Public International Law BERNAS REVIEWER
Public International Law BERNAS REVIEWER
Public International Law BERNAS REVIEWER
CHAPTER 1 THE NATURE OF INTERNATIONAL LAW Customary law—what are regarded as generally
accepted principles of law are in fact an expression
What is International Law? of what traditionally was call natural law
A body of rules and principles of action which are binding upon Some Dissenters International law—a combination of politics,
civilized states in their relation to one another morality and self-interest hidden under the
A law which deals with the conduct of the states and of international smokescreen of legal language
organizations and with their relations inter se, as well as with some of Pragmatic Theory International law is law because it is seen as such by
their relations with persons, whether natural or juridical states and other subjects of international law
Treaties—expression of consent Art. 38(1) of the Statute of the International Court of Justice
1. International conventions—establishing rules expressly recognized by
Custom—voluntary adherence to common practices, contesting states
is seen as expression of consent 2. International custom—evidence of a general practice accepted as law
Natural Law Theory Law is derived by reason from the nature of man 3. General principles of law recognized by civilized nations
4. Subsidiary means for determination of rules of law
International law—application of natural reason to a. Judicial decisions
the nature of the state-person b. Teachings of the most highly qualified publicists
Restatement of Foreign Relations Law of the US the law of nations as they result from: usages of civilized people,
1. Customary Law laws of humanity & public conscience
2. International agreement
3. General principles common to the major legal system 2. Psychological or subjective factor—why they behave the way they
do
Sources of International Law
1. Custom 4. Generally recognized principles of law Treaties
2. Treaties 5. Judicial decisions Determine the rights and duties of states just as individual rights are
3. International agreements 6. Teachings of highly qualified publicists determined by contracts
Binding force comes from the voluntary decision of sovereign states to
Custom or Customary Law obligate themselves to a mode of behavior
A general and consistent practice of states followed by them from a
sense of legal obligation Treaties and Custom
Elements: If the treaty is intended to be declaratory of customary law, it may be
1. Material factor—how state behaves seen as evidence of customary law
o Elements of Practice of sates or usus Adherence to treaties can be indicative also of adherence to practice
a. Duration—may be either short or long; not the most as opinio juris
important element If treaty comes later than a particular custom, treaty should prevail
If a later treaty is contrary to a customary rile that has the status of
b. Consistency—continuity and repetition jus cogens, custom will prevail
The later custom, being the expression of a later will, should prevail
c. Generality of the practice of states—uniformity and A treaty is void if, at the time of its conclusion, it conflicts with a
generality of practice need not be complete but it must preemptory norm of general international law
be substantial Preemptory norm of general international law = a norm accepted and
recognized by the international community of States as a whole as a
Opinio Juris—belief that a certain form of behavior is obligatory norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law
Dissenting states: subsequent contrary practice having the same character
o Dissenting states are bound by custom unless they had
consistently objected to it while the custom was merely in the General Principles of Law Recognized by Civilized Nations
process of formation This has reference to principles of municipal law common to the legal
o It is also possible that after a practice has been accepted as systems of the world
law, contrary practice might arise
Judicial Decisions
Evidence of state practice and opinio juris Decisions of the court have no binding force except between the
a. Treaties parties and in respect of that particular case
b. Diplomatic correspondence Decisions do not constitute stare decisis
c. Statements of national leaders and political advisers Decisions of the ICJ are not only regarded as highly persuasive in
d. Conduct of states international circles but they have also contributed to the formulation
of principles that have become international law
Instant Custom
o A spontaneous activity of a great number of states supporting Teachings of Highly Qualified Writers and “Publicists”
a specific line of action Publicists = institutions which write on international law
a. The International Commission
The Martens Clause b. The Institut de Droit International
Until a complete code of laws of war has been issued, inhabitants c. International Law Association
& belligerents are protected under the rule on the principles of d. Restatement of Foreign Relations Law of the US
e. Annual publication of the Hague Academy of International Law
Philippines adheres to the dualist theory and at the same time adopts Commencement of their Existence
the incorporation theory and thereby makes international law part of State, as a person of international law, should possess the following
domestic law qualifications: (Montevideo Convention of 1933 on Rights and Duties of
International law can be used by Philippine courts to settle domestic States)
disputes 1. Permanent population—PEOPLEa community of persons
Art. 2, Sec. 2 of the Constitution: only customary law and treaties sufficient in number and capable of maintain the permanent
which have become part of customary law become part of Philippine existence of the community and held together by a common bond
law by incorporation of law
Conflict between International Law and Domestic Law: International Rule 2. Defined territory—an entity may satisfy this requirement even if
Before an international tribunal, a state may not plead its own law as its boundaries have not been finally settled, if one or more of its
an excuse for failure to comply with international law boundaries are disputed, or if some of its territory is claimed by
Exception: Art. 46 of Vienna Convention = in cases where the another state
constitutional violation was manifest and concerned a rule of its An entity does not necessarily cease to be a state even if all its
internal law of fundamental importance territory has been occupied by a foreign power or if it has
Manifest = objectively evident to any State conducting itself in the otherwise lost control of its territory temporarily
matter in accordance with normal practice and in good faith
3. Government—that institution or aggregate of institutions by which
Conflict between International Law and Domestic Law: Municipal Rule an independent society makes and carries out those rules of action
Domestic courts are bound to apply the local law which are necessary to enable men to live in a social state
Should a conflict arise between an international agreement and the It is the National Government that has legal personality and it is
Constitution, the treaty would not be valid and operative as domestic such that is internationally responsible for the actions of other
law agencies and instrumentalities of the state
Art. 8, Sec. 5 of the Constitution explicitly recognizes the power of the Temporary absence of government does not terminate the
Supreme Court to declare a treaty unconstitutional; however, even if existence of a state
declared unconstitutional, the treaty will not lose its character as an
international law 4. Capacity to enter into relations with other States—
SOVEREIGNTYindependence from outside control
Can an entity claim to be a state before it is recognized by other states? o Responsibility for the public debt of the predecessor, and rights and
Declaratory Theory Constitutive Theory obligations under its contracts remain with the predecessor state but
Recognition is merely ―declaratory‖ of Recognition ―constitutes‖ a state is subject to certain exceptions
the existence of the state
Its being a state depends upon its It is what makes a state a state and 4. Succession to treaties
possession of the required elements confers legal personality on the entity a. Moving Treaty Rule / Moving Boundaries Rule—when part of the
and not upon recognition territory of a state becomes territory of another state, the
States may decide to recognize an international agreements of the predecessor state cease to have
entity as a state even if it does not effect in respect of the territory
have all the elements of a state o Relief from treaty obligation is rebus sic stantibus
b. When a state is absorbed by another state, international agreements
Recognition of Government—act of acknowledging the capacity of an entity to of the absorbed states are terminated
exercise powers of government of a state c. Clean Slate Theory—when part of a state becomes a new state, the
If a change in government in an existing state comes about through new state does not succeed to the international agreements to which
ordinary constitutional procedure = recognition by others comes as a the predecessor state was a party unless, expressly or impliedly, it
matter of course accepts such agreements
d. Uti possidetis Rule—pre-existing boundary and other territorial
Consequence of Recognition or Non-Recognition agreements continue to be binding notwithstanding
A government, once recognized, gains increased prestige and stability
a. Doors of funding agencies are opened Fundamental Rights of States
b. Loans are facilitated 1. Independence—capacity of a state to provide for its own well-being
c. Access to foreign courts and immunity from suit are gained and development free from the domination of other states
d. Military and financial assistance also come within reach o Right to exercise within its portion of the globe, to the exclusion of
Absence of formal recognition bars an entity from all these benefits others, the functions of a state
