(2-J SY. 2019-2020) PUBLIC International Law Reviewer (Bernas and Sarmiento) Chapter 1-The Nature of International Law

Ut in Omnibus Glorifiectur Deus – That in all things God May be glorified
(2-J SY. 2019-2020) PUBLIC

INTERNATIONAL LAW REVIEWER
(BERNAS and SARMIENTO)
b. Positivist School
CHAPTER 1- THE NATURE OF - Holds that norms are valid only insofar as they have been
INTERNATIONAL LAW created according to a definite and discernible rule. All norms
can be traced back to an “ultimate rule”, according to which the
norms of this order are established and annulled, receive or lose
International Law
their validity.
-Law is independent of morality.
- A body of rules and principles of action which are binding
upon civilized states in their relations to one another.
c. Eclectic or Grotian School
- The law which deals with the conduct of states and of
international organizations and with their relations inter se, as
- Recognizes that International Law is in part a product of
well as with some of their relations with persons, whether
natural law and at the same time the positive consent of the state
natural or juridical.
to be bound by its rules.
- The modern approach expands the definition to include
relations not only between states but also relations:
Hugo Grotius
a. between international organizations and States;
-Father of International Law
b. among international organizations themselves;
c. between States or international organizations and
Theories about International Law
natural or juridical persons.
- It is a normative value that speaks to us all, whether we are
a. Command theory- International law is not law
rich or poor, black or white, of any religion or none, or come
because it does not come from a command of a
from countries that are industrialized or developing.
sovereign. Neither treaties nor custom come from a
command of a sovereign.
Jeremy Bentham
a. Consensual theory- International law derives its
binding force from the consent of states.
- English philosopher who coined the term “International Law”
a. Natural Law theory- Law is derived by reason from
the nature of man. International law is said to be an
Subjects of international law
application of natural reason to the nature of the state-
person.
-Sovereign states
-International organizations
Is International law a law?
-Individuals
-There are 2 schools of thought involved:
Three main schools of International Law
a. Since there is no sovereign supranational body to enforce
a. Natural Law School
International Law, it is likewise not a true law.
- Based on the premise that there are certain normative
b. It is considered law in practice, and the sanctions for failing
principles or postulates that are true or “self-
to comply, although often less direct, are similar to those of
evident” and which exist independently of their codification or
municipal law; include the force of public opinion, self-help,
enforcement by human beings.
intervention by third-party States, the sanctions of international
organizations such as the UN, and in the last resort, war.
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How consent to be bound is manifested Hard Law vs Soft Law
a. Express- in the form of treaties or conventions; Hard Law Soft Law

b. Implied- as in the case of international customs; and
c. Presumed- in the case of general principles of law Refers to binding Refers to norms that are non-
international legal norms or binding in character but still
those which have coercive have legal relevance.
Basis of International Law character.
Usually serves as a precursor
a. Direct consent- based upon the direct “consent” of of hard law.
States, upon their individual acceptance of its
principles and rules. Not a law in itself. They are
b. Implied consent- a fiction to account for the important and influential, but
acceptance of the great body of general principles do not in themselves
and specific rules that had come to form the body of constitute legal norms.
customary law.
c. Mutuality of interest- could only be maintained by Example: Example:
altering from time to time such rules as it might be no Provisions of the UN Charter, Resolutions of the UN
longer to the interest of the parties to observe. the Vienna Conventions of General Assembly and draft
d. Necessity- the fact that nations have common 1949 and other treaties in articles of the International
interests constitutes the actual community of States, force Commission
and at the same time imperatively demands a rule of
law, so that International Law may be said to be
based upon the very necessity for its existence. Public International Law vs Private International Law
Public International Law Private International Law

International comity (comitas gentium)
(Conflicts of Law)
-refers to rules of politeness, convenience, and good will Regulates the relationship Regulate the relationship
observed by States in their mutual intercourse without being between States and between persons.
legally bound by them . international entities.
Domestic law which deals
Note: with cases where foreign law
International comity may develop into rules of customary intrudes in the domestic
international law if they are maintained over a long period of sphere where there are
time. questions of the applicability
of foreign law or the role of
foreign courts.
Regulates competing Focuses on the conduct, not of
demands, and establishes the States or international
framework for predictable organizations, but rather on
and agreed behavior among the conduct of individuals,
parties
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corporations and other private allegedly by the al-Qaeda headed by Osama bin
entities. Laden that occurred on September 11, 2001. Arthur
D. Lim and Paulino P. Ersando as citizens, lawyers
and taxpayers filed a petition for certiorari and
prohibition attacking the constitutionality of the
Note: joint exercise. Partylists Sanlakas and Partido Ng
An individual cannot deal directly with the state. Grievances of Manggagawa as residents of Zamboanga and Sulu
an individual against other States must be through its national directly affected by the operations filed a petition-
in-intervention.
government.
The Solicitor General commented the prematurity
of the action as it is based only on a fear of future
Philippine Constitution with reference to International Law violation of the Terms of Reference and impropriety
of availing of certiorari to ascertain a question of
1. Article II, Sec.2: The Philippines renounces war as fact specifically interpretation of the VFA whether
an instrument of national policy, adopts the generally it is covers "Balikatan 02-1” and no question of
accepted principles of international law as part of the constitutionality is involved. Moreover, there is lack
law of the land and adheres to the policy of peace, of locus standi since it does not involve tax spending
equality, justice, freedom, cooperation, and amity and there is no proof of direct personal injury.
with all nations.
2. Article VIII, Sec. 5, par. 2 (a): The Supreme Court
shall have the power to review the constitutionality RULING:
or validity of any treaty, international or executive Neither the Mutual Defense Treaty nor the Visiting
agreement Forces Agreement allow foreign troops to engage in
an offensive war on Philippine territory. Under the
salutary proscription stated in Article 2 of the
LIM V. EXECUTIVE SECRETARY
Charter of the United Nations. Both the Mutual
G.R. No. 151445 April 11, 2002 Defense Treaty and the Visiting Forces Agreement,
as in all other treaties and international agreements
to which the Philippines is a party, must be read in
the context of the 1987 Constitution.The
FACTS:
Constitution also regulates the foreign relations
Pursuant to the Visiting Forces Agreement (VFA) powers of the Chief Executive when it provides that
signed in 1999, personnel from the armed forces of "no treaty or international agreement shall be valid
the United States of America started arriving in and effective unless concurred in by at least two-
Mindanao to take partin "Balikatan 02-1” in January thirds of all the members of the Senate." Hence,
2002. The Balikatan 02-1 exercises involve the foreign troops are allowed entry into the Philippines
simulation of joint military maneuvers pursuant to
only by way of direct exception.
the Mutual Defense Treaty, a bilateral defense
agreement entered into by the Philippines and the
United States in 1951. The exercise is rooted from As stated in section 5 of Article VIII of the 1987
the international anti-terrorism campaign declared Constitution, “The Supreme Court shall have the
by President George W. Bush in reaction to the 3 power to review, revise, reverse, modify, or affirm
commercial aircrafts hijacking that smashed into on appeal or certiorari, as the law or the Rules of
twin towers of the World Trade Center in New York
Court may provide, final judgments and order of
City and the Pentagon building in Washington, D.C.
lower courts in all cases in which the
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VII will find applicability with regard to determining the

constitutionality or validity of any treaty,
number of votes required to obtain the valid concurrence of
international or executive agreement, law,
the Senate.
presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.”
BAYAN vs. EXECUTIVE SECRETARY RONALDO
Ichong v. Hernandez: “provisions of a treaty are ZAMORA
always subject to qualification or amendment by a G.R. No. 138570 October 10, 2000
subsequent law, or that it is subject to the police
power of the State” FACTS:
The Philippines and the United States entered into a Mutual
Gonzales v. Hechanova: “our Constitution Defense Treaty to further strengthen their defense and
authorizes the nullification of a treaty, not only security relationship. Under the treaty, the parties agreed to
when it conflicts with the fundamental law, but, respond to any external armed attack on their territory, armed
also, when it runs counter to an act of Congress.” forces, public vessels, and aircraft.
The foregoing premises leave no doubt that US
forces are prohibited from engaging in an offensive The Philippine Senate rejected the proposed RP- US Treaty
war on Philippine territory. of Friendship, Cooperation and Security which, in effect,
would have extended the presence of US military bases in the
3. Article VII, Sec. 21: No treaty or international Philippines.
agreement shall be valid and effective unless
concurred in by at least two-thirds of all the Members On July 18, 1997 RP and US exchanged notes and discussed,
of the Senate. among other things, the possible elements of the Visiting
4. Article XVIII, Sec. 25: After the expiration in 1991 Forces Agreement (VFA). This resulted in a series of
of the Agreement between the Republic of the conferences and negotiations. Thereafter, President Fidel
Philippines and the United States of America Ramos approved the VFA, which was respectively signed by
concerning Military Bases, foreign military bases, Secretary Siazon and United States Ambassador Thomas
troops, or facilities shall not be allowed in the Hubbard.
Philippines except under a treaty duly concurred in On October 5, 1998, President Joseph E. Estrada, through
by the Senate and, when the Congress so requires, respondent Secretary of Foreign Affairs, ratified the VFA.
ratified by a majority of the votes cast by the people On October 6, 1998, the President, acting through respondent
in a national referendum held for that purpose, and Executive Secretary Ronaldo Zamora, officially transmitted
recognized as a treaty by the other contracting State. to the Senate of the Philippines the Instrument of
Ratification, the letter of the President and the VFA, for
On the whole, the VFA is an agreement which defines the
concurrence pursuant to Section 21, Article VII of the 1987
treatment of US troops visiting the Philippines. It provides for
Constitution.
the guidelines to govern such visits of military personnel, and
further defines the rights of the US and RP government in the Petitions for certiorari and prohibition were filed by the
matter of criminal jurisdiction, movement of vessel and petitioners assailing the constitutionality of the VFA and
aircraft, import and export of equipment, materials and imputing to herein respondents grave abuse of discretion in
supplies. Undoubtedly, Section 25, Article XVIII, which ratifying the agreement.
specifically deals with treaties involving foreign military
bases, troops, or facilities, should apply in the instant case. To Petitioner contends, under the provision cited, the “foreign
a certain extent, however, the provisions of Section 21, Article military bases, troops, or facilities” may be allowed in the
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Philippines unless the following conditions are sufficiently bases, troops, or facilities” may be allowed in the Philippines
met: only by virtue of a treaty duly concurred in by the Senate,
ratified by a majority of the votes cast in a national
1. It must be a treaty; 2. It must be duly concurred in by the referendum held for that purpose if so required by Congress,
senate, ratified by a majority of the votes cast in a national and recognized as such by the other contracting state.
referendum held for that purpose if so required by congress;
and 3. Recognized as such by the other contracting state. On the whole, the VFA is an agreement which defines the
treatment of US troops visiting the Philippines. It provides
Respondents, on the other hand, argue that Section 21 Article for the guidelines to govern such visits of military personnel,
VII is applicable so that what is required for such a treaty to and further defines the rights of the US and RP government
be valid and effective is the concurrence of at least two-thirds in the matter of criminal jurisdiction, movement of vessel and
of all the members of the senate. aircraft, import and export of equipment, materials and
supplies. Undoubtedly, Section 25, Article XVIII, which
specifically deals with treaties involving foreign military
ISSUE: bases, troops, or facilities, should apply in the instant case.
Is the VFA governed by section 21, Art. VII, or section 25, To a certain extent, however, the provisions of Section 21,
Art. XVIII of the Constitution Article VII will find applicability with regard to determining
the number of votes required to obtain the valid concurrence
of the Senate.
RULING:
The Constitution makes no distinction between “transient”
Section 25, Art XVIII, not section 21, Art. VII, applies, as and “permanent”. Nothing in Section 25, Article XVIII that
the VFA involves the presence of foreign military troops in requires foreign troops or facilities to be stationed or placed
the Philippines. permanently in the Philippines. When no distinction is made
by law the Court should not distinguish. This prohibition is
The Constitution contains two provisions requiring the
not limited to the entry of troops and facilities without any
concurrence of the Senate on treaties or international
foreign bases being established. The clause does not refer to
agreements.
“foreign military bases, troops, or facilities” collectively but
Section 21, Article VII deals with treaties or international treats them as separate and independent subjects, such that
agreements in general, in which case, the concurrence of at three different situations are contemplated — a military
least two-thirds (2/3) of all the Members of the Senate is treaty the subject of which could be either (a) foreign bases,
required to make the treaty valid and binding to the (b) foreign troops, or (c) foreign facilities — any of the three
Philippines. This provision lays down the general rule on standing alone places it under the coverage of Section 25,
treaties. All treaties, regardless of subject matter, coverage, Article XVIII.
or particular designation or appellation, require the
concurrence of the Senate to be valid and effective. In
contrast, Section 25, Article XVIII is a special provision that CHAPTER 2- THE SOURCES OF
applies to treaties which involve the presence of foreign
INTERNATIONAL LAW
military bases, troops or facilities in the Philippines. Under
this provision, the concurrence of the Senate is only one of
the requisites to render compliance with the constitutional WHAT SOURCES ARE
requirements and to consider the agreement binding on the
Philippines. Sec 25 further requires that “foreign military Sources are often classified into:
1. FORMAL SOURCES
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•
refer to the various processes by
which rules come into existence
(e.g. legislation) CUSTOM OR CUSTOMARY LAW
2. MATERIAL SOURCES
Custom or customary law means “a general and consistent
• concerned with the substance and
practice of states followed by them from a legal obligation.”
content of the obligation
Customs have two basic elements: the material factor, and the
• identifies what obligations are subjective factor.
Material factor: practice of states or usus
Examples: state practices, UN Resolutions,
It deals with the question on “how states
treaties,. Judicial decisions and writing of
behave?” Its elements are:
jurists
1. Duration
Art. 38, ICJ Statute.
1. The Court, whose Duration may be short or long. In the Paquete Havana
function is to decide in case, it was ruled therein that “Coastal fishing vessels with their
accordance with cargoes and crews are excluded from prizes of war. The
international law such doctrine that exempts coastal fishermen with their vessels and
disputes as are crews from capture as prizes of war has been known by the U.S.
submitted to it, shall from the time of the War of Independence and has been
apply: recognized explicitly by the French and British governments. It
is an established rule of international law that coastal fishing
a.) international conventions, whether
vessels with their equipment and supplies, cargoes and crews,
general or particular, establishing rules
unarmed and honestly pursuing their peaceful calling of
expressly recognized by the contesting states;
catching and bringing in fish are exempt from capture as prizes
b.) international custom, as evidence of a of war.”
general practice accepted as law; Duration, however, is not the most important element.
Consistency and generality are more important.
c.) the general principles of law recognized 2. Consistency
by civilized nations;
The practice must be continuous and
d.) subject to the provisions of Article 59, consistent.
judicial decisions and the teachings of the 3. Generality (or Uniformity)
most highly qualified publicists of the
various nations, as subsidiary means for the Substantial practice would already
determination of rules of law. suffice. Practice need not be “in
absolute conformity” with the
2. This provision shall not prejudice the purported customary rule1
power of the Court to decide a case ex aequo Opinio juris
et bono, if the parties agree thereto. Opinio juris, or the belief that a certain form of
behavior is obligatory, is what makes practice an international
Art. 38(1) does not speak of sources per se. Art. 38 is rule. For a new customary rule to be formed, not only must the
primarily a directive to the court on how it should resolve acts concerned ‘amount to a settled practice,’ but they must be
conflicts. accompanied by the opinio juris sive necessitatis. Either the
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States taking such action or other States in a position to react to “usages of states” or usus thus suggesting that even without
it must have behaved so that their conduct is “evidence of a practice or usus or at least without consistent practice there can
belief that this practice is rendered obligatory by the existence emerge a principle of law based on laws of humanity and the
of a rule of law requiring it.” The need for such a belief, i.e., the dictates of public conscience.
existence of a subjective element, is implicit in the very notion
of the opinio juris sive necessitatis.2
Jus cogens TREATIES
A jus cogens norm holds the highest hierarchical
The Vienna Convention defines a treaty as “an
position among all other customary norms and principles."
international agreement concluded between States in written
As a result, jus cogens norms are deemed "peremptory and
form and governed by international law, whether embodied in
non-derogable." When applied to international crimes, "jus
a single instrument or in two or more related instruments and
cogens crimes have been deemed so fundamental to the
whatever its particular designation.” Treaties determine the
existence of a just international legal order that states
rights and duties of states just as individual rights are
cannot derogate from them, even by agreement."3
determined by contracts.
Dissenting states:
Treaties and custom
Dissenting states would still be bound by custom
Treaties and custom can be complementary. However, in
unless they have consistently objected to it while the custom
cases of contradiction and when the treaty comes after the custom,
was merely in the process of formation. Dissent only protects
the treaty would prevail pursuant to the doctrine of pacta sunt
only the dissenter and not the others. Newly formed states is
servanda. In cases, where the later treaty is contrary to a
bound by is bound by a practice that has become law.
customary rule that has the status of jus cogens, custom will
Evidence of state practice:
prevail as the treaty is void pursuant to Art. 53 of the Vienna
Some forms of state practice are (1) treaties, (2)
Convention on the Law of Treaties. In a situation, where custom
diplomatic correspondence, (3) statements of national leaders
develops after a treaty, the rule is not clear. The logical rule
and political advisers, as well as the (4) conduct of states. By
perhaps should be that the later custom, being the expression of a
themselves, however, they do not constitute customary law
later will, should prevail. But such an approach would militate
unless characterized by opinio juris.
against the certainty of treaties. In practice, however, an attempt
Instant Custom
is made to keep the treaty alive by efforts at reconciling a treaty
Result of a spontaneous activity of a great number of
with the developing custom.
states supporting a specific line of action. In the after- math of
the attack on the Word Trade Center in New York, a coalition
of forces arose in a matter of months supportive of the action GENERAL PRINCIPLES OF LAW RECOGNIZED BY
taken by the United States against Osama Bin Laden. At least CIVILIZED NATIONS
one writer has suggested that this united action may have given
birth to instant customary law classifying the attack as an armed They may, in a sense, be said to belong to no particular
attack under Article 51 of the UN Charter justifying collective system of law but are evidence rather of the fundamental unity of
self-defense. What was peculiar about this collective action was law. Most of these principles, however, have either become part
that the object of defense was not an attack from a state but of customary law or have been incorporated into conventional
from a non-state organization. international law.
Usus and opinion juris in Humanitarian Law: The Martens
Clause
What the clause does is to put the “laws of humanity”
and the “dictates of public conscience” on the same level as
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JUDICIAL DECISIONS - Matters usually dealt with by treaties: a) lease of naval

bases b) the sale or cession of territory c) the
Courts apply judicial decisions as subsidiary means for the regulation of conduct of hostilities d) the
determination of the rules of law. The decision of the Court has termination of war e) the formation of alliances f)
no binding force except between the parties and in respect of that the regulation of commercial relations g) the
settling of claims h) the establishment of
particular case (Art. 59, ICJ Statute)
international organizations
Definition of Treaties
THE TEACHINGS OF HIGHLY QUALIFIED WRITERS
AND “PUBLICISTS.” - Treaty is an international agreement concluded
between States in written form and governed by
In many cases of first impression, the only authorities that international law, whether embodied in a single
can be cited are writers. The ICJ is generally reluctant to refer to instrument or in two or more related instruments and
writers but they are often taken into consideration. whatever its particular designation.
EQUITY
Elements of Treaty
Equity, when accepted, is an instrument whereby
1.) Must be in writing
conventional or customary law may be supplemented or modified 2.) Reflective of the intention of the parties to be bound.
in order to achieve justice. It has both a procedural and substantive 3.) Governed by international law.
aspect. Procedurally, it means a mandate given to a judge to - While treaties are generally in written form, there are
exercise discretion in order to achieve a determination that is more writers who hold that even an oral agreement can be
equitable and fair. binding. HOWEVER, only written agreements that are
new, come under the provisions of the Vienna
Convention.
OTHER SUPPLEMENTARY EVIDENCE - No particular form is required as shown in the case of
QUATAR V. BAHRAIN it was stated that to ascertain
whether it can be considered as an international
• UN Resolutions—merely recommendatory; but if
agreement, the Court must have regard for its actual
supported by all states, they are an expression of terms and the particular circumstances in which it was
opinion juris communis. drawn. The Minutes had included a reaffirmation of
• Soft Law—international agreements not concluded as the obligations they entered into, and were not, thus, a
treaties and therefore not covered by the Vienna simple record of the meeting but enumerate the
Convention on the Law of Treaties. commitments to which the parties have consented,
thus creating rights and obligations in international
law for the parties and validly constitute an
CHAPTER 3 – THE LAW OF TREATIES international agreement. When it was contended that
there was no intention to be bound by the Minutes, the
Treaties Court deemed it unnecessary to have to look into
- Treaties can assume various names. They can be intentions because of the signatures of the two
conventions, pacts, covenants, charters, protocols, ministers.
concordat, modus vivendi, etc.
- The generic term that is used is “International Unilateral Declarations
Agreements”.
- The law on treaties is found in the 1969 Vienna - In fact, even a unilateral declaration concerning legal
Convention on the Law of Treaties. It governs treaties or factual situations may create legal obligations. In
between states. the case of Nuclear Test Cases: Australia v.
- It entered into force in January 1980. France & New Zealand v. France (ICJ): These
cases were filed as a response to France being a
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signatory to the Nuclear Test Ban Treaty and yet expectations such as trade agreements of various
continued to conduct tests in the South Pacific until forms. They are sometimes called “contract treaties.”
1973. However, the cases were dismissed when
France, through a series of unilateral announcements, Parties in a Treaty
said that it would conduct no further tests.
Nonetheless, the court commented that unilateral - General rule: Only States may enter into treaties or
declarations have the effect of creating legal international agreements. Agreements between State
obligations when the commitments are a.) very and individuals or entities other than States DO NOT
specific and there is b.) a clear intent to be bound. come within the category of treaties.
- Exception: States may enter into treaties or
What Is Protocol De Cloture? international agreements with:
a) International Organization
- A final act, sometimes called protocol de cloture is an b) Belligerent States
instrument which records the winding up of the
proceedings of a diplomatic conference and usually Four Essentials Requirements for the Validity of a
includes a reproduction of the texts of treaties, Treaty
conventions, recommendations and other acts agreed
upon and signed by the plenipotentiaries attending the 1.) Capacity of parties: Every State possesses capacity
conference to conclude treaties as an attribute of its sovereignty.
Is Protocol De Cloture a Treaty? Exceptions: a) When it limits itself; or b) When it is

limited by some other international arrangements
- NO, it is not the treaty itself. It is rather a summary of respecting some matters.
the proceedings of a protracted conference which may 2.) Competence of particular organs concluding the
have taken place over several years. It will not require treaty: The municipal law of the State concerned shall
the concurrence. The documents contained therein are determine what organ may conclude a treaty. As a rule,
deemed adopted without need for ratification. it is the Head of State who possesses the treaty-making
power to be concurred in by the legislative branch.
Functions of a Treaties
Exceptions: a) When it is in estoppel b) When it has
- Treaties have many functions. They are sources of performed acts validating or curing the defects in
international law, they serve as the charter of competence. c) When it has received benefits or has
international orgnizations, they are used to transfer exercised its rights under the subject treaty without
territory, regulate commercial relations, settle expressly reserving its non-liability or without
disputes, protect human rights, guarantee investments interposing other valid reasons for receiving or
and etc. exercising it.
3.) Reality of Consent: The plenipotentiaries of States or
DIFFERENT KIND OF TREATIES the State itself must possess the capacity to consent
which consent is given in a manner that is voluntary
- Multilateral treaties – open to all states of the world. and free from fear, force, coercion, intimidation, or
They create norms which are the basis for a general corruption.
rule of law. They are either codification treaties or
“law making treaties” or they may have the character Exceptions: a) Ratification – waiving the right to
of both. withdraw from the treaty and declaring its consent
- Collaborative mechanism treaties – These can be of thereon as valid. b) Estoppel - exercising its rights and
universal scope (ex. Regulation of allocation of radio respecting the obligations in the treaty
frequencies) or regional (ex. Fishing agreements). notwithstanding knowledge of facts that vitiate its
They operate through the organs of different states. consent and exercises them without protest. c)
- Bilateral treaties – Many of these are in the nature of Prescription – filing of protest after the lapse of
contractual agreements which create shared allowable period within which the same may be
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entertained. Thus, the State is deemed to have ratified

its consent. 2.) Signature of the agreed text - The act of signature
has little legal significance except as a means of
Remedy: Where the consent of a party has been given authenticating the text of the treaty. It is the act of
in error or induced through fraud on the part of the ratification that is required to make a treaty binding.
other party, the treaty would be VOIDABLE. Thus,
the erring State must as soon as possible or within the Exceptions: a) the treaty provides that signature shall
time given in the treaty, withdraw or correct its have such effect; b) it is otherwise established that the
consent. negotiating States were agreed that signatures should
have that effect; or c) the intention of the State to give
Consent How Given a) through a signature b) that effect to the signature appears from the full
exchange of instruments c) ratification d) acceptance powers of its representative or was expressed during
Notes: PUBLIC INTERNATIONAL LAW 2008 64 e) the negotiations.
approval or accession; or f) by other means so agreed.
4.) Legality of Object: Immorality, illegality or 3.) Ratification - The act by which the provisions of a
impossibility of purpose or obligations makes a treaty treaty are formally confirmed and approved by a State.
null and void. e.g. a treaty by which a State agrees with By ratifying a treaty signed in its behalf, a State
another to appropriate a portion of the high seas. expresses its willingness to be bound by the provisions
of such treaty. State may ratify a treaty only when it is
Exceptions: a) If the immorality, illegality or a signatory to it. There is no moral duty on the part of
impossibility does not run counter to a universally the States to ratify a treaty notwithstanding that its
recognized peremptory norm of international law but plenipotentiaries have signed the same. This step,
only against a remote and minor norm. b) If it does not however, should not be taken lightly. A treaty may
contravene or depart from an absolute or imperative provide that it shall not be valid even ratified but shall
rule or prohibition of international law. e.g. jus be valid only after the exchange or deposit of
dispositivum. ratification has transpired.
Accession - When a State, who has NOT SIGNED a
Treaty-Making Process treaty, accedes to it. As a rule, a treaty is binding only
on the contracting parties, including not only the
1.) Negotiation of parties original signatories but also other states, which,
2.) Signature of the agreed text although they may not have participated in the
3.) Ratification or accession made by the treaty-making negotiation of the agreement, have been allowed by its
organs of States concerned. terms to sign it later by a process known as
4.) Exchange or deposit of the instruments of ratification accession. Non-parties are usually not bound under the
or accession. maxim of pacta tertiis nec noceat nec prosunt.
1.) Negotiation of parties - bilateral treaties, and Instances When a Third State Who is Non-
multilateral treaties among a small number, generally Signatory May be Bound by a Treaty.
originate from the foreign ministries. Negotiation is
done through foreign ministries. Larger multilateral 1.) When a treaty is a mere formal expression of
treaties are negotiated in diplomatic conferences customary international law, which, as such is
which are rune like a legislative body. enforceable on all civilized states because of their
membership in the family of nations.
Principle of Alternat - According to this principle, the order of 2.) Under Article 2 of its charter, the UN shall ensure
the naming of the parties, and of the signatures of the that non-member States act in accordance with the
plenipotentiaries is varied so that each party is named and its principles of the Charter so far as may be necessary for
plenipotentiary signs first in the coy of the instrument to be kept the maintenance of international peace and security.
by it. However, with respect to treaties with many parties, the Under Article 103, obligations of member-states shall
practice is usually to arrange the names alphabetically in prevail in case of conflict with any other international
English or in French.
10 | P a g e
agreement including those concluded with non- the ICJ held that a reserving State may be a party to a
members. treaty notwithstanding that one or more parties to the
3.) The treaty itself may expressly extend its benefits convention, but not all, objects to its reservations and
to non-signatory states. such reservations are not contrary to the object and
4.) Parties to apparently unrelated treaties may also be purpose of said convention
linked by the mostfavored nation clause.
Form: Reservation must be in writing and
What is Reservation? communicated to contracting States and other states
entitled to become parties.
A unilateral statement made by a State when signing,
ratifying or approving a treaty purporting to exclude or Express acceptance of a reservation by other states
modify the legal effect of certain provisions of a treaty does not require confirmation in itself.
in its application. They are different from statutes,
which apply to all, and from interpretative Withdrawal of a reservation or of an objection thereto
declarations, which are not derogations but are must be in writing.
expressions of how a state understands its adoption of
the treaty. Reservation in bilateral treaties is considered a
rejection of the treaty. Reservations, then, are only
RULES ON RESERVATION applicable to multilateral treaties.
Reservation is not allowed when prohibited by the
treaty, when the treaty provides for special The Philippines and the 1982 Law of the Sea: The
reservations, or when the reservation is incompatible Philippines made a reservation conditioning its
with the object and purpose of the treaty. acceptance of the 1982 Law of the Sea on the
Philippine claim in the 1987 Constitution on “internal
Reservations expressly authorized by treaty do not waters” between islands, irrespective of breadth.
need to be subsequently accepted unless provided by USSR filed a
the treaty itself. formal protest but FJB says that the reservation is
unnecessary because the new rule only applies to
Reservation requires acceptance by all the parties if waters not previously considered as internal waters.
the number of party States to the treaty are limited and Reservations in human rights treaties: No reservations
the acceptance of the can be made for Human Rights treaties.
treaty as a whole is essential to the purpose of the
treaty. Registration and Publication
If the treaty is integral for an international
organization, a reservation requires the acceptance of Article 102, UN Charter
the organization. 1.) Every treaty and every international agreement
Reservation is deemed to be accepted if others failed entered into by any Member of the UN after the
to raise any objections within one year after present Charter comes into force shall as soon as
notification of the reservation or after it expressed its possible be registered with the Secretariat and
consent to be bound, whichever is later. published by it.
Reservations may be withdrawn at any time and
consent of the other State is not required for its 2.) No party to any such treaty or international
withdrawal. Likewise, objections to reservations may agreement which has not been registered in
be withdrawn at any time. Withdrawal becomes accordance with the provisions of para.1 of this Article
operative in relation to another contracting State only may invoke that treaty or agreement before any organ
when notice has been received by other contracting of the UN. The treaty, however, remains valid
states. although not registered and not published in the UN.
Parties to the treaty may object to the reservations of a Entry Into Force
State entering the treaty. A 1951 Advisory Opinion of
11 | P a g e
Means the date of effectivity of a treaty as provided in operations while embarking/disembarking, the court
the stipulations of the parties. In the absence of such found that the injuries were a result of a usual and
stipulation, it is deemed in force as soon as the consent expected event (the dropping of air pressure), which
of ALL the parties are established. was not within the meaning of the word “accident” in
Article 17.
Application of Treaties
Invalidity of Treaties
1.) The first fundamental rule on treaties is pacta
sunt servanda, ensuring that every treaty in force Error of fact, fraud, corruption, duress
is binding upon the parties to it and must be
performed by them in good faith. (Article 26 of Error: Mistake in a factual antecedent essential to the
the Convention) State entering into the treaty in the first place; does not
apply if there was prior notice or the State head
2.) The second fundamental rule is that a party may contributed to the mistake.
not invoke the provisions of its internal law as
justification for its failure to perform a treaty. Fraud: Fraudulent behavior is involved in inducing
(Article 46 of the Convention) another to enter into a treaty with the State.
3.) The third is regarding the territorial scope of its Corruption: Consent is procured through either direct
applicability: Unless a different intention appears or indirect corruption of its representative.
from the treaty or is otherwise established, a treaty
or is otherwise established, a treaty is binding Duress: There is duress by procuring consent through
upon each party in respect of its entire territory. the coercion of another State’s representative or
(Article 29 of the Convention) acquiring another State’s consent through threat or use
of force in violation of the principles
Interpretation of Treaties of international law.
Jus cogens: A peremptory norm of international law
Article 31 combines various approaches to treaty from which no derogation is permitted; any treaty
interpretation: which violates jus cogens is deemed void.
Objective approach: interpretation according to the
ordinary meaning of the words. Loss of Right to Assert the Invalidity of a Treaty
Teleological approach: interpretation according to A state loses the right to protest a treaty’s validity
the telos or the purpose of the treaty. when, after knowing all of the facts, expressly agreed
to its validity or continues to keep it in force/in
Subjective approach: honors the special meaning operation.
given by the parties.
Municipal Law as Ground to Invalidate a Treaty
If there are ambiguities, supplementary sources may
be used; in case of conflicts, language that is agreed General rule: A state cannot use municipal law as a
upon by the parties shall prevail. ground to invalidate a treaty.
Air France v. Saks (US): WON an air carrier is liable Exception: If there is a manifest violation.
for a passenger’s injuries due to the dropping of air
pressure which occurred while the plane was in the A violation is manifest if it would be objectively
process of landing, causing the passenger to become evident to any State conducting itself in the matter in
deaf in one ear. Despite the Warsaw Convention accordance with normal practice and in good faith.
making the airline liable for injuries sustained by
passengers on the account of any accident occurring Example: A state representative is subject to a
onboard the aircraft or in the course of any of its restriction when concluding a treaty (a manifest
12 | P a g e
violation if he does not observe the restriction, unless with the effective execution of the objective of the
the other states were informed of his lack of capacity treaty.
and contracted with him anyway)
The modifying parties must also inform the other
Amendment of Treaties parties of their intent to modify as well as the
modification itself.
A formal revision done with the participation (at the
very least in its initial stage) by all the parties to the Termination of Treaty
treaty.
Termination according to—conclusion according to
A treaty may be amended by agreement of the parties. the terms, by consent, expiration of definite period,
The procedure to be followed is the same as achievement of purpose.
formation—it is much more difficult as to multilateral
treaties than bilateral treaties because it is difficult to Other modes:
obtain the consent of all the parties in multilateral
treaties. 1.) Material breach
2.) Impossible performance
Article 40: Applies for amendments which will affect 3.) Rebus Sic Stantibus
only some of the states but only after all parties have
been given the opportunity to consider the proposed Note: Change of government does not terminate a
amendments. treaty.
Notice of the proposal to amend must be given to all Material Breach

contracting parties, because they all have the right to:
a.) The treaty’s terms are breached.
the decision as to the action to be taken; b.) the
negotiation and conclusion of any agreement for the Bilateral: Innocent party may invoke the breach of the
amendment. other party as a ground to terminate or suspend the
operation, in whole or in part.
Every original contracting party-State is also entitled
to become a party to the amended treaty. Also, the Multilateral: Breach of the treaty entitles the other
amended treaty does not bind those who do not give parties (by unanimous agreement) to suspend the
their consent to it. A State that becomes a party to the operation of the treaty, in whole or in part, either
treaty after the amendment shall (unless it is expressed between themselves and the defaulting State or as
differently) be considered as a party to the treaty as between all of the parties, or to ask for the termination
amended and a party to the original treaty in relation of the treaty
to those who did consent to the amended treaty. A party specially affected by the breach may invoke it
as a ground for suspending the operation of the treaty,
Modification of Treaty or suspend the relations between itself and the
defaulting State.
Article 41: Allows for modification by two or more of Any other party may invoke breach as a ground to
the parties. suspend the operation of the treaty in whole or in part
with respect to itself if it is of such a character that a
Two or more parties in a multilateral treaty may material breach by one radically changes the position
modify the treaty as between themselves if the treaty of all the other parties with respect to further
provides that it may be modified or it does not prohibit performance.
modification. The lack of prohibition must also
indicate that it must not affect the enjoyment of rights Examples of breach: Unsanctioned repudiation of a
under the treaty by other parties, or it must not relate treaty, violation of a provision essential to the
to a provision, derogation from which is incompatible accomplishment of the purpose of the treaty.
13 | P a g e
case)—the changes must have increased the burden of

Note: The ground of material breach cannot apply to the obligations to be executed to the extent of
provisions relating to the protection of the human rendering performance something essentially different
person contained in humanitarian treaties. from the original intention.
Namibia Case (ICJ): The case is an advisory Fisheries Jurisdiction (ICJ):

opinion on the legal consequences of a breach of a The court ruled that the fundamental change
resolution sought by the Security Council after it had being pushed by Iceland (increased exploitation of
ruled that South Africa’s extended stay in Namibia fishery resources because of the increased catching
was illegal. Ruling: The ICJ held that the two forms of capacities of fishing fleets) cannot be said to have
material breach had occurred in this case transformed the
(unsanctioned repudiation and violation of a treaty extent of the jurisdictional obligation imposed in the
provision.) South Africa was under an obligation to agreement with the UK.
withdraw from Namibia, and other States were under \
no obligation to recognize any acts by South African Exceptions: Fundamental change in circumstances
administration from Namibia. cannot be invoked as a ground for termination or
withdrawal when the treaty
Impossibility Of Performance establishes a boundary, or if it is a result of a breach
by the party invoking it.
It has become impossible to fulfill the treaty because
of the disappearance or destruction of an object Procedure for Termination
indispensable for the execution of the treaty. If the
impossibility is temporary, it may only be cause to Party-State must notify other parties (in writing and
suspend. It cannot be invoked if the impossibility is a signed by one with full powers) of the ground or defect
result of a breach by the party claiming the ground. in the consent which would allow it to withdraw or
Danube Dam Case (ICJ): The court held that terminate the treaty. Notification must indicate the
Hungary could not claim impossibility of performance measure proposed and the reasons.
if they had a hand in the breach that caused the
impossibility (in this case, failure to carry out the If within a period of not less than three (3) months, no
works for which Hungary was responsible.) objections are raised, proposing State may carry out
Furthermore, the change in circumstance is not the measures proposed.
fundamental enough to radically transform the extent
of the obligations under the Treaty. In case of an objection, the parties concerned shall
seek a solution through the necessary means.
Rebus Sic Stantibus
If no solution is reached within 12 months, the dispute
There is a fundamental change in the circumstances, must be
unforeseen by the parties, from those at the conclusion submitted to:
of the treaty. • ICJ
• Arbitration, or
This may not be invoked as a ground for terminating a • Secretary General of the UN for procedure specified
treaty unless those circumstances were an essential in the Annex of the Convention
basis of the consent of the parties to be bound to the
treaty, and the effect of the change transforms the The proposal may be revoked any time before it takes
extent of obligations still to be performed under the effect.
treaty.
Authority to Terminate
Rebus sic stantibus may also be invoked to suspend a
treaty’s operations. However, the modern approach to Authority to terminate: Vienna Convention does not
its invocation is restrictive (Fisheries Jurisdiction enumerate those who have the capacity to terminate
14 | P a g e
treaties; however, it is logical that those with the

authority to enter into treaties also have the authority It will depend on whether the case goes to a domestic
to terminate them. court or to an international tribunal. It is an established principle
that, before an international tribunal, a state may not plead its
Succession to Treaties
own law as an excuse for failure to comply with international
In the case of a brand new state (one state ceases to law.
exist and is succeeded by another occupying the same
territory), the Vienna Convention on the Succession of Conflict between International Law and Domestic Law:
States with Respect to Treaties concluded that the Municipal Rule
“clean slate rule” is applied, and a newly independent
state is not bound to maintain treaties entered into by
Conflict may arise between a state’s Constitution and
the previous state. If they choose, however, they may
agree to be bound by the treaties of its predecessor. international law. However, there should be no conflict between
the Philippine Constitution or statutes on the one hand and
Exception: Treaties affecting boundary regimes. They customary international law on the other because the
are considered as attached to the territory, not to the Constitution when formulated accepted the general
State. principles of international law as part of the law of the land.
Problems can more likely arise between treaties and the
Treaties V. Executive Agreement
Constitution or statutes on the other.
Treaties are formal documents which require ratification Conflict between international agreement and the
by the Senate, while executive agreements become Philippine Constitution
binding through executive action without the need of a - The treaty would not be valid and operative as a
vote by the Senate or by Congress. domestic law.
- The Constitution, in Article VIII, Section 5, 2(a)
CHAPTER 4 - INTERNATIONAL LAW AND explicitly recognizes the power of the Supreme Court
to declare a treaty unconstitutional.
MUNICIPAL LAW - It doesn’t mean, however, that a treaty that has been
declared unconstitutional loses its character as
Two theoretical approaches to the relationship between international law.
International Law and municipal or national law - Under the “dualist” theory, which the Constitution
accepts, the unconstitutionality of a treaty is purely a
- Monism – the monist theory supposes that domestic matter.
International Law and national law are simply two
The “Fitzmaurice Compromise”
components of a single body of knowledge called
“law”. Law is seen as a single entity of which
- A radical view propounded by Sir Gerald Fitzmaurice
“national” and “international” versions are merely
- It assumes that since the two systems, international
particular manifestation.
and national law, do not operate in common field, they
- Dualism – the dualist theory considers International
can never come into conflict
Law and national law as independent of each other,
- Each of them is supreme in its own given domain,
and both systems are regarded mutually exclusive and
thereby any conflict in the domestic field is
independent. They exist “side by side” with different
automatically settled by the domestic law and any
spheres of action – the international plane and the
conflict in the international field would be resolved by
domestic plane.”
the International Law
Conflict between International Law and Domestic Law:
International Rule
15 | P a g e
- It is useless to discuss the supremacy of international b. Soft transformation theory – holds that ether a
law in the international field as it is supreme simply judicial or legislative act of a State can transform
because of the fact that it is the only law there is. International Law into a domestic law.
The Incorporation Theory Nature of the incorporation theory that is applied by the
1987 Constitution
- It is the dominant principle in the application of
Customary International Law based on a monistic - “restrictive and automatic” incorporation theory
approach - Restrictive, in the sense that only the generally
- This doctrine states that a specific rule of International accepted principles become part of the law of the land
law becomes part of the national law without the need - Automatic, in the sense that generally accepted
for express adoption. principles of International Law automatically become
- The domestic courts have to apply certain rule of part of the law of the land without need of an act of
International Law as long as there is no explicit Congress expressly adopting them or incorporating
contradicting piece of law or judgment them as part of domestic law
- Philippine law follows the Incorporation Theory as
shown in Article II, Section 2, of the 1987 Specific norms of International Law which have been
Constitution, which states that “the Philippines…. codified in the 1987 Constitution
Adopts the generally accepted principles if
International Law as part of the law of the land.” a. Article 1 of the Kellog-Briand Pact which renounced
war as an instrument of national policy has found its
The Transformation Theory way in Article II, Section 2 of the Constitution, which
says that “the Philippines renounces war as an
- It holds that rules of International Law do not become instrument of national policy…”
part of domestic or national law until they have been b. The Principle of Sovereign Immunity
expressly adopted by the State.
- It is applied through the treaty-making power of the The Supreme Court may review the constitutionality or
President. Through this power, rules and principles validity of a treaty, and of international or executive
embodied in a treaty in force would be transformed agreements
into PH law and shall become valid and effective upon
the concurrence of two-thirds of all the members of the - The SC is expressly given the power of judicial review
Senate. under the 1987 Constitution, which includes, among
- Philippine laws apply the Transformation theory but others, the power to review, revise, modify, or affirm
not in an exclusive manner. The Transformation on appeal on certiorari, as the law or the Rules of Court
Theory is not the only means by which a rule or may provide, final judgments and orders of lower
principle of International Law can form part of courts in all cases in which the constitutionality or
Philippine Law. It exists side by side with the validity of any treaty, international, or executive
Incorporation Clause under Article II, Section 2, of the agreement, is in question. (Art VIII, Sec. 5(2)(a)).
1987 Constitution.
Lower courts may review the constitutionality or validity of
Different types of Transformation Theory a treaty as well, and of international or executive
agreements
a. Hard transformation theory – it holds that only
legislation can transform International Law into - They are not prevented from resolving constitutional
domestic law. Courts may apply International Law questions whenever warranted, subject only to review
only where authorized by legislation. by the highest tribunal
16 | P a g e
- However, in the exercise of this jurisdiction, lower them (US v. Dorr, 2 Phil. 332.) In PIL, there is no required form
courts are advised to act with the utmost of government. For purposes of PIL, it is the national
circumspection, bearing in mind the consequences of government which has international personality and it is that
a declaration of unconstitutionality upon the country’s which is responsible for the actions of the agencies and
foreign relation. instrumentalities of the State. Temporary absence of
government does not terminate the existence of a state.
CHAPTER 5 - SUBJECTS OF
INTERNATIONAL LAW: STATES D. Capacity to enter into relations with other States
Independence from outside control. It is, according to the
Subjects vs. Objects of International Law Montevideo Convention, the capacity of the State to enter into
relations with other States. This, however, is dependent upon
Subjects of international law - entities endowed with rights recognition.
and obligations in the international order and possessing the
capacity to take certain kinds of action on the international Recognition of States
plane. In other words, they are those who have international
personality. They are actors in the international legal system Recognition means the act of acknowledging the capacity of an
and are distinct from objects of international law. entity to exercise rights belonging to statehood.
Objects of international law - those who indirectly have rights
under or are beneficiaries of international law through subjects Declaratory Theory - Recognition merely ‘declares’ the
of international law. existence of the state; statehood depends upon its possession of
the elements, not upon fact of recognition, and the recognizing
States: Commencement of their existence state merely accepts an already existing situation.
Elements of Statehood:
Constitutive Theory - Recognition ‘constitutes’ the state; there
A. Permanent Population is no state until it is recognized by another. The fact of
A community of persons sufficient in number, capable of recognition makes the state a state, and confers legal personality
maintaining permanent existence of the community and held on the entity. This theory emphasizes that states are under no
together by a common bond of law. There is no minimum obligation to enter into bilateral relations, but also allows those
population required, nor are they required to have racial, entities who do not have all the Montevideo Convention
cultural or economic similarities. elements of a state to be recognized as such.
B. Defined Territory Recognition of Government

