Module 1: Introduction; nature of international law

A. Bernas

Chapter 1: The Nature of International Law

What is international law

Definition:
it is a body of rules and principles of action which are binding upon
civilized states in their relations to one another.
the law which deals with the conduct of states and international
organizations and with their relations inter se, as well as with some of
their relations with persons.
sovereign states remain as the principal subjects of international law, as well
as international organizations and individuals.
Scope of international law
Topics include the regulation of space expeditions, division of the ocean floor,
protection of human rights, management of the international financial system,
and the regulation of the environment.
Is international law a law
Basic challenge to international law as law is the claim that there can be no
law that binds sovereign states, and that there exists no:
international legislative body
but there is a General Assembly of the UN, but its resolutions are
generally not binding on anybody.
international executive
but there is a Security Council which is often hamstrung by veto
power
central authority that can make judgments binding on states
only binds states who consent to be bound
In the ultimate analysis, although the final enforcer is power, fundamentally,
there is a general respect for law because of the possible consequences of
defiance either to oneself or to the larger society.
Theories about international law:
1. Command theory
According to John Austin, law consists of commands originating from a
sovereign and backed up by threats of sanction if disobeyed. Under this
view, international law is not law because it does not come from a
command of a sovereign.
This theory is usually discredited because nations really see
international law not as commands but as principles for free and
orderly interaction
2. Consensual theory
International law derives its binding force from the consent of states.
Treaties are an expression of consent.
However, there are many binding rules which do not derive from
consent
 3. Natural law theory
Law is derived by reason from the nature of man. International law is an
application of natural reason to nature of the state-person.
4. Dissenters
No objective basis for international law. it is only a combination of
politics, morality and self-interest hidden under the smokescreen of legal
language.
Public and Private international law
Public International Law
governs the relationships between and among states and also their
relations with international organizations and individual persons
Private International Law
is domestic law which deals with cases where foreign law intrudes in the
domestic sphere
History
International law started as early or even earlier than the time of the Romans
Jus Gentium - law common to all men
Modern international law began in the medieval age. Hugo Grotius, the father
of modern international law, authored "law of nations" which was later given
the name "international law"
Milestones in the development of international law
1. Peace of Westphalia which ended the Thirty Years War and established
a treaty based framework for peace cooperation
2. Congress of Vienna which ended the Napoleonic Wars and created a
sophisticated system of multilateral and political and economic
cooperation
3. Covenant of the League of Nations which included the Treaty of
Versailles which ended WW1
Creation of the League of Nations composed of 43 states then. But WW2 still
happened so the United Nations was founded.
Because of this, 3 major grouping of states arose:
1. Western states
Insisted on 2 points as to international legislation:
1. legal provisions must be clear and precise
2. any substantive rule must be accompanied by an
implementation mechanism that can spot and correct
violations
2. Socialist states led by the Soviet Union
sought to avert Western intrusion into domestic affairs even as
they sought relatively good relations with the West for the sake of
economic and commercial interchange
3. Developing countries
the overwhelming bulk of the group

B. Higgins

Chapter 1: Nature and function of International Law

 International law is not rules but a normative system.
All organized groups or structures require a system of normative conduct
which is regarded by each member, and the group as a whole, as obligatory.
without international law, safe aviation could not be agreed, resources could
not be allocated, people could not safely choose to dwell in foreign lands.
Two points:
1. The role of law is to provide an operational system for securing values
such as security, freedom, material goods, etc. if the legal system works
well, then disputes are in large part avoided. However, a legal system
can also contain competing interests.
2. International law is no different from domestic law. But there are
differences as to social purpose:
1. domestic law operates in a vertical legal order
2. international law operates in a horizontal legal order
What is international law
International law is a process, not rules. It is a continuing process of
authoritative decisions. International law is the entire decision-making process.
Rules are just accumulated past decisions. To define international law
as just rules is to say that international law cannot contribute with a
changing political world
Reasons why others believe that international law is just rules:
1. if international law is regarded as more than rules, international law
becomes confused with other phenomena such as social or
humanitarian factors
2. only by insisting that international law as rules to be impartially applied
will it be possible to avoid the manifestation of international legal
argument for political ends
However, these reasons are flawed because it assumes that the law is
concerned only with the concept of authority and not with power or control.
Law is the interlocking of authority with power.
International law can best perform its service by distancing itself from social
policy.
To whom does international law apply?
states, international organizations, and to individuals
What is the basis of obligations of international law?
reciprocity

C.Hart's Concept of a Legal System

The existence of a legal system

Two conditions for the existence of a legal system
1. rules of behavior which are valid according to the system's ultimate
criteria of validity must be generally obeyed
2. rules of recognition specifying the criteria of legal validity and its rules of
change and adjudication must be effectively accepted as common public
standards of official behavior by its officials
Primary and secondary rules
 a legal system is a union of primary rules of obligation or duty and secondary
rules of recognition, change, and adjudication
primary rules impose duties
secondary rules confer powers
Habits of obedience and social rules
group habit = watching tv late at night
social rule = driving on the right side of the street
deviations are regarded as faults open to criticism, and threatened
deviations are met with pressure of conformity
makes a common standard which becomes the basis of an internal
aspect which determine what must, ought, or should be done, what is
right or wrong, etc.
normative
Rules that impose obligations and rules that do not impose obligations
Not all rules create an obligation; such as rules of etiquette.
Rules which impose obligations are those rules which demand
conformity and pressure those who deviate or threaten to deviate from it
these rules are important because they are necessary to the
maintenance of social life
the obligations and duties required by these rules involve sacrifice and
renunciation
Relating to international law, international law:
1. has primary rules of obligations
2. lacks secondary rules of change and adjudication which provide for legislature
and courts
3. lacks a unifying rule of recognition specifying sources of law and providing
general criteria for the identification of its rules

Module 2: Sources of international law; treaties

A. Bernas

Chapter 2: Sources of international law

Sources are classified into:

1. formal sources
refer to various processes by which rules come into existence
such as legislation, treaty making, and judicial decision making
2. material sources or "evidence" of international law
concerned with the substance and content of the obligation by
identifying what the obligations are,
such as state practice, UN Resolutions, treaties, judicial decisions
and writings of jurists
Article 38 (1) of the Statute of the International Court of Justice
 1. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
(a) international conventions establishing rules expressly recognized
by contesting states
(b) international custom, as evidence of general practice accepted as
law
(c) the general principles of law recognized by civilized nations
(d) subject to the provisions of Art. 59, judicial decisions and the
teaching of the most highly qualified publicists of the various
nations, as subsidiary means for the determinations of rules of law
2. This provision shall not prejudice the power of the Court to decide ex aequo et
bono, if the parties agree thereto.
Restatement of Foreign Relations Law of the US:
1. A rule of international law is one that has been accepted as such by the
international community of states:
(a) in the form of customary law
(b) by international agreement, or
(c) by derivation from general principles common to the major legal
systems of the world
2. Customary international law results from a general and consistent practice of
states followed by them from a sense of legal obligations
3. International agreements create law for the states parties thereto and may lead
to the creation of customary international law which such agreements are
intended for adherence by states generally and are in fact widely accepted
4. General principles common to the major legal systems may be invoked as
supplementary rules of international law where appropriate.
Sources of international law are:
1. custom
2. treaties and other international agreements
3. generally recognized principles of law
4. judicial decisions and teachings of highly qualified and recognized publicists
Treaties
Vienna Convention definition:
A treaty is an international agreement concluded between States in
written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designations.
Some writers hold that even an oral argument can be binding. But only written
agreements are covered under the provisions of the Vienna Convention.
No particular form is required.
Qatar v. Bahrain held that the exchange of notes between the two heads
of state was considered an international agreement.
(Nuclear test cases: Australia v. France, New Zealand v. France) Unilateral
declarations can be a source of obligation, provided that:
1. the commitment is very specific, and
2. there was a clear intent to be bound
General
 treaties determine the rights and duties of states just as individual rights
are determined by contracts
while treaties are generally binding only on the parties, the number of
contracting parties and the generality of the acceptance of the rules
created by the treaty can have the effect of creating a universal law, in
the same way that general practice suffices to create customary law
all treaties must be observed by the parties under the principle of pacta
sunt servanda
treaties and custom
w/n treaties override customs depends on the intention of the parties. If
the treaty is intended to be declaratory of customary law, it may be seen
as evidence of customary law
when a treaty and custom conflict, it depends
General Rule: if the treaty comes later than a particular custom,
as between the parties to the treaty, the treaty should prevail
because it manifests a deliberate choice of the parties and the
principle of pacta sunt servanda
Exception: if a later treaty is contrary to a customary rule
that has the status of jus cogens (such as genocide and
slave trade), custom will prevail.
Art. 53 of the Vienna Convention on the law of
Treaties:
A treaty is void if, at the time of its conclusion,
it conflicts with a peremptory norm of general
international law. For the purposes of the
present Convention, a peremptory norm of
general international law is a norm accepted
and recognized by the international
community of States as a whole as a norm
from which no derogation is permitted and
which can be modified only by a subsequent
norm of general international law having the
same character.
If a custom develops after a treaty, the rule is not clear. In
practice, an attempt is made to keep the treaty alive by efforts at
reconciling a treaty with the developing custom.
General principles of law recognized by civilized nations
this refers not to principles of international law, but to principles of municipal
law common to the legal systems of the world.
examples:
every violation of an engagement involves an obligation to make
reparation
private rights acquired under one regime does not cease upon the
change of government
estoppel
Functions of treaties
Treaties have many functions:
 1. serve as charter of international organizations
2. used to transfer territory
3. regulate commercial relations
4. settle disputes
5. protect human rights
6. guarantee investments, etc
Classification of treaties
1. multilateral treaties
open to all states of the world
they are either codification treaties or "law-making treaties" or
both
2. treaties that create a collaborative mechanism
such as regulation of radio frequencies or fishing agreements
3. bilateral treaties or contract treaties
Making of treaties
Negotiation
Bilateral and multilateral treaties generally originate from the foreign
ministries who do the negotiation
Larger multilateral treaties are negotiated in diplomatic conferences
which are run like a legislative body
Power to negotiate
The negotiators must possess the power to negotiate
An act relating to the conclusion of a treaty by one who has no proper
authority has no legal effect unless confirmed by the state
Vienna Convention:
Art. 7. Full powers
1. A person is considered as representing a State if:
he produces appropriate full powers or
it appears from the practice of the States concerned
or from other circumstances that their intention was
to consider that person as representing the State for
such purposes and to dispense with full powers
2. The following are considered as representing the State [No
need for full powers]
1. Heads of State, Heads of Government and Ministers
of Foreign Affairs
2. heads of diplomatic missions
3. representative accredited by States to an
international conference or organisation or one of its
organs
Note: subsequent confirmation of acts of representatives without
full powers validates action on behalf of the state
Authentication of text
Negotiations conclude with the signing of the document. The signatures
serve as authentication of the document
Authentication of a treaty makes the text authoritative and definitive.
Consent to be bound
Once the document has been signed, there are stages which follow
which culminate in making the document binding. The most important
step is the consent to be bound.
Art. 11. Means of expressing consent to be bound by a treaty
The consent may be expressed by
signature,
exchange of instruments constituting a treaty,
ratification,
acceptance,
approval or accession, or
by any other means if so agreed.
Art. 14. Consent to be bound by a treaty expressed by ratification,
acceptance or approval:
The consent of the state to be bound by a treaty is expressed by
ratification when:
1. the treaty provides for such consent to be expressed by
means of ratification
2. it is otherwise established that ratification should be
required
3. the representative has signed the treaty subject to
ratification
4. the intention of the state to sign the treaty subject to
ratification appears from the full powers of its
representative
In the Philippines, ratification is governed by Art. 7, Section 21 of the
Constitution.
Section 21. No treaty or international agreement shall be valid
and effective unless concurred in by at least two-thirds of all the
Members of the Senate.
Pertinent Constitutional Provisions

Art. 7, Section 20. The President may contract or guarantee foreign

loans on behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board, and subject to such limitations as
may be provided by law. The Monetary Board shall, within thirty days
from the end of every quarter of the calendar year, submit to the
Congress a complete report of its decision on applications for loans to
be contracted or guaranteed by the Government or government-owned
and controlled corporations which would have the effect of increasing
the foreign debt, and containing other matters as may be provided by
law.

[General Rule]
Section 21. No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the Members of
the Senate.
 Art. 8, Sec. 4

(2) All cases involving the constitutionality of a treaty, international or

executive agreement, or law, which shall be heard by the Supreme
Court en banc, and all other cases which under the Rules of Court are
required to be heard en banc, including those involving the
constitutionality, application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances, and other regulations,
shall be decided with the concurrence of a majority of the Members who
actually took part in the deliberations on the issues in the case and
voted thereon.

[Exception]
Art. 18, Section 25. After the expiration in 1991 of the Agreement
between the Republic of the Philippines and the United States of
America concerning military bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires,
ratified by a majority of the votes cast by the people in a national
referendum held for that purpose, and recognised as a treaty by the
other contracting State.

Case law:
Bayan v. Zamora - VFA CASE
Section 25, Article XVIII disallows foreign military bases, troops,
or facilities in the country, unless the following conditions are
sufficiently met, viz:
(a) it must be under a treaty;
(b) the treaty must be duly concurred in by the Senate and,
when so required by congress, ratified by a majority of the
votes cast by the people in a national referendum; and
(c) recognised as a treaty by the other contracting state.
The phrase recognised as a treaty means that the
other contracting party accepts or acknowledges the
agreement as a treaty.
Moreover, it is inconsequential whether the United
States treats the VFA only as an executive
agreement because,
under international law, an executive agreement is
as
binding as a treaty.
A treaty, as defined by the Vienna Convention on the
Law of
Treaties, is an international instrument concluded
between States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments, and
 whatever its particular designation.
Lim v. Executive Secretary - Balikatan case
The Balikatan Exercises TOR does not need concurrence by
Senate, it being an implementation of an existing treaty
The VFA permits United States personnel to engage, on an
impermanent basis, in activities," the exact meaning of which
was left undefined. The expression is ambiguous, permitting a
wide scope of undertakings subject only to the approval of the
Philippine government.
The sole encumbrance placed on its definition is couched
in the negative, in that United States personnel must
abstain from any activity inconsistent with the spirit of this
agreement, and in particular, from any political activity.
Pimentel v. Executive Secretary - President cannot be compelled to
submit treaty to Senate for ratification
W/N the Executive Secretary and the Department of Foreign
Affairs have a ministerial duty to transmit to the Senate the copy
of the Rome Statute signed by a member of the Philippine
Mission to the United Nations even without the signature of the
President NO.
The signing of the treaty and the ratification are two
separate and distinct steps in the treaty-making process.
Ratification is generally held to be an executive act,
undertaken by the head of the government.
EO 459 issued by President Ramos provides the guidelines
in the negotiation of international agreements and its
ratification. It mandates that after the treaty has been
signed by the Philippine representative, it shall be
transmitted to the DFA. The DFA shall then prepare the
ratification papers and forward the signed copy of the treaty
to the President for ratification. After the President has
ratified the treaty, the DFA shall submit the same to the
Senate for concurrence. Upon receipt of the concurrence of
the Senate, the Department of Foreign Affairs shall comply
with the provisions of the treaty to render it effective.
The signature does not signify the final consent of the state
to the treaty. It is the ratification that binds the state to the
provisions thereof.
Under our Constitution, the power to ratify is vested in the
President, subject to the concurrence of the Senate. The
role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification. Hence, it is
within the authority of the President to refuse to submit a
treaty to the Senate or, having secured its consent for its
ratification, refuse to ratify it. The decision is within the
competence of the President alone, which cannot be
encroached by this Court via a writ of mandamus.
Sps. Constantino v. Hon. Rosario - Debt-buyback scheme is within
the power of the President under Art 7, 20
The Financing Program extinguished portions of the countrys
pre-existing loans through either debt buyback or bond-
conversion.
The buyback approach essentially pre-terminated portions of
public debts while the bond-conversion scheme extinguished
public debts through the obtention of a new loan by virtue of a
sovereign bond issuance, the proceeds of which in turn were
used for terminating the original loan.
"The President may contract or guarantee foreign loans in
behalf of the Republic of the Philippines with the prior
concurrence of the Monetary Board and subject to such
limitations as may be provided under law. The Monetary
Board shall, within thirty days from the end of every quarter
of the calendar year, submit to the Congress a complete
report of its decisions on applications for loans to be
contracted or guaranteed by the government or
government-owned and controlled corporations which
would have the effect of increasing the foreign debt, and
containing other matters as may be provided by law.
Abaye v. Ebdane - Loans Agreement with Japan
Loan Agreement No. PH-P204 was executed by and between the
JBIC and the Philippine Government pursuant to the Exchange of
Notes executed by and between Mr. Yoshihisa Ara, Ambassador
Extraordinary and Plenipotentiary of Japan to the Philippines, and
then Foreign Affairs Secretary Siazon, in behalf of their respective
governments.
Under the circumstances, the JBIC may well be considered
an adjunct of the Japanese Government. Further, Loan
Agreement No. PH-P204 is indubitably an integral part of
the Exchange of Notes. It forms part of the Exchange of
Notes such that it cannot be properly taken independent
thereof.
Exchange of notes is a record of a routine agreement that
has many similarities with the private law contract. The
agreement consists of the exchange of two documents,
each of the parties being in the possession of the one
signed by the representative of the other. Under the usual
procedure, the accepting State repeats the text of the
offering State to record its assent. The signatories of the
letters may be government Ministers, diplomats or
departmental heads. The technique of exchange of notes is
frequently resorted to, either because of its speedy
procedure, or, sometimes, to avoid the process of
legislative approval.
Treaties, agreements, conventions, charters, protocols,
 declarations, memoranda of understanding, modus vivendi
and exchange of notes all refer to international
instruments binding at international law."
An exchange of notes is considered a form of an executive
agreement, which becomes binding through executive action
without the need of a vote by the Senate or Congress.
Pharmaceutical v. DOH - Milk Code
WHA resolutions are not part of the law of the land
The transformation method requires that an international
law be transformed into a domestic law through a
constitutional mechanism such as local legislation.
The incorporation method applies when, by mere
constitutional declaration, international law is deemed to
have the force of domestic law.
Under Article 23 of WHOs Constitution, recommendations
of the WHA do not come into force for members, in the
same way that conventions or agreements under Article 19
and regulations under Article 21 come into force. Article 23
of the WHO Constitution reads: Under Art. 23. They can
only make recommendations. The absence of a provision
in Article 23 of any mechanism by which the
recommendation would come into force for member states
is conspicuous.
Thus, only the provisions of the Milk Code, but not those of
subsequent WHA Resolutions, can be validly implemented by the
DOH through the subject RIRR.
Province of North Cotabato v. GRP Panel - MOA-AD
MOA-AD between GRP and MILF is not a treaty
While there were States and international organizations
involved, in the negotiation and projected signing of the
MOA-AD, they participated merely as witnesses or, in the
case of Malaysia, as facilitator. Mere fact that the peace
settlement is signed by representatives of states and
international organisations does not mean that the
agreement is internationalized so as to create obligations in
international law.
Since the commitments in the MOA-AD were not
addressed to States, not to give legal effect to such
commitments would not be detrimental to the security of
international intercourse - to the trust and confidence
essential in the relations among States.
BUT while the MOA-AD would not amount to an
international agreement, respondents act of guaranteeing
amendments is, by itself, already a constitutional violation
that renders the MOA-AD fatally defective.
Bayan Muna v. Romulo - Validity of Non-Surrender Agreement with
US
 The Agreement is an Exchange of Notes constituting an
international governmental agreement. It is an international
agreement but not in treaty form. It does not contravene the
Rome Statute because the ICC recognises the primacy of
international agreements. Primary jurisdiction rests upon the state
and secondarily with the ICC
Ambassador Ricciardone sent a US Embassy Note to the
Department of Foreign Affairs (DFA) proposing the terms of
the Non-surrender Bilateral Agreement (Agreement)
between the USA and the RP. The RP, represented by DFA
Secretary Ople accepted the US proposals embodied
under the US Embassy Note adverted to.
It provides, among others that: Persons of one Party
present in the territory of the
other shall not, absent the express consent of the
first Party, be surrendered or transferred by any
means to any international tribunal for any purpose,
unless such tribunal has been established by the UN
Security Council
Ambassador Ricciardone replied in a letter that the
exchange of diplomatic notes constituted a legally
binding agreement under international law; and that
under US law, the said agreement did not require the
advice and consent of the US Senate.
Article 2 of the Vienna Convention on the Law of Treaties
defines a treaty as
an international agreement concluded between
states in written form and governed by international
law, whether embodied in a single instrument or in
two or more related instruments and whatever its
particular designation."
International agreements may be in the form of:
(1) treaties that require legislative concurrence
after executive ratification; or
(2) executive agreements that are similar to
treaties, except that they do not require
legislative concurrence and are usually less
formal and deal with a narrower range of
subject matters than treaties.
China National Machinery v. Santamaria
A contract entered into between non-state entities does not
constitute an executive agreement as in this case, NLRC and
China National Machinery
In Bayan Muna v. Romulo, this Court held that an executive
agreement is similar to a treaty, except that the former:
(a) does not require legislative concurrence;
(b) is usually less formal; and
 (c) deals with a narrower range of subject matters.
Despite these differences, to be considered an executive
agreement, the following three requisites provided under
the Vienna Convention must nevertheless concur:
(a) the agreement must be between states;
(b) it must be written; and
(c) it must be governed by international law. The first
and the third requisites do notobtain in the case at
bar.
The Contract Agreement was not concluded between the
Philippines and China, but between Northrail and CNMEG.
By the terms of the Contract Agreement, Northrail is a
GOCC, while CNMEG is a corporation duly organised and
created under the laws of the Peoples Republic of
China.Thus, both Northrail and CNMEG entered into the
Contract Agreement as entities with personalities distinct
and separate from the Philippine and Chinese
governments, respectively.
Reservations
Definition
reservation is a unilateral statement made by a State when
signing, ratifying, accepting, approving or acceding to a treaty,
Reservation whereby it purports to exclude or to modify the legal effect of
when allowed certain provisions of the treaty in their application to that State.
effect of absence of reservation meant only for multilateral treaties
clause
legal effect to the parties
interpretative declarations refers to how a state
(note: rome statute does not allow understands its adoption of the treaty
reservation a state which has made a reservation which has been
objected to by one or more parties to a Convention can be
regarded as a party to the convention if the reservation is
compatible with the object and purpose of the Convention
GR: A state may, when signing, ratifying, accepting, approving, or
acceding to a treaty, formulate a reservation
Exceptions
1. reservation is prohibited by treaty
2. treaty provides that only specified reservations are allowed
3. reservation is incompatible with the object and purpose of
the treaty
Reservations to the 1948 Convention on the Prevention and
Punishment of the Crime of Genocide
The following questions were submitted to the UN:
1. can the reserving state be regarded as being a party
to the Convention while still maintaining its
reservation if the reservation is objected to by some
of the members of the Convention?
ANS: [Yes, only if reservation is compatible
with the convention]
 A State which has made a reservation
objected to by some of the parties to
the Convention, can be regarded as
being a party to the Convention of the
reservation is compatible with the object
and purpose of the Convention;
otherwise, it cannot be regarded as a
party to the Convention
2. If yes, what is the effect of the reservation as
between the reserving state and
1. the parties that objected
ANS
the objecting State can consider
the reserving State NOT a party
to the Convention
2. the parties that accepted
ANS
the accepting State can consider
the reserving State a party to the
Convention
3. What is the legal effect if an objection to a
reservation is made
1. by a signatory who has not yet ratified
ANS
can have legal effect of (1) only if
it has ratified. before ratification,
no effect
2. by a state entitled to sign or accede but has
not yet done so
ANS
no legal effect
Philippines and 1982 Convention on the Law of the Sea
"archipelagic waters" found in the CLOS conflicts with Art. 1 of
Phil Const. which claims that waters connecting the islands are
"internal waters", hence, upon its ratification the Philippines made
several reservations.
The USSR filed a formal protest against the Philippine reservation
saying that the CLOS provision applies only to areas which had
not previously been considered as internal waters, referring to the
1973 Const., pre-dating the CLOS, which classified as internal
waters what is now referred to as archipelagic waters.
Entry into force of treaties
Treaties enter into force on the date agreed upon by the parties
Art. 24. Entry into force:
A treaty enters into force in such manner and upon such date as
agreed upon [stipulation]
In the absence of agreement, as soon as consent to be bound
 subsidiary level to be applied
Know when to give special meaning
to the terms
Rebus sic stantibus
Gr, Ex, ExtoEx
Effect of a later treaty
Withdrawal from treaty
Gr, Ex, ExtoEx
`What is the test for the application of
rebus sic stantiobus
stated in the ice land fisheries cASE
Application of treaties
Rules of conflict between treaty and
const
exec agereement etcYou should
know how to defend
does location matter, time, blabla
Vienna convention 46, and 27
Fuji v. California Interpretation of treaties
End of treaties
Gen. Principles focus on
status of southwest africa
nuclear test case
soft law
Application of international law by
domestic lawyers
thew phrase in art. 2 in the const
DOES NOT REFER TO TREATIES
BUT CUSTOMARY
INTERNATIONAL LAW WHETHER
CODIFIED OR NOT
also read bernas daw
BUT HE WILL BE TAKING
QUESTIONS NOT FROM FR. Bs
BOOK BUT MORE ON THE CASES
EXAM SCHED: MODULES 1-5
PLUS DEFINITIONS
has been established for all the negotiating states [consent to be
bound by all]
when consent to be bound comes after the treaty has come into
force, the treaty comes into force on the date when consent to be
bound has been obtained
pacta sunt servanda
every treaty in force is binding upon the parties to it and must be
performed by them in good faith
a party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty
a treaty is binding upon each party in respect of its entire territory,
unless otherwise provided for by the treaty
GR:
1. a treaty shall be interpreted in good faith
2. ordinary meaning of words in context to other related texts
3. relate to object and purpose
Exception:
give "special meaning" if the parties so intended
interpretation shall comprise, in addition to the text, including its
preamble and annexes:
any agreement relating to the treaty
any instrument in connection with the conclusion of the treaty
subsequent agreements by the parities
subsequent practice in the application of the treaty
other rule of international law applicable
approaches to treaty interpretation:
1. objective - ordinary meaning of words
2. teleological - according to purpose
3. subjective - according to special meaning given by the parties
Case Law:
Interpretation of peace treaties case with Bulgaria, Hungary
and Romania:
The 3 countries were accused of violating a treaty
regarding human rights and peace. Pursuant to their treaty,
the dispute settlement procedure was for each country to
appoint their own representatives to form a Commission
which would settle the dispute and bind the parties.
However, the 3 did not appoint their representatives. The
issue is w/n the Secretary-General may appoint a third
neutral member as provided for in the treaty? No. The
natural and ordinary meaning of the terms of the treaty
show that the appointment by the SecGen can/should only
happen after the appointment of the representatives.
Hence, the 3 countries have an obligation to appoint their
representatives, and failing to do so will entail international
 responsibility.
Jus Cogens - Peremptory Norms of International Law
GR: parties cannot enter into a treaty contrary to jus cogens or norms
recognised and accepted by the international community; non-derogable
Examples:
unlawful use of force
commission of a criminal act
slave trade
piracy
genocide
human rights violations
self-determination
Withdrawal, Termination and Rebus sic stantibus
Withdrawal
GR: a party is allowed to withdraw anytime, in conformity with the treaty
and with the consent of all
Exception: if there is no provision for withdrawal
Exception to exception:
1. if parties intended to allow withdrawal
2. if implied by the nature of the treaty
Rebus sic stantibus
GR: Any unforeseen or fundamental change is not a ground for
termination or suspension of the treaty
Exception:
1. if essential basis of consent
2. if obligation is transformed radically
Exception to exception:
1. if treaty establishes a boundary
2. if fundamental change arose from a breach by
the invoking party
Case Law:
Fisheries Jurisdiction Case (UK of Britain and Northern Ireland v.
Iceland)
Facts:
Iceland unilaterally increased its fishing jurisdiction to 50
nautical miles. Britain filed a case opposing Icelands
extension of its fishing jurisdiction. UK claims that such
extension was in violation of an Exchange of Notes and an
Interim Agreement between UK and Iceland. Iceland
invokes its preferential rights over the waters and its
recognised special dependence on fishing, and claims that
due to changed circumstances -- increased exploitation of
fishery resources because of an increase in catching
capacity of fishing fleets -- they can terminate the
agreement unilaterally.
Issue:
w/n such circumstance constitutes rebus sic stantibus that
 would justify termination of the agreement - No.
Held:
No. to be valid, the changed circumstance must have
resulted to a radical transformation rendering the
performance of the obligation so burdensome as to be
deemed essentially different from the obligation
originally undertaken.
Danube Dam Case (Hungary v. Slovakia)
Facts:
Hungary and Czech entered into a treaty to facilitate the
construction of dams on the Danube River. Later, Hungary
suspended work due to environmental concerns in
response to Czech's carried out unilateral measures.
Hungary also claims that there existed changed
circumstances -- change of political nature, reduced
economic viability of the project, and progress of
environmental knowledge and international environmental
law -- that gives them the right to unilaterally terminate the
treaty
Issue:
W/N Hungary can unilaterally terminate the treaty based on
such changed circumstances - No
Held:
No. The changed circumstances must be unforeseen, must
have constituted an essential basis of the consent, and
must have radically transformed the obligation to be so
burdensome to perform. Also, VCLT provides that the
impossibility of performance may not be invoked for
the termination of a treaty by a party, when it results
from that party's own breach of an obligation. In this
case, Hungary cannot claim that the project was no longer
viable because that was the result of his initial non-
compliance.
Invalidity of treaties
grounds for invalidation of a treaty: [FEDTC]
error of fact
if the error relates to a fact which was assumed by that
State to exist at the time when the treaty was concluded
and formed an essential basis of its consent to be bound
exception: when State contributed by its own
conduct to the error, or if there was constructive
notice of such error to such State
fraud
corruption
duress
treaty violates jus cogens
grounds for invalidation can be ratified
Amendment and modification of treaties
amendment
formal revision done with the participation by all the parities to the
treaty
modification
involves only some of the parties
a treaty may be amended by the agreement of the parties
Termination of treaties
Modes: [MICE]
1. after expiration of period, or after purpose has been achieved
2. material breach
3. impossibility of performance
4. change of fundamental position (rebus sic stantibus)
Authority to terminate treaties
In the Philippines and US, the authority to conclude treaties is shared
between the Senate and the President. Logically, they should also have
the authority to terminate treaties.
Succession to treaties
Clean Slate Rule
A newly independent state is not bound to maintain any treaty by
reason of the fact that at the date of the succession of States, the
treaty was in force in respect to the territory to which the
succession of States relates
Rules on conflict between a treaty and law:
It depends on which court is deciding:
1. international court - will uphold treaty obligation in general
2. domestic court - will uphold local laws
Specific situations of conflict:
1. treaty v. constitution
GR: VCLT also provides that a party may not invoke the
provisions of a municipal law as justification to perform a
treaty
Exception:
VCLT provides that when constitutional
violation is manifest and concerns a rule of
internal law of fundamental importance, state
may deviate from treaty obligation
under the dualist theory, unconstitutionality of a treaty is
purely a domestic matter, and that State faces risk of
international sanction
2. treaty v. domestic legislation
when 2 instruments relate to the same subject and are
irreconcilable, the later in date shall control in the domestic
sphere, provided that the treaty stipulation is self-
executing.
However, a treaty, even if contrary to a later statute, is
nevertheless binding in international law.
 Sei Fujii v. California
Facts:
The state of California escheated, pursuant to its alien land
law, the land of a Japanese national in California which he
purchased. He claims that the said alien land law should be
declared invalid because it violated the UN Charter, more
specifically, 3 provisions on human rights and the Charter's
Preamble.
Issue:
W/N the law is valid - Yes
Held:
Yes. Although the said provisions require that promotion
and observance of fundamental freedoms and equality,
these provisions are not self-executing -- it needs an
enabling legislation to affect private persons. These
provisions are merely framed as a promise of future action
by the member nations. The rights of private persons were
not prescribed in detail in the UN Charter in regard to the
land law.

Module 3 - State practice: Custom

Customary or customary law

Custom
a general and consistent practice of state followed by them from a
sense of legal obligation (restatement)
Elements:
1. material factor - how states behave
2. psychological or subjective factor - reason why they behave the
way they do
Material factor: practice of state or usus
Elements: [DCG] + Opinio Juris
1. duration - can be either short or long
example: Pacquete Havana -- exemption of fishing vessels
from capture as prize of war
2. consistency
continuity and repetition
Ayslum Case
Facts:
A military rebellion broke out in Peru but was
suppressed the same day. The following day,
a decree was published charging a political
party, American People's Revolutionary Party,
with having masterminded the rebellion. Victor
de la Torre, its head was prosecuted for
rebellion. Later, Columbia informed Peru of
 the asylum granted to Victor, that he was
qualified as a political refugee, and requested
for his safe passage from the country. Peru
refused to release Victor and disputed this
qualification.
Issue:
W/N Peru can refuse - Yes
Held:
Yes. Columbia cannot invoke the concept
of "regional custom" because it has not
proved the existence of a constant and
uniform practice of unilateral qualification
as a right of the State of a refuge and an
obligation upon the territorial State.
3. generality of practice
practice need not be in absolute conformity with the
customary rule (no need to show that ALL STATES practice
said custom)
Nicaragua v. US
Facts: Niacragua filed a case against the US
claiming that it was interfering in its local political
affairs by means of military and covert operations.
One of their claims is that the US has breached its
obligations under customary international law by
such operations, by its intervention in its affairs, by
entering its territory, etc.
Doctrine: In order to deduce the existence of
customary rules, it is sufficient that the conduct
of states should, in general, be consistent with
such rules, and that instances of state conduct
inconsistent with a given rule shall be treated as
a breach, not as an indication of the recognition
of a new rule
Psychological factor or Opinio juris
opinio juris is the belief that a certain form of behaviour is obligatory.
without it, practice is not law.
the states taking action or in a position to react to action, must have
behaved so that their conduct is evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it.
Case Law:
Pacquete Habana (Spain v. US)
Facts:
During the American-Spanish War, 2 Spanish fishing boats
were captured and brought to Florida. The crew had no
knowledge of the existence of war or of the blockade. They
did not resist or attempt to flee at the time of capture. The
Florida court ordered for the condemnation and sale of the
 vessels holding that no existing ordinance or treaty
exempted the boats from seizure
Issue:
W/N the fishing boats were exempted from being prizes of
war - Yes
Held:
Yes. History has shown, beginning from centuries ago,
that fishing vessels, its cargo and crew, by ancient
usage and practice, have been recognised as exempt
from prizes of war. ICJ cited various orders or agreements
in history as evidence of this. (mostly wars between britain,
france, netherlands, US and mexico)
Asylum case (Columbia v. Peru)
Facts:
A military rebellion broke out in Peru but was suppressed
the same day. The following day, a decree was published
charging a political party, American People's Revolutionary
Party, with having masterminded the rebellion. Victor de la
Torre, its head was prosecuted for rebellion. Later,
Columbia informed Peru of the asylum granted to Victor,
that he was qualified as a political refugee, and requested
for his safe passage from the country. Peru refused to
release Victor and disputed this qualification.
Issue:
W/N Peru can refuse - Yes
Held:
Yes. Columbia cannot invoke the concept of "regional
custom" because it has not proved the existence of a
constant and uniform practice of unilateral qualification as a
right of the State of a refuge and an obligation upon the
territorial State.
North Sea Continental Shelf Case
Facts:
Germany, Denmark and Netherlands made lateral line
agreements delimiting the North Sea continental shelves.
Denmark and the Netherlands claim that the equidistant
principle, being in the Geneva Convention and already
having the status of CIL, should be applied. However, this
application would give Germany only a smaller portion.
Germany claims that the doctrine of just and equitable
share be applied.
Issue:
W/N the equidistant principle is a CIL - No.
Held:
No. For a provision in a Convention to become CIL, it
must be "norm-creating". While the Geneva Convention
does call for the rule of equidistance, the Court found that
 the Geneva Convention was not binding upon Germany.
Moreover, the stipulations outlined in the Geneva
Convention would have allowed Germany to opt out in this
area, so its membership in the treaty is a moot point.
Upon inspection of the language of both the Geneva
Convention and the Truman Proclamation, equidistance
was found to be a last resort rather than an a priori rule.
Also looking to these sources, the Court rejected claims
which included equidistance in customary international law.
These texts which originally included the rule of
equidistance only did so for secondary purposes, and the
utilisation of it was insufficient to prove it to be either
customary international law, or a general law of practicality.
The Court also pointed out mathematical problems of
contradiction under the rule.
The Court rejected Germanys claim of proportional
apportionment because doing so would intrude upon the
natural claims due to States based on natural prolongations
of land. Also, the Courts role was to outline a mechanism
of delimitation only. The Court found, therefore, that the two
parties must draw up an agreement taking both the
maximization of area and proportionality into account.
These were to be based upon equitable principles. The
holding here is somewhat inconclusive, but the opinion is
significant to international law, regardless.
Nuclear Test Cases (Australia v. France)
Facts:
Australia filed this case against France for conducting
nuclear tests in the Pacific Ocean. Despite not submitting
to the jurisdiction of the ICJ, France made declarations to
the effect that it would stop conducting the nuclear tests.
Issue:
W/N France is bound by such unilateral declarations - Yes
Held: Yes.
The unilateral declaration of France to Australia, New
Zealand and the UN General Assembly that the
atmospheric tests will be the last of this type bound itself
because it is a unilateral declaration on a factual or legal
situation, made publicly and ergs omnes which creates
binding obligations.
Unilateral declarations can be a source of obligation,
provided that:
1. the commitment is very specific, and
2. there was a clear intent to be bound
Nicaragua v. US
Facts: Niacragua filed a case agains the US claiming that it was
interfering in its local political affairs by means of military and
 covert operations. One of their claims is that the US has breached
its obligations under customary international law by such
operations, by its intervention in its affairs, by entering its territory,
etc.
Doctrine: In order to deduce the existence of customary rules, it is
sufficient that the conduct of states should, in general, be
consistent with such rules, and that instances of state conduct
inconsistent with a given rule shall be treated as a breach, not as
an indication of the recognition of a new rule
Decisions of international organizations
GR: resolutions and declarations of international organs can be recognised as
a factor in the custom-generating process (evidence of practice)
South-West Africa; dissent by Tanaka
Facts:
Ethiopia and Liberia filed a case against South Africa claiming
that it unduly discriminated, both in practice and by law, between
its inhabitants in favor of those from European descent, among
others, in violation of CIL. They claim that resolutions and
declarations of international organizations
Issue:
W/N the resolutions and declarations of international organs can
be recognized as a factor in the custom-generating procession
Dissenting opinion: Yes
Yes. The norm of non-discrimination or non-separation on
the basis of race has become a rule of customary
international law because resolutions, declarations, etc, on
the same matter and organizations took place repeatedly.
General practice, in custom-generating process, is generally a
result of the repetition of individual acts of States constituting
consensus in regard to a certain content of a rule of law. Each
resolution, declaration, etc is a manifestation of the collective will
of individual participant States. ICJ cited the ff. resolutions:
1. of the GA
2. of the Security Council
3. 11 trust territories agreements
4. UDHR
5. UDEFRD, and many others
General Assembly Resolutions
Higgins, advisory opinion on Namibia
Facts:
The mandate of South-West Africa existed under the provision of
the Charter of the league of nations. However, when the League
was dissolved, it still continued to exist on the reason that its
existence did not depend on the existence of the league. Later,
the Security Council issued a resolution recognizing the
termination of SWA's mandate and ordered for its withdrawal.
Issue:
 W/N such resolution is binding under Art. 25 of the UN Charter -
No.
Held: No. See GR and Exceptions below.
GR: UN General Assembly resolutions are merely recommendatory
Exceptions: [ABA]
1. admission of new members
2. budget approval
3. apportionment of expenses
Art. 25 of the UN Charter provides that UN Members agree to accept and
carry out the decisions of the Security Council
The limits of state practice
Persistent objector
BEFORE, a state that has persistently objected to a rule of customary
international law during the course of its emergence is not bound by it.
TODAY, however, new states are bound by customary international law
as a consequence of statehood, not of treaties.
Republic v. Sandiganbayan - illegal search and seizure during interregnum
case
During the interregnum, when no constitution was in force, the resulting
government was indisputably a revolutionary government bound by no
constitution or legal limitations except treaty obligations that the revolutionary
government, as the de jure government in the Philippines, assumed under
international law.
Although the Bill of Rights was not in effect, the protection accorded to
individuals under the Covenant and the Declaration REMAINED IN EFFECT
during the interregnum.

Module 4: Domestic Law

The third source of international law are the general principles of law recognized by
civilized nations.
This actually refers to principles of municipal law common to the legal systems
of the world.
Bernas: International and Municipal Law
When international law and domestic law conflict:
1. according to dualist or pluralist theory (prevailing practice), municipal
law must prevail.
dualists think that municipal law governs relations between
individual and the state, while international law regulates relations
between states
2. according to the Monistic Theory or Monism:
1. First theory (inverted Monism), municipal law prevails
2. Second theory, international law prevails
3. Harmonization - the 2 legal systems are harmonized and given effect
Municipal law in international law
Art. 38 recognizes the common teachings of domestic law as part of
 international law
International law in domestic law
Two theories:
1. transformation
for international law to be binding and given effect within a
State, there must be legislation
2. incorporation
international law is adopted as part of the law of the land
Philippines:
for treaties, transformation
for CIL, incorporation
Mejojfv v. Director of Prisons
A detained Russian national was ordered released
on bail by the SC when after 2 years, the deportation
order could not be carried out because no ship or
country would take him. SC applied UDHR, among
others, in justifying the order.
Art. 2 of UDHR says that everyone has the right to
an effective remedy by the competent nationals for
acts violating the fundamental rights granted him by
the Constitution or by law.
Agustin v. Edu
SC applied the Vienna Convention on Road Signs
and Signals in settling the dispute between the
parties.
JBL Reyes v. Bagatsing
the SC applied the doctrine of immunity of a foreign
state from suit as a principle of international law
Rules on conflict between a treaty and law:
It depends on which court is deciding:
1. international court - will uphold treaty obligation in general
2. domestic court - will uphold local laws
Specific situations of conflict:
1. treaty v. constitution
GR: VCLT provides that a party may not invoke the
provisions of a municipal law as justification to
perform a treaty
Exception:
Art. 46. VCLT provides that when
constitutional violation is manifest and
concerns a rule of internal law of fundamental
importance, state may deviate from treaty
obligation
under the dualist theory, unconstitutionality of a
treaty is purely a domestic matter, and that State
faces risk of international sanction
2. treaty v. domestic legislation
 when 2 instruments relate to the same subject and
are irreconcilable, the later in date shall control in the
domestic sphere, provided that the treaty stipulation
is self-executing.
However, a treaty, even if contrary to a later statute,
is nevertheless binding in international law.
General principles of international law
International status of South-West Africa, Opinion of Sir
Arnold McNair
Facts:
The territory of SWA was formerly part of the
German territory during WW1. Through the Treaty of
Versailles, the Allies obtained possession over it and
was placed under a Mandate conferred upon the
Union of South Africa which was to have full power
of administration and legislation over said territory.
This duty was given to the Union by the League of
Nations. After WW2 and the dissolution of the
League, the Union sought the integration of the
Territory in the Union claiming that its mandate had
already lapsed. The UN refused to consent but
instead invited the Union to place the Territory under
Trusteeship in accordance with the UN Charter. The
Union applied for an advisory opinion with the ICJ
basically asking what is the international status of
SWA.
Issue:
What is the international status of SWA
Held:
The Union, including its functions and duties, and its
mandate continue to exist despite the dissolution of
the League. The ICJ applied the principles of trust
in civil law in determining the obligations of the
Union to the Territory. It ruled that the Union, as
trustee state, exercises limited control based on
confidence and conscience and cannot carry out the
trust or mission for its own benefit. Any attempt to
absorb the property entrusted to them shall be
illegal.
Diversion of Water from the River Meuse
Facts:
Netherlands complained that certain canals
constructed by Belgium were in violation of an
agreement in that the construction would alter the
water level and rate of flow of the Meuse River.
Netherlands invoked a treaty. Belgium
counterclaimed based on the construction of a lock
 by the Netherlands at an earlier time. Belgium
invoked nothing.
Held:
ICJ dismissed both the claim and the counterclaim,
holding that they can both do whatever they want but
only within their own territories without causing
damage to the other. A certain Justice Hudson, in his
concurring opinion, applied the principles of equity.
He said that when 2 states undertake reciprocal
obligations, a non-performing state should not
take advantage of the non-performance of the
other. that this is based on equitable
principles/maxims such as "equality is equity",
"he who seeks equity must do equity". He also
says that the ICJ has the power to rule based on
equity by being given the power by the Statute to
"decide cases ex aequo et bono"
equity - law cannot cover every possible
situation, so cases may be decide based on
equitable principles
ex aequo et bono - ICJs power to decide a case
equitably outside the rules of law.
Other examples of general principles of law: [PURLEIGH PREP
HEARD PP]
principles of liability
responsibility
reparation
unjust enrichment
property
expropriation
indemnity
good faith
estoppel
prescription
presumption
human rights
denial of justice
right of passage
error
administrative law
procedure
humanity
pacta sunt servanda
Application of international law by domestic courts
Filartiga v. Pena-Irala
Facts:
Filartiga was kidnapped and tortured to death in
 Paraguay by Pena-Irala who was at that time
Inspector General of the Police. The NY Court
claimed jurisdiction based on the Alien Tort Statute
which allowed aliens to sue and have rights enforced
in US courts for acts committed outside the US..
Issue:
W/N torture, despite being done under color of
official authority, violates international law - Yes
Held:
Yes. The SC held that the prohibition not only
was part of CIL, but was also part of the UDHR.
Members of the UN cannot claim ignorance of
what human rights they promised the Charter.
The UDHR is an authoritative statement of the
international community. It creates an expectation of
adherence. The international consensus surrounding
torture has been manifested in numerous treaties
and is also reflected in modern municipal law.
Torture is prohibited in the constitutions of over 55
nations including the US and Paraguay.
Trendtex Trading Corp v. Central Bank of Nigeria
Facts:
The Central Bank of Nigeria opened a LOC in favor
of Trendtex for the purchase of cement. The cement
was shipped but for whatever reason, Nigeria
refused to pay invoking state immunity.
Issue:
W/N Nigeria can claim immunity - No
Held:
No. An English court tried the case. In holding
Nigeria liable, it held that, under the Law Merchant,
letters of credit must be honored. The court deemed
international law to be incorporated into the law of
the land automatically, except if it conflicted with the
domestic system.
The Philippines adopts the generally accepted principles of international
law as part of the law of the land.
This refers only to CIL and other general principles of law, NOT
treaties.
Case Law:
Tanada v. Angara - GATT-WTO
Sovereignty is limited by international law and treaties
By the doctrine of incorporation, the country is bound
by generally accepted principles of international law,
which are considered to be automatically part of our
own laws.
One of the oldest and most fundamental rules in
 international law is pacta sunt servanda
international agreements must be performed in good
faith. "A treaty engagement is not a mere moral
obligation but creates a legally binding obligation on
the parties . . . A state which has contracted valid
international obligations is bound to make in its
legislations such modifications as may be necessary
to ensure the fulfilment of the obligations
undertaken.
By their voluntary act, nations may surrender some
aspects of their state power in exchange for greater
benefits granted by or derived from a convention or
pact.
The sovereignty of a state therefore cannot in fact
and in reality be considered absolute. Certain
restrictions enter into the picture:
(1) limitations imposed by the very nature of
membership in the family of nations and
(2) limitations imposed by treaty stipulations
Mijares v. Ranada - P2B Hawaii judgment
Recognition and enforcement of judgments is among the
generally accepted principles of international law