or, at least, access to them may be suspended o Restrictions upon a state’s liberty either from customary law or from
Admission of a government to the UN does not mean recognition by all treaties do not deprive a state of independence
members but only to the extent of the activities of the organization o There is duty not to interfere in the internal affairs of other states
Recognition of a regime is terminated when another regime is o Rights flowing from independence:
recognized a. Jurisdiction over its territory and permanent population
b. Right to self-defense
Succession of States c. Right of legation
Views on Succession 2. Equality—equality of legal rights irrespective of size or power of the
A. The new state succeeds to no rights or obligations of the state
predecessor state but begins with a tabula rasa o Within the General Assembly, the doctrine means one state, one
B. Successor state assumes all obligations and enjoys all the rights of vote
the predecessor
3. Peaceful Co-Existence—mutual respect for each other’s territorial
Issues on Succession of States integrity and sovereignty, mutual non-aggression, non-interference in
1. Succession to territory—when a state succeeds another state with each other’s affairs and the principle of equality
particular territory, the capacities, rights and duties of the
predecessor state with respect to that territory terminate and are Some Incomplete Subjects
assumed by the successor state 1. Protectorates—dependent states which have control over their
2. Succession to state property—this is subject to agreement between internal affairs but whose external affairs are controlled by another
predecessor and successor states state; referred to as
3. Succession to contracts—this is subject to agreement between the a. Autonomous states
states concerned b. Vassal states
c. Semi-sovereign
d. Dependent sates
6. Secretariat—comprises a Secretary General and such staff as the Common Article 3—for armed conflict not of an international
Organization may require character
o Secretary General—elected to a 5 year term by General Prohibited acts under Article 3:
Assembly upon the recommendation of the Security Council, a. Violence to life and person, in particular, murder of all kinds,
subject to veto power mutilation, cruel treatment and torture
b. Taking of hostages
Other Agencies: c. Outrages upon personal dignity, in particular, humiliating and
1. United Nations Educational, Scientific and Cultural Organizations degrading treatment
(UNESCO) d. Passing of sentences and the carrying out of executions without
2. International Civil Aviation Organization (ICAO) previous judgment pronounced
3. World Health Organization (WHO)
4. Food and Agricultural Organization (FAO) NATIONAL LIBERATION MOVEMENTS
5. World Bank Organized groups fighting in behalf of a whole people for freedom from
6. International Monetary Fund (IMF) colonial powers
Characteristics:
Regional Organizations—they are neither organs nor subsidiary organs of UN a. They can be based within the territory which they are seeking to
They are autonomous international organizations having an liberate or they might find a base in a friendly country
institutional affiliation with UN by concluding agreements with UN b. Their goal is self-determination—to free themselves from colonial
Created by international agreements for the purpose of dealing with domination, or a racist regime or foreign occupation
regional problems in general or with specific matters be they c. There is the ultimate goal of controlling a definite territory
economic, military or political d. They must have an organization capable of coming into contract
with other international organizations
ASEAN—established on Aug. 8, 1967 in Bangkok, Thailand with the signing of
the Bangkok Declaration by the 5 original member countries: Indonesia, INDIVIDUALS
Malaysia, Philippines, Singapore and Thailand Possess limited rights and obligations (deriving from customary
Brunei Darrusalam joined on Jan. 8, 1994; Vietnam on July 28, 1995; international law) in international law
Laos and Myanmar on July 23, 1997; Cambodia in 1999. Obligations of individuals are those arising from the regulation of
3 main objectives: armed conflicts
a. Promote economic, social and cultural development of the region When individual rights are violated, however, individuals still have to
through cooperative programs rely on the enforcement power of states; but some treaties have
b. Safeguard the political and economic stability of the region against provided for the right of individuals to petition international bodies
big power rivalry alleging that a contracting state has violated some of their human
c. Serve as a forum for the resolution of intra-regional differences rights
INSURGENTS
Protocol II—first and only international agreement exclusively CHAPTER 7 TERRITORY: LAND, AIR, OUTER SPACE
regulating the conduct of parties in a non-international armed conflict
Requirements for Material Field of Application: Territory in International Law—an area over which a state has effective
a. Armed dissidents must be under responsible command control
b. They must exercise such control over a part of its territory as to Exact boundaries might be uncertain but there should be a definitive
enable them to carry out sustained and converted military core over which sovereignty is exercised
operations and to implement this Protocol Acquisition of territory—acquisition of sovereignty over territory
Insurgent groups which satisfy the material field of application may be Includes land, maritime areas, airspace and outer space
regarded as ―para-statal entities possessing definite if limited form of
international personality‖
a. They are recognized as having belligerent status against the de
jure government
b. They are seen as having treaty making capacity
Modes of Acquisition of Sovereignty over Territory In resolving island territorial disputes, the following 3 important rules
1. Discovery and Occupation must be followed:
o Occupation—acquisition of terra nulliusterritory which prior to 1. Title based on contiguity has no standing in international law
occupation belonged to no state or which may have been abandoned 2. Title by discovery is only an inchoate title
by a prior occupant 3. If another sovereign begins to exercise continuous and actual
o There is abandonment when occupant leave the territory with the sovereignty and the discoverer does not contest this claim, the claim
intention of not returning by the sovereign that exercises authority is greater than a title based
o Discovery of terra nullius is not enough to establish sovereignty; it on mere discovery
must be accompanied by effective control
EASTERN GREENLAND CASE
WESTERN SAHARA CASE HELD:
HELD: A claim to sovereignty based not upon some particular act or title such
Territories inhabited by tribes or peoples having a social and political as treaty or cession but merely upon continued display of authority,
organization were not regarded as terra nullius. involves 2 elements each of which must be shown to exist: (a) intention
and will to act as sovereign, and (b) some actual exercise or display of
The information furnished to the Court shows that at the time of such authority.
colonization, Western Sahara was inhabited by peoples which, if
nomadic, were socially and politically organized into tribes and under Another circumstance which must be taken into account is the extent to
chiefs competent to represent them. which the sovereignty is also claimed by some other Power.
THE ISLAND OF PALMAS One of the peculiar features of the present case is that up to 1931, there
HELD: was no claim by any Power other than Denmark to the sovereignty of
Contiguity—US also argued that Palmas was US’ territory because the Greenland.
island was closer to the Philippines than to Indonesia which was then
held by the Netherlands East Indies. The arbitrator said there was no 2. Prescription—requires effective control and the object is not terra
positive international law which favored the US’ approach of terra firma, nullius
where the nearest continent or island of considerable size gives title to o The required length of effective control is longer than in occupation
the land in dispute. The arbitrator held that mere proximity was not an o May be negated by a demonstrated lack of acquiescence by the prior
adequate claim to land noted that if the international community occupant
followed the proposed United States approach, it would lead to arbitrary
results. 3. Cession—acquisition of territory through treaty
o A treaty of cession which is imposed by a conqueror is invalid
Continuous and peaceful display of sovereignty—the Netherlands' primary
contention was that it held actual title because the Netherlands had 4. Conquest and Subjugation
exercised authority on the island since 1677. The arbitrator noted that o Conquest—taking possession of a territory through armed force
the US had failed to show documentation proving Spanish sovereignty on o It is necessary that the war had ended either by treaty or by
the island except those documents that specifically mentioned the indication that all resistance had been abandoned
island's discovery. Additionally, there was no evidence that Palmas was a o Now, conquest is proscribed by international law
part of the judicial or administrative organization of the Spanish o ―No territorial acquisition resulting from the use or threat of force
government of the Philippines. However, the Netherlands showed that shall be recognized as legal‖
the Dutch East India Company had negotiated treaties with the local
princes of the island since the 17th century and had exercised 5. Accretion and Avulsion—sovereignty by operation of nature
sovereignty, including a requirement of Protestantism and the denial of o Accretion—gradual increase of territory by the action of nature
other nationals on the island. The arbitrator pointed out that if Spain had o Avulsion—sudden change resulting for instance from the action of a
actually exercised authority, than there would have been conflicts volcano
between the two countries but none are provided in the evidence.