An entity called a state must exercise sovereignty over a definite
territory; it may satisfy the territorial requirement for statehood Closely related to recognition of states is recognition of
even if its boundaries have not yet been settled with finality governments. It means the act of acknowledging the capacity of
because it does not cease to be a state even if all its territory is an entity to exercise powers of government of a state. If a
occupied by another power or if it has lost control of its territory change in government in an existing state comes about through
temporarily. ordinary constitutional procedure, recognition by others comes
as a matter of course.
C. Government
Institution by which an independent society makes and carries Consequences of Recognition or Non-recognition
out rules of action necessary to enable men to live in a social
state, or which are imposed upon people forming that society A government, once recognized, gains increased prestige and
by those who possess the power or authority of prescribing stability. The doors of funding agencies are opened, loans are
17 | P a g e
facilitated, access to foreign courts and immunity from suit are boundaries rule.” If X has a treaty with Y, and part of Y is
gained. Military and financial assistance also come within transferred to Z, X may seek relief from treaty obligation under
reach. The absence of formal recognition, on the other hand, “rebus sic stantibus.’’
bars an entity from all these benefits or, at least, access to them (2) When a state is absorbed by another state, the international
may be suspended. agreements of the absorbed state are terminated and the
Does admission of a government to the United Nations mean international agreements of the absorbing state become
recognition by all members? applicable to the territory of the absorbed state. Third states may
Ans.: No. The recognition is only to the extent of the activities appeal to rebus sic stantibus.
of the organization. (3) When a part of a state becomes a new state, the new state
does not succeed to the international agreements to which the
Succession of States predecessor state was party, unless, expressly or by implication,
it accepts such agreements and the other party or parties thereto
As to state property, subject to agreement between agree or acquiesce. This applies the “clean slate theory.”
predecessor and successor states, title passes as follows: (4) Pre-existing boundary and other territorial agreements
(a) where part of the territory of a state becomes territory of continue to be binding notwithstanding. This is the uti
another state, property of the predecessor state located in that possidetis rule.
territory passes to the successor state;
(b) where a state is absorbed by another state, property of the Fundamental Rights of States
absorbed state, wherever located, passes to the absorbing state;
(c) where part of a state becomes a separate state, property of 1. Independence - Capacity of a state to provide for its own
the predecessor state located in the territory of the new state well-being and development free from the domination of other
passes to the new state. states, provided it does not impair or violate their legitimate
With respect to public debts, subject again to agreement rights. From this flows the power of jurisdiction over territory
between the states concerned, responsibility for the public debt and permanent populations, the right to self-defense and the
of the predecessor, and rights and obligations under its right of legation
contracts, remain with the predecessor state, except as follows: 2. Equality - Equality of legal rights irrespective of size or
(a) where part of the territory of a state becomes territory of power of the State. In the UN, it is the doctrine behind the
another state, local public debt, and the rights and obligations principle of one state, one vote.
of the predecessor state under contracts relating to that territory, 3. Peaceful co-existence - Elaborated in the Five Principles of
are transferred to the successor state; CoExistence by India and China (1954) and includes mutual
(b) where a state is absorbed by another state, the public debt, respect for each other’s territorial integrity and sovereignty,
and rights and obligations under contracts of the absorbed state, mutual nonaggression, non-interference, and the principle of
past to the absorbing state; equality.
(c) where part of a state becomes a separate state, local public
debt, and rights and obligations of the predecessor state under Some Incomplete Subjects
contracts relating to the territory of the new state, pass to the
new state. 1. Protectorates - Dependent states which have control over
With respect to treaties (already touched on in the Chapter on their internal affairs but whose external affairs are controlled by
Treaties), the Vienna Convention is followed. The rules are: another state. They were sometimes referred to as autonomous
(1) When part of the territory of a state becomes territory of states, vassal states, semisovereign or dependent states.
another state, the international agreements of the predecessor 2. Federal States - This is a union of previously autonomous
state cease to have effect in respect of the territory and the entities. Various arrangements are possible. One arrangement
international agreements of the successor state come into force may involve placing full authority in a central organ while
there. This reflects the “moving treaty rule” or “moving another arrangement might lodge authority in the individual
18 | P a g e
entities to the detriment of the central organ. The central organ international business in which the member states have an
will have personality in international law; but the extent of interest. (ICMC v. Caleejo, 190 SCRA 130 [1990])
international personality of the component entities can be a
problem Principle of Speciality
3. Mandated and Trust Territories - Mandated territories
International organizations are governed by the
were territories placed by the League of Nations under one or “principle of specialty” in that they are invested by the
other of the victorious allies of World War I. The mandate States which create them with powers, the limits of which
system was replaced by the trusteeship system after World War are a function of the common interests whose promotion
II under the Trusteeship Council. For instance, the Carolines, those States entrust to them. Powers conferred on
Marianas and Marshall Islands were placed under the international organizations — normally the subject of an
trusteeship of the United States. These have been in the process express statement in their constituent instruments but in
order to achieve their objectives, they possess subsidiary
of evolution and self-determination since 1986.
powers which are not expressly provided for in the basic
instruments which govern their activities.
CHAPTER 6: OTHER SUBJECTS OF
INTERNATIONAL LAW Immunities
International Organizations - International organizations enjoy the immunities and

privileges of international persons.
- Refer to legal entities created by groups of states and
functioning under international law to achieve - Based on the need for the effective exercise of their
purposes defined in their constitutions. They are functions and not from sovereignty.
public or inter-governmental organizations, in contrast
to private or non-governmental organizations (NGOs). - Come from the conventional instrument creating them,
e.g. 1946 General Convention on the Privileges and
- While they can appear in a variety of forms, Immunities of the United Nations.
international organizations typically are:
a. Institutions established by a treaty – sometimes Supranationality
denominated as a “charter” – which serves as the
“constitution” of the organization; An international organization with supranational powers
b. Composed of members that are States or international is generally regarded as one that has the power to bind
organizations; its member states by its decisions. One key indicator of
c. Regulated by International Law; and supranationality is the authority of the organization to
d. Endowed with a legal personality, and thus generally can make its laws directly applicable and enforceable within
engage in contracts, and can sue and be sued in national the territory of the member states without further
courts subject to certain immunities (See Count execution by the national governments (Sarmiento,
Bernadotte Case, Advisory Opinion on Reparation for supra at 175).
Injuries Suffered in the Service of the United Nations,
1949 ICJ 174, April 11)
United Nations
Do International Organizations Have International
Legal Personality? Public organization of States that was established by the
intergovernmental cooperation after the end of the Second
Yes, under contemporary international law, World War. Established on October 24, 1945 by 51 countries
international organizations are endowed with some degree as an outcome of the initiatives taken by the United States, the
of international legal personality such that they are capable USSR, Great Britain, and China.
of exercising specific rights, duties and powers. They are
organized mainly as a means for conducting general
19 | P a g e
Principal Purposes of UN c. It must accept the obligations of the Charter

d. It must be able and willing to carry out these
a. Maintain international peace and security; obligations (UN Charter, Art. 4, par. 1)
b. Develop friendly relations among nations;
c. Achieve international cooperation; and Admission
d. Center for harmonizing actions of nations for attainment - Decision of 2/3 of those present and voting in the
of these common goals (UN Charter, Art. 1) general assembly upon the recommendation of at least
nine (including all the permanent) members of the
Fundamental Principles of UN Security Council
a. Principle of the sovereign equality of all its members; Suspension

b. Fulfillment of the obligations assumed by them in good - Effected by 2/3 of those present and voting in the
faith in accordance with the Charter; general assembly upon favorable recommendation of
c. Settlement of international disputes by peaceful means; at least nine members of the Security Council
d. Refrain in their international relations from the threat including the permanent members.
or use of force against the territorial integrity or - The suspension may be lifted alone by the Security
political independence of any state, or in any manner Council, also by a qualified majority vote.
inconsistent with the purposes of the UN; - Suspended members will prevent it from participating
e. Give the United Nations every assistance in any action in the meeting of the general assembly or from being
it takes in accordance with the Charter and to refrain elected to or continuing to serve in the Security
from giving assistance to any State against which the Council, the economic and social council of the
United Nations is taking preventive or enforcement trusteeship council. National of the suspended
action; members, may however, continue serving in the
f. The Organization shall ensure that states which are not Secretariat and the ICJ as they regarded as
members of the UN shall act in accordance with these international officials or civil servants acting for the
principles so far as may be necessary for the Organization itself.
maintenance of international peace and security;
g. Non-intervention in matters which are essentially Expulsion
within the domestic jurisdiction of any State (UN
Charter, Art. 2) 2/3 vote of those present and voting in the general
assembly, upon recommendation of a qualified
Membership majority of the security Council, on grounds of
persistently violating the principles contained in the
Kinds Charter.
a. Original – those states which, having participated in
the U.N conference on international organization at Withdrawal
San Francisco or having previously signed the
declaration by U.N of January 1, 1942, signed and No provision on withdrawal from membership was
ratifies the charter of the U.N. included in the Charter because of the fear that it
b. Elective – those subsequently admitted upon might encourage successive withdrawals that would
recommendation of the UN Security Council weaken the organization.
The distinction between the two is based only on the
manner of their admission and does not involve any A member might withdraw from the UN if:
difference in the enjoyment of rights or the discharge of a. The organization was revealed to be unable to
obligations. maintain peace or could do so only at the expense of
law and justice;
Qualifications b. The member’s right and obligations as such were
a. It must be a state changed by a charter amendment in which it had not
b. It must be peace-loving
20 | P a g e
concurred or which it finds itself unable to accept; A. General Assembly

and The central organ of the UN. The principal
c. An amendment duly accepted by the necessary deliberative body of the organization and is vested
majority either in the general assembly or in a with jurisdiction over matters concerning the internal
general conference is not ratified. machinery and operations of the UN.
Domestic Jurisdiction Clause Composition

As long as the matter remains internal, the same cannot - Consists of all the members of the UN. Each member
be the subject of intervention by the UN. The dispute is entitled to send no more than 5 delegates and 5
must be international in character, not domestic (UN alternates and as many technical and other personnel
Charter, Art. 2[7]) as it may need.
- The reason for this system of multiple delegates is to
Exceptions enable the members to attend several meetings that
a. Where internal conflict aggravates into a threat to or may be taking place at the same time in the different
an actual breach of international peace and security; organs or committees of the Organization.
and - However, each delegation is entitled only to one vote
b. Parties voluntarily invoke and submit to the in the decisions to be made by the GA.
jurisdiction of the UN for the settlement of their
dispute. Functions
a. Deliberative – initiating studies and making
UN Charter recommendations toward the progressive
development of international law and its codification
Technically a treaty which parties must respect under the and recommending measure for the peaceful
doctrine of pacta sunt servanda. It consists of 111 adjustment of any situation
articles besides the Preamble and concluding provisions. b. Supervisory – receiving and considering annual and
special reports from the other organs of the UN
Amendment c. Financial – the consideration and approval of the
a. 2/3 vote of the members of the General Assembly; budget of the organization, the apportionment of
and expenses among its members and the approval of
b. Ratified in accordance with their respective financial arrangements with specialized agencies.
constitutional processes by 2/3 of the members of the d. Elective – the election of non- permanent members
United Nations, including all permanent members of of the Security Council
the Security Council (UN Charter, Art. 108) e. Constituent – admission of the members and the
amendment of the Charter of the UN
International Constitutional Supremacy Clause
In the hierarchy of international organizations, the UN Rules on Voting

occupies a position of preeminence so if there is a a. Each member of the GA shall have one vote;
conflict with other international agreement, obligations b. However, a member which is in arrears in the
under the UN Charter shall prevail. payment of its financial contributions to the
Organizations shall have no vote if the amount of its
Principal Organs arrears is equal to or exceeds the amount of the
a. General Assembly contributions due from it for the preceding 2 full
b. Security Council years;
c. Economic and Social Council c. But, the GA may, permit such member to vote if it is
d. Trusteeship Council satisfied that failure to pay is due to conditions
e. International Court of Justice beyond the control of the member;
f. Secretariat d. Decisions on important questions shall be made by
2/3 majority of the members present and voting,
while decisions on other questions shall be made by
21 | P a g e
a majority of the members present and voting (UN - The presidency of the Security Council shall be held
Charter, Art. 18-19). in turn by the members of the Council in the English
alphabetical order of their names. Each President shall
Important Questions that Require 2/3 Majority Vote of hold office for one calendar month (Provisional Rules
the Members of the Security Council, Rule 18).
a. Recommendations with respect to the maintenance
of international peace and security; Functions and Powers
b. Election of non-permanent members of the Security a. To maintain international peace and security in
Council; accordance with the principles and purposes of the
c. Election of members of the Economic and Social UN;
Council; b. To investigate and dispute or situation which might
d. Election of members of the Trusteeship Council; lead to international friction;
e. Admission of new members to the UN; c. To recommend methods of adjusting such disputes
f. Suspension of the rights and privileges of or the terms of settlement;
membership; d. To formulate plans for the establishment of a system
g. Expulsion of members; to regulate armaments;
h. Questions relating to the operation of the trusteeship e. To determine the existence of a threat to the peace
system; and or act of aggression and to recommend what action
i. Budgetary questions (UN Charter, Art. 18[2]) should be taken;
f. To call on Members to apply economic sanctions
What is the legal status of the resolutions of the General and other measures not involving the use of force to
Assembly? prevent or stop aggression;
g. To take military action against an aggressor;
Resolutions of the General Assembly are considered h. To recommend the admission of new Members;
to be mere “recommendations” and not legally i. To exercise the trusteeship functions of the UN in
binding upon the members as a matter of Charter “strategic areas”; and
law. j. To recommend to the General Assembly the
appointment of the Security-General and, together
B. Security Council with the Assembly, to elect the Judges of the
International Court of Justice.
Principal organ of the UN primarily responsible for the
maintenance of international peace and security (UN Voting Procedures
Charter, Art. 24). Their responsibility makes the Yalta Voting Formula
Security Council a key influence in the direction of the - Each member of the Security Council has 1
affairs not only of the Organization but of the entire vote, but distinction is made between the
international community as well. permanent and the non-permanent members in
the decision of substantive questions.
- Procedural matters are to be decided by the
affirmative vote of any nine or more members.
Composition
- Non-procedural matters require the concurrence
- 5 Permanent Members
of also at least nine members, but including the
a. China
concurring votes of all permanent members.
b. United Kingdom
- No member, permanent or not, is allowed to
c. Russia
vote on question concerning the pacific
d. France
settlement of a dispute to which it is a party.
e. USA
Procedural and Substantive Matters Distinguished
- Non-permanent Members – a total of ten (10)
- Procedural matters include:
members elected by the General Assembly for a term
a. Questions relating to the organization and
of two years without eligibility for immediate
meetings of the Council;
reelection (UN Charter, Art. 23).
b. The establishment of subsidiary organs; and
22 | P a g e
c. The participation of states parties to a

dispute in the discussion of the Security
Council.
- Substantial matters include those that may Voting
require the Security Council under its
responsibility of maintaining or restoring world Each member has one vote and decisions are reached by
peace to invoke measures of enforcement. a majority of those present and voting.
Rule of Great Power Unanimity
Functions
- A negative vote by any permanent member on
a non-procedural matter, often referred to as a. Make or initiate studies and reports with respect to
“veto”, means rejection of the draft resolution or international economic, social, cultural, education,
proposal, even if it has received 9 affirmative health, and related matters and make
votes. recommendations with respect to any such matters
to the General Assembly, to the Members of the
Double Veto United Nations and to the specialized agencies
concerned;
- A permanent member can also exercise a double b. Make recommendations for the purpose of
veto by means of which it can disapprove any promoting respect for and observations for human
proposal to consider a question merely rights and fundamental freedoms for all;
procedural and thereafter vote against the c. Prepare draft conventions for submission to the
question itself on the merits. General Assembly with respect to matters falling
- Significantly, the abstention or absence of any within its competence; and
permanent member in connection with the voting d. Call, in accordance with the rules prescribed by the
of a non-procedural question is not considered a UN, international conferences on matters falling
veto and the proposal is deemed adopted if within its competence (UN Charter, Art. 62).
approved by at least nine (9) members of the
Security Council, including the rest of the D. Trusteeship Council
permanent members. - It is the organ that is responsible for administering
trusteeship territories that are not yet self-governing.
Note: The double veto is no longer in practice. - It suspended its operations on November 1, 1994, a
The president of the Council could rule that the month after the independence of Palau, the last
procedural or non-procedural question is itself remaining UN trust territory.
procedural and not subject to veto; presidential
rulings in this regard are final unless reversed by Composition
nine (9) votes, with no State having a veto power. - The Trusteeship Council shall consist of the following:
a. Members that are administering trust territories;
C. Economic and Social Council b. Permanent members of the Security Council; and
c. As many other members as the General
Serves as the central forum for discussing Assembly as may be necessary to ensure that the
international economic and social issues, and for total number of members of the Trusteeship
formulating policy recommendations addressed to Council is equally divided between those
Member States and the UN system. Members of the United Nations which administer
trust territories and those which do not.
Composition
Functions
Consists of 54 members elected by the General a. Consider reports submitted by the administering
Assembly for 3-year terms and may be re-elected authorities;
immediately.
23 | P a g e
b. Accept petitions and examine them in consultation

with the administering authorities;
c. Provide for periodic visits to trust territories at times
agreed upon with the administering authorities; and Jurisdiction on Contentious Cases
d. Take such other actions in conformity with the
terms of the questionnaire on the political, ICJ has jurisdiction on cases which the parties,
economic, social and educational advancement of whether party to the Statute or not, refer to it and all
the inhabitant of the trust territories. matters specially provided for in the UN Charter or
in treaties and conventions in force. The ICJ only has
E. International Court of Justice jurisdiction on contentious cases where only States
are parties thereto and their consent is needed.
The principal judicial organ of the UN and the Nothing in the UN Charter prevents UN Member
successor of the Permanent Court of International States from entrusting the solution of their
Justice of the League of Nations. It functions in differences to other tribunals by virtue of agreements
accordance with its Statute that is annexed to the already in existence or which may be concluded in
Charter of the United Nations, and which is based the future (UN Charter, Art. 95).
upon the Statute of the Permanent Court of
International Justice (UN Charter, Art. 92). Optional Jurisdiction Clause
Composition The States Parties to the Present Statute may at any

time declare that they recognize as compulsory ipso
- The court shall consist of 15 members, no two of facto and without special agreement in relation to
whom may be nationals of the same state. any other state accepting the same obligation, the
- The members shall be elected by absolute majority jurisdiction of the Court in all legal disputes
vote in both the General Assembly and the Security concerning:
Council voting simultaneously but separately. a. The interpretation of treaty;
- Members of the court have a term of 9 years and may b. Any question of international law;
be re-elected. c. The existence of fact, which, if established,
- The qualifications are as follows: would constitute a breach of international
a. Independent judges; obligation;
b. Elected regardless of their nationality; d. The nature or extent of the reparation to be made
c. Of high moral character; for the breach of an international obligation (ICJ
d. Possesses the qualifications required in their Statute, Art. 36[2]).
respective countries for appointment to their
highest judicial offices; or Ways by which States Give its Consent
e. Are juris consults of recognized competence in a. Consent Ante Hoc – through treaties and
international law. conventions whereby a State agreed to submit to the
- Once elected, a member of the Court may not act as jurisdiction of the ICJ as to all matters specially
agent, counsel, or advocate in any cases. provided for in treaties and conventions in force of
which it is a party (ICJ Statute, Art. 36[1]);
Function b. Consent Ante Hoc/Optional Jurisdiction Clause –
by accepting compulsory jurisdiction of the ICJ by
The primary function of the Court is to decide a declaration (Id. Art. 36 [2]);
international legal disputes submitted to it by States in c. Consent Ad Hoc – by special agreement or
accordance with International Law. In doing so, it is unilateral application whereby the States Parties to
helping to achieve one of the primary aims of the UN, a dispute jointly submit the case to the ICJ or where
which, according to the opening paragraph of Article the Applicant State has accepted the jurisdiction by
1 of the Charter, is to bring about the settlement of a separate act of consent by the other party; and
disputes by peaceful means and in conformity with the d. Consent Post Hoc/Forum Prorogatum/
principles of justice and International Law. Propagated/Extended Jurisdiction – the consent of
24 | P a g e
the Defendant State is given after the initiation of b. Perform such other functions as are entrusted to him
the proceedings. by the organs of the UN;
c. Make an annual report to the General Assembly on
Intervention the work of the Organization; and
d. Bring to the attention of the Security Council any
A state which is not party to a dispute may submit a matter which in his opinion may threaten the
request to intervene should it consider that it has an maintenance of international peace and security (UN
interest of legal nature which may be affected by the Charter, Arts. 98-99).
decision of the case, it shall be upon the ICJ to decide
upon this request (ICJ Statute, Art. 62). Rights and Responsibilities
a. When acting in his capacity, the Secretary-General
Advisory Proceedings is entitled to full diplomatic immunities and
privileges, which only the Security Council may
Open solely to the five organs of the UN and to the waive;
16 specialized agencies of the UN: b. The Secretary-General and members of his staff are
a. The General Assembly and Security Council International Officers solely responsible to the
may request advisory opinions on “any legal Organization, and are prohibited from seeking or
question”. Other UN organs and specialized receiving instructions from any government or
agencies which have been authorized to seek authority external to the UN; and
advisory opinions can only do so with respect to c. They shall refrain from any action which might
“legal questions arising within the scope of their reflect on their position as international officials
activities”; responsible only to the Organization (UN Charter,
b. It is of the essence of such opinions that they are Art. 100).
advisory unlike the Court’s judgments, they
have no binding effect;
c. The requesting organ, agency, or organization Other Agencies
remains free to give effect to the opinion, or not
to do so;
a. United Nations Educational, Scientific and Cultural
d. However, certain instruments and regulations
Organizations (UNESCO);
can provide beforehand that an advisory opinion
b. International Civil Aviation Organization (ICAO);
by the Court shall have a binding force (ICJ
c. World Health Organization (WHO);
Statute, Arts. 65-68). d. Food and Agricultural Organization (FAO);
e. World Bank; and
F. Secretariat f. International Monetary Fund (IMF)
Chief administrative organ of the UN.
Composition Asean
- Composed of the Secretary-General and such staff as
the Organization may require.
- The Secretary-General is appointed by the General The Association of Southeast Asian Nations or ASEAN is
Assembly upon the recommendation of the Security considered as the regional organization of the South East
Council and has a fixed term of 5 years subject to re- Asian nations. It was established on August 8, 1967 in
election. Bangkok by the five (5) original Member Countries,
namely, Indonesia, Malaysia, Philippines, Singapore, and
Thailand. Brunei Darussalam joined in 1984, Vietnam in
Functions
1995, Lao PDR and Myanmar in 1997, and Cambodia in
a. Act as chief administrative officer in all meetings of
1999.
the General Assembly, Security Council, Economic
and Social Council, and Trusteeship Council;
25 | P a g e
It was created pursuant to the Bangkok Declaration, which and welfare of the people are enhanced (Association of
sought to push for a joint effort to promote economic Southeast Asian Nations Overview, June 2013).
cooperation and the welfare of the people in the region.
Primary Objectives European Union
The ASEAN Declaration states that the aims and

Aims at establishing a single unified market with common
purposes of the Association are:
external tariffs and the elimination of tariffs and quotas, and
a. to accelerate economic growth, social progress and
it promotes free movement of capital and labor. It currently
cultural development in the region; and
has 28 member countries with Croatia acceding on July 1,
b. to promote regional peace and stability through
2013.
abiding respect for justice and the rule of law in the
relationship among countries in the region and
adherence to the principles of the UN Charter. Membership
a. Candidates must meet key criteria for accession
(Copenhagen criteria):
Fundamental Principles
1. free-market economy;
2. stable democracy and rule of law; and
The ASEAN Member Countries have adopted the
3. acceptance of all EU legislation including the euro;
following fundamental principles in their relations with
b. Submission of membership application to the council;
one another, as contained in the Treaty of Amity and
c. Assessment of the applicant ability to meet the
Cooperation in Southeast Asia (TAC):
Copenhagen criteria;
a. Mutual respect for the independence, sovereignty,
d. If the Commission’s opinion is positive, the council
equality, territorial integrity, and national identity of
must then agree upon a negotiating mandate;
all nations;
e. Throughout the negotiations, the Commission monitors
b. The right of every State to lead its national existence
the candidate’s progress; and
free from external interference, subversion or
f. Once negotiations are done, Treaty of Accession is
coercion;
drafted to be signed by all member states, EU
c. Non-interference in the internal affairs of one
institutions, and the candidate country (European
another;
Union).
d. Settlement of differences or disputes by peaceful
manner;
e. Renunciation of the threat or the use of force; and Three Pillars
f. Effective cooperation among themselves. a. European Communities;
b. Common Foreign and Security Policy; and
c. Police and Judicial Cooperation in Criminal Matters
Three Pillars of ASEAN
a. ASEAN Political-Security Community – aims to Institutions

ensure that countries in the region live at peace with one a. European Council and Council of Ministers – voice of
another and with the world in a just, democratic, and the Member States; decides EU laws and budget
harmonious environment; together with Parliament; manages the common foreign
b. ASEAN Economic Community – Seeks to establish a and security policy;
highly integrated and cohesive economy, a competitive, b. EU Commission – executive organ which proposes new
and innovative, and dynamic ASEAN, enhanced legislation, represents EU on the international stage and
connectivity and sectoral cooperation, a resilient, serves as the guardian of the treaties; and
inclusive and people-oriented, people-centered c. European Parliament – decides EU law and budget
ASEAN, and a global ASEAN; and together with the Council of Ministers; supervises all
c. ASEAN Socio-Cultural Community – seeks to forge a EU’s work democratically.
common identity and build a caring and sharing society
which is inclusive and where the well-being, livelihood,
26 | P a g e
Economic and Monetary Union (the Euro) individuals, companies or organizations to take action
against an EU institution, if they feel it has somehow
▪ It is the single currency of the European Union. Through infringed their rights.
its use, there is no fluctuation risk and foreign exchange
cost, there are more choices and stable prices for Bodies of the Court of Justice
consumers, and there is a closer economic cooperation a. Court of Justice – deals with requests for preliminary
between EU countries. rulings from national courts, certain actions for
annulment and appeals;
Acquis communautaire b. General Court – rules for actions on annulment brought
by individuals, companies, and in some cases, EU
Refers to what the European Community/Union has governments; and
achieved and built upon. An applicant for membership, c. Civil Service Tribunal – rules on disputes between the
therefore, has to accept the acquis, subject only to those EU and its staff.
detailed modifications that are acceptable to the existing
members and included in the accession treaty.
Insurgents
Charter of Fundamental Rights of the Union
Protocol II
Brings together in a single document the fundamental
The first and only international agreement exclusively
rights protected in the EU. The Charter contains rights
regulating the conduct of parties in an non-international
and freedoms under six titles:
armed conflict is the 1977 Protocol II to the 1949
a. Dignity;
Geneva Conventions.
b. Freedoms;
Non-international Armed Conflict
c. Equality;
Armed conflicts which take place in the territory of
d. Solidarity;
a High Contracting Party between its armed forces or
e. Citizens’ Rights; and
other organized armed groups which, under
f. Justice (European Commission)
responsible command, exercise such control over a
part of its territory as to enable them to carry out
Opt-outs sustained and concerted military operations and to
These are means of ensuring that when a given country implement this Protocol.
does not wish to join the others in a particular field of
EU policy, it can opt out, thus avoiding an overall
Requirements for Material Field of Application
stalemate (EUR-Lex, Summaries of EU Legislation).
a. Armed dissidents must be under responsible
Examples:
command; and
a. Shengen Agreement – Ireland and the United
Kingdom; b. They must exercise such control over a part of its
b. Economic and Monetary Union – Denmark and the territory as to enable them to carry out sustained and
United Kingdom; converted military operations and to implement this
c. Defense – Denmark; Protocol.
d. EU Charter of Fundamental Rights – Poland and the
United Kingdom; and Insurgent groups which satisfy the material field of
e. Area of Freedom, Security, and Justice – Denmark, application of Protocol II may be regarded as “para-
Ireland, and the United Kingdom statal entities possessing definite if limited form of
international personality.” They are recognized as
Court of Justice of the EU having belligerent status against the de jure government,
and seen as having treaty making capacity.
Interprets EU law to make sure it is applied in the same
way in all EU countries, and settles illegal disputes Common Article 3
between national governments and EU institutions. It - Each of the four Geneva Conventions contains a
can also, in certain circumstances, be used by common Article 3, which states that in case of non-
27 | P a g e
international armed conflict, contracting parties are d. They must have an organization capable of coming
required to treat humanely persons who do not partake into contract with other international organizations.
of the hostilities at all times, without any adverse
distinction as to race, class, etc. Individuals
- Acts of violence to life and person (mutilation, cruel With the greater global awareness of human rights,
treatment, torture), hostage-taking, outrages upon individuals have now come to be recognized as possessing
personal dignity, carrying out of sentences and albeit limited rights and obligations in international law.
executions without those judicial guarantees
recognized as indispensable by civilized peoples, with The availability of a forum in which an individual can
respect to the persons previously mentioned, shall be pursue claims or be prosecuted for violation of international
prohibited at all times.
responsibilities depends upon:
a. The willingness of states to agree to subject themselves
- The wounded and sick shall be cared for, and an to such suits to allow such prosecutions to go forward
impartial humanitarian body like the Red Cross may in their national courts; and
offer its services. b. The willingness of the international community to
establish and support international or quasi-
- The application of Common Article 3 does not make international tribunals for the adjudication of violations
the conflict an international one and therefore does not of state or individual responsibilities.
preclude the possibility that any participant in the
conflict may be prosecuted for treason. What this Examples of International Agreements or Covenants that
means is that, although rebels have the protection of Authorize Individuals to File Suits Against a State:
Common Article 3, they do not thereby gain the status a. Article 297 Treaty of Versailles – authorizes nationals
of subjects of international law unless they satisfy the of Allied and Associated Powers to bring actions
“material field of application” of Protocol II. against Germany before mixed arbitral tribunals;
b. Article 5 of the 1922 Germano-Polish Convention
Concerning Upper Silesia;
National Liberation Movements c. Article 8 of UDHR – for violation of fundamental rights
granted by constitution or by law; and
Refer to organized groups fighting in behalf of a whole d. Article 2 of the International Covenant on Civil and
people for freedom from colonial powers. Political Rights – ensures that any person whose rights
or freedoms are violated shall have effective remedy
and have his right determined by competent authorities.
They are peoples fighting against colonial domination and
alien occupation and against racist regimes in the exercise
of their right of self-determination, as enshrined in the CHAPTER 7 - TERRITORY: LAND, AIR,
Charter of the United Nations (First Protocol of the 1977 OUTER SPACE
Geneva Convention).
TERRITORY
Characteristics - An area over which a state has effective control.
- Control over territory is the essence of a State.
a. They can be based within the territory which they are - Exact boundaries might be uncertain but there should
seeking to liberate or they might find a base in a be a definitive core over which sovereignty is
friendly country; exercised.
b. Their goal is self-determination—to free themselves
from colonial domination, or a racist regime or foreign Modes of Acquisition of Sovereignty Over Territory
occupation; 1. Discovery and Occupation
c. There is the ultimate goal of controlling a definite A. Occupation
territory; and - The acquisition of terra nullius, that is
territory which prior to occupation belonged
28 | P a g e
to no state or which may have been states from a region and the duty to display
abandoned by a prior occupant. therein the activities of a State.
• There is abandonment when the
occupant leaves the territory with the
intention of not returning. 2. Prescription
- Requires effective control
WESTERN SAHARA CASE - The object is not terra nullius
- The required length of effective control is
- The State practice of the relevant period longer that in occupation.
indicates that territories inhabited by tribes or 3. Cession
peoples having a social and political - Acquisition of territory through a treaty.
organization were not regarded as terra - However, a treaty imposed by a conqueror is
nullius. In the case of such territories the invalid.
cquisition of sovereignty was not generally - There may be a situation where what prevails
effected through occupation but of terra is merely a de facto regime.
nullius by original title but through
agreements concluded with local rulers. 4. Conquest
- The word occupation was used in a non- - Taking possession of a territory through
technical sense denoting simply acquisition armed force.
of sovereignty: but did not signify that the - It was necessary that war had ended either by
acquisition of sovereignty through such treaty or by indication that all resistance had
agreements with the authorities of the been abandoned.
country was regarded as an occupation “terra - The conqueror must have had the intention of
nullius”. acquiring the territory and not just occupying
- Such agreements with local rulers wether or temporarily.
not considered as an actual “cession” of the
territory were regarded as derivative roots of NOTE: Conquest as a mode of acquisition is now
title, and not original titles obtained by proscribed by international law.
occupation of terra nullius. - 1970 declaration of Principles of
International Law Concerning Friendly
LLAS PALMAS CASE Relations and Cooperation among States:
“the territory of a State shall not be the object
- Continuous and peaceful display of territorial of acquisition by another State resulting from
sovereignty (peaceful in relation to other the use or threat of force. No territorial
States) is as good as title. acquisition resulting from the use of threat or
- Discovery alone without any subsequent act force shall be recognized as legal”
cannot suffice to prove sovereignty over
Island of Las Palmas 5. Accretion and Avulsion
- The principle of contiguity in regard to - Sovereignty by operation of nature.
islands may not be out of place when it is a
question allotting them to one State rather ACCRETION AVULSION
than another, either by agreement between Gradual increase of Sudden change
the parties or by a decision not necessarily territory by action of resulting for instance
based on law; but as a rule establishing the nature. from the action of
presumption of sovereignty in favor of a volcano.
particular state, this principle would be in
conflict with that has been said as to - Contiguity is not a basis for sovereignty:
territorial sovereignty and as to necessary (The Las Palmas Case)
relation between the right to exclude other It is impossible to show a rule of
positive international law to the
29 | P a g e
effect that island situated outside the for the safety of navigation of civil
territorial waters should belong to a aircraft.
state from the fact that its territory
forms part of the terra firma. - Flight over territory is classified
a. Non-scheduled flights
NOTE: rules in effect at the time of acquisition should be - Each contracting State agrees that all
applied. aircraft scheduled flight of the other
contracting States, being aircraft not
Territory Includes: engaged in scheduled international air
a. Land services shall have the right, subject to the
b. Maritime Areas observance of the terms of this Convention,
c. Airspace to make flights into or in transit non-stop
d. Outer space. across its territory and to make stops for
non-traffic purposes without the necessity of
I- LAND obtaining prior permission, and subject to
II- MARITIME AREAS the right of the State flown over to require
III- AIRSPACE landing. Each contracting State nevertheless
- Each State has exclusive jurisdiction over reserves the right, for reasons of safety of
the airspace above its territory. flight, to require aircraft desiring to proceed
- Consent for transit must be obtained from over regions which are inaccessible or
the subjacent nation. without adequate air navigation facilities to
- Present regime on air navigation: follow prescribe routes, or to obtain special
Chicago Convention on permission for such flights.
International Civil Aviation (1944)
which entered into force in 1974. Such aircraft, if engaged in the carriage of
It created the International Civil passengers, cargo, or mail for remuneration
Aviation Organization (ICAO) – An or hire on other than scheduled international
agency of the UN and prescribed the air services, shall also, subject to the
rules for international civil aviation. provisions of Article 7, have the privilege of
taking on or discharging passengers, cargo,
- Article 3 of the Convention – Civil and State or mail, subject to the right of any State where
aircraft such embarkation or discharge takes place to
impose such regulations, conditions or
(a) This Convention shall be applicable limitations as it may consider desirable.
only to civil aircraft, and shall not be (Article 5 of Chicago Convention)
applicable to state aircraft.
b. Scheduled flights
(b) Aircraft used in military, customs and - No scheduled international air service may
police services shall be deemed to be be air services operated over or into the
state aircraft. territory of a contracting State, except with
(c) No state aircraft of a contracting State the special permission or other authorization
shall fly over the territory of another of that State, and in accordance with the
State or land thereon without terms of such permission or authorization.
authorization by special agreement or (Article 6 of Chicago Convention)
otherwise, and in accordance with the
terms thereof. Cabotage:
(d) The contracting States undertake when Each contracting State shall have the right to
issuing regulations for their state refuse permission to the aircraft of other
aircraft, that they will have due regard contracting States to take on in its territory
30 | P a g e
passengers, mail and cargo carried for Nationality of Aircrafts

remuneration or hire and destined for another
point within its territory. Each contracting Aircrafts have the nationality of the State in which
State undertakes not to enter into any they are registered and they shall bear its appropriate nationality
arrangement s which specifically grant any and registration marks when they engage in international air
such privilege on an exclusive basis to my navigation (Chicago Convention, Art 17 and 20)
other State or an airline of any other State,
and not to obtain any such exclusive privilege Aircraft cannot be validly registered in more than one
from any other State. (Article 7 of Chicago State, but its registration may be changed from one State to
Convention) another.
Flexible rule with respect to state or military aircraft State’s Jurisdiction Over Offenses Committed Aboard the
according to Lissitzyn. Aircraft
- In its effort to control the movements of
intruding aircraft the territorial sovereignty General: it is the flag State or the State where the aircraft is
must not expose the aircraft and its registered that has jurisdiction over the offenses committed on
occupants to unnecessary and unreasonably board an aircraft.
greater danger – that is, in relation to the
apprehended harmfulness of the intrusion. Exception: offenses committed aboard while the aircraft was
- This implies that the sate aircraft must not flying over the airspace of another State, then the latter State
only not be attacked, unless there is reason may assert jurisdiction over based on the principle of
to suspect that the aircraft is a real threat but territoriality or sometimes based on the nationality principles
also that a warning to land or change course and universality.
must be given before it is attacked.
HIJACKING
As to civilian aircraft:
- There are those who hold that civilian - Committed by any person who on board an
aircraft should never be attacked. aircraft in flight shall unlawfully by force or
threat thereof, or by any other form of
Five Air Freedoms: according to International Air Transport intimidation, seizes or exercises control of
Agreement that aircraft, or attempts to perform any such
1. Overflight – the privilege to fly across its territory act. (1970 Hague Convention, Art. 1)
without landing
2. Non-traffic landing – the privilege to land for non- SABOTAGE
traffic purposes
3. Putting down traffic – the privilege to put down - Covers other acts that place the safety of an
passengers, mail and cargo taken on in the territory of aircraft in jeopardy.
the State whose nationality the aircraft possesses - It is committed by any person who
4. Picking up traffic – the privilege to take on unlawfully and intentionally commits any of
passengers, mail and cargo for the territory of the State the following acts which render an aircraft
whose nationality the aircraft possesses incapable of flight or are likely to endanger
5. International traffic – the privilege to take on the safety of an aircraft in flight:
passengers, mail and cargo destined for the territory of
any other Contracting State and the privilege to put a. Performing an act of violence against a
down passengers, mail and cargo from any such person on board an aircraft in flight
territory. b. Destroying an aircraft in service or causing
damage to such an aircraft
c. Placing or causing to be placed on an aircraft
in service a device or substance which is
likely to destroy that aircraft
31 | P a g e
d. Destroying or damaging air navigation Hijacking is a universal crime, it is not against a

facilities or interfering with their operation particular State but against all mankind.
e. Communicating information which he
knows to be false thereby endangering the IV- Outer Space
safety of an aircraft in flight. (Montreal
Convention, Art 1) - Sovereignty over space extends depending
on the technological capabilities of
Aircraft is considered to be in flight at any time from conventional aircraft to reach greater
the moment when all its external doors are closed heights.
following embarkation until the moment when any - Different numbers ranging from fifty to one
such door is opened for disembarkation. hundred miles from the earth have been
mentioned.
In case of forced landing, the flight shall be deemed to - Outer space wherever that might be and
continue until the competent authorities take over the celestial bodies are not susceptible to
responsibility for the aircraft and for persons and appropriation by any state. (1967 Treaty on
property on board. (1970 Hague Convention, Art. 3; the Exploration and Use of Outer Space)
Montreal Convention, Art. 2)
Jurisdiction Over Astronauts While in Outer Space
Duty of The States Over the Crimes of Hijacking and
Sabotage - A state whose registry an object launched
into outer space is carried shall retain
- Duty to prosecute or extradite (aut dedere jurisdiction and control over such object,
aut judicare) in the following case: and over any personnel thereof, while in
outer space or on a celestial body.
a. When the offense is committed on board an aircraft - Ownership of objects launched into outer
registered in that State space, including objects landed or
b. When the aircraft on board which the offense is constructed on a celestial body and of their
committed lands in its territory with the alleged component parts, is not affected by their
offender still on board presence in outer space or on a celestial
c. When the alleged offender is present in its territory body or by their return to the Earth.
However, if the State do not wish to prosecute the alleged No states may claim sovereignty over the outer space
offender then it has the duty to extradite him to other States including the moon and other celestial bodies.
parties to convention. States may explore and use the outer space provided
that it shall be carried out for the benefit and in the
Hijacking and sabotage shall be deemed included as interests of all countries.
extradite offenses in any extradition treaty existing
between contracting states. Moon and other celestial bodies shall be used
exclusively for peaceful purposes. The following
Jursdiction Over the Offenses of Hijacking and Sabotage military applications are prohibited:
a. Placing in orbit around the earth any objects carrying
- They are universal crimes nuclear weapons or any other kinds of weapons of
- The contracting State in the territory of mass destruction
which the alleged offender is found shall, if b. Installing nuclear weapons or any other kinds of
it does not extradite him, be obliged without weapons of mass destruction in outer space in any
exception whatsoever and wether or not the other manner
offense was committed in its territory to c. Establishment of military bases, installations and
submit the case to its competent authorities fortifications, the testing of any type of weapons and
for the purpose of prosecution. the conduct of military maneuvers on celestial bodies.
(Article 4 of the Outer Space Treaty)
32 | P a g e
a State’s sovereignty over waters:

