2021 REVIEW NOTES IN

PUBLIC INTERNATIONAL LAW

By: Atty. Enrique V. dela Cruz, Jr.

GENERAL PRINCIPLES &
LAW OF THE SEA
• QUESTION:
• When can “general principles of law” become
sources of International Law?
• ANSWER:
• For a general principle of law to qualify as
source of international law, it must fulfill three
requirements: (1) it must be a general principle
of law as distinct from a legal rule of more limited
functional scope, (2) it must be recognized by
civilized nations, and (3) it must be shared by a
fair number of states in the community of
nations. [Government of USA vs Judge
Purganan, Dec. 17, 2002]
• QUESTION:
• Give examples of “general principles of law” as
a source of International Law?
• ANSWER:
• Examples are rules on prescription, estoppel, res
judicata, consent and pacta sunt servanda.
• It can also include generally accepted principles
enshrined under the Universal Declaration of
Human Rights, such as the basic human right to
life and liberty without distinction as to race, color,
sex, race language or religion, political or other
opinion, nationality, social origin, property, birth or
other status. [Government of USA vs Judge
Purganan, Dec. 17, 2002]
 What are the elements of a state?
• Taken from the Art 1 of the Montevideo Convention and also
found in subsequent documents which have included
definitions of the State.
• Permanent population (male & female capable of
reproduction), though some entities without permanent
populations have been recognized as States due to the
nature of such entity or its geographical position which may
be such that people cannot permanently reside in the
territory.
• Defined territory – boundaries may be disputed, but there
must be a basic territory.
• Organized government that should function at all times
• Capacity to enter into treaties (sovereignty) – a latent
capacity which depends on the acceptance of other States
• POSSIBLE QUESTIONS:
• 1. Is Taiwan a state? What is the One China
Policy?
• 2. Is the MECO a GOCC or government
instrumentality? Should COA audit MECO?
• 3. Is recognition an element of a state?
• READ:
• Funa v. MECO and COA, Feb 4, 2014.
• MECO is a non-stock corporation whose
functions are impressed with public interest. It
Is a Sui Generis Entity.
• Its "verification fees" are subject TO COA
audit.
 Is recognition an element of a state?
• A: NO. The political existence of the state is
independent of recognition by the other states.
• Even before recognition, the state has the right to
defend its integrity and independence to provide for
its conservation and prosperity, and consequently
to organize itself as it sees fit, to legislate upon its
interests, administer its services, and to define the
jurisdiction and competence of its courts.
• The exercise of these rights has no other limitation
than the exercise of the rights of other states
according to international law (Montevideo
Convention on the Rights and Duties of States,
Art. 3).
 What are the two theories of
recognition of State?
A: The theories of recognition of a State are:
Constitutive theory – recognition is the last
indispensable element that converts the state
being recognized into an international person.
Declaratory theory – recognition is merely an
acknowledgment of the pre-existing fact that
the state being recognized is an international
person.
 Distinguish recognition of State
from recognition of government
• Recognition of State carries with it the
recognition of government since the former
implies that a State recognized has all the
essential requisites of a State at the time
recognition is extended. Once recognition of
state is accorded, it is generally irrevocable
• Recognition of government may be withheld
from a succeeding government brought about
by violent or unconstitutional means.
 What comprises the Philippine territory?
• The national territory comprises the Philippine
archipelago, with all the islands and waters
embraced therein, and all other territories over
which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial,
and aerial domains, including its territorial sea, the
seabed, the subsoil, the insular shelves areas.