Module 5 - Personality under international law: States

Bernas
Subjects of international law
Subjects of international law are entities endowed with rights and
obligations in the international order and possessing the capacity to take
certain kinds of action on the international plane. They are those who
have international personality.
Objects of international law are those who indirectly have rights under or
are beneficiaries of international law through subjects of international
law.
The subjects of law are not necessarily identical in their nature or in the
extent of their rights, and their nature depends upon the needs of the
community.
States: Commencement of their existence
Under the Montevideo Convention of 1933, a state as a person of
international law should possess:
1. a permanent population
2. defined territory
3. government
4. capacity to enter into relations with other States
Characteristics of Statehood
Article 1 of the Convention on Rights and Duties of States (1933
Montevideo) provides for the qualifications of a State:
 1. permanent population - community of persons sufficient in
number and capable of maintaining the permanent existence of
the community and held together by a common bond of law
2. defined territory - even if boundaries of the state have not yet
been settled, if one or more of its boundaries are disputed, or if
some its territories are claimed by another state, the entity does
not cease to be a state
3. government - that institution or aggregate of institutions by which
an independent society makes and carries out those rules of
action which are necessary to enable men to live in a social state,
or which are imposed upon the people forming that society by
those who possess power or authority of prescribing them
4. capacity to enter into relations with other states - means
sovereignty which is dependent on recognition.
Self-determination the right to freely determine their
political status and freely pursue their economic, social and
cultural development.
Self-determination has 2 levels:
1. Establishment of new states
claim by a group within an established state to
break away and form a new entity
2. Does not establish a new state
claims to be free from external coercion, claim
to overthrow effective rulers and establish a
new government (assertion of the right of
revolution), or claim of people within an entity
to be give autonomy.
Case law:
Case concerning rights of national of the US in Morocco
Facts:
This is a case concerning the rights of US Nationals in Morocco,
filed by France against the US. A certain Residential Decree was
promulgated in the French Zone of Morocco which subjected
imports from the US to a system of licensing control. It
discriminated against US and in favor of France.
Held:
This differential treatment is not compatible with the Act of
Algeciras.
For purposes of PIL discussion, Morocco, despite its status as
being under the Protectorate which is France, has retained its
international personality as a State. Therefore, it is entitled to
economic liberty and equality under the Act of Algeciras conferred
upon states.
Report of the fifth committee of First Assembly of the League of Nations,
with reference to Admission of the League of Liechtenstein
The Government of the Principality of Liechtenstein has been
recognized de jure by many States and it possesses a stable
 Government and fixed frontiers. Juridically, Liechtenstein is a sovereign
State, but by reason of her limited area, small population and her
geographical position, she has chosen to depute to others some of the
attributes of sovereignty. The League of Nations denied its admission
because it could not discharge all the international obligations which
would be imposed on her by the Covenant. But she is still a State.
Recognition of states
when State A recognises State B, it means that both recognize the capacity of
each other to exercise all the rights belonging to statehood. It is an
acknowledgment of the capacity of an entity to exercise rights belonging to
statehood.
Can an entity claim to be a state before it is recognized by other states? 2
theories:
1. Declaratory theory
recognition is merely declaratory of the existence of the state and
that its being a state depends upon its possession of the required
elements and not upon recognition
2. Constitutive theory
recognition constitutes a state. it is what makes a state a state
and confers legal personality on the entity. This recognizes that
States may decide to recognize an entity as a state even if it does
not have all the elements of state as defined under the
Montevideo Convention
Recognition of governments
It means that the act of acknowledging the capacity of an entity to exercise
powers of government of a state.
If a change in government is brought about through ordinary constitutional
procedure, recognition by others comes as a matter of course.
The problem is acute when a new government within a state comes into
existence through extra-constitutional means.
Consequences of Recognition or Non-recognition
A government, once recognized, gains increased prestige and stability. The
doors of funding agencies are opened, loans are facilitated, access to foreign
court and immunity from suit are gained.
Non-recognition bars an entity from all these benefits.
Recognition is terminated when another regime is recognized.
Case Law:
Tinoco Arbitration
Facts:
The Government of Costa Rica, under President Gonzalez, was
overthrown by Tenneco. Tennecos government entered into
certain contracts with British Corporations. After Tennecos
retirement, the old constitution was restored and a Law of Nullities
was passed annulling the contract entered into during the
Tenneco regime. Britain sought to enforce one contract a loan
obtained by Tinoco claiming that the Tinoco Government was a
de facto government. The new government claims that is not
 bound because they were contracted by a government which was
contrary to their Constitution and hence could not be a de facto
government.
Issue:
What was the status of the Tinoco regime in international law
Held:
Although said regime was not recognized by other nations, it
had a de facto character which is juridically cognizable. A de
facto existence may affect private rights and obligations.
It is settled under the rule on continuity of states that a state is
bound by the agreements entered into by its previous
governments that have ceased to exist. However, it appears that
the loans extended were actually for the Tinocos flight expenses.
The new government cannot be held responsible for the money
paid to him for such a purpose. It is more properly claimable
against Tinocos estate. The Law of Nullities will therefore not
injure Great Britain.
Succession of States
States do not last forever. State succession can arise as a result of: [MADDS]
1. decolonization,
2. dismemberment of an existing state,
3. secession,
4. annexation and merger.
3 views:
1. new state succeeds to NO rights or obligations of the old state, but
begins with tabula rasa
2. new state assumes all obligations and rights of old state
3. succession has varying effects on state rights and duties
Succession to:
1. territory
for particular property, new state assumes territory of old state
for state property, subject to agreement between the old and new
states, title passes as follows:
1. where part of the territory becomes territory of another
state, property of the old state in that territory passes to the
new state
2. where the old state is absorbed by a new state, all property
of the old state passes to the new state
3. where part of the old state becomes a new state, property
of the old located in the territory of the new passes to the
new state.
2. public debt
subject to agreement between the states concerned,
responsibility for the public debt of the old remain with the old
state, except:
1. where part of the territory of the old state becomes territory
of the new state, local public debt under contracts relating
 to that territory are transferred to the new
2. where old state absorbed by new state, all are transferred
to new state
3. where part of a state becomes a separate state, local
public debt relating to the territory of the new state is
transferred to the new state
3. treaties
1. when part of the territory of the old becomes territory of the new
state, international agreements of the old regarding the said
territory cease. the 3rd party may claim rebus sic stantibus
2. when old is absorbed by new, all international agreements are
terminated
3. when part of the old becomes a new state, the new state will not
succeed to international agreements unless it accepts such
agreements and the other parties thereto agree or acquiesce.
clean slate theory
4. pre-existing boundary and other territorial agreements continue to
bind notwithstanding. uti possdetis.
Fundamental rights of states
Independence
Independence is the capacity of a state to provide for its own well-being
and development free from the domination of other states, provided it
doe not impair legitimate rights. As a right, it is the right to exercise
within its portion of the globe, to the exclusion of other, the functions of a
state.
Independence results to other rights such as jurisdiction over its territory
and permanent population, right to self-defense and the right to legation
Equality
Equality of legal rights irrespective of the size or power of the state
One state, one vote
Peaceful co-existence
includes mutual respect for each others territorial integrity and
sovereignty, mutual non-aggression, non-interference in each others
affairs and the principle of equality.
Some incomplete subjects
1. Protectorates
dependent states which have control over their internal affairs but whose
external affairs are controlled by another state.
2. Federal state
union of previously autonomous entities.
3. Mandated and Trust territories
mandated territories were territories placed by the LoN under one of the
Allies. The Mandate system was replaced by the trusteeship system
after WWII
Examples: Carolines, Marianas and Marshall Islands were placed under
the trusteeship of the US
4. Taiwan
 5. The Sovereign Order of Malta
6. The Holy See and Vatican City
has no permanent population
Insurgents
Protocol II
The only international agreement exclusively regulating the conduct of
parties in a non-international armed conflict is the 1977 Protocol II to the
1949 Geneva Conventions.
A non-international armed conflict is one which takes place in the
territory of a High Contracting Party between its armed forces and
dissident armed forces or other organized armed groups which, under
responsible command, exercise such control over a part of its territory
as to enable them to carry out sustained and concerted military
operations and to implement this Protocol.
For Protocol II to apply, the following must be present:
1. the armed dissidents must be under responsible command
2. they must exercise control over a part of its territory as to enable
them to carry out sustained and concerted military operations and
to implement this Protocol
NPA, MNLF and MILF are not covered; therefore, Common Article 3
applies, not Protocol II.
Insurgent groups which satisfy the requisites of Protocol II are
pre-statal entities possessing limited form of international
personality
State practice indicates 2 specific attributes of such personality:
1. they are recognized as having belligerent status against the de
jury government
2. they are seen as having treaty making capacity
Common Article 3
The 4 Geneva Conventions contain a common Article 3 which provides:

Art. 3. In the case of armed conflict not of an international character

occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the following
provisions:

(1) Persons taking no active part in the hostilities, including members of

armed forces who have laid down their arms and those placed hors de
combat by sickness, wounds, detention, or any other cause, shall in all
circumstances be treated humanely, without any adverse distinction
founded on race, color, religion or faith, sex, birth or wealth, or any other
similar criteria.

To this end, the following acts are and shall remain prohibited at any
time and in any place whatsoever with respect to the above- mentioned
persons:

(a) violence to life and person, in particular murder of all kinds,

 mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular hu- miliating and

degrading treatment;

(d) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all the judicial guarantees which are recognized as indispensable by
civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of

the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavor to bring into force, by
means of special agreements, all or part of the other provisions of the
present Convention.

The application of the preceding provisions shall not affect the legal
status of the Parties to the conflict.

Self-Determination
Self-determination the right to freely determine their political status and
freely pursue their economic, social and cultural development.
Self-determination has 2 levels:
1. Establishment of new states
claim by a group within an established state to break away and
form a new entity
2. Does not establish a new state
claims to be free from external coercion, claim to overthrow
effective rulers and establish a new government (assertion of the
right of revolution), or claim of people within an entity to be give
autonomy.
Case Law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples
The General Assembly, bearing in mind the principles enshrined in the
UN Charter denounces colonialism as an affront to human rights and
worldwide development. It recognizes the necessity of brining to a
speedy and unconditional end colonialism in all its forms and
manifestations. It declares the following:
All peoples have the right to self-determination, by virtue of that
right they:
1. freely determine their political status and
2. freely pursue their economic, social and cultural
development
 Western Sahara Case
Facts:
In 1844, Spain colonized Western Sahara. In 1966, pursuant to
the Declaration on the Granting of Independence to Colonial
Territories and Peoples, Western Sahara was to be decolonized.
However, Mauritania and Morocco are laying claim to some parts
of WS based on historic claims predating the colonization.
Issue:
What legal ties existed between Western Sahara, on the one
hand, and Mauritania and Morocco, on the other hand?
Held:
None. The principle of self-determination as a right of people and
its application for the purpose of bringing all colonial situations to
a speedy end were enunciated in the Declaration on the Granting
of Independence to Colonial Countries and Peoples.
The ultimate objective is for non-self-governing territories to
achieve independence pursuant to the desire and free will of its
peoples. This may be achieved in 3 ways:
1. Emergence as a sovereign independent State
2. Free association with an Independent State
3. Integration with an independent State
Any of these should be the result of freely expressed wishes of
the people acting with full knowledge of the change of their status
Current cases on secession and the concept of shared sovereignty:
Sudan - Machakos Protocol: plebiscitary consent
Northern Ireland - Good Friday Agreement: plebiscitary consent
Nepal Maoist - Power Sharing
Aceh (Indonesia) - limited autonomy
Quebec - attempt at a legislative vote to secede
Kosovo
Non-State Entities
1. The Commonwealth of Australia v. the State of New South Wales
Facts:
Australia sues one of its states, New South Wales, for torts
resulting from a collision of vessels. Wales claims it is immune
from suit because it is a sovereign state to be placed in the
same category as foreign states.
Held:
An Australian state is necessarily part of the territory of the
Commonwealth. It is not a foreign country. The people of NSW
are the very same people of Australia. They are but one people
with a common citizenship. Therefore, state immunity, and all
other privileges appurtenant thereto cannot be granted to NSW
under the pretext that it is a sovereign state.
2. Cultural Agreements between Quebec and France
Quebec is allowed to enter into such agreement due to the special
status accorded it under the Canadian Constitution
3. Mandate System
1. International Status of SWA - mandate created by League of
Nations elapsed when the League ceased to exist
Facts:
Germany renounced all rights to SWA through the
Versailles Treaty. Certain other territories as a
consequence of the war have ceased to be under the
sovereignty of their previous conquerors, but are still
incapable of self-government. By virtue of the Mandates
System created under the Covenant of the League of
Nations. In this case a tutelage was established for these
peoples, this tutelage entrusted to certain advanced
nations as Mandatories in behalf of the League. The
Union of South Africa became the Mandatory for SW Africa
exercising full powers of administration, subject to the
supervision of the Council of the League. The creation of
this new international institution did not involve any cession
of territory or transfer of sovereignty. Its object is to
promote the well-being of the inhabitants pursuant to the
sacred trust of civilization.
Issue:
did the mandate cease upon the dissolution of the league
of nations? Yes
Held:
Yes. But not the obligation arising from the sacred trust of
civilization which does not depend upon the existence of
the League.
2. Legal consequences for States of the continued presence of South
Africa in Namibia notwithstanding Security Council Resolution
The GA terminated the mandate of SWA and declared the
continued presence of South Africa in Namibia illegal. The
entry into force of the Charter of the UN created a
contractual relationship between the Mandatory States on
the one hand and the member states on the other.
Therefore, it only follows that when a party disowns or fails
to perform the obligations arising therefrom, then such
party cannot claim to retain such rights proceeding from the
agreement. In this case, South Africa was found to have
administered its mandate contrary to the international
agreements imposing its obligations as such, as well as
against the UN Declaration of Human Rights. It has failed
to ensure the moral and material well-being of the
inhabitants of Namibia. It has, in fact, disavowed the
Mandate. Such violations are a ground for termination.
4. Case of Belligerent Communities or Insurgent Groups and implications
for states like the Philippines, in re: MNLF/MILF and CPP/NPA/NDF -
obligations in the conduct of armed conflict
 Even belligerent groups and insurgents assume certain obligations
under international law w/c among others, include obligations such as:
obligation to distinguish between combatants and non-
combatants
prohibition against attacks on civilians
prohibition against superfluous injury or inflicting unnecessary
suffering
obligations to refrain from treachery
obligation to respect medical and religious personnel
prohibition against use of certain forms of weapons
5. Case of indigenous peoples (autonomous regions) UN Declaration on
the Rights of IPs; no right of secession

Module 6: International Organizations

1. International Organizations
United Nations
The UN came into being on October 24, 1945, when the UN Charter
came into force.
Admission to membership is governed by Art. 4:
The UN is a universal organization charged with peacekeeping
responsibilities, the development of friendly relations among
nations, the achievement of international cooperation in solving
international problems of an economic, social, cultural and
humanitarian character, and the promotion of human rights and
fundamental freedoms for all human beings without
discrimination. Article 1 of the Charter says that the UN can
include all other peace-loving states which accept the obligations
contained in the present Charter and, in the judgment of the
Organization, are able and will to carry out these obligations. As
new independent nations arise, the number of members continue
to grow.
Establishment, international personality, immunity
An international organization is an organization that is set up by treaty
among 2 or more states. It is different from non-governmental
organizations (NGO) which are set up by private persons. The
constituent document of international organizations therefore is a treaty.
For this reason, only states are members of international organizations.
Case Law:
Reparations for injuries suffered in the service of the UN
The question raised was: In the event that an agent of the UN, in
the performance of his duties, suffers injury in circumstances
involving the responsibilities of a State, does the UN, as an
Organization, have the capacity to bring a claim against the
 government to obtain reparation?
Held:
Yes. The Charter necessarily implies this. In discharging its
functions, the UN may find it necessary to entrust its agent
with important missions. These agents myst be ensured of
effective protection. The members of the UN created an
entity possessing objective international personality and not
merely personality recognized by them alone.
The UN, due to the nature of its functions and purposes is
likewise entitled to bring an action as an international
person. The member states, by adopting the Charter,
intended to constitute the UN as not only a center for
harmonization, but rather as a political body w/ very
important political tasks thus clothing the UN w/
international personality. In fact, given the nature of its
functions, the only way by w/c the UN can operate in the
international plane is for it to possess international
personality.
Although international organizations have personality in international
law, their powers and privileges are by no means like those of states.
Their powers and privileges are limited by the instrument that created
them.
2. European Communities (EU)
European Economic Community Treaty, Art. 211
Article 211. In each of the Member States, the Community shall enjoy
the most extensive legal capacity accorded to legal persons under their
laws; it may, in particular, acquire or dispose of movable and immovable
property and may be a party to legal proceedings. To this end, the
Community shall be represented by the Commission.
EU, Maastricht Treaty, 1991
The two big advances of the Treaty of Maastricht were the commitment
of the EC to full Economic and Monetary Union (EMU), including a
timetable and provision for a European Central Bank, and the
establishment of the three-pillar structure outlined above.

Module 7: Personality under international law - individuals and corporations

Bernas
Individuals
Summary:
Classical Rule: Human Rights - human being as an object of
international law
Progression of the Rule: Human being as a subject of
international law in a limited way.
 in the early development of international law, they were exclusively
under the control of states
in international law, they were objects or at least beneficiaries of
international law
Among the obligations of individuals are those arising from the
regulation of armed conflicts
There are also rules on international crimes such as:
crimes against humanity
genocide
aggression
terrorism
When individual rights are violated, individuals still have to rely on the
enforcement power of states. But some treaties have provided for the
right of individuals to petition international bodies alleging that a
contracting state has violated some of their human rights
Individuals possess international legal status
they have obligations they are associated with the international
community but they do not possess rights in relation to all
members of the community
they have procedural rights
Difference from states in international law:
states have legal personality proper; individuals have limited
locus standi
individuals have a limited array of rights (limited legal capacity)
Ebdalin on International Criminal Court
Unlike the ICJ where only states may be parties, the ICC has jurisdiction to try
individuals for the most serious crimes of international concern; no death
penalty can be imposed
Such crimes include:
1. genocide - of a particular race or culture
2. crimes against humanity - attack upon civilian populations w/ full
knowledge thereof
3. war crimes
4. aggression - not yet defined
it has jurisdiction only after entry into force of the Rome Statute
its jurisdiction is triggered by the referral to the Prosecutor of a:
1. state party
2. Security Council, or
3. motu proprio investigation by the Prosecutor
the general principles of criminal law are applied such as:
mens rea - guilty mind (malice)
nulla crimen - prohibition on ex post facto law
prospectivity
sources of law applied:
1. Statute
2. applicable treaties and rules of international law
3. general principles of law whenever applicable
 no reservations are permitted
ICC only exercises complementary jurisdiction meaning it can only step in if
the national authorities are unable or unwilling to act.
the ICC will only be born when at least 60 states ratify the Rome statute;
presently, it only has 43 ratifying states although having 139 signatories.
Case Law:
Judgment of the Nuremberg Tribunal
Facts:
WW2 happened and now the german soldiers and officers who
took part in certain war crimes such as genocide are facing trial
before the Nuremberg Tribunal
Issue:
W/N an individual could be held personally responsible for
executing Acts of his State - Yes
Held:
International Law imposes duties and liabilities upon individuals
and states. Crimes against international law are committed by
men, not by abstract entities, and only by punishing the
individuals who commit such crimes can the provisions of
international law be enforced.
The Treaty of Versailles illustrates and enforces this view of
responsibility
The principle of International Law, which under certain
circumstances, protects the representatives of the State,
cannot be applied to acts which are condemned as criminal
by the IL.
The authors of these acts cannot shelter themselves
behind their official positions in order to be freed from
punishment in appropriate proceedings.
Article 7 of the Charter expressly declares that, The official
position of defendants in government departments shall not be
considered as freeing them from responsibility or mitigating
punishment.
The very essence of the Charter is that individuals have
international duties which transcend the national obligations of
obedience imposed by the individual state.
He who violates the laws of war cannot obtain immunity
while acting in pursuance of the authority of the State if the
State, in authorising such actions, moves outside its
competence under IL
Article 8 of the Charter declares, The fact that the defendant
acted pursuit to order of his Government or of a superior officer
shall not free him from responsibility, but may be considered in
mitigation of punishment.
The true test, which is found in varying degrees in criminal
law of most nations, is not the existence of the order, but
whether moral choice was in fact possible.
 Acts deemed criminal in international law may be the subject
of an international claim
Recent development:
1. Ad hoc International Criminal Tribunals (Former Yugoslavia, Rwanda, and
Cambodia) they cover only crimes committed after entry into force, no death
penalty, no trial in absentia
2. Rome Statute of 1998
Individuals may be tried for genocide, crimes against humanity, war
crimes and crime of aggression (still undefined)
entry into force: July 2002
only covers crimes committed after entry into force
no death penalty
no trial in absentia
The Philippine law regarding international humanitarian law is RA 9851, signed
into law on December 12, 2009 before the ratification of the Rome Statute.
It defines punishable acts reflective of the relevant International
Humanitarian Law instruments, including concept of command
responsibility.
Direct v. Indirect obligations of corporations (Vasquez Article)
Considering that many transnational corporations have amassed great wealth
and power, and the fact that some small governments have been unable to
curb their potential human rights violations, the idea that corporations should
be made directly liable under IL has been advanced by many commentators.
Pursuant thereto, the Norms on the Responsibilities of Transnational
Corporations & Other Business Enterprises w/ Regard to Human Rights was
passed by the Su-Commission on the Promotion of Human Rights but was
shelved by the UN Commission on Human Rights due to the vehement
protests from the corporate sector. The author seems to disagree w/ the
wisdom of the proposition for the following reasons:

It represents a dramatic departure from the classical model where states are
the ones that assume obligations and responsibilities under international law.
This by itself is not sufficient reason not to depart from the classical model, but
there are more reasons.

Imposing direct liability to corporations will cause the disempowering of

states, w/c are not expected to respond yieldingly. Under the previous setup,
states have wide latitude to determine municipal rules and the conduct of
corporations w/in their respective jurisdictions

To impose liabilities on individuals, on the other hand, would undermine the

limited liability feature of corporations w/c has been an attractive feature to
utilize the corporate medium

Norms not backed by coercive force will be problematic in case of non-state

entities. Unlike states that voluntarily relinquish a part of their sovereignty out
of the belief that membership in the international community will redound to
 eventual benefit, corporations are more likely to decide based on their
economic interests. Without a coercive force, human rights will be trivialised,
rather than promoted.

Perhaps the best way to promote the protection of human rights among the
third world countries is for the said developing countries to agree upon certain
standards for multi-nationals operating w/in their respective territories. This
rule will be more consistent w/ the classical model, by imposing the obligations
upon the corporations indirectly. They can also focus on the elimination of
corruption and the promotion of democratic governance.
Corporations case law:
Dispute between Texaco Overseas Petroleum Co. / California Asiatic Oil
Co. and the Government of Libyan Arab Republic
Facts:
Libya issued decrees nationalising all the rights, interests and
properties of Texaco and California Asiatic that had been granted
to them under 14 deeds of concession.
Texaco and California requested arbitration and appointed an
arbitrator.
Since Libya refused to submit to arbitration, the ICJ appointed
Professor Dupuy as the sole arbitrator.
Issue:
W/N Libya is liable to the companies - Yes
Held:
Yes.
Dupuy ruled in against Libya, holding that the deeds of
concession were binding on all parties, that the Libyan
government breached its obligations under the deeds of
concession, and that the Libyan government was legally bound to
perform the deeds of concession according to their terms. The
deeds of concession contained a provision stating that the
concession would be governed by principles of Libyan law
common to principles of international law, and that in the
absence of such common principles, then they would be
governed by and in accordance with the general principles of
law, including those which have been applied by
international tribunals. The arbitrator concluded that the nature
of the deeds of concession agreement made it an
internationalized contract. He then considered the effect and
consequences of an internationalised contract on the rights of the
parties.
He discussed the meaning and scope of the internationalisation of
the contracts in dispute:
For some, the rules of economic international law concern
not only States but directly the individuals; because
economic and social progress has as its objective to assure
its direct application to those concerned
 Individuals are directly the subjects of economic or social
international law
The tribunal shall consider only the concept, as established
today, that legal international capacity is not solely
attributable to a State and that international law
encompasses subjects of a diversified nature
Other subjects enjoy also limited capacities which
are assigned to specific purposes
The subjects of law, in any legal system, are not
necessarily identical in their nature or in the extent of their
rights and their nature depends on the needs of the
community
Stating that a contract between a state and a private
person falls within the 2 international legal order
means that for the purposes of interpretation and
performance of the contract, it should be recognised
that a private contracting party has specific
international capacities
But, unlike a State, the private person has only a
limited capacity and his quality as a subject of
international law does enable him only to invoke, in
the field of International Law, the rights which he
derives from the contract
Such recognition does not mean that the State
recognises its partner to such a contract as a subject
enjoying all rights and duties due to a State
The private partner is recognised as a subject of only
those rights and duties, as are embodied in the
contracts concerned
The international personality and capacity of the
individual depend on the recognition granted to them
by the State in its legal relations with him
The internationalisation of certain contracts entered
into between a state and a private person does not
tend to confer upon a private person competences
comparable to those of a State but only certain
capacities which enable him to act internationally in
order to invoke the rights which result to him from an
international contract
Province of North Cotabato v. GRP

Module 8: Jurisdiction of States Territory

Jurisdiction:
as concept, it is the capacity to:
 1. legislate or to prescribe laws
2. enforce laws
as power, it is exercised over
1. persons
2. property
3. events
Bernas
Territory in international law
Territory, as an element of a state, means an area over which a state
has effective control
Control over territory is of the essence of a state. Although the exact
boundaries must be uncertain, there should be a definitive core over
which sovereignty is exercised.
acquisition of territory more precisely means acquisition of
sovereignty over territory.
sovereignty over territory is the legal condition for the inclusion of
such portion in the territory of any particular state.
Territory includes land, maritime areas, airspace and outer space.
Modes of acquisition over territory
Traditional modes of acquisition include: [PADoCCs]
1. discovery and occupation
2. prescription
3. cession
4. conquest and subjugation
5. accretion
Discovery and occupation
Occupation is the acquisition of terra nullius territory which prior to
occupation belonged to no state or abandoned by a prior occupant.
There is abandonment when the occupant leaves the territory with the
intention of not returning.
Elements: [DOE]
discovery
occupation
effective control
Prescription
requires effective control over territory which is not terra nullius for a
period longer than that required for occupation.
Cession
acquisition of territory through treaty
Ex. Versailles treaty ceding Philippines from Spain to US
cession by a conqueror is invalid, it being a de facto regime.
Conquest and Subjugation
BEFORE, acquiring property through conquest by means of force
necessitated that the war had ended either by a treaty or by indication
that all resistance had been abandoned. Also, there must be an
intention of acquiring the territory
Today, the 1970 Declaration of Principles of International Law
 Concerning Friendly Relations and Cooperation among States provides,
The territory of a state shall not be the object of acquisition
by another state resulting from threat or use of force. No
territorial acquisition resulting from the use of threat or force
shall be recognised as legal
Accretion and Avulsion
acquisition of sovereignty over territory by operation of nature
accretion - gradual increase of territory by acts of nature
avulsion - sudden change resulting for instance form the action of a
volcano
Intertemporal Law
the generally accepted view is that the rules in effect at the time of the
acquisition should be applied.
Case Law:
Island of Palmas Case
Facts:
Palmas (or Miangas), is an island having a population of about
750 and was of little strategic or economic value. It lies between
Mindanao and Nanusa in the Netherlands Indies. It is within the
boundaries of the Philippines as defined by Spain and thus ceded
to the US.
Later, Leonard Wood, an American General, visited Palmas and
discovered that Netherlands also claimed sovereignty over the
island.
The US and Netherlands submitted the dispute to arbitration
before Max Huber, a Swiss Jurist.
US claim:
US bases their title on cession by Spain, who obtained title
through discovery. they claim that the existence of their
sovereignty over the island is confirmed by the Treaty of
Munster and Treaty of Versailles. They also claim that, by
virtue of the principle of contiguity, since Palmas forms a
geographical part of the Philippines, whoever has
sovereignty over the Philippines has sovereignty over
Palmas.
Netherlands claim:
Palmas formed part of the Native States of the Island of
Sangi which were connected with the Netherlands by
contracts of suzerainty which conferred upon the suzerain
such powers as would justify considering the vassal state
as part of its territory.
Netherlands, by virtue of such suzerain power, exercised
acts characteristic of state authority over Palmas in
different period of time starting from 1700s.
Issue:
W/N Palmas belonged to US territory or to Netherlands territory -
Netherlands
 Held:
Netherlands
First, sovereignty, in relation between states, signifies
independence over a territory which is the right to exercise
therein, to the exclusion of other States, the functions of a
State.
The continuous and peaceful display (peaceful in relation to
other states) of territorial sovereignty is as good as title.
Territorial sovereignty involves the exclusive right to
display activities of a state. This right has a corollary
duty:
obligation to protect within the territory the rights of
other states together with the rights which each state
may claim for its nationals in foreign territory
Territorial sovereignty cannot be limited to simply excluding
the activities of other states
Second, although the Treaty of Paris was communicated to the
Netherlands who made no reservation thereto, any sovereignty
that Netherlands had over the island cannot be affected by their
mere silence
Third, discovery alone by Spain, i.e., the mere act of seeing
the land without any act of taking possession thereof does
not give the effect of acquiring sovereignty over the land.
Assuming arguendo that Spain obtained an inchoate title
thereto, such inchoate title cannot prevail over the
continuous and peaceful display of authority by another
state.
Lastly, there is no positive law providing that islands outside
territorial water should belong to a state by virtue that it form the
terra firma (nearest island of considerable size)
Legal Status of Eastern Greenland (Denmark v. Norway)
Facts:
In 1931, Norway declared that it had occupied certain territories of
Eastern Greenland (EG). Denmark filed a case before the
Permanent Court of International Justice claiming that EG was
already under its sovereignty.
Basis of Denmarks claim:
In 1697, by virtue of the Treaty of Lund, Sweden
recognised the rights of ancient rights and claims of the
King of Denmark over Greenland
In 1774, the King of Denmark constituted an Autonomous
Board to administer the trade activities in Greenland. The
State of Denmark had monopoly over the trade activities in
Greenland. This resulted in establishing colonies, factories
or stations along the West coast latter efforts to reach the
East coast were not successful
Norways claim:
 EG was terra nullius
The Norwegian submissions are that Denmark possessed
no sovereignty over the area which Norway occupied on
July 10th, 1931, and that at the time of the occupation the
area was terra nullius. Her contention is that the area lay
outside the limits of the Danish colonies in Greenland and
that Danish sovereignty extended no further than the limits
of these colonies.
Issue:
Who had sovereignty over EG? - Denmark
Held:
Denmark
PCIJ applied the doctrine in Palmas Case
A claim to sovereignty based on continued display of
authority involves 2 elements:
1. intention and will to act as sovereign
2. actual exercise or display of such authority
Up to 1931, there was no claim by any power other than by
Denmark to the sovereignty over Greenland.
The Norwegian submissions are that Denmark possessed
no sovereignty over the area which Norway occupied on
July 10th, 1931, and that at the time of the occupation the
area was terra nullius. Her contention is that the area lay
outside the limits of the Danish colonies in Greenland and
that Danish sovereignty extended no further than the limits
of these colonies.
the long series of conventionsmostly commercial in
characterwhich have been concluded by Denmark and in
which, with the concurrence of the other contracting party,
a stipulation has been inserted to that effect that the
convention shall not apply to Greenland. Treaties may also
be regarded as demonstrating sufficiently denmarks will
and intention to exercise sovereignty over Greenland.
1925: legislation was enacted regulating the hunting and
fishing and in the same year Greenland was divided into
provinces by a law which declared that all commercial
activity was reserved to the Danish state.
The character of these Danish acts is not altered by the
protests or reservations which were made by the
Norwegian Govt.
Western Sahara
Facts:
In 1844, Spain colonized Western Sahara. In 1966, pursuant to
the Declaration on the Granting of Independence to Colonial
Territories and Peoples, Western Sahara was to be decolonized.
However, Mauritania and Morocco are laying claim to some parts
of WS based on historic claims predating the colonisation.
 Morocco claims that it has legal ties with WS at the time of
colonisation by Spain and thus exercised sovereignty thereupon.
It claims that at the time Morocco occupied WS, it was terra
nullius.
Issue:
W/N Morocco was able to obtain sovereignty over WS prior to
Spanish Colonization - No
Held:
No
For occupation to operate, the territory must be terra nullius
belonging to no one before occupation
State practice indicates that territories inhabited by tribes or
peoples having a social and political organisation were not
regarded as terra nullius.
In this case, Western Sahara was inhabited by people which,
if nomadic, were socially and politically organised into tribes
and under chiefs competent to represent them.
In contrast, Spains sovereignty proceeded from agreements with
the local chiefs and was not in the nature of occupation but was
more in the nature of cession.
Philippine Application:
Art. 1 of the 1987 Constitution
The national territory comprises:
the Philippine archipelago, with all the islands and waters
embraced therein, and
all other territories over which the Philippines has sovereignty or
jurisdiction, consisting of its:
terrestrial, fluvial and aerial domains, including its
territorial sea, the seabed, the subsoil, the insular shelves,
and other submarine areas.
The waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines.
Sabah - Cession
The territory was originally owned by the Sultan of Sulu, Jamalul Alam.
He leased the same to Baron de Overback and Alfred Dent. For some
reason, Dent consolidated ownership and established the British North
Borneo Co. w/c was placed under British protectorate. The Company
surrendered its rights thereto to the British Government and Sabah
became a British Colony. When Malaysia was formed, Sabah became
its constituent part. The Sultan Esmail Kiram, heir to Sultan Alam,
thereafter cancelled the lease and ceded the territory to the Philippine
Government (cession).
The claim of the Philippines is therefore anchored on the
proposition that as lessee, Dent could not have acquired dominion
over the territory and cede the same to the British. Nonetheless,
the 1987 Constitution in defining the national territory omitted the
 phrase other territories belonging to the Philippines by historic
right or legal title. Relations between Malaysia and the Philippines
have been normalized since then, and the issue remained unresolved.
Spratlys - claimants: China, Vietnam, GRP, Malaysia, Brunei, Taiwan
The Spratlys Islands is presumed to be rich in oil ad fish reserves and is
strategically located in the South China Sea, at the very center of
maritime and air trade routes. Many countries lay claim.
Claims:
The Philippines claim is based on occupation that
the same was terra nullius when it was discovered by
Tomas Cloma, and since then it was considered under
Philippine Law as an administrative portion of
Palawan.
China claimed sovereignty, alleging the presence of
Chinese Temples and the expeditions send by its
emperors.
Vietnams contention was based on succession based on
the dissolution of the French Indochina, the presence of
temples and structures, missions, etc.
Malaysia, Taiwan, and Brunei also law claim.
Negotiations are at a standstill but China is allegedly
creeping in by building permanent structures. It was
maintained a strong and rigid policy claiming sovereignty
over all islands w/in the area and requiring prior
clearance before passage of military ships and vessels.
So what remedies are available? Diplomatic negotiation through the
ASEAN is a good option, participation in workshops for management of
potential conflicts, and the organization of an International Authority.
Bringing the matter to the Security Council will only be subject to the
veto of China; the ICJ cannot assume jurisdiction unless both parties
submit to it. Arbitration is possible. The most feasible option is to bring
the case to the International Tribunal on the Law of the Sea the
convention of w/c China is a party. Our failure to act may result to loss of
the territory just like in the Island of Palmas Case.
History of RP maritime boundaries:
1898 Treaty of Paris
1930 US-UK convention
1961 RA 3046
1968 RA 5446
1978 PD 1596 (KIG) and PD 1599 (EEZ)
1984 Philippine Ratification of UNCLOS
Government position:
GRP claims over other island groups: Paracels, Pratas,
Macclesfield Bank, Scarborough Shoal, Mischief Reef
Effective occupation of Kalayaan Island Group by GRP through
Tomas Cloma in 1946, and through PD 1596, an administrative
district was formed to become a municipality on the Province of
 Palawan.
2009 RA 9522 - declared KIG and Scarborough Shoal as regime of islands
pursuant to Art. 121 of UNCLOS III

Case Law:
Magallona v. Executive Secretary - Constitutionality of Baseline Law
RA 9522 is constitutional. It is a statutory tool to demarcate the countrys
maritime zones and continental shelf under UNCLOS III, not to delineate
Philippine territory.
baselines laws are nothing but statutory mechanisms for UNCLOS III
States parties to delimit with precision the extent of their maritime zones
and continental shelves. In turn, this gives notice to the rest of the
international community of the scope of the maritime space and
submarine areas within which States parties exercise treaty-based
rights.
UNCLOS III and its ancillary baselines laws play no role in the
acquisition, enlargement or, as petitioners claim, diminution of territory.
Under traditional international law typology, States acquire (or
conversely, lose) territory through occupation, accretion, cession and
prescription, not by executing multilateral treaties on the regulations of
 sea-use rights or enacting statutes to comply with the treatys terms to
delimit maritime zones and continental shelves. Territorial claims to land
features are outside UNCLOS III, and are instead governed by the rules
on general international law.
Internal and Territorial Waters
Case Law:
Fisheries Case
Straight baseline allowed and delimitation of territorial waters
Facts:
UK of Great Britain and Northern Ireland filed this case
against Norway.
Norway, by a Decree, delimited the zone in which the
fisheries were reserved to its own nationals. One point in
dispute were the baselines from which the agreed 4 mile
territorial sea will be reckoned.
Norway argument:
what constitutes the Norwegian coast is the outer
line of the skjaergaard a group of islands, inlets
and rocks with countless straits and channels which
lies alone the coast of Norway and that it is from
the outer limits of the same that the straight
baselines should be reckoned.
UK argument:
the baselines must be based on low water mark and
on the coast of the mainland, not skajaergaard
Issue:
From where should the baselines be reckoned?
skajaergaard
Held:
skajaergaard
The skjaergaard has been exploited by Norwegian
fishermen since time immemorial and constitutes a whole
w/ the mainland itself. This is mandated by geographical
realities. That being the case, the waters embraced therein
form part of the internal waters of Norway.
The straight baseline method may also be utilized
considering that there was no single contiguous low
water mark that could be followed along the sinuosities
of the coast. Likewise, when there is a deep indentation
(such as in the base of bays), the baseline becomes
independent of the low watermark. The same applies to the
case at bar. Assuming that there are navigational routes
called Indreleia around and between the skjaergaard, they
do not possess a different status from internal waters.
Delimitations of internal waters do not depend entirely on
municipal law they have an international aspect. The
validity of the delimitation depends on IL. In deciding such
 cases as these, the court must consider different factors
such as (1) close dependence of the territorial sea upon the
land, (2) close relationship between the sea areas and the
land, and (3) economic interests of the region.
But the delimitation of sea areas has always an
international aspect since it interests States other than
the coastal State; consequently, it cannot be
dependent merely upon the will of the latter. In this
connection certain basic considerations inherent in the
nature of the territorial sea bring to light the following
criteria which can provide guidance to Courts: since the
territorial sea is closely dependent upon the land domain,
the baseline must not depart to any appreciable extent from
the general direction of the coast; certain waters are
particularly closely linked to the land formations which
divide or surround them
Straight baseline allowed and delimitation of territorial
waters
The Corfu Channel case
Facts:
In one instance, British cruisers were passing through the
North Corfu Channel when they hit mines either placed by
Albania or with its knowledge.
In another instance, British cruisers were fired upon as they
passed through the Channel. After protesting and
communicating with Albania, UK asked permission to do a
mine sweep of the waters. Albania said that UK can do so
as long as not in Albanian waters (which includes the
Corfu). UK nevertheless swept the Corfu for mines. Hence
this case
UK:
claims that Corfu Strait is an international strait
connecting 2 points of the high seas and that
innocent passage should be allowed
Albania:
claims that its territorial sovereignty was violated and
that it had a right to demand prior authorization
Issue:
W/N the North Corfu Channel is subject to innocent
passage - Yes
W/N UK violated Albanian sovereignty when it swept the
Corfu for mines - Yes
Held:
The North Corfu Channel belongs to that class of
international highways through w/c the right of
innocent passage exists at least during times of
peace. The fact that it is an alternative route as Albania
 contends is immaterial. The decisive criterion is geography:
that it connects 2 parts of the high seas and is used for
international navigation. Considering that Albania was at
that time hostile w/ its neighbor Greece, it is justified in
issuing reasonable regulations for passage of warships
but not outright prohibition or requirement of special
authorization. Innocent passage in international straits are
allowed
However, the minesweeping mission violated Albanias
sovereignty because it cannot be characterised as
innocent passage. Such mission was executed contrary to
the clearly expressed wishes of Albania
1982 Convention on the Law of the Sea
Art. 3

Breadth of the territorial sea

Every State has the right to establish the breadth of its territorial sea up
to a limit not exceeding 12 nautical miles, measured from baselines
determined in accordance with this Convention.
Art. 8

Internal waters

1. Except as provided in Part IV, waters on the landward side of the

baseline of the territorial sea form part of the internal waters of the State.

2. Where the establishment of a straight baseline in accordance with the

method set forth in article 7 has the effect of enclosing as internal waters
areas which had not previously been considered as such, a right of
innocent passage as provided in this Convention shall exist in those
waters.
Airspace
Bernas
The present regime on air navigation has developed from the Chicago
Convention on International Civil Aviation (1944) which entered into
force in 1974.
This Convention created the International Civil Aviation Organization
(ICAO), an agency of the UN, and prescribed the rules for international
civil aviation
Convention:

Article 1. Sovereignty

The contracting States recognize that every State has complete and
exclusive sovereignty over the airspace above its territory.
Article 2. Territory

For the purposes of this Convention the territory of a State shall be

deemed to be the land areas and territorial waters adjacent thereto under
the sovereignty, suzerainty, protection or mandate of such State.

Article 3. Civil and state aircraft

(a) This Convention shall be applicable only to civil aircraft, and shall
not be applicable to state aircraft.

(b) Aircraft used in military, customs and police services shall be

deemed to be state aircraft.

(c) No state aircraft of a contracting State shall fly over the territory
of another State or land thereon without authorization by special
agreement or otherwise, and in accordance with the terms thereof.

(d) The contracting States undertake, when issuing regulations for their
state aircraft, that they will have due regard for the safety of navigation
of civil aircraft.

Article 4. Misuse of civil aviation

Each contracting State agrees not to use civil aviation for any purpose
inconsistent with the aims of this Convention.

Article 5. Right of non-scheduled flight

Each contracting State agrees that all aircraft of the other contracting
States, being aircraft not engaged in scheduled international air services
shall have the right, subject to the observance of the terms of this
Convention, to make flights into or in transit nonstop across its territory
and to make stops for non-traffic purposes without the necessity of
obtaining prior permission, and subject to the right of the State flown
over to require landing. Each contracting State nevertheless reserves the
right, for reasons of safety of flight, to require aircraft desiring to
proceed over regions which are inaccessible or without adequate air
navigation facilities to follow prescribed routes, or to obtain special
permission for such flights.

Such aircraft, if engaged in the carriage of passengers, cargo, or mail for

remuneration or hire on other than scheduled international air services,
shall also, subject to the provisions of Article 7, have the privilege of
taking on or discharging passengers, cargo, or mail, subject to the right
of any State where such embarkation or discharge takes place to impose
such regulations, conditions or limitations as it may consider desirable.
 Article 6. Scheduled air services

No scheduled international air service may be operated over or into the

territory of a contracting State, except with the special permission or
other authorization of that State, and in accordance with the terms of
such permission or authorisation.

Article 7. Cabotage

Each contracting State shall have the right to refuse permission to the
aircraft of other contracting States to take on in its territory passengers,
mail and cargo carried for remuneration or hire and destined for another
point within its territory. Each contracting State undertakes not to enter
into any arrangements which specifically grant any such privilege on an
exclusive basis to any other State or an airline of any other State, and not
to obtain any such exclusive privilege from any other State.
Paris Convention of 1919

The first passenger-carrying airline flight happened in 1913 with

the St. Petersburg-Tampa Airboat Line.[1] Before that time, aircraft
had been used to carry mail and other cargo. With the start of
World War I in 1914, aircraft were being operated internationally
to carry not only cargo, but also as military assets. The
international use of aircraft brought up questions about air
sovereignty. The arguments over air sovereignty at the time
factored into one of two main viewpoints: either no state had a
right to claim sovereignty over the airspace overlying its territory,
or every state had the right to do so.[2]

The Paris Convention of 1919 sought to determine this question

as part of the process of framing the conventions assumptions,
and it was decided that each nation has absolute sovereignty
over the airspace overlying its territories and waters.
The Paris Convention was superseded by the Convention on
International Civil Aviation (aka the Chicago Convention).
Outer Space
Sovereignty over air space extends only until where outer space
begins (not yet defined where this is exactly)
It is now accepted that outer space and celestial bodies are not
susceptible to appropriation by any state.
1967 Treaty on the Exploration and Use of Outer Space:

Article I. The exploration and use of outer space, including the

moon and other celestial bodies, shall be carried out for the
benefit and in the interests of all countries, irrespective of their
degree of economic or scientific development, and shall be the
province of all mankind. Outer space, including the moon and
other celestial bodies, shall be free for exploration and use by all
States without discrimination of any kind, on a basis of equality
and in accordance with international law, and there shall be free
access to all areas of celestial bodies. There shall be freedom of
scientific investigation in outer space, including the moon and
other celestial bodies, and States shall facilitate and encourage
international co-operation in such investigation.

Article 11. Outer space, including the moon and other celestial
bodies, is not subject to national appropriation by claim of
sovereignty, by means of use or occupation, or by any other
means.

Article III. States Parties to the Treaty shall carry on activities in

the exploration and use of outer space, including the moon and
other celestial bodies, in accordance with international law,
including the Charter of the United Nations, in the interest of
maintaining international peace and security and promoting
international co- operation and understanding.

Article IV. States Parties to the Treaty undertake not to place in

orbit around the Earth any objects carrying nuclear weapons or
any other kinds of weapons of mass destruction, install such
weapons on celestial bodies, or station such weapons in outer
space in any other manner.

The Moon and other celestial bodies shall be used by all States
Parties to the Treaty exclusively for peaceful purposes. The
establishment of military bases, installations and fortifications,
the testing of any type of weapons and the conduct of military
maneuvers on celestial bodies shall be forbidden. The use of
military personnel for scientific research or for any other peaceful
purposes shall not be prohibited. The use of any equipment or
facility necessary for peaceful exploration of the Moon and other
celestial bodies shall also not be prohibited.

Article V. States Parties to the Treaty shall regard astronauts as

envoys of mankind in outer space and shall render to them all
possible assistance in the event of accident, distress, or
emergency landing on the territory of another State Party or on
 the high seas. When astronauts make such a landing, they shall be
safely and promptly returned to the State of registry of their space
vehicle.

In carrying on activities in outer space and on celestial bodies,

the astronauts of one State Party shall render all possible
assistance to the astronauts of other States Parties. States Parties
to the Treaty shall immediately inform the other States Parties to
the Treaty or the Secretary-General of the United Nations of any
phenomena they discover in outer space, including the Moon and
other celestial bodies, which could constitute a danger to the life
or health of astronauts.

Module 9: Jurisdiction of States Adjacent Maritime Areas

Bernas
Importance of the sea flows from two factors:
1. they are a medium of communication
2. they contain vast natural resources
Convention on the Law of the Sea of 1982

Article 2. Legal status of the territorial sea, of the air space over the
territorial sea and of its bed and subsoil.

1. The sovereignty of a coastal State extends, beyond its land territory

and internal waters and, in the case of an archipelagic State, its
archipelagic waters, to an adjacent belt of sea, described as the
territorial sea.

2. This sovereignty extends to the air space over the ter- ritorial sea as
well as to its bed and subsoil.

3. The sovereignty over the territorial sea is exercised subject to this

Convention and to other rules of international law.
Territorial Sea
The territorial sea is a belt of sea outwards from the baseline and up to
12 nautical miles beyond.
the original rules was the cannon shot rule which is the width of
water as measured in terms of the range of shore-based artillery.
later, this became the 3-mile rule which was eventually discarded
and changed to the 12-mile rule
Where the application of the 12-mile rule would result to overlapping
with a neighbouring states,
General Rule:
is that the dividing line is a median line equidistant form the
opposite baselines.
the exception:
is where historic title or other special circumstances
require a different measurement
Baselines: Normal or straight
Definition of baseline
the low-water line along the coast as marked on large scale
charts officially recognised by the coastal State. the width
of the territorial sea is measured from the baseline
2 ways of drawing the baseline
1. normal
drawn following the low-water line along the coast as
marked on the large-scale charts officially
recognised by the coastal state
this follows the curvatures of the coast, not normally
consisting of straight lines
2. straight baseline method
straight lines are drawn connecting selected points
on the coast without appreciable departure form the
general shape of the coast
can be used only by archipelagic states
low water mark is the mean between the 2 tides, which has
generally been adopted in the practice of states.
Art. 47 of CLOS

1. An archipelagic State may draw straight archipelagic

baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and an
area in which the ratio of the area of the water to the area
of the land, including atolls, is between 1 to 1 and 9 to 1.

2. The length of such baseline shall not exceed 100

nautical miles, except that up to 3 percent of the total
number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical
miles.

3. The drawing of such baselines shall not depart to any

appreciable extent from the general configuration of the
archipelago-

4. Such baselines shall not be drawn to and from low- tide

elevations, unless lighthouses or similar installations which
 are permanently above sea level have been built on them
or where a low-tide elevation is situated wholly or partially
at a distance not exceeding the breadth of the territorial sea
of another State.

5. The system of such baselines shall not be applied to an

archipelagic State in such a manner as to cut-off from the
high seas or the exclusive economic zone the territorial sea
of another State.

6. If a part of the archipelagic waters of an archipelagic

State lies between two parts of an immediately adjacent
neighboring State, existing rights and all other legitimate
interests which the latter State has traditionally exercised in
such waters and all rights stipulated by agreement between
those States shall continue and be respected.

7. F or the purpose of computing the ratio of water to land

under paragraph 1, land areas may include waters lying
within the hinging reefs of islands and atolls, including that
part of a steepsided oceanic plateau which is enclosed or
nearly enclosed by a chain of limestone islands and drying
reefs lying on the perimeter of the plateau.

8. The baselines drawn in accordance with this article shall

be shown on charts of a scale or scales adequate for
ascertaining their position. Alternatively, lists of
geographical co-ordinates of points, specifying the geodetic
datum, may be substituted.