Rules on Liability for Damage Caused by Space Objects
Under the Liability Convention Article 2. Legal Status of the extent of the territorial sea, of the
air space over the territorial sea and of its bed and subsoil.
A. Absolute – a launching state shall be absolutely liable
1. The sovereignty of a coastal State extends,
to pay compensation for damage caused by its space
object on the surface of the earth or to aircraft in flight beyond its land territory and internal waters and,
(Article 2 of Liability Convention) in the case of an archipelagic State, its
B. Fault-based – in the event of damage being caused archipelagic waters, to an adjacent belt of a sea,
elsewhere than on the surface of the earth to a space described as the territorial sea.
object of one launching State or to persons or property
on board such a space object by a space object of 2. This sovereignty extends to the air space over the
another launching State, the latter shall be liable only territorial sea as well as to its bed and subsoil
if the damage is due to the fault or the fault of persons
for whom it is responsible (Art. 3) 3. The Sovereignty over the territorial sea is
C. Joint and several – whenever two or more States
exercised subject to this Convention and to other
jointly launch a Space object, they shall be jointly and
severally liable for any damage caused. A State from rules of international law.
whose territory or facility space object us launched
shall be regarded as a participant in joint launching
(Art. 4)h
CHAPTER 8 - TERRITORY: LAW OF THE

SEA
The United Nations Convention on the Law of the Sea adopts

the 1958 conventions composed of 4 treaties which are:
1. The Convention on the Territorial Se and Contiguous
Zone
2. The Convention on the High Seas
3. The Convention on Fishing and Conservation of the
Baseline
Living Resources of the High Seas
4. The Convention on the Continental Shelf
It is “the low-water line along the coast as marked on large scale
Article 2 of the 1982 United Nations Convention on the Law of charts officially recognized by the coastal State” (SECTION 5,
the Sea (UNCLOS) set down the extent of UNCLOS). The width of the territorial sea is measured from the
baseline.
Two ways of drawing the baseline
1. Normal baseline – drawn following the “low-water

line along the coast as marked on large-scale charts
officially recognized by the coastal State” (ARTICLE
5, UNCLOS)
2. Straight baseline – drawn connecting selected points
on the coast without appreciable departure from the
general shape of the coast.
33 | P a g e
- An archipelagic State may designate sea lanes and air

Note: Archipelagic States, however instead of drawing “normal routes thereabove, suitable for the continuous and
baselines” have drawn “straight baselines.” expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the
In Anglo-Norwegian Fisheries Case (1951), this case was adjacent territorial sea. (ARTICLE 53, UNCLOS)
brought before the Court by the United Kingdom of Great
Britain and Northern Ireland against Norway. In 1935, Norway Archipelagic Theory
enacted a decree in which it deimited the zone in which the
fisheries were reserved to its own nationals. The issue raised - The Archipelagic Theory considers a group of islands
was whether the methods for drawing baselines laid down in the which are so closely interrelated and their
decree was valid considering the itricacies of the Norweigian interconnecting waters as one geographical unit. The
theory allows an archipelagic State to draw straight
coastal zone. In the Judgement rendered by the Court, it was
archipelagic baselines joining the outermost points of
found that neither the method nor the actual baselines stipulated
the outermost islands and drying reefs of the
by the 1935 Decree were contrary to international law (ANGLO
archipelago. The waters enclosed by the archipelagic
NORWEGIAN FISHERIES CASE, UK VS. NORWAY, 1951). baselines shall become archipelagic waters regardless
The decision in the Fisheries Case upholding the “straight of their depth or distance from the coast, and within
baseline method” eventually became part of convention law: these archipelagic waters, the archipelagic State may
draw closing lines for the delimitation of its internal
Article 7. Straight Baseline
waters. (SARMIENTO, PUBLIC INTERNATIONAL
1. In localities where the coastline is deeply intended LAW REVIEWER)
and cut into, or of there is a fringe of islands along the
coast in its immediate vicinity, the method of straight Article 47 of the UNCLOS allows the use of the “straight
baselines joining appropriate points may be employed
baseline method” for archipelagic states with certain
in drawing the baseline from which the breadth of the
limitation.
territorial sea is measured.
Article 47. Archipelagic Baselines
1. An archipelagic State may draw straight archipelagic
In the Philippines, R.A. No. 3046 and R.A. No. 5446 have baselines joining the outermost points of the outermost islands
drawn “straight baselines” around the Philippines
Archipelago and drying reefs of the archipelago provided that within such
baselines are included the main islands and an area in which the
Archipelago ratio of the area of the water o the area of the land, including
atolls, is between 1 to 1 and 9 to 1.
Group of islands, including parts of islands, 2. The length of such baselines shall not exceed 100 nautical
interconnecting waters and other natural features miles, except that up to 3 percent of the total number of
which are so closely interrelated that such islands, baselines enclosing any archipelago may exceed that length, up
waters and waters and other natural features from an to a maximum length of 125 nautical miles.
intrinsic geographical, economic and political entity, 3. The drawing of such baselines shall not depart to any
or which historically have been regarded as such. appreciable extent from the general configuration of the
(ARTICLE 46, UNCLOS)
archipelago.
4. Such baselines shall not be drawn to and from low-tide
Archipelagic State
elevations, unless lighthouses or similar installations which are
- State constituted wholly by one or more archipelagos
permanently above sea level have been built on them or where
and may include other islands. (ARTICLE 46,
a low-tide elevation is situated wholly or partially at a distance
UNCLOS)
not exceeding the breadth of the territorial sea of another State.
34 | P a g e
5. The system of such baselines shall not be applied to an 1. If a river flows directly into the sea - the baseline shall
archipelagic State in such a manner as to cut-off from the high be a straight line across the mouth of the river between
seas or the exclusive economic zone the territorial sea of points on the low-water line of its banks. (ARTICLE 9,
another State. UNCLOS)
6. If a part of the archipelagic waters of an archipelagic States 2. Bays – If the a distance between the low-water marks
lies in between two parts of an immediately adjacent of the natural entrance points of a bay does not exceed
neighboring State, existing rights and all other legitimate 24 nautical miles, a straight baseline may be drawn
between them, and the waters enclosed thereby shall
interests which the latter State has traditionally exercised in
be considered as internal waters; otherwise a straight
such waters and all rights stipulated by agreement between
baseline of 24 nautical miles shall be drawn within the
those States shall continue and be respected.
bay in such a manner as to enclose the maximum area
7. For the purpose of computing the ration of water to land of water that is possible with a line of that length.
under paragraph 1, land areas may include waters lying within (ARTICLE 10, UNCLOS)
the fringing reefs of islands and atolls, including that part of a 3. Historic Bays – a straight baseline is drawn between
steep-sided oceanic plateau which is enclosed or nearly appropriate marks of its natural entrance, regardless of
enclosed by chain of limestone islands and drying reefs lying distance.
on the perimeter of the plateau. 4. Ports - the outermost permanent harbor works which
form an integral part of the harbor system are regarded
8. The baseline drawn in accordance with this article shall be as forming part of the coast; however, off-shore
shown on charts of a scale or scales adequate for ascertaining installations and artificial islands shall not be
their position. Alternatively, lists of geographical co-ordinates considered as permanent harbor works. (ARTICLE 12,
of points, specifying the geodetic datum, may be substituted. UNCLOS)
9. The archipelagic Sate shall give due publicity to such chart 5. Low-tide elevation – the low-water line on that
or lists of geographical co-ordinates shall deposit a copy of each elevation may be used as the baseline for measuring
the breadth of the territorial sea. (ARTICLE 13,
such chart or list with the Secretary-General of the United
UNCLOS).
Nations.
6. Archipelagic States - may draw straight archipelagic
baselines joining the outermost points of the outermost
Limitations on the use of the straight baseline method
islands and drying reefs of the archipelago.
(ARTICLE 47, UNCLOS)
The baseline must not depart to any appreciable extent from the
general direction of the coast; In the case of Magallona Vs. Ermita (2011), it was decided that
1. The areas lying within these lines must be particularly UNCLOS has nothing to do with the acquisition or loss of
closely linked to the land formations which divide or territory. Under traditional international law typology, States
surround them; and
acquire (or conversely, lose) territory through occupation,
2. Account should be taken of certain economic interests
accretion, cession and prescription, not by executing
peculiar to a region when their reality and importance
multilateral treaties on the regulations of sea-use rights or
are clearly evidenced by a long usage.
enacting statutes to comply with the treaty's terms to delimit
maritime zones and continental shelves. (MAGALLONA VS.
Rules on the delineation of the baseline ERMITA, G.R. NO. 187167, 2011)
In localities where the coastline is deeply indented and cut into Right of Innocent Passage
the method of straight baselines joining appreciate points may
be employed. (ARTICLE 7, UNCLOS) - Innocent passage means navigation through the
territorial sea of another State for the purpse of: (a)
traversing that sea without entering internal water or
35 | P a g e
calling at a roadstead or port facility outside internal

waters; or (b) proceeding to or from internal waters or Internal Waters
a call at such roadstead or port facility, and so long as
it is not prejudicial to the peace, good order or security - The waters around, between, and connecting the
of the coastal State. (ARTICLE 18 &19, UNCLOS as islands of the archipelago, regardless of their breadth
cited in (SARMIENTO, PUBLIC INTERNATIONAL and dimensions. (1987 CONSTITUTION, ARTICLE
LAW REVIEWER) 1) It is the waters landward of the baseline of the
- Under Article 52 of UNCLOS, ships of all States enjoy territorial sea. (SARMIENTO, PUBLIC
the right of innocent passage through archipelagic INTERNATIONAL LAW REVIEWER)
waters. However, this right is not available inside the - Under Article 7 of UNCLOS, waters on the landward
closing lines within the archipelagic waters which had side of the baseline of the territorial sea form part of
been drawn for the delimitation of internal waters. the internal waters of the State. (SARMIENTO,
(ARTICLE 50, UNCLOS) PUBLIC INTERNATIONAL LAW REVIEWER)
- The right of innocent passage of foreign ships in
archipelagic waters may be suspended by the Sovereignty over these waters is the same in extent as
archipelagic state. (SARMIENTO, PUBLIC sovereignty over land, and it is not subject to the right of
INTERNATIONAL LAW REVIEWER) But it is subject innocent passage. However, in Saudi Arabia v. Aramco. The
to the following conditions (ARTICLE 52 (2), arbitrator said that according to international law – ports of
UNCLOS):
every state must be open to foreign vessels and can only be
a. The suspension is made without discrimination in
closed when vital interests of the state so requires. But
form or in fact among foreign ships
according to the Nicaragua v. US, a coastal state may regulate
b. The suspension is only temporary
c. It must specify the areas of its archipelagic waters access to its ports. (BERNAS, INTRODUCTION TO PUBLIC
where innocent passage shall not be allowed INTERNATIONAL LAW, 2009)
d. Such suspension is essential for the protection of
it security; and Right of access to the ports of another State
e. Such suspension shall take effect only after
having been duly published - Merchant vessels have a right of access to the ports of
another State. The freedom of access to ports by
Archipelagic Sea Lanes Passage foreign merchant vessels is a rule of custom
conditioned upon reciprocity. But, landlocked nations
- Means the exercise in accordance with this may not be denied freedom of access to ports solely
Convention of the rights of navigation and overflight because of their inability to reciprocate. As a rule, the
in the normal mode solely for the purpose of ports of every coastal State must be open to foreign
continuous, expeditious and unobstructed transit vessels. However, their ports may be closed but only
between one part f the high seas or an exclusive when the vital interest of the State so require.
economic zone and another part of the high seas or an
exclusive economic zone. Principal theories on the jurisdiction of authorities of a
- An archipelagic State may designate sea lanes and air coastal Stat over crimes committed on board foreign
routes thereabove suitable for the continues and merchant ships which enter or dock in its ports
expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the 1. The French Rule – according to which crimes
adjacent territorial sea. (ARTICLE 53 (1), UNCLOS) committed aboard a foreign merchant vessels should
All ships and aircraft enjoy the right of archipelagic not be prosecuted in the courts of the count7ry within
sea lanes passage in such sea lanes and air routes whose territorial jurisdiction they were committed,
(ARTICLE 53 (2), UNCLOS
36 | P a g e
unless their commission affects the peace and security precautionary measures established for such ships by
of the territory; and international agreements. (ARTICLE 23, UNCLOS)
2. The English Rule – based on the territorial principle
according to which crimes perpetrated under such Delayed or discontinuous passage
circumstances are, in general, triable in the courts of
the country within territory they were committed. - As a rule, the passage shall be continuous and
expeditious.
Note: The Philippines follows the English Rule - However, passage may include stopping and
anchoring, but only in the following cases:
Territorial Sea a. The delayed passage is incidental to ordinary
navigation;
- A belt of sea outwards from the baseline and up to 12 b. It is rendered necessary by force majeure or
nautical miles beyond distress; or
c. For the purpose of rendering assistance to
Article 3. Breadth of the Territorial sea persons, ships or aircraft in danger or distress.
Every State has the right to establish the breadth of
its territorial sea up to a limit not exceeding 12 Acts that are not considered innocent passage
nautical miles, measured from baselines determined (ARTICLE 19(2), LAW OF THE SEA)
in accordance with this Convention.
2. Passage of a foreign ship shall be considered to be
prejudiced to the peace, good order or security of the coastal
Where, however, the application of the twelve-mile rule to State if in the territorial sea it engages in any of the following
neighboring littoral states would result in overlapping, the rule activities:
now established is that the dividing line is a median line
equidistant from the opposite baselines. But the equidistance (a) Any threat or use of force against the sovereignty,
rule does not apply where historic title of other special territorial integrity or political independence of the
circumstances require a different measurement (Article 15, Law coastal State, or in any other manner in violation of
of the Sea). the principles of international law embodied in the
Charter of the United Nations;
Right of Innocent Passage (b) Any exercise or practice with weapons of any kind;
(c) Any act aimed at collecting information to the
- Ships of all States, whether coastal or land-locked, prejudice of the defense or security of the coastal
enjoy the right of innocent passage through the State;
territorial sea (ARTICLE 17, UNCLOS) (d) Any act of propaganda aimed at affecting the defence
- All ships, including warships, enjoy the right of or security of the coastal State;
innocent passage. (e) The launching, landing or taking on board of any
aircraft;
- Submarines and other underwater vehicles shall enjoy
(f) The launching, landing or taking on board of any
the right of innocent passage. However, they are
military device;
required to navigate on the surface and to show their
(g) The loading or unloading of any commodity, currency
flag. (Article 20, UNCLOS)
or person contrary to the customs, fiscal, immigration
- Foreign nuclear-powered ship and ships carrying
or sanitary laws and regulation of the coastal State;
nuclear or other inherently dangerous or noxious
(h) Any act of willful and serious pollution contrary to this
substances may exercise the right of innocent passage
Convention;
through the territorial sea pf another State. However,
(i) Any fishing activities;
they should carry documents and observe special
(j) The carrying out of research or survey activities;
37 | P a g e
(k) Any act aimed at interfering with any systems of they are giving effect to generally accepted international rules
communication or any other facilities or installations or standards.
of the coastal State; 3. The coastal State shall give due publicity to all such laws and
(l) Any other activity not having a direct bearing on regulations.
passage 4. Foreign ships exercising the right of innocent passage
Coastal states have the unilateral right to verify the innocent through the territorial sea shall comply with all such laws and
character of passage, and it may take the necessary steps to regulations and all generally accepted international regulations
prevent passage that it determines to be not innocent (BERNAS, relating to the prevention of collisions at sea.
INTRODUCTION TO PUBLIC INTERNATIONAL LAW, Article 45. Innocent passage
2009). The rule on innocent passage is also applicable to straits 1. The regime of innocent passage . . . shall apply in
as held in Corfu Chanel Case. straits used for international navigation . . .
2. There shall be no suspension of innocent passage
through such straits
In the Corfu Chanel Case (1949), it arose when two British
destroyers entered the North Corfu Strait and struck mines in
Suspension of the right of innocent passage in territorial sea
Albanian waters and suffered damage. The court said that States
in time of a right to send their warships through straits used for
- The coastal State may suspend parts of the territorial
international navigation between two parts of the high seas
sea that do not constitute a strait that is used for
without the previous authorization of a coastal State, provided
international navigation. If the strait is used for
that the passage is innocent. (CORFU CHANEL CASE, 1949). international navigation, then there can be no
This rule is now found in the Article 45 of the 1982 Convention: suspension of the right of innocent passage.
Regulation of the right of innocent passage - The suspension shall be subject to the following
requirements:
Article 21. Laws and regulations of the coastal State relating a. There shall be no discrimination in form or in fact
to innocent passage among foreign ships;
1. The coastal State may adopt laws and regulations . . . b. Such suspension shall be temporary;
relating to innocent passage through the territorial c. The areas where the right shall be suspended must
sea, inrespect of all or any of the following: be specified;
(a) The safety of navigation and the regulation of maritime d. Such suspension is essential for the protection of
traffic; its security, including weapons exercises; and
(b) The protection of navigational and e. Such suspension shall take effect only after
(c) facilities and other facilities or installations; having been duly published.
(d) The protection of cables and pipelines;
(e) The conservation of the living resources of the sea; Right of transit passage
(f) The prevention of infringement of the fisheries
(g) laws and regulations of the coastal State; - “means the exercise . . . of the freedom of navigation
(h) The preservation of the environment of the coastal State and overflight solely for the purpose of continuous and
and the prevention, reduction and control of pollution expeditious transit of the strait between one part of the
thereof; high seas or an exclusive economic zone. However,
(i) Marine scientific research and hydrographic surveys; the requirement of continuous and expeditious transit
(j) The prevention of infringement of the customs, fiscal, does not preclude passage through the strait for the
immigration or sanitary laws and regulations of the purpose of entering, leving or returning from a State
coastal State. bordering the strait, subject to the conditions of entry
2. Such laws and regulations shall not apply to the design, to that State.”
construction, manning or equipment of foreign ships unless
38 | P a g e
a. Impose requirements on foreign ships which have the

Limitations to the right of transit passage practical effect of denying or impairing the right of
innocent passage; or
- The right of transit passage applies only to straits b. Discriminate in form or in fact against the ships of any
which are used for international navigation, between State or against ships carrying cargoes to, from or on
one part of the high seas or an exclusive economic behalf of any State.
zone and another part of the high seas or an exclusive The coastal State shall also give appropriate publicity to any
economic zone. The right does not exist if the strait is danger to navigation, of which it as knowledge, within its
broad enough to allow navigation through a high seas territorial sea.
route in its middle.
Criminal jurisdiction of the Coastal State
Transit passage v. Innocent Passage
Transit passage Innocent Passage The criminal jurisdiction of the coastal State should not be
Applies through straits Applies through exercised on board of foreign ship passing through the
territorial seas territorial sea to arrest any person or to conduct any
Covers navigation and Covers navigation only
investigation in connection with any crime committed on board
overflight by aircrafts
May not be unilaterally May be unilaterally the ship during its passage, save only in the following cases:
suspended (Article 45 suspended (Article 25 a. If the consequences of the crime extend to the coastal
(2), UNCLOS) (3), UNCLOS) State;
b. If the crime is of a kind to disturb the peace of the
Contiguous zone country or the good order of the territorial sea;
c. If the assistance of the local authorities has been
- An area of water not exceeding 24 nautical miles from requested by the master of the ship or by diplomatic
the baseline t extends 12 nautical miles from the edge agent or consular officer of the flag State; or
of the territorial sea. d. If such measures are necessary for the suppression of illicit
In a zone contiguous to its territorial sea . . . the coastal State traffic in narcotic drugs or psychotropic substances Immunity
from jurisdiction of foreign ships
may exercise control necessary to:
As a rule, foreign warships (including other foreign government
(a) Prevent infringement of its customs, fiscal,
ships operated for non-commercial purposes) shall enjoy
immigration or sanitary laws and regulation within its
territory or territorial sea; immunity from the jurisdiction of the coastal State. However,
in the exercise of the right of innocent passage, the foreign
(b) Punish infringement of the above laws and regulations warships are still required to comply with the rules and
committed within its territorial or territorial sea. The requirements of innocent passage, including the laws and
contiguous zone may not extend beyond 24 nautical regulations of the coastal Stat issued for the purpose (ATICLE
miles from the baselines from which the breadth of the 32, UNCLOS AS CITED IN (SARMIENTO, PUBLIC
territorial sea is measured. INTERNATIONAL LAW REVIEWER).
Preferential rights of a coastal State
If any warship does not comply with the laws and regulations
Duties of the Coastal State of the coastal State concerning passage through the territorial
The coastal State shall not hamper the innocent passage of sea and disregards any request for compliance therewith which
foreign ships through the territorial sea, except in accordance is made to it, the coastal State may require it to leave the
with the LOS Convention. In particular, the coastal State shall territorial sea immediately, and in case of non-compliance with
not: the laws and regulations of the coastal State concerning passage
through territorial sea or with the provisions of the LOS
Convention or other rules of International Law, and some loss
39 | P a g e
or damage is caused to the coastal State, the flag State shall bear 2. with regard to other activities for the economic
international responsibility for any such loss or damage exploitation of the zone, such as the production of
energy from the water, currents and winds;
Exclusive Economic Zone b) jurisdiction as provided for in the relevant provisions
The exclusive economic zone is an area beyond and adjacent to of LOS Convention with regard to:
the territorial sea, over which a State has special rights over the 1. the establishment and use of artificial islands,
exploration and utilization of the marine resources. It shall not installations and structures;
2. marine scientific research; and
extend beyond 200 nautical miles from the baselines from
3. the protection and preservation of the marine
which the breadth of the territorial sea is measured. In case of
environment.
archipelagic States, its breadth shall be measured from the
archipelagic baseline.
Rights and duties of other States in the exclusive economic
zone
Rights enjoyed by the Philippines in its exclusive economic
zone (PD No. 1599)
In the exclusive economic zone, all other States, whether
coastal or land-locked, enjoy the freedoms of navigation and
Article 2 of P.D. No. 1599 provides for the following rights over
overflight and of the laying of submarine cables and pipelines,
the exclusive economic zone:
and other internationally lawful uses of the sea related to these
a. Sovereignty rights for the purpose of exploration and
freedoms such as those associated with the operation of ships,
exploitation, conservation and management of the
aircraft and submarine cables and pipelines, and compatible
natural resources, whether living or non-living, both
with the other provisions of the LOS Convention.
renewable and non-renewable, of the seabed,
including the subsoil and the superjacent waters, and In exercising the above rights, States shall have due regard to
with regard to other activities for the economic the rights and duties of the coastal State and shall comply with
exploitation and exploration of the resources of the the laws and regulations adopted by the coastal State in
zone, such as the production of energy from the water, accordance with the provisions of the LOS Convention and
currents and winds; other rules of International Law
b. Exclusive rights and jurisdiction with respect to the
establishment and utilization of artificial islands, off- Delimitation of the exclusive economic zone between States
shore terminals, installations and structures, the with opposite or adjacent coasts
preservation of the marine environment, including the
prevention and control of pollution, and scientific The delimitation of the exclusive economic zone between
research; and States with opposite or adjacent coasts shall be effected by
c. Such other rights as are recognized by international agreement on the basis of International Law, as referred to in
law or State practice (SARMIENTO, PUBLIC Article 38 of the Statute of the International Court of Justice, in
INTERNATIONAL LAW REVIEWER).
order to achieve an equitable solution.
Rights of the coastal State in the exclusive economic zone

If no agreement can be reached within a reasonable period of
time, the States concerned shall seek a solution by the means
The LOS Convention provides that the coastal State has the
indicated in Article 33, paragraph 1, of the U.N. Charter, i.e.,
following rights in the exclusive economic zone:
by negotiation, enquiry, mediation, conciliation, arbitration,
a) sovereign rights:
judicial settlement, resort to regional agencies or arrangements,
1. for the purpose of exploring and exploiting,
or other peaceful means of their own choice.
conserving and managing the natural resources,
whether living or non-living, of the waters superjacent
to the seabed and of the seabed and its subsoil; and
40 | P a g e
Pending agreement, the States concerned, in a spirit of of its land territory to the outer edge of the continental
understanding and co-operation, shall make every effort to enter margin
into provisional arrangements of a practical nature and during b. Legal/juridical continental shelf – comprises the
this transitional period, not to jeopardize or hamper the reaching seabed and subsoil of the submarine areas that extend
of the final agreement. Such arrangements shall be without beyond its territorial sea throughout the natural
prejudice to the final delimitation. prolongation of its land territory to the outer edge of
the continental margin but not to exceed 200 nautical
miles from the baselines
Where there is an agreement in force between the States
concerned, questions relating to the delimitation of the
Continental margin
exclusive economic zone shall be determined in accordance
with the provisions of that
Comprises the submerged prolongation of the
agreement.
landmass of the coastal State, and consists of the
seabed and subsoil of the shelf the slope and the rise.
Right over the exclusive economic zone of land-locked and It does not include the deep ocean floor with its
geographically disadvantaged States oceanic ridges or the subsoil
Land-locked and geographically disadvantaged States shall Extended continental shelf

have the right to participate, on an equitable basis, in the
exploitation of an appropriate part of the surplus of the living Portion of the continental shelf beyond 200 nautical
resources of the exclusive economic zones of coastal States of miles from the baseline which the breadth of the
the same subregion or region, taking into account the relevant territorial sea is measured. However, the outer limits
economic and geographical circumstances of all the States of the extended continental shelf on the seabed shall
concerned and in conformity with laws or regulations that the not exceed 350 nautical miles from the baselines from
coastal State may impose for the conservation and utilization of which the breath of the territorial sea is measured or
the living resources in the zone in accordance with the LOS shall not exceed 100 nautical miles from the 2,500
Convention. meter isobaths, which is a line connecting the depth of
2,500 meter
Geographically disadvantaged States
The Deep Seabed
“Geographically disadvantaged States” means coastal States
3 competing views regarding the legal regime governing the
including States bordering enclosed or semi-enclosed seas,
exploitation of the mineral resources of the deep seabed:
whose geographical situation makes them dependent upon the
1. “Common heritage of mankind view” –adopted by
exploitation of the living resources of the exclusive economic
U.N. General Assembly Resolution No. 2749 [xxv],
zone of other States in the subregion or region for adequate
December 17, 1970 an declared:
supplies of fish for the nutritional purposes of their populations a. The seabed and ocean floor, and the subsoil
or parts thereof, and coastal States which can claim no exclusive thereof, beyond the limits of national jurisdiction
economic zones of their own. (area), as well as the resources of the area, are the
common heritage of mankind;
Continental Shelf b. The area shall not be subject to appropriation by
any means by State of persons, natural or
Two alternative regimes for continental shelves: juridical, and no State shall claim sovereignty or
a. geological continental shelf – comprises the seabed sovereign rights over any part thereof;
and subsoil of the submarine areas that extend beyond
its territorial sea throughout the natural prolongation
41 | P a g e
c. The area shall be open to use exclusively for

peaceful purposes by all States, whether coastal or Mare liberium principle
landlocked, without discrimination;
d. The exploration of the area and the exploitation of - It was a plea for freedom of seas with the reason that:
its resources shall be carried out for the benefit of a. Its resources were inexhaustible;
mankind as a whole. b. Physical occupation is impossible;
2. Freedom of the high seas view – considers the deep c. Demarcation of boundaries is impossible; and
seabed and the subsoil thereof as part of the freedom d. The oceans are so immense that conflicting
of the high seas that are open for exploration and resource use is impossible.
exploitation by any State but not subject to exclusive
claims or appropriation; and Freedom of the high seas
3. Res Nullius view – the seabed and the subsoil thereof Article 87. Freedom of the high seas
is owned by no one and may therefore be explored and 1. The high seas are open to all States, whether coastal or
exploited by the first State which claims the area to the landlocked, Freedom of the high seas is exercised
exclusion of other States. under the conditions laid down by this Convention and
Note: The UNCLOS has adopted the “common heritage of by other rules of international law. It comprises, inter
mankind” view and it is stated in Article 136 alia, both for coastal and landlocked States:
(a) Freedom of navigation;
The Area and its resources are the common heritage of (b) Freedom of overflight;
mankind. (c) Freedom to law submarine cables and pipelines;
Moreover, Article 137 provides that: (d) Freedom to construct artificial islands and other
installations permitted under international law;
Article 137. Legal status of the Area and its resources. (e) Freedom of fishing;
1. No state shall claim or exercise sovereignty rights over (f) Freedom of scientific research.
any part of the Area or its resources, nor shall any State 2. These freedoms shall be exercised by all Stats with due
or natural or juridical person appropriate any part regard for the interests of other States in their exercise
thereof. No such claim or exercise of sovereignty or of the freedom of high seas, and also with due regard
sovereign rights nor such appropriation shall be for the rights under this convention with respect to
recognized. activities in the Area.
2. All rights in the resources of the Area are vested in 3. Duties of all State relative to the high seas
mankind as a whole, on whose behalf the Authority a. Duty to render assistance
shall act. These resources are not subject to alienation. b. Prohibition of the transport of
The mineral recovered from the Area, however, may c. Duty to cooperate in the repression of piracy
only be alienated in accordance with this Part and the d. Duty to cooperate in the suppression of illicit traffic in
rules, regulations and procedures of the Authority. narcotic drugs or psychotropic substances
3. No State or natural or juridical person shall claim, e. Duty to cooperate in the suppression of unauthorized
acquire or exercise rights with respect to the minerals broadcasting from the high seas
recovered from the Area except in accordance with
this Part. Otherwise, no such claim, acquisition or Penal jurisdiction in matters of collision or any other
exercise of such rights shall be recognized. incident of navigation (Article 137, UNCLOS)
1. In the event of a collision or any other incident of

High Seas navigation concerning a ship on the high seas,
involving the penal or disciplinary responsibility of the
- Means all parts of the sea that are not included in the master or of any other person in the service of the ship,
territorial sea or in the internal water of any State no penal or disciplinary proceedings may be instituted
42 | P a g e
against such person except before the judicial or

administrative authorities either of the flag State or of Right of hot pursuit (Article 111, UNCLOS)
the State of which such person is a national.
2. In disciplinary matters, the State which has issued a Requirement:
master's certificate or a certificate of competence or a. The pursuit must be commenced when the freign ship
license shall alone be competent, after due legal or one of its boat is within the internal waters, the
process, to pronounce the withdrawal of such archipelagic waters, the territorial sea or the
certificates, even if the holder is not a national of the contiguous zone of the pursuing State;
State which issued them. b. The pursuit may only be continued outside the
3. No arrest or detention of the ship, even as a measure territorial sea or the contiguous zone if the pursuit has
of investigation, shall be ordered by any authorities not been interrupted;
other than those of the flag State. c. The right of hot pursuit ceases as soon as the ship
Right to Visit pursued enters the territorial sea of its own State or of
a third State; and
d. The right of hot pursuit may be exercised only by
Article 110. Right to visit
warships or military aircraft, or other ships or aircraft
1. Except where acts of interference derive from powers
clearly marked and identifiable as being on
conferred by treaty a warship which encounters on the
government service and authorized to that effect.
high seas a foreign ship, other than a ship entitled to
complete immunity in accordance with articles 95 and
International Tribunal for the Law of the Sea The seat of the
96, is not justified in boarding it unless there is
reasonable ground for suspecting that:
(a) the ship is engaged in piracy; Tribunal shall be in the Free and Hanseatic City of Hamburg in
(b) the ship is engaged in the slave trade; the Federal Republic of German
(c) the ship is engaged in unauthorized broadcasting
and the flag State of the Composition: 21 independent members, elected from among
warship has jurisdiction under article 109; person enjoying the highest reputation for fairness and integrity
(d) the ship is without nationality; or and of recognized competence in the field of law of the sea.
(e) though flying a foreign flag or refusing to show There shall be no fewer than three members from each
its flag, the ship is, in reality, of the same geographical group as established by the General Assembly of
nationality as the warship. the United Nations
2. In the cases provided for in paragraph 1, the warship
may proceed to verify the ship's right to fly its flag. To The members of the Tribunal shall be elected for nine years and
this end, it may send a boat under the command of an may be re-elected.
officer to the suspected ship. If suspicion remains after
the documents have been checked, it may proceed to a
- The members will enjoy diplomatic privileges and
further examination on board the ship, which must be
immunities
carried out with all possible consideration.
- The salaries, allowances and compensation shall be
3. If the suspicions prove to be unfounded, and provided
free of all taxations
that the ship boarded has not committed any act
justifying them, it shall be compensated for any loss or Jurisdiction:
damage that may have been sustained.
4. These provisions apply mutatis mutandis to military a. all disputes and all applications submitted to it all
aircraft. matters specifically provided for in any other
5. These provisions also apply to any other duly agreement
authorized ships or aircraft clearly marked and
identifiable as being on government service.
43 | P a g e
b. The tribunal has jurisdiction to deal with disputes Exceptions

(contentious jurisdiction) and legal questions
(advisory jurisdiction) It may have jurisdiction over persons and acts done outside of
its territory which depends on the kind of jurisdiction the State
invokes. It shall include:
CHAPTER 9 - JURISDICTION OF STATES (a) Continuing offenses;
(b) Acts prejudicial to the national security or vital interests of
Jurisdiction the State;
(c) Universal crimes; and
It is the authority to affect legal interests. Jurisdiction can be (1) (d) Offenses covered by special agreement (rule now obsolete)
jurisdiction to prescribe norms of conduct; (2) jurisdiction to
enforce the norms prescribe; and (3) jurisdiction to adjudicate The Philippines has no problem with surface boundaries since
It is also the power or authority exercised by a State over land, we have no contiguous neighbours, however, being aware of
persons, property, transactions and events. such boundaries is necessary for the purposes of determining
our exclusive economic zone
Note: It is possible for more than one sovereignty to have
jurisdiction over the same subject matter The Third Restatement summarizes the rule on boundaries.
(1) The boundary separating the land areas of two States is
Note: International law limits itself to criminal jurisdiction determined by acts of the States expressing their consent to its
location;
Bases of Jurisdiction (2) Unless a consent to a different rules has been expressed,
(a) When the boundary between two states is a NAVIGABLE
(a) Territoriality Principle; RIVER, its location is the MIDDLE OF THE CHANNEL OF
(b) Nationality Principle; NAVIGATION;
(c) Protective Principle; (b) When the boundary between two states is a NON-
(d) Universality Principle; and NAVIGABLE river or a lake, its location is the MIDDLE OF
(e) Passive Personality Principle THE RIVER OR LAKE
The Territoriality Principle Effects Doctrine
The fundamental source of jurisdiction is sovereignty over It states that a State also has jurisdiction over acts occurring
territory. outside its territory but having effects within it..
General Rule: A State has absolute, but not necessarily Two Principles of Effects Doctrine:
exclusive power to prescribe, adjudicate, and enforce rules for OBJECTIVE
SUBJECTIVE
TERRITORIAL
conduct that occurs within its territory. TERRITORIAL PRINCIPLE
PRINCIPLE
A State has jurisdiction over A State has jurisdiction over
It may exercise jurisdiction only within its territory. crimes commenced within the crimes commenced not within
State but is completed or the State but is consummated
consummated abroad. within its territory.
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Freedom of the Seas Principle

Effective Nationality Link
It states that vessels in the high seas are subject to no authority
except that of the State whose flag they fly. No State may This principle is used to determine which of the two states of
exercise any kind of jurisdiction over foreign vessels upon them which a person is a national will be recognized as having the
right to give diplomatic protection to the holder of dual
In the case of France V. Turkey (1927), the Court held that no nationality.
rule of international law in regard to collision cases to the effect The doctrine is found in the case of Liechtenstein V.
that criminal proceedings are exclusively within the jurisdiction Guatemala (1955), wherein the court upheld the principle of
of the State whose flag is flown. It is also held that it is only effective nationality link, in which the national must prove a
natural that each State should be able to exercise jurisdiction, meaningful connection to the State in question.
and to do so in respect of the incident as a whole.
Jurisdiction as to Corporations
Jurisdiction over Foreign Vessels in Philippine Territory
A State has jurisdiction over corporations organized under its
For crimes committed on foreign vessels within the Philippine laws. States also have jurisdictions over corporations organized
territory, there are two rules: or having a principal place of business abroad when these
FRENCH RULE ENGLISH RULE corporations are owned and controlled by nationals.
According to this rule, those Crimes are subject to
crimes committed in a vessel jurisdiction in the courts of Jurisdiction as to Maritime Vessels
shall not be prosecuted in the the country to which they
courts of a country where it are committed.
A state has jurisdiction over vessels flying its flag as based on
was committed, unless, it
affects the peace and security the Freedom of the Seas principle.
of the territory.
Jurisdiction as to Stateless persons
Note: The Philippines adhere to the English Rule.
In the case of US V. Canada (1938-41), the Court held that a Stateless persons are those who do not have a nationality.
State at all times has the duty to protect other States against
injurious acts by individuals from within its jurisdiction In the case of Mejoff V. Director of Prison (1951), the Court
held that the protection against deprivation of liberty without
The Nationality Principle due process of law and except for crimes committed against the
laws of the land is not limited to Philippine citizens but extends
It states that every state has jurisdiction over its nationals even to all residents, except enemy aliens, regardless of its
those nationals are outside the state. nationality
Basis: A national is entitled to the protection of the State Classification of Stateless Persons
wherever he may be. Laws relating to family rights and duties,
or to the status, condition and legal capacity of persons are
binding upon citizens of the Philippines, even though living DE JURE STATELESS DE FACTO STATELESS
abroad. PERSONS PERSONS
In the case of Blackmer V. United States (1932), the Court held
Persons who have lost their Persons who do not have
that each State has the right to decide who are its nationals by
nationality, if they had one, nationality but to whom
using either the principle of jus sanguinis or jus soli or
naturalization laws.
45 | P a g e
and have not acquired a new protection is denied by their

one. State when out of the State. Universal Crimes
These are crimes which threaten the international community