• 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. (Art. I, 1987
Constitution).
• Q: The National Territory defined in Article
1 of the 1987 Constitution violates the UN
Convention on the Law of the Sea
(UNCLOS). Do you agree?
• A: YES.
• First, it is in conflict with the twelve (12) nautical
mile maximum breadth of the territorial sea set in
Article 3 of UNCLOS;
• Second, the anomalous treatment of the waters
enclosed by the Treaty Limits as internal waters
by the Philippines, instead of archipelagic waters,
as provided for in Article 47, UNCLOS.
• Q: What is the implication of this definition of
our National Territory to our baselines?
• A:
• In Philippine legislation, no distinction is made between
internal waters and archipelagic waters.
• From a domestic standpoint, the waters enclosed by the
Philippine straight baselines are treated as internal
waters (Republic Act No. 3046, 1961).
• As such, the Philippines asserts full sovereignty over
these waters “regardless of their breadth or dimension.”
• And since in international law the legal regime of internal
waters is no different from the regime of land territory,
this has serious consequences for navigation, passage,
and access to resources in these waters.
• Q: WHAT IS MEANT BY THE TERM –
“PHILIPPINE WATERS”?
• A: Under Section 2 (a) of PD 532, "Philippine
waters" is defined as follows:
• All bodies of water, such as but not limited to,
seas, gulfs, bays around, between and connecting
each of the Islands of the Philippine Archipelago,
irrespective of its depth, breadth, length or
dimension, and all other waters belonging to the
Philippines by historic or legal title, including
territorial sea, the sea-bed, the insular shelves, and
other submarine areas over which the Philippines
has sovereignty or jurisdiction. (Emphasis supplied)
• People v. dela Pena, GR No. 219581, January 31, 2018
• Q: Distinguish internal waters from archipelagic
waters.
• A: NO.
• The term “internal waters” refer to all waters within
the 12-nautical-mile vicinity of the territorial sea and
further inward, regardless of breadth or dimensions.
[Prof. Magallona v. Hon. Ermita, et al. 671 Phil.
244, 266-267 (2011).]
• The term “archipelagic waters” under UNCLOS
Part III, Article 49 (1, 2, 4), refer to the body of water
lying landward of a country’s baselines, including the
air space over it and the submarine areas
underneath. [Capitol Wireless Inc. v. Provincial
Treasurer of Batangas, May 30, 2016]
• Q: Distinguish internal waters from
archipelagic waters.
• A:
• Archipelagic waters - equivalent to the
internal waters of continental coastal states.
• On the other hand, all 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. [Prof. Magallona v. Hon.
Ermita, et al. 671 Phil. 244, 266-267
(2011).]
• Q: It has been reported that China built military
installations on reefs and islands within the
Philippines’ EEZ, can this be construed as an
invasion on Philippine territory?
• A: NO.
• The EEZ is not equivalent to Philippine territory.
• The Exclusive Economic Zone is an area beyond
and adjacent to the territorial sea, which shall not
extend beyond 200 nautical miles from the baseline
from which the territorial sea is measured.
• Territorial sea is 12 nautical miles from the baseline.
• Contiguous zone is 24 nautical miles from the
baseline.
• Continental Shelf is 150 nautical miles from the
baseline.
• Q: What are the maritime zones to which a state
is entitled to under the UNCLOS?
• A:
• Territorial sea of 12 nautical miles from the
baselines.
• The state exercises virtually absolute
sovereignty.
• The two main exceptions are the right of
innocent passage by foreign ships and the
right of transit passage, by foreign craft in
strategic straits.
• Q: What are the maritime zones to which a state
is entitled to under the UNCLOS?
• A:
• Contiguous zone, consisting of an
additional 12 nautical miles from the
baseline; in other words, 24 nautical
miles from the baselines.
• The state has power to enforce customs,
fiscal, sanitary, and immigration laws,
such as those that prohibit smuggling or
illegal immigration.
• Q: Is the “contiguous zone” part of our
“Philippine waters?”
• A: YES.
• A portion of the “contiguous zone” (the first 12
nautical miles within the territorial sea) is part of
our “Philippine waters”.
• But outside the territorial sea – to another 12
nautical miles outward – it is still part of the
contiguous zone but no longer part of our
Philippine waters.
• In other words, only the first 12 nautical miles
(out of the 24 n.m.) of the contiguous zone falls
within our Philippine waters.
• Q: What are the maritime zones to which a state
is entitled to under the UNCLOS?
• A:
• Exclusive economic zone (EEZ) beyond and
adjacent to the territorial sea, which may not
extend beyond 200 nautical miles from the
baseline.
• The coastal state has sovereign rights over
natural resources and other economic uses.
• But where the coastal state does not have the
capacity to harvest the entire allowable catch, it
is obliged to give other states access to the
surplus of the allowable catch.
NOTE: The Philippine Constitution has a
different treatment of the EEZ
• The State shall protect the nation's
marine wealth in its archipelagic
waters, territorial sea, and
exclusive economic zone, and
reserve its use and enjoyment
exclusively to Filipino citizens.
(Article 12, Section 2, 1987
Constitution).
• Q: What are the maritime zones to which a state
is entitled to under the UNCLOS?
• A:
• Continental shelf, which is either the natural
promulgation of the land territory to the outer ridge
of the continental margin; or 200 nautical miles from
the baseline, whichever is greater.
• The continental shelf may extend 200 nautical
miles until the natural promulgation ends, but it
shall not exceed 350 nautical miles.
• The state has the right to harvest mineral and non-
living resources of the seabed and subsoil of its
continental shelf, to the exclusion of the other states.
• Q: Is there a difference between “archipelagic
baselines” and “straight baselines”?
• A: Yes. As the term suggests, an archipelagic baseline
is a baseline system that is appropriate for a geological
feature that is classified as mid-ocean archipelago or
archipelagic state under Article 46 of UNCLOS.
• It is drawn by designating basepoints at the outermost
points of the outermost islands of the archipelago and by
connecting all these basepoints through a series of
straight baselines.
• A straight baseline, on the other hand, is a baseline
method that is generally applicable to coastal states or
continental archipelagos “where the coastline is deeply
indented and cut into, or if there is a fringe of islands
along the coast in its immediate vicinity.”
• QUESTION:
• Recent land reclamation by China has dramatically
transformed seven disputed maritime features in the
Spratly Islands at the West Philippine Sea.
• For example, in 1995 Subi Reef was completely
submerged at high tide. Today, there are 3.9 million
square meters of reclaimed land above water at high
tide on Subi Reef, and it is home to a pair of wooden
barracks, communications array, and helipad. There
are similarly stark changes at each of the other reefs.
• Will China’s reclamation activities entitle it to
claim maritime rights over its newly created
territories? Is reclamation a valid mode of
acquiring territory? Explain.
• ANSWER (According to the Tribunal Award):
• NO. Artificial Islands Do Not Generate Maritime
Entitlements
• According to UNCLOS, an island is: “a naturally formed area
of land, surrounded by water, which is above water at high
tide.” Reclamation is obviously not a mode of acquiring
territory under international law because reclaimed land
cannot be considered “a naturally formed area of land.”
• The reefs reclaimed by China are considered as low tide
elevations. The UNCLOS defines these maritime features as
landmass above water only at low tide. Outside an existing
territorial sea it is not entitled to a separate maritime zone. It
is unable to sustain human habitation or economic life on its
own.
• It is therefore NOT entitled to a territorial sea and contiguous
zone or other maritime rights. [Philippines vs. China,
ITLOS, 12 July 2016]
 Maritime Disputes vs. Territorial Disputes
• Maritime disputes are subject to compulsory arbitration
because under UNCLOS a party state has given its
advance consent to compulsory arbitration, unless a state
has opted out of compulsory arbitration involving certain
specified disputes.
• In contrast, territorial disputes can be subject to
arbitration only with the consent of each disputant state to
every arbitration, unless such consent has been given in
advance in a treaty.
• There is no such treaty between the Philippines and China
involving compulsory arbitration of territorial disputes.
• The Philippines’ arbitration case against China is solely
a maritime dispute and does not involve any territorial
dispute.
• QUESTION:
• The US sent its military ship to carry out
freedom of navigation patrol to challenge
China’s territorial claims over the 12-
nautical-mile region surrounding its
artificial islands in the South China Sea
(West Philippine Sea). Chinese authorities
responded angrily.
• What is meant by “freedom of
navigation”? Is the US correct in
conducting FON patrols in the South
China Sea? Explain.
• ANSWER:
• Freedom of navigation (FON) is a
principle of customary international law
which states that ships flying the flag of
any sovereign state shall not suffer
interference from other states while in
international waters.
• This right is now also codified as article
87(1)a of the 1982 United Nations
Convention on the Law of the Sea.
 Right of Innocent Passage
• It means navigation through the territorial
sea of a State for the purpose of
traversing the sea without entering
internal waters, or of proceeding to
internal waters, or making for the high
seas from internal waters, as long as it is
not prejudicial to the peace, good order
or security of the coastal State. (Articles 18
[1][2], 19[1], UNCLOS)
 Right of Innocent Passage
• The United Nations Convention on the Law of the
Sea (UNCLOS) enshrines the concept of innocent
passage through a coastal state’s territorial sea.
• Passage is innocent so long as it is not
prejudicial to the peace, good order or
security of the coastal state.
• A vessel in innocent passage may traverse the
coastal state’s territorial sea continuously and
expeditiously, not stopping or anchoring except in
force majeure situations.
 Transit Passage
• It is the right to exercise freedom of navigation and
overflight solely for the purpose of continuous and
expeditious transit through the straits used for
international navigation, i.e., between two areas of the
high seas or between two exclusive economic zones.
• All ships and aircraft enjoy the right of transit
passage.
• The 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. (Magalona, 2005; Article 38[2],
UNCLOS)
 Distinguish Innocent Passage
from Transit Passage
• Innocent passage is for travel within
territorial waters while transit passage is
for any zone.
• Innocent passage applies only to ships
while transit passage applies to
aircrafts as well.
• In transit passage, military vessels are
also allowed which are not allowed in
innocent passage.
• Q: President Duterte can enter
into an agreement with the
President of China for the Joint
Exploration of oil deposits and
mineral resources in the
contested maritime features
within the Philippines’ Exclusive
Economic Zone. Do you agree?
 Can the President allow Chinese fishermen
to fish within the Philippines’ EEZ?
• The State shall protect the nation's marine wealth in
its archipelagic waters, territorial sea, and exclusive
economic zone, and reserve its use and enjoyment
exclusively to Filipino citizens. (Article 12, Section
2, 1987 Constitution).
• As the sole organ of our foreign relations and the
constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive
power to conduct and manage the country's interface
with other states and governments. [Rene Saguisag,
et al., v. Executive Secretary, et al., GR No. 212426,
January 12, 2016.]
Q: Does the Constitution prohibit service contracts or
joint explorations of our natural resources with foreign
nationals or companies?
A: NO.
The last paragraph of Section 2, Article XII of the 1987
Constitution, reads as follows:
“The President may enter into agreements with foreign-owned
corporations involving either technical or financial assistance
for large-scale exploration, development, and utilization of
minerals, petroleum, and other mineral oils according to the
general terms and conditions provided by law, based on real
contributions to the economic growth and general welfare of the
country. In such agreements, the State shall promote the
development and use of local scientific and technical resources.”
“The President shall notify Congress of every contract entered
into in accordance with this provision, within thirty days from its
execution.”
Q: What are the requisites for such service contracts or
joint explorations with foreign nationals or companies to
be valid?
A:
Such service contracts may be entered into only with respect
to minerals, petroleum and other mineral oils. The grant
thereof is subject to several safeguards, among which are
these requirements:
(1) The service contract shall be crafted in accordance
with a general law that will set standard or uniform terms,
conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of
terms disadvantageous to the country. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]
Q: What are the requisites for such service contracts or
joint explorations with foreign nationals or companies to
be valid?
A:
(2) The President shall be the signatory for the
government because, supposedly before an agreement is
presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it
conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the
President shall report it to Congress to give that branch of
government an opportunity to look over the agreement and
interpose timely objections, if any. [Resident Marine
Mammals of the Protected Seascape Tañon Strait v. Reyes,
756 SCRA 513 (2015)]
Q: Are treaties and conventions automatically deemed
part of Philippine Law?
Answer: NO. There are declarations and obligations
outlined in treaties and conventions which are not reflective
of the current state of international law, and do not find basis
in any of the sources of international law enumerated under
Article 38 (1) of the Statute of the International Court of
Justice.
Indeed, so much of contemporary international law is
characterized by the "soft law" nomenclature, i.e.,
international law is full of principles that promote
international cooperation, harmony, and respect for human
rights, most of which amount to no more than well-meaning
desires, without the support of either State practice or opinio
juris. [Ang Ladlad LGBT Party v. Commission on
Elections, 618 SCRA 32 (2010)]
 What is the basis of the
Doctrine of Incorporation?
• “The Philippines renounces war as an
instrument of national policy, adopts the
generally accepted principles of
international law as part of the law of the
land, and adheres to the policy of peace,
equality, justice, freedom, cooperation and
amity with all nations.”
--- Article II, Sec. 2, [1987 Constitution]
Q: Are treaties and conventions automatically
deemed part of Philippine Law?
Answer: NO. Treaties become part of the law of
the land through transformation pursuant to Article
VII, Section 21 of the Constitution which provides that
‘[n]o treaty or international agreement shall be valid
and effective unless concurred in by at least two-
thirds of all the members of the Senate.
Thus, treaties or conventional international law must
go through a process prescribed by the Constitution
for it to be transformed into municipal law that can be
applied to domestic conflicts. [Pharmaceutical and
Health Care Association (GR No. 173034, October
9, 2007)]
THE LAW ON
TREATIES
• 2008 BAR EXAM QUESTION:
• May a treaty violate international law?
• If your answer is in the affirmative, explain when
such may happen.
• If your answer is in the negative, explain why.
• Suggested Answer:
• Yes, a treaty may violate international law when
at the time of its conclusion, it conflicts with a
peremptory norm of general international law
(jus cogens) or if its conclusion has been procured
by the threat or use of force in violation of the
principles of international law embodied in the
Charter of the United Nations. (Vienna Convention
on the Law of Treaties, Arts. 52 & 53)
 RP and the ICC
• The Philippine Government signed the
Rome Statute of the International Criminal
Court but refused to submit it to the Senate
for its concurrence.
• Sen. Pimentel filed a petition for
mandamus to compel the executive
department to transmit the signed text of
the treaty to the Senate of the Philippines
for ratification.
• Will the suit prosper?
 Who has the power to ratify?
• Section 21, Article VII of the 1987
Constitution provides that “no
treaty or international
agreement shall be valid and
effective unless concurred in by
at least two-thirds of all the
Members of the Senate.”
 Who has the power to ratify?
• The power to ratify is vested in the
President.
• The role of the Senate is limited only to
giving or withholding its consent, or
concurrence, to the ratification.
• Hence, it is within the authority of the
President to refuse to submit a treaty to the
Senate for its ratification.
• The decision not to ratify a treaty is within
the competence of the President alone,
which cannot be encroached by the Courts
via a writ of mandamus. [Pimentel v. Romulo
[G.R. No. 158088, July 6, 2005]
 International Implications