9. The archipelagic State shall give due publicity to such

charts or lists of geographical co-ordinates and shall
deposit a copy of each such chart or list with the Secretary-
General of the United Nations.
Sovereignty over territorial sea
Although the sovereignty of the coastal state over its territorial sea and
the airspace above it as well as the seabed under is recognised, the sea
is subject to the right of innocent passage by another states. This
applies to both ships and aircraft. Submarines must surface.
Innocent passage is passage that is not prejudicial to the peace, good
order or security of the coastal state.
The ff. acts are NOT considered innocent passage:
1. Passage of a foreign ship shall be considered to be prejudicial to
the peace, good order or security of the coastal State if in the
territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty,

 territorial integrity or political independence of the coastal
State, or in any other manner in violation of the principles of
international law embodied in the Charter of the United
Nations;

(b) any exercise or practice with weapons of any kind

(c) any act aimed at collecting information to the prejudice

of the defense or security of the coastal State;

(d) any act of propaganda aimed at affecting the defense or

security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military

device;

(g) the loading or unloading of any commodity, currency or

person contrary to the customs, fiscal, immigration or
sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this

Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of

communication or any other facilities or installations of the
coastal State;

(1) any other activity not having a direct bearing on

passage.
Coastal states have the unilateral right to verify the innocent character
of passage, and it may take the necessary steps to prevent passage
that it determines to be not innocent
Internal Waters
are all waters landwards from the baseline of the territory
Archipelagic waters
Art. 8 (2). Where the establishment of a straight baseline in accordance
with the method set forth in Article 7 has the effect of enclosing as
internal waters areas which had not previously been considered as
such, a right of innocent passage as provided in this Convention shall
exist in those waters.
Art. 53 An archipelagic State may designate sea lanes and air routes
there above, suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic waters and the
 adjacent territorial sea.
Aware of the conflict these provisions had with the constitutional
provision on territory, the Philippines added the following declarations:
1. The signing of the Convention by the Government of the Republic
of the Philippines shall not in any manner impair or prejudice the
sovereign rights of the Republic of the Philippines under and
arising from the Constitution of the Philippines;
2. Such signing shall not in any manner affect the sovereign rights of
the Republic of the Philippines as successor to the United States
of America, under and arising out of the Treaty of Paris between
Spain and the United States of America of December 10, 1988,
and the Treaty of Washington between the United States of
America and Great Britain of January 2,1930;
3. Such signing shall not diminish or in any manner affect the rights
and obligations of the Contracting Parties under the Mutual
Defense Treaty between the Philippines and the United States of
America of August 30,1951, and its related interpretative
instruments; nor those under any pertinent bilateral or multilateral
treaty or agreement to which the Philippines is a party;
4. The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty of the
Philippines as an archipelagic State over the sea lanes and do
not deprive it of authority to enact legislation to protect its
sovereignty, independence, and security;
5. The concept of archipelagic waters is similar to the concept of
internal waters under the Constitution of the Philippines, and
removes straits connecting these waters with the economic zone
or high sea from the rights of foreign vessels to transit passage
for international navigation;
However, Article 8(2) already provides that it shall only apply to areas
which had not previously been considered as internal waters. The
constitutional provision is located in 1973 which predates the 1982
convention.
Bays
For bays, Art. 10 provides,
1. For the purposes of this Convention, a bay is a well- marked
indentation whose penetration is in such proportion to the width of
its mouth as to contain land-locked waters and constitute more
than a mere curvature of the coast. An indentation shall not,
however, be regarded as a bay unless its area is as large as, or
larger than, that of the semi-circle whose diameter is a line drawn
across the mouth of that indentation.
2. For the purpose of measurement, the area of an indentation is
that lying between the low-water mark around the shore of the
indentation and a line joining the low-water mark of its natural
entrance points. Where, because of the presence of islands, an
indentation has more than one mouth, the semi-circle shall be
 drawn on a line as long as the sum total of the lengths of the lines
across the different mouths. Islands within an indentation shall be
included as if they were part of the water area of the indentation.
3. If the distance between the low-water marks of the natural
entrance points of a bay does not exceed 24 nautical miles, a
closing line may be drawn between these two low-water marks,
and the waters enclosed thereby shall be considered as internal
waters.
4. Where the distance between the low-water marks of the natural
entrance points of a bay exceeds 24 nautical miles, a straight
baseline of 24 nautical miles shall be drawn within the bay in such
a manner as to enclose the maximum area of water that is
possible with a line of that length.
5. The foregoing provisions do not apply to so-called historic bays,
or in any case where the system of straight baselines provided for
in Article 7 is applied.
Contiguous Zone
The contiguous zone is an area of water not exceeding 24 nautical miles
from the baseline. It extends 12 mauled from the edge of the territorial
sea.
The coastal state exercises authority over that area to the extent
necessary to prevent infringement of its customs, fiscal,
immigration or sanitation authority over its territorial waters or
territory and to punish such infringement
However, this authority does not change the fact that beyond the
territorial sea, the waters are high seas and are not subject to the
sovereignty of the coastal state.
Exclusive Economic Zone or Patrimonial Sea
The area extending not more than 200 miles beyond the baseline
The coastal state has right over the economic resources of the sea
but doe snot affect the right of navigation and overflight of other
states.
Obligations of coastal states:
1. State must ensure that the living resources of the EEZ are not
subject to over-exploitation
2. they must promote the objective of optimum utilisation of the
living resources
If the coastal state does not have the capacity to harvest the allowable
catch, it must grant access to other states.
the delimitation of the overlapping EEZ between adjacent states is
determined by agreement
Continental (archipelagic shelf)
This refers to:
1. the seabed and subsoil of the submarine areas adjacent to the
coastal state but outside the territorial sea, to a depth of 200
meters, or beyond that limit, to where the depth allows
exploitation
 2. the seabed and subsoil of areas adjacent to islands
Deep Seabed: Common heritage of mankind
Islands
Art. 121 - Regime of islands
1. An island is a naturally formed area of land, surrounded by
water, which is above water at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone and the continental shelf of an island are
determined in accordance with the provisions of the Convention
applicable to other land territory.
3. Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or continental
shelf.
Islands can have their own territorial sea, EEZ and continental
shelf.
Islands which cannot sustain human habitation or economic life
only have a territorial sea
High Seas
are all parts of the sea that are not included in the territorial sea or in the
internal waters of a state.
6 freedoms of the high seas [FLONCS]
1. of navigation
2. of fishing
3. of overflight
4. to lay submarine cables and pipelines
5. to construct artificial islands and structures
6. of scientific research
Hot pursuit
A hot pursuit of a foreign vessel is allowed where there is good
reason to believe that the ship has violated laws of a coastal
state. The pursuit must start when the foreign vessel is within the
internal waters, archipelagic waters, territorial waters or the
contiguous zone of the pursuing state.
the hot pursuit must stop as soon as the ship pursued has
entered the territorial waters of another state
hot pursuit may only be carried out by military vessels
Continental Shelf
Case Law:
North Sea Continental Shelf Case
Facts:
Germany on the one hand and Denmark & the Netherlands
made line agreements delimiting the North Sea Continental
Shelves. Dispute arose as to the method of measuring the
same. Germany invokes just and equitable share while
Demark & Netherlands invoke the equidistance principle.
Held:
In holding that the two parties must draw up an agreement
 taking both the maximisation of area and proportionality
into account, the ICJ also said that the idea of extension is
the decisive criteria.
What confers title ipso jure to a continental shelf is the
fact that the submarine areas concerned may be
deemed actually part of the territory of the coastal
state. Although covered w/ water, they are mere
prolongations or continuations of that territory. It is but
an extension of something already possessed.
Therefore, either of the contentions is correct. Neither is the
proximity principle applicable. Even though an area is
closer to 1 state more than the other, if it is part of the
continental shelf of the latter, then to the latter it belongs.
Gulf of Maine Case
Facts:
US and Canada submitted to the ICJ this dispute to delimit
the maritime boundary in the Gulf of Maine
Each party submitted their own proposed delimitation
Canada claim
Canada concentrated its efforts on deducing these
other rules of maritime delimitation from the concept
of geographic adjacency, since it was convinced that
this concept constituted the basis of the title of the
coastal State to the partial extension of its
jurisdiction to the continental shelf and the waters of
which it formed the bed
Held:
ICJ disregarded both propositions and rendered a decision,
making a delimitation independent of the 2 proposals
Regarding adjacency, the Chamber acknowledges that in
most cases this concept can be related with the ability to
express the link between a States sovereignty and its
sovereign rights to adjacent submerged land.
It should not be forgotten, however, that legal title
to certain maritime or submarine areas is always and
exclusively the effect of a legal operation.
That boundary results from a rule of law, and not from
any intrinsic merit in the purely physical fact. In the
Chambers opinion, it is therefore correct to say that
international law confers on the coastal State a legal
title to an adjacent continental shelf or to a maritime
zone adjacent to its coasts; it would not be correct to
say that international law recognises the title conferred
on the State by the adjacency of that shelf or that zone
as if the mere natural fact of adjacency produced legal
consequences.
The Court in the North Sea Continental Shelf cases refused
 to imply any fundamental or inherent rule, the ultimate
effect of which would be to prohibit any State (otherwise
than by agreement) from exercising continental shelf rights
in respect of areas closer to the coast of another State.
At that time, the Court stressed that the submarine
areas appertaining to the coastal State were not
always those closest to its coasts.
Libya / Malta Continental Shelf Case
Facts:
Libya and Malta submitted to the ICJ this dispute to make a
delimitation on the continental shelf regarding their
maritime boundaries
Libyas claim:
the natural prolongation, in the physical sense, of
the land territory into the sea is still a primary basis
of title to continental shelf, it would follow that, if
there exists a fundamental discontinuity between the
shelf area adjacent to one Party and the shelf area
adjacent to the other, the boundary should lie along
the general line of that fundamental discontinuity.
Maltas claim
the new importance of the idea of distance from the
coast has conferred a primacy on the method of
equidistance for the purposes of delimitation of the
continental shelf, at any rate between opposite
States, as is the case with the coasts of Malta and
Libya. Malta considers that the distance principle
requires that, as a starting point of the delimitation
process, consideration must be given to an
equidistance line, subject to verification of the
equitableness of the result achieved by this initial
delimitation.
Held:
ICJ rejected both claims and harmonised both the natural
prolongation principle and the distance principle
Although the institutions of the continental shelf and the
exclusive zone are different and distinct, the rights which
the exclusive economic zone entails over the sea-bed of
the zone are defined by reference to the regime laid down
for the continental shelf.
Although there can be a continental shelf where
there is no exclusive economic zone, there
cannot be an exclusive economic one without a
corresponding continental shelf.
It follows that, for juridical and practical reasons, the
distance criterion must now apply to the continental shelf
as well as to the exclusive economic zone.
 This is not to suggest that the idea of natural
prolongation is now superseded by that of distance.

What it does mean is that where the continental

margin does not extend as far as 200 miles from the
shore, natural prolongation is in part defined by
distance from the shore, irrespective of the physical
nature of the intervening sea-bed and subsoil.

The concepts of natural prolongation and distance

are therefore not opposed but complementary; and
both remain essential elements in the juridical
concept of the continental shelf.
Thus, the Court is unable to accept the Libyan contention
that distance from the coast is not a relevant element for
the decision of the present case.

Article76

Definition of the continental shelf

1. The continental shelf of a coastal State comprises the seabed and subsoil of
the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or
to a distance of 200 nautical miles from the baselines from which the breadth of
the territorial sea is measured where the outer edge of the continental margin
does not extend up to that distance.

2. The continental shelf of a coastal State shall not extend beyond the limits
provided for in paragraphs 4 to 6.

3. The continental margin comprises the submerged prolongation of the land

mass of the coastal State, and consists of the seabed and subsoil of the shelf, the
slope and the rise. It does not include the deep ocean floor with its oceanic
ridges or the subsoil thereof.

4. (a) For the purposes of this Convention, the coastal State shall establish the
outer edge of the continental margin wherever the margin extends beyond 200
nautical miles from the baselines from which the breadth of the territorial sea is
measured, by either:

(i) a line delineated in accordance with paragraph 7 by reference to the

outermost fixed points at each of which the thickness of sedimentary rocks is at
least 1 per cent of the shortest distance from such point to the foot of the
continental slope; or
(ii) a line delineated in accordance with paragraph 7 by reference to fixed points
not more than 60 nautical miles from the foot of the continental slope.

(b) In the absence of evidence to the contrary, the foot of the continental slope
shall be determined as the point of maximum change in the gradient at its base.

5. The fixed points comprising the line of the outer limits of the continental
shelf on the seabed, drawn in accordance with paragraph 4 (a)(i) and (ii), either
shall not exceed 350 nautical miles from the baselines from which the breadth
of the territorial sea is measured or shall not exceed 100 nautical miles from the
2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

6. Notwithstanding the provisions of paragraph 5, on submarine ridges, the

outer limit of the continental shelf shall not exceed 350 nautical miles from the
baselines from which the breadth of the territorial sea is measured. This
paragraph does not apply to submarine elevations that are natural components
of the continental margin, such as its plateaux, rises, caps, banks and spurs.

7. The coastal State shall delineate the outer limits of its continental shelf,
where that shelf extends beyond 200 nautical miles from the baselines from
which the breadth of the territorial sea is measured, by straight lines not
exceeding 60 nautical miles in length, connecting fixed points, defined by
coordinates of latitude and longitude.

8. Information on the limits of the continental shelf beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
shall be submitted by the coastal State to the Commission on the Limits of the
Continental Shelf set up under Annex II on the basis of equitable geographical
representation. The Commission shall make recommendations to coastal States
on matters related to the establishment of the outer limits of their continental
shelf. The limits of the shelf established by a coastal State on the basis of these
recommendations shall be final and binding.

9. The coastal State shall deposit with the Secretary-General of the United
Nations charts and relevant information, including geodetic data, permanently
describing the outer limits of its continental shelf. The Secretary-General shall
give due publicity thereto.

10. The provisions of this article are without prejudice to the question of
delimitation of the continental shelf between States with opposite or adjacent
coasts.
Exclusive Economic Zone
Case Law:
Fisheries Jurisdiction
Facts
Iceland, sue to its significant dependence upon fishing,
repudiated the 1961 Exchange of Notes w/ the UK and
unilaterally imposed an increase of its exclusive fisheries
jurisdiction initially to 12 nautical miles, and eventually to 50
nautical miles w/ the end in view of exclusive fishing rights
over the entire continental shelf area. Claiming preferential
rights it thereafter promulgated regulations prohibiting the
UK from fishing therein. The UK recognised he special
situation of Iceland and its dependence upon fishing, but
rejected the contention that the Exchange of Notes was no
loner in force as well as the alleged right of Iceland to
exclude UK altogether from the fisheries zones.
Held:
The acts of Iceland cannot be sustained.
The validity of delimitations depends upon IL. The freedom
of the high seas is made subject to the consideration that
its utilization shall be w/ reasonable regard to the interests
of other states. Both concepts of fishery zone and
preferential right are crystallized into customary law.
However, preferential rights are implemented by agreement
between states concerned, and it is wholly inconsistent w/
the idea of excluding fishing activities of all other states.
Besides the UK has substantial historic and special
interests in the disputed waters. Iceland unilateral action is
thus an infringement of the 1958 Geneva Convention on
the Law of the Seas, mandating due regard to the interests
of other states. Icelands preferential rights may vary
depending on the circumstances, but they must be
reconciled w/ the interests of the UK and this is to be
done by negotiation.
People v. Tulin - Piracy case
It is likewise, well-settled that regardless of the law penalizing the same, piracy
is a reprehensible crime against the whole world
Const. Art. 2, Section 2.
 The Philippines renounces war as an instrument of national policy, adopts the
generally accepted principles of international law as part of the law of the land
and adheres to the policy of peace, equality, justice, freedom, cooperation, and
amity with all nations.
1982 CLOS provisions

Article55

Specific legal regime of the exclusive economic zone

The exclusive economic zone is an area beyond and adjacent to the territorial sea,
subject to the specific legal regime established in this Part, under which the rights and
jurisdiction of the coastal State and the rights and freedoms of other States are
governed by the relevant provisions of this Convention.

Article56

Rights, jurisdiction and duties of the coastal State in the exclusive economic zone

1. In the exclusive economic zone, the coastal State has:

(a) sovereign rights for the purpose of exploring and exploiting, 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 with regard to other activities for
the economic exploitation and exploration of the zone, such as the production of
energy from the water, currents and winds;

(b) jurisdiction as provided for in the relevant provisions of this Convention with
regard to:

(i) the establishment and use of artificial islands, installations and structures;

(ii) marine scientific research;

(iii) the protection and preservation of the marine environment;

(c) other rights and duties provided for in this Convention.

2. In exercising its rights and performing its duties under this Convention in the
exclusive economic zone, the coastal State shall have due regard to the rights and
duties of other States and shall act in a manner compatible with the provisions of this
Convention.

3. The rights set out in this article with respect to the seabed and subsoil shall be
exercised in accordance with Part VI.
 Article57

Breadth of the exclusive economic zone

The exclusive economic zone shall not extend beyond 200 nautical miles from the
baselines from which the breadth of the territorial sea is measured.

Article123

Cooperation of States bordering enclosed or semi-enclosed seas

States bordering an enclosed or semi-enclosed sea should cooperate with each other in
the exercise of their rights and in the performance of their duties under this
Convention. To this end they shall endeavour, directly or through an appropriate
regional organization:

(a) to coordinate the management, conservation, exploration and exploitation of the

living resources of the sea;

(b) to coordinate the implementation of their rights and duties with respect to the
protection and preservation of the marine environment;

(c) to coordinate their scientific research policies and undertake where appropriate
joint programmes of scientific research in the area;

(d) to invite, as appropriate, other interested States or international organisations to

cooperate with them in furtherance of the provisions of this article.

Article 211

Pollution from vessels

1. States, acting through the competent international organization or general diplomatic

conference, shall establish international rules and standards to prevent, reduce and
control pollution of the marine environment from vessels and promote the adoption, in
the same manner, wherever appropriate, of routeing systems designed to minimize the
threat of accidents which might cause pollution of the marine environment, including
the coastline, and pollution damage to the related interests of coastal States. Such rules
and standards shall, in the same manner, be re-examined from time to time as
necessary.

2. States shall adopt laws and regulations for the prevention, reduction and control of
pollution of the marine environment from vessels flying their flag or of their registry.
Such laws and regulations shall at least have the same effect as that of generally
accepted international rules and standards established through the competent
international organization or general diplomatic conference.

3. States which establish particular requirements for the prevention, reduction and
control of pollution of the marine environment as a condition for the entry of foreign
vessels into their ports or internal waters or for a call at their off-shore terminals shall
give due publicity to such requirements and shall communicate them to the competent
international organization. Whenever such requirements are established in identical
form by two or more coastal States in an endeavour to harmonize policy, the
communication shall indicate which States are participating in such cooperative
arrangements. Every State shall require the master of a vessel flying its flag or of its
registry, when navigating within the territorial sea of a State participating in such
cooperative arrangements, to furnish, upon the request of that State, information as to
whether it is proceeding to a State of the same region participating in such cooperative
arrangements and, if so, to indicate whether it complies with the port entry
requirements of that State. This article is without prejudice to the continued exercise
by a vessel of its right of innocent passage or to the application of article 25, paragraph
2.

4. Coastal States may, in the exercise of their sovereignty within their territorial sea,
adopt laws and regulations for the prevention, reduction and control of marine
pollution from foreign vessels, including vessels exercising the right of innocent
passage. Such laws and regulations shall, in accordance with Part II, section 3, not
hamper innocent passage of foreign vessels.

5. Coastal States, for the purpose of enforcement as provided for in section 6, may in
respect of their exclusive economic zones adopt laws and regulations for the
prevention, reduction and control of pollution from vessels conforming to and giving
effect to generally accepted international rules and standards established through the
competent international organization or general diplomatic conference.

6. (a) Where the international rules and standards referred to in paragraph 1 are
inadequate to meet special circumstances and coastal States have reasonable grounds
for believing that a particular, clearly defined area of their respective exclusive
economic zones is an area where the adoption of special mandatory measures for the
prevention of pollution from vessels is required for recognized technical reasons in
relation to its oceanographical and ecological conditions, as well as its utilization or
the protection of its resources and the particular character of its traffic, the coastal
States, after appropriate consultations through the competent international organization
with any other States concerned, may, for that area, direct a communication to that
organization, submitting scientific and technical evidence in support and information
on necessary reception facilities. Within 12 months after receiving such a
communication, the organization shall determine whether the conditions in that area
correspond to the requirements set out above. If the organization so determines, the
coastal States may, for that area, adopt laws and regulations for the prevention,
reduction and control of pollution from vessels implementing such international rules
 and standards or navigational practices as are made applicable, through the
organization, for special areas. These laws and regulations shall not become applicable
to foreign vessels until 15 months after the submission of the communication to the
organization.

(b) The coastal States shall publish the limits of any such particular, clearly defined
area.

(c) If the coastal States intend to adopt additional laws and regulations for the same
area for the prevention, reduction and control of pollution from vessels, they shall,
when submitting the aforesaid communication, at the same time notify the organization
thereof. Such additional laws and regulations may relate to discharges or navigational
practices but shall not require foreign vessels to observe design, construction, manning
or equipment standards other than generally accepted international rules and standards;
they shall become applicable to foreign vessels 15 months after the submission of the
communication to the organization, provided that the organization agrees within 12
months after the submission of the communication.

7. The international rules and standards referred to in this article should include inter
alia those relating to prompt notification to coastal States, whose coastline or related
interests may be affected by incidents, including maritime casualties, which involve
discharges or probability of discharges.

Module 10: Jurisdiction over Persons and Economic Activities

Criminal and Civil Jurisdictions

Bernas + Extended Outline:

Jurisdiction of states
Jurisdiction means the authority to affect legal interests
Jurisdiction can be:
1. to prescribe norms of conduct - legislative
2. to enforce norms prescribed - executive
3. to adjudicate - judicial
The scope of a states jurisdiction over a person, thing or event depends on
the interest of the state in affecting the subject in question
International law limits itself to criminal rather than civil jurisdiction. Civil
jurisdiction is a subject for private international law or conflicts of law
5 principles:
1. Territoriality - elements of crime occurred in 2 states
2. Nationality - civil law follows national wherever he/she may be
3. Protective - punish aliens for acts against a states security,
independence or territorial integrity
4. Universality - eg. piracy, crimes against humanity
 5. Passive personality- punish aliens abroad who injures ones citizen
Territoriality principle
The Third Restatement summarises the rules on boundaries where states are
not islands but parts of a larger land mass:
1. the boundary separating the land areas of 2 states is determined by acts
of the states expressing their consent to its location
2. unless a consent to a different rule has been expressed:
1. when the boundary is a navigable river, its location is the middle
of the channel of navigation
2. when not a navigable river or a lake, its location is the middle of
the river or lake
GR: Vessels on high seas are subject to authority of the flag-state
Exception:
piracy
slave trade
hot pursuit
right of approach
Effects Doctrine
A state has jurisdiction over acts occurring outside its territory but having
effects within it
2 Principles:
1. subjective territorial principle - a state has jurisdiction to prosecute
and punish for crime commenced within the state but
consummated abroad
2. objective territorial principle - commenced outside the state but
consummated within the state
Lotus Case (France v. Turkey)
Facts:
A French mail steamer Lotus, on the way to
Constantinople, collided with the Turkish cutter Boz-Kourt
on the high seas. The Boz-Kourt sank with the loss of eight
sailors, all Turkish nationals. The Lotus subsequently
arrived in Constantinople at which point Turkish authorities
arrested Lieutenant Demons, the French officer in charge
of the Lotus at the time of the collision, and Hassan Bey,
the captain of the Boz-Kourt. Both were charged with
manslaughter.
Lieutenant Demons argued that the Turkish Courts had no
jurisdiction. This argument was rejected and he was
sentenced to eighty days imprisonment and a fine of
twenty-two pounds. Hassan Bey received a slightly heavier
sentence.
The French Government objected to the actions of the
Turkish Court. The French and the Turks agreed to submit
the dispute to the Permanent Court of International Justice
(the precursor to the ICJ).
France:
 For Turkish courts to have jurisdiction, it
should be able to point to some title to
jurisdiction recognised by international law in
favor of Turkey
Turkey:
It has jurisdiction whenever such jurisdiction
does not come into conflict with a principle of
international law.
Issue:
W/N Turkey violated international law by instituting criminal
proceedings against Demons
Held:
It is certainly true that apart from special cases which
are defined by international law vessels on the high
seas are subject to no authority except that of the State
whose flag they fly. In virtue of the principle of the
freedom of the seas, that is to say, the absence of any
territorial sovereignty upon the high seas, no State may
exercise any kind of jurisdiction over foreign vessels upon
them.
But it by no means follows that a State can never in its
own territory exercise jurisdiction over acts which
have occurred on board a foreign ship on the high
seas. A corollary of the principle of the freedom of the seas
is that a ship on the high seas is assimilated to the territory
of the State the flag of which it flies, for, just as in its own
territory, that State exercises its authority upon it, and no
other State may do so. All that can be said is that by virtue
of the principle of the freedom of the seas, a ship is placed
in the same position as national territory, but there is
nothing to support the claim according to which the rights of
the State under whose flag the vessel sails may go farther
than the rights which it exercises within its territory properly
so- called.
It follows that what occurs on board a vessel
upon the high seas must be regarded as if it
occurred on the territory of the State whose flag
the ship flies.
the conclusion must therefore be drawn that there is no
rule of international law prohibiting the State to which
the ship on which the effects of the offence have taken
place belongs, from regarding the offense as having
been committed in its territory and prosecuting,
accordingly, the delinquent.
This conclusion could only be overcome if it
were shown that there was a rule of customary
international law which, going further than the
 principle stated above, established the exclusive
jurisdiction of the State whose flag was flown.
France has failed to prove this.
The offense for which Lieutenant Demons appears to have
been prosecuted was an act of negligence or imprudence
having its origin on board the Lotus, whilst its effects
made themselves felt on board the Boz-Kourt. These two
elements are, legally, entirely inseparable so much so that
their separation renders the offense non- existent. Neither
the exclusive jurisdiction of either State, nor the limitations
of the jurisdiction of each to the occurrences which took
place on the respective ships would appear calculated to
satisfy the requirements of justice and effectively to protect
the interests of the two States. It is only natural that each
should be able to exercise jurisdiction and to do so in
respect of the incident as a whole. It is therefore a case of
concurrent jurisdiction.
[Concurrent jurisdiction portion superseded by Art. 97 of
UNCLOS:
No penal or administrative proceedings may be instituted
against the master of a ship except before the judicial or
administrative authorities either of the:
1. flag state, or
2. state of which such person is a national]
Jurisdiction over foreign vessels in Philippine Territory
2 Fundamental Rules:
1. French Rule - crimes committed on a foreign vessel cannot be
prosecuted by the country who has territorial jurisdiction over the
crime, unless such crime affects the peace and security of the
territory
2. English Rule (followed by US and Philippines) - such crimes can
be prosecuted in the courts of the country who ahas territorial
jurisdiction
Nationality Principle
Every state has jurisdiction over its national even when they are outside the
state
Blackmer v. US
A US citizen residing in France was cited in contempt by a US Court for
failure to respond to subpoenas issued to him. He questioned the courts
jurisdiction on him. SC held that, being still a citizen of the US and thus
owing allegiance to it, US had jurisdiction over him
Each state has the right to decide who are its nationals using either the
principle of jus sanguinis or jus soli or naturalisation laws. However, for a state
to claim a person as a national, the state must have reasonable connection or
an effective link with that person. The consent of the individual alone is not
enough for him to be recognised by other states as a national of the state to
which he claims to belong. (See Nottebohms case)
 As to corporations, a state has jurisdiction over corporations organised under
its law
Stateless persons
Stateless persons are those who do not have a nationality
They are either de jury or de facto stateless:
de jury stateless - lost their nationality and have not acquired a
new one
de facto stateless - have a nationality but to whom protection is
denied by their state when out of the state (situation of most
refugees)
Mejojfv v. Director of Prisons
A detained Russian national hired by japan as a spy, was arrested
in the Phil, but russians refused to accept him
he was ordered released on bail by the SC when after 2 years,
the deportation order could not be carried out because no ship or
country would take him. SC applied UDHR, among others, in
justifying the order.
Art. 2 of UDHR says that everyone has the right to an effective
remedy by the competent nationals for acts violating the
fundamental rights granted him by the Constitution or by law.
Protective Principle
A state may exercise jurisdiction over conduct outside its territory that
threatens its security, as long as that conduct is generally recognised as
criminal by states in the international community
This conditional clause excludes acts committed in exercise of the
liberty guaranteed an alien by the law of the place where the act was
committed.
Example:
plots to overthrow government
forging of currency
plot to break immigration laws
Lord Haw Haw case
An American citizen who broadcast messages from Germany seeking to
persuade the Allies to surrender. Until 1940, he held a British passport.
After the war, he was convicted of high treason in the United Kingdom.
In upholding the principle, Lord Jowwit of the House of Lords said: No
principle of comity demands that a state should ignore the crime of
treason committed against it outside its territory. On the contrary, a
proper regard for its own security requires that all those who commit that
crime, whether they commit it within or without the realm should be
amenable to its laws.
Universality Principle
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.
Examples:
 piracy
any illegal act of violence or depredation committed for private
ends on the high seas or outside the territorial control of any state
genocide
any acts committed with intent to destroy a national, ethnical
racial or religious group
crimes against humanity
any of the ff. acts committed as part of a wide-spread or
systematic attack directed against civilian population, with
knowledge of the attack:
1. murder
2. extermination
3. enslavement
4. deportation of population
5. deprivation of liberty against international law
6. torture
7. sexual violence
8. persecution
9. enforced disappearances
10. apartheid
war crimes
aircraft piracy
terrorism
Attorney General of Israel v. Eichmann
Facts:
Adolf Eichmann was a high ranking SS officer who played a
central role in the planning and implementation of the persecution
of Jews in Germany, Poland, Hungary and several other countries
before and during World War II. At the end of the war, he escaped
to Argentina where he lived and worked under an alias until May,
1960 when he was kidnapped by Israeli agents.
Eichmann was then tried in Israel under Israels Nazi
Collaborators Law (a law enacted after Israel became a state in
1948).
He was found guilty and the conviction was subsequently upheld
by the Supreme Court of Israel. On May 31,1962, Eichmann went
to the gallows, the only person ever formally executed by the
State of Israel.
Issue:
W/N Israel had jurisdiction to prosecute Eichmann considering
that his crimes were committed outside Israel - Yes
Held:
Yes.
The abhorrent crimes defined in this Law are not crimes under
Israel law alone. These crimes, which struck at the whole of
mankind and shocked the conscience of nations, are grave
offenses against the law of nations itself (delicta juris gentium).
 Therefore, so far from international law negating or limiting the
jurisdiction of countries with respect to such crimes, international
law is, in the absence of an International Court, in need of the
judicial and legislative organs of every country to give effect to its
criminal interdictions and to bring the criminals to trial. The
jurisdiction to try crimes under international law is universal
When a person commits a crime against the law of nations such
as piracy (or in this case genocide), he becomes an enemy to all
mankind a hostis humani generis. He places himself beyond the
protection of any state. It is in fact the moral duty of every state to
enforce the natural right to punish such criminals guilty of the
most extreme violations of the laws of nature so detrimental to the
welfare of the international community.
Thus, while as a general rule, criminal jurisdiction is territorial, the
jurisdiction of a state may extend to punishment of offenses
against the laws of nations. Genocide has already been
recognized as such under various conventions such as the
Charter of the Nuremberg Trial, the Convention on the Prevention
of the Crime of Genocide (under the UN), and various affirmations
of the UN General Assembly. The punishment of genocide is a
matter if international concern condemned by all of the civilized
world. The same would apply to slavery, crimes against peace,
and torture.
People v. Tulin - pirate case
Passive Personality Principle
asserts that a state may apply law particularly criminal law to an act
committed outside its territory by a person not its national where the victim of
the act was its national.
US v. Yunis - Arab men who hijacked a Jordanian aircraft which had several
US national passengers were charged before a US court = valid.
Conflicts of Jurisdiction
3 modes of resolving conflict of jurisdiction:
1. Balancing Test
In Timberlane Lumber v. Bank of America:
1. Was there an actual or intended effect on American foreign
commerce.
2. Is the effect sufficiently large to present a cognizable injury
to the plaintiffs and, therefore, a civil violation of the anti-
trust laws.
3. Are the interests of, and link to, the United States . . .
including effects on American foreign commerce sufficiently
strong, vis-d-vis those of other nations, to justify an
assertion of extraordinary authority.
If yes to all then court has jurisdiction
2. International Comity
Even when a state has basis for exercising jurisdiction, it will
refrain from doing so if its exercise will be unreasonable.
 Unreasonableness is determined by evaluating various factors,
such as
the link of the activity to the territory of the regulating state,
the connection, such as nationality, residence, or economic
activity, between the regulating state and the person
principally responsible for the activity to be regulated,
the character of the activity to be regulated,
the existence of justified expectations that might be
protected or hurt by the regulation,
the likelihood of conflict with regulation by another state.
3. Forum non conveniens
If in the whole circumstances of the case it be discovered that
there is a real unfairness to one of the suitors in permitting the
choice of a forum which is not the natural or proper forum, either
on the ground of convenience of trial or the residence or domicile
of parties or of its being the locus contracts, or locus solutions,
then the doctrine of forum non conveniens is properly applied. [?]
Extradition
is the surrender of an individual by the state within whose 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.
it is a process governed by a treaty; exists only when there is a treaty
but a state may surrender a fugitive if surrendering him is not contrary to
the states constitution
Principles:
1. No state is obliged to extradite unless there is a treaty
2. Differences in legal systems can be an obstacle to interpretation of what
the crime is
3. Religious and political offences are not extraditable
GR: No obligation to extradite when no treaty
Exception: Even with treaty, crimes with political complexion are exempt
Exception to exception: attentat clause - assassination of heads
of States, etc
On the rules governing extradition under international law, requisites:
one should ask:
1. is there a treaty?
2. is the crime listed?
In Re: Request for extradition of Doherty
Doherty was a member of the Provisional Irish Republican Army (rebel)
w/c organized an ambush of a British Army convoy, causing the death of
a soldier. He was arrested and charged, but was able to escape. He fled
to the US. Now, UK seeks to extradite him; but the US court disallowed
the same on the ground that the crime charged against Doherty was
political in nature.
The factors that have to be considered whether an act will qualify under
the exception of political nature are:
(1) the nature of the act,
 (2) the context in w/c it was committed,
(3) status of the party committing the act,
(4) nature of the organisation, and
(5) particularized circumstances.
Applying the above standards, the court concluded that Dohertys
actions fell under the exception considering (a) the area where the act
took place, (b) that there was no violation of the Geneva Convention
and IL, and (c) the attack was not targeted towards civilians.
Secretary of Justice v. Lantion
Mark Jimenez is without any right to notice and hearing during the
evaluation stage of an extradition process by the DFA under the RP-US
Extradition Treaty
Facts:
Secretary Of Justice Franklin Drilon, representing the
Government of the Republic of the Philippines, signed in Manila
the extradition Treaty Between the Government of the Philippines
and the Government of the U.S.A. The Philippine Senate ratified
the said Treaty.
On June 18, 1999, the Department of Justice received from the
Department of Foreign Affairs U.S Note Verbale No. 0522
containing a request for the extradition of private respondent Mark
Jimenez to the United States.
On the same day petitioner designated and authorised a panel of
attorneys to take charge of and to handle the case. Pending
evaluation of the aforestated extradition documents, Mark Jiminez
through counsel, wrote a letter to Justice Secretary requesting
copies of the official extradition request from the U.S Government
and that he be given ample time to comment on the request after
he shall have received copies of the requested papers but the
petitioner denied the request for the consistency of Article 7 of the
RP-US Extradition Treaty stated in Article 7 that the Philippine
Government must present the interests of the United States in
any proceedings arising out of a request for extradition.
ISSUE:
W/N Secretary of Justice committed GAD in denying such
request - No.
RULING:
The implementing law, PD No. 1069 provides that the notice shall
be given at the same time as the warrant of arrest. The same rule
is likewise provided in the treaty to w/c both the US and the
Philippines agree and to w/c other countries have expressed
the same interpretation.
For the purpose of notice and hearing, a criminal procedure
cannot be equated w/ an extradition proceeding and it follows that
the evaluation process is not similar to preliminary investigation.
Also applying the balancing of interests test, considering that the
case is only in its evaluation process, the nature of the right being
 claimed is nebulous in character and the degree of injury is
minimal. The balance is thus tilted in favor of the State. Such
procedural protection has not yet become due given the extent to
w/c the defendant is to suffer loss or injury.
DD: Notice and hearing for extradition cases is not required
during the Executive Phase of the proceedings, but it is
required in the Judicial Phase thereof. Considering that the
petition is still under the evaluation of the Secretary of Justice,
then it is still in the Executive Phase hence no notice and
hearing is yet required.
Bail in extradition cases
If after his arrest and if the trial court finds that an extraditee is not a
flight risk, the court may grant him bail.
bail may be granted to a possible extraditee only upon a clear and
convincing showing (1) that he will not be a flight risk or a danger to the
community, and (2) that there exist special, humanitarian and compelling
circumstances. [Purganan case overturned by Hong Kong case]
Case Law:
Secretary of Justice v. Munoz
In re: to the RP-Hongkong Extradition Treaty, the court held that
the provisional arrest of respondent was valid noting that the
requirements of the Agreement on documentation and the finding
of probable cause have been complied with.
Facts:
Muoz was charged before a Hong Kong court for 7 counts
of bribery and 7 counts of conspiracy to defraud. The HK
Court issued a warrant for his arrest but he fled to the Phils.
The Justice Department of HK requested the DOJ for
provisional arrest; the latter thus successfully procured an
Order of Provisional Arrest from the RTC Manila.
Thereafter, a verified petition for extradition was filed by the
HK Justice Department. Muoz assails the validity of the
provisional arrest, alleging that he was detained longer
than the 20-day period under PD No. 1069, that the offense
charged against him is not punishable under our laws
(dual-criminality rule), and that the request and documents
in support of the request were not verified and were sent
though fax machine. His contentions are all untenable.
Issue:
W/N the provisional arrest was valid - Yes
Held:
Yes.
First, whether the dual criminality rule was complied with is
a decision for the court where the extradition petition is
filed. The RTC has yet to rule on the same, making his
petition premature.
There was also urgency in the request, considering the
 gravity of the offense charged and the capacity of the
extraditee to flee or destroy evidence. This in fact is the
purpose of provisional arrest.
Also, the request for provisional arrest and its
accompanying documents need not be verified; what has to
be verified is the petition for extradition.
The request for provisional arrest also need not be sent by
official diplomat; that requirement also applies to the
petition for extradition.
Nonetheless, the HK Justice Department is the authorized
official to request for the same. There was also factual
basis for the finding of the RTC of probable cause. All
summed up, there was substantial compliance w/ all legal
requirements; the provisional arrest is therefore valid.
US v. Puruganan
Facts:
While his case was pending in the US, Mark Jimenez fled
to the Phils. Thus, the US seeks to extradite him. During
the extradition proceedings, Jimenez applied for bail.
Issue:
w/n he is entitled to bail - No.
Held:
No. Extradition proceedings are sui generis. They are not
criminal proceedings w/c call into operation the rights of the
accused under the Bill of Rights. Thus the right to bail does
not accrue. The only question that has to be resolved in
such proceedings is whether he is extraditable and the
extraditing country complied w/ the treaty. It is only a
measure of international judicial assistance, usually
summary in nature, and requires merely a prima facie case.
Final discretion lies w/ the President. It is not concerned w/
his guilt or innocence, w/c will be tried separately by the
extraditing country. Further, Jimenez has demonstrated the
capacity and will to flee, w/c is precisely what the
Extradition Treaty guards against.
The general rule is that in extradition proceedings, bail is
NOT a matter of right. It may only be granted as an
exception if:
1. The defendant can demonstrate that he is not a
flight risk, and
2. Exceptional, humanitarian, or compelling
circumstances.
Jimenez bears the burden of proving the existence of any
of the 2 exceptions.

Dissent of Justice Puno

From the moment a person is arrested, the guarantees
 under the Bill of Rights operate, including his right to bail.
This is more in accord w/ the Universal Declaration of
Human Rights as well as the Covenant on Civil and
Political Rights.
DD: A flight risk is a person who demonstrates the
capacity and the will to escape. (Culled from Darvins
Digests Constitutional Law 2 version).
[Purganan case overturned by Hong Kong case]
Rodriguez v. RTC Manila
Facts:
Eduardo and Imelda Rodriguez offered themselves for
voluntary extradition; they posted a cash bond worth P 1
million each. They were granted bail by the trial court. The
US government moved for reconsideration; the SC directed
the trial court to decide the matter based on the outcome of
the Mark Jimenez Case. Following the ruling therein, the
trial court cancelled the bail without prior notice and hearing
and issued the corresponding warrants of arrest. Eduardo,
meanwhile was already in the US attending to his case,
thus the case is moot as far as he is concerned. It is
Imeldas case that stands to be affected by this decision.
Issue:
W/N the cancellation of her bail violated due process - yes
Held:
yes. The cancellation of Imeldas bail, w/o prior notice and
hearing, is a violation of her right to due process. She is not
a flight risk and does not pose any danger to the
community; hence her bail could not be cancelled w/o
notice and hearing. While, it is true that notice and hearing
is not required before issuance of a warrant of arrest for
extradition cases because it would only tip the extraditee
and cause him to flee, the same principle does not apply
here.
Special circumstances must be considered. Imelda is in her
sixties and under medical treatment, she offered herself for
voluntary extradition, she surrendered her passport and
there is an existing hold-departure order against her.
She falls clearly w/in the 2 exceptions where a bail may be
granted to an extraditee: (1) she is not a flight risk, and (2)
the attendance of special and humanitarian considerations
such as her health and age.
DD: A flight risk is a person who demonstrates the
capacity and the will to escape.
Government of HK v. Olalia
The modern trend in PIL is the primacy placed on the worth of the
individual person and the sanctity of human rights.
while extraction is not a criminal proceedings, it is
 characterised by the ff.:
1. entails a deprivation of liberty
2. the means employed to attain the purpose of
extradition is also the machinery of criminal law
There is no law prohibiting the extradite from filing a motion for
bail, a right to due process.
the extradited must show by clear and convincing proof that
he is not a flight risk and will abide with all the orders of the
extradition court
Countries w/ Extradition Treaties w/ the Phils:
1. Australia
2. Canada
3. China
4. Hong Kong
5. Indonesia
6. South Korea
7. Switzerland
8. Thailand
9. USA
Rules governing commission of crimes on board an aircraft
Tokyo Convention of 1963
The objectives of the Tokyo Convention are (1) to ensure that in case of
offenses committed on board aircraft, there will always be jurisdiction
namely that of the state of registration, and (2) to authorize the aircraft
commander to take certain steps in relation to such offenders whenever
they jeopardize the safety of the aircraft. Pursuant thereto, the state of
registration may exercise jurisdiction over both offenses and acts in
the nature of civil violations whenever committed on board the aircraft. It
has power to define the precise offences over w/c to exercise
jurisdiction; and it is discretionary upon the state of registration whether
to exercise that jurisdiction.
The contracting state w/c is not the state of registration may not
interfere w/ an aircraft in flight in order to exercise its criminal
jurisdiction except for exceptional circumstances. For purposes of
extradition, the offenses committed on board will be treated as if
committed in the territory of the state of registration. However, the
Convention imposes no obligation to grant extradition.
The offences included are:
1. performing acts of violence w/c endanger the safety of the
aircraft
2. destroying or causing damage to aircraft in service
3. placing therein substances or devices likely to destroy or
endanger it
4. destruction or damage to air navigation facilities used for
international air navigation
5. communication of info known to be false w/c is likely to
endanger the safety of aircraft in flight
 6. attempted stage is punishable so are accomplices
an aircraft is deemed in flight when all its external doors are
closed following embarkation until the same are opened for
disembarkation, in case of forced landing, the aircraft is no longer
in flight when the local authorities gain control thereof
an aircraft is deemed in service from beginning of pre-flight
preparations, until the same is in flight
the Convention is not applicable to military, customs, or police
flight services
the Convention does not exclude criminal jurisdiction exercised
under municipal law
the state in w/c the offender is found is obliged to take him into
custody, and to prosecute the him if he is not subjected to
extradition
the above offences are deemed incorporated in pre-existing
extradition treaties agreed upon between the contracting states
if there is no extradition treaty, then this Convention may (must)
be used as basis for extradition
any dispute shall be subject to negotiation, and in case of failure
thereof, to arbitration, and then to
the ICJ at the instance of the parties (this is subject to
reservation)
for extradition purposes, a crime may be considered as having been
committed in the state of registry of the aircraft, but jurisdiction by
another Contracting State may be had if the offence:
1. has an effect on its territory
2. has been committed by or against its national or permanent
resident therein
3. is against its national security
4. relates to a breach of its national rules on flight
5. is the subject of an exercise of jurisdiction necessary to ensure
the observance of an obligation of such state under the
multilateral agreement.
Montreal Convention of 1971
Art. 8(2) becomes the basis for extradition even if there is no extradition
treaty with another party to the Convention
Nicolas v. Romulo
VFA is a mere implementation of the 1951 RP-US MDT
VFA is a sole executive agreement
Detaining american accused in US Embassy is not in accord with the VFA
Held:
The rule in international law is that a foreign armed forces allowed to
enter ones territory is immune from local jurisdiction, except to the
extent agreed upon.
As a result, the situation involved is not one in which the power of this
Court to adopt rules of procedure is curtailed or violated, but rather one
in which, as is normally encountered around the world, the laws
 (including rules of procedure) of one State do not extend or apply
except to the extent agreed upon to subjects of another State due to
the recognition of extraterritorial immunity given to such bodies as
visiting foreign armed forces.
Applying, however, the provisions of VFA, the Court finds that there is a
different treatment when it comes to detention as against custody. The
moment the accused has to be detained, e.g., after conviction, the rule
that governs is the following provision of the VFA:
Sec. 10. The confinement or detention by Philippine authorities
of United States personnel shall be carried out in facilities agreed
on by appropriate Philippines and United States authorities.
United States personnel serving sentences in the Philippines shall
have the right to visits and material assistance.
there is a difference between custody during the trial and detention after
conviction, because they provided for a specific arrangement to cover
detention. And this specific arrangement clearly states not only that the
detention shall be carried out in facilities agreed on by authorities of
both parties, but also that the detention shall be by Philippine
authorities. Therefore,
Respondents should therefore comply with the VFA and negotiate with
representatives of the United States towards an agreement on detention
facilities under Philippine authorities as mandated by Art. V, Sec. 10 of
the VFA.
Civil Jurisdiction
R.Y Jennings, Extraterritorial Jurisdiction and the US Antitrust Laws; Sherman
Act of 1890 and Federal Trade Commission Act and Clayton Act of 1914
Intended to protect trade and commerce against unlawful restraints and
monopolies should not contradict the local law.
The discussion revolved primarily on the exercise of extraterritorial
jurisdiction, in this case, for the purpose of applying the US anti-trust
laws. The following are salient findings and conclusions elucidated in
the article:
The general rule regarding jurisdiction is territoriality; that a state
is competent to punish crimes committed w/in its own territory.
This, however, was never meant to be an absolute rule. There
may be extra-territorial jurisdiction, but this is subject to the
principles of IL, and there must be limits and underlying
justifications for its exercise, lest it be subject to abuse.
Even if an act was lawful where it was done, it may still be made
unlawful in another jurisdiction especially if there is prejudice to
the safety and interests of the latter. But the extra-territorial
exercise of such jurisdiction must not be permitted to extend in
such a way as to amount to interference w/ the affairs of another
sovereign state, in w/c case, it amounts to abuse.
The principle of nationality IL permits a state to claim jurisdiction
over its nationals (natural or juridical) w/o territorial limit. With
regard to corporations, the courts can apply not only the place of
 incorporation test but also other tests such as control test to
determine nationality and activities.
The passive territoriality principle a state may claim to punish
aliens for offenses committed abroad to the injury of its own
nationals. This is also known as the protection principle. This is
the most questionable of all grounds considering that when a
person resides in another territory, he must then seek redress
based on the laws of that place, and not from the laws of his
state.
The security principle a state may exercise extraterritorial
jurisdiction over crimes directed against its security, territorial
integrity, credit, or interests. This is reasonable considering that
most states do not punish persons for offenses directed against
other states. But this rule must be limited to prevent abuse; the
Harvard draft code proposes that it should not cover acts done
under cover of a liberty guaranteed under local law.
The universality principle the suppression of crime is an interest
common to all states. This rule is specifically applicable to such
crimes as piracy, where the offender is deemed an enemy to all
mankind a hosts humani generis
Extension of the territorial principle The offense is deemed
committed w/in a states territory when one of its constituent
elements, more so its effects, take place there. This applies in the
following cases:
(1) the act was commenced w/in the state but
consummated in another state (subjective principle), or
(2) the act was commenced in another state but
consummated w/in the territory of the subject state
(objective principle).
This is in fact an exercise not necessarily of extraterritorial
jurisdiction, but of territorial jurisdiction except extended. The
objective principle is said to apply where the act produces effects
to the territory of the state, but such effects must be limited to
only those w/c are a direct consequence of the act (proximate
cause). Intent is immaterial

