state responsibility results where the offense is
committed by inferior government officials or, more so, by
private individuals, although the state will be held liable if, by
reason of its indifference in preventing or punishing it, it can be
considered to have connived in effect in its commission. [Ibid]
 82

What is an international wrongful act?

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.
(Art. 2, Articles on Responsibility of States for Internationally
wrongful Acts, International Law Commission, 2001) [Bernas,
2009]

What is international standard of justice?

It has no precise definition. It is described as the standard of
the reasonable states, as referring to the ordinary norms of official
conduct observed in civilized jurisdictions. [Cruz, 2000]

What is the concept of diplomatic protection?

It is the instrument used for the protection of aliens which is
based on the traditional notion that the individual is an inappropriate
subject of international law and must have recourse to his or her state
of nationality for protection. The theory underlying the system is that
injury to a national abroad is injury to the individual’s state of
nationality. Thus, the interest of the state is in the redress of the
injury to itself and not of the injury to the individual.[Bernas, 2009]

What are the two standards for the protection of aliens?

They are as follows:
a) “national treatment” or “equality of treatment”
Aliens are treated in the same manner as nationals of the
state where they reside. Here, aliens would enjoy the same benefits
as local nationals but if the state is tyrannical and its municipal
laws are harsh and violative of human rights even to its citizens,
then aliens would likewise be subject to such harsh laws.
b) minimum international standard
 83

However harsh the municipal laws might be against a

state’s own citizens, aliens should be protected by certain minimum
standards of humane protection.

What conducts are attributable to the state?

In Chapter 2 of the Responsibility of States for Internationally
Wrongful Acts, the following conducts are considered as acts of state;
to wit:
a) The conduct of any of its organs, whether exercising legislative,
executive, judicial or any other functions. (Art.4)
b) The conduct of a person or entity which is empowered by the
law of that State to exercise governmental authority provided
the person or entity is acting in that capacity in the particular
instance. (Art.5)
c) The conduct of a person or group of persons that is in fact
acting on the instructions of, or under the direction or control of,
that State in carrying out the conduct. (Art.8)
d) The conduct of a person or group of persons that is in fact
exercising governmental authority in the absence or default of
the official authorities and in circumstances such as to call for
the exercise of that authority. (Art. 9)
e) The conduct of an insurrectional movement which becomes the
new Government of a State. (Art.10[1])
f) The conduct of a movement, insurrectional or other, which
succeeds in establishing a new State in part of the territory of a
pre-existing State or in a territory under its administration, shall
be considered an act of the new State. (Art.10[1])
g) Conduct which the State acknowledges and adopts as its own.
(Art.11) [Sarmiento, 2007]
 84

What is the concept of failure of protection or redress?

Under this concept, a state may still be held liable even if its
laws conform to the international standard of justice if:
a) It does not make reasonable efforts to prevent injury to the
alien; an
b) having done so unsuccessfully, fails to repair such injury. [Cruz,
2000]

What is the concept of exhaustion of local remedies?

Under this concept, even when the liability of the state has
already been established, its enforcement cannot be claimed by the
injured foreigner unless he first exhausts all available local remedies
for the protection or vindication of his rights.(Schwarzenberger, 166)
[Ibid]
It is generally accepted that the state must be given an
opportunity to do justice in its own regular way and without
unwarranted interference with its sovereignty by other states. [Ibid]
“ …where there is a judicial remedy, it must be sought; and only
if it is sought in vain does diplomatic interposition become proper.”
(Harvard Research Draft on the Responsibility of States, 23 A.J.I.L.,
Sp. Supp.133) [Ibid]

What are the exceptions to the adherence to the concept of

exhaustion of local remedies?
They are as follows:
a) there are no remedies to exhaust;
b) where the laws are intrinsically defective;
c) where there is laxity or arbitrariness in their enforcement;
d) where the courts are corrupt;
e) where there is no adequate machinery for the administration of
justice; or
 85

f) “acts of state” which are not subject to judicial review. [Ibid]

When may an injured foreigner resort to diplomatic protection?

If he has exhausted all local remedies but without success, he
may then avail himself of the assistance of his state – but only if he
has a state. If he has no state, he will have no party to represent him,
and he by himself, being a mere individual, cannot institute his claim
in his own name.[Ibid]

How important is the tie of nationality in seeking diplomatic

protection?
The tie of nationality is required to exist from the time of the
injury until the time the international claim is finally settled.
(Schwarzenberger, 169) When this tie is broken, the claim itself is
deemed automatically abated. If, therefore, the injured national dies
while the claim is under consideration and it should happen that his
heirs are not nationals of the claimant state, the claim will lapse.
Though this requirement may now yield to the view that the
individual as such should be allowed to institute an international claim
against a foreign state for violation of his own personal rights. [Ibid]

What constitutes enforcement of claim?

An international claim for damages may be resolved through
negotiation or, if this fails, any of the other methods of settling
disputes, like good offices, arbitration, and judicial settlement. There
have been cases also where hostile and forcible measures have
been employed and when war itself has been resorted to as means of
compelling compliance with the demands of the injured state.
When state responsibility is established or acknowledged, the
duty to make reparation will arise which may either take the form of
restitution (an obligation to re-establish the situation which existed
before the wrongful act was committed, provided it is not materially
impossible- Responsibility of States for Internationally Wrongful
Acts,Art35 ) or, where this is not possible, satisfaction (When the
 86

injury cannot be made good by restitution or compensation, it may

consist in an acknowledgement of the breach, an expression of
regret, a formal apology or another appropriate modality, but it shall
not be out of proportion to the injury and may not take a form
humiliating to the responsible State-Ibid, Art 37) or compensation
(an obligation to compensate for the damage caused thereby, insofar
as such damage is not made good by restitution; shall cover any
financially assessable damage including loss of profits insofar as it is
established-Ibid,Art 36), , or all three of these together. Thus, the
settlement may consist of the restoration or replacement of the
object of the offense, a formal apology by the delinquent state
and payment of damages as well. [Ibid]

How can state responsibility be avoided?

Under the Calvo clause, which is sometimes incorporated by
local states in contracts , an alien waives or restricts his right to
appeal to his own state in connection with any claim arising from the
contract and agrees to limit himself to the remedies available under
the laws of the local state. [Ibid]
But this was rejected in North American Dredging Company
Claim (1926) by the Mexico-US General Claims Commission.
Accordingly, the right to seek redress is a sovereign prerogative of a
state and a private individual has no right to waive the state’s right.

Distinguish Calvo Doctrine from the Calvo Clause.

The Calvo doctrine makes the state not responsible for losses
suffered by aliens in time of civil war. This doctrine is named after
Argentine jurist Carlos Calvo who argued in his treaties on
International Law (Derecho internacional teurico y practico de Europa
y America [1868]) that a state could not accept responsibility for
losses suffered by foreigners as a result of civil war or insurrection,
on the ground that to admit responsibility in such cases would be to
menace the independence of weaker states by subjecting them to the
intervention of strong states, and would “establish an unjustifiable
inequality between nationals and foreigners.”
 87

Calvo clause on the other hand, is used chiefly in contracts

between a government and aliens. It prevents appeals by aliens to
their home governments for diplomatic intervention in behalf of their
contract rights. Its general tenor is that the alien agrees that any
dispute that might arise out of the contract is to be decided by the
national courts in accordance with national law and is not to give rise
to any international reclamation. In some cases, the alien is to be
“considered a national” for the purpose of the contract. (Fenwick,
292) [Sarmiento, 2007]

What are the preliminary objections which if not answered may

lead to the loss of the claim of denial of justice?
The claim of denial of justice in cases founded on diplomatic
protection or on injury to aliens, may be lost due to failure to answer
some preliminary objections which include lack of nationality link
and failure to exhaust national remedies. [Bernas, 2007]

How is expropriation of alien property done to avoid committing

an international wrong?
The expropriation “shall be based on grounds or reasons of
public utility, security or the national interest which are recognized as
overriding purely individual or private interests, both domestic and
foreign. In such cases the owner shall be paid appropriate
compensation in accordance with the rules in force in the state taking
such measures in the exercise of its sovereignty and in accordance
with international law.”

What is the concept of exclusion of aliens?

State liability to aliens may also be avoided by refusing their
admission. Though, this is not regarded as sound policy since it
would provoke retaliation in kind and ultimately isolate its nationals
from the rest of the international community. Conversely, it would not
be advisable either if the entry of aliens were allowed indiscriminately
because they might pose a danger to the welfare and especially the
security of the admitting country. Thus, the practice of most states
 88

now is to regulate the immigration and stay of aliens and to provide

for their deportation whenever warranted. In proper cases,
arrangements may also be made for the extradition of alien fugitives.
[Cruz, 2000]

What is the difference between deportation and exclusion?

Deportation is the removal of an alien out of the country, simply
because his presence is deemed inconsistent with the public welfare,
and without any punishment being imposed or contemplated, either
under the laws of the country out of which he is sent, or under those
of the country to which he is taken. While exclusion is the denial of
entry to an alien. [Ibid]

What is the concept of Extradition?

It is the surrender of a person by one state to another state
where he is wanted for prosecution or, if already convicted, for
punishment.
It differs from deportation because it is effected at the request
of the state of origin whereas deportation is the unilateral act of the
local state; it is based on offenses generally committed in the state of
origin whereas deportation is based on causes arising in the local
state; and it calls for the return of the fugitive to the state of origin
whereas an undesirable alien may be deported to a state other than
his own or the state of origin. [Ibid]

What is the basis of extradition?

It is based on treaty between the state of refuge and the state
of origin. In the absence of such treaty, the local state has every right
to grant asylum to the fugitive and to refuse to deliver him back to the
latter state even if he is its national. If, notwithstanding this right, the
surrender requested is still effected by the state of asylum, it is not
because of a demandable duty on its part but in pursuance of policy
or as a gesture of comity. [Ibid]
 89

What are the fundamental principles of extradition?

They are as follows:
1) Extradition is based on the consent of the state of asylum as
expressed in a treaty or manifested as an act of goodwill.
(Fenwick, 331]
2) Under the principle of specialty, a fugitive who is extradited may
be tried only for the crime specified in the request for extradition
and included in the list of offenses in the extradition treaty. (US
vs Rauscher, 119, US 407) If he is charged with any other
offense committed before his escape, the state of refuge- and
not the accused- has a right to object; nevertheless, the
prosecution will be allowed if the extraditing state agrees or
does not complain.
3) Any person may be extradited, whether he be a national of the
requesting state, of the state of refuge or of another state.
(Oppenheim-Lauterpacht,698) The practice of many states
now, is not to extradite their own nationals but to punish them
under their own laws in accordance with the nationality principle
of criminal jurisdiction.
4) Political and religious offender are generally not subject to
extradition. It has been held that “in order to constitute an
offense of a political character, there must be two or more
parties in the state, each seeking to impose the government of
their own choice on the other.” (In re Meunier, 2 Q.B. 415,
1984)

What is attentat clause?

Under this clause, the murder of the head of state or any
member of his family is not to be regarded as apolitical
offense for purposes of extradition.
5) In the absence of special agreement, the offense must have
been committed within the territory or against the interests of
the demanding state.
 90

6) The act for which the extradition is sought must be punishable

in both the requesting and requested states under what is
known as the rule of double criminality.

What are the differences between an extradition proceeding and

a criminal proceeding?
They are as follows:
1) extradition proceeding (ep) is summary in nature while criminal
proceedings (cp) involve a full-blown trial;
2) in contradistinction to a cp, the rules of evidence in ep allow
admission of evidence under less stringent standards;
3) a criminal case requires proof beyond reasonable doubt for
conviction while a fugitive may be ordered extradited “upon
showing of the existence of a prima facie case.”
4) In a criminal case, judgment becomes executor upon being
rendered final, while in ep, our courts may adjudge an individual
extraditable but the President has the final discretion to
extradite him. (Secretary of Justice vs Lantion, Oct 17, 2000)

Is the right to bail applicable in extradition cases?

In Rodriguez vs Judge (Feb 27, 2006), the Court held that bail
may be granted to a possible extradite only upon a clear and
convincing showing:
a) That he will not be a flight risk or a danger to the community;
and
b) That there exist special, humanitarian and compelling
circumstances.

What is reconduction to the border?

Reconduction to the border is the forcible expulsion of
undesirable aliens by arresting them and reconducting them to the
 91

border or their home state. It is a police to police expulsion without

any conditions and without judicial intervention. [Sarmiento, 2007]

What is “disguised extradition?

There is “disguised extradition” where deportation is used to
achieve extradition. [Ibid]

What is irregular rendition?

Irregular rendition is a practice of some states that is borne of
frustration caused by the unwillingness of a country upon which a
valid extradition request has been made to carry out its international
obligation. Example: When US retrieved John Surratt, who was
accused of conspiracy in the assassination of Abraham Lincoln.
Surrat was snatched forcibly by US agents from Alexandria, Egypt,
where he had fled following the assassination. (Newhouse)
[Sarmiento, 2007]

What are the different varieties of irregular renditions?

They are as follows:
a) Transnational forcible abduction
- One sovereign may simply kidnap the culprit seeking refuge
in a foreign land, an action that is invariably against the law
of the foreign jurisdiction.
- Example is the 1960 kidnapping of Adolph Eichmann by
Israeli agents in Argentina. Eichmann was one of the
principal participants in Hitler’s Final Solution.
b) Informal surrender or “disguised extradition”
- Without process, the foreign jurisdiction may simply grant
permission or silently accede to the requesting state’s
demand for the surrender of the fugitive or it may
affirmatively move to deport or expel him or her.
c) Lures
 92

- Tricked by subterfuge or deception, the fugitive may be lured

from an extradition refuge to the territory of the pursuing
State, international waters, or to another country permitting
extradition to the pursuing State.(Newhouse) [Sarmiento,
2007]

What is the Ker-Frisbie Doctrine

It is a doctrine that holds that criminal defendants may be tried
regardless of whether their presence before the court was secured
from outside its territorial jurisdiction by means other than pursuant to
a valid extradition.[Ibid]

 93

CHAPTER IX:
TERRITORY

 94

Acquisition and Loss of Territory

What are the modes of acquiring and losing territory?
They are as follows:
1. Acquisition
a. Discovery and occupation
It is an original mode of acquisition by which territory not
belonging to any state, or terra nullius, is placed under the
sovereignty of the discovering state.
The territory need not be uninhabited provided it can be
established that the natives are not sufficiently civilized and can
be considered as possessing not rights of sovereignty but only
rights of habitation. (Cruz, 2000)
Discovery of terra nullius is not enough to establish
sovereignty. It must be accompanied by effective control as
held in the Las Palmas Case (Permanent Court Arbitration,
1928) [Bernas, 2009]

Effective control is relative and may depend on the nature

of the case – e.g. whether the territory is inhabited or not and
how fierce the occupants are. Where there are two or more
claimants to a territory, effective control is also relative to the
strength of claims. (Eastern Greenland Case PCIJ 1933)
[Bernas, 2009]

What is hinterland doctrine?

Under the hinterland doctrine, the state that discovers and

occupies the coast shall also have an exclusive right to occupy the
hinterland, i.e. the inland region lying behind a port. [Sarmiento, 2007]

What is the doctrine of inchoate title?

It means that since an effective occupation must usually

be a gradual process it is considered that some weight should be
given to mere discovery, and it is regarded therefore as giving an
 95

“inchoate title”, that is to say, a temporary right to exclude other

states until the

State of the discoverer has had a reasonable time within which

to make an effective occupation, or a sort of option to occupy which
other states must respect while it lasts. (Briely, 154) [Ibid]

b. Prescription
Like occupation, it requires effective control. But unlike
occupation, the object of prescription is not terra nullius. Thus, the
required length of effective control is longer than in occupation.
Prescription, might however, be negated by a demonstrated lack of
acquiescence by the prior occupant. (Las Palmas Case) [Bernas,
2009]

c. Cession
It occurs when the acquiring sovereign derives its title to a
new territory by the ceding sovereign’s transferring to it the supreme
power over that territory. Sovereigns can effect cession only in a
treaty between the ceding and acquiring sovereigns. Cession
requires possession or occupation by the acquiring sovereign. When
such occupation takes place, the subjects domiciled in the newly
acquired insular area become nationals of the acquiring
sovereign.(Perl, 13) [Sarmiento, 2007]

d. Subjugation
Territory is deemed acquired by subjugation when, having
been previously conquered or occupied in the course of war by the
enemy, it is formally annexed to it at the end of that war. Conquest
alone confers only an inchoate right on the occupying state; it is the
formal act of annexation that completes the acquisition. (Cruz,
2000)
 96

e. Accretion and Avulsion

These can also lead to sovereignty over territory. This is
sovereignty by operation of nature. Accretion is the gradual increase
of territory by the action of nature while avulsion is a sudden change
resulting for instance from the action of a volcano. [Bernas,2009]

2. Loss
a. Abandonment or dereliction
Territory is lost by dereliction when the state exercising
sovereignty over it physically withdraws from it with the
intention of abandoning it altogether. Two conditions must
concur, namely, the act of withdrawal and the intention to
abandon.

b. Cession
It is a method by which territory is transferred from one
state to another by agreement between them. It being essentially
consensual, transfer of title is effected upon the meeting of the
minds of the parties and does not have to bide the actual
delivery of the ceded territory to the acquiring state.

c. Subjugation
Territory is lost through conquest during war.

d. Prescription
It requires long, continued and adverse possession to
vest acquisitive title in the claimant.

e. Erosion
f. Revolution
g. Natural causes (Cruz, 2000)
 97

What are the components of territory?

They are the following:
1. Terrestrial domain
It refers to the land mass, which may be integrate, as in
the case of Iran, or dismembered, as in the case of the US, or
partly bounded by water like Burma, or consist of one whole island
like Iceland. It may also be composed of several islands, like the
Philippines and Indonesia, which are known as mid-ocean
archipelagoes, as distinguished from the coastal archipelagoes like
Greece. [Ibid]

What are State boundaries or frontiers?

They are the barriers distinguishing one state’s territory
from another state’s territory. They extend not only across but both
upwards and downwards into the airspace and subsurface areas.
Boundaries are most often determined by agreements between
parties, rather than being dictated by principles of International Law.
(Malone, 48) [Sarmiento, 2007]

2. Maritime and fluvial domain

It consists of the bodies of water within the land mass and
the waters adjacent to the coasts of the state up to a specified limit.
This includes the internal waters in the land-locked lakes, the rivers
and man-made canals within the land mass, and in certain bays, gulfs
and straits, as well as the external waters in the territorial sea. [Ibid]

a. Rivers
They may be classified into national, multi-national,
international, and boundary. National rivers are those that are
situated completely in the territory of one state (Pasig River) as
distinguished from the multinational rivers (Congo River in
Africa,Mekong River in Asia) that flow through the territories of
several states. An international river is one that is navigable from
 98

the open sea and is open to the use of vessels from all states
(Rhine and Danube). Boundary river divides the territories of the
riparian states (St. Lawrence River between Canada and the US).
[Ibid]

b. Bay
It is a well-marked indentation whose penetration is in
such proportion to the width of its mouth as to contain land-locked
waters and constitute more than a mere curvature of the coast. An
indentation shall not, be regarded as a bay unless its area is as large
as or larger than that of a semi-circle whose diameter is a line drawn
across the mouth of that indentation. [Ibid]

What are historic bays?

They are those whose waters have always been
considered internal by the international community
notwithstanding that their openings are more than 24 miles in
width. Examples: Bay of Cancale in France; the Bay of El Arab in
Egypt; Chesapeake Bay in the US, Hudson Bay in Canada and
the Zuyder Zee in Holland. [Ibid]

What is the Thalweg doctrine?

It aims to resolve water boundary disputes. According to
this doctrine, the boundary between two states divided by a flowing
body of water should be drawn along the thalweg, which is the
deepest portion of the channel. [Sarmiento, 2007]

c. Territorial sea
It may be described as the belt of waters adjacent to the
coasts of the state, excluding the internal waters in bays and
gulfs, over which the state claims sovereignty and jurisdiction. [Ibid]
 99

What were the three (3) UN Conferences on the Law of the

Sea?
1. The First Conference was held in 1958 at Geneva, Switzerland
and resulted in the adoption of the Convention on the Territorial
Sea and the Contiguous Zone, the Convention on Fishing and
the Living Resources of the High Seas, and the Convention on
the Continental Shelf.
But it failed to define the breadth of the territorial sea; and,
moreover, the Conventions adopted therein were ratified by only
forty states. The Philippines did not ratify because of the
absence of provisions recognizing the archipelago doctrine it was
advocating.

2. The Second Conference was held in in 1960, again at Geneva,

but it also left unresolved the question of the breadth of the
territorial sea.

3. The Third Conference in 1970 by the UN, led to the adoption of

a new Convention on the Law of the Sea, which was signed in
Jamaica in 1982 by 119 of the 150 conferee-states. This
Convention took effect on November 16, 1994, after its
ratification by more than the required 60 of the signatory states.
(Cruz, 2000)
Also known as the Convention on the Law of the Sea of 1982,
it is now the prevailing law on maritime domain. Many of its
provisions are a repetition of earlier convention law or a codification
of customary law. Territorial sea is now the belt of sea outwards
from the baseline and up to 12 nautical miles beyond. Where the
application of the 12 mile rule to neighboring littoral states
would result in overlapping, the rule now established is that the
dividing line is a median line equidistant from the opposite
baselines. But the equidistance rule does not apply where
historic title or other special circumstances require a different
measurement, Article 15, 1982 LOS. [Bernas, 2009]
 100

What is baseline?
It is the low-water mark along the coast from which the belt of
the territorial sea is measured. (UNCLOS, Art 3) [Sarmiento 2007]

What determines the validity of baseline delineations?

The validity of baseline delineations is determined by
International Law.(Fisheries Case) [Ibid]
Two ways to draw the baseline:
1. Normal baseline is one drawn following the “low-water line
along the coast as marked on large-scale charts officially
recognized by the coastal State.” This line follows the
curvatures of the coast and therefore would normally not
consist of straight lines.
2. Straight baseline method uses straight lines which are
drawn connecting selected points on the coast without
appreciable departure from the general shape of the coast.
[Bernas, 2009]

What are the limitations on the use of straight-baseline method?

The ICJ imposed the following limitations on the use of the
straight-baseline method:
a) The baseline must not depart to any appreciable extent from
the general direction of the coast;
b) The areas lying within these lines must be particularly closely
linked to the land formations which divide or surround them;
c) Account should be taken of certain economic interests peculiar
to a region when their reality and importance are clearly
evidenced by a long usage. (UK vs Norway, UNCLOS, Art.7) [
Sarmiento, 2007]
 101

Distinguish the territorial sea and the internal waters of the

Philippines.
The territorial sea is an adjacent belt of sea which may extend
up to a breadth of 12 nautical miles from the baseline over which the
sovereignty of a coastal State extends. (UNCLOS, Arts. 2,3)
Article 1 of the 1987 Constitution defines the internal waters of
the Philippines as “the waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and
dimensions.” Under Article 7 of the LOS Convention, waters on the
landward side of the baseline of the territorial sea form part of the
internal waters of the State. [Sarmiento, 2007]

What is the concept of sovereignty over territorial sea?

The sovereignty of the coastal state over its territorial sea and
the airspace above it as well as the seabed under is the same as its
sovereignty over its land territory. (Art 2, LOS)
However, the sea is subject to the right of innocent passage by
other states. The rule on innocent passage applies to ships and
aircraft. Submarines must surface. [Bernas,2009]

May a foreign nuclear-powered ship and the ships carrying

nuclear or other inherently dangerous or noxious substances
exercise the right of innocent passage through the territorial sea
of another state?
Yes, however, they should carry documents and observe
special precautionary measures established for such ships by
international agreements. (UNCLOS, Art 23) [Sarmiento,2007]

What is innocent passage?

It is passage that is not prejudicial to the peace, good order or
security of the coastal state. Coastal states have the unilateral right
to verify the innocent character of passage, and it may take the
necessary steps to prevent passage that it determines to be not
 102

innocent. The rule on innocent passage is also applicable to Corfu

Channel Case (UK vs Albania, 1949, ICJ Rep). [Ibid]

When is delayed or discontinuous passage allowed?

The passage shall be continuous and expeditious. However,
passage may include stopping and anchoring, but only in the
following cases:
a) The delayed passage is incidental to ordinary navigation;
b) It is rendered necessary by force majeure or distress; or
c) For the purpose of rendering assistance to persons, ships or
aircraft in danger or distress. (UNCLOS, Article 18{2}) [Ibid]

What is the right of transit passage?

It means the exercise of the freedom of navigation and
overflight solely for the purpose of continuous and expeditious transit
of the strait between one part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive
economic zone and another part of the high seas or an exclusive
economic zone.
This requirement of continuous and expeditious transit does not
preclude passage through the strait for the purpose of entering,
leaving or returning from a State bordering the strait, subject to the
conditions of entry to that State. (UNCLOS, Art 38{2}) [Ibid]

Differentiate transit passage from innocent passage.

a) Transit passage applies through straits, while innocent
passage applies through territorial seas;
b) Transit passage covers navigation and overflight by aircrafts,
while innocent passage covers navigation only;
c) Transit passage may not be unilaterally suspended while
innocent passage may be unilaterally suspended.
(UNCLOS, Art. 25{3}) [Ibid]
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What are internal waters?

They are all waters (part of the sea, rivers, lakes, etc)
landwards from the baseline of the territory. Sovereignty over these
waters is the same extent as sovereignty over land, and it is not
subject to the right of innocent passage. [Ibid]

Do merchant vessels have a right of access to the ports of

another state?
Yes, the freedom of access to ports by foreign merchant
vessels is a rule of custom conditioned upon reciprocity. But,
landlocked nations may not be denied freedom on access to ports of
another solely because of their inability to reciprocate. (UNCLOS, Art
131) [Ibid]

May a coastal state deny access to its ports to foreign vessels?