• When a treaty is signed by an

official representative of a
State, does this mean that the
State is already bound by the
provisions of the treaty?
 Pimentel v. Romulo
• No. The signature does not signify the
final consent of the state to the treaty.
• It is the ratification that binds the state
to the provisions thereof.
• Ratification is the act by which the
provisions of a treaty are formally
confirmed and approved by a State.
• There is no legal obligation to ratify a
treaty.
What is the doctrine of unequal
treaties?

It posits that treaties which

have been imposed through
coercion or duress by a State
of unequal character are
void.
 What is a Protocol de Clôture?
It is a final act and an instrument
which records the winding up of
the proceedings of a diplomatic
conference and usually includes a
reproduction of the texts of treaties,
conventions, recommendations and
other acts agreed upon and signed
by the plenipotentiaries attending
the conference.
 What is ratification?

• Ratification is the act by which

the provisions of a treaty are
formally confirmed and approved
by a State.
• By ratifying a treaty signed in its
behalf, a State expresses its
willingness to be bound by the
provisions of such treaty.
 Treaties and 3rd states
• A treaty does not create obligations or rights for
a 3rd State without its consent.
• An obligation or right created may not be
modified or revoked without the consent of the
3rd State.
• If a treaty rule is the same as an existing
general rule of customary law, the latter will still
apply to 3rd States as custom
• Thus, states parties to the treaties will be doubly
bound: by custom in regard to States generally,
and also by treaty in regard to the other parties.
Enumerate instances when a third State who is a
non-signatory may be bound by a treaty.

• When a treaty is a mere formal expression of

customary international law, which, as such
is enforceable on all civilized states because
of their membership in the family of nations.
• Under Article 2 of its charter, the UN 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.
 Enumerate instances when a third State who is
a non-signatory may be bound by a treaty.
• Under Article 103, obligations of member-
states shall prevail in case of conflict with
any other international agreement including
those concluded with non-members.
• The treaty itself may expressly extend its
benefits to non-signatory States.
• Parties to apparently unrelated treaties may
also be linked by the most-favored nation
clause.
 When does a treaty enter into force?
• A treaty enters into force in such manner and upon
such date as it may provide or as the negotiating
States may agree.
• Failing any such provision or agreement, a treaty
enters into force as soon as consent to be bound
by the treaty has been established for all the
negotiating States.
• When the consent of a State to be bound by a
treaty is established on a date after the treaty has
come into force, the treaty enters into force for that
State on that date, unless the treaty otherwise
provides.
 May a State invoke the fact that its consent to the
treaty was obtained in violation of its internal law?

• GR: No.
• XPN: If the violation was manifest and concerned
a rule of its internal law of fundamental
importance.

• Note: A violation is manifest if it would be

objectively evident to any State conducting itself
in the matter in accordance with normal practice
and in good faith.
 What is a reservation?
• A reservation is 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
modify the legal effect of certain
provisions of the treaty in their
application to that State.
When is reservation not applicable?
• Reservations cannot be made if the
treaty itself provides that no
reservation shall be admissible, or
the treaty allows only specified
reservations which do not include the
reservation in question, or the
reservation is incompatible with the
object and purpose of the treaty.
 Legal Effects of Reservations
• Gen Rule: Acceptance of a reservation by another
contracting State constitutes the reserving State a
party in relation to that other State.
• An act expressing a State’s consent to be bound
by the treaty and containing a reservation is
effective as soon as at least one other contracting
State has accepted the reservation; and a
reservation is considered to have been accepted by
a State if it has not objected to it within 12months of
its notification.
• à Scheme leans in favor of the reserving state.
Objectors have to take positive action.
 Are treaties subject to judicial review?

• Yes. Even after ratification, the

Supreme Court has the power of
judicial review over the
constitutionality of any treaty,
international or executive
agreement and must hear such
case en banc.
 In case of conflict between a treaty and a
custom, which would prevail?

• In case the treaty comes after a

particular custom, as between
the parties to the treaty, the
treaty should prevail.
• If custom develops after the
treaty, the customs should
prevail, it being an expression of
a later will.
 Distinguish a treaty from an executive agreement.

• Treaties need concurrence of the senate and

involve basic political issues, changes in
national policy and are permanent
international agreements.