Is Contiguity a Mode of Acquisition? Convention on the Law of the Sea of 1982 – prevailing law on maritime
It is impossible to show a rule of positive international law to the domain
effect that islands situated outside the territorial waters should belong
to a state from the fact that its territory forms part of the terra firma Art. 2 of the 1982 Law of the Sea provides that
(Las Palmas Case) 1. Sovereignty of a coastal State extends, beyond its land territory and
internal waters and, in case of an archipelagic State, its archipelagic
Intertemporal Law waters, to an adjacent belt of sea, described as territorial sea
Rules in effect at the time of the acquisition should be applied 2. Sovereignty extends to the air space over the territorial sea as well as
to its bed and subsoil
3. Sovereignty over the territorial sea is exercised subject to this
AIRSPACE Convention and to other rules of international law
Each state has exclusive jurisdiction over the air space above its
territory Territorial Sea – belt of sea outwards from the baseline and up to 12 nautical
Sovereignty over airspace extends only until where outer space begins miles beyond
Consent for transit must be obtained from the subjacent nation o The width of this territorial belt of water is the 12-mile rule
State Aircraft—aircraft used in military, customs and police services o However, where the application of the 12-mile rule to neighboring
―No state aircraft of a contracting State shall fly over the territory of littoral states would result in overlapping the rule is that the
another State or land thereon without authorization by special dividing line is the median line equidistant from the opposite baselines
agreement or otherwise, and in accordance with the terms thereof.‖ o Equidistance rule does not apply where historic title or other special
(Art. 3[a] of Chicago Convention on International Civil Aviation) circumstances require a different measurement
Aircraft must not only not be attacked unless there is reason to suspect
that the aircraft is a real threat but also that a warning to land or Baselines – the low-water line along the coast as marked on large scale charts
change course must be given before it is attacked (Lissitzyn) officially recognized by the coastal State
Civilian aircraft should never be attacked
Two ways of drawing the Baseline:
1. Normal baseline – one drawn following the low-water line along the
OUTERSPACE coast as marked on large scale charts officially recognized by the
Outer space, wherever that might be, and celestial bodies, are not coastal State
susceptible to appropriation by any state o this line follows the curvatures of the coast and therefore
―The Moon and other celestial bodies shall be used by all State Parties would normally not consist of straight lines
to the Treaty exclusively for peaceful purposes.‖ (1967 Treaty on the 2. Straight baseline – drawn connecting selected points on the coast
Exploration and Use of Outer Space) without appreciable departure from the general shape of the coast
o Most archipelagic states use straight baselines
o Art. 47 of the Convention on the Law of the Sea – the length
CHAPTER 8 of such baseline shall not exceed 100 nautical miles, except
TERRITORY: LAW OF THE SEA that up to 3% of the total number of baselines enclosing any
archipelago may exceed that length up to a maximum length
Importance of the Sea of 125 nautical miles
1. Medium of communication
2. Contain vast natural resources Sovereignty over Territorial Sea – same as sovereignty over its land territory
o The sea and the strait are subject to the right of innocent passage by
Grotius – elaborated the doctrine of the open seas which considers the high other states
seas as res communis accessible to all
o The doctrine recognized as permissible the delineation of a maritime Right of Innocent Passage – passage that is not prejudicial to the peace, good
belt by littoral states as an indivisible part of its domain order or security of the coastal state
o Maritime belt = territorial sea o Applies to ships, aircrafts, and submarines
o Coastal states have the unilateral right to verify the innocent Two Primary Obligations of Coastal States:
character of passage, and it may take the necessary steps to prevent 1. They must ensure through proper conservation and management
passage that it determines to be not innocent measures that the living sources of the EEZ are not subjected to over
exploitation
Internal Waters – all waters landwards from the baseline of the territory 2. They must promote the objective of ―optimum utilization‖ of the
o Coastal states may regulate access to its ports (Nicaragua case) living sources
Examples of acts covered by Protective Principle: b. Is the effect sufficiently large to present a cognizable injury to the
a. Plots to overthrow the government plaintiffs, and, therefore, a violation of the anti-trust law?
b. Forging its currency c. Are the interests of the state sufficiently strong, vis-à-vis those of
c. Plot to break its immigration regulations other nations, to justify an assertion of extraordinary authority
UNIVERSALITY PRINCIPLE 2. International Comity – state will refrain from exercising its jurisdiction is
o This recognizes that certain activities, universally dangerous to states it is unreasonable
and their subjects, require authority in all community members to o Factors to consider in determining unreasonableness:
punish such acts wherever they may occur, even absent a link between a. Link or connection of the activity to the territory of the regulating
the state and the parties or the acts in question state
b. Character of the activity to be regulated
Examples of acts covered by Universality Principle: c. Existence of justified expectations that might be protected or hurt
a. Piracy – any illegal act of violence or depredation committed for by the regulation
private ends on the high seas or outside the territorial control of any d. Likelihood of conflict with regulation by another state
state 3. Forum non conveniens – application is discretionary with the court
b. Genocide – acts committed with intent to destroy, in whole or in part, o If in the whole circumstances of the case it be discovered that there is
a national, ethical, racial or religious group real unfairness to one of the suitors in permitting the choice of a
c. Crimes against humanity – acts committed as part of a widespread or forum which is not the natural or proper forum, either on the ground
systematic attack directed against any civilian population of convenience of trial or the residence or domicile of parties or of its
1. Attack directed against any civilian population being the locus contractus or locus solutionis
2. Extermination – internal infliction of conditions of life
3. Enslavement EXTRADITION – the surrender of an individual by the state within whose
4. Deportation or forcible transfer of population territory he is found to the state under whose laws he is alleged to have
5. Torture committed a crime or to have been convicted of a crime
6. Forced pregnancy o This is a process that is governed by a treaty
7. Persecution o Legal right to demand extradition and the correlative duty to surrender a
8. Crime of Apartheid fugitive exist only when created by treaty
9. Enforced disappearance of persons o Procedure for extradition is normally through diplomatic channels
d. War crimes – grave breaches of the Geneva Convention of 12 August
1949, namely, any of the following acts against persons or property Principles governing Extradition
protected under the provisions of the relevant Geneva Convention 1. No state is obliged to extradite unless there is a treaty
e. Aircraft piracy 2. Differences in legal system can be an obstacle to interpretation of what
f. Terrorism the crime is
3. Religious and political offenses are not extraditable
PASSIVE PERSONALITY PRINCIPLE
o This does not enjoy wide acceptance Bail in Extradition Cases
o State may apply law, criminal law, to an act committed outside its o Bail may be granted to a possible extraditee only upon a clear and
territory by a person not its national where the victim of the act was convincing showing that
its national 1. He will not be a flight risk or a danger to the community
o Not accepted for ordinary torts or crimes but is increasingly accepted 2. There exist special, humanitarian and compelling circumstances
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
CHAPTER 10:
IMMUNITY FROM JURISDICTION B. State Immunity
- The State may not be sued without its consent.
* GR: Jurisdiction of a state within its territory is complete and absolute. - Based on the principle of equality and independence of states: par in parem
* Exceptions: non habet imperium.
1.) Sovereign immunity - With the gradual expansion of state involvement in commerce, the principle
2.) Diplomatic/consular immunity of state immunity has evolved to one of restrictive state immunity: only acts
jure imperii (governmental acts) and not acts jure gestionis (trading and
A. Immunity of Head of State commercial acts) are immune.
- Applies to both the Head of State and to the State itself
The Schooner Exchange v. MacFaddon
Mighell v. Sultan of Johore States enjoy absolute immunity. Despite the absolute territorial jurisdiction of
The Sultan of Johore was sued for bread of a promise to marry in a British states, one sovereign, being bound to not degrade the dignity of his nation by
court. Despite the fact that it was a private suit, it was dismissed upon placing himself within the jurisdiction of another, can be supposed to enter
verification that the Sultan was a sitting foreign sovereign. into foreign territory in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by
Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of implication and will be extended to him.
Lords, 1999)
General Augusto Pinochet led a military coup that overthrew the Chilean Dralle v. Republic of Czechoslovakia
President Allende. According to a national truth and reconciliation mission, at It can no longer be said that by international law, acta gestionis are exempt
least 3,196 people were killed or forcibly disappeared during his dictatorship. municipal jurisdiction. The classic doctrine of immunity arose at a time when
British authorities detained Pinochet on an arrest warrant issued by Spanish there was no justification for any distinction between private transactions and
Magistrate Baltasar Garzon under the charges of genocide, terrorism, and acts of sovereignty. Today, States engage in commercial activities and enter
torture. into competition with their own nationals as well as foreigners.