Module 11: Immunity from jurisdiction

State immunity and act of state

Bernas

State immunity
The principle that the state may not be sued without its consent found in the
Constitution is both municipal law and also international law.
based on the principle of equality of states: par in parent non habet
 imperium
Before, Schooner Exchange v. Macfaddon case held that the nation within its
own territory is necessarily exclusive and absolute. It is susceptible of no
limitation not imposed by itself. However, absolute territorial jurisdiction would
not seem to contemplate foreign sovereigns nor their sovereign rights as its
objects.
Immunity of the sovereign head is seen as also communicated to the
sovereign state
Now, immunity is only reserved for acts jure imperii (governmental acts) but
not for acts jure gestionis (trading and commercial acts)
Philippine jurisdiction also follows this rule as held in US v. Ruiz
However, in US v. Reyes, the claim of immunity was rejected when it
was shown that the acts of the american official were committed not only
outside her authority but also contrary to law.
In Holy See v. Rosario Jr., where it was claimed that the Holy See had
waived it sovereign immunity by entering into a contract for sale, SC said that:
the mere entering into a contract by a foreign state with a private party
cannot be the ultimate test. In this case, the fact that the Holy See
bought the lands for the site of its mission or the apostolic Nunciature in
the Philippines brings in under jure imperii.
Procedure for state claiming sovereign immunity:
when a state or international agency wishes to plead immunity in
a foreign court, it requests the Foreign Office of the state where it
is sued to convey to the court that the defendant is entitled to
immunity
in the Philippines, the practice is for the foreign government or the
international organisation to first secure an executive
endorsement of its claim of immunity.
Remedy of aggrieved person is to ask his government to espouse his
cause through diplomatic channels
Republic of Indonesia v. Vinzon
Facts:
Indonesia entered into a maintenance agreement with Vinzon, in
order to maintain specified equipment aircons, generators,
water heaters, etc at the Embassy, its annex, and the official
residence of the Indonesian-ambassador. This agreement would
be effective for a period of four years and would automatically
renew itself unless cancelled by either party by giving thirty days
prior written notice.
Before expiration of agreement in 1999, Indonesia informed
Vinzon that the renewal would be at the discretion of the incoming
chief of administration. Such Chief found Vinzons work
unsatisfactory, and thus, terminated the agreement.
Vinzon claimed that such dismissal was arbitrary and unfair, and
filed a suit. Citing that a sovereign state is immune from suit,
Indonesia filed a motion to dismiss. They also said that Soeratmin
and kasim are diplomatic agents and enjoy immunity.
 Vinzon claimed that Indonesia expressly waived its immunity from
suit, citing a provision in the Maintenance Agreement any legal
action arising out of this maintenance agreement shall be settled
according to the laws of the Philippines and by the proper court of
Makati City, Philippines.
RTC and CA ruled in favor of Vinzon hence this petition.
Issue:
w/n CA erred in ruling that petitioners have waived their immunity
based on the above mentioned provision in the agreement - yes
Held
Yes
Immunity of a sovereign is recognised with regard to public acts
acts jure imperii but not with regard to private acts jure
gestionis.
Ex : Conduct of a public bidding for the repair of a Wharf at a US
Naval station jure imperiii
Ex: Hiring a cook in the recreation center of camp john hay jure
gestionis
In present case
Mere entering into a contract does not immediately classify
it as one or the other
We must ask is foreign state engaged regularly in
conduct of a business? in this case, it is not, and thus it
seems as if the act is in pursuit of a sovereign activity, and
thus an act jure imperii.
Petitioner : maintenance is no longer a sovereign function
Court disagrees : it is clear that Indonesia was acting in
pursuit of a sovereign activity when it entered into
contract with respondent
one does not merely establish a diplomatic mission
and leave it at that, such establishment encompasses
maintenance and upkeep
With regard to provision in maintenance agreement
Not necessarily/explicitly a waiver.
Could apply when sovereign sues in local courts, or
otherwise expressly waives
Applicability of Phil Laws can also mean recognition
of immunity
Waiver must be explicit, clear, and unequivocal
Immunity from jurisdiction
State Immunity (Sovereign Immunity): Head of State and the State itself
Basis: equality and independence of states
Distinguish:
1. Immunity of State - an aspect of State
2. Act of State theory
Acts of state carried out within its territory cannot be challenged in
the courts of other States;
 applies to acts of the agents of the state
exceptions:
war crimes
crimes against peace
crimes against humanity
Rationale: courts should not embarrass the executive in its
conduct of foreign relations by questioning the acts of foreign
states
On Scope of immunity
1. Absolute
2. Restrictive - determine nature of the act
1. public - immune
2. private - not immune
Case law:
Victory Transport v. Comisaria General de Abastecimientos y
Transportes
Act of transporting wheat during peacetime is not an act jure imperii
Facts:
Victory Transport chartered a ship to Comisaria General (Spain)
to carry surplus wheat purchased by the Spanish Government
under an Agricultural Commodities Agreement w/ the US. There
was an arbitration clause. The ship was damaged while in the
ports of Spain w/c were allegedly unsafe for large vessels.
Comisaria refused to arbitrate; thus Victory brought an action to
compel the same to submit to arbitration. Comisaria invokes state
immunity.
Held:
Immunity cannot apply in this case. The transaction was a
commercial act (jure gestionis) not a strictly political or
sovereign act. There was even an arbitration clause. The US
Court in this case made reference to the Tate Letter and stated
that the US now adheres to the restrictive theory. The purpose of
the restrictive theory is to accommodate the interests of private
individuals doing business w/ foreign governments, while at the
same time permitting the foreign states to do political acts w/o
being subjected to the embarrassment of defending the propriety
of its acts in foreign courts. Immunity is in derogation from the
normal exercise of jurisdiction and should be granted only in clear
cases such as:
(1) internal administrative acts,
(2) legislative acts,
(3) armed forces,
(4) diplomatic activity, and
(5) public loans.
IL Congreso Del Partido
Facts:
The Playa Larga (vessel) was owned by the Cuban Government
 and controlled by Mambisa, a state trading enterprise separate
and distinct from the government, but controlled by the latter.
The Marble Islands (vessel) on the other hand was owned by
Blue Seas Shipping, a Liechtenstein corporation.
Playa Larga arrived at its destination in Chile, while Marble
Islands was still in the seas. At that time, a coup detat took place
and Pinochet took over Chile.
The Cuban government immediately ordered Playa to terminate
the unloading of cargo and return to Cuba w/c did so even w/o
port clearance.
Playa met Marble Islands in the seas and eventually returned to
Vietnam. In the course of its voyage, Marble Islands flag and
ownership was changed to Cuba. It proceeded to Vietnam where
the cargo was donated to the people.
Issue:
The acts were obviously in breach of contractual obligations
and possible tortuous but the question is whether they
may be considered as acts of state for the purpose of
invoking state immunity.
Held:
The restrictive theory was applied in this case.
As to Playa Larga, the action against Cuba may proceed. All its
acts were committed not in a sovereign capacity but as proprietor
or owner of the ship. If immunity were to be granted everytime the
commercial decision was tainted by political considerations, the
restrictive theory would almost cease to have effect. It is not just
the purpose or motive of the act that serves at the basis;; the act
must of its own be a governmental act to merit immunity.
As to the Marble Islands, immunity operates. There was no purely
commercial obligation involved; the vessel never entered the
trading area (remained at sea) and never entered into commercial
relations. The actions of Cuba regarding the course of the ship ad
the disposition of its cargo remained in their nature purely
governmental. The decision regarding the Marble Islands was
subject to dissents.
Govt of Congo v. Venne
Congos entry into contract with a Canadian architect for sketching its
pavilion is a public act
Facts:
Congo claims that, by reason of its sovereign immunity, it could
not be imp leaded in the courts of Quebec.
Venne an architect who claims to have been retaine on behalf
of The Congo for the purpose of making preliminary studies and
preparing sketches in relation to the national pavilion which The
Congo proposed to build at Expo 67 (ie, Canadas main
celebration for its centennial year, held in 1967). Venne was hired
by duly accredited diplomatic representatives of The Congo.
 Vennes declaration incorporated an unsigned copy of a contract,
pursuant to which he claims to have been employed, and also
certain sketches of the proposed pavilion which he claims to have
furnished to The Congo.
Venne prepared a bill of $20,000 for services rendered which he
subsequently reduced to $12,000 and which was not paid
because the Congo decided not to proceed with the pavilion.
Venne sued The Congo.
Superior Court of Montreal decided in favor of Venne
CA of Quebec affirmed, thereby dismissing The Congos appeal.
CA accepted the trial Judges finding that when the Congo
employed Venne to prepare the sketches of the national pavilion
which it proposed to build at a duly authorised international
exhibition, it was not performing a public act of a sovereign state
but rather one of a purely private nature (thus, not immune).
Issue:
W/N The Congos act of employing Venne for the construction of
a national pavilion constituted a public act. - Yes
Held:
Yes, it was an act made pursuant to its sovereign capacity.
Therefore, The Congo can invoke sovereign immunity and could
not be impleaded in the Courts of Quebec.
Considered from the point of view of the architect, the contract
may be deemed a purely commercial one, but, even if the theory
of restrictive sovereign immunity were applicable, the questions to
be determined would not be whether the contractor was engaged
in a private act of commerce, but whether or not the Congo,
acting as a visiting sovereign state through its duly
accredited diplomatic representatives, was engaged in the
performance of a public sovereign act of State.
Ponente pointed out the significance of the fact that Venne was
employed not only by the duly accredited diplomatic
representatives, but also by the representative of the Dept. of
Foreign Affairs (DFA) of The Congo.
This makes it plain that in preparing for the construction of its
national pavilion, a department of the Govt of a foreign state,
together with its duly accredited diplomatic representatives, were
engaged in the performance of a public sovereign act of State on
behalf of their country and that the employment of Venn was a
step taken in the performance of that sovereign act.
Therefore, The Congo could not be impleaded in the courts of
Quebec even if the so-called restrictive sovereign immunity had
been adopted in the Canadian Courts.
Also, there is a suggestion in the CAs decision that the onus
probandi lies upon the Sovereign to show that the act was a
public one if it is to be granted sovereign immunity.
But the ponentes view is that the question of whether the
 contract in question was a public act done on behalf of
a sovereign State for State purposes, is one which
should be decided on the record as a whole without
placing the burden of rebutting any presumption on
either party.
Allan Construction Ltd. V. Got of Venezuela:
Facts: Plaintiff was hired by Venezuela for the construction
of a pavilion in the same Expo 67. However, Venezuela
planned to incorporate in the pavilion a restaurant with the
right to sell alcoholic liquor and to sell the products of
Venezuela.
Held: Venezuelas contract with the plaintiff was a
commercial one.
In the case of The Congo, there is no such plan to incorporate a
commercial venture. Therefore, the case law in Allan Construction
Ltd. does not apply in this case.
US cases referred to by the CA decision:
Tate Letter: it will hereafter be the [State] Departments
policy to follow the restrictive theory of sovereign immunity
in the consideration of requests of foreign governments for
a grant of sovereign immunity.
Victory Transport Inc. v. Commisaria General de Abastecimientos
y Transportes:
This case was cited as an example of an independent
judicial acceptance of the theory of restrictive sovereign
immunity
the court must decide for itself whether it is the
established policy of the State Department to
recognise claims of immunity of this type (i.e.,
restrictive sovereign immunity).
It is thus clear that in the US, the question to be answered
is whether it is the established policy of the State
Department to recognise the immunity claimed in any
particular case.
As no such question arises in Canada, the ponente takes
theview that cases concerning sovereign immunity decided
in the US Courts in those years are of little or no authority
in Canada.
Trendtex v. Central Bank of Nigeria
Issuance by Nigerian CB of letter of credit is purely commercial in
character and may be basis of suit
Facts:
The Central Bank of Nigeria opened a LOC in favor of Trendtex
for the purchase of cement. The cement was shipped but for
whatever reason, Nigeria refused to pay invoking state immunity.
Issue:
W/N Nigeria can claim immunity - No
 Held:
No. An English court tried the case. In holding Nigeria liable, it
held that, under the Law Merchant, letters of credit must be
honored. The court deemed international law to be incorporated
into the law of the land automatically, except if it conflicted with
the domestic system.
Art. 16, 3 of Phil. Const.
The State may not be sued without its consent
Case law (Philippines):
Sanders v. Veridiano
A Special services director of the former US naval station in Olongapo
was sued in a personal capacity for alleged libellous letter; court
declared immunity because the acts complained of were done in the
discharge of official functions
Doctrine: Official acts of agents of another state (provided that they are
granted immunity) are covered by such privilege; In order for a state to
be sued it must consent to it.
Facts:
Sanders was the special services director of the U.S. Naval
Station (NAVSTA) in Olongapo City, while Moreau was the
commanding officer of the Subic Naval Base.
Respondents were both employed as gameroom attendants in
the special services department of the NAVSTA, the former
having been hired in 1971 and the latter in 1969. They were
informed that they are now just part time employees. They
protested to the U.S. Department of Defense which ordered their
reinstatement to full-time status with back wages.
Sanders sent a letter to Moreau disagreed with this
recommendation and reported that Responders tend to
alienate their co-workers and were difficult to supervise.
Before the grievance hearing was was started, a letter purportedly
coming from Moreau as the commanding general of the U.S.
Naval Station in Subic Bay was sent to the Chief of Naval
Personnel explaining the change of the private respondents
employment status and requesting concurrence therewith, but this
was signed by Moore, by direction.
Respondents filed a case in the CFI for damages claiming that
the letters contained libelous imputations that had exposed them
to ridicule and caused them mental anguish and that the
prejudgment of the grievance proceedings was an invasion of
their personal and proprietary rights. Sanders and Moreau filed a
motion to dismiss arguing that the court has no jurisdiction
because the said acts were performed in the discharge of their
duties.
The trial court ruled in favor of the respondent and ordered a writ
of preliminary attachment to the properties of Moreau. Hence this
petition.
 Issue:
Whether the petitioners were acting official capacities which
merits them the grant of jurisdictional immunity. YES
Held:
Yes
The mere allegation that a government functionary is being sued
in his personal capacity will not automatically remove him from
the protection of the law of public officers and, if appropriate, the
doctrine of state immunity.
The mere invocation of official character will not suffice to insulate
him from suability and liability for an act imputed to him as a
personal tort committed without or in excess of his authority.
Baer v. Tizon, Syquia v. Almeda Lopez, United States of America
v. Ruiz, consistently held that the US has not consented to be
sued and the suit could not prosper because the acts complained
of were covered by the doctrine of state immunity
In the present case that the acts of the petitioners were performed
by them in the discharge of their official duties. Sanders, as
director of the special services department of NAVSTA,
undoubtedly had supervision over its personnel, including the
private respondents, and had a hand in their employment, work
assignments, discipline, dismissal and other related matters.
It is not disputed that the letter Sanders had written was in fact a
reply to a request from his superior, the other petitioner, for more
information regarding the case of the private respondents.
Even in the absence of such request, he still was within his rights
in reacting to the hearing officers criticismin effect a direct
attack against him-that Special Services was practicing "an
autocratic form of supervision.
Given the official character of the above-described letters,
we have to conclude that the petitioners were, legally
speaking, being sued as officers of the United States
government
As they have acted on behalf of that government, and within
the scope of their authority, it is that government, and not the
petitioners personally, that is responsible for their acts.
There should be no question by now that such complaint cannot
prosper unless the government sought to be held ultimately liable
has given its consent to be sued.
The SC , in a line of cases, upheld the doctrine of state immunity
as applicable not only to our own government but also to foreign
states sought to be subjected to the jurisdiction of our courts.
It would seem only proper for the courts of this country to refrain
from taking cognisance of this matter and to treat it as coming
under the internal administration of the said base. (Parties in this
case were Americans and Naval Base employees)
US v. Guinto
The acts of soliciting bids by the USAF is proprietary in nature
Consolidation of 4 cases:
Summary:
1. Barbershop bidding
There was a bidding war on a barbershop concession
inside Clark Airbase. The ones that lost the bidding filed a
suit against the US officers. They filed motion to dismiss
because they were immune from suit since they were
employees of the US Air Force. Lower court denied motion
because there was a commercial transaction.
Held: NOT IMMUNE. Commercial Transaction. Remanded
for trial on facts of the case
2. Pee in soup
Cook was dismissed from Recreational Center Resto in
Camp John Hay because he peed into the soup he served.
US said, dismiss because US officers enjoy immunity.
Lower court denied because although he was an officer he
acted beyond his duties amounting to illegal acts done in
bad faith and that there was a CBA involved in
employment.
Held: NOT IMMUNE. The resto was a proprietary activity
and not an official act of the State. The CBA agreement, a
contract, was a waiver of immunity. But the SC said that
they were not liable, it was clear the cook peed in soup and
there was a proper investigation and due process for cook
3. Buy-bust
Airforce Officers catch barracks-boy in a buy-bust
operation, which led to his dismissal. Civil case against the
officers, they didnt have US lawyers so they got local
counsel at first and filed answers. When US government
finally got to them filed for motion to dismiss. Lower court
denied because immunity is only for criminal cases and not
civil and that the US officers had already submitted
answers to the court.
Held: IMMUNE, as for the issue on filing of answers,
immunity cannot be waived by counsel it must be
embodied in an instrument
4. Dog-biting / theft
Conflicting facts: Accdg to respondents they filed damages
because the Americans handcuffed them and had their
dogs attack them. Accdg to the petitioners, they caught the
respondents while they were stealing, the dog bites were
there because they had tried to evade capture. The motion
to dismiss was denied because the facts of the case should
be ventilated in trials since one set of them alleges that the
US officers were exceeding their authority and doing illegal
whiz.
 Held: REMANDED to determine which facts were correct, if
in the course of their duties then IMMUNE
Doctrine:
The doctrine of state immunity is also applicable to complaints
filed against officials of the state for acts allegedly performed by
them in the discharge of their duties.
The rule is that if the judgment against such officials will
require the state itself to perform an affirmative act to
satisfy the same, such as the appropriation of the amount
needed to pay the damages awarded against them, the suit
must be regarded as against the state itself although it has
not been formally impleaded.
In such a situation, the state may move to dismiss the
complaint on the ground that it has been filed without its
consent.
The doctrine is sometimes derisively called he royal
prerogative of dishonesty because of the privilege it
grants the state to defeat any legitimate claim against it
by simply invoking its non-suability
the doctrine is not absolute and does not say the
state may not be sued under any circumstance.
On the contrary, the rule says that the state may
not be sued without its consent, which clearly
imports that it may be sued if it consents
The consent of the state to be sued may be
manifested expressly or impliedly. Express consent
may be embodied in a general law or a special law.
Consent is implied when the state enters into a
contract or it itself commences litigation
GR:
When the government enters into a contract, it is deemed
to have descended to the level of the other contracting
party and divested of its sovereign immunity from suit with
its implied consent.
Exception:
Express consent is effected only by the will of the
legislature through the medium of a duly enacted
statute. We have held that not all contracts entered
into by the government will operate as a waiver of its
non-suability; distinction must be made between its
sovereign and proprietary acts.
GR: Waiver is also implied when the government files a
complaint, thus opening itself to a counterclaim.
Exception: As for the filing of a complaint by the
government, suability will result only where the government
is claiming affirmative relief from the defendant.
Chuidian v. Sandiganbayan
A L/C issued in manila was the basis of a suit by an alleged marcos-
crony to compel PNB to pay proceeds of the L/C before a US District
Court. The Federal Court refused to compel PNB stating that PCGG
freeze orders are acts of state.
Facts:
Petitioner Vicente Chuidian was alleged to be a dummy of
spouses Ferdinand and Imelda Marcos in the spouses illegally-
acquired companies.
He allegedly induced PHILGUARANTEE, the BOI and the
Central Bank, to execute a loan guarantee of $25Million
USD in favor of the ARCI, of which 98% was owned by the
former
However, Chiudian defaulted on his obligations and instead
invested the proceeds of the loan in other corporations.
Although ARCI had received the proceeds of the loan
guaranteed by Philguarantee, the former defaulted in the
payments thereof, compelling Philguarantee to undertake
payments for the same.
Consequently, in June 1985, Philguarantee sued Chuidian
before the Santa Clara County Superior Court for misuse of
funds and violations of the terms of the loan.
Three months before the EDSA revolution, Philguarantee
entered into a compromise agreement with Chuidian
whereby petitioner Chuidian shall assign and surrender title
to all his companies in favor of the Philippine government.
In return, Philguarantee shall absolve Chuidian from all civil
and criminal liability, and the Philippine government shall
pay Chuidian US$5,300,000.00 through an irrevocable
Letter of Credit (L/C) by the Philippine National Bank
(PNB).
With the advent of the Aquino administration, the PCGG
sequestered the assets of Chuidian, including the L/C.
Because of this, Chuidian filed before the United States
District Court, Central District of California, an action
against PNB seeking, among others, to compel PNB to pay
the proceeds of the L/C.
PNB countered that it cannot be held liable for a breach of
contract under principles of illegality, international comity
and act of state, and thus it is excused from payment of the
L/C.
Philguarantee intervened in said action, raising the same
issues and arguments it had earlier raised in the action
before the Santa Clara Superior Court, alleging that PNB
was excused from making payments on the L/C since the
settlement was void due to illegality, duress and fraud.
The Federal Court rendered judgment ruling: (1) in favor of
PNB excusing the said bank from making payment on the
 L/C; and (2) in Chuidians favor by denying intervenor
Philguarantees action to set aside the settlement
agreement.
Pursuant to the rehabilitation plan for PNB, a Deed of
Transfer was executed providing for the transfer to the
government of certain assets of PNB in exchange for which
the government would assume certain liabilities of PNB,
including the L/C of Chuidian.
In 1987, the government filed before the Sandiganbayan a
complaint against the Marcos spouses, several government
officials, cronies of the Marcoses (including Chuidian), seeking for
the reconveyance of the ill-gotten wealth.
The Republic of the Philippines filed a motion for issuance
of a writ of attachment over the L/C, alleging that Chuidian
fraudulently misapplied the funds of ARCI.
The Sandiganbayan issued a Resolution ordering the
issuance of a writ of attachment against the L/C as security
for the satisfaction of judgment.
Four years later, Chuidian filed a motion to lift the
attachment and a motion to require the Republic to deposit
the L/C in an interest bearing account, to which the
Republic opposed.
The Republic alleged that Chuidians absence was not the
only ground for the attachment and, therefore, his belated
appearance before the Sandiganbayan is not a sufficient
reason to lift the attachment. Moreover, allowing the
foreign judgment as a basis for the lifting of the attachment
would essentially amount to an abdication of the jurisdiction
of the Sandiganbayan to hear and decide the ill gotten
wealth cases lodged before it in deference to the judgment
of foreign courts.
The Sandiganbayan denied the two motions filed by
Chuidian.
On Reconsideration, the Sandiganbayan still denied
the motion to lift attachment, but gave due course to
Chuidians plea for the attached L/C to be deposited
in an interest-bearing account, on the ground that it
will redound to the benefit of both parties.
The Sandiganbayan declared the national
government as the principal obligor of the L/C even
though the liability remained in the books of the PNB
for accounting and monitoring purposes.
Issue:
W/N the favourable judgment of the United States District Court
brought by petitioner Chuidian against PNB could be used as
basis to lift the order of attachment and compel PNB to pay the
L/C? - NO
Held:
No. Petitioner cites the favorable judgment by the United States
District Court in civil case brought by petitioner Chuidian against
PNB to compel the latter to pay the L/C. However, while it is true
that the US District Court ruled in favor of Chuidian by denying
intervenor Philguarantees action to set aside the settlement
agreement, it also said that:
Under Executive Order No. 1, the PCGG is vested by the
Philippine President with the power to enforce its directives and
orders by contempt proceedings. Under Executive Order No. 2,
the PCGG is empowered to freeze any, and all assets, funds and
property illegally acquired by former President Marcos or his
close friends and business associates.
In 1986, PNB/Manila received an order from the PCGG ordering
PNB to freeze any further drawings on the L/C. The freeze order
has remained in effect and was followed by a sequestration order
issued by the PCGG.
Subsequently, Chuidians Philippine counsel filed a series of
challenges to the freeze and sequestration orders, which
challenges were unsuccessful as the orders were found valid
by the Philippine Supreme Court. The freeze and
sequestration orders are presently in effect.
Thus, under the PCGG order and Executive Orders Nos. 1
and 2, performance by PNB would be illegal under Philippine
Law. Therefore PNB is excused from performance of the L/C
agreement as long as the freeze and sequestration orders
remain in effect.
Chuidian argues that the fact that the L/C was issued pursuant to
a settlement in California, that the negotiations for which occurred
in California, and that two of the payments were made at PNB/LA,
compels the conclusion that the act of prohibiting payment of the
L/C occurred in Los Angeles.
The Court is not convinced with this argument. The L/C was
issued in Manila, such was done at the request of a
Philippine government instrumentality for the benefit of a
Philippine citizen. The L/C was to be performed in the
Philippines, all significant events relating to the issuance
and implementation of the L/C occurred in the Philippines,
the L/C agreement provided that the L/C was to be construed
according to laws of the Philippines, and the Philippine
government certainly has an interest in preventing the L/C
from being remitted in that it would be the release of funds
that are potentially illgotten gains. Accordingly, the Court
finds that the PCGG orders are acts of state that must be
respected by this Court, and thus PNB is excused from
making payment on the L/C as long as the freeze and
sequestration orders remain in effect.
 Petitioners own evidence strengthens the governments
position that the L/C is under the jurisdiction of the
Philippine government and that the U.S. Courts recognize the
authority of the Republic to sequester and freeze said L/C.
Hence, the foreign judgments relied upon by petitioner do
not constitute a bar to the Republics action to recover
whatever alleged ill-gotten wealth petitioner may have
acquired.
Dayrit v. Phil Pharmawealth
Suing individual petitioners in their individual capacities for damages in
connection with abuse of official positions in order for Pharmawealth not
to be awarded a contract is permissible and an actionable wrong.
Facts:
Phil. Pharmawealth, Inc. (respondent) is a domestic corporation
engaged in the business of manufacturing and supplying
pharmaceutical products to government hospitals in the
Philippines
Secretary of Health Romualdez, Jr. issued A.O. 27 (1998),
outlining the guidelines and procedures on the accreditation of
government suppliers for pharmaceutical products.
It was amended by A.O. No. 10 (2000), providing for additional
guidelines for accreditation of drug suppliers aimed at ensuring
that only qualified bidders can transact business with petitioner
DOH
Later, respondent submitted to DOH a request for the inclusion of
additional items in its list of accredited drug products, including
the antibiotic Penicillin G Benzathine.
Based on the schedule provided by DOH, the processing of and
release of the result of respondents request were due on
September 2000
In September 2000, petitioner DOH, through petitioner Lopez,
chairperson of the pre-qualifications, bids and awards committee,
issued an Invitation for Bids for the procurement of 1.2 million
units vials of Penicillin G Benzathine
Despite the lack of response from DOH regarding respondents
request for inclusion of additional items in its list of accredited
products, respondent submitted its bid for the Penicillin G
Benzathine contract
When the bids were opened on October 11, 2000, only two
companies participated, with respondent submitting the lower bid
at P82.24 per unit, compared to Cathay/YSS Laboratories (YSS)
bid of P95.00 per unit
In view, however, of the non-accreditation of respondents
Penicillin G Benzathine product, the contract was awarded to
YSS
Respondent thus filed a complaint for injunction, mandamus and
damages with prayer for the issuance of a writ of preliminary
 injunction and/or TRO with the RTC of Pasig City praying, inter
alia, that the TC nullify the award of the contract to YSS
Laboratories, Inc. and direct DOH, Romualdez, Galon and Lopez
to declare Pharmawealth as the lowest complying responsible
bidder for the Benzathine contract, and that they accordingly
award the same to plaintiff company and adjudge defendants
Romualdez, Galon and Lopez liable, jointly and severally to
plaintiff, for [the therein specified damages].
In their Comment, DOH, Romualdez, Jr. who was later succeeded
by Dayrit, and Usecs Galon and Lopez argued for the dismissal of
the complaint for lack of merit in view of the express reservation
made by petitioner DOH to accept or reject any or all bids without
incurring liability to the bidders, positing that government
agencies have such full discretion
Petitioners subsequently filed a Manifestation and Motion to
Dismiss praying for the outright dismissal of the complaint based
on the doctrine of state immunity.
To petitioners motion to dismiss, respondent filed its
comment/opposition contending, in the main, that the
doctrine of state immunity is not applicable
considering that individual petitioners are being sued
both in their official and personal capacities, hence,
they, not the state, would be liable for damages.
RTC denied petitioners motion to dismiss
Their motion for reconsideration having been denied, petitioners
filed a petition for certiorari with the CA, before which they
maintained that the suit is against the state. CA affirmed
Issue:
W/N the petitioners can invoke State Immunity NO
Held:
No.
As regards petitioner DOH, the defense of immunity from suit
will not avail despite it being an unincorporated agency of
the government, for the only causes of action directed
against it are preliminary injunction and mandamus.
Under Section 1, Rule 58 of the Rules of Court, preliminary
injunction may be directed against a party or a court,
agency or a person.
Moreover, the defense of state immunity from suit does
not apply in causes of action, which do not seek to
impose a charge or financial liability against the State.
The rule that a state may not be sued without its consent,
now embodied in Section 3, Article XVI of the 1987
Constitution, is one of the generally accepted principles of
international law, which we have now adopted as part of
the law of the land.
While the doctrine of state immunity appears to prohibit
 only suits against the state without its consent, it is also
applicable to complaints filed against officials of the state
for acts allegedly performed by them in the discharge of
their duties.
The suit is regarded as one against the state where
satisfaction of the judgment against the officials will
require the state itself to perform a positive act, such
as the appropriation of the amount necessary to pay
the damages awarded against them.
According to Shauf vs CA, the State authorizes only legal
acts by its officers. Therefore, unauthorized acts of
government officials or officers are not acts of the
State. An action against those officials is not a suit
against a state within the rule of immunity of the State
from suit.
Hence, the rule does not apply where the public official
is charged in his official capacity for acts that are
unauthorized or unlawful and injurious to the rights of
others. Neither does it apply where the public official
is clearly being sued not in his official capacity but in
his personal capacity, although the acts complained of
may have been committed while he occupied a public
position.
In the present case, suing individual petitioners in their personal
capacities for damages in connection with their alleged act of
illegally abusing their official positions to make sure that plaintiff
Pharmawealth would not be awarded the Benzathine contract,
which was done in bad faith and with full knowledge of the limits
and breadth of their powers given by law is permissible.
An officer who exceeds the power conferred on him by law
cannot hide behind the plea of sovereign immunity and
must bear the liability personally.
It bears stressing, however, that the statements in the
immediately foregoing paragraph in no way reflect a
ruling on the actual liability of petitioners to
respondent. The mere allegation that a government
official is being sued in his personal capacity does not
automatically remove the same from the protection of
the doctrine of state immunity. Neither, on the other
hand, does the mere invocation of official character
suffice to insulate such official from suability and
liability for an act committed without or in excess of
his or her authority. These are matters of evidence
which should be presented and proven at the trial.
(IMPORTANT DOCTRINE)
Professional Video v. TESDA
TESDA performs governmental functions. State immunity applies in this
case notwithstanding TESDAs entry into contract for production of PVC
cards for its trainees.
SUMMARY: TESDA entered into a contract with PROVI for the printing
and encoding of PVCs. PROVI alleged that out of TESDAs liability of
P39.47M, TESDA only paid P3.7M as evidenced by PROVIs Statement
of Account. PROVI filed a case against TESDA in the RTC, which
issued a writ of preliminary attachment against the latters properties.
The CA reversed the decision. The SC affirmed the CAs decision. As a
government instrumentality, it cannot be sued without its consent. The
Contract entered into was in lieu of its governmental functions; hence,
there was no waiver of immunity from suit by TESDA. Further, TESDAs
funds are public in character, hence they are exempt from attachment or
garnishment.
Facts:
PROVI is an entity engaged in the sale of high technology
equipment, information technology products and broadcast
devices, including the supply of plastic card printing and security
facilities.
TESDA is an instrumentality of the government established under
RA 7796 (the TESDA Act of 1994) and attached to the DOLE to
develop and establish a national system of skills standardisation,
testing, and certification in the country.
To fulfil this mandate, it sought to issue security-printed
certification and/or identification polyvinyl (PVC) cards to trainees
who have passed the certification process.
TESDAs conducted 2 public bidding for the printing and encoding
of the PVCs, but failed in both instances since PROVI and Sirex
Phils. Corp were the only bidders.
Due to the failed bidding, the Bidding Awards Committee
recommended that TESDA enter into a negotiated contract with
PROVI.
On December 29, 1999, TESDA and PROVI signed and executed
their Contract Agreement Project: PVC ID Card Issuance (the
Contract) for the printing and encoding of PVC cards.
PROVI was to provide TESDA with the system and equipment
based on the proposal.
TESDA would pay PROVI the amount of P39,475,000 within 15
days after TESDAs acceptance of the contracted goods and
services.
On August 24, 2000, they executed an Addendum to the Contract
whose terms bound PROVI to deliver 100% of the supplies to
TESDA (includes security foils, security die with TESDA seal, ID
cards, etc)
PROVI would also install and maintain a certain number of
printers and scanners.
TESDA in turn undertook to pay PROVI 30% of the total cost of
the supplies within thirty (30) days after receipt of the contracted
 supplies, with the balance payable within thirty (30) days after the
initial payment.
PROVI alleged that out of TESDAs liability of P39.47M, TESDA
only paid P3.7M as evidenced by PROVIs Statement of Account.
This remained unpaid despite the demand letters sent by PROVI.
PROVI filed with the RTC a complaint for sum of money with
damages against TESDA and additionally prayed for the issuance
of a writ of preliminary attachment/garnishment against TESDA.
GRANTED and issued a writ of preliminary attachment against
the properties of TESDA not exempt from execution in the amount
of P35,000,000.00
Issue:
W/N the writ of attachment against TESDA and its funds, to cover
PROVIs claim against TESDA, is valid.NO. TESDA is an
agency of the government, hence it cannot be sued without its
consent.
Held:
PROVI argues that when TESDA entered into a purely
commercial contract with PROVI, TESDA went to the level of an
ordinary private citizen and could no longer use the defense of
state immunity from suit.
TESDA claims that it entered the Contract and Addendum in the
performance of its governmental function; hence, TESDA is
immune from suit.
1. TESDA is an instrumentality of the government undertaking
governmental functions.
Under RA 7796, which created TESDA, as well as the
constitutional affirmation that [T]he State affirms labor as a
primary social economic force, and shall protect the rights
of workers and promote their welfare; that [T]he State
shall protect and promote the right of all citizens to quality
education at all levels, and shall take appropriate steps to
make such education accessible to all; in order to afford
protection to labor and promote full employment and
equality of employment opportunities for all., TESDAs role
in the government cannot be contested.
It is an unincorporated instrumentality of the government,
directly attached to the DOLE through the participation of
the Secretary of Labor as its Chairman, for the
performance of governmental functions i.e., the handling
of formal and non-formal education and training, and skills
development. As an unincorporated instrumentality
operating under a specific charter, it is equipped with both
express and implied powers, and all State immunities fully
apply to it.
2. TESDA, as an agency of the State, cannot be sued without its
consent. (IMPT!!!)
 Sec. 3, Art. XVI of the Consti embodies the rule that a state
may not be sued without its consent.
It is as well a universally recognised principle of
international law that exempts a state and its organs from
the jurisdiction of another state.
The principle is based on the very essence of sovereignty,
and on the practical ground that there can be no legal right
as against the authority that makes the law on which the
right depends.
It also rests on reasons of public policy that public
service would be hindered, and the public endangered, if
the sovereign authority could be subjected to law suits at
the instance of every citizen and, consequently, controlled
in the uses and dispositions of the means required for the
proper administration of the government.
The proscribed suit that the state immunity principle
covers takes on various forms, namely:
1. a suit against the Republic by name;
2. a suit against an unincorporated government
agency;
3. a suit against a government agency covered by a
charter with respect to the agencys performance
of governmental functions; and
4. a suit that on its face is against a government
officer, but where the ultimate liability will fall on
the government.
In the present case, the writ of attachment was issued
against a government agency covered by its own charter.
SC agrees with TESDA that the purchasing of PVC cards
by TESDA is within the governmental functions given to it.
That TESDA sells the PVC cards to its trainees for a fee
does not characterise the transaction as industrial or
business; the sale cannot be considered separately from
TESDAs general governmental functions, as they are
undertaken in the discharge of these functions.
3. TESDAs funds are public in character, hence exempt from
attachment or garnishment.
ATCI v. Echin
Echin was hired by the ATCI in behalf of the Ministry of Public Health of
Kuwait. An alleged illegal dismissal case was filed against ATCI and the
Ministry. ATCI cannot plead immunity of the Ministry where the solidary
obligation may be frustrated
Facts:
Echin was hired by ACTI in behalf of MPHK for the position of
Medical Technologist under a 2 year contract, denominated as a
Memorandum of Agreement with a monthly salary of 1,200 USD
The MOA
 All newly-hired employees undergo a probationary period
of 1 year
Echin was deployed on February 17, 2000 BUT was terminated
from employment on February 11, 2001, she not having
ALLEGEDLY passed the probationary period
As her request for reconsideration was denied, she returned to
the Philippines on March 17,2001
On July 27, 2001, Echin filed with the NLRC a complaint for illegal
dismissal against ATCI, represented by Ikdal (also a petitioner)
and MPHK
The Labor Arbiter held that there was illegal dismissal and
ordered all the petitioners to pay USD 3,600 representing her
salary for 3 months
This decision was affirmed by the NLRC
The petitioners filed suit in the CA contending that
their principal, MPHK, being a foreign government agency,
is IMMUNE FROM SUIT, and as such, the immunity is
extended to them
The dismissal was valid for her failure to meet the
performance rating within the 1 year period required under
Kuwaits civil service laws
CA affirmed the NLRC decision
The CA said that under the law, a private employment
agency shall assume all responsibilities for the
implementation of the contract of employment of an
overseas worker, hence, it can be sued jointly and severally
with the foreign principal for any violation of the recruitment
agreement
As to Ikdals liability, the appellate court held that under
Sec. 10 of RA 8042, the "Migrant and Overseas Filipinos'
Act of 1995", corporate officers, directors and partners of a
recruitment agency may themselves be jointly and solidarily
liable with the recruitment agency for money claims
However, petitioner maintains that they should not be held
liable because the employment contract specifically said
that the employment shall be governed by the Civil Service
Law and Regulations of Kuwait
They also argue that even assuming Philippine labor
laws apply, given that the foreign principal is a
government agency which is immune from suit,
petitioner ATCI cannot likewise be held liable
Issue:
w/n ATCI and Ikdal may be held liable?
Held
Yes
Petitioner ATCI, as a private recruitment agency, cannot
evade responsibility for the money claims of OFWs which it
deploys abroad by just saying that its foreign principal is
immune from suit
In providing for the joint and solidary liability of private
recruitment agencies with their foreign principals, RA 8042
precisely affords the OFWs with a recourse
It is in line with the policy of the State to protect and
alleviate the plight of the OFWs
To allow the petitioners to simply invoke immunity from suit
of its foreign principal or to wait for the judicial
determination of the foreign principals liability renders the
law on joint and solidary liability inutile
With respect to petitioners argument that it is governed by Kuwait
laws and that POEA rules accord respect to rules, customs, and
practices of the host state - the same was not substantiated
The party invoking the application of foreign law has
the burden of proving the law, under the doctrine of
processual presumption, which in this case,
petitioners failed to discharge
In international law, the part who wants to have a foreign
law applied to a dispute or case has the burden of proving
the foreign law
The foreign law is treated as a question of fact to be
properly pleaded and proved as the judge cannot take
judicial notice of a foreign law
Unfortunately for petitioner, it failed to prove the pertinent
Saudi laws- they must not only be alleged, THEY MUST
BE PROVEN
Thus, the international law doctrine of presumed-identity
approach or processual presumption comes into play
Where a foreign law is not pleaded, or even if pleaded, is
not proved, the presumption is that the foreign law is the
same as ours
Thus, we apply, Philippine labor laws in determining the
issues before us
To prove a foreign law, a party invoking it must present a
copy and comply with Secs 24 and 25 of Rule 132 of the
Rules of Court
To prove Kuwaiti law, petitioners just submitted the ff:
MOA between respondent and MPHK
A translated copy
Termination letter to respondent stating that she did
not pass the probation terms
Must be certified by Alawi, Head of the Dept of
Foreign Affairs-Office of Consular Affiars Inslamic
Certification and Translation Unit
Respondents letter of reconsideration
However, they must submit a copy of the pertinent Kuwaiti
 labor laws duly authenticated and translated by Embassy
officials thereat, as required by the Rules
With regard to Ikdals joint and solidary liability as a corporate
officer, the same is in oder too following the express provision of
RA 8042 on Money Claims
The liability of the principal and the recruitment agency
shall be joint and several.....the corporate officers..as the
case may be, shall be jointly and solidarily liable with the
corporation or partnership
Gunigundo v. Sandiganbayan
Act if state doctrine does not apply in this case. The SB will no review
freezes orders of Swiss officials in Civil Case No. 0164, but will only
examine the propriety of maintaining PCGGs position with respect to
complainants accounts with BTAG for the purpose of determining
propriety of issuing a writ against PCGG and OSG
Facts:
Criminal proceedings were instituted in the Philippines to locate,
sequester and seek restitution of the ill-gotten wealth of the
Marcoses
On 7 April 1986, the Office of the Solicitor General (OSG) wrote
the Federal Office for Police Matters in Berne, Switzerland,
requesting assistance for the latter office to:
(a) ascertain and provide the OSG with information about
the ill-gotten fortune of the Marcoses, the names of the
depositors and the banks and amounts involved; and
(b) take necessary precautionary measures to freeze the
assets in order to preserve their existing value and prevent
any further transfer.
The Office of the District Attorney in Zurich issued an Order
directing the Swiss Banks in Zurich to freeze the accounts,
including those of Officeco Holdings.
Officeco appealed the Order of the District Attorney to the
Attorney General of the Canton of Zurich, who affirmed the Order
of the District Attorney. Officeco further appealed to the Swiss
Federal Court which likewise dismissed the appeal.
In late 1992, Officeco asked the OSG and the PCGG to officially
advise the Swiss government to unfreeze Officecos assets. The
PCGG required Officeco to present countervailing evidence to
support its request.
Instead, Officeco filed the complaint in 1994, which prayed for the
PCGG and the OSG to officially advise the Swiss government to
exclude from the freeze or sequestration order the account of
Officeco.
The PCGG filed a motion to dismiss which was denied by the
Sandiganbayan. The Motion for Reconsideration was also denied.
Issue:
Whether or not the Sandiganbayan erred in not dismissing the
 case for reasons of
(1) res judicata;
(2) lack of jurisdiction on account of the act of state
doctrine;
(3) lack of cause of action for being premature for failure to
exhaust administrative remedies; and
(4) lack of cause of action for the reason that mandamus
does not lie to compel performance of a discretionary act,
there being no showing of grave abuse of discretion on the
part of petitioners.
Held:
No SB did not err.
Act of State Doctrine
Petitioners claim that the case in effect seeks a judicial
review of the legality or illegality of the acts of the Swiss
government.
act of state doctrine - courts of one country will not sit in
judgment on the acts of the government of another in due
deference to the independence of sovereignty of every
sovereign state.
Citing Underhill v. Hernandez:
Every sovereign state is bound to respect the
independence of every other state, and the courts of
one country will not sit in judgment on the acts of the
government of another, done within its territory.
Redress of grievances by reason of such acts must
be obtained through the means open to be availed of
by sovereign powers as between themselves.
There are three methods by which States prevent
their national courts from deciding disputes
which relate to the internal affairs of another
State:
1. act of state doctrine,
2. immunity and
3. non-justiciability.
It is an avoidance technique that is directly related to a
States obligation to respect the independence and equality
of other States by not requiring them to submit to
adjudication in a national court or to settlement of their
disputes without their consent.
In Banco Nacional de Cuba v. Sabbatino(US SC) held that,
International law does not require the application
of this doctrine nor does it forbid the application
of the rule even if it is claimed that the act of
state in question violated international law.
Moreover, due to the doctrines peculiar nation-
to-nation character, in practice the usual method
 for an individual to seek relief is to exhaust local
remedies and then repair to the executive
authorities of his own state to persuade them to
champion his claim in diplomacy or before an
international tribunal
Contrary to Petitioners assertion, the Sandiganbayan
will only review and examine the propriety of
maintaining PCGGs position with respect to Officecos
accounts with BTAG for the purpose of further
determining the propriety of issuing a writ against the
PCGG and the OSG.
Case Law (UK):
Pinochet Case
W/N Pinochet is entitled to immunity as a former head of State - No
Summary:
Under the Operativo Condor, he, together with other governments
(Argentina), organised the commission of crimes (torture,
kidnapping) through the police and secret service.
Criminal complaints of actio popularis were filed by private
citizens in Spain against Pinochet.
The Spanish court ordered his arrest who was then in the UK.
A provisional warrant of arrest was issued by a London magistrate
under the UK Extradition Act of 1989.
Pinochet argued before the Divisional Court of the Queens
Bench Division that as former head of state, he cannot be
prosecuted at common law because he acted in a sovereign
capacity.
The court quashed the warrants of arrest but on appeal before the
House of Lords, it was held that he was no immune from
prosecution in UK courts for crimes under international law
Later, the House of Lords set aside the decision because the
Appellate Committee had improperly been constituted. On
rehearing, the Government of Chile intervened to assert its own
interest and right to have these matters death with in Chile,
presenting immunity not as a shield for Pinochet, but for its own
sovereignty.
Note: The ff. remedies exist, Pinochet may be tried:
1. in his own country
2. in any other country that can assert jurisdiction, provided
Chile waives immunity
3. before the ICC, or
4. before a specially constituted international court