• On the other hand, executive agreements

need no concurrence from the senate and
are just adjustments of details in carrying out
well established national policies and are
merely temporary arrangements.
 Sample Question
• An executive agreement was executed between
the Philippines and a neighboring State.
• The Senate of the Philippines took it upon itself
to procure a certified true copy of the executive
agreement and after deliberating on it, declared,
by a unanimous vote, that the agreement was
both unwise and against the best interest of the
country. Is the Executive Agreement binding
from the standpoints of:
• Philippine law?
• International law?
 Answer: Under Philippine Law
• Yes, from the standpoint of Philippine
law, the executive agreement is
binding.
• In the case of Commissioner of
Customs v. Eastern Sea Trading (G.R.
No. L-14279 Oct. 31, 1961), the SC
ruled that President can enter into an
Executive Agreement without the
necessity of concurrence by the Senate.
 Answer: Under PIL
• Yes, it is also binding from the standpoint of
international law. As held in Bayan v. Zamora (G.R
No. 138570, Oct. 10, 2000) under international law
executive agreements are equally binding as
treaties upon the States who are parties to them.
• Additionally, under Article 2(1)(a) of the Vienna
Convention on the Law of Treaties, whatever may
be the designation of a written agreement between
States, whether it is indicated as a Treaty,
Convention or Executive Agreement is not legally
significant. Still it is considered a treaty and
governed by the international law on treaties.
 Is the VFA a treaty or a mere
executive agreement?
• In the case of Bayan v. Zamora (G.R
No. 138570, Oct. 10, 2000), VFA was
considered a treaty because the
Senate concurred in via 2/3 votes of
all its members.
• But in the point of view of the US
Government, it is merely an executive
agreement.
 May a treaty be modified without the
consent of all the parties?
• GR: No

• XPN: If allowed by the treaty

itself, two states may modify a
provision only insofar as their
countries are concerned.
 What are the grounds for
invalidating a treaty?
• Error
• Fraud
• Corruption of a representative of a State
• Coercion of a representative of a State
• Coercion of a State by threat or use of
force
• Violation of jus cogens norm
 Error as a ground
• Error may be invoked as a ground invalidating
consent only if the error relates to some fact or
situation which was assumed by the State invoking
the error to exist at the time when the treaty was
concluded, and that fact or situation formed an
essential basis of its consent to be bound by the
treaty.
• Error may not be invoked by the State if it
contributed to the error by its own conduct or if the
circumstances were such as to put the State on
notice of a possible error.
 Fraud as a ground
• If a State has been induced to conclude
a treaty by the fraudulent act of another
negotiating State, the State may invoke
the fraud as invalidating its consent to
be bound by the treaty.
• Manipulation of a State representative
through corruption may also be invoked
as invalidating the State’s consent.
 Coercion as a ground
• a. employed against the representative of the
State
• - consent shall be without legal effect; except
when the State concerned has already
ratified the representative’s act
• b. employed against the State itself
• - A treaty is void [in its entirety] if its
conclusion has been procured by the threat
or use of force in violation of the principles of
IL embodied in the Charter of the UN.
 What are the grounds for termination of a treaty?
• Termination of the treaty or withdrawal of a party in accordance with the
terms of the treaty.
• Extinction of one of the parties to the treaty.
• Mutual agreement of all the parties to terminate the treaty.
• Denunciation of the treaty by one of the parties.
• Supervening impossibility of performance.
• Conclusion of a subsequent treaty inconsistent between the same
parties.
• Violation of the treaty by one of the parties.
• Doctrine of rebus sic stantibus
• Outbreak of war between the parties to the treaty.
• Severance of diplomatic or consular relations
• The emergence of new peremptory norm of general international law
renders void and terminates any existing treaty in conflict with such
norm.
 What is the doctrine of rebus sic stantibus?
• It states that a fundamental change of
circumstances which determined the parties to
accept a treaty, if it has resulted in a radical
transformation of the extent of the obligations
imposed by it, may under certain conditions, afford
the party affected a ground to invoke the
termination of the treaty.
• The change must have increased the burden of the
obligations to be executed to the extent of
rendering performance essentially different from
the original intention.
 What are the requisites of rebus sic stantibus?
• The change must not have been caused by the Party
invoking the doctrine;
• The doctrine cannot operate Retroactively, i.e., it must not
adversely affect provisions which have already been
complied with prior to the vital change in the situation.
• The change must have been Unforeseen or
unforeseeable at the time of the perfection of the treaty;
• The doctrine must be invoked within a reasonable Time;
• The duration of the treaty must be Indefinite; and
• The change must be so Substantial that the foundation of
the treaty must have altogether disappeared;
When is rebus sic stantibus not applicable?

• If the treaty establishes a boundary

• If the fundamental change is the
result of a breach by the party
invoking it of an obligation under
the treaty or of any other obligation
owed to any other party to the
treaty.
• 2008 BAR EXAM QUESTION:
• The President alone without the
concurrence of the Senate abrogated a
treaty.
• Assume that the other country-party to the
treaty is agreeable to the abrogation
provided it complies with the Philippine
Constitution.
• If a case involving the validity of the treaty
abrogation is brought to the Supreme
Court, how should it be resolved?
• Suggested Answer:
• The Supreme Court should declare the treaty abrogation
invalid.
• While the Constitution is silent on whether a treaty
abrogation shall require the concurrence of the Senate to
make it valid and effective, the treaty-ratifying power of
Senate carries with it the power to concur a treaty abrogated
by the President by way of necessary implication.
• Under the doctrine of incorporation, a treaty duly ratified by
the Senate and recognized as such by the contracting State
shall form an integral part of the law of the land.
• The President alone cannot effect the repeal of a law of
the land formed by a joint action of the executive and
legislative branches, whether the law be a statute or a
treaty. To abrogate a treaty, the President’s action must be
approved by the Senate.
 What is the “clean slate” rule?
• When one State ceases to exist and is
succeeded by another on the same
territory, the 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.
 What are the exceptions to
the “clean slate” rule?
• When the new State agrees to
be bound by the treaties made
by its predecessor;
• Treaties affecting boundary
regime (uti possidetis)
What is the most-favored-nation clause?

It may be defined in general, as a

pledge by a contracting party to a
treaty to grant to the other party
treatment not less favorable than
that which has been or may be
granted to the “most favored”
among other countries.
SAMPLE QUESTION:

Senate Bill No. 1234 was passed creating a joint

legislative-executive commission to give on
behalf of the Senate, its advice, consent and
concurrence to treaties entered into by the
President. The bill contains the guidelines to be
followed by the commission in the discharge of
its functions. Is the bill constitutional?

A: No. The bill is unconstitutional. The Senate

cannot delegate its power to concur to treaties
ratified by the President.
 SAMPLE QUESTION

Can the House of

Representatives take
active part in the conduct
of foreign relations,
particularly in entering
into treaties and
international agreements?
 Suggested Answer:
No. As held in US v. Curtiss Wright Export
Corporation 299 US 304, it is the President
alone who can act as representative of the
nation in the conduct of foreign affairs.
Although the Senate has the power to concur
in treaties, the President alone can negotiate
treaties and Congress is powerless to intrude
into this.
However, if the matter involves a treaty or an
executive agreement, the HR may pass a
resolution expressing its views on the matter.
 In case of conflict between a treaty and a
statute, which would prevail?
In case of conflict, the courts should
harmonize both laws first and if there
exists an unavoidable contradiction
between them, the principle of lex
posterior derogat priori - a treaty may
repeal a statute and a statute may repeal
a treaty - will apply.
The later one prevails. In our jurisdiction,
treaties entered into by the executive are
ratified by the Senate and takes the form
of a statute
• 2015 BAR EXAM QUESTION:
• The Philippines and the Republic of Kroi Sha established
diplomatic relations and immediately their respective
Presidents signed the following:
• (1) Executive Agreement allowing the Republic of Kroi Sha to
• establish its embassy and consular offices within Metro
Manila; and
• (2) Executive Agreement allowing the Republic of Kroi Sha to
bring to the Philippines its military complement, warships,
and armaments from time to time for a period not exceeding
one month for the purpose of training exercises with the
Philippine military forces and exempting from Philippine
criminal jurisdiction acts committed in the line of duty by
foreign military personnel, and from paying custom duties on
all the goods brought by said foreign forces into Philippine
territory under the said Executive Agreement.
• 2015 BAR EXAM QUESTION:

• Senator Maagap questioned the

constitutionality of the said
Executive Agreements and
demanded that the Executive
Agreements be submitted to the
Senate for ratification pursuant to
the Philippine Constitution.
• Is Senator Maagap correct? Explain.
• ANSWER:
• Senator Maagap is wrong.
• Executive Agreements need not be submitted to the Senate
for its concurrence, under the provisions of Section 21 of
Article VII of the Constitution. (China National Machinery &
Equipment Corporation v. Sta. Maria, G.R. NO. 185572,
February 7, 2012, 665 SCRA 189)
• This would be true with respect to both Executive
Agreements in the problem, including the second one, which
allows the Republic of Kroi Sha to bring to the Philippines its
military complements, warships and armaments from time to
time.
• Under Section 25 of Article XVIII of the Constitution, only
such agreements with the United States of America would be
required to be the subject of a treaty which would need the
concurrence of the Senate.
• ANSWER:

• Senator Maagap is wrong.