In affirming that Pinochet did not enjoy immunity from prosecution as a former USA v. Hon. V.M. Ruiz (Philippines)
head of state and could thus be extradited, the House of Lords explained: The traditional rule of State immunity is a necessary consequence of the
a.) Senator Pinochet as a former head of state enjoys immunity principles of independence and equality of States. However, the rules of
rationae materiae in relation to acts done by him in relation to his International Law are constantly developing and evolving. Because state
official function as such. activities have multiplied, it has become necessary to distinguish them
between sovereign and governmental acts, and private, commercial and
b.) However, organization of state torture is not an act committed in proprietary acts.
his official function. The commission of a crime which is an
international crime against humanity and jus cogens cannot be a state The result is that State immunity now extends only to acts jure imperii. A state
function. The principle of individual responsibility for international may be said to have descended to the level of an individual and can thus be
criminal conduct has become an accepted part of international law. deemed to have tacitly given its consent to be sued only when it enters into
business contracts. But this does not apply where the contract relates to the
c.) The notion of continued immunity for ex-heads of state is exercise of its sovereign functions.
inconsistent with the provisions of the Torture Convention which
provides that the international crime of torture can only be committed In this case, repairs of base facilities are an integral part of the naval base
by an official or someone in official capacity. Since the immunity devoted to the defense of both the US and the Philippines, which is a function
applies also to officials who carried out the functions of the state, if of the government not utilized nor dedicated to commercial or business
torture is treated as official business sufficient to justify the immunity, purposes.
then no party would be held liable and the structure of universal
jurisdiction over torture committed by officials is rendered abortive. US v. Hon. Luis Reyes (Philippines)
d.) Thus, Senator Pinochet was not acting in any capacity which gives A claim of immunity by an American official was rejected when shown to have
rise to immunity rationae materiae since authorized and organized been committed outside the scope of her authority as well as contrary to law.
torture are contrary to international law.
Unauthorized acts of government officials or officers are not acts of the State, the Philippines and by the proper court of Makati City, Philippines. In addition,
and an action against the latter is not a suit against the State within the rule of the Ambassador and Minister Counsellor may be sued in their personal capacity
immunity of the State from suit. The doctrine of state immunity cannot be for tortious acts done with malice and bad faith.
used as an instrument to perpetrate an injustice.
The trial court denied the Motion to Dismiss, which the CA affirmed.
Holy See v. Eriberto Rosario, Jr. (Philippines)
The mere entering into a contract by a foreign state with a private party Petitioner questions the ruling of the CA that the former had waived its
cannot be the ultimate test of whether the activity or transaction is immunity from suit based on the agreement.
―commercial‖.
The SC ruled in favor of the petitioner:
One must also question: (a.) whether the foreign state is engaged in the a.) The rules of IL are neither unyielding not impervious to change.
activity in the regular course of business; and (b.) if not, whether the nature of The increasing need of sovereign states to enter into purely
the particular transaction or act is in pursuit of a sovereign activity or an commercial activities brought about a new concept of immunity. The
incident thereof. If the answer to (b.) is yes, and especially if it is not restrictive theory holds that immunity of the sovereign is recognized
undertaken for profit or gain, then the act is jure imperii. only with regard to public acts but not with regard to private acts.
In this case, petitioner has denied having bought and sold lands in the ordinary b.) The mere entering into a contract by a foreign state with a private
course of a real estate business. Instead, he claimed that the acquisition of Lot party cannot be construed as the ultimate test of whether or not it is
5-A was for the site of its mission or the Apostolic Nunciature of the an act jure imperii or jure gestionis. If the foreign state is not engaged
Philippines. Respondent failed to dispute such claim. regularly in a business or commercial activity, as in this case, the
particular act or transaction must be then tested by its nature. If it is
* How to claim State immunity? in pursuit of a sovereign activity or an incident thereof, then it is an
- In PIL, a State must request the Foreign Office of the state where it is sued to act jure imperii.
convey to the court that it is entitled to immunity.
- In the Philippines, the foreign government or international organization must c.) The existence alone of a provision in the contract stating that any
first secure an executive endorsement (in whatever form) of its claim of legal action arising out of the agreement shall be settled according to
sovereign or diplomatic immunity. the laws of the Philippines and by a specified court of the Philippines is
not necessarily a waiver of state immunity from suit. It is merely
Republic of Indonesia v. Vinzon (2003) meant to apply where: (a.) the sovereign party elects to sue in the
Petitioner, Republic of Indonesia entered into a Maintenance Agreement with local courts; or (b.) otherwise waives its immunity by any subsequent
respondent, James Vinzon of Vinzon Trade and Services, to maintain specified act. The applicability of Philippine laws include the principle
equipment (aircons, generator sets, electrical facilities, water heaters, water recognizing sovereign immunity.
motor pumps) at the Embassy Main and Annex buildings and that the Wisma
Duta. d.) Submission by a foreign state to local jurisdiction must be clear and
unequivocal, given explicitly or by necessary implication. There is not
Chief of Administration, Minister Counselor Azhari Kasim allegedly found such waiver in this case.
Vinzon’s work unsatisfactory and not in compliance with the agreed standards.
Thus, the Embassy terminated the agreement. e.) The establishment of a diplomatic mission is a sovereign function.
It encompasses its maintenance and upkeep. Hence, the state may
Respondent alleges that the termination was arbitrary and unlawful. Vinzon enter into contracts with private entities to maintain the premises,
filed a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based furnishings and equipment of the embassy and the living quarter of its
on sovereign immunity from suit as well as diplomatic immunity under the agents and officials.
Vienna Convention on Diplomatic Relations, regarding the suit against
Ambassador Soeratmin and Minister Counsellor Kasim. f.) Under Article 31 of the Vienna Convention on Diplomatic Relations,
a diplomatic agent may be sued in his private capacity for (c.) an
Respondent alleged that the petitioner has expressly waived its immunity from action relating to any professional or commercial activity exercised by
suit based on a provision in the Maintenance Agreement which states that any the diplomatic agent in the receiving State outside his official
legal action arising from the agreement will be settled according to the laws of functions. Bu the acts of the Ambassador and the Minister Counsellor in
l.) Extension of immunity to family of diplomatic agent under Art. 29-36; k.) exercise supervision and inspection over vessels under SS flag, aircrafts
immunity of members of administrative and technical staff and their families registered in SS, and their crew
under Art. 29-35; immunity of service staff for official acts and tax exemption l.) extend assistance to such vessels and aircrafts and their crew
under Art. 33; and tax exemption of private servant for emoluments due to m.) other functions not prohibited by laws of RS
employment. (Art. 37)
- Exception: * Rights and Privileges of the consular mission:
1.) nationals of RS a.) Freedom of movement (Art. 34)
2.) permanent resident of RS (not for family of diplomatic agent) b.) Freedom of communication (Art. 35)
m.) Immunities of a diplomatic agent who is a national or permanent resident c.) Communication and contact with nationals of the SS (Art. 36)
of RS is limited to immunity from jurisdiction and inviolability in respect to d.) Personal inviolability of consular officers from arrest or detention (Art. 41)
official acts. For others, only such privileges and immunities that the RS may - Exceptions:
allow. (Art. 38) 1.) grave crime; and
n.) Privileges and immunities begin from entry into RS, or if already there, 2.) pursuant to a decision by a competent judicial authority
from notification of appointment to Ministry of Foreign Affairs of the RS. They e.) Notification of arrest, detention or prosecution (Art. 42)
cease upon leaving the RS, or on reasonable period, but shall subsist even in f.) Immunity from jurisdiction for official acts. (Art. 43)
armed conflict. (Art. 39) - Exceptions:
1.) civil actions arising from contract not entered into in official
*Obligations of diplomatic mission: capacity;
a.) To respect the laws and regulations of the RS (Art. 41) 2.) civil action by a 3rd party for damage arising from an accident in
b.) To refrain from practice for personal profit any professional or commercial the RS cause by a vehicle, vessel or aircraft
activity in the RS. (Art. 42) g.) Liability to give evidence; a consular employee can’t refuse while a
consular officer may refuse without threat of coercive measure or penalty.
* Consuls and Consular Immunities (Vienna Convention on Consular Relations (Art. 44)
1967) h.) Waiver of privilege and immunity under Art. 41, 43, and 44 by SS (Art. 45)
- Not concerned with political matters.
- Attend only to the administrative and economic issues. US v. Tehran: US Dipliomatic and Consular Staff in Iran Case ICJ (1980)
- Head of consular post must first be authorized by RS via an exequatur. Iranian students seized the US embassy in Tehran and a number of consulates in
- RS may at any time and without explanation notify the SS that a consular the outlying cities. The Iranian authorities failed to protect the embassy and
officer is a persona non grata or a staff member is unacceptable. later appeared to adopt the students’ actions. Over 50 US nationals were held
- SS can only recall or terminate his functions with the consular post. hostage for 444 days.