Module 12: Diplomatic and Consular immunity

Bernas

Diplomatic and consular immunities

Much of the law governing diplomatic relations is customary law.
Official representatives of a state are given immunities and privileges when
they are within the territory of another state.
The immunities and privileges they enjoy are personal in the sense that
they benefit the person.
The purpose of the immunities given them is to enable them to perform their
functions properly.
Diplomatic immunities
Diplomats are concerned with the political relations of states. The codification
of the law on the subject may be found in the Vienna Convention on Diplomatic
Relations (1961)
Art. 1 enumerates the diplomatic representatives who can enjoy
immunities
1. head of the mission - person charged by the sending State with the
duty of acting in that capacity
2. members of the mission - head of the mission and the members of the
staff of the mission
3. members of the staff of the mission - members of the diplomatic staff, of
the administrative and technical staff, and of the service staff of the
mission
4. members of the diplomatic staff - members of the staff of the mission
having diplomatic rank
5. diplomatic agent - head of the mission or a member of the diplomatic
staff of the mission
6. members of the administrative and technical staff - members of the staff
of the mission employed in the administrative and technical service of
the mission
7. members of the service staff - members of the staff of the mission in the
domestic service of the mission
8. private servant - person who is in the domestic service of a member of
the mission and who is not an employee of the sending state
9. premises of the mission - buildings or parts of the buildings and the land
ancillary thereto, irrespective of ownership, used for the purposes of the
mission including the residence of the head of the mission
Art. 3 - functions of the diplomatic mission
1. representing the sending state in the receiving state
2. protecting in the receiving state the interests of the sending state and of
its nationals, within the limits permitted by international law
3. negotiating with the Government of the receiving state
4. ascertaining by all lawful means conditions and developments in the
receiving state, and reporting thereon to the government of the sending
state
5. promoting friendly relations between the sending state and the receiving
 state, and developing their economic, cultural and scientific relations
Diplomatic relations between states are purely by mutual consent.
Before the head of mission is sent to the receiving state, an agreement
must first be obtained.
The receiving state is under no obligation to give reasons for refusing an
agreement.
The receiving state may at any time, and without need of explaining,
notify the sending state that the head of the mission or any member of
the diplomatic staff of the mission is persona non grata or that any other
member of the staff is not acceptable.
In such a case, the sending state shall either recall the person
concerned or terminate his functions with the mission
A person may be declared non grata or not acceptable before
arriving in the territory of the receiving state
Rights and privileges of the diplomatic mission - Art. 22
1. The premises of the mission shall be inviolable. The agents of the
receiving state may not enter them, except with the consent of the head
of the mission
2. The receiving state is under a special duty to take all appropriate steps
to protect the premises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the mission or
impairment of its dignity
3. The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from
search, requisition, attachment or execution.
Art. 23
1. The sending state and the head of the mission shall be exempt from all
dues and taxes in respect of the premises of the mission, whether
owned or leased, other than such as represents payment for specific
services rendered
2. The exemption from taxation referred shall not apply to such dues and
taxes payable under the law of the receiving state by persons
contracting with the sending state or the head of the mission
Art. 24
The archives and documents of the mission shall be inviolable at any
time and wherever they may be
Art. 27
1. The receiving state shall permit and protect free communication on the
part of the mission for all official purposes. In communicating with the
Government and the other missions and consulates of the sending
State, wherever situated, the mission may employ all appropriate
means, including diplomatic couriers and messages in code or cipher.
However, the mission may install and use a wireless transmitter only
with the consent of the receiving state
2. The official correspondence of the mission shall be inviolable. Official
correspondence means all correspondence relating to the mission and
its functions
 3. The diplomatic bag shall not be opened or detained
4. The packages constituting the diplomatic bag must bear visible external
marks of their character and may contain only diplomatic documents or
articles intended for official use
5. The diplomatic courier, who shall be provided with an official document
indicating his status and the number of packages constituting the
diplomatic bag, shall be protected by the receiving state in the
performance of his functions. He shall enjoy personal inviolability and
shall not be liable to any form of arrest or detention
6. The sending state or the mission may designate diplomatic couriers ad
hoc. In such cases, the provisions of paragraph 5 shall also apply,
except that the immunities therein mentioned shall cease to apply when
such a courier has delivered to the consignee the diplomatic bag in his
charge
7. A diplomatic bag may be entrusted to the captain of a commercial
aircraft scheduled to land at an authorised port of entry. He shall be
provided with an official document indicating the number of packages
constituting the bag but he shall not be considered to be a diplomatic
courier. The mission may send one of its members to take possession of
the diplomatic bag directly and freely from the captain of the aircraft
Art. 29
The person of a diplomatic agent shall be inviolable. He shall not be
liable to any form of arrest or detention. The receiving state shall treat
him with due respect and shall take all appropriate steps to prevent any
attack on his person, freedom, or dignity
Art. 30
1. The private residence of a diplomatic agent shall enjoy the same
inviolability and protection as the premises of the mission
2. His papers, correspondence, and except as provided in paragraph 3 of
ARt. 31, his property, shall likewise enjoy inviolability
Art. 31
1. A diplomatic agent shall enjoy immunity form the criminal jurisdiction of
the receiving state. He shall also enjoy immunity from its civil and
administrative jurisdiction, except in the case of:
1. a real action relating to private immovable property situated in the
territory of the receiving state, unless he hold its on behalf of the
sending state for the purposes of the mission;
2. an action relating to succession in which the diplomatic agent is
involved as executory, administrator, heir or legatee as a private
person and not on behalf of the sending state
3. an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving state outside
his official functions
2. A diplomatic agent is not obliged to give evidence as a witness
3. No measures of execution may be taken in respect of a diplomatic agent
except in the cases coming under subparagraphs a, b, and c of
paragraph 1, and provided that the measures concerned can be taken
 without infringing the inviolability of his person or of his residence
4. The immunity of a diplomatic agent from the jurisdiction of the receiving
state does not exempt him from the jurisdiction of the sending state
Art. 32
1. The immunity from jurisdiction of diplomatic agents and of persons
enjoying immunity under Art. 37 may be waived by the sending state
2. Waiver must always be express
3. The initiation of proceedings by a diplomatic agent or by a person
enjoying immunity from jurisdiction under Art. 37 shall preclude him from
invoking immunity from jurisdiction in respect of any counter-claim
directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative
proceedings shall not be held to imply waiver of immunity in respect of
the execution of the judgment, for which a separate waiver shall be
necessary.
Art. 33
1. Subject to the provisions of paragraph 3, a diplomatic agent shall with
respect to services rendered for the sending state be exempt from social
security provisions which may be in force in the receiving state
2. The exemption shall also apply to private servant who are in the sole
employ of a diplomatic agent, on the condition:
1. that they are not nationals of or permanent residents in the
receiving state, and
2. that they are covered by the social security provision which may
be in force in the sending state or a third state
3. A diplomatic agent who employs persons to whom the exemption
provided for in paragraph 2 does not apply shall observe the obligations
which the social security provisions of the receiving state impose upon
employers
4. The exemption provided for in paragraphs 1 and 2 shall not preclude
voluntary participation in the social security system of the receiving state
provided that such participation is permitted by that state
5. The provisions of this article shall not affect bilateral or multilateral
agreements concerning social security concluded previously and shall
not prevent the conclusion of such agreements in the future
Art. 34
A diplomatic agent shall be exempt from all dues and taxes, personal or
real, national, regional or municipal, except:
1. indirect taxes of a kind which are normally incorporated in the
price of goods or services
2. dues and taxes on private immovable property situated in the
territory of the receiving state, unless he holds it on behalf of the
sending state for the purposes of the mission
3. estate, succession or inheritance duties levied by the receiving
state, subject to the provisions of paragraph 4 of Art. 39
4. dues and taxes on private income having its source in the
receiving state and capital taxes on investments made in
 commercial undertaking in the receiving state
5. charges levied for specific services rendered
6. registration, court or record fees, mortgage dues and stamp duty,
with respect to immovable property, subject to the provisions of
Art. 23
Art. 36
1. The receiving state shall, in accordance with such laws and regulations
as it may adopt, permit entry of and grant exemption from all custom
duties, taxes, and related charges other than charges for storage,
cartage, and similar service, on:
1. articles for the official use of the mission
2. articles for the personal use of a diplomatic agent or members of
his family forming part of his household, including articles
intended for his establishment
2. The personal baggage of a diplomatic agent shall be exempt from
inspection, unless there are serious grounds for presuming that it
contains articles not covered by the exemptions mentioned in paragraph
1 of this article, or articles the import or export of which is prohibited by
the law or controlled by the quarantine regulations of the receiving state.
Such inspection shall be conducted only in the presence of the
diplomatic agent or of his authorised representative
Art. 37
1. The members of the family of a diplomatic agent forming part of his
household shall, if they are not nationals of the receiving state, enjoy the
privileges specified in Art. 29-36
2. Members of the administrative and technical staff of the mission,
together with the members of their families forming part of their
respective households, shall, if they are not nationals of or permanent
residents of the receiving state, enjoy the privileges and immunities in
Art. 29-35, except immunity from civil and administrative jurisdiction in
paragraph 1 Art. 31 shall not extend to acts performed outside the
course of their duties. They shall also enjoy Art. 36 paragraph 1 in
respect of articles imported at the time of first installation
3. Members of the service staff of the mission who are not nationals or
permanent residents shall enjoy immunity in respect of acts performed
in the course of their duties, exemption from dues and taxes on the
emoluments they receive by reason of their employment and the
exemption contained in Art. 33
4. Private servants of members of the mission shall, if they are not
nationals of or permanent residents, be exempt from dues and taxes on
the emoluments they receive by reason of their employment. In other
respects, they may enjoy privileges and immunities only to the extent
admitted by the receiving state. However, the receiving state must
exercise its jurisdiction over those persons in such a manner as not to
interfere unduly with the performance of the functions of the mission
Art. 38
1. Except insofar as additional privileges and immunities may be granted
 by the receiving state, a diplomatic agent who is a national of or
permanent resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official acts performed in the
exercise of his functions
2. Other members of the staff of the mission and private servants who are
nationals of or permanent residents in the receiving state shall enjoy
privileges and immunities only to the extent admitted by the receiving
state. However, the receiving state must exercise jurisdiction over those
persons in such as manner as not to interfere unduly with the
performance of the functions of the mission
Art. 39
1. Every person entitled to privileges and immunities shall enjoy them from
the moment he enters the territory of the receiving state on proceeding
to take up his post or, if already in the territory, from the moment when
his appointment is notified to the Ministry of Foreign Affairs or such other
ministry as may be agreed
2. When the functions of a person enjoying privileges and immunities have
come to an end, such privileges and immunities shall normally cease at
the moment when he leaves the country, or on expiry of a reasonable
period in which to do so, but shall subsist until that time, even in case of
armed conflict. However, with respect to acts performed by such a
person in the exercise of his functions as a member of the mission,
immunity shall continue to subsist.
It is the duty of all persons enjoying such privileges and immunities to respect
the laws and regulations of the receiving state
Nor may they practice for personal profit any professional or commercial
activity in the receiving state
Consuls and consular immunities
Consul are not concerned with political matters. They attend rather to
administrative and economic issues such as the issuance of visas
Vienna Convention on Consular Relations 1967
Art. 5 consular functions
1. protecting in the receiving State the interests of the sending State and of
its nationals, both individuals and bodies corporate, within the limits
permitted by international law;
2. furthering the development of commercial, economic, cultural and
scientific relations between the sending State and the receiving State
and otherwise promoting friendly relations between them in accordance
with the provisions of the present Convention
3. ascertaining by all lawful means conditions and developments in the
commercial, economic, cultural and scientific life of the receiving State,
reporting thereon to the Government of the sending State and giving
information to persons interested
4. issuing passports and travel documents to nationals of the sending
State, and visas or appropriate documents to persons wishing to travel
to the sending State
5. helping and assisting nationals, both individuals and bodies corporate,
 of the sending State;
6. acting as notary and civil registrar and in capacities of a similar kind, and
performing certain functions of an administrative nature, provided that
there is nothing contrary thereto in the laws and regulations of the
receiving State
7. safeguarding the interests of nationals, both individuals and bodies
corporate, of the sending State in cases of succession mortis causa in
the territory of the receiving State, in accordance with the laws and
regulations of the receiving State
8. safeguarding, within the limits imposed by the laws and regulations of
the receiving State, the interests of minors and other persons lacking full
capacity who are nationals of the sending State, particularly where any
guardianship or trusteeship is required with respect to such persons
9. subject to the practices and procedures obtaining in the receiving State,
representing or arranging appropriate representation for nationals of the
sending State before the tribunals and other authorities of the receiving
State, for the purpose of obtaining, in accordance with the laws and
regulations of the receiving State, provisional measures for the
preservation of the rights and interests of these nationals, where,
because of absence or any other reason, such nationals are unable at
the proper time to assume the defence of their rights and interests
10. transmitting judicial and extrajudicial documents or executing letters
rogatory or commissions to take evidence for the courts of the sending
State in accordance with international agreements in force or, in the
absence of such international agreements, in any other manner
compatible with the laws and regulations of the receiving State
11. exercising rights of supervision and inspection provided for in the laws
and regulations of the sending State in respect of vessels having the
nationality of the sending State, and of aircraft registered in that State,
and in respect of their crews
12. extending assistance to vessels and aircraft mentioned in sub-
paragraph (11)* of this Article and to their crews, taking statements
regarding the voyage of a vessel, examining and stamping the ships
papers, and, without prejudice to the powers of the authorities of the
receiving State, conducting investigations into any incidents which
occurred during the voyage, and settling disputes of any kind between
the master, the officers and the seamen in so far as this may be
authorised by the laws and regulations of the sending State
13. performing any other functions entrusted to a consular post by the
sending State which are not prohibited by the laws and regulations of
the receiving State or to which no objection is taken by the receiving
State or which are referred to in the international agreements in force
between the sending State and the receiving State
The head of a consular post is admitted to the exercise of his functions by an
authorization from the receiving State termed an exequatur. There is no
prescribed form, but without it, he may not enter upon his duties. The receiving
State may at any time notify the sending State that a consular officer is
persona non grata or that any other member of the consular staff is not
acceptable.
Art. 34 - Freedom of movement
Subject to its laws and regulations concerning zones entry into which is
prohibited or regulated for reasons of national security, the receiving
State shall ensure freedom of movement and travel in its territory to all
members of the consular post.
Art. 35 - Freedom of communication
1. The receiving State shall permit and protect freedom of communication
on the part of the consular post for all official purposes. In
communicating with the Government, the diplomatic missions and other
consular posts, wherever situated, of the sending State, the consular
post may employ all appropriate means, including diplomatic or consular
couriers, diplomatic or consular bags and messages in code or cipher.
However, the consular post may install and use a wireless transmitter
only with the consent of the receiving State.
2. The official correspondence of the consular post shall be inviolable.
Official correspondence means all correspondence relating to the
consular post and its functions.
3. The consular bag shall be neither opened nor detained. Nevertheless, if
the competent authorities of the receiving State have serious reason to
believe that the bag contains something other than the correspondence,
documents or articles referred to in paragraph 4 of this Article, they may
request that the bag be opened in their presence by an authorized
representative of the sending State. If this request is refused by the
authorities of the sending State, the bag shall be returned to its place of
origin.
4. The packages constituting the consular bag shall bear visible external
marks of their character and may contain only official correspondence
and documents or articles intended exclusively for official use.
Art. 36 - communication and contact with the nationals of the sending state
1. With a view to facilitating the exercise of consular functions relating to
nationals of the sending State:
1. (a) consular officers shall be free to communicate with nationals
of the sending State and to have access to them. Nationals of the
sending State shall have the same freedom with respect to
communication with and access to consular officers of the
sending State;
2. (b) if he so requests, the competent authorities of the receiving
State shall, without delay, inform the consular post of the sending
State if, within its consular district, a national of that State is
arrested or committed to prison or to custody pending trial or is
detained in any other manner. Any communication addressed to
the consular post by the person arrested, in prison, custody or
detention shall also be forwarded by the said authorities without
delay. The said authorities shall inform the person concerned
without delay of his rights under this sub-paragraph;
 3. (c) consular officers shall have the right to visit a national of the
sending State who is in prison, custody or detention, to converse
and correspond with him and to arrange for his legal
representation. They shall also have the right to visit any national
of the sending State who is in prison, custody or detention in their
district in pursuance of a judgment. Nevertheless, consular
officers shall refrain from taking action on behalf of a national who
is in prison, custody or detention if he expressly opposes such
action.
Art. 41 - Personal inviolability of consular officers
Consular officers shall not be liable to arrest or detention pending trial,
except in the case of a grave crime and pursuant to a decision by the
competent judicial authority
Art. 42 - Notification of arrest, detention or prosecution
In the event of the arrest or detention, pending trial, of a member of the
consular staff, or of criminal proceedings being instituted against him,
the receiving State shall promptly notify the head of the consular post.
Art. 43 - Immunity from jurisdiction
1. Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving
State in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not, however, apply in
respect of a civil action either:
1. (a) arising out of a contract concluded by a consular officer or a
consular employee in which he did not contract expressly or
impliedly as an agent of the sending State; or
2. (b) by a third party for damage arising from an accident in the
receiving State caused by a vehicle, vessel or aircraft.
Art. 44 - Liability to give evidence
Members of a consular post may be called upon to attend as witnesses
in the course of judicial or administrative proceedings. A consular
employee or a member of the service staff shall not, except in the cases
mentioned in paragraph 3 of this Article, decline to give evidence. If a
consular officer should decline to do so, no coercive measure or penalty
may be applied to him.
Art. 45 - Waiver of privileges and immunities
The sending State may waive, with regard to a member of the consular
post, any of the privileges and immunities provided for in Articles 41,43
and 44.
US v. Tehran
Facts:
On 4 November 1979, Iranian students seized the US Embassy in
Tehran and a number of consulates in outlying cities. The Iranian
authorities failed to protect the Embassy and later appeared to adopt the
students actions. Over 50 US nationals (mostly diplomatic and consular
staff) were held for 444 days. The ICJ had indicated provisional
measures against Iran (ICJ Rep 1979 7), and in this case the US sought
 a declaration, inter alia, that Iran had violated the two Vienna
Conventions, and calling for the release of the hostages and the
vacation of the Embassy and consulates.
Issue
The Court considered whether the initial attack by the students could be
attributed to the Iranian Government and whether Iran was therefore in
violation of its international obligations.
Held:
Yes, for the first phase of events, the Iranian authorities:
were fully aware of their obligations under the conventions in
force to take appropriate steps to protect the premises of the
United States Embassy and its diplomatic and consular staff from
any attack and from any infringement of their inviolability, and to
ensure the security of such other persons as might be present on
the said premises;
were fully aware, as a result of the appeals for help made by the
United States Embassy, of the urgent need for action on their
part;
had the means at their disposal to perform their obligations;
completely failed to comply with these obligations.
were equally aware of their obligations to protect the United
States Consulates at Tabriz and Shiraz, and of the need for action
on their part, and similarly failed to use the means which were at
their disposal to comply with their obligations.
For the second phase,
The occupation having taken place and the diplomatic and
consular personnel of the United States mission having been
taken hostages, the action required of the Iranian Government by
the Vienna Conventions and by general international law
manifest. Its plain duty was at once to make every effort, and to
take every appropriate step, to bring these flagrant infringements
of the inviolability of the premises, archives and diplomatic and
consular staff of the United States Embassy to a speedy end, to
restore the Consulates at Tabriz and Shiraz to United States
control, and in general to re-establish the status quo and to offer
reparation for the damage.
The Iranian authorities decision to continue the subjection of the
premises of the United States Embassy to occupation by militants
and of the Embassy staff to detention as hostages, clearly gave
rise to repeated and multiple breaches of the applicable
provisions of the Vienna Conventions even more serious than
those which arose from their failure to take any steps to prevent
the attacks on the inviolability of these premises and staff.
the Iranian Government did not break off diplomatic relations with
the United States; and in response to a question put to him by a
Member of the Court, the United States Agent informed the Court
that at no time before the events of 4 November 1979 had the
 Iranian Government declared, or indicated any intention to
declare, any member of the United States diplomatic or consular
staff in Tehran persona non grata. The Iranian Government did
not, therefore, employ the remedies placed at its disposal by
diplomatic law specifically for dealing with activities of the kind of
which it now complains. Instead, it allowed a group of militants to
attack and occupy the United States Embassy by force, and to
seize the diplomatic and consular staff as hostages; instead, it
has endorsed that action of those militants and has deliberately
maintained their occupation of the Embassy and detention of its
staff as a means of coercing the sending State. It has, at the
same time, refused altogether to discuss this situation with
representatives of the United States. The Court, therefore, can
only conclude that Iran did not have recourse to the normal and
efficacious means at its disposal, but resorted to coercive action
against the United States Embassy and its staff.
Act of state doctrine
Underhill v. Hernandez
Facts:
The background of the case was a 1892 revolution in Venezuela
against the legitimate government. General Hernandez
commanded the anti-administration party and, after defeating the
army of the administration, he entered Bolivar to assume
leadership of the government. George F. Underhill was a citizen
of the United States who had constructed a waterworks system
for the city of Bolivar, under a contract with the government, and
was engaged in supplying the place with water. He also carried
on a machinery repair business. Some time after the entry of
Gen. Hernandez, Underhill applied to him for a passport to leave
the city. Hernandez refused this request as well as requests made
by others in Underhills behalf. The purpose of Hernandezs
refusal was to coerce Underhill to operate his waterworks and his
repair works for the benefit of the community and the
revolutionary forces. After Underhill was finally allowed to leave,
he filed suit in the United States to recover damages for the
detention caused by reason of the denial of his permit to leave,
for his alleged confinement to his own house, and for certain
alleged assaults and affronts by the soldiers of Hernandezs army.
Issue:
W/N the US courts could consider the validity of acts of a foreign
state alleged to be in violation of international law
Held:
In denying the plea of Underhill, the U.S. court ruled with what is
now known as the act of state doctrine:
Every sovereign state is bound to respect the
independence of every other sovereign state, and the
courts of one country will not sit in judgment on the acts of
 the government of another, done within its own territory.
Redress of grievances by reason of such acts must be
obtained through the means open to be availed of by
sovereign powers as between themselves.
Banco National de Cuba v. Sabbatino
The act of state doctrine does, however, have constitutional
underpinnings. It arises out of the basic relationships between branches
of government in a system of separation of powers. It concerns the
competency of dissimilar institutions to make and implement particular
kinds of decisions in the area of international relations. The doctrine as
formulated in past decisions expresses the strong sense of the Judicial
Branch that its engagement in the task of passing on the validity of
foreign acts of state may hinder rather than further this countrys pursuit
of goals both for itself and for the community of nations as a whole in
the international sphere
Alfred Dunhill of London v. Cuba
Issue:
whether the failure of Cuba to return to Dunhill funds mistakenly
paid by Dunhill for cigars that had been sold to Dunhill by certain
expropriated Cuban cigar businesses was an act of state by
Cuba precluding an affirmative judgment against respondents.
Held:
No.
If we assume with the Court of Appeals that the Cuban
Government itself had purported to exercise sovereign power to
confiscate the mistaken payments belonging to three foreign
creditors and to repudiate intervenors adjudicated obligation to
return those funds, we are nevertheless persuaded by the
arguments of petitioner and by those of the United States that the
concept of an act of state should not be extended to include the
repudiation of a purely commercial obligation owed by a foreign
sovereign or by one of its commercial instrumentalities. Our cases
have not yet gone so far, and we decline to expand their reach to
the extent necessary to affirm the Court of Appeals.
Of course, sovereign immunity has not been pleaded in this case;
but it is beyond cavil that part of the foreign relations law
recognized by the United States is that the commercial
obligations of a foreign government may be adjudicated in those
courts otherwise having jurisdiction to enter such judgments.
Nothing in our national policy calls on us to recognise as an act of
state a repudiation by Cuba of an obligation adjudicated in our
courts and arising out of the operation of a commercial business
by one of its instrumentalities.
Kirpatrick Co. v. Environmental Tectonics Corp
Facts:
The case had for background a contract entered into between the
Nigerian government with Kirkpatrick for the construction and
 equipment of an aeromedical center at Kaduna Air Force Base in
Nigeria. Environmental Tectonics Corporation, an unsuccessful
bidder for the Kaduna contract, learned that Kirkpatrick had
bribed Nigerian officals in winning the contract. Environmental
Tectonics brought the matter to the attention of the Nigerian Air
Force and to the United States Embassy in Lagos. Following an
investigation by the Federal Bureau of Investigation, the United
States Attorney for the District of New Jersey brought charges
against Kirkpatrick for violations of the Foreign Corrupt Practices
Act of 1977. Kirkpatrick pleaded guilty. Whereupon,
Environmental Tectonics brought a civil action against Kirkpatrick
and other private parties involved in the bribery to seek damages
under the Racketeer Influenced and Corrupt Organizations Act
and other statutes. The defendants moved to dismiss the
complaint on the ground that the action was barred by the act of
state doctrine.
Issue:
W/N the action is barred by the act of state doctrine
Held:
No. the act of state doctrine is not applicable where the validity of
a foreign government act is not in issue:
Courts in the United States have the power, and ordinarily
the obligation, to decide cases and controversies properly
presented to them. The act of state doctrine does not
establish an exception for cases and controversies that
may embarrass foreign governments, but merely requires
that, in the process of deciding, the acts of foreign
sovereigns taken within their own jurisdictions shall be
deemed valid. That doctrine has no application to the
present case because the validity of a foreign sovereign act
is not at issue.
Vienna Convention on Diplomatic Relations 1961 - mostly codification of customary
international law
Vienna Convention on Consular Relations 1963 - some customary international law
General Convention on the Privileges and Immunities of the UN 1946
Remedy of individual:
1. sue in home state of diplomat
2. waiver by State of nationality of diplomat
3. declare diplomat persona non grata
Case law:
US v. Tehran
Facts:
On 4 November 1979, Iranian students seized the US Embassy in
Tehran and a number of consulates in outlying cities. The Iranian
authorities failed to protect the Embassy and later appeared to
adopt the students actions. Over 50 US nationals (mostly
diplomatic and consular staff) were held for 444 days. The ICJ
 had indicated provisional measures against Iran (ICJ Rep 1979
7), and in this case the US sought a declaration, inter alia, that
Iran had violated the two Vienna Conventions, and calling for the
release of the hostages and the vacation of the Embassy and
consulates.
Issue
The Court considered whether the initial attack by the students
could be attributed to the Iranian Government and whether Iran
was therefore in violation of its international obligations.
Held:
Yes, for the first phase of events, the Iranian authorities:
were fully aware of their obligations under the conventions
in force to take appropriate steps to protect the premises of
the United States Embassy and its diplomatic and consular
staff from any attack and from any infringement of their
inviolability, and to ensure the security of such other
persons as might be present on the said premises;
were fully aware, as a result of the appeals for help made
by the United States Embassy, of the urgent need for
action on their part;
had the means at their disposal to perform their obligations;
completely failed to comply with these obligations.
were equally aware of their obligations to protect the United
States Consulates at Tabriz and Shiraz, and of the need for
action on their part, and similarly failed to use the means
which were at their disposal to comply with their
obligations.
For the second phase,
The occupation having taken place and the diplomatic and
consular personnel of the United States mission having
been taken hostages, the action required of the Iranian
Government by the Vienna Conventions and by general
international law manifest. Its plain duty was at once to
make every effort, and to take every appropriate step, to
bring these flagrant infringements of the inviolability of the
premises, archives and diplomatic and consular staff of the
United States Embassy to a speedy end, to restore the
Consulates at Tabriz and Shiraz to United States control,
and in general to re-establish the status quo and to offer
reparation for the damage.
The Iranian authorities decision to continue the subjection
of the premises of the United States Embassy to
occupation by militants and of the Embassy staff to
detention as hostages, clearly gave rise to repeated and
multiple breaches of the applicable provisions of the Vienna
Conventions even more serious than those which arose
from their failure to take any steps to prevent the attacks on
 the inviolability of these premises and staff.
the Iranian Government did not break off diplomatic
relations with the United States; and in response to a
question put to him by a Member of the Court, the United
States Agent informed the Court that at no time before the
events of 4 November 1979 had the Iranian Government
declared, or indicated any intention to declare, any member
of the United States diplomatic or consular staff in Tehran
persona non grata. The Iranian Government did not,
therefore, employ the remedies placed at its disposal by
diplomatic law specifically for dealing with activities of the
kind of which it now complains. Instead, it allowed a group
of militants to attack and occupy the United States
Embassy by force, and to seize the diplomatic and consular
staff as hostages; instead, it has endorsed that action of
those militants and has deliberately maintained their
occupation of the Embassy and detention of its staff as a
means of coercing the sending State. It has, at the same
time, refused altogether to discuss this situation with
representatives of the United States. The Court, therefore,
can only conclude that Iran did not have recourse to the
normal and efficacious means at its disposal, but resorted
to coercive action against the United States Embassy and
its staff.
Regina v. Palacios
Diplomatic immunity ceases to be enjoyed at the moment the diplomat
leaves the country, or on expiry of a reasonable period in which to do so
Facts:
A Nicaraguan diplomatic staff has been residing in Ottawa with
his wife and child.
July 12, 1983, he was advised that Nicaragua had terminated his
duties at his mission.
July 16, 1983, he left Canada for a temporary visit to the US.
When he returned, he was detained by the police and later on
was issued a search warrant.
He was then arrested for possession of cocaine as well as
prohibited weapons (2 revolvers) and careless storage of
ammunition.
The counsel for the Republic of Nicaragua contends that Palacios
has lost his immunity when he left the country to visit the US.
The lower court ruled that according to the Convention, the words
leaves the country must be interpreted to be permanently
leaving the country in order for him to lose his diplomatic
immunity.
Issue:
W/N the leaving of the diplomatic staff temporarily terminates his
diplomatic immunityNO. It ceases when he leaves the country
 permanently.
Held:
No. The personal inviolability of diplomats has been recognised
by all legal systems since the earliest times.
Such immunity is meant to ensure the efficient performance
of the functions of diplomatic missions as representing
States.
The immunities recognised by CIL were considered to be
incorporated in the domestic law of Canada by the SC of Canada.
Under customary rules, immunity is not limited in time to the dates
on which the diplomat takes up his duties and relinquishes them.
It extends to protect them from the time he enters the host
country for the purpose of taking up his duties and for a
reasonably time after their termination in order to enable
him to wind up his affairs and leave the country.
Reasonable time is measured by the time required to
permit the diplomat to move permanently from the host
country either to his home country or to another foreign
posting.
In interpreting the treaty which states that privileges and
immunities shall normally cease at the moment he leaves the
country, or on expiry of a reasonable period in which to do so:
Use the effectiveness principle which requires the court to
read a treaty as a whole to ascertain its purpose and intent
and to give effect thereto
It is without doubt that the phrase leaves the country refer
to permanent departure from the host country.
It would require the clearest possible language in the
convention to compel the conclusion that a diplomat would
have any lesser protection under it and could lose his
immunity by a temporary visit outside the country before he
was ready or required to leave the country permanently.
Philippines: Excerpts from the 1997 Manual on Immunities and Privileges (DFA)
Diplomats/Consuls
Holy See v. Rosario
Facts:
Three lots owned by the Holy See were sold to Ramon Licup,
through Msgr. Domingo A. Cirilos, Jr., acting as agent of the
sellers. Later, Licup assigned his rights to the sale to Starbright
In view of the refusal of the squatters to vacate the lots sold to
private respondent, a dispute arose as to who of the parties has
the responsibility of evicting and clearing the land of squatters.
Complicating the relations of the parties was the sale by petitioner
of Lot 5A to Tropicana Properties and Development Corporation
(Tropicana).
On January 23, 1990, private respondent filed a complaint with
the Regional Trial Court, Branch 61, Makati, Metro Manila for
 annulment of the sale of the three parcels of land, and specific
performance and damages against petitioner, represented by the
Papal Nuncio, and three other defendants: namely, Msgr.
Domingo
petitioner and Msgr. Cirilos separately moved to dismiss the
complaintpetitioner for lack of jurisdiction based on sovereign
immunity from suit, and Msgr. Cirilos for being an improper party.
The burden of the petition is that respondent trial court has no
jurisdiction over petitioner, being a foreign state enjoying
sovereign immunity. On the other hand, private respondent insists
that the doctrine of non suability is not anymore absolute and that
petitioner has divested itself of such a cloak when, of its own free
will, it entered into a commercial transaction for the sale of a
parcel of land located in the Philippines.
Issue:
W/N Holy See is immune
Held:
Yes
the mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. In this case, the fact that the
Holy See bought the lands for the site of its mission or the
apostolic Nunciature in the Philippines brings in under jure
imperii.
In the case at bench, if petitioner has bought and sold lands in the
ordinary course of a real estate business, surely the said
transaction can be categorized as an act jure gestionis. However,
petitioner has denied that the acquisition and subsequent
disposal of Lot 5A were made for profit but claimed that it
acquired said property for the site of its mission or the Apostolic
Nunciature in the Philippines. Private respondent failed to dispute
said claim.
Lot 5A was acquired by petitioner as a donation from the
Archdiocese of Manila. The donation was made not for
commercial purpose, but for the use of petitioner to
construct thereon the official place of residence of the
Papal Nuncio. The right of a foreign sovereign to acquire
property, real or personal, in a receiving state, necessary
for the creation and maintenance of its diplomatic mission,
is recognized in the 1961 Vienna Convention on Diplomatic
Relations (Arts. 2022). This treaty was concurred in by the
Philippine Senate and entered into force in the Philippines
on November 15, 1965.
In Article 31(a) of the Convention, a diplomatic envoy is
granted immunity from the civil and administrative
jurisdiction of the receiving state over any real action
relating to private immovable property situated in the
territory of the receiving state which the envoy holds on
 behalf of the sending state for the purposes of the mission.
If this immunity is provided for a diplomatic envoy, with all
the more reason should immunity be recognised as regards
the sovereign itself, which in this case is the Holy See.
the privilege of sovereign immunity in this case was sufficiently
established by the Memorandum and Certification of the
Department of Foreign Affairs. As the department tasked with the
conduct of the Philippines foreign relations (Administrative Code
of 1987, Book IV, Title I, Sec. 3), the Department of Foreign
Affairs has formally intervened in this case and officially certified
that the Embassy of the Holy See is a duly accredited diplomatic
mission to the Republic of the Philippines exempt from local
jurisdiction and entitled to all the rights, privileges and immunities
of a diplomatic mission or embassy in this country
Procedure for state claiming sovereign immunity:
when a state or international agency wishes to plead
immunity in a foreign court, it requests the Foreign Office of
the state where it is sued to convey to the court that the
defendant is entitled to immunity
in the Philippines, the practice is for the foreign government
or the international organisation to first secure an executive
endorsement of its claim of immunity.
Remedy of aggrieved person is to ask his government to espouse
his cause through diplomatic channels
Minucher v. CA
Facts:
On August 1988, petitioner filed with the RTC a complaint for
damages against respondent, Arthur Scalzo Jr.
Petitioner alleged that he was a labor attach of the Embassy of
Iran in the Phils. And that he met Scalzo, then connected with the
American Embassy, through Jose Inigo, informer belonging to the
military intelligence community whom he had various business
transaction like the buying and selling carpets and caviar (this will
be the same transactions he will have with the respondent).
So they met. Scalzo was purportedly interested in buying caviar
and carpets too. On this same occasion, petitioner told Scalzo
that he had problems with his visa and along with his wifes and
sought Scalzos help.
Scalzo offered his help and presented himself as an agent of the
DEA (drug enforcement agency) of the US Embassy in Manila.
Scalzo bought caviar and said that the fee for the visas were
$2000. Further, he ordered more caviar and bought a carpet
worth $24,000.
It turned out that Scalzo had an elaborate plan to frame petitioner
and Abbas Torabian for alleged heroin trafficking.
Some American and Filipino police officers arrested them and
brought them to Camp Crame in their underwear
 Scalzo and his companions took three suitcases and papers, his
wallet, the keys to his car and his house, the $24,000 earlier
delivered to him.
They were handcuffed together for three days and were not given
food and water.
They were asked to confess for possession of heroin or else they
would be jailed or even executed by Iranian terrorists.
Consequently, they were charged for the violation of the
Dangerous Drugs Act of 1972 in the RTC of Pasig. Respondent
testified for the prosecution of the same case.
Petitioner alleged that respondent falsely testified against him and
also avers that charges of unlawful arrest, robbery, estafa and
swindling have been filed against the respondent.
Petitioner therefore prays for actual and compensatory damages:
$24,000 for the Persian carpet, $2000 for the fees he gave for the
visas, moral damages P5M, exemplary damages for P100k, and
at least P200k for litigation fees he spent on for the criminal cases
filed against him and this civil case.
On September 1988, private respondents counsel, filed a special
appearance and motion alleging therein that since respondent is
an agent of the DEA of the US and the acts and omissions
complained were performed by him in the performance of his
official functions and that the case is now under study with the
Department of State and Justice in Washington DC for the
purpose of determining what defences would be appropriate.
Moving on On June 1990, private respondent filed a motion to
dismiss the case on the ground of a DIPLOMATIC NOTE issued
by the US Embassy by Donald Woodward, Vice consul of the US
advising the DFA of the RP that Arthur Scalzo was a member of a
diplomatic mission, which is basically an official function and
raises the ART 39(2) of the Vienna Convention on Diplomatic
Relations, which provides that respondent retains immunity from
civil suit for acts performed in the exercise of his functions.
The RTC then denied the dismissal but the CA reversed the
decision thus this petition
Issue:
WON the case against the respondent must be dismissed based
on diplomatic immunity?
Held:
Yes
The Convention lists the classes of heads of diplomatic missions
to include
(a) ambassadors or nuncios accredited to the heads of
state,
(b) envoys, ministers or inter nuncios accredited to the
heads of states; and
(c) charges d affairs accredited to the ministers of foreign
 affairs.
Comprising the staff of the (diplomatic) mission" are the
diplomatic staff, the administrative staff and the technical
and service staff. Only the heads of missions, as well as
members of the diplomatic staff, excluding the members of
the administrative, technical and service staff of the
mission, are accorded diplomatic rank. Even while the
Vienna Convention onDiplomatic Relations provides for
immunity to the members of diplomatic missions, it does
so, nevertheless, with an understanding that the same be
restrictively applied.
The main yardstick in ascertaining whether a person is a diplomat
entitled to immunity is the determination of whether or not he
performs duties of diplomatic nature.
Scalzo was an Assistant Attach of the US diplomatic
mission. An attach belongs to a category of officers in the
diplomatic establishment who may be in charge of its
cultural, press, administrative or financial affairs. There
could also be a class of attaches belonging to certain
ministries or departments of the government, other than the
foreign ministry or department, who are detailed by their
respective ministries or departments with the embassies
such as the military, naval, air, commercial, agricultural,
labor, science,and customs attaches, or the like
Attaches assist a chief of mission in his duties and are
administratively under him, but their main function is to
observe, analyse and interpret trends and developments in
their respective fields in the host country and submit
reports to their own ministries or departments in the home
government. These officials are not generally regarded as
members of the diplomatic mission, nor are they normally
designated as having diplomatic rank. Vesting a person
with diplomatic immunity is a prerogative of the executive
branch of the government.
The government of the United States itself, which Scalzo
claims to be acting for, has formulated its standards for
recognition of a diplomatic agent. The State Department
policy is to only concede diplomatic status to a person who
possesses an acknowledged diplomatic title and performs
duties of diplomatic nature.
Supplementary criteria for accreditation are the possession
of a valid diplomatic passport or, from States which do not
issue such passports, a diplomatic note formally
representing the intention to assign the person to
diplomatic duties, the holding of a non-immigrant visa,
being over twenty-one years of age, and performing
diplomatic functions on an essentially full-time basis.
 Diplomatic missions are requested to provide the most
accurate and descriptive job title to that which currently
applies to the duties performed. The Office of the Protocol
would then assign each individual to the appropriate
functional category
While the diplomatic immunity of Scalzo might thus remain
contentious, it was sufficiently established that, indeed,he worked
for the United States Drug Enforcement Agency and was tasked
to conduct surveillance of suspected drug activities within the
country on the dates pertinent to this case. If it should be
ascertained that Arthur Scalzo was acting well within his assigned
functions when he committed the acts alleged in the complaint,
the present controversy could then be resolved under the related
doctrine of State Immunity from Suit.
The precept that a State cannot be sued in the courts of a foreign
state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign
sovereign from suit and, with the emergence of democratic states,
made to attach not just to the person of the head of state, or his
representative, but also distinctly to the state itself in its sovereign
capacity.
If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not
necessarily a diplomatic personage, but acting in his official
capacity, the complaint could be barred by the immunity of
the foreign sovereign from suit without its consent. Suing a
representative of a state is believed to be, in effect, suing
the state itself. The proscription is not accorded for the
benefit of an individual but for the State, in whose service
he is, under the maxim - par in paren, non habit imperium -
that all states are sovereign equals and cannot assert
jurisdiction over one another.
The implication, in broad terms, is that if the judgment against an
official would require the state itself to perform an affirmative act
to satisfy the award, such as the appropriation of the amount
needed to pay the damages decreed against him, the suit must
be regarded as being against the state itself, although it has not
been formally impleaded. The doctrine of immunity from suit will
not apply and may not be invoked where the public official is
being sued in his private and personal capacity as an ordinary
citizen. The cloak of protection afforded the officers and agents of
the government is removed the moment they are sued in their
individual capacity.
This situation usually arises where the public official acts without
authority or in excess of the powers vested in him. It is a well-
settled principle of law that a public official may be liable in his
personal private capacity for whatever damage he may have
 caused by his act done with malice and in bad faith or beyond the
scope of his authority and jurisdiction.Indeed, a foreign agent,
operating within a territory, can be cloaked with immunity from suit
but only as long as it can be established that he is acting within
the directives of the sending state. The consent of the host state
is an indispensable requirement of basic courtesy between the
two sovereigns.While evidence is wanting to show any similar
agreement between the governments of the Philippines and of the
UnitedStates (for the latter to send its agents and to conduct
surveillance and related activities of suspected drug dealers in the
Philippines), the consent or imprimatur of the Philippine
government to the activities of the United States Drug
Enforcement Agency,however, can be gleaned from the facts
heretofore elsewhere mentioned. The official exchanges of
communication between agencies of the government of the two
countries, certifications from officials of both the Philippine
Department of ForeignAffairs and the United States Embassy, as
well as the participation of members of the Philippine Narcotics
Command in thebuy-bust operation conducted at the residence
of Minucher at the behest of Scalzo, may be inadequate to
support thediplomatic status" of the latter but they give enough
indication that the Philippine government has given its imprimatur,
if not consent, to the activities within Philippine territory of agent
Scalzo of the United States Drug Enforcement Agency.
The job description of Scalzo has tasked him to conduct
surveillance on suspected drug suppliers and, after having
ascertained the target, to inform local law enforcers who would
then be expected to make the arrest. In conducting surveillance
activities on Minucher, later acting as the poseur-buyer during the
buy-bust operation, and then becoming a principal witness in the
criminal case against Minucher,Scalzo hardly can be said to have
acted beyond the scope of his official function or duties
Indonesia v. Vinzon
Indonesia entered into a maintenance agreement with Vinzon, in
order to maintain specified equipment aircons, generators,
water heaters, etc at the Embassy, its annex, and the official
residence of the Indonesian-ambassador. This agreement would
be effective for a period of four years and would automatically
renew itself unless cancelled by either party by giving thirty days
prior written notice.
Before expiration of agreement in 1999, Indonesia informed
Vinzon that the renewal would be at the discretion of the incoming
chief of administration. Such Chief found Vinzons work
unsatisfactory, and thus, terminated the agreement.
Vinzon claimed that such dismissal was arbitrary and unfair, and
filed a suit. Citing that a sovereign state is immune from suit,
Indonesia filed a motion to dismiss. They also said that Soeratmin
 and kasim are diplomatic agents and enjoy immunity.
Vinzon claimed that Indonesia expressly waived its immunity from
suit, citing a provision in the Maintenance Agreement any legal
action arising out of this maintenance agreement shall be settled
according to the laws of the Philippines and by the proper court of
Makati City, Philippines.
RTC and CA ruled in favor of Vinzon hence this petition.
Issue:
w/n CA erred in ruling that petitioners have waived their immunity
based on the above mentioned provision in the agreement - yes
Held
Yes
Immunity of a sovereign is recognised with regard to public acts
acts jure imperii but not with regard to private acts jure
gestionis.
Ex : Conduct of a public bidding for the repair of a Wharf at a US
Naval station jure imperiii
Ex: Hiring a cook in the recreation center of camp john hay jure
gestionis
In present case
Mere entering into a contract does not immediately classify
it as one or the other
We must ask is foreign state engaged regularly in
conduct of a business? in this case, it is not, and thus it
seems as if the act is in pursuit of a sovereign activity, and
thus an act jure imperii.
Petitioner : maintenance is no longer a sovereign function
Court disagrees : it is clear that Indonesia was acting in
pursuit of a sovereign activity when it entered into
contract with respondent
one does not merely establish a diplomatic mission
and leave it at that, such establishment encompasses
maintenance and upkeep
With regard to provision in maintenance agreement
Not necessarily/explicitly a waiver.
Could apply when sovereign sues in local courts, or
otherwise expressly waives
Applicability of Phil Laws can also mean recognition
of immunity
Waiver must be explicit, clear, and unequivocal
Deutsche v. CA
Facts:
The SHINE project was implemented pursuant to the bilateral
agreements between the Philippine and German governments.
GTZ was tasked, under the 1991 agreement, with the
implementation of the contributions of the German government.
The activities performed by GTZ pertaining to the SHINE project
 are governmental in nature, related as they are to the promotion
of health insurance in the Philippines.
GTZ employed the services of private respondents
Due to conflicts, Anne, the employer, terminated the services of
private respondents, hence the illegal dismissal case.
OSG and GTZ claim that GTZ is immune from suit
Issue:
W/N GTZ is immune from suit? No.
Held:
No.
The mere entering into a contract by a foreign state with a private
party cannot be the ultimate test. Such an act can only be the
start of the inquiry.
The logical question is whether the foreign state is engaged
in the activity in the regular course of business.
If not, the particular act or transaction must then be tested
by its nature.
if the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure imperii
The principle of state immunity from suit, whether a local state or
a foreign state, is reflected in Section 9, Article XVI of the
Constitution, which states that the State may not be sued without
its consent."
IF the suit is against the STATE itself, the only necessary
inquiry is whether said State had consented to be sued.
IF it is against a States agency, then see below:
State immunity from suit may be waived by general or special law.
The special law can take the form of the original charter of the
incorporated government agency
Thus, the agency can simply invoke its charter and claim
exemption.
Also, the court can simply check the charter and sue.
However, if the agency fails to invoke exemption from its
national law or charter, We adhere to the rule that in the
absence of evidence to the contrary, foreign laws on a
particular subject are presumed to be the same as those of
the Philippines, and following the most intelligent
assumption we can gather, GTZ is akin to a governmental
owned or controlled corporation without original charter
which, by virtue of the Corporation Code, has expressly
consented to be sued.
International Organizations
DFA v. NLRC
Facts:
Magnayi filed a case regarding his alleged illegal dismissal by
ADB and the latters violation of the labor only contracting law.
Two summonses were served, one sent directly to the ADB and
 the other through the Department of Foreign Affairs (DFA), both
with a copy of the complaint.
Forthwith, the ADB and the DFA notified respondent Labor Arbiter
that the ADB, as well as its President and Officers, were covered
by an immunity from legal process except for borrowings,
guaranties or the sale of securities pursuant to Article 50(1) and
Article 55 of the Agreement Establishing the Asian Development
Bank (the Charter) in relation to Section 5 and Section 44 of the
Agreement Between The Bank And The Government Of The
Philippines Regarding The Banks Headquarters (the
Headquarters Agreement). The Labor Arbiter took cognisance of
the complaint on the impression that the ADB had waived its
diplomatic immunity from suit.
Issue:
W/N ADB is immune from suit - Yes
Held:
Yes
Article 50(1) of the Charter provides:
The Bank shall enjoy immunity from every form of legal process,
except in cases arising out of or in connection with the exercise of
its powers to borrow money, to guarantee obligations, or to buy
and sell or underwrite the sale of securities.
Art. 55 provides:
All Governors, Directors, alternates, officers and
employees of the Bank, including experts performing
missions for the Bank:
(l) shall be immune from legal process with respect of acts
performed by them in their official capacity, except when
the Bank waives the immunity.
The above stipulations of both the Charter and Headquarters
Agreement should be able, nay well enough, to establish that,
except in the specified cases of borrowing and guarantee
operations, as well as the purchase, sale and underwriting of
securities, the ADB enjoys immunity from legal process of every
form. The Banks officers, on their part, enjoy immunity in respect
of all acts performed by them in their official capacity.
Lasco v. UN
Facts:
Petitioners were dismissed from their employment with private
respondent, the United Nations Revolving Fund for Natural
Resources Exploration (UNRFNRE), which is a special fund and
subsidiary organ of theUnited Nations.
The UNRFNRE is involved in a joint project of the Philippine
Government and the United Nations for exploration work in
Dinagat Island. Petitioners are the complainants for illegal
dismissal and damages. Private respondent alleged that
respondent Labor Arbiter had no jurisdiction over its personality
 since it enjoyed diplomatic immunity.
Issue:
WON specialised agencies enjoy diplomatic immunity
Held:
The diplomatic immunity of private respondent was sufficiently
established by the letter of the Department of Foreign Affairs,
recognizing and confirming the immunity of UNRFNRE in
accordance with the 1946 Convention on Privileges and
Immunities of the United Nations where the Philippine
Government was a party. The issue whether an international
organisation is entitled to diplomatic immunity is a political
question and such determination by the executive branch is
conclusive on the courts and quasi-judicial agencies
Under Article 105 of the Charter of the United Nations:
"1. The Organization shall enjoy in the territory of its Members
such privileges and immunities as are necessary for the fulfillment
of its purposes.
"2. Representatives of the Members of the United Nations and
officials of the Organization shall similarly enjoy such privileges
and immunities as are necessary for the independent exercise of
their functions in connection with the Organization."
Petition is dismissed. This is not to say that petitioner have no
recourse. Section 31 of the Convention on the Privileges and
Immunities of the Specialized Agencies of the United Nations
states that each specialised agency shall make a provision for
appropriate modes of settlement of (a) disputes arising out of
contracts or other disputes of private character to which the
specialised agency is a party. Private respondent is not engaged
in a commercial venture in thePhilippines. Its presence is by
virtue of a joint project entered into by thePhilippine Government
and theUnited Nations for mineral exploration in Dinagat Island
WHO v. Aquino
Facts:
an original action for certiorari and prohibition to set aside
respondent judges refusal to quash a search warrant issued by
him at the instance of Constabulary officers for the search and
seizure of the personal effects of an official of the World Health
Organization.
Dr. Leonce Verstuyft, assigned on Dec. 6, 1971 by the WHO from
his last station in Taipei to the Regional Office in Manila as Acting
Assistant Director of Health Services. He is entitled to diplomatic
immunity, pursuant to the Host Agreement
executed on July 22, 1951 between the Phil.Government and the
World Health Organization. Diplomatic immunity carries with it,
among other diplomatic privileges and immunities, personal
inviolability, inviolability of the officials properties, exemption from
local jurisdiction, and exemption from taxation and customs
 duties. Dr. Verstuyft's personal effects entered the Philippines on
Jan. 10, 1972. They were allowed free entry from duties and
taxes. Judge Aquino issued on March 3, 1972 upon application of
COSAC [Constabulary Offshore Action Center] officers of a
search warrant for alleged violation of Republic Act 4712
amending section 3601 of the Tariff and Customs Code directing
the search and seizure of the dutiable items in said crates.
Upon the protest of Dr. Francisco Dy, WHO Regional Director for
the Western Pacific with station in Manila, Sec. of Foreign Affairs
Carlos P. Romulo personally wired the judge, informing him that
Dr. Vertuyft is entitled to immunity from search on the basis of the
Host Agreement. Judge Aquino set the Foreign Affairs Secretarys
request for hearing and heard the same, but still issued an order
maintaining the effectivity of the search warrant despite an official
plea for diplomatic immunity and the a list of the articles brought
in by Dr. Verstuyft. Dr. Versuyft special appearance for the
purpose of pleading his diplomatic immunity and a motion to
quash did not move Judge Aquino. At the hearing thereof held on
May 8, 1972, the OSG appeared and filed an extended comment
stating the official position of the executive branch of the
PhilippineGovernment that (a) Verstuyft is entitled to diplomatic
immunity, (b) he did not abuse his diplomatic immunity, and (c)
that court proceedings in the receiving or host State are not the
proper remedy in the case of abuse of diplomatic immunity. The
Solicitor General accordingly joined petitioner Verstuyfts prayer
for the quashal of the search warrant. The judge still denied the
quashal of the search warrant. An original action for certiorari and
prohibition
to set aside Judge Aquinos refusal to quash the search warrant
was thereafter filed before the SC. The SC then issued restraining
order
Issue:
W/N the search warrant should be quashed - Yes
Held:
Yes
It is a recognized principle of international law and under our
system of separation of powers that diplomatic immunity is
essentially a political question and courts should refuse to look
beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is
recognized and affirmed by the executive branch of the
government.... it is then the duty of the courts to accept the claim
of immunity upon appropriate suggestion by the principal law
officer of the government, ... or other officer acting under this
direction. Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction as to embarrass the
executive arm of the government in conducting foreign relations, it
 is accepted doctrine that in such cases the judicial department of
government follows the action of the political branch and will not
embarrass the latter by assuming an antagonistic jurisdiction.
The executive branch of the Philippine Government has expressly
recognised that Dr. Verstuyft is entitled to diplomatic immunity,
pursuant to the provisions of the Host Agreement. The DFA
formally advised respondent judge of the Philippine Governments
official position that accordingly Dr.Verstuyft cannot be the
subject of a Philippine court summons without violating an
obligation in international law of the Philippine Government and
asked for the quashal of the search warrant, since his personal
effects and baggages after having been allowed free entry from
all customs duties and taxes, may not be baselessly claimed to
have been unlawfully imported in violation of the tariff and
customs code as claimed by respondents COSAC officers. The
Solicitor-General, as principal law officer of the Government,
likewise expressly affirmed said petitioners right to diplomatic
immunity
Judge Aquino should not have relied on the suspicions of the
COSAC officers regarding the unopened crates which contained
Dr. Verstuyftspersona effects rather than on the assurance of
theOSG that Dr. Verstufyt did not abuse his diplomaticimmunity,
which is based on the official positions of the highest exec.
Officials with the competence and authority on the matter, namely
the Secretaries of Foreign Affairs and Finance
Hence, even assuming arguendo that Judge Aquino had
some ground on which he can base his decision, he should
have acceded to the quashal of the search warrant and
forwarded his findings to the DFA
There was a clear lack of coordination between the various
departments involved in the subject matter
Such lack of coordination allowed the COSAC to goagainst the
determination of the Secretaries of Foreign Affairs and Finance.
This fact is highlighted by
Republic Act 75 enactedsince October 21, 1946
to safeguard the jurisdictional immunity of diplomatic officials in
thePhilippines are taken into account. Said Act declares as null
and void writs or processes sued out or prosecuted whereby inter
alia the person of an ambassador or public minister is arrested or
imprisoned or his goods or chattels are seized or attached and
makes it a penal offence for every person by whom the same is
obtained or prosecuted,whether as party or as attorney, and every
officer concerned in executing it to obtain or enforce such writ or
process
ICMC v. Calleja
Facts:
This case actually involves 2 cases regarding the claim of
immunity filed by the IntlCatholic Migration Commission (ICMC)
and the Intl Rice Research Institute (IRRI) from application of
Phil. Labor laws.
a. ICMC Case.
ICMC was one of the bodies accredited by the Phil. Govt
to operate Vietnamese refugee processing centers in
Morong, Bataan. Its creation was in accordance with an
agreement between the Phil. Govt and the UN High
Commissioner for Refugees for the operation of centers for
processing of Indo-Chinese refugees and their resettlement
to other countries in view of South Vietnams communist
rule in Vietnam.
ICMC was incorporated in New York, duly registered with
the UN Economic and Social Council, and is an
international organisation rendering voluntary and
humanitarian services in the Philippines.
July 14, 1986 Trade Unions of the Philippines and Allied
Services(TUPAS) filed with the Ministry of Labor and
Employment a petition for certification election for the rank
and file EEs employed by ICMC. ICMC opposed this
petition since it is an intl org with diplomatic immunity.
Med-Arbiter Bactin sustained ICMC and dismissed the
petition for lack of jurisdiction.
TUPAS appealed and BLR Director Calleja reversed the
Med-ArbitersDecision, ordering the conduct of a
certification election. (Note: ICMCsrequest for recognition
as a specialised agency was still pending at the Dept. of
Foreign Affairs, w/c the DFA subsequently granted
w/corresponding diplomatic privileges and immunities)
Invoking immunity, ICMC sought the dismissal of TUPAS
petition for certification election; BLR director denied this.
ICMCs 2 MRs were denied despite DFAs opinion that the
BLR order violated ICMC diplomatic immunity.
ICMC filed a petition for certiorari with preliminary injunction
to assailthe BLR order, for which the court issued a TRO w/
respect to theholding of any certification election. The court
also allowed DFAs motion for intervention.
ARGUMENTS of both sides:
1.ICMC and DFA: ICMC enjoys diplomatic immunity;
BLR order fora certification election among ICMC
employees violates the said immunity
2.BLR director: State policy and Phil. Labor Laws
justify her order,especially Art. II, Sec. 18 and Art. III,
Sec. 8 of the Constitution
IRRI Case
In this case, the Phil. Govt and the Ford and Rockefeller
Foundations signed a Memorandum of Understanding to
 found the IRRI at Los Banos, Laguna, as a tax-free,
philanthropic, non-profit, non-stock organisation for
research on rice plant, production, management,
distribution and utilisation for the benefit of Asians.
PD 1620 granted IRRI the status, prerogatives, privileges
and immunities of an international organisation.
In IRRI, there exists the Kapisanan ng Manggagawa at
TAC sa IRRI (Kapisanan), the local union of the legitimate
labor org. Organized Labor Assoc. in Line Industries and
Agriculture.
Kapisanan filed a petition for certification election w/
Region 4, Regional Office of the DOLE; IRRI opposed this
saying PD 1620 granted it immunity from all civil, criminal,
and administrative proceedings under Philippine Laws, as
an international organisation.
Med. Arbiter Leonardo Garcia upheld IRRIs opposition and
dismissed Kapisanans petition.; the BLR director set aside
Med. Arbiters order and authorised the calling of a
certification election.
The BLR director relied on LC 243 and Art. 13, Sec.
3 of the Consti, saying the immunities and privileges
granted to IRRI do not include exemption from the
coverage of our labor laws. IRRIs reconsideration
was denied.
The Sec. of Labor set aside the BLR Directors order and
dismissed Kapisanans petition for cert. election. Citing Art.
3 of PD 1620, the Sec. said that IRRI shall enjoy immunity
from any penal, civil and administrative proceedings except
if the Director-General of the institution expressly waives its
immunity.
Kapisanan filed a petition for certiorari, alleging the Sec. of
Labor committed grave abuse of discretion by upholding
IRRIs diplomatic immunity.
Kapisanan alleges that Art. 3, PD 1620 is
unconstitutional because it deprives Filipino workers
of their fundamental and constitutional right to form
trade unions for collective bargaining.
Kapisanan also claimed that the BLR Directors
order had become final and unappealable, leaving
the Sec. of Labor w/o jurisdiction over the appeal
Issue:
W/N the diplomatic immunity of both ICMC and IRRI extended to
the operation of Philippine Labor Laws
Held:
Yes
1. Diplomatic immunity has been granted to both ICMC and IRRI.
1. Art. 2 of the Memorandum of Agreement between the Phil.
 Govt and ICMC provides that ICMC shall have a status
similar to that of a specialised agency. Art. 3, Secs. 4 and 5
of the Convention on the Privileges and Immunities of
Specialized Agencies (adopted by the UN Gen. Assembly
on 21Nov. 1947, to w/c the Phil. Senate concurred)
provides that the specialised agencies, wherever located,
shall enjoy immunity from every form of legalprocess. Sec.
5 provided for the immunity of such agencies from any form
of executive, administrative, judicial or legislative
interference.)
2. IRRI was also granted immunity via Art. 3 of PD 1620.
3. The DFAs opinions that the organisations enjoyed
immunity from the jurisdiction of the DOLE indicates a
recognition by the Executive branch of the govt that both
ICMC and IRRI enjoy immunities of international
organisations. Such determination is a political question
conclusive upon the courts (i.e., w/c the courts must
recognise and accept) in accordance w/ the principal of
separation of powers and of not embarrassing a co-equal
branch
2. Reason for Immunity is the nature of International Organizations
1. Term international organisation = org. set up by an
agreement bet. two or more states. Specialized agencies =
international organizations having functions in particular
fields, such as the promotion of progress and economic
and social cooperation (acc.to the UN Charter).
2. Rapid growth of the international orgs under contemporary
international law has paved the way for the development of
international immunities; RATIO for the immunity: functional
independence to free the institutions from national control
and to ensure unimpeded performance of their functions.
1. 3 propositions behind the grant of international
immunities to intlorgs: Protection from control or
interference by a govt in the functions of the body
2. No country should derive financial advantage by
levying fiscal charges on common intl funds
3. Intl org. should be accorded facilities for the conduct
of its business customarily granted to each other by
its individual member states (comity)
3. Since ICMC and IRRI are intl organisations, the DOLEs
exercise of jurisdiction would defeat the purpose of the
immunity, laying them susceptible to political control by the
host country (i.e., the Philippines in this case) to the
detriment of member States involved in the said
organisations.
4. ICMC and IRRIs immunity from local jurisdiction does not
deprive labor of its rights guaranteed by Art. 2, Sec. 18, Art.
 3, Sec. 8 and Art. 13, Sec. 3 since Sec.31 of the
Convention on the Privileges and Immunities of the
Specialized Agencies of the UN states that each
specialised agency shall make provision for appropriate
modes of settlement of disputes arising out of contractor
other disputes of private character to w/c the specialised
agency is a party.
1. ALSO, Art. 4 of the MoA bet. ICMC and the Phil.
Govt provides that when there is any abuse of
privilege by the ICMC, the govt may w/draw the
privileges and immunities it accorded.
5. In IRRIs case, a Council of IRRI Employees and
Management has bee norganized for better management-
employee relationship where both mgt. and employees are
represented
3. The Immunity Covers Certification Electiona.Inaccurate to state
that a certification election is beyond the scope of the diplomatic
immunity possessed by both IRRI and ICMC because it is not a
suit,since it can lead to a process which might involve ICMC or
IRRI in a penal, civil or administrative proceeding.
Liang v. People
Facts:
Petitioner Jeffrey Liang, economist working for ADB, charged
sometime on 1994 before Mandaluyong MeTC for two counts of
grave oral defamation against his secretary Joyce Cabal
warrant of arrest issued by MeTC, petr arrested, bail set at
P2400 per charge, subsequently released to custody of ADB
Security officer
next day, MeTC judge receives protocol communication stating
pet'r covered by immunity from legal process per agreement
between ADB and Philippine Govt
cases dismissed by MeTC judge per said protocol communication
without notice to prosecution
RTC sets aside MeTC ruling and orders MeTC to enforce warrant
of arrest issued earlier
petr Motion for Recon with RTC denied, elevated to petition for
review with SC, argues:
1.he is covered by immunity per agreement with govt
2.immunity of international organisations absolute
3.said immunity extends to all staff of ADB
Issue:
WON Liang can be held liable for alleged offence, despite alleged
claim of immunity
Held: YES
commission of a crime is not allowed as part of an official duty-
thus commission of an act outside of the scope ones official
functions is not covered by immunity
 slander therefore could not be considered as within the
scope of his official duties, and as such is not covered by
immunity
[diplomats and international officials] find the basis of their special
status in the necessity of retaining functional independence and
freedom from interference by the state of residence
immunities awarded to diplomatic agents are a right of the
sending stated based on customary intl law, particularly the
principle of reciprocity (i.e. diplomats of a receiving state
receives benefits/ privileges/penalties they provide to
diplomats of sending state), which ensures that said
immunity will also apply to diplomats of the receiving state
reciprocity, however, does not apply to international
organisations. Intl organisations carries out functions in the
interest of every member state equally. Thus whatever
immunities might be applicable to personnel of intl
organisations can only be granted by treaty provisions
immunity of intl organisation absolute, similar to diplomatic
immunity
however, immunity of personnel in said organisation
restricted only to official acts.
Officials of intl organisations enjoy functional
immunities i.e. only those necessary for the exercise
of the functions of the organisation and the fulfilment
of its purposes
for private acts, ADB officials and employees are
subject to jurisdiction of local courts, even w/out
waiver of immunity.
Immunity may not be invoked even by either DFA or
ADB for said private acts
determination as to WoN a given act is official or
private is w/in jurisdiction of local courts
Therefore, a factual determination needs to be made
as to whether defamatory utterances were made in
pursuit of petrs official functions
if utterances were made outside of official functions
then pet'r can be held liable
Sps. Lacierda v. Platon
Facts:
Petitioners Lacierda, et al. were all employees/officers of
Southeast Asian Fisheries Development Center (SEAFDEC), an
international agency which is immune from suits, it being clothed
with diplomatic immunity. Meanwhile, respondents Platon, et al.
are officers and are with the management of SEAFDEC, Aqua
Culture Development (AQC), an international organisation
composed of governments of Southeast Asia created by virtue of
a treaty of which the Philippines is a signatory.
 Japan International Cooperation Agency (JICA) and SEAFDEC
entered into a Memorandum of Agreement (MOA) where the
former has found the Department of Agriculture (DA) through
SEAFDEC to be qualified in providing the necessary services and
in implementing JICAs Third Country Training Programme on
Responsible Aquaculture Development (training program).
Regarding the liquidation, such shall be made by submitting a
statement of expenditures containing the itemized breakdown of
all expenses incurred, attaching therewith all copies of supporting
documents and evidences and receipts certifying the said
expenditures (original copies will be kept by SEAFDEC). In case
there will be an excess in the amount consigned, the excess
amount will be returned to JICA
Lacierda, et al. were selected by SEAFDEC to take part in the
training program. After such was concluded, Lacierda, et al.
submitted to SEAFDEC documents in support of their liquidation
of cash advances and claim for reimbursement of expenses but
an audit of the same showed that hotel receipts submitted were
much higher that the actual amount that they paid on
accommodation. Thus, Lacierda, et al. were terminated for cause
on the ground of misrepresentation or false statements with
intent to gain or take advantage and fraudulent machination for
financial gain.
More than a year later, Lacierda, et al. filed a complaint against
Platon, et al. alleging that they are suing them in their individual
and personal capacities for their commission of malicious,
oppressive and inequitable actionable acts.
This was dismissed by the Regional Trial Court (RTC) of Iloilo for
want of jurisdiction over the subject matter thereof and the person
of Platon, et al., it holding that assailed acts could only be
performed by them in their official functions as administrators of
SEAFDEC.
Also, Lacierda, et al. prayed to be restored and returned to their
respective work/positions in SEAFDEC; to be given the salaries,
benefits and other privileges; to be awarded actual damages by
reason of the deprivation of the salaries and benefits they should
have received; and to be paid moral damages. Such allegations
and reliefs clearly indicate that their cause/s of action arose out of
employer-employee relationship which is under the original and
exclusive jurisdiction of the Labor Arbiter and not the RTC.
Issue:
Whether or not the RTC has jurisdiction over the subject matter of
Lacierda, et al.s complaint
Held:
No.
A court cannot be divested of jurisdiction by the ingenuous
omission by a plaintiff of any reference to a matter which clearly
 shows that said court has jurisdiction, nor can a court be
conferred with jurisdiction where it has none by a contrived
wording by a plaintiffs allegations in the complaint in order to
impress that it is within said courts jurisdiction.
Lacierda, et al.s primary prayer for Platon, et al. to be ordered
to restore and return Lacierda, et al. to their respective
work/positions in SEAFDEC and to all the salaries, benefits and
other privileges appurtenant thereto without loss of seniority,
diminution of ranks or pay to continue during the pendency of this
case, betrays their cause of action, however, if Platon, et al. were
sued in their personal capacity as emphatically stressed by
Lacierda, et al., for tort and damages, they would under no
circumstance, power or authority be able to carry out such
primary prayer.