• It should be noted that, under the
Constitution, the Senate merely provides
its concurrence to, and does not ratify,
treaties.
• It is the President who ratifies treaties,
(Pimentel v. Executive Secretary, G.R.
No. 15808, July 16, 2008, 462 SCRA
622)
• IS THE EDCA CONSTITUTIONAL:
• EDCA authorizes the U.S. military forces to have access to
and conduct activities within certain "Agreed Locations" in
the country.
• It was not transmitted to the Senate on the executive's
understanding that to do so was no longer necessary.
Accordingly, in June 2014, the Department of Foreign Affairs
(DFA) and the U.S. Embassy exchanged diplomatic notes
confirming the completion of all necessary internal
requirements for the agreement to enter into force in the two
countries.
• Petitioners primarily argue that it should have been in the
form of a treaty concurred in by the Senate, not an executive
agreement.
• Is the EDCA Constitutional?
• ANSWER:
• As the sole organ of our foreign relations and the
constitutionally assigned chief architect of our foreign
policy, the President is vested with the exclusive power
to conduct and manage the country's interface with
other states and governments.
• Being the principal representative of the Philippines, the
Chief Executive speaks and listens for the nation;
initiates, maintains, and develops diplomatic relations
with other states and governments; negotiates and
enters into international agreements; promotes trade,
investments, tourism and other economic relations; and
settles international disputes with other states.
• Rene Saguisag, et al., v. Executive Secretary, et al., GR
No. 212426, January 12, 2016.
• ANSWER:
• As previously discussed, this constitutional mandate
emanates from the inherent power of the President to enter
into agreements with other states, including the prerogative
to conclude binding executive agreements that do not require
further Senate concurrence.
• In Commissioner of Customs v. Eastern Sea Trading,
executive agreements are defined as "international
agreements embodying adjustments of detail carrying out
well-established national policies and traditions and those
involving arrangements of a more or less temporary nature.“
• In Bayan Muna v. Romulo, this Court further clarified that
executive agreements can cover a wide array of subjects that
have various scopes and purposes. They are no longer
limited to the traditional subjects that are usually covered by
executive agreements. [Rene Saguisag, et al., v. Executive
Secretary, et al., GR No. 212426, January 12, 2016.]
• ANSWER:
• No court can tell the President to desist from choosing
an executive agreement over a treaty to embody an
international agreement, unless the case falls squarely
within Article VIII, Section 25.
• As can be gleaned from the debates among the
members of the Constitutional Commission, they were
aware that legally binding international agreements were
being entered into by countries in forms other than a
treaty.
• At the same time, it is clear that they were also keen to
preserve the concept of "executive agreements" and the
right of the President to enter into such agreements..
[Rene Saguisag, et al., v. Executive Secretary, et al.,
GR No. 212426, January 12, 2016.]
Q: Can the President unilaterally withdraw the
Philippines from the Rome Statute (treaty establishing the
ICC)?
A: YES. Article 127 of the Rome Statute,
ratified and signed by the Philippines, lays out
the terms which member-states need to follow
if they want to withdraw:
"1. A State Party may, by written notification
addressed to the Secretary-General of the
United Nations, withdraw from this Statute.
The withdrawal shall take effect one year after
the date of receipt of the notification, unless
the notification specifies a later date.”
 Q: Does this mean that the ICC did not acquire
jursidction over President Duterte and the cases filed
against him can now be dismissed?
A: NO. Article 127 of the Rome Statute states:
“2. A State shall not be discharged, by reason of its
withdrawal, from the obligations arising from this Statute
while it was a Party to the Statute, including any financial
obligations which may have accrued.
Its withdrawal shall not affect …. criminal
investigations and proceedings … which were
commenced prior to the date on which the withdrawal
became effective, nor shall it prejudice in any way the
continued consideration of any matter which was already
under consideration by the Court prior to the date on which
the withdrawal became effective."
JURISDICTION
OF STATES
 Extradition
• Extradition is the official process whereby
one nation or state surrenders a suspected
or convicted criminal.
• Between nation states, extradition is
regulated by treaties.
• Where extradition is compelled by laws, such
as among sub-national jurisdictions, the
concept may be known more generally as
rendition.
 Common Bars to Extradition
• Failure to fulfill dual criminality - generally
the act for which extradition is sought must
constitute a crime punishable by some
minimum penalty in both the requesting and
the requested parties.
• Political nature of the alleged crime - most
countries refuse to extradite suspects of
political crimes.
 Common Bars to Extradition
• Possibility of certain forms of punishment
- some countries refuse extradition on
grounds that the person, if extradited, may
receive capital punishment or face torture.
• A few go as far as to cover all punishments
that they themselves would not administer.
 Common Bars to Extradition
• Jurisdiction - Jurisdiction over a crime can
be invoked to refuse extradition. In particular,
the fact that the person in question is own
citizen causes a country to have jurisdiction.
• Citizenship of the person in question -
some countries refuse extradition of own
citizens, holding trials for the persons
themselves.
 Underlying Principles for Extradition

• Political Offense Doctrine

• Doctrine of Specialty
• Double Criminality Principle
• Non-extradition of nationals
• Non-extradition when death penalty
may be imposed.
 Political Offense Doctrine
• Political offenses are not extraditable.
• Political crimes, arising from conviction
and belief, have a legitimacy that
common crimes do not have.
• Rebels will surely be persecuted without
due process.
• Internal political struggles: Off limits to
Courts.
 What is the Doctrine of Specialty?

• This doctrine bars the requesting State

from prosecuting the extraditee for any
offense other than that for which the
extraditee was surrendered.
• Here the extraditee cannot be tried for
offenses not included in the list of
extraditable offenses between the
states.
 What is the principle of
Double Criminality?

• It is a rule in extradition which

states that for a request to be
honored the crime for which
extradition is requested must be a
crime in both the requesting state
and the state to which the fugitive
has fled.
 What is the Doctrine of Double
Criminality?
• The act for which the extradition is sought
must be punishable in both the requesting
and requested states.
• It is sometimes called “no list treaty”;
• it does not require that the name of the
crime described shall be the same in both
countries. It is enough that the particular
act charged is criminal in both jurisdictions
 Non Extradition of Nationals

• A state is not obliged to extradite

its own citizens.
• A person should not be made to
defend himself before people who
are not his natural judge.
• A state owes to its nationals the
protection of its laws.
 Death Penalty

• Treaty of Rome
• Second Optional Protocol to the
Covenant on Civil and Political
Rights
• Statute of the International
Criminal Court.
 Is there an obligation to extradite?