The Protective Principle as a whole and are considered criminal offenses in all countries.
A state may exercise jurisdiction over acts of foreigners even In the case of Attorney General of Israel V. Eichmann (1961),
when committed outside of its territorial jurisdiction, when the the Trial Court of Jerusalem held that although the acts were not
vital interest of the State are threatened. committed in the territory of Israel, the defendant being
convicted of universal crimes such as war crimes, crimes
It is where a State may exercise jurisdiction over conduct against the Jewish people, and crimes against humanity, such
outside its territory that threatens its security, as long as that acts could be tried by any State having custody of the defendant.
conduct is generally recognized as criminal by States in the The jurisdiction to try crimes under international law is
international community. therefore universal.
The Philippines shall also have jurisdiction over:
(a) Offenses committed on board a Philippine ship or airship; Piracy in International Law
(b) Forgery/counterfeiting of Philippine coins or currency
notes; It means any illegal act of violence or depredation committed
(c) Introduction into the Philippines of such forged or for private ends on the high seas or outside the territorial control
counterfeit coins or notes; of any state.
(d) Offenses committed by public officers or employees in the
exercise of official functions; and Note: This principle not only covers Piracy, but also genocide,
(e) Crimes against national security and the law of nations crimes against humanity, war crimes, aircraft piracy and
terrorism.
Limitations on the Protective Principle
Genocide
The protective principle is limited to those offenses posing a
direct, specific threat to national security. It means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or
The Universality Principle religious group, as such:
(a) Killing members of the group;
It states that a State has jurisdiction over offenses considered as (b) Causing serious bodily or mental harm to members of the
universal crimes regardless of where committed and who group;
committed them. (c) Deliberately inflicting on the group conditions of life
In the case of Eichmann V. Attorney-General of Israel (1962), calculated to bring about its physical destruction in whole or in
the Supreme Court of Israel held that a State has the power to part;
try and punish a person for an offense he has committed (d) Imposing measures intended to prevent births within the
regardless whether such offense was committed outside of its group; and
territory by a person who did not belong to it, provided that the (e) Forcibly transferring children of the group to another group
State is in custody of such person at the time of trial It
recognizes certain activities, universally dangerous to states and
their subjects require authority in all community members to
punish such acts wherever they may occur, even absent a link
between the state and the parties or the acts in question.
46 | P a g e
Crimes against Humanity Three Modes of resolving conflict of jurisdiction
It means any of the following acts when committed as part of a 1. The Balancing Test
2. International Comity
wide-spread or systematic attack directed against any civilian
Even when a state has a basis for exercising jurisdiction, it
population, with knowledge of the attack: will refrain from doing so if its exercise will be
(a) Murder; unreasonable.
(b) Extermination;
(c) Enslavement; Unreasonableness is determined by evaluating various
(d) Deportation or forcible transfer of population; factors, such as the link of the activity to the territory of the
(e) Imprisonment or other severe deprivation of physical regulating state, the connection, such as nationality,
residence, or economic activity, between the regulating
liberty;
state and the person principally responsible for the activity
(f) Torture; to be regulated, the character of the activity to be regulated,
In the case of Filartiga V. Pena-Irala (1980), the Court reached the existence of justified expectations that might be
in a conclusion that the prohibition of torture has become part protected or hurt by the regulation, the likelihood of
of customary international law and making the crime of torture conflict with regulation by another state.
as an act in violation of the law of nations
(g) Rape, sexual slavery, enforced prostitution, forced 3. Forum non conveniens
If in the whole circumstances of the case it be discovered
pregnancy; enforce sterilization, or any other acts;
that there is a real unfairness to one of the suitors in
(h) Persecution against any identifiable group or collectibity on permitting the choice of a forum which is not the natural or
political, racial, national, ethnic, cultural, religious, gender; proper forum, either on the ground of convenience of trial
(i) Enforced disappearance of persons; or the residence or domicile of parties or of its being the
(j) The crime of apartheid; locus contractus, or locus solutionis, then the doctrine of
(k) Other inhumane acts (ICC STATUTE, ARTICLE 7). forum non convenience is properly applied.
The application is discretionary with the court. Some of the

War Crimes interests which the court needs to weigh are divided into:
A. Private interest factors
(1) The Court shall have jurisdiction in respect of war crimes in These are access to sources of proof, availability of
particular when committed as part of a plan or policy as part of compulsory process for unwilling witnesses and
a large-scale commission of such crimes; other personal problems which make trial easy,
expeditious and inexpensive.
B. Public interest factors
(2) War Crimes mean any of the following acts against persons
These include congestion, desire to settle local
or property protected under the provisions of the Geneva controversies at home, and having the case tried in a
Convention. forum at home with the applicable law.
Passive Personality Principle
This principle authorizes states to assert jurisdiction over Extradition
offenses committed against their citizens abroad. It recognizes
that each state has a legitimate interest in protecting the safety It is the surrender of an individual by the state within whose
of its citizens when they journey outside national boundaries. territory he is found to the state under whose laws he is alleged
to have committed a crime or to have been convicted of a crime.
Although many international legal scholars agree that the It is a process that is governed by treaty.
principle is the most controversial of the five sources of
jurisdiction, they also agree that the international community The legal right to demand extradition and the correlative duty
recognizes its legitimacy. (Id at 171) to surrender a fugitive exist only when created by treaty.
47 | P a g e
A treaty may cover specific crimes only or all offenses 4. Compliance shall be in good faith.
considered criminal by both states. 5. There is an underlying risk of flight.
The following principles govern extradition: The case of the United States vs. Alvarez – Chain (1992), is an
1. No state is obliged to extradite unless there is a treaty; example of how extradition rules can be bypassed. In the case,
2. Differences in the legal system can be an obstacle to the accused was a medical doctor, who was indicted for
interpretation of what the crime is; participating in the kidnap and murder of US Drug Enforcement
3. Religious and political offenses are not extraditable. Administration (DEA) special agent and a Mexican pilot. He
was forcibly kidnapped from his medical office in Mexico to be
The procedure for extradition is normally through diplomatic flown by private plane to Texas, where he was arrested by DEA
channels. officials. He moved to dismiss the indictment, claiming that his
abduction constituted outrageous governmental conduct, and
Elements of Extradition that the District Court lacked jurisdiction to try him because he
was abducted in violation of the extradition treaty between the
1. Acts of sovereignty on the part of two States; US and Mexico. The issue is whether a criminal defendant,
2. A request by one State to another State for the delivery to abducted to the United States from a nation with which it has
it of an alleged criminal; and an extradition treaty, thereby acquires a defense to the
3. The delivery of the person requested for the purposes of jurisdiction of US courts. The Court rules that he does not, and
trial or sentence in the territory of the requesting State. that he may be tried in federal district court for violations of the
criminal law of the United States. Following Ker v. Illinois
Standard treaty limitations on Extradition: ruling, such forcible abduction is no sufficient reason why the
party should not answer when brought within the jurisdiction of
1. Prohibition of discrimination - Extradition may not be the court which has the right to try him for such an offence, and
granted if it would subject the fugitive to prosecutions presents no valid objection to his trial in such court.
based on race, nationality or political opinion;
2. Lack of probable cause clause - The request for The case of Secretary of Justice vs. Hon. Ralph Lantion
extradition must include sufficient prima facie evidence (2000) illustrates how the due process requirements work in an
of guilt attributable to the person requested to be extradition case. The jugular issue is whether or not the private
extradited; respondent is entitled to the due process right to notice and
3. Exceptions for political and military offenses - hearing during the evaluation stage of the extradition process.
Extradition shall not be granted for political offenses or if
the executive authority of the requested State determines The executive department of government, thru the
that the request is politically motivated or when it relates Department of Foreign Affairs (DFA) and the Department
to a military offense that is not punishable under non- of Justice, has steadfastly maintained that the RP-US
military penal legislation; Extradition Treaty and PD No. 1069 do not grant the
4. Rule of Specialty - designed to ensure that a fugitive private respondent a right to notice and hearing during the
surrendered for one offense is not tried for other crimes, evaluation stage of an extradition process.
the rule of specialty prevents a request for extradition
from being used as a subterfuge to obtain custody of a Private respondent peddles the postulate that he must be
person for trial or execution of a sentence on different afforded the right to notice and hearing as required by our
charges that are not extraditable or properly documented Constitution.
in the request.
But the Court rules that the evaluation process, just like the
Five Postulates of Extradition extradition proceedings proper, belongs to a class by itself.
It is sui generis. It is not a criminal proceeding which will
1. Extradition is a major instrument for the suppression of call into operation all the rights of an accused as guaranteed
crime. by the Bill of Rights. To begin with, the process of
2. The Requesting State will accord due process to the extradition does not involve the determination of the guilt
accused. or innocence of an accused. His guilt or innocence will be
3. The proceedings are sui generis. adjudged in the court of the state where he will be
48 | P a g e
extradited. Hence, as a rule, constitutional rights that are Bail in Extradition Cases
only relevant to determine the guilt or innocence of an
accused cannot be invoked by an extraditee especially by In the case of Rodriguez vs. Judge (2006), the Court
one whose extradition papers are still undergoing emphasized that bail may be granted to a possible extraditee
evaluation. only upon a clear and convincing showing:
a. That he will not be a flight risk or a danger to the
In the same case, the Court discusses the nature of the role of community;
the Department of Justice at the evaluation stage of the b. That there exist special, humanitarian and compelling
extradition proceedings. circumstances.
A strict observance of the Extradition Law indicates that Trends in International law:
the only duty of the Secretary of Justice is to file the
extradition petition after the request and all the supporting 1. The growing importance of the individual person in
papers are forwarded to him by the Secretary of Foreign public international law who, in the 20th century, has
Affairs. It is the latter official who is authorized to evaluate gradually attained global recognition;
the extradition papers, to assure their sufficiency, and 2. The higher value now being given to human rights in
under Paragraph [3], Article 3 of the Treaty, to determine the international sphere;
whether or not the request is politically motivated, or that 3. The corresponding duty of countries to observe these
the offense is a military offense which is not punishable universal human rights in fulfilling their treaty
under non-military penal legislation. obligations; and
4. The duty of the Court to balance the rights of the
As expressly provided in Paragraph [1], Section 5 of the individual under our fundamental law, on one hand,
Extradition Law, the Secretary of Justice has the ministerial and the law on extradition, on the other.
duty of filing the extradition papers.
In the case of the Government of Hong Kong vs. Olalia (2007),
There are other differences between an extradition proceeding the Court ruled, “If bail can be granted in deportation cases, we
and a criminal proceeding. see no justification why it should not also be allowed in
extradition cases. After all, both are administrative proceedings
An extradition proceeding is summary in nature while where the innocence or guilt of the person detained is not in
criminal proceedings involve a full-blown trial. issue.
In contradistinction to a criminal proceeding, the rules of CHAPTER 10 - IMMUNITY FROM

evidence in an extradition proceeding allow admission of JURISDICTION
evidence under less stringent standards.
In terms of quantum of evidence to be satisfied, a criminal case Immunity from Jurisdiction

requires proof beyond reasonable doubt for conviction while a
fugitive may be ordered extradited “upon showing the existence The general rule is that the jurisdiction of a state within its
of a prima facie case.” territory is complete and absolute. However, there two (2)
categories of exceptions to this rule:
Finally, unlike a criminal case where judgment becomes 1. Sovereign Immunity
executory upon being rendered final, in an extradition 2. Immunity of the Representative of States or
proceeding, our courts may adjudge an individual extraditable Diplomatic and Consular Immunities
but the President has the final discretion to extradite him.
Immunity of Head of State
As an extradition proceeding is not criminal in character and the
evaluation stage in an extradition proceeding is not akin to a Immunity from jurisdiction is enjoyed by both the head of state
preliminary investigation, the due process safeguards in the and by the state itself.
latter do not necessarily apply to the former.
In the case of Regina v. Bartle and the Commissioner of Police
(1999), it is held that Immunity rationae materiae applies not
49 | P a g e
only to ex-heads of state and ex-ambassadors but to all state of independence and equality of States As enunciated in
officials who have been involved in carrying out the functions Sanders v. Veridiano II, the practical justification for the
of the state. Such immunity is necessary in order to prevent state doctrine of sovereign immunity is that there can be no legal
immunity being circumvented by prosecuting or suing the right against the authority that makes the law on which the right
official who, for example, actually carried out the torture when depends. In the case of foreign States, the rule is derived from
a claim against the head of state would be precluded by the the principle of the sovereign equality of States, as expressed in
doctrine of immunity. the maxim par in parem non habet imperium. All states are
sovereign equals and cannot assert jurisdiction over one
STATE IMMUNITY another. A contrary attitude would “unduly vex the peace of
nations.”
A state may not be sued without its consent in the local courts
of another state as a necessary consequence of the principles of The restrictive theory holds that the immunity of the sovereign
independence and equality of states. is recognized only with regard to public acts or acts jure imperii,
but not with regard to private acts or acts jure gestionis.
The principle that the state may not be sued without its consent
found in the Philippine Constitution is both municipal law and The mere entering into a contract by a foreign State with a
also international law applicable to foreign states. This is based private party cannot be construed as the ultimate test of
on the principle of equality of states: par in parem non habet whether or not it is an act jure imperii or jure gestionis. Such
imperium (“among equals, there can be no superior”). act is only the start of the inquiry. Is the foreign State
engaged in the regular conduct of a business? If the foreign
The immunity of the sovereign head is seen as also State is not engaged regularly in a business or commercial
communicated to the sovereign state. With the gradual activity, the particular act or transaction must then be
expansion of state involvement in commerce, the principle tested by its nature. If the act is in pursuit of a sovereign
evolved over the years. Immunity came to be reserved only for activity, or an incident thereof, then it is an act jure imperii.
acts jure imperii (governmental acts) but not for acts jure
gestionis (trading and commercial acts). Hence, the existence alone, of a paragraph in a contract
stating that any legal action arising out of the agreement
Process of “Suggestion” shall be settled according to the laws of the Philippines and
by a specified court of the Philippines is not necessarily a
In the United States, the procedure followed is the process of waiver of sovereign immunity from suit.
“suggestion,” where the foreign State or the international
organization sued in an American court requests the Secretary Submission by a foreign state to local jurisdiction must be
of State to make a determination as to whether it is entitled to clear and unequivocal. It must be given explicitly or by
immunity. necessary implication.
In the case of USA VS HON. VM RUIZ (1985), it was held that In the case of Holy See VS RTC (1994), it was stated that in
the restrictive application of state immunity is proper only when International Law, when a State or international agency wishes
the proceedings arise out of commercial transactions of the to plead sovereign or diplomatic immunity in a foreign court, it
foreign sovereign, its commercial activities or economic affairs. requests the Foreign Office of the State where it is sued to
Stated differently, a state may be said to have descended to the convey to the court that said defendant is entitled to immunity.
level of an individual and can thus be deemed to have tacitly
given its consent to be sued only when it enters into business In the case of Liang Vs People (2000), it was held that the
contracts. It does not apply where the contract relates to the DFA’s determination that a certain person is covered by
exercise of its sovereign functions. immunity is only preliminary which has no binding effect in
courts.
International law is founded largely upon the principles of
reciprocity, comity, independence, and equality of States which Important Points
were adopted as part of the law of our land under Article II, Sec.
2 of the 1987 Constitution. The rule that a State may not be sued - The immunity of foreign States is NOT ABSOLUTE.
without its consent is a necessary consequence of the principles
50 | P a g e
- An agreement by a State for the application of the law sovereign foreign government in the absence of a treaty or other
of another State shall not be interpreted as consent to unambiguous agreement regarding controlling legal principles.
the exercise of jurisdiction by the courts of that other
State. In the case of Kirkpatrick co. V. Environmental tectonics corp,
The act of state doctrine does not establish an exception for
Exceptions to the Doctrine of State Immunity cases and controversies that may embarrass foreign
governments, but merely requires that, in the process of
a. Where there is a waiver of State immunity; deciding, the acts of foreign sovereigns taken within their own
b. If the State itself has instituted the proceedings; jurisdictions shall be deemed valid.
c. Any counterclaim arising out of the same legal
relationship or facts as the claim presented by the Definition of Terms
State; - Exterritoriality: used to describe the status of a person
d. Commercial transaction with private individuals or or thing physically present on a State’s territory, BUT
entities; wholly or partly withdrawn from the State’s
e. Death or injury to the person, or damage to or loss of jurisdiction by a rule of International Law.
tangible property, caused by an act or omission which - Extraterritoriality: the right of foreign citizens to be
is alleged to be attributable to the State; tried by the laws of the country they are from, NOT
f. Right or interest of the State in movable or immovable the laws of the country where they live.
property arising by way of succession or donation;
g. Alleged infringement of patent, industrial design, Diplomatic Law
trade name or business name, trademark, copyright or
any other form of intellectual or industrial property; Diplomacy
h. Participation in a company or other collective body,
whether incorporated or unincorporated; It is a science and art whose purpose is to accomplish foreign
i. Proceeding which relates to the operation of a ship policy in the most accurate way trying to persuade the
other than a warship; and counterpart. As a peaceful alternative to war, one of its main
j. Proceedings involving the effects of an arbitration functions is the minimization of friction.
agreement.
Right of Legation (Right of Diplomatic Intercourse)
Act of State Doctrine
The right of the State to send and receive diplomatic missions,
The doctrine protects the sovereignty of States by judicial which enables the State to carry on friendly relations.
deference to the public acts of a foreign State done in that
State’s territory. Diplomats
In Underhill vs Hernandez, Every Sovereign State is bound to A class of persons including ambassadors sent by their foreign
respect the independence of every other sovereign state, and the government to a foreign state for the purpose of being general
courts of one country will not sit in judgment on the acts of representatives or to undertake special negotiations.
the government of another, done within its own territory.
Redress of grievances by reason of such acts must be obtained Vienna Convention on Diplomatic Relations (VCDR)
through the means open to be availed of by sovereign powers
as between themselves. Codification of the rules of International Law on diplomatic
intercourse, prvileges, and immunities. The Philippines signed
The doctrine is a rule not of international law but of judicial it on 20 October 1961 and ratified it on 15 November 1965. It
restraint in domestic law whereby courts refrain from making has become a universal treaty with 190 State Parties as of 2014.
decisions in deference to the executive who is the principal
architect of foreign relations. Agents of Diplomatic Intercourse
Under the Acts of State Doctrine, courts should not examine the
validity of a taking of property within its own territory by a 1. Head of State
2. Foreign Secretary or Minister
51 | P a g e
3. Members of the Diplomatic Service diplomatic representatives who can enjoy immunity in varying
4. Special Diplomatic Agents appointed by Head of the degrees are enumerated in Article I:
State a. Head of the Mission – charged by the Sending State
5. Envoys ceremonial with the duty of acting in that capacity;
b. Members of the Mission – are the head of the mission
Diplomatic Corps and members of the staff of the mission;
c. Members of the Staff of the Mission – members of the
A body consisting of all diplomatic envoys accredited to the diplomatic staff, of the administrative and technical
same local or receiving State. The doyen du corps or the head staff, and of the service staff of the mission;
of this body is: d. Members of the Diplomatic Staff – members of the
1. The Papal Nuncio, if there is one; staff of the mission having diplomatic rank;
2. The oldest ambassador; or e. Diplomatic Agent – the head of the mission or a
3. In their absence, the oldest minister plenipotentiary member of the diplomatic staff of the mission;
f. Members of the Administrative and Technical Staff –
The diplomatic corps does not possess any legal powers or members of the staff of the mission employed in the
attributes. administrative and technical service of the missions;
g. Members of the Service Staff – members of the staff of
Appointment of Envoys/Diplomatic Corps the mission in the domestic service of the mission;
h. Private Servant – a person who is in the domestic
In the Philippines, it is the President who appoints, sends, and service of a member of the mission and who is not an
instructs the diplomatic and consular representatives. This employee of the sending State;
prerogative is unquestionable. i. Premises of the Mission – the buildings or parts of
Functions of Diplomatic Corps buildings and the land ancillary thereto, irrespective of
1. Promote friendly relations between the sending State ownership, used for the purposes of the mission
and the receiving State, and the development of their including the residence of the head of the mission.
economic, cultural, and scientific relations;
2. Represent his country in the receiving State; Functions of the Diplomatic Mission
3. Observe and report to his country the development in (Article 3):
the receiving State; a. Representing the sending State in the receiving State;
4. Protect the interests of the nationals of his country b. Protecting in the receiving State the interests of the
within the limits allowed by international law; and sending State and of its nationals, within the limits
5. Negotiate with the government of the receiving State. permitted by international law;
c. Negotiating with the Government of the receiving
Diplomatic and Consular Immunities State;
d. Ascertaining by all lawful means conditions and
Official representatives of a state are given immunities and developments in the receiving State, and reporting
privileges when they are within the territory of another state. thereon to the Government of the sending State;
The immunities and privileges they enjoy are personal in the e. Promoting friendly relations between the sending
sense that they benefit the person. But the purpose of the State and the receiving State, and developing their
immunities given them is functional, that is, to enable them to economic, cultural, and scientific relations.
perform their functions properly. On the part of the receiving
state there lie certain obligations to protect the representative Kinds of Diplomatic Missions
and his property and office.
1. Permanent
Diplomatic Immunities ▪ Bilateral – in charge of relations with other or
concurrent to other States
Diplomats are concerned with the political relations of states. ▪ Multilateral – deal with regional or global
The codification of the law on the subject may be found in the issues with a plurality of States
Vienna Convention on Diplomatic Relations (1961). The 2. Non-permanent
52 | P a g e
Ad-hoc – special missions on specific An action relating to succession in which the

questions diplomatic agent is acting as a private person; and
An action relating to any professional or
Documents Carried by Diplomatic Representatives commercial activity exercised by the diplomatic
agent in his private capacity.
1. Letter of Credence4 4. Exemption from:
2. Diplomatic Passport Social, security provisions with respect to
3. Instructions services rendered for the Sending State;
4. Ciphers for secret communication with his State All dues and taxes;
All personal services and military exemptions;
Diplomatic relations between states are purely by mutual All customs duties, taxes, and related charges;
consent. Before the head of mission is sent to the receiving Exception:
state, an agreement must first be obtained. The receiving state a. Indirect taxes;
is under no obligation to give reasons for refusing an agreement. b. Dues and taxes on private immovable
property;
Diplomatic Bag c. Estate, succession, or inheritance duties;
d. Dues and taxes on private income having its
Consists of packages containing official correspondence, source in the receiving State and capital taxes
documents, and articles intended exclusively for official use, on investments made in commercial
whether accompanied by diplomatic courier or not, which are undertakings in the receiving State;
used for official communication and which bear visible marks e. Charges levied for specific services rendered;
of their character as a diplomatic bag. and
Rights, Privileges, and Immunities of: f. Registration, court or record fees, mortgage
Diplomatic Mission: (VCDR ARTS. 22, 23, 24, 27, 28) dues and stamp duty with respect to
1. Free communication immovable property.
2. Inviolability of: 5. Personal baggage is exempt from inspection.
➢ the premises Exception:
➢ archives and documents ➢ There are serious grounds for presuming that it
➢ official correspondence5 contains articles that are neither for the official
3. Use of flag and emblem of the Sending State on the use of the diplomatic mission nor for the personal
premises, residence, means of transport use of the diplomatic or members of his family; or
4. Diplomatic bag shall not be opened or detained ➢ Articles, the import or export of which is
5. Exemption from all dues and taxes in respect of: prohibited by the law or controlled by the
➢ the premises of the mission quarantine regulations of the receiving State. In
➢ the fees and charges levied by the mission in the any case, such inspection shall be conducted only
course of its official duties in the presence of the diplomatic agent or his
authorized representative.
Diplomatic Agent: 6. The properties, including papers and correspondence,
(VCDR Arts. 29, 30, 31, 33, 34, 35, 36) of an Ambassador shall be inviolable.
1. Not obliged to give evidence as a witness
2. Inviolability of the: A diplomatic agent may practice any professional or
➢ Person commercial activity provided that it is not for profit. (VCDR,
➢ Private Residence Art. 42)
3. Immunity from criminal, civil, and administrative
jurisdiction of the Receiving State, except in: Administrative and Technical Staff: If they, together with the
➢ A real action relating to private immovable members of their families forming part of their respective
property UNLESS he holds it on behalf of the households, are not nationals of or permanent residents in the
Sending State for the purpose of the mission; Receiving State, they shall be entitled to the same privileges and
53 | P a g e
immunities as that of a diplomatic agent, EXCEPT that the international officials rest upon different legal foundations.
immunity from civil and administrative jurisdiction shall not Whereas those immunities awarded to diplomatic agents are a
extend to acts performed outside the course of their duties. right of the sending State based on customary international law,
those granted to international officials are based on treaty or
Service Staff: If they are not nationals of or permanent residents conventional law. The special status of the diplomatic envoy is
in the Receiving State, they shall enjoy immunity in respect of regulated by the principle of reciprocity by which a State is
acts performed in the course of their duties as well as exemption free to treat the envoy of another State as its envoys are treated
from dues and taxes on the emoluments they receive by reason by that State
of their employment.
Important Points
Private Servants: If they are not nationals of or permanent
residents in the Receiving State, they shall be exempt from dues ▪ The Constitutional provision against alienation of
and taxes on the emoluments they receive by reason of their lands to foreigners does not apply to alienations of the
employment. In other respects, they may enjoy privileges and same in favour of foreign governments to be used as
immunities only to the extent admitted by the receiving State. chancery or residence of its diplomatic
HOWEVER, the receiving State must exercise its jurisdiction representatives.
over those persons in such a manner as not to interfere unduly ▪ “The receiving State shall either facilitate the
with the performance of the functions of the mission. acquisition on its territory, in accordance with its laws,
by the sending State of premises necessary for its
Other Persons Privileged: Other members of the staff of the mission or assist the latter in obtaining
mission and private servants who are nationals of or accommodation in some other way. It shall also, where
permanently residing in the receiving State shall enjoy necessary, assist in missions in obtaining suitable
privileges and immunities only to the extent admitted by the accommodation for their members.”
receiving State. ▪ The immunity of a diplomatic agent from the
jurisdiction of the Receiving State does not exempt
him from the jurisdiction of the sending State
Waiver of Immunity of Diplomatic Agents ▪ It is the duty of all persons enjoying such privileges
As a general rule, waiver of diplomatic immunity must always and immunities to respect the laws and regulations of
be express. However, the initiation of proceedings by a the receiving state.
diplomatic agent shall preclude him from invoking immunity ▪ Nor may they “practice for personal profit any
from jurisdiction in respect of any counterclaim directly professional or commercial activity” in the receiving
connected with the principal claim. state.
▪ Sec. 4, R.A. No. 75: “Any writ or process whereby the
A separate waiver is necessary for the execution of an adverse person of any ambassador or public minister of any
judgment against a diplomatic agent. Waiver of immunity from foreign State, authorized and received as such by the
jurisdiction in respect of civil or administrative proceedings President, or any domestic or domestic servant of any
shall not be eld to imply waiver of immunity in respect of the such ambassador or minister is arrested or imprisoned,
execution of the judgment. or his goods or chattels are distrained, seized, or
attached, shall be deemed void.”
International Public Officials
Diplomatic Inviolability
Persons who, on the basis of an international treaty constituting
a particular international community, are appointed by this This means that the person of the diplomatic agent, his
international community, or by an organ of it, and are under its residence, and the diplomatic premises and property may not be
control to exercise, in a continuous way, functions in the the subject of any kind of interference on the part of the
interest of this particular international community, and who are receiving State which is legally bound to afford him special
subject to a particular personal status. protection.
In the case of Liang Vs People (2001), it is held that the

privileges and immunities of diplomats and those of
54 | P a g e
Waiver of Immunities Codification of the existing practice and rules of customary

international law on consular relations. The Philippines signed
Diplomatic privileges may be waived BUT as a rule, the waiver it on 24 April 1963 and ratified it on 15 November 1965.
cannot be made by the individual concerned since such
immunities are not personal to him. Waiver may be made only Consular Officers
by the government of the sending State if it concerns the
immunities of the head of mission, in other cases, the waiver Any person, including the head of a consular post, entrusted in
may be made either by the government or by the chief of that capacity with the exercise of consular function.
mission. HOWEVER, the waiver of the privilege does not
include waiver of immunity in respect of the execution of Consulate
judgment; a separate waiver of the latter is necessary.
Office established by one State in an important city of another
Duration of Immunities/Privileges State for the purpose of supporting and protecting its citizens
travelling or residing there. These officers are also charged with
The privileges are enjoyed by the envoy from the moment he performing other important administrative duties, e.g. issuing
enters the territory of the receiving State and shall cease only visas.
the moment he leaves the country, or on expiry of a reasonable
time in which to do so; ALTHOUGH with respect to official Honorary Consul
acts, immunity shall continue indefinitely. These privileges are
available even in transit, when traveling through a Third State Consular Officers, who are nationals of the Receiving State.
on the way to or from the receiving State. They do not have the status of an official of the sending State
and are, therefore, less worthy of protection.
Termination of Diplomatic Relations
Kinds of Consuls
1. Death
2. Extinction of State 1. Consules missi – professional and career consuls, and
3. Abolition of Office nationals of the sending State; and
4. Dismissal by the Receiving State 2. Consules electi – selected by the sending State from its
5. War between the Receiving and Sending States own citizens or from among nationals abroad.
6. Resignation
7. Removal Classes of Consuls
8. Recall by the sending State
1. Consul-general
Definition of Terms 2. Consul
3. Vice-consul
▪ Agrément: Signifies a State’s consent to the foreign 4. Consular agents
State’s appointment of a head of mission, as well as
the appointment of Appointment of Consuls
▪ Aide Mémoire: Written summary of the key points
made by a diplomat in an official conversation Two (2) documents are necessary before assumption of
▪ Persona Non Grata: An unwelcome person; an consular functions, namely:
offending dilomat
Letters Patents (lettres de provision)6 and Exequatur
Consular Law Consuls and Consular Immunities
Vienna Convention on Consular Relations (VCCR)
55 | P a g e
Consuls are not concerned with political matters. They attend ▪ The receiving State shall permit and protect
rather to administrative and economic issues such as the freedom of communication on the part of the
issuance of visas. consular post for all official purposes.
▪ The official correspondence7 of the consular
The codification of the law on consular relations may be found post shall be inviolable.
in the Vienna Convention on Consular Relations which entered 3. The consular bag shall neither be opened nor detained.
into force in 1967. Communication and Contact with Nationals of the
Consular Functions: (VCCR, ART. 5) Sending State
1. Foster the development of economic and cultural ▪ Consular officers shall be free to
relations; communicate with nationals of the sending
2. Protect the interest of their home State and its State and to have access to them;
nationals; ▪ If he so requests, the competent authorities of
3. Promote the commercial interests of their sending the receiving State shall, without delay,
State; inform the consular post of the sending State
4. Assist nationals in distress in finding lawyers to if, within its consular district, a national of
represent them in court, visit prisoners, and establish that State is arrested or committed to prison
contact with local authorities; or to custody pending trial or is detained in
5. Register births, deaths, and marriages; any other manner;
6. Administer the property of nationals of the sending 4. Consular officers shall have the right to visit a national
State; of the sending State who is in prison, custody or
7. Issue visas and passports; detention, to converse and correspond with him and to
8. Supervise vessels and aircraft attributed to the sending arrange for his legal representation. Personal
State; Inviolability of Consular Officers: Consular Officers
9. Other functions entrusted to a consular post by the shall not be liable to arrest or detention pending trial,
sending State. EXCEPT in the case of a grave crime and pursuant to
a decision by the competent judicial authority.
The head of a consular post is admitted to the exercise of his 5. Immunity from Jurisdiction:
functions by an authorization from the receiving State termed ▪ Consular officers and employees shall not be
an exequatur. There is no prescribed form, but without it, he amenable to the jurisdiction of the judicial or
MAY NOT enter upon his duties. The receiving State may at administrative authorities of the receiving
any time notify the sending State that a consular officer is a State in respect of acts performed in the
persona non grata or that any other member of the consular exercise of consular functions.
staff is not acceptable. In that event, the sending State shall, as Exceptions: The above paragraph shall not
the case may be, either recall the person concerned or terminate apply in respect of a civil action either:
his functions with the consular post. a. Arising out of a contract concluded by a
consular officer or a consular employee
The receiving state has the duty to protect the consular in which he did not contract expressly or
premises, archives, and interests of the sending state. The impliedly as an agent of the sending
receiving state must insure the unimpeded functioning of the State; or
consular offices.7 6. By a third party for damage arising from an accident
in the receiving State caused by a vehicle, vessel, or
Privileges and Immunities aircraft. No Obligation to Give Evidence: Members of
1. Freedom of Movement: xxx the receiving State shall a consular post are under no obligation to give
ensure freedom of movement and travel in its territory evidence concerning matters connected with the
to all members of the consular post. (VCCR, ART. 34) exercise of their functions OR to produce official
2. Freedom of Communication: correspondence and documents relating thereto. They
are also entitled to decline to give evidence as expert
witnesses with regard to the law of the sending State.
56 | P a g e
The consent of the

A consular post may serve as
Waiver of Privileges and Immunities receiving State to
a step towards the
establish a diplomatic
establishment of a diplomatic
The sending State may waive, with regard to a member of the mission includes the
mission BUT does not
consular post, any of the privileges and immunities provided for consent to establish a
establish one itself.
in Arts. 41, 43, and 44. consular post.
As to Effect of Established Relations
KIND OF Does not necessarily signify
WHO MUST WAIVE Signified recognition of a
PRIVILEGE/IMMUNITY recognition of a State as a
State as subject of Public
Personal Individual Concerned subject of Public International
International Law.
Official Home Government Law.
Non-Personal Rights of a. Home Government
Subordinates b. Chief of Mission
Diplomatic Protection and Consular Assistance,
Termination of Consular Mission Distinguished
1. Usual modes of terminating official relationship; DIPLOMATIC CONSULAR ASSISTANCE

2. Withdrawal of exequatur; PROTECTION
3. Extinction of the State; and As to Definition
4. War The procedure employed
by the State of
Severance of consular relations does not necessarily terminate nationality of the injured A consular officer will assist
diplomatic relations. person to secure its nationals and ensure their
Important Points protection of that person, rights in the foreign State are
- A consul is NOT entitled to the privileges and and to obtain reparation properly respected.
immunities of an ambassador or minister, BUT is for the internationally
subject to the laws and regulations of the country to wrongful act inflicted.
which he is accredited. As to International Legal Duty
- A consul is not exempt from criminal prosecution for A State has no
violations of the laws of the country where he resides. international legal duty A right of the national
- If criminal proceedings are instituted against a to provide assistance to provided by the Vienna
consular officer, he must appear before the competent its nationals abroad but Convention on Consular
authorities. Consular officers shall not be liable to domestic law may Relations and customary law.
arrest or detention pending trial, EXCEPT in the case require it to do so.
of a grave crime and pursuant to a decision by the
competent judicial authority. Immunity of International Organizations
- The immunity of consuls from the jurisdiction of the
judicial or administrative authorities of the receiving Immunities and Privileges of the United Nations
State under VCCR, Art. 43 applies only in respect of
acts performed in the exercise of consular function and a. The Organization, its property and assets wherever
it does not extend to criminal acts. located and by whomsoever held, shall enjoy
immunity from every form of legal process, EXCEPT
Diplomatic and Consular Relations, Distinguished insofar as in any particular case it has expressly
waived its immunity.
DIPLOMATIC b. Inviolability of:
CONSULAR RELATIONS
RELATIONS ▪ Premises;
As to Scope ▪ Property and assets; and
Political relations Relationship between ▪ Archives and all documents belonging or
between States foreigners held by it.
As to Establishment of Consular Post
57 | P a g e
c. The Organization, its assets, income and other e. The same facilities in respect of currency or exchange
property shall be exempt from all direct taxes, customs restrictions as are accorded to representatives of
duties and prohibitions and restrictions on imports and foreign governments on temporary official missions;
exports in respect of articles imported or exported by f. The same immunities and facilities in respect of their
the UN for its official use and in respect of its personal baggage as are accorded to diplomatic
publications. envoys; and also
g. Such other privileges, immunities, and facilities not
Immunities and Privileges of the U.N. Secretary General inconsistent with the foregoing as diplomatic envoys
and other U.N. Officials enjoy, EXCEPT that they shall have no right to claim
exemption from customs duties on goods imported
a. Immunity from: (otherwise than as part of their personal baggage) or
▪ Legal process in respect of words spoken or from excise duties or sales taxes.
written and all acts performed by them in
their official capacity; In the case of WHO Vs Aquino (1972), It is a recognized
▪ National service obligations; principle of International Law and under our system of
▪ Immigration restrictions and alien separation of powers that diplomatic immunity is essentially a
registration (together with their spouses and political question and courts should refuse to look beyond a
relatives dependent on them) determination by the executive branch of the government, and
b. Exemption from taxation on the salaries and where the plea of diplomatic immunity is recognized and
emoluments paid to them by the U.N.; affirmed by the executive branch of the government as in the
c. To be accorded the same privileges in respect of case at bar, it is then the duty of the courts to accept the claim
exchange facilities as are accorded to the officials of of immunity upon appropriate suggestion by the principal law
comparable ranks forming part of diplomatic missions officer of the government, the Solicitor General in this case, or
to the Government concerned; other officer acting under his direction.
d. To be given, together with their spouses and relatives
dependent on them, the same repatriation facilities in Important Points
time of international crisis as diplomatic envoys; ▪ The UN Organization shall enjoy in the territory of
e. To have the right to import free of duty their furniture each of its Members such privileges and immunities as
and effects at the time of first taking up their post in are necessary for the fulfilment of its purposes.
the country in question.
Immunities and Privileges of the Representatives of States CHAPTER 11 – STATE RESPONSIBILITY

to the Principal and Subsidiary Organs of the U.N. and to
Conferences convened by the U.N.
Protection of Aliens
While exercising their functions and during their journey to and
from the place of meeting, enjoy the following: No state is obliged to admit aliens into its territory,
a. Immunity from personal arrest or detention and from unless there is a treaty requiring it.
seizure of their personal baggage, and in respect of
words spoken or written and all acts done by them in Once admitted, at least under democratic regimes,
their capacity as representatives, immunity from legal aliens may not be expelled without due process.
processes of every kind;
b. Inviolability for all papers and documents; The practice of the proper treatment of aliens is based
c. The right to use codes and to receive papers or on the common interest of states in protecting aliens in
correspondence by courier or in sealed bags; their jurisdiction in the expectation that their own
d. Exemption in respect of themselves and their spouses nationals will be properly treated when residing or
from immigration restrictions, alien registration or sojourning abroad.
national service obligations in the State they are
visiting or through which they are passing the exercise DIPLOMATIC PROTECTION
of their functions;
58 | P a g e
- Instrument used for the protection of aliens and Standard #03:

a well-developed customary law for the THE CALVO DOCTRINE
protection of aliens
- Theorizes that “injury to a national abroad is - Legal doctrine which provides that that a State is not
injury to the individuals state of nationality” responsible for losses suffered by aliens in time of civil
war.
The interest of the State is in the redress of the injury
to itself and not of the injury of the individual. Standard #04:
o States enjoy discretion whether or not to THE CALVO CLAUSE
espouse claims raised by individuals in their
own behalf. - Used chiefly in contracts between a government and
aliens
Forms of ill-treatment of foreign nationals: - Prevents appeals by aliens to their home agreements
o Mistreatment by judicial or police authorities for diplomatic intervention in behalf of their contract
o Unlawful expropriation of property rights.
o Denial of justice or denial of due process of - In essence, the aliens agree that any dispute that might
law – failure to prosecute those who attack arise out of the contract is to be decided by the national
foreign nationals courts in accordance with national law and is not to
give rise to any international reclamation.
Standard for the Protection of Aliens
The clause was REJECTED in the
Standard #01: North American Dredging Company
DOCTRINE OF NATIONAL TREATMENT or Claim (1926) by the Mexico-United
“Equality of Treatment” States General Claims Commission.
NOTE: The right to seek redress is a sovereign
- Aliens are treated in the same manner as nationals prerogative.
of the State where they reside. A private individual has no right to
- Aliens enjoy the same benefits as local nationals. waive the state’s right.
Likewise, aliens are subject to harsh laws, if any are
imposed within the State they are residing. Rule on the Treatment of Aliens
Flowing from its right to existence and as an attribute

Standard #02: of sovereignty, no State can under the obligation to
MINIMUM INTERNATIONAL STANDARD admit aliens. The State can determine in what cases
and under what condition it may admit aliens.
- However harsh the municipal laws might be against
the State’s own citizens, aliens should be protected by The State has the right to expel aliens from its territory
certain minimum standards of humane protection. through:
- Currently the widely accepted standard under a. DEPORTATION – expulsion of an alien
international law. considered undesirable by local state, usually
not necessarily to his own state; OR
see the resolution of the Neer Claim b. RECONDUCTION – forcible conveying of
(United States v. Mexico, 4 RIAA) aliens back tot heir home state without any
NOTE:
(1926) for better elaboration of this formalities.
standard
The aliens must accept institutions of local states as he
finds them.
59 | P a g e
Protections of Corporations and its Shareholders Ad Hoc Tribunals – tribunals specifically created to adjudicate
or resolve a particular claims or disputes
If a foreign corporation is situated in another country and a
suit is brought against it by the citizens of such country in Example:
that country’s jurisdiction, it is the state of nationality of • US-Iran Claims Tribunal – deals with claims
the foreign corporation which has the right to protect the of US and Iran with regard the Islamic
said corporation and its shareholders, and not the state Revolution
wherein such foreign corporation is based. • UN Compensation Commission – dealt with
claims arising from Iraq’s invasion of Kuwait
Lump-sum Settlement Tribunals – tribunals created to