- RS has duty to protect the consular premises, archives and interests of the SS
and ensure the unimpeded functioning of the consular offices. Court must decide whether the initial attack by the students could be
attributed to the Iranian government and whether Iran was therefore in
* Article V. Consular Functions: violation of its international obligations.
a.) protect the interest of the SS and of its nationals in the RS
b.) further development of economic, commercial, cultural and scientific
relations and promote friendly relations between RS and SS In deciding in favor of the US, the ICJ ruled:
c.) report on development and condition of RS a.) The Iranian authorities were fully aware of their obligations under the
d.) issue passports and travel documents to nationals of SS and visa and conventions to protect the premises of the US embassy and its diplomatic and
appropriate documents for those who wish to travel to SS consular staff and were aware of the urgent need for action. They had the
e.) assist nationals means to perform their obligations but failed to do so.
f.) act as notary and civil registrar and perform administrative functions
g.) safeguard interests of nationals in cases of succession mortis causa in RS b.) The actions required of the Iranian Government by the Vienna Conventions
h.) safeguard interest of nationals who are minors or lack full capacity and by general IL is manifest. They must immediately take every effort and
i.) represent or arrange representation for nationals before the tribunals or opportunity to bring the flagrant infringements of the inviolability of the
other authorities of the RS premises, archives, and diplomatic and consular staff of the US embassy to a
j.) transmit judicial and extrajudicial documents or executing letters to take speedy end and to restore the consulates to the US control, and in general
evidence for the courts of the SS reestablish the status quo and offer reparation for damage.
George Underhill, a US citizen, had constructed a waterworks system for Environmental Tectonics brought a civil action against Kirkpatrick to seek
Bolivar under a contract with the government and operated a machinery repair damages under the Racketeer Influenced and Corrupt Organizations Act.
business. Gen. Hernandez refused to grant Underhill a passport to leave the
city to coerce him to operate his waterworks and repair works for the benefit Defendant moved to dismiss the complaint on the ground of ―act of state
of the community and the revolutionary forces. doctrine.‖
Underhill files a suit in the US to recover damages for the detention, his SC ruled that the act of state doctrine is inapplicable where the validity of a
alleged confinement to his own house, and for certain alleged assaults and foreign government act is not in question, as in this case.
affronts by the soldiers of Hernadez’s army.
In denying Underhill’s plea, the US court applied the ―act of state doctrine‖:
a.) Every sovereign state is bound to respect the independence of every other CHAPTER 11
sovereign state, and the courts of one county will not sit in judgment on the STATE RESPONSIBILITY
acts of the government of another, done within its own territory.
b.) Redress of grievances due to such acts must be obtained through the means PROTECTION OF ALIENS
open to be availed of by sovereign powers as between themselves. No State is obliged to admit aliens into its territory unless there is a treaty
requiring it
Banco Nacional de Cuba v. Sabbatino Generally, it is difficult to deny admission to all; Hence, States impose
The act of state doctrine is not a rule of international law but of judicial legal standards for admission
restraint in domestic law, embodied by the principle of separation of powers, Once admitted, at least under democratic regimes, aliens may not be
whereby courts refrain from making decisions in deference to the executive expelled without due process
who is the principal architect of foreign relations. Aliens = ―nationals abroad‖
States protect aliens within their jurisdiction in the expectation that their
own nationals will be properly treated when residing or sojourning abroad
Forms of ill-treatment of foreign nationals:
a. Mistreatment by judicial or police authorities
The breach, if any, was committed against the company, hence, only the Enforcement Regimes
company could take action. Whenever a shareholder’s interests are harmed Who can resolve issues of violations of the rights of aliens when appealed
by an act done to the company, it is to the latter that he has to look to to by States in conflict?
institute appropriate action. 1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
As to who should have the right to protect the corporation, it is the State a. US-Iran Claims Tribunal b. UN Compensation Settlements
of Nationality of the corporation, in this case, Canada. 3. Lump-sum Settlements (Claims Settlement Agreements)
a. US-Cambodia b. US-Vietnam
Standard for the Protection of Aliens
Under the Roman Law: DOCTRINE OF STATE RESPONSIBILITY
1. Jus gentium – applicable to both citizens and aliens When an injury has been inflicted, there is need to determine whether the
2. Jus civile – applicable only to Roman citizens State can be held responsible for it
In modern times Internationally wrongful act – committed when a State violates a customary
1. National treatment or Equality of treatment – aliens are treated in the rule of international law or a treaty obligation
same manner as nationals What needs to be understood?
o Bright side: aliens would enjoy the same benefits as local nationals 1. Elements of an Internationally wrongful act
o Dark side: if the State is tyrannical and its municipal laws are harsh 2. Attributability of the wrongful act to the State
and violative of human rights, then aliens would likewise be subject to 3. Enforcement of the obligation that arises from the wrongful act
such laws
2. Minimum International Standard – however harsh the municipal laws
might be, aliens should be protected by certain minimum standards of INTERNATIONALLY WRONGFUL ACT
humane protection No State can escape this responsibility when once it has committed an act
which satisfies the requirements of an ―internationally wrongful act‖
Elements of Internationally wrongful act: This responsibility does not find its justification in general principles, those
Subjective – act must be attributable not to the persons or agencies who
1. regulating the judicial organization of the State. The act of an official is
performed it, but to the State itself only judicially established as an act of State if such an act lies within the
2. Objective – act constitutes a breach of an international obligation of the official’s sphere of competence.
State
What determines the wrongful character of the act is international law and The act of an official operating beyond this competence is not an act of
not internal law State. It should not in principle, therefore, affect the responsibility of the
State.
ATTRIBUTION TO THE STATE In order to be able to admit this so-called objective responsibility of the
1. Acts of State Organs State for acts committed by its officials or organs outside their
a. Acts of any State organ whether the organ exercises legislative, competence, they must have acted at least to all appearances as
executive, judicial or any other functions, whatever position it holds, competent officials or organs, or they must have used powers or methods
and whatever its character appropriate to their official capacity.
o Organ – includes any person or body which has that status in
accordance with the international law of the State Applying to the present case, the officers in question consistently
b. Conduct of an entity which is not an organ of the State but which is conducted themselves as officers in the brigade of the Villista general; in
empowered to exercise elements of governmental authority provided this capacity they began exacting the remittance of certain sums of money
the entity was acting in that capacity in the case in question and when Caire refused, they finally shot him.
c. Conduct of an organ placed at the disposal of a State by another State
acting in the exercise of elements of governmental authority of the Under these circumstances, there remains no doubt that, even if they are
State at whose disposal it had been placed to be regarded as having acted outside their competence, the officers have
d. Conduct of a State organ or of an entity empowered to exercise involved the responsibility of the State.
elements of governmental authority, such organ or entity having acted
in that capacity, exceeding its authority or contravening instructions
concerning its exercise CORFU CHANNEL (previous case)
NICARAGUA v. US
CAIRE CLAIM Facts:
Facts: Nicaragua alleges that the mining of Nicaraguan ports or waters was
Caire, a French national, was killed in Mexico by Mexican soldiers after carried out by US military personnel. The President of US authorized a US
they had demanded money from him. Government agency to lay mines in Nicaraguan ports, either in Nicaraguan
internal waters or in its territorial sea, by persons in the pay and acting of
Issue: the instructions of such agency. US did not issue any public and official
w/n Mexico is responsible for actions of individual military personnel acting warning to international shipping of the existence and location of the
without orders or against the wishes of their commanding officers mines; and that personal and material injury was caused by the explosion
of the mines. The imputability to US of these attacks appear therefore to
Held: the Court to be established.
Objective responsibility of the States – responsibility for the acts of the
officials or organs of a State, which may devolve upon it even in the Nicaragua complains also of infringement of its air space by US military
absence of any ―fault‖ on its own personnel. The Court finds that only violations of Nicaraguan air space
imputable to US on the basis of the high altitude reconnaissance flights and
It tends to impute to the State, in international affairs, the responsibility low altitude flights causing ―sonic booms.‖
for all the acts committed by its officials or organs which constitute
offenses from the point of view of the law of nations, whether the official Nicaragua also alleges that US conceived, created and organized a
or organ in question has acted within or exceeded the limits of his mercenary army, the contra force. The Court is not able to satisfy itself
competence. that US created the contra force but holds it largely financed, trained,
equipped, armed and organized the FDN, one element of the force.