• No. Extradition is only an imperfect

obligation which requires an explicit
agreement (treaty) in order to become fully
binding under international law.
• Exception: international crimes, such as
terrorism and genocide, in which
extradition is seen as being a definite legal
duty.
 Updates on Extradition
• In the early case of Mark Jimenez (US v. Purganan,
2002), the SC ruled that an extraditee does not
have a right to bail pending extradition proceedings;
• This was reversed by the SC in the recent case of
Gov’t of Hongkong vs. Judge Olalia, GR No.
153675, April 19, 2007). Now, an extraditee has a
right to bail.
• The modern trend in PIL is the primacy placed on
the worth of the individual person and the sanctity of
human rights.
• Int’l Humanitarian Law as part of the law of the land
 Distinguish Extradition from Deportation

• Extradition is effected for the

benefit of the state to which the
person to be extradited will be
surrendered because he is a
fugitive criminal in that state, while
deportation is effected for the
protection of the State expelling an
alien because his presence is not
conducive to the public good.
 Distinguish Extradition from Deportation

• Extradition is effected on the basis

of an extradition treaty, while
deportation is the unilateral act of
the state expelling an alien.
• In extradition, the alien will be
surrendered to the State asking for
his extradition, while in deportation
the undesirable alien may be sent
to any state willing to accept him.
 SAMPLE PROBLEM
• John tried to kill the President of
Republic X (his country) as part of a
political take over, but his plan was
thwarted. John then fled to Republic A.
There exists an extradition treaty
between Republic A and Republic X.
• If Republic X requests the extradition
of John, can Republic A deny the
request? Why? State your reason
fully.
 Suggested Answer
• Republic A can refuse to extradite John,
because his offense is a political offense.
However, if the extradition treaty contains
an attentat clause, Republic A can
extradite John, because under the attentat
clause, the taking of the life or attempt
against the life of a head of state or that of
the members of his family does not
constitute a political offense and is therefore
extraditable.
 What is the “attentat clause”?

• A provision in an extradition treaty

which stipulates that the murder of
the head of state or of a member of
his family shall not be considered a
political crime, and therefore
extraditable.
• Pure political and relative political
offenses. The “incidence” test.
 DOCTRINE OF
STATE
RESPONSIBILITY
 State Responsibility Occurs:

• by a direct injury to the rights of another

State; or
• by a wrongful act or omission w/c
causes injury to an alien.
• In this case, the responsibility is owed
to the State of w/c the alien is a
national.
 Doctrine of State Responsibility?

• When an injury is inflicted to an alien within

a state’s territory, there is a need to
determine whether the state can be held
responsible for it.
• If a state violates a customary rule of
international law or a treaty obligation, it
commits an “international wrongful act”.
 What is an internationally wrongful act”?

• There is an internationally wrongful act of a

state when conduct consisting of an action
or omission: (i) is attributable to the State
under International Law; and (ii)
constitutes a breach of an international
obligation of the State.
 Breach of an International Obligation

• a. The state must have been bound by

an obligation at the time of the breach
• b. The breach need not constitute an
illegal act so long as the act is not in
conformity with a state’s international
obligations
• (Articles on State Responsibility, Art. 12)
 ACTS ATTRIBUTABLE TO THE STATE
• Acts of the State organs – acts of State organs
in their capacity provided by law or under
instructions of superiors
• Acts of other persons – If the group of persons
was in fact exercising elements of the
governmental authority in the absence or default
of the official authorities and circumstances such
as to call for the exercise of those elements of
authority.
• Acts of revolutionaries – conduct of an
insurrectional movement which becomes the new
government of a State or part of a State.
 The conduct of a State organ is considered to be
the act of that State

• a. Whatever the function of that organ

• b. Whatever position it holds in the organization of
the State, whether or low or high rank (Rainbow
Warrior Arbitration)
• c. Whether it is the organ of the central
government or a local unit of the State
• d. When done with apparent authority or in their
official capacity (Caire Claim)
• e. Though the acts are beyond their authority or
contravene superior orders (ASR, Art.7)
 Liability of Civilian Leaders (ICC)
Civilian leaders, by contrast, can be held responsible if:
(i) the subordinate was under the superior's "effective
authority and control;"
(ii) the subordinate's criminal acts were "a result" of the
superior's "failure to exercise control properly;"
(iii) the superior "knew, or consciously disregarded,
information that clearly indicated" a crime was
being or would be committed;
(iv) The criminal activities "were within the effective
responsibility and control" of the superior; and,
finally,
(v) the superior did not take all reasonable and necessary
measures to prevent or punish the crimes. (Article
28(2))
 ACTS OF PRIVATE PERSONS
• General Rule: A state is generally not responsible
for the acts of individuals
• Exceptions: When the State adopts the acts of
individuals as its own, and thus becomes
responsible for their internationally wrongful acts
(ASR, Article 11)
• A STATE ADOPTS PRIVATE ACTS WHEN:
• The State encourages these acts
• The individuals effectively act as agents in
performing the offending acts
• The State endorses as its own the acts of the
individuals.
 STATE LIABILITY FROM NEGLIGENCE
• Even without adoption, a State may be
indirectly liable for the acts of private
individuals when it has an international
obligation to exert efforts to prevent the
internationally wrongful acts, or to prosecute
the miscreants, and the State maliciously or
negligently fails to do so.
• Test: Whether due diligence was exercised
to prevent harm to foreigners and foreign
interests
 Sample Problem

• The Hezbollah, an armed militia in

Lebanon, was implicated in the torture and
rape of several Filipina OFW’s.
• What remedies are available to the
victims?
• May the State of Lebanon be held liable
under International Law?
 Answer
• Under International Law, the victims must
first exhaust all local remedies in Lebanon.
• If this is unsuccessful, the Philippine
government may take up the cause of the
victims as it affects its national interest.
• The State of Lebanon cannot be held liable
unless it can be shown that the acts
complained of can be attributed to Lebanon
and that it amounts to a breach of its
international obligation.
 Sample Problem
• The Japanese government confirmed that during the
Second World War, Filipinas were among those
conscripted as “comfort women” (or prostitutes) for
Japanese troops in various parts of Asia.
• The Japanese government has accordingly launched a
goodwill campaign and has offered the Philippine
government substantial assistance for a program that
will promote thru government and non-government
organizations (NGOs) women’s rights, child welfare,
nutrition and family health care.
• An executive agreement is about to be signed for that
purpose.
 Sample Problem
• The agreement includes a clause whereby the
Philippine government acknowledges that any
liability to the “comfort women” or their
descendants are deemed covered by the
reparations agreements signed and
implemented immediately after the Second
World War.
• Juliano Iglesias, a descendant of a now
deceased comfort woman, seeks your legal
advice on the validity of the agreement.
 Answer
• The agreement is valid. The comfort women and
their descendants cannot assert individual claims
against Japan. As stated in Davis and Moore v.
Reagan (453 U.S. 654), the sovereign authority of a
State to settle claims of its nationals against
foreign countries has repeatedly been recognized.
• This may be made without the consent of the
nationals or even without consultation with them.
Since the continued amity between a State and
other countries may require a satisfactory
compromise of mutual claims, the settlement of
such claims may only be made by executive
agreement.
 Sample Problem
• In a raid conducted by rebels in a
Cambodian town, an American businessman
who has been a long-time resident of the
place was caught by the rebels and robbed
of his cash and other valuable personal
belongings.
• Within minutes, two truckloads of
government troops arrived prompting the
rebels to withdraw. Before fleeing they shot
the American causing him physical injuries.
 Sample Problem
• Government troopers immediately launched
pursuit operations and killed several rebels.
• No cash or other valuable property taken
from the American businessman was
recovered.
• In an action for indemnity filed by the US
Government in behalf of the businessman for
injuries and losses in cash and property, the
Cambodian government contended that
under International Law it was not
responsible for the acts of the rebels.
 Sample Problem
• 1. Is the contention of the Cambodian
government correct? Explain.