The ports of every coastal state must be open to foreign
vessels, as a rule. Though their ports may be closed but only when
the vital interest of the state so require. (Saudi Arabia vs ARAMCO,
Award of August 23, 1938)

What are the principal theories on the jurisdiction of authorities

of a coastal state over crimes committed on board foreign
merchant ships which enter or dock in its ports? Which of the
theories is followed in this jurisdiction?
a) Under the English rule, the coastal state shall have
jurisdiction over all offenses committed on board such
vessels, except only where they do not compromise the
peace of the port.
b) Under the French rule, the flag state shall have jurisdiction
over all offenses committed on board such vessels, except
only where they compromise the peace of the port. (Cruz,
2000)
It is the English rule that is applicable in this jurisdiction.
(People vs Wong Cheng, GR No. L-18924, October 19, 1922)
 104

What are archipelagic waters?

They are internal waters areas enclosed after the straight
baseline, pursuant to the method set forth in Article 7 (Law of the
Sea) has been established. [Ibid]

Is there a right of innocent passage through archipelagic

waters?
Yes. Article 52 of the LOS Convention provides that ships of all
states enjoy the right of innocent passage through archipelagic
waters. But this right cannot be invoked inside the closing lines within
the archipelagic waters which had been drawn for the delimitation of
internal waters. (UNCLOS, Art.50) [Ibid]

What are the limitations on the right of an archipelagic state to

suspend the right of innocent passage of foreign ships in
archipelagic waters?
They are as follows:
a) The suspension is made without discrimination in form or in fact
among foreign ships;
b) The suspension is only temporary;
c) It must specify the areas of its archipelagic waters where
innocent passage shall not be allowed;
d) Such suspension is essential for the protection of its security;
and
e) Such suspension shall take effect only after having been duly
published. (UNCLOS, Art. 52{2}) [Ibid]

What is archipelagic sea lanes passage?

Under Article 53(3) of the UNCLOS, it means the exercise in
accordance with the LOS Convention of the rights of navigation and
over flight in the normal mode solely for the purpose of continuous,
expeditious and unobstructed transit between one part of the high
seas or an exclusive economic zone. [Ibid]
 105

Is there a right of archipelagic sea lanes passage?

Yes, under UNCLOS Article 53 (1, 2) an archipelagic state may
designate sea lanes and air routes above, suitable for the continuous
and expeditious passage of foreign ships and aircraft through or over
its archipelagic waters and the adjacent territorial sea. All ships and
aircraft enjoy the right of archipelagic sea lanes passage in such sea
lanes and air routes. [Ibid]

Define archipelago and archipelagic state.

An archipelago means a group of islands, including parts of
islands, interconnecting waters and other natural features which are
so closely interrelated that such islands, waters and other natural
features form an intrinsic geographical, economic and political entity,
or which historically have been regarded as such.
An archipelagic state means a state constituted wholly by one
or more archipelagos and may include other islands. (UNCLOS, Art
46) [Sarmiento, 2007]

What is the archipelagic theory?

The archipelagic theory considers a group of islands which are
so closely interrelated and their interconnecting waters as one
geographical unit. The theory allows an archipelagic baselines
joining the outermost points of the outermost islands and drying reefs
of the archipelago. The waters regardless of their depth or distance
from the coast, and within these archipelagic waters, the archipelagic
state may draw closing lines for the delimitation of its internal waters.
(UNCLOS, Arts. 46, 47, 50) [Ibid]

What is contiguous zone?

It is the area of water not exceeding 24 nautical miles from the
baseline. It thus extends 12 nautical miles from the edge of the
territorial sea. The coastal state exercises authority over that area to
the extent necessary to prevent infringement of its customs, fiscal,
 106

immigration or sanitation authority over its territorial waters or territory

and to punish such infringement.(Article 33, 1 & 2) [Ibid]

What is exclusive economic zone or “patrimonial sea”?

It is an area extending not more than 200 nautical miles beyond
the baseline. The coastal state has rights over the economic
resources of the sea, seabed and subsoil – but the right does not
affect the right of navigation and overflight of other states. This is a
compromise between those who wanted a 200-mile territorial sea and
those who wanted to reduce the powers of coastal states.
The provisions on the exclusive economic zone are both a
grant of rights to and an imposition of obligations on coastal states
relative to the exploitation, management and preservation of the
resources found within the zone. [Ibid]

What are the two primary obligations of the coastal states?

1. They must ensure through proper conservation and
management measures that the living resources of the EEZ are
not subjected to over-exploitation which includes the duty to
maintain and restore populations of harvested fisheries at levels
which produce a “maximum sustainable yield.”
2. They must promote the objective of “optimum utilization” of the
living resources thus they should determine the allowable catch
of living resources. If the coastal state does not have the
capacity to harvest the allowable catch, it must grant access to
other states. (Arts. 55 to 75) [Ibid]
The delimitation of the overlapping exclusive economic zone
between adjacent states is determined by agreement.

What is continental shelf?

Otherwise known as archipelagic or insular shelf for
archipelagos refers to a) the seabed and subsoil of the submarine
areas adjacent to the coastal state but outside the territorial sea, to a
depth of two hundred meters or, beyond that limit, to where the depth
 107

allows exploitation, and b) the seabed and subsoil of areas adjacent

to islands.
The coastal state has the right to explore and exploit its natural
resources, to erect installations needed, and to erect a safety zone
over its installations with a radius of 500 meters. The right does not
affect the right of navigation of others. Moreover, the right does not
extend to non-resource materials in the shelf area such as wrecked
ship and their cargoes. [Ibid]

What are the three competing views regarding the legal regime
governing the exploitation of the mineral resources of the deep
sea bed?
They are as follows:
a) “Common heritage of mankind” view is adopted by the UN
General Assembly in the Declaration of Principles Governing
the Sea-Bed and the Ocean Floor, and the Subsoil Thereof
Beyond the Limits of National Jurisdiction (Resolution No. 2749
[XXV], December 17, 1970.) It declared that:
1) The sea-bed and ocean floor, and the subsoil thereof,
beyond the limits of national jurisdiction (referred to as area),
as well as the resources of the area, are the common
heritage of mankind;
2) The area shall not be subject to appropriation by any means
by states of persons, natural or juridical, and no state shall
claim sovereignty or sovereign rights over any part thereof;
3) The area shall be open to use exclusively for peaceful
purposes by all states, whether coastal or landlocked,
without discrimination;
4) The exploration of the area and the exploitation of its
resources shall be carried out for the benefit of mankind as a
whole.
b) “Freedom of the high seas” view considers the deep seabed
and the subsoil as part of the freedom of the high seas that are
open for exploration and exploitation by any state but not
subject to exclusive claims or appropriation;
c) “Res nullius view” regards the sea bed and the subsoil as
owned by no one and may be explored and exploited by the
 108

first state which claims the area to the exclusion of other states.
[Sarmiento, 2007]

What is an island?
Under Article 121 of the LOS, an island is a naturally formed
area of land, surrounded by water, which is above water at high tide.
It can have its own territorial sea, exclusive zone and continental
shelf. However, rocks “which cannot sustain human habitation or
economic life” only have a territorial sea.
Artificial islands or installations are not islands in the sense of
Article 121. But coastal states may establish safety zones around
artificial islands and prescribe safety measures around them. (Art.
60{4} and {5}) [Bernas, 2009]

What are high seas?

They are all parts of the sea that are not included in the
territorial sea or in the internal waters of a State. (Article 1, Geneva
Convention)
The high seas are subject to six freedoms:
a) Freedom of navigation;
b) Freedom of overflight;
c) Freedom of fishing;
d) Freedom to lay submarine cables and pipelines;
e) Freedom to construct artificial islands and structures; and
f) Freedom of scientific research.

What is hot pursuit ?

Under Article 111 of the LOS, hot pursuit of a foreign vessel is
allowed where there is good reason to believe that the ship has
violated laws or regulations of a coastal state. The pursuit must start
when the foreign vessel is within the internal waters, the archipelagic
waters, the territorial waters or the contiguous zone of the pursuing
state. Without being interrupted, the pursuit may continue into the
high seas. If the foreign vessel is in the contiguous zone, it may be
 109

pursued only for violations of the rights of the coastal state in the
contiguous zone.
Hot pursuit also applies to violations of applicable laws and
regulations of the coastal state in the exclusive economic zone of the
continental shelf including the safety zones of the shelf.
It must stop as soon as the ship pursued enters the territorial
waters of its own state or of a third state.
It may be carried out only by warships or military aircraft, or any other
ship or aircraft properly marked for that purpose. [Bernas, 2009]

What is the aerial domain?

It is the airspace above the terrestrial domain and the maritime
and fluvial domain of the state to an unlimited altitude but not
including outer space.
Every State “has complete and exclusive sovereignty over the
airspace above its territory”. (Paris Convention on Aerial Navigation;
and Chicago Convention on International Civil Aviation) [Cruz, 2000]

What is the authority of a State over the airspace above the high
seas?
The airspace above the high seas shall be free from the control
or sovereignty of any state. [Sarmiento, 2007]

What are the five air freedoms?

1) Overflight or the privilege to fly across its territory without
landing;
2) Non-traffic landing or the privilege to land for non-traffic
purposes;
3) Putting down traffic or the privilege to put down passengers,
mail and cargo taken on in the territory of the State whose
nationality the aircraft possesses;
 110

4) Picking up traffic or the privilege to take on passengers, mail

and cargo destined for the territory of the State whose
nationality the aircraft possesses; and
5) International traffic or the privilege to take on passengers, mail
and cargo destined for the territory of any other contracting
State and the privilege to put down passengers, mail and cargo
coming from any such territory. [Ibid]

What is outer space?

It is the region beyond the earth’s atmosphere and is not
subject to the jurisdiction of any state.
Outer space, including the moon and other celestial bodies,
shall be free for exploration and use by all states without
discrimination of any kind, on a basis of equality and in accordance
with international law.
It is not subject to national appropriation by claim of
sovereignty, by means of use or occupation or by any other means.
[Cruz, 2000]

Which state shall retain jurisdiction and control over launched

into outer space?
The State launching an object into outer space shall retain
jurisdiction and control over such object, and over any personnel
thereof, while in outer space or on a celestial body. [Ibid]

Which State shall be internationally liable for any damage that

may be caused by such object to another state or to any
person?
It shall be the state launching the object into outer space.
 111

CHAPTER X:
JURISDICTION OF STATES
 112

What is jurisdiction?
It is the authority exercised by a state over persons and things
within or sometimes outside its territory, subject to certain exceptions.
(Cruz, 2000)
Jurisdiction also means the authority to affect legal interests.
With respect to the powers of the government, jurisdiction can be: 1)
jurisdiction to prescribe norms of conduct (legislative jurisdiction; 2)
jurisdiction to enforce the norms prescribed (executive jurisdiction),
and 3) jurisdiction to adjudicate (judicial jurisdiction). [Bernas, 2009]

What may be subject to the jurisdiction of a state?

Jurisdiction may be exercised by a state over:
1) its nationals;
2) the terrestrial domain;
3) the maritime and fluvial domain;
4) the continental shelf;
5) the open seas;
6) the aerial domain;
7) outer space; and
8) other territories. (Cruz, 2000)

What are the two kinds of jurisdiction? (Cruz, 2000)

It can be generally classified as personal and territorial.

1. Personal jurisdiction
It is the power exercised by a state over its nationals and is
based on the theory that a national is entitled to the protection of his
state wherever he may be and is, therefore, bound to it by a duty of
obedience and allegiance.
Such duty follows the national even when he is outside the
territory of his state and he may not ordinarily be excused from it
unless he is prepared to renounce his own nationality.
 113

The fact that personal jurisdiction is not easy to enforce does

not detract from the legal power possessed by the state over its
nationals abroad.
Examples of the assertion of its personal jurisdiction by the
Philippines are found in the following provisions of laws:
Article 15 of the New Civil Code which provides that “laws
relating to family rights and duties, or to the status, condition and
legal capacity of persons, are binding upon citizens of the Philippines,
even though living abroad.”
Article 16 of the New Civil Code which states that “intestate
and testamentary succession, both with respect to the order of
succession and to the amount of successional rights and to the
intrinsic validity of testamentary provisions, shall be regulated by the
national law of the person whose succession is under consideration,
whatever may be the nature of the property and regardless of the
country wherein said property may be found.”
Section 21 of the Revised Internal Revenue Code provides
for jurisdiction to tax Filipino citizens , even if not residing in the
Philippines for income received by them from all sources. (Cruz,
2000)
However, international law limits itself to criminal rather than
civil jurisdiction which is a subject for private international law or
conflicts of law.

What are the principles of criminal jurisdiction? (Bernas, 2009)

The following are the five principles of criminal jurisdiction:

1. The Territoriality Principle

Sovereignty over territory is the fundamental source of
jurisdiction. A state has absolute, but not necessarily exclusive,
power to prescribe, adjudicate and enforce rules for conduct that
occurs within its territory. Thus, it is vital that boundaries be
determined.
 114

How does the Third Restatement summarize the rules on

boundaries where states are not islands but parts of a larger
land mass?
The rules are summarized as follows:
1. The boundary separating the land areas of two states is
determined by acts of the states expressing their consent to its
location.
2. Unless a consent to a different rule has been expressed,
a) When the boundary between two states is a navigable
river, its location is the middle of the channel of
navigation (Thalweg doctrine);
b) When the boundary between two states is a non-
navigable river or a lake, its location is the middle of
the river or lake.

What is the so-called “effects doctrine”?

It is an aspect of the territoriality principle. Under this doctrine,
a state also has jurisdiction over acts occurring outside its territory but
having effects within it. This doctrine consists of two principles:

1) Subjective territorial principle

Under this principle, a state has jurisdiction to prosecute and
punish for crime commenced within the state but completed or
consummated abroad.
2) Objective territorial principle
It says that a state has jurisdiction to prosecute and punish for
crime commenced outside the state but consummated within its
territory.

2. The Nationality Principle

Under this principle, every state has jurisdiction over its
nationals even when those nationals are outside the state.
 115

As to corporations, a state has jurisdiction over corporations

organized under its laws. Many states assert jurisdiction over
corporations whose principal place of business or registered office is
located in their territories. Although still a controversial practice,
states have also sought to regulate corporations organized or having
their principal place of business abroad when these corporations are
owned or controlled by nationals. Still more controversial, are multi-
national corporations which register various addresses for different
purposes.
A state has jurisdiction over vessels flying its flag. But flags of
convenience might be challenged on the ground of lack of sufficient
link. This principle is generally applicable to aircraft and spacecraft.
Stateless persons or those who do not have a nationality are
either de jure or de facto. De jure stateless persons are those who
have lost their nationality, if they had one, and had not acquired a
new one. De facto stateless are those who had nationality but to
whom protection is denied by their state when out of the state.
Though not protected by any state, stateless persons are
protected against violation of their human rights through adherence to
generally accepted principles of international law and observance of
treaty obligations. (Mejoff vs Director of Prisons, 90 Phil 70, 1951)

3. The Protective Principle

In accordance with this principle, a state may exercise
jurisdiction over conduct outside its territory that threatens its security,
as long as that conduct is generally recognized as criminal by states
in the international community. (Restatement 402{3}) This conditional
clause does not include acts committed in the exercise of the liberty
guaranteed an alien by the law of the place where the act was
committed. [Bernas, 2009]

What are the examples of acts covered by this principle?

These include plots to overthrow the government, forging its
currency, and plot to break its immigration regulations. (Joyce vs
Director of Public Prosecutions, House of Lords 1946)
 116

What is the limitation on the application of the protective

principle?
The principle shall only be applicable to those offenses posing
a direct, specific threat to national security. (US vs Yunis 681 F.
Supp.896 {1998})

4. The Universality Principle

This principle recognizes that certain activities, universally
dangerous to states and their subjects, require authority in all
community members to punish such acts wherever they may occur,
even absent a link between the state and the parties or the acts in
question. This principle started with piracy.

What are the crimes covered by this principle?

These include piracy, genocide, crimes against humanity, war
crimes, aircraft piracy and terrorism. There is also a growing support
for universal jurisdiction over crimes against human rights.

What is piracy?
In international law, it means any illegal act of violence or
depredation committed for private ends on the high seas or outside
the territorial control of any state.

What is genocide?
Under Article 6 of the Statute of the International Criminal
Court, it means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the
group;
 117

c) Deliberately inflicting on the group conditions of life

calculated to bring about its physical destruction in whole or
in part;
d) Imposing measures intended to prevent births within the
group;
e) Forcibly transferring children of the group to another group.

What are crimes against humanity?

Under Article 7 of the Statute of the ICC, it means any of the
following acts when committed as part of a wide-spread or systematic
attack directed against any civilian population, with knowledge of the
attack:
a) Murder;
b) Extermination;
c) Enslavement;
d) Deportation or forcible transfer of population;
e) Imprisonment or other severe deprivation of physical liberty
in violation of fundamental rules of international law;
f) Torture;
g) Rape; sexual slavery, enforced prostitution, forced
pregnancy, enforced sterilization, or any other form of sexual
violence of comparable gravity;
h) Persecution against any identifiable group or collectivity on
political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in
connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court:
i) Enforced disappearance of persons;
j) The crime of apartheid;
k) Other inhumane acts of a similar character intentionally
causing great suffering, or serious injury to body or to mental
or physical health.

What are war crimes?

It means grave breaches of the Geneva Conventions of August
12, 1949, which are any of the acts enumerated under Article 8 of the
 118

ICC Statute against persons or property protected under the

provisions of the relevant Geneva Convention.

What is terrorism?
Any other act intended to cause death or serious bodily injury to
a civilian, or to any other person not taking an active part in the
hostilities in a situation of armed conflict, when the purpose of such
act, by its nature or context, is to intimidate a population, or to compel
a Government or an international organization to do or abstain from
doing any act. (UN General Assembly Resolution No 54/109 adopted
on February 25, 2000 entitled The International Convention for the
Suppression of the Financing of Terrorism) [Sarmiento, 2007]

5. The Passive Personality Principle

Under this principle, 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.
This principle has not been ordinarily accepted for ordinary torts
or crimes, but it is increasingly accepted as applied to terrorist 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.

What are the three modes of resolving conflict of

jurisdiction?
They include the following:
a) The balancing test (Timberlane Lumber Co. vs Bank of
America, 549 F2d 597)
b) International comity (Hartford Fire Insurance Co. vs
California, 509 US 764, 1993)
c) Forum non conveniens (Piper Aircraft Co. vs Reyno, 454 US
235, 1981)
 119

2. Territorial jurisdiction (Cruz, 2000)

As a general rule, a state has jurisdiction over all persons and
property within its territory. The jurisdiction of the nation within its
own territory is necessary, exclusive and absolute. It is susceptible of
no limitation not imposed by itself.

a) Land Jurisdiction
Subject to exceptions, everything found within the terrestrial
domain of the state is under its jurisdiction. Nationals and aliens,
including non-residents, are bound by its laws, and no process from a
foreign government can take effect for or against them within the
territory of the local state without its permission
As against all other states, the local state has exclusive title to
all property within its territory, which it may own in its own corporate
capacity or regulate when under private ownership through its police
power or forcibly acquire through the power of eminent domain and
be subject to its taxing power.

b) Maritime and fluvial jurisdiction

Generally, the internal waters of a state are assimilated to the
land mass and subjected to the same degree of jurisdiction exercised
over the terrestrial domain. This rule covers the so-called enclosed
waters, such as the land-locked lakes, national rivers and man-made
canals.
Civil, criminal and administrative jurisdiction is exercised by the
flag state over its public vessels wherever they may be, provided they
are not engaged in commerce. Foreign merchant vessels docked in
a local port or bay are under the jurisdiction of the coastal state in civil
matters but criminal jurisdiction is determined according to either the
English rule or French rule.
The jurisdiction of the state over its interior waters is more
exclusive than that which it exercises over its territorial waters.
Subject only to a few exceptions, it is the right of the coastal state to
enforce all its laws to the full extent in its territorial waters and in
proper cases to bar both public and merchant foreign vessels from
 120

entering the same. It may even use force, if necessary, to prevent

any encroachment on its territorial integrity.
Under the archipelago doctrine espoused by the Philippines,
“the waters around, between and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form part of
the internal waters of the Philippines.” Being internal waters, they are
subject to the exclusive jurisdiction of the Philippines. Although this
claim has been substantially accepted in the 1982 Convention on the
Law of the Sea, it has been provided that archipelagic sea lanes are
to be laid on these waters over which foreign ships will have the right
of passage as if they were open sea.
Thus, a foreign vessel need not go around our internal waters
but may use these archipelagic sea lanes in negotiating the distance
from one point of the open sea to another.

c) “Protective jurisdiction” over contiguous zone

This claim of some states has been confirmed by the
Convention on the Territorial Sea and Contiguous Zone, where it is
provided that “in a zone of the high seas contiguous to its territorial
sea, the coastal state may exercise the control necessary to: prevent
infringement of its customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea; and punish infringement of the
above regulations within its territory or territorial sea.

d) Jurisdiction over continental shelf

The coastal state has the sovereign right to explore the
continental shelf and to exploit its natural resources and for this
purpose it may erect on its installations and equipment as may be
necessary.
However, this right shall not affect the legal nature of the
superjacent waters as open seas or of the airspace above such
waters and their use as such by other states shall not be impaired or
disturbed.
The coastal states is allowed to establish on the open seas
immediately above the installations a safety zone with a radius of 500
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meters over which it may exercise jurisdiction for the protection of its
properties underneath.
What if the coastal state does not exercise its right to
explore the continental shelf or exploit its resources?
Since this right is exclusive to the coastal state, if the latter
does not explore the continental shelf or exploit its natural resources,
no one may undertake these activities or make a claim to the
continental shelf without the consent of the coastal state.

e) Jurisdiction over the EEZ or patrimonial sea

All living and non-living resources found therein belong
exclusively to the coastal state.

f) Jurisdiction over the open seas

Open seas or high seas are res communes and available to the
use of all states for purposes of navigation, flying over them, laying
submarine cables or fishing. In times of war, hostilities may be
waged on the open seas.

In what instances may a state exercise jurisdiction on the

open seas?
1) Over its vessels
The flag state has jurisdiction over its public vessel at all times,
whether they be in its own territory, in the territory of other states or
on the open areas. Such jurisdiction is exercised over merchant
vessels when the latter are within its territory, when jurisdiction is
waived or cannot be exercised by the territorial sovereign, or when
such vessels are on the open seas.

2) Over pirates
Being enemies of mankind, pirates may be captured on the
open seas by the vessels of any state, to whose territory they may be
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brought for trial and punishment. Where a pirate vessel attempts to

escape into the territorial waters of another state, the pursuing vessel
may continue the chase but is obliged of turning over the pirates,
when captured, to the coastal state authorities. Piracy is committed
for private ends, not political motives thus insurgents, may not be
treated as pirates.

3) In the exercise of the right of visit and search

Under the laws of neutrality, the public vessels or aircraft of a
belligerent state may visit and search any neutral merchant vessel on
the open seas and capture it if it is found or suspected to be engaged
in activities favorable to the other belligerent.

4) Under the doctrine of hot pursuit

If a foreign merchant vessel committed an offense within the
territorial waters of the coastal state, its own vessels may pursue the
offending vessel into the open sea and upon capture bring it back to
its territory for punishment.
The hot pursuit to be lawful must be begun before the offending
vessel has left the territorial waters, or the contiguous zone of the
coastal state with respect to violation of rights enforceable thereon.
The pursuit must also be continuous or unabated; otherwise, it will be
deemed to have “cooled” and can no longer be resumed.

g) Aerial jurisdiction
It is a generally accepted principle that the local state has
jurisdiction over the airspace above it to an unlimited height, or at the
most up to where outer space begins. Thus, no foreign aircraft, civil
or military, may pass through the aerial domain of a state without its
consent.
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What is the extent of jurisdiction of the state of registration

of the aircraft?
Under the Convention on Offenses and Certain Other Acts
Committed on Board Aircraft (September 14, 1963), the state of
registration of the aircraft has jurisdiction over offenses and acts
committed on board while it is in flight or over the high seas or any
other area outside the territory of any state.

What are the exceptions to this rule?

Other states may exercise jurisdiction over such aircraft when:
1) The offense has effect on the territory of such state;
2) The offense has been committed by or against a national or
permanent resident of such state;
3) The offense is against the security of such state;
4) The offense consists of a breach of any rules or regulations
relating to the flight or maneuver of aircraft in force in such
state;
5) The exercise of jurisdiction is necessary to ensure the
observance of any obligation of such state under a
multilateral international agreement.

h) Outer space
Outer space or the region beyond the earth’s atmosphere, like
open seas, is not subject to the jurisdiction of any state.
Outer space, including the moon and other celestial bodies,
shall be free for exploration and use by all states without
discrimination of any kind, on the basis of equality and in accordance
with international law. But they are not subject to national
appropriation by claim of sovereignty, by means of use, occupation or
any other means.
A state launching an object into outer space shall retain
jurisdiction and control over such object, and over any personnel
thereof, while in outer space or on celestial body.
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Such state shall be internationally liable for any damage that

may be caused by such object to another state or to any person.

i) Other territories
When may a state extend its jurisdiction beyond its
territory and over territory not falling under its sovereignty by
virtue of customary or conventional international law?
1) Through assertion of its personal jurisdiction over its
nationals abroad or the exercise of its right to punish certain
offenses committed outside its territory against its national
interests even if the offenders are non-resident aliens.
2) On the basis of its relations with other states or other
territories, as when it establishes a colonial protectorate, or
administers a trust territory, or occupies enemy territory in
time of war.
3) When the local state waives jurisdiction over persons and
things within its territory. Example is the jurisdiction of
sending state over its army sent to foreign shores. Another
example are the exceptions to the English and French rules
on criminal jurisdiction over foreign merchant vessels.
4) Through acquisition of extraterritorial rights.