Held:
Issue: Even assuming that the ―hut tax‖ was the effective cause of the native
w/n the contras is equated as an organ of US or is acting on behalf of US rebellion, it was in itself a fiscal measure to which British Government was
perfectly entitled to exercise.
Held:
The Court considers that the evidence available to it is insufficient to It is well established principle of international law that no government can
demonstrate the toal dependence of the contras on US aid. A partial be held responsible for the act of rebellious bodies of men committed in
dependency may be inferred from the fact that the leaders were selected violation of its authority, where it is itself guilty of no breach of good
by US. There is no clear evidence that US actually exercised such a degree faith, or of no negligence in suppressing insurrection.
of control as to justify treating the contras as acting on its behalf.
HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN) Claimant relies on the declarations made by the leader of the Revolution.
Facts: While these statements are of anti-foreign and in particular anti-American
The collection of a tax newly imposed by Great Britain on the natives of sentiments, these does not amount to an authorization to revolutionaries
Sierra Leone known as the ―hut tax‖ was the signal for a serious and to act in such a way that the Claimant should be forced to leave Iran.
widespread revolt in the Ronietta district.
In the course of rebellion, all US’ Missions were attacked, and either PRELIMINARY OBJECTIONS
destroyed or damaged, and some of the missionaries were murdered. Claim of denial of justice may be lost due to failure to answer some
preliminary objections
US contends that British Government is responsible for the revolt since it a. Lack of nationality link
wholly failed to take proper steps for the maintenance of order and the b. Failure to exhaust national remedies
protection of life and property, and that the loss of life and damage to o Purpose: to protect international courts from being swamped with
property is the result of such neglect. cases which are better handled locally
o Application: cases founded on diplomatic protection or on injury to
Issue: aliens
w/n the revolt is attributable to the British Government
Held: CHAPTER 12
If follows that the compensation due to German Government is not INTERNATIONAL HUMAN RIGHTS LAW
necessarily limited to the value of the undertaking at the moment of
disposition, plus interest to the day of payment. Such a limitation might FROM ALIEN RIGHTS TO HUMAN RIGHTS
result in placing Germany and the interests protected by Geneva Early concern about human rights was about specific classes of people, e.g.
Convention, in a situation more unfavourable than that in which Germany slaves, minorities, and certain nationalities
and these interests would have been if Poland had respected the said It was not until the birth of the United Nations that human rights of all
Convention. Such a consequence would not only be unjust, but also and people became the subject of legislation
above all incompatible with the aim of the Convention that is the Human Rights – those inalienable and fundamental rights which are
prohibition of the liquidation of property, rights and interests of German essential for life as human beings
nationals and of companies controlled by German nationals in Upper 3 generations of human rights:
Silesia. 1. Traditional civil and fundamental rights
2. Social and economic rights
The essential principle contained in the actual notion of an illegal act is 3. Right to peace, clean environment, self-determination, common
that reparation must wipe out all the consequences of the illegal act and heritage of mankind, development, minority rights
re-establish the situation would have exited if that act had not been
committed. AN EMERGING INTERNATIONAL BILL OF HUMAN RIGHTS
The UN became the cradle for the development of the new international
Restitution in kind, or, if this is not possible, payment of a sum law on human rights
corresponding to the value which a restitution in kind would bear; the
Key obligations assumed by the Organization and its Members:
award, if need be, of damages for loss sustained which would not be
1. Higher standards of living, full employment, and conditions for
covered by restitution in kind or payment in place of its – such are the
economic and social progress and development
principles which should serve to determine the amount of compensation
2. Solutions for international related problems
due for an act contrary to international law.
3. Universal respect for, and observance of, human rights
These, however, do not provide for the definitions of human rights
CALVO CLAUSE REJECTED
THE COVENANT ON CIVIL AND POLITICAL RIGHTS
A provision in a contract to the effect that ―under no condition shall the
The following are substantive rights:
intervention of foreign diplomatic agents in any matter related to the
contract‖ be resorted to
1. Life, Liberty and Property, and Equality
This was rejected in North American Dredging Company Claim due to the
This, however, does not say when protected life begins, whereas the
right to seek redress is a sovereign prerogative of a State and a private
Philippines protects ―the life of the unborn from conception‖
individual has no right to waive the State’s right
There is also no provision on the right to property
On the right to life, the Covenant’s Article 6(2) expresses a bias for the 7. Minorities
abolition of the death penalty and allows its imposition, in countries which This guarantees ―ethnic, religious or linguistic minorities‖
still have death penalty, only after conviction for the most serious crimes This is one of the few rights which was already the subject of earlier
In Article 14, it is more restrictive in the matter of publicity of criminal treaties (Treaty of Versailles and Polish-German Upper Silesia Treaty)
proceedings ―where the interest of juvenile persons otherwise requires or 2-fold aspect for the concern for minorities:
the proceedings concern matrimonial disputes or the guardianship of 1. Fear of a secessionist movement by minorities
children 2. Genuine concern for the human rights of minorities and the desire to
2 provisions on Right to Compensation: flourish
1. Anyone who has been a victim of unlawful arrest or detention
2. Any person who has been a victim of miscarriage of justice unless the 8. Self-determination of Peoples
non-disclosure of the unknown fact in time is wholly or partly This covers 2 important rights:
attributable to him a. Right to freely determine their political status and freely to pursue
their economic, social and cultural development
2. Torture, ill-treatment and Prison Conditions b. Right for their own ends, to freely dispose of the natural wealth and
Proscription on torture and other forms of ill-treatment that offend not resources without prejudice to any obligation arising out of
only against bodily integrity but also against personal dignity international cooperation
Imprisonment in conditions seriously detrimental to a prisoner’s health Peoples – include those ruled by colonial powers; those who form a
constitutes a violation of Articles 7 and 10(1) of the Covenant component part of a multi-national state
2 aspects of Self-Determination:
3. Freedom of Movement a. Internal – this is the 2 important rights
Right to travel within the country, right to leave the country, right to b. External – belongs to colonies and to those non-self governing and
return to one’s country, the right to change one’s residence and the right Trust Territories
of the aliens not to be expelled without due process
Limitations: OPTIONAL PROTOCOL ON THE COVENANT ON CIVIL AND POLITICAL RIGHTS
a. Those provided for by law This treaty is designed to enable private parties who are victims of human
b. Necessary to protect national security, public order, public health or rights violations
morals Complaints may be filed only against States who have ratified the Protocol
The separation between the right to leave and right to return to one’s
country is to make the limitation more narrow than for the right to leave THE COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
the country since exile is now prohibited by customary law and may even The rights specific to this are social welfare rights
be jus cogens a. Right to work
b. Right to favorable conditions of work
4. Legal Personality, Privacy and the Family c. Right to form free trade unions
When does one become a person? The Covenant does not say. d. Right to social security and insurance
Legal Personality Capacity to Act e. Right to special assistance for families
Whether citizens or aliens May not be available to some by f. Right to adequate standard of living
reason, for instance, infancy, minority g. Right to the highest standard of physical and mental health
or insanity h. Right to education including compulsory primary education
i. Right to the enjoyment of cultural and scientific benefits and
5. Thought, Conscience, Religion, Expression and Political Freedoms international contracts
This includes the explicit protection of the Right of Parents in the matter
of Religion for their children DUTY TO IMPLEMENT
Covenant prohibits ―propaganda for war‖ The Philippines is a party to the UN Charter, UNDHR, the 2 Covenants, and
to the Optional Protocol to the Covenant on Civil and Political Rights
6. Associations and Unions Treaty commitments become part of domestic law
Covenant is silent about the right of government employees to form unions Those which are not self-executing provisions must be attended to by the
which is explicit in our Constitution necessary steps, in accordance with its constitutional processes and with
the provisions of present Covenants
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Progress Realization – State is obligated to undertake a program of CHAPTER 13: PEACEFUL SETTLEMENT OF INTERNATIONAL
activities and to realize those rights which are recognized by the Economic DISPUTES
Covenant
What is international dispute?