Case Concerning the Barcelona Traction, Light and adjudicate or resolve claims settlement agreements
Power Company, Ltd.
Belgium v. Spain (1964) Theories on state responsibility
The claim, which was brought before the ICJ on 1962 arose Principle of Objective Responsibility
out of the adjudication in bankruptcy in Spain of Barcelona
Traction, a company incorporated in Canada. The claim’s - also known as the Risk Theory or Strict Liability
purposed was to seek reparation for damages alleged by Concept
Belgium to have been sustained by its nationals, - is the majority view
shareholders in the company, as a result of acts said to be - Once an unlawful act has taken place, which has
contrary to international law committed towards the caused injury and which has been committed by an
company by State organs of Spain. agent of the State, that State will be responsible in
international to the State suffering the damage
The ICJ held that Belgium does not have legal standing to irrespective of good or bad faith.
exercise diplomatic protection of shareholders in a
Canadian company with respect to measures taken against Subjective Responsibility Concept
that company in Spain. It observed that when a State admits
into its territory foreign investments or foreign nationals, it - also known as the Fault Theory
is bound to extend to them the protection of the law and to - is the minority view
assume obligation concerning the treatment afforded to - An element of intentional (dolo) or negligent (culpa)
them. However, such obligations are not absolute. A State conduct on the part of the person concerned is
must first establish its right to do so. necessary before his State can be rendered liable for
any injury caused.
The breach was committed in this case against the company
itself. Only the company, which is endowed with a distinct Doctrine of State
legal personality, could take action in respect of matters that
were of a corporate character. Hence, as the incorporators When an injury has been inflicted, there is a need to
and the corporation’s registration being Canadian, it is determine whether the State can be held responsible
Canada who has the right to protect Barcelona Traction, not for it.
Belgium.
INTERNATIONALLY WRONGFUL ACT –
committed if a state violates a customary rule of
Jurisdiction over claims of violations of the rights of aliens international law or a treaty obligation.
International Court of Justice – has jurisdiction to resolve Under this doctrine, a state may be held responsible
issues of violations of the right of aliens, when its jurisdiction for:
is appealed by States in conflict. o An international delinquency
o Directly or indirectly imputable to it
60 | P a g e
o Which causes injury to the national of - It is considered as SERIOUS if it involves a gross and
another state systematic failure by the responsible State to fulfill the
obligation. (Art. 40, ARSIWA)
Articles on Responsibility of States for Internationally AGGRAVATED RESPONSIBILITY

Wrongful Acts
- Arises when a State violates a rule laying down a
- Although this work has not yet been finalized, much “community obligation,” that is either a customary
of its principles regarding State Responsibility, obligation erga omnes or an obligation erga omnes
Attribution, Consequences of Breach and Reparation contractantes laid down in an international treaty.
have been widely accepted. - Herein, material or moral damage is not an
- Codified principles enumerated above indispensable element of State responsibility.
- Has been used by the International Court of Justice in - The important matter herein is that the breach is results
many of its judgements in the infringement of a State’s right to compliance by
any other State with the obligation.
Internationally wrongful acts
ATTRIBUTION
Art. 1, ARSIWA. “Every internationally wrongful act of a
State entails the international responsibility of the State.” - legal construct whereby an internationally wrongful
✓ In essence provide that no State can escape conduct of a Sate organ acting in that capacity is
responsibility once it has committed an act which regarded as the conduct of the State itself, making the
satisfies the requirements of an internationally State responsible for it as an internationally wrongful
wrongful act. act.
- “the conduct of any organs of a State must be regarded
ELEMENTS OF AN INTERNATIONALLY WRONGFUL as an act of that State”
ACT OF A STATE:
(Art. 2, ARSIWA) DIRECT IMPUTABILITY
(1) Subjective element - where the international delinquency was committed by
Act or omission is attributable to the State under superior government officials or organs like the Head
international law of State or the National Legislature, liability will
Act or omission must be attributable not to attach immediately as their acts may not be effectively
the persons or agencies who performed it but prevented or reversed under the Constitution or laws
to the State itself of the State.
AND INDIRECT IMPUTABILITY
(2) Objective element - where the offense is committed by inferior
Act or omission constitutes a breach of an government officials or by private individuals, the
international obligation of the State State will be held liable only if, by reason of its
Must be a violation of an international indifference in preventing or punishing it, it can be
obligation of the State (customary law, treaty considered to have connived in effecting its
obligation, etc.) commission.
BREACH OF AN INTERNATIONAL OBLIGATION CONDUCTS ATTRIBUTABLE TO THE STATE:

- committed when a State is not in conformity with what (under ARSIWA)
is required of it by an obligation, regardless of its
origin or character. (Art. 12, ARSIWA)
61 | P a g e
a) The conduct of any of its organs, whether exercising money from him. The claim of France involves the
legislative, executive, judicial or any other functions. adjudication of responsibility of Mexico for actions
(Art. 4) of individuals military personnel, acting without
orders or against the wishes of their commanding
b) The conduct of a person or entity which empowered officers and independently of the needs and aims of
by the law of that State to exercise governmental the ongoing revolution.
authority provided the person or entity is acting in that
capacity in the particular instance. (Art. 5) The act of an official is only judicially established as
an act of State if such an act lies within the official’s
c) The conduct of a person or group acting on the sphere of competence. The act of an official
instruction of, or under the direction or control of, that operating beyond this competence is not an act of
State in carrying out the conduct. (Art. 6) State.
d) The conduct of a person or group of persons that is in For acts committed by its officials or organs outside
fact exercising governmental authority in the absence their competence, they must have acted at least to all
or default of the official authorities and in appearances as competent officials or organs, or they
circumstances such as to call for the exercise of that must have used
authority. (Art. 7) powers or methods appropriate to their official
capacity.
e) The conduct of an organ placed at the disposal of the
State by another State if the organ was acting in the In the case herein, these two officers have involved
exercise of elements of governmental authority of the the responsibility of the State, in view of the fact that
Sate at whose disposal it had been placed. (Art. 8) they acted in their capacity of officers and used the
means placed at their disposition by virtue of that
f) The conduct of an organ of a State or of an entity capacity.
empowered to exercise governmental authority, such
organ or entity having acted in that capacity, even if The death of Caire, fall within the category of acts
the organ or entity exceeded its authority or for which international responsibility devolves upon
contravened instruction concerning its exercise. (Art. the State to which the perpetrators of the injury are
9) amenable.
g) The conduct of an insurrectional movement which

becomes the new Government of a State. (Art. 10[1])
The Corfu Channel Case
h) The conduct of a movement, insurrectional or other, United Kingdom v. Albania (1929)
which succeeds in establishing a new State in part of
the territory of a pre-existing State or in a territory Two British destroyers struck mines in Albanian
under its administration, shall be considered an act of waters and suffered damage, including serious loss
the new State. (Art. 10[2]) of life.
i) Conduct which the State acknowledges and adopts as On October 22nd, 1946, one of the destroyers, the
its own. (Art. 11) Saumarez, when off Saranda, struck a mine and was
gravely damaged. The other destroyer, the Volage,
was sent to her assistance and, while towing her,
struck another mine and was also seriously
Caire Claim
damaged. Forty-five British officers and sailors lost
France v. Mexico (1929)
their lives, and forty-two others were wounded.
French-Mexican Claims Commission
The United Kingdom Government had protested,
Gustave Caire, a French national, was killed in
stating that innocent passage through straits is a
Mexico by Mexican soldiers after they demanded
62 | P a g e
Channel shortly. The reply was that this consent

would not be given unless the operation in question
Home Missionary Society Claim took place outside Albanian territorial waters and
United States of America v. that any sweep undertaken in those waters would be
Great Britain (1920) a violation of Albania’s sovereignty. The sweep
American and British Claims effected by the British Navy took place on
Arbitration Tribunal November 12th/13th 1946, in Albanian territorial
waters and within the limits of the channel
In 1898, the collection of a tax newly imposed [by previously swept. Twenty-two moored mines were
Great Britain] on the natives of the Protectorate [of cut; they were mines of the German GY type.
Sierra Leone] and known as the “hut tax” was the
signal for a serious and widespread revolt in the The laying of the mines took place in a period in
Ronietta district. The revolt broke out on April 27 which it had shown its intention to keep a jealous
and lasted for several days. Missions were attacked, watch on its territorial waters and in which it was
and either destroyed or damaged, and some of the requiring prior authorization
missionaries were murdered. The contention of the before they were entered, this vigilance sometimes
United States Government is that the revolt was the going so far as to involve the use of force: all of
result of the imposition and attempted collection of which render the assertion of ignorance a priori
the “hut tax.” improbable.
In ruling for Great Britain and dismissing the claim, Albania did not notify shipping of the existence of
the Tribunal held that even assuming that the “hut the minefield, as would be required by international
tax” was the effective cause of the native rebellion, law; and she did not undertake any of the measures
it was in itself a fiscal measure in accordance not of judicial investigation which would seem to be
only with general usage in colonial administration, incumbent on her. Such an attitude could only be
but also with the usual practice in African countries. explained if the Albanian Government, while
It was a measure to which the British Government knowing of the mine laying, desired the
was perfectly entitled to resort in the legitimate circumstances in which it was effected to remain
exercise of its sovereignty, if it was required. secret.
No government can be held responsible for the act The Court draws the conclusion that the laying of
of rebellious bodies of men committed in violation the minefield could not have been accomplished
of its authority, where it is itself guilty of no breach without the knowledge of Albania. It was her duty
of good faith, or of no negligence in suppressing to notify shipping and specially to warn the ships
insurrection. The good faith of the British proceeding through the Strait on October 22nd of
Government cannot be questioned, and as to the the danger to which they were exposed. In fact,
conditions prevailing in the Protectorate there is no nothing was attempted by Albania to prevent the
evidence to support the contention that it failed in disaster, and these grave omissions involve her
its duty to afford to adequate protection for life and international responsibility.
property.
right recognized by international law; the Albanian

Government had replied that foreign
warships and merchant vessels had no right to pass
through Albanian territorial waters without prior
authorization. Case concerning United States Diplomatic and
Consular Staff in Tehran
After the explosions on October 22nd, the United United States of America v. Iran (1980)
Kingdom Government sent a Note to Tirana
announcing its intention to sweep the Corfu
63 | P a g e
This case covers the armed attack on the United

States Embassy carried out in 1979 by Muslim
Student Followers of the Imam’s Policy, the Case concerning the Application of the
overrunning of its premises, the seizure of its Convention on the Prevention and Punishment of
inmates as hostages, the appropriation of its the Crime of Genocide
property and archives, and the conduct of the Bosnia and Herzegovina v.
Iranian authorities in the face of these occurrences. Serbia and Montenegro (1996)
The Court points out that the conduct of the The case stems from the violent dissolution of the
militants on that occasion could be directly former Yugoslavia, starting in 1991. Bosnia and
attributed to the Iranian State only if it were Herzegovina alleged that, in the course of this conflict,
established that they were in fact acting on its agents of the Federal Republic of Yugoslavia ("Serbia-
behalf. The information before the Court did not Montenegro") had perpetrated mass killings and acts
suffice to establish this with due of physical and mental harm against Bosnian Muslims
certainty. However, the Iranian State which, as the in violation of the Genocide Convention. Serbia
State to which the mission was accredited, was argued that it never had the requisite genocidal intent
under obligation to take appropriate steps to protect and that these acts were not attributable to it because
the United States Embassy did nothing to prevent they were committed by the Vojska Republike Srpske
the attack, stop it before it reached its completion or (Bosnian Serb Army) of the Republika Srpska, the
oblige the militants to withdraw from the premises Bosnian-Serb entity that rejected Bosnia and
and release the hostages. Herzegovina's secession from the former Yugoslavia
following a 1992 plebiscite.
Expressions of approval were immediately heard
from numerous Iranian authorities. Ayatollah The International Court of Justice held that the
Khomeini himself proclaimed the Iranian State’s conduct of Vojska Republike Srpske (Bosnian Serb
endorsement of both the seizure of the premises and Army) and other paramilitary groups was not
the detention of the hostages. Once organs of the attributable to Serbia and Montenegro as they do not
Iranian State had thus given approval to the acts form part of any of the state or governmental organs
complained of and decided to perpetuate them as a of Serbia and Montenegro, whether de jure or de facto.
means of pressure on the United States, those acts
were transformed into acts of the Iranian State: the
militants became agents of that State, which itself
became internationally responsible for their acts.
The Iranian authorities’ decision to continue the

subjection of the Embassy to occupation, and of its
staff to detention as hostages, gave rise to repeated
and multiple breaches of Iran’s treaty obligations,
additional to those already committed at the time of
the seizure of the Embassy.
64 | P a g e
Instances When a State is Reponsible for the Wrongful Act

of Another State:
Short v. Iran
(under ARSIWA)
United States of America v. Iran (1987)
American and British Claims
a) When it aids or assists another State in the commission
U.S.-Iran Claims Tribunal
of an internationally wrongful act. (Art. 16)
The claimant, an American national, was employed
b) When it directs and controls another State in the
by Lockheed, an American company, in Iran. On
commission of an internationally wrongful act. (Art.
February 8, 1979, three days before the Islamic
17)
Revolutionary Government took office, the
claimant was evacuated from Iran on company
c) When it coerces another State to commit an
orders because of the deteriorating situation. The
internationally wrongful act. (Art. 18)
claimant sought compensation for salary and other
losses resulting from his alleged expulsion contrary
to international law. Requisites for a State to be held liable for the
wrongful act of another State:
Where a revolution leads to the establishment of a
new government the State is held responsible for (1) That State does so with the knowledge of the
the acts of the overthrown government insofar as circumstance of the internationally wrongful
the latter-maintained control of the situation. The act;
successor government is also held responsible for
the AND
acts imputable to the revolutionary movement
which established it, even if those acts occurred (2) The act would be internationally wrongful if
prior to its establishment, as a consequence of the committed by that State.
continuity existing between the new organization of
the State and the organization of the revolutionary
movement. Circumstances Precluding the Wrongfulness of an
International Act:
The acts of supporters of a revolution [as opposed (under ARSIWA)
to its agents] cannot be attributed to the government
following the success of the revolution just as the a) When the affected State has given a valid consent to
acts of supporters of an existing government are not the commission of the act by another State (Art. 20)
attributable to the government.
b) Self-defense (Art. 21)
While these statements are of anti-foreign and in
particular anti-American sentiments, the Tribunal c) Countermeasures taken in accordance with Chapter II
notes that these pronouncements were of a general of Part 3 (Art. 22)
nature and did not specify that Americans should be
expelled en masse. It cannot be said that the d) Force majeure (Art. 23)
declarations referred to by the Claimant amounted
to an authorization to revolutionaries to act in such e) An act in situation of distress, where the State has no
a way that the Claimant should be forced to leave other reasonable way, of saving the lives of persons
Iran forthwith. entrusted to its care (Art. 24)
f) The act was necessary and it is the only way for the
State to safeguard an essential interest against a grave
and imminent peril (Art. 25)
65 | P a g e
g) Compliance with jus cogens or preemptory norms - covers any financially assessable damage
(Art. 26) including loss of profits insofar as it is
established.
Preliminary Objections
c) Satisfaction (Art. 37)
When brought before an international tribunal, the - insofar as the injury cannot be made good by
claim of denial of justice may be lost due to: restitution or compensation.
o failure to answer some preliminary - may take form in the:
objections o acknowledgement of the breach
o failure to exhaust national remedies o an expression of regret
o a formal apology
❖ This rule applies only to cases founded on - must not be out of proportion to the injury.
diplomatic protection or on injury to aliens. - must not take a form humiliating to the
responsible State.
Reparations
✓ Art. 31 (1), ARSIWA. “The responsible State is under “restitutio in integrum”

an obligation to make full reparation for the injury - fundamental principle governing the duty to make
caused by the internationally wrongful act.” reparation for an internationally wrongful act
- in essence “reparation must, as far as possible, wipe
✓ Art. 31 (2), ARSIWA. “Injury includes any damage, out all consequences of the illegal act and re-
whether material or moral, caused by the establish the situation which would, in all probability,
internationally wrongful act of a State.” have existed if that act had not been committed.”
✓ Art. 32, ARSIWA. “The responsible State may not

rely on the provisions of its internal law as
justification for failure to comply with its obligations Case Concerning the Factory
under this part.” at Chorzów (Claim for Indemnity)
Germany v. Poland (1928)
✓ Art. 34, ARSIWA. “Full reparation for the injury
caused by the internationally wrongful act shall take A contract between the Chancellor of the German
the form of restitution, compensation and Empire, on behalf of the Reich, and the Bayerische
satisfaction, either singly or in combination, in Stickstoffwerke Aktiengesellschaft of Trostberg,
accordance with the provisions of this chapter.” Bavaria was concluded to establish for the Reich
and begin the construction of "amongst other
Forms of Reparations: things, a nitrate factory at Chorzów in Upper
(under ARSIWA) Silesia."
a) Restitution (Art. 35) They contract had the following undertakings: (1)
- an obligation to re-establish the situation Acquisition of the necessary lands and its
which existed before the wrongful act was registration; (2) Patents, Licenses, Experience
committed, provided that it is not materially gained, innovations and improvements, all supply
impossible. and delivery contracts; and (3) Bayerische
(Company) was to manage the factory until March
b) Compensation (Art. 36) 31, 1941.
- an obligation to compensate for the damage
caused thereby, insofar as such damage is not Oberschlesische Stickstoffwerk, a new company,
made good by restitution. was formed. Part of such creation was the sale by
the Reich to the newly-formed company of the
factory at Chorzów. Oberschlesische was duly
66 | P a g e
entered as the owner of the landed property Countermeasures are limited to the non-performance
constituting the factory. Polish Court nullified the for the time being of international obligations of the
registration, caused it to be cancelled and were to State taking the measures towards the responsible
be registered in the name of the Polish Treasury. State. (Art. 49(2) ARSIWA)
o Must be commensurate with the injury
Oberschlesische brought an action against the suffered, taking into account:
Germano-Polish Mixed Arbitral Tribunal at Paris to - the gravity of the internationally
order the Polish Government to restore the factory wrongful act; AND
make any other reparation which the court may see - the rights in question. (Art. 51,
fit to fix and to pay the costs of the action. ARSIWA)
The action of Poland which the Court has judged to

be contrary to the Geneva Convention is not an Obligations Not Affected by Countermeasures:
expropriation — to render which lawful only the (Art. 50, ARSIWA)
payment of fair compensation would have been
wanting; it is a seizure of property, rights and a) the obligation to refrain from the threat or use of force
interests which could not be expropriated even as embodied in the Charter of the United Nations;
against compensation, save under the exceptional
conditions. If follows that the compensation due to b) obligations for the protection of fundamental human
the German Government is not necessarily limited rights;
to the value of the undertaking at the moment of
dispossession, plus interest to the day of payment. c) obligations of a humanitarian character prohibiting
reprisals; and
The essential principle contained in the actual
notion of an illegal act — a principle which seems d) other obligations under peremptory norms of general
to be established by international practice and in international law.
particular by the decisions of arbitral tribunals — is
that reparation must, as far as possible, wipe out all
the consequences of the illegal act and re-establish Expropriation of Alien Property
the situation which would, in all probability, have
exited if that act had not been committed. Expropriation can be internationally wrong if it is done
contrary to the principles of international law under
To this obligation, in virtue of the general principles the 1962 UN General Assembly Resolution on the
of international law, must be added that of Sovereignty over Natural Resources.
compensating loss sustained as the result of the o Expropriation “shall be based on grounds or
seizure. reasons of public utility, security or the
national interest which are recognized as
overriding purely individual or private
interests, both domestic and foreign.”
Countermeasures against A State Responsible for an
Internationally Wrongful Act In such cases, the owner shall be paid appropriate
compensation in accordance with the rules in force in
An injured State may only take countermeasures the state taking such measures in the exercise of its
against a State which is responsible for an sovereignty and in accordance with international law.
internationally wrongful act.
o Limited only for the purpose of inducing the Chapter 12 - International Human Rights Law
responsible State to comply with its
obligations under international law. (Art.
49(1) ARSIWA) From alien rights to human rights
67 | P a g e
● Early concern about human rights was about specific The Covenant on Civil and Political Rights
classes and certain nationalities (e.g, slaves, minorities)
● Upon the dawn of the UN: that the human rights of ALL The following are substantive rights:
people became the subject of legislation
● Human rights defined: those inalienable and 1. Right to life, liberty and property and equality
fundamental rights which are essential for life as human a. The covenant does not say when protected
beings life begins, whereas the Philippines protects
● There are 3 generation of human rights: “the life of the unborn from conception”
○ 1st Gen: Traditional Civil and Fundamental b. There is no provision on the right to property
rights in the covenant
○ 2nd Gen: Social and economic rights c. On the right to life, the covenant’s Article
○ 3rd Gen: Right to peace, clean environment, 6(2) expresses a bias for the abolition of the
self-determination, common heritage of death penalty, only after conviction for the
mankind, development, minority rights most serious crimes. The 1987 Constitution
prohibited the imposition of death penalty
Perspectives on Human Rights unless a new law is passed imposing death for
“heinous crimes”
Natural Justice - people are born with certain d. The rights of an accused detailed in Articles
inalienable rights that cannot be taken away by the 14 and 15 of the Covenant have long been
state because they are tied to one’s personhood parts of the Philippine accusatory system as
● Legal Positivism- human rights are made by humans found in the Constitution
as a reflection of social norms that are then codified e. There are two provisions on compensation in
and advanced by the state the covenant
● Universalism - human rights reflect all the various i. Article 9(5): “Anyone who as been
culture of the world a victim of unlawful arrest or
● Cultural Relativism - human rights is a product of detention shall have an enforceable
cultural values held by some groups of people to the right to compensation”
exclusion of others ii. Article 14(6): “A person who has
been a victim of miscarriage of
The Emerging International Bill of Human Rights justice” shall be compensated
according to the law, unless it is
● The immediate impetus for this development was the proved that the non0disclosure of
atrocities committed by the regime under Hitler the unkown fact in time is wholly of
● There is the growing acceptance of the view that the partly attributable to him
way nations treat people under their jurisdiction is NO f. The guarantee of equality is found in Article
LONGER A DOMESTIC CONCERN 26 of the Covenant. It is the Bill of Rights’
● The Universal Declaration of Human rights (UDHR) nire terse “Equal protection” clause in Article
was adopted and proclaimed by the General Assembly III Section 1
on December 10, 1948
○ Was not seen as a law, but only as “a common 2. Torture, ill-treatment and prison conditions
standard” a. PRoscription of torture and other forms of il-
○ Its authority is moral and political treatment that offend not only against bodily
integrity but also against personal dignity and
68 | P a g e
the requirement of humane prison conditions

are found in Articles 7 and 10 Essentially, the right involved is the right to
b. While adequate prison conditions are return to one's country, a totally distinct right
guaranteed by Section 19(2) of the Bill of under international law, independent from
Rights, the prison conditions in the although related to the right to travel. Thus,
Philippines today are far from adequate the Universal Declaration of Humans Rights
c. Imprisonment “in conditions seriously and the International Covenant on Civil and
detrimental to a prisoner’s health” constitutes Political Rights treat the right to freedom of
violations of Articles 7 and 10(1) of the movement and abode within the territory of a
Covenant state, the right to leave a country, and the
3. Freedom of movement right to enter one's country as separate and
a. The covenant in its Articles 12(1) and (2) distinct rights.
group together the right to travel within the
country, the right to leave the country and the The right to return to one's country is not
right to change one’s residence among the rights specifically guaranteed in
the Bill of Rights, which treats only of the
b. Limitations as provided by Article 12(3)
liberty of abode and the right to travel, but it
i. Those provided by law is our well-considered view that the right to
ii. Are necessary to protect national return may be considered, as a generally
security, public order, public health accepted principle of international law and,
or morals or the rights and freedoms under our Constitution, is part of the law of
of others the land [Art. II, Sec. 2 of the Constitution.]
c. Unlike the Philippine provision, which
However, it is distinct and separate from the
speaks only of the right to travel without right to travel and enjoys a different
distinction as to whether it is travel within the protection under the International Covenant
country or travel from or to thhe country. The of Civil and Political Rights, i.e., against
Covenant separates the right to return to being "arbitrarily deprived" thereof [Art. 12
one’s country from the right to leave one’s (4).]
country. The separation between the right to
Therefore, President Marcos could not appeal
leave and right to return to one’s
to Section 6 of the Bill of Rights.
country is to make the limitation more narrow
than for the right to leave the country since
exile is now prohibited by customary law and 4. Legal personality, privacy and family
may even be jus cogens
d. In Marcos vs Manglapus the Philippine a. The right to be recognized as a person before
Supreme Court, however, in the case on the the law is guaranteed in Article 16 of the
return of Ferdinand Marcos after his Covenant
involuntary exile arrived at a different b. Distinction between “having a legal
conclusion personality” and “having a capacity to act”
“It must be emphasized that the individual Having a Having

right involved is not the right to travel from legal capacity to
the Philippines to other countries or within personality act
the Philippines. These are what the right to
travel would normally connote. It belongs to May not be
69 | P a g e
b. Two-fold aspect concern for minorities

all, whether available to
citizens or some by i. The fear of secessionist movement
aliens reason, for by minorities
instance of ii. The genuine concern for the human
infancy, right sof minorities
minority, or 8. Self-determination of peoples
insanity
a. Covers 2 important rights
c. When does one become a person? The i. Right to freely determine their
covenant does not say. But the Philippine political status and freely pursue
Constitution protects “the life of the unborn
their economic, social and cultural
from conception”
d. Article 17 of the Covenant protected development
“privacy, family, home or correspondence” ii. The right “for their own ends to
as well as honor and reputation freely dispose of the natural wealth
and resources without prejudice to
any obligations arising out of
5. Thought, conscience, religion, expression and international cooperation, based
political freedoms upon the principle of mutual benefit,
and international law
a. The covenant guarantees “freedom of b. Who are “Peoples” within the meaning of the
thought, conscience, and religion” Covenant?
b. The limits on external exercise found in the i. Include those ruled by colonial
covenant - “to protect public safety, order, powers; and those who form a
health, or morals or the fundamental rights of component part of a multinational
others” state
c. An established religion is not incompatible c. Self-determination has 2 aspects
with the covenant i. Internal
d. The covenant guarantees freedom of ii. External
expression and the right to assembly and
petition. However, it prohibits “propaganda Optional Protocol on The Covenant on Civil and Political
for war” Rights
6. Associations and Unions
Minorities Designed to enable private parties who are victims of
human rights violations. But complaints may be filed
Covenant is silent about the right of the only against states which have ratified the protocol
government employees to form unions
7. Minorities
The Covenant on ECONOMIC, SOCIAL AND
CULTURAL RIGHTS
a. Art 27 guarantees “ethnic, religious, or
linguistic minorities” the right “to enjoy their Why are there separate documents?
own culture, to profess and practice their own ○ The reasons for the division are both
religion, or to use their own language” ideological and practical
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○ Ideologically, the contest between Western Other Conventions on Human Rights

countries on one hand and socialist and Third
world countries on the other . American - 1948 Genocide COnvention
delegation argued that its government would - 1966 Convention on the Elimination of All Forms of
find difficulty in accepting a treaty Racial Discrimination
containing economic and cultural rights - 1979 Convention on Elimination of ALl forms of
beyond those guaranteed by the Constitution. Discrimination Against Women
For the Socialist and Third world countries, - 1984 Convention against Torture
the absence of economic, social and cultural - 1989 Convention on the Rights of the Child
guarantees could render civil and political - 1990 Convention on Migrant Workers
guarantees meaningless
Rights specific to these are social welfare rights Customary human rights law
○ Right to work
○ Right to favorable conditions of work - Some human rights principles have become
○ Right to form free trade unions customary law in light of state practice
○ Right to social security and insurance - Includes prohibition of torture, genocide, slavery and
○ Right to special assistance for families the prohibition of discrimination
○ Right to adequate standard of living
○ Right to the highest standard of physical and International implementation of human rights law
mental health
○ Right to education including compulsory - Each country has the obligation to implement human
education rights law within its jurisdiction
○ Right to the enjoyment of cultural and - Human Rights Commission- Subsidiary organ of the
scientific benefits and international contacts ECOSOC
- The two different procedures used by the commission
The Duty to Implement for responding to violations of human rights
○ The 1503 Procedure or Confidential
- The Philippines is a party not only to the UN charter procedure:
and the UDHR but also to the two Covenants as well - Authorizes the Sub-Commission on
as to the Optional Protocol to the Covenant on Civil Prevention of Discrimination and
and Political Rights Protection of Minorities to appoint a
- The nation is bound both internally and its foreign working group consisting of not more
relations to bring its laws and practices into accord than 5 members to meet once a year in a
with the accepted international obligations private meeting to reveal a pattern of
- Treaty commitments become part of domestic law gross and reliably attested violations of
- Those which are not self-executing must be attended human rights
to by “necessary steps, in accordance with its - The confidential findings of the Sub-
constitutional processes and with the provisions of the Commission are brought to the attention
present Covenant” of CHR
- The principle of “progressive realization - that a state - The CHR is expected to submit its report
is obligated to undertake a program of activities… and and recommendation to the ECOSOC
to realize those rights which are ‘recognized’ by the - Procedure is kept confidential, but
economic covenant findings invariably find their way into
media
71 | P a g e
○ The 1235 Procedure ○ Equality

- This carries 2 types of activities: ○ Fundamentally social, economic and cultural
- It holds annual public debates in which in nature
governments and NGOs are given ○ Art. 22 - 27 Universal Declaration of Human
opportunity to identify specific Rights and the International Covenant on
situations which deserve attention Economic, Social and Cultural Rights
- It engages in studies and investigations 3. Third Generation
of particular situations ○ Go beyond mere civil and social
○ 1970 Stockholm Declaration on Environment
The International Criminal Court and Development
- Created by the 1998 Rome Statute

Law on State Responsibility vs International Human Rights
- Before the establishment of the ICC, international
Law
crime were prosecuted in ad hoc criminal courts (ex.
Nuremberg and the Tokyo Tribunals) Human Rights Under UN Charter
- Enjoys permanency
- The goal is to demand individual and not collective Protection of human rights is one of the keys to the
accountability establishment of UN – reaction to Holocaust
- Its jurisdiction will be limited to the most serious Purpose of UN:
international crimes: genocide, crimes against ○ Art. 1(3) – to achieve international
humanity, war crimes, and the crime of aggression cooperation in promoting and encouraging
- Principle of Complementarity- meant to be a court of respect for human rights and for fundamental
last resort freedoms for all without distinction as to
race, sex, language, or religion
International Bill of Human Rights ○ Art. 55(c) – promote universal respect for,
and observance of, human rights and
a. The Universal Declaration of Human Rights fundamental freedoms for all without
b. The International Covenant on Economic, Social and distinction as to race, sex, language, or
Cultural Rights (ICESCR) religion
c. The International Covenant on Civil and Political ○ Art 56 – all members pledge themselves to
Rights (ICCPR) take action for the achievement of the above
d. He two Optional Protocols to the ICCPR mentioned purposes
3 Generations of Human Rights Universal Declaration of Human Rights
Follow 3 watchwords: Liberty, Equality and Fraternity “A common standard of achievement for all peoples
1. First Generation and all nations, to the end that every individual and
○ Deals with liberty and participation in every organ of society, keeping this Declaration
political life constantly in mind, shall strive by teaching and
○ Art. 3-21 of Universal Declaration of Human education to promote respect for these rights and
Rights and the International Covenant on freedoms and by progressive measures, national and
Civil and Political Rights international, to secure their universal and effective
2. Second Generation recognition and observance, both among the peoples
72 | P a g e
of Member States themselves and among the peoples ○ elaborates further the civil and political rights
of territories under their jurisdiction.” ○ Each State Party to the present Covenant
- Philosophy: “All human beings are born free and undertakes to respect and to ensure to all
equal in dignity and rights. They are endowed with individuals within its territory and subject to
reason and conscience and should act towards one its jurisdiction the rights recognized in the
another in a spirit of brotherhood.” present Covenant, without distinction of any
- Right to liberty and equality is man’s birthright and kind, such as race, colour, sex, language,
cannot be alienated. religion, political or other opinion, national
- At time of passage: Not legally binding – regarded as or social origin, property, birth or other
a Statement of Aspiration rather than a legal status.
obligation; however, since 1048: binding as a new rule ○ Applicable in respect of acts done by a State
of Customary International Law. in the exercise of its jurisdiction outside its
- Rights included in the Declaration: own territory.
○ First Generation Rights: Civil and Political
Rights
Rights recognized by ICCPR
■ Art. 3 - right to life liberty and
security or person
1. Right to have an effective judicial remedy
■ Art 4-21 – other civil and political
2. Right to equality
rights
3. Right to life
○ Second Generation Rights: Economic,
4. Freedom from torture or to cruel, inhuman or
Social, and Cultural Rights
degrading treatment or punishment
■ Art. 23-27 – rights which everyone
5. Freedom from slavery and servitude
is entitled as member of society
6. Freedom from arbitrary arrest or detention
Limitations:
7. Freedom from imprisonment for inability to fulfil a
○ These rights and freedoms may in no case be
contractual obligation
exercised contrary to the purposes and
8. Right to liberty of movement
principles of the United Nations.
9. Right to a fair trial and public hearing by an
○ In the exercise of his rights and freedoms,
independent and impartial tribunal
everyone shall be subject only to such
10. Right to be presumed innocent until proven guilty
limitations as are determined by law solely
11. Right against ex post facto laws
for the purpose of securing due recognition
12. Right to recognition everywhere as a person before the
and respect for the rights and freedoms of
law
others and of meeting the just requirements
13. Right to privacy
of morality, public order and the general
14. Freedom of thought, conscience and religion
welfare in a democratic society.
15. Freedom of opinion and expression
16. Right to peacefully assemble
UN Human Rights Covenants 17. Right to freedom of association
18. Right to marry and to found a family
19. Rights to a nationality
1. The International Covenant on Civil and Political
20. Right to take part in the government of one’s country
Rights (ICCPR)
21. Right to equal protection
○ for the protection of First Generation human
rights
○ favoured by capitalist nations
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22. Right, for members of religious, ethnic or linguistic Obligation of States that avails the Right of
minorities, to enjoy their culture, practice their religion Derogation:
and use their language 1. The State Party shall immediately inform the other
States Parties to the present Covenant, through the
intermediary of the Secretary-General of the United
Limitations
Nations, of the provisions from which it has derogated
and of the reasons by which it was actuated;
Freedom of expression is subject to certain
2. The State Party shall also make a further
restrictions, but these shall only be such asare provided
communication, through the same intermediary, on the
by law and are necessary:
date on which it terminates such derogation
1. for respect of the rights or reputations of
The following rights are non-derogable:
others,
1. Right to life
2. for the protection of national security or of
2. Freedom from torture or to cruel, inhuman or
public order, or of public health or morals.
degrading treatment or punishment
Freedom of expression prohibits:
3. Freedom from slavery and servitude
3. propaganda for war;
4. Freedom from imprisonment for inability to fulfil a
4. any advocacy of national, racial or religious
contractual obligation
hatred that constitutes incitement to
5. Right against ex post facto laws
discrimination, hostility or violence;
6. Right to recognition everywhere as a person before the
Right of Derogation
law
7. Freedom of thought, conscience and religion
Right of Derogation
In time of public emergency which threatens the life Optional Protocols

of the nation and the existence of which is officially
1. First Optional Protocol
proclaimed, the States Parties to the present Covenant
○ Enables the committee to receive and
may take measures derogating from their obligations
consider communications from individuals
under the present Covenant to the extent strictly
claiming to be victims of violations of any
required by the exigencies of the situation.
rights set forth in the Covenant.
Requisites:
○ Individuals who make such a claim and who
1. It may only be in time of public emergency
have exhausted all available domestic
which threatens the life of the nation;
remedies, are entitled to submit a written
2. The existence of public emergency is
communication to the Committee
officially proclaimed:
3. The measures taken by a State Party in
derogating from its obligations under the Doctrine of Prior Exhaustion – rule of
Covenant shall only be to the extent strictly customary international law requiring that
required by the exigencies of the situation; local remedies be exhausted prior to
4. Such measures should not be inconsistent instituting international proceedings. It is
with their other obligations under generally necessary that the State in which
international law ; the violation occurred have the opportunity
5. Such measures do not involve discrimination to redress the violation by its own means
solely on the ground of race, colour, sex, and within the framework of its domestic
language, religion or social origin; legal system.
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2. Second Optional Protocol ○ The Covenant allows each State Party to take
○ Aimed at the abolition of death penalty steps, individually and through international
○ No one within the jurisdiction of a State Party assistance and cooperation, especially
to the Protocol may be executed economic and technical, to the maximum of
its available resources, with a view to
achieving progressively the full realization of
The International Covenant on Economic, Social and Cultural
the rights recognized in the present Covenant
Rights (ICESCR)
by all appropriate means, including
○ for the protection of Second Generation
particularly the adoption of legislative
human rights
measures.
○ favoured by communist nations
○ “Take steps” – imposes a continuing
○ the ideal of free human beings enjoying
obligation to work towards the realization of
freedom from fear and want can only be
the rights.
achieved if conditions are created whereby
○ Does not apply to ICCPR – ICCPR require
everyone may enjoy his economic, social and
aach State Party undertakes to respect and to
cultural rights, as well as his civil and
ensure to all individuals within its territory
political rights.
and subject to its jurisdiction the rights
recognized in the present Covenant, without
Rights recognized by ICESCR distinction of any kind, such as race, colour,
sex, language, religion, political or other
1. Right to work opinion, national or social origin, property,
2. Right to favorable conditions of work birth or other status.
3. Right to form free trade unions
4. Right to social security and insurance
Fundamental Human Rights
5. Right to special assistance for families
6. Right to adequate standard of living
7. Right to the highest standard of physical and mental 7 Core international human rights conventions:
health
8. Right to education including compulsory primary
1. The International Convention on Elimination of All
education
Forms of Racial Discrimination
9. Right to the enjoyment of cultural and scientific
benefits and international contracts
Rights
3. The International Covenant on Economic, Social and
Limitations: A State may subject the rights to limitation Cultural Rights
but only in so far as this may be compatible with the 4. The Convention on the Elimination of All Forms of
nature of these rights and solely for the purpose of Discrimination against Women
promoting the general welfare in a democratic society. 5. The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment
Principle of Progressive Realization
6. The Convention on the Rights of the Child
7. The International Convention on the Protection of
○ Recognizes that the full realization of some
Rights of All Migrant Workers and Members of Their
rights under the Covenant may be difficult to
Families
achieve in a short period of a time.
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1. Rights against Genocide Genocide and the other acts enumerated in Article 3
shall not be considered as political crimes for the
Genocide includes any of the following acts purpose of extradition.
committed with intent to destroy, in whole or in part,
a national, ethical, racial or religious group, such as:
Acts Punishable
a. Killing members of the group
b. Cause serious bodily or mental harm to
a. Genocide
members of group
b. Conspiracy to commit genocide
c. Deliberately inflicting on group conditions of
c. Direct and public incitement to commit genocide
life calculated to bring about its physical
d. Attempt to commit genocide
destruction in whole or in part
e. Complicity in genocide
d. Imposing measures intended to prevent births
within the group
e. Forcibly transferring children of the group to 2. Right against Torture
another group.
Genocide does not necessarily mean the immediate Torture – any act by which severe pain or suffering,
destruction of a nation, except when accomplished by whether physical or mental, is intentionally inflicted
mass killings of all members of a nation. It is a on a person for such purposes as obtaining from him
coordinated plan of different actions aiming at the or a third person information or a confession,
destruction of essential foundations of the life of punishing him for an act he or a third person has
national groups, with the aim of annihilating the committed or is suspected of having committed, or
groups themselves. intimidating or coercing him or a third person, or for
any reason based on discrimination of any kind, when
such pain or suffering is inflicted by or at the
Protected Groups:
instigation of or with the consent or acquiescence of a
public official or other person acting in an official
a. 1984 Genocide Convention: protects national, ethnic,
capacity. It does not include pain or suffering arising
racial, and religious groups.
only from, inherent in or incidental to lawful
b. Philippine Act on Crimes against International
sanctions.
Humanitarian Law, Genocide, and Other Crimes
No exceptional circumstances whatsoever, whether a
Against Humanity: social or any other similar stable
state of war or a threat of war, internal political
and permanent group.
instability or any other public emergency, may be
invoked as a justification of torture.
Genocide as a Crime under International Law Freedom from torture is a right which is non-derogable
both during peacetime and in a situation of armed
A crime whether committed in the time of war or peace conflict.
Persons committing shall be punished, whether they An order from a superior officer or a public authority
are constitutionally responsible rulers, public officials may not be invoked as a justification of torture.
or private individuals
Jurisdiction: person charged shall be tried by a
competent tribunal of the State in the territory of which
the act was committed, or by such international penal
tribunal as may have jurisdiction with respect to
parties to the Genocide Convention
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3. Right against Slavery and Forced Labor b. Serfdom - the condition or status of a tenant who is by
law, custom or agreement bound to live and labor on
Slavery - the status or condition of a person over whom land belonging to another person and to render some
any or all of the powers attaching to the right of determinate service to such other person, whether for
ownership are exercised. reward or not, and is not free to change his status;
Slave Trade – includes: c. Forced Marriage - a woman, without the right to
○ all acts involved in the capture, acquisition or refuse, is promised or given in marriage on payment
disposal of a person with intent to reduce him of a consideration in money or in kind to her parents,
to slavery; guardian, family or any other person or group;
○ all acts involved in the acquisition of a slave d. Wife Trading - the husband of a woman, his family, or
with a view to selling or exchanging him; his clan, has the right to transfer her to another person
○ all acts of disposal by sale or exchange of a for value received or otherwise;
slave acquired with a view to being sold or e. Wife Inheritance – a woman on the death of her
exchanged, and, in general, every act of trade husband is liable to be inherited by another person;
or transport in slaves. f. Child Trafficking - any institution or practice whereby
a child or young person under the age of 18 years, is
delivered by either or both of his natural parents or by
Obligations contracting parties undertake:
his guardian to another person, whether for reward or
To prevent and suppress the slave trade; not, with a view to the exploitation of the child or
To bring about, progressively and as soon as possible, young person or of his labor.
the complete abolition of slavery in all its forms.
4. Right against Discrimination
Shall not include:
Racial Discrimination - any distinction, exclusion,
a. Compulsory military service; restriction or preference based on race, colour,
b. Normal civic obligations of the citizens; descent, or national or ethnic origin which has the
c. Any work or service by reason of conviction in a court purpose or effect of nullifying or impairing the
of law; recognition, enjoyment or exercise, on an equal
d. Any work or service exacted in cases of emergency, footing, of human rights and fundamental freedoms in
like war or calamity; the political, economic, social, cultural or any other
e. Minor communal services of a kind which, being field of public life.
performed by the members of the community in the Apartheid - inhumane acts committed in the context of
direct interest of the said community. an institutionalized regime of systematic oppression
and domination by one racial group or groups and
committed with the intention of maintaining that
Other Prohibited Institutions and Practices: regime.
The Convention does not apply to distinctions,
a. Debt Bondage - the status or condition arising from a exclusions, restrictions or preferences made by a State
pledge by a debtor of his personal services or of those Party to this Convention between citizens and non-
of a person under his control as security for a debt, if citizens.
the value of those services as reasonably assessed is
not applied towards the liquidation of the debt or the
length and nature of those services are not respectively
limited and defined
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Obligations: Obligation of a Stateless Person
- Condemn racial discrimination, racial segregation, 1. Every stateless person has duties to the country in
and apartheid which he finds himself, which require in particular that
- To pursue all appropriate means and without delay a he conform to its laws and regulations as well as to
policy of eliminating racial discrimination in all its measures taken for the maintenance of public order.
forms
- Undertake to prevent, prohibit and eradicate racial
Rights of a Stateless Person
segregation and apartheid.
1. Granted same treatment as to a national of the country
5. Rights of Stateless Persons of his habitual residence with respect to rights to
artistic rights and industrial property, free access to
- Stateless person - a person who is not considered as courts, rationing, elementary education, and public
a national by any State under the operation of its law relief and assistance.
- A stateless person shall not be expelled lawfully in 2. Accorded same treatment as is accorded to aliens
their territory save on grounds of national security or generally in the same circumstances with respect to
public order. right to movable and immovable property, right of
association, wage-earning employment, liberal
professions, housing, and freedom of movement.
Kinds of Statelessness
3. Issued identity papers in their territory when he does
not possess a valid travel document.
- De jure – status of individuals stripped of their
nationality by their former government without having
a opportunity to acquire another Measures adopted to prevent Statelessness:
- De Facto –status of individuals possessed of a
nationality whose country does not give them 1. A Contracting State shall grant its nationality to a
protection outside their own country; referred to as person born in its territory who would otherwise be
refugees stateless
2. A Contracting State shall grant its nationality to a
person, not born in the territory of a Contracting State,
Consequences of Statelessness
who would otherwise be stateless, if the nationality of
one of his parents at the time of the person's birth was
- A problem of identity under the law resulting in the
that of that State.
inability to enjoy the rights and freedoms afforded by
the law.
- Inability to exercise the right to work, to own Grounds for possession or acquisition of another
property, to access health care, to education and the nationality:
ability to travel, including the vital right to leave and
return. 1. Loss of nationality as a consequence of any change in
- A State's right to grant diplomatic protection and to the personal status of a person such as marriage,
represent an individual at the international level is also termination of marriage, legitimation, recognition or
based on nationality. adoption.
2. Loss of its nationality by a person's spouse or children
as a consequence of that person losing or being
deprived of that nationality, such loss shall be
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conditional upon their possession or acquisition of a. General distribution of products in short supply
another nationality. b. Housing
3. Loss or renunciation of nationality. c. Public elementary education
4. A Contracting State shall not deprive a person of his d. Public relief and assistance
nationality if such deprivation would render him e. Labor legislation and social security benefits
stateless. 1. Accorded same treatment as is accorded to aliens
generally in the same circumstances with respect to:
a. Acquisition of movable and immovable
6. Rights of Refugees
property and other rights pertaining thereto.
b. Participation in non-political and non-profit-
Refugee - any person who, owing to well-founded fear
making associations and trade unions
of being persecuted for reasons of race, religion,
c. Right to engage in wage-earning
nationality, membership of a particular social group or
employment.
political opinion, is outside the country of his
d. Right to engage on his own account in
nationality and is unable or, owing to such fear, is
agriculture, industry, handicrafts and
unwilling to avail himself of the protection of that
commerce and to establish commercial and
country; or who, not having a nationality and being
industrial companies.
outside the country of his former habitual residence as
e. Practice of a liberal profession
a result of such events, is unable or, owing to such fear,
f. Right to choose their place of residence and
is unwilling to return to it.
to move freely within its territory
2. Issued identity papers and travel documents to any
Obligation of Refugees refugee who does not possess a valid travel document.
Every refugee has duties to the country in which he