What is the distinction between exterritoriality and

extraterritoriality?
Exterritoriality refers to the exemption of persons and property
from the local jurisdiction on the basis of international custom
whereas extraterritoriality applies only to persons and is based on
treaty or convention. Because of the rise of nationalism and the
sovereign equality of states, extraterritoriality has become
discredited. However, exterritoriality remains a respected principle of
international law as illustrated by the immunities of the head of state
in a foreign country.
5) Through the enjoyment of easements or servitudes, such as
the easement of innocent passage or the easement or arrival
under stress. (Portuguese Enclaves Case)
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CHAPTER XI:
IMMUNITY FROM JURISDICTION
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What is the general rule on the jurisdiction of a state within its

territory?
The jurisdiction of a state within its territory is complete and
absolute.

What are the two categories of exceptions to this rule?

1. Sovereign immunity
a. Immunity of the head of state
b. Immunity of the state itself
2. Immunity of the representative of states or diplomatic and
consular immunities (Bernas, 2009)
3.
Immunity of head of state
Does the immunity of a head of state apply when the
subject of the suit is a private matter?
Yes, in the case of Mighell vs Sultan of Johore, the case for
breach of promise to marry filed against the Sultan of Johore was
dismissed upon verification of his being a sitting foreign sovereign.
The immunity that is recognized is absolute for a sitting head of state.
(1 QB 148, 1894)

Is this immunity still available to an individual who is no

longer a head of state?
Yes, as held in the Pinochet Case, a former head of state
enjoys immunity ratione materiae in relation to acts done by him as
head of state as part of his official functions as head of state.(March
24, 1999, House of Lords)

State Immunity
What is the traditional rule of State Immunity?
It exempts a state from being sued in the courts of another
State without its consent or waiver. This rule is a necessary
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consequence of the principles of independence and equality of

States. (USA vs Ruiz, May 22, 1985)

What is the restrictive application of State Immunity?

There is a need to distinguish the activities of states into
sovereign and governmental acts (jure imperii) and private,
commercial and proprietary acts (jure gestionis). State immunity now
extends only to acts jure imperii. This application of State immunity is
now the rule in the US, UK and other states in western Europe.
The restrictive application of State immunity is proper only
when the proceedings arise out of commercial transactions of the
foreign sovereign, its commercial activities or economic affairs. It
does not apply where the contract relates to the exercise of its
sovereign functions. (Ibid)

May the mere entering into a contract by a foreign State

with a private party be construed as the ultimate test of whether
or not it is an act jure imperii or jure gestionis?
The act of entering into a contract by a foreign state with a
private party cannot be construed as the ultimate test of whether or
not it is an act jure imperii or jure gestionis. Such act is only the start
of the inquiry if the foreign state is engaged in the regular conduct of
a business. If the foreign state is not engaged regularly in a business
or commercial activity, the particular act or transaction must then be
tested by its nature. If the act is in pursuit of a sovereign activity, or
an incident thereof, then it is an act jure imperii. (Republic of
Indonesia vs Vinzon June 26, 2003)

What are the examples of acts of foreign states that had

been considered as an act jure imperii by the Supreme Court?
a) The conduct of public bidding for the repair of a wharf at a
US Naval station. The projects are an integral part of the
naval base which is devoted to the defense of both the US
and the Philippines, a function of the government of the
highest order; they are not utilized for nor dedicated to
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commercial or business purposes.(USA vs Ruiz, 136 SCRA

487, 1987)
b) Entering into a Maintenance Agreement by Indonesia for
specified equipment at its Embassy like air conditioning
units, generator sets, electrical facilities, water heaters, and
water motor pumps. The SC held that the establishment of a
diplomatic mission is an act jure imperii. The State may
enter into contracts with private entities to maintain the
premises, furnishings and equipment of the embassy and
the living quarters of its agents and officials. (Republic of
Indonesia vs Vinzon, June 26, 2003)

Cite examples of acts of foreign states that had been

considered as an act jure gestionis by the Supreme Court?
Hiring of a cook in the recreation center catering to American
servicemen and the general public at the John Hay Air Station in
Baguio City and the bidding for the operation of barber shops in Clark
Air Base in Angeles City (US vs Rodrigo, 182 SCRA 644, 1990)

Can there be a claim of immunity when the acts of a state

official were committed outside the scope of authority and
contrary to law?
In US vs Reyes, it was held that immunity does not extend to a
“public official who is made to account in his capacity as such for acts
contrary to law and injurious to the rights of plaintiff… The rationale
for this ruling is that the doctrine of state immunity cannot be used as
an instrument for perpetrating an injustice.” (March 1, 1993)

How should a state claiming sovereign immunity proceed?

When a state or international agency wishes to plead sovereign
or diplomatic immunity in a foreign court, it requests the Foreign
Office of the state where it is sued to convey to the court that said
defendant is entitled to immunity. (The Holy See vs RTC December
1, 1994)
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In the Philippines, the practice is for the foreign government or

the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity.
(Bernas, 2009)

What is the proper course of action that may be taken by a

party aggrieved by the acts of a foreign sovereign enjoying
immunity?
He can ask his own government to espouse his cause through
diplomatic channels. (Ibid)

Explain the process of “suggestion”.

It is the procedure followed in the United States where the
foreign state or the international organization sued in an American
court requests the Secretary of State to make a determination as to
whether it is entitled to immunity. If the Secretary of State finds that
the defendant is immune from suit, he, in turn, asks the Attorney
General to submit to the Court a “suggestion” that the defendant is
entitled to immunity.
In England, a similar procedure is followed, only the Foreign
Office issues a certification to that effect instead of submitting a
“suggestion”. (Sarmiento, 2007)

What is the practical justification for the doctrine of

sovereign immunity?
The practical justification for the doctrine of sovereign immunity
is that there can be no legal right against the authority that makes a
law on which the right depends. In the case of foreign States, the
rule is derived from the principle of the sovereign equality of States,
as expressed in the maxim par in parem non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one
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another. A contrary attitude would “unduly vex the peace of nations.”

(Sanders vs Veridiano II, 162 SCRA 88, 1988)

What are the exceptions to the Doctrine of State Immunity?

Under the UN Convention on the Jurisdictional Immunities of
States and their Property, the defense of State Immunity is not
applicable in the following cases:
1) When there is waiver of State immunity (Art. 7);
2) If the State itself has instituted the proceedings (Art. 8);
3) Any counterclaim out of the same legal relationship or facts
as the claim presented by the State (Art. 9);
4) Commercial transactions with private individuals or entities
(State immunity applies to commercial transactions between
States) (Art. 10);
5) Death or injury to the person, or damage to or loss of
tangible property, caused by an act or omission which is
alleged to be attributable to the State (Art.12);
6) Right or interest of the State in movable or immovable
property arising by way of succession or donation (Art. 13);
7) Alleged infringement of patent, industrial design, trade name
or business name, trade mark, copyright or any other form of
intellectual or industrial property (Art. 14);
8) Participation in a company or other collective body, whether
incorporated or unincorporated (Art. 15)
9) Proceeding which relates to the operation of a ship other
than a warship (Art. 16);
10) Proceedings involving the effects of an arbitration
agreement (Art. 17) (Sarmiento, 2007)
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Diplomatic and consular immunities

How can the diplomatic and consular immunities be
described?
They are personal in the sense that they benefit the person but
the purpose of the immunities given to the diplomatic and consular
representatives is functional, that is, to enable them to perform their
functions properly. (Bernas, 2009)

Who are diplomats?

They are foreign representatives concerned with the political
relations of states. (Ibid)

How does a diplomatic mission commence?

The head of the mission is considered as having taken up his
functions in the receiving state either when he has presented his
credential or when he has notified his arrival and a true copy of his
credentials has been presented to the foreign ministry of the receiving
state. (Vienna Convention on Diplomatic Relations, 1961, Art VII, Sec
16)
The credentials of the diplomatic agent include chiefly the letter
of credence, or letter de creance, by means of which he is accredited
to the receiving State with the request that full faith and credit be
given to his official acts on behalf of the sending state. In addition to
this document, the envoy usually carries his diplomatic passport, his
official instructions and a cipher or code book for use in sending
secret communications to his government.
Unless the receiving State had previously given its agreement
to his appointment, the diplomatic representative cannot claim the
usual privileges and immunities of his office until he is formally
accepted. (Cruz, 2007)
 132

What are the functions of a diplomatic mission?

1) Representing the sending State in the receiving State;
2) Protecting in the receiving State the interests of the sending
State and of its nationals, within the limits permitted by
international law;
3) Negotiating with the Government of the receiving State;
4) Ascertaining by all lawful means conditions and
developments in the receiving State, and reporting thereon
to the Government of the sending State;
5) Promoting friendly relations between the sending State and
the receiving State, and developing their economic, cultural
and scientific relations. (Art 3, VCDR)

What is the nature of the diplomatic relations between

states?
Diplomatic relations between states are purely by mutual
consent. Before the head of the mission is sent to the receiving state,
an agreement must first be obtained. The receiving state is under no
obligation to give reasons for refusing an agreement. (Art. 4) The
“receiving State may at any time, and without having to explain its
decision, notify the sending State that the head of the mission or any
member of the diplomatic staff of the mission is persona non grata or
that any other member of the staff of the mission is not acceptable.
In any such case, the sending State shall, as appropriate, either recall
the person concerned or terminate his functions with the mission. A
person may be declared non grata or not acceptable before arriving
in the territory of the receiving State.” (Art. 9)

Who are the diplomatic representatives that can enjoy

immunities?
1) The “head of the mission” who is the person charged by the
sending State with the duty of acting in that capacity;
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2) The “members of the mission” are the head of the mission and
the members of the staff of the mission;
3) The “members of the staff of the mission” are the members of
the diplomatic staff, of the administrative and technical staff and
of the service staff of the mission;
4) The “members of the diplomatic staff” are the members of the
staff of the mission having diplomatic rank;
5) A “diplomatic agent” is the head of the mission or a member of
the diplomatic staff of the mission;
6) The “members of the administrative and technical staff” are the
members of the staff of the mission employed in the
administrative and technical service of the mission;
7) The “members of the service staff” are the members of the staff
of the mission in the domestic service of the mission;
8) A “private servant” is a person who is in the domestic service of
a member of the mission and who is not an employee of the
sending State;
9) The “premises of the mission” are the buildings or parts of
buildings and the land ancillary thereto, irrespective of
ownership, used for the purposes of the mission including the
residence of the head of the mission. (Art. 1)

What are the privileges and immunities of diplomatic

missions under the Vienna Convention on Diplomatic Relations?
1) The right to use the flag and emblem of the sending State on
the premises of the mission, including the residence of the
head of the mission, and on his means of transport. (Art 20)
2) 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. 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. (Art 22)
 134

3) Exemption from all national, regional or municipal dues and

taxes in respect of the premises of the mission, whether
owned or leased, other than such as represent payment for
specific services rendered. (Art 23)
4) The archives and documents of the mission shall be
inviolable at any time and wherever they may be. (Art 24)
5) The receiving State shall permit and protect free
communication on the part of the mission for all official
purposes, including diplomatic couriers and messages in
code or cipher. (Art 27[1])
6) The official correspondence of the mission shall be
inviolable. (Art 27[2])
7) The diplomatic bag shall not be opened or detained. (Art
27[3])
8) The fees and charges levied by the mission in the course of
its official duties shall be exempt from all dues and taxes. Art
28)

Does the Constitutional provision against alienation of

lands to foreigners apply to alienations of the same in favor of
foreign governments to be used as chancery or residence of its
diplomatic representatives?
No, it does not. Article 21 of the Vienna Convention on
Diplomatic Relations provides that “the receiving State shall either
facilitate the acquisition on its territory, in accordance with its laws, by
the sending State of premises necessary for its mission or assist the
latter in obtaining accommodation in some other way. It shall also,
where necessary, assist missions in obtaining suitable
accommodation for their members.”
 135

What are the privileges and immunities of diplomatic

agents?
1) The person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. (Art 29);
2) The private residence of a diplomatic agent shall enjoy the
same inviolability and protection as the premises of the
mission. (Art 30);
3) Immunity from the criminal jurisdiction of the receiving State
(Art 31[1]);
4) A diplomatic agent is not obliged to give evidence as a
witness. (Art 31[2]);
5) A diplomatic agent shall with respect to services rendered for
the sending State be exempt from social security provisions
which may be in force in the receiving State. (Art 33);
6) Exemption from all dues and taxes, personal or real,
national, regional or municipal (Art 34);
7) Exemption from all personal services, from all public service
of any kind whatsoever (Art 35);
8) Exemption from all customs duties, taxes, and related
charges (Art 36).

Are diplomatic agents also entitled to immunity from civil

and administrative jurisdiction of the receiving State?
Yes, diplomats shall enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
1) A real action relating to private immovable property situated in
the territory of the receiving State, unless he holds it on behalf
of the sending State for the purposes of the mission;
2) 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;
 136

3) An action relating to any professional or commercial activity

exercised by the diplomatic agent in the receiving State outside
his official functions. (Art. 31[1])

Can an action for recovery of property filed against a

foreign ambassador who failed to pay rentals for a leased
personal vacation home, prosper?
Yes, the action can prosper. An ambassador does not enjoy
immunity from civil and administrative jurisdiction in the case of a real
action relating to private immovable property situated in the territory
of the receiving State, unless he holds it on behalf of the sending
State for the purposes of the mission. (Art 31) (Sarmiento, 2007)

In the same action for recovery of property, can the plaintiff

ask for attachment?
No, plaintiff cannot ask for attachment. The properties of an
Ambassador shall be inviolable (Art 30). Furthermore, Section 4 of
RA No 75 states that any writ or process whereby
The person of any ambassador or public minister of any foreign
State, authorized and received as such by the President, or any
domestic servant of any such ambassador or minister is arrested or
imprisoned, or his goods or chattels are distrained, seized, or
attached, shall be deemed void. (Sarmiento, 2007)

Can the plaintiff in the above action stop the departure of

the foreign ambassador from the receiving State?
The plaintiff cannot stop the departure of the ambassador as
the person of the diplomatic agent shall be inviolable and he shall not
be liable to any form of arrest or detention. (Art 29)
 137

What are the privileges and immunities of the members of

the administrative and technical staff of the mission?
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, be entitled to the same
privileges and immunities, except that the immunity from civil and
administrative jurisdiction of the receiving State shall not extend to
acts performed outside the course of their duties. (VCDR, Art 37[2])
(Sarmiento, 2007)

What are the privileges and immunities of the members of

the service staff of a diplomatic mission?
Members of the service staff of the mission who are not
nationals or permanently resident in the receiving State shall enjoy
immunity in respect of acts performed in the course of their duties.
They shall also enjoy exemption from dues and taxes on the
emoluments they receive by reason of their employment. (VCDR, Art
37[3]) (Ibid)

What are the privileges and immunities of the private

servants of members of a diplomatic mission?
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. (VCDR, Art 37[4])
(Sarmiento, 2007)
 138

What are the privileges and immunities of diplomatic

agents, other members of the staff of the mission and private
servants who are nationals or permanent residents of the
receiving State?
Except in so far as additional privileges and immunities may be
granted by the receiving State, a diplomatic agent who is a national of
or permanently resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions. Other members of the staff of the mission
and private servants who are nationals of or permanently resident in
the receiving State shall enjoy privileges and immunities only to the
extent admitted by the receiving State. (VCDR, Art.38) (Ibid)

Does the immunity of a diplomatic agent from the

jurisdiction of the receiving State also exempt him from the
jurisdiction of the sending State?
No, he will always be subject at all times to the jurisdiction of
his State.(VCDR, Art. 31[4]) (Ibid)

Is the personal baggage of a diplomatic agent subject to

customs check and inspections?
No, the personal baggage of a diplomatic agent shall be
exempt from inspection, unless there are serious grounds for
presuming that it contains articles that are neither for the official use
of the diplomatic mission nor for the personal use of the diplomatic
agent or members of his family forming part of his household, or
articles the import or export of which is prohibited by the law or
controlled by the quarantine regulations of the receiving State. In any
case, such inspection shall be conducted only in the presence of the
diplomatic agent or of his authorized representative. (VCDR, Art.
36[2]) (Ibid)
 139

May the immunity of diplomatic agents from the

jurisdiction of the receiving State be waived?
The immunity from jurisdiction of diplomatic agents and of
persons enjoying immunity under Article 37 may be waived by the
sending State. (VCDR, Art 32[1]) (Bernas, 2009)

May the waiver of immunity of diplomatic agents from the

jurisdiction of the receiving State be impliedly waived?
As a general rule, waiver of diplomatic immunity must always
be express. However, the initiation of proceedings by a diplomatic
agent shall preclude him from invoking immunity from jurisdiction in
respect of any counterclaim directly connected with the principal
claim. (VCDR, Art.32) (Sarmiento, 2007)

Does waiver of diplomatic immunity include consent to the

execution of an adverse judgment against the diplomatic agent?
No, a separate waiver is necessary for the execution of an
adverse judgment against a diplomatic agent. Waiver of immunity
from jurisdiction in respect of civil or administrative proceedings shall
not be held to imply waiver of immunity in respect of the execution of
the judgment. (VCDR, Art. 32[4])

Are members of the family of a diplomatic agent entitled to

the privileges and immunities accorded to diplomatic agents?
Yes, provided they form part of the household of the diplomatic
agent and they are not nationals of the receiving State. (VCDR, Art
37[1])
 140

What are the duties of all persons enjoying such privileges

and immunities?
It is their duty to respect the laws and regulations of the
receiving State (Art. 41) and not to practice for personal profit any
professional or commercial activity in the receiving State (Art 42)

When shall a person entitled to privileges and immunities

enjoy them?
He shall enjoy them from the moment he enters the territory of
the receiving State on proceeding to take up his post or, if already in
its territory, from the moment when his appointment is notified to the
Ministry for Foreign Affairs or such other ministry as may be agreed.
(VCDR, Art 39[1]) (Bernas, 2009)

When shall such privileges and immunities cease?

When the functions of a person enjoying privileges and
immunities have come to an end, such privileges and immunities
shall normally cease at the moment when he leaves the country, or
on expiry of a reasonable period in which to do so, but shall subsist
until that time, even in case of armed conflict. However, with respect
to acts performed by such a person in the exercise of his functions as
a member of the mission, immunity shall continue to subsist. (VCDR,
Art 39[2]) (Bernas, 2009)

Consuls and consular immunities

Who are consuls?
They are foreign representatives who attend to administrative
and economic issues such as the issuance of visas. They are not
concerned with political matters. (Ibid)
 141

How is the head of a consular mission admitted to the

exercise of his functions?
After being given the letter patent or lettre de provision, which is
the commission issued by the sending State, he is admitted as head
of a consular mission by an authorization from the receiving State
termed as exequatur. There is no prescribed form, but without it, he
may not enter upon his duties. The receiving State may at any time
notify the sending State that a consular officer is persona non grata or
that any other member of the consular staff is not acceptable. In that
event, the sending State shall, as the case may be, either recall the
person concerned or terminate his functions with the consular post.
(Ibid)

What are the functions of consuls?

The functions of consuls may be divided into duties pertaining
to commerce and navigation, duties respecting the issuance of
passports and visas, and duties of protection of nationals. (Cruz,
2000) (VCCR, Art. 5[a-m])

What are the duties of the receiving State with respect to a

consular mission?
The receiving State has the duty to protect the consular
premises, archives and interests of the sending state. ( Vienna
Convention on Consular Relations, Arts 27, 31, 32, 33) The receiving
State must insure the unimpeded functioning of the consular offices.
(Ibid)

What are the privileges and immunities of consular

officers?
1) Consular officers shall not be liable to arrest or detention
pending trial, except in the case of a grave crime and
 142

pursuant to a decision by the competent judicial authority.

(VCCR, Art 41)
2) Consular officers and employees shall not be amenable to
the jurisdiction of the judicial or administrative authorities of
the receiving State in respect of acts performed in the
exercise of consular functions, except in a civil action either:
a) Arising out of a contract concluded by a consular
officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the
sending State; or
b) By a third party for damage arising from an accident in
the receiving State caused by a vehicle, vessel or
aircraft (VCCR, Art 43)
3) Members of a consular post are under no obligation to give
evidence concerning matters connected with the exercise of
their functions or to produce official correspondence and
documents relating thereto. They are also entitled to decline
to give evidence as expert witnesses with regard to the law
of the sending State. (VCCR, Art 44)
4) Consular officers and employees shall also be exempted
from registration of aliens and residence permits, work
permits, taxation, custom duties and inspections, and from
personal services and contribution. (Sarmiento, 2007)

Distinguish the privileges or immunities of diplomatic

envoys and consular officers from criminal or civil jurisdiction of
the receiving State.
As to criminal jurisdiction, diplomatic envoys shall not be liable
to any form of arrest or detention and they shall enjoy immunity from
the criminal jurisdiction of the receiving State. (VCDR, Arts 29, 31)
Consular officers, on the other hand, shall not enjoy immunity from
criminal jurisdiction. If criminal proceedings are instituted against a
consular officer, he must appear before the competent authorities.
However, they shall not be liable to arrest or detention pending trial,
 143

except in the case of a grave crime and pursuant to a decision of a

competent judicial authority. (VCCR, Art 41)
As to civil jurisdiction, diplomatic envoys shall enjoy immunity,
except in the case of a) a real action relating to private immovable
property situated in the territory of the receiving State, b) an action
relating to succession in which they are involved 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
envoys in the receiving State outside their official functions. (VCDR,
Art 31) Consular officers, on the other hand, shall also enjoy
immunity from civil jurisdiction, except in respect of a civil action
either: a) arising out of a contract concluded by a consular officer in
which the officer acted in his personal capacity; or b) by a third party
for damage arising from an accident in the receiving State caused by
a vehicle, vessel or aircraft. (VCCR, Art 43).

May a consul claim immunity from criminal jurisdiction of

the local court ?
No, a consul is not entitled to the privileges and immunities of
an ambassador or minister, but is subject to the laws and regulations
of the country to which he is accredited. A consul is not exempt from
criminal prosecution for violations of the laws of the country where he
resides.
Article 41 of the Vienna Convention on Consular Relations
provides that if criminal proceedings are instituted against a consular
officer, he must appear before the competent authorities. Consular
officers shall not be liable to arrest or detention pending trial, except
in case of a grave crime and pursuant to a decision by the competent
judicial authority. (Sarmiento, 2007)
 144

Who may waive the privileges and immunities of consular

officers and employees?
The sending State may waive, with regard to a member of the
consular post, any of the privileges and immunities afforded to the
latter. The waiver shall in all cases be express and shall be
communicated to the receiving State in writing. However, the
initiation of proceedings by a consular officer or a consular employee
in a matter where he might enjoy immunity from jurisdiction shall
preclude him from invoking immunity from jurisdiction in respect of
any counterclaim directly connected with the principal claim. (VCCR,
Art. 45) (Ibid)

May the waiver of immunity from jurisdiction for purposes

of civil or administrative proceedings deemed to imply the
waiver of immunity from the measures of execution resulting
from the judicial decision?
No, a separate waiver shall be necessary for the execution of a
judicial decision. (VCCR, Art 45[4])

Immunities of International Organizations

What is the basis of immunity of international
organizations?
The basis of immunity of international organizations is the need
for the effective exercise of their functions.

What are the bases of immunities and privileges of the UN?

They are Article 105 of the UN Charter, the General Convention
on the Privileges and Immunities of the United Nations (1946) and by
the Convention and Privileges of Specialized Agencies (1947).
 145

What are the privileges and immunities of the UN?

1) The Organization, its property and assets wherever located
and by whomsoever held, shall enjoy immunity from every
form of legal process except in so far as in any particular
case it has expressly waived its immunity. It is, however,
understood that no waiver of immunity shall extend to any
measure of execution; I(Art II, Sec 2)
2) Its premises shall be inviolable. Its property and assets,
wherever located and by whomsoever held, shall be immune
from search, requisition, confiscation, expropriation and any
other form of interference. (Art. II, Sec 3)
3) Its archives, and in general all documents belonging to it or
held by it, shall be inviolable wherever located. (Art. II Sec 4)
4) The Organization, its assets, income and other property shall
be exempt from all direct taxes, customs duties and
prohibitions and restrictions on imports and exports in
respect of articles imported or exported by the UN for its
official use and in respect of its publications. (Art II, Sec 7) –
Convention on the Privileges and Immunities of the UN

What are the privileges and immunities of the Secretary

General and other officials of the UN?
1) Immunity from legal process in respect of words spoken or
written and all acts performed by them in their official
capacity;
2) Exemption from taxation on the salaries and emoluments
paid to them by the UN;
3) Immunity from national service obligations;
4) Immunity, together with their spouses and relatives
dependent on them, from immigration restrictions and alien
registration;
5) To be accorded the same privileges in respect of exchange
facilities as are accorded to the officials of comparable ranks
 146

forming part of diplomatic missions to the Government

concerned;
6) To be given, together with their spouses and relatives
dependent on them, the same repatriation facilities in time of
international crisis as diplomatic envoys;
7) To have the right to import free of duty their furniture and
effects at the time of first taking up their post in the country in
question. (Art V, Sec 18 of the Convention on the Privileges
and Immunities of the United Nations)

What are the privileges and immunities of the

representatives of states to the principal and subsidiary organs
of the UN and to conferences convened by the UN?
1) Immunity from personal arrest or detention and from seizure
of their personal baggage, and, in respect of words spoken
or written and all acts done by them in their capacity as
representatives, immunity from legal process of every kind;
2) Inviolability for all papers and documents;
3) The right to use codes and to receive papers or
correspondence by courier or in sealed bags;
4) Exemption in respect of themselves and their spouses from
immigration restrictions, aliens registration or national
service obligations in the state they are visiting or through
which they are passing in the exercise of their functions;
5) The same facilities in respect of currency or exchange
restrictions as are accorded to representatives of foreign
governments on temporary official missions;
6) The same immunities and facilities in respect of their
personal baggage as are accorded to diplomatic envoys,
and also;
7) Such other privileges, immunities and facilities not
inconsistent with the foregoing as diplomatic envoys enjoy,
except that they shall have no right to claim exemption from
customs duties on goods imported (otherwise than as part of
 147

their personal baggage) or from excise duties or sales taxes.