Module 13: Areas not subject to the jurisdiction of Individual States

Areas not subject to the jurisdiction of individual states

1. High Seas
6 freedoms of the high seas [FLONCS]
1. of navigation
2. of fishing
3. of overflight
4. to lay submarine cables and pipelines
5. to construct artificial islands and structures
6. of scientific research
Hot pursuit
A hot pursuit of a foreign vessel is allowed where there is good
reason to believe that the ship has violated laws of a coastal
state. The pursuit must start when the foreign vessel is within the
internal waters, archipelagic waters, territorial waters or the
contiguous zone of the pursuing state.
the hot pursuit must stop as soon as the ship pursued has
entered the territorial waters of another state
hot pursuit may only be carried out by military vessels
1982 CLOS
Article 89 - Invalidity of claims of sovereignty over the high
seas
No State may validly purport to subject any part of the high
seas to its sovereignty.
Article 97 - Penal jurisdiction in matters of collision or any
other incident of navigation
1. In the event of a collision or any other incident of navigation
concerning a ship on the high seas, involving the penal or
disciplinary responsibility of the master or of any other
 person in the service of the ship, no penal or disciplinary
proceedings may be instituted against such person except
before the judicial or administrative authorities either of the
flag State or of the State of which such person is a national.
2. In disciplinary matters, the State which has issued a
masters certificate or a certificate of competence or licence
shall alone be competent, after due legal process, to
pronounce the withdrawal of such certificates, even if the
holder is not a national of the State which issued them.
3. No arrest or detention of the ship, even as a measure of
investigation, shall be ordered by any authorities other than
those of the flag State.
Article 101 - Definition of piracy
Piracy consists of any of the following acts:
1. any illegal acts of violence or detention, or any act of
depredation, committed for private ends by the crew
or the passengers of a private ship or a private
aircraft, and directed:
1. on the high seas, against another ship or
aircraft, or against persons or property on
board such ship or aircraft;
2. against a ship, aircraft, persons or property in
a place
outside the jurisdiction of any State;
2. any act of voluntary participation in the operation of a
ship or of an aircraft with knowledge of facts making
it a pirate ship or aircraft;
3. any act of inciting or of intentionally facilitating an act
described in subparagraph (a) or (b).
2. Deep Seabed (also called The AREA)
1. Common heritage of mankind
1. Open for peaceful purposes and for exploitation for the benefit of
mankind
2. right of a coastal state to prevent or mitigate any grave and
imminent danger to its coastline or environment
3. governed by the International Seabed Authority
2. Declaration of principles governing the seabed and the ocean floor
and the subsoil thereof, beyond the limits of national jurisdiction
1. Resolution 2749 XXV (1970)
The GA solemnly declares that:
1. The seabed and ocean floor, and the subsoil thereof,
beyond the limits of national jurisdiction (hereinafter
referred to as the area), as well as the resources of
the area, are the common heritage of mankind.
2. The area shall not be subject to appropriation by any
means by States or persons, natural or juridical, and
no State shall claim or exercise sovereignty or
 sovereign rights over any part thereof.
3. No State or person, natural or juridical, shall claim,
exercise or acquire rights with respect to the area or
its resources incompatible with the international
rgime to be established and the principles of this
Declaration.
4. All activities regarding the exploration and
exploitation of the resources of the area and other
related activities shall be governed by the
international rgime to be established.
5. The area shall be open to use exclusively for
peaceful purposes by all States, whether coastal or
land-locked, without discrimination, in accordance
with the international rgime to be established.
6. States shall act in the area in accordance with the
applicable principles and rules of international law,
including the Charter of the United Nations and the
Declaration on Principles of International Law
concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the
United Nations, adopted by the General Assembly
on 24 October 1970,11 in the interests of maintaining
international peace and security and promoting
international co-operation and mutual understanding.
7. The exploration of the area and the exploitation of its
resources shall be carried out for the benefit of
mankind as a whole, irrespective of the geographical
location of States, whether land-locked or coastal,
and taking into particular consideration the interests
and needs of the developing countries.
8. The area shall be reserved exclusively for peaceful
purposes, without prejudice to any measures which
have been or may be agreed upon in the context of
international negotiations undertaken in the field of
disarmament and which may be applicable to a
broader area. One or more international agreements
shall be concluded as soon as possible in order to
implement effectively this principle and to constitute
a step towards the exclusion of the seabed, the
ocean floor and the subsoil thereof from the arms
race.
9. On the basis of the principles of this Declaration, an
international rgime applying to the area and its
resources and including appropriate international
machinery to give effect to its provisions shall be
established by an international treaty of a universal
character, generally agreed upon. The rgime shall,
 inter alia, provide for the orderly and safe
development and rational management of the area
and its resources and for expanding opportunities in
the use thereof and ensure the equitable sharing by
States in the benefits derived therefrom, taking into
particular consideration the interests and needs of
the developing countries, whether land-locked or
coastal.
10. States shall promote international co-operation in
scientific research exclusively for peaceful purposes:
1. By participation in international programmes
and by encouraging cooperation in scientific
research by personnel of different countries;
2. Through effective publication of research
programmes and dissemination of the results
of research through international channels;
3. By co-operation in measures to strengthen
research capabilities of developing countries,
including the participation of their nationals in
research programmes.
No such activity shall form the legal basis for
any claims with respect to any part of the area
or its resources.
11. With respect to activities in the area and acting in
conformity with the international rgime to be
established, States shall take appropriate measures
for and shall co-operate in the adoption and
implementation of international rules, standards and
procedures for, inter alia:
1. The prevention of pollution and contamination,
and other hazards to the marine environment,
including the coastline, and of interference
with the ecological balance of the marine
environment;
2. The protection and conservation of the natural
resources of the area and the prevention of
damage to the flora and fauna of the marine
environment.
12. In their activities in the area, including those relating
to its resources, States shall pay due regard to the
rights and legitimate interests of coastal States in the
region of such activities, as well as of all other
States, which may be affected by such activities.
Consultations shall be maintained with the coastal
States concerned with respect to activities relating to
the exploration of the area and the exploitation of its
resources with a view to avoiding infringement of
 such rights and interests.
13. Nothing herein shall affect:
1. The legal status of the waters superjacent to
the area or that of the air space above those
waters;
2. The rights of coastal States with respect to
measures to prevent, mitigate or eliminate
grave and imminent danger to their coastline
or related interests from pollution or threat
thereof or from other hazardous occurrences
resulting from or caused by any activities in
the area, subject to the international regime to
be established.
14. Every State shall have the responsibility to ensure
that activities in the area, including those relating to
its resources, whether undertaken by governmental
agencies, or non-governmental entities or persons
under its jurisdiction, or acting on its behalf, shall be
carried out in conformity with the international rgime
to be established. The same responsibility applies to
international organizations and their members for
activities undertaken by such organizations or on
their behalf. Damage caused by such activities shall
entail liability.
15. The parties to any dispute relating to activities in the
area and its resources shall resolve such dispute by
the measures mentioned in Article 33 of the Charter
of the United Nations and such procedures for
settling disputes as may be agreed upon in the
international rgime to be established.
3. 1982 CLOS, Part XI
common heritage of mankind
open for peaceful exploitation for he benefit of all
an International Regime is created for the purpose of applying to
the area the appropriate international machinery (International
Seabed Authority) and all states are ipso facto members thereof
cooperation among states for the preservation and protection of
the resources
rights of coastal states w/ regard to prevention of dangers to its
coastline shall be subject to
the International Regime (International Seabed Authority)
established
The Authority shall have a Assembly (one country, one vote),
Council, and Secretariat
All matters of substance are to be decided by 2/3 vote
Assembly may render advisory opinions
3. Outer Space
Province of al mankind
not subject to national appropriation
no nuclear weapons in orbit
astronauts are envoys of mankind and States are obliged to
render assistance to them in emergency landings
there is international responsibility for national activities in outer
space, absolute liability of damage caused by space objects
Concept of geostationary orbit and the spatial test:
there is no universally accepted definition of outer space and the
problem of demarcation between airspace and outer space is as
old as the space age itself.
Some suggest a spatialist test: arbitrary height of 96-110kms from
the equator, limit of air flight, limit of the atmosphere, etc
There are 2 opposing views regarding the demarcation of outer
space.
1. The functionalist school of though advocates that there is
no need to establish the boundary as of the moment,
2. while the spatialist school of thought stresses the need for
the demarcation between outers pace and the air space
because the 2 areas are governed by completely different
regimes.
There has been a growing trend for the latter school of thought.
There has however been no consensus as to the height of the
demarcation. There is little doubt that the geostationary orbit is
already part of outer space; but it has a special legal status. It is a
so-called privileged portion of space. It is open to free use and
exploration by all states and is not subject to appropriation.
Insofar as the law of outer space are concerned, it is however
fallacy to equate the same w/ the high seas by calling it res
communes or res nullius. They are two completely different things
governed by separate rules.
1967 Treaty on the Exploration and Use of Outer Space:

Article I. The exploration and use of outer space, including the moon
and other celestial bodies, shall be carried out for the benefit and in the
interests of all countries, irrespective of their degree of economic or
scientific development, and shall be the province of all mankind. Outer
space, including the moon and other celestial bodies, shall be free for
exploration and use by all States without discrimination of any kind, on
a basis of equality and in accordance with international law, and there
shall be free access to all areas of celestial bodies. There shall be
freedom of scientific investigation in outer space, including the moon
and other celestial bodies, and States shall facilitate and encourage
international co-operation in such investigation.

Article 11. Outer space, including the moon and other celestial bodies,
 is not subject to national appropriation by claim of sovereignty, by
means of use or occupation, or by any other means.

Article III. States Parties to the Treaty shall carry on activities in the
exploration and use of outer space, including the moon and other
celestial bodies, in accordance with international law, including the
Charter of the United Nations, in the interest of maintaining
international peace and security and promoting international co-
operation and understanding.

Article IV. States Parties to the Treaty undertake not to place in orbit
around the Earth any objects carrying nuclear weapons or any other
kinds of weapons of mass destruction, install such weapons on celestial
bodies, or station such weapons in outer space in any other manner.

The Moon and other celestial bodies shall be used by all States Parties to
the Treaty exclusively for peaceful purposes. The establishment of
military bases, installations and fortifications, the testing of any type of
weapons and the conduct of military maneuvers on celestial bodies shall
be forbidden. The use of military personnel for scientific research or for
any other peaceful purposes shall not be prohibited. The use of any
equipment or facility necessary for peaceful exploration of the Moon
and other celestial bodies shall also not be prohibited.

Article V. States Parties to the Treaty shall regard astronauts as envoys

of mankind in outer space and shall render to them all possible
assistance in the event of accident, distress, or emergency landing on the
territory of another State Party or on the high seas. When astronauts
make such a landing, they shall be safely and promptly returned to the
State of registry of their space vehicle.

In carrying on activities in outer space and on celestial bodies, the

astronauts of one State Party shall render all possible assistance to the
astronauts of other States Parties. States Parties to the Treaty shall
immediately inform the other States Parties to the Treaty or the
Secretary-General of the United Nations of any phenomena they
discover in outer space, including the Moon and other celestial bodies,
which could constitute a danger to the life or health of astronauts.

Module 14: Responsibility of states

Bernas
Doctrine of state responsibility
The customary law doctrine on the protection of aliens should be seen in
relation to the doctrine on state responsibility
When an injury has been inflicted, there is need to determine whether the state
can be held responsible for it.
One of the principles most strongly held by states is that if a state
violates a customary rule of international law or a treaty obligation, it
commits an internationally wrongful act.
At its fifty-third session (2001), the International Law Commission adopted on
second reading a complete text of the Articles on Responsibility of States for
Internationally Wrongful Acts. The Articles have been referred to the General
Assembly for consideration.
Although its work has not yet been finalized, much of what it has done so far
consists of principles which are widely accepted. What need to be understood
are:
1. the elements of an internationally wrongful act;
2. the attributability of the wrongful act to the state; and
3. the enforcement of the obligation that arises from the wrongful act.
Internationally wrongful act
Article 1 - Responsibility of a State for its internationally wrongful acts
Every internationally wrongful act of a State entails the international
responsibility of that State.
[States derive immense benefits from the international legal
system. Accordingly, when a state consents to be a part of that
system, it also accepts corresponding legal obligations. Primarily,
it must accept responsibility for actions which have an effect on
other international legal persons.]
Article 2 - Elements of an internationally wrongful act of a State
There is an internationally wrongful act of a State when conduct
consisting of an action or omission:
(a) Is attributable to the State under international law; and
(b) Constitutes a breach of an international obligation of the State
[subjective element - the act must be attributable to the
state
objective element - it must be a violation of an international
obligation]
Article 3 - Characterization of an act of a State as internationally wrongful
The characterization of an act of a State as internationally wrongful is
governed by international law. Such characterisation is not affected by
the characterisation of the same act as lawful by internal law.
Article 12 - Breach of an international obligation
There is a breach of an international obligation by a State when an act
of that State is not in conformity with what is required of it by that
obligation, regardless of its origin or character.
Attribution to the State
The acts which can be attributed to the state may be acts of state organs, the
acts of other persons, or the acts of revolutionaries.
Acts of state organs
Article 4
Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that

State under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in
the organization of the State, and whatever its character as an organ of
the central government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in
accordance with the internal law of the State.

Article 5
Conduct of persons or entities exercising elements of governmental
authority

The conduct of a person or entity which is not an organ of the State

under article 4 but which is empowered by the law of that State to
exercise elements of the governmental authority shall be considered an
act of the State under international law, provided the person or entity is
acting in that capacity in the particular instance.

Article 6
Conduct of organs placed at the disposal of a State by another State

The conduct of an organ placed at the disposal of a State by another

State shall be considered an act of the former State under international
law if the organ is acting in the exercise of elements of the governmental
authority of the State at whose disposal it is placed.

Article 7
Excess of authority or contravention of instructions

The conduct of an organ of a State or of a person or entity empowered

to exercise elements of the governmental authority shall be considered
an act of the State under international law if the organ, person or entity
acts in that capacity, even if it exceeds its authority or contravenes
instructions.

Article 8
Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act

of a State under international law if the person or group of persons is in
fact acting on the instructions of, or under the direction or control of, that
 State in carrying out the conduct.

Article 9
Conduct carried out in the absence or default of the official authorities

The conduct of a person or group of persons shall be considered an act

of a State under international law if the person or group of persons is in
fact exercising elements of the governmental authority in the absence or
default of the official authorities and in circumstances such as to call for
the exercise of those elements of authority.

Article 10
Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement which becomes the new

government of a State shall be considered an act of that State under
international law.

2. The conduct of a movement, insurrectional or other, which succeeds

in establishing a new State in part of the territory of a pre-existing State
or in a territory under its administration shall be considered an act of the
new State under international law.

3. This article is without prejudice to the attribution to a State of any

conduct, however related to that of the movement concerned, which is
to be considered an act of that State by virtue of articles 4 to 9.

Article 19 Effect of this chapter

This chapter is without prejudice to the international responsibility, under
other provisions of these articles, of the State which commits the act in
question, or of any other State.
General Principles of Responsibility
Scope
Concerned with incidence and consequences of illegal acts and the
payment of compensation
Theory internationally wrongful act or omission:
1. international delict - most cases
2. international crime - aggression, colonisation by force, slavery,
genocide, apartheid, mass pollution
Distinguish:
1. objective responsibility - strict liability
2. subjective - fault theory
Examples:
1. Breach of treaty
 2. injury to territory, property, diplomat of a state
3. injury to person/property of aliens
Reparation required for injury caused:
1. Restitution
2. Damages
Requisites
1. Act or omission attributable to the State
2. Breach of an international obligation
Categories
1. Direct - when injury is against another State (any of its organs or agents)
2. Indirect - against the person or property of a national of another state
Imputability (direct responsibility)
1. State Organs
1. Executive - e.g. failure to take appropriate steps to punish culprits
who are police officers
2. Legislative - e.g. if a treaty requires incorporation of certain rules
in domestic law, failure to do so entail responsibility
3. Judiciary - e.g. if the court commits errors in the application and
interpretation of treaties or fails to give effect to a treaty or is
unable to do so because the necessary change in or addition to
the national law has not been made, its judgment involves the
state in a breach of treaty
2. Territorial government authority (LGUs)
3. Persons or groups authorised by the State
Ultra vires acts of State organs and officials
Considered act of state even if beyond the competence of the agent for
as long as there is a proof of apparent authority or the act was done
within the scope of authority.
e.g. when police officers take revenge against another person but
seemingly acted in the role of police to the average observer
Note: Abuse of Rights
There could be compensation for the injurious consequences of lawful
acts of State organs or officials.
e.g. Art. 22, par. 3 of the Convention on the High Seas which
allows compensation for loss or damage caused as a result of the
exercise of the right of warships to board merchants when
suspicious circumstances would warrant
Case law:
Youmans Case
Facts:
The Mexican military forces, instead of protecting American
citizens being attacked by a mob, OPENED FIRE on said
Americans. As a result they were killed either by the military or by
the mob. No one appeard to be punished for said crimes although
some prosecutions were begun
Youmans was an American Citizen and along two other
Americans were killed in Mexico
 The Americans were engaged under contract with a British Corp
in driving a tunnel.
The work was being done by Mexican Laborers under the
supervision of the Americans
The conflict arose when Connelly was fighting with a Mexican
labourer over his wages
The labourers threw stones at Connely however, Connely had a
shotgun so boom
The 3 Americans tried to defend themselves from a mob of
around 1000 Mexicans
The Americans sought help from the Mexican officials but instead
of helping them, they opened fire on the Americans
The Mexican govt were only able to institute an action against 29
members of the mob some got the capital punishment but such
sentences were subsequently modified.
Issue:
W/N the Mexican authorities were negligent in the manner of
protecting the American citizens
W/N there were proper efforts by the Mexican Govt to apprehend
and punish the persons participating in the attack
Held:
Yes, the claim against Mexico was allowed, the evidence on
record sustained such conclusion. The commission was of the
opinion that the record shows a lack of diligence in the
punishment of the persons implicated in the crime
The Mexican labourers who got arrested escaped from prison and
some of them were on bail
The soldiers who participated were arrested but not convicted
On the issue on the issue of responsibility of the State in relation
to the illegal acts done by its officials resulting to damages to
foreigners
General Rule was that an illegal act done by its officials cannot
hold the Government liable since it was done outside his scope of
authority. In other words, the illegal acts done were made in a
private capacity which would not make the State liable.
The committee however did not subscribe to this view and instead
ruled that at the time of the commission of the acts the soldiers
were on duty and were under the supervision and presence of a
commanding officer. Hence the committee decided that mexico
should pay the US on behalf of Youman
Caire Claim case
Facts:
Caire was a French national who was killed in Mexico by
MEXICAN SOLDIERS after they had demanded money from him.
The perpetrators of the crime were military personnel occupying
ranks such as mayor and capitan primero. These officers
belonged to the brigade of Villista general Urbina, who exacted
 the remitteance of certain sums of money. Their modus operandi
was to take the victim to their barracks and from there they tried
to extract the money from their hapless victim. Caire was one
such victim and after his refusal to comply with their extortions,
the military officers shot him.
Issue:
W/N these acts entail international responsibility upon Mexico
Held:
YES, the responsibility for all the acts committed by its officials or
organs which constitute offences from the point of view of the law
of nations, whether the official has acted within or exceeds the
limits of his competences are acts IMPUTABLE to the State.
Objective Responsibility of States-responsibility for the acts of
the officials which may devolve upon it even in the absence of
any fault of its own
In order to admit this objective responsibility of the state for acts
committed by its officials outside the scope of their authority, they
MUST have:
a.) Acted at least to all appearances as competent officials
or organs
b.) Used powers or methods appropriate to their official
capacity
Acts of private citizens and rebels:
1. Private citizen
1. As a rule, acts of private citizens do not entail State responsibility. In
localised riots and mob violence, the state has the duty to take
reasonable precautionary and preventive action to protect foreign public
and private property
2. Rebels
1. Insurrectional movements act is act of state once it is established as the
new government. Belligerent groups may be held responsible for their
acts during the armed conflict. There is a duty on the part of the state to
prevent or suppress the insurrection using the standard of due diligence;
however, a higher standard of protection applies to diplomats and
consuls
Case law:
Home Missionary Society Case
Facts:
Great Britain imposed the collection of a tax on the natives under
its Protectorate, Sierra Leone. This was known as the hut tax
which induced a serious and widespread revole in the Ronietta
district.
During the course of the rebellion the Home Missionary Societys
propert were either destroyed or damaged and some of its
members were killed.
The US is now contending that Great Britain knew that the
imposition of the tax would anger the natives and failed to take
 the proper measures to maintain order and to protect the lives
and property of Home Missionary. US Govt claimed that GB was
liable to pay compensation
Issue:
W/N GB is liable for the destruction caused by the rebellion:
Held:
NO, it was not established that the imposition of the Hut Tax was
the effective cause of the Rebellion. Such taxes were generally
used in colonial administration but was the USUAL PRACTICE in
the African countries.
Also there was an assumption of risk on the part of the Society
and there was no failure of duty on the part of GB
GB was entitled to exercise such imposition of taxes as a
legitimate exercise of its sovereignty. It is established in the
principles of international law that no govt can be held responsible
for the act of rebellious bodies of men committed in violation of
such governments authority. Absent of breach of good faith or
negligence on the part of GB in the suppression of such
insurrection, the claim is hereford DISMISSED.
International crimes and delicts
International Law Commission Draft Articles on State Responsibility

Module 15: Responsibility for acts affecting individuals traditional international

liability

Traditional international liability

1. Theory of denial of justice
1. US (Chattin) v. Mexico
Facts:
B.E. Chattin was an American citizen working for the
Southern Pacific Railroad Company of Mexico as a
passenger conductor. He was arrested for allegedly
pocketing money from passengers instead of remitting
them to the company.
Thereafter, he proceeded to trial and was found guilty. He
was imprisoned but was able to escape when there was
rebellion. He returned to the US and now claims damages
against Mexican state for having been deprived of due
process and being treated inhumanely.
Issue:
W/N Mexico is liable to pay $50,000 as damages to Chattin
Held:
Yes
Evidence and court records showed that Chattin was
 indeed deprived of due process. When he went to trial, he
was not allowed to confront his accusers. The accusers
only had to submit anonymous testimony. Furthermore, his
trial was delayed. He had been imprisoned for a few
months before he saw the inside of the courtroom. Lastly,
the trial had only lasted like a day.
Mexico is liable because it is the state's responsibility to
ensure that its judiciary keeps up with the international
standards.
2. Harvard Research Draft, definition (Art. 9)
unwarranted delay or obstruction of access to courts, gross deficiency
in the administration of judicial or remedial process, failure to provide
those guarantees which are generally considered indispensable to the
proper administration of justice, or a manifestly unjust judgment. An
error of a national court which does not produce manifest injustice is not
a denial of justice.

Module 16: Responsibility for acts affecting individuals

Bernas

International Human Rights Law

From alien rights to human rights
Before, human rights was about specific classes of peoples e.g., slaves,
minorities, and certain nationalities
It was only with the birth of the UN that human rights of all people
became the subject of legislation
Human rights are this inalienable and fundamental rights which are
essential for life as human beings
Human rights, on the one hand, and ethics and morality on the other
have a connection
2 concepts on human rights:
1. western - emphasis on the individual
2. Confucian - emphasis on the community
3 generations of human rights:
1. traditional civil and fundamental rights
2. social and economic rights
3. right to peace, clean environment, self-determination, common
heritage of mankind, development, minority rights
Emerging international Bill
The immediate impetus for this development was the atrocities
committed by the regime under Adolf Hitler.
What distinguishes post- World War II developments from earlier human
rights tradition is the growing acceptance of the view that the way
nations treat people under their jurisdiction is no longer just a domestic
concern but also one that calls for the attention of the international
community.
This view represents a chipping away at the old concept of sovereignty.
It recognises that individuals can be subjects of international law and
that they can find protection and remedies within the international
community against abuses by their own government.
UN Charter provides in its preamble,
faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women.
Art. 1 (3)
To achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian
character, and in promoting and encouraging respect for human
rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion.
Art. 55
With a view to the creation of conditions of stability and well being
which are necessary for peaceful and friendly relations among
nations based on respect for the principles of equal rights and
self- determination of peoples, the United Nations shall promote:
(a) Higher standards of living, full employment, and
conditions of economic and social progress and
development;
(b) Solutions of international economic, social, health, and
related problems; and international cultural and educational
cooperation; and
(c) Universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to
race, sex, language, or religion.
Art. 56
All Members pledge themselves to take joint and separate action
in co-operation with the Organization for the achievement of the
purposes set forth in Article 55.
No definition of what human rights is
Art. 2 (7)
Nothing contained in the present Charter shall authorise the
United Nations to intervene in matters which are essentially within
the domestic jurisdiction of any state or shall require the Members
to submit such matters to settlement under the present Charter;
but this principle shall not prejudice the application of
enforcement measures under Chapter VII.
Through Article 62(2) it authorised the UN Social and Economic Council
(ECOSOC) to make recommendations for the purpose of promoting
respect for, and the observance of, human rights and fundamental
freedoms for all and commanded it, through Article 68, largely through
the intervention of American non-governmental organisations, to set up
commissions in economic and social fields and for the promotion of
human rights.
 The aspirations of the Universal Declaration of Human Rights (UDHR),
proclaimed on December 10, 1948, was converted 18 years later into
conventional international law embodied in the:
1. International Covenant on Civil and Political Rights (ICCPR)
2. International Covenant on Economic, Social and Cultural Rights
(ECOSOC)
3. Optional Protocol to the Covenant on Civil and Political Rights (OP)
Differences between a declaration and a covenant
international covenant
there is a meeting of minds of the contracting parties on the
specific duties and obligations they intend to assume, and the
agreement that the undertakings must be effectively performed.
A covenant leaves no doubt about the legal nature of the
provisions it contains
A declaration by contrast admits the presumption that something less
than full effectiveness in terms of law is intended.
A declaration is often deemed to enunciate moral rules only.
Moreover, the vinculum juries created by a covenant generally absent
from a declaration, places a duty on the contracting parties to bring their
laws and practices into accord with the accepted international
obligations and not to introduce new laws or practices which would be at
variance with such obligations.
Covenant on Civil and Political Rights
Right to life and liberty provisions in the ICCPR are pretty much covered by 1
Art. 3 of Philippine Constitution.
There is no provision on the right to property in the Covenant because,
While no one in the Commission questioned the right itself, there were
considerable differences of opinion as to the restrictions to which it
should be subject. At a time when property rights had lost much of their
previous sanctity, it was inevitable that the Commission would find it
difficult to draft a text that would command general acceptance
On right to life
Article 6(2) expresses a bias for the abolition of the death penalty and
allows its imposition, in countries which still have a death penalty, only
after conviction for the most serious crimes.
In Article 6(6) it says: Nothing in this article shall be invoked to delay or
to prevent the abolition of capital punishment by any State Party to the
present Covenant.
Second Optional Protocol to the Covenant
Article 1 says: (1) No one within the jurisdiction of a State Party
to the present Protocol shall be executed. (2) Each State Party
shall take all necessary measures to abolish the death penalty
within its jurisdiction.
Philippines is not yet a party to the Second Protocol although it
signed on September 20, 2006
The 1987 Constitution prohibited the imposition of the death
penalty unless a new law is passed imposing death for heinous
 crimes.8 Congress first restored the death penalty for heinous
crimes but Republic Act No. 9346 has since disallowed it.
On right to liberty
Articles 8, 9 and 11 of the Covenant are covered by the provisions of the
Bill of Rights.
Similarly, the rights of an accused detailed in Articles 14 and 15 of the
Covenant have long been parts of the Philippine accusatory system as
found in the Constitution.
But the Covenant, in Article 14, is more restrictive in the matter of
publicity of criminal proceedings where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or
the guardianship of children. Such standards would not easily pass the
Philippine tests for publicity and free press.
Art. 9 (5)
Anyone who has been a victim of unlawful arrest or detention
shall have an enforceable right to compensation
Art. 14 (6)
a person who has been a victim of miscarriage of justice shall be
compensated according to law, unless it is proved that the non-
disclosure of the unknown fact in time is wholly or partly
attributable to him.
The only place where the Philippine Constitution asks for compensation
is in Section 12(4) of the Bill of Rights where the legislature is asked to
compensate violations of rights of a person under investigation.
The guarantee of equality is found in Article 26 of the Covenant.
It is the Bill of Rights more terse equal protection clause in Article III,
Section 1. The guarantee is of legal equality.
It does not embody the aspiration towards lesser material inequality. The
latter is material found in the Covenant on Economic, Social and
Cultural Rights.
Torture, ill-treatment and prison conditions
Articles 7-10
proscription of torture and other forms of ill-treatment that offend
not only against bodily integrity but also against personal dignity
and the requirement of humane prison conditions
Freedom of movement
The Covenant in its Article 12(1) and (2) group together the rights to
travel within the country, the right to leave the country and the right to
change ones residence.
The limitations on these three rights are enumerated in Article
12(3): those which are provided by law, are necessary to protect
national security, public order, public health or morals or the rights
and freedoms of others, and are consistent with the other rights in
the present Covenant.
They are similar to the limitations found in the Philippine Bill of
Rights except for the fact that, unlike the Philippine provision, it
does not require a court order for impairment of liberty of abode.
 Unlike in our Consti, which speaks only of the right to travel without
distinction as to whether it is travel within the country or travel from or to
the country, the Covenant in Article 12(4) separates the right to return to
ones country from the right to leave ones country.
The limit to the right to return to ones country in the Covenant is
implied in the word arbitrarily: No one shall be arbitrarily
deprived of the right to enter his own country.
The intention of the Covenant in separating this right would seem
to be to make the limitation more narrow than for the right to leave
the country especially since exile is now prohibited by customary
law and the prohibition of exile may even be jus cogens.
It is also noteworthy that the Inter-American Commission of
Human Rights has expressed the opinion that domestic
laws which prevent exiled individuals from returning to their
country run counter to Article 12 of the Covenant
In Marcos v. Manglapus, however, the SC held that the right to
return to ones own country is not guaranteed by the right to travel
and liberty of abode found in the Bill of Rights.
However, SC said that "This case is unique. It should not
create a precedent, for the case of a dictator forced out of
office and into exile after causing twenty years of political,
economic and social havoc in the country and who within
the short space of three years seeks to return, is in a class
by itself
Art. 13 guarantees the right of aliens not to be expelled without due
process from a territory
Legal personality, privacy, and the family
The right to be recognised as a person before the law is guaranteed by
Art. 16 of the Covenant
Legal personality
the fitness to be the subject of legal relations
belongs to all
Capacity to act
power to do acts with legal effect
may not be available to some by reason, for instance, of
infancy, minority or insanity
But when does one become a person? The Covenant does not
say.
The Philippine Constitution protects the life of the unborn
from conception; but it does not say that the unborn is a
person.
The Civil Code, however, says that for purposes beneficial
to him the unborn is considered a person.
Article 17 of the Covenant protects privacy, family, home or
correspondence as well as honour and reputation.
Articles 23 and 24 of the Covenant contain detailed provisions on the
rights of the family and of children.
 Covered by Article XV on the Family in the Constitution
Thought, conscience, religion, expression and political freedoms
Art. 18 guarantees freedom of thought, conscience, and religion.
Subject to the protection of public safety, order, health, or morals
or the fundamental rights of others
Contains rights of the parents in the matter of religion for their
children
Art. 19 guarantees freedom of expression - same with consti
Art. 21 protects the right of assembly and petition - same with consti
Art. 20 - prohibits propaganda for war; can conflict with Constis freedom
of expression
Associations and unions
Art. 22 of the Covenant is silent about the right of government
employees to form unions
Minorities
Art. 27 guarantees ethnic, religious or linguistic minorities the right to
enjoy their own culture, to profess and practice their own religion, or to
use their own language.
The concern for minorities has a two-fold aspect
1. fear of a secessionist movement by minorities, threatening
territorial integrity of the state, or about the danger of interference
by other states with which the minorities are connected by ties of
race, national origin, language, or religion.
2. genuine concern for the human rights of minorities and the
desire that minorities will flourish so as to preserve that diversity
of the human race, which, since the beginning of mankind, has
provided a motive power for the development of civilisation and
culture by weaving many strands into a single multi-colored
tapestry.
Self-determination of peoples
Found in Art. 1
History
The proposal made by the USSR on the subject was to
recognize the right of self-determination of peoples under
colonial domination. But others pushed for the inclusion of
self-determination for peoples oppressed by despotic
governments, peoples under alien domination, and peoples
of multi-national states deprived of self-determination by
the central authorities.
Article 1 now covers all of the above.
2 important rights
1. the right freely to determine their political status and freely
pursue their economic, social and cultural development
2. the right for their own ends, [to] freely dispose of the natural
wealth and resources without prejudice to any obligations arising
out of international cooperation, based upon the principle of
mutual benefit, and international law.
 Declaration on the Granting of Independence to Colonial Countries and
Peoples
But who are peoples?
peoples include those ruled by colonial powers; but under
present circumstances this is now of limited significance.
Peoples also mean those who form a component part of a
multinational state.
On the other hand, minorities as such, for which the Covenant
has Article 27, does not have a right of self-determination in the
sense of the right to secede.
Even the penultimate article of the 1960 Declaration on the
Granting of Independence says: Any attempt aimed at the
partial or total disruption of the national unity and territorial
integrity of a country is incompatible with purposes and
principles of the Charter of the United Nations.
Permanent Sovereignty over Natural Resources
2 aspects of self-determination
1. Internal
the right freely to determine their political status and freely
pursue their economic, social and cultural development
and the right, for their own ends, [to] freely dispose of the
natural wealth and resources without prejudice to any
obligations arising out of international cooperation, based
upon the principle of mutual benefit, and international law.
2. External
The external right of self-determination belongs to colonies
and to those enumerated in the third paragraph: non-self-
governing and Trust Territories.
Optional Protocol on the ICCPR
The OP is a supplement to the ICCPR. The Philippines has ratified the OP
This separate treaty is designed to enable private parties who are victims of
human rights violations. But complaints may be filed only against states which
have ratified the Protocol
An 18-member Human Rights Committee created by the Covenant receives
and handles the complaints
The Covenant on Economic, Social and Cultural Rights
The Covenant on Civil and Political Rights and the Covenant on Economic and
Social and Cultural Rights were adopted on the same day. But why two
separate documents?
Ideologically, the contest was between Western countries on the one
hand and socialist and Third World countries on the other.
The American delegation, for instance, argued that its
government would find difficulty in accepting a treaty containing
economic and cultural rights beyond those guaranteed by the
Constitution.
For the socialist and Third World countries, on the other hand, the
absence of economic, social and cultural guarantees could render
 civil and political guarantees meaningless.
On the practical level, however, it became obvious that implementing
civil and political guarantees, the classical Thou shalt nots of the
Western tradition, could be done immediately; whereas the
implementation of economic, social and cultural rights could only be
done gradually and dependently on development conditions.
In the end, the decision to divide, which would at least assure
approval of a document on civil and political rights, prevailed. But
significantly, Article 1 of both Covenants say exactly the same
thing about the right of self-determination of people. Moreover,
there are substantial overlap pings on other subjects of the
Covenants.
Social welfare rights covered by the ECOSOC, right:
1. to work
2. to favourable conditions of work
3. to form free trade unions
4. to social security and insurance
5. to special assistance for families
6. to adequate standard of living
7. to the highs standard of physical and mental health
8. to education including compulsory primary education
9. to enjoyment of cultural and scientific benefits and international contacts
All these covered by our Consti provisions on Social Justice, Education,
science and technology, arts, culture and sports, and The Family
Duty to implement
Domestic obligations
The Philippines is a party not only to the United Nations Charter and the
Universal Declaration of Human Rights but also to the two Covenants as
well as to the Optional Protocol to the Covenant on Civil and Political
Rights.
The nation is therefore bound, both internally and in its foreign
relations, to bring its laws and practices into accord with the
accepted international obligations and not to introduce new laws
or practices which would be at variance with such obligations.
Treaty commitments become part of domestic law. The self-executing
provisions of the Covenants therefore must be implemented in domestic
law. Those which are not self-executing must be attended to by
necessary steps, in accordance with its constitutional processes and
with the provisions of the present Covenant. This may be either by
legislative or by executive measures.
For the ICESCR, Each State Party to the present Covenant undertakes
to take steps, individually and through international assistance and
cooperation, especially economic and technical, to the maximum of its
available resources, with a view to achieving progressively the full
realisation of the rights recognized in the present Covenant by all
appropriate means, including particularly the adoption of legislative
measures."
 Principle of progressive realisation
a state is obligated to undertake a program of activities and
to realize those rights which are recognized by the
Economic Covenant. While the obligation of progressive
realization is limited by resource constraints, the Economic
Covenant indicates that priority should be given to social
welfare and that the level of effort should increase over
time. These obligations apply to any state that has ratified
the Economic Covenant, regardless of that states
economic resources
International obligation
In the economic and social fields,
the key words are cooperation and assistance.
The effort to provide international protection for economic/social
rights on the global level proceeds along many lines and involves
actions of various kinds on behalf of these rights.
The framework for this effort is the United Nations system, with its
central organisation, loosely coordinated network of specialized
agencies, and growing body of covenants and conventions
relevant to this area of human experience.
In the civil and political field, this involves participation in the
implementation measures of the United Nations system.
Other conventions on human rights
1. the 1948 Genocide Convention,
2. the 1966 Convention on the Elimination of All Forms of Racial Discrimination,
3. the 1979 Convention on the Elimination of All Forms of Discrimination Against
Women,
4. the 1984 Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment,
5. the 1989 Convention on the Rights of the Child, and
6. the 1990 Convention on Migrants Workers
Customary human rights law
It can also be said that some human rights principles have become customary
law in the light of state practice.
This would include the prohibition of
1. torture,
2. genocide,
3. slavery and
4. discrimination
International implementation of human rights law
Each country has the obligation to implement human rights law within its
jurisdiction.
It can be done, where proper, through municipal courts such as what
happened in the Pena Irala case.
There now exist also regional courts with jurisdiction over human rights
violations. In addition to these, the United Nations itself has a system for
implementation.
 Human Rights Commission - a subsidiary organ of the ECOSOC
2 procedures:
1. confidential consideration under ECOSOC Resolution 1503
2. public debate procedure under ECOSOC Resolution 1235
The 1503 Procedure or confidential procedure
Resolution 1503 authorises the Sub-Commission on Prevention of
Discrimination and Protection of Minorities to appoint a working group
consisting of not more than five members to meet once a year in private
meetings to consider all communications, including replies of the
governments concerned, with a view to bringing to the attention of the
Sub-Commission those communications which appear to reveal a
pattern of gross and reliably attested violations of human rights.
The confidential findings of the Sub-Commission are brought to the
attention of the Commission on Human rights.
The Commission on Human Rights in turn is expected to submit its
report and recommendation to the Economic and Social Council.
The procedure is kept confidential until such time as the Commission on
Human Rights decides to make recommendation to the ECOSOC.
The 1235 Procedure
The Resolution authorised the Commission and its Subsidiary
Commission on Prevention of Discrimination and Protection of Minorities
to examine reports relevant to gross violations of human rights and to
examine whether the violations revealed a consistent pattern and
thereafter make recommendations to ECOSOC.
2 types of activities:
1. holds annual public debates in which governments and NGOs are
given the opportunity to identify publicly country specific situations
which deserve attention. This is thus different from the
confidential process under 1503. In fact, subjects taken up under
1503 can find their way to 1235.
2. it engages in studies and investigations of particular situations
through the use of various techniques the Commission might
deem appropriate.
effect of these resolutions:
1. embarrassment of countries referred that might generate change
in policy;
2. pressure on governments to take the issue on a bilateral or
multilateral level;
3. statements of exhortation from the Commission or call from the
Commission for all available information;
4. the Commission might appoint a Special Rapporteur to examine
and submit a report on the issue;
5. the Commission might ask the Security Council to take up the
issue with a view to promulgating sanctions.
The International Criminal Court
What is the significance of the establishment of the International Criminal
Court? Hitherto, international crimes were prosecuted in ad hoc criminal
 courts. Such were the Nuremberg and the Tokyo tribunals after World War II,
and more recently, the tribunals for Rwanda and the former Yugoslavia.
These earlier tribunals were undermined and weakened by the charges
of politically motivated investigations and selective justice.
Unlike the temporary tribunals, the new court will has been established
without any specific country in mind. Thus, besides enjoying
permanency, it will begin with the virtue of neutrality so necessary for
fairness. Gradually too, the court will be able to establish precedents.
The goal of the court, moreover, is to demand individual and not collective
accountability.
It will therefore shift the stigma of guilt away from the collectivity and will
thereby help facilitate reconciliation by avoiding condemnation of entire
societies.
For these and other reasons some have considered its establishment
the single most important international institutional advance since the
founding of the United Nations more than a half century ago.
Its jurisdiction will be limited to the most serious international crimes:
1. genocide,
2. crimes against humanity,
3. war crimes, and
4. the crime of aggression.
These crimes are carefully defined in the treaty.
An important feature of the court is the principle of complementarity.
The court is meant to be a court of last resort.
It normally must await referral of a crime either by a state party or by the
Security Council.
The court is not allowed to act when the local judicial system is able and
willing to prosecute.
Once a state has taken the initiative to investigate a crime, even if it
ultimately decides that there is no reason to proceed, the international
court cannot intervene.
The international court is not intended to supplant the functioning of
military and civilian tribunals in national judicial systems. However, if a
state intentionally tries to avoid its international obligation by shielding a
criminal from responsibility, the court may come in.