finds himself, to conform to its laws and regulations as Expulsion
well as to measures taken for the maintenance of
a. A State Party shall not expel a refugee lawfully in their
public order.
territory save on grounds of national security or public
order.
Rights of Refugees b. The expulsion of such a refugee shall be only in
pursuance of a decision reached in accordance with
1. Accorded same treatment as to their nationals with due process of law. Except where compelling reasons
respect to: of national security otherwise require, the refugee
a. Freedom to practice their religion and freedom as shall be allowed to submit evidence to clear himself,
regards the religious education of their children. and to appeal to and be represented for the purpose
b. Protection of industrial property, such as inventions, before competent authority or a person or persons
designs or models, trademarks, trade names, and of specially designated by the competent authority.
rights in literary, artistic and scientific works c. State Party shall allow such a refugee a reasonable
c. Access to the courts, including legal assistance and period within which to seek legal admission into
exemption from cautio judicatum solvi. another country.
Cautio Judicatum Solvi – security deposit

payable by a foreign plaintiff for taking court
against a national of the State.
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Right of Asylum belongs, at the time of conquest or colonization or the

establishment of present State boundaries and who,
- A foreign State is an asylum for every individual irrespective of their legal status, retain some or all of
who, being prosecuted at home, crosses its frontier. their own social, economic, cultural and political
- Art. 13-14, Universal Declaration of Human Rights institutions.
and the general Assembly’s 1967 Declaration on
Territorial Asylum recognize the “right to leave any
Obligations of governments:
country, including his own” and “right to seek and to
enjoy in other countries asylum from persecution”
1. Ensuring that members of these peoples benefit on an
- All State have the right to grant asylum, but the
equal footing from the rights and opportunities which
individual has no right to demand asylum.
national laws and regulations grant to other members
of the population;
Diplomatic Asylum 2. Promoting the full realization of the social, economic
and cultural rights of these peoples with respect for
- Granting of refuge by a State in its embassies, ships, their social and cultural identity, their customs and
or aircraft in the territory of another State. traditions and their institutions;
- There is a right of safe-conduct from the foreign State 3. Assisting the members of the peoples concerned to
- Rules of Asylum are generally based on treaty rather eliminate socio-economic gaps that may exist between
than on Customary International Law. indigenous and other members of the national
community, in a manner compatible with their
aspirations and ways of life.
Principle of Non-refoulement
- No Contracting State shall expel or return a refugee Rights of Tribal and indigenous peoples:
in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on 1. Full measure of human rights and fundamental
account of his race, religion, nationality, membership freedoms without hindrance or discrimination.
of a particular social group or political opinion. 2. The social, cultural, religious and spiritual values and
- Will not apply where there are reasonable grounds practices of these peoples shall be recognized,
for regarding as a danger to the security of the country protected, and respected.
in which he is, or who, having been convicted by a 3. Right to decide their own priorities for the process of
final judgement of a particularly serious crime, development as it affects their lives, beliefs,
constitutes a danger to the community of that country. institutions and spiritual wellbeing and the lands they
occupy or otherwise use, and to exercise control, to the
extent possible, over their own economic, social and
7. Rights of Indigenous Peoples and Minorities
cultural development.
- Tribal Peoples – those whose social, cultural and 4. Right to participate in the formulation, implementation
economic conditions distinguish them from other and evaluation of plans and programs for national and
sections of the national community, and whose status regional development which may affect them directly.
is regulated wholly or partially by their own customs 5. Right to retain their own customs and institutions,
or traditions or by special laws or regulations where these are not incompatible with fundamental
- Indigenous Peoples - those who, on account of their rights defined by the national legal system and with
descent from the populations which inhabited the internationally recognized human rights.
country, or a geographical region to which the country
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6. Rights of ownership and possession of the peoples 9. Right to equality with nationals of the State concerned
concerned over the lands which they traditionally before the courts and tribunals.
occupy shall be recognized. 10. Not to be imprisoned merely on the ground of failure
7. Rights of the peoples concerned to the natural to fulfill a contractual obligation and to be deprived of
resources pertaining to their lands shall be specially his or her authorization of residence or work permit or
safeguarded. expelled merely on the ground of failure to fulfill an
obligation arising out of a work contract unless
fulfillment of that obligation constitutes a condition
for such authorization or permit.
8. Rights of Migrant Workers 11. To enjoy treatment not less favorable than that which
applies to nationals of the State of employment in
- Migrant Worker – a person who is to be engaged, is respect of remuneration, that is to say, overtime, hours
engaged or has been engaged in a remunerated activity of work, weekly rest, holidays with pay, safety, health,
in a State of which he or she is not a national. termination of the employment relationship and any
○ Documented – authorized to enter, to stay, other conditions of work which, according to national
and to engage in a remunerated activity in the law and practice, are covered by these terms.
State of employment pursuant to the law of Documented
that State and to international agreements to 1. Right to liberty of movement in the territory of the
which that State is a party State of employment and freedom to choose their
○ Undocumented - do not comply with the residence there.
conditions stated above 2. Right to form associations and trade unions in the State
of employment for the promotion and protection of
their economic, social, cultural and other interests.
Rights of migrant workers and their family:
3. Right to participate in public affairs of their State of
origin and to vote and to be elected at elections of that
Documented or Non-documented
State, in accordance with its legislation.
1. Freedom to leave any State, including their State of
4. Equality of treatment with nationals of the State of
origin and the right at any time to enter and remain in
employment in relation to access to educational
their State of origin.
institutions and services.
2. Not to be subjected to torture or to cruel, inhuman or
5. Right to transfer their earnings and savings from the
degrading treatment or punishment.
State of employment to their State of origin or any
3. Not to be required to perform forced or compulsory
other State.
labor.
6. Equality of treatment with nationals of the State of
4. Right to freedom of thought, conscience and religion.
employment in respect of protection against dismissal,
5. Right to hold opinions without interference and to
unemployment benefits, access to public work
freedom of expression.
schemes intended to combat unemployment, and
6. Not to be subjected to arbitrary or unlawful
access to alternative employment in the event of loss
interference with his or her privacy, family, home,
of work or termination of other remunerated activity
correspondence or other communications, or to
unlawful attacks on his or her honor and reputation.
7. Right against arbitrarily deprived of property, whether
owned individually or in association with others.
8. Right to liberty and security of person.
81 | P a g e
9. Rights of Women women, including threats of such acts, coercion or

arbitrary deprivation of liberty, whether occurring in
public or in private life.
Discrimination against women - any distinction,
1. Physical, sexual and psychological violence occurring
exclusion or restriction made on the basis of sex which
in the family, including battering, sexual abuse of
has the effect or purpose of impairing or nullifying the
female children in the household, dowry-related
recognition, enjoyment or exercise by women,
violence, marital rape, female genital mutilation and
irrespective of their marital status, on a basis of
other traditional practices harmful to women, non-
equality of men and women, of human rights and
spousal violence and violence related to exploitation;
fundamental freedoms in the political, economic,
2. Physical, sexual and psychological violence occurring
social, cultural, civil or any other field.
within the general community, including rape, sexual
abuse, sexual harassment and intimidation at work, in
Obligations of State Parties on Eliminating educational institutions and elsewhere, trafficking in
Discrimination Against Women: women and forced prostitution;
3. Physical, sexual and psychological violence
1. To embody the principle of the equality of men and perpetrated or condoned by the State, wherever it
women in their national constitutions or other occurs.
appropriate legislation if not yet incorporated therein
and to ensure, through law and other appropriate
Obligations of State Parties on Eliminating
means, the practical realization of this principle;
Violence against Women
2. To adopt appropriate legislative and other measures,
including sanctions where appropriate, prohibiting all
1. States should condemn violence against women and
discrimination against women;
should not invoke any custom, tradition or religious
3. To establish legal protection of the rights of women on
consideration to avoid their obligations with respect to
an equal basis with men and to ensure through
its elimination.
competent national tribunals and other public
2. States should pursue by all appropriate means and
institutions the effective protection of women against
without delay a policy of eliminating violence against
any act of discrimination;
women.
4. To refrain from engaging in any act or practice of
discrimination against women and to ensure that
public authorities and institutions shall act in 10. Rights of the Child
conformity with this obligation;
5. To take all appropriate measures to eliminate ● Child – every human being below the age of eighteen
discrimination against women by any person, years unless under the law applicable to the child,
organization or enterprise; majority is attained earlier.
6. To take all appropriate measures, including
legislation, to modify or abolish existing laws,
Rights of the Child:
regulations, customs and practices which constitute
discrimination against women; 1. To be registered immediately after birth and shall have
7. To repeal all national penal provisions which the right from birth to a name, the right to acquire a
constitute discrimination against women. nationality and. as far as possible, the right to know
● Violence against women - any act of genderbased and be cared for by his or her parents.
violence that results in, or is likely to result in,
physical, sexual or psychological harm or suffering to
82 | P a g e
2. Not be separated from his or her parents against their 15. States Parties shall take all feasible measures to ensure
will, except when competent authorities subject to that persons who have not attained the age of fifteen
judicial review determine, in accordance with years do not take a direct part in hostilities. They shall
applicable law and procedures, that such separation is refrain from recruiting any person who has not
necessary for the best interests of the child. attained the age of fifteen years into their armed forces.
3. Freedom of expression; this right shall include In recruiting among those persons who have attained
freedom to seek, receive and impart information and the age of fifteen years but who have not attained the
ideas of all kinds, regardless of frontiers, either orally, age of eighteen years, States Parties shall endeavor to
in writing or in print, in the form of art, or through any give priority to those who are oldest.
other media of the child's choice.
4. Freedom of thought, conscience and religion.
Worst form of Child Labor:
5. Freedom of association and to freedom of peaceful
assembly.
1. All forms of slavery or practices similar to slavery,
6. Protection from all forms of physical or mental
such as the sale and trafficking of children, debt
violence, injury or abuse, neglect or negligent
bondage and serfdom and forced or compulsory
treatment, maltreatment or exploitation, including
labour, including forced or compulsory recruitment of
sexual abuse, while in the care of parent(s), legal
children for use in armed conflict;
guardian(s) or any other person who has the care of the
2. The use, procuring or offering of a child for
child.
prostitution, for the production of pornography or for
7. Enjoyment of the highest attainable standard of health
pornographic performances;
and to facilities for the treatment of illness and
3. The use, procuring or offering of a child for illicit
rehabilitation of health.
activities, in particular for the production and
8. Right to benefit from social security, including social
trafficking of drugs as defined in the relevant
insurance.
international treaties; (d) work which, by its nature or
9. Right to a standard of living adequate for the child's
the circumstances in which it is carried out, is likely to
physical, mental, spiritual, moral and social
harm the health, safety or morals of children.
development.
10. Right to education
11. Not be denied the right, in community with other Derogation from the Protection of Rights
members of his or her group, to enjoy his or her own
Human Rights Convention with Derogation Clause:
culture, to profess and practice his or her own religion,
or to use his or her own language.
12. Right to rest and leisure, to engage in play and
Rights
recreational activities appropriate to the age of the
2. The Convention relating to the Status of Refugees
child and to participate freely in cultural life and the
3. The Convention relating to the Status of Stateless
arts.
Persons
13. Protection from economic exploitation and from
performing any work that is likely to be hazardous or
to interfere with the child's education, or to be harmful
to the child's health or physical, mental, spiritual,
moral or social development.
14. Protection from all forms of sexual exploitation and
sexual abuse.
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CHAPTER 13 – PEACEFUL SETTELMENT OF ✓ negotiation, enquiry, mediation, conciliation

b) Quasi-judicial method
INTERNATIONAL DISPUTES
arbitration
c) Judicial method
International Dispute - is a technical term in international
(UN Charter Articles 33, 36-38)]
law which means a disagreement on a point of law or fact,
a conflict of legal views or interests between two persons.
Non-Judicial or Diplomatic Methods
Role of The United Nations Negotiation
UN Charter Article 1, paragraph 1: A process of bargaining between the two parties in

“One of the principal purposes of the United Nations search of solution of disputes.
is to bring about the settlement of international It may be carried out by diplomatic correspondence,
disputes by peaceful means and in conformity with the face-to-face dialogue between permanent envoys or by
principles of justice and international law.” designated negotiators.
Essentially, it is a give-and-take process of looking
UN Charter Article 2, paragraph 3: for a win-win solution.
“All members shall settle their international disputes
by peaceful means in such a manner that international Note: For a negotiated settlement to be legally binding, the
peace and security, and justice, are not endangered.” parties must agree to it. The agreement to negotiate may be
formalized in a treaty or in a simple exchange of notes.
Q: May a member of the United Nations bring a dispute to
the attention of the General Assembly? Mediation
A: Yes, any member of the United Nations may bring any An adjunct of negotiation but with the mediator as an
dispute, or any situation which might lead to international active participant and even expected, to advance his
friction or give rise to a dispute, any situation of the nature to own proposals and to interpret as well as to transmit,
the attention of the General Assembly. It may also be brought each party’s proposals to each other.
directly to the attention of the Security Council. (UN Charter, It involves assistance by third parties who either act as
Article 35[1]) bridge between parties, who do not meet, or who may
Q: May a State which is not member of the United Nations sit with the disputants to chair meetings, suggest
bring a dispute to the attention of the Security Council or of solutions, cajole, etc.
the General Assembly? Note: The mediator must be approved by both parties.
A: Yes, a non-member State may bring to the attention of the Inquiry
Security Council or of the General Assembly any dispute
provided that: It is fact-finding done by a designated group of
a) It is a party to the dispute; and individuals or an institution.
b) It accepts in advance, for the purposes of the dispute, A method of elucidating the points of difference and
the obligations of peaceful settlement provided in the agreement to both sides in the hope that it would
Charter facilitate the understanding of the issues of the
Peaceful Methods of Settling Disputes disputes.
Note: When undertaken with the consent of the parties, it

It may be classified into: frequently resolves disputes based solely on questions of
a) Non-judicial methods fact.
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Conciliation Disputing parties retain greater control in the

arbitration process
It is a more formal technique whereby the parties agree Parties may designate the procedure and the laws
to refer controversies to an individual, a group of to be applied
individuals or an institution to make findings of fact Less formal and less contentious than
adjudication
and recommendations.
Both the arbitration proceedings and decisions
A method that combines the characteristics of both can be kept confidential, a great advantage in
inquiry and mediation. disputes regarding sensitive matters
While mediation is ordinarily carried out by one
person, conciliation is usually conducted by an Disadvantages of Arbitration
organization (such as ASEAN or NATO) or by a group
of States (Malaysia, Bangladesh and Pakistan were May be a very cumbersome and time-consuming
given the task by OIC to broke peace between Iran and process
Iraq war during the 80s) Arbitration panels do not have the authority of
courts to conduct discovery or subpoena
Note: As a rule, parties do not agree to be bound by witnesses
recommendations. But this clears the air. Parties themselves pay entire cost of arbitration
Quasi-judicial Method Three Types of Arbitral Agreements
ARBITRATION 1) Arbitration clause incorporated as part of a treaty

✓ e.g., commonly found in commercial treaties.
It is the binding settlement of a dispute on the basis of 2) Treaties whose sole function is to establish
law by a non-permanent body designated by the methods for the arbitration of disputes
parties. ✓ e.g., The Hague Convention for the Pacific
The composition, the jurisdiction and the rules of Settlement of Disputes
procedure to be applied are agreed upon by the parties 3) Ad-hoc arbitral agreements
in a compromise d’arbitrage. ✓ e.g., the agreement for the settlement of
States in dispute can select individuals as arbitrators in claims between the US and Iran (1981)
whom they have confidence and thus can at least
influence the procedure that will be employed to ARBITRAL DECISIONS
resolve their conflict
Arbitral tribunals apply international law unless the
Note: States cannot be required to submit to arbitration parties specify that some other law should be applied.
unless there is a previous agreement making arbitration
compulsory. Challenged with Four Most Commonly Accepted
Bases:
COMPROMISE D’ARBITRAGE
1) arbitral body exceeded its powers;
- An agreement expressing the consent of the 2) corruption on the part of a member of the body;
parties to the dispute to submit to arbitration and 3) failure to state the reasons for the awards or a
outlining the constitution of the arbitral panel, the serious departure from a fundamental rule of
rules of procedure, the issues to be decided and procedure;
the binding nature of the arbitral decision. 4) undertaking to arbitrate or the compromis is a
nullity
Advantages of Arbitration
More conclusive than other forms of non-judicial

settlement
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DOMESTIC COURTS INTERNATIONAL COURT OF JUSTICE
✓ Domestic courts may refuse to give recognition to It is the successor to the Permanent Court of
awards given by foreign arbitral tribunals. International Justice established by the League of
Nations.
Grounds in the Convention on the Recognition and
It came into being in 1945 through the Statute of the
Enforcement of Foreign Arbitral Awards:
Court.
1) a court in a state party to the Convention may deny
recognition or enforcement to a foreign arbitral award All members of the UN are ipso facto parties
if: to the Statute of the International Court of
Justice.
a) the agreement to arbitrate was not valid under Being party to the Statute, however, does not
applicable law; mean acceptance of the jurisdiction of the
b) the party against which the award was Court. It simply means that the state may
rendered did not receive proper notice of the accept the jurisdiction of the court.
proceedings or was otherwise not afforded an The Statute opens the court’s door to member
opportunity to present its case; states.
c) the award deals with matters outside the Only states may be parties in the court.
terms of the agreement to arbitrate;
d) the constitution of the arbitral tribunal or the Limitations on the Jurisdiction of the ICJ:
arbitral procedure was contrary to the
agreement of the parties or to the law of the
a) Only States may be parties in contentious cases before
state where the arbitration took place; or
the Court (ICJ Statute, Art. 34)
e) the award has not yet become binding on the
parties, or has been suspended or set aside by b) The consent of the States is needed for the court to
a competent court in the state where it was acquire jurisdiction (Id., Art. 36)
made. Cardinal Rule in International Courts:
2) A court of a state party to the Convention may also
deny recognition or enforcement to a foreign arbitral 1) States cannot be compelled to submit disputes to
award that meets the requirements of § 487 if, under international adjudication unless they have consented
the law of that state: to it either before a dispute has arisen or thereafter.
2) States are free to limit their acceptance to certain types
a) the subject matter of the controversy is not of disputes and to attach various conditions or
capable of settlement by arbitration; or reservations to their acceptance.
b) recognition or enforcement would be
contrary to public policy. (Third COMPOSITION OF THE COURT
Restatement) Article 2
The Court shall be composed of a body of independent
judges, elected regardless of their nationality from
Judicial Method among persons of high moral character, who possess
the qualifications required in their respective countries
Judicial settlement is a decision by a Court. for appointment to the highest judicial offices, or are
The UN’s principal judicial organ is the International juris consults of recognized competence in
Court of Justice. international law.
Article 3
The Court shall consist of fifteen members, no two of
whom may be nationals of the same state.
86 | P a g e
d) the nature or extent of the reparation to be

Jurisdiction of International Court of Justice made for the breach of an international
obligation.”
Two Types of Jurisdiction:
AERIAL INCIDENCE CASE U.S. v. Bulgaria,
1) Contentious jurisdiction ICJ 1959
2) Advisory jurisdiction. U.S. acceded to the optional clause, thereby
non-binding accepting the compulsory jurisdiction of the ICJ, in
acceptance or non-acceptance of the advisory 1946. During the ratification process, however,
opinion is determined by the internal law of U.S. added a critical phrase to their reservation
the institution including “disputes with regard to matters which
are essentially within the domestic jurisdiction of
Three Ways in which States May Accept Jurisdiction of the U.S. as determined by U.S.”
the Court: On 1955, an El Al Israel airliner was driven off
course by strong winds and crossed over into
1) Ad hoc basis Bulgarian air space. While trying to return to its
authorized course, the plane was shot down by
This can happen when one party applies Bulgarian military fighter planes. All 51 passengers
unilaterally to the Court and this application is and 7 crew members aboard were killed, including
followed by consent by the other state. 6 American nationals.
The case was first brought to the ICJ by Israel. The
Court ruled that it did not have jurisdiction. The
2) Adherence to a treaty U.S., however, pressed ahead with its claim. The
which accepts the jurisdiction of the court on U.S. applied to the ICJ for action against Bulgaria
matters of interpretation or application of the based on the violations of international law and the
treaty injuries to U.S. nationals. The U.S. asked Bulgaria
for an award of damages, plus interest.
Bulgaria then went on to make 4 objections. On the
3) Unilateral declaration
grounds of reciprocity and the consensual basis of
that recognition of jurisdiction in relation to
ICJ jurisdiction, Bulgaria invoked the Connally
any other state accepting the same Amendment reservation exempting from ICJ
jurisdiction in all legal disputes. jurisdiction matters within its internal competence.
Note: It creates the optional system of Bulgaria contended that its airspace security and
submitting to the jurisdiction of the Court. anti-aircraft defenses were within its domestic
jurisdiction. The Bulgarian government argued
OPTIONAL SYSTEM further that it “cannot admit that matters which it
rightfully determines as being essentially within its
operative only for states that “at any time declare that domestic jurisdiction should be considered, directly
they recognize as compulsory ipso facto and without or indirectly, before the Court. It requests,
special agreement, in relation to any other state accordingly, that the Court declare itself without
accepting the same obligation, the jurisdiction of the competence to adjudicate upon the application of
Court in all legal disputes concerning: the Government of the United States.”
The U.S. withdrew its application from the Court’s
a) the interpretation of a treaty; consideration. Just one day before oral hearings
b) any question of international law; were to begin, the Court formally accepted that
c) the existence of any fact which, if withdrawal, ending the dispute.
established, would constitute a breach of an
international obligation;
NICARAGUA V. US
87 | P a g e
ICJ 1984 On the contrary, Nicaragua can invoke the six

months’ notice against it, not on the basis of
On 1946, the U.S. made an Optional Clause reciprocity, but because it is an undertaking which
Declaration with a reservation which said that: “this is an integral part of the instrument that contains it.
declaration shall remain in force for a period of 5 The 1984 notification cannot therefore override the
years and thereafter until the expiration of 6 months obligation of the United States to submit to the
after notice may be given to terminate this jurisdiction of the Court vis-a-vis Nicaragua.
declaration.”
When it became clear that its dispute with Provisional Measures
Nicaragua would be placed before the Court, the Article 41
U.S. deposited with UN a notification referring to
The Court shall have the power to indicate, if it
the 1946 declaration, and stating that: “the aforesaid
considers that circumstances so require, any
declaration shall not apply to disputes with any
Central American State or arising out of or related provisional measures which ought to be taken to
to events in Central America, any of which disputes preserve the respective rights of either party.
shall be settled in such manner as the parties to them Pending the final decision, notice of the measures
may agree. suggested shall forthwith be given to the parties and to
The Court finds that the Nicaraguan declaration of the Security Council
1929 is valid and that Nicaragua accordingly was a
“State accepting the same obligation” as the U.S. at
the date of filing of the Application and could CASE CONCERNING LEGALITY OF USE
therefore rely on the United States declaration of OF FORCE Yugoslavia v. United States of
1946. America, [1999] ICJ Rep.
After outlining the arguments of the Parties in this
connection, the Court points out that the most This case was a request by the Federal Republic of
important question relating to the effect of the 1984 Yugoslavia against the NATO states in relation to
notification is whether the United States was free to the bombings being carried out by the NA forces.
disregard the six months’ notice clause which,
freely and by its own choice, it has appended to its The Court, under its Statute, does not automatically
declaration, in spite of the obligation it has entered have jurisdiction over legal disputes between States
into vis-a-vis other States which have made such a parties to that Statute or between other States to
declaration. The Court notes that the United States whom access to the Court has been granted; the
has argued that the Nicaraguan declaration, being Court has repeatedly stated “that one of the
of undefined duration, is liable to immediate fundamental principles of its Statute is that it cannot
termination, and that Nicaragua has not accepted decide a dispute between States without the consent
“the same obligation” as itself and may not rely on of those States to its jurisdiction” (East Timor,
the time-limit proviso against it. Judgment, I.CJ. Reports 1995); and the Court can
The Court does not consider that this argument therefore exercise jurisdiction only between States
entitles the United States validly to derogate from parties to a dispute who not only have access to the
the time-limit proviso included in its 1946 Court but also have accepted the jurisdiction of the
declaration. In the Court’s opinion, the notion of Court, either in general form or for the individual
reciprocity is concerned with the scope and dispute concerned;
substance of the commitments entered into,
including reservations, and not with the formal On a request for provisional measures the Court
conditions of their creation, duration or extinction. need not, before deciding whether or not to indicate
Reciprocity cannot be invoked in order to excuse them, finally satisfy itself that it has jurisdiction on
departure from the terms of a State’s own the merits of the case, yet it ought not to indicate
declaration. The United States cannot rely on such measures unless the provisions invoked by the
reciprocity since the Nicaraguan declaration applicant appear, prima facie, to afford a basis on
contains no express restriction at all.
88 | P a g e
which the jurisdiction of the Court might be the Court shall construe it upon the request of any
established. party.
It follows that the Court manifestly lacks Other More

jurisdiction to entertain Yugoslavia’s Application; Active International Courts
whereas it cannot therefore indicate any provisional
measure whatsoever in order to protect the rights Court of Justice of the European Communities
invoked therein; and whereas, within a system of European Court of Human Rights
consensual jurisdiction, to maintain on the General Benelux Court of Justice
List a case upon which it appears certain that the
Inter-American Court of Human Rights.
Court will not be able to adjudicate on the merits
would most assuredly not contribute to the sound Note: The International Criminal Court entered into force
administration of justice. only in 2002.
For these reasons, The Court, rejects the request for
the indication of provisional measures submitted by
the Federal Republic of Yugoslavia on 1999. CHAPTER 14 - THE USE OF FORCE SHORT
OF WAR
Intervention
Article 62 The Use of Force
Should a state consider that it has an interest of a legal Article 2(4) of the UN Charter: All Members shall refrain in
nature which may be affected by the decision in the their international relations from the threat or use of force
case, it may submit a request to the Court to be against the territorial integrity or political independence of any
permitted to intervene. state, or in any other manner inconsistent with the Purposes of
It shall be for the Court to decide upon this request.
the United Nations
Article 63
-Nicaragua v US: principles as to the use of force incorporated
Whenever the construction of a convention to which in the United Nations Charter correspond, in essentials, to those
states other than those concerned in the case are parties found in customary international law
is in question, the Registrar shall notify all such states
forthwith. The Threat of Force
Every state so notified has the right to intervene in the
proceedings; but if it uses this right, the construction The threat of force is likewise prohibited by the Charter
given by the judgment will be equally binding upon it.
advisory opinion on the Legality of the Threat or Use of
Nuclear Weapons (ICJ):
Obligation to comply With Decisions
- Article 51 of the Charter on the recognition of
Article 59 (ICJ Statute) the inherent right of individual or collective self-
defense if an armed attack occurs and Article 42
The decision of the Court has no binding force except
whereby the Security Council may take military
between the parties and in respect of that particular
enforcement measures, do not refer to specific
case. weapons; such apply to any use of force,
Article 60 regardless of the weapons employed
The judgment is final and without appeal. In the event
of dispute as to the meaning or scope of the judgment, - Proportionality principle: may not in itself
exclude the use of nuclear weapons in self-
89 | P a g e
defense in all circumstances but a use of force - it must be “confined to cases which the necessity of that
proportionate must meet the requirements of law self-defense is instant, overwhelming, and leaving no
applicable in armed conflict in order to be lawful choice of means, and no moment for deliberation”;
- measures taken “must be limited by that necessity and
- if the use of force is illegal, the threat to use such kept clearly within it”; and
force will likewise be illegal (Article 2, - the right of self-defense must give way to measures that
paragraph 4) may be taken by the Security Council to maintain
international peace and security
Individual and Collective Self-defense
-necessity and proportionality in self-defense: apply whether
the general prohibition of the use of force does not preclude the a State is acting in self-defense against an attack which has
right to self-defense already occurred or acting in anticipatory self-defense (Malone)
UN Charter authorizes the use of armed forces:
Nicaragua v US:
in self-defense
- US was not entitled to come to El Salvador, Honduras,
o Article 51: Nothing in the present Charter shall and Costa Rica’s defense as it had not been requested to
impair the inherent right of individual or collective do so
self-defense if an armed attack occurs against a - the general rule prohibiting force established in
Member of the United Nations, until the Security customary law allows for certain exceptions
Council has taken measures necessary to maintain - the exception of the right of individual or collective self-
international peace and security. Measures taken by defense is also established in customary law
Members in the exercise of this right to self-defense - parties who consider the existence of such right agree
shall be immediately reported to the Security that whether the response to an attack is lawful depends
Council and shall not in any way affect the authority on the observance of the criteria of the necessity and
and responsibility of the Security Council under the the proportionality of the measures taken
present Charter to take at any time such action as it - self-defense can only be exercised in response to an
deems necessary in order to maintain or restore armed attack
international peace and security - there is no rule permitting the exercise of self-defense
in the absence of a request by the State which is a victim
of the alleged attack
when the Security Council calls for enforcement
o additional requirement: State in question should have
action
declared itself to have been attacked
- did not mention anticipatory self-defense
o Article 42: Should the Security Council consider
that measures provided for in Article 41 (measures
anticipatory self-defense:
not involving the use of armed force) would be
inadequate or have proved to be inadequate, it may
take such action by air, sea, or land forces as may - opinion is divided
be necessary to maintain or restore international - those claiming its existence say that the phrase “if an
peace and security. Such action may include armed attack occurs” is not exclusive
demonstrations, blockade, and other operations by
air, sea, or land forces of Members of the United Traditionally Allowable Coercive Measures
Nations
Under International Law, certain forms of coercive measures
requisites of self-defense under Article 51 or “self-help” have been traditionally allowed.
- an armed attack occurred against a member of the UN;
All measures short of war that involve the threat or use of force
against the territorial integrity or political independence of any
90 | P a g e
State or in any other manner inconsistent with the purposes of redress or satisfaction, directly or indirectly, for the
the United Nations are no longer allowed. (U.N. Charter, Art. consequences of the illegal act of another State which
2(4)) has refused to make amends for such illegal acts.
In the Naulilaa Incident Arbitration Case (Portugal vs.