(Art IV, Sec 11 of the Convention on the Privileges and
Immunities of the UN)

The Act of State Doctrine

May the acts of a sovereign power be impugned in the
courts of another sovereign country?
It is the doctrine that protects the sovereignty of states by
judicial deference to the public acts of a foreign state done on that
state’s territory. Under this doctrine, “the courts of one country will
not sit in judgment on the acts of the government of another, done
within its own territory”. (Underhill vs Hernandez)

What is the nature of the act of state doctrine?

It is a rule not of international law but of judicial restraint in
domestic law whereby courts refrain from making decisions in
deference to the executive who is the principal architect of foreign
relations. (Bernas, 2009)
 148

CHAPTER XII:
INTERNATIONAL HUMAN RIGHTS
LAW
 149

What were the earlier doctrines preceding the developing

doctrine on human rights prior to the birth of the UN?
These include doctrines on humanitarian intervention, state
responsibility for injury to aliens, protection of minorities, League of
Nation’s Mandates and Minorities Systems, and international
humanitarian law (which is the human rights law in time of war).

What is the difference between the Asian and Western view on

human rights?
The Western view puts emphasis on the individual while Asians
give emphasis on the community.

How did the Western tradition on human rights develop?

It has developed from the Natural Law view that certain rights
exist as a result of a law higher than positive or man-made law. This
higher law itself emanates from the nature of man which demands
certain immunities or liberties.
This view flourished flourished in the 17th century and provided
a recourse against arbitrary power. Much of what the Natural Law
held has already become part of customary or conventional law and
has served as a counterforce against a positivist emphasis on the
importance of the state.

What are the three (3) generations of human rights?

The first generation consists of the traditional civil and
fundamental rights; the second generation, social and economic
rights; third generation, right to peace, clean environment, self-
determination, common heritage of mankind, development, minority
rights. There is still a dispute about the cultural in human rights.
 150

What distinguishes post WWII developments from earlier human

rights tradition?
It is the growing acceptance of the view that the way nations
treat people under their jurisdiction is no longer just a domestic
concern but also one that calls for the attention of the international
community. This view represents a chipping away at the old concept
of sovereignty and it recognizes that individuals can be subjects of
international law and that they can find protection and remedies
within the international community against abuses by their own
government.

What is the role played by the UN in the development of the new

international law on human rights?
It became the cradle for the development of the new
international law on human rights. However, the UN Charter's own
provisions on human rights were preliminary. They did not make
human rights law but they represented a beginning which later would
develop into international law.

What then are the notable defects/flaws in the provisions of the

Charter?
In the charter, there are no definitions of human rights, there is
no clear commitment of members to avoid violations, and there is set
down no instrument for the correction or vindication of violations of
human rights that might occur. Nations' sensitivity to their
sovereignty is reflected in Article 2(7) of the UN Charter. (provision on
non-interference of UN with domestic affairs)

What is the Universal Declaration of Human Rights?

It was adopted and proclaimed by the General Assembly on

December 10, 1948. It was not seen as a law but only as a “common
standard” for nations to attempt to reach. Its authority is primarily
moral and political.
 151

What is the distinction between a mere declaration and a

covenant?
1) The core of an international covenant lies a meeting of
minds of the contracting parties on the specific
duties and obligations they intend to assume, and
the agreement that the undertakings must be
effectively informed. A declaration by contrast
admits the presumption that something less than full
effectiveness in terms of law is intended.
2) A covenant leaves nos doubt about the legal nature of
the provisions it contains, whereas a declaration is
often deemed to enunciate moral rules only.
3) The vinculum juris created by a covenant generally
absent from a declaration, places a duty on the
contracting parties to bring their laws and practices
into accord with the accepted international
obligations and not to introduce new laws or
practices which would be at variance with such
obligations. (Vratislav Pechota)

How does The Covenant on Civil and Political Rights provide for
right to life, liberty and property and equality?
The Covenant's provision on the right to life in Article 6(1) and
its provision on genocide Article 6(4) and the general guarantee of
liberty in Article 9(1) do not go beyond what Article III, Section 1 of
the Philippine Bill of Rights guarantees. The Covenant does not also
say when protected life begins, whereas the Philippines protects “the
life of the unborn from conception.”
There is likewise no provision on the right to property in the
Covenant though there exists a provision in Article 17(1) in the
Universal Declaration. It has been explained that in such a time
“when property rights had lost much of their previous sanctity, it was
inevitable that the Commission would find it difficult to draft a text that
would command general acceptance.” (Pechota)
 152

The Covenant in Article 6(2) expresses a bias for the abolition

of the death penalty and allows its imposition, in countries which still
have a death penalty, only after conviction for the most serious
crimes. The Covenant adds in Article 6(6) that “Nothing in this article
shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.” In fact, in
the Second Optional Protocol to the Covenant, signed at the General
Assembly meeting on December 15, 1989, Article 1 says: 1) No one
within the jurisdiction of a State Party to the Present Protocol shall be
executed. 2) Each State Party shall take all necessary measures to
abolish the death penalty within its jurisdiction.”
The 1987 Constitution prohibited the imposition of the death
penalty unless a new law is passed imposing death for “heinous
crimes.” Congress restored the death penalty for heinous crimes but
RA 9346 has since disallowed it.
Provisions on physical liberty, and arrests and detention found
in Articles 8, 9 and 11 of the Covenant are more than adequately
covered by corresponding provisions of the Bill of Rights.
The rights of an accused found in Articles 14 and 15 of the
Covenant have long been provided for in the Philippine accusatory
system as found in the Constitution. However, the Covenant in
Article 14 is more restrictive in the matter of publicity of criminal
proceedings “where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the
guardianship of children.” These standards would not easily pass the
Philippine tests for publicity and free press.
The Covenant also provides in Article 9(5) that a victim of
unlawful arrest or detention shall have an enforceable right to
compensation; and in Article 14(6) that a victim of miscarriage of
justice “shall be compensated according to law, unless it is proved
that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him.” The Philippine Constitution only asks
compensation in Section 12(4) of the Bill of Rights where the
legislature is asked to compensate violations of rights of a person
under investigation.
 153

The guarantee of equality found in Article 26 of the Covenant

is the Bill of Rights' more terse “equal protection””clause in Article III,
Section 1. The guarantee is of legal equality. It does not embody the
aspiration towards lesser material inequality.

How does the Covenant provide for torture, ill-treatment and

prison conditions?
Articles 7 and 10 of the Covenant prohibit torture and other
forms of ill-treatment that offend not only against bodily integrity but
also against personal dignity and the requirement of humane prison
conditions.
The UN Human Rights Commission has expressed the view
that imprisonment “ïn conditions seriously detrimental to a prisoner's
health” constitutes violations of Articles 7 and 10(1) of the Covenant.

What are three rights that constitute freedom of movement

under the Convention and what are the limitations to these
rights?
These are found in Articles 12(1) and (2) and these include the
rights to travel within the country, the right to leave the country and
the right to change one's residence. The limitations on these three
rights are found in Article 12(3) and consist of “”those provided by
law, are necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights in the present Covenant.”
They are similar to the limitations found in the Philippine Bill of
Rights except that unlike the Philippine provision, it does not require a
court order for impairment of liberty of abode.
The Covenant unlike the Philippine Constitution, in Article 12(4)
separates the right to return to one's country from the right to leave
one's country. The limit to the right to return to one's country in the
Covenant is implied in the word “arbitrarily”. “No one shall be
arbitrarily deprived of the right to enter his own country.”” The
 154

Covenant intends to make the limitation more narrow than for the
right to leave the country since exile is now prohibited by customary
law and the prohibition of exile may even be jus cogens.

How did the Philippine Supreme Court interpret the separation

of the right to leave one's country and the right to return to one's
country?
The Court's argument was that since the Declaration of Human
Rights and the Covenant on Human Rights separate the right to leave
the country from the right to return to one's country, the two rights are
distinct and the right to return to one's country is not guaranteed by
the specific guarantees for the right to travel and liberty of abode and
that therefore President Marcos could not appeal to Section 6 of the
Bill of Rights. The vote was 8 to 7.

Distinguish “having a legal personality” from “having a capacity

to act.”
Legal personality belongs to all, whether citizens or aliens while
capacity to act may not be available to some by reason, for instance
of infancy, minority, or insanity.

What is meant by the guarantee to protect the right to be

recognized as a person before the law, in Article 16 of the
Covenant?
The guarantee in its fullness means that state parties must
“treat every human being everywhere, male or female, young or old,
alien or citizen, as a person before the law, enjoying the protection of
the law and of the forces of the law, with power to have rights and
assume obligations: to own, acquire, and dispose of property; to
make contracts; to sue and be sued; and to invoke other legal
remedies.”
No specific guarantee appears in the Constitution but that is
presumed to exist runs through the entire document.
 155

Is there any statement in the Covenant when does one become

a person?
It does not. The Philippine Constitution protects “the life of the
unborn from conception;” but it does not say that the unborn is a
person. Though the Civil Code says that for purposes beneficial to
him the unborn is considered a person.

What are the limits on external exercise of freedom of thought,

conscience and religion?
External exercise of freedom of thought, conscience and
religion is guaranteed subject to the protection of public safety, order,
health, or morals or the fundamental rights of others.

What are the two-fold aspect of the concern for minorities?

The first is the fear of “a secessionist movement by minorities,
threatening territorial integrity of the state, or about the danger of
interference by other states with which the minorities are connected
by ties of race, national origin, language, or religion. The second is a
genuine “concern for the human rights of minorities and the desire
“that minorities will flourish so as to preserve that diversity of the
human race..”

What are the two important rights covered by the right to self-
determination?
1) the right “freely to determine their political status and
freely pursue their economic, social and cultural
development”;
2) the right “for their own ends, to freely dispose of the
natural wealth and resources without prejudice to
any obligations arising out of international
cooperation, based upon the principle of mutual
benefit, and international law.”
 156

But minorities does not have a right of self-determination in the

sense of the right to secede.

What are the internal and external aspects of self-determination?

The internal right of self-determination consists of the right
“freely to determine their political status and freely pursue their
economic, social and cultural development” and the right, “for their
own ends, to freely dispose of the natural wealth and resources
without prejudice to any obligations arising out of international
cooperation, based upon the principle of mutual benefit, and
international law.” These also necessarily include the other related
political rights.
The external right of self-determination belongs to colonies and
to non-self-governing and trust territories.

What is the nature and significance of the Protocol to the

Covenant?
It was adopted by the United Nations on December 16, 1966 as
a supplement to the Covenant on Civil and Political Rights and
entered into force on March 23, 1976. The Philippines has ratified
the protocol.
This separate treaty is designed to enable private parties who
are victims of human rights violations. However, complaints may be
filed only against states which have ratified the Protocol. There is an
eighteen-member Human Rights Committee created by the Covenant
which receives and handles the complaints.

Why is there a division between civil and political rights, in one

hand, and economic, social and cultural rights, on the other?
The reasons for the division are both ideological and practical.

Ideologically, the contest was between Western countries on

the one hand and socialist and Third World countries on the other.
 157

The American delegation argued that its government would find

difficulty in accepting a treaty containing economic and cultural rights
beyond those guaranteed by the Constitution. For the socialist and
Third World countries, on the other hand, the absence of economic,
social and cultural guarantees could render civil and political
guarantees meaningless.
On the practical level, it became obvious that implementing civil
and political guarantees, the classical “Thou shalt nots” of the
Western tradition, could be done immediately; whereas the
implementation of economic, social and cultural rights could only be
done gradually and dependently on development conditions. Thus,
the decision to divide, which would at least assure approval of a
document on civil and political rights.

However, Article I of both Covenants say exactly the same

thing about the right of self-determination of people. There are
substantial overlappings on other subjects of the Covenants.

What are the rights included in the Covenant on Economic,

Social and Cultural Rights?
Included are the social welfare rights stated in detail which
consist of the right to work (Article 6); to favorable conditions of work
(Article 7), to form free trade unions (Article 8), to social security and
insurance (Article 9), to special assistance for families (Article 10), to
adequate standard of living (Article 11), to the highest standard of
physical and mental health (Article 12), to education including
compulsory primary education (Article 13 & 14), and to the enjoyment
of cultural and scientific benefits and international contacts (Article
15).
These correspond to the economic, social and cultural rights
that are also found in the Constitution, principally Article XIII (Social
Justice), Article XIV (Education, Science and Technology, Arts,
Culture, and Sports), and Article XV (The Family).
 158

What is the duty of the Philippines to implement provisions of

these international human rights law?
Since the Philippines is a party not only to the UN Charter and
the Universal Declaration of Human Rights but also to the two
Covenants as well as to the Optional Protocol to the Covenant on
Civil and Political Rights, it is bound, both in its domestic sphere and
its foreign relations, “to bring its laws and practices into accord with
the accepted international obligations and not to introduce new laws
or practices which would be at variance with such obligations.” The
duty of each State Party to implement the Covenant on Civil and
Political Rights is provided for in its Article 2. (Bernas, 2009)
Treaty commitments become part of domestic law. The self-
executing provisions of the Covenants must be implemented in
domestic law. Those which are not, must be attended to by
“necessary steps, in accordance with its constitutional processes and
with the provisions of the present Covenant”, which may either be
legislative or by executive measures.

What principle governs the duty of each State Party to

implement the provisions of the Covenant on Economic, Social
and Cultural rights?
It is the principle of progressive realization as embodied in
Article 2, thereof. Each State Party is mandated to take steps,
individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of
the rights recognized in the Convention by all appropriate means,
including particularly the adoption of legislative measures.
Progressive realization means “that a state is obligated to
undertake a program of activities… and to realize those rights which
are “recognized” by the Economic Covenant. While the obligation of
progressive realization is limited by resource constraints, the
Economic Covenant indicates that priority should be given to social
welfare and that the level of effort should increase over time. These
obligations apply to any state that has ratified the Economic
 159

Covenant, regardless of that state’s economic resources.”

What are the other conventions on Human Rights?

These include the 1948 Genocide Convention, the 1966
Convention on the Elimination of All Forms of Racial Discrimination,
the 1979 Convention on the Elimination of All Forms of Discrimination
Against Women, the 1984 Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, the 1989
Convention on the Rights of the Child, and the 1990 Convention on
Migrant Workers.

What are some human rights principles that have become

customary law in the light of state practice?
These include the prohibition of torture, genocide, slavery and
the prohibition of discrimination.

What are the two important procedures being adopted by the

Human Rights Commission for responding to violation of human
rights?
An important UN body is the Human Rights Commission, a
subsidiary organ of ECOSOC. It is adopting two different procedures
for responding to violations of human rights.
1) Confidential consideration under ECOSOC Resolution 1503
It is also known as the 1503 Procedure or confidential procedure. It
authorizes the Sub-Commission on Prevention of Discrimination and
Protection of Minorities to appoint a working group consisting of not
more than five members to meet once a year in private meetings to
consider all communications, including replies of the government
concerned, with a view to bringing to the attention of the Sub-
Commission those communications which appear to reveal a pattern
of gross and reliably attested violations of human rights.
The confidential findings of the Sub-Commission are brought to the
 160

attention of the Commission on Human rights. The Commission on

Human Rights is expected to submit its report and recommendation
to the Economic and Social Council. The procedure is kept
confidential until such time as the Commission on Human Rights
decided to make recommendation to the ECOSOC.
1) Public debate procedure under ECOSOC Resolution 1235
The Commission on Human Rights was established in 1946 as a
subsidiary organ of ECOSOC. In 1967, ECOSOC Resolution 1235
authorized the Commission and its Subsidiary Commission on
Prevention of Discrimination and Protection of Minorities to examine
reports relevant to gross violations of human rights and to examine
reports relevant to gross violations of human rights and to examine
whether the violations revealed a consistent pattern and thereafter
make recommendations to ECOSOC.
Two types of activities are carried out by this procedure: First, it holds
annual public debates in which governments and NGOs are given the
opportunity to identify publicly country specific situations which
deserve attention. Second, it engages in studies and investigations
of particular situations through the use of various techniques the
Commission might deem appropriate.

What can result from these procedures?

Results may include embarrassment of countries referred that
might generate change in policy; pressure on government to take the
issue on a bilateral or multilateral level; statements of exhortation
from the Commission or call from the Commission for all available
information; the Commission might appoint a Special Rapporteur to
examine and submit a report on the issue; the Commission might ask
the Security Council to take up the issue with a view to promulgating
sanctions.

What is the International Criminal Court?

It is the first permanent, treaty based, international criminal
 161

court established to promote the rule of law and ensure that the
gravest international crimes do not go unpunished.
It shall be a permanent institution and shall have the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in the Rome Statute, and shall be
complementary to national criminal jurisdictions. (Rome Statute, Art.
1) (Sarmiento, 2007)
It was established by the Rome Statute of the International
Criminal Court on July 17, 1998, when 120 States participating in the
“United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court” adopted the Statute.
The Statute enteres into force on July 1, 2002 and anyone who
commits any of the crimes under the Statute after this date will be
liable for the prosecution by the Court.

What is the Rome Statute?

The Rome Statute established the ICC. The Statute was
opened for signature by
All states in Rome on July 17, 1998 and had remained open for
signature until December 31, 2000 at the UN Headquarters in New
York. The Statute entered into force on July 1, 2002.

May the provisions of the Rome Statute be given retroactive

effect?
No, the Rome Statute applies the principle of non-retroactivity
ratione personae. Article 24 of the Statute states that “no person
shall be criminally responsible under this Statute for conduct prior to
the entry into force on July 1, 2002 and therefore crimes committed
prior to that date will not be liable for prosecution by the ICC.

Where is the seat of the ICJ?

The seat of the Court is The Hague in The Netherlands. The
 162

Court will be temporarily housed at “de Arc” on the outskirts of The

Hague before moving to its permanent premises at the
Alexanderkazerne. (Art. 3)

Does the ICC have international legal personality?

Yes, the Court shall have international legal personality. It shall
also have such legal capacity as may be necessary for the exercise
of its functions and the fulfillment of its purposes.

What are the crimes falling under the jurisdiction of the ICC?
The jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole. The
Court has jurisdiction in accordance with this Statute with respect to
the fo9llowing crimes:
1) The crime of genocide;
2) Crimes against humanity;
3) War crimes;
4) The crime of aggression.

Would the ICC replace national or domestic criminal courts?

No, it will not replace national or domestic courts but will be
complementary to national criminal jurisdiction. The Court will only
investigate and prosecute if a State is unwilling or unable to genuinely
prosecute. This will be determined by the judges. Unjustified delays
in proceedings as well as proceedings which are merely intended to
shield persons from criminal responsibility will not render a case
inadmissible before the ICC (Art. 17)

May the accused be tried in absentia before the ICC?

No, the Rome Statute applies the principle of presence. Article
 163

63 of the Statute states that the accused shall be present during the
trial.
However, if the accused, being present before the Court,
continues to disrupt the trial, the Trial Chamber may remove the
accused and shall make provision for him or her to observe the trial
and instruct counsel from outside the courtroom, through the use of
communications technology, if required. Such measures shall be
taken only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such duration as is
strictly required.

Is the rule on presumption of innocence applicable to the ICC?

Yes, Article 66 of the Statute affirms the rule on presumption of
innocence until proved guilty before the Court in accordance with the
applicable law. The onus (burden) is on the Prosecutor to prove the
guilt of the accused and in order to convict the accused, the Court
must be convinced of the guilt of the accused beyond reasonable
doubt.

 164

CHAPTER XIII:
PEACEFUL SETTLEMENT OF
INTERNATIONAL DISPUTES
 165

What were the earlier doctrines preceding the developing

doctrine on human rights prior to the birth of the UN?
These include doctrines on humanitarian intervention, state
responsibility for injury to aliens, protection of minorities, League of
Nation’s Mandates and Minorities Systems, and international
humanitarian law (which is the human rights law in time of war).

What is the difference between the Asian and Western view on

human rights?
The Western view puts emphasis on the individual while Asians
give emphasis on the community.

How did the Western tradition on human rights develop?

It has developed from the Natural Law view that certain rights
exist as a result of a law higher than positive or man-made law. This
higher law itself emanates from the nature of man which demands
certain immunities or liberties.
This view flourished flourished in the 17th century and provided
a recourse against arbitrary power. Much of what the Natural Law
held has already become part of customary or conventional law and
has served as a counterforce against a positivist emphasis on the
importance of the state.

What are the three (3) generations of human rights?

The first generation consists of the traditional civil and
fundamental rights; the second generation, social and economic
rights; third generation, right to peace, clean environment, self-
determination, common heritage of mankind, development, minority
rights. There is still a dispute about the cultural in human rights.
 166

What distinguishes post WWII developments from earlier human

rights tradition?
It is the growing acceptance of the view that the way nations
treat people under their jurisdiction is no longer just a domestic
concern but also one that calls for the attention of the international
community. This view represents a chipping away at the old concept
of sovereignty and it recognizes that individuals can be subjects of
international law and that they can find protection and remedies
within the international community against abuses by their own
government.

What is the role played by the UN in the development of the new

international law on human rights?
It became the cradle for the development of the new
international law on human rights. However, the UN Charter's own
provisions on human rights were preliminary. They did not make
human rights law but they represented a beginning which later would
develop into international law.

What then are the notable defects/flaws in the provisions of the

Charter?
In the charter, there are no definitions of human rights, there is
no clear commitment of members to avoid violations, and there is set
down no instrument for the correction or vindication of violations of
human rights that might occur. Nations' sensitivity to their
sovereignty is reflected in Article 2(7) of the UN Charter. (provision on
non-interference of UN with domestic affairs)

What is the Universal Declaration of Human Rights?

It was adopted and proclaimed by the General Assembly on

December 10, 1948. It was not seen as a law but only as a “common
standard” for nations to attempt to reach. Its authority is primarily
moral and political.
 167

What is the distinction between a mere declaration and a

covenant?
4) The core of an international covenant lies a meeting of
minds of the contracting parties on the specific
duties and obligations they intend to assume, and
the agreement that the undertakings must be
effectively informed. A declaration by contrast
admits the presumption that something less than full
effectiveness in terms of law is intended.
5) A covenant leaves nos doubt about the legal nature of
the provisions it contains, whereas a declaration is
often deemed to enunciate moral rules only.
6) The vinculum juris created by a covenant generally
absent from a declaration, places a duty on the
contracting parties to bring their laws and practices
into accord with the accepted international
obligations and not to introduce new laws or
practices which would be at variance with such
obligations. (Vratislav Pechota)

How does The Covenant on Civil and Political Rights provide for
right to life, liberty and property and equality?
The Covenant's provision on the right to life in Article 6(1) and
its provision on genocide Article 6(4) and the general guarantee of
liberty in Article 9(1) do not go beyond what Article III, Section 1 of
the Philippine Bill of Rights guarantees. The Covenant does not also
say when protected life begins, whereas the Philippines protects “the
life of the unborn from conception.”
There is likewise no provision on the right to property in the
Covenant though there exists a provision in Article 17(1) in the
Universal Declaration. It has been explained that in such a time
“when property rights had lost much of their previous sanctity, it was
inevitable that the Commission would find it difficult to draft a text that
would command general acceptance.” (Pechota)
 168

The Covenant in Article 6(2) expresses a bias for the abolition

of the death penalty and allows its imposition, in countries which still
have a death penalty, only after conviction for the most serious
crimes. The Covenant adds in Article 6(6) that “Nothing in this article
shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.” In fact, in
the Second Optional Protocol to the Covenant, signed at the General
Assembly meeting on December 15, 1989, Article 1 says: 1) No one
within the jurisdiction of a State Party to the Present Protocol shall be
executed. 2) Each State Party shall take all necessary measures to
abolish the death penalty within its jurisdiction.”
The 1987 Constitution prohibited the imposition of the death
penalty unless a new law is passed imposing death for “heinous
crimes.” Congress restored the death penalty for heinous crimes but
RA 9346 has since disallowed it.
Provisions on physical liberty, and arrests and detention found
in Articles 8, 9 and 11 of the Covenant are more than adequately
covered by corresponding provisions of the Bill of Rights.
The rights of an accused found in Articles 14 and 15 of the
system as found in the Constitution. However, the Covenant in
Article 14 is more restrictive in the matter of publicity of criminal
proceedings “where the interest of juvenile persons otherwise
requires or the proceedings concern matrimonial disputes or the
guardianship of children.” These standards would not easily pass the
Philippine tests for publicity and free press.
The Covenant also provides in Article 9(5) that a victim of
unlawful arrest or detention shall have an enforceable right to
compensation; and in Article 14(6) that a victim of miscarriage of
justice “shall be compensated according to law, unless it is proved
that the non-disclosure of the unknown fact in time is wholly or partly
attributable to him.” The Philippine Constitution only asks
compensation in Section 12(4) of the Bill of Rights where the
legislature is asked to compensate violations of rights of a person
under investigation.
The guarantee of equality found in Article 26 of the Covenant
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is the Bill of Rights' more terse “equal protection””clause in Article III,

Section 1. The guarantee is of legal equality. It does not embody the
aspiration towards lesser material inequality.

How does the Covenant provide for torture, ill-treatment and

prison conditions?
Articles 7 and 10 of the Covenant prohibit torture and other
forms of ill-treatment that offend not only against bodily integrity but
also against personal dignity and the requirement of humane prison
conditions.
The UN Human Rights Commission has expressed the view
that imprisonment “ïn conditions seriously detrimental to a prisoner's
health” constitutes violations of Articles 7 and 10(1) of the Covenant.