• 2. Suppose the rebellion is successful and a

new government gains control of the entire
State, replacing the lawful government that
was toppled, may the new government be
held responsible for the injuries or losses
suffered by the American businessman?
Explain.
 Answer
• 1. Yes, the contention of the Cambodian
Government is correct.
• Unless it clearly appears that the government
has failed to use promptly and with appropriate
force its constituted authority it cannot be held
responsible for the acts of rebels, for the rebels
are not its agents and their acts were done
without its volition.
• In this case, government troopers immediately
pursued the rebels and killed several of them.
 Answer
• 2. The new government may be held
responsible if it succeeds in overthrowing the
government.

• Victorious rebel movements are responsible

for the illegal acts of their forces during the
course of the rebellion. The acts of the rebels
are imputable to them when they assumed
as duly constituted authorities of the state.
 INTERNATIONAL
HUMANITARIAN LAW (IHL)
 International Humanitarian Law?

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.
 What are the sources of IHL?
A major part of International Humanitarian Law is
contained in the four Geneva Conventions of
1949.

Nearly every State in the world has agreed to be

bound by them. The Conventions have been
developed and supplemented by two further
agreements: the Additional protocols of 1977
relating to the protection of victims of armed
conflicts.
 THE GENEVA
CONVENTIONS AND THE
ADDITIONAL
PROTOCOLS
What are the Geneva
Conventions?
The Geneva Conventions are four treaties
adopted in 1949 that set the standards for
the humanitarian law in armed conflicts.
They consist of the following:

a) Geneva Convention I – “for the

Amelioration of the Condition of the
Wounded and Sick in Armed Forces in
the Field”;
b)Geneva Convention II – “for the
Amelioration of the Condition of
Wounded, Sick and Shipwrecked
Members of Armed Forces at Sea”;

c) Geneva Convention III – “relative

to the Treatment of Prisoners of War”;
and

d)Geneva Convention IV–“relative to

the Protection of Civilian Persons in
Time of War”
 Give the seven fundamental rules which are
the basis of the Geneva Conventions and the
Additional Protocols.

a) Persons hors de combat (out of combat

/out of the fight) and those who do not
take a direct part in hostilities are entitled
to respect for their lives and their moral
and physical integrity. They shall in all
circumstances be protected and treated
humanely without any adverse
distinction.
b) It is forbidden to kill or injure an enemy who
surrenders or who is hors decombat.

c) The wounded and sick shall be collected

and cared for by the party to the conflict
which has them in its power. Protection
also covers medical personnel,
establishments, transports and equipment.
The emblem of the Red Cross or the Red
Crescent is the sign of such protection and
must be respected
d) Captured combatants and
civilians under the authority of an
adverse party are entitled to
respect for their lives, dignity,
personal rights and convictions.
They shall be protected against all
acts of violence and reprisals.
They shall have the right to
correspond with their families and
to receive relief.
e) Everyone shall be entitled to
benefit from fundamental judicial
guarantees. No one shall be held
responsible for an act he has not
committed.
No one shall be subjected to
physical or mental torture,
corporal punishment or cruel or
degrading treatment.
f) Parties to a conflict and
members of their armed forces
do not have an unlimited choice
of methods and means of
warfare.

It is prohibited to employ weapons

or methods of warfare of a nature
to cause unnecessary losses or
excessive suffering.
g) Parties to a conflict shall at all times
distinguish between the civilian
population and combatants in order
to spare civilian population and
property.
Neither the civilian population as such
nor civilian persons shall be the
object of attack.
Attacks shall be directed solely against
military objectives.
 When do the Geneva
Conventions apply?
Common Article 2 of the Geneva
Conventions provides that, the
Conventions “shall apply to all other
armed conflict which may arise
between two or more of the High
Contracting Parties, even if the state of
war is not recognized by one of them.”
 What kind of armed conflicts are
governed by IHL?
International humanitarian law applies to two kinds
of armed conflicts:
a)International armed conflicts are those in which
at least two States are involved.
b)Non-international armed conflicts are those
restricted to the territory of a single State, involving
either regular armed forces fighting groups of armed
dissidents, or armed groups fighting each other.
 What is the war of national liberation?

A war of the national liberation is a

conflict in which peoples are fighting
against colonial domination and alien
occupation and against racist regimes in
the exercise of their right of self-
determination, as enshrined in the U.N.
Charter and the Declaration on Principles
of International Law.
 Who are combatants?
Combatants are individuals who are legally entitled
to take part in hostilities.
Combatants include not only members of the armed
forces of a state involved in a conflict, but also
citizens who rise in a levee en masse and members
of organized resistance groups who fulfil the criteria
of being commanded by a responsible superior,
wearing some type of uniform, carrying firearm
openly, and obeying the laws and customs of war.
 What protections, if any, are afforded
to combatants under IHL?
The only protections given to combatants under
International Humanitarian Law consist in the limitations
on weapons and tactics.
However, when a combatant is wounded, sick or has
surrendered, they may not be subjected to further
attack.
Moreover, he must also be provided with medical care.
These protections are covered by The Hague
Convention IV, and the Geneva Conventions I and II.
 When is a person considered hors de
combat (“out of combat”)?

A person is hors de combat if:

a) he is in the power of an adverse Party;
b) he clearly expresses an intention to surrender; or
c) he has been rendered unconscious or is
otherwise incapacitated by wounds or sickness,
and therefore is incapable of defending himself;
provided that in any of these cases he abstains
from any hostile act and does not attempt to
escape.
 Who are prisoners of war?

Prisoners of war are lawful

combatants who have fallen
into the power of the enemy.
SAMPLE QUESTION: Syrian Army
soldiers in battle shed their uniforms,
concealed their weapons, put on civilian
clothes, mixed with the civilian
succeeded in infiltrating across the
enemy lines in numbers, suddenly
produced their hidden weapons and
attacked the enemy at the rear.

When caught prisoners, will they be

entitled to treatment as prisoners of war?
May they be shot without trial?
No, the Syrian Army soldiers will not be entitled to
treatment as prisoners of war.
While as a general rule, violations of the rules of
International Law applicable in armed conflict shall
not deprive combatants of their right to be
combatants or, if they fall into the power of an
adverse Party, of their right to be a prisoners of war.
However, combatants who failed to distinguish
themselves from the civilian population while they
are engaged in an attack or in a military operation
preparatory to an attack will not be entitled to
treatment as prisoners of war when they fall in
enemy hands.
However, the soldiers may not be shot without trial.
Their failure to distinguish themselves from civilians
during the attack and to carry their weapons openly
results only in the forfeiture of their right to be
prisoners of war, but they would still be given
protections equivalent in all respects to those
accorded to prisoners of war under the Third
Geneva Convention and by the Additional Protocol I.
These protections include those accorded to
prisoners of war by the Third Geneva Convention in
the case where such a person is tried and punished
for any offences he has committed.
 Are members of militias or volunteer
groups entitled to prisoner-of-war status
when captured by the enemy?
Yes. Members of militias or volunteer corps are entitled to
prisoner-of-war status when they fall in enemy hands if:
a) they form part of such armed forces of the state; or
b) they fulfil the following conditions:

1. they are being commanded by a person responsible

2. they have a fixed distinctive sign recognizable at a
distance;
3. they carry arms openly;
4. they conduct their operations in accordance with the laws
and customs of war.
Is guerilla warfare recognized
under International Law and may
a captured guerilla demand
treatment afforded a prisoner of
war under the 1949 Geneva
Convention?
Yes, guerilla warfare is recognized under
International Law and a captured guerilla or other
members of organized resistance movement may
demand treatment as a prisoner of war under the
Geneva Conventions, provided that:
(i)they are being commanded by a person
responsible superior;
(ii)they have a fixed distinctive sign recognizable at a
distance;
(iii)they carry arms openly;
(iv)and they conduct their operations in accordance
with the laws and customs of war.
 Are persons who accompany the armed forces
without actually being members thereof
entitled to prisoner-of-war status when they
fall in enemy hands?

Yes, persons who accompany the armed

forces without actually being members
thereof, such as civilian members of
military aircraft crews, and war
correspondents, shall be entitled to
prisoner-of-war status when they fall in
enemy hands.
 What is the status of journalists who are
engaged in dangerous professional missions
in areas of armed conflict under IHL?