Other Conventions on Human Rights A disagreement on a point of law of fact, a conflict of legal views or
a. Genocide Convention interests between 2 persons
b. Convention on the Elimination of All Forms of Racial Discrimination Must have practical effect on the relationship between the parties
c. Convention on the Elimination of All Forms of Discrimination Against
Women Peaceful methods of settling disputes:
d. Convention Against Torture and other Cruel, Inhuman or Degrading Art. 2, par. 3 of UN Charter: ―All members shall settle their international
Treatment or Punishment disputes by peaceful means in such manner that international peace and
e. Convention on the Rights of the Child security, and justice are not endangered.
f. Convention on Migrant Workers There is no obligation to settle disputes except in cases that might
endanger peace and security.
But if a decision is made to settle disputes, the obligation is to settle
CUSTOMARY HUMAN RIGHTS LAW them peacefully.
Prohibition on Torture, Genocide, Slavery and Discrimination
Key provisions in UN Charter:
Art. 33: (disputes likely to endanger international peace and security)
INTERNATIONAL IMPLEMENTATION OF HUMAN RIGHTS LAW Parties to any dispute shall first of all seek a solution by negotiation,
Each country has the obligation to implement human rights law within its enquiry, mediation, conciliation, arbitration, judicial settlement,
jurisdiction properly done through municipal or regional courts resort to regional agencies or arrangements, or other peaceful means
2 different procedures used by Human Rights Commission for responding to of their choice.
violations of human rights: When it deems necessary, the SC shall call upon the parties to settle
a. Confidential consideration under ECOSOC Resolution 1503 their disputes by such means.
o The confidential findings of the Sub-Commission are brought to the
attention of CHR Art. 36:
o The CHR is expected to submit its report and recommendation to the SC may, at any stage recommend appropriate procedures or methods
ECOSOC of adjustment.
o Procedure is kept confidential, but findings invariably find their way SC should take into consideration what has already been adopted by
into media the parties.
b. Public debate procedure under ECOSOC Resolution 1235
SC should consider that legal disputes should generally be referred by
o This carries 2 types of activities:
the parties to the ICJ.
1. It holds annual public debates in which governments and NGOs are
given opportunity to identify specific situations which deserve
Art. 37:
attention
2. It engages in studies and investigations of particular situations If parties fail to settle disputes via Art. 33, they shall refer it to the
SC.
INTERNATIONAL CRIMINAL COURT If SC deems the dispute to likely endanger international peace and
security, it shall: (a) take action under Art. 36; or (b) recommend
Until the establishment of ICC, international crimes were prosecuted in ad
hoc criminal courts (Nuremberg and Tokyo Tribunals) appropriate terms of settlement.
The goal of ICC is to demand individual and not collective accountability
Art. 38:
Its jurisdiction is limited to most serious international crimes: Genocide,
Crimes against Humanity, War crimes, and the Crime of Aggression If all parties request, SC may make recommendations for pacific
settlement.
Principle of Complementarity – the court of last resort
If dual citizenship, nationality is based on where civil and political Disputes are to be settled by IL and not DL.
rights are ordinarily exercised. Court acquires jurisdiction only upon referral by both parties.
Central American State or arising out of events in Central Court found that Australia’s behavior cannot be assessed without first
America...this notice shall take place immediately and remain in force entering into the question of why Indonesia could not lawfully have
for 2 years.‖ concluded the 1989 treaty. The very subject matter would be a
The ICJ initially found that Nicaragua could rely on the 1946 determination whether, having regard to the circumstances in which
declaration since it was a ―state accepting the same obligation‖ on the Indonesia entered and remained in East Timor, it could/not have
basis if its own declaration under the Statute of the PCIJ. acquired power to enter into treaties on behalf of ET relating to
US contends that the 1984 notification should be given effect, thereby resources of its continental shelf. The court cannot make such
taking away the court’s jurisdiction over the case. determination without the consent of Indonesia.
II. Held: W/N the behavior of Australia breaches rights erga omnes (ET’s right
In its 1946 declaration, the US included a proviso which required a 6 to self determination), the Court cannot rule on the lawfulness of the
months’ notice prior to termination. conduct of a State when its judgment would imply an evaluation of the
US contends that Nicaragua was not a ―state accepting the same lawfulness of the conduct of another State which is not a party to the
obligation‖ since its own declaration was of undefined duration and case. Further, the nature of the obligation is different from the rule of
thus liable to immediate termination. Thus, Nicaragua could not rely consent to jurisdiction.
the the US’ time-limit proviso under the principle of reciprocity. Finally, the court ruled that it cannot be inferred from the sole fact
However, the Court found the same untenable, given that the time- that a number of resolutions of the GA and the SC refer to Portugal as
limit proviso was made by the US freely and by its own choice. the administering Power of ET that they intended to establish an
Furthermore, the notion of reciprocity is concerned with the scope and obligation on 3rd states to treat exclusively with Portugal as regards the
substance of commitments (including reservations) and not with the continental shelf of ET.
formal conditions of their creation, duration or extinction. Reciprocity
cannot be invoked to excuse departure from the terms of the State’s Provisional Measures
own declaration. Art. 41:
Nicaragua can invoke the 6 months notice not on the basis of ICJ has the power to indicate any provisional measures which ought to
reciprocity but because it is an undertaking which is an integral part of be taken to preserve the respective rights of either party
the instrument that contains it. Pending final decision, notice of the measures suggested shall be given
to the parties and the SC.
Case concerning East Timor (Portugal vs. Australia, ICJ 1995)
I. Facts: Nicaragua vs. US
Portugal initiated proceedings against Australia for the latter’s ―failure I. Facts:
to observe the obligation to respect the duties and powers of Portugal Court finds it necessary to indicate provisional measures under Art. 41
as the administering power of East Timor and the right of the people of to preserve the rights claimed. Such decision in no way prejudges the
ET to self determination and related rights‖ pertaining to the Treaty of question of jurisdiction to deal with the merits of the case.
1989 for the creation of a zone of cooperation in the area between Such measures include:
East Timor and Northern Australia. a. US should cease and refrain from any action restricting, blocking
As basis for jurisdiction, it referred to the declarations of both states or endangering access from or to Nicaraguan ports, and in
under the optional system. particular, laying mines.
Australia contends that the real dispute is between Portugal and b. The right to sovereignty and political independence of Nicaragua.
Indonesia and that the latter has not signed the optional clause. States should refrain from using force or threat of force against its
The Court ruled that w/n Portugal has rightly formulated territorial integrity or political independence. States should not
complaints against Australia, the fact that the latter denied the intervene in matter within the domestic jurisdiction of a State.
same created a legal dispute. c. The governments of US and Nicaragua should ensure that no action
Australia contends that the effect of Portugal’s application would is made to aggravate or extend the dispute.
require the Court to determine the rights and obligations of Indonesia d. Both Governments should ensure that no action is taken which
to settle the validity of the treaty between Australia and Indonesia. might prejudice the rights of the other party in respect to the
Portugal insists that the dispute is exclusively based on the objective carrying out of whatever decision the Court may render.
conduct of Australia when the latter negotiated, concluded and e. Until final judgment, the Court will keep matters covered by this
initiated performance of its treaty with Indonesia. order continuously under review.
II. Held:
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Nicaragua v. US
The prohibition of the use of force is customary international law
The general rule prohibiting force established in customary law allows for certain
exceptions. The exception of the right of individual or collective self-defense is also
Nicaragua v. US established in customary law, which Art. 51 refers to an ―inherent right‖.
Consent to such resolutions is one of the forms of expression of an opinio juris with regard The Parties agree in holding that whether the response to an attack is lawful depends on
to the principle of non-use of force, regarded as a principle of customary international the observance of the criteria of necessity and the proportionality of the measures taken
law, independently of the provisions, especially those of an institutional kind, to which it in self-defense.
is subject on the treaty-law plane of the Charter
Whether self-defense be individual or collective, it can only be exercised in response to
an ―armed attack.‖ The Court does not believe that the concept of ―armed attack‖
Threat of Force
includes assistance to rebels. Furthermore, the Court finds that in customary international
Charter prohibits not just use of force but also the threat of force law, there is no ruling permitting the exercise of collective self-defense in the absence of
Typical form of threat of force: a request by the State which is a victim of the alleged attack, this being additional to the
o A State is given an ultimatum, a time-limit, within which to accept the requirement that the State should have declared itself to have been attacked.
demands made upon it and is told that, if it rejects the demands, war
will be declared on it or certain coercive measures will be taken Is anticipatory self-defense allowed?