Germany 1928), the Versailles Swiss arbitral panel
a.) Severance of Diplomatic Relations laid down three conditions for legitimacy of reprisals:
Before resorting to one or other of the various forms 1.) There must have been an illegal action on the part
of coercion, it was common for governments to break of the other State
off diplomatic relations with the offending State by 2.) They must be preceded by a request for redress of
recalling their public minister’s resident at the foreign the wrong, for the necessity of resorting to force
capital. cannot be established if the possibility of
obtaining redress by other means is not even
This was not a form of forcible procedure, but rather explored
to serve as a warning that the issue between the two 3.) The measures adopted must not be excessive, in
Sates had reached a point where the injured party the sense of being out of all proportion to the
provocation received.
regarded normal diplomatic relations as no longer
compatible with the conduct of the other State, and that
d.) Embargo
sterner measures might possibly follow.
Prohibition of commerce and trade with the offending
b.) Retorsion
State. Laying an embargo upon all the vessels of the
offending State that happen at the time to be in the
This consists of retaliation where the acts complained
ports of the State seeking redress does not contemplate
of do not constitute a legal ground of offense but are
confiscation (which is considered an act of war),
rather in the nature of unfriendly acts done primarily
except in the event that the redress for injuries suffered
in pursuance of legitimate State interests but indirectly
should be finally refused.
hurtful to other States.
e.) Boycott
A State which resorts to retorsion in International Law
should apply proportionate response within A form of reprisal which consists of suspension of
appreciable limits. trade or business relations with the nationals of an
offending State.
Forms of retorsion include:
- Shutting of ports to vessels of an unfriendly State f.) Non-intercourse
- Revocation of tariff concessions not guaranteed
by treaty Consists of suspension of all commercial intercourse
- Display of naval forces near the waters of an with a state.
unfriendly State
g.) Pacific Blockade
c.) Reprisal
Any effort to cut off all maritime commerce between
Any kind of forcible or coercive measures whereby an enemy State and the rest of the world. The purpose
one State seeks to exercise a deterrent effect or obtain was not only to prevent goods from reaching the
91 | P a g e
enemy but also to prevent the enemy from exporting with the Purposes of the United Nations.” In effect, this
to the outside world and thereby suffering its war provision outlaws war.
economy. However, on the assumption that wars can always occur, there
arose the need to formulate laws that can humanize the conduct
Article 9 of the 1909 Declaration of London of war. The LAW OF WAR, which is procedural in nature,
concerning the Laws of Naval War, a declaration of defines the relation between belligerent States which had
blockade must specify: resorted to force to maintain disputed claims and their relations
with neutral States.
1.) The date when the blockade begins
2.) The geographical limits of the coastline under Policy of Philippines as Regards War
blockade
3.) The period within which neutral vessels may The 1987 Constitution provides that the Philippines renounces
come out war as an instrument of national policy, however, the Congress,
by a vote of 2/3 of both Houses in joint session assembled,
h.) Armed Intervention Without War voting separately, shall have the sole power to declare the
existence of the state of war. (1987 Consti Art. II, Sec. 2; Art.
i.) International Organizational Sanctions VI, Sec 23, par (1))
Protection of Nationals Abroad

Philippine Act on Crimes Against IHL, Genocide, and
Other Crimes Against Humanity (RA 9851)
Those who assert the right to defend nationals abroad argue that
the right to protect nationals abroad can be defended as an
- PURPOSE: mandates both State and Non-State
aspect of the right to self-defense in Article 51 since population groups to observe IHL standards and gives the victims
is an essential element of Statehood. Others, on the other hand, of war crime, genocide and crimes against humanity
argue that Article 2(4) does not prohibit it because it does not legal recourse.
compromise the “territorial integrity or political independence”
of a State. - STATE POLICIES
▪ Renunciation of war and adherence to a
Humanitarian Intervention policy of peace, equality, justice, freedom,
cooperation and amity with all nations;
Discussion of armed humanitarian intervention by States in ▪ Values the dignity of every human person
response to massive violation of human rights in another State and guarantees full respect of human rights;
begins with the prohibition of force in Article 2 (4). The ▪ Promotion of children as zones of peace;
prohibition is now jus cogens. The prevailing opinion is that ▪ Adoption of generally accepted principles of
intervention without the authorization of the Security Council international law;
violates international law. ▪ Punishment of the most serious crimes of
concern to the international community; and
▪ Ensure persons accused of committing grave
CHAPTER 15 – THE LAW OF WAR crimes under international law all rights for a
fair and strict trial in accordance with
Article 2(4) of the UN Charter provides that “All Members national and international law as well as
shall refrain in their international relations from the threat or accessible and gender-sensitive avenues of
use of force against the territorial integrity or political redress for victims of armed conflicts
independence of any state, or in any other manner inconsistent
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WAR ARMED CONFLICT 7. The 2000 Optional Protocol to the Convention on the
Rights of the Child on the involvement of children in
Contention between two or Exists whenever there is a
more States, through their resort to armed force armed conflict.
armed forces, for the between States or protracted
purposes of overpowering armed violence between
Kinds of Armed Conflicts Governed by IHL
each other and imposing governmental authorities
such conditions of peace as and organized armed groups
the victor pleases. or between such groups 1. International Armed Conflicts
within a State. (Prosecutor ▪ at least two (2) States are involved.
v. Dusko Tadic) ▪ It includes:
- all cases of declared war;
- International Humanitarian Law (IHL) is a set of rules - any other armed conflict which may
which seek, for humanitarian reasons, to limit the arise between two or more States
effects of armed conflict. It protects persons who are which are party to the Conventions,
not or ae no longer participating in the hostilities and even if the State of war is not
restricts the means and methods of warfare. IHL forms recognized by one of them; and
today a universal body of law. - all cases of partial or total
occupation of the territory of a State
- Universal Codification of IHL began in the 19th Party, even if said occupation meets
century. Since then, States have agreed to a series of with no armed resistance.
practical rules, based on the bitter experience of ▪ Governed by the Geneva Conventions and
modern warfare. These rules strike a careful balance Additional Protocol I
between humanitarian concerns and the military
requirements of States. 2. Non-International Armed Conflicts
▪ Restricted to the territory of a single state
- IHL deals with jus in Bello (justice in war), not with ▪ Involves either regular armed forces fighting
jus ad Bellum (justice of war). The legality of the war groups of armed dissidents, or armed groups
or the justification for the commencement of the fighting each other.
hostilities is irrelevant to IHL. ▪ Governed by the common Article 3 to the
four Geneva Conventions as well as by the
Sources of IHL Additional Protocol II.
▪ The following criteria are assessed as test for
International Humanitarian Law determining existence of internal armed
1. The four Geneva Conventions of 1949; conflict as distinguished from banditry/
2. Additional Protocols of 1977 relating to the protection unorganized and short-lived insurrections or
of victims of armed conflicts; terrorist activities
3. The 1954 Convention for the Protection of of Cultural a. Intensity of conflict – seriousness
Property in the Event of Armed Conflict, plus its two of attacks, spread of clashes over
protocols; territory and over a period of time,
4. The 1972 Biological Weapons Convention; increase of no. of government forces
5. The 1980 Conventional Weapons Convention and its and mobilization and distribution of
five protocols; weapons among both parties,
6. The 1993 Chemical Weapons Convention the 1997 whether conflict has attracted
Ottawa Weapons Convention on anti-personal mines; attention of U.N Security Council
and
b. Organization of the Parties –
existence of headquarter, designated
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zones of operation, and ability to difference between hostilities conducted by or on

procure, transport and distribute behalf of the UN and any other hostilities.
arms
Protected Persons in an Armed Conflict
3. War of National Liberation
1. A person wounded, sick or shipwrecked8, whether
▪ Conflict in which people are fighting against civilian of military;
colonial domination and alien occupation and 2. A prisoner of war or any person deprived of liberty for
against racist regimes in the exercise of their reasons related to armed conflict;
right of self-determination, as enshrined in 3. Civilian9 or any person not taking a direct part or
the UN Charter and the Declaration of having ceased to take part in the hostilities in the
Principles of International Law concerning power of the adverse party;
Friendly Relations and Co-operation among 4. Person who, before the beginning of hostilities, was
States in accordance with the UN Charter. considered a stateless person or refugee under the
▪ Conflict of international character relevant international instrument accepted by the
parties to the conflict concerned or under the national
legislation of the state of refugee or state of residence;
Who are bound by IHL
5. Member of the medical personnel assigned
exclusively to medical purposes/administration of
1. All actors to an armed conflict in international
medical units/operation of an administration of
conflicts, it binds all actors to an armed conflict; and
medical transports; or
2. All actors to an armed conflict in internal conflicts, it
6. Member of religious personnel exclusively engaged in
binds the government, as well as the groups fighting
the work of their ministry and attached to the armed
against it or among themselves.
forces of a party to conflict, its medical units or
medical transports or on-denominational, non-
NOTE: Individuals may be held criminally responsible for combatant military personnel carrying out functions
“grave breaches” of the Geneva Convention and of similar to religious personnel
Additional Protocol I, and for other serious violations
Combatants
of the laws and customs of war (war crimes). IHL
establishes universal jurisdiction over persons
- Individuals who are legally entitled to take part in the
suspected of having committed all such acts.
hostilities such as the armed forces, also includes
The rules of IHL applies to both the aggressor and
citizens who rise in a levee in masse and members of
the victim States. There is no adverse distinction based
organized resistance groups. They are subject to attack
on the nature or origin of the armed conflict or on the at any time.
causes espoused by or attributed to the Parties to the - They are obliged to distinguish themselves from the
conflict (Preamble of Additional Protocol I to the civilian population while they are engaged in an attack
Geneva Conventions of 1949). or in a military operation preparatory to an attac
The rules of the IHL also applies to the UN Forces
taking part in enforcement measures called by the
Security Council. Application of IHL is dependent on Persons hors de combat
the fact of hostilities occurring; there is no material
a. He is in the power of an adverse party;
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b. He clearly expresses an intention to surrender who does so but not through an act of false pretences
c. He has been rendered unconscious or is otherwise or deliberately in a clandestine manner.
incapacitated by wounds or sickness, and is therefor
incapable of defending himself; Prohibited Acts During War
Provided, that in any of these cases, he abstains from any hostile
1. Killing with treachery;
act and does not attempt to escape (Protocol I, Art. 41)
2. Bombing undefended places (i.e hospitals or places of
worship);
Prisoners of War 3. Pillaging a town or place;
4. Looting;
- Lawful combatants who have fallen into the power of 5. Employing poison or poisoned arms;
the enemy. However, non-privileged combatants (i.e 6. Deliberately bombing civilians; and
spies and mercenaries shall be considered prisoners of 7. Planting anchored mines
war.
Mercenary Prohibited Types of Weaponry
Any person who: 1. Explosive projectiles under 400 grams;

1. is specially recruited locally or abroad in order to fight 2. Poison or poisoned weapons;
in an armed conflict; 3. Arms, projectiles or materials calculated to cause
2. does, in fact, take a direct part in the hostilities; unnecessary suffering;
3. is motivated to take part in the hostilities essentially by 4. Expanding (“dum-dum”) bullets or projectile;
the desire for private gain and, in fact, is promised, by 5. Chemical and bacteriological weapons;
or on behalf of a Party to the conflict, material 6. Nuclear weapons; and
compensation substantially in excess of that promised 7. Cluster Munitions
or paid to combatants of similar ranks and functions in
the armed forces of that Party; Perfidy Ruses of War
4. is neither a national of a Party to the conflict nor a [Protocol I, Art. 37(1)] [Protocol I, Art. 37(2)]
resident of territory controlled by a Party to the Acts of inviting the Acts which are intended to
conflict; confidence of an adversary mislead adversary or to induce
5. is not a member of the armed forces of a Party to the to lead him to believe that he him to act recklessly but which
is entitles to, or is obliged to infringe no rule of International
conflict; and
accord, protection under the Law applicable in armed
6. has not been sent by a State which is not a Party to the
rules of International Law conflict. (Protocol I, Art.
conflict on official duty as a member of its armed applicable in armed conflict, 37([2])
forces. with intent to betray that
confidence (Protocol I, Art.
37(1)
Spies Prohibited Not Prohibited
Any person who engages in espionage. However, following

acts or attempting to gather information shall not be considered
espionage:
1. When made by a member of the armed forces who is
in his uniform.
2. When made by a member of the armed forces who is
a resident of territory occupied by an adverse Party
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- Feigning of an intent to - Use of camouflage contain them because they constitute intransgressible
negotiate under a flag of - Decoys principles of international customary law.
truce or of a surrender; - Mock Operations;
-Feigning of an - Misinformation
incapacitation by wounds or The Geneva Conventions of 1949
sickness;
Feigning of civilian, non- The Geneva Conventions are the four treaties adopted in
combatant status; 1949 that set the standards for the humanitarian law in armed
Feigning of protected status conflicts. Its essence is that persons not actively engaged in
by use of signs, emblems or warfare should be treated humanely. The rules apply to any
uniforms of the UN or of international armed conflict, whether a declared war or not.
neutral or other States not They consist of the following:
Parties to the conflict
1. Geneva Convention I - “for the Amelioration of the
The Hague Law Condition of the Wounded and Sick in Armed Forces
of the Field;”
The Hague Conventions of 1899 and 1907 were the 2. Geneva Convention II – “for the Amelioration of the
first multilateral treaties that addressed the conduct of Condition of the Wounded and Sick in Armed Forces
warfare. a Sea;”
3. Geneva Convention III – “relative to the Treatment
The principles adopted in these conferences constitute of Prisoners of War;”
that part of the law of armed conflict still known as the 4. Geneva Convention IV – “relative to the Protection
Law of the Hague governing land and naval warfare. Civilian Persons in Time of War.”
Although their contents have largely been superseded The three Protocols additional to the 1949 Geneva Conventions
by other treaties, the Hague Conventions of 1899 and
1907 continue to stand as symbols of the need for 1. Protocol I of 1977 – relating to the Protection of
restrictions on war and the desirability of avoiding it Victims of International Armed Conflicts;
altogether. 2. Protocol II of 1977 – relating to the Protection of
Victims of Non-International Armed Conflicts; and
Martens Clause 3. Protocol III of 2005 – relating to the Adoption of an
Additional Distinctive Emblem.
introduced in the preamble to 1899 Hague Convention
II on the Laws and Customs of War on Land, taking
International International Human
its name from a statement by Fyodor Fyodorovich
Humanitarian Law Rights Law
Martens, the Russian delegate at the Hague Peace
Complementary bodies of law
Conferences of 1899.
Seek to protect individual from arbitrary action and abuse;
“in cases not covered by the law in force, the human safeguard fundamental rights of the individual
person remains under the protection of the principles Specialized body of human Comprehensive insofar as
of humanity and the dictates of the public conscience” rights law, fine tuned for they cover almost all
times of armed conflict aspects of life
It implements rules of humanitarian law applicable in Takes into account the to be applied to all persons
special circumstances of and respected in all
armed conflict that are so fundamental to the respect
warfare; may not be circumstances, except in
of the human person and “elementary considerations abrogated under any emergency cases whee
of humanity,” that must be observed by all States circumstances. derogation from rights is
whether or not they have ratified the conventions that allowed
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3. Armistices – preliminary treaties of peace calling for

cessation of hostilities;
4. Negotiated treaties of peace – when hostilities ceased
Commencement and Terminations of Hostilities without either of the belligerents having such military
advantage over the other as to be able to impose its
Belligerency – status or condition of two or more entities will without resistance; and
5. Imposed Treaties of Peace – decisive victory of one
(usually States) being in a state of war o armed conflict.
of the belligerents leads it to impose its will upon the
other party without any pretense of bilateral
Qualifications of a Belligerent in a Civil War
negotiations
1. Commanded by a person responsible for his

subordinate;
Types of Suspension of Hostilities
2. Have a fixed distinctive emblem recognizable at a
distance;
1. Suspension of Arms – designate agreements between
3. Must carry arms openly; and
local commanders for a brief suspension of hostilities
4. Conducts their operations in accordance with the laws
for such purposes as the removal of the wounded or
and customs of war. (Art. 1, Hague Regulations of
the burial of the dead;
1907)
2. Armistice – more formal agreement concluded
between two or more States waging war against each
The effect of recognition of belligerency by third States is to
other and denoting the end of war, without, however,
confer on the belligerent a de facto international character in
restoring peace in the full sense of that term;
respect to the rights and duties of a legal warfare. This includes 3. Ceasefire – agreed cessation, local or general, of the
right of admission of ships of the belligerents into the ports of fighting within a period of armed conflict;
the recognizing states, right to borrow money on the credit of 4. Truce - agreement of longer duration and more
the de facto State the right to visit and search at sea, confiscation comprehensive purpose; and
of contraband goods and maintenance of blockade. 5. Capitulation
Commencement of War Principle of Postliminium (Jus Postliminii)
1. With the declaration of war; Revival or reversion to the old laws and sovereignty of territory
2. With the Rejection of an Ultimatum; and which has been under belligerent occupation once control of the
3. With the Commission of an Act of Force Regardeed belligerent occupant is lost over the official territory affected.
by at Least One of the Belligerents as an Act of War Applies only in times of war.
Termination of War Principle of Status Quo Ante Bellum
1. Subjugation – conquest of one belligerent by another Embodied in a treaty ending a war that provides that State
followed by formal annexation of the territory of the boundaries or borders will be restored to pre-war positions.
defeated State and the extinction of its sovereignty and
international personality;
2. Simple Cessation of Hostilities – without conclusion
of a formal treaty of peace
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Rule of Uti Possidetis 6. Reasonable chance of success; and

7. War may only be undertaken with the right intention.
“As you possess, so you may continue to possess.” Comes into
effect once the war is definitely at an end. Under this rule, each
belligerent is regarded as legally entitled to such property as Principles of Jus in Bello
was actually in its possession at the time hostilities ceased
1. It sets forth a moral framework for warfare and rejects
the notion that “anything goes” during the time of war.
Divisions of Law of War
There are restraints on the extent of harm, if any, that
can be done to noncombatants, and restraints on the
Jus ad Bellum Jus in Bello weapons of war.
Definition 2. It regulates the conduct of military forces during wars
Rules governing result to Rules governing the conduct or armed conflicts. It aims to safeguard human life and
force of hostilities; comprises the some other fundamental human rights, and to ensure
rights and obligations of that war is limited in its scope and level of violence.
neutral parties as well 3. It requires that the agents of war be held responsible
Purpose for their actions. International law suggests that every
Prohibit resort to force as a Imposes, for humanitarian individual, regardless of rank or governmental status,
means to settle dispute reasons, constraints on the is personally responsible for any war crime that he
between States conduct of war to limit might commit.
suffering and destruction
once armed conflict breaks Basic Rules Governing Armef Conflicts
out
Codification 1. Be a disciplined soldier. Disobedience of the laws of
The Hague Convention The four Geneva war dishonours your army and yourself and causes
(Hague Peace Conferences Conventions unnecessary suffering; far from weakening the
in 1989 and 1907) enemy’s to fight, it often strengthens it.
2. Fight only enemy combatants and attack only military

Just War Doctrine
objectives.
It defines when wars can be justly started (jus ad bellum) and

3. Destroy no more than your mission requires.
how they can be justly fought (jus in bello). The distinction is
to be drawn between a use of force that is in self-defense (UN
4. Do not fight enemies who are ‘out of combat’ [hors de
Charter, Art. 51) or authorized by the Security Council, on one
combat] or surrender. Disarm them and hand them
hand, and one that is not so justified and thereby unlawful on over to your superior.
the other.
5. Collect and care for the wounded and sick, be they
Conditions for Jus ad Bellum friend or foe.
1. Just cause based on an injury received; 6. Treat all civilians and all enemies in your power with
2. War must be proportional to the costs entailed in humanity.
prosecuting them;
3. Nations must publicly declare their wars;
7. Prisoners of war must be treated humanely and are
4. Only a legitimate authority may declare war; bound to give only information about their identity. No
5. War must always be a last resort;
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physical or mental torture of prisoners of war is subjected to physical or mental torture, corporal
permitted. punishment or cruel or degrading treatment.
8. Do not take hostages. 6. Parties to a conflict and members of their armed forces
do not have an unlimited choice of methods and means
9. Abstain from all acts of vengeance. of warfare. It is prohibited to employ weapons or
methods of warfare of a nature to cause unnecessary
10. Respect all person’s objects bearing the emblem of the losses or excessive suffering. (Principle of Humanity)
red cross, red crescent, red lion and sun, the white flag
of truce or emblems designating cultural property. 7. Parties to a conflict shall at all times distinguish
between the civilian population and combatants in
11. Respect other people’s property. Looting is prohibited. order to spare civilian population and property.
Neither the civilian population as such nor civilian
12. Endeavour to prevent any breach of the above rules. persons shall be the object of attack. Attacks shall be
Report any violation to your superior. Any breach of
directed solely against military objectives. (Principle
the law of war is punishable.
of Distinction/Discrimination)
Fundamental Rules (Basis of the Geneva
Conventions And The Additional Protocols) Non-International Armed Conflicts
1. Persons hors de combat (out of combat/out of the A. General Rules

fight) and those who do not take a direct part in
hostilities are entitled to respect for their lives and their 1. The obligation to distinguish between combatants and
moral and physical integrity. They shall in all civilians is a general rule applicable in non-
circumstances be protected and treated humanely international armed conflicts. It prohibits
without any adverse distinction. indiscriminate attacks.
2. It is forbidden to kill or injure an enemy who 2. The prohibition of attacks against the civilian
surrenders or who is hors de combat. population as such or against individual civilians is a
general rule applicable in non-international conflicts.
3. The wounded and sick shall be collected and cared for Acts of violence intended primarily to spread terror
by the party to the conflict which has them in its among the civilian population are also prohibited.
power. Protection also covers medical personnel,
establishments, transports and equipment. The 3. The probation of superfluous injury or unnecessary
emblem of the Red Cross or the Red Crescent is the suffering is a general rule applicable in non-
sign of such protection and must be respected. international conflicts. It prohibits, in particular, the
use of means of warfare which uselessly aggravate the
4. Captured combatants and civilians under the authority sufferings of disabled men or render their death
of an adverse party are entitled to respect for their inevitable.
lives, dignity, personal rights and convictions. They
shall be protected against all acts of violence and 4. The prohibition to kill, injure or capture an adversary
reprisals. They shall have the right to correspond with by resort to perfidy is a general rule applicable in non-
their families and to receive relief. international armed conflicts; in a non-international
armed conflict, acts inviting the confidence of an
5. Everyone shall be entitled to benefit from fundamental adversary to lead him to believe that he is entitled to,
judicial guarantees. No one shall be held responsible or is obliged to accord protection under the rules of
for an act he has not committed. No one shall be international law applicable in non-international
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armed conflicts, with intent to betray that confidence, combatants and civilians and on the immunity of the
shall constitute perfidy. civilian population, mines, booby-traps and other
devices within the meaning of Protocol II to the 1980
5. The obligation to respect and protect medical and Convention on conventional weapons may not be
religious personnel and medical units and transports in directed against the civilian population as such or
against individual civilians, nor used indiscriminately.
the conduct of military operations is a general rule
applicable in non-international armed conflicts.
The prohibition of booby-traps listed in Article 6 of
the Protocol extends to their use in non-international
6. The general rule prohibiting attacks against the armed conflicts, in application of the general rules on
civilian population implies, as a corollary, the the distinction between combatants and civilians, the
prohibition of attacks on dwellings and other immunity of the civilian population, the prohibition of
installations which are used only by the civilian superfluous injury or unnecessary suffering, and the
population. prohibition of perfidy.
7. The general rule prohibiting attacks upon the civilian To ensure the protection of the civilian population
population implies, as a corollary, the prohibition to referred to in the previous paragraphs, precaution must
attack, destroy, remove or render useless objects be taken to protect it from attacks in the form of mines,
booby-traps and other devices.
indispensable to the survival of the civilian population.
5. In application of the general rules listed in section A
8. The general rule to distinguish between combatants above, especially those on the distinction between
and civilians and the prohibition of attacks against the combatants and civilians and on the immunity of the
civilian population as such or against individual civilian population, incendiary weapons may not be
civilians implies, in order to be effective, that all directed against the civilian population as such,
feasible precautions have to be taken to avoid injury, against individual civilians or civilian objects, nor
loss or damage to the civilian population. used indiscriminately.
Neutrality
B. Prohibitions and Restrictions on the Use of Certain
Weapons What is Neutrality?
1. The customary rule prohibiting the use of chemical Neutrality is the legal position of a State which remained aloof
weapons, such as those containing asphyxiating or from a war between two other States or groups of States while
vesicant agents, and the use of bacteriological maintaining certain rights towards the belligerents and
(bacterial) weapons is applicable in non-international observing certain duties prescribed by customary law or by
armed conflicts. international conventions or treaties.
2. The customary rule prohibiting bullets which expand Neutralized States

or flatten easily in the human body, such as Dum-Dum
bullets, is applicable in non-international armed
conflicts. These are States upon which the status of permanent neutrality
in all future wars was formally imposed by a group of great
3. The customary rule prohibiting the use of poison as a
powers.
means of warfare is applicable in non-international
armed conflicts. How Does a State Become a Neutral State?
The act of neutralization generally took the form of a treaty
4. In application of the general rules listed in section A
above, especially those on the distinction between between the parties and was as a rule accompanied by a
100 | P a g e
guarantee of the independence and territorial integrity of the belligerents any neutralized State and
neutralized State. time it sees fit. other States
How does Neutrality terminate? Governing Laws of Nations Neutralization
Neutrality terminates upon: Laws Agreement Agreement
1. Conclusion of a treaty of peace between the When Only during war Operates in times of
belligerents; or Applicable peace and war
2. Joining of neutral state in the war
Duties of Belligerent States and Neutral States Towards
Neutrals
Each Other
Neutrals are nationals of a State which is not taking part in the
war (Hague V, Art. 16) 1. Duty of Non-participation
Characteristics of a Neutralized State
Abstain from taking part in the hostilities and from giving
A neutralized State:
assistance to either belligerent by sending troops, official grants
1. Has permanent neutrality
of loans, or carriage of contraband. XPN: humanitarian
2. has neutrality guaranteed by a treaty; and
assistance of victims of the conflict even if for the benefit of
3. is obliged to maintain its status of neutrality
only one party to the conflict
2. Duty to prevent its territory from being used by the
Neutralized State V. Neutral State
belligerents in the conduct of hostilities.
NEUTRALIZED NEUTRAL 3. Duty to acquiesce in certain restrictions and
Permanent Neutrality Temporary Neutrality limitations that the belligerents may find necessary to
Neutrality guaranteed by Neutrality is purely impose, especially in connection with international
explicit agreement of a discretionary upon the said commerce, such as
limited number of powers Neutral State a. Blockades
Has an obligation to remain Has NO obligation to
A hostile operation by which the vessel and aircraft of one
neutralized maintain its attitude of
belligerent prevent all other vessels, including those of neutral
neutrality
states, from leaving or entering the ports or coast of the other
belligerent.
Neutrality Neutralization
Purpose: shut off the place from international commerce and
Under what Dependent on the Result of a treaty
communication with other States.
circumstance attitude of the wherein duration and
Requisites to Be Valid:
will it exist? neutral State, other conditions are
1. Binding and duly communicated to neutral States;
which is free to agreed upon by
2. Effective and maintained by adequate forces;
join either of
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3. Established by a competent authority of the belligerent Doctrine of Ultimate Consumption

government Are the goods of a neutral found on board an enemy’s
4. Limited only to the territory of the enemy; and vessel liable to seizure as prize of war? (Bar 1921)
5. Impartially applied to all States

No, except if they constitute contraband of war.
b. Visit and Search
- Goods intended for civilian use which may ultimately
Belligerent warships and aircrafts have the right to visit and
find their way to and be consumed by belligerent
search neutral merchant vessels to determine whether they are
forces, may be seized on the way.
in any way connected with the hostilities.
c. Authority of Prize Courts Doctrine of Infection
- Innocent goods shipped with contraband may also be
Prize must not be confiscated summarily but must be brought
seized.
before a prize court.
Contraband of War
2. Conditional Contraband – useful both in war and out
Contraband of war refers to any item or goods that are of a of war, such as money, provisions, ships, and other
military character or which may give military advantage that a fittings.
belligerent may lawfully seize or confiscate from neutrals who ❖ GN: Conditional contraband not liable to capture
are attempting to supply them to its enemy. XPN: when
1) found on board a vessel bound for territory
Types of Contrabands: belonging to or occupied by the enemy, or
1. Absolute Contraband – destined to the enemy and for the armed forces of the enemy, or for
which are of a military character or which would give the armed forces of the enemy; and
it some military advantage, such as arms and 2) not to be discharged in an intervening
ammunitions neutral port.
3. Free list – exempted from the law for humanitarian
Doctrine of Continuous Voyage and Ultimate Destination
purposes. (i.e. medicines)
- Absolute contraband is liable to capture if it is shown
to be destined to territory belonging to or occupied by
Prize
the enemy or to the armed forces of the enemy.
- It is immaterial whether the carriage of goods is direct Vessels or cargo which may be seized, with or without the
or entails transhipment or a subsequent transport by consent of the captain or master of the vessel captured and
land. detained, and then brought before a national prize court to be

condemned for the use of the captor.
GN: Ships = object of prize
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XPN: aircraft and cargo can also be considered as prize as long authorities and organized armed groups or between such groups
as capture is done in a port or at sea. within a State.
• Two Criteria (used to differentiate armed conflict from
Duties of Belligerents banditry, unorganized and short-lived insurrections, or
terrorist activities, which are not subject to International
1.) Duty to respect the status of the neutral state; and
Humanitarian law.)
2.) Duty to avoid any act that will directly or indirectly involve
1) Intensity of the Conflict
it in their conflict and submitting to any lawful measure it
a. Seriousness of the attacks and whether there has
may take to maintain or protect its neutrality.
been an increase in armed clashes;
b. spread of clashes over territory and over a period
Rights of Neutral States and Belligerent States
of time;
1. Right Not to Be Adversely Affected c. increase in number of government forces and
mobilization,
The neutral State has the right not to be adversely affected by
d. distribution of weapons among both parties to the
the conflict meaning that the relationship between the neutral
conflict; and
and belligerent States is governed by the law of peace.
e. whether conflict has attracted the attention of the
The territory of the neutral state is inviolable, and it is
U.N. Security Council, and whether any
prohibited to commit any act of hostility whatsoever on such
resolution on the matter have been passed.
territory. The neutral State may use military force to defend its
2) Organization of the Parties
neutrality if it is a legitimate self-defense against an armed
a. Existence of headquarters
attack.
b. Existence of designated zones of operation
2. Right of Angary
c. Existence of ability to procure, transport, and
The right of belligerent State, in cases of extreme necessity, to distribute arms.
destroy or use neutral property on its own or on enemy territory,
Civil Wars
or on the high sea.
--------------------------- Civil wars or rebellion do not violate international law. (Bernas,
Non-International Conflicts 2009)
Armed conflicts restricted to the territory of a single State, • Outside help for governments experiencing rebellion
involving either regular armed forces fighting groups of armed is generally considered legitimate provided requested
dissidents, or armed groups fighting each other. by the government.
Test in determining the existence of an international armed • Aid to rebels is against international law.
conflict
The test is whether there is a resort to armed force between
States or protracted armed violence between governmental
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The 1970 Declaration on Principles of International Law guarantees which are recognized as indispensable by
civilized peoples.
“No State shall organize assist, forment, finance, incite or 2. The wounded and sick shall be collected and cared for.
tolerate subversive, terrorist or armed activities directed An impartial humanitarian body, such as the International
towards the violent overthrow of the regime of another state, or Committee of the Red Cross, may offer its services to the Parties
interfere in civil strife in another state.” to the conflict. The Parties to the conflict should further
endeavor to bring into force, by means of special agreements,
all or part of the other provisions of the present Convention.
Common Article 3
The application of the preceding provisions shall not affect the
• Geneva Conventions of 1949, Art. 3. legal status of the Parties to the conflict.
In the case of armed conflict not of an international character

• Common Article 3 has now acquired the status of
occurring in the territory of one of the High Contracting
customary law (Prosecutor v. Naletilic, ICTY-IT-98-34-
Parties, each Party to the conflict shall be bound to apply, as a
T, March 31, 2003)
minimum, the following provisions:
1. Persons taking no active part in the hostilities, including
• Common Article 3 is also applicable to International
members of armed forces who have laid down their arms
Armed Conflicts
and those placed ' hors de combat ' by sickness, wounds,
detention, or any other cause, shall in all circumstances be Protocol II
treated humanely, without any adverse distinction founded
Protocol II supplements Common Article 3 by expanding the
on race, colour, religion or faith, sex, birth or wealth, or
material application of the said article to all armed conflicts
any other similar criteria.
which are not of an international character and which take place
To this end, the following acts are and shall remain
in the territory of a State party to the Geneva Conventions
prohibited at any time and in any place whatsoever with
between its armed forces and dissident armed forces or other
respect to the above-mentioned persons:
organized armed groups.
a. violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture;
b. taking of hostages; Requirements for Material Field of Application
c. outrages upon personal dignity, in particular
1. Armed dissidents must be under responsible command
humiliating and degrading treatment;
2. Armed dissidents must exercise such control over a part of
d. the passing of sentences and the carrying out of
its territory as to enable them to carry out sustained and
executions without previous judgment pronounced by a
concerted military operations and to implement this
regularly constituted court, affording all the judicial
Protocol
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Does Common Article 3 impose individual criminal “Any act or thereat of violence, whatever it motives or
responsibility? purposes, that occurs in the advancement of an individual or
Yes, violations of Common Article 3 entail individual collective criminal agencda and seeking to sow panic among
criminal responsibility for war crimes. Principles and rules
people, causing fear by harming them, or placing their lives,
of humanitarian law reflect “elementary considerations of
humanity” widely recognized as the mandatory minimum for liberty or security in danger, or seeking to cause damage to the
conduct in armed conflicts of any kind. No one can doubt the environment or to public or private installations or property or
gravity of acts at issue or the interest of the international
to occupy or seize them, or seeking to jeopardize a national
community in their prohibition. (Prosecutor v. Tadić,
Appeals Chamber, Octoboer 2, 1995) resource.”
Article 1 of the Convention of the Organization of Islamic
Conference on Combatting International Terrorism
adopted at Ougadougou on July 1, 1999
“Any act of violence or threat thereof notwithstanding its
Note: Due to lack of control over territory, National
motives or intentions perpetrated to carry out an individual or
Democratic Front and its New People’s Army is still covered
collective criminal plan with the aim of terrorizing lives, honor,
by Common Article 3 and not Protocol II.
freedoms, security or rights or exposing the environment or any
• When Protocol II does not apply (even if armed forces
facility or public or private property to hazards or occupying
of the territory were called to suppress such disorder;
or seizing them, or endangering a national resource, or
ALSO NOT APPLICABLE TO COMMON ARTICLE
international facilities, or threatening the stability, territorial
3)
integrity, political unity or sovereignty of independent States.”
1. Riots
International Convention for the Suppression of the
2. Isolated and sporadic acts of violence Financing of Terrorism – adopted by the U.N. General
3. Other acts of a similar nature Assembly on December 9, 1999.
“Any person commits an offense [of terrorism] within the
Reason: Not considered as armed conflicts meaning of this Convention if that person, by any means,
--------------------------- unlawfully and intentionally, does an act intended to cause (a)
International Terrorism death or serious bodily injury to any person, or (b) serious
To date, a consensus for a universally accepted definition of damage to a State or Government facility with the intent to
terrorism has not be reached by the international community. cause extensive destruction of such a place, facility or system,
However, several attempts were made. or where such destruction results or is likely to result in major
1937 Draft International Convention for the Prevention and economic loss, when the purpose of such act, by its nature or
Punishment of Terrorism – NEVER ADOPTED
“all criminal acts directed against a State and intended to context, is to intimidate a population, or to compel a
create a State of terror in the minds of a particular persons or Government or an international organization to do or abstain
group of persons or the general public.” from doing any act.”
Article 1 of the Arab Convention on the Suppression of

Terrorism signed in Cairo on April 22, 1988
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International Convention for the Suppression of the 2. Provides for identification, freezing and seizure of
Financing of Terrorism – adopted by the U.N. General
funds allocated for terrorist activities, as well as
Assembly as Resolution No. 54/109 on Feb. 25, 2000
“Any other act intended to cause death or serious bodily injury sharing of forfeited funds with other States. BANK
to a civilian, or ot any other person not takin an active part in SECRECY WILL NO LONGER BE A
the hostilities in a situation of armed conflict, when the purpose JUSTIFICATION FOR REFUSING TO
of such act, by its nature or context is to intimidate a population, COOPERATE
or to compel a Government or an international organization to
International Convention for the Suppression of Terrorist
di or to abstain from doing any act.” Bombings
Elements Agreed Upon:
1) Creates regime of universal jurisdiction over unlawful
1) Use or threat of use of force
and intentional use of explosives etc against various
2) Seeking to create a climate of fear
defined public places with intent to kill, cause serious
bodily harm or extensive destruction
State Terrorism V. State Sponsored Terrorism
1970 Hague Convention for the Suppression of
State Terrorism refers to acts of one State against another Hijackings
or its nationals and done either by the State or 1) Makes hijacking punishable.
commissioned or adopted by it. It includes widespread acts 1963 Tokyo Convention on the Safety of Aviation
of cruelty committed by a State against its own people 1. Authorized aircraft commander to impose reasonable
State Sponsored Terrorism refers to state sheltering, measures, including restraint, on any person he or she
training, financing or supplying arms to enable terrorists, has reason to believe has committed, or is about to
often foreign, to attack another State or its nationals. commit acts affecting in-flight safety when necessary
to protect safety of aircraft.
Effect of The September 11 Attack
Convention for the Suppression of Unlawful Acts Against
The magnitude of the attack of September 11 was such that it the Safety of Maritime Navigation (Rome, March 10, 1998)
persuaded the Security Council and the North Atlantic Treaty 1. Applies on terrorist activities on ships
Organization to issue resolutions which in effect justified resort 1979 Hostages Convention (New York, December 18,
to Art. 51 of the UN Charter on collective self-defense without 1979)
waiting for action by the Security Council. 1. Hostage taking – any person who seizes or detains
Major International Conventions/Laws Against Terrorism and threatens to kill, to injure, or to continue to detain
another person in order to compel a third party, namely
International Convention for the Suppression of the
Financing of Terrorism , a State, an international intergovernmental
1. Commits States to hold financers of terrorism organization, a natural or juridical person, or a group
criminally, civilly, or administratively liable of persons, to do or abstain from doing any act as an
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explicit or implicit condition for the release of the

hostage.
Security Council Resolution no. 1368 (September 12, 2001)
1973 Convention on the Prevention and Punishment of 1. Unequivocally condemns the attack which took place
Crimes Against Internationally Protected Persons (New
York, December 14, 1973) on September 11, 2001 in New York, Washington.
2. Calls all States to cooperate to serve justice
1. Internationally Protected Person – Head of State, a
3. Expresses its readiness to take all necessary steps to
Minister for Foreign Affairs, a representative or
respond to the terrorist attacks of September 11, 2001
official of a State or of an international organization
and to combat all forms of terrorism.
who is entitled to special protection from attack under
UN Security Council Resolution no. 1373 (September
International law.
28, 2001)
1973 Montreal Convention on Air Safety (January 26, 1973)
a. Reaffirms the principle that every State has the
1. Applies to acts of sabotage – any person unlawfully duty to refrain from organizing, instigating,
assisting or participating in terrorist acts in
and intentionally perform an act of violence against a another State or acquiescing in organized
person on board an aircraft in flight if such act will activities within its territory.
b. All States shall:
likely endanger safety of said aircraft; placing c. Prevent and suppress the financing of terrorist
explosives. acts
d. Criminalize the financing of terrorist acts; and
e. Freeze all the funds, assets or resources of persons
Protocol for the Suppression of Unlawful Acts of Violence who commit, or attempt to commit, terrorist acts
at Airports Serving International Civil Aviation (Montreal, or participate in or facilitate the commission of
terrorist acts.
February 24, 1988)
Are terrorist acts subject to International Humanitarian
1) Supplements 1988 Montreal Convention on Air Safety Law (IHL)?
to encompass terrorist acts at airports serving

No. As decided in the case of Prosecutor v. Limaj, et al.,
international civil aviation. Banditry, unorganized and short-lived insurrections, and
terrorist activities are not subject to International Humanitarian
Law.
Important Resolutions Passed by the Security Council After
9/11
CHAPTER 16 – INTERNATIONAL
What does Aut Dedere Aut Judicare mean? ENVIRONMENTAL LAW
This principle requires a State to extradite or prosecute who INTERNATIONAL ENVIRONMENTAL LAW
commits acts of terrorism. This principle can be found in nearly
every universal or regional convention and treaty relating to the International Environmental Law is a law adopted by
fight against terrorism. sovereign states to define standards at the international level. It
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prescribes the obligations and regulates behavior in environmental management and control, preservation
international relations in matters affecting the environment. of the quality of human life and ecological systems,
and the prevention of undue ecological disturbances,
Environmental Concerns deterioration and pollution.
Concern on the environment is expressed in the 1987 Philippine The decision was based on Article II, Section 16 of the
Constitution under a provision which states that: Constitution and on the Universal Human Rights Declaration of
1978.
“Article II, Section 16 – The State shall protect and
advance the right to a balanced and healthful ecology in accord The role of the government particularly the its
with the rhythm and harmony of nature.” agencies and the local government units are further
strengthened as supported in the cases of Social Justice Society
The State firmly bolstered the right of the people to a balanced v. Atienza and Metropolitan Manila Development Authority
and healthful ecology through Philippine Jurisprudence (MMDA) v. Concerned Residents of Manila Bay.
namely:
In the case of Social Justice Society v. Atienza, the
In the case of Oposa v. Factoran, Jr., for the first time Court ruled that was enactment pursuant to the police
in our nation's constitutional history, is solemnly power delegated to local government units of a
incorporated in the fundamental law as explicitly principle described as the power inherent in a
provided in Article II, Section 16 of the 1987 government to enact laws, within constitutional limits,
Constitution. The Court held that the provision being to promote the order, safety, health, morals and
fundamental in nature, it being explicitly expressed general welfare of the society is valid. The ordinance
highlights its “continuing importance and imposing was intended to safeguard the rights to life, security
upon the state a solemn obligation to preserve the first and safety of its inhabitants. Local government units
and protect and advance the second, the day would not only protected the interests of the public and are in the
be too far when all else would be lost not only for the best position to determine its needs and how to address
present generation, but also for those to come — it.
generations which stand to inherit nothing but parched
earth incapable of sustaining life. The right to a In the case of MMDA v. Concerned Residents of
balanced and healthful ecology carries with it the Manila Bay, it was held that it is within their mandate
correlative duty to refrain from impairing the to clean up the Manila Bay as R.A. 3009, among
environment.” others, is enacted to radically transform and improve
waste management. It implements Sec. 16, Art. II of
In the case of Laguna Lake Development Authority the 1987 Constitution, which explicitly provides that
(LLDA) v. Court of Appeals, the Court ruled on the the State shall protect and advance the right of the
obvious responsibility of the LLDA to protect the people to a balanced and healthful ecology in accord
inhabitants of the Laguna Lake region from the with the rhythm and harmony of nature. “Even
deleterious effects of pollutants emanating from the assuming the absence of a categorical legal provision
discharge of wastes from the surrounding areas as they specifically prodding petitioners to clean up the bay,
were mandated to carry out and make effective the they and the men and women representing them
declared national policy of promoting and accelerating cannot escape their obligation to future generations of
the development and balanced growth of the Laguna Filipinos to keep the waters of the Manila Bay clean
Lake area and the surrounding provinces and cities and clear as humanly as possible. Anything less would
with due regard and adequate provisions for be a betrayal of the trust reposed in them.”
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As previously mentioned, International Environmental Law is is established the right of the current generation to utilize and
a law adopted by sovereign states to define standards at the enjoy the environment and its resources is coupled with an
international level. It prescribes the obligations and regulates obligation to preserve and sustain it for the future generations
behavior in international relations in matters affecting the of mankind.
environment. Protection of the environment is therefore an
international concern. Environmental rights stem from the basic principle of
justice leading to environmental justice, the latter engaging the
Environmental concerns are not limited to atmosphere, union of environmental laws and social justice — as
the sea, the land, flora and fauna but also about the preservation environmental justice embodies the idea that individuals should
of the cultural heritage of mankind. The goal of environmental be able to interact with confidence that their environment is
protectionists is the rational use of the elements that make up safe, nurturing and productive. (Charles Lee)
the environment through control, reduction and, wherever
possible, elimination of the causes of environmental The Court held Canada liable for the damage and
degradation. However, due to the conflicting interests injury it caused to the State of Washington in Trail
combined with social and economic crisis while taking into Smelter Arbitration U.S. v. Canada. Quoting from the
consideration issues on sovereignty and state responsibility, the latter: “as Professor Eagleton puts it Responsibility of
attainment of such goal is arduous. States in International Law, 1928, p. 80: “A State owes
at all times a duty to protect other States against
Environmental Rights injurious acts by individuals from within its
jurisdiction.”
“As the ICJ pronounced in the Danube Dam Case
(ICJ Rep. 1997): “The protection of the environment is a ... vital Among other cases heard by the ICJ, it was ruled out
part of contemporary human rights doctrine, for it is a sine qua in the Nuclear Test Cases that atmospheric nuclear
non for numerous human rights such as the right to health, and testing was a breach of customary international law
the right to life itself.” and would also infringe its sovereignty over its
territory.
❖Environmental Rights are components of human
rights. Simply put, “everyone has the right to a clean, safe and healthy
environment”. (Shijuade Kadree)
Article 25 of the Universal Declaration of Human
Rights states that: Sustainable Development
“Everyone has the right to a standard of living
adequate for the health and well-being of himself and The concept of sustainable development is adopted by
of his family…” the World Commission on Environment and Development,
encouraging development in a manner and according to the
Persons capable of having rights are the real objects of methods which do not compromise the ability of the future
protection in terms of environmental rights. Philippine generation. Inspired by the words of Justice Douglas in Sierra
Jurisprudence further elaborated such right in the case of Oposa Club v. Morton, the common notion as expressed in various
v. Factoran, Jr. In the case presented, the principal petitioners jurisprudence, that we need not wait for an actual situation
were all minors represented by their parents, the former where the environmental rights of other generations are
pronouncing that they "represent their generation as well as compromised to act on any occurrence associated with such
generations yet unborn." The Supreme Court recognized the matter.
existence of such right and expounded on the concepts of "inter-
generational responsibility" and "inter-generational justice." It
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Emerging Principles development potential of developing countries, nor should they