What are three rights that constitute freedom of movement

under the Convention and what are the limitations to these
rights?
These are found in Articles 12(1) and (2) and these include the
rights to travel within the country, the right to leave the country and
the right to change one's residence. The limitations on these three
rights are found in Article 12(3) and consist of “”those provided by
law, are necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights in the present Covenant.”
They are similar to the limitations found in the Philippine Bill of
Rights except that unlike the Philippine provision, it does not require a
court order for impairment of liberty of abode.
The Covenant unlike the Philippine Constitution, in Article 12(4)
separates the right to return to one's country from the right to leave
one's country. The limit to the right to return to one's country in the
Covenant is implied in the word “arbitrarily”. “No one shall be
arbitrarily deprived of the right to enter his own country.”” The
Covenant intends to make the limitation more narrow than for the
 170

right to leave the country since exile is now prohibited by customary

law and the prohibition of exile may even be jus cogens.

How did the Philippine Supreme Court interpret the separation

of the right to leave one's country and the right to return to one's
country?
The Court's argument was that since the Declaration of Human
Rights and the Covenant on Human Rights separate the right to leave
the country from the right to return to one's country, the two rights are
distinct and the right to return to one's country is not guaranteed by
the specific guarantees for the right to travel and liberty of abode and
that therefore President Marcos could not appeal to Section 6 of the
Bill of Rights. The vote was 8 to 7.

Distinguish “having a legal personality” from “having a capacity

to act.”
Legal personality belongs to all, whether citizens or aliens while
capacity to act may not be available to some by reason, for instance
of infancy, minority, or insanity.

What is meant by the guarantee to protect the right to be

recognized as a person before the law, in Article 16 of the
Covenant?
The guarantee in its fullness means that state parties must
“treat every human being everywhere, male or female, young or old,
alien or citizen, as a person before the law, enjoying the protection of
the law and of the forces of the law, with power to have rights and
assume obligations: to own, acquire, and dispose of property; to
make contracts; to sue and be sued; and to invoke other legal
remedies.”
No specific guarantee appears in the Constitution but that is
presumed to exist runs through the entire document.

 171

Is there any statement in the Covenant when does one become

a person?
It does not. The Philippine Constitution protects “the life of the
unborn from conception;” but it does not say that the unborn is a
person. Though the Civil Code says that for purposes beneficial to
him the unborn is considered a person.

What are the limits on external exercise of freedom of thought,

conscience and religion?
External exercise of freedom of thought, conscience and
religion is guaranteed subject to the protection of public safety, order,
health, or morals or the fundamental rights of others.

What are the two-fold aspect of the concern for minorities?

The first is the fear of “a secessionist movement by minorities,
threatening territorial integrity of the state, or about the danger of
interference by other states with which the minorities are connected
by ties of race, national origin, language, or religion. The second is a
genuine “concern for the human rights of minorities and the desire
“that minorities will flourish so as to preserve that diversity of the
human race..”

What are the two important rights covered by the right to self-
determination?
3) the right “freely to determine their political status and
freely pursue their economic, social and cultural
development”;
4) the right “for their own ends, to freely dispose of the
natural wealth and resources without prejudice to
any obligations arising out of international
cooperation, based upon the principle of mutual
benefit, and international law.”
 172

But minorities does not have a right of self-determination in the

sense of the right to secede.

What are the internal and external aspects of self-determination?

The internal right of self-determination consists of the right
“freely to determine their political status and freely pursue their
economic, social and cultural development” and the right, “for their
own ends, to freely dispose of the natural wealth and resources
without prejudice to any obligations arising out of international
cooperation, based upon the principle of mutual benefit, and
international law.” These also necessarily include the other related
political rights.
The external right of self-determination belongs to colonies and
to non-self-governing and trust territories.

What is the nature and significance of the Protocol to the

Covenant?
It was adopted by the United Nations on December 16, 1966 as
a supplement to the Covenant on Civil and Political Rights and
entered into force on March 23, 1976. The Philippines has ratified
the protocol.
This separate treaty is designed to enable private parties who
are victims of human rights violations. However, complaints may be
filed only against states which have ratified the Protocol. There is an
eighteen-member Human Rights Committee created by the Covenant
which receives and handles the complaints.

Why is there a division between civil and political rights, in one

hand, and economic, social and cultural rights, on the other?
The reasons for the division are both ideological and practical.

Ideologically, the contest was between Western countries on

the one hand and socialist and Third World countries on the other.
 173

The American delegation argued that its government would find

difficulty in accepting a treaty containing economic and cultural rights
beyond those guaranteed by the Constitution. For the socialist and
Third World countries, on the other hand, the absence of economic,
social and cultural guarantees could render civil and political
guarantees meaningless.
On the practical level, it became obvious that implementing civil
and political guarantees, the classical “Thou shalt nots” of the
Western tradition, could be done immediately; whereas the
implementation of economic, social and cultural rights could only be
done gradually and dependently on development conditions. Thus,
the decision to divide, which would at least assure approval of a
document on civil and political rights.

However, Article I of both Covenants say exactly the same

thing about the right of self-determination of people. There are
substantial overlappings on other subjects of the Covenants.

What are the rights included in the Covenant on Economic,

Social and Cultural Rights?
Included are the social welfare rights stated in detail which
consist of the right to work (Article 6); to favorable conditions of work
(Article 7), to form free trade unions (Article 8), to social security and
insurance (Article 9), to special assistance for families (Article 10), to
adequate standard of living (Article 11), to the highest standard of
physical and mental health (Article 12), to education including
compulsory primary education (Article 13 & 14), and to the enjoyment
of cultural and scientific benefits and international contacts (Article
15).
These correspond to the economic, social and cultural rights
that are also found in the Constitution, principally Article XIII (Social
Justice), Article XIV (Education, Science and Technology, Arts,
Culture, and Sports), and Article XV (The Family).
 174

What is the duty of the Philippines to implement provisions of

these international human rights law?
Since the Philippines is a party not only to the UN Charter and
the Universal Declaration of Human Rights but also to the two
Covenants as well as to the Optional Protocol to the Covenant on
Civil and Political Rights, it is bound, both in its domestic sphere and
its foreign relations, “to bring its laws and practices into accord with
the accepted international obligations and not to introduce new laws
or practices which would be at variance with such obligations.” The
duty of each State Party to implement the Covenant on Civil and
Political Rights is provided for in its Article 2. (Bernas, 2009)
Treaty commitments become part of domestic law. The self-
executing provisions of the Covenants must be implemented in
domestic law. Those which are not, must be attended to by
“necessary steps, in accordance with its constitutional processes and
with the provisions of the present Covenant”, which may either be
legislative or by executive measures.

What principle governs the duty of each State Party to

implement the provisions of the Covenant on Economic, Social
and Cultural rights?
It is the principle of progressive realization as embodied in
Article 2, thereof. Each State Party is mandated to take steps,
individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of
the rights recognized in the Convention by all appropriate means,
including particularly the adoption of legislative measures.
Progressive realization means “that a state is obligated to
undertake a program of activities… and to realize those rights which
are “recognized” by the Economic Covenant. While the obligation of
progressive realization is limited by resource constraints, the
Economic Covenant indicates that priority should be given to social
welfare and that the level of effort should increase over time. These
obligations apply to any state that has ratified the Economic
 175

Covenant, regardless of that state’s economic resources.”

What are the other conventions on Human Rights?

These include the 1948 Genocide Convention, the 1966
Convention on the Elimination of All Forms of Racial Discrimination,
the 1979 Convention on the Elimination of All Forms of Discrimination
Against Women, the 1984 Convention Against Torture and Other
Cruel, Inhuman, or Degrading Treatment or Punishment, the 1989
Convention on the Rights of the Child, and the 1990 Convention on
Migrant Workers.

What are some human rights principles that have become

customary law in the light of state practice?
These include the prohibition of torture, genocide, slavery and
the prohibition of discrimination.

What are the two important procedures being adopted by the

Human Rights Commission for responding to violation of human
rights?
An important UN body is the Human Rights Commission, a
subsidiary organ of ECOSOC. It is adopting two different procedures
for responding to violations of human rights.
2) Confidential consideration under ECOSOC Resolution 1503
It is also known as the 1503 Procedure or confidential procedure. It
authorizes the Sub-Commission on Prevention of Discrimination and
Protection of Minorities to appoint a working group consisting of not
more than five members to meet once a year in private meetings to
consider all communications, including replies of the government
concerned, with a view to bringing to the attention of the Sub-
Commission those communications which appear to reveal a pattern
of gross and reliably attested violations of human rights.
The confidential findings of the Sub-Commission are brought to the
 176

attention of the Commission on Human rights. The Commission on

Human Rights is expected to submit its report and recommendation
to the Economic and Social Council. The procedure is kept
confidential until such time as the Commission on Human Rights
decided to make recommendation to the ECOSOC.
2) Public debate procedure under ECOSOC Resolution 1235
The Commission on Human Rights was established in 1946 as a
subsidiary organ of ECOSOC. In 1967, ECOSOC Resolution 1235
authorized the Commission and its Subsidiary Commission on
Prevention of Discrimination and Protection of Minorities to examine
reports relevant to gross violations of human rights and to examine
reports relevant to gross violations of human rights and to examine
whether the violations revealed a consistent pattern and thereafter
make recommendations to ECOSOC.
Two types of activities are carried out by this procedure: First, it holds
annual public debates in which governments and NGOs are given the
opportunity to identify publicly country specific situations which
deserve attention. Second, it engages in studies and investigations
of particular situations through the use of various techniques the
Commission might deem appropriate.

What can result from these procedures?

Results may include embarrassment of countries referred that
might generate change in policy; pressure on government to take the
issue on a bilateral or multilateral level; statements of exhortation
from the Commission or call from the Commission for all available
information; the Commission might appoint a Special Rapporteur to
examine and submit a report on the issue; the Commission might ask
the Security Council to take up the issue with a view to promulgating
sanctions.

What is the International Criminal Court?

It is the first permanent, treaty based, international criminal
 177

court established to promote the rule of law and ensure that the
gravest international crimes do not go unpunished.
It shall be a permanent institution and shall have the power to
exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in the Rome Statute, and shall be
complementary to national criminal jurisdictions. (Rome Statute, Art.
1) (Sarmiento, 2007)
It was established by the Rome Statute of the International
Criminal Court on July 17, 1998, when 120 States participating in the
“United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court” adopted the Statute.
The Statute enteres into force on July 1, 2002 and anyone who
commits any of the crimes under the Statute after this date will be
liable for the prosecution by the Court.

What is the Rome Statute?

The Rome Statute established the ICC. The Statute was
opened for signature by
All states in Rome on July 17, 1998 and had remained open for
signature until December 31, 2000 at the UN Headquarters in New
York. The Statute entered into force on July 1, 2002.

May the provisions of the Rome Statute be given retroactive

effect?
No, the Rome Statute applies the principle of non-retroactivity
ratione personae. Article 24 of the Statute states that “no person
shall be criminally responsible under this Statute for conduct prior to
the entry into force on July 1, 2002 and therefore crimes committed
prior to that date will not be liable for prosecution by the ICC.

Where is the seat of the ICJ?

The seat of the Court is The Hague in The Netherlands. The
 178

Court will be temporarily housed at “de Arc” on the outskirts of The

Hague before moving to its permanent premises at the
Alexanderkazerne. (Art. 3)

Does the ICC have international legal personality?

Yes, the Court shall have international legal personality. It shall
also have such legal capacity as may be necessary for the exercise
of its functions and the fulfillment of its purposes.

What are the crimes falling under the jurisdiction of the ICC?
The jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole. The
Court has jurisdiction in accordance with this Statute with respect to
the fo9llowing crimes:
5) The crime of genocide;
6) Crimes against humanity;
7) War crimes;
8) The crime of aggression.

Would the ICC replace national or domestic criminal courts?

No, it will not replace national or domestic courts but will be
complementary to national criminal jurisdiction. The Court will only
investigate and prosecute if a State is unwilling or unable to genuinely
prosecute. This will be determined by the judges. Unjustified delays
in proceedings as well as proceedings which are merely intended to
shield persons from criminal responsibility will not render a case
inadmissible before the ICC (Art. 17)

May the accused be tried in absentia before the ICC?

No, the Rome Statute applies the principle of presence. Article
 179

63 of the Statute states that the accused shall be present during the
trial.
However, if the accused, being present before the Court,
continues to disrupt the trial, the Trial Chamber may remove the
accused and shall make provision for him or her to observe the trial
and instruct counsel from outside the courtroom, through the use of
communications technology, if required. Such measures shall be
taken only in exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for such duration as is
strictly required.

Is the rule on presumption of innocence applicable to the ICC?

Yes, Article 66 of the Statute affirms the rule on presumption of
innocence until proved guilty before the Court in accordance with the
applicable law. The onus (burden) is on the Prosecutor to prove the
guilt of the accused and in order to convict the accused, the Court
must be convinced of the guilt of the accused beyond reasonable
doubt.

 180

CHAPTER XIV:
USE OF FORCE SHORT OF WAR
 181

What is the basic principle found in the UN Charter with respect

to the recognition of the autonomy of individual states and their
right to freedom from coercion and to the integrity of their
territory?
Article 2(4) provides that, “All Members shall refrain in their
international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations”.
(Bernas, 2009)
This same provision is considered the legal prohibition against
the use of force in International Law. (Sarmiento, 2007).

Does Article 2(4) of the UN Charter absolutely outlaw the threat

or use of force outside the UN Charter?
There are two conflicting views on this matter:
a) The restrictive view, which is based on interpretation of the
principles underlying Article 2(4) of the UN Charter. Its proponents
claim that Article 2(4) was written with the view of abolishing war
entirely.
b) the qualified prohibition view, which is based on the plain
meaning of Article 2(4). Its proponents argue that Article 2(4) only
prohibits certain end results, i.e. when force is used against the
territorial integrity or political independence of any state. (Ibid)

What is the nature of the prohibition of the use of force as an

international law?
The prohibition is not just conventional law. It is a customary
international law. (Bernas, 2009)
 182

Is the threat of force also prohibited by the UN Charter?

In the discussion by the ICJ in the case of the Legality of the
Threat or Use of Nuclear Weapons, it declared that, “The notions of
‘threat’ and ‘use’ of force under Article 2, paragraph 4 stands together
in the sense that if the use of force itself in a given case is illegal – for
whatever reason - the threat to use such force will likewise be
illegal…” (Ibid)

What are the two considered exceptions to the general

prohibition of the use of force in Art. 2, par. 4 of the UN Charter?
a) Article 51 where the Charter recognizes the inherent right of
individual or collective self-defense if an armed attack occurs;
b) Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Chapter.
(Sarmiento, 2007)

Does the general prohibition of the use of force preclude the

right to self-defense?
Article 51 provides that the Charter shall not impair the inherent
right of individual or collective self-defense if an armed attack occurs
against a Member of the UN, until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-
defense shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
international peace and security. (Bernas, 2009)
 183

What are the limitations to the exercise of the right to individual

or collective self-defense?
a) whether self-defense be individual or collective, it can only
be exercised in response to an “armed attack” which shall include not
merely action by regular armed forces across an international border,
but also the sending by a State of armed bands on to the territory of
another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack had it been carried
out by regular armed forces;
b) collective self-defense cannot also be exercised in the
absence of a request by the State which is a victim of the alleged
attack this being additional to the requirement that the State in
question should have declared itself to have been attacked. (Ibid)

What are the requisites of self-defense under Article 51 of the

UN Charter?
a) an armed attack occurred against a member of the UN;
b) It must be “confined to cases in which the necessity of that
self-defense is instant, overwhelming, and leaving no choice of
means, and no moment for deliberation”;
c) The measures taken “ must be limited by that necessity and
kept clearly within it”;
d) The right of self-defense must give way to measures that
may be taken by the Security Council to maintain international peace
and security. (Sarmiento, 2007)

What are the requirements of “necessity and proportionality” in

self-defense?
They embody the requirements for a valid act of self-defense
as formulated by US Secretary of State Daniel Webster in his letter in
the Caroline Incident. According to him, self-defense was to “be
confined to cases in which the necessity of that self-defense is
 184

instant, overwhelming, and leaving no choice of means, and no

moment for deliberation” and that such actions justified by that
necessity ”must be limited by that necessity and kept clearly within it.”
These requirements apply whether a state is acting in self-
defense against an attack which has already occurred or acting in
anticipatory self-defense. (Malone, 148)
These requirements were affirmed by the ICJ in its decision in
Nicaragua vs. US, June 27, 1986. (Ibid)

What is the right of collective self-defense?

If the state is entitled to use force in self-defense under Article
51, other states are entitled to come to the defense of the attacked
state in collective self-defense. This right exists independently of the
existence of a mutual defense treaty between the attacked state and
the other states which come to its defense. (Ibid)

May a state exercise the collective right of self-defense without

an explicit request for assistance from the state on whose behalf
the right is to be exercised?
In Nicaragua vs US, the ICJ concluded that the US was not
entitled to come to the defense of El Salvador, Honduras, and Costa
Rica because at that time it had not been requested to do so. It held
that the exercise of the right of collective self-defense presupposes
that an armed attack has occurred; and the victim state draws
general attention to its plight and finally, the victim state makes an
express request to other states to come to its help. (Ibid)

Is anticipatory self-defense allowed?

Opinion on the subject is divided. Those who claim the
existence of the right say that the phrase “if an armed attack occurs”
is not exclusive which is reminiscent of the view that protection of
“vital interests” justifies the use of force.
 185

In practical terms, however, states do not invoke the right

because they are afraid that it might be used against them too. (Ibid)

What are the other measures of redress short of war that are
used by states?
a) severance of diplomatic relations;
b) non intercourse;
c) retorsion;
d) embargo;
e) reprisals;
f) display of force;
g) pacific blockade;
h) armed intervention without war;
i) international organizational sanctions. (Sarmiento, 2007)

Are these methods short of war allowed under International

Law?
With the adoption of the UN Charter, all measures short of war
that involves the threat or use of force against the territorial
jurisdiction or political independence of any state or in any other
manner inconsistent with the purposes of the UN are no longer
allowed. (UN Charter Art. 2[4])
All members of the UN shall settle their international disputes
by peaceful means in such a manner that international peace and
security, and justice, are not endangered. (Ibid, Art. 2[3])
However, this is without prejudice to the authority of the
Security Council under Chapter VII of the UN Charter to decide what
measures are to be employed to give effect to its decisions, and it
may call upon the Members of the UN to apply such measures which
may include:
 186

a) complete or partial interruption of economic relations and of

rail, sea, air, postal, telegraphic, radio, and other means of
communication;
b) the severance of diplomatic relations;
c) demonstrations;
d) blockade; and
e) other operations by air, sea or land forces. (Ibid)

What is severance of diplomatic relations?

Before resorting to one or other of the various forms of
coercion, it was common for governments to break off diplomatic
relations with the offending state by recalling their public ministers
resident at the foreign capital. However, this measure was not in
itself a form of forcible procedure, but rather to serve as a warning
that the issue between the two states had reached a point where the
injured party regarded normal diplomatic relations as no longer
compatible with the conduct of the other state, and that sterner
measures might possibly follow. (Fenwick, 531 as cited in Sarmiento,
2007)
Severance should be distinguished from suspension of
diplomatic relations. Suspension involves withdrawal of diplomatic
representation but not of consular representation. (Bernas, 2009)

What is non-intercourse?
It consists of suspension of all commercial intercourse with a
state.

What is retorsion?
It is any action taken in “retaliation where the acts complained
of do not constitute a legal ground of offense but are rather in the
 187

nature of unfriendly acts but indirectly hurtful to other states.”

(Fenwick, 532 as cited in Cruz, 2000) The act of retaliation is also
unfriendly but not illegal and may be in kind or of a different nature
than the act that provoked it. Examples of retorsions are severance
of diplomatic or consular relations, suspension of commercial
intercourse, boycott, stoppage of travel to the other state,
denunciation of treaties, imposition of higher tariffs and other trade
barriers, currency restrictions, denial of loans and withdrawal of
privileges previously enjoyed, recognition of a rival government, and
adverse propaganda.(Ibid)
Other author describes it as any of the forms of counter-
measures in response to an unfriendly act. Forms of retorsion
include shutting of ports to vessels of an unfriendly state, revocation
of tariff concessions not guaranteed by treaty, or a display of naval
forces near the waters of an unfriendly state. (Bernas, 2009)

Is retorsion valid under International Law?

As long as retorsion does not involve the threat or use of force,
it is valid under International law. (Sarmiento, 2007)

What are reprisals?

They are an act of self-help on the part of the injured state,
responding after an unsatisfied demand to an act contrary to
international law on the part of the offending state. They have the
effect of suspending momentarily in the relations of the two states the
observance of this or that rule of international law. They are limited
by the experience of humanity and the rules of good faith, applicable
in the relation of state with state.
They would be illegal if a previous act contrary to international
law had not furnished the reason for them. They aim to impose on
the offending state reparation for Arbitration, Portuguese-German
Arbitral Tribunal, 1928 as cited in Cruz, 2000)
 188

Justice Cruz enumerated the more common forms of reprisals

as to include a) display of force, as when the US Mediterranean
Fleet proceeded to and deployed along the coasts of Turkey in 1903
pending compliance with the demand for the return of an American
national kidnapped by a Turkish bandit; b) occupation of territory,
as when Italy seized the Greek island of Corfu in 1923 for the murder
of certain Italian officers in Greece; c) embargo or the detention by
the state seeking redress of the vessels of the offending state or its
nationals, whether such vessels are found in the territory of the
former or on the high seas, as illustrated by the action taken by
Holland against Venezuela in 1908; d) pacific blockade, by which
the vessels of the offending state are prevented from entering or
leaving its ports by the ships of the state seeking redress, as was
done by the Great Powers against Greece in 1886 to dissuade it from
going to war against Turkey. (2000)

When is act of reprisal legitimate?

In the Naulilaa Arbitration Case (Portugal vs Germany), 2 RIAA
1011(1928), the Versailles Swiss arbitral panel laid down three
conditions for the legitimacy of reprisals:
a) there must have been an illegal action on the part of the
other state;
b) they must be preceded by a request for redress of the wrong,
for the necessity of resorting to force cannot be established if the
possibility of obtaining redress by other means is not even explored;
c) the measures adopted must not be excessive, in the sense
of being out of all proportion to the vocation received. (Sarmiento,
2007)

In the present state of IL, may reprisals still be held legitimate?

Since the Kellog-Briand Pact of 1928 (Pact of Paris) all forms of
reprisals which may involve the use of force are no longer legal.
Article 2 of the Pact states that “the settlement or solution of all
 189

disputes or conflicts of whatever nature or of whatever origin they

may be shall never be sought except by pacific means.” This
prohibition was reaffirmed by the UN Charter, Art. 2 [3,4]. (Ibid)

What is embargo?
It is the prohibition of commerce and trade with the offending
state. Laying an embargo upon all vessels of the offending state that
happen at the time to be in the ports of the state seeking redress
does not contemplate confiscation (which is considered an act of
war), except in the event that the redress for injuries suffered should
be finally refused. (Fenwick, 534 cited in Sarmiento, 2007)
This can consist of seizure of vessels even in the high seas. It
might also be pacific, as when a state keeps its own vessels for fear
that it might find their way in foreign territory. There can also be
collective embargo, e.g. on import of drugs or of oil. (Bernas, 2009)

What is boycott? Does it constitute a violation of IL?

It is a concerted action undertaken by the citizens of one state
to suspend trade and business relations with the citizens of the
offending state. So long as the boycott is a purely voluntary act on
the part of the citizens acting individually or in concert, it is a measure
that falls outside of the scope of IL. But if any element of
governmental pressure, or even of governmental persuasion should
enter into boycott, there would be ground for protest by the foreign
government. (Fenwick, 535 cited in Sarmiento, 2007)
It is a form of reprisal which consists of suspension of trade or
business relations with the nationals of an offending state. Some
claim that this is a form of economic aggression which should be
prohibited by law. (Bernas, 2009)
 190

What is blockade?
It is any effort to cut off all maritime commerce between an
enemy state and the rest of the world. The purpose was not only to
prevent goods from reaching the enemy but also to prevent the
enemy from exporting to the outside world and thereby sustaining its
war economy. (Sarmiento, 2007)

What three things must be specified in a declaration of

blockade?
Article 9 of the 1909 Declaration of London concerning Laws of
Naval War enumerates the things that a declaration of blockade must
specify:
a) the date when the blockade begins;
b) the geographical limits of the coastline under blockade;
c) the period within which neutral vessels may come out. (Ibid)

Is blockade lawful in international law?