Examples of coercive measures: 2 views:
a. Naval blockade 1. States do not invoke the right because they are afraid that it might be
b. Bombardment used against them too
c. Occupation of a given territory 2. Israel launched a preemptive strike against its Arab neighbors but the
UN did not condemn the act
Legality of the Threat or Use of Nuclear Weapons In the case of the Gulf War against Iraq, the Allied forces came on
invitation of Kuwait which was under invasion
The Charter recognizes the inherent right of individual or collective self-defense if an
The right to use force to defend claimed territory was rejected in the
armed attack occurs. The entitlement to resort to self-defense is subject to the conditions
of necessity and proportionality. Falkland War
A further lawful use of force is envisage whereby the Security Council may take military Traditionally Allowable Coercive Measures
enforcement measures in conformity of the Charter. 1. Severance of Diplomatic Relations
o Reason: there is no obligation to maintain diplomatic relations
These apply to any use of force, regardless of the weapons employed.
o Limitation: not be resorted unless truly necessary because it might
endanger peace
o Suspension involves withdrawal of diplomatic representation but
Individual and Collective Self-Defense not of consular representation
Exception to the prohibition of the use of force
2. Retorsion
Article 51 o Any forms of counter-measures in response to an unfriendly act
o Includes:
Measures taken by Members in the exercise of this right of self-defense shall be a. Shutting of ports to vessels of an unfriendly State
immediately reported to the Security Council and shall not in any way affect the authority b. Revocation of tariff concessions not guaranteed by treaty
and the responsibility of the Security Council to take at any time such action as it deems c. Display of naval forces near the waters of an unfriendly State
necessary in order to maintain or restore international peace and security.
3. Reprisal
o Any kind of forcible or coercive measures where by one State seeks
to exercise a deterrent effect or obtain redress or satisfaction,
directly or indirectly, for the consequences of illegal act of
another State which has refused to make amends for such illegal
acts
o This must be preceded by an unsatisfied demand for reparation
The Hague Convention prohibits the employment of ―arms, projectiles or Outside help for governments experiencing rebellion is legitimate provided
material calculated to cause unnecessary suffering‖ requested by the government
There is a need to balance military necessity and humanitarian Aid to rebels is contrary to international law
consideration
Legality of the Threat or Use of Nuclear Weapons (ICJ 1996) Common Article 3
Cardinal Principles constituting the Fabric of Humanitarian Law: In case of armed conflict not of an international character, persons should
1. States must never make civilians the object of attack and must still be accorded a minimum humanitarian protection
consequently never use weapons that are incapable of distinguishing Prohibited acts:
between civilian and military targets a. Violence like murder of all kinds, mutilation, cruel treatment and
2. It is prohibited to cause unnecessary suffering to combatants torture
b. Taking of hostages
c. Outrages on human dignity
INTERNATIONAL COMMISSION ON RED CROSS d. Passing of sentences and carrying out of executions without previous
Basic Rules Governing Armed Conflicts: judgment pronounced by a regular court
1. Soldier’s Rules International Committee of the Red Cross – an impartial humanitarian body
a. Fight only enemy combatants and attack only military
objectives
b. Prisoners of war must be treated humanely and are bound to Protocol II
give only information about their identity The first and only international agreement exclusively regulating the
c. Looting is prohibited. Respect other’s property. conduct of parties in a non-international armed conflict
2. Fundamental Rules of International Humanitarian Law Applicable to International armed conflict – that which takes place in the territory of a
Armed Conflicts Contracting Party between its armed forces and dissident armed forces or
a. Persons hors de combat and those who do not take a direct other organized armed groups which
part in hostilities are entitled to respect for their lives and Material Field of Application:
moral and physical integrity a. Armed dissidents must be under responsible command
b. It is forbidden to kill or injure an enemy who surrenders or is b. They must ―exercise such control over a part of its territory as to
hors de combat enable them to carry out sustained and concerted military operations
3. Non-International Armed Conflicts and to implement this Protocol
a. Obligation to distinguish between combatants and civilians
b. Prohibition of attacks against the civilian population as such or
against individual citizens INTERNATIONAL TERRORISM
c. Customary rule prohibiting the use of chemical weapons, There is no crime terrorism in Philippines statute books but some acts are
bullets which expand or flatten easily in the human body, considered terroristic and are independently punished by the RPC
poison as means of warfare, and booby-traps
Terrorism Act (British Law) – violent moves against person or property or
against public health and safety which have for their purpose to influence
NEUTRALITY
the government or to intimidate a section of the public or to advance a
To adopt an attitude of impartiality towards the belligerents political, religious or ideological cause
Such attitude must be recognized by belligerents and creates both rights Draft of an International Convention for the Suppression of the Financing of
and duties in the neutral states Terrorism:
Neutrals must not engage in activities which interfere with the activities of o Any person commits an offense of terrorism if he does an act intended to
the belligerents cause:
a. Death or serious bodily injury to any person
b. Serious damage to a State or Government Facility with the intent to
NON-INTERNATIONAL CONFLICTS cause extensive destruction
Civil wars or rebellion do not violate international law Attack on WTC on 9-11 was characterized as Crime against Humanity
International law on armed conflict does not apply to internal conflicts through the atrocious character exhibited by the act: its magnitude,
gravity, targeting of civilians
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o The importance of this characterization is that it led to what seems to be Resources should be made available to preserve and improve the
a development in the international law of self-defense environment
Self-defense – legitimate response to an armed attack by a State Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve
the environment
CHAPTER 16 International matters concerning the protection and improvement of the
INTERNATIONAL ENVIRONMENTAL LAW environment should be handled in a cooperative spirit by all countries on
an equal footing
ENVIRONMENTAL CONCERNS Man and his environment must be spared the effects of nuclear weapons
and all other means of mass destructions
Sec. 16, Art. 2 of the Constitution. The State shall protect and advance
the right of the people to a balanced and healthful ecology in accord with 2. Rio Declaration
the rhythm and harmony of nature. Human beings are at the center of concerns for sustainable development
States have the sovereign right to exploit their own resources
The protection of the environment is now also a concern of international In order to achieve sustainable development, environmental protection
law shall constitute an integral part of the development process and cannot be
a. Protection of the atmosphere, the sea, land, flora and fauna considered in isolation from it
b. Preservation of the cultural heritage of mankind The special situation and needs of developing countries shall be given
The protection of the environment is a vital part of contemporary human special priority
rights doctrine, for it is a sine qua non for numerous human rights such as Environmental issues are best handled with the participation of all
the right to health, and the right to life itself concerned citizens, at the relevant level
States shall develop national law regarding liability and compensation for
WHO HAVE ENVIRONMENTAL RIGHTS? the victims of pollution and other environmental damage
Persons capable of having rights States shall immediately notify other States of any natural disasters or
Minors pleading for intergenerational protection (Factoran case) other emergencies that are likely to produce sudden harmful effects on the
environment of those States
SUSTAINABLE DEVELOPMENT Warfare is inherently destructive of sustainable development
A concept adopted by the World Commission on Environment and
Development Some Treaties
This encourages development in a manner and according to methods which a. Vienna Convention for the Protection of the Ozone Layer – the layer of
do not compromise the ability of future generation and other States to the atmospheric ozone above the planetary boundary layer
meet their needs b. UN Conference on Environment and Development – stabilization of
greenhouse gas concentration in the atmosphere at a level that would
EMERGING PRINCIPLES prevent dangerous anthropogenic interference with the climate system
The following are only declarations, they do not have the force of law c. Kyoto Protocol – protection of the atmosphere
1. Stockholm Declaration d. Convention on International Trade in Endangered Species of Wild Fauna
Man has fundamental right to freedom, equality and adequate conditions and Flora
of life, in an environment of a quality that permits a life of dignity and e. Convention on Biological Diversity
well-being, and he bears a solemn responsibility to protect and improve
the environment for present and future generations Regional Treaties
Natural resources of the earth, including the air, water, land, flora and a. Treaty of Rome
fauna and especially representative samples of natural ecosystems, must b. North American Agreement on Environmental Cooperation
be safeguarded c. Protocol on Environmental Protection to the Antarctic Treaty
Man has a special responsibility to safeguard and wisely manage the d. Amazon Declaration
heritage of wildlife and its habitat
The struggle of the peoples of ill countries against pollution should be
supported
States shall take all possible steps to prevent pollution of the seas
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