Journalists engaged in dangerous professional

missions in areas of armed conflict shall be
considered as civilians.
They shall be protected as such under the
Convention IV and Protocol I, provided that
they take no action adversely affecting their
status as civilians, to the armed forces to the
prisoner-of-war status under the Convention III
when they fall in enemy hands.
 A newspaper correspondent following an army was
caught by the enemy while trying to send reports of a
battle to his home office. Is he entitled to treatment as
a prisoner of war or may he be treated as a spy?

He is entitled to treatment as a prisoner of

war.
Under Article 4 (A)(4) of the 3rd Geneva
Convention, persons who accompany the
armed forces without actually being
members thereof, such as war
correspondents, shall be entitled to
prisoner-of-war status when they fall in
enemy hands.
 Are spies entitled to prisoner-of-war status when
captured by the enemy?

No. Any member of the armed

forces of a Party to the conflict who
falls into the power of an adverse
Party while engaging in espionage
shall not have the right to the status
of prisoner of war and may be
treated as a spy.
 Who is a civilian?
A civilian is any person who
does not belong to armed force
and who is not a combatant. In
case of doubt whether a person
is a civilian, that person shall
be considered to be a civilian.
SAMPLE PROBLEM:

Reden, Jolan and Andy, Filipino tourists, were in

Bosnia-Herzegovina when hostilities erupted
between the Serbs and the Moslems.

Penniless and caught in the crossfire, Reden,

Jolan and Andy, being retired generals, offered
their services to the Moslems for a handsome
salary, which offer was accepted.

When the Serbian National Guard approached

Sarajevo, the Moslem civilian population
spontaneously took up arms to resist the
invading troops.
Not finding time to organize, the Moslems wore
armbands to identify themselves, vowing to observe
the laws and customs of war.

The three Filipinos fought side by side with the

Moslems. The Serbs prevailed resulting to the
capture of Reden, Jolan and Andy, and part of the
civilian fighting f0rce.

a) Are Reden, Jolan and Andy considered to be

combatants

b) Are the captured civilians likewise prisoners

of war?
a) No, Reden, Jolan and Andy are mercenaries.
Therefore, they shall not have the right to be a
combatant or a prisoner of war.

Reden, Jolan and Andy are mercenaries because

they are neither a national of a Party to the conflict
nor a resident of territory controlled by a Party to
the conflict as they were mere tourists, they are
not a member of the armed forces of a Party to the
conflict, they actually took a direct party in the
hostilities after having been recruited to fight in the
armed conflict, and they were motivated to take
part therein essentially by the desire for private
gain.
b) Yes, the captured civilians are prisonerS of
war and they should be treated as such
Article 4(A)(6) of the Vienna Convention III
states that inhabitants of a non-occupied
territory, who on the approach of the enemy
spontaneously take up arms to resist the
invading forces, without having had time to
form themselves into regular armed units,
and who carry arms openly and respect the
laws and customs of war shall be
considered as prisoners of war when they
fall in the power of the enemy (LEVEE EN
MASSE).
 Are terrorist activities
subject to IHL?
No. Banditry, unorganized and
short-lived insurrections, and
terrorist activities are not
subject to International
Humanitarian Law.
• Q: Under the Doctrine of State Responsibility, may the
Philippine Government hold the Indonesian government
liable for damages for the death or injury suffered by
Filipinos in Minadanao due to the haze which arose from
uncontrolled forest fires in Indonesia?
• ANSWER: No. Under the Doctrine of State Responsibility, a
State may be held responsible for an international delinquency
only if it the same is directly or indirectly imputable to it which
causes injury to the national of another State.
• A state can only be held liable if it commits an internationally
wrongful act. There is an internationally wrongful act of a
state when conduct consisting of an action or omission: (i) is
attributable to the State under International Law; and (ii)
constitutes a breach of an international obligation of the
State. Here, the widespread forest fires seem to be a
fortuitous event that cannot be attributed to the Indonesian
government.
• Q: The US government introduced Lethal Autonomous
Weapons Systems (LAWS) which uses drones and
robots to launch air strikes against enemy targets in
war-torn countries. These drones and robots cannot
distinguish between military and civilians. They only
follow specific orders formulated thru algorithms and
computer programs. Will the use of these unmanned
drones and robots constitute a violation of the Geneva
Convention or any principle of international law?
• A: Yes. Under the Geneva Conventions, it is prohibited to
employ weapons or methods of warfare of a nature to cause
unnecessary losses or excessive suffering.
• Parties to a conflict shall at all times distinguish between the
civilian population and combatants in order to spare civilian
population and property. Neither the civilian population as
such nor civilian persons shall be the object of attack.
Attacks shall be directed solely against military objectives.
• Q: Will the use of these unmanned drones and
robots constitute a violation of the Geneva
Convention or any principle of international law?
• A: Yes. Under the Geneva Conventions, it is
prohibited to employ weapons or methods of
warfare of a nature to cause unnecessary losses or
excessive suffering.
• International Humanitarian Law prohibits
indiscriminate attacks. Indiscriminate attacks strike
military objectives and civilians or civilian objects
without distinction. They are not directed at a
specific military objective or they employ a
method or means of combat which cannot be
directed at a specific military objective. (Protocol I,
Art. 51[2], Geneva Conventions)
• Q: What is the Principle of Proportionality?
•
• A: The principle of proportionality prohibits attacking a
military objective if doing so will result in a loss of civilian life,
damage to civilian property or damage to the natural
environment that outweighs the value of the objective. Any
use of force, to be lawful, must be proportionate.
•
• “Proportionality” is best understood as an “imputed”
indiscriminate attack. When an attack on an otherwise lawful
military objective inflicts excessive collateral damage or
incidental injury, it is treated for purposes of the law of armed
conflict as indiscriminate, and therefore prohibited. Note that
the key term in this analysis is not disproportionate, but
instead excessive.
• Q: What constitutes perfidy? Is it prohibited? Give
examples.
• A: Perfidy consists of acts inviting the confidence of an
adversary to lead him to believe that he is entitled to, or is
obliged to accord, protection under the rules of International
Law applicable in armed conflict, with intent to betray that
confidence. It is prohibited to kill, injure or capture an
adversary by resort to perfidy. The following acts are
examples of perfidy:
• a) The feigning of an intent to negotiate under a flag of
truce or of a surrender;
• b) The feigning of an incapacitation by wounds or sickness;
• c) The feigning of civilian, non-combatant status; and
• d) The feigning of protected status by the use of signs,
emblems or uniforms of the United Nations or of neutral or
other States not Parties to the conflict.
• Q: What are ruses of war? Are they prohibited? Give
examples.

• A: Ruses of war are acts which are intended to mislead an

adversary or to induce him to act recklessly but which
infringe no rule of International Law applicable in armed
conflict and which are not perfidious because they do not
invite the confidence of an adversary with respect to
protection under that law.
• Ruses of war are legal. The following are examples of ruses
of war:
• a) The use of camouflage;
• b) Decoys;
• c) Mock operations;
• d) Misinformation.
• Q: What is the principle of “Non-Refoulement”?
•
• A: It is a customary principle of international law which
prohibits the expulsion or return of refugees to their state of
origin. Article 31 of the UN Charter states:
• 1. 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.
• 2. The benefit of the present provision may not, however be
claimed by a refugee whom there are reasonable grounds for
regarding as a danger to the security of the country in which
he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the
community of that country.
• Q: Who is a refugee?
• 1. The person must be outside their country of
origin or habitual residence.
• 2. The person must have a well founded fear
of persecution for reasons of: race, religion,
nationality, political opinion, membership of a
particular social group
3. The person must be unable or unwilling to
avail of the protection of their own State for
reasons of such persecution. (Article 1A of
the 1951 Convention On Migrants and
Refugees)