A blockade is lawful if made upon the order or authority of the
UN Security Council pursuant to Article 42 of the UN Charter, that is,
as a measure to maintain or restore international peace and security.
Otherwise, if not authorized by the Security Council, then it will fall
under the UN Charter’s general prohibition against the use of force
under Article 2(4). (Ibid)

In the event that none of the above-discussed methods

succeeds in settling the dispute, or even if they are not
employed, may the UN be asked or decide on its own authority
to take a hand in the settlement?
Yes, this task is addressed principally to the Security council
but may, when the occasion requires, be taken over by the General
Assembly under proper conditions. (Cruz, 2000)
 191

What disputes are within the Security Council’s jurisdiction?

a) all disputes affecting international peace and security (UN
Charter Arts. 24, 34);
b) all disputes which, although coming under the “domestic
jurisdiction clause,” have been submitted to it by the parties for
settlement (Ibid, Article 2) (Cruz, 2000)

How may such disputes be brought to the attention of the SC?

a) by the SC itself, on its own motion (Ibid, Art.39);
b) by the GA (Arts 10 & 11);
c) by the Secretary General (Art. 99);
d) by any member of the UN (Art. 35);
e) by any party to the dispute, provided that in the case of non-
members of the UN, they should accept in advance, for purposes of
the dispute, the obligations of pacific settlement under the Charter.
(Arts. 35 & 37) (Cruz, 2000)

What are the steps under the UN Charter that shall be taken by
the SC in settling disputes brought to its attention?
1) when it deems necessary, call on the parties to settle the
dispute by any peaceful means in their own choice (Art 33);
b) in case the parties are unable to adjust their differences by
themselves through the peaceful methods suggested, it may
recommend appropriate measures or methods of adjustment, taking
into consideration: a) any amicable measures already adopted by the
parties; and b) that legal disputes should as a rule be referred to the
ICJ (Art. 36);
c) if the above measures prove unavailing, then it may
recommend such actual terms of settlement as it may consider
 192

appropriate (Art 36) which is in the nature of a compulsory settlement

of the dispute which the parties are under obligation to abide by in the
interest of international peace and security.
d) finally, where the terms of settlement are rejected by any of
the parties, it is empowered to take more drastic steps which include:
1) preventive action which consists of measures not
involving the use of armed force, such as complete or partial
interruption of economic relations and of rail, sea air, postal,
telegraphic, radio and other means of communication, and
severance of diplomatic relations (Art 41);
2) enforcement action which may be taken if the above
measures would be or have proved inadequate, or such action by
air, sea or land forces as may be necessary to maintain or restore
international peace and security. It may include demonstrations,
blockades, and other operations by air, sea, or land forces of
members of the UN (Art 41). (Cruz, 2000)

What is the Military Staff Committee?

It consists of the chiefs of staff of the permanent members of
the SC or their representatives. It is supposed to advise and assist
the SC on all questions relating to its military requirements for the
maintenance of international peace and security, the employment and
command of forces placed at its disposal, the regulation of
armaments, and possible disarmament. It shall also be responsible
under the SC for the strategic direction of any armed forces placed at
the disposal of the said Council (Art 47). (Cruz, 2000)

What is “Uniting for Peace Resolution”?

This provides that “if the Security Council, because of lack of
unanimity of the permanent members, fails to exercise its primary
responsibility for the maintenance of peace and security in any case
where there appears to be threat to the peace, breach of peace, or
act of aggression, the General Assembly shall consider the matter
 193

immediately with a view to making recommendations to the members

for collective measures, including in the case of breach of the peace
or act of aggression, the use of armed forces when necessary, to
maintain or restore international peace and security.” (Ibid)

What if the GA is not in session at the time?

The GA may meet in emergency special session within 24
hours of the request therefor either by any nine members of the SC or
by a majority of the members of the UN.
Conformably to this resolution, the General Assembly on
November 4, 1956, provided for the establishment of an international
“police force” under the UN command to supervise the area involved
in the Suez Canal crisis, in which two of the permanent members of
the SC were directly involved. (Cruz, 2000)

Distinguish enforcement action from peacekeeping forces?

Enforcement action involving deployment of troops differs from
peacekeeping forces in that enforcement action is imposed without
the consent of the state against which such action is directed, while
peacekeeping forces are deployed with the consent of the state
concerned like the first United nations Emergency Forces (UNEF 1)
which was deployed by the GA with the consent of Egypt in 1956 and
the ONUC (Operation des Nations Unies au Congo) which was
deployed by the SC in 1960 with the consent of Congolese
government during the Congolese civil war. (Malone, 144-145 cited in
Sarmiento, 2007).

Is the preservation and maintenance of international peace and

security the “exclusive” responsibility of the SC?
No, the preservation and maintenance of international peace
and security is the “primary”, but not the “exclusive,” responsibility of
the SC. (Certain Expenses Case)
 194

The preservation and maintenance of international peace and

security is the obligation of all members of the UN and the
responsibility of the Organization itself, which must be discharged
primarily through the SC and secondarily through the GA. (Sarmiento,
2007)

Is protection of nationals abroad an aspect of the right to self-

defense in Article 51?
Though the legitimacy of such intervention is not firmly
established in international law, the proponents believe that such
position can be defended since population is an essential element of
statehood. Others argue that Article 2(4) does not prohibit it because
it does not compromise the “territorial integrity or political
independence” of a state.
Examples of forcible rescue of nationals are the raid of Entebee
in Uganda and the US intrusion into Stanleyville to rescue American
students. (Bernas, 2009)

When is “humanitarian intervention” permissible?

a) if the SC determines that massive violations of human rights
occurring within a country constitute a threat to the peace; and
b) SC then calls for or authorizes an enforcement action to put
an end to these violations. (Ibid)

What is intervention in international law?

Justice Cruz includes intervention along with retorsions and
reprisals in the hostile methods of settling international disputes.
It is defined as an act by which a state interferes with the
domestic or foreign affairs of another state or states through the
employment of force or threat of force. Such force may be physical
or, in the present state of world affairs, even political or economic.
 195

Lacking such pressure, the involvement of a state in the affairs of

another, even if unsolicited, cannot be considered intervention.
Intervention is not sanctioned in international relations except
only when it is exercised as an act of self-defense or when it is
decreed by the SC as a preventive or enforcement action for the
maintenance of international peace and security. Other others add
as exception if intervention is agreed upon in a treaty. Intervention
may also be allowed when requested from sister states or from the
UN by the parties to a dispute or by a state beset by rebellion. (Cruz,
2000)
 196

CHAPTER XV:
THE LAW OF WAR
(INTERNATIONAL HUMANITARIAN LAW)
 197

What is International Humanitarian Law?

It used to be known as Laws of War which provides for
instances when the use of armed force is justifiable (jus ad bellum)
and it regulates the conduct of armed conflict (jus in bello). (Bernas,
2009)
It is a set of rules which seek, for humanitarian reasons, to limit
the effects of armed conflict. It protects persons who are not or are
no longer participating in the hostilities and restricts the means and
methods of warfare. (ICRC Fact Sheet, What is International
Humanitarian Law cited in Sarmiento, 2007)

Did early international law consider war as unlawful?

No. Early international law did not consider as unlawful a war
waged to gain political or other advantages over another. In fact, war
was in law a natural function of the State and a prerogative of its
uncontrolled sovereignty. (Hyde, 1922 cited in Bernas, 2009)

Prior to World War II, what were the early attempts to outlaw
war?
Early attempts to outlaw war were found in Hague Convention II
in 1907, Covenant of the League of Nations (1919), and in the Kellog-
Briand Pact for the Renunciation of War (1928). (Ibid)

What law formulated after the second world war was considered
more effective on preventing war?
The UN Charter which provides:“ All Members shall refrain in
their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.”
Art 2(4) (Ibid)
 198

How can the paradox, that despite the prohibition of armed

conflict there is the proliferation of laws of war, be explained?
Three facts can explain the paradox:
1) Those who resort to the use of arms do not give up until they
have achieved victory;
2) Given the first fact, humanitarian consideration dictate the
need for rules which curtail violence beyond what is necessary
to achieve a state’s goal; and
3) There still remains in the hearts of the soldiery an
acceptance of chivalry as a value (Ibid)

What were the provisions of the Hague Law?

The Conventions and Declaration in 1899 and the conferences
held in 1907 produced principles that constitute that part of the law of
armed conflict still known as the Law of the Hague governing land
and naval warfare. Principles governing the conduct of air warfare
were to follow later. (Ibid)

What do Geneva Conventions of 1949 provide?

There were four Geneva “Red Cross” Conventions which
consist of the following:
1) I – Wounded and Sick in the Field;
2) II - Wounded, Sick and Shipwrecked at Sea;
3) III - Prisoners of War;
4) IV – Civilians
The essence of the Geneva conventions is that persons not
actively engaged in warfare should be treated humanely. The rules
apply to any international armed conflict, whether a declared war or
not. (Ibid)
 199

How are non-parties to these Conventions bound by them?

Since much of what is embodied in the Hague and Geneva
Conventions are customary law, non-parties to the Convention are
covered by the customary law of armed conflict. It has become
common practice, when one of the parties to the conflict is not a party
to the conventions, for such party to make a declaration that it will
abide by the terms of the Convention. (Ibid)

What are the three statements of the ICRC which sum up the
basic rules governing armed conflicts?
1. Soldier’s Rules;
2. Fundamental Rules of International Humanitarian Law Applicable
to Armed Conflicts; and
3. Non-international Armed Conflicts

How are the agreements or conventions on the laws of war

enforced?
The commonly accepted sanctions are:
1) protest lodged by one belligerent, usually accompanied or
followed by an appeal to world opinion against the unlawful acts
of warfare committed by the other belligerent;
2) reparation for damages caused by the defeated belligerent;
and
3) punishment of war criminals (Cruz, 2000)

How does war commence?

War may start with a declaration of war (The Hague
Conventions of 1907); with the rejection of an ultimatum, or with the
commission of an act of force regarded by at least one of the
belligerents as an act of war. (Cruz, 2000)
 200

What are the effects of the outbreak of war?

1) The laws of peace cease to regulate the relations of the
belligerents and are superseded by the laws of war. Third states are
governed by the laws of neutrality in their dealings with the
belligerents.
2) Diplomatic and consular relations between the belligerents are
terminated and their respective representatives are allowed to return
to their own countries.
3) Treaties of political nature, such as treaties of alliance, are
automatically cancelled, but those which are precisely intended to
operate during war, such as one regulating the conduct of hostilities
between the parties, are activated. Multipartite treating dealing with
technical or administrative matters, like postal conventions, are
deemed merely suspended as between the belligerents.
4) Individuals are impressed with enemy character:
a) under the nationality test, if they are nationals of the other
belligerent, wherever they may be; b) under the domiciliary
test, if they are domiciled aliens in the territory of the other
belligerent, on the assumption that they contribute to its
economic resources; and c) under the activities test, if being
foreigners, they nevertheless participate in the hostilities in
favor of the other belligerent.
Corporations and other juridical persons, on the other hand, are
regarded as enemies if a majority or a substantial portion of
their capital stock is in the hands of enemy nationals or if they
have incorporated in the territory or under the laws of the other
belligerent.
5) Enemy public property found in the territory of the other belligerent
at the outbreak of hostilities is, with certain exceptions, subject to
confiscation. Enemy private property may be sequestered, subject to
return, reimbursement or other disposition after the war in
accordance with the treaty of peace. (Ibid)
 201

Who are combatants?

The following are regarded as combatants:
1) the members of the armed forces, whether pertaining to the army,
the navy or the air force, except those not actively engaged in
combat, such as chaplains and medical personnel;
2) the irregular forces, such as the francs tireurs or the guerillas,
provided, that: a) they are commanded by a person responsible for
his subordinates; b) they wear a fixed distinctive sign recognizable at
a distance; c) they carry arms openly; and d) they conduct their
operations in accordance with the laws and customs of war.
3) the inhabitants of unoccupied territory who, on approach of the
enemy, spontaneously take arms to resist the invading troops without
having had time to organize themselves, provided only that they carry
arms openly and observe the laws and customs of war. This is often
referred to as levee en masse.
4) the officers and crew of merchant vessels who forcibly resist
attack.

What are the rights accorded to combatants when captured?

1) right to the proper respect commensurate with their rank;
2) right to adequate food and clothing;
3) right to safe and sanitary quarters;
4) right to medical assistance;
5) right to refuse to give military information or render military
service against their own state;
6) right to communicate with their families.
Non-combatants or those who do not engage directly in
hostilities do not enjoy identical rights when captured but are
protected from inhumane treatment under the Geneva
Convention of 1949 relative to the treatment of civilian persons
in time of war.
 202

What are the three basic principles underlying the rules of

warfare?
1) principle of military necessity
Under this principle, the belligerents may, subject to the other
principles, employ any amount and kind of force to compel the
complete submission of the enemy with the least possible loss of
lives, time and money. Measures such as sieges, blockades,
bombardments, and devastation of property, which may involve direct
hardships on the non-combatants within the area affected, are
undertaken under this principle.
2) principle of humanity
This principle prohibits the use of any measure that is not
absolutely necessary for the purposes of the war, such as the
poisoning of wells and weapons, the employment of dumdum or
expanding bullets and asphyxiating gases, the destruction of works of
art and property devoted to religious or humanitarian purposes, the
bombarding of undefended places, and attack of hospital ships.
When an enemy vessel is sunk, the other belligerent must see
to the safety of the persons on board. Pillage ( taking of goods by
force in time of war) is prohibited. The wounded and the sick must be
humanely treated without distinction of nationality by the belligerent in
whose power they are. The rule that a combatant who surrenders
may not be killed and the agreements relating to the treatment of
prisoners of war also fall under this principle.
3) the principle of chivalry
This principle is the basis of such rules as those that require the
belligerents to give proper warning before launching a bombardment
or prohibit the use of perfidy (treachery or faithlessness) in the
conduct of hostilities.
False flags are not allowed in land warfare, but war vessels
may sail under a flag not their own, subject only to the requirement
that they haul it down and hoist their own flag before attacking the
other belligerent. Espionage is also prohibited. (Ibid)
 203

When can an individual be considered a spy?

An individual can only be considered a spy if, acting
clandestinely or on false pretenses, he obtains, or seeks to obtain,
information in the zone of operations of a belligerent, with the
intention of communicating it to the hostile party. Spies are subject to
the municipal law of the other belligerent except that, as provided in
the Hague Conventions of 1907, “ a spy taken in the act cannot be
punished without previous trial”. A spy who succeeds in rejoining his
army and is later captured incurs no responsibility for his previous
acts of espionage and is entitled to be treated as a prisoner of war.
(Articles 30 & 31 as cited in Cruz, 2000)

Is booty or personal property found in the battlefield subject to

confiscation?
Yes, except only the personal belongings of the individual
combatants which have no military value such as jewelry.

Distinguish theatre of war from region of war?

The first is the place where the hostilities are actually
conducted while the second is the greater area where the belligerents
may lawfully engage each other.

When is a territory deemed occupied by a belligerent?

It is deemed occupied when it is actually placed under the
authority of the hostile army, but this occupation is limited only to the
area where such authority has been established and can be
effectively exercised. It is not necessary that every square foot of the
territory in question be actually occupied, as it doubtless suffices that
the occupying army can, within a reasonable time, send detachment
of troops to make its authority felt within the occupied district. (Hyde,
Vol.2, 364 cited in Cruz, 2000)
 204

What are the consequences of belligerent occupation?

1. It does not result in transfer or suspension of the sovereignty of the
legitimate government although it may at the moment unable to
exercise it.
2. The belligerent occupant cannot perform such acts as declaring
the independence of the occupied territory or requiring its inhabitants
to renounce their allegiance to the lawful government.
3. The belligerent is required to restore and ensure public order and
safety while respecting, unless absolutely prevented, the laws in force
in the country more particularly with regard to family honor and rights,
the lives of persons, private property, and religious convictions and
practice. (Hague Convention No. IV, 1907, Reg., Arts 53-56)
4. Whenever necessary, the belligerent occupant may promulgate
new laws, non-political as well as political, provided they do not
contravene the generally accepted principles of international law.
Political laws are automatically abrogated upon the end of the
occupation but the non-political laws may continue even beyond the
occupation unless they are expressly repealed or modified by the
legitimate government. (Hilado vs Dela Costa, April 30, 1949)
5. The belligerent occupant is permitted to exact from the populace
contributions over and above the regular taxes for the needs of the
army of occupation or for the administration of the territory. (HC No.
IV, 1907, Reg., Arts 49-51) It may also, for valuable consideration,
make requisitions of things or services for the needs of the occupying
forces. (Ibid, Art.52)
6. The belligerent occupant is permitted to introduce military currency,
provided the purpose is not to debase the country’s economy. Thus,
in Haw Pia vs China Banking Corporation (80 Phil 604), the Supreme
Court upheld the validity of the payments made by the plaintiff in
Japanese military notes to settle a loan extended to her in Philippine
currency before the outbreak of the Pacific war.
7. Private property cannot be confiscated, but those susceptible of
military use may be seized, subject to restoration or compensation
when peace is made. (HC No. IV, Reg., Arts 53-56) The property of
municipalities and of institutions dedicated to religion, charity and
education, and the arts and sciences, even when state-owned, shall
 205

be treated as private property, and their destruction is expressly

forbidden. (Ibid)
8. The army of occupation can only take possession of cash, funds
and realizable securities which are strictly the property of the state,
depots of arms, means of transport, stores and supplies, and
generally movable property of the state, depots of arms, means of
transport, stores and supplies, and generally movable property
belonging to the state which may be used for military operations.
(Ibid) All appliances, whether on land, at sea, or in the air, adapted for
the transmission of news, or for the transport of persons or things,
exclusive of cases governed by naval law, depots of arms and
generally all kinds of ammunition of war may be seized but must be
restored and compensation fixed when peace is made.(Ibid)
9. The occupying state shall be regarded only as administrator and
usufructuary of public buildings, real estate, forests, agricultural
estates belonging to the hostile state and situated in the occupied
territory. (Ibid, Art 55)
This rule was applied in Banaag vs Singson Encarnacion (April 19,
1949), where a lease of five years granted by Philippine Executive
Commission in 1942 over certain municipal fisheries was deemed
automatically canceled upon the re-establishment of the
Commonwealth government. (Ibid)

What is the right of postliminy or postliminium?

It “is that in which persons or things taken by the enemy are
restored to the former state on coming actually into the power of the
nation to which they belong”. (Vattel in Leitensdorfer vs Webb, 1 N.M.
34, 44 cited in Cruz, 2000) In its broadened concept, the jus
postliminium also imports the reinstatement of the authority of the
displaced government once control of the enemy is lost over the
territory affected.
Thus, upon the end of a belligerent occupation, the laws of the
re-established government are revived and all acts taken by the
belligerent occupant which it could not legally do under the law of
nations, as well as lawful acts of a political complexion, are
invalidated.
 206

What are the non-hostile intercourse?

1. A flag of truce is a white flag carried by an individual authorized
by one belligerent to enter into communications with the other. The
bearer, or parlementaire, is entitled to inviolability as long as he does
not take advantage of his privileged position to commit an act of
treachery. But the other belligerent is not obliged to receive a flag of
truce. (HC No. IV, 1907, Reg., Arts. 32, 34; Fenwick, 578; Wilson and
Tucker, 294 cited in Cruz, 2000)
2. Cartels are agreements to regulate intercourse during war on
such matters as postal and telegraphic communication, the reception
of flags of truce, and the exchange of prisoners. A cartel ship is a
vessel sailing under a safe-conduct for the purpose of carrying
exchanged prisoners of war.(Fenwick, 575; Wilson and Tucker, 295
cited in Cruz, 2000)
3. A passport is a written permission given by the belligerent
government or its authorized agent to the subjects of the enemy state
to travel generally in belligerent territory. (Wilson and Tucker, 295
cited in Cruz, 2000)
4. A safe-conduct is a pass given to an enemy subject or to an
enemy vessel allowing passage between defined points. This is
given either by the belligerent government or by the commander of
the area within which it is effective. (Ibid)
5. A safeguard is a protection granted by a commanding office
either to enemy persons or property within his command. When it is
enforced by a detail of men, they must use extreme measures, if
necessary to fulfill their trust, and are themselves exempt from attack
or capture by the enemy.
6. A license to trade is a permission given by the competent
authority to individuals to carry on trade even though there is a state
of war. A general license grants to all the subjects of the enemy
state or to all its own subjects the right to trade in specified places or
in specified articles. A special license grants to a certain person the
right to trade in the manner specified in his license. (Ibid, 296)
 207

Distinguish suspension of arms from armistice.

A suspension of arms is a temporary cessation of the
hostilities by agreement of the local commanders for such purposes
as the gathering of the wounded and the burial of the dead. (Fenwick,
579; Wilson and Tucker, 297) Whereas, armistice is the suspension
of all hostilities within a certain area (local) or in the entire region of
the war (general) agreed upon by the belligerent governments,
usually for the purpose of arranging the terms of the peace. The
purpose of the armistice is political while that of suspension of arms is
military; armistice may be concluded only by the commanders-in-chief
of the belligerent governments while suspension of arms may be
agreed upon by the local commanders; and armistice is usually in
writing while suspension of arms may be oral. (Cruz, 2000)

What is a cease-fire?
A cease-fire is an unconditional stoppage of hostilities by order
of an international body like the UN Security Council for the purpose
of employing peaceful means of settling the differences between the
belligerents. (Salonga and Yap, 451-452 cited in Cruz, 2000)

What is a truce?
A truce is sometimes used interchangeably with armistice but
is now generally regarded as a cease-fire with conditions attached.
(Fenwick, 579 cited in Cruz, 2000)

What is a capitulation?
It is the surrender of military forces, places or districts in
accordance with the rules of military honor. (HC No. IV, 1907, Reg.
Art. 35)

How may war be terminated?

War may be terminated by any of the following:
 208

1) simple cessation of hostilities

Among the wars that were terminated by simple cessation of
hostilities are those between Sweden and Poland in 1716, between
France and Spain in 1720, between Spain and its American colonies
in 1825, and between France and Mexico in 1862-67. Under this
method, property or territory in the possession of the respective
belligerents upon the termination of the war is retained by them in
accordance with the principle of uti possidetis. This is to be
distinguished from the usual stipulation for the status quo ante,
which calls for the complete restoration to their former owners of
property or territory that may have changed hands during the
hostilities, with the exception only of prize and booty.
2) negotiated treaty of peace
At times, belligerents may be unable to effect a decisive victory
against each other and may decide finally to settle their disagreement
in what is known as a negotiated treaty of peace. One example was
the case of Great Britain and the US when they terminated the War of
1812 with the conclusion of the Treaty of Ghent.
3) defeat of one of the belligerents
The surrender of the defeated belligerent may either be
conditional or unconditional. In the former case, a treaty of peace is
concluded embodying the condition specified in the surrender; in the
latter, the victorious belligerent usually issues a unilateral declaration
announcing the end of the war, to be followed with a peace treaty
dictated by it and specifying the rules on the settlement of the
obligations of the vanquished state and the disposition of its
territories.

What are the consequences of war?

1) the implied judgment that the vanquished belligerent is the guilty
party in the dispute that caused the hostilities;
2) nationals of the vanquished state may be protected and punished
as war criminals and for other violations of international law who may
not escape responsibility on the ground that they were merely acting
on orders of their state; here the state itself is liable for issuing such
 209

orders and the individuals for obeying them provided a moral choice
was possible
In Yamashita vs Styer (75 Phil 563), the Commander General
of the Imperial Japanese Forces in the Philippines was convicted of
war atrocities by a military commission and sentenced to death by
hanging. He questioned his trial and conviction on the ground that
the military commission had no authority or jurisdiction to try him, but
the Philippine Supreme Court and the US Supreme Court affirmed
the sentence. The latter court declared that the acts directed against
the civilian population of an occupied country and against prisoners of
war are recognized in international law as violations of the law of war.
(Cruz, 2000)

When is a state said to be neutral?

A state is neutral if it does not take part, directly or indirectly, in
a war between other states.

How does neutrality differ from neutralization?

Neutrality is dependent solely on the attitude of the neutral
state, which is free to join any of the belligerents anytime it sees fit,
while neutralization is the result of a treaty wherein the duration and
the other conditions of the neutralization are agreed upon by the
neutralized state and other powers. This agreement governs the
conduct of the signatories whereas neutrality is governed by the
general law of nations. Neutrality obtains only during war while
neutralization is intended to operate in time of peace as well as in
time of war. Only states may become neutral but portions of states,
like islands, rivers and canals, may be neutralized.

May there be neutrality among members of the UN?

Yes, a state can become a member of the UN and still maintain
its neutrality. At present, several neutral states, like Austria, Finland,
Ireland, Sweden, and recently Switzerland in 2002, are members of
the UN. (sarmiento, 2007)
 210

What are the rights and duties of a neutral state?

A neutral state has the right and duty to abstain from taking part
in the hostilities and from giving assistance to either belligerent; to
prevent its territory and other resources from being used in the
conduct of hostilities by the belligerents, and to acquiesce in certain
restrictions and limitations that the belligerents may find necessary to
impose, especially in connection with international commerce.
(Schwarzenberger, 208, cited in Cruz, 2000)

What are the obligations of belligerents?

They are bound to respect the status of the neutral state,
avoiding any act that will directly involve it in their conflict, and to
submit to any lawful measures it may take to maintain or protect its
neutrality.

Is the use of neutral territory completely barred to the

belligerents?
No. The passage of sick and wounded troops is allowed
through a neutral state provided personnel and materials of war are
not also carried. (HC V 1907 Art. 12.) Persons bound for enlistment
in the belligerent armies may cross the neutral frontiers if they do so
individually or separately and nota s a body. (HC V 1907 Art 6) The
neutral state itself may give refuge to troops from the belligerent
forces but must intern them as far as possible, at a distance from the
theater of war. (HC V 1907 Art. 11) Escaped prisoners of war need
not be detained by the neutral state but must be assigned a place of
residence if they are allowed to remain. (HC V 1907 Art 13)

Is the neutral state obliged to prevent the export from or transit

through its territory of war supplies purchased from private
traders by the belligerents in the ordinary course of commerce?
No. But it is required to take reasonable diligence in preventing
the delivery of vessels constructed and armed in its territory for use
 211

by any of the belligerents. (in Alabama Claims Case, Great Britain

was found liable in damages to the US for violation of this duty)

Is the neutrality of one state compromised when its nationals

enlist in a belligerent army or engage in commerce with any of
the belligerents?
No. The neutrality of the state is not compromised in the
absence of special rules imposing upon the neutral state the duty of
intervening in the transaction. Except for these, international law
considers the relationship as strictly between the individual and the
belligerent states and whatever hardships may be suffered by its
nationals as a result thereof must, as a rule, be acquiesced in by the
neutral state.

What is contraband?
It refers to goods which, although neutral property may be
seized by a belligerent because they are useful for war and are
bound for a hostile destination. Absolute contraband are
necessarily useful for war under all circumstances, like rifles and
ammunition (Declaration of London, Articles 22, 24), whereas
conditional contraband, like food and clothes, have both civilian
and military purposes. “Free list” includes goods useful for war and
bound for the belligerents but exempted from the law on contraband
for humanitarian reasons like medicines and medical supplies for the
use of the sick and the wounded.
Absolute contraband are subject to seizure so long as they are
bound for enemy or enemy-held territory, (Ibid, Art 29) but conditional
contraband may be seized only when it can be shown that they are
destined for the armed forces or the authorities of the belligerent
government. (Ibid, Art. 33)

What is the doctrine of ultimate consumption?

Under this doctrine, goods intended for civilian use which may
ultimately find their way to and be consumed by the belligerent forces
are also liable to seizure on the way. (Cruz, 2000)
 212

What is the doctrine of infection?

Under this doctrine, if innocent goods belonging to the same
owner are shipped together with contraband which are subject to
condemnation, innocent goods may also be confiscated. (Declaration
of London, Art. 42)

Is the vessel carrying the contraband subject also to

confiscation?
Only if the contraband are more than one-half of the total cargo
by weight, value, freight or volume (Ibid, Art 40)

What is the doctrine of ultimate destination?

Under this doctrine, the liability of contraband to capture is
determined not by their ostensible but by their real destination. (Cruz,
2000)
This doctrine is called the doctrine of continuous voyage when
the goods are reloaded at the intermediate port on the same vessel
and the doctrine of continuous transport when they are reloaded on
another vessel or other form of transportation. (Ibid)

What is unneutral service?

It consists of acts, of a more hostile character than carriage of
contraband or breach of blockade, which are undertaken by merchant
vessels of a neutral state in aid of any of the belligerents. (Ibid)

When is a neutral vessel liable to condemnation for unneutral

service?
a) if it is making a voyage special with a view to the transport of
individual passengers who are embodied in the armed forces of the
enemy or with a view to the transmission of information in the interest
of the enemy; or
 213

b) if with the knowledge of the owner, or the one who charters the
entire vessel, or of the master, it is transporting a military detachment
of the enemy or one or more persons who, during the voyage, lend
direct assistance to the operations of the enemy. The cargo, if
belonging to the owner of the vessels, is likewise
confiscable.(Declaration of London, Art. 45)

When is a neutral vessel liable to condemnation and to be

treated as a merchant vessel of the enemy?
a) if it takes a direct part in the hostilities;
b) if it is under the orders or control of an agent placed on board by
the enemy government;
c) if it is chartered entirely by the enemy government; or
d) if it is at the time and exclusively either devoted to the transport of
enemy troops or the transmission of information in the interest of the
enemy. The goods belonging to the owner of the vessel are likewise
liable to condemnation. (Ibid, Art 46)

What is angary?
By the right of angary, a belligerent may, upon payment of just
compensation, seize, use or destroy, in case of urgent necessity for
purposes of offenses or defense, neutral property found in its
territory, in enemy territory, or on the high seas. (Oppenheim-
Lauterpacht, Vol 2, 28 cited in Cruz, 2000)
Thus, the exercise of this right is conditioned upon three
requisites:
a) that the property is in the territory under the control or
jurisdiction of the belligerent;
b) that there is urgent necessity for the taking; and
c) that just compensation is paid to the owner. (Cruz, 2000)
 214

What is a prize court? What are its duties and jurisdiction?

Prize courts are domestic tribunals of a belligerent state that
determined the legality of the capture by a belligerent of enemy or
neutral merchant vessels and of their liability to confiscation.
Although the authority and the jurisdiction of prize courts were
derived from national law, the rules which they applied were the rules
of International Law, except in so far as special national legislation
might have prescribed a particular interpretation of these rules.
(Fenwick, 644 cited in Sarmiento, 2007)

How is neutrality terminated?

1) when the neutral state itself joins the war;
2) upon the conclusion of peace (Cruz, 2000)

Do civil wars or rebellion violate international law?

No, Article 2(4) of the UN Charter does not apply to internal
conflicts. (Bernas, 2009)

Is outside help for governments experiencing rebellion

legitimate?
Generally, yes, provided requested by the government.
However, aid to rebels is contrary to international law.

What international law on armed conflict is applicable to internal

conflicts?
Common Article 3 of each of the four Geneva Conventions
provides for minimum humanitarian protection in cases of internal
conflict.
 215

What is Protocol II?

It is the first and only international agreement exclusively
regulating the conduct of parties in a non-international armed conflict
promulgated in 1977. It “develops and supplements Article 3
common to the Geneva Conventions of 12 August 1949 without
modifying its existing conditions or application.” A definition of a non-
international armed conflict covered by this expanded guarantee is
found in Article 1. It states:
A non-international armed conflict are armed conflicts which
take place in the territory of a High Contracting Party between its
armed forces and dissident armed forces or other organized armed
groups which, under responsible command, exercise such control
over a part of its territory as to enable them to carry out sustained and
concerted military operations and to implement this Protocol. (Bernas,
2009)

Is Protocol II applicable to situations of internal disturbances

and tensions?
No, Protocol II shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and sporadic acts
of violence and other acts of a similar nature, as not being armed
conflicts. (Art 1 of the Protocol II) This is true even if the armed
forces of the territory may have been called upon to suppress the
disorder. (Ibid)

May terrorist attacks be the subject of an enforcement action by

the UN Security Council?
Yes, terrorist attacks may be considered as threats to
international peace and security which would justify the calling of
enforcement actions under Chapter VII of the UN Charter.
(Sarmiento, 2007)
 216

Are terrorist acts subject to IHL?

No. Banditry, unorganized and short-lived insurrections, and
terrorist activities are not subject to IHL. (Ibid)
 217

CHAPTER XVI:
INTERNATIONAL
ENVIRONMENTAL LAW
 218

How does the Philippine Constitution express the concern about

the environment?
Article II, Section 16 provides that, “ The State shall protect and
advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.”
The discussions in the 1986 Constitutional Commission
manifested a clear desire to make environmental protection and
ecological balance conscious objects of police power. (4 Record of
the Constitutional Commission 912-916 cited in Bernas, 2009)

What are the foremost environmental cases decided by the

Supreme Court upholding the constitutional provisions on
environmental concerns?
1. Oposa vs Factoran 224 SCRA 792 (1993)
2. LLDA vs CA 231 SCRA 292 (1994)
3. Social Justice Society vs Atienza February 13, 2008
4. MMDA vs Residents of Manila Bay December 18, 2008

Why is the protection of the environment considered a challenge

to the development of international law?
The protection of the environment is considered a challenge to
the development of international law because its demands cannot be
met without intrusion into the domestic jurisdiction and sovereignty of
states. The nature and magnitude of the challenge are such that they
require not only the joint action of states but also the involvement of
non-state actors. (Bernas, 2009)

What consist concern of environmental protection?

The concern of environmental protection is not just about the
atmosphere, the sea, the land, flora and fauna. It is also about the
preservation of the cultural heritage of mankind as found in
archeological and artistic remains. (Ibid)
 219

What is the goal of environmental protectionists?

Their goal is the rational use of the elements that make up the
environment through control, reduction and, wherever possible,
elimination of the causes of environmental degradation. (Ibid)

Are environmental concerns related to human rights issues?

Yes, they are inseparably related. In the Danube Dam Case,
the ICJ held that, “The protection of the environment is a …vital part
of contemporary human rights doctrine, for it is a sine qua non for
numerous human rights such as the right to health, and the right to
life itself.” (ICJ Rep 1997 cited in Bernas, 2009)

Who have environmental rights?

The real object of protection in protecting the environment are
persons capable of having rights. (Ibid)

What is sustainable development?

It is an important concept in the field both of economics and
environmental rights. The concept of sustainable development
encourages development in a manner and according to methods
which do not compromise the ability of future generation and other
states to meet their needs. (Ibid)

What is long-range transboundary air pollution?

It means air pollution whose physical origin is situated wholly or
in part within the area under the national jurisdiction of one State and
which has adverse effects in the area under the jurisdiction of another
State at such a distance that it is not generally possible to distinguish
the contribution of individual emission sources or groups of sources.
(1979 Convention on Long-Range Transboundary Air Pollution, Art.
1[b] cited in Sarmiento, 2007)
 220

What is the Good Neighborliness principle?

This principle prohibits States from using or permitting the use
of its territory in a manner that is injurious to another State, or that
other State’s persons or property. This principle is now codified in
Principle 21 of the Stockholm Declaration and in principle 2 of the Rio
Declaration (Earth Summit). (Sarmiento, 2007)

What Roman law principle underlies the Good Neighborliness

Principle?
Sic utere tuo ut alienum non laedas. So use your own as not to
injure the rights of others. (Ibid)

What are the possible bases of liability for transboundary

pollution under International Law?
There are several theories of liability for transboundary
pollution:
a) An absolute duty to protect against harm from ultrahazardous
activities, which if violated, results in a state being held strictly liable;
b) “Abuse of Rights” Theory: responsibility for negligent or intentional
acts;
c) “Good Neighborliness” Principle: liability for a State which permits
transboundary pollution to exceed that which neighbors can
reasonably be expected to endure. (Malone, 217 cited in Sarmiento,
2007)

What are the major instruments that have shaped the modern
development of international environmental law?
a) The Stockholm Declaration on the Human Environment which was
adopted at the 1972 UN Convention on the Human Environment, held
in Stockholm, Sweden;
 221

b) The Rio Declaration on Environment and Development, which was

adopted at the 1992 Rio Conference on Environment and
Development, also known as the “Earth Summit” – it reaffirms the
Stockholm Declaration with the goal of establishing a new and
equitable global partnership through the creation of new levels of
cooperation among States, key sectors of societies and people. (Ibid)

What are the important principles contained in the Stockholm

Declaration on the Human Environment?
a) Principle 1: Man has the fundamental right to freedom, equality
and adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and
future generations.
b) Principle 21 (Principle of Good Neighborliness) States have the
sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national
jurisdiction.
c) Principle 22: States shall cooperate to develop further the
International Law regarding liability and compensation for the victims
of pollution and other environmental damage caused by activities
within the jurisdiction or control of such states to areas beyond their
jurisdiction. (Ibid)

What are some of the important principles contained in the 1982

Rio Declaration (Earth Summit)?
a) Principle 2: States have the sovereign right to exploit their own
resources pursuant to their own environmental and developmental
policies, and the responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.
 222

b) Principle 3: The right to development must be fulfilled so as to

equitably meet developmental and environmental needs of present
and future generations.
c) Principle 13: States shall develop national law regarding liability
and compensation for the victims of pollution and other environmental
damage.
d) Principle 18: States shall immediately notify other States of any
natural disasters or other emergencies that are likely to produce
sudden harmful effects on the environment of those States. Every
effort shall be made by the international community to help States so
afflicted.
e) Principle 24: warfare is inherently destructive of sustainable
development. States shall therefore respect International Law
providing protection for the environment in times of armed conflict
and cooperate in its further development, as necessary.
f) Principle 26: States shall resolve all their environmental disputes
peacefully and by appropriate means in accordance with the Charter
of the UN. (Ibid)

What is the Principle of Common but Differentiated

Responsibility?
This principle is embodied in Principle 7 of the Rio Declaration
which states:
“States shall cooperate in a spirit of global partnership to
conserve, protect and restore the health and integrity of the earth’s
ecosystem. In view of the different contributions to global
environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit to sustainable
development in view of the pressures their societies place on the
global environment and of the technologies and financial resources
they command.” (Ibid)
 223

What is the Precautionary Approach?

This approach is contained in Principle 15 of the Rio
Declaration, which states:
“In order to protect the environment, the precautionary
approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental
degradation.” (Ibid)

May a State be held responsible by another State for

transboundary pollution caused by private parties within its
jurisdiction?
Yes. The Trail Smelter Case (US vs Canada, 1941) established
the two fundamental principles of liability for transboundary pollution
under International Law:
a) First, a state must show material damage and causation to
be entitled to legal relief; and
b) Second, a state has a duty to prevent, and may be held
responsible for pollution by private parties within its jurisdiction
if such pollution results in demonstrable injury to another state.
In the said case, the Arbitration Tribunal held that Canada
was legally responsible for the actions of the privately-owned
smelter near Trail, Canada, ordered Canada to pay damages,
and required the smelter to refrain from causing further damage
in the US. (Ibid)
 224

May a downstream state object to the use of the water by an

upstream state?
A downstream state may not oppose the upstream state’s use
of the water provided the upstream state will not alter the waters of a
river or lake. (Lake Lanoux Arbitration, France vs Spain cited in
Sarmiento, 2007)

 225

CHAPTER XVII:
INTERNATIONAL ECONOMIC LAW
 226

What is international economic law?

“The law of international economic relations in its broadest
sense includes all the international law and international agreements
governing economic transactions that cross state boundaries or that
otherwise have implications for more than one state, such as those
involving the movement of goods, funds, persons, intangibles,
technology, vessels or aircraft.”( The 3rd Restatement of Foreign
Relations Law cited in Bernas, 2009)

What are the four characteristics of IEL?

1. IEL is part of international law as treaties make this so.
2. IEL is intertwined with municipal law since the balancing of
economic treaty law with municipal law is important.
3. IEL requires multi-disciplinary thinking involving not only
economics but also political science, history, anthropology,
geography, and other disciplines.
4. Empirical research is very important for understanding its
operation. (Ibid)

What were the two main objectives of the Bretton Woods

Conference of 1944?
1. to advance the reduction of tariffs and other trade barriers; and
2. to create a global framework designed to minimize economic
conflicts (Ibid)

What were the economic institutions established out of the

mentioned conference?
1. International Monetary Fund
Its function was to provide short-term financing to countries in
balance of payments difficulties.
 227

2. International Bank for Reconstruction and Development (World

Bank)
It was designed to provide long-term capital to support growth
and development.
3. International Trade Organization (ITO)
It was intended to promote a liberal trading system by
proscribing certain protectionist trade rules.
The intended function of the ITO was eventually taken over by
the General Agreement on Tariff and Trade (GATT) and its successor
the World Trade Organization. (Ibid)

What are the most important trade oriented institutions?

The GATT and the WTO are the most important trade oriented
institutions. They shape domestic import and export laws which
impact on international trade on goods and services.
GATT went through a series of modifications Rounds with the
Uruguay Round of 1994 as the final one. The final agreement
proposed the establishment of a World Trade Organization which
would oversee the operation of GATT and a new General Agreement
on Trade and Services. (Ibid)

What are the key principles of international trade law?

1. Agreed tariff levels
The GATT contains specified tariff levels for each state and
each state agrees not to raise tariff levels above those contained in
the schedule though these can be renegotiated.
2. The most favored nation principle (MFN)
This clause embodies the principle of non-discrimination. This
means that any special treatment given to a product from one trading
partner must be made available for like products originating from one
trading partner must be made available for like products originating
from or destined for other contracting partners. In practice, this
generally refers to tariff concessions.
 228

3. Principle of national treatment

This prohibits discrimination between domestic producers and
foreign producers. In practice, this means that once foreign
producers have paid the proper border charges, no additional
burdens may be imposed on foreign products.
4. Principle of tariffication
The principle prohibits the use of quotas on imports or exports
and the use of licenses on importation or exportation. The purpose of
the principle is to prevent the imposition of non-tariff barriers. But
GATT provides for exceptions on a quantitative and temporary basis
for balance of payments or infant industry reasons in favor of
developing states.(Ibid)

What are the exceptions to key principles?

1. exceptions which are general in nature such as those referring to
public morals, public health, currency protection, products of prison
labor, national treasures of historic, artistic or archeological value,
and protection of exhaustible natural resources;
2. security exceptions and regional trade exceptions; and
3, exceptions for developing nations. (Ibid)

How does WTO provide for dispute resolution?

A Dispute Settlement Body (DSB) has been established by the
WTO Agreement which consists of the General Council of the WTO
and operates under the Understanding on Rules and Procedures
Governing the Settlement of Disputes 1994 (DSU). Each state has a
right to the establishment of a Panel. The DSU has also provided for
a permanent Appellate Body, consisting of persons with recognized
expertise in law, to handle appeals from a Panel decision.(Ibid)
 229

What consist the expanded scope of the multilateral trade

regime of the Uruguay Round of 1994?
It now includes intellectual property, services, sanitary and
physiosanitary measures and investment, as well as the
strengthening of the rules on subsidies, countervailing duties and
antidumping.
Thus, IEL has become a very specialized field and it is affecting
the sovereignty of states and their capacity to give force to national
policy objectives. (Ibid)

 230

INTERNATIONAL COURTS OF
JUSTICE
 231

What is the International Court of Justice?

It is the principal judicial organ of the UN and the successor of
the PCIJ of the League of Nations. It functions in accordance with its
Statute that is annexed to the Charter of the UN, and patterned upon
the Statute of the PCIJ. (UN Charter, Art.92) [Sarmiento, 2007]

Is being a party to the Statute of the ICJ tantamount to the

acceptance of the jurisdiction of the court?
Being party to the Statute, does not mean acceptance of the
jurisdiction of the Court. It simply means that the state may accept the
jurisdiction of the court. The Statute opens the court’s door to
member states. Only states may be parties in the court. (Bernas,
2009)

What is the cardinal rule in international courts?

The cardinal rule in international courts is that states cannot be
compelled to submit disputes to international adjudication unless they
have consented to it either before a dispute has arisen or thereafter.
States are also free to limit their acceptance to certain types of
disputes and to attach various conditions or reservations to their
acceptance. (Ibid)

What is an international legal dispute?

An international legal dispute is a disagreement between states
on a question of law or fact, a conflict, a clash of legal views or of
interests. (The Mavrommatis Palestine Concessions, Greece vs
Great Britain, August 30, 1924, PCIJ, Ser B, No.3, 1924)

Where is the seat of the ICJ? How many are its members? What
is the term of their office?
a. The Seat of the Court is at the Peace Palace in the Hague,
Netherlands. This shall not prevent the Court from sitting and
 232

exercising its functions elsewhere whenever the Court

considers it desirable. (ICJ Statute, Art.22)
b. The Court shall consist of fifteen members, no two of whom
maybe nationals of the same state. (Ibid, Art.3)
c. The members of the Court shall be elected for nine years and
may be re-elected. (Ibid, Art.13) [Sarmiento, 2007]
d.
What are the qualifications of its members?
Members shall be independent judges, elected regardless of
their nationality from among persons of high moral character, who
possess the qualifications required in their respective countries for
appointment to the highest judicial offices, or are jurisconsults of
recognized competence in International Law. (Ibid, Art. 2) [Ibid}

Do the members of the Court represent their governments?

No, the members of the Court do not represent their
governments but are independent magistrates. (Ibid, Art. 2)

Who may be parties to contentious cases?

Only states may be parties in contentious cases before the
Court. (Ibid, Art.34)

Is the Court open to states that are not members of the UN?
Yes, but the conditions under which the Court shall be open to
other states which are not members of the UN shall, subject to the
special provisions contained in treaties in force, be laid down by the
Security Council, but in no case shall such conditions place the
parties in a position of inequality before the court. When a state
which is not a member of the UN is a party to a case, the Court shall
fix the amount which that party is to contribute towards the expenses
of the Court, except if such state is bearing a share of the expenses
of the Court. (Ibid, Art 34)
 233

Who may request for an advisory opinion?

Under Art. 96 of the UN Charter, only the principal organs of the
Organization and other specialized agencies, which may be so
authorized by the General Assembly, may request the ICJ to give an
advisory opinion on any legal question. (Sarmiento, 2007)

What are the preconditions before the ICJ may give advisory
opinions?
They are as follows:
a. The advisory opinion must be requested by an organ duly
authorized to seek it under the UN Charter;
b. It must be requested on a legal function; and
c. Except in the case of the General Assembly or the Security
Council, that questions should be one arising within the scope
of the activities of the requesting organ. (Application for Review
of Judgment No. 273 of the UN Administrative Tribunal,
Advisory Opinion, ICJ Reports 1982) [Ibid]

What is the bearing of the lack of consent of States, parties to a

dispute, on the jurisdiction of the ICJ to give an advisory
opinion?
The consent of States, parties to a dispute, is the basis of the
Court’s jurisdiction in contentious cases. However, the situation is
different in regard to advisory proceedings even where the Request
for an Opinion relates to a legal question actually pending between
States. The Court’s reply is only an advisory character: as such, it
has no binding force.
It follows that no State, whether a member of the UN or not, can
prevent the giving of an advisory opinion which the UN considers to
be desirable in order to obtain enlightenment as to the course of
action it should take.
 234

The Court’s opinion is given not to the States, but to the organ
which is entitled to request it; the reply of the Court, itself an “organ of
the UN’s, represents its participation in the activities of the
Organization, and in principle, should not be refused. (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
advisory Opinion, ICJ Reports 1950, p. 71; See also Western Sahara,
ICJ Reports 1975, p. 24, par.31) [Ibid]

What is the legal status of advisory opinions of the ICJ?

In principle, the Court’s advisory opinions are consultative in
character and are therefore not binding as such on the requesting
bodies. Certain instruments or regulations can, however, provide in
advance that the advisory opinion shall be binding. (Ibid)

What is the Secretariat?

It is the chief administrative organ of the United Nations and
which is headed by the Secretary-General. The Secretary-General is
chosen by the General Assembly upon recommendation of the
Security Council. His term is fixed at five years by resolution of the
General Assembly, and he may be re-elected. (UN Charter, Art. 97)

What are the functions of the Secretary-General?

The Secretary-General shall be the chief administrative officer
of the UN. He shall act in that capacity in all meetings of the General
Assembly, of the Security Council, of the Economic and Social
Council, and of the Trusteeship Council, and shall perform such other
functions as are entrusted to him by these organs.
The Secretary-General shall make an annual report to the
General Assembly on the work of the Organization. He may also
bring to the attention of the Security Council any matter which in his
opinion may threaten the maintenance of international peace and
security. (UN Charter, Arts 98 & 99)
 235

What are the other agencies of UN?

These are the so-called specialized agencies which include:
United Nations Educational, Scientific and Cultural Organization
(UNESCO); the International Civil Aviation Organization (ICAO), the
World Health Organization (WHO), the Food and Agricultural
Organization (FAO), the World Bank and the International Monetary
Fund (IMF).

What are regional organizations?

They are neither organs or subsidiary organs of the UN. They
are autonomous international organizations having an institutional
affiliation with the UN by concluding agreements with the UN. They
are international institutions created by international agreements for
the purpose of dealing with regional problems in general or with
specific matters be they economic, military or political. Example is the
ASEAN

What is the ASEAN?

It is the regional organization of South East Asian nations and
was established on August 8, 1967 in Bangkok, Thailand with the
signing of the Bangkok Declaration by the 5 original member
countries namely Indonesia, Malaysia, Philippines, Singapore and
Thailand.
Brunei Darussalam joined the Association on January 8, 1984
while Vietnam became the 7th member on July 28, 1995. Laos and
Myanmar were admitted on July 23, 1997. Cambodia also became a
member in 1999. (Bernas, 2009)

What are the 3 main objectives of the ASEAN Nations?

They are as follows:
a. To promote the economic, social and cultural development of
the region through cooperative programs;
 236

b. To safeguard the political and economic stability of the region

against big power rivalry; and
c. To serve as a forum for the resolution of intra-regional
differences. (Ibid)

What are the aims and purposes of the Association as stated in

its Declaration?
They are as follows:
a. To accelerate economic growth, social progress and cultural
development in the region and
b. To promote regional peace and stability through abiding respect
for justice and the rule of law in the relationship among
countries in the region and adherence to the principles of the
UN Charter . (Ibid)

Enumerate the fundamental principles of the ASEAN.

The fundamental principles of the ASEAN as contained in the
Treaty of Amity and Cooperation in Southeast Asia are as follows:
a. Mutual respect for the independence, sovereignty, equality,
territorial integrity, and national identity of all nations;
b. The right of every State to lead its national existence free from
external interference, subversion or coercion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful manner;
e. Renunciation of the threat or use of force; and
f. Effective cooperation among themselves. (Ibid)
 237

What is the ASEAN Vision 2020?

The ASEAN Vision 2020, adopted by the ASEAN Leaders on
the 30th anniversary of ASEAN , agreed on a shared vision of ASEAN
as a concert of Southeast Asian Nations, outward looking, living in
peace, stability and prosperity, bonded together I n partnership in
dynamic development and in a community of caring societies.
In 2003, the ASEAN leaders resolved that an ASEAN
Community shall be established comprising 3 pillars, namely:
a) ASEAN Security Community;
b) ASEAN Economic Community; and
c) ASEAN Socio-Cultural Community

What is the ASEAN Regional Forum?

In recognition of security interdependence in the Asia-Pacific
Region, ASEAN established the ASEAN Regional Forum (ARF) in
1994. The ARF’s agenda aim to evolve in three broad stages,
namely the promotion of confidence building, development of
preventive diplomacy and elaboration approaches to conflicts.
The present participants in the ARF include: Australia, Brunei
Darussalam, Cambodia, Canada, China, European Union, India,
Indonesia, Japan, Democratic Republic of Korea, Republic of Korea,
Lao PDR, Malaysia, Mongolia, Myanmar, New Zealand, Pakistan,
Papua New Guinea, the Philippines, the Russian Federation,
Singapore, Thailand, the US and Vietnam.
The ARF discusses major regional security issues in the region,
including the relationship amongst the major powers, non-
proliferation, counter-terrorism, transnational crime, South China Sea
and the Korean Peninsula, among others.

What is the ASEAN Free Trade Area (AFTA)?

The AFTA which was launched in 1992, aims to promote the
region’s competitive advantage as a single production unit. The
elimination of tariff and non-tariff barriers among Member Countries is
 238

expected to promote greater economic efficiency, productivity and

competitiveness. (sarmiento,2007)

What are International Administrative Bodies?

These are administrative bodies created by agreement among
states which may be vested with international personality when two
conditions concur, to wit:
a) Their purposes are mainly non-political
b) That they are autonomous or not subject to the control of any
state.
Examples are the European Commission of the Danube and the
Central Commission for the Navigation of the Rhine. (Cruz, 2000)

Insurgents
What is the 1977 Protocol II to the Geneva Conventions?
It is the first and only international agreement exclusively
regulating the conduct of parties in anon-international armed conflict.
It “develops and supplements Article 3, common to the Geneva
Conventions of August 12, 1949 without modifying its existing
conditions or application.” (Bernas, 2009)

What is a non-international armed conflict under Protocol II?

It is an armed conflict that takes place in the territory of a High
Contracting Party between its armed forces and dissident armed
forces or other organized armed groups which, under responsible
command, exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military operations
and to implement this Protocol. (Art. 1, Protocol II) [Ibid]

Does Protocol II apply to internal disturbance and tensions?

Article 1 provides that the “Protocol shall not apply to situations
of internal disturbances and tensions, such as riots, isolated and
 239

sporadic acts of violence and other acts of a similar nature, as not

being armed conflicts.” This holds true even if the armed forces of
the territory may have been called upon to suppress the disorder.
[Ibid]

What then are the requirements for the “material field of

application” of Protocol II?
They are as follows:
a) The armed dissidents must be under responsible command
b) They must exercise such control over a part of its territory as to
enable them to carry out sustained and concerted military
operations.

Does Protocol II apply to the conflict between Philippine

government and the NDF and its NPA and that between the
government and the MNLF and MILF in Mindanao?
No, considering that the government has been able to maintain
consistently that the NDF and its NPA have not crossed the threshold
requiring control over the territory and thus, what applies to them as
well as the MNLF and MILF in Mindanao is Common Article 3 and not
Protocol II. [Ibid]

What then is the status of the insurgent groups that satisfy the
material field of application of Protocol II?
These groups may be regarded as “para-statal entities
possessing definite if limited form of international personality”. [Ibid]

What are the two specific attributes of this “personality”?

They are as follows:
a) They are recognized as having belligerent status against the de
jure government thus other states are required to maintain
neutrality regarding them.
 240

b) They are seen as having treaty making capacity. [Ibid]

What is Common Article 3?

It is an Article 3 common to all Geneva Conventions that
assures the promulgation of minimum protection to cover internal
conflict. It says:
Art. 3. In the case of armed conflict not of an international
character occurring in the territory of one of the High
Contracting Parties, each Party to the conflict shall be bound to
apply, as a minimum, the following provisions:
1) Persons taking no active part in the hostilities,
including members of the armed forces who have laid
down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall
in all circumstances be treated humanely, without any
adverse distinction founded on race, color, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain
prohibited at any time and in any place whatsoever with respect to
the above- mentioned persons:
a) Violence to life and person, in particular murder
of all kinds, mutilation, cruel treatment and
torture;
b) Taking of hostages;
c) Outrages upon personal dignity, in particular
humiliating and degrading treatment;
d) The passing of sentences and the carrying out of
executions without previous judgment
pronounced by a regularly constituted court,
affording all the judicial guarantees which are
recognized as indispensable by civilized peoples.
2) The wounded and sick shall be collected and cared for.
 241

An impartial humanitarian body, such as the International

Committee of the Red Cross, may offer its services to the
Parties to the conflict.
The Parties to the conflict should further endeavour to
bring into force, by means of special agreements, all or part of the
other provisions of the present Convention.
The application of the preceding provisions shall not
affect the legal status of the Parties to the conflict. [Ibid]

What does the last sentence of the Article 3 mean?

It means that the application does not convert the conflict
into an international one and therefore does not preclude the
possibility that any participant in the conflict may be prosecuted for
treason. Further, although rebels have the protection of Common
Article 3, they do not thereby gain the status of subjects of
international law unless they satisfy the “material field of application”
of Protocol II. [Ibid]

What are National Liberation Movements?

They are organized groups fighting in behalf of a whole people
for freedom from colonial powers. According to the First Protocol of
the 1977 Geneva Convention, they are “peoples fighting against
colonial domination and alien occupation and against racist regimes
in the exercise of their right of self-determination, as enshrined in the
charter of the UN.” [Ibid]

What are the characteristics of national liberation

movements?
a) They can be based within the territory which they are
seeking to liberate or they might find a base in a
friendly country
b) Although control over a territory and people is not
essential to their legitimacy, the ultimate goal of
 242

controlling a definite territory is necessary for them to

be recognized as international subjects.
c) They must have an organization capable of coming
into contact with other international organizations.

What is the status of Individuals in International Law?

Before, human beings were exclusively under the control of
states. They were mere objects or at best “beneficiaries” of
international law. With the greater global awareness of human rights
individuals have now come to be recognized as possessing albeit
limited rights and obligations in international law. Antonio Cassese
described this status of individuals with reference to states, in
international law, as follows:
To differentiate the position of individuals from that of
States, it can be maintained that while States have international
legal personality proper, individuals have a limited locus standi in
international law. Furthermore, unlike States, individuals have
a limited array of rights and obligations: on this score, one can
speak of a limited legal capacity(in this respect they can be put on
the same footing as other non-State international subjects:
insurgents, international organizations, and national liberation
movements).

What is Nationality? (Cruz, 2000)

It is the tie that binds an individual to his state, from which he
can claim protection and whose laws he is obliged to obey. It is
membership in a political community with all its concomitant rights
and obligations.

What are the modes of acquisition of nationality?

They are as follows:
a) Birth
 243

1) Jure soli where the individual acquires the nationality of the

state where he is born
2) Jure sanguinis where the individual acquires the nationality
of his parents
b) Naturalization is a process by which a foreigner acquires,
voluntarily or by operation of law, the nationality of another
state.
1) Direct naturalization which is effected through any of the
following:
1.1. By individual proceedings, usually judicial, under
general naturalization laws;
1.2. By special act of the legislature, often in favor of
distinguished foreigners who have rendered some
notable service to the local state;
1.3. By collective change of nationality (naturalization en
masse) as a result of cession or subjugation; and
1.4. In some cases, by adoption of orphan minors as
nationals of the state where they are born.
2) Derivative naturalization in turn is conferred by:
2.1. on the wife of the naturalized husband
2.2. on the minor children of the naturalized parent; and
2.3 on the alien woman upon marriage to a national
Derivative naturalization does not always follow as a
matter of course, for it is usually made subject to stringent
restrictions and conditions.

What is multiple nationality?

It is the status where one individual finds himself in possession
of more than one nationality because of the concurrent application to
him of the municipal laws of the states claiming him as their national.
 244

What is the doctrine of indelible allegiance?

Under this doctrine , an individual may be compelled to retain
his original nationality notwithstanding that he has already renounced
or forfeited it under the laws of a second state whose nationality he
has acquired.

How may nationality be lost?

It may be lost voluntarily or involuntarily. Voluntary methods
include renunciation (express or implied) and request for release,
both of which usually precede the acquisition of a new nationality.
Involuntary methods are forfeiture as a result of some
disqualification or prohibited act like enlistment in a foreign army or
long continued residence in a foreign state, and substitution of one
nationality for another following a change of sovereignty or any act
conferring derivative naturalization.

How does the Hague Convention of 1930 on the Conflict of

Nationality Laws provide against conflicts arising from divergent
municipal laws on nationality?
The said convention provides as follows:
Art. 1 It is for each State to determine under its law who are its
nationals. This law shall be recognized by other States in so far as it
is consistent with international conventions, international customs,
and the principles of law generally recognized with regard to
nationality
Art. 2. Any question as to whether a person possesses the nationality
of a particular State shall be determined in accordance with the law of
the State.
Art. 3 Subject to the provisions of the present Convention, a person
having two or more nationalities may be regarded as its national by
each of the States whose nationality he possesses.
Art. 4. A State may not afford diplomatic protection to one of its
nationals against a State whose nationality such person also
possesses.
 245

Art. 5. Within a third State, a person having more than one nationality
shall be treated as if he had only one. Without prejudice to the
application of its laws in matters of personal status and of any
convention in force, a third State shall, of the nationalities which any
such person possesses, recognize exclusively in its territory either
the nationality of the country in which he is habitually and principally
resident or the nationality of the country with which in the
circumstances he appears to be in fact most closely connected.
(Principle of Effective or Active Nationality)
Art. 6. Without prejudice to the liberty of a State to accord wider rights
to renounce its nationality, a person possessing two nationalities
acquired without any voluntary act on his part may renounce one of
them with the authorization of the State whose nationality he desires
to surrender. This authorization may not be refused in the case of a
person who has his habitual and principal residence abroad, if the
condition laid down in the law of the State whose nationality he
desires to surrender are satisfied.

What is the Doctrine of Nemo Potest Exuere Patriam?

(Sarmiento, 2007)
This is the doctrine that the bond of nationality once forged
could never be broken. This is the basis of the doctrine of indelible
allegiance. The US used this common law doctrine in the early
decades of its national life. Born a citizen of the US, no one might
transfer his allegiance to another state without the consent of the
state which had first claim upon him.

What is the Right of Expatriation? (Ibid)

It is the right of a person to renounce his nationality or
allegiance to his original State. It finds support in Article 15 of the
Universal Declaration of Human Rights which states that “No one
shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.”
 246

When may an act of an individual become an Act of State?

An act of an individual becomes an Act of State if it may be
imputed on the State. This is usually determined on the basis of the
national legal order, the law of the state whose act is in question. An
act the performance of which is not prescribed or permitted by the law
of the state cannot be , imputed on the state, i.e., interpreted as an
act of state. However, such an act may, according to International
Law, have the same legal effect as an act imputable to the state,
especially if the act is performed by an individual who, as an organ of
the state, is competent under the law to represent the state in relation
to other states, such as Head of State. (Kelsen, 117) [Sarmiento,
2007]

Can private individuals be regarded as subjects of IL?

Yes, especially in the field of the recognition of fundamental
human rights, the individual has come to be a subject, rather than an
object of IL. (Fenwick, 134) Rights are now assumed and obligations
imposed directly upon individuals.
In the field of international human rights, the rights of individuals
as against states are now protected and their violation afforded
remedies. In international humanitarian law, individual criminal
responsibility is now imposed for the commission of the crimes of
genocide, war crimes, and crimes against humanity, among others.
In international criminal court, victims of international crimes are now
given legal personality before the court, not as mere witnesses for the
prosecution, but as parties who may directly participate in the
proceedings. [Ibid]

What is Statelessness? (Cruz, 2000)

It is the condition or status of an individual who is born without
any nationality or who loses his nationality without retaining or
acquiring another.
In such case, from the traditional viewpoint, the individual is
powerless to assert any right that otherwise would be available to him
under international law were he a national of a particular state.
 247

Any wrong suffered by him through the act or omission of a

state would be damnum absque injuria for in theory no other state
had been offended and no international delinquency committed as a
result of damage caused upon him.
This is so because any injury to the individual by a foreign
jurisdiction is, legally speaking, not a violation of his own right but of
the right of his state to the protection of its nationals; the right to
complain belongs not to him but to the state of which he is a national.
 248

RIGHTS OF REFUGEES
 249

Rights of Refugees
What does the term “refugee” mean?
The term shall apply to any person who, owing to well-founded
fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside
the country of his nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that country; or who, not
having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to
such fear, is unwilling to return to it. (Art 1 of the 1951 Convention
relating to the Status of Refugees [Refugee Convention], which
entered into force on April 22, 1954, and as modified by the 1966
Protocol relating to the Status of Refugees, which entered into force
on October 4, 1967 as cited in Sarmiento, 2007)

What are the obligations of refugees to the country where they

find themselves?
He should conform to its laws and regulations as well as to
measures taken for the maintenance of public order. (Refugee
Convention, Art 2 cited in Sarmiento, 2007)

What are the rights of refugees?

Under the 1951 Refugee Convention, the contracting states
shall accord to refugees within their territories treatment at least as
favorable as that accorded tot heir nationals with respect to:
a) freedom to practise their religion and freedom as regards the
religious education of their children; (Art 4)
b) protection of industrial property, such as inventions, designs or
models, trade marks, trade names, and of rights in literary, artistic
and scientific works; (Art.14)
c) access to the courts, including legal assistance and exemption
from cautio judicatum solvi; (Art 16)
d) general distribution of products in short supply; (Art 20)
 250

e) housing; (Art 21)

f) public elementary education; (Art 22)
g) public relief and assistance; (Art 23)
h) labor legislation and social security benefits. (Art 24)
Moreover, the contracting states shall accord to refugees
treatment as favorable as possible and, in any event, not less
favorable than that accorded to aliens generally in the same
circumstances, as regards:
a) the acquisition of movable and immovable property and other
rights pertaining thereto; (Art 13)
b) participation in non-political and non-profit making associations
and trade unions; (Art 15)
c) the right to engage in wage-earning employment; (Art 17)
d) the right to engage on his own account in agriculture, industry,
handicrafts and commerce and to establish commercial and industrial
companies; (Art 18)
e) the practice of a liberal profession; (Art 19)
f) right to choose their place of residence and to move freely within its
territory. (Art 26)
Furthermore, the contracting states shall issue identity papers
and travel documents to any refugee in their territory who does not
possess a valid travel document. (Arts 27, 28) (Ibid)

May a state party to the 1951 Refugee Convention expel a

refugee from its territory?
As a state party to the 1951 Refugee Convention, it shall not
expel a refugee in their territory save on grounds of national security
or public order. In any event, the expulsion of such a refugee shall be
only in pursuance of a decision reached in accordance with due
process of law.
Except where compelling reasons of national security otherwise
require, the refugee shall be allowed to submit evidence to clear
 251

himself, and to appeal to and be represented for the purpose before

competent authority or a person or persons specially designated by
the competent authority.
The state party shall also allow such a refugee a
reasonable period within which to seek legal admission into another
country. (Art 32) (Ibid)

Is there a right of asylum under International Law?

Articles 13 and 14 of the Universal Declaration of Human
Rights and the General Assembly’s 1967 Declaration on Territorial
Asylum recognize the “right to leave any country, including one’s
own” and the “right to seek and to enjoy in other country’s asylum
from persecution.” Those rights, however are not coupled with a
corresponding state obligation to grant asylum.
Thus, all states have the right to grant asylum, but the individual
has no right to demand asylum. (Malone, 127 cited in Sarmiento,
2007)

What is diplomatic asylum?

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

What is the principle of nonrefoulement?

No contracting state shall expel or return a refugee in any
manner whatsoever to the frontiers of territories where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political
opinion.
However, this would not apply where there are reasonable
grounds for regarding the refugee as a danger to the security of the
 252

country in which he is, or who, having been convicted by a final

judgment of a particular serious crime, constitutes a danger to the
community of that country. (Refugee Convention, Art.33 cited in
Sarmiento, 2007)

16. International Environmental Law

How does the Philippine Constitution express the concern
about the environment?
Article II, Section 16 provides that, “ The State shall protect and
advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.”
The discussions in the 1986 Constitutional Commission
manifested a clear desire to make environmental protection and
ecological balance conscious objects of police power. (4 Record of
the Constitutional Commission 912-916 cited in Bernas, 2009)

What are the foremost environmental cases decided by the

Supreme Court upholding the constitutional provisions on
environmental concerns?
1. Oposa vs Factoran 224 SCRA 792 (1993)
2. LLDA vs CA 231 SCRA 292 (1994)
3. Social Justice Society vs Atienza February 13, 2008
4. MMDA vs Residents of Manila Bay December 18, 2008

Why is the protection of the environment considered a challenge

to the development of international law?
The protection of the environment is considered a challenge to
the development of international law because its demands cannot be
met without intrusion into the domestic jurisdiction and sovereignty of
states. The nature and magnitude of the challenge are such that they
require not only the joint action of states but also the involvement of
non-state actors. (Bernas, 2009)
 253

What consist concern of environmental protection?

The concern of environmental protection is not just about the
atmosphere, the sea, the land, flora and fauna. It is also about the
preservation of the cultural heritage of mankind as found in
archeological and artistic remains. (Ibid)

What is the goal of environmental protectionists?

Their goal is the rational use of the elements that make up the
environment through control, reduction and, wherever possible,
elimination of the causes of environmental degradation. (Ibid)

Are environmental concerns related to human rights issues?

Yes, they are inseparably related. In the Danube Dam Case,
the ICJ held that, “The protection of the environment is a …vital part
of contemporary human rights doctrine, for it is a sine qua non for
numerous human rights such as the right to health, and the right to
life itself.” (ICJ Rep 1997 cited in Bernas, 2009)

Who have environmental rights?

The real object of protection in protecting the environment are
persons capable of having rights. (Ibid)

What is sustainable development?

It is an important concept in the field both of economics and
environmental rights. The concept of sustainable development
encourages development in a manner and according to methods
which do not compromise the ability of future generation and other
states to meet their needs. (Ibid)
 254

What is long-range transboundary air pollution?

It means air pollution whose physical origin is situated wholly or
in part within the area under the national jurisdiction of one State and
which has adverse effects in the area under the jurisdiction of another
State at such a distance that it is not generally possible to distinguish
the contribution of individual emission sources or groups of sources.
(1979 Convention on Long-Range Transboundary Air Pollution, Art.
1[b] cited in Sarmiento, 2007)

What is the Good Neighborliness principle?

This principle prohibits States from using or permitting the use
of its territory in a manner that is injurious to another State, or that
other State’s persons or property. This principle is now codified in
Principle 21 of the Stockholm Declaration and in principle 2 of the Rio
Declaration (Earth Summit). (Sarmiento, 2007)

What Roman law principle underlies the Good Neighborliness

Principle?
Sic utere tuo ut alienum non laedas. So use your own as not to
injure the rights of others. (Ibid)

What are the possible bases of liability for transboundary

pollution under International Law?
There are several theories of liability for transboundary
pollution:
a) An absolute duty to protect against harm from ultrahazardous
activities, which if violated, results in a state being held strictly liable;
b) “Abuse of Rights” Theory: responsibility for negligent or intentional
acts;
c) “Good Neighborliness” Principle: liability for a State which permits
transboundary pollution to exceed that which neighbors can
reasonably be expected to endure. (Malone, 217 cited in Sarmiento,
2007)
 255

What are the major instruments that have shaped the modern
development of international environmental law?
a) The Stockholm Declaration on the Human Environment which was
adopted at the 1972 UN Convention on the Human Environment, held
in Stockholm, Sweden;
b) The Rio Declaration on Environment and Development, which was
adopted at the 1992 Rio Conference on Environment and
Development, also known as the “Earth Summit” – it reaffirms the
Stockholm Declaration with the goal of establishing a new and
equitable global partnership through the creation of new levels of
cooperation among States, key sectors of societies and people. (Ibid)

What are the important principles contained in the Stockholm

Declaration on the Human Environment?
a) Principle 1: Man has the fundamental right to freedom, equality
and adequate conditions of life, in an environment of a quality that
permits a life of dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment for present and
future generations.
b) Principle 21 (Principle of Good Neighborliness) States have the
sovereign right to exploit their own resources pursuant to their own
environmental policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause damage to the
environment of other states or of areas beyond the limits of national
jurisdiction.
c) Principle 22: States shall cooperate to develop further the
International Law regarding liability and compensation for the victims
of pollution and other environmental damage caused by activities
within the jurisdiction or control of such states to areas beyond their
jurisdiction. (Ibid)

What are some of the important principles contained in the 1982

Rio Declaration (Earth Summit)?
a) Principle 2: States have the sovereign right to exploit their own
resources pursuant to their own environmental and developmental
 256

policies, and the responsibility to ensure that activities within their

jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.
b) Principle 3: The right to development must be fulfilled so as to
equitably meet developmental and environmental needs of present
and future generations.
c) Principle 13: States shall develop national law regarding liability
and compensation for the victims of pollution and other environmental
damage.
d) Principle 18: States shall immediately notify other States of any
natural disasters or other emergencies that are likely to produce
sudden harmful effects on the environment of those States. Every
effort shall be made by the international community to help States so
afflicted.
e) Principle 24: warfare is inherently destructive of sustainable
development. States shall therefore respect International Law
providing protection for the environment in times of armed conflict
and cooperate in its further development, as necessary.
f) Principle 26: States shall resolve all their environmental disputes
peacefully and by appropriate means in accordance with the Charter
of the UN. (Ibid)

What is the Principle of Common but Differentiated

Responsibility?
This principle is embodied in Principle 7 of the Rio Declaration
which states:
“States shall cooperate in a spirit of global partnership to
conserve, protectand restore the health and integrity of the earth’s
ecosystem. In view of the differentcontributions to global
environmental degradation, States have common but differentiated
responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit to sustainable
development in view of the pressures their societies place on the
global environment and of the technologies and financial resources
they command.” (Ibid)
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What is the Precautionary Approach?

This approach is contained in Principle 15 of the Rio
Declaration, which states:
“In order to protect the environment, the precautionary
approach shall be widely applied by States according to their
capabilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason
for postponing cost-effective measures to prevent environmental
degradation.” (Ibid)

May a State be held responsible by another State for

transboundary pollution caused by private parties within its
jurisdiction?
Yes. The Trail Smelter Case (US vs Canada, 1941) established
the two fundamental principles of liability for transboundary pollution
under International Law:
a) First, a state must show material damage and causation to
be entitled to legal relief; and
b) Second, a state has a duty to prevent, and may be held
responsible for pollution by private parties within its jurisdiction
if such pollution results in demonstrable injury to another state.
In the said case, the Arbitration Tribunal held that Canada
was legally responsible for the actions of the privately-owned
smelter near Trail, Canada, ordered Canada to pay damages,
and required the smelter to refrain from causing further damage
in the US. (Ibid)

May a downstream state object to the use of the water by an

upstream state?
A downstream state may not oppose the upstream state’s use
of the water provided the upstream state will not alter the waters of a
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river or lake. (Lake Lanoux Arbitration, France vs Spain cited in

Sarmiento, 2007)

17. International Economic Law

What is international economic law?
“The law of international economic relations in its broadest
sense includes all the international law and international agreements
governing economic transactions that cross state boundaries or that
otherwise have implications for more than one state, such as those
involving the movement of goods, funds, persons, intangibles,
technology, vessels or aircraft.”( The 3rd Restatement of Foreign
Relations Law cited in Bernas, 2009)

What are the four characteristics of IEL?

1. IEL is part of international law as treaties make this so.
2. IEL is intertwined with municipal law since the balancing of
economic treaty law with municipal law is important.
3. IEL requires multi-disciplinary thinking involving not only
economics but also political science, history, anthropology,
geography, and other disciplines.
4. Empirical research is very important for understanding its
operation. (Ibid)

What were the two main objectives of the Bretton Woods

Conference of 1944?
1. to advance the reduction of tariffs and other trade barriers; and
2. to create a global framework designed to minimize economic
conflicts (Ibid)
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What were the economic institutions established out of the

mentioned conference?
1. International Monetary Fund
Its function was to provide short-term financing to countries in
balance of payments difficulties.
2. International Bank for Reconstruction and Development (World
Bank)
It was designed to provide long-term capital to support growth
and development.
3. International Trade Organization (ITO)
It was intended to promote a liberal trading system by
proscribing certain protectionist trade rules.
The intended function of the ITO was eventually taken over by
the General Agreement on Tariff and Trade (GATT) and its successor
the World Trade Organization. (Ibid)

What are the most important trade oriented institutions?

The GATT and the WTO are the most important trade oriented
institutions. They shape domestic import and export laws which
impact on international trade on goods and services.
GATT went through a series of modifications Rounds with the
Uruguay Round of 1994 as the final one. The final agreement
proposed the establishment of a World Trade Organization which
would oversee the operation of GATT and a new General Agreement
on Trade and Services. (Ibid)

What are the key principles of international trade law?

1. Agreed tariff levels
The GATT contains specified tariff levels for each state and
each state agrees not to raise tariff levels above those contained in
the schedule though these can be renegotiated.
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2. The most favored nation principle (MFN)

This clause embodies the principle of non-discrimination. This
means that any special treatment given to a product from one trading
partner must be made available for like products originating from one
trading partner must be made available for like products originating
from or destined for other contracting partners. In practice, this
generally refers to tariff concessions.

3. Principle of national treatment

This prohibits discrimination between domestic producers and
foreign producers. In practice, this means that once foreign
producers have paid the proper border charges, no additional
burdens may be imposed on foreign products.

4. Principle of tariffication
The principle prohibits the use of quotas on imports or exports
and the use of licenses on importation or exportation. The purpose of
the principle is to prevent the imposition of non-tariff barriers. But
GATT provides for exceptions on a quantitative and temporary basis
for balance of payments or infant industry reasons in favor of
developing states.(Ibid)

What are the exceptions to key principles?

1. exceptions which are general in nature such as those referring to
public morals, public health, currency protection, products of prison
labor, national treasures of historic, artistic or archeological value,
and protection of exhaustible natural resources;
2. security exceptions and regional trade exceptions; and
3, exceptions for developing nations. (Ibid)
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How does WTO provide for dispute resolution?

A Dispute Settlement Body (DSB) has been established by the
WTO Agreement which consists of the General Council of the WTO
and operates under the Understanding on Rules and Procedures
Governing the Settlement of Disputes 1994 (DSU). Each state has a
right to the establishment of a Panel. The DSU has also provided for
a permanent Appellate Body, consisting of persons with recognized
expertise in law, to handle appeals from a Panel decision.(Ibid)

What consist the expanded scope of the multilateral trade

regime of the Uruguay Round of 1994?
It now includes intellectual property, services, sanitary and
physiosanitary measures and investment, as well as the
strengthening of the rules on subsidies, countervailing duties and
antidumping.
Thus, IEL has become a very specialized field and it is affecting
the sovereignty of states and their capacity to give force to national
policy objectives. (Ibid)