Extended Outline

1. Human Rights Principles and Enforcement Mechanisms

1. UN Charter, Art. 1(3), 55, and 56
State obligation to respect and promote human rights
2. UDHR (1948)
Deemed by some international legal scholars as CIL
3. ICCPR (1966) and OP1 and OP2
OP1 - on individual communications procedure through the HR
Committee
OP2 - on the abolition of death penalty (RP ratified ICCPR and OP1 but
is not a signatory to OP2)
 most rights are self-executing
4. ECOSOC (1966)
There is only a reportorial duty; generally, ECOSOC rights are based on
progressive realisation principle
ratified by the RP
5. Convention on the Elimination of Racial Discrimination (1969)
There are individual communications procedure and state to state
communications
ratified by RP
6. CEDAW (1981) and OP (2000)
There is an OP on communication and inquiry procedures
all ratified by RP
7. Convention against Torture (1987)
There are individual communications procedure and state to state
communications
ratified by RP
8. Convention on the Rights of the Child (1990) and OP on sale, prostitution and
pornography (2002) and Children in Situations of Armed Conflict (2002)
There is a reportorial duty to a CRC Committee
All ratified by RP
9. Migrant Worker Convention (2003)
Ratified by RP
2. Concepts of International Minimum Standard and National Treatment
These apply to certain areas of activity of aliens, like investment and trade
matters
for the protection of aliens against discriminatory acts of the host state
alien is treated like a national of host state in all respects as to
property rights if protection pertains to the person of the alien,
apply international human rights law principles

Case Law:

SWA dissent of Judge Tanaka

Apartheid as a violation of principle of equality before the law

Philippines:

Mejoff v. Director of Prisons

application of the UDHR by SC in a habeas corpus case of an alien of Russian

descent who was brought to the country from Shanghai as a secret operative by the
Japanese forces
after the war, he was arrested as a Japanese spy by the US army, and was detained
for 2 years after he was ordered deported.
Art. 8 of UDHR provides that everyone has the right to an effective remedy by the
competent national tribunals for acts violating fundamental rights
Marcos v. Manglapus

Application of the UDHR and ICCPR on the right to return of the Marcoses from
Hawaii even if the Bill of Rights did not specify this right. However, the SC held that
the Philippines did not act arbitrarily in determining that the return of the Marcoses
under the circumstances then existing posed a serious threat to national interests
and welfare

International School of Alliance of School Educators v. Quisumbing

Application of ICESCR to a suit for recovery of compensation on the basis of equal

pay for equal work. The court required the International School to treat and foreign
hired teachers equally.

RP v. SB

The revolutionary government following EDSA 1 was subject to the ICCPR and
UDHR

Central Bank Employees v. BSP

The equality provisions of international human rights instruments impose a measure

of positive obligation on State Parties to eradicate discrimination

Writ of Amparo - a remedial measure designed to direct specific courses of action to

government agencies to safeguard the constitutional right to life, liberty and security of
aggrieved individuals

Sec. of National Defense v. Manalo

Rubrico v. GMA

BOAC v. Cadapan

Biraogo v. Truth Commission

EO 1, insofar as it intended to investigate human rights violations is consistent with

generally accepted principles of international law
But it is unconstitutional due to its limitation of its investigation to the GMA
administration in violation of the EPC

Module 17: Taking of property: nationalisation and expropriation

Bernas

Expropriation of alien property

Expropriation is the taking of property by the state. The property can be
 tangible or intangible as in the case of valuable contractual rights.
Expropriation can be an international wrong if it is done contrary to the
principles of international law. What are these principles?
The principles may be drawn from a 1962 UN General Assembly
Resolution on the Sovereignty over Natural Resources which states,
among others, that the expropriation shall be based on grounds or
reasons of public utility, security or the national interests which are
recognised as overriding purely individual or private interests,
both domestic and foreign.
In such cases the owner shall be paid appropriate compensation in
accordance with the rules in force in the state taking such measures in
the exercise of its sovereignty and in accordance with international law.
The rule thus recognises the power of eminent domain as an inherent power of
sovereignty. The rule conforms with the constitutional principles of public use
and just compensation.
But international case law on the subject, generally between developed and
developing countries, is not without disputations.

Extended outline

GR: State with right to expropriate foreign-owned property for a public purpose
Exception: If arbitrary or discriminatory or motivated by considerations of
political nature
Note:
Unsettled amount of compensation and what constitutes expropriation
2 views:
1. US and Capitalist States prompt, adequate, effective
2. Socialist States No compensation
Norm/practice - Bilateral Investment Treaties would provide the standard of
compensation
United Nations Declaration on Permanent Sovereignty over Natural Resources
,1962, UNGA Resolution 1803 (XVII)
There is an inalienable right of state to freely dispose of natural wealth and
resources;
bases for expropriation are public utility, security, and national interest
standard appropriate compensation
UN Resolution 3171 (XXVIII) on Permanent Sovereignty over Natural
Resources, Dec. 17, 1973
State is entitled to determine compensation and mode of payment; and dispute
on this matter is to be settled based on national legislation
Charter of Economic Rights and Duties of States
Right of a State to regulate foreign investment without preferential treatment;
standard appropriate compensation
Proposed Amendment to Art. 2 of Charter of Economic Rights and Duties of
States
Developing states reject amendment to Art. 2 aimed at using the term just
compensation
Case law:
Texaco Overseas Petroleum v. Libya
Companies are entitled to restitute in integrum on the basis of violation
of an internationalised contract
Tribunal disregarded issue of nationalisation
Reference to general principles of law outside of internal law breach
of contract
private party has specific but limited international capacities in this case
Facts:
Libya issued decrees nationalising all the rights, interests and
properties of Texaco and California Asiatic that had been granted
to them under 14 deeds of concession.
Texaco and California requested arbitration and appointed an
arbitrator.
Since Libya refused to submit to arbitration, the ICJ appointed
Professor Dupuy as the sole arbitrator.
Issue:
WON the issues in this case may be subject to arbitration;
WON there was a breach of contract on the part of Libya
Held:
Yes, case may be subject to arbitration;
Yes, Libya breached its obligations under the contract
Ratio:
On jurisdiction for arbitration the 14 deeds of concession were
internationalised contracts
The deeds of concession contained a provision saying that
the concession would be governed by general principles of
Libyan law COMMON TO PRINCIPLES OF
INTERNATIONAL LAW, and that in the absence of such
common principles, then they would be governed by and in
accordance with THE GENERAL PRINCIPLES OF LAW,
including those applied by international tribunals
This supported the conclusion that the nature of the deeds
of concession made it an internationalised contract
On Breach of Contract
Libya was legally bound to perform the deeds of
concession according to their terms
An internationalized contract has effects and
consequences on the rights of the parties they may enter
into arbitration if their rights in the contracts are breached.
This gives the party a specific, but limited, international
capacity
The injured parties were entitled to restitute in integrum and
that the sovereign State was obliged to perform in
accordance with its contractual obligations
The tribunal also said that the UN General Assemblies
regarding permanent sovereignty over natural wealth
and resources could not be used by the State to violate
 its contractual obligations in commercial transactions.
Note:
International law allows the operation of rules of private international law.
When a claim arises based on breach of contract between an alien and a
government, the issue may be decided in accordance with the applicable
municipal law designated by the rules of private international law.

Module 18: Responsibility for environmental harm

Extended Outline

Trail Smelter Arbitration US v. Canada

Facts:
The controversy is between two governments involving damage
occurring in the territory of one of them (the United States of America)
and alleged to be due to an agency situated in the territory of the other
(the Dominion of Canada), for which damage the latter has assumed by
the Convention an international responsibility.
They submitted, among others, the ff. questions:
Held:
1. Whether damage caused by the Trail Smelter in the State of Washington
has occurred since the first day of January, 1932, and, if so, what
indemnity should be paid therefor?
Damage caused by the Trail Smelter in the State of Washington
has occurred since the first day of January, 1932, and up to
October 1,1937, and the indemnity to be paid therefor is seventy-
eight thousand dollars ($78,000), and is to be complete and final
indemnity and compensation for all damage which occurred
between such dates
A State owes at all times a duty to protect other States against
injurious acts by individuals from within its jurisdiction.
the Tribunal holds that the Dominion of Canada is responsible in
international law for the conduct of the Trail Smelter.... It is,
therefore, the duty of the government of the Dominion of Canada
to see to it that this conduct should be in conformity with the
obligation of the Dominion under international law as herein
determined.
2. whether the Trail Smelter should be required to refrain from causing
damage in the State of Washington in the future and, if so, to what
extent?
so long as the present conditions in the Columbia River Valley
prevail, the Trail Smelter shall be required to refrain from causing
any damage through fumes in the State of Washington
The Corfu Channel Case
Albania could not permit use of its territory to harm others
Facts:
 In one instance, British cruisers were passing through the North Corfu
Channel when they hit mines either placed by Albania or with its
knowledge.
In another instance, British cruisers were fired upon as they passed
through the Channel. After protesting and communicating with Albania,
UK asked permission to do a mine sweep of the waters. Albania said
that UK can do so as long as not in Albanian waters (which includes the
Corfu). UK nevertheless swept the Corfu for mines. Hence this case
UK:
claims that Corfu Strait is an international strait connecting 2
points of the high seas and that innocent passage should be
allowed
Albania:
claims that its territorial sovereignty was violated and that it had a
right to demand prior authorization
Issue:
W/N the North Corfu Channel is subject to innocent passage - Yes
W/N UK violated Albanian sovereignty when it swept the Corfu for mines
- Yes
W/N Albania should be held liable - Yes
Held:
The North Corfu Channel belongs to that class of international highways
through w/c the right of innocent passage exists at least during times
of peace. The fact that it is an alternative route as Albania contends is
immaterial. The decisive criterion is geography: that it connects 2 parts
of the high seas and is used for international navigation. Considering
that Albania was at that time hostile w/ its neighbor Greece, it is justified
in issuing reasonable regulations for passage of warships but not
outright prohibition or requirement of special authorization. Innocent
passage in international straits are allowed
However, the minesweeping mission violated Albanias sovereignty
because it cannot be characterised as innocent passage. Such mission
was executed contrary to the clearly expressed wishes of Albania
The obligations incumbent upon Albania was to notify, for the
benefit of shipping in general, the existence of a minefield in
Albanian water and in warning the British warships approaching
Based on elementary considerations of humanity, the
freedom of maritime communication and States obligation
not to allow knowingly to its territory to be used for acts
contrary to the rights of other states.
Stockholm Principles
The duty of States to notify other States of activities that may have extra-
territorial effect was not accepted
But see UNGA Resolution 2995
Notes:
The Stockholm Declaration was adopted in 1972 by the 113 participating
states. It contains 26 principles which provide the basis of an
 international policy for the protection and improvement of the
environment, of which Principles 21 and 22 directly concern
international law.
Principle 21 provides for the right of a State to exploit its own natural
resources and the duty not to cause harm to others or to places outside
its territory in the court of their exploitation.
Principles 22 imposes an obligation to cooperate to develop the duty
further
Principle 4
Man has a special responsibility to safeguard and wisely manage the heritage
of wildlife and its habitat, which are now gravely imperilled by a combination of
adverse factors. Nature conservation, including wildlife, must therefore receive
importance in planning for economic development.

Principle 5
The non-renewable resources of the earth must be employed in such a way as
to guard against the danger of their future exhaustion and to ensure that
benefits from such employment are shared by all mankind.

Principle 6
The discharge of toxic substances or of other substances and the release of
heat, in such quantities or concentrations as to exceed the capacity of the
environment to render them harmless, must be halted in order to ensure that
serious or irreversible damage is not inflicted upon ecosystems. The just
struggle of the peoples of ill countries against pollution should be supported.

Principle 11
The environmental policies of all States should enhance and not adversely
affect the present or future development potential of developing countries, nor
should they hamper the attainment of better living conditions for all, and
appropriate steps should be taken by States and international organizations
with a view to reaching agreement on meeting the possible national and
international economic consequences resulting from the application of
environmental measures.

Principle 16
Demographic policies which are without prejudice to basic human rights and
which are deemed appropriate by Governments concerned should be applied
in those regions where the rate of population growth or excessive population
concentrations are likely to have adverse effects on the environment of the
human environment and impede development.

Principle 20
Scientific research and development in the context of environmental problems,
both national and multinational, must be promoted in all countries, especially
the developing countries. In this connection, the free flow of up-to-date
scientific information and transfer of experience must be supported and
 assisted, to facilitate the solution of environmental problems; environmental
technologies should be made available to developing countries on terms which
would encourage their wide dissemination without constituting an economic
burden on the developing countries.

Principle 21
States have, in accordance with the Charter of the United Nations and the
principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure
that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national
jurisdiction.

Principle 22
States shall cooperate to develop further the international law regarding liability
and compensation for the victims of pollution and other environmental damage
caused by activities within the jurisdiction or control of such States to areas
beyond their jurisdiction.
UNGA Resolution 2995
In exercising their sovereignty, states must seek, through bilateral and
multilateral cooperation or through regional machinery, to preserve and
improve the environment.
In the exploration, exploitation, and development natural resources, states
must not produce significant harmful effects in zones outside their national
jurisdiction.
Co-operation will be achieved if official and public knowledge is provided of the
technical data relating to work carried out by states within their territory.
UNGA Resolution 2996
International Law Association Resolution 1972
Continental sea-water pollution means any detrimental change in the natural
composition, content or quality of sea water resulting from human conduct
taking place within the limits of the national jurisdiction of a State.

Art II
A state shall prevent any new form of continental sea-water pollution or any
increase in the degree of the existing pollution which cause substantial injury in
the territory of another state or to its rights.

Art III
States should establish as soon as possible international standards for
controls of sea-water pollution.
Until such standards are established, the existence of substantial injury from
pollution shall be determined by taking into account all relevant factors.

Article IV
When it is contended that the conduct of a State is not in accordance with its
obligations under these Articles, that State shall promptly enter into
 negotiations with the complainant with a view to reaching a solution that is
equitable under the circumstances.

Article V
In the case of violation of the rules in Article II, the State responsible shall
cease the wrongful conduct and shall compensate the injured State for the
injury that has been caused to it.
UN Environment Program: Governing Council Decisions Concerning Policy
Objectives (1973)
Having considered a number of reports, the following decisions have been
adopted:
1. General policy objectives:
1. provide improved knowledge for management of the resources of the
biosphere, encourage and support to the planning and management of
development to achieve maximum benefits, assist all countries to deal
with their environmental problems and provide assistance with a view of
the enhancement and preservation of the environment
2. Particular policy objectives:
1. Anticipate and prevent threat to human health, detect and prevent
serious threats to the health of the ocean, improve the quality of water
for human use, help governments in improving the quality of life, prevent
the loss of productive soil, help government in managing forest
resources, anticipate disasters, help gain public awareness
Rio Declaration on Environment and Development
Emphasized the right of a state to exploit resources but with corresponding
duty not to damage the environment
special situation of developing countries considered
trade policy measures for environmental purposes should not constitute as
means for arbitrary or unjustifiable discrimination or a disguised restriction on
international trade
there is a duty to notify other states regarding disasters
Principle 2
States have in accordance with the charter of the UN and the principles of
international law, the sovereign right to exploit their own resources pursuant to
their own environmental and development policies ,and the responsibility to
ensure activities and within their jurisdiction or control do not cause damage to
the environment of other states or of areas beyond the limits of national
jurisdiction.

Principle 3
The right to development must be fulfilled so as to equitably meet
developmental and environmental needs of present and future generations.

Principle 6
The special situation and needs of developing countries, particularly the least
developed and those most environmentally vulnerable, shall be given special
priority. International actions in the field of environment and development
 should also address the interests and needs of all countries.

Principle 12
States should cooperate to promote supportive and open international
economic system that would lead to economic growth and sustainable
development in all countries, to better address the problems of environmental
degradation. Trade policy measures for environmental purposes should not
constitute a means of arbitrary or unjustifiable discrimination or a disguised
restriction on international trade.

Principle 13
States shall develop national law regarding liability and compensation for the
victims of pollution and other environmental damage. States shall also
cooperate in an expeditious and more determined manner to develop further
international law regarding liability and compensation for adverse effects of
environmental damage caused by activities within their jurisdiction or control to
areas beyond their jurisdiction.

Principle 14
States should effectively cooperate to discourage or prevent the relocation and
transfer to other states of any activities and substances that cause severe
environmental degradation or are found to be harmful to human health.

Principle 16
Environmental impact assessment as a national instrument shall be
undertaken for proposed activities that are likely to have a significant and
adverse impact on the environment and are subject to a decision of a
competent national authority.

Principle 18
States shall immediately notify other states of any natural disasters or other
emergencies that are likely to produce sudden harmful effects on the
environment of those states. Every effort shall be made by the international
community to help states so afflicted.
Montreal Protocol on Substances that Deplete the Ozone Layer
Expressly provides for the periodic review and assessment of control
measures taken and their adjustment whenever deemed necessary
The Montreal Protocol on Substances that Deplete the Ozone Layer was
designed to reduce the production and consumption of ozone depleting
substances in order to reduce their abundance in the atmosphere, and thereby
protect the earths fragile ozone Layer. The original Montreal Protocol was
agreed on 16 September 1987 and entered into force on 1 January 1989.

The Montreal Protocol includes a unique adjustment provision that enables the
Parties to the Protocol to respond quickly to new scientific information and
agree to accelerate the reductions required on chemicals already covered by
the Protocol. These adjustments are then automatically applicable to all
 countries that ratified the Protocol. Since its initial adoption, the Montreal
Protocol has been adjusted five times. Specifically, the Second, Fourth,
Seventh, Ninth, Eleventh and Nineteenth Meetings of the Parties to the
Montreal Protocol adopted, in accordance with the procedure laid down in
paragraph 9 of Article 2 of the Montreal Protocol, certain adjustments and
reductions of production and consumption of the controlled substances listed
in the Annexes of the Protocol. These adjustments entered into force, for all
the Parties, on 7 March 1991, 23 September 1993, 5 August 1996, 4 June
1998, 28 July 2000 and 14 May 2008, respectively.

In addition to adjusting the Protocol, the Parties to the Montreal Protocol have
amended the Protocol to enable, among other things, the control of new
chemicals and the creation of a financial mechanism to enable developing
countries to comply. Specifically, the Second, Fourth, Ninth and Eleventh
Meetings of the Parties to the Montreal Protocol adopted, in accordance with
the procedure laid down in paragraph 4 of Article 9 of the Vienna Convention,
four Amendments to the Protocol the London Amendment (1990), the
Copenhagen Amendment (1992), the Montreal Amendment (1997) and the
Beijing Amendment (1999). Unlike adjustments to the Protocol, amendments
must be ratified by countries before their requirements are applicable to those
countries. The London, Copenhagen, Montreal and Beijing Amendments
entered into force on 10 August 1992, 14 June 1994 10 November 1999 and
25 February 2002 respectively, only for those Parties which ratified the
particular amendments.

In addition to adjustments and amendments to the Montreal Protocol, the

Parties to the Protocol meet annually and take a variety of decisions aimed at
enabling effective implementation of this important legal instrument. Through
the 22nd Meeting of the Parties to the Montreal Protocol, the Parties have
taken over 720 decisions. The decisions adopted by the Parties are included in
the reports of the Meetings of the Parties and, along with other documents
considered during the meetings, can be accessed under the meetings' links. In
addition, the decisions of the Parties taken during those meetings are included
in the Montreal Protocol handbook, which can be accessed by clicking on the
picture of the handbook above.
1989 Basel Convention on the Transboundary Movement of Hazardous Wastes
Authorizes the regularly scheduled meetings of the conference of the parties to
take legislative initiatives to ensure the effectiveness and continuous
improvement of the regime
is an international treaty that was designed to reduce the movements of
hazardous waste between nations, and specifically to prevent transfer of
hazardous waste from developed to less developed countries (LDCs).
It does not, however, address the movement of radioactive waste.
The Convention is also intended to minimise the amount and toxicity of wastes
generated, to ensure their environmentally sound management as closely as
possible to the source of generation, and to assist LDCs in environmentally
sound management of the hazardous and other wastes they generate.
 Waste falls under the scope of the Convention if it is within the category of
wastes listed in Annex I of the Convention and it exhibits one of the hazardous
characteristics contained in Annex III.
In other words it must both be listed and possess a characteristic such
as being explosive, flammable, toxic, or corrosive.
The other way that a waste may fall under the scope of the Convention is if it is
defined as or considered to be a hazardous waste under the laws of either the
exporting country, the importing country, or any of the countries of transit.
The definition of the term disposal is made in Article 2 and 4 and just
refers to annex IV, which gives a list of operations which are understood
as disposal or recovery. The examples of disposal are broad and include
also recovery, recycling.
The Convention requires a prior informed consent that must be followed before
any export or import is allowed to or from another party. The Exporting State is
obliged to get the written approval of the Importing state for such a movement
to be legal under the Basel Convention. In this context, each party has the
right to ban any import or export of hazardous or other wastes.
The basic purposes of the Convention are to ensure that states have the full
ability to protect their own environment and to enable them to not permit
actions which might have adverse effects on the environment such as a
transboundary movement of hazardous waste.
The BAN Amendment to the Convention was adopted at the Third Conference
of the Parties in 1995 and incorporated in the text of the Convention. This
amendment bans any export of hazardous wastes from Basel Convention
Parties that are members of the EU, OECD, and Liechtenstein to all other
Parties to the Convention. The BAN Amendment has to be ratified by three-
fourths of the Parties in order to enter into force.
Precautionary Principle
The obligation requires a state to abstain from conduct that carries a significant
risk of harm
It is an obligation that has several procedural companion-elements, namely,
duty of
1. prior information, and
2. prior consultation
These obligations have become part of customary international law
according to legal scholars
The evolution of a duty of prevention can be traced from its conceptual origin
in the Trail Smelter decision all the way to the international law commissions
focus on prevention and its work on the liability topic.

Case Law:

Oposa v. Factoran
Facts:
An action was filed by several minors represented by their parents
against the Department of Environment and Natural Resources to
cancel existing timber license agreements in the country and to stop
issuance of new ones. It was claimed that the resultant deforestation
 and damage to the environment violated their constitutional rights to a
balanced and healthful ecology and to health (Sections 16 and 15,
Article II of the Constitution). The petitioners asserted that they
represented others of their generation as well as generations yet
unborn.
Held:
Finding for the petitioners, the Court stated that even though the right to
a balanced and healthful ecology is under the Declaration of Principles
and State Policies of the Constitution and not under the Bill of Rights, it
does not follow that it is less important than any of the rights
enumerated in the latter: [it] concerns nothing less than self-
preservation and self-perpetuation, the advancement of which may even
be said to predate all governments and constitutions. The right is
linked to the constitutional right to health, is fundamental,
constitutionalised, self-executing and judicially enforceable. It
imposes the correlative duty to refrain from impairing the environment.
The court stated that the petitioners were able to file a class suit both for
others of their generation and for succeeding generations as the
minors assertion of their right to a sound environment constitutes, at the
same time, the performance of their obligation to ensure the protection
of that right for the generations to come.
Although SC did not order the Secretary outright to cancel licenses and
desist from issuing new ones, the Court affirmed the justiciability of the
issue raised and remanded the case to the lower court for further
proceedings.
DENR v. Concerned Residents of Manila Bay
Philippines is a member of the International Marine Organization and a
signatory to the International Convention for the Prevention of Pollution from
Ships.
Clean-up of Manila Bay is a duty which covers general pollution incidents
FACTS:
Respondents Concerned Residents of Manila Bay filed a complaint
before the RTC against several government agencies for the cleanup,
rehabilitation, and protection of the Manila Bay. They alleged that the
water quality of the Manila Bay had fallen way below the allowable
standards set by law, specifically Presidential Decree No. (PD) 1152 or
the Philippine Environment Code and the department/agencies had
neglected their roles in abating the pollution of the Manila Bay.
Petitioners contend that the pertinent provisions of the Environment
Code (PD 1152) relate only to the cleaning of specific pollution incidents
and do not cover cleaning in general. They also assert that the cleaning
of the Manila Bay is not a ministerial act which can be compelled by
mandamus.
ISSUE:
1. W/N Sections 17 and 20 of PD 1152 envisage a cleanup in general or
are they limited only to the cleanup of specific pollution incidents? They
include cleaning in general.
 2. W/N the petitioners can be compelled by mandamus to clean up and
rehabilitate the Manila Bay? YES, they can be compelled.
HELD:
1. Secs. 17 and 20 of the Environment Code Include Cleaning in
General
Sec. 17 requires the petitioners to act even in the absence of a
specific pollution incident, as long as water quality "has
deteriorated to a degree where its state will adversely affect its
best usage." The underlying duty to upgrade the quality of water
is not conditional on the occurrence of any pollution incident. PD
1152 aims to introduce a comprehensive program of
environmental protection and management and this is better
served by making Secs. 17 & 20 of general application rather
than limiting them to specific pollution incidents.
The importance of the Manila Bay as a sea resource, playground,
and as a historical landmark cannot be over-emphasized. In the
light of the ongoing environmental degradation, there is extreme
necessity for all concerned executive departments and agencies
to immediately act and discharge their respective official duties
and obligations. The State, through petitioners, has to take the
lead in the preservation and protection of the Manila Bay. They
must perform their basic functions in cleaning up and
rehabilitating the Manila Bay. Or at the very least, the petitioners
and the men and women representing them cannot escape their
obligation to future generations of Filipinos to keep the waters of
the Manila Bay clean and clear as humanly as possible.
2. The Cleaning or Rehabilitation of Manila Bay Can be Compelled by
Mandamus
Mandamus is available to compel action, when refused, on
matters involving discretion, but not to direct the exercise of
judgment or discretion one way or the other. While the
implementation of the MMDAs mandated tasks may entail a
decision-making process, the enforcement of the law or the very
act of doing what the law exacts to be done is ministerial in nature
and may be compelled by mandamus. This duty of putting up a
proper waste disposal system cannot be characterized as
discretionary, for discretion presupposes the power or right given
by law to public functionaries to act officially according to their
judgment or conscience. The duty of MMDA is statutory as
provided for in its charter as well as other pertinent laws.

Module 19: International Claims

Bernas

Underhill v. Hernandez
 Facts:
The background of the case was a 1892 revolution in Venezuela against
the legitimate government. General Hernandez commanded the anti-
administration party and, after defeating the army of the administration,
he entered Bolivar to assume leadership of the government. George F.
Underhill was a citizen of the United States who had constructed a
waterworks system for the city of Bolivar, under a contract with the
government, and was engaged in supplying the place with water. He
also carried on a machinery repair business. Some time after the entry
of Gen. Hernandez, Underhill applied to him for a passport to leave the
city. Hernandez refused this request as well as requests made by others
in Underhills behalf. The purpose of Hernandezs refusal was to coerce
Underhill to operate his waterworks and his repair works for the benefit
of the community and the revolutionary forces. After Underhill was finally
allowed to leave, he filed suit in the United States to recover damages
for the detention caused by reason of the denial of his permit to leave,
for his alleged confinement to his own house, and for certain alleged
assaults and affronts by the soldiers of Hernandezs army.
Issue:
W/N the US courts could consider the validity of acts of a foreign state
alleged to be in violation of international law
Held:
In denying the plea of Underhill, the U.S. court ruled with what is now
known as the act of state doctrine:
Every sovereign state is bound to respect the independence of
every other sovereign state, and the courts of one country will not
sit in judgment on the acts of the government of another, done
within its own territory. Redress of grievances by reason of such
acts must be obtained through the means open to be availed of
by sovereign powers as between themselves.
Calvo Clause
In the past, there were attempts to limit the ability of a state to give diplomatic
protection to its nationals. An example of this is the Calvo clause, a provision
in a contract to the effect that under no condition shall the intervention of
foreign diplomatic agents in any matter related to the contract be resorted to.
This was rejected in North American Dredging Company Claim (1926) by the
Mexico-United States General Claims Commission. The right to seek redress
is a sovereign prerogative of a state and a private individual has no right to
waive the states right.

Extended Outline

GR: Every state has a duty to protect its national. The state should establish its legal
interest by proving the nationality of the claim.
Forms of protection:
1. Protest
2. Inquiry
 3. Negotiation
4. Submission to arbitral tribunal/court
Pre-condition: exhaustion of local remedies if indirect responsibility
Note:
By taking up the case of a national, a State is, in reality, asserting its own
rights its right to ensure, in the person of its subject, respect for the rules of
international law.
Therefore, the subject matter of the claim is the individual and his
property, but the claim is that of the State.

Case Law:

US (North American Dredging Co. of Texas) v. Mexico

A contract containing a clause depriving the party subscribing to the clause of
the right to submit any claims connected with his contract to an international
commission
The individual can make such promise but cannot deprive he or her own state
in applying international remedies
However, there is no rule giving the state the right to intervene in order to strike
down such contract; the remedy of denial of justice is independent of the
violation of the contract
Facts:
North American Dredging contracted w/ the Mexican Government to
perform certain services in Mexico. The contract contained a Calvo
Clause where the corporation agreed to have no other rights or means
of enforcement than those conferred upon Mexicans and that under no
conditions shall the intervention of foreign diplomatic agents be
permitted in any matter relating to the contract. The corporation brought
a claim through the US government for a sum of some $ 230,000.
Mexico is now invoking the Calvo Clause.
Issue:
Is the corporation bound by the clause? In this case yes.
Held:
Yes
But each case involving a Calvo Clause must be decided on its own
merits. If it offends no principle of IL, then it must be upheld as a valid
contractual stipulation. If all the clause stipulates is that the claimant
must exhaust all local remedies out of due respect to the government of
the host state, then there is no violation. Only in case of manifest
injustice or if local remedies are unavailing is he allowed to seek redress
from his own government.
But such undertaking cannot deprive the government of his nation of its
right of applying international remedies. There must be a balance
between upholding the host states jurisdiction and the nationals states
right under IL. Neither can the clause deprive the alien of his citizenship
or other rights pertaining thereto. In this case, the corporation
disregarded all local remedies by immediately bringing his claim through
his national government. That being the case, his claim must be
 dismissed.
The International Fisheries Case (Nielsen dissent)
This dissent is w/ reference to the Dredging Case. The Commission in
deciding the case ignored Article V of the Convention between the US and
Mexico to the effect that no claim shall be dismissed due to non-exhaustion of
local remedies. No action by a private individual can supplant a treaty or
principle of IL. No nation can by contract w/ a private person relieve itself of its
obligations under IL or nullify the rights of another state. Only by means of
expatriation can a person by his own act forfeit his governments right to
protect him. The right of his government to extend protection is guaranteed by
IL.
It was the duty of the commission to give effect to the clearly expressed intent
of article 5 of the arbitration agreement. The intent and clear legal effect of that
article is that claims shall not be dismissed for failure of claimants to resort to
local remedies. Therefore to reject the claim was to nullify the clear intent and
legal effect of provisions by which two governments stipulated that claims
should not be rejected on the ground that there had not been a resort to legal
remedies. A claimants right to protection from his government is determined
by the law of that govt.
The Tattler (US v. Britain)
The US citizens waiver of claim (and right of libel) in consideration of the
release of the American schooner Tattler are not binding upon the US govt.
Facts:
This is a claim for $2,028 with interest on account of a seizure of the
said schooner Tattler and its detention for six days by the Canadian
authorities in Liverpool (on charge of alleged violation of Canadian
fisheries laws and of the treaty of 1818 between the US and GB)
The owners of the schooner entered into the following undertaking: in
consideration of the release of the American schooner Tattler (on
payment of fine of $500) we hereby guarantee his Majesty King Edward,
his successors and assigns and all whom it does or may concern,
against all claims made or to be made on account of or in respect to
such detentionhereby waiving all such claims and right to libel or
otherwise before any court or tribunal in respect to said detention or to
such or any such claims or loss or damage in the premises.
The payment was under protest.
Issue:
WON the claim is waivable?
Held and Ratio:
With respect to the national? YES.
With respect to the US govt NO.
It has been objected that the renunciation of and the guarantee against
any claims are not binding upon the govt of the US which presents the
claim.
In this case only the right of the US is supporting is that of its national
who waived his right and consequently in presenting this claim before
the tribunal it can rely on no legal ground other than those which would
 have been open to its national.
For these reasons, this tribunal decides that the claim must be
dismissed.
The Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania)
The test of right of claim by a state is the bond of nationality which existed at
the time the injury occurred. It is also an established rule that exhaustion of
remedies afforded by municipal law must be availed of except if there is an
ineffective remedy
Facts:
The First Company was a railway company in Russia. When the
Bolshevist movement took over the government, it sequestered private
property throughout the country including the First Company Railway.
The Lithuanian Government (newly independent state) took over the
Panevezys railway formerly owned by First Company. Then by virtue of
the Treaty of Tartu, Russia renounced certain properties and enterprises
to Estonia and this included First Company, w/c was later renamed
Esimene. Now the Board of Esimene brought a claim for compensation
against the Lithuanian government for the taking of the Panevezys
Railway. The Lithuanian Government through the council of state
refused to compensate. Now Estonia brings a claim on behalf of
Esimene.
Issue:
W/N the case can prosper
Held:
No.
First Estonia must prove that at the time of the alleged injury, Esimene
was possessed of Estonian nationality. For this purpose, the Treaty of
Tartu would have to be examined.
Second, Lithuania avers that Estonia failed to exhaust local remedies
afforded under municipal law.
This contention is sustained.
True that there is no need for resort to municipal courts if the
courts have no jurisdiction or if the exercise would be futile.
Whether or not the local courts have jurisdiction is addressed to
the sound discretion of the local tribunals. Besides, property rights
are generally governed by municipal laws. In this case, Estonia
has not even commenced any action in the municipal courts; that
being the case, the case should be dismissed.
Nottebohm Case
The naturalisation of Nottebohm under Liechtenstein law will not be sufficient
to allow a claim in his behalf.
It is shown that Nottebohm was a former German national who has resided in
Guatemala for more than 30 years since 1905. It was only in October 1939,
after the opening of WW2 that he submitted an application for naturalisation.
This was an obvious attempt to enable him to substitute for his status as
a national of a belligerent German State that of a national of a neutral
Liechtenstein and evade proceedings against him and his property
 interests.
He continued to stay in Guatemal until his removal as a result of war measures
in 1943. He attempted to return to Guatemal but was refused, for which reason
he finally went to Liechtenstein in 1946.
The court held that in cases of dual nationality, where the question arose with
regard to the exercise of protection, the real and effective nationality test has
been applied
Facts:
Nottebohm was born in Germany, and was a German citizen, although
he lived in Guatemala since 1903, and conducted a prosperous
business there, but never became a citizen of Guatemala.
In 1939, he applied to become a citizen of Liechtenstein.
The application was approved even though a requirement was that he
be in residence there for at least 3 years, but there was an exception
and he became a citizen of Liechtenstein.
When he tried to re-enter Guatemala in 1943, he was refused entry
(probably because of his original German citizenship and because of
WWII). He was later extradited to the U.S., where he was held at an
internment camp until the end of the war. All his possessions in
Guatemala were confiscated. After his release, he lived out the rest of
his life in Liechtenstein.
Liechtenstein offered Nottebohm protection against the government of
Guatemala and sued Guatemala in the International Court of Justice.
Basically, Liechtenstein is saying that because of Nottebohms
naturalisation, Liechtenstein is entitled to claim from Guatemala in his
behalf.
However, the government of Guatemala argued that Nottebohm did not
gain Liechtenstein citizenship for the purposes of international law.
Issue:
W/N Liechtenstein can sue on behalf of Nottebohm - No
Held:
No
Preference is always given to the real and effective nationality. There
must be factual ties between the person and the state and this may be
established by several factors such as residence, family ties, the center
of his interest, etc. He did not even change his permanent residence.
Guatemala, from the beginning, clearly repudiated the acquisition by
Nottebohm of the nationality of Liechtenstein.
True that in IL, each state may lay down rules in conferring its
citizenship; but in order to be invoked against another state, nationality
must correspond to the factual situation such as the social fact of
attachment, or a genuine connection of existence, sentiments, and
interests. These facts are completely missing.
The only reason why Nottebohm went to Liechtenstein was because
Guatemala refused to admit him. His only purpose for acquiring
nationality is to substitute for his status as a national of a belligerent
(Germany) that of a neutral state for the purpose of bringing his claims.
 Therefore, his claim should be dismissed.
Case Concerning the Barcelona Traction (Belgium v. Spain)
In determining nationality of a corporation, the place of incorporation and the
location of the registered officer are material elements
It was found that Barcelona Traction was incorporated under Canadian law
and had its registered office in Canada. Belgium did not have the capacity to
espouse the claim of Belgian shareholders in the company.
Facts:
Barcelona Traction was a corporation organized under the laws of
Canada where is had its principal office. Several Belgian nationals held
significant shares therein. It issued several bonds secured by trust
deeds funded by its subsidiary corporations located in Spain. The
Spanish government refused to authorize transfer of foreign currency,
thus disabling Barcelona from meeting its obligations. Spain thereafter
declared the corporation bankrupt and ordered the seizure of the assets
of its subsidiaries in Spain causing prejudice to the shareholders,
many of w/c were Belgian. Barcelona Traction was also later on
declared bankrupt under Canadian Law. Now, Belgium brings an action
in behalf of its nationals (shareholders) claiming reparations due to the
conduct of the Spanish authorities (allegedly contrary to IL) leading to
damage to its nationals.
Issue:
W/N Belgium has standing against Spain - No
Held:
No
Municipal law principles on corporate law were applied. It is the
corporation, as a separate entity from its stockholders, whose rights
were violated. The interests of the shareholder may have been affected,
but that doesnt mean that they have a right to bring the action unless
for exceptional circumstances. The nationality of the corporation is
Canadian, not Belgian; as it is in Canada that it was incorporated and
maintains its principal office. It is w/ Canada that the corporation shares
its genuine connection even if it engaged in business in other
countries. That being the case, it is Canada, not Belgium, that has the
right to bring the action and only in behalf of the corporation.
Note: According to the commentary of Herbert Briggs, the jus standi of one
state cannot arise from the mere lack of jus standi of another state; there must
exist some legal basis for an international claim beyond a mere indirect injury
to economic interests.
Banco Nacional de Cuba v. Peter Sabbatino
The Cuban Government characterised the reduction in the Cuban sugar quota
by the US as an act of aggression for political purpose, which prompted the
Cuban President to nationaliza by forced expropriation property or enterprises
in which American nationals had an interest.
The US SC held that however offensive to the public policy of the US and its
constituent states an expropriation of this kind may be, we conclude that both
the national interest and progress toward the goal of establishing the rule of
law among nations are best served by maintaining intact the act of state
doctrine in this realm of application
Facts:
The US Congress amended the Sugar Act reducing the sugar quota for
Cuba, w/c reacted negatively, alleging that it was an act of aggression
and for political purposes. Thus, it implemented Law No. 851 granting
the president the power to forcibly expropriate property or enterprises
where US nationals held an interest. Compensation was a pipe dream.
The president implemented the same; one of the affected corporations
was Compania Azucarrera, principally owned by Americans. The sugar
it was supposed to export to the US was forcibly expropriated. Thus,
Banco Nacional, the assignee of the bills of exchange pursuant to the
transaction was refused payment by the purchaser of the sugar; now it
goes before US courts, alleging that the acts of Cuba contravene IL and
bringing forth a claim against the same.
Issue:
W/N US SC can rule on the propriety of Cubas expropriation - No
Held:
No.
The act of state doctrine must be applied. Every sovereign state is
bound to respect the acts of another done w/in its own territory and shall
not interfere w/ the same. The courts of one country are bound to
abstain from interfering w/ such acts of foreign states w/in their
jurisdiction especially if the Executive Branch refuses to act. This is
demanded by the highest considerations of comity and expediency. If IL
does not demand the application of the rule, neither does it forbid its
application even if the act complained of violates IL. Offensive to the
public policy of the US the expropriation may be, however, both the
national interest and progress and the rule of law among nations are
best served by maintaining intact the act of state doctrine.
Dissent of Justice White:
The act of state doctrine does not require the courts to decide cases in
utter violation of IL and to the prejudice of the rights of the litigants.
Deference to the doctrine was not meant to be absolute. The rule may
be applied if there is no clear violation of the rules of IL. But in this case,
there was a clear and blatant violation of IL the measure was
retaliatory and discriminatory. To the proscription against arbitrary
discrimination, there is already agreement among all nations. All
exercise of sovereign power must conform to the rules of IL. Neither has
the US Executive Branch requested the judiciary to defer; on the
contrary, it terminated diplomatic relations w/ Cuba. In this case, the US
blindly adhered to the act of state rule and argued for the rule of non-
examination.
Note:
Under the Foreign Assistance Act of the US, enacted a year after this
decision (1965), Congress decreed that no court shall decline to make a
determination on the merits based on the act of state doctrine if the act
 of the foreign state is in patent violation of IL, principles of
compensation, or other standards set forth therein. The US may also
suspend any assistance to such government if the latter is a beneficiary
of the US and it nationalised or expropriated properties arbitrarily or
repudiated valid agreements, or imposed discriminatory taxes and other
such measures.
Alfred Dunhill of London v. Republic of Cuba
US SC did not apply the act of state doctrine to this case wherein the Cuban
Government failed to return to Alfred Dunhill of London funds mistakenly paid
by dunhill for cigars that had been sold to Dunhill by certain expropriated
Cuban cigar businesses.
The act relied upon by Cuba was an act arising out of the conduct by Cubas
agents in the operation of cigar business for profit.
Facts:
Dunhill was an importer of cigars from Cuba. The Cuban corporations
w/c exported the cigars to Dunhill were expropriated by the Cuban
Government. Agents of the Cuban Government continued to ship cigars
to the
US to w/c Dunhill made appropriate payments. It turned out that the US
courts did not give effect to the foreign confiscations w/o compensation.
As to the accounts owing at the time of the intervention of the agents of
Cuba, they were adjudged to be lawfully owed to the former importers.
Now the former importers and rightful payees are claiming from Dunhill
the amounts mistakenly paid by the latter to Cuba, w/c had no right to
claim the same and w/c repudiates the Dunhills claim for
reimbursement invoking the act of state doctrine.
Issue:
W/N Cuba is excused from paying the rightful payees by virtue of the act
of state doctrine - No
Held:
No.
The contention of Cuba is untenable. The mistaken payments gave rise
to quasi-contract. The act of state rule is inapplicable in this case and
should not be extended to validate the repudiation of purely commercial
obligations. They are not public and sovereign acts or those carried out
in the exercise of governmental authority. The restrictive theory was
applied in this case. A mere assertion of the act of state doctrine will not
suffice. It has also been opined in an appendix to this case that the
Sabbatino Ruling should be reexamined.
Buttes Gas and Oil Co. and Another v. Hammer and Another
In a litigation instituted in the UK between 2 petrol companies, there were
allegations of conspiracy to cheat and defraud the UK involving foreign rulers
in the Persian Gulf region.
The plaintiffs Buttes applied for an order that the court should not exercise
jurisdiction in respect of specified matters said to ba Acts of state of the
governments of Sharjah, Um al Qaiwan, Iran and the UK.
The issue arose from a press conference given in London by Dr. Hammer
 wherein he accused Buttes of using improper methods and colluding with the
rulers of Sharjah to backdate a decree by the ruler extending the territorial
waters of Sharjah from 3 miles to 12 miles so as to obtain for themselves a
benefit of the oil-bearing deposit at the location which DR. Hammer claimed
was discovered by and belonging to a competitor of Buttes.
It was held that the court cannot entertain the silt for it would bring to trial non-
justiciable issues
Facts:
Iran, Umm al Qaiwain (UAQ), and Sharajah laid claim to certain portions
of the Abu Musa (a portion of the Arabian Gulf). The area was oil rich.
Sharajah backdated a Decree extending to 12 miles (formerly 3 miles)
from the island its territorial waters, obtaining the oil-bearing deposits
therefrom. Buttes Gas was able to obtain a concession for the exclusive
exploitation of the area. Occidental and Dr. Hammer allege that Buttes
conspired w/ Sharajah and inducing the latter to backdate the decree for
the purpose of defrauding Occidental (among others), the
concessionaire who allegedly discovered the deposits. Occidentals
concession was later terminated by UAQ and is now permanently
deprived of its rights to exploitation. It sues for damages against Buttes
and alleges that the agreements between the said Persian Territories
delineating their interests to the disputed area are fraudulent, unlawful,
and void.
Issue:
W/N UK courts can rule on the matter - No, because of act of state
Held:
No
The act of state doctrine applies in this case. The (English) courts will
not adjudicate upon the transactions among foreign states and this is
a settled principle of law. Further, to resolve this case would require the
court to make a pronouncement as to the boundary agreements
(territorial water limits, continental shelf allocations) between states
w/c the English court cannot do, especially in the context of a dispute
between private parties. Occidental may have been deprived of its
rights, but this case involves actions of sovereign states. For reasons
above stated, the action of Occidental must fail as it raises non-
justiciable issues.
Vinuya v. Romulo
Espousal of claim on behalf of the Malaya Lolas is discretionary upon the
State
Peace treaty of 1951 satisfied the claims
Facts:
Petitioners belong to an organisation called MALAYA LOLAS who were
comfort women during the Second World War. They are now seeking
the aid of the respondents (DFA, DOJ, OSG) in order for them to file a
claim for compensation against the Japanese officials and military.
However, respondents declined.
Issue:
 w/n the Executive committed GADALEJ in not espousing the claims of
the petitioners.
Held:
SC held that no, there was no grave abuse of discretion. The Executive
Department, particularly the president has discretion on whether or not
they shall pursue a claim against another government. Foreign relation
is a pure political question in which the courts cannot take cognizance
of. The President is presumed to know the conditions abroad because
of his agents abroad (like diplomats) and thus, can deal with them
properly. In this case, our country has chosen to waive all claims against
Japan to preserve the stability of our relations with them and they have
declared that this is in the best interest of our country.
(Note: For speed reading, you may read the facts and then the SC RULING
immediately, all bullet points in between are only historical facts to
summarise these facts -- comfort women system has faced several lawsuits
abroad (they were dismissed), been the subject of several UN reports, there
were resolutions by different government across the globe all stating that
Japan should acknowledge their liability without qualification and apologize for
the same which they did in several letters and communications and they have
established the Asian Womens Fund to compensate for the victims)
Absent the consent of states, an applicable treaty regime, or a directive by the
Security Council, there is no non-derogable duty to institute proceedings
against Japan.

Module 20: Resolution of disputes Use of Force

Bernas

Use of Force
International law recognises the autonomy of individual states and their right to
freedom from coercion and to the integrity of their territory.
The basic principle is found in Article 2(4) of the UN Charter: All
Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the
United Nations.
It is noteworthy that the text does not use the word war.
The word war is a technical term which does not include some
uses of force. The prohibition in the Charter therefore broader
than the prohibition of war. Similarly, it should be noted that the
text does not merely prohibit the use of force against the
territorial integrity or political independence of any state. The text
broadly prohibits the use of force in any other manner
inconsistent with the Purposes of the United Nations. It does
yield the meaning of a very broad prohibition of the use of force
because the purposes of the United Nations, as found in Article 1
 of the Charter, go beyond merely the protection of the territorial
integrity and political independence of states.
The prohibition of the use of force, however, is not just conventional law. It is
customary international law.
Threat of Force
The Charter prohibits not just the use of force but also the threat of force.
The most typical form of this threat is the ultimatum in which the State to
which it is addressed is given a time-limit within which to accept the
demands made upon it and is told that, if it rejects the demands, war will
be declared on it or certain coercive measures such as a naval
blockade, bombardment, or occupation of a given territory, will be taken.
However, the threat to use force is not always made in so crude and
open a form. There are sometimes veiled threats that may be very
effective, but are difficult to detect.
Advisory opinion on the Legality of the Threat or Use of Nuclear Weapons
This prohibition of the use of force is to be considered in the light of
other relevant provisions of the Charter. In Article 51, the Charter
recognizes the inherent right of individual or collective self- defence if an
armed attack occurs. A further lawful use of force is envisaged in Article
42, whereby the Security Council may take military enforcement
measures in conformity with Chapter VII of the Charter.
The entitlement to resort to self-defence under Article 51 is subject to
the conditions of necessity and proportionality.
there is a specific rule whereby self-defence would warrant only
measures which are proportional to the armed attack and
necessary to respond to it, a rule well-established in customary
international law
In order to lessen or eliminate the risk of unlawful attack, States
sometimes signal that they possess certain weapons to use in self-
defence against any State violating their territorial integrity or political
independence. Whether a signaled intention to use force if certain
events occur is or is not a threat within Article 2, paragraph 4, of the
Charter depends upon various factors. The notions of threat and use
of force under Article 2, paragraph 4, of the Charter stand together in
the sense that if the use of force itself in a given case is illegal for
whatever reason the threat to use such force will likewise be illegal.

Extended Outline

Use of Force
General
1. Grotious, on the rights of war and peace (1901)
From the law of nature or law of the nations, all kinds of war are
not to be condemned.
Certain formalities, attending war, were introduced by the law of
nations, which formalities were necessary to secure the peculiar
privileges arising out of the law.
Thus, there is a distinction between a war with the usual
 formalities of the law of nations, which is called just or perfect,
and an informal war, which does not for that reason cease to be
just, or agreeable to right.
By the law of the nations, says Livy, provision is made to repel
force by arms.
And Florentinus declares, that the law of the nations allows us to
repel violence and injury, in order to protect our persons.
2. General Treaty for the Renunciation of War
Protocol, signed at Moscow, February 9, 1929, between Estonia,
Latvia, Poland, Romania and the USSR, for the immediate entry
into force of the Treaty of Paris of August 27, 1928, regarding the
renunciation of war as an instrument of National Policy

Important provisions

Article I
- The Treaty for the renunciation of war as an instrument of
national policy, signed at Paris on August 27, 1980, a copy of
which is attached to the present protocol as an integral art of that
instrument
- It shall come into force between the Contracting Parties after
the ratification of the said Treaty of Paris of 1928 by the
competent legislative bodies of the respective Contracting Parties

Article II
The entry into force in virtue of the present Protocol, of the Treaty
of Paris of 1928 in reciprocal relations between the Parties to the
present Protocol shall be valid independently of the entry into
force of the Treaty of Paris of 1928 as provided in Article III of the
last named Treaty

Article III
The present Protocol shall be ratified by the competent
legislative bodies of the Contracting Parties, in conformity with the
requirements of their respective constitutions
The instruments of ratification shall be deposited by each of
the Contracting Parties with the Government of the USSR within
one week of the ratification of the present Protocol by the
respective parties
The date of deposit shall be the date the present Protocol will
come into force between those two Parties
USSR shall notify the deposit of several ratifications to all the
signatories to the present Protocol

Article IV
To give effect to Article I of the Protocol, each of the High
Contracting Parties shall immediately notify the Government of
 the USSR and all the other parties through the diplomatic channel

Article V
This shall be open for the accession of the Governments of all
countries
Notification shall be made in the name of the USSR, and
immediately shall be put into force

Article VI
The entry into force of the Treaty of Paris, between the
acceding State and all the other parties to the said Protocol, shall,
be effected in the way laid down in Article IV of the Protocol
The Protocol has been drawn up in a single copy, an
authentic copy of which shall be communicated by the Govt of
USSR to each of the signatory or acceding State
3. Briand-Kellog Pact
Annex
The President/King/Emperor of: Germany, USA, Belgium,
France, Great Britain, Ireland, Poland, Italy, Japan,
Czechoslovakia, promote the welfare of mankind
Peaceful and friendly relations between their peoples may be
perpetuated
All changes in their relations must be sought only by pacific
means
And have decided to conclude a Treaty

Article I
The High Contracting Parties declare in their names that they
condemn recourse to war for the solution of international
controversies, and renounce it as an instrument of national policy
in their relations with one another

Article II
Settlement of resolution of disputes shall never be sought
except by pacific means

Article III
The present Treaty shall be ratified by the High Contracting
Parties as named in the Preamble and shall take effect as soon
as deposited at Washington
It shall be the duty of the Govt of the USA to furnish each
Govt named in the Preamble and every Govt adhering to this
Treaty with a certified Copy of the Treaty and of every instrument
of ratification or adherence and shall notify such govts
immediately upon the deposit with it of each instrument of
ratification or adherence
4. Charter of the UN, Art. 2, 3, 4, 39-42
 Article II
3. All members shall settle their international disputes by peaceful
means in such a manner that international peace and security,
and justice, are not endangered
4. All Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political
independence of any state, or in any other manner inconsistent
with the Purposes of the UN

CHAPTER VII
Action with respect to threats to the peace, breaches of the
peace, and acts of aggression

Article 39
The Security Council (SC) shall determine the existence of
any threat to peace, or act of aggression
And shall make recommendations, or decide what measures
shall be taken in accordance with Articles 41 and 42, to maintain
or restore international peace and security

Article 40
To prevent aggravation of the situation, the SC may call upon
the parties concerned to comply with such provisional measures
as it deems necessary or desirable
It shall be without prejudice to the rights, claims, or position of
the parties concerned
The SC shall duly take account of failure to comply with such
provisional measures

Article 41
The SC may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and
it may call upon the Members of the UN to apply such measures
It may include partial or complete interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other
means of communication, and the severance of diplomatic
relations

Article 42
If the measures provided for in Article 41 are inadequate, it
may take such action necessary to maintain or restore
international peace and security
It may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the UN
5. GA Resolution 3314 on the definition of aggression
Article I
Aggression is the use of armed force by a State against the
sovereignty, territorial integrity or political independence of
another State, or in any other manner inconsistent with the
Charter of the UN, as set out in this definition
The term State is used without prejudice to questions of
recognition or to whether a State is a member of the UN, and
includes the concept of a group of States where appropriate

Article II
The first use of armed force in contravention of the Charter
shall constitute prima facie evidence of an act of aggression
although the SC may in conformity with the Charter conclude that
a determination that an act of aggression has been committed
would not be justified in the light of other relevant circumstances
including the fact that the acts concerned or their consequences
are not of sufficient gravity

Article III
Any of the ff acts, regardless of a declaration of war, shall, subject
to and in accordance with the provisions of Article 2, qualify as an
act of aggression:

a. The invasion or attack by the Armed Forces (AF) of a State

of the territory of another State, or any military occupation,
however temporary, resulting from such invasion or attack, or any
annexation by the use of force of the territory of another State or
part thereof
b. Bombardment by the AF of a State against a territory of
another State or the use of any weapons by a State against the
territory of another State
c. The blockade of posts or coasts of a State by the AF of
another State
d. An attack by the AF of a State on the land, sea or air forces,
marine or air flects of another State
e. The use of AF of one State, which are within the territory of
another State with the agreement of the receiving State, in
contravention of the conditions provided for in the agreement or
any extension of their presence in such territory beyond the
termination of the agreement
f. The action of a State in allowing its territory, which it has
placed at the disposal of another State, to be used by that other
State for perpetrating an act of aggression against a third State
g. The sending by or on behalf of a State of the armed bands,
groups, irregulars or mercenaries, which carry out acts of armed
force against another State of such gravity as to amount to the
acts listed above, or it substantial involvement therein

Article 4
 Acts enumerated above are not exhaustive and the SC may
determine other acts that constitute aggression

Article 5
No consideration of whatever nature may serve as
justification for aggression
A war of aggression is a crime against international peace.
Aggression gives rise to international responsibility
No territorial acquisition or special advantage resulting from
aggression are or shall be recognized as lawful

Article 6
Nothing in this definition shall be construed as in any way
enlarging or diminishing the scope of the Charter including its
provisions concerning cases in which the use of force is lawful

Article 7
Nothing in this definition, and in particular article 3, could
prejudice the right to self-determination, freedom and
independence, as derived from the Charter, of peoples forcibly
deprived of that right and referred to in the Declaration on
Principles of IL concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the UN
Nor the right of these peoples to struggle to that end and to
seek and receive support, in accordance with the Principles of the
Charter and in conformity with the above-mentioned Declaration

Article 8
The above provisions are interrelated and each provision
should be construed in the context of the other provisions
6. Pro-democratic invasion
This article is all about Reismans interpretation of Art. 2(4) of the
UN Charter, which refers to the use of force.
He argues that the use of force is a means by which self-
determination, which is the paramount goal of IL according to
Reisman, may be achieved.
He proposes to re-interpret Art. 2(4):
(1) That the rule against force is dependent on an
effective UN collective security system.
UNs failure to prevent unilateral recourse to
force has made unilateral self-help necessary.
Further, some unilateral coercion is legitimate;
hence, not all unilateral recourse to force
should be condemned.
(2) It is also true that verbal condemnation in the UN
of the use of force is not always accompanied by
effective sanctions.
 As such, Reisman says that 2(4) must be reinterpreted to
allow force in a good cause (popular rule).
It must be applied to increase the probability of the free
choice of peoples about their government and political
structure.
Where a repressive government deprives its people
of their free choice, a foreign state should be legally
entitled to use force to bring about the desirable end
of on-going self-determination.
Schachter, on the other hand, says that this argument must be
REJECTED.
There has been a general agreement that the rule against
unilateral recourse to force (except in self-defence) is a
fundamental tenet of IL.
It is JUS COGENS.
To re-interpret it is a radical departure from that principle.
Furthermore, any invasion, however brief, violates the essence of
territorial integrity.
And for a foreign power to overthrow the government of an
independent state, that is against the states political
independence.
It would give the powerful states an almost unlimited right to
overthrow government alleged to be unresponsive to the popular
will or to the goal of self-determination.
Arguments such as Reismans may influence the policy in favor of
armed intervention, which should be not become a norm of IL.

Module 21: Laws of Wars

Bernas

The Law of War (International Humanitarian Law)

What used to be known as the Laws of War now come under what is called
International Humanitarian Law.
It provides for instances when the use of armed force is justifiable (jus
ad be Hum) and it regulates the conduct of armed conflict (jus in bello).
Early international law did not consider as illegal a war admittedly waged for
purposes of gaining political or other advantages over another state.
War was in law a natural function of the State and a prerogative of its
uncontrolled sovereignty.
There were early attempts to outlaw war such as
1. in the Hague Convention II (1907),
2. in the Covenant of the League of Nations (1919), and
3. in the Kellog-Briand Pact for the Renunciation of War (1928).
But these did not prevent the horrors of World War II. It was after World
War II that a more effective law on preventing war was formulated.
 Art. 2(4) of the UN Charter
All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the
United Nations
The paradox, however, is that side by side with the prohibition of armed conflict
is the proliferation of laws of war.
Three facts can explain the paradox:
1. those who resort to the use of arms do not give up until they have
achieved victory;
2. given the first fact, humanitarian considerations dictate the need
for rules which curtail violence beyond what is necessary to
achieve a states goal;
3. there still remains in the hearts of the soldiery an acceptance of
chivalry as a value
The Hague Law
Early laws of war were customary. At present the laws are largely
conventional. In 1899, twenty-six countries met at The Hague and promulgated
Conventions and Declaration
The Geneva Conventions of 1949
One of the most significant developments in the law of armed conflicts was the
adoption in 1949 of four Geneva Red Cross Conventions governing:
I Wounded and Sick in the Field;
II Wounded, Sick and Shipwrecked at Sea;
III Prisoners of War;
IV Civilians. The Convention on civilians is completely new and is the
result of the experience of civilians in occupied territory during World
War II.
The essence of the Geneva conventions is that persons not actively engaged
in warfare should be treated humanely. The rules apply to any international
armed conflict, whether a declared war or not.
Customary and Conventional Law
Much of what is embodied in the Hague and Geneva Conventions are
customary law.
Thus, non-parties to the Convention are covered by the customary law
of armed conflict.
It has in fact become common practice, when one of the parties to the
conflict is not a party to the conventions, for such party to make a
declaration that it will abide by the terms of the Convention.
Japan, for instance, did just that at the outbreak of the Pacific War.
Commencement and termination of hostilities
Under the Hague Convention III, for an armed conflict to be considered
a war in a legal sense, the hostilities should be preceded by a
declaration of war or an ultimatum with a fixed limit.
Since 1939, however, most armed conflicts have commenced
without a declaration or ultimatum.
1. With the exception of the attack on Poland, Germanys
 attack on other states was done without benefit of
declaration.
2. So was Japans attack on Pearl harbour.
For that matter, as far as the UN Charter is concerned, there is no
provision requiring a declaration of war or an ultimatum. Normally,
however, the victims of the attack respond with a declaration of war.
The commencement of hostilities result
1. in the severance of all normal relations; Political and economic
treaties are terminated. However, treaties of a humanitarian
character remain in force.
2. Nationals of a combatant state residing in enemy territory become
subject to restrictions which the enemy might impose subject to
limitations found in customary or treaty law.
3. Merchant vessels found in enemy territory are given a period of
grace to depart.
When does the conflict terminate?
There is some conflict as to when armed conflict actually ends.
But the clearest method of termination is by means of a peace
treaty.
Nevertheless, even in the absence of a peace treaty, once the
combatant states have made a declaration that hostilities have
come to an end, the armed forces are bound by such declaration.
Armistice, however, which is an agreement to suspend hostilities,
whether local or general, does not end the conflict. But it puts an
end to active fighting in accordance with the terms of the
agreement.
Protocol 1
created a new category of international armed conflict. It includes within
the definition of international armed conflict
armed conflicts in which peoples are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of
International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United
Nations
Those engaged in such a conflict receive combatant status and are
entitled to combatant rights and duties. For instance, when captured,
they are not to be treated as ordinary criminals but as prisoners of war.

Module 22: Concepts of self-defence and self-protection

Bernas

Individual and Collective Self-defense

The general prohibition on the use of force does not preclude the right to self-
defence
Art. 51
Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self- defence
shall be immediately reported to the Security Council and shall not in
any way affect the authority and responsibility of the Security Council
under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and
security.
In Nicaragua v. USA
non-use of force = CIL
self-defence (an inherent right) is an exception to the rule on non-use of
force
However, whether the response to an attack is lawful depends on the
observance of the criteria of the necessity and the proportionality of the
measures taken in self-defence.
Whether self-defence be individual or collective, it can only be exercised
in response to an armed attack. In the view of the Court, this is to be
understood as meaning not merely action by regular armed forces
across an international border, but also the sending by a State of armed
bands on to the territory of another State, if such an operation, because
of its scale and effects, would have been classified as an armed attack
had it been carried out by regular armed forces.
The Court does not believe that the concept of armed attack includes
assistance to rebels in the form of the provision of weapons or logistical
or other support. Furthermore, the Court finds that in customary
international law, whether of a general kind or that particular to the inter-
American legal system, there is no rule permitting the exercise of
collective self-defence in the absence of a request by the State which is
a victim of the alleged attack, this being additional to the requirement
that the State in question should have declared itself to have been
attacked.
Is anticipatory self-defence allowed?
Opinions are divided
Those who say yes claim that the phrase if an armed attack occurs is
not exclusive
1. It will be recalled that Israel launched a preemptive strike against
its Arab neighbours in 1967 but the United Nations did not
condemn the act.
2. The Nicaragua case, even with its extensive discussion of self
defense, did not mention anticipatory self-defence.
3. In the case of the Gulf War against Iraq, the Allied forces came on
invitation of Kuwait which was under invasion.
4. The right to use force to defend claimed territory was rejected in
 the Falkland war.
5. An interesting development in the wake of the September 21
attack on the World Trade Center is that Article 51 seems to have
been used to justify a response against a non-state aggressor.
The coalition of forces which joined the United States in the
attacks on Afghanistan had the blessing of the General Assembly,
the Security Council, and of NATO.

Module 23: Legality of reprisals

Bernas

Traditionally allowable coercive measures

Certain forms of coercive measures or self-help have been traditionally been
allowed.
1. Since there is no obligation to maintain diplomatic relations, severance
of diplomatic relations is not prohibited
Severance is different from suspension which merely involves the
withdrawal of diplomatic representation but not of consular
representation
Severance can endanger peace
2. Retorsion
any of the forms of counter-measures in response to an unfriendly
act.
Examples:
1. shutting of ports to vessels of an unfriendly state,
2. revocation of tariff concessions not guaranteed by treaty, or
3. the display of naval forces near the waters of an unfriendly
state
3. Reprisal
denotes any kind of forcible or coercive measures whereby one
State seeks to exercise a deterrent effect or obtain redress or
satisfaction for the consequences of the illegal act of another
state which has refused to make amends for such illegal acts.
the acts of reprisal, unlike retorsion, would normally be illegal.
reprisal must be preceded by an unsatisfied demand for
reparation
4. Embargo
a lawful measure which can consist of
seizure of vessels even in the high seas
keeping own vessels for fear that it might find their way in
foreign territory
collective embargo on import of drugs or of oil
5. Boycott
suspension of trade or business relations with the nationals of an
offending state
 6. Non-intercourse
suspension of all commercial intercourse
7. Pacific blockade
naval operation carried out in time of peace whereby a state
prevents access to or exit from particular ports or portions of the
coast of another state for the purpose of compelling the latter to
yield to demands made by the blockading state.
legal but warlike act frowned upon by the UN Charter

Module 26: Judicial and Arbitral Settlement ICJ

Bernas

ICJ
The UNs principal judicial organ is the International Court of Justice. It is the
successor to the Permanent Court of International Justice established by the
League of Nations.
It came into being in 1945 through the Statute of the Court. All members
of the UN are ipso facto parties to the Statute of the International Court
of Justice.
Being party to the Statute, however, does not mean acceptance of the
jurisdiction of the Court. It simply means that the state may accept the
jurisdiction of the court.
The Statute opens the courts door to member states. Only states may be
parties in the court.
Composition of the Court
Art. 2
The Court shall be composed of a body of independent judges,
1. elected regardless of their nationality
2. from among persons of high moral character,
3. who possess the qualifications required in their respective
countries for appointment to the highest judicial offices, or are
jurisconsults of recognised competence in international law.
Art. 3
shall consist of 15 members, not 2 are nationals of the same state
a national of more than one state shall be deemed to be a national of
the one in which he ordinarily exercises civil and political rights.
Art. 4
elected by GA and SC; nominated by national groups
Art. 16
no other involvement:
political/administrative functions
occupation
Art. 19
diplomatic immunity
Art. 21
 president, VP, registrar - 3yr term with re-election
Art. 26
Court may form one or more chambers dealing with particular categories
of cases like labor or transit and communications
Art. 27
judgment of chambers shall be considered rendered by the Court
Art. 31
judges who have same nationality as parties in the case are not
disqualified
Art. 34
only states may be parties
Art. 36
jurisdiction: recognition of compulsory jurisdiction declaration by
member
Art. 39
language = french and english, except: request by one party for another
language
Art. 43
written and oral proceedings
Art. 55
majority ruling
Art. 60
bindingness of decision: only between parties and in that particular case
Art. 61
no appeal
Art. 61
revision of judgment: discovery of some fact (newly discovered
evidence) w/in 6 months from discovery but not more than 10 years
Art. 62
motion to intervene allowed
Art. 65
Advisory opinions - request by a body based on UN Charter
Jurisdiction of ICJ: Contentious jurisdiction
2 types of jurisdiction of ICJ
1. contentious
2. advisory
Contentious
Art. 36
1. The jurisdiction of the Court comprises all cases which the
parties refer to it and all matters specially provided for in the
Charter of the United Nations or in treaties and conventions in
force.

2. The states parties to the present Statute may at any time

declare that they recognize as compulsory ipso facto and without
special agreement, in relation to any other state accepting the
same obligation, the jurisdiction of the Court in all legal disputes
 concerning:

a. the interpretation of a treaty;

b. any question of international law;

c. the existence of any fact which, if established, would constitute

a breach of an international obligation;

d. the nature or extent of the reparation to be made for the breach

of an international obligation.

3. The declarations referred to above may be made

unconditionally or on condition of reciprocity on the part of several
or certain states, or for a certain time.

4. Such declarations shall be deposited with the Secretary-

General of the United Nations, who shall transmit copies thereof
to the parties to the Statute and to the Registrar of the Court.

5. Declarations made under Article 36 of the Statute of the

Permanent Court of International Justice and which are still in
force shall be deemed, as between the parties to the present
Statute, to be acceptances of the compulsory jurisdiction of the
International Court of Justice for the period which they still have to
run and in accordance with their terms.

6. In the event of a dispute as to whether the Court has

jurisdiction, the matter shall be settled by the decision of the
Court.
jurisdiction of the ICJ is applicable only to disputes between states and
disputes are settled by international law and not by domestic law. But the Court
has jurisdiction only when a case is referred to it by the parties.
3 ways through which states may accept jurisdiction of the court
1. ad hoc basis
This can happen when one party applies unilaterally to the Court
and this application is followed by consent by the other state.
2. when parties adhere to a treaty which accepts the jurisdiction of the
court on matters of interpretation or application of the treaty
3. acceptance of jurisdiction can take place by a unilateral declaration that
recognition of jurisdiction in relation to any other state accepting the
same jurisdiction in all legal disputes.
The optional system is operative only for states that at any time
declare that they recognise as compulsory ipso facto and without
special agreement, in relation to any other state accepting the
same obligation, the jurisdiction of the Court in all legal disputes
concerning: a. the interpretation of a treaty; b. any question of
international law; c. the existence of any fact which, if established,
would constitute a breach of an international obligation; d. the
nature or extent of the reparation to be made for the breach of an
international obligation.
The Declaration in the optional system may be made
unconditionally or on condition of reciprocity on the part of several
or certain states, or for a certain time. States therefore can limit
the extent to which they are subjecting themselves to the
jurisdiction of the court
This last creates the optional system of submitting to the
jurisdiction of the Court. only applies for Art. 36(2)
Aerial Incidence Case US v. Bulgaria
Facts:
US acceded to the optional clause, thereby
accepting the compulsory jurisdiction of the ICJ.
During the ratification process for that accession,
however, US Senator Connally made a reservation
including disputes with regard to matters which are
essentially within the domestic jurisdiction of the US
as determined by the US.
An Israel airliner was driven off course by strong
winds in very bad weather. The plane innocently
crossed over into Bulgarian air space. While trying to
return to its authorized course, the plane was shot
down by Bulgarian military fighter planes. All fifty-one
passengers and seven crew members aboard were
killed, including six American nationals.
Israel filed a case before the ICJ which ruled that
it did not have jurisdiction on the grounds that
Bulgarias acceptance of the optional clause in
the Statute of the Permanent Court of
International Justice (the PCIJ, precursor to
the ICJ) did not carry over its acceptance of
the optional clause for the ICJ when Bulgaria
joined the UN in 1955, since Bulgaria was not
an original party to the UN Charter and Statute
of the ICJ
Despite this, US still pressed its claim and also filed
before the ICJ against Bulgaria.
Bulgaria invoked the Connally Amendment
(reservation)
Held:
On the grounds of reciprocity and the consensual
basis of ICJ jurisdiction, Bulgaria invoked the
Connally Amendment reservation exempting from
ICJ jurisdiction matters within its internal
competence.
 Bulgaria contended that its airspace security and
anti- aircraft defenses were within its domestic
jurisdiction. The Bulgarian government argued
further that it cannot admit that matters which it
rightfully determines as being essentially within its
domestic jurisdiction should be considered, directly
or indirectly, before the Court.
It requests, accordingly, that the Court declare itself
without competence to adjudicate upon the
application of the Government of the United States.
The United States withdrew its application from the
Courts consideration. On May 30,1960, just one day
before oral hearings were to begin, the Court
formally accepted that withdrawal, ending the
dispute.
Nicaragua v. US
Facts:
The US made an Optional Clause Declaration with a
reservation that
this declaration shall remain in force for a
period of five years and thereafter until the
expiration of six months after notice may be
given to terminate this declaration
When it became clear that its dispute with Nicaragua
would be placed before the ICJ, the US notified the
UN Sec Gen that
the aforesaid declaration shall not apply to
disputes with any Central American State or
arising out of or related to events in Central
America, any of which disputes shall be
settled in such manner as the parties to them
may agree.
It appears that Nicaragua made an earlier
declaration under the Statute of the PCIJ to the
effect that it was accepting the same obligation
(obligation under the Optional Clause = consenting
to the Optional Clause of the US)
Held:
ICJ has jurisdiction over the case despite the
notification made by the US.
The Court points out that the most important
question relating to the effect of the 1984 notification
is whether the United States was free to disregard
the six months notice clause which, freely and by its
own choice, it has appended to its declaration, in
spite of the obligation it has entered into vis-a-vis
other States which have made such a declaration.
 The Court said that since the Nicaraguan declaration
had no time limit, Nicaragua and US by its
Optional Clause have submitted to ICJ
Jurisdiction.
Nicaragua can invoke the six months notice against
it, not on the basis of reciprocity, but because it is an
undertaking which is an integral part of the
instrument that contains it. The 1984 notification
cannot therefore override the obligation of the United
States to submit to the jurisdiction of the Court vis-a-
vis Nicaragua.
Case Concerning East Timor Portugal v. Australia
Facts:
Portugal filed a case against Australia concerning
certain activities with respect to East Timor.
Portugal claims that Australia failed to observe the
obligation to respect the duties and powers of
Portugal as the administering Power of East Timor
and the right of the people of East Timor to self-
determination and the related rights.
Australia raised questions concerning the jurisdiction
of the Court and the admissibility of the Application
The Court then gives a short description of the
history of the involvement of Portugal and Indonesia
in the Territory of East Timor and of a number of
Security Council and General Assembly resolutions
concerning the question of East Timor. It further
describes the negotiations between Australia and
Indonesia leading to the Treaty of 11 December
1989, which created a Zone of Cooperation ... in an
area between the Indonesian Province of East Timor
and Northern Australia.
[it seems that Indonesia is connected in this case but
is not a party to the case]
Held:
Having carefully considered the argument advanced
by Portugal which seeks to separate Australias
behaviour from that of the Indonesia, the Court
concludes that Australias behavior cannot be
assessed without first entering into the question why
it is that Indonesia could not lawfully have concluded
the 1989 Treaty, while Portugal allegedly could have
done so; the very subject-matter of the Courts
decision would necessarily be a determination
whether, having regard to the circumstances in
which Indonesia entered and remained in East
Timor, it could or could not have acquired the power
 to enter into treaties on behalf of East Timor relating
to the resources of its continental shelf. The Court
could not make such a determination in the
absence of the consent of Indonesia.

Module 27: Judicial and Arbitral Settlement Non-judicial

Bernas

Non-judicial or diplomatic methods

Negotiation
There are no set of rules. For a negotiated settlement to be legally
binding, the parties must agree to it. The agreement to negotiate may be
formalised in a treaty or in a simple exchange of notes
A preliminary step to negotiation might good offices when a neutral
third party tries to bring the two disputants together.
Mediation
Mediation involves assistance by third parties who either act as a bridge
between parties who do not meet who may sit with the disputants to
chair meetings, suggest solutions, etc. The mediator must be approved
by both parties
Inquiry
Inquiry is fact-finding done by a designated group of individuals or an
institution. Usually resolves disputes based solely on questions of fact
Conciliation
Conciliation is a more formal technique whereby the parties agree to
refer controversies to an individual, a group of individuals or an
institution to make findings of fact and recommendations. As a rule,
parties do not agree to be bound by recommendations. But this clears
the air.
Quasi-judicial method
Arbitration
Arbitration is the binding settlement of a dispute on the basis of law by a
non-permanent body designated by the parties.
The composition, the jurisdiction and the rules of procedure to be
applied are agreed upon by the parties in a compromise
darbitrage.
States cannot be required to submit to arbitration unless there is a
previous agreement making arbitration compulsory.
Difference between arbitration and judicial settlement is that parties
have a greater say in deciding, for instance, the law to be applied and
the composition of the arbitral tribunal
3 types of arbitral agreements:
1. arbitration clause incorporated as part of a treaty
2. treaties whose sole function is to establish methods for the
arbitration of disputes
 1. ex. The Hague Convention for the Pacific Settlement of
Disputes
3. Ad hoc arbitral agreements
1. ex. the agreement for the settlement of claims between the
US and Iran
Arbitral decisions
arbitral tribunals apply international law unless the parties specify that
some other law would be applied
arbitral decisions may be challenged. the 4 most common grounds are:
1. arbitral body exceeded its powers
2. there was corruption on a member of the body
3. there was failure to state the reasons for the awards or a serious
departure from a fundamental rule of procedure
4. the undertaking to arbitrate or the compromis is a nullity
Domestic courts may refuse to give recognition to awards given by
foreign arbitral tribunals under grounds found in the Convention on the
Recognition and Enforcement of Foreign Arbitral Awards:
1. agreement to arbitrate was not valid under the applicable law
2. the party against which the award was rendered did not receive
proper notice of the proceedings or was otherwise not afforded an
opportunity to present its case
3. the award deals with matters outside the terms of the agreement
to arbitrate
4. the constitution of the arbitral tribunal or arbitral procedure was
contrary to the agreement of the parties or to the law of the state
where the arbitration took place
5. the award has not yet become binding on the parties, or has been
suspended or set aside by a competent court in the state where it
was made
6. if under the state of the court:
1. the subject matter of the controversy is not capable of
settlement by arbitration, or
2. recognition or enforcement would be contrary to public
policy

Case law:

1. Jurisdiction
1. Aerial Incidence Case
2. Nicaragua v. US
3. Case Concerning East Timor
2. Provisional Measures

PROVISIONAL MEASURES

The Court shall have the power to indicate, if it considers that

circumstances so require, any provisional measures which ought to
be taken to preserve the respective rights of either party.
 Pending the final decision, notice of the measures suggested shall be
given to the parties and to the Security Council.

Nicaragua v. US

Nicaragua applied for the issuance of provisional measures pending

the resolution of the case.

HELD: The circumstances require that provisional measures be

granted in order to preserve the rights claimed by Nicaragua. It
must be emphasized that the decision to grant the provisional
measures in no way prejudices the question of the ICJs jurisdiction
to deal with the merits of the case and leaves unaffected the right of
the US and Nicaragua to submit arguments in respect of such
jurisdiction on the merits.

Case Concerning Legality of Use of Force (Yugoslavia v. US)

The Federal Republic of Yugoslavia requested for provisional

measures against the NATO States (Belgium, Canada, Italy,
Netherlands, Portugal, Spain, UK, and US) in relation to the
bombings being carried out by the NATO forces in Yugoslavia. It
based its claim on the Genocide Convention.

HELD: Request denied.

The Court need not, before deciding whether or not to indicate them,
finally satisfy itself that it has jurisdiction on the merits of the case,
yet it ought not to indicate such measures unless the provisions
invoked by the applicant appear, prima facie, to afford a basis on
which the jurisdiction of the Court might be established.

In this case, when the US ratified the Genocide Convention, it made

a reservation requiring that before any dispute to which the US is a
party may be submitted to the jurisdiction of the ICJ under to
Convention, the specific consent of the US must be obtained. Since
the US did not give its consent, the Court has no jurisdiction. And
because it his no jurisdiction to entertain Yugoslavias application, it
also cannot indicate any provisional measure in order to protect the
rights invoked by Yugoslavia.

3. Intervention

INTERVENTION

Should a state consider that it has an interest of a legal nature

which may be affected by the decision in the case, it may submit a
 request to the Court to be permitted to intervene. The Court shall
decide upon the request.

Whenever the construction of a convention to which states other

than the parties to the case is in question, the Registrar shall notify
all such states. Every state so notified has the right to intervene in
the proceedings; but if it uses this right, the construction given by
the judgment will be equally binding upon it.

El Salvador v. Honduras Nicaragua Intervention

Nicaragua sought to intervene in a Land, Island, and Maritime

Frontier Dispute between El Salvador and Honduras.

HELD: Nicaragua is allowed to intervene.

In order to obtain permission to intervene, a State has to show an

interest of a legal nature which may be affected by the Courts
decision in the case.

El Salvador, in opposing the permission to intervene, argues that

Nicaragua must show a valid link of jurisdiction between Nicaragua
and the Parties. The Court held that this was not necessary in the
case of an intervention. The general rule is not other State may
involve itself in the proceedings without the consent of the original
parties. However, in the case of an intervention, the existence of a
valid link of jurisdiction between the would-be intervenor and the
parties is not a bar to permission being given for intervention. On
the contrary, the procedure of intervention is to ensure that a State
with possibly affected interests may be permitted to intervene even
though there is no jurisdictional link and it therefore cannot become
a party.

Procedural rights of the state permitted to intervene:

1. The intervening state does not become party to the proceedings

and does not acquire the rights or become subject to the obligations
which attach to the status of a party.

2. It has a right to be heard by the Chamber through submission of

a written statement and participation in the hearings.

International Arbitration

Cases:
Del Monte USA v. Judge Reyes, Montebueno Marketing and Sabrosa Foods

Facts:

Del Monte USA (DMC-USA) appointed Montebueno Marketing Inc (MMI) as its sole and
exclusive distributor of Del Monte products in the Philippines for 5 years.

The contract contained an arbitration clause which provides that all disputes arising out of
or relating to the agreement or the parties relationship, including termination thereof, shall
be resolved by arbitration in San Francisco City, CA, under the Rules of the American
Arbitration Association

MMIs appointment was published in several newspapers. MMI appointed Sabrosa Food Inc
with the approval of DMC-USA, as MMIs marketing arm.

Later, MMI and Sabrosa filed a complaint against DMC-USA for violation of Arts. 20, 21 and
23 of the Civil Code. MMI claims that DMC-USA authorised other importers of their products
in the Philippines despite MMIs appointment as its sole and exclusive distributor, thereby
causing MMI great embarrassment and substantial damage.

Private respondents claimed that they had exhausted all possible avenues for an amicable
resolution and settlement of their grievances; that as a result of the fraud, bad faith, malice
and wanton attitude of petitioners, they should be held responsible for all the actual
expenses incurred by private respondents in the delayed shipment of orders, the actual
expenses and cost of money for the unused Letters of Credit (LCs) and the substantial
opportunity losses due to created out-of-stock situations and unauthorised shipments of Del
Monte-USA products to the Philippine Duty Free Area and Economic zone

DMC-USA filed a Motion to Suspend Proceedings invoking the arbitration clause. RTC
denied this on the ground that it will not serve the ends of justice and to allow said
suspension will only delay the determination of the issues, frustrate the quest of the parties
for a judicious determination of their respective claims, and/or deprive and delay their rights
to seek redress.

CA affirmed.

Issue:
W/N the dispute warrants an order compelling them to submit to arbitration - No

Held:
No

DMC invokes RA 876 which provides that If any suit or proceeding be brought upon an
issue arising out of an agreement providing for arbitration thereof, the court, upon being
satisfied that the issue involved in such suit or proceeding is referable to arbitration, shall
stay the action or proceeding until an arbitration has been had in accordance with the terms
of the agreement.

MMI and Sabrosa argue that since the causes of action are rooted in Art. 20, 21 and 23 of
the Civil Code, there must be full-blown trial, which cannot be had in an arbitration.

First, arbitration is valid and constitutional in the Philippines. RA 876 expressly authorises
arbitration of domestic disputes and recognises foreign arbitration as a system of settling
commercial disputes. The Philippines also recognised this when it adhered to the UN
Convention on the Recognition and the Enforcement of Foreign Arbitral Awards of 1958.

Second, while the arbitration clause in the agreement between DMC and MMI is valid, this
petition must be denied. Since the agreement and the arbitration clause are contracts
between DMC and MMI, only they and their assignees or heirs are bound thereto. Referral
to arbitration pursuant to the agreement could be called for but only as to them, not to the
other parties to the case such as Sabrosa.

This is consistent with Salas v. Laperal which held that, In recognising the right of the
contracting parties to arbitrate or to compel arbitration, the splitting of the proceedings to
arbitration as to some of the parties on one hand and trial for the others on the other hand,
or the suspension of trial pending arbitration between some of the parties, should not be
allowed as it would, in effect, result in multiplicity of suits, duplicitous procedure and
unnecessary delay. This would be contrary to the object of arbitration to allow the
expeditious determination of a dispute.

LM Power Engineering Corp v. Capitol Industrial

Facts:

Capitol subcontracted LM regarding electrical work at the Third Port of Zamboanga. The
contract had an arbitration clause which provides that any dispute or conflict regarding the
interpretation and implementation of the contract which cannot be settled between the
parties amicably shall be settled by means of arbitration.

Later, Capitol took over some of the work contracted to LM because the latter had failed to
finish it due to its inability to procure materials. Despite this, when LM billed Capitol for the
work done, it still included the work which was taken over by Capitol. Capitol, instead of
paying the billed balance, invoked the termination clause in their contract which allowed it to
set off the cost of termination or takeover against what it owes to LM.

Because of this, LM filed a case before the RTC for collection of money.

Capitol filed a MTD arguing that there was no prior recourse to arbitration. RTC denied this.
CA reversed.

Issue:
W/N a controversy/dispute between petitioner and respondent regarding the interpretation
and implementation of the Sub-Contract Agreement requires prior recourse to voluntary
arbitration - Yes

Held:
Yes

The arbitration clause expressly provides that any dispute or conflict regarding the
interpretation and implementation of the contract which cannot be settled between the
parties amicably shall be settled by means of arbitration.

In this case, since the controversy arose from the parties dispute on w/n a takeover
occurred, w/n the expenses may be setoff, and how much are the billable accomplishments
all being disputes on the interpretation and implementation of the contract arbitration
should first be availed of.

Being an inexpensive, speedy and amicable method of settling disputes, arbitration

along with mediation, conciliation and negotiation -- is encouraged by the Supreme Court.
Aside from unclogging judicial dockets, arbitration also hastens the resolution of disputes,
especially of the commercial kind. It is thus regarded as the wave of the future in
international civil and commercial disputes. Brushing aside a contractual agreement calling
for arbitration between the parties would be a step backward.

Frabelle Fishing v. Philamlife Insurance, Philam Properties, and Perf Realty Corp

Facts:

Respondents entered into a MOA to contribute money, property and services for the
construction of the Philamlife tower in Makati. Later, they assigned all their rights and
obligations under the MOA to Frabelle, including the construction, development and
subsequent ownership of Unit 38-B thereof. Respondents also stipulated that the Frabelle
shall be deemed a co-developer.

Later, Frabelle assigned its rights to Frabelle fishing Corp.

Frabelle Fishing and respondents entered into a MOA to fund the construction of certain
floors in the building.

The dispute between the parties started when Frabelle Fishing found material
concealment on the part of respondents regarding certain details in the 1996 DOA and 1998
MOA and their gross violation of their contractual obligations as condominium developers.
These violations are: (a) the non-construction of a partition wall between Unit No. 38-B and
the rest of the floor area; and (b) the reduction of the net usable floor area from 468 sqm. to
only 315 sqm.

Frabelle Fishing then referred the matter to the Philippine Dispute Resolution Inc
(PDRCI) for arbitration. However, respondents refused to submit to its jurisdiction.
Because of this, Frabelle Fishing filed a complaint for reformation, specific performance
and damages with HLURB, alleging that the contract does not reflect the true intention of
the parties because Frabell Fishing is a mere buyer and not a co-developer.

HLURB set the initial preliminary hearing of the case. Respondents obtained a TRO from
the CA. Hence this petition.

Issue:
W/N HLURB has jurisdiction - No.
W/N the parties should initially resort to arbitration - Yes

Held

1. Only courts have jurisdiction over reformation of contracts

2. Paragraph 4.2 of the 1998 MOA mandates that any dispute between or among the
parties shall finally be settled by arbitration conducted in accordance with the Rules of
Conciliation and Arbitration of the International Chamber of Commerce. Frabelle Fishing
referred the dispute to the PDRCI but respondents refused to submit to its jurisdiction. It
bears stressing that such arbitration agreement is the law between the parties. They are,
therefore, expected to abide by it in good faith.

SC has previously held that arbitration is one of the alternative methods of dispute
resolution that is now rightfully vaunted as the wave of the future# in international
relations, and is recognized worldwide. To brush aside a contractual agreement calling for
arbitration in case of disagreement between the parties would therefore be a step
backward.

Gonzales v. Climax; and Australian Philippines Mining and Gonzales v. Judge

Pimentel and Climax

Facts:

Climax filed a petition to compel arbitration before the RTC pursuant to a contract and
addendum contract between it and Gonzales. The addendum contract contained an
arbitration clause.

Gonzales, in his answer, claimed that the 2 contracts are void because of Climaxs acts of
fraud. Gonzales asked the RTC to set the case for pretrial which it did. Climax, in a motion,
opposed this arguing that RA 876 does not authorise a pretrial or trial in an action to compel
arbitration. RTC granted this. Hence this petition under Rule 65 by Gonzales.

Issue:
W/N it was proper to compel arbitration under R.A. No. 876, to order the parties to arbitrate
even though the defendant therein has raised the twin issues of validity and nullity of the
Addendum Contract YES! Addendum agreement and Arbitration agreement are
separable!

Held:
Yes.

Disputes do not go to arbitration unless and until the parties have agreed to abide by the
arbitrators decision. Necessarily, a contract is required for arbitration to take place and to
be binding.

RA 876 recognises the contractual nature of an arbitration agreement.

Sec. 2 Persons and matters subject to arbitration.Two or more persons or parties may
submit to the arbitration of one or more arbitrators any controversy existing, between them
at the time of the submission and which may be the subject of an action, or the parties to
any contract may in such contract agree to settle by arbitration a controversy thereafter
arising between them. Such submission or contract shall be valid, enforceable and
irrevocable, save upon such grounds as exist at law for the revocation of any contract.

Del Monte case held that a provision to submit to arbitration is a contract.

Since an arbitration agreement is a contract in itself, The doctrine of separability, or

severability, enunciates that an arbitration agreement is independent of the main contract.
The arbitration agreement is to be treated as a separate agreement and the arbitration
agreement does not automatically terminate when the contract of which it is part comes to
an end.

Indeed, the doctrine denotes that the invalidity of the main contract, also referred to as the
container contract, does not affect the validity of the arbitration agreement. Irrespective of
the fact that the main contract is invalid, the arbitration clause/agreement still remains valid
and enforceable.

The separability of the arbitration clause is confirmed in Art. 16(1) of the UNCITRAL Model
Law and Art. 21(2) of the UNCITRAL Arbitration Rules

R.A. No. 876 explicitly confines the court's authority only to the determination of whether or
not there is an agreement in writing providing for arbitration. In the affirmative, the statute
ordains that the court shall issue an order "summarily directing the parties to proceed with
the arbitration in accordance with the terms thereof." If the court, upon the other hand, finds
that no such agreement exists, "the proceeding shall be dismissed."