hamper the attainment of better living conditions for all
Various principles of environmental protection are gradually
being developed and are coming out from various conferences. Principle 13. States should adopt an integrated and coordinated
Significant are the 1972 Stockholm Declaration on the approach to their development planning so as to ensure that
Human Environment and the 1992 Rio Declaration on development is compatible with the need to protect and improve
Environment and Development. These declarations, environment for the benefit of their population.
however, do not have the force of law.
Principle 21. States have, in accordance with the Charter of the
Stockholm Declaration United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their
The 1972 Stockholm Declaration on the Human Environment own environmental policies, and the responsibility to ensure
was formulated in a UN Conference on the Human that activities within their jurisdiction or control do not cause
Environment by 113 states. The Conference calls upon damage to the environment of other States or of areas beyond
Governments and peoples to exert common efforts for the the limits of national jurisdiction. (Principle of Good
preservation and improvement of the human environment, for Neighborliness, recognized today as the basic norm of
the benefit of all the people and for their posterity. customary international law)
Notable principles under the Stockholm Declaration: Principle 26. Man and his environment must be spared the
effects of nuclear weapons and all other means of mass
Principle 1. Man has a fundamental right to freedom, equality destruction.
and adequate conditions of life, in an environment of a quality
that permits a life of dignity and well-being, and he bears a Rio Declaration
solemn responsibility to protect and improve the environment
for present and future generations. (Principle of The UN Conference on Environment and Development
Intergenerational Equity) sponsored another conference in Brazil which was attended by
170 states. The Conference came out with the 1992 Rio
Principle 4. Man has a special responsibility to safeguard and Declaration on Environment and Development.
wisely manage the heritage of wildlife and its habitat
Notable principles under the Rio Declaration:
Principle 6. The discharge of toxic substances or of other
substances and the release of heat, in such quantities or Principle 1. Human beings are at the centre of concerns for
concentrations as to exceed the capacity of the environment to sustainable development. They are entitled to a healthy and
render them harmless, must be halted in order to ensure that productive life in harmony with nature.
serious or irreversible damage is not inflicted upon ecosystems.
The just struggle of the peoples of ill countries against pollution Principle 2. States have, in accordance with the Charter of the
should be supported. United Nations and the principles of international law, the
sovereign right to exploit their own resources pursuant to their
Principle 7. States shall take all possible steps to prevent own environmental and developmental policies, and the
pollution of the seas responsibility to ensure that activities within their jurisdiction
or control do not cause damage to the environment of other
Principle 11. The environmental policies of all States should States or of areas beyond the limits of national jurisdiction.
enhance and not adversely affect the present or future (Principle of Good Neighborliness)
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Principle 15. In order to protect the environment, the 4. Kyoto Protocol which seeks to protect the
precautionary approach shall be widely applied by States atmosphere.
according to their capabilities. Where there are threats of 5. Convention on International Trade in Endangered
serious or irreversible damage, lack of full scientific certainty Species of Wild Fauna and Flora, 1973
shall not be used as a reason for postponing cost-effective 6. Convention on Biological Diversity, 1992
measures to prevent environmental degradation.
(Precautionary Principle) Regional Conventions:
1. Treaty of Rome of 1957 (European Union)
Requisites of Precautionary Principle: 2. North American Agreement on Environmental
Cooperation
1. There are threats of serious of irreversible damage to 3. Protocol on Environmental Protection to the Antarctic
the environment, Treaty of 1991
2. Lack of full scientific certainty in establishing a causal 4. Amazon Declaration of 1989
link between human activity and environmental effect,
and Principle of Common Heritage of Humankind vs. Principle
3. Cost-effective measures to prevent environmental of Common Concern of Humankind
degradation shall not be postponed (International
Service for the Acquisition of Agri-biotech - The Principle of Common Heritage of Humankind
Applications, Inc. v. Greenpeace Southeast Asia (or “Mankind) maintains that all humans have a stake
(Philippines)) in resources located outside of the territories of the
States, such as the high seas, the deep seabed,
Principle 16. National authorities should endeavour to promote Antarctica, and the outer space. As such, no one State
the internalization of environmental costs and the use of should be able to exhaust the resources of these global
economic instruments, taking into account the approach that the commons and all are obliged to cooperate peacefully
polluter should, in principle, bear the cost of pollution, with due in managing them. The Principle of Common Concern
regard to the public interest and without distorting international of Humankind, which is less widely adopted in
trade and investment. (Polluter Pays Principle) agreements, speaks to a similar concept with respect to
resources located within the territories of States. Thus,
Principle 17. Environmental impact assessment, as a national even though most biological diversity is located within
instrument, shall be undertaken for proposed activities that are States, the preamble of the Convention on Biological
likely to have a significant adverse impact on the environment Diversity (CBD) asserts that “the conservation of
and are subject to a decision of a competent national authority. biological diversity is a common concern of
(Environmental Impact Assessment Principle) humankind.”
Some conventions which are legally binding on the parties: Long-range transboundary air pollution
1. Law of the Sea, Articles 192-194 on prohibitions on
marine pollution - “Long-range transboundary air pollution” means air
2. Vienna Convention for the Protection of the Ozone pollution whose physical origin is situated wholly or
Layer of 1985 in part within the area under the national jurisdiction
3. United Nations Conference on Environment and of one State and which has adverse effects in the are
Development, 1992 which seeks to achieve under the jurisdiction of another State at such a
“stabilization of greenhouse gas concentration in the distance that it is not generally possible to distinguish
atmosphere at a level that would prevent dangerous the contribution of individual emission sources or
anthropogenic interference with the climate system.” groups of sources.
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Good Neighborliness Principle Conference on Environment and Development, also

known as the “Earth Summit” – it reaffirms the
- This principle prohibits States from using or Stockholm Declaration with the goal of establishing a
permitting the use of its territory in a manner that is new and equitable global partnership through the
injurious to another State, or that other State’s person creation of new levels of cooperation among States,
or property. This principle is now codified in Principle key sectors of societies and people.
21 of the Stockholm Declaration and in Principle 2 of
the Rio Declaration. Important principles contained in the Stockholm
Declaration on the Human Environment
Roman law that underlies the Good Neighborliness
Principle a. Principle 1: Man has the fundamental right to
freedom, equality and adequate conditions of life, in
- Sic utere tuo ut alienum non laedas. So use your an environment of a quality that permits a life of
own as not to injure the rights of others. dignity and well-being, and he bears a solemn
responsibility to protect and improve the environment
Possible bases of liability for transboundary pollution for present and future generations.
under International Law b. Principle 21 (Principle of Good Neighborliness):
States have the sovereign right to exploit their own
- There are several theories of liability for resources pursuant to their own environmental
transboundary pollution. These includes: policies, and the responsibility to ensure that activities
within their jurisdiction or control do not cause
a. An absolute duty to protect against harm damage to the environment of other States or of areas
from ultrahazardous activities, which if beyond the limits of national jurisdiction.
violated, results in a State being held strictly c. Principle 22: States shall cooperate to develop further
liable; the International Law regarding liability and
b. “Abuse of Rights” Theory: responsibility for compensation for the victims of pollution and other
negligent or intentional acts; and environmental damage caused by activities within the
c. “Good Neighborliness” Principle: liability jurisdiction or control of such States to areas beyond
for a State which permits transboundary their jurisdiction.
pollution to exceed that which its neighbors
can reasonably be expected to endure. Some important principles contained in the 1992 Rio
Declaration (Earth Summit)
a. Principle 1: Human beings are at the center of

concerns for sustainable development. They are
entitled to a healthy and productive life in harmony
Major instruments that have shaped the modern
with nature.
development of international environmental law
b. Principle 2: States have the sovereign right to exploit
their own resources pursuant to their own
a. The Stockholm Declaration on the Human
environmental and developmental policies, and the
Environment which was adopted at the 1972 U.N.
responsibility to ensure that activities within their
Convention on the Human Environment, held in
jurisdiction or control do not cause damage to the
Stockholm, Sweden.
environment of other States or of areas beyond the
b. The Rio Declaration on Environment and
limits of national jurisdiction.
Development, which was adopted at the 1992 Rio
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c. Principle 3: The right to development must be Precautionary Principle

fulfilled so as to equitably meet developmental and
environmental needs of present and future generations. - The Precautionary Principle, sometimes referred to as
d. Principle 13: States shall develop national law the “precautionary approach,” is contained in
regarding liability and compensation for the victims of Principle 15 of the Rio Declaration, which states:
pollution and other environmental damage.
e. Principle 18: States shall immediately notify other “In order to protect the environment, the
States of any natural disasters or other emergencies precautionary approach shall be widely applied by
that are likely to produce sudden harmful effects on States according to their capabilities. Where there are
the environment of those States. Every effort shall be threats of serious or irreversible damage, lack of full
made by the international community to help States so scientific certainty shall not be used as a reason for
afflicted. postponing cost-effective measures to prevent
f. Principle 24: Warfare is inherently destructive of environmental degradation.”
sustainable development. States shall therefore respect
International Law providing protection for the “Polluter Pays” principle
environment in times of armed conflict and cooperate
in its further development, as necessary. - The polluter pays principle provides that the
g. Principle 26: States shall resolve all their polluter who creates an environmental harm generally
environmental disputes peacefully and by appropriate should be forced to pay the costs of remedying that
means in accordance with the Charter of the United harm. The essential idea in this principle is to force
Nations. polluters to internalize costs that would otherwise be
imposed on others, so that polluters will consider
Principle of Common but Differentiated Responsibility environmental factors when making economically
efficient decisions. This is contained in Principle 16 of
- This principle recognizes that because developed the Rio Declaration, which states that:
States have contributed disproportionately to global
environmental degradation, and because they “National authorities should endeavour to
command greater financial and technological promote the internalization of environmental costs and
resources, those States have a special responsibility in the use of economic instruments, taking into account
shouldering the burden of pursuing global sustainable the approach that the polluter should, in principle, bear
development. This principle is laid down as Principle the cost of pollution, with due regard to the public
7 of the Rio Declaration: interest and without distorting international trade and
investment.”
“States shall cooperate in a spirit of global
partnership to conserve, protect and restore the health Principle of Non-Discrimination
and integrity of the Earth’s ecosystem. In view of the
different contributions to global environmental - This principle provides that each State should ensure
degradation, States have common but differentiated that its regime of environmental protection, when
responsibilities. The developed countries addressing pollution originating within the State, does
acknowledge the responsibility that they bear in the not discriminate between pollution affecting the State
international pursuit to sustainable development in and pollution affecting other States.
view of the pressures their societies place on the global
Principle of Intergenerational Equity
environment and of the technologies and financial
resources they command.”
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- This principle stresses that in making choices tests resulted in radioactive fallouts which contaminated the
about meeting the needs of present generations, the rivers in and around Aparri and other bodies of water
needs of future generations should not be sacrificed. within the territorial jurisdiction of the Philippines. Can the
This is laid down as Principle 3 of the Rio Declaration: Philippines complain against the Republic of China for
violation of its sovereignty?
“The right to development must be fulfilled
so as to equitably meet developmental and Yes, the conduct of a series of nuclear tests,
environmental needs of present and future albeit in its own atmosphere, which resulted in
generations.” transboundary pollution, in effect violated Philippine
sovereignty.
In the landmark case of Oposa v. Factoran,
G.R. No. 101083, July 30, 1993, the Philippine Principle 21 of the Stockholm Declaration and
Supreme Court applied this principle in ruling that the Principle 2 of the Rio Declaration provide for the
plaintiff minors can, for themselves, for others of their responsibility of States to ensure that activities within
generation and for th succeeding generations, file a their jurisdiction or control do not cause damage to the
class suit to protect the right to a balanced and a environment of other States or of areas beyond the
healthful ecology. The court held: limits of national.
“Their personality to sue in behalf of the In the Trail Smelter Case (U.S. v. Canada), 3 R.I.A.A.
succeeding generations can only be based on the 1905 (1941), the Arbitral Tribunal held that
concept of intergenerational responsibility insofar as transboundary pollution violated Customary
the right to a balanced and healthful ecology is International Law and that a State may be held
concerned. Such a right, as hereinafter expounded, responsible for pollution within its jurisdiction if such
considers the ‘rhythm and harmony of nature.’ Nature pollution results in demonstrable injury to another
means the created world in its entirety. Such rhythm State.
and harmony indispensably include, inter alia, the
judicious disposition, utilization, management, May a State be held responsible by another State for
renewal and conservation of the country’s forest, transboundary pollution caused by private parties within
mineral, land, waters, fisheries, wildlife, offshore its jurisdiction?
areas and other natural resources to the end that their
exploration, development and utilization be equitably Yes, the Trail Smelter Case (U.S. v. Canada), 3
accessible to the present as well as future generations. R.I.A.A. 1905 (1941) established two fundamental
Needless to say, every generation has a responsibility principles of liability for transboundary pollution
to the next to preserve that rhythm and harmony for under International Law:
the full enjoyment of a balanced and healthful ecology.
Put a little differently, the minors’ assertion of their a. First, a State must show material damage and
right to a sound environment constitutes, at the same causation to be entitled to legal relief; and
time, the performance of their obligation to ensure the
protection of that right for the generations to come.” b. Second, a State has a duty to prevent, and
may be held responsible for pollution by private
The Republic of China (Taiwan-), in its bid to develop a parties within its jurisdiction if such pollution
hydrogen bomb and defend itself against threats of invasion results in demonstrable injury to another State.
coming from the People’s Republic of China, conducted a
series of nuclear weapons tests in its own atmosphere. The
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In the said case, the Arbitration Tribunal held that Principle 7 – “States shall take all possible steps to
Canada was legally responsible for the actions of the prevent pollution to the seas.”
privately-owned smelter near Trail, Canada, ordered
Canada to pay damages, and required the smelter to Principle 21 – “States have the responsibility to ensure
refrain from causing further damage in the United that activities within their jurisdiction or control do not
States. cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction.
The French Government proposed to carry out certain
works for the utilization of the waters of Lake Lanoux and c. The 1982 Convention on the Law of the Sea
the Spanish Government feared that these works would (UNCLOS)
adversely affect Spanish rights and interests. Lake Lanoux
lies on the southern slopes of the Pyrenees, on French Article 192 – “States have the obligation to protect and
territory. It is fed by streams which have their source in preserve the marine environment.”
French territory and which run entirely through French
territory. May a downstream State (Spain) object to the use Article 194(1) – “States shall take, individually or
of the water by an upstream State (France)? jointly as appropriate, all measures that are necessary
to prevent, reduce and control pollution of the marine
- In the Lake Lanoux Arbitration (France v. Spain), environment from any source.”
12 R.I.A.A. 281, November 16, 1957, the Arbitral
Tribunal held that a downstream State does not have Article 194(2) – “States shall take all measures
the right of veto over an upstream State’s use of water. necessary to ensure that activities under their
While there is a principle which prohibits the upstream jurisdiction or control are so conducted as not to cause
State from altering the waters of a river in such a damage by pollution to other States and their
fashion as seriously to prejudice the downstream State, environment.”
such a principle would have no application to the
present case because it has been admitted that the Article 195 – “In taking measures to prevent, reduce
French scheme will not alter the waters of the lake. and control pollution of the marine environment,
States shall act so as not to transfer, directly or
Major treaties, conventions and instruments that aim to indirectly, damage or hazards from one area to another
protect and preserve the marine environment or transform one type of pollution into another.”
a. The 1958 Convention on the High Seas: Principal treaties, conventions or instruments that provide
for liability for damage caused by pollution of the marine
Article 24- “Every state shall draw up regulations to environment
prevent pollution of the seas by the discharge of oil
from ships or pipelines.” a. The 1982 Convention on the Law of the Seas
(UNCLOS):
Article 25 – “Every State shall take measures to
prevent pollution of the seas from the dumping of Article 235 – “States are responsible for the fulfillment
radio-active waste.” of their international obligations concerning the
protection and preservation of the marine
b. The 1972 Stockholm Declaration on the Human environment. They shall be liable in accordance with
Environment: International Law.”
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b. The 1962 Brussels Convention on the Liability of cross state boundaries or that otherwise have implications for
the Operators of Nuclear Ships: more than one state
Article 2 – “The operator of a nuclear ship shall be o Those involving the movement of
absolutely liable for any nuclear damage upon proof a. Goods e. Technology
that such damage has been caused by a nuclear b. Funds f. vessels
accident involving the nuclear fuel of, or radioactive c. Persons g. aircraft
products or waste produced in, such ship.” d. Tangibles
c. The 1969 Civil Liability Convention for Oil Characteristics

Pollution Damage (CLC) – adopted to ensure that
adequate compensation is available to persons who 1. It is part of public international law o Treaties alone make
suffer oil pollution damage resulting from maritime this so
casualties involving oil-carrying ships. The 2. It is intertwined with municipal law
Convention places the liability for such damage on the 3. It requires multi-disciplinary thinking
owner of the ship from which the polluting oil escaped 4. Empirical research is very important for understanding its
or was discharged. operation
d. The 1971 Convention on the Establishment of an
International Fund for Compensation for Oil Notable principles of International Economic Law
Pollution Damage (FUND) – This is a reaction to the
1969 CLC which was objected by some States since it 1. Principle of reciprocity
was based on the strict liability of the shipowner for 2. Principle of equal treatment between foreigners and
damage which they could not foresee and, therefore, nationals
represented a dramatic departure from traditional 3. Most-favored nation clause
maritime law which based liability on fault. 4. Open-door principle
e. The 2001 International Convention on Civil 5. Principle of preferential treatment
Liability for Bunker Oil Pollution Damage – 6. Principle of fair treatment
adopted on March 23, 2001 to ensure that adequate, 7. Principle of economic sovereignty
prompt, and effective compensation is available to 8. Coexistence of economically sovereign States
persons who suffer damage caused by spills of oil, 9. Principle of economic free trade
when carried as fuel in ships’ bunkers. It applies to 10. Freedom of communication and of the sea
damage caused on the territory, including the
territorial sea, and in exclusive economic zones of Four Freedoms under the EEC Treaty
States Parties.
- Signed in Rome in 1957
CHAPTER 17 – INTERNATIONAL - Foundations for the establishment of a common
ECONOMIC LAW market
1. Free Movement of Goods
2. Freedom of Movement of People
What is International Economic Law?
3. Freedom to Provide Services
4. Free Movement of Capital
In its broadest sense includes all international law and
international agreements governing economic transactions that
Calvo Clause
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- Used chiefly in contracts between a government and International Bank for Reconstruction and Development
aliensIt prevents appeals by aliens to their home [World Bank]
governments for diplomatic intervention in behalf of
their contract rights. Provide long-term capital to support growth and development
- Alien agrees that any dispute that might arise out of
the contract is to be decided by the national courts in International Trade Organization (ITO)
accordance with national law and is not to give rise to
any international reclamation. Promote a liberal trading system by proscribing certain
protectionist trade rules
Drago Doctrine ITO → General Agreement on Tariff and Trade (GATT) →
World Trade Organization (WTO)
- Luis Drago (1859-1921), former Minister of Foreign
Affairs of Argentina GENERAL AGREEMENT ON TARIFFS AND TRADE
- Codified in the 1907 Hague Convention on the (GATT)
Limitation of Employment of Force for Recovery of
Contract Debts - Signed in 1947 to regulate the relations of its members
- Doctrine concerns the question of the right of a State in the field of trade and economic endeavor.
to resort to force to collect the claims of its citizens - Purpose: to enter into reciprocal and mutually
against foreign governments and is advanced by him advantageous arrangements directed to the substantial
as a supplement to the Monroe Doctrine reduction of tariffs and other barriers to trade and to
- “A public debt cannot give rise to the right of the elimination of discriminatory treatment in
intervention, and much less to the occupation of the international commerce
soil of any American nation by any European power. - GATT as an organization ceased to exist with the
establishment of the WTO, whereas GATT as an
International Economic Organizations agreement continues to exist in amended form.
Any lasting form of cooperation in the economic field between Objectives of GATT
at least five countries, which is based directly or indirectly on
one or more treaties of public international law. 1. To raise standards of living
2. To ensure full employment and a large and steadily
International Economic Institutions growing volume of real income and effective demand
3. To develop the full use of the resources of the world
Objectives of the Bretton Woods Conference of 1944: 4. To expand the production and exchange of goods
1. To advance the reduction of tariffs and other trade barriers
2. To create a global framework designed to minimize Basic principles adopted by GATT and WTO
economic conflicts
1. Freedom of Trade
International Monetary Fund 2. Non-discrimination
a. Most-Favored Nation (MFN) Treatment
o Function: to provide short-term financing to countries in b. National Treatment
balance of payments difficulties 3. Reciprocity
4. Transparency
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Free Trade Area

reciprocal
and
An area where trading within the group is duty-free, but mutually
members set their own tariffs on imports from non-members. advantageou
Example: North American Free Trade Agreement (NAFTA) s basis.
WTO SCOPE Applied to Covers trade in services

trade in and trade-related aspects
goods only of intellectual property
- Permanent international organization established rights, in addition to
pursuant to the “Final Act” signed in Marrakesh, trade in goods
Morocco in 1994 which concluded the Uruguay
Round of Multilateral Trade Negotiations. DISPUTE Less Has specific time limits
- Effective January 1, 1995, WTO replaced GATT as an SETTLEM efficient as it and is therefore faster. It
ENT was operates automatically,
organization.
susceptible ensuring fewer
- Oversees the operation of GATT and a new General to blockage blockages.
Agreement on Trade and Services
Key Principles of International Trade Law

GATT WTO
Agreed Tariff Levels
NATURE Multilateral Formed in 1995 as a
agreement replacement of the - GATT contains specified tariff levels for each State
created in GATT. It has a - However, these can be re-negotiated
1948 to permanent structure,
regulate framework, and its own The Most Favored Nation Principle (MFN)
international secretariat.
trade. - “Favor one, favor all”. Embodies the principle of non-
However, it
discrimination. It is usually found in trade treaties or
had no
permanent agreements.
structure or - Any special treatment given to a product from one trading
format, and partner must be available for like products originating from or
it only had destined for other contracting partners
an ad hoc - Tariff concessions. It requires that the State Parties shall
secretariat.
accord to each other whatever privileges, concessions or
PURPOSE Substantial Supervising and benefits that they accord to other States.
reduction of liberalizing international
tariffs and trade. Principle of National treatment
their trade
barriers and - Prohibits discrimination between domestic producers and
the foreign producers
elimination
- Once foreign producers have paid the proper border charges,
of
preferences, no additional burdens may be imposed on foreign products
on a
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Principle of Tariffication qualified Filipinos (and to) promote the preferential use of
Filipino labor, domestic materials and locally produced goods.
- Prohibits the use of quotas on imports or exports and the use
of licenses on importation and exportation ISSUE: Does the Philippine Constitution prohibit Philippine
- Purpose: to prevent the imposition of non-tariff barriers participation in worldwide trade liberalization and economic
- Exception: globalization? Does it proscribe Philippine integration into a
· GATT provides for a quantitative and global economy that is liberalized, deregulated and privatized?
temporary basis for balance payments or infant
industry reasons in favor of developing states. HELD: No. These principles in Article II are not intended to be
self-executing principles ready for enforcement through the
Exceptions to key principles courts. They are used by the judiciary as aids or as guides in the
exercise of its power of judicial review, and by the legislature
1. General in nature in its enactment of laws. As held in the leading case of
● Public morals, public health, currency Kilosbayan, Incorporated v. Morato, the principles and state
protection, products of prison labor, national policies enumerated in Article II and some sections of Article
treatment of historic, artistic or archeological XII are not "self-executing provisions, the disregard of which
value, and protection of exhaustible natural can give rise to a cause of action in the courts. They do not
resources embody judicially enforceable constitutional rights but
2. Security exceptions guidelines for legislation."
3. Regional trade exceptions
4. Exceptions for developing nations While the Constitution indeed mandates a bias in favor of
Filipino goods, services, labor and enterprises, at the same time,
Tanada v. Angara it recognizes the need for business exchange with the rest of the
G.R. No. 118295, May 2, 1997 world on the bases of equality and reciprocity and limits
FACTS: Philippines joined WTO as a founding member with protection of Filipino enterprises only against foreign
the goal, as articulated by President Fidel V. Ramos in two competition and trade practices that are unfair. In other words,
letters to the Senate, of improving "Philippine access to foreign the Constitution did not intend to pursue an isolationist policy.
markets, especially its major trading partners, through the It did not shut out foreign investments, goods and services in
reduction of tariffs on its exports, particularly agricultural and the development of the Philippine economy. While the
industrial products." The President also saw in the WTO the Constitution does not encourage the unlimited entry of foreign
opening of "new opportunities for the services sector . . ., (the goods, services and investments into the country, it does not
reduction of) costs and uncertainty associated with exporting . . prohibit them either. In fact, it allows an exchange on the basis
., and (the attraction of) more investments into the country. of equality and reciprocity, frowning only on foreign
competition that is unfair.
Petitioners assails mainly (1) that the WTO requires the
Philippines "to place nationals and products of member- The basic principles underlying the WTO Agreement recognize
countries on the same footing as Filipinos and local products" the need of developing countries like the Philippines to "share
and (2) that the WTO "intrudes, limits and/or impairs" the in the growth in international trade commensurate with the
constitutional powers of both Congress and the Supreme Court, needs of their economic development." GATT has provided
the instant petition before this Court assails the WTO built-in protection from unfair foreign competition and trade
Agreement for violating the mandate of the 1987 Constitution practices including anti-dumping measures, countervailing
to "develop a self-reliant and independent national economy measures and safeguards against import surges. Where local
effectively controlled by Filipinos . . . (to) give preference to businesses are jeopardized by unfair foreign competition, the
Philippines can avail of these measures. There is hardly
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therefore any basis for the statement that under the WTO, local of nations. In its Declaration of Principles and State Policies,
industries and enterprises will all be wiped out and that the Constitution "adopts the generally accepted principles of
Filipinos will be deprived of control of the economy. Quite the international law as part of the law of the land, and adheres to
contrary, the weaker situations of developing nations like the the policy of peace, equality, justice, freedom, cooperation and
Philippines have been taken into account; thus, there would be amity, with all nations." By the doctrine of incorporation, the
no basis to say that in joining the WTO, the respondents have country is bound by generally accepted principles of
gravely abused their discretion. True, they have made a bold international law, which are considered to be automatically part
decision to steer the ship of state into the yet uncharted sea of of our own laws. One of the oldest and most fundamental rules
economic liberalization. But such decision cannot be set aside in international law is pacta sunt servanda — international
on the ground of grave abuse of discretion simply because we agreements must be performed in good faith. "A treaty
disagree with it or simply because we believe only in other engagement is not a mere moral obligation but creates a legally
economic policies. As earlier stated, the Court in taking binding obligation on the parties . . . A state which has
jurisdiction of this case will not pass upon the advantages and contracted valid international obligations is bound to make in
disadvantages of trade liberalization as an economic policy. It its legislations such modifications as may be necessary to
will only, perform its constitutional duty of determining ensure the fulfillment of the obligations undertaken."cr
whether the Senate committed grave abuse of discretion.
GATT/WTO provisos that protect developing countries
The constitutional policy of a "self-reliant and independent
national economy" does not necessarily rule out the entry, of WTO Agreement grants developing countries a more lenient
foreign investments, goods and services. It contemplates neither treatment, giving their domestic industries some protection
"economic seclusion" nor "mendicancy in the international from the rush of foreign competition.
community." library With respect to tariffs in general, preferential treatment is
given to developing countries in terms of the amount of tariff
The WTO reliance on "most favored nation", "national reduction and the period within which the reduction is to be
treatment", and "trade without discrimination" cannot be struck spread out. Specifically, GATT requires an average tariff
down as unconstitutional as in fact they are rules of equality and reduction rate of 36% for developed countries to be effected
reciprocity, that apply to all WTO members. Aside from within a period of six (6) years while developing countries —
envisioning a trade policy based on "equality and reciprocal", including the Philippines — are required to effect an average
the fundamental law encourages industries that are tariff reduction of only 24% within ten (10) years.
"competitive in both domestic and foreign markets," thereby
demonstrating a clear policy against a sheltered domestic trade In respect to domestic subsidy, GATT requires developed
environment, but one in favor of the gradual development of countries to reduce domestic support to agricultural products by
robust industries that can compete with the best in the foreign 20% over six (6) years, as compared to only 13% for developing
markets. Indeed, Filipino managers and Filipino enterprises countries to be effected within ten (10) years.
have shown capability and tenacity to compete internationally.
And given a free trade environment, Filipino entrepreneurs and In regard to export subsidy for agricultural products, GATT
managers in Hongkong have demonstrated the Filipino capacity requires developed countries to reduce their budgetary outlays
to grow and to prosper against the best offered under a policy for export subsidy by 36% and export volumes receiving export
of laissez faire. subsidy by 21% within a period of six (6) years. For developing
countries, however, the reduction rate is only two-thirds of that
While sovereignty has traditionally been deemed absolute and prescribed for developed countries and a longer period of ten
all-encompassing on the domestic level, it is however subject to (10) years within which to effect such reduction.
restrictions and limitations voluntarily agreed to by the
Philippines, expressly or impliedly, as a member of the family
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Built-in protection from unfair foreign competition and Obligations of a State Member before bringing a case to the
trade practices DSB
GATT itself has provided built-in protection from unfair Before bringing a case, a Member shall exercise its judgement
foreign competition and trade practices including anti-dumping as to whether action under these procedures would be fruitful.
measures, countervailing measures and safeguards against The aim of the dispute settlement mechanism is to secure a
import surges. Where local businesses are jeopardized by unfair positive solution to a dispute. A solution mutually acceptable to
foreign competition, the Philippines can avail of these the parties to a dispute and consistent with the covered
measures. agreements is clearly to be preferred.
Dispute Resolution In the absence of a mutually agreed solution, the first objective
Wto Dispute Settlement System of the dispute settlement mechanism is usually to secure the
withdrawal of the measures concerned if these are found to be
● Central element in providing security and inconsistent with the provisions of any of the covered
predictability to the multilateral. agreements.
- Preserves the rights and obligations of Members under
the covered agreements, and to clarify the existing The provision of compensation should be resorted to only if the
provisions of those agreements in accordance with immediate withdrawal of the measure is impracticable and as a
customary rules of interpretation of public temporary measure pending the withdrawal of the measure
international law. which is inconsistent with a covered agreement.
- Recommendations and rulings cannot add to or
diminish the rights and obligations provided in the The last resort which this Understanding provides to the
covered agreements. Member invoking the dispute settlement procedures is the
possibility of suspending the application of concessions or other
Dispute Settlement Body (DSB) obligations under the covered agreements on a discriminatory
basis vis-à-vis the other Member, subject to authorization by the
- Established by the WTO Agreement DSB of such measures.
- It consists of the General Council of the WTO and
operates under the Understanding on Rules and Composition of dispute settlement panel
Procedures Governing the Settlement of Disputes
1994 (DSU) - Well-qualified governmental and/or non-
- Each state has a right to the establishment of a Panel governmental individuals
- Has a permanent Appellate Body, consisting of - Composed of three panelists unless the parties to the
persons with recognized expertise in law, to handle dispute agree, within 10 days from the establishment
appeals from a Panel decision of the panel, to a panel composed of five panelists.
- Have the authority to establish panels, adopt panel and - Members shall be informed promptly of the
Appellate Body reports, maintain surveillance of composition of the panel.
implementation of rulings and recommendations, and - If there is no agreement on the panelists within 20 days
authorize suspension of concessions and other after the date of the establishment of a panel, at the
obligations under the covered agreements. request of either party, the Director-General, in
consultation with the Chairman of the DSB and the
Chairman of the relevant Council or Committee, shall
determine the composition of the panel by appointing
the panelists whom the Director- General considers
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most appropriate in accordance with any relevant System of International Registration under the Madrid
special or additional rules or procedures of the covered Protocol
agreement or covered agreements which are at issue in
the dispute, after consulting with the parties to the Owner of the mark may secure protection for his mark in the
dispute. territory of the Contracting Parties.
- The Chairman of the DSB shall inform the Members 1. Basic Application/Registration - owner of the mark
of the composition of the panel thus formed no later mst “basic application” with the Office of a
than 10 days after the date the Chairman receives such Contracting Party pursuant to the Madrid Protocol and
a request. the domestic laws of the Contracting party
2. International application - owner of the Basic
Application may then file an “international
Protocol Relating to the Madrid Agreement application” for international registration with the
International Bureau of the World Intellectual
Madrid Protocol Property Organization.
- International trademark registration system that Effects of International Registration under the Madrid
enables trademark owners to obtain protection in Protocol
multiple countries by means of a single international
application - From the date of the international registration, the
- Concluded at a diplomatic conference in Madrid, protection of the mark in each of the Contracting
Spain on June 27, 1989 Parties concerned shall be the same as if the mark had
- Entered into force on April 1, 1996 been deposited directly with the Office of that
- Philippines acceded to the Madrid Protocol on April Contracting Party
25, 2012 - Protection resulting from the international registration
- States party to Madrid Protocol, even where they are shall extend to any COntracting Party only at the
not party to the Madrid Agreement Concerning the the request of the person who files the international
International Registration of Marks, shall be members application or who is the holder of the international
of the same Union of which countries party to the registration. Any request for extension of the
Madrid Agreement are members. protection resulting from the international registration
to any Contracting Party shall be specially mentioned
Who may file an International Application under the in the international application. A request for
Madrid Protocol territorial extension may also be made subsequently to
the international registration.
Any natural or juridical person may file an International - The international registration of a mark is effective for
Application under the Madrid Protocol provided: 10 years, with the possibility of renewal for another
1. It is a national of the member State where the basic period of 10 years from the expiry of the preceding
application is filed period.
2. It is domiciled in the territory of the member State
where the basic application is filed Central Attack
3. It has a real and effective industrial or commercial
establishment in the member State where the basic Process of attacking the basic application or registration upon
application is filed which the international registration is basd before the expiry of
five years from the date of the international registration.
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However, it need not be a third party attack on the basic These subsequent applications will be regarded as if they had
application or registration. been filed on the same day as the first application. In other
words, they will have priority (hence the expression "right of
Remedy of a holder of an international registration which is priority") over applications filed by others during the said
canceled through a central attack period of time for the same invention, utility model, mark or
industrial design.
- Transformation of the international registration into
national applications. Grant of a Patent in one Contracting State of the Paris
- Holder of the international registration may avail of Convention does not oblige other Contracting States to
this remedy within three months from the date of grant a patent for the same invention.
cancellation of the international registration by filing In the same manner, a patent cannot be refused, annulled or
an application for the registration of the same mark terminated in any Contracting State on the ground that it has
with any of the Contracting Parties in the territory of been refused or annulled or has terminated in any other
which the international registration had effect. Contracting State.
- Transformation - national applications that result from
the said procedure. It is treated as if they had been filed Expanding Scope of International Economic Law
on the date of the international registration. However,
transformation is not available where the holder itself - Uruguay Round of 1994 has expanded the scope of the
opted to withdraw or cancel the international multilateral trade regime
registration. - Includes intellectual property, services, sanitary and
physiosanitary measures and investment, as well as the
Paris Convention for the Protection of Industrial Property strengthening of the rules on subsidies, countervailing
duties and anti-dumping
- Concluded in Paris on March 20, 1983
- Intellectual property treaty that seeks to protect Non-Tariff Barriers to trade (NTBs)
industrial property in its broadest sense Trade barriers that restrict imports but are not in the usual form
- The countries to which this Convention applies of a tariff.
constitute a Union for the protection of industrial Examples: anti-dumping duties and countervailing duties
property
- Philippines became a party to the Convention in 1965 Anti-Dumping Duties
Two fundamental rights provided by the Paris Convention May be imposed by a contracting party on goods that are
deemed to be “dumped” and which causes or threatens material
1) National Treatment - each Contracting State must injury to an established industry in the territory of a contracting
grant the same protection to nationals of other Contracting party or materially rettards the establishment of a domestic
States that it grants to its own nationals. Nationals of non- industry. The duty that may be levied should not be greater in
Contracting States are also entitled to national treatment under amount than the margin or dumping in respect of such product.
the Convention if they are domiciled or have a real and effective
industrial or commercial establishment in a Contracting State. Dumped Product
2) Right of Priority - on the basis of a regular first
application filed in one of the Contracting States, the applicant When it is introduced into the commerce of an importing
may, within a certain period of time (12 months for patents and country at less than its normal value, if the price of the product
utility models; 6 months for industrial designs and marks), exported from one country to another is less than the
apply for protection in any of the other Contracting States. comparable price, in the ordinary course of trade, for the like
123 | P a g e
product when destined for consumption in the exporting - Negotiated towards the end of the Uruguay Round of
country. the GATT in 1994 to promote effective and adequate
protection of intellectual property rights, and to ensure
Countervailing Duty that measures and procedures to enforce intellectual
property rights do not themselves become barriers to
Special duty levied for the purpose of offsetting any bounty or legitimate trade.
subsidy bestowed, directly, or indirectly, upon the manufacture,
production or export of any merchandise.
Intellectual properties covered and protected under TRIPS
They shall not exceed an amount equal to the estimated bounty
or subsidy determined to have been granted, directly or - Copyright and other related rights - extends to
indirectly, on the manufacture, production or export of such expressions. Computer programs, whether in source or
product in the country of origin or exportation, including any object code, shall be protected as literary works under
special subsidy to the transportation of a particular product. the Berne Convention.
- Trademarks - any sign, or any combination of signs,
Important International Trade Agreements capable of distinguishing the goods or services of one
undertaking from those of other undertakings
1. General Agreement on Trades Services (GATS) - Geographical Indications - indication which identify
- Set of multilateral rules governing international trade a good as originating in the territory of a Member, or
in services that was negotiated in the Uruguay Round. a region or locality in that territory, where a given
- Covers all internationally-traded services (i.e. quality, reputation or other characteristic of the good
banking, telecommunications, tourism, professional is essentially attributable to its geographical origin
services, etc.) - Industrial Designs - independently created industrial
designs that are new or original
Different modes of trading services under the GATS - Patents - available for any inventions, whether
products or processes, in all fields of technology,
- Cross-border Supply - trade in services from the provided that they are new, involve an inventive step
territory of one Member into the territory of any other and are capable of industrial application.
Member. (international telephone calls) - Layout-Designs
- Consumption Abroad - trade in services in the territory - Undisclosed Information
of one Member to the service consumer of any other
Member (tourism) Term of protection of copyright and other related right
- Commercial Presence - trade in services by a service under the TRIPS Agreement
supplier of one Member, through commercial presence
in the territory of any other Member. (foreign bank Calculated on a basis other than life of a natural person, such
setting up operations in a country) term shall be no less than 50 years from the end of the calendar
- Presence of Natural Persons - trade in service supplier year of authorized publication within 50 years from the making
of one Member, through presence of natural persons of the work, 50 years from the end of the calendar year of
of a Member in the territory of any other Member. making.
(fashion models or consultants)
When is a patent available for an invention?
2. Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPS) Whether products or processes, in all fields of technology,
provided that:
124 | P a g e
a) Product or process is new

b) Involve an inventive step
c) Capable of industrial application for 20 years from the
grant of the patent
Undisclosed information protected as trade secrets
Undisclosed information lawfully within the control of natural

and legal persons shall be protected from being disclosed to,
acquired by, or used by others without consent if as such
information:
1) Is secret, not generally known among or readily
accessible to persons within the circles that normally
deal with the kind of information in question
2) Has commercial value because it is secret
3) Has been subject to reasonable steps under the
circumstances, by the person lawfully in control of the
information, to keep it secret.
125 | P a g e

(2-J SY. 2019-2020) PUBLIC International Law Reviewer (Bernas and Sarmiento) Chapter 1-The Nature of International Law

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Ut in Omnibus Glorifiectur Deus – That in all things God May be glorified

(2-J SY. 2019-2020) PUBLIC

How consent to be bound is manifested Hard Law vs Soft Law

a. Express- in the form of treaties or conventions; Hard Law Soft Law

Public International Law Private International Law

VII will find applicability with regard to determining the

JUDICIAL DECISIONS - Matters usually dealt with by treaties: a) lease of naval

Is Protocol De Cloture a Treaty? Exceptions: a) When it limits itself; or b) When it is

entertained. Thus, the State is deemed to have ratified

Notice of the proposal to amend must be given to all Material Breach

case)—the changes must have increased the burden of

Namibia Case (ICJ): The case is an advisory Fisheries Jurisdiction (ICJ):

treaties; however, it is logical that those with the

B. Defined Territory Recognition of Government

International Organizations - International organizations enjoy the immunities and

Principal Purposes of UN c. It must accept the obligations of the Charter

a. Principle of the sovereign equality of all its members; Suspension

concurred or which it finds itself unable to accept; A. General Assembly

Domestic Jurisdiction Clause Composition

In the hierarchy of international organizations, the UN Rules on Voting

c. The participation of states parties to a

b. Accept petitions and examine them in consultation

Composition The States Parties to the Present Statute may at any

Primary Objectives European Union

The ASEAN Declaration states that the aims and

a. ASEAN Political-Security Community – aims to Institutions

passengers, mail and cargo carried for Nationality of Aircrafts

d. Destroying or damaging air navigation Hijacking is a universal crime, it is not against a

a State’s sovereignty over waters:

CHAPTER 8 - TERRITORY: LAW OF THE

The United Nations Convention on the Law of the Sea adopts

Two ways of drawing the baseline

1. Normal baseline – drawn following the “low-water

- An archipelagic State may designate sea lanes and air

calling at a roadstead or port facility outside internal

a. Impose requirements on foreign ships which have the

Rights of the coastal State in the exclusive economic zone

Land-locked and geographically disadvantaged States shall Extended continental shelf

c. The area shall be open to use exclusively for

1. In the event of a collision or any other incident of

against such person except before the judicial or

b. The tribunal has jurisdiction to deal with disputes Exceptions

The Territoriality Principle Effects Doctrine

Freedom of the Seas Principle

and have not acquired a new protection is denied by their

These are crimes which threaten the international community

Crimes against Humanity Three Modes of resolving conflict of jurisdiction

The application is discretionary with the court. Some of the

In contradistinction to a criminal proceeding, the rules of CHAPTER 10 - IMMUNITY FROM

In terms of quantum of evidence to be satisfied, a criminal case Immunity from Jurisdiction

Ad-hoc – special missions on specific An action relating to succession in which the

In the case of Liang Vs People (2001), it is held that the

Waiver of Immunities Codification of the existing practice and rules of customary

Consular Law Consuls and Consular Immunities

Vienna Convention on Consular Relations (VCCR)

The consent of the

1. Usual modes of terminating official relationship; DIPLOMATIC CONSULAR ASSISTANCE

Immunities and Privileges of the Representatives of States CHAPTER 11 – STATE RESPONSIBILITY

- Instrument used for the protection of aliens and Standard #03: