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CHAPTER 2
INTERNATIONAL LAW AND MUNICIPAL
LAW
What are the two schools of thought that
explained the relationship between
international law and municipal law?
Monism – law is viewed as a single entity of which
“national” and “international” versions are merely
particular manifestation; believes in the oneness and
unity of all law; posits that IL and ML are simply two
components of a single body of knowledge called
‘law”
TWO MONIST THEORIES
First monist theory – holds that municipal law
subsumes and is superior to
international law
Second monist theory – holds that international
law is superior to domestic
law
Dualism – believes in thedichotomy of the law;
posits that there are certain well-established
differences between international law and municipal
law; considers IL and ML as independent of each
other, and both systems are regarded as mutually
exclusive and independent as they exist side by side
within different spheres of action-the international
plane and the domestic plane
Municipal Law in International Law
What are the indications of the recognition of
the existence of two legal systems, i.e.
municipal and international law?
1. Article 27 of the Vienna Convention on the
Law of Treaties
- “A party may not invoke the provisions of its
internal law as justification for its failure to perform
a treaty.”
2. Article 13 of the Declaration of Rights and
Duties of States adopted by the International Law
Commission in 1949
- “Every State has the duty to carry out in
good faith its obligations arising from treaties and
other sources of international law, and it may not
invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty.”
3. Article 38 of the ICJ Statute
- recognizes the common teachings of
domestic law as part of international law
International Law in Domestic Law
How does international law become part of domestic
law for “dualists”?
There are two theories:
1. Doctrine Of Transformation
Since there is distinction between municipal
law and international law, considering that they
operate separately, for international law to become
part of domestic law, it must be expressly and
specifically transformed into domestic law through
the appropriate constitutional machinery such as an
act of Congress or Parliament. This doctrine flows
by analogy from what is applicable to treaties.
Treaties do not become part of the law of a state
unless it is consented to by the state.
2 Types Of Transformation Theories
a. hard transformation theory – holds that
only legislation can transform IL into DL; courts
may apply IL only where authorized by legislation
b. soft transformation theory – holds that
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either a judicial or legislative act of a state can
transform IL into DL
2. Doctrine Of Incorporation
As an inevitable consequence of
membership in the international community, with or
without an express declaration to this effect, states
admitted to the family of nations are bound by the
rules prescribed by it for the regulation of
international intercourse. A specific rule of
International Law becomes part of the national law
without the need for express adoption. However,
other states like Austria, Germany, Korea and the
Philippines deemed it fit to include in their
respective constitution a provision affirming
recognition of the principles of international law. As
a result In the case of the Philippines, since treaties
become a part of Philippine law only by ratification,
the principle of incorporation made possible through
Article II, Section 2 of the constitution applies only
to customary law and to treaties which have become
part of the customary law.
What is the nature of the incorporation
theory that is applied by the 1987
Constitution?
The 1987 Constitution follows the
“restrictive and automatic” incorporation theory.
Restrictive, since only generally accepted
principles of IL become part of the law of the land,
and automatic, in the sense that generally accepted
principles of IL automatically become part of the law
of the land without need of an act of Congress
expressly adopting them or incorporating them as
part of domestic law.
What then is the difference between the
doctrine of transformation and doctrine of
incorporation?
The difference lies in the fact that
incorporation adopts IL into NL just because it is IL,
whereas transformation requires a deliberate act on
the part of the State concerned.
What is the “Fitzmaurice Compromise”?
This was explained by Sir Gerald
Fitzmaurice. According to him, since IL and NL
(ML) operate in different fields, they can never be in
conflict. Each one of them is supreme in its own
domain, thus any conflict or question in the
domestic sphere is resolved by domestic rules while
any conflict or question in the international field is
settled by international law.
If there is conflict between IL and DL, how
can the conflict be resolved under the
international rule?
The question on which law should prevail
depends on whether the case goes to a domestic
court or to an international tribunal. It is an
established principle that, before an international
tribunal, a state may not plead its own law as an
excuse for failure to comply with international law.
This principle of the Vienna Convention has long
been established and is generally recognized.
However, an exception is made to the rule by Article
46 of the same Convention in cases where the
constitutional “violation was manifest and
concerned a rule of its internal law of fundamental
importance.” The same article defines the violation
as “manifest if it would be objectively evident to any
State conducting itself in the matter in accordance
with normal practice and in good faith.”
If the treaty that is declared
unconstitutional, however, does not come under the
exception, the treaty can be ignored domestically but
only at the risk of international repercussions before
an international court.
How can the same conflict be resolved under
the municipal rule?
When the conflict comes before domestic
courts, domestic courts are bound to apply the local
law. Thus, should a conflict arise between an
international agreement and the Constitution, the
treaty would not be valid and operative as domestic
law.
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 Article VIII, Section 5, 2(a) recognizes the
power of the SC to declare a treaty unconstitutional.
Does a treaty declared as
unconstitutional lose its character as an
international law?
No, under the “dualist” theory, which the
Constitution accepts, the unconstitutionality of a
treaty is purely a domestic matter. As Article 27 of
the Vienna Convention on the Law of Treaties says,
“A party may not invoke the provisions of its internal
law as justification for its failure to perform a
treaty.”(Tanadavs Angara, MPH vs GSIS)
When there is conflict between
international agreement and legislation, how
shall the conflict be resolved under the
municipal rule?
The rule followed in the US and Philippines
is that treaties and statutes are equal in rank and
that, since neither is superior to the other, the rule
followed is that as between an earlier treaty and a
later law, the later one prevails.
However, the rule applies only in the
domestic sphere. The treaty, even if contrary to
later statute, remains as international law; while an
international tribunal would not have the power to
reverse the nullification of the treaty in domestic
law, it can take appropriate action in favour of an
aggrieved state.
TREATIES
What are treaties?
They represent the most deliberate form of
commitment through which governments cooperate
with one another. International agreements is the
generic term used to refer to treaties. In the absence
of an international legislative body, international
agreements are a convenient tool through which
states are able to project common expectations.
What are the other names of treaties?
Treaties can assume various names such as
conventions, pacts, covenants, charters, protocols,
concordat, modus vivendi, etc.
What is a concordat?
It is a treaty or agreement between the Pope
and a State or Government that deals with religious
matters, as well as the recognition and privileges of
the Holy See in other States.
What is the law on treaties?
The law on treaties can be found in the 1969
Vienna Convention on the Law of Treaties. It
governs treaties between states. It entered into force
in January 1980. While the document is not
retroactive in effect, it does contain customary law
precepts antedating 1969.
A Convention on the Law of Treaties
Between States and International Organizations or
Between International Organizations was adopted
on March 26, 1986. It should enter into force 30
days after the 35th ratification or accession of states.
How are treaties defined?
A treaty may be defined as a formal
agreement, usually but not necessarily in writing,
which is entered into by states or entities possessing
the treaty-making capacity, for the purpose of
regulating their mutual relations under the law of
nations. Though, treaty may be known by other
names, all agreements, when intended to create legal
as distinguished from moral obligations, are binding
on the parties.
The Vienna Convention defines a treaty as
“an international agreement concluded between
States in written form and governed by international
law, whether embodied in a single instrument or in
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two or more related instruments and whatever its
particular designation.”
The Vienna Convention applies to
international agreements that satisfy the
Convention’s definition, specifically that they be in
writing and reflective of the intention of the parties
to be bound, and governed by international law.
Are treaties not in written form valid?
While treaties are generally in written form,
there are writers who hold that even an oral
agreement can be binding. However, only written
agreements that are new, come under the provisions
of the Vienna Convention.
No particular form is prescribed. Thus, it
was held that the exchange of notes between the two
heads of state was considered an international
agreement in Qatar vs Bahrain.
What are the functions of treaties?
There are four important functions that
treaties perform, according to Schwarzenberger, to
wit:
1. Treaties enable parties to settle finally actual
and potential conflicts.
2. They make it possible for the parties to
modify the rules of international
customary law by means of optional principles or
standards.
3. They may lead to a transformation of
unorganized international society
into one which may be organized on any chosen level
of social integration.
4. They frequently provide the humus for the
growth of international customary law.
Treaties are sources of international law,
they serve as the charter of international
organizations, they are used to transfer territory,
regulate commercial relations, settle disputes,
protect human rights, guarantee investments, etc.
What are the kinds of treaties classified from
the standpoint of their relevance as source of
international law?
The following are the kinds of treaties:
1. Multilateral treaties
These are treaties open to all states of the world.
They create norms which are the basis for a general
rule of law. They are either codification treaties or
“law-making” treaties or they may have the
character of both.
2. Treaties that create a collaborative
mechanism
These can be of universal scope (e.g. regulation of
allocation of radio frequencies) or regional (e.g.
fishing agreements). They operate through the
organs of the different states.
3. Bilateral treaties
This is the largest category of treaties. Many of these
are in the nature of contractual agreements which
create shared expectations such as trade agreements
of various forms. They are sometimes called
“contract treaties.”
What are the essential requisites of a
valid treaty?
To be valid, a treaty must: be entered into by
parties with the treaty-making capacity; through
their authorized representatives; without the
attendance of duress, fraud, mistake, or other vice of
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consent; on any lawful subject-matter in accordance
with their respective constitutional processes. Thus,
the following are the essential requisites of a valid
treaty:
1. Treaty-making capacity
All states have full treaty-making capacity unless
limited by reason of their status or by previous self-
imposed inhibitions.
The protectorate is restricted in the control of its
external affairs by the protector-state; a neutralized
state may not agree to a defensive or offensive
alliance.
However, there are instances, when even mere
colonies have been allowed to sign treaties or join
international conferences as full-fledged members
along with sovereign states.
The UN and its organs, such as the Security
Council and the Economic and Social Council, and
international bodies like the WHO, may also enter
into treaties.
2. Authorized representative
It is for municipal law to determine which organ of
the state shall be empowered to enter into treaties in
its behalf.
In the Philippines, the President is authorized by the
Constitution to make treaties, subject to the
concurrence of two-thirds of all the members of the
Senate. This is in consonance with the general
practice of assigning the treaty-making power to the
executive department of the government, subject to
the consent of the legislature or one of its branches.
What is the legal effect of a treaty
concluded by an organ of the state without
constitutional authority to undertake this
function?
The Harvard Research on International Law
declared that, “A state is not bound by a treaty made
in its behalf by an organ or authority not competent
under the law to conclude the treaty; however, a
state may be responsible for an injury resulting to
another state for reasonable reliance by the latter
upon a representation that such organ or authority
was competent to conclude the treaty.” This view is
disputed by writers such as Hackworth, Hyde and
Willoughby.
McNair wrote that if a party negotiating a
treaty produces an authorization which appears to
be complete and regular although in fact
constitutionally defective, “the other party, if it is
ignorant and reasonably ignorant of the defect, is
entitled to assume that the instrument is in order
and to hold the former to the obligation of the
latter.”
3. Freedom of consent
Fraud or mistake has been uniformly recognized to
invalidate a treaty as it would an ordinary contract.
With regard to the effect of duress to the validity of
treaty, Lauterpacht stated a rule to the effect that, “
The position has now probably changed insofar as
war has been prohibited by the charter of the UN
and the General Treaty for the Renunciation of War.
The state which has resorted to war in violation of its
obligations under these instruments cannot be held
to apply force in a manner permitted by law.
Accordingly, duress in such cases must, it is
submitted, be regarded as vitiating the treaty.”
4. Lawful Subject-Matter
Treaties with unlawful subject-matter and purposes
are regarded as null and void.
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5. Compliance with constitutional
processes
The treaty-making process is governed by IL
except with respect to the method of ratification as
required by the municipal law of most states at
present. Non-compliance with this requisite will
prevent enforcement of the treaty even if already
signed by the authorized negotiators.
Treaty-making Process
What are the usual steps in the treaty-
making process?
They are: negotiation, signature,
ratification and exchange of the instruments of
ratification. The treaty may then be submitted for
registration and publication under the UN Charter,
although this step is not essential to the validity of
the agreement as between the parties.
Negotiation may be undertaken directly of
state but he may assign this task to his authorized
representatives who are provided with credentials
known as full powers. It is standard practice for
one of the parties to submit a draft of the proposed
treaty which, together with the counter-proposals,
becomes the basis of the subsequent negotiations.
The negotiations may be brief or protracted,
depending on the issues involved, and may even
“collapse” in case the parties are unable to come to
an agreement on the points under consideration.
When is a person considered as
representing a State for the purpose of
adopting or authenticating the text of a treaty
or for the purpose of expressing the consent
of the State to be bound by a treaty?
He is considered as representing the State
for said purposes if:
1. He produces appropriate pleinpouvoir (full
powers); or
2. It appears from the practice of the States
concerned or from other
circumstances that their intention was to consider
that person as representing the State for such
purposes and to dispense with full powers. (Vienna
Convention, Article 7{1})
Who are exempted from producing a
“full powers”?
In virtue of their functions, the following are
considered as representing their State without
having to produce full powers:
1. Heads of State, Heads of Government, and
Ministers for Foreign Affairs,
for the purpose of performing all acts relating to the
conclusion of a treaty;
2. Heads of diplomatic missions, for the
purpose of adopting the text of a
treaty between the accrediting State and the State to
which they are accredited;
3. Representatives accredited by States to an
international conference or to
an international organization or one of its organs,
for the purpose of adopting the text of a treaty in
that conference, organization or organ. (Vienna
Convention, Article 7{2})
If and when the negotiators finally decide on
the terms of the treaty, the same is opened for
signature. This step is intended as a means of
authenticating the instrument and for the purpose of
symbolizing the good faith of the parties. However,
it does not indicate the final consent of the state in
cases where ratification of the treaty is required.
The document is ordinarily signed in accordance
with the alternat, that is, each of the several
negotiators is allowed to sign first on the copy which
he will bring home to his own state.
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 What are the means of expressing
consent to be bound by a treaty under the
Vienna Convention?
The consent of a State to be bound by a
treaty may be expressed by signature, exchange of
instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other
means if so agreed. (Article 11)
Ratification is the formal act by which a
state confirms and accepts the provisions of a treaty
concluded by its representatives. Through
ratification, contracting parties are able to examine
the treaty more closely and it gives them the
opportunity to refuse to be bound by it should they
find it inimical to their interests. It is for this reason
that most treaties are made subject to the scrutiny
and consent of a department of the government
other than that which negotiated them.
While most treaties now expressly provide
that they shall be subject to ratification according to
the constitutional processes of the negotiating states,
the weight of authority is that the requirement
would still hold true even without a provision to this
effect in the instrument. Thus, in the absence of a
stipulation to the contrary, and more so if
ratification is expressly required, an unratified treaty
cannot be a source of obligations between the
parties.
What is the legal effect of an act
relating to the conclusion of a treaty
performed by a person who cannot be
considered under Article 7 of the Vienna
Convention as authorized to represent a
State for that purpose?
It is without legal effect unless afterwards
confirmed or ratified by that State. (VC, Art. 8)
What is alternat?
It refers to the principle which provides that
a state’s own name will be listed ahead of the other
signatory, or signatories, in its own final copy of the
treaty. It is a practice devised to handle sensitivities
over precedence and to maintain the principle of
equality between the contracting parties.
What if the treaty is ratified in
violation of the constitution of the ratifying
state, as when it has not previously received
the required approval of the legislature?
The majority view on this question is that
“foreign governments should be held to a knowledge
of the constitutional prerequisites for ratification in
each country with which they are dealing; and that a
treaty which has been ratified without proper
observance of these requisites is ipso facto invalid,
whatever the proclamation of the head of the state
may assert in that respect.” (Fenwick,436)
Is there a legal obligation to ratify a
treaty?
There is none but the refusal to ratify must
be based on substantial grounds and not on
superficial or whimsical reasons otherwise the other
state would be justified in taking offense.
At times, to avoid total rejection of a treaty,
the ratification is qualified or made conditional, i.e.
with reservations, in which event the same must be
accepted by the other party if these would constitute
a modification of the original agreement.
What are reservations?
Under Article 2 of the Vienna Convention,
reservations is defined as a unilateral statement,
however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding
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to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the
treaty in their application to that State.
When may a State party to a treaty not
be allowed to formulate a reservation?
Under Article 19 of the Vienna Convention, a
State may, when signing, ratifying, accepting,
approving or acceding to a treaty, formulate a
reservation unless:
1. The reservation is prohibited by the treaty;
2. The treaty provides that only specified
reservations, which do not include
the reservation in question, may be made;
3. In cases not falling under sub-paragraphs
(a) and (b), the reservation is
incompatible with the object and purpose of the
treaty.
Under the Philippine Constitution,
who has the power to ratify treaties?
The power to ratify treaties is vested in the
President and not, as is commonly believed, in the
legislature.
The role of the Senate is confined simply to
giving or withholding its consent to the ratification.
For that matter, it is competent for the
President to refuse to submit a treaty to the Senate
or, having secured its consent for its ratification, to
refuse to ratify it.
But as a rule, he cannot ratify a treaty
without the concurrence of two-thirds of all
members of the Senate.
The last step in the treaty-making process is
the exchange of the instruments of ratification,
which usually also signifies the effectivity of the
treaty unless a different date has been agreed upon
by the parties.
Where ratification is dispensed with and no
effectivity clause is embodied in the treaty, the
instrument is deemed effective upon its signature.
What if a treaty is not registered with
the UN Secretariat?
Under Article 102 of the UN Charter, a
treaty not registered with the Secretariat, by which it
shall be published, cannot be invoked before any
organ of the UN, such as the ICJ.
Nevertheless, the treaty does not cease to be
binding between the parties and may be the basis of
a litigation before some other arbitral or judicial
body not connected with UN.
Binding Effect of Treaties
Who are bound by treaties?
A treaty is binding only on the contracting
parties, including not only the original signatories
but also other states which, although they may not
have participated in the negotiation of the
agreement, have been allowed by its terms to sign it
later by a process known as accession.
Non-parties are usually not bound under the
maxim pactatertiisnecnocentnecprosunt.
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What are the instances when third states may
be validly held to the observance of or benefit
from the provisions of a treaty?
The following are the instances:
1. The treaty may be merely a formal
expression of customary international
law which, as such, is enforceable on all civilized
states because of their membership in the family of
nations. Ex. Hague Conventions of 1899 and 1907
2. It is provided under Article 2 of the UN
Charter that the Organization
“shall ensure that non-member States act in
accordance with the principles of the Charter so far
as may be necessary for the maintenance of
international peace and security,” and under Article
103 that the obligations of member-states shall
prevail in case of conflict with “any other
international agreement,” including those concluded
with non-members.
3. The treaty itself may expressly extend its
benefits to non-signatory states,
such as the Hay-Pauncefote Treaty of 1901, which,
although concluded only by the US and Great
Britain, opened teh Panama Canal “to the vessels of
commerce and war of all nations observing these
Rules, on terms of entire equality.”
What is the “most-favored-nation
clause”?
It is by which parties to apparently
unrelated treaties may also be linked. Under such
clause, a contracting state entitled to most-favored-
nation treatment from the other may claim the
benefits extended by the latter to another state in a
separate agreement.
Illustration: If X agrees to extend most-
favored-nation treatment to Y and thereafter grants
tariff preferences to Z under another treaty, Y will be
entitled, by virtue of its treaty with X, to enjoy the
same advantages conceded to Z.
Interpretation and Observance of Treaties
How are treaties interpreted?
The basic rule in the interpretation of
treaties is to give effect to the intention of the parties
which should be discoverable in the terms of the
treaty itself, which ordinarily has an official text or
texts to be used in case of conflicts in the
interpretation. Most treaties also contain a
“protocol” or “agreed minutes” in which certain
terms used in the body are defined and clarified.
The usual canons of statutory construction
are employed, as follows:
1. Specific provisions must be read in light of
the whole instrument and
especially of the purposes of the treaty.
2. Words are to be given their natural meaning
unless a technical sense was
intended, and, when they have different meanings in
the contracting states, should be interpreted in
accordance with the usage of the state where they
are supposed to take effect.
3. Doubts should be resolved against the
imposition of obligations and in
favour of the freedom and sovereignty of the
contracting parties.
4. At all events, an interpretation that will lead
to an absurdity is to be
avoided and a more rational result preferred.
5. Where intrinsic aids are unavailing, resort
may be made to extrinsic aids,
such as the circumstances leading to the conclusion
of the treaty, statements recorded at the time of the
negotiations, the preliminary materials used, i.e. the
travauxpreparatories, and the like.
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How may conflict in treaty interpretation be
resolved?
It can be resolved only by agreement of the
parties themselves or by an international body and
not unilaterally by the national courts of the
contracting parties. Decisions of such courts are
received with respect but not as authority.
What is pactasuntservanda?
It is a fundamental rule of international law
which requires the performance in good faith of
treaty obligations
The parties must comply with their
commitments under a treaty and cannot ignore or
modify its provisions without the consent of the
other signatories.
Willful disregard of a treaty is frowned upon
by the society of nations and is likely to stigmatize
the erring state, especially if the other contracting
parties see fit to invoke the influence of world
opinion as a means of enforcing compliance.
Violations of treaties can lead to more
drastic consequences, including war.
What may a State do when its
constitution conflicts with a treaty?
The State may:
1. Ask for revision of the treaty;
2. Amend its constitution to make it conform
to the treaty requirement; and
3. Pay damages to the other parties for its
inability to comply with its commitments.
What is the doctrine of rebus sic
stantibus?
It is the equivalent exception to the maxim
pactasuntservanda. Jessup said that “the doctrine
constitutes an attempt to formulate a legal principle
which would justify non-performance of a treaty
obligation if the conditions with relation to which
the parties contracted have changed so materially
and so unexpectedly as to create a situation in which
the exaction of performance would be
unreasonable.”
Illustration: If States A and B agree upon a
reciprocal use of their respective port facilities and
B’s only important port is thereafter ceded to State
C, A should be released from continuing to accord
the treaty privileges to B, which is no longer able to
perform its obligation.
What are the limitations to which the
doctrine of rebus sicstantibus is subject to?
They are as follows:
1. It applies only to treaties of indefinite
duration;
2. The vital change must have been unforeseen
or unforeseeable and should
not have been caused by the party invoking the
doctrine;
3. The doctrine must be invoked within a
reasonable time; and
4. It cannot operate retroactively upon the
provisions of the treaty already
executed prior to the change of circumstances.
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Invalidation, Amendment and Modification, A state, moreover, with limited exception,
Suspension and Termination of Treaties may not plead its municipal law as a ground for
invalidating a treaty that has been entered.

What are the usual grounds for

invalidation of treaties? What is the difference between
amendment and modification?

The usual ground for invalidation of

contracts can also invalidate a treaty: error of fact, Amendment is a formal revisions done with
fraud, corruption or duress. the participation, at least in its initial stage, by all the
parties to the treaty while modification involves only
some of the parties.

A violation of jus cogens (a peremptory

norm of general international law) invalidates a
treaty. (Article 53, VC) How are treaties amended?

When may a State invoke error in a A “treaty may be amended by agreement of

treaty as invalidating its consent to be the parties.” The procedure that is followed is the
bound? same as that for the formation of treaties.(Article 39,
VC)

It may be invoked if the error relates to a

fact or situation which was assumed by that State to How are treaties modified?
exist at the time when the treaty was concluded and
formed an essential basis of its consent to be bound
by the treaty.
Article 41 of the Vienna Convention provides
that:

When can a State lose the right to

assert the invalidity of a treaty?
1. two or more of the parties to a multilateral
treaty may conclude an

If after becoming aware of the facts: agreement to modify the treaty as between
themselves alone if:

a. The possibility of such modification is

1. it shall have expressly agreed that the treaty
is valid or remains in force or
continues in operation, as the case may be; or
2. it must by reason of its conduct be
considered as having acquiesced in the
provided for by the treaty; or
b. The modification in question is not
prohibited by the treaty and:
i. Does not affect the enjoyment by the other
parties of their rights under the treaty or the
performance of their obligations;

validity or in its maintenance in force or in ii. Does not relate to a provision, derogation
operation from which is incompatible with the effective
execution of the object and purpose of the treaty as a
whole.

2. Unless in a case falling under paragraph 1(a)

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the treaty otherwise provides,
the parties of their intention to conclude the
agreement and of the modification to the treaty for
which it provides.
What is material breach of treaty?
May it lead to the termination or suspension
of the operation of the treaty?
A material breach of a treaty, consists in:

How may treaties be terminated? a. A repudiation of the treaty not sanctioned by

the present convention; or
b. The violation of a provision essential to the
accomplishment of the object or purpose of the
Treaties may be terminated in any of the treaty. (Art 60,3 VC)
following ways:

A material breach of a bilateral treaty by one of the

1. By expiration of the term, which may be parties entitles the other to invoke the breach as a
fixed or subject to a resolutory ground for terminating the treaty or suspending its
operation in whole or in part.
condition.

2. By accomplishment of the purpose

A material breach of a multilateral treaty by
3. By impossibility of performance. one of the parties entitles:
4. By loss of the subject-matter.

5. By desistance of the parties, through express a. The other parties by unanimous

mutual consent; desuetude, agreement to suspend the operation of the
or the exercise of the right of denunciation(or treaty in whole or in part or to terminate it either:
withdrawal), when allowed.
i. In the relations between themselves and the
6. By novation. defaulting State, or
ii. As between all the parties;
7. By extinction of one of the parties if the
treaty is bipartite. b. A party specially affected by the breach to
invoke it as a ground for
8. By vital change of circumstances under the
suspending the operation of the treaty in whole or in
doctrine of rebus sic stantibus.
part in the relations between itself and the defaulting
9. By outbreak of war between the parties in State;
most cases, save specifically
c. Any party other than the defaulting State to
when the treaty was intended to regulate the conduct invoke the breach as a ground for suspending the
of the signatories during the hostilities, or to cede operation of the treaty in whole or in part with
territory, or to fix boundaries respect to itself if the treaty is of such a character
that a material breach of its provisions by one party
10. By voidance of the of the treaty because of radically changes the position of every party with
defects in its conclusion, respect to the further performance of its obligations
under the treaty.(Art. 60, 1 & 2)
violation of its provisions by one of the parties, or
incompatibility with international law or the UN
Charter.

13
Who has the authority to terminate the
treaty?
Logically, the authority to terminate should
also belong to the one who has the authority to enter
into the treaty.
Succession to Treaties
When one State ceases to exist and is
succeeded by another on the same territory,
is the new State bound by the commitments
made by its predecessor?
Article 16 of the 1978 Vienna Convention on
the Succession of States with Respect to Treaties that
entered into force on November 6, 1996,provides:
A newly independent State is not bound to
maintain in force, or to become a party to, any
treaty by reason only of the fact that at the date of
the succession of States the treaty was in force in
respect of the territory to which the succession of
States relates.
This is the so-called “clean slate” rule. This
rule, however, does not apply to treaties affecting
boundary regimes. Article 11 provides that a
succession of States does not as such affect: a) a
boundary established by a treaty; or b) obligations
and rights established by a treaty and relating to the
regime of a boundary.
CHAPTER 3
STATES AS SUBJECT OF INTERNATIONAL
LAW
How can subject and object of
international law be distinguished?
A subject of international law is an entity
that has rights and responsibilities under the law. It
has an international personality in that it can
directly assert rights and be held directly responsible
under the law of nations. It has the faculty of
motivation which means that it can be a proper party
in transactions involving the application of the law
of nations among members of the international
community. On the other hand, an object of
international law is the person or thing in respect of
which rights are held and obligations assumed by
the subject. It is not directly governed by
international law. Its rights are received and its
responsibilities imposed indirectly, through the
instrumentality of an intermediate
agency.(Cruz,2000)
Not all subjects of international law enjoy
the same rights and obligations. States remain the
predominant actors, but other actors have come to
be recognized.(Bernas,2009)
Commencement of existence
What are the qualifications that make
an entity a state as enumerated in the
Montevideo Convention of 1933 on Rights
and Duties of States?
The Montevideo Convention of 1933 on
Rights and Duties of States contains the
traditional statement of the characteristics which
make an entity a state. Thus, “ The state as a person
of international law should possess the following
qualifications: a) a permanent population; b) a
defined territory; c) government; d) the capacity to
enter into relations with other States.”
Hence, Philippines writers define “state” as
a community of persons more or less numerous,
permanently occupying a definite portion of
territory, independent of external control, and
possessing an organized government to which the
great body of inhabitants render habitual
obedience.(Bernas,2009)
How are states created?
An entity acquiring the four essential
elements of people, territory, government and
sovereignty is regarded in law as having achieved the
status of a state and may be treated as an
international person. The generally accepted
methods by which this status is acquired are
revolution, unification, secession, assertion of
independence, agreement and attainment of
civilization. The US was created as a result of the
revolution against British rule of the thirteen
original colonies that first formed a confederation in
14
1781 and then a federation in 1789. The state of
Italy grew out of the unification of the independent
city states of Sardinia, Florence, Naples, Rome and
others in 1870 under the so-called “principle of
nationalities.” Bangladesh became a separate
state when it seceded from Pakistan in 1971. The
Philippines became a state by assertion of its
independence following the formal withdrawal
therefrom of American sovereignty in 1946. The
Kingdom of the Netherlands was created by the
Congress of Vienna of 1815, and Poland, more
recently, was revived as a separate state by
agreement of the victorious powers after WWII.
Japan became an international person by
attainment of civilization.(Cruz,2000)
What are the elements of a state?
The following are the elements of a state:
1. People as an element of the state refers to
the human person living within its territory;
should be of both sexes and sufficient in
number to maintain and perpetuate
themselves.
2. Territoryis the fixed portion of the surface
of the earth in which the people of the state
reside. A defined territory is necessary for
jurisdictional reasons and in order to
provide for the needs of the inhabitants. It
should be big enough to be self-sufficient
and small enough to be easily administered
and defended.
3. Governmentis the agency through which
the will of the state is formulated, expressed
and realized. It is necessary in international
law because the state must have an entity to
represent it in its relations with other states.
The form of government does not matter so
long as it is able to maintain order within
the realm and comply with its
responsibilities under the law of nations.
4. Sovereignty is the external aspect or
manifestation of sovereignty or the power of
the state to direct its own external affairs
without interference or dictation from other
states. The degree of its freedom in this
regard determines the status of the state as
an international person. (Cruz, 2000)
May a state exist without the control
of an effective government?
No, it must have an effective government
that is able to carry out its duties and able to assert
itself without the aid of foreign troops. Exceptions:
a) A state may temporarily lack an effective
government as a result of civil war, newly
gained independence or similar upheavals;
b) A simple change in regime and even
conflicting claims of governmental authority
alone will not disqualify an entity from
statehood;
c) A state occupied by an enemy in times of
war continues to be a state as long as allies are
fighting on its behalf against its
enemy.(Malone, 47) [Sarmiento, 2007]
How are de facto and de jure
government distinguished?
A de jure government is lawfully in power
even though it retains little actual power.
Conversely, a de facto government is impliedly a
government which is in control but illegally
so.(Sarmiento, 2007)
What are the three kinds of de facto
government?
The following are the three kinds of
government:
1. Government de facto is that government
that gets possession and control of, or
usurps, by force or by the voice of the
majority, the rightful legal government and
maintains itself against the will of the latter,
such as the government of England under
the Commonwealth, first by Parliament and
later by Cromwell Protector;
2. Government of paramount force which is
established and maintained by military
forces who invade and occupy a territory of
the enemy in the course of war, as the cases
of Castine, in Maine, which was reduced to
British possession in the war of 1812, and
Tampico, Mexico, occupied during the war
15
 with Mexico by the troops of the US;
3. That established as an independent
government by the inhabitants of a country
who rise in insurrection against the parent
state, such as the government of the
Southern Confederacy in revolt against the
Union during the war of secession. (Co Kim
Cham vs Valdez Tan Keh and Dizon, 75 Phil
113) [Sarmiento,2007)
How can nation be distinguished from
state?
Though used popularly as synonymous with
state, nation was restricted by many writers to mean
a body of people more or less of the same race,
language, religion and historical traditions.(Fenwick,
104)[Sarmiento, 2007]
How are states classified?
States may be classified as follows:
1. Sovereign states refer to those enjoying full
membership in the international
community. They exercise undivided
authority over all persons and property
within its borders and are independent of
direct control by any other power. (Fenwick,
106)
2. Neutralized states refer to those upon which
the status of permanent neutrality in all
future wars was formally imposed by a
group of great powers. Examples:
Switzerland under the Article 84 of the 1815
Treaty of Vienna; Belgium under Article 7 of
the 1839 Treaty of London. (Fenwick, 107-
108)
3. Dependent states refer to those that have
practically complete control of their
domestic affairs, while being dependent
upon another state in respect of their control
over their relations with third states.
(Fenwick, 115)
4. Vassal states or states under suzerainty refer
to those subject to a bond of vassalage and
were in respect to their foreign affairs
dependent upon their suzerain state, to
which they pay a formal homage. Romania
was a vassal state subject to the suzerainty of
Turkey from 1829 to 1878. (Ibid)
5. Protectorates is a state which ahs by formal
treaty placed itself under the protection of a
stronger power, surrendering to the latter
control over its foreign affairs. Moroccco
came under the protection of the France and
Germany in 1906 until 1911 while Ethiopia
came under the protection of Great Britain,
France and Italy in 1906. (Fenwick, 119)
6. Confederation and unions are those states
which are associated for certain specific
purpose.
a) Real union is a special form of
confederation which exists when two or
more severally sovereign states have the
same monarch and for international
purposes act as one state. Some
examples are the Union of Sweden and
Norway until its dissolution in 1905 by
the Treaty of Karlstad; Union of Austria
and Hungary from 1867 to 1918; Union
of Denmark and Iceland from 1918 to
1944. (Fenwick, 121)
b) Federal state is a union of states in
which the control of the external
relations of all the member states has
been permanently surrendered to a
central government so that only state
which exists for international purposes
is the state formed by the union.
Examples are USA and Swiss
confederation.(Brierly, 120)
c) Confederation is a union of states in
which, though a central government
exists and exercises certain powers, it
does not control the external relations of
the member states, and therefore for
international purposes there exists not
one but a number of states. Examples
are US from 1778 to 1787 and the
German Confederation from 1820 to
1866. (Ibid.)[Sarmiento, 2007]
What determines the capacity of
states?
An entity possessed with the requisite
elements is ordinarily regarded as an international
person entitled to membership in the family of
nations so long as it is recognized by other states and
it does not possess restricted capacity on account of
either treaty obligations or its limited
resources.(Cruz, 2000)
16

What is the Principle of State
Continuity?
From the moment of its creation, the state
continues as a juristic being notwithstanding
changes in its circumstances, provided only that they
do not result in loss of any of its essential elements.
(Sapphire Case, 11 Wall.164) [Cruz, 2000]
How may a state be extinguished?
The radical impairment or actual loss of one
or more of the essential elements of the state will
result in its extinction.(Ibid)
What is the concept of succession
of states?
In the event that a state is extinguished or is
created as a result of any of the methods, state
succession takes place when one state assumes the
rights and some of the obligations of another
because of certain changes in the condition of the
latter.(Ibid)
What are the two kinds of state
succession?
There is universal succession when a
state is annexed to another state or is totally
dismembered or merges with another state to form a
new state. In all of these cases, the international
personality of the former state is completely
absorbed by the successor. Partial succession
takes place when a portion of the territory of a state
secedes or is ceded to another or when an
independent state becomes a protectorate or a
suzerainty or when a dependent state acquires full
sovereignty.(Ibid)
What are the consequences of state
succession?
The following are the consequences of state
succession:
1. The allegiance of the inhabitants of the
predecessor state in the territory affected is
transferred to the successor state.
2. Inhabitants are naturalized en masse as
when Philippine citizenship was conferred
on the inhabitants in general of the PI under
the provisions of the treaty of cession
between Spain and the US.
3. The political laws of the former sovereign
are automatically abrogated and may be
restored only by a positive act on the part of
the new sovereign. But, non-political laws,
such as those dealing with familial relations,
are deemed continued unless they are
changed by the new sovereign or are
contrary to the institutions of the successor
state.
4. Treaties of a political and even commercial
nature, as well as treaties of extradition, are
also discontinued, except those dealing with
local rights and duties, such as those
establishing easements and servitudes.
Sometimes the successor state stipulates in
appropriate treaties or by formal
proclamation the international
commitments it is willing to respect
5. All the rights of the predecessor state are
inherited by the successor state but this is
not so where liabilities are concerned. The
successor state, in fact, can determine which
liabilities to assume and which to reject
solely on the basis of its own discretion.
Generally, contractual and tort liabilities do
not devolve on the successor state, although
there certainly is nothing to prevent it from
assuming them.(Cruz, 2000)
What is the concept of succession of
governments?
There is succession of governments, where
one government replaces another either peacefully
or by violent methods. In both instances, the
integrity of the state is not affected; the state
continues as the same international person except
only that its lawful representative is changed.
Questions of succession will, therefore, involve only
the former and subsequent governments and third
parties which may be affected by their
relations.(Cruz, 2000)
What are the consequences of
succession of governments?
The following are the consequences of
succession of governments:
a) The rights of the predecessor
government are inherited, in toto by
17
 the successor government .
b) Where the new government was
organized by virtue of a Sovereignty or independence from outside
constitutional reform duly ratified
in a plebiscite, the obligations of the
replaced government also
completely assumed by the former.
Where the new government was
established through violence, as by a
revolution, it may lawfully reject the
purely personal or political
obligations of the predecessor
government but not those
contracted by it in the ordinary
course of official business.(Cruz,
2000)
What are the fundamental rights of states?
The following are the fundamental rights of
states:
Independence is the capacity of
the state to provide for its own well-being
and development free from the domination
of other states, providing it does not impair
or violate their legitimate rights. As a right,
it means the right to exercise within its
portion of the globe, to the exclusion of
others, the functions of a state. However,
restrictions upon a state’s liberty arising
either from customary law or from treaties
do not deprive a state of independence.
Flowing from this right are the rights of
jurisdiction over its territory and permanent
population, the right to self defense and the
right of legation.(Bernas, 2009)
What are the two kinds of
independence?
They are internal independence or right
of national self-government and external
independence. The former refers to the supreme
authority or jurisdiction of the state to control all
persons or property within its territorial domain.
The latter refers to the supreme power of the state to
determine the relations it desires to maintain with
other states, without interference on the part of any
third state.
What is the right to self-
determination?
control is related but not identical with the concept
of the right to self-determination. The various levels
of claims to self-determination may be broken into
two main categories: first is the establishment of
new states – that is the claim by a group within an
established state to break away and form a new
entity. Second can simply be claims to be free from
external coercion, or the claim to overthrow effective
rulers and establish a new government, that is, the
assertion of the right of revolution; or the claim of
people within an entity to be given autonomy.
International Law has not
recognized a right of secession from
a legitimate existing state.(Bernas,
2009)
Equality refers to equality of legal
rights irrespective of the size or power of the
state.(Ibid)
What is the doctrine of equality
of states?
It means that all states are equal in
International Law despite of their
obvious factual inequalities as to size, population,
wealth, strength, or degree of
civilization.(Sarmiento,2007)
What are the consequences
that follow from the above
doctrine?
Oppenheim enumerates four
consequences that follow from the doctrine
of equality of states:
a) When a question arises which has to
be settled by consent, every state
has a right to a vote and to one vote
only.
b) The vote of the weakest state has as
much weight as the vote of the most
powerful;
c) No state can claim jurisdiction over
18
 another; and
d) The courts of one state do not as a
rule question the validity of the
official acts of another state in so far
as those acts purport to take effect
within the latter’s jurisdiction.
[Oppenheim, International Law, 6th
ed.,vol.1,p.238] (Sarmiento, 2007)
e) The theory of the right to peaceful
co-existence was elaborated in
1954 as the Five Principles of Co-
existence by India and China and
includes mutual respect for each
other’s territorial integrity and
sovereignty, mutual non-aggression,
non-interference in each other’s
affairs and the principle of equality.
This has also been expressed in
other documents such as the 1970
Declaration on Principles of
International Law Friendly
Relations and Cooperation Among
States. (Bernas, 2009)
What are the duties of states?
1. To refrain from intervention in the
internal or external affairs of any
other state (Art 3)
2. To refrain from fomenting civil
strife in the territory of another
state, and to prevent the
organization within its territory of
activities calculated to foment such
civil strife. (Art. 4)
3. To treat all persons under its
jurisdiction with respect for human
rights and fundamental freedoms,
without distinction as to race, sex,
language, or religion. (Art. 6)
4. To ensure that conditions prevailing
in its territory do not menace
international peace and order. (Art.
7)
5. To settle its disputes with other
States by peaceful means in such a
manner that international peace and
security, and justice, are not
endangered. (Art. 8)
6. To refrain from resorting to war as
an instrument of national policy,
and to refrain from the threat or use
of force against the territorial
integrity or political independence
of another State, or in any other
manner inconsistent with
International Law and order.
7. To refrain from giving assistance to
any State which is acting in violation
of Article 9, or against which the UN
is taking preventive or enforcement
action. (Art.10)
8. To refrain from recognizing any
territorial acquisition by another
State acting in violation of Article 9.
(Art.11)
9. To carry out in good faith its
obligations arising from treaties and
other sources of International Law,
and it may not invoke provisions in
its constitution or its laws as an
excuse for failure to perform this
duty. (Art. 13)
10. To conduct its relations with other
States in accordance with
International Law and with the
principle that the sovereignty of
each State is subject to the
supremacy of International Law.
(Art. 14) [Sarmiento, 2007]
What are some incomplete
subjects of International Law?
The following are some incomplete
subjects:
1.Protectorates are dependent states
which have control over their internal
affairs but whose external affairs are
controlled by another state. They are
sometimes referred to as autonomous
states, vassal states, semi-sovereign or
dependent states.
2. Federal state is a union of
previously autonomous entities. It may be
an arrangement that may involve placing
full authority in a central organ while
another arrangement might lodge
authority in the individual entities to the
detriment of the central organ. The central
19
 organ will have personality in international
law; but the extent of international
personality of the component entities can
be a problem.
3. Mandated and trust territories-
Mandated territories were territories
placed by the League of Nations under one
or other of the victorious allies of World
War I. The mandate system was replaced
by the trusteeship system after World War
II under the Trusteeship Council. The
Carolines, Marianas and Marshall Islands
were placed under the trusteeship of the
US. These have been in the process of
evolution and self-determination since
1986.
4. Taiwan seems to be a non-state
territory which de jure is part of China.
But it is too affluent and strategically
located to be overlooked by international
actors. It is interesting that when Taiwan
sought accession to the GATT treaty it did
not do so as a state but as part of a
“customs territory.”
5. The Sovereign Order of Malta
has diplomatic relations with over forty
states. There was a time when the order
had sovereignty over Malta. This has since
been lost but the Italian Court of Cassation
in 1935 recognized its international
personality.
6. The Holy See and Vatican City.
IN 1929, the Lateran Treaty was signed
with Italy which recognized the state of the
Vatican City and "the sovereignty of the
Holy See in the field of international
relations as an attribute that pertains to
the very nature of the Holy See, in
conformity with its traditions and the
demands of its mission in the world.” It
has no permanent population. (Bernas,
2009)
OTHER SUBJECTS OF INTERNATIONAL
LAW
What are international
organizations?
An international
organization is an organization that is set
up by treaty among two or more states. It is
different from non- governmental organizations
(NGO) which are set up by private persons.
The constituent document of international
organizations therefore is a treaty. For this
reason, only states are members of
international organizations.
An international
organization has international personality but
its powers and privileges are limited by the
constituent instrument that created it. It also
enjoys immunity which is based on the need
for effective exercise of its functions and is derived
from the treaty creating it.(Bernas, 2009)
What is the League of Nations?
It was an international organization
created after WW1. It was established after the
Paris Peace Conference of 1919 which was
organized by the victors of First World War
to negotiate peace treaties between the Allied
and Associated Powers and the defeated Central
Powers. The Covenant establishing the League was
part of the Treaty of Versailles. The League of
Nations formally came into existence on
January 10, 1920 with headquarters at Geneva,
Switzerland. Its organization included the
Council, the Assembly and the Secretariat.
Autonomous but closely connected to the League of
Nations were the Permanent Court of
International Justice and the International Labor
Organization. (Sarmiento, 2007)
What factors led to its demise?
The outbreak of the Second World War was
the immediate cause of its demise. Other factors
are:
1) While its was supported by US President
Woodrow Wilson, the US Senate did not
ratify the Versailles Treaty mainly objecting
to Article 16 that says in part:
“ Should any member of the League resort to war in
disregard of its covenants, it shall ipso facto be
deemed to have committed an act of war against
all other members of the League xxx. It shall be duty
of the of the Council in such case to
recommend to the several governments concerned
what effective military, naval, or air force the
members of the League shall severally
contribute to the armed forces to be used to
protect the covenants of the League.”
2) The League was generally weak because
even the military sanctions that may be
taken pursuant to the second sentence of
20
 Article 16 were not considered to be legally
binding obligations.
3) Difficulty of the Council in enacting
resolutions because of the required
unanimous vote of all its members, so
conclusive and effective action was difficult,
if not impossible.(Sarmiento, 2007)
What is the United Nations
Organization?
The United Nations is a public
organization of states that was established by the
intergovernmental cooperation after the end of
WWII. It was established on October 24, 1945 by 51
countries as an outcome of the initiatives taken by
the US, USSR, Great Britain and China. (Ibid)
Does the UN have juridical
personality?
Yes, the UN shall possess juridical
personality. It shall have the capacity:
a) to contract;
b) to acquire and dispose of immovable and
movable property; and
c) to institute legal proceedings. (Convention on the
Privileges and Immunities of the UN, Art
1)[Sarmiento, 2007]
What is the legal capacity of the UN in
the territory of its Members?
The UN shall enjoy in the territory
of each of its Members such legal capacity as
may be necessary for the exercise of its functions
and the fulfilment of its purposes.(UN
Charter, Article 104) [Ibid]
What is the UN charter?
The UN Charter is a lengthy
document consisting of 111 articles besides the
Preamble and the concluding provisions. It also
includes the Statute of the ICJ which is
annexed to and made an integral part of it.
The Charter may be considered a
treaty because it derives its binding force from
the agreement of the parties to it. It may also be
regarded as a constitution in so far as it
provides for the organization and operations of the
different organs of the UN and for the adoption of
any change in its provisions through a formal
process of amendment. (Cruz, 2000)
Is the UN Charter applicable only to
UN members?
The Charter is intended not only to
the members but also to non-member states
“so far as may be necessary for the maintenance of
international peace and security.” (Ibid)
What is the principle of Charter
Supremacy?
In the event of conflict between the
obligations of the members of UN under the
Charter and their obligations under any other
international agreement, their obligations
under the Charter shall prevail. (UN Charter, Art
103) [Sarmiento, 2007]
How may amendments to the Charter
come into force?
Amendments to the Charter shall
come into force when they have been adopted
by a vote of two-thirds of the members of the
General Assembly and ratified in accordance
with their respective constitutional processes by
two-thirds of the members of the UN, including
all the permanent members of the Security Council.
(UN Charter, Article 108)
What is the Preamble to the Charter?
It introduces the Charter and sets
the common intentions that moved the original
members to unite their will and efforts to achieve
their common Purposes. (Cruz, 2000)
What are the Purposes of UN?
According to the UN Charter, it has
four purposes: to maintain international peace
and security, to develop friendly relations among
21
 nations, to cooperate in solving
international problems and in promoting respect for
human rights and to be a center for harmonizing the
actions of nations.(Art 1, UN Charter) [Ibid]
What are the Principles of UN?
Under Article 2 of the Charter, the
Principles deal with the methods and the regulating
norms according to which the UN and its
members shall discharge their obligations
and endeavour to achieve their common ends.
The seven cardinal principles are the following:
1. The organization is based on the principle of
the sovereign equality of all its Members.
a. All Members, in order to ensure to
all of them the rights and benefits resulting
from membership, shall fulfill in good faith
the obligations assumed by them in
accordance with the present Charter.
b. All Members shall settle their
international disputes by peaceful means in
such a manner that international peace and
security, and justice, are not endangered.
c. 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.
d. All Members shall give the UN every
assistance in any action it takes in
accordance with the present Charter, and
shall refrain from giving assistance to any
state against which the UN is taking
preventive or enforcement action.
e. The Organization shall ensure that
states which are not Members of the UN act
in accordance with these Principles so far as
may be necessary for the maintenance of
international peace and security.
f. Nothing contained in the present
Charter shall authorize the UN to intervene
in matters which are essentially within the
domestic jurisdiction of any state or shall
require the Members to submit such matters
to settlement under the present Charter; but
this principle shall not prejudice the
application of enforcement measures under
Chapter VII. (Cruz, 2000)
What are the classes of Members in
the UN?
They are the original and non-
original members. The former refer to those states
which participated in the UN Conference on
International Organization at San Francisco,
pre-signed the Declaration by the UN of January 1,
1942, signed and duly ratified the Charter.
There were 51 original members, including the
Philippines. The latter refer to those states which
were admitted to membership by a decision of
two-thirds majority vote in the General Assembly
upon the recommendation of a qualified
majority in the Security Council. (UN Charter,
Art.3)[Sarmiento, 2007]
What are the qualifications for
membership in the UN?
Membership to UN is open to peace-
loving states which accept the obligations
contained in the Charter and, in the judgment of the
Organization, are able and willing to carry
out these obligations. (UN Charter, Art.4)
[Ibid]
How is the admission of a State to the
UN effected?
The admission of state to
membership in the UN is effected by two-thirds
majority of the members voting and present in the
General Assembly upon the
recommendation of a qualified majority in the
Security Council. (UN Charter, Art.4, 18{2})
[Ibid]
May a member of UN be suspended?
Yes, a member against which
preventive or enforcement action has been
taken by the Security Council may be suspended
from the exercise of the rights and privileges
of membership by two-thirds majority of the
members present and voting in the General
Assembly upon the recommendation of a
qualified majority in the Security Council.
However, the member will not actually be suspended
from its membership, but only from the exercise
22
of the rights and privileges of membership.
The exercise of these rights and privileges may be
restored by the Security Council. (UN
Charter, Art. 5, 18{2}) [Ibid]
May a Member be expelled from the
UN?
Yes, a member which has
persistently violated the Principles contained
in the Charter may be expelled from the
Organization by two-thirds majority of the
members present and voting in the General
Assembly upon the recommendation of a
qualified majority in the Security Council.
(UN Charter, Art. 6, 18{2})
Can members withdraw from UN?
No provision on withdrawal from
membership was included in the Charter because
of the fear that it might encourage successive
withdrawals that would weaken the
Organization. Nevertheless, the San Francisco
Conference approved a special committee report
which, while not categorically permitting or
prohibiting withdrawal, expressed the view that a
member might withdraw from the UN if: a) the
Organization was revealed to be unable to maintain
peace or could do so only at the expense of
law and justice; b) the member’s rights and
obligations as such were changed by a Charter
amendment in which it had concurred or
which it finds itself unable to accept; or c) and
amendment duly accepted by the necessary
majority either in the General Assembly or
in a general conference is not ratified. (Cruz,
2000)
What are the principal Organs of the
UN?
They are the General Assembly,
Security Council, Economic and Social Council,
Trusteeship Council, ICJ and Secretariat.
What is the composition of
theGeneral Assembly?
It shall consist of all members of the
UN, each of which is entitled to send not more
five representatives and five alternates as
well as such technical staff as it may need.
(Ibid)
How are the functions of the GA
classified?
1. Deliberative – initiating studies
and making recommendations toward the
progressive development of IL and its
codification and recommending measures
for the peaceful adjustment of any situation
which it deems likely to impair the general
welfare or friendly relations among nations
2. Supervisory – receiving and
considering annual and special reports from
the other organs of the UN, making
recommendations for the coordination of
their various functions, and approving
trusteeship agreements in non-strategic
areas
3. Financial – consideration and
approval of the budget of the Organization,
the apportionment of expenses among its
members and the approval of financial
arrangements with specialized agencies
4. Elective – election of the non-
permanent members of the SC, all the
members of the Economic and Social
Council, and some of the members of the
Trusteeship Council, as well as, in
concurrence with the SC, the Secretary-
General and the judges of the ICJ
5. Constituent – admission of
members and the amendment of the Charter
of the UN (Ibid)
What are the rules on voting in the
GA?
Each member of the GA shall have
one vote. However, a member which is in arrears
in the payment of its final contributions to the
Organization shall have no vote if the amount of its
arrears equals or exceeds the amount of the
contributions due from it for the preceding
two full years. But the GA may, nevertheless, permit
such a member to vote if it is satisfied that the
23
failure to pay is due to conditions beyond the
control of the member. (UN Charter, Arts 18, 19)
Distinction is also made between
“important questions” and all other questions.
Decisions on important questions shall be made by
a two-thirds majority of the members
present and voting, while decisions on other
questions shall be made by a majority of the
members present and voting. (UN Charter,
Art.18) [Sarmiento, 2007]
What are the “important” questions
that require two-thirds majority
vote in the GA?
Important questions shall include:
 Recommendations with respect to
the maintenance of international
peace and security;
 Election of non-permanent
members of the SC;
 Election of members of the Ecosoc;
 Election of members of the
Trusteeship Council;
 Admission of new members to the
UN;
 Suspension of the rights and
privileges of membership;
 Expulsion of members;
 Questions relating to the operation
of the trusteeship system;
 Budgetary questions (UN Charter,
Art 18{2}) [Sarmiento, 2007]
What is the Security Council?
It is the principal organ of the UN
that has been conferred by the members of UN
with the primary responsibility for the
maintenance of international peace and
security. (UN Charter, Art 24)
What is the composition of the
Security Council?
The SC shall consist of 15 members.
Five of these members are permanent members
(Republic of China, France, Russia, UK of
Great Britain and Northern Ireland, and the
USA) and the other 10 are elected by the GA as
non-permanent members for a term of 2
years without eligibility for immediate
reelection. (UN Charter, Art 23)
The presidency of the SC shall be
held in turn by the members of the Council in the
English alphabetical order of their names. Each
President shall hold office for one calendar
month.(Provisional Rules of the SC, Rule 18)
[Sarmiento, 2007]
Are the decisions of the SC binding on
the members of the UN?
Under Art. 25 of the UN Charter, all
members agree to accept and carry out the
decisions of the SC. While other organs of the UN
make recommendations to Governments,
the SC alone has the power to take decisions
which member States are obligated to carry out.
Explain the Yalta Voting Formula?
It resulted from a compromise
between the US, the Soviet Union and the UK
at the conference of Yalta in Feb 1945. This
proposal subjected voting in the SC to
unanimity of the permanent members, both with
regard to enforcement action and the peaceful
settlement of disputes, although in the latter
case States party to the dispute were obliged to
abstain. (Wouters, 5) [Sarmiento, 2007]
Under this formula, codified in Art
27, each member of the SC shall have one vote,
but distinction is made between the permanent
members and the non-permanent members
in the resolution of non- procedural questions.
Procedural questions are to be
decided by the affirmative vote of any nine or more
members. Non-procedural or substantive
questions are to be decided by an affirmative
vote of nine members including the concurring
votes of the permanent members. This is the
24
rule of “Great Power Unanimity”, often referred to as 1. Members that are administering
“Veto Power.” trust territories;
2. Permanent members of the SC;
3. As many other members as the GA
as may be necessary to ensure that
Is the so-called “double veto” still in the total number of members of the
practice? TC is equally divided between those
Members of the UN which
As the determination of whether a administer trust territories and
question is procedural or substantive is those which do not.
considered as non-procedural, it allowed any
permanent of the Council to exercise its
“veto power” twice, thus the practice known as
“double veto”. A veto is first used to establish that What are mandates and trust
a given question is non-procedural, and then territories?
on the vote on the question itself.
Mandates are colonies and
This procedural manipulation was territories which as a consequence of WWI
soon overcome procedural maneuver. The have ceased to be under the sovereignty of the States
President of the Council could rule that the which formerly governed them and which were
procedural/non-procedural question is itself inhabited by peoples not yet able to stand by
procedural and not subject to veto; presidential themselves and placed under a system of mandates
rulings in this regard are final unless reversed by under Article 22 of the Covenant of the
nine votes, with no state having a veto power. League of Nations (Treaty of Versailles).
(Sarmiento, 2007)
Trust territories are those which
have been placed under the international
trusteeship system established by Chapters 11-13 of
What is the composition and function the UN.
of the Economic and Social Council?
Charter that included:
It shall consist of 54 members
elected by the General Assembly. (UN Charter, 1. territories held under mandate;
Art.61) 2. territories which maybe detached from
enemy states as a result of WWII , and
It may make or initiate studies and 3. territories voluntarily placed under the
reports with respect to international economic, system by states responsible for their
social, cultural, educational, health, and related administration.
matters and may make recommendations with
respect to any such matters to the General CHAPTER 4
Assembly, to the Members of UN, and to the
specialized agencies concerned. It may also make What is the International Court of Justice?
recommendations for the purpose of
promoting respect for, and observance of, It is the principal judicial organ of the UN
human rights and fundamental freedoms for all, and the successor of the PCIJ of the League of
prepare draft conventions for submission to Nations. It functions in accordance with its Statute
the General assembly and call international that is annexed to the Charter of the UN, and
conferences on matters falling within its patterned upon the Statute of the PCIJ. (UN Charter,
competence. (UN Charter, Art 62) (Ibid) Art.92) [Sarmiento, 2007]

What is the Trusteeship Council? What is the primary function of the Court?

It is the organ that is responsible for The primary function of the Court is to
administering trusteeship territories that are decide international legal disputes submitted to it by
not yet self-governing. states in accordance with International Law.

The TC shall consist of the ff:

25
Is being a party to the Statute of the ICJ
tantamount to the acceptance of the
jurisdiction of the court?
Being party to the Statute, does not mean
acceptance of the jurisdiction of the Court. It simply
means that the state may accept the jurisdiction of
the court. The Statute opens the court’s door to
member states. Only states may be parties in the
court. (Bernas, 2009)
What is the cardinal rule in international
courts?
The cardinal rule in international courts is
that states cannot be compelled to submit disputes
to international adjudication unless they have
consented to it either before a dispute has arisen or
thereafter. States are also free to limit their
acceptance to certain types of disputes and to attach
various conditions or reservations to their
acceptance. (Ibid)
What is an international legal dispute?
An international legal dispute is a
disagreement between states on a question of law or
fact, a conflict, a clash of legal views or of interests.
(The Mavrommatis Palestine Concessions, Greece vs
Great Britain, August 30, 1924, PCIJ, Ser B, No.3,
1924)
Where is the seat of the ICJ? How many are
its members? What is the term of their
office?
1.The Seat of the Court is at the Peace Palace in
the Hague, Netherlands. This shall not prevent
the Court from sitting and exercising its
functions elsewhere whenever the Court
considers it desirable. (ICJ Statute, Art.22)
2. The Court shall consist of fifteen members,
no two of whom maybe nationals of the same
state. (Ibid, Art.3)
3. The members of the Court shall be elected
for nine years and may be re-elected. (Ibid,
Art.13) [Sarmiento, 2007]
What are the qualifications of its members?
Members shall be independent judges,
elected regardless of their nationality from among
persons of high moral character, who possess the
qualifications required in their respective countries
for appointment to the highest judicial offices, or are
jurisconsults of recognized competence in
International Law. (Ibid, Art. 2) [Ibid}
Do the members of the Court represent their
governments?
No, the members of the Court do not
represent their governments but are independent
magistrates. (Ibid, Art. 2)
Who may be parties to contentious cases?
Only states may be parties in contentious
cases before the Court. (Ibid, Art.34)
Is the Court open to states that are not
members of the UN?
Yes, but the conditions under which the
Court shall be open to other states which are not
members of the UN shall, subject to the special
provisions contained in treaties in force, be laid
down by the Security Council, but in no case shall
such conditions place the parties in a position of
inequality before the court. When a state which is
not a member of the UN is a party to a case, the
Court shall fix the amount which that party is to
contribute towards the expenses of the Court, except
if such state is bearing a share of the expenses of the
Court. (Ibid, Art 34)
Who may request for an advisory opinion?
Under Art. 96 of the UN Charter, only the
principal organs of the Organization and other
specialized agencies, which may be so authorized by
the General Assembly, may request the ICJ to give
an advisory opinion on any legal question.
(Sarmiento, 2007)
What are the preconditions before the ICJ
may give advisory opinions?
They are as follows:
a) The advisory opinion must be
requested by an organ duly authorized to
seek it under the UN Charter;
 It must be requested on a legal
function; and
 Except in the case of the General
Assembly or the Security Council, that
questions should be one arising within the
scope of the activities of the requesting
organ. (Application for Review of Judgment
No. 273 of the UN Administrative Tribunal,
Advisory Opinion, ICJ Reports 1982) [Ibid]
26
What is the bearing of the lack of consent of
States, parties to a dispute, on the
jurisdiction of the ICJ to give an advisory
opinion?
The consent of States, parties to a dispute, is
the basis of the Court’s jurisdiction in contentious
cases. However, the situation is different in regard
to advisory proceedings even where the Request for
an Opinion relates to a legal question actually
pending between States. The Court’s reply is only an
advisory character: as such, it has no binding force.
It follows that no State, whether a member
of the UN or not, can prevent the giving of an
advisory opinion which the UN considers to be
desirable in order to obtain enlightenment as to the
course of action it should take.
The Court’s opinion is given not to the
States, but to the organ which is entitled to request
it; the reply of the Court, itself an “organ of the UN’s,
represents its participation in the activities of the
Organization, and in principle, should not be
refused. (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, First Phase,
advisory Opinion, ICJ Reports 1950, p. 71; See also
Western Sahara, ICJ Reports 1975, p. 24, par.31)
[Ibid]
What is the legal status of advisory opinions
of the ICJ?
In principle, the Court’s advisory opinions
are consultative in character and are therefore not
binding as such on the requesting bodies. Certain
instruments or regulations can, however, provide in
advance that the advisory opinion shall be binding.
(Ibid)
What is the Secretariat?
It is the chief administrative organ of the
United Nations and which is headed by the
Secretary-General. The Secretary-General is chosen
by the General Assembly upon recommendation of
the Security Council. His term is fixed at five years
by resolution of the General Assembly, and he may
be re-elected. (UN Charter, Art. 97)
What are the functions of the Secretary-
General?
The Secretary-General shall be the chief
administrative officer of the UN. He shall act in that
capacity in all meetings of the General Assembly, of
the Security Council, of the Economic and Social
Council, and of the Trusteeship Council, and shall
perform such other functions as are entrusted to him
by these organs.
The Secretary-General shall make an annual
report to the General Assembly on the work of the
Organization. He may also bring to the attention of
the Security Council any matter which in his opinion
may threaten the maintenance of international peace
and security. (UN Charter, Arts 98 & 99)
What are the other agencies of UN?
These are the so-called specialized agencies
which include: United Nations Educational,
Scientific and Cultural Organization (UNESCO); the
International Civil Aviation Organization (ICAO),
the World Health Organization (WHO), the Food
and Agricultural Organization (FAO), the World
Bank and the International Monetary Fund (IMF).
What are regional organizations?
They are neither organs or subsidiary organs
of the UN. They are autonomous international
organizations having an institutional affiliation with
the UN by concluding agreements with the UN. They
are international institutions created by
international agreements for the purpose of dealing
with regional problems in general or with specific
matters be they economic, military or political.
Example is the ASEAN
What is the ASEAN?
It is the regional organization of South East
Asian nations and was established on August 8, 1967
in Bangkok, Thailand with the signing of the
Bangkok Declaration by the 5 original member
countries namely Indonesia, Malaysia, Philippines,
Singapore and Thailand.
Brunei Darussalam joined the Association
on January 8, 1984 while Vietnam became the 7th
member on July 28, 1995. Laos and Myanmar were
admitted on July 23, 1997. Cambodia also became a
member in 1999. (Bernas, 2009)
What are the 3 main objectives of the ASEAN
Nations?
They are as follows:
1. To promote the economic, social and
cultural development of the region
through cooperative programs;
27
 2. To safeguard the political and economic
stability of the region against big power
rivalry; and
3. To serve as a forum for the resolution of
intra-regional differences. (Ibid)
What are the aims and purposes of the
Association as stated in its Declaration?
They are as follows:
 To accelerate economic growth, social
progress and cultural development in the
region and
 To promote regional peace and stability
through abiding respect for justice and the
rule of law in the relationship among
countries in the region and adherence to the
principles of the UN Charter . (Ibid)
Enumerate the fundamental principles of the
ASEAN.
The fundamental principles of the ASEAN as
contained in the Treaty of Amity and Cooperation in
Southeast Asia are as follows:
a) Mutual respect for the
independence, sovereignty, equality,
territorial integrity, and national
identity of all nations;
a. The right of every State to lead its
national existence free from external
interference, subversion or coercion;
b. Non-interference in the internal
affairs of one another;
c. Settlement of differences or disputes
by peaceful manner;
d. Renunciation of the threat or use of
force; and
e. Effective cooperation among
themselves. (Ibid)
What is the ASEAN Vision 2020?
The ASEAN Vision 2020, adopted by the
ASEAN Leaders on the 30th anniversary of ASEAN ,
agreed on a shared vision of ASEAN as a concert of
Southeast Asian Nations, outward looking, living in
peace, stability and prosperity, bonded together I n
partnership in dynamic development and in a
community of caring societies.
In 2003, the ASEAN leaders resolved that an
ASEAN Community shall be established comprising
3 pillars, namely:
 ASEAN Security Community;
 ASEAN Economic Community; and
 ASEAN Socio-Cultural Community
What is the ASEAN Regional Forum?
In recognition of security interdependence
in the Asia-Pacific Region, ASEAN established the
ASEAN Regional Forum (ARF) in 1994. The ARF’s
agenda aim to evolve in three broad stages, namely
the promotion of confidence building, development
of preventive diplomacy and elaboration approaches
to conflicts.
The present participants in the ARF include:
Australia, Brunei Darussalam, Cambodia, Canada,
China, European Union, India, Indonesia, Japan,
Democratic Republic of Korea, Republic of Korea,
Lao PDR, Malaysia, Mongolia, Myanmar, New
Zealand, Pakistan, Papua New Guinea, the
Philippines, the Russian Federation, Singapore,
Thailand, the US and Vietnam.
The ARF discusses major regional security
issues in the region, including the relationship
amongst the major powers, non-proliferation,
counter-terrorism, transnational crime, South China
Sea and the Korean Peninsula, among others.
What is the ASEAN Free Trade Area (AFTA)?
The AFTA which was launched in 1992, aims
to promote the region’s competitive advantage as a
single production unit. The elimination of tariff and
non-tariff barriers among Member Countries is
expected to promote greater economic efficiency,
productivity and competitiveness. (sarmiento,2007)
What are International Administrative
Bodies?
These are administrative bodies created by
agreement among states which may be vested with
international personality when two conditions
concur, to wit:
 Their purposes are mainly non-political.
 That they are autonomous or not subject to
the control of any state.
Examples are the European Commission of the
Danube and the Central Commission for the
Navigation of the Rhine. (Cruz, 2000)
28
Insurgents
What is the 1977 Protocol II to the Geneva
Conventions?
It is the first and only international
agreement exclusively regulating the conduct of
parties in anon-international armed conflict. It
“develops and supplements Article 3, common to the
Geneva Conventions of August 12, 1949 without
modifying its existing conditions or application.”
(Bernas, 2009)
What is a non-international armed conflict
under Protocol II?
It is an armed conflict that takes place in the
territory of a High Contracting Party between its
armed forces and dissident armed forces or other
organized armed groups which, under responsible
command, exercise such control over a part of its
territory as to enable them to carry out sustained
and concerted military operations and to implement
this Protocol. (Art. 1, Protocol II) [Ibid]
Does Protocol II apply to internal
disturbance and tensions?
Article 1 provides that the “Protocol shall not
apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of
violence and other acts of a similar nature, as not
being armed conflicts.” This holds true even if the
armed forces of the territory may have been called
upon to suppress the disorder. [Ibid]
What then are the requirements for the
“material field of application” of Protocol II?
They are as follows:
 The armed dissidents must be under
responsible command
 They must exercise such control over a part
of its territory as to enable them to carry out
sustained and concerted military operations.
Does Protocol II apply to the conflict between
Philippine government and the NDF and its
NPA and that between the government and
the MNLF and MILF in Mindanao?
No, considering that the government has
been able to maintain consistently that the NDF and
its NPA have not crossed the threshold requiring
control over the territory and thus, what applies to
them as well as the MNLF and MILF in Mindanao is
Common Article 3 and not Protocol II. [Ibid]
What then is the status of the insurgent
groups that satisfy the material field of
application of Protocol II?
These groups may be regarded as “para-
statal entities possessing definite if limited form of
international personality”. [Ibid]
What are the two specific attributes of
this “personality”?
They are as follows:
 They are recognized as having belligerent
status against the de jure government thus
other states are required to maintain
neutrality regarding them.
 They are seen as having treaty making
capacity. [Ibid]
What is Common Article 3?
It is an Article 3 common to all Geneva
Conventions that assures the promulgation of
minimum protection to cover internal conflict. It
says:
Art. 3. In the case of armed conflict
not of an international character occurring in the
territory of one of the High Contracting
Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following
provisions:
a) Persons taking no active part in the
hostilities, including members of
the armed forces who have laid
down their arms and those placed
hors de combat by sickness,
wounds, detention, or any other
cause, shall in all circumstances be
treated humanely, without any
adverse distinction founded on
race, color, religion or faith, sex,
birth or wealth, or any other
similar criteria.
To this end, the following acts are
and shall remain prohibited at any time and in
any place whatsoever with respect to the above-
mentioned persons:
1. Violence to life and person, in
particular murder of all kinds,
mutilation, cruel treatment and
torture;
Taking of hostages;
29
 Outrages upon personal dignity, in
particular humiliating and degrading treatment;
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.
a) 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 endeavour to bring into force, by means of
special agreements, all or part of the other
provisions of the present Convention.
The application of the preceding
provisions shall not affect the legal status of the
Parties to the conflict. [Ibid]
What does the last sentence of the
Article 3 mean?
It means that the application does
not convert the conflict into an international
one and therefore does not preclude the possibility
that any participant in the conflict may be
prosecuted for treason. Further, although rebels
have the protection of Common Article 3, they do
not thereby gain the status of subjects of
international law unless they satisfy the
“material field of application” of Protocol II. [Ibid]
What are National Liberation Movements?
They are organized groups fighting in behalf
of a whole people for freedom from colonial powers.
According to the First Protocol of the 1977 Geneva
Convention, they are “peoples fighting against
colonial domination and alien occupation and
against racist regimes in the exercise of their right of
self-determination, as enshrined in the charter of the
UN.” [Ibid]
What are the characteristics of
national liberation movements?
They can be based within the territory which
they are seeking to liberate or they might find a base
in a friendly country
Although control over a territory and people
is not essential to their legitimacy, the ultimate goal
of controlling a definite territory is necessary for
them to be recognized as international subjects.
They must have an organization capable of
coming into contact with other international
organizations.
What is the status of Individuals in
International Law?
Before, human beings were exclusively
under the control of states. They were mere objects
or at best “beneficiaries” of international law. With
the greater global awareness of human rights
individuals have now come to be recognized as
possessing albeit limited rights and obligations in
international law. Antonio Cassese described this
status of individuals with reference to states, in
international law, as follows:
To differentiate the position of
individuals from that of States, it can
be maintained that while States have
international legal personality proper,
individuals have a limited locus standi in
international law.
Furthermore, unlike States,
individuals have a limited array of rights
and obligations: on this score, one can
speak of a limited legal capacity(in this
respect they can be put on the same footing
as other non-State international subjects:
insurgents, international organizations,
and national liberation movements).
What is Nationality? (Cruz, 2000)
It is the tie that binds an individual to his
state, from which he can claim protection and whose
laws he is obliged to obey. It is membership in a
political community with all its concomitant rights
and obligations.
What are the modes of acquisition of
nationality?
They are as follows:
1. Birth
 Jure soli where the individual
acquires the nationality of the state
where he is born
30
  Jure sanguinis where the
individual acquires the nationality
of his parents
a) Naturalization is a process by
which a foreigner acquires, voluntarily or by
operation of law, the nationality of another
state.
2. Direct naturalization which is effected
through any of the following:
a. By individual proceedings, usually
judicial, under general naturalization laws;
b. By special act of the legislature,
often in favor of distinguished foreigners
who have rendered some notable service to
the local state;
c. By collective change of nationality
(naturalization en masse) as a result of
cession or subjugation; and
d. In some cases, by adoption of
orphan minors as nationals of the state
where they are born.
 Derivative naturalization in turn is
conferred by:
 on the wife of the naturalized husband
 on the minor children of the naturalized
parent; and
 on the alien woman upon marriage to a
national
Derivative naturalization does not
always follow as a matter of course, for it is
usually made subject to stringent restrictions and
conditions.
What is multiple nationality?
It is the status where one individual finds
himself in possession of more than one nationality
because of the concurrent application to him of the
municipal laws of the states claiming him as their
national.
What is the doctrine of indelible allegiance?
Under this doctrine , an individual may be
compelled to retain his original nationality
notwithstanding that he has already renounced or
forfeited it under the laws of a second state whose
nationality he has acquired.
How may nationality be lost?
It may be lost voluntarily or involuntarily.
Voluntary methods include renunciation
(express or implied) and request for release, both
of which usually precede the acquisition of a new
nationality. Involuntary methods are
forfeiture as a result of some disqualification or
prohibited act like enlistment in a foreign army or
long continued residence in a foreign state, and
substitution of one nationality for another
following a change of sovereignty or any act
conferring derivative naturalization.
How does the Hague Convention of 1930 on
the Conflict of Nationality Laws provide
against conflicts arising from divergent
municipal laws on nationality?
The said convention provides as follows:
Art. 1 It is for each State to determine under its law
who are its nationals. This law shall be recognized
by other States in so far as it is consistent with
international conventions, international customs,
and the principles of law generally recognized with
regard to nationality
Art. 2. Any question as to whether a person
possesses the nationality of a particular State shall
be determined in accordance with the law of the
State.
Art. 3 Subject to the provisions of the present
Convention, a person having two or more
nationalities may be regarded as its national by
each of the States whose nationality he possesses.
Art. 4. A State may not afford diplomatic protection
to one of its nationals against a State whose
nationality such person also possesses.
Art. 5. Within a third State, a person having more
than one nationality shall be treated as if he had
only one. Without prejudice to the application of its
laws in matters of personal status and of any
convention in force, a third State shall, of the
nationalities which any such person possesses,
recognize exclusively in its territory either the
nationality of the country in which he is habitually
and principally resident or the nationality of the
country with which in the circumstances he appears
to be in fact most closely connected. (Principle of
Effective or Active Nationality)
Art. 6. Without prejudice to the liberty of a State to
accord wider rights to renounce its nationality, a
person possessing two nationalities acquired
31
without any voluntary act on his part may
renounce one of them with the authorization of the
State whose nationality he desires to surrender.
This authorization may not be refused in the case of
a person who has his habitual and principal
residence abroad, if the condition laid down in the
law of the State whose nationality he desires to
surrender are satisfied.
What is the Doctrine of
NemoPotestExuerePatriam? (Sarmiento,
2007)
This is the doctrine that the bond of
nationality once forged could never be broken. This
is the basis of the doctrine of indelible allegiance.
The US used this common law doctrine in the early
decades of its national life. Born a citizen of the US,
no one might transfer his allegiance to another state
without the consent of the state which had first claim
upon him.
What is the Right of Expatriation? (Ibid)
It is the right of a person to renounce his
nationality or allegiance to his original State. It
finds support in Article 15 of the Universal
Declaration of Human Rights which states that “No
one shall be arbitrarily deprived of his nationality
nor denied the right to change his nationality.”
When may an act of an individual become an
Act of State?
An act of an individual becomes an Act of
State if it may be imputed on the State. This is
usually determined on the basis of the national legal
order, the law of the state whose act is in question.
An act the performance of which is not prescribed or
permitted by the law of the state cannot be , imputed
on the state, i.e., interpreted as an act of state.
However, such an act may, according to
International Law, have the same legal effect as an
act imputable to the state, especially if the act is
performed by an individual who, as an organ of the
state, is competent under the law to represent the
state in relation to other states, such as Head of
State. (Kelsen, 117) [Sarmiento, 2007]
Can private individuals be regarded as
subjects of IL?
Yes, especially in the field of the recognition
of fundamental human rights, the individual has
come to be a subject, rather than an object of IL.
(Fenwick, 134) Rights are now assumed and
obligations imposed directly upon individuals.
In the field of international human rights,
the rights of individuals as against states are now
protected and their violation afforded remedies. In
international humanitarian law, individual criminal
responsibility is now imposed for the commission of
the crimes of genocide, war crimes, and crimes
against humanity, among others. In international
criminal court, victims of international crimes are
now given legal personality before the court, not as
mere witnesses for the prosecution, but as parties
who may directly participate in the proceedings.
[Ibid]
What is Statelessness? (Cruz, 2000)
It is the condition or status of an individual
who is born without any nationality or who loses his
nationality without retaining or acquiring another.
In such case, from the traditional viewpoint,
the individual is powerless to assert any right that
otherwise would be available to him under
international law were he a national of a particular
state.
Any wrong suffered by him through the act
or omission of a state would be
damnumabsqueinjuria for in theory no other state
had been offended and no international delinquency
committed as a result of damage caused upon him.
This is so because any injury to the
individual by a foreign jurisdiction is, legally
speaking, not a violation of his own right but of the
right of his state to the protection of its nationals;
the right to complain belongs not to him but to the
state of which he is a national.
Recognition
What are the Objects of recognition?
Recognition may be extended to a state, to a
government, or to a belligerent community.
Recognition of a state is generally held to be
irrevocable and imports the recognition of its
government. Recognition of a government, on
the other hand, may be withdrawn and does not
necessarily signify the existence of a state as the
government may be that of a colony.(Hackworth,
166; Fenwick, 157) Recognition of belligerency
does not produce the same effects as the recognition
of states and governments because the rebels are
accorded international personality only in
connection with the hostilities they are waging.
(Wilson and Tucker, 69-72) [Cruz, 2000]
What are the Kinds of Recognition?
32
 It may be either express or implied.
Express recognition may be verbal or in writing.
It may be extended through a formal proclamation
or announcement, a stipulation in a treaty, a letter or
telegram, or on the occasion of an official call or
conference. Examples: the state of Israel and its
provisional government were recognized by the US
in a statement released to the press by President
Harry S. Truman on May 14, 1948; The Communist
Government of Russia, was recognized by Italy in a
treaty concluded between the two countries in
1924;and a simple telegram sufficed to extend
American recognition to Poland after WW1
Recognition is implied when the recognizing
state enters into official intercourse with the new
member by exchanging a diplomatic representatives
with it, concluding with it a bipartite treaty dealing
comprehensively with their relations in general or,
acknowledging its flag or otherwise entering into
formal relations with it. (Fenwick, 137).
In the case of a belligerent community,
recognition is implied when the legitimate
government blockades a port held by the former or
when other states observe neutrality in the conflict.
(Bishop, 261) [Ibid]
What is required of an act for it to be
considered as an act constituting
recognition?
The act constituting recognition shall give a
clear indication of an intention:
1. To treat with the new state as such; or
2. To accept the new government as having
authority to represent the state it purports
to govern and to maintain diplomatic
relations with it; or
3. To recognize in the case of insurgents that
they are entitled to exercise belligerent
rights. (Hackworth, 166) [Ibid]
What is the effect of common membership in
an international organization of states that
have not previously recognized each other?
They are deemed to recognize each other
only within the said body and not elsewhere.
Example: The Phil and Soviet Union for many years
dealt officially with each other in the UN, of which
they are both charter members, but did not
otherwise maintain relations outside the
Organization until they exchanged diplomatic
recognition in 1975. [Ibid]
What is Recognition of States?
The recognition of a new state is the free act
by which one or more states acknowledge the
existence on a definite territory of a human society
politically organized, independent of any existing
state, and capable of observing the obligations of
international law, and by which they manifest
therefore their intention to consider it a member of
the international community.(Art 1, Institute de
Droit International)
The recognition of a new state comes easy
when it is established through peaceful methods
such as plebiscite or agreement. Examples: Norway
and Sweden, upon their formal separation in 1905
were unhesitatingly extended recognition; same is
true with Egypt, when it was declared independent
by Great Britain in 1922 and also to the Philippines
upon the withdrawal of American sovereignty there
from in 1946. But the act of France in recognizing
the newly established USA in 1778 was resented by
Great Britain which shortly thereafter declared war
against the French. The recognition made by US to
Brazil was not received with much antagonism by
parent state Portugal which had evidently lost
interest in its former colony.[Ibid]
What is the Recognition of Governments?
The recognition of the new government of a
state which has been already recognized is the free
act by which one or several states acknowledge that a
person or a group of persons is capable of binding
the state which they claim to represent and witness
their intention to enter into relations with them.
(Art. 9, Ibid)
Similar to the recognition of states, the
recognition of governments is usually decided
mainly on the basis of political considerations.
Premature recognition may lead to international
misunderstanding if the new government has been
established through violent methods. There is no
problem if the change of government is caused
through peaceful means but in the case the new
government is installed through violent means and it
claims the right to represent the state to the
exclusion of the former, the former or de jure
government might have a cause for complaint if
recognition is extended by other governments to the
de facto government. [Cruz, 2000]
What is the Tobar or Wilson principle?
Under this principle, which was expressed in
a treaty of the Central American Repulics in 1907 at
the suggestion of Foreign Minister Tobar of Ecuador
and reiterated in 1913 by President Woodrow Wilson
of the US, recognition shall not be extended to any
33
government established by revolution, civil war,
coup d’etat or other forms of internal violence until
the freely elected representatives of the people have
organized a constitutional government. [Ibid]
What is Stimson Principle?
This principle was formulated by US
Secretary of State Stimson and was adopted by the
League of Nations in a resolution declaring that it
was “incumbent upon the members of the League of
Nations not to recognize any institution, treaty or
agreement which may be brought about by means
contrary to the Covenant of the League of Nations or
to the Pact of Paris.”[Ibid]
What is Estrada Doctrine?
Minister Genaro Estrada of Mexico
announced in 1930 a doctrine that now bears his
name. Under this doctrine, the Mexican government
declared that it would, as it saw fit, continue or
terminate its relations with any country in which a
political upheaval had taken place “and in so doing
does not pronounce judgment, regarding the right of
foreign nations to accept, maintain, or replace their
governments or authorities.” [Ibid]
What are the criteria in recognizing a new
government based on the present practice of
most states?
They are as follows:
 That the government must be able to maintain
order within the state and to repel external
aggression known as the objective test; and
 That the government is willing to comply with
its international obligations known as the
subjective test. (Fenwick, 159-162)[Ibid]
What are the distinctions between
recognition de jure and recognition de facto?
They are the following:
1. Recognition de jure is relatively
permanent while recognition de
facto is provisional;
2. Recognition de jure vests title in the
government to its properties abroad
while recognition de facto does not;
3. Recognition de jure brings about full
diplomatic relations while
recognition de facto is limited to
certain juridical
relations.(Oppenheim-Lauterpacht,
136-137)[Ibid]
What are the effects of Recognition of States
and Governments?
The following are the consequences of the
recognition of state and governments:
1. Full diplomatic relations are
established except where the government
recognized is de facto.
2. The recognized state or government
acquires the right to sue in the courts of the
recognizing state.
3. The recognized state or government
has a right to the possession of the
properties of its predecessor in the territory
of the recognizing state.
4. All acts of the recognized state or
government are validated retroactively,
preventing the recognizing state from
passing upon their legality in its own
courts.[Ibid]
What is Recognition of Belligerency?
A belligerency is supposed to be a merely
internal affair of the state and does not produce
international repercussion. But when the conflict
widens and aggravates, it may be necessary, for
practical reasons, to consider the formal recognition
of the belligerent community. Such recognition is
usually extended where the following conditions are
established:
1. There must be an organized civil
government directing the rebel forces.;
1. The rebels must occupy a substantial
portion of the territory of the state.
2. The conflict between the legitimate
government and the rebels must be serious,
making the outcome uncertain.
3. The rebels must be willing and able to
observe the laws of war. [Ibid]
What are the consequences of recognition of
belligerency?
They are as follows:
1. Upon recognition by the parent state, the
belligerent community is considered a
34
 separate state for purposes of the conflict it
is waging against the legitimate government.
Thus:
a. their relations with each other shall,
for the duration of hostilities, be
governed by the laws of war, and
their relations with other states shall
be subject to the laws of neutrality;
2. the troops of either belligerent, when
captured, shall be treated as prisoners of
war;
3. the parent state shall no longer be liable for
any damage that may be caused to third
states by the rebel government;
4. both belligerents may exercise the right of
visit and search upon neutral merchant
vessels;
5. the rebel government, equally with the
legitimate government, shall be entitled to
full war status as regards all other states and
may establish blockades, maintain prize
courts and take other allowable war
measures.
1. Where recognition is extended by third
states, the above consequences are
effective only as to them and do not bind
other states not extending recognition. It
is only where the recognition is made by
the parent state that the effects thereof
become general and are legally
applicable to all other states. [Ibid]
Treatment of Aliens
What is the concept of protection of aliens?
No states is obliged to admit aliens into its
territory unless there is a treaty requiring it. This
springs from sovereignty of the state. Though, it is
difficult to deny admission to all. Hence, states
impose legal standards for admission and once
admitted, at least under democratic regimes, aliens
may not be expelled without due process.
From the perspective of the state of their
nationality, aliens are “nationals abroad”. Therefore,
they remain important for the state of their
nationality. Thus, states have common interest in
the protection of aliens. [Bernas, 2009]
What is the doctrine of state responsibility?
Under this doctrine, a state may be held
responsible for:
1. An international delinquency,
 directly or indirectly imputable to it,
 which causes injury to the national of
another state.
Under this doctrine, liability will attach to
the state where its treatment of the aliens fall below
the international standard of justice or where it is
remiss in according him the protection or redress
that is warranted by the circumstances. (Cruz, 2000)
What are the two kinds of state
responsibility?
a) Direct state responsibility
attaches where the international
delinquency was committed by superior
government officials or organs like the chief
of state or the national legislature as their
acts may not be effectively prevented or
reversed under the constitution and laws of
the state.
b) Indirect state responsibility
results where the offense is committed by
inferior government officials or, more so, by
private individuals, although the state will
be held liable if, by reason of its indifference
in preventing or punishing it, it can be
considered to have connived in effect in its
commission. [Ibid]
What is an international wrongful act?
There is an internationally wrongful act of a
State when conduct consisting of an action or
omission:
a) is attributable to the State under
international law; and
b) constitutes a breach of an
international obligation of the State. (Art. 2,
Articles on Responsibility of States for
Internationally wrongful Acts, International
Law Commission, 2001) [Bernas, 2009]
What is international standard of justice?
It has no precise definition. It is described
as the standard of the reasonable states, as referring
to the ordinary norms of official conduct observed in
civilized jurisdictions. [Cruz, 2000]
What is the concept of diplomatic
protection?
It is the instrument used for the protection
of aliens which is based on the traditional notion
35
that the individual is an inappropriate subject of
international law and must have recourse to his or
her state of nationality for protection. The theory
underlying the system is that injury to a national
abroad is injury to the individual’s state of
nationality. Thus, the interest of the state is in the
redress of the injury to itself and not of the injury to
the individual.[Bernas, 2009]
What are the two standards for the
protection of aliens?
They are as follows:
a) “national treatment” or “equality of
treatment”
Aliens are treated in the same
manner as nationals of the state where they reside.
Here, aliens would enjoy the same benefits as
local nationals but if the state is tyrannical
and its municipal laws are harsh and violative
of human rights even to its citizens, then aliens
would likewise be subject to such harsh
laws.
b) minimum international standard
However harsh the municipal laws might
be against a state’s own citizens, aliens should
be protected by certain minimum standards
of humane protection.
What conducts are attributable to the state?
In Chapter 2 of the Responsibility of States
for Internationally Wrongful Acts, the following
conducts are considered as acts of state; to wit:
a) The conduct of any of its organs,
whether exercising legislative, executive,
judicial or any other functions. (Art.4)
b) The conduct of a person or entity
which is empowered by the law of that State
to exercise governmental authority provided
the person or entity is acting in that capacity
in the particular instance. (Art.5)
c) The conduct of a person or group of
persons that is in fact acting on the
instructions of, or under the direction or
control of, that State in carrying out the
conduct. (Art.8)
d) The conduct of a person or group of
persons that is in fact exercising
governmental authority in the absence or
default of the official authorities and in
circumstances such as to call for the exercise
of that authority. (Art. 9)
e) The conduct of an insurrectional
movement which becomes the new
Government of a State. (Art.10[1])
f) The conduct of a movement,
insurrectional or other, which succeeds in
establishing a new State in part of the
territory of a pre-existing State or in a
territory under its administration, shall be
considered an act of the new State.
(Art.10[1])
g) Conduct which the State
acknowledges and adopts as its own. (Art.11)
[Sarmiento, 2007]
What is the concept of failure of protection
or redress?
Under this concept, a state may still be held
liable even if its laws conform to the international
standard of justice if:
a) It does not make reasonable efforts
to prevent injury to the alien; an
b) having done so unsuccessfully, fails
to repair such injury. [Cruz, 2000]
What is the concept of exhaustion of local
remedies?
Under this concept, even when the liability
of the state has already been established, its
enforcement cannot be claimed by the injured
foreigner unless he first exhausts all available local
remedies for the protection or vindication of his
rights.(Schwarzenberger, 166) [Ibid]
It is generally accepted that the state must
be given an opportunity to do justice in its own
regular way and without unwarranted interference
with its sovereignty by other states. [Ibid]
“ …where there is a judicial remedy, it must
be sought; and only if it is sought in vain does
diplomatic interposition become proper.” (Harvard
Research Draft on the Responsibility of States, 23
A.J.I.L., Sp. Supp.133) [Ibid]
What are the exceptions to the adherence to
the concept of exhaustion of local remedies?
They are as follows:
36
 a) there are no remedies to exhaust;
b) where the laws are intrinsically
defective;
c) where there is laxity or arbitrariness
in their enforcement;
d) where the courts are corrupt;
e) where there is no adequate
machinery for the administration of justice;
or
f) “acts of state” which are not subject
to judicial review. [Ibid]
When may an injured foreigner resort to
diplomatic protection?
If he has exhausted all local remedies but
without success, he may then avail himself of the
assistance of his state – but only if he has a state. If
he has no state, he will have no party to represent
him, and he by himself, being a mere individual,
cannot institute his claim in his own name.[Ibid]
How important is the tie of nationality in
seeking diplomatic protection?
The tie of nationality is required to exist
from the time of the injury until the time the
international claim is finally settled.
(Schwarzenberger, 169) When this tie is broken, the
claim itself is deemed automatically abated. If,
therefore, the injured national dies while the claim is
under consideration and it should happen that his
heirs are not nationals of the claimant state, the
claim will lapse.
Though this requirement may now yield to
the view that the individual as such should be
allowed to institute an international claim against a
foreign state for violation of his own personal rights.
[Ibid]
What constitutes enforcement of claim?
An international claim for damages may be
resolved through negotiation or, if this fails, any of
the other methods of settling disputes, like good
offices, arbitration, and judicial settlement. There
have been cases also where hostile and forcible
measures have been employed and when war itself
has been resorted to as means of compelling
compliance with the demands of the injured state.
When state responsibility is established or
acknowledged, the duty to make reparation will
arise which may either take the form of restitution
(an obligation to re-establish the situation which
existed before the wrongful act was committed,
provided it is not materially impossible-
Responsibility of States for Internationally Wrongful
Acts,Art35 )or, where this is not possible,
satisfaction (When the injury cannot be made
good by restitution or compensation, it may consist
in an acknowledgement of the breach, an expression
of regret, a formal apology or another appropriate
modality, but it shall not be out of proportion to the
injury and may not take a form humiliating to the
responsible State-Ibid, Art 37) or compensation
(an obligation to compensate for the damage caused
thereby, insofar as such damage is not made good by
restitution; shall cover any financially assessable
damage including loss of profits insofar as it is
established-Ibid,Art 36), , or all three of these
together. Thus, the settlement may consist of the
restoration or replacement of the object of
the offense, a formal apology by the
delinquent state and payment of damages as
well. [Ibid]
How can state responsibility be avoided?
Under the Calvo clause, which is sometimes
incorporated by local states in contracts , an alien
waives or restricts his right to appeal to his own state
in connection with any claim arising from the
contract and agrees to limit himself to the remedies
available under the laws of the local state. [Ibid]
But this was rejected in North American
Dredging Company Claim (1926) by the Mexico-US
General Claims Commission. Accordingly, the right
to seek redress is a sovereign prerogative of a state
and a private individual has no right to waive the
state’s right.
Distinguish Calvo Doctrine from the Calvo
Clause.
The Calvo doctrine makes the state not
responsible for losses suffered by aliens in time of
civil war. This doctrine is named after Argentine
jurist Carlos Calvo who argued in his treaties on
International Law (Derechointernacionalteurico y
practico de Europa y America [1868]) that a state
could not accept responsibility for losses suffered by
foreigners as a result of civil war or insurrection, on
the ground that to admit responsibility in such cases
would be to menace the independence of weaker
states by subjecting them to the intervention of
strong states, and would “establish an unjustifiable
inequality between nationals and foreigners.”
37
 Calvo clause on the other hand, is used
chiefly in contracts between a government and
aliens. It prevents appeals by aliens to their home
governments for diplomatic intervention in behalf
of their contract rights. Its general tenor is that the
alien agrees that any dispute that might arise out of
the contract is to be decided by the national courts in
accordance with national law and is not to give rise
to any international reclamation. In some cases, the
alien is to be “considered a national” for the purpose
of the contract. (Fenwick, 292) [Sarmiento, 2007]
What are the preliminary objections which if
not answered may lead to the loss of the
claim of denial of justice?
The claim of denial of justice in cases
founded on diplomatic protection or on injury to
aliens, may be lost due to failure to answer some
preliminary objections which include lack of
nationality link and failure to exhaust
national remedies. [Bernas, 2007]
How is expropriation of alien property done
to avoid committing an international wrong?
The expropriation “shall be based on
grounds or reasons of public utility, security or the
national interest which are recognized as overriding
purely individual or private interests, both domestic
and foreign. In such cases the owner shall be paid
appropriate compensation in accordance with the
rules in force in the state taking such measures in
the exercise of its sovereignty and in accordance
with international law.”
What is the concept of exclusion of aliens?
State liability to aliens may also be avoided
by refusing their admission. Though, this is not
regarded as sound policy since it would provoke
retaliation in kind and ultimately isolate its nationals
from the rest of the international community.
Conversely, it would not be advisable either if the
entry of aliens were allowed indiscriminately
because they might pose a danger to the welfare and
especially the security of the admitting country.
Thus, the practice of most states now is to regulate
the immigration and stay of aliens and to provide for
their deportation whenever warranted. In proper
cases, arrangements may also be made for the
extradition of alien fugitives. [Cruz, 2000]
What is the difference between deportation
and exclusion?
Deportation is the removal of an alien out of
the country, simply because his presence is deemed
inconsistent with the public welfare, and without any
punishment being imposed or contemplated, either
under the laws of the country out of which he is sent,
or under those of the country to which he is taken.
While exclusion is the denial of entry to an alien.
[Ibid]
What is the concept of Extradition?
It is the surrender of a person by one state to
another state where he is wanted for prosecution or,
if already convicted, for punishment.
It differs from deportation because it is
effected at the request of the state of origin whereas
deportation is the unilateral act of the local state; it
is based on offenses generally committed in the state
of origin whereas deportation is based on causes
arising in the local state; and it calls for the return of
the fugitive to the state of origin whereas an
undesirable alien may be deported to a state other
than his own or the state of origin. [Ibid]
What is the basis of extradition?
It is based on treaty between the state of
refuge and the state of origin. In the absence of such
treaty, the local state has every right to grant asylum
to the fugitive and to refuse to deliver him back to
the latter state even if he is its national. If,
notwithstanding this right, the surrender requested
is still effected by the state of asylum, it is not
because of a demandable duty on its part but in
pursuance of policy or as a gesture of comity. [Ibid]
What are the fundamental principles of
extradition?
They are as follows:
1) Extradition is based on the consent
of the state of asylum as expressed in a
treaty or manifested as an act of goodwill.
(Fenwick, 331]
2) Under the principle of specialty, a
fugitive who is extradited may be tried only
for the crime specified in the request for
extradition and included in the list of
offenses in the extradition treaty. (US vs
Rauscher, 119, US 407) If he is charged with
any other offense committed before his
escape, the state of refuge- and not the
accused- has a right to object; nevertheless,
the prosecution will be allowed if the
extraditing state agrees or does not
complain.
38
 3) Any person may be extradited,
whether he be a national of the requesting
state, of the state of refuge or of another
state. (Oppenheim-Lauterpacht,698) The
practice of many states now, is not to
extradite their own nationals but to punish
them under their own laws in accordance
with the nationality principle of criminal
jurisdiction.
4) Political and religious offender are
generally not subject to extradition. It has
been held that “in order to constitute an
offense of a political character, there must
be two or more parties in the state, each
seeking to impose the government of their
own choice on the other.” (In re Meunier, 2
Q.B. 415, 1984)
What is attentat clause?
Under this clause, the murder of the
head of state or any member of his family is not
to be regarded as apolitical offense for purposes of
extradition.
 In the absence of special agreement, the
offense must have been committed within
the territory or against the interests of the
demanding state.
 The act for which the extradition is sought
must be punishable in both the requesting
and requested states under what is known as
the rule of double criminality.
What are the differences between an
extradition proceeding and a criminal
proceeding?
They are as follows:
1) extradition proceeding (ep) is
summary in nature while criminal
proceedings (cp) involve a full-blown trial;
2) in contradistinction to a cp, the
rules of evidence in ep allow admission of
evidence under less stringent standards;
3) a criminal case requires proof
beyond reasonable doubt for conviction
while a fugitive may be ordered extradited
“upon showing of the existence of a prima
facie case.”
4) In a criminal case, judgment
becomes executor upon being rendered
final, while in ep, our courts may adjudge an
individual extraditable but the President has
the final discretion to extradite him.
(Secretary of Justice vsLantion, Oct 17,
2000)
Is the right to bail applicable in extradition
cases?
In Rodriguez vs Judge (Feb 27, 2006), the
Court held that bail may be granted to a possible
extradite only upon a clear and convincing showing:
a) That he will not be a flight risk or a
danger to the community; and
b) That there exist special,
humanitarian and compelling
circumstances.
What is reconduction to the border?
Reconduction to the border is the forcible
expulsion of undesirable aliens by arresting them
and reconducting them to the border or their home
state. It is a police to police expulsion without any
conditions and without judicial intervention.
[Sarmiento, 2007]
What is “disguised extradition?
There is “disguised extradition” where
deportation is used to achieve extradition. [Ibid]
What is irregular rendition?
Irregular rendition is a practice of some
states that is borne of frustration caused by the
unwillingness of a country upon which a valid
extradition request has been made to carry out its
international obligation. Example: When US
retrieved John Surratt, who was accused of
conspiracy in the assassination of Abraham Lincoln.
Surrat was snatched forcibly by US agents from
Alexandria, Egypt, where he had fled following the
assassination. (Newhouse) [Sarmiento, 2007]
What are the different varieties of irregular
renditions?
They are as follows:
a) Transnational forcible
abduction
- One sovereign may simply kidnap
the culprit seeking refuge in a foreign land,
an action that is invariably against the law of
the foreign jurisdiction.
39
 - Example is the 1960 kidnapping of
Adolph Eichmann by Israeli agents in
Argentina. Eichmann was one of the
principal participants in Hitler’s Final
Solution.
b) Informal surrender or
“disguised extradition”
- Without process, the foreign
jurisdiction may simply grant permission or
silently accede to the requesting state’s
demand for the surrender of the fugitive or
it may affirmatively move to deport or expel
him or her.
c) Lures
- Tricked by subterfuge or deception,
the fugitive may be lured from an
extradition refuge to the territory of the
pursuing State, international waters, or to
another country permitting extradition to
the pursuing State.(Newhouse) [Sarmiento,
2007]
What is the Ker-FrisbieDoctrine
It is a doctrine that holds that criminal
defendants may be tried regardless of whether their
presence before the court was secured from outside
its territorial jurisdiction by means other than
pursuant to a valid extradition.[Ibid]
CHAPTER 5
Territory
Acquisition and Loss of Territory
What are the modes of acquiring and losing
territory?
They are as follows:
1. Acquisition
a. Discovery and occupation
It is an original mode of acquisition
by which territory not belonging to any state, or
terra nullius, is placed under the sovereignty
of the discovering state.
The territory need not be
uninhabited provided it can be established that the
natives are not sufficiently civilized and can be
considered as possessing not rights of sovereignty
but only rights of habitation. (Cruz, 2000)
Discovery of terra nullius is not
enough to establish sovereignty. It must be
accompanied by effective control as held in the Las
Palmas Case (Permanent Court Arbitration,
1928) [Bernas, 2009]
Effective control is relative and may
depend on the nature of the case – e.g. whether the
territory is inhabited or not and how fierce the
occupants are. Where there are two or more
claimants to a territory, effective control is also
relative to the strength of claims. (Eastern
Greenland Case PCIJ 1933) [Bernas, 2009]
What is hinterland doctrine?
Under the hinterland doctrine, the
state that discovers and occupies the coast shall also
have an exclusive right to occupy the hinterland, i.e.
the inland region lying behind a port. [Sarmiento,
2007]
What is the doctrine of inchoate title?
It means that since an effective
occupation must usually be a gradual process it is
considered that some weight should be given to
mere discovery, and it is regarded therefore as giving
an “inchoate title”, that is to say, a temporary
right to exclude other states until the
State of the discoverer has had a reasonable
time within which to make an effective occupation,
or a sort of option to occupy which other states must
respect while it lasts. (Briely, 154) [Ibid]
b. Prescription
Like occupation, it requires effective
control. But unlike occupation, the object of
prescription is not terra nullius. Thus, the required
length of effective control is longer than in
occupation. Prescription, might however, be
negated by a demonstrated lack of acquiescence by
the prior occupant. (Las Palmas Case) [Bernas,
2009]
c. Cession
It occurs when the acquiring
sovereign derives its title to a new territory by the
ceding sovereign’s transferring to it the supreme
power over that territory. Sovereigns can effect
cession only in a treaty between the ceding and
acquiring sovereigns. Cession requires possession or
40
occupation by the acquiring sovereign. When such
occupation takes place, the subjects domiciled in the
newly acquired insular area become
nationals of the acquiring sovereign.(Perl, 13)
[Sarmiento, 2007]
d. Subjugation
Territory is deemed acquired by
subjugation when, having been previously
conquered or occupied in the course of war by the
enemy, it is formally annexed to it at the end of that
war. Conquest alone confers only an inchoate right
on the occupying state; it is the formal act of
annexation that completes the acquisition. (Cruz,
2000)
e. Accretion and Avulsion
These can also lead to sovereignty
over territory. This is sovereignty by operation of
nature. Accretion is the gradual increase of territory
by the action of nature while avulsion is a sudden
change resulting for instance from the action of a
volcano. [Bernas,2009]
2. Loss
a. Abandonment or dereliction
Territory is lost by dereliction when
the state exercising sovereignty over it physically
withdraws from it with the intention of abandoning
it altogether. Two conditions must concur, namely,
the act of withdrawal and the intention to abandon.
b. Cession
It is a method by which territory is
transferred from one state to another by agreement
between them. It being essentially consensual,
transfer of title is effected upon the meeting of the
minds of the parties and does not have to bide the
actual delivery of the ceded territory to the acquiring
state.
c. Subjugation
Territory is lost through conquest
during war.
d. Prescription
It requires long, continued and
adverse possession to vest acquisitive title in the
claimant.
e. Erosion
f. Revolution
g. Natural causes (Cruz, 2000)
What are the components of territory?
They are the following:
11. Terrestrial domain
It refers to the land mass, which
may be integrate, as in the case of Iran, or
dismembered, as in the case of the US, or partly
bounded by water like Burma, or consist of one
whole island like Iceland. It may also be
composed of several islands, like the Philippines and
Indonesia, which are known as mid-ocean
archipelagos, as distinguished from the coastal
archipelagos like Greece. [Ibid]
What are State boundaries or frontiers?
They are the barriers distinguishing
one state’s territory from another state’s
territory. They extend not only across but both
upwards and downwards into the airspace and
subsurface areas. Boundaries are most often
determined by agreements between parties, rather
than being dictated by principles of International
Law. (Malone, 48) [Sarmiento, 2007]
12. Maritime and fluvial domain
It consists of the bodies of water
within the land mass and the waters adjacent to
the coasts of the state up to a specified limit. This
includes the internal waters in the land-
locked lakes, the rivers and man-made canals within
the land mass, and in certain bays, gulfs and straits,
as well as the external waters in the territorial sea.
[Ibid]
a. Rivers
They may be classified into national,
multi-national, international, and boundary.
National rivers are those that are situated
completely in the territory of one state (Pasig River)
as distinguished from the multinational rivers
(Congo River in Africa, Mekong River in Asia) that
flow through the territories of several states. An
International River is one that is navigable from
the open sea and is open to the use of vessels
from all states (Rhine and Danube). Boundary river
divides the territories of the riparian states (St.
Lawrence River between Canada and the US). [Ibid]
b. Bay
41
 It is a well-marked indentation
whose penetration is in such proportion to the width
of its mouth as to contain land-locked waters and
constitute more than a mere curvature of the coast.
An indentation shall not, be regarded as a bay unless
its area is as large as or larger than that of a
semi-circle whose diameter is a line drawn across
the mouth of that indentation. [Ibid]
What are historic bays?
They are those whose waters have
always been considered internal by the international
community notwithstanding that their openings
are more than 24 miles in width. Examples: Bay of
Cancale in France; the Bay of El Arab in Egypt;
Chesapeake Bay in the US, Hudson Bay in Canada
and the Zuyder Zee in Holland. [Ibid]
What is the Thalweg doctrine?
It aims to resolve water boundary
disputes. According to this doctrine, the boundary
between two states divided by a flowing body of
water should be drawn along the thalweg, which is
the deepest portion of the channel. [Sarmiento,
2007]
c. Territorial sea
It may be described as the belt of
waters adjacent to the coasts of the state, excluding
the internal waters in bays and gulfs, over which the
state claims sovereignty and jurisdiction. [Ibid]
What were the three (3) UN
Conferences on the Law of the Sea?
2. The First Conference was held in 1958 at
Geneva, Switzerland and resulted in the
adoption of the Convention on the
Territorial Sea and the Contiguous Zone, the
Convention on Fishing and the Living
Resources of the High Seas, and the
Convention on the Continental Shelf.
But it failed to define the breadth of the
territorial sea; and, moreover, the Conventions
adopted therein were ratified by only forty states.
The Philippines did not ratify because of the absence
of provisions recognizing the archipelago doctrine it
was advocating.
3. The Second Conference was held in in 1960,
again at Geneva, but it also left unresolved
the question of the breadth of the territorial
sea.
4. The Third Conference in 1970 by the UN, led
to the adoption of a new Convention on the
Law of the Sea, which was signed in Jamaica
in 1982 by 119 of the 150 conferee-states.
This Convention took effect on November
16, 1994, after its ratification by more than
the required 60 of the signatory states.
(Cruz, 2000)
Also known as the Convention on the Law of
the Sea of 1982, it is now the prevailing law on
maritime domain. Many of its provisions are a
repetition of earlier convention law or a codification
of customary law. Territorial sea is now the belt of
sea outwards from the baseline and up to 12 nautical
miles beyond. Where the application of the 12 mile
rule to neighboring littoral states would result in
overlapping, the rule now established is that the
dividing line is a median line equidistant from
the opposite baselines. But the equidistance rule
does not apply where historic title or other special
circumstances require a different measurement,
Article 15, 1982 LOS. [Bernas, 2009]
What is baseline?
It is the low-water mark along the coast
from which the belt of the territorial sea is
measured. (UNCLOS, Art 3) [Sarmiento 2007]
What determines the validity of baseline
delineations?
The validity of baseline delineations is
determined by International Law.(Fisheries Case)
[Ibid]
Two ways to draw the baseline:
1. Normal baseline is one drawn following
the “low-water line along the coast as marked on
large-scale charts officially recognized by the coastal
State.” This line follows the curvatures of the coast
and therefore would normally not consist of straight
lines.
2. Straight baseline method uses straight
lines which are drawn connecting selected points on
the coast without appreciable departure from the
general shape of the coast. [Bernas, 2009]
What are the limitations on the use of
straight-baseline method?
42
 The ICJ imposed the following limitations
on the use of the straight-baseline method:
1. The baseline must not depart to any
appreciable extent from the general
direction of the coast;
2. The areas lying within these lines must be
particularly closely linked to the land
formations which divide or surround them;
3. Account should be taken of certain economic
interests peculiar to a region when their
reality and importance are clearly evidenced
by a long usage. (UK vs Norway, UNCLOS,
Art.7) [ Sarmiento, 2007]
Distinguish the territorial sea and the
internal waters of the Philippines.
The territorial sea is an adjacent belt of sea
which may extend up to a breadth of 12 nautical
miles from the baseline over which the sovereignty
of a coastal State extends. (UNCLOS, Arts. 2,3)
Article 1 of the 1987 Constitution defines the
internal waters of the Philippines as “the waters
around, between, and connecting the islands of the
archipelago, regardless of their breadth and
dimensions.” Under Article 7 of the LOS
Convention, waters on the landward side of the
baseline of the territorial sea form part of the
internal waters of the State. [Sarmiento, 2007]
What is the concept of sovereignty over
territorial sea?
The sovereignty of the coastal state over its
territorial sea and the airspace above it as well as the
seabed under is the same as its sovereignty over its
land territory. (Art 2, LOS)
However, the sea is subject to the right of
innocent passage by other states. The rule on
innocent passage applies to ships and aircraft.
Submarines must surface. [Bernas,2009]
May a foreign nuclear-powered ship and the
ships carrying nuclear or other inherently
dangerous or noxious substances exercise
the right of innocent passage through the
territorial sea of another state?
Yes, however, they should carry documents
and observe special precautionary measures
established for such ships by international
agreements. (UNCLOS, Art 23) [Sarmiento,2007]
What is innocent passage?
It is passage that is not prejudicial to the
peace, good order or security of the coastal state.
Coastal states have the unilateral right to verify the
innocent character of passage, and it may take the
necessary steps to prevent passage that it determines
to be not innocent. The rule on innocent passage is
also applicable to Corfu Channel Case (UK vs
Albania, 1949, ICJ Rep). [Ibid]
When is delayed or discontinuous passage
allowed?
The passage shall be continuous and
expeditious. However, passage may include
stopping and anchoring, but only in the following
cases:
1. The delayed passage is incidental to
ordinary navigation;
2. It is rendered necessary by force majeure or
distress; or
3. For the purpose of rendering assistance to
persons, ships or aircraft in danger or
distress. (UNCLOS, Article 18{2}) [Ibid]
What is the right of transit passage?
It means the exercise of the freedom of
navigation and overflight solely for the purpose of
continuous and expeditious transit of the strait
between one part of the high seas or an exclusive
economic zone and another part of the high seas or
an exclusive economic zone and another part of the
high seas or an exclusive economic zone.
This requirement of continuous and
expeditious transit does not preclude passage
through the strait for the purpose of entering,
leaving or returning from a State bordering the
strait, subject to the conditions of entry to that State.
(UNCLOS, Art 38{2}) [Ibid]
Differentiate transit passage from innocent
passage.
1. Transit passage applies through straits,
while innocent passage applies through
territorial seas;
2. Transit passage covers navigation and
overflight by aircrafts, while innocent
passage covers navigation only;
3. Transit passage may not be unilaterally
suspended while innocent passage may be
43
 unilaterally suspended. (UNCLOS, Art.
25{3}) [Ibid]
What are internal waters?
They are all waters (part of the sea, rivers,
lakes, etc) landwards from the baseline of the
territory. Sovereignty over these waters is the same
extent as sovereignty over land, and it is not subject
to the right of innocent passage. [Ibid]
Do merchant vessels have a right of access to
the ports of another state?
Yes, the freedom of access to ports by
foreign merchant vessels is a rule of custom
conditioned upon reciprocity. But, landlocked
nations may not be denied freedom on access to
ports of another solely because of their inability to
reciprocate. (UNCLOS, Art 131) [Ibid]
May a coastal state deny access to its ports to
foreign vessels?
The ports of every coastal state must be
open to foreign vessels, as a rule. Though their ports
may be closed but only when the vital interest of the
state so require. (Saudi Arabia vs ARAMCO, Award
of August 23, 1938)
What are the principal theories on the
jurisdiction of authorities of a coastal state
over crimes committed on board foreign
merchant ships which enter or dock in its
ports? Which of the theories is followed in
this jurisdiction?
Under the English rule, the coastal state shall
have jurisdiction over all offenses committed on
board such vessels, except only where they do not
compromise the peace of the port.
Under the French rule, the flag state shall have
jurisdiction over all offenses committed on board
such vessels, except only where they compromise the
peace of the port. (Cruz, 2000)
It is the English rule that is applicable in this
jurisdiction. (People vs Wong Cheng, GR No. L-
18924, October 19, 1922)
What are archipelagic waters?
They are internal waters areas enclosed after
the straight baseline, pursuant to the method set
forth in Article 7 (Law of the Sea) has been
established. [Ibid]
Is there a right of innocent passage through
archipelagic waters?
Yes. Article 52 of the LOS Convention
provides that ships of all states enjoy the right of
innocent passage through archipelagic waters. But
this right cannot be invoked inside the closing lines
within the archipelagic waters which had been
drawn for the delimitation of internal waters.
(UNCLOS, Art.50) [Ibid]
What are the limitations on the right of an
archipelagic state to suspend the right of
innocent passage of foreign ships in
archipelagic waters?
They are as follows:
1. The suspension is made without
discrimination in form or in fact among foreign
ships;
2. The suspension is only temporary;
3. It must specify the areas of its archipelagic
waters where innocent passage shall not be allowed;
4. Such suspension is essential for the
protection of its security; and
5. Such suspension shall take effect only after
having been duly published. (UNCLOS, Art. 52{2})
[Ibid]
What is archipelagic sea lanes passage?
Under Article 53(3) of the UNCLOS, it
means the exercise in accordance with the LOS
Convention of the rights of navigation and over flight
in the normal mode solely for the purpose of
continuous, expeditious and unobstructed transit
between one part of the high seas or an exclusive
economic zone. [Ibid]
Is there a right of archipelagic sea lanes
passage?
Yes, under UNCLOS Article 53 (1, 2) an
archipelagic state may designate sea lanes and air
routes above, suitable for the continuous and
expeditious passage of foreign ships and aircraft
through or over its archipelagic waters and the
adjacent territorial sea. All ships and aircraft enjoy
44
the right of archipelagic sea lanes passage in such
sea lanes and air routes. [Ibid]
Define archipelago and archipelagic state.
An archipelago means a group of islands,
including parts of islands, interconnecting waters
and other natural features which are so closely
interrelated that such islands, waters and other
natural features form an intrinsic geographical,
economic and political entity, or which historically
have been regarded as such.
An archipelagic state means a state
constituted wholly by one or more archipelagos and
may include other islands. (UNCLOS, Art 46)
[Sarmiento, 2007]
What is the archipelagic theory?
The archipelagic theory considers a group of
islands which are so closely interrelated and their
interconnecting waters as one geographical unit.
The theory allows an archipelagic baselines joining
the outermost points of the outermost islands and
drying reefs of the archipelago. The waters
regardless of their depth or distance from the coast,
and within these archipelagic waters, the
archipelagic state may draw closing lines for the
delimitation of its internal waters. (UNCLOS, Arts.
46, 47, 50) [Ibid]
What is contiguous zone?
It is the area of water not exceeding 24
nautical miles from the baseline. It thus extends 12
nautical miles from the edge of the territorial sea.
The coastal state exercises authority over that area to
the extent necessary to prevent infringement of its
customs, fiscal, immigration or sanitation authority
over its territorial waters or territory and to punish
such infringement.(Article 33, 1 & 2) [Ibid]
What is exclusive economic zone or
“patrimonial sea”?
It is an area extending not more than 200
nautical miles beyond the baseline. The coastal state
has rights over the economic resources of the sea,
seabed and subsoil – but the right does not affect the
right of navigation and overflight of other states.
This is a compromise between those who wanted a
200-mile territorial sea and those who wanted to
reduce the powers of coastal states.
The provisions on the exclusive economic
zone are both a grant of rights to and an imposition
of obligations on coastal states relative to the
exploitation, management and preservation of the
resources found within the zone. [Ibid]
What are the two primary obligations of the
coastal states?
1. They must ensure through proper
conservation and management measures that the
living resources of the EEZ are not subjected to over-
exploitation which includes the duty to maintain and
restore populations of harvested fisheries at levels
which produce a “maximum sustainable yield.”
2. They must promote the objective of
“optimum utilization” of the living resources thus
they should determine the allowable catch of living
resources. If the coastal state does not have the
capacity to harvest the allowable catch, it must grant
access to other states. (Arts. 55 to 75) [Ibid]
The delimitation of the overlapping
exclusive economic zone between adjacent states is
determined by agreement.
What is continental shelf?
Otherwise known as archipelagic or insular
shelf for archipelagos refers to a) the seabed and
subsoil of the submarine areas adjacent to the
coastal state but outside the territorial sea, to a
depth of two hundred meters or, beyond that limit,
to where the depth allows exploitation, and b) the
seabed and subsoil of areas adjacent to islands.
The coastal state has the right to explore and
exploit its natural resources, to erect installations
needed, and to erect a safety zone over its
installations with a radius of 500 meters. The right
does not affect the right of navigation of others.
Moreover, the right does not extend to non-resource
materials in the shelf area such as wrecked ship and
their cargoes. [Ibid]
What are the three competing views
regarding the legal regime governing the
exploitation of the mineral resources of the
deep sea bed?
They are as follows:
1. “Common heritage of mankind” view is
adopted by the UN General Assembly in the
Declaration of Principles Governing the Sea-Bed and
the Ocean Floor, and the Subsoil Thereof beyond the
Limits of National Jurisdiction (Resolution No. 2749
[XXV], December 17, 1970.) It declared that:
45
a. The sea-bed and ocean floor, and the subsoil
thereof, beyond the limits of national jurisdiction
(referred to as area), as well as the resources of the
area, are the common heritage of mankind;
b. The area shall not be subject to
appropriation by any means by states of persons,
natural or juridical, and no state shall claim
sovereignty or sovereign rights over any part thereof;
c. The area shall be open to use exclusively for
peaceful purposes by all states, whether coastal or
landlocked, without discrimination;
d. The exploration of the area and the
exploitation of its resources shall be carried out for
the benefit of mankind as a whole.
2. “Freedom of the high seas” view
considers the deep seabed and the subsoil as part of
the freedom of the high seas that are open for
exploration and exploitation by any state but not
subject to exclusive claims or appropriation;
3. “Res nullius view” regards the sea bed
and the subsoil as owned by no one and may be
explored and exploited by the first state which
claims the area to the exclusion of other states.
[Sarmiento, 2007]
What is an island?
Under Article 121 of the LOS, an island is a
naturally formed area of land, surrounded by water,
which is above water at high tide. It can have its
own territorial sea, exclusive zone and continental
shelf. However, rocks “which cannot sustain human
habitation or economic life” only have a territorial
sea.
Artificial islands or installations are not
islands in the sense of Article 121. But coastal states
may establish safety zones around artificial islands
and prescribe safety measures around them. (Art.
60{4} and {5}) [Bernas, 2009]
What are high seas?
They are all parts of the sea that are not
included in the territorial sea or in the internal
waters of a State. (Article 1, Geneva Convention)
The high seas are subject to six freedoms:
2. Freedom of navigation;
2. Freedom of overflight;
3. Freedom of fishing;
4. Freedom to lay submarine cables and
pipelines;
5. Freedom to construct artificial islands and
structures; and
6. Freedom of scientific research.
What is hot pursuit?
Under Article 111 of the LOS, hot pursuit of a
foreign vessel is allowed where there is good reason
to believe that the ship has violated laws or
regulations of a coastal state. The pursuit must start
when the foreign vessel is within the internal waters,
the archipelagic waters, the territorial waters or the
contiguous zone of the pursuing state. Without
being interrupted, the pursuit may continue into the
high seas. If the foreign vessel is in the contiguous
zone, it may be pursued only for violations of the
rights of the coastal state in the contiguous zone.
Hot pursuit also applies to violations of
applicable laws and regulations of the coastal state
in the exclusive economic zone of the continental
shelf including the safety zones of the shelf.
It must stop as soon as the ship pursued
enters the territorial waters of its own state or of a
third state.
It may be carried out only by warships or military
aircraft, or any other ship or aircraft properly
marked for that purpose. [Bernas, 2009]
What is the aerial domain?
It is the airspace above the terrestrial
domain and the maritime and fluvial domain of the
state to an unlimited altitude but not including outer
space.
Every State “has complete and exclusive
sovereignty over the airspace above its territory”.
(Paris Convention on Aerial Navigation; and Chicago
Convention on International Civil Aviation) [Cruz,
2000]
What is the authority of a State over the
airspace above the high seas?
The airspace above the high seas shall be
free from the control or sovereignty of any state.
[Sarmiento, 2007]
What are the five air freedoms?
46
 1. Overflight or the privilege to fly across its WHAT IS JURISDICTION?
territory without landing;
2. Non-traffic landing or the privilege to land It is the authority exercised by a state over persons
for non-traffic purposes; and things within or sometimes outside its territory,
3. Putting down traffic or the privilege to put subject to certain exceptions. (Cruz, 2000)
down passengers, mail and cargo taken on
in the territory of the State whose Jurisdiction also means the authority to affect legal
nationality the aircraft possesses; interests. With respect to the powers of the
4. Picking up traffic or the privilege to take on government, jurisdiction can be:
passengers, mail and cargo destined for the
territory of the State whose nationality the 1. Jurisdiction to prescribe norms of conduct
aircraft possesses; and (legislative jurisdiction;
5. International traffic or the privilege to take 2. Jurisdiction to enforce the norms prescribed
on passengers, mail and cargo destined for (executive jurisdiction), and
the territory of any other contracting State 3. Jurisdiction to adjudicate (judicial
and the privilege to put down passengers, jurisdiction). [bernas, 2009]
mail and cargo coming from any such
territory. [Ibid]
WHAT MAY BE SUBJECT TO THE
What is outer space?
JURISDICTION OF A STATE?
It is the region beyond the earth’s
atmosphere and is not subject to the jurisdiction of
any state. Jurisdiction may be exercised by a state over:
Outer space, including the moon and other
 its nationals;
celestial bodies, shall be free for exploration and use
by all states without discrimination of any kind, on a
 the terrestrial domain;
basis of equality and in accordance with
international law.  the maritime and fluvial domain;
It is not subject to national appropriation by
 the continental shelf;
claim of sovereignty, by means of use or occupation
or by any other means. [Cruz, 2000]  the open seas;
Which state shall retain jurisdiction and
 the aerial domain;
control over launched into outer space?

The State launching an object into outer  outer space; and

space shall retain jurisdiction and control over such
 other territories. (Cruz, 2000)
object, and over any personnel thereof, while in
outer space or on a celestial body. [Ibid]

Which State shall be internationally liable for WHAT ARE THE TWO KINDS OF
any damage that may be caused by such JURISDICTION? (CRUZ, 2000)
object to another state or to any person?

It shall be the state launching the object into

outer space. It can be generally classified as personal and
territorial.

CHAPTER 6
PERSONAL JURISDICTION
JURISDICTION OF STATES
It is the power exercised by a state over its nationals
and is based on the theory that a national is entitled
to the protection of his state wherever he may be and

47
is, therefore, bound to it by a duty of obedience and
allegiance.
Such duty follows the national even when he is
outside the territory of his state and he may not
ordinarily be excused from it unless he is prepared
to renounce his own nationality.
The fact that personal jurisdiction is not easy to
enforce does not detract from the legal power
possessed by the state over its nationals abroad.
Examples of the assertion of its personal jurisdiction
by the Philippines are found in the following
provisions of laws:
 Article 15 of The New Civil Codewhich
provides that “laws relating to family rights and
duties, or to the status, condition and legal capacity
of persons, are binding upon citizens of the
Philippines, even though living abroad.”
 Article 16 of The New Civil Codewhich
states that “intestate and testamentary succession,
both with respect to the order of succession and to
the amount of successional rights and to the intrinsic
validity of testamentary provisions, shall be
regulated by the national law of the person whose
succession is under consideration, whatever may be
the nature of the property and regardless of the
country wherein said property may be found.”
 Section 21 of the Revised Internal
Revenue Codeprovides for jurisdiction to tax
Filipino citizens , even if not residing in the
Philippines for income received by them from all
sources. (Cruz, 2000)
However,international law limits itself to criminal
rather than civil jurisdiction which is a subject for
private international law or conflicts of law.
WHAT ARE THE PRINCIPLES OF CRIMINAL
JURISDICTION? (Bernas, 2009)
The following are the five principles of criminal
jurisdiction:
1. THE TERRITORIALITY PRINCIPLE
Sovereignty over territory is the fundamental source
of jurisdiction. A state has absolute, but not
necessarily exclusive, power to prescribe, adjudicate
and enforce rules for conduct that occurs within its
territory. Thus, it is vital that boundaries be
determined.
HOW DOES THE THIRD RESTATEMENT
SUMMARIZE THE RULES ON BOUNDARIES
WHERE STATES ARE NOT ISLANDS BUT
PARTS OF A LARGER LAND MASS?
1. The rules are summarized as follows:
2. The boundary separating the land areas of
two states is determined by acts of the states
expressing their consent to its location.
3. Unless a consent to a different rule has been
expressed,
4. When the boundary between two states is a
navigable river, its location is the middle of
the channel of navigation (Thalweg
Doctrine);
5. When the boundary between two states is a
non-navigable river or a lake, its location is
the middle of the river or lake.
WHAT IS THE SO-CALLED “EFFECTS
DOCTRINE”?
It is an aspect of the territoriality principle. Under
this doctrine, a state also has jurisdiction over acts
occurring outside its territory but having effects
within it. This doctrine consists of two principles:
a. Subjective territorial principle
Under this principle, a state has jurisdiction to
prosecute and punish for crime commenced
within the state but completed or consummated
abroad.
b. Objective territorial principle
It says that a state has jurisdiction to prosecute and
punish for crime commenced outside the state but
consummated within its territory.
2. THE NATIONALITY PRINCIPLE
Under this principle, every state has jurisdiction
over its nationals even when those nationals are
outside the state.
48
As to corporations, a state has jurisdiction over
corporations organized under its laws. Many states
assert jurisdiction over corporations whose principal
place of business or registered office is located in
their territories. Although still a controversial
practice, states have also sought to regulate
corporations organized or having their principal
place of business abroad when these corporations
are owned or controlled by nationals. Still more
controversial, are multi-national corporations which
register various addresses for different purposes.
A state has jurisdiction over vessels flying its flag.
But flags of convenience might be challenged on the
ground of lack of sufficient link. This principle is
generally applicable to aircraft and spacecraft.
Stateless persons or those who do not have a
nationality are either de jure or de facto. De jure
stateless persons are those who have lost their
nationality, if they had one, and had not acquired a
new one. De facto stateless are those who had
nationality but to whom protection is denied by their
state when out of the state.
Though not protected by any state, stateless persons
are protected against violation of their human rights
through adherence to generally accepted principles
of international law and observance of treaty
obligations. (Mejoffvs Director of Prisons, 90 Phil
70, 1951)
3. THE PROTECTIVE PRINCIPLE
In accordance with this principle, a state may
exercise jurisdiction over conduct outside its
territory that threatens its security, as long as that
conduct is generally recognized as criminal by states
in the international community. (Restatement
402{3}) This conditional clause does not include
acts committed in the exercise of the liberty
guaranteed an alien by the law of the place where the
act was committed. [Bernas, 2009]
WHAT ARE THE EXAMPLES OF ACTS
COVERED BY THIS PRINCIPLE?
These include plots to overthrow the government,
forging its currency, and plot to break its
immigration regulations. (Joyce vs Director of
Public Prosecutions, House of Lords 1946)
WHAT IS THE LIMITATION ON THE
APPLICATION OF THE PROTECTIVE
PRINCIPLE?
The principle shall only be applicable to those
offenses posing a direct, specific threat to national
security. (US vsYunis 681 F. Supp.896 {1998})
4. THE UNIVERSALITY PRINCIPLE
This principle recognizes that certain activities,
universally dangerous to states and their subjects,
require authority in all community members to
punish such acts wherever they may occur, even
absent a link between the state and the parties or the
acts in question. This principle started with piracy.
WHAT ARE THE CRIMES COVERED BY
THIS PRINCIPLE?
These include piracy, genocide, crimes against
humanity, war crimes, aircraft piracy and terrorism.
There is also a growing support for universal
jurisdiction over crimes against human rights.
WHAT IS PIRACY?
In international law, it means any illegal act of
violence or depredation committed for private ends
on the high seas or outside the territorial control of
any state.
WHAT IS GENOCIDE?
Under Article 6 of the Statute of the International
Criminal Court, it means any of the following acts
committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as
such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to
members of the group;
c. Deliberately inflicting on the group
conditions of life calculated to bring about its
physical destruction in whole or in part;
d. Imposing measures intended to prevent
births within the group;
e. Forcibly transferring children of the group
to another group.
WHAT ARE CRIMES AGAINST HUMANITY?
49
Under Article 7 of the Statute of the ICC, it means
any of the following acts when committed as part of
a wide-spread or systematic attack directed against
any civilian population, with knowledge of the
attack:
 Murder;
 Extermination;
 Enslavement;
 Deportation or forcible transfer of
population;
 Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules of
international law;
 Torture;
 Rape; sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
 Persecution against any identifiable group
or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3,
or other grounds that are universally recognized as
impermissible under international law, in
connection with any act referred to in this paragraph
or any crime within the jurisdiction of the Court:
 Enforced disappearance of persons;
 The crime of apartheid;
 Other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health.
WHAT ARE WAR CRIMES?
It means grave breaches of the Geneva Conventions
of August 12, 1949, which are any of the acts
enumerated under Article 8 of the ICC Statute
against persons or property protected under the
provisions of the relevant Geneva Convention.
WHAT IS TERRORISM?
Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not
taking an active part in the hostilities in a situation
of armed conflict, when the purpose of such act, by
its nature or context, is to intimidate a population,
or to compel a Government or an international
organization to do or abstain from doing any act.
(UN General Assembly Resolution No 54/109
adopted on February 25, 2000 entitled The
International Convention for the Suppression of the
Financing of Terrorism) [Sarmiento, 2007]
5. THE PASSIVE PERSONALITY PRINCIPLE
Under this principle, a state may apply law –
particularly criminal law – to an act committed
outside its territory by a person not its national
where the victim of the act was its national.
This principle has not been ordinarily accepted for
ordinary torts or crimes, but it is increasingly
accepted as applied to terrorist and other organized
attacks on a state’s nationals by reason of their
nationality, or to assassination of a state’s diplomatic
representatives or other officials.
WHAT ARE THE THREE MODES OF
RESOLVING CONFLICT OF JURISDICTION?
They include the following:
2. The balancing test (Timberlane Lumber Co.
vs Bank of America, 549 F2d 597)
3. International comity (Hartford Fire
Insurance Co. vs California, 509 US 764, 1993)
4. Forum non convenience (Piper Aircraft Co.
vsReyno, 454 US 235, 1981)
2. TERRITORIAL JURISDICTION (CRUZ,
2000)
As a general rule, a state has jurisdiction over all
persons and property within its territory. The
jurisdiction of the nation within its own territory is
necessary, exclusive and absolute. It is susceptible
of no limitation not imposed by itself.
1. LAND JURISDICTION
Subject to exceptions, everythingfound within the
terrestrial domain of the state is under its
jurisdiction. Nationals and aliens, including non-
residents, are bound by its laws, and no process from
a foreign government can take effect for or against
them within the territory of the local state without
its permission
50
As against all other states, the local state has
exclusive title to all property within its territory,
which it may own in its own corporate capacity or
regulate when under private ownership through its
police power or forcibly acquire through the power
of eminent domain and be subject to its taxing
power.
2. MARITIME AND FLUVIAL
JURISDICTION
Generally, the internal waters of a state are
assimilated to the land mass and subjected to the
same degree of jurisdiction exercised over the
terrestrial domain. This rule covers the so-called
enclosed waters, such as the land-locked lakes,
national rivers and man-made canals.
Civil, criminal and administrative jurisdiction is
exercised by the flag state over its public vessels
wherever they may be, provided they are not
engaged in commerce. Foreign merchant vessels
docked in a local port or bay are under the
jurisdiction of the coastal state in civil matters but
criminal jurisdiction is determined according to
either the English rule or French rule.
The jurisdiction of the state over its interior waters is
more exclusive than that which it exercises over its
territorial waters. Subject only to a few exceptions,
it is the right of the coastal state to enforce all its
laws to the full extent in its territorial waters and in
proper cases to bar both public and merchant
foreign vessels from entering the same. It may even
use force, if necessary, to prevent any encroachment
on its territorial integrity.
Under the archipelago doctrine espoused by the
Philippines, “the waters around, between and
connecting the islands of the archipelago, regardless
of their breadth and dimensions, form part of the
internal waters of the Philippines.” Being internal
waters, they are subject to the exclusive jurisdiction
of the Philippines. Although this claim has been
substantially accepted in the 1982 Convention on the
Law of the Sea, it has been provided that
archipelagic sea lanes are to be laid on these waters
over which foreign ships will have the right of
passage as if they were open sea.
Thus, a foreign vessel need not go around our
internal waters but may use these archipelagic sea
lanes in negotiating the distance from one point of
the open sea to another.
3. “PROTECTIVE JURISDICTION” OVER
CONTIGUOUS ZONE
This claim of some states has been confirmed by the
Convention on the Territorial Sea and Contiguous
Zone, where it is provided that “in a zone of the high
seas contiguous to its territorial sea, the coastal state
may exercise the control necessary to: prevent
infringement of its customs, fiscal, immigration or
sanitary regulations within its territory or territorial
sea; and punish infringement of the above
regulations within its territory or territorial sea.
4. JURISDICTION OVER CONTINENTAL
SHELF
The coastal state has the sovereign right to explore
the continental shelf and to exploit its natural
resources and for this purpose it may erect on its
installations and equipment as may be necessary.
However, this right shall not affect the legal nature
of the superjacent waters as open seas or of the
airspace above such waters and their use as such by
other states shall not be impaired or disturbed.
The coastal states is allowed to establish on the open
seas immediately above the installations a safety
zone with a radius of 500 meters over which it may
exercise jurisdiction for the protection of its
properties underneath.
WHAT IF THE COASTAL STATE DOES NOT
EXERCISE ITS RIGHT TO EXPLORE THE
CONTINENTAL SHELF OR EXPLOIT ITS
RESOURCES?
Since this right is exclusive to the coastal state, if the
latter does not explore the continental shelf or
exploit its natural resources, no one may undertake
these activities or make a claim to the continental
shelf without the consent of the coastal state.
5. JURISDICTION OVER THE EEZ OR
PATRIMONIAL SEA
All living and non-living resources found therein
belong exclusively to the coastal state.
6. JURISDICTION OVER THE OPEN
SEAS
51
Open seas or high seas are res communes and
available to the use of all states for purposes of
navigation, flying over them, laying submarine
cables or fishing. In times of war, hostilities may be
waged on the open seas.
IN WHAT INSTANCES MAY A STATE
EXERCISE JURISDICTION ON THE OPEN
SEAS?
 Over its Vessels
The flag state has jurisdiction over its public vessel
at all times, whether they be in its own territory, in
the territory of other states or on the open areas.
Such jurisdiction is exercised over merchant vessels
when the latter are within its territory, when
jurisdiction is waived or cannot be exercised by the
territorial sovereign, or when such vessels are on the
open seas.
 Over Pirates
Being enemies of mankind, pirates may be captured
on the open seas by the vessels of any state, to whose
territory they may be brought for trial and
punishment. Where a pirate vessel attempts to
escape into the territorial waters of another state,
the pursuing vessel may continue the chase but is
obliged of turning over the pirates, when captured,
to the coastal state authorities. Piracy is committed
for private ends, not political motives thus
insurgents, may not be treated as pirates.
 In the exercise of the right of visit and
search
Under the laws of neutrality, the public vessels or
aircraft of a belligerent state may visit and search
any neutral merchant vessel on the open seas and
capture it if it is found or suspected to be engaged in
activities favorable to the other belligerent.
 Under the doctrine of hot pursuit
If a foreign merchant vessel committed an offense
within the territorial waters of the coastal state, its
own vessels may pursue the offending vessel into the
open sea and upon capture bring it back to its
territory for punishment.
The hot pursuit to be lawful must be begun before
the offending vessel has left the territorial waters, or
the contiguous zone of the coastal state with respect
to violation of rights enforceable thereon. The
pursuit must also be continuous or unabated;
otherwise, it will be deemed to have “cooled” and
can no longer be resumed.
7. AERIAL JURISDICTION
It is a generally accepted principle that the local
state has jurisdiction over the airspace above it to an
unlimited height, or at the most up to where outer
space begins. Thus, no foreign aircraft, civil or
military, may pass through the aerial domain of a
state without its consent.
WHAT IS THE EXTENT OF JURISDICTION
OF THE STATE OF REGISTRATION OF THE
AIRCRAFT?
Under the Convention on Offenses and Certain
Other Acts Committed on Board Aircraft (September
14, 1963), the state of registration of the aircraft has
jurisdiction over offenses and acts committed on
board while it is in flight or over the high seas or any
other area outside the territory of any state.
WHAT ARE THE EXCEPTIONS TO THIS
RULE?
Other states may exercise jurisdiction over such
aircraft when:
1. The offense has effect on the territory of
such state;
2. The offense has been committed by or
against a national or permanent resident of such
state;
3. The offense is against the security of such
state;
4. The offense consists of a breach of any rules
or regulations relating to the flight or maneuver of
aircraft in force in such state;
5. The exercise of jurisdiction is necessary to
ensure the observance of any obligation of such state
under a multilateral international agreement.
Outer space
Outer space or the region beyond the earth’s
atmosphere, like open seas, is not subject to the
jurisdiction of any state.
Outer space, including the moon and other celestial
bodies, shall be free for exploration and use by all
states without discrimination of any kind, on the
basis of equality and in accordance with
international law. But they are not subject to
52
national appropriation by claim of sovereignty, by  Through the enjoyment of easements or
means of use, occupation or any other means. servitudes, such as the easement of innocent passage
or the easement or arrival under stress. (Portuguese
A state launching an object into outer space shall Enclaves Case)
retain jurisdiction and control over such object, and
over any personnel thereof, while in outer space or
on celestial body.

Such state shall be internationally liable for any

damage that may be caused by such object to
another state or to any person.
CHAPTER 7

IMMUNITY FROM JURISDICTION

Other territories

WHEN MAY A STATE EXTEND ITS

JURISDICTION BEYOND ITS TERRITORY
AND OVER TERRITORY NOT FALLING
UNDER ITS SOVEREIGNTY BY VIRTUE OF What is the general rule on the jurisdiction
CUSTOMARY OR CONVENTIONAL of a state within its territory?
INTERNATIONAL LAW?
The jurisdiction of a state within its territory
1. Through assertion of its personal is complete and absolute.
jurisdiction over its nationals abroad or the exercise
of its right to punish certain offenses committed
outside its territory against its national interests
What are the two categories of exceptions to
even if the offenders are non-resident aliens.
this rule?
2. On the basis of its relations with other states
or other territories, as when it establishes a colonial  Sovereign immunity
protectorate, or administers a trust territory, or  Immunity of the head of state
occupies enemy territory in time of war.  Immunity of the state itself
 Immunity of the representative of states or
3. When the local state waives jurisdiction over diplomatic and consular immunities
persons and things within its territory. Example is (Bernas, 2009)
the jurisdiction of sending state over its army sent to
foreign shores. Another example are the exceptions
to the English and French rules on criminal
jurisdiction over foreign merchant vessels. Immunity of head of state

4. Through acquisition of extraterritorial

rights.
WHAT IS THE DISTINCTION BETWEEN
EXTERRITORIALITY AND
EXTRATERRITORIALITY?
Exterritoriality refers to the exemption of persons
and property from the local jurisdiction on the basis
of international custom whereas extraterritoriality
applies only to persons and is based on treaty or
convention. Because of the rise of nationalism and
the sovereign equality of states, extraterritoriality
has become discredited. However, exterritoriality
remains a respected principle of international law as
illustrated by the immunities of the head of state in a
foreign country.
Does the immunity of a head of state apply
when the subject of the suit is a private
matter?
Yes, in the case of Mighellvs Sultan of
Johore, the case for breach of promise to marry filed
against the Sultan of Johore was dismissed upon
verification of his being a sitting foreign sovereign.
The immunity that is recognized is absolute for a
sitting head of state. (1 QB 148, 1894)
Is this immunity still available to an
individual who is no longer a head of state?

53
 Yes, as held in the Pinochet Case, a former
head of state enjoys immunity rationemateriae in
relation to acts done by him as head of state as part
of his official functions as head of state. (March 24,
1999, House of Lords)
State Immunity
What is the traditional rule of State
Immunity?
It exempts a state from being sued in the
courts of another State without its consent or waiver.
This rule is a necessary consequence of the
principles of independence and equality of States.
(USA vs Ruiz, May 22, 1985)
What is the restrictive application of State
Immunity?
There is a need to distinguish the activities
of states into sovereign and governmental acts (jure
imperii) and private, commercial and proprietary
acts (jure gestionis). State immunity now extends
only to acts jure imperii. This application of State
immunity is now the rule in the US, UK and other
states in Western Europe.
The restrictive application of State immunity
is proper only when the proceedings arise out of
commercial transactions of the foreign sovereign, its
commercial activities or economic affairs. It does
not apply where the contract relates to the exercise
of its sovereign functions. (Ibid)
May the mere entering into a contract by a
foreign State with a private party be
construed as the ultimate test of whether or
not it is an act jure imperii or jure gestionis?
The act of entering into a contract by a
foreign state with a private party cannot be
construed as the ultimate test of whether or not it is
an act jure imperii or jure gestionis. Such act is only
the start of the inquiry if the foreign state is engaged
in the regular conduct of a business. If the foreign
state is not engaged regularly in a business or
commercial activity, the particular act or transaction
must then be tested by its nature. If the act is in
pursuit of a sovereign activity, or an incident thereof,
then it is an act jure imperii. (Republic of Indonesia
vsVinzon June 26, 2003)
What are the examples of acts of foreign
states that had been considered as an act jure
imperii by the Supreme Court?
 The conduct of public bidding for the repair
of a wharf at a US Naval station. The
projects are an integral part of the naval
base which is devoted to the defense of both
the US and the Philippines, a function of the
government of the highest order; they are
not utilized for nor dedicated to commercial
or business purposes. (USA vs Ruiz, 136
SCRA 487, 1987)
 Entering into a Maintenance Agreement by
Indonesia for specified equipment at its
Embassy like air conditioning units,
generator sets, electrical facilities, water
heaters, and water motor pumps. The SC
held that the establishment of a diplomatic
mission is an act jure imperii. The State
may enter into contracts with private
entities to maintain the premises,
furnishings and equipment of the embassy
and the living quarters of its agents and
officials. (Republic of Indonesia vsVinzon,
June 26, 2003)
Cite examples of acts of foreign states that
had been considered as an act jure gestionis
by the Supreme Court?
Hiring of a cook in the recreation center
catering to American servicemen and the general
public at the John Hay Air Station in Baguio City
and the bidding for the operation of barber shops in
Clark Air Base in Angeles City (US vs Rodrigo, 182
SCRA 644, 1990)
Can there be a claim of immunity when the
acts of a state official were committed
outside the scope of authority and contrary
to law?
In US vs Reyes, it was held that immunity
does not extend to a “public official who is made to
account in his capacity as such for acts contrary to
law and injurious to the rights of plaintiff… The
rationale for this ruling is that the doctrine of state
54
immunity cannot be used as an instrument for
perpetrating an injustice.” (March 1, 1993)
How should a state claiming sovereign
immunity proceed?
sovereign equality of States, as expressed in the
maxim par in parem non habet imperium. All states
are sovereign equals and cannot assert jurisdiction
over one another. A contrary attitude would “unduly
vex the peace of nations.” (Sanders vsVeridiano II,
162 SCRA 88, 1988)

When a state or international agency wishes

to plead sovereign or diplomatic immunity in a
foreign court, it requests the Foreign Office of the
state where it is sued to convey to the court that said
defendant is entitled to immunity. (The Holy See vs
RTC December 1, 1994) What are the exceptions to the Doctrine of
State Immunity?
In the Philippines, the practice is for the
foreign government or the international Under the UN Convention on the Jurisdictional
organization to first secure an executive Immunities of States and their Property, the defense
endorsement of its claim of sovereign or diplomatic of State Immunity is not applicable in the following
immunity. (Bernas, 2009) cases:

What is the proper course of action that may 1. When there is waiver of State immunity
be taken by a party aggrieved by the acts of a (Art. 7);
foreign sovereign enjoying immunity?
2. If the State itself has instituted the
He can ask his own government to espouse proceedings (Art. 8);
his cause through diplomatic channels. (Ibid)
3. Any counterclaim out of the same legal
relationship or facts as the claim presented by the
State (Art. 9);
Explain the process of “suggestion”.
4. Commercial transactions with private
It is the procedure followed in the United individuals or entities (State immunity applies to
States where the foreign state or the international commercial transactions between States) (Art. 10);
organization sued in an American court requests the
Secretary of State to make a determination as to 5. Death or injury to the person, or damage to
whether it is entitled to immunity. If the Secretary or loss of tangible property, caused by an act or
of State finds that the defendant is immune from omission which is alleged to be attributable to the
suit, he, in turn, asks the Attorney General to submit State (Art.12);
to the Court a “suggestion” that the defendant is
entitled to immunity. 6. Right or interest of the State in movable or
immovable property arising by way of succession or
In England, a similar procedure is followed, donation (Art. 13);
only the Foreign Office issues a certification to that
effect instead of submitting a “suggestion”. 7. Alleged infringement of patent, industrial
(Sarmiento, 2007) design, trade name or business name, trade mark,
copyright or any other form of intellectual or
industrial property (Art. 14);

What is the practical justification for the 8. Participation in a company or other

doctrine of sovereign immunity? collective body, whether incorporated or
unincorporated (Art. 15);
The practical justification for the doctrine of
sovereign immunity is that there can be no legal 9. Proceeding which relates to the operation of
right against the authority that makes a law on a ship other than a warship (Art. 16);
which the right depends. In the case of foreign
States, the rule is derived from the principle of the
55
10. Proceedings involving the effects of an
arbitration agreement (Art. 17) (Sarmiento, 2007)
Diplomatic and consular immunities
How can the diplomatic and consular
immunities be described?
They are personal in the sense that they
benefit the person but the purpose of the immunities
given to the diplomatic and consular representatives
is functional, that is, to enable them to perform their
functions properly. (Bernas, 2009)
Who are diplomats?
They are foreign representatives concerned
with the political relations of states. (Ibid)
How does a diplomatic mission commence?
The head of the mission is considered as
having taken up his functions in the receiving state
either when he has presented his credential or when
he has notified his arrival and a true copy of his
credentials has been presented to the foreign
ministry of the receiving state. (Vienna Convention
on Diplomatic Relations, 1961, Art VII, Sec 16)
The credentials of the diplomatic agent
include chiefly the letter of credence, or letter de
creance, by means of which he is accredited to the
receiving State with the request that full faith and
credit be given to his official acts on behalf of the
sending state. In addition to this document, the
envoy usually carries his diplomatic passport, his
official instructions and a cipher or code book for
use in sending secret communications to his
government.
Unless the receiving State had previously
given its agreement to his appointment, the
diplomatic representative cannot claim the usual
privileges and immunities of his office until he is
formally accepted. (Cruz, 2007)
What are the functions of a diplomatic
mission?
1. Representing the sending State in the
receiving State;
2. Protecting in the receiving State the
interests of the sending State and of its nationals,
within the limits permitted by international law;
3. Negotiating with the Government of the
receiving State;
4. Ascertaining by all lawful means conditions
and developments in the receiving State, and
reporting thereon to the Government of the sending
State;
5. Promoting friendly relations between the
sending State and the receiving State, and
developing their economic, cultural and scientific
relations. (Art 3, VCDR)
What is the nature of the diplomatic
relations between states?
Diplomatic relations between states are
purely by mutual consent. Before the head of the
mission is sent to the receiving state, an agreement
must first be obtained. The receiving state is under
no obligation to give reasons for refusing an
agreement. (Art. 4)
The “receiving State may at any time, and without
having to explain its decision, notify the sending
State that the head of the mission or any member of
the diplomatic staff of the mission is persona non
grata or that any other member of the staff of the
mission is not acceptable. In any such case, the
sending State shall, as appropriate, either recall the
person concerned or terminate his functions with
the mission. A person may be declared non grata or
not acceptable before arriving in the territory of the
receiving State.” (Art. 9)
Who are the diplomatic representatives that
can enjoy immunities?
f. The “head of the mission” who is the person
charged by the sending State with the duty of acting
in that capacity;
g. The “members of the mission” are the head
of the mission and the members of the staff of the
mission;
56
h. The “members of the staff of the mission”
are the members of the diplomatic staff, of the
administrative and technical staff and of the service
staff of the mission;
i. The “members of the diplomatic staff” are
the members of the staff of the mission having
diplomatic rank;
j. A “diplomatic agent” is the head of the
mission or a member of the diplomatic staff of the
mission;
k. The “members of the administrative and
technical staff” are the members of the staff of the
mission employed in the administrative and
technical service of the mission;
l. The “members of the service staff” are the
members of the staff of the mission in the domestic
service of the mission;
m. A “private servant” is a person who is in the
domestic service of a member of the mission and
who is not an employee of the sending State;
n. The “premises of the mission” are the
buildings or parts of buildings and the land ancillary
thereto, irrespective of ownership, used for the
purposes of the mission including the residence of
the head of the mission. (Art. 1)
- its mission or assist the latter in obtaining
What are the privileges and immunities of
diplomatic missions under the Vienna
Convention on Diplomatic Relations?
2. The right to use the flag and emblem of the
sending State on the premises of the mission,
including the residence of the head of the mission,
and on his means of transport. (Art 20)
3. The premises of the mission shall be
inviolable. The agents of the receiving State may not
enter them, except with the consent of the head of
the mission. The premises of the mission, their
furnishings and other property thereon and the
means of transport of the mission shall be immune
from search, requisition, attachment or execution.
(Art 22)
4. Exemption from all national, regional or
municipal dues and taxes in respect of the premises
of the mission, whether owned or leased, other than
such as represent payment for specific services
rendered. (Art 23)
5. The archives and documents of the mission
shall be inviolable at any time and wherever they
may be. (Art 24)
6. The receiving State shall permit and protect
free communication on the part of the mission for all
official purposes, including diplomatic couriers and
messages in code or cipher. (Art 27[1])
7. The official correspondence of the mission
shall be inviolable. (Art 27[2])
8. The diplomatic bag shall not be opened or
detained. (Art 27[3])
9. The fees and charges levied by the mission
in the course of its official duties shall be exempt
from all dues and taxes. (Art 28)
Does the Constitutional provision against
alienation of lands to foreigners apply to
alienations of the same in favor of foreign
governments to be used as chancery or
residence of its diplomatic representatives?
No, it does not. Article 21 of the Vienna
Convention on Diplomatic Relations provides that
“the receiving State shall either facilitate the
acquisition on its territory, in accordance with its
laws, by the sending State of premises necessary for
accommodation in some other way. It shall also,
where necessary, assist missions in obtaining
suitable accommodation for their members.”
What are the privileges and immunities of
diplomatic agents?
1. The person of a diplomatic agent shall be
inviolable. He shall not be liable to any form of
arrest or detention. (Art 29);
2. The private residence of a diplomatic agent
shall enjoy the same inviolability and protection as
the premises of the mission. (Art 30);
3. Immunity from the criminal jurisdiction of
the receiving State (Art 31[1]);
4. A diplomatic agent is not obliged to give
evidence as a witness. (Art 31[2]);
5. A diplomatic agent shall with respect to
services rendered for the sending State be exempt
57
from social security provisions which may be in force
in the receiving State. (Art 33);
6. Exemption from all dues and taxes, personal
or real, national, regional or municipal (Art 34);
7. Exemption from all personal services, from
all public service of any kind whatsoever (Art 35);
8. Exemption from all customs duties, taxes,
and related charges (Art 36).
Are diplomatic agents also entitled to
immunity from civil and administrative
jurisdiction of the receiving State?
Yes, diplomats shall enjoy immunity from its
civil and administrative jurisdiction, except in the
case of:
1. A real action relating to private immovable
property situated in the territory of the receiving
State, unless he holds it on behalf of the sending
State for the purposes of the mission;
2. An action relating to succession in which the
diplomatic agent is involved as executor,
administrator, heir or legatee as a private person
and not on behalf of the sending State;
3. An action relating to any professional or
commercial activity exercised by the diplomatic
agent in the receiving State outside his official
functions. (Art. 31[1])
Can an action for recovery of property filed
against a foreign ambassador who failed to
pay rentals for a leased personal vacation
home, prosper?
Yes, the action can prosper. An ambassador
does not enjoy immunity from civil and
administrative jurisdiction in the case of a real
action relating to private immovable property
situated in the territory of the receiving State, unless
he holds it on behalf of the sending State for the
purposes of the mission. (Art 31) (Sarmiento, 2007)
In the same action for recovery of property,
can the plaintiff ask for attachment?
No, plaintiff cannot ask for attachment. The
properties of an Ambassador shall be inviolable (Art
30). Furthermore, Section 4 of RA No 75 states that
any writ or process whereby
The person of any ambassador or public
minister of any foreign State, authorized and
received as such by the President, or any domestic
servant of any such ambassador or minister is
arrested or imprisoned, or his goods or chattels are
distrained, seized, or attached, shall be deemed void.
(Sarmiento, 2007)
Can the plaintiff in the above action stop the
departure of the foreign ambassador from
the receiving State?
The plaintiff cannot stop the departure of
the ambassador as the person of the diplomatic
agent shall be inviolable and he shall not be liable to
any form of arrest or detention. (Art 29)
What are the privileges and immunities of
the members of the administrative and
technical staff of the mission?
Members of the administrative and
technical staff of the mission, together with
members of their families forming part of their
respective households, shall, if they are not nationals
of or permanently resident in the receiving State, be
entitled to the same privileges and immunities,
except that the immunity from civil and
administrative jurisdiction of the receiving State
shall not extend to acts performed outside the course
of their duties. (VCDR, Art 37[2]) (Sarmiento, 2007)
What are the privileges and immunities of
the members of the service staff of a
diplomatic mission?
Members of the service staff of the mission
who are not nationals or permanently resident in the
receiving State shall enjoy immunity in respect of
acts performed in the course of their duties. They
shall also enjoy exemption from dues and taxes on
the emoluments they receive by reason of their
employment. (VCDR, Art 37[3]) (Ibid)
What are the privileges and immunities of
the private servants of members of a
diplomatic mission?
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 Private servants of members of the mission
shall, if they are not nationals of or permanently
resident in the receiving State, be exempt from dues
and taxes on the emoluments they receive by reason
of their employment. In other respects, they may
enjoy privileges and immunities only to the extent
admitted by the receiving State. However, the
receiving State must exercise its jurisdiction over
those persons in such a manner as not to interfere
unduly with the performance of the functions of the
mission. (VCDR, Art 37[4]) (Sarmiento, 2007)
What are the privileges and immunities of
diplomatic agents, other members of the
staff of the mission and private servants who
are nationals or permanent residents of the
receiving State?
Except in so far as additional privileges and
immunities may be granted by the receiving State, a
diplomatic agent who is a national of or permanently
resident in that State shall enjoy only immunity from
jurisdiction, and inviolability, in respect of official
acts performed in the exercise of his functions.
Other members of the staff of the mission and
private servants who are nationals of or permanently
resident in the receiving State shall enjoy privileges
and immunities only to the extent admitted by the
receiving State. (VCDR, Art.38) (Ibid)
Does the immunity of a diplomatic agent
from the jurisdiction of the receiving State
also exempt him from the jurisdiction of the
sending State?
No, he will always be subject at all times to
the jurisdiction of his State. (VCDR, Art. 31[4])
(Ibid)
Is the personal baggage of a diplomatic agent
subject to customs check and inspections?
No, the personal baggage of a diplomatic
agent shall be exempt from inspection, unless there
are serious grounds for presuming that it contains
articles that are neither for the official use of the
diplomatic mission nor for the personal use of the
diplomatic agent or members of his family forming
part of his household, or articles the import or
export of which is prohibited by the law or controlled
by the quarantine regulations of the receiving State.
In any case, such inspection shall be conducted only
in the presence of the diplomatic agent or of his
authorized representative. (VCDR, Art. 36[2]) (Ibid)
May the immunity of diplomatic agents from
the jurisdiction of the receiving State be
waived?
The immunity from jurisdiction of
diplomatic agents and of persons enjoying immunity
under Article 37 may be waived by the sending State.
(VCDR, Art 32[1]) (Bernas, 2009)
May the waiver of immunity of diplomatic
agents from the jurisdiction of the receiving
State be impliedly waived?
As a general rule, waiver of diplomatic
immunity must always be express. However, the
initiation of proceedings by a diplomatic agent shall
preclude him from invoking immunity from
jurisdiction in respect of any counterclaim directly
connected with the principal claim. (VCDR, Art.32)
(Sarmiento, 2007)
Does waiver of diplomatic immunity include
consent to the execution of an adverse
judgment against the diplomatic agent?
No, a separate waiver is necessary for the
execution of an adverse judgment against a
diplomatic agent. Waiver of immunity from
jurisdiction in respect of civil or administrative
proceedings shall not be held to imply waiver of
immunity in respect of the execution of the
judgment. (VCDR, Art. 32[4])
Are members of the family of a diplomatic
agent entitled to the privileges and
immunities accorded to diplomatic agents?
Yes, provided they form part of the
household of the diplomatic agent and they are not
nationals of the receiving State. (VCDR, Art 37[1])
What are the duties of all persons enjoying
such privileges and immunities?
It is their duty to respect the laws and
regulations of the receiving State (Art. 41) and not to
59
practice for personal profit any professional or
commercial activity in the receiving State (Art 42)
When shall a person entitled to privileges
and immunities enjoy them?
He shall enjoy them from the moment he
enters the territory of the receiving State on
proceeding to take up his post or, if already in its
territory, from the moment when his appointment is
notified to the Ministry for Foreign Affairs or such
other ministry as may be agreed. (VCDR, Art 39[1])
(Bernas, 2009)
When shall such privileges and immunities
cease?
When the functions of a person enjoying
privileges and immunities have come to an end, such
privileges and immunities shall normally cease at
the moment when he leaves the country, or on
expiry of a reasonable period in which to do so, but
shall subsist until that time, even in case of armed
conflict. However, with respect to acts performed by
such a person in the exercise of his functions as a
member of the mission, immunity shall continue to
subsist. (VCDR, Art 39[2]) (Bernas, 2009)
Consuls and consular immunities
Who are consuls?
They are foreign representatives who attend
to administrative and economic issues such as the
issuance of visas. They are not concerned with
political matters. (Ibid)
How is the head of a consular mission
admitted to the exercise of his functions?
After being given the letter patent or lettre
de provision, which is the commission issued by the
sending State, he is admitted as head of a consular
mission by an authorization from the receiving State
termed as exequatur. There is no prescribed form,
but without it, he may not enter upon his duties.
The receiving State may at any time notify the
sending State that a consular officer is persona non
grata or that any other member of the consular staff
is not acceptable. In that event, the sending State
shall, as the case may be, either recall the person
concerned or terminate his functions with the
consular post. (Ibid)
What are the functions of consuls?
The functions of consuls may be divided into
duties pertaining to commerce and navigation,
duties respecting the issuance of passports and visas,
and duties of protection of nationals. (Cruz, 2000)
(VCCR, Art. 5[a-m])
What are the duties of the receiving State
with respect to a consular mission?
The receiving State has the duty to protect
the consular premises, archives and interests of the
sending state. (Vienna Convention on Consular
Relations, Arts 27, 31, 32, 33). The receiving State
must insure the unimpeded functioning of the
consular offices. (Ibid)
What are the privileges and immunities of
consular officers?
a. 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. (VCCR, Art 41)
b. Consular officers and employees shall not be
amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in
respect of acts performed in the exercise of consular
functions, except in a civil action either:
c. 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
d. By a third party for damage arising from an
accident in the receiving State caused by a vehicle,
vessel or aircraft (VCCR, Art 43)
e. Members of a consular post are under no
obligation to give evidence concerning matters
connected with the exercise of their functions or to
produce official correspondence and documents
relating thereto. They are also entitled to decline to
60
give evidence as expert witnesses with regard to the
law of the sending State. (VCCR, Art 44)
f. Consular officers and employees shall also
be exempted from registration of aliens and
residence permits, work permits, taxation, custom
duties and inspections, and from personal services
and contribution. (Sarmiento, 2007)
Distinguish the privileges or immunities of
diplomatic envoys and consular officers from
criminal or civil jurisdiction of the receiving
State.
As to criminal jurisdiction, diplomatic
envoys shall not be liable to any form of arrest or
detention and they shall enjoy immunity from the
criminal jurisdiction of the receiving State. (VCDR,
Arts 29, 31)
Consular officers, on the other hand, shall not enjoy
immunity from criminal jurisdiction. If criminal
proceedings are instituted against a consular officer,
he must appear before the competent authorities.
However, they shall not be liable to arrest or
detention pending trial, except in the case of a grave
crime and pursuant to a decision of a competent
judicial authority. (VCCR, Art 41)
As to civil jurisdiction, diplomatic envoys
shall enjoy immunity, except in the case of a) a real
action relating to private immovable property
situated in the territory of the receiving State, b) an
action relating to succession in which they are
involved as a private person and not on behalf of the
sending State, c) an action relating to any
professional or commercial activity exercised by the
diplomatic envoys in the receiving State outside
their official functions. (VCDR, Art 31)
Consular officers, on the other hand, shall also enjoy
immunity from civil jurisdiction, except in respect of
a civil action either: a) arising out of a contract
concluded by a consular officer in which the officer
acted in his personal capacity; or b) by a third party
for damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft. (VCCR,
Art 43).
May a consul claim immunity from criminal
jurisdiction of the local court?
No, a consul is not entitled to the privileges
and immunities of an ambassador or minister, but is
subject to the laws and regulations of the country to
which he is accredited. A consul is not exempt from
criminal prosecution for violations of the laws of the
country where he resides.
Article 41 of the Vienna Convention on
Consular Relations provides that if criminal
proceedings are instituted against a consular officer,
he must appear before the competent authorities.
Consular officers shall not be liable to arrest or
detention pending trial, except in case of a grave
crime and pursuant to a decision by the competent
judicial authority. (Sarmiento, 2007)
Who may waive the privileges and
immunities of consular officers and
employees?
The sending State may waive, with regard to
a member of the consular post, any of the privileges
and immunities afforded to the latter. The waiver
shall in all cases be express and shall be
communicated to the receiving State in writing.
However, the initiation of proceedings by a consular
officer or a consular employee in a matter where he
might enjoy immunity from jurisdiction shall
preclude him from invoking immunity from
jurisdiction in respect of any counterclaim directly
connected with the principal claim. (VCCR, Art. 45)
(Ibid)
May the waiver of immunity from
jurisdiction for purposes of civil or
administrative proceedings deemed to imply
the waiver of immunity from the measures of
execution resulting from the judicial
decision?
No, a separate waiver shall be necessary for
the execution of a judicial decision. (VCCR, Art
45[4])
Immunities of International Organizations
61
What is the basis of immunity of
international organizations?
The basis of immunity of international
organizations is the need for the effective exercise of
their functions.
What are the bases of immunities and
privileges of the UN?
They are Article 105 of the UN Charter, the
General Convention on the Privileges and
Immunities of the United Nations (1946) and by the
Convention and Privileges of Specialized Agencies
(1947).
What are the privileges and immunities of
the UN?
1. The Organization, its property and assets
wherever located and by whomsoever held, shall
enjoy immunity from every form of legal process
except in so far as in any particular case it has
expressly waived its immunity. It is, however,
understood that no waiver of immunity shall extend
to any measure of execution; (Art II, Sec 2)
2. Its premises shall be inviolable. Its property
and assets, wherever located and by whomsoever
held, shall be immune from search, requisition,
confiscation, expropriation and any other form of
interference. (Art. II, Sec 3)
3. Its archives, and in general all documents
belonging to it or held by it, shall be inviolable
wherever located. (Art. II Sec 4)
4. The Organization, its assets, income and
other property shall be exempt from all direct taxes,
customs duties and prohibitions and restrictions on
imports and exports in respect of articles imported
or exported by the UN for its official use and in
respect of its publications. (Art II, Sec 7) –
Convention on the Privileges and Immunities of the
UN
What are the privileges and immunities of
the Secretary General and other officials of
the UN?
1. Immunity from legal process in respect of
words spoken or written and all acts performed by
them in their official capacity;
2. Exemption from taxation on the salaries and
emoluments paid to them by the UN;
3. Immunity from national service obligations;
4. Immunity, together with their spouses and
relatives dependent on them, from immigration
restrictions and alien registration;
5. To be accorded the same privileges in
respect of exchange facilities as are accorded to the
officials of comparable ranks forming part of
diplomatic missions to the Government concerned;
6. To be given, together with their spouses and
relatives dependent on them, the same repatriation
facilities in time of international crisis as diplomatic
envoys;
7. To have the right to import free of duty their
furniture and effects at the time of first taking up
their post in the country in question. (Art V, Sec 18
of the Convention on the Privileges and Immunities
of the United Nations)
What are the privileges and immunities of
the representatives of states to the principal
and subsidiary organs of the UN and to
conferences convened by the UN?
1. Immunity from personal arrest or detention
and from seizure of their personal baggage, and, in
respect of words spoken or written and all acts done
by them in their capacity as representatives,
immunity from legal process of every kind;
2. Inviolability for all papers and documents;
3. The right to use codes and to receive papers
or correspondence by courier or in sealed bags;
4. Exemption in respect of themselves and
their spouses from immigration restrictions, aliens
registration or national service obligations in the
state they are visiting or through which they are
passing in the exercise of their functions;
5. The same facilities in respect of currency or
exchange restrictions as are accorded to
representatives of foreign governments on
temporary official missions;
62
6. The same immunities and facilities in
respect of their personal baggage as are accorded to
diplomatic envoys, and also;
7. Such other privileges, immunities and
facilities not inconsistent with the foregoing as
diplomatic envoys enjoy, except that they shall have
no right to claim exemption from customs duties on
goods imported (otherwise than as part of their
personal baggage) or from excise duties or sales
taxes. (Art IV, Sec 11 of the Convention on the
Privileges and Immunities of the UN)
The Act of State Doctrine
May the acts of a sovereign power be
impugned in the courts of another sovereign
country?
It is the doctrine that protects the
sovereignty of states by judicial deference to the
public acts of a foreign state done on that state’s
territory. Under this doctrine, “the courts of one
country will not sit in judgment on the acts of the
government of another, done within its own
territory”. (Underhill vs Hernandez)
What is the nature of the act of state
doctrine?
It is a rule not of international law but of
judicial restraint in domestic law whereby courts
refrain from making decisions in deference to the
executive who is the principal architect of foreign
relations. (Bernas, 2009)
CHAPTER 8
Lesson 12 International Human Rights Law
What were the earlier doctrines preceding
the developing doctrine on human rights
prior to the birth of the UN?
These include doctrines on humanitarian
intervention, state responsibility for injury to aliens,
protection of minorities, League of Nation’s
Mandates and Minorities Systems, and international
humanitarian law (which is the human rights law in
time of war).
What is the difference between the Asian and
Western view on human rights?
The Western view puts emphasis on the
individual while Asians give emphasis on the
community.
How did the Western tradition on human
rights develop?
It has developed from the Natural Law view
that certain rights exist as a result of a law higher
than positive or man-made law. This higher law
itself emanates from the nature of man which
demands certain immunities or liberties.
This view flourished in the 17th century and
provided a recourse against arbitrary power. Much
of what the Natural Law held has already become
part of customary or conventional law and has
served as a counterforce against a positivist
emphasis on the importance of the state.
What are the three (3) generations of human
rights?
The first generation consists of the
traditional civil and fundamental rights; the second
generation, social and economic rights; third
generation, right to peace, clean environment, self-
determination, common heritage of mankind,
development, minority rights. There is still a dispute
about the cultural in human rights.
What distinguishes post WWII developments
from earlier human rights tradition?
It is the growing acceptance of the view that
the way nations treat people under their jurisdiction
is no longer just a domestic concern but also one
that calls for the attention of the international
community. This view represents a chipping away at
the old concept of sovereignty and it recognizes that
individuals can be subjects of international law and
that they can find protection and remedies within
the international community against abuses by their
own government.
63
What is the role played by the UN in the
development of the new international law on
human rights?
It became the cradle for the development of
the new international law on human rights.
However, the UN Charter's own provisions on
human rights were preliminary. They did not make
human rights law but they represented a beginning
which later would develop into international law.
What then are the notable defects/flaws in
the provisions of the Charter?
In the charter, there are no definitions of
human rights, there is no clear commitment of
members to avoid violations, and there is set down
no instrument for the correction or vindication of
violations of human rights that might occur.
Nations' sensitivity to their sovereignty is reflected
in Article 2(7) of the UN Charter. (provision on non-
interference of UN with domestic affairs)
What is the Universal Declaration of Human
Rights?
It was adopted and proclaimed by the
General Assembly on December 10, 1948. It was not
seen as a law but only as a “common standard” for
nations to attempt to reach. Its authority is
primarily moral and political.
What is the distinction between a mere
declaration and a covenant?
1) The core of an international covenant lies a
meeting of minds of the contracting parties on the
specific duties and obligations they intend to
assume, and the agreement that the undertakings
must be effectively informed. A declaration by
contrast admits the presumption that something less
than full effectiveness in terms of law is intended.
2) A covenant leaves no doubt about the legal
nature of the provisions it contains, whereas a
declaration is often deemed to enunciate moral rules
only.
3) The vinculum juris created by a covenant
generally absent from a declaration, places a duty on
the contracting parties to bring their laws and
practices into accord with the accepted international
obligations and not to introduce new laws or
practices which would be at variance with such
obligations. (VratislavPechota)
How does The Covenant on Civil and Political
Rights provide for right to life, liberty and
property and equality?
The Covenant's provision on the right to life
in Article 6(1) and its provision on genocide Article
6(4) and the general guarantee of liberty in Article
9(1) do not go beyond what Article III, Section 1 of
the Philippine Bill of Rights guarantees. The
Covenant does not also say when protected life
begins, whereas the Philippines protects “the life of
the unborn from conception.”
There is likewise no provision on the right to
property in the Covenant though there exists a
provision in Article 17(1) in the Universal
Declaration. It has been explained that in such a
time “when property rights had lost much of their
previous sanctity, it was inevitable that the
Commission would find it difficult to draft a text that
would command general acceptance.” (Pechota)
The Covenant in Article 6(2) expresses a
bias for the abolition of the death penalty and allows
its imposition, in countries which still have a death
penalty, only after conviction for the most serious
crimes. The Covenant adds in Article 6(6) that
“Nothing in this article shall be invoked to delay or
to prevent the abolition of capital punishment by
any State Party to the present Covenant.” In fact, in
the Second Optional Protocol to the Covenant,
signed at the General Assembly meeting on
December 15, 1989, Article 1 says: 1) No one within
the jurisdiction of a State Party to the Present
Protocol shall be executed. 2) Each State Party shall
take all necessary measures to abolish the death
penalty within its jurisdiction.”
The 1987 Constitution prohibited the
imposition of the death penalty unless a new law is
passed imposing death for “heinous crimes.”
Congress restored the death penalty for heinous
crimes but RA 9346 has since disallowed it.
Provisions on physical liberty, and arrests
and detention found in Articles 8, 9 and 11 of the
Covenant are more than adequately covered by
corresponding provisions of the Bill of Rights.
The rights of an accused found in Articles 14
and 15 of the Covenant have long been provided for
in the Philippine accusatory system as found in the
64
Constitution. However, the Covenant in Article 14 is
more restrictive in the matter of publicity of criminal
proceedings “where the interest of juvenile persons
otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of
children.” These standards would not easily pass the
Philippine tests for publicity and free press.
The Covenant also provides in Article 9(5)
that a victim of unlawful arrest or detention shall
have an enforceable right to compensation; and in
Article 14(6) that a victim of miscarriage of justice
“shall be compensated according to law, unless it is
proved that the non-disclosure of the unknown fact
in time is wholly or partly attributable to him.” The
Philippine Constitution only asks compensation in
Section 12(4) of the Bill of Rights where the
legislature is asked to compensate violations of
rights of a person under investigation.
The guarantee of equality found in Article
26 of the Covenant is the Bill of Rights' more terse
“equal protection”” clause in Article III, Section 1.
The guarantee is of legal equality. It does not
embody the aspiration towards lesser material
inequality.
How does the Covenant provide for torture,
ill-treatment and prison conditions?
Articles 7 and 10 of the Covenant prohibit
torture and other forms of ill-treatment that offend
not only against bodily integrity but also against
personal dignity and the requirement of humane
prison conditions.
The UN Human Rights Commission has
expressed the view that imprisonment “ïn conditions
seriously detrimental to a prisoner's health”
constitutes violations of Articles 7 and 10(1) of the
Covenant.
What are three rights that constitute
freedom of movement under the Convention
and what are the limitations to these rights?
These are found in Articles 12(1) and (2) and
these include the rights to travel within the country,
the right to leave the country and the right to change
one's residence. The limitations on these three
rights are found in Article 12(3) and consist of
“”those provided by law, are necessary to protect
national security, public order (order public), public
health or morals or the rights and freedoms of
others, and are consistent with the other rights in
the present Covenant.”
They are similar to the limitations found in
the Philippine Bill of Rights except that unlike the
Philippine provision, it does not require a court
order for impairment of liberty of abode.
The Covenant unlike the Philippine
Constitution, in Article 12(4) separates the right to
return to one's country from the right to leave one's
country. The limit to the right to return to one's
country in the Covenant is implied in the word
“arbitrarily”. “No one shall be arbitrarily deprived of
the right to enter his own country.”” The Covenant
intends to make the limitation more narrow than for
the right to leave the country since exile is now
prohibited by customary law and the prohibition of
exile may even be jus cogens.
How did the Philippine Supreme Court
interpret the separation of the right to leave
one's country and the right to return to one's
country?
The Court's argument was that since the
Declaration of Human Rights and the Covenant on
Human Rights separate the right to leave the
country from the right to return to one's country, the
two rights are distinct and the right to return to
one's country is not guaranteed by the specific
guarantees for the right to travel and liberty of abode
and that therefore President Marcos could not
appeal to Section 6 of the Bill of Rights. The vote
was 8 to 7.
Distinguish “having a legal personality”
from “having a capacity to act.”
Legal personality belongs to all, whether
citizens or aliens while capacity to act may not be
available to some by reason, for instance of infancy,
minority, or insanity.
What is meant by the guarantee to protect
the right to be recognized as a person before
the law, in Article 16 of the Covenant?
The guarantee in its fullness means that
state parties must “treat every human being
everywhere, male or female, young or old, alien or
citizen, as a person before the law, enjoying the
65
protection of the law and of the forces of the law,
with power to have rights and assume obligations: to
own, acquire, and dispose of property; to make
contracts; to sue and be sued; and to invoke other
legal remedies.”
No specific guarantee appears in the
Constitution but that is presumed to exists runs
through the entire document.
Is there any statement in the Covenant when
does one become a person?
It does not. The Philippine Constitution
protects “the life of the unborn from conception;”
but it does not say that the unborn is a person;
Though the Civil Code says that for purposes
beneficial to him the unborn is considered a person.
What are the limits on external exercise of
freedom of thought, conscience and religion?
External exercise of freedom of thought,
conscience and religion is guaranteed subject to the
protection of public safety, order, health, or morals
or the fundamental rights of others.
What are the two-fold aspect of the concern
for minorities?
The first is the fear of “a secessionist
movement by minorities, threatening territorial
integrity of the state, or about the danger of
interference by other states with which the
minorities are connected by ties of race, national
origin, language, or religion. The second is a
genuine “concern for the human rights of minorities
and the desire “that minorities will flourish so as to
preserve that diversity of the human race..”
What are the two important rights covered
by the right to self-determination?
1) the right “freely to determine their political
status and freely pursue their economic, social and
cultural development”;
2) the right “for their own ends, to freely
dispose of the natural wealth and resources without
prejudice to any obligations arising out of
international cooperation, based upon the principle
of mutual benefit, and international law.”
But minorities does not have a right of self-
determination in the sense of the right to secede.
What are the internal and external aspects of
self-determination?
The internal right of self-determination
consists of the right “freely to determine their
political status and freely pursue their economic,
social and cultural development” and the right, “for
their own ends, to freely dispose of the natural
wealth and resources without prejudice to any
obligations arising out of international cooperation,
based upon the principle of mutual benefit, and
international law.” These also necessarily include
the other related political rights.
The external right of self-determination
belongs to colonies and to non-self-governing and
trust territories.
What is the nature and significance of the
Protocol to the Covenant?
It was adopted by the United Nations on
December 16, 1966 as a supplement to the Covenant
on Civil and Political Rights and entered into force
on March 23, 1976. The Philippines has ratified the
protocol.
This separate treaty is designed to enable
private parties who are victims of human rights
violations. However, complaints may be filed only
against states which have ratified the Protocol.
There is an eighteen-member Human Rights
Committee created by the Covenant which receives
and handles the complaints.
Why is there a division between civil and
political rights, in one hand, and economic,
social and cultural rights, on the other?
The reasons for the division are both
ideological and practical.
Ideologically, the contest was between
Western countries on the one hand and socialist and
Third World countries on the other. The American
delegation argued that its government would find
66
difficulty in accepting a treaty containing economic
and cultural rights beyond those guaranteed by the
Constitution. For the socialist and Third World
countries, on the other hand, the absence of
economic, social and cultural guarantees could
render civil and political guarantees meaningless.
On the practical level, it became obvious
that implementing civil and political guarantees, the
classical “Thou shalt nots” of the Western tradition,
could be done immediately; whereas the
implementation of economic, social and cultural
rights could only be done gradually and dependently
on development conditions. Thus, the decision to
divide, would at least assure approval of a document
on civil and political rights.
However, Article I of both Covenants say
exactly the same thing about the right of self-
determination of people. There are substantial
overlapping on other subjects of the Covenants.
What are the rights included in the Covenant
on Economic, Social and Cultural Rights?
Included are the social welfare rights stated
in detail which consist of the right to work (Article
6); to favorable conditions of work (Article 7), to
form free trade unions (Article 8), to social security
and insurance (Article 9), to special assistance for
families (Article 10), to adequate standard of living
(Article 11), to the highest standard of physical and
mental health (Article 12), to education including
compulsory primary education (Article 13 & 14), and
to the enjoyment of cultural and scientific benefits
and international contacts (Article 15).
These correspond to the economic, social
and cultural rights that are also found in the
Constitution, principally Article XIII (Social Justice),
Article XIV (Education, Science and Technology,
Arts, Culture, and Sports), and Article XV (The
Family).
What is the duty of the Philippines to
implement provisions of these international
human rights law?
Since the Philippines is a party not only to
the UN Charter and the Universal Declaration of
Human Rights but also to the two Covenants as well
as to the Optional Protocol to the Covenant on Civil
and Political Rights, it is bound, both in its domestic
sphere and its foreign relations, “to bring its laws
and practices into accord with the accepted
international obligations and not to introduce new
laws or practices which would be at variance with
such obligations.” The duty of each State Party to
implement the Covenant on Civil and Political
Rights is provided for in its Article 2. (Bernas, 2009)
Treaty commitments become part of
domestic law. The self-executing provisions of the
Covenants must be implemented in domestic law.
Those which are not, must be attended to by
“necessary steps, in accordance with its
constitutional processes and with the provisions of
the present Covenant”, which may either be
legislative or by executive measures.
What principle governs the duty of each State
Party to implement the provisions of the
Covenant on Economic, Social and Cultural
rights?
It is the principle of progressive realization
as embodied in Article 2, thereof. Each State Party is
mandated to take steps, individually and through
international assistance and cooperation, especially
economic and technical, to the maximum of its
available resources, with a view to achieving
progressively the full realization of the rights
recognized in the Convention by all appropriate
means, including particularly the adoption of
legislative measures.
Progressive realization means “that a state is
obligated to undertake a program of activities… and
to realize those rights which are “recognized” by the
Economic Covenant. While the obligation of
progressive realization is limited by resource
constraints, the Economic Covenant indicates that
priority should be given to social welfare and that
the level of effort should increase over time. These
obligations apply to any state that has ratified the
Economic Covenant, regardless of that state’s
economic resources.”
What are the other conventions on Human
Rights?
These include the 1948 Genocide
Convention, the 1966 Convention on the Elimination
of All Forms of Racial Discrimination, the 1979
Convention on the Elimination of All Forms of
Discrimination Against Women, the 1984
Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment,
67
the 1989 Convention on the Rights of the Child, and
the 1990 Convention on Migrant Workers.
What are some human rights principles that
have become customary law in the light of
state practice?
These include the prohibition of torture,
genocide, slavery and the prohibition of
discrimination.
What are the two important procedures
being adopted by the Human Rights
Commission for responding to violation of
human rights?
An important UN body is the Human Rights
Commission, a subsidiary organ of ECOSOC. It is
adopting two different procedures for responding to
violations of human rights.
1.) Confidential consideration under ECOSOC
Resolution 1503
It is also known as the 1503 Procedure or
confidential procedure. It authorizes the Sub-
Commission on Prevention of Discrimination and
Protection of Minorities to appoint a working group
consisting of not more than five members to meet
once a year in private meetings to consider all
communications, including replies of the
government concerned, with a view to bringing to
the attention of the Sub-Commission those
communications which appear to reveal a pattern of
gross and reliably attested violations of human
rights.
The confidential findings of the Sub-Commission are
brought to the attention of the Commission on
Human rights. The Commission on Human Rights
is expected to submit its report and recommendation
to the Economic and Social Council. The procedure
is kept confidential until such time as the
Commission on Human Rights decided to make
recommendation to the ECOSOC.
2.) Public debate procedure under ECOSOC
Resolution 1235
The Commission on Human Rights was established
in 1946 as a subsidiary organ of ECOSOC. In 1967,
ECOSOC Resolution 1235 authorized the
Commission and its Subsidiary Commission on
Prevention of Discrimination and Protection of
Minorities to examine reports relevant to gross
violations of human rights and to examine reports
relevant to gross violations of human rights and to
examine whether the violations revealed a consistent
pattern and thereafter make recommendations to
ECOSOC.
Two types of activities are carried out by this
procedure:
First, it holds annual public debates in which
governments and NGOs are given the opportunity to
identify publicly country specific situations which
deserve attention.
Second, it engages in studies and investigations of
particular situations through the use of various
techniques the Commission might deem
appropriate.
What can result from these procedures?
Results may include embarrassment of
countries referred that might generate change in
policy; pressure on government to take the issue on
a bilateral or multilateral level; statements of
exhortation from the Commission or call from the
Commission for all available information; the
Commission might appoint a Special Rapporteur to
examine and submit a report on the issue; the
Commission might ask the Security Council to take
up the issue with a view to promulgating sanctions.
What is the International Criminal Court?
It is the first permanent, treaty based,
international criminal court established to promote
the rule of law and ensure that the gravest
international crimes do not go unpunished.
It shall be a permanent institution and shall
have the power to exercise its jurisdiction over
persons for the most serious crimes of international
concern, as referred to in the Rome Statute, and
shall be complementary to national criminal
jurisdictions. (Rome Statute, Art. 1) (Sarmiento,
2007)
It was established by the Rome Statute of
the International Criminal Court on July 17, 1998,
when 120 States participating in the “United Nations
Diplomatic Conference of Plenipotentiaries on the
68
Establishment of an International Criminal Court”
adopted the Statute. The Statute enters into force on
July 1, 2002 and anyone who commits any of the
crimes under the Statute after this date will be liable
for the prosecution by the Court.
What is the Rome Statute?
The Rome Statute established the ICC. The Statute
was opened for signature by
All states in Rome on July 17, 1998 and had
remained open for signature until December 31,
2000 at the UN Headquarters in New York. The
Statute entered into force on July 1, 2002.
May the provisions of the Rome Statute be
given retroactive effect?
No, the Rome Statute applies the principle
of non-retroactivity ratione personae. Article 24 of
the Statute states that “no person shall be criminally
responsible under this Statute for conduct prior to
the entry into force on July 1, 2002 and therefore
crimes committed prior to that date will not be liable
for prosecution by the ICC.
Where is the seat of the ICJ?
The seat of the Court is The Hague in The
Netherlands. The Court will be temporarily housed
at “de Arc” on the outskirts of The Hague before
moving to its permanent premises at the
Alexanderkazerne. (Art. 3)
Does the ICC have international legal
personality?
Yes, the Court shall have international legal
personality. It shall also have such legal capacity as
may be necessary for the exercise of its functions and
the fulfillment of its purposes.
What are the crimes falling under the
jurisdiction of the ICC?
The jurisdiction of the Court shall be limited
to the most serious crimes of concern to the
international community as a whole. The Court has
jurisdiction in accordance with this Statute with
respect to the following crimes:
1. The crime of genocide;
2. Crimes against humanity;
3. War crimes;
4. The crime of aggression.
Would the ICC replace national or domestic
criminal courts?
No, it will not replace national or domestic
courts but will be complementary to national
criminal jurisdiction. The Court will only investigate
and prosecute if a State is unwilling or unable to
genuinely prosecute. This will be determined by the
judges. Unjustified delays in proceedings as well as
proceedings which are merely intended to shield
persons from criminal responsibility will not render
a case inadmissible before the ICC (Art. 17)
May the accused be tried in absentia before
the ICC?
No, the Rome Statute applies the principle
of presence. Article 63 of the Statute states that the
accused shall be present, during the trial.
However, if the accused, being present
before the Court, continues to disrupt the trial, the
Trial Chamber may remove the accused and shall
make provision for him or her to observe the trial
and instruct counsel from outside the courtroom,
through the use of communications technology, if
required. Such measures shall be taken only in
exceptional circumstances after other reasonable
alternatives have proved inadequate, and only for
such duration as is strictly required.
Is the rule on presumption of innocence
applicable to the ICC?
Yes, Article 66 of the Statute affirms the rule
on presumption of innocence until proved guilty
before the Court in accordance with the applicable
law. The onus (burden) is on the Prosecutor to
prove the guilt of the accused and in order to convict
the accused; the Court must be convinced of the guilt
of the accused beyond reasonable doubt.
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CHAPTER 9
Peaceful Settlement of International
Disputes
What is international dispute?
A dispute in international law is a technical
term which means “a disagreement on a point of law
or fact, a conflict of legal views or interests between
two persons.” A disagreement does not amount to a
dispute if its resolution would have no practical
effect on the relationship between the parties. Ex:
disagreements over the interpretation of a treaty or
about state boundaries or about state responsibility
(Bernas, 2009)
An international dispute is an actual
disagreement between states regarding the conduct
to be taken by one of them for the protection or
vindication of the interests of the other. Where the
disagreement has not yet ripened into a full-blown
conflict or the issues have not yet been sufficiently
formulated and defined, there is what is known as a
situation. A situation is, therefore, the initial stage
of a dispute. (Cruz, 2000)
What are the two kinds of international
dispute?
1) Legal if it involves justiciable rights based on
law or fact susceptible of adjudication by a judicial
or arbitral tribunal. Ex. Conflict on the
interpretation of a treaty or the ascertainment of the
boundaries of adjacent states; and
2) Political if it cannot be decided by legal
processes on the basis of the substantive rules of
international law because the differences of the
parties spring from animosities in their mutual
attitudes rather than from an antagonism of legal
rights. Ex. When a state, in the exercise of its
sovereign rights, enacts immigration laws
discriminating against the nationals of another state
over the latter's protest. Here, the solution cannot
be found in the courts but through diplomacy. (Ibid)
Would a suit brought by a State in behalf of
one of its nationals against another State
constitute an international legal dispute
between the two States?
Yes, upon the filing of a suit by a State in
behalf of its national, the dispute then entered upon
a new phase; it entered the domain of International
Law, and became a dispute between two States.
(Sarmiento, 2007)
Is there any obligation on the part of each
state party to a dispute to settle?
There are none except those which
according to Article 33 of the UN Charter might
endanger peace and security. However, if a decision
is made to settle disputes, the obligation is to settle
them by peaceful means. (Bernas, 2009)
What is the role of UN in the settlement of
international disputes?
One of the principal purposes of the UN is to
bring about the settlement of international disputes
by peaceful means, and in conformity with the
principles of justice and International Law. (UN
Charter Art.1.1)
The UN is also based on the principle that
all its members shall settle their international
disputes by peaceful means in such a manner that
international peace and security, and justice, are not
endangered. (Ibid, Art 2.3)
Article 33 of the Charter further calls for
peaceful settlement of disputes by negotiation,
enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or
arrangements, or other peaceful means of their own
choice. (Sarmiento, 2007)
May a member of the UN bring a dispute to
the attention of the General Assembly?
Yes, any member of the UN may bring any
dispute, or any situation which might lead to
international friction or give rise to a dispute, any
situation of the nature to the attention of the
General Assembly. It may also be brought directly to
the attention of the Security Council. (UN Charter,
Art. 35.1) (Ibid)
70
May a state which is not a member of the UN
bring a dispute to the attention of the
Security Council or of the General Assembly?
Yes, a non-member state may bring to the
attention of the Security Council or of the General
Assembly any dispute provided that:
1) it is a party to the dispute; and
2) it accepts in advance, for the purposes of the
dispute, the obligations of pacific settlement
provided in the Charter. (Ibid)
What are the powers of the General
Assembly with respect to the disputes that
are brought to its attention?
They are limited to establishing fact-finding
missions and making recommendations. But
although the actions of the General Assembly may
have significant political influence, states are under
no obligation to cooperate with the fact-finding
missions or to follow recommendations. (Ibid)
What are the powers of the Security Council
with respect to the disputes that are brought
to its attention?
Under Article 33 of the UN Charter, the SC
shall, when it deems necessary, call upon the parties
to settle their disputes by peaceful means, like
negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional
agencies or arrangements, or other peaceful means
of their own choice.
Under Article 34, the Security Council may
investigate any dispute in order to determine
whether the continuance of the dispute or situation
is likely to endanger the maintenance of
international peace and security and if so, under
Article 37, it shall decide whether to take
appropriate action or to recommend such terms of
settlement as it may consider appropriate.
In making recommendations, however, the
SC should also take into consideration that legal
disputes should as a general rule be referred by the
parties to the ICJ. (UN Charter, Art 36.3) (Ibid)
How may the peaceful means of settling
disputes under the UN Charter be classified?
1) non-judicial methods- negotiation, enquiry,
mediation, conciliation
2) quasi-judicial method- arbitration,
3) judicial method
The above means are also classified into
diplomatic and judicial methods. (Bernas, 2009)
What are the amicable means of settling
international disputes?
1) negotiation – a process of bargaining
between the two parties in search of a solution of
disputes (Sarmiento, 2007); it is generally the first
step taken in the settlement of an international
dispute which is a discussion undertaken by the
parties themselves of their respective claims and
counterclaims with a view to their just and orderly
adjustment; the conversations may be brief or
protracted, depending on the issues in contention
and perhaps also on considerations of national
pride; where the talks prosper and agreement is
reached, it is usually formalized in a treaty or, more
directly effected through the rectification of the
injury caused to the claimant state. (Cruz, 2000)
2) enquiry – a method of elucidating the points
of difference and agreement to both sides in the
hope that it would facilitate the understanding of the
issues of the disputes. The UN is empowered to call
the parties concerned to explain their position on a
dispute and may attempt to narrow their differences,
reconcile their opposing views and if necessary
recommend a just and fair solution. Ex. In 1992-
1993, US and Chile, set up an Enquiry Commission
to determine the amount of damages to be paid to
the \us by Chile for allegedly killing two persons in
Washington by Chilean intelligence officers and the
dispute was settled.(Sarmiento, 2007); the findings
of the party making the inquiry are not conclusive
upon the disputing states but they nevertheless may
exert a strong moral influence in the settlement of
the conflict.(Cruz, 2000)
3) good offices – or sometime referred to as
“quiet diplomacy “since the process often involves
entrusting the dispute to personalities with special
qualification on whom both parties agree. This
might involve heads of State or the Secretary-
General of the UN, or their designees ;( Sarmiento,
2007); this is usually employed when the parties are
71
no longer on speaking terms, or when they have
severed diplomatic relations or have actually
commenced hostilities. Ex. The Russo-Japanese
War was terminated through the good offices of
President Theodore Roosevelt of the US who
succeeded in bringing the parties together to the
conference table for the conclusion of a negotiated
peace. (Cruz, 2000)
4) mediation – like good offices, mediation is
an adjunct of negotiation, but with the mediator as
an active participant, authorized, and even expected,
to advance his own proposals and to interpret, as
well as to transmit, each party's proposals to each
other. Ex. In 1978, US President Jimmy Carter
mediated between Egypt and Israel and achieved the
Camp David Agreement in March 1979. Under the
agreement, Egypt recognized diplomatically Israel
and in return Israel withdrew its troops from Sinai
Peninsula, occupied by Israel in the 1967 war;
(Sarmiento, 2007) here, the third party has more
active involvement and does not merely provide the
opportunity for the antagonists to negotiate but also
actively participates in their discussions in order to
reconcile their conflicting claims and appease their
feelings of resentment; the suggestions of the
mediator are merely persuasive, however, and may
be rejected without offense by the parties to the
dispute.(Cruz, 2000)
5) conciliation – a method that combines the
characteristics of both enquiry and mediation.
While mediation is ordinarily carried out by one
person, conciliation is usually conducted by an
organization (such as ASEAN or NATO). Ex.
Malaysia, Bangladesh and Pakistan were given the
task by OIC to broker peace between Iran and Iraq
war during the 80's) (Sarmiento, 2007); the
recommendations made are not binding though
unlike in mediation, the services of the conciliator
are not offered by the third party but solicited by the
parties in dispute. (Cruz, 2000)
6) arbitration – it is a quasi-judicial method of
settlement of disputes. Here, the parties cross a line
between diplomatic methods of settling disputes and
adjudication. The contrast is sharpened by the fact
that an arbitral award is a binding decision. In
choosing arbitration, the parties to a dispute invite
another entity to resolve it for them. But arbitration
allows the parties to constitute and to operate their
own court. Thus, it has attracted States in disputes
since they can select individuals as arbitrators in
whom they have confidence and thus can at least
influence the procedure that will be employed to
resolve their conflict. (Sarmiento, 2007).
What are the advantages and disadvantages
of arbitration as a method of settlement of
disputes?
Advantages:
a) it is more conclusive than the other forms
of non-judicial dispute settlement
because the decisions of the arbitral
panels are binding upon the parties;
b) the disputing parties retain greater
control in the arbitration process because
they appoint the arbitrators;
c) the parties may designate the procedures
and the laws to be applied;
d) arbitration is less formal and less
contentious than adjudication; and
e) both the arbitration proceedings and
decisions can be kept confidential, a great advantage
in disputes regarding sensitive matters. (Malone,
106) (Sarmiento, 2007)
Disadvantages:
a) if the parties do not specify procedures,
arbitration may be a very
cumbersome and time-consuming
process;
b) arbitration panels do not have the
authority of courts to conduct discovery or
subpoena witnesses; and
c) the parties themselves pay for the entire
cost of the arbitration. (Ibid) (Ibid)
Is there an obligation to arbitrate?
There is no International Law
requirement or obligation to arbitrate, unless the
parties to a dispute previously consented to
submit to arbitration through an arbitral
clause or arbitration convention. (Ibid)
What is a compromise d 'arbitrage?
It is an agreement expressing the
consent of the parties to the dispute to submit to
arbitration and outlining the constitution of the
arbitral panel, the rules of procedure, the issues
72
to be decided and the binding nature of the arbitral
decision. (Malone, 107) (Ibid)
What are the three types of arbitral
agreements?
a) an arbitration clause that is
incorporated as part of a treaty, commonly found
in commercial treaties.
b) treaties whose sole function is to
establish methods for the arbitration of
disputes Ex. The Hague Convention for
the Pacific Settlement of Disputes
c) ad-hoc arbitral agreements Ex.
The agreement for the settlement of claims
between the US and Iran (1981)
(Bernas, 2009)
May arbitral decisions be challenged?
The four most commonly accepted
bases of challenge are:
a) that the arbitral body exceeded its
powers;
b) that there was corruption on the
part of a member of the body;
c) that there was failure to state the
reasons for the awards or a serious
departure from a fundamental
rule of procedure;
d) that the undertaking to arbitrate
or the compromis is a nullity. (Ibid)
May domestic courts refuse to give
recognition to awards given by foreign
arbitral tribunals?
Yes, provided that the grounds for
refusal are among those found in the UN
Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (The New
York Convention) adopted in June 10,
1958.(Bernas, 2009 and Sarmiento, 2007)
7) judicial settlement – it is a decision by a
court. In the UN system, the ICJ is an integral part
of the UN, and the court, with seat at The Hague
(The Netherlands), decides inter-states disputes.
States must agree to refer to the Court for decision.
However there is reluctance of states to refer
disputes to the Court. (Sarmiento, 2007)
Does being a party to the Statute of the ICJ
mean acceptance of the jurisdiction of the
Court?
No. It simply means that the state
may accept the jurisdiction of the court. The
Statute opens the court's doors to member
states and only states may be parties in the
court. (Bernas, 2009) However, a non-
member may become a party on conditions to be
determined in each case by the General Assembly
upon the recommendation of the Security
Council. (ICJ Statute Art. 93.2)
What is the cardinal rule in
international courts?
States cannot be compelled to
submit disputes to international adjudication
unless they have consented to it either
before a dispute has arisen or thereafter.
States are also free to limit their acceptance
to certain types of disputes and to attach
various conditions or reservations to their
acceptance. (Ibid)
What are the similarities between
arbitration and judicial settlement?
a) nature of the proceedings;
b) binding character of the decisions
c) the disputes submitted for
adjudication are legal rather than political. (Cruz,
2000)
How do they differ?
The two methods differ in the
following points:
a) the judicial tribunal is, generally,
a pre-existing and permanent body whereas the
arbitral tribunal is an ad hoc body created and filled
by the parties to the dispute themselves.
b) Jurisdiction in judicial settlement
is usually compulsory whereas submission
to arbitration is voluntary.
73
 c) the law applied by the tribunal in
judicial settlement is independent of the will
of the parties but may be limited
by them in arbitration proceedings. (Ibid)
International Court of Justice
What is the ICJ?
It is the UN's principal judicial
organ. It succeeded the Permanent Court of
International Court of Justice established by
the League of Nations. It came into being in
1945 through the Statute of the Court. All members
are ipso facto parties to the Statute of the ICJ.
(Ibid)
What is its composition?
ICJ is composed of fifteen members
[Statute of the ICJ, Art. 3(1)] who are elected by
absolute majority vote in the General
Assembly and the Security Council [Ibid, Art.4,
10(1)]. The judges must be of high moral
character and possess the qualifications required
in their respective countries for appointment to
their highest judicial offices or are jurisconsults
of recognized competence in
international law. (Ibid, Art. 2) No two of
them may be nationals of the same state
[Ibid, Art 3(1)], and in the event that more
than one national of the same state obtain the
required majorities, only the eldest shall be
considered elected.[UN Charter, Art. 10(1)]. The
election of the judges should assure the
representation in the Court of the main forms
of civilization and the principal legal systems of the
world. (Ibid, Art. 9) (Cruz, 2000)
What is the term of the members of
the Court?
They have a term of nine years and
may be re-elected. The term of the original
members were staggered in such a way as to
provide for the election of one-third of the
membership at three-year intervals.(UN Charter,
Art. 13) No judge can be removed unless, in
the unanimous opinion of the other members, he has
ceased to fulfil the required conditions.[Ibid,
Art. 18(1)] The Court shall elect its President and
Vice- President, who shall serve for three years
and may be re-elected.[Ibid, Art. 21(1)]
How shall the Court hold its sessions?
It shall remain permanently in
session, at the Hague or elsewhere, except during
the judicial vacations [Ibid, Arts 22(1),
23(1)], and may meet either en banc [Ibid, Art
25(1)] or in chambers composed of three or
more judges, to deal with particular categories
of cases such as those relating to labor, transit and
communications [Ibid, Art 26(1)]. All questions are
decided by a majority of the judges present [Ibid, Art
55(1)], the quorum being nine when the full
Court is sitting [Ibid, Art.25 (3)].
What are the functions of the Court?
The functions of the Court are to
decide contentious cases and to render advisory
opinions (UN Charter, Chapter II, IV). (Cruz, 2000)
What is the jurisdiction of the ICJ?
Its jurisdiction comprises all cases
which the parties refer to it and all matters
specially provided for in the Charter of the
UN or in treaties and conventions in force.
[ICJ Statute, Article 36(1)](Sarmiento,
2007)
Give two limitations on the
jurisdiction of the ICJ under its Statute.
a) only states may be parties in
contentious cases before the Court (ICJ Statute,
Art. 34) and
b) the consent of the states is
needed for the court to acquire jurisdiction (Ibid,
Art 36) (Ibid)
When is the Court competent to
entertain a dispute between states?
Only if the states concerned have
accepted its jurisdiction in one or more of the
following ways:
a) by the conclusion between them
of a special agreement (Compromis) to submit the
dispute to the Court [ICJ Statute, Art 36(1)]
b) by virtue of a jurisdictional
clause, i.e. typically, when they are parties to a
treaty containing a provision whereby in the event of
a disagreement over its interpretation or
application, one of them may refer the dispute to the
Court (Ibid)
c) through the reciprocal effect of
declarations made by them under the Statute
whereby each has accepted the jurisdiction the
jurisdiction of the Court as compulsory in the event
74
of a dispute with another State having made asimilar
declaration. [Ibid, Art. 36(2)]
In cases of doubt as to whether the
Court has jurisdiction, it is the Court itself which
decides. (Sarmiento, 2007)
What is the “compulsory jurisdiction”
of the Court under the “optional
jurisdiction” clause?
The optional system is operative
only for states that “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; the existence of
any fact which, if established, would constitute a
breach of an international obligation.” [ICJ
Statute, Art. 36(2)] (Bernas, 2009)
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.
They shall be deposited with the Secretary-
General of the UN, who shall transmit copies
thereof to the parties to the Statute and to the
Registrar of the Court. [Ibid, Arts 3, 4]
(Sarmiento, 2007)
What is the Doctrine of Prorogated or
Extended Jurisdiction of the ICJ?
Under this doctrine, the
manifestation of consent to jurisdiction of the Court
may be made even after a case is filed, but until
such consent to jurisdiction is made, the case cannot
be entered in the General List (docket of the Court).
(Ibid)
What then is Forum Prorogatum?
Otherwise known as the
“prorogated” jurisdiction, it is the jurisdiction of the
ICJ that is based that is based upon the consent
of the defendant State that is given after the
initiation of the proceedings. The procedure for
prorogated jurisdiction is found in Article 38(5) of
the ICJ Rules of Court which in essence mandates
that unless and until the defendant State gives its
consent, the application though transmitted to that
State, shall not be entered in the General
List, nor any action be taken in the proceedings.
(Ibid)
What is the legal effect of decisions of
the ICJ in contentious cases?
Each member of the UN undertakes
to comply with the decision of the International
Court of Justice in any case to which it is a party.
[UN Charter, Art 98(1)] .However, the decision of
the Court has no binding force except between the
parties and in respect of that particular case. (ICJ
Statute, Art. 59) (Ibid)
Is the ICJ bound by the Doctrine of
Stare Decisis?
No. While Article 38 of the Statute
of the ICJ provides that the Court shall apply judicial
decisions as subsidiary means for the determination
of rules of law in deciding such disputes as are
submitted to it, the same, however, is subject to
Article 59 which states that “the decision of
the Court has no binding force except between the
parties and in respect of that particular case.”
Nonetheless, the Court does look to prior
holdings as being highly persuasive. (Ibid)
What is the remedy in case a party
fails to comply with the judgment of the
Court?
If any party to a case fails to perform
the obligations incumbent upon it under a judgment
rendered by the Court, the other party may have
recourse to the Security Council, which may, if it
deems necessary, make recommendations or decide
upon measures to be taken to give effect to the
judgment. (UN Charter, Art 94) (Ibid)
Is it mandatory for UN members to
submit their disputes or differences for
resolution of the ICJ?
No, nothing in the Charter shall
prevent Members of the UN from entrusting the
solution of their differences to other tribunals by
virtue of agreements already in existence or which
may be concluded in the future. (UN Charter, Art.
95) (Ibid)
What are the provisional measures of
the ICJ?
Article 41 of the ICJ Statute
provides that 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
75
measures suggested shall forthwith be given to the
parties and to the Security Council.
Is intervention allowed before the
ICJ?
Article 62 of the Statute provides
that 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. It shall be for the Court
to decide upon this request. While Article 63
mandates that whenever the construction of a institutions and the Member States (or even between
convention to which states other than those
concerned in the case are parties is in question,
the Registrar shall notify all such states. Every states
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.
Is revision of the ICJ judgment
allowed?
An application for revision of a
judgment may be made only when it is based
upon the discovery of some fact of such a
nature as to be a decisive factor, which fact
was, when the judgment was given,
unknown to the Court and also to the party
claiming revision, always provided that such
ignorance was not due to negligence. The
proceedings for revision shall be opened by
a judgment of the Court expressly recording
the existence of the new fact, recognizing that it has
such a character as to lay the case open to
revision, and declaring the application admissible on
this ground. The Court may require previous
compliance with the terms of the judgment before it
admits proceedings in revision. The
application for revision must be made at latest
within six months of the discovery of the
new fact. No application for revision may be
made after the lapse of ten years from the
date of the judgment. (ICJ Statute, Article 61)
What are the other international
courts?
1) The Court of Justice of the European
Communities
It is also called the European Court of Justice which
is the Supreme Court of the European Union and has
its seat in Luxembourg. Natural or legal person may
bring action before the Court if he is the addressee of
an act of a Community institution, or he is directly
and individually concerned by a legal measure taken
by one of the Community institutions. In addition, a
reference for a preliminary ruling also gives citizens
the possibility of access to the Court of Justice by
means of questions put by the national courts in the
context of cases brought under national law. The
primary function of the Court of Justice is to
examine the legality of Community acts and to
ensure, in particular by examining references for a
preliminary ruling, that Community law is
interpreted and applied uniformly. It also applies
Community law and resolves disputes between
Community institutions or between those
Member States themselves).
2) The Benelux Court of Justice
It was established by Belgium, the Netherlands and
Luxembourg and is modelled after the European
Court of Justice that began its activities in 1974. Its
main function is to promote the uniform
interpretation of common legal rules for which it has
become competent. When a national judge feels that
a rule of Benelux law is unclear in the case at hand,
the court in question has the possibility and
sometimes the obligation to refer to the Benelux
Court of Justice for a preliminary ruling. The
question referred to for a preliminary ruling is the
starting point for proceedings before the Benelux
Court, in which the views of the litigating parties, the
Ministers of Justice and the Benelux public
prosecution authority can be expressed. Finally, the
Court delivers a binding judgment laying down the
interpretation of the rule of law.
3) The EFTA Court of Justice
It is the Court of the EFTA
States parties to the European Economic Area
Agreement (EEA) which include Iceland,
Liechtenstein and Norway. It has its seat in
Luxembourg since 1996. The principal jurisdiction
of the Court is on matters involving interpretation of
the law of the EEA, disputes between the contracting
parties, and between the EFTA Surveillance
Authority and the addressee of a decision of the
authority or a person directly and individually
concerned by such a decision. Natural or legal
person may bring an action if he is the addressee of a
decision of the EFTA Surveillance Authority, or
he is directly and individually concerned by such a
decision. A reference for an advisory opinion also
gives citizens the possibility of access to the
EFTA Court by means of questions put by national
courts in the context of cases brought under national
law.
4) The European Court of Human Rights
76
Known as the “Strasbourg Court”, it was established
in November 1998 pursuant to the entry into force of
Protocol No. 11 to the European Convention for the
Protection of Human Rights (1950) establishing a
single court sitting fulltime and replacing the
European Commission of Human Rights (1954) and
the European Court of Human Rights (1959). It has
its seat in Strasbourg, France. Its primary function
is to ensure compliance by the High Contracting
Parties with their commitments arising from the
European Convention for the Protection of Human
Rights. The Court hears and decides complaints of
human rights violations allegedly committed by
States Parties, and brought to the Court either by
other States Parties or by individual subject to the
jurisdiction of a State Party. Any contracting state
(inter-State application) or any individual claiming
to be the victim of a breach of the Convention
(individual application) may make an application
directly to the Court alleging a violation by a
Contracting State of a right guaranteed by the
Convention. An application may be made to the
Court by any natural person, non-governmental
organization or group of individuals claiming to be
the victim of a violation by one of the Contracting
Parties of a right guaranteed by the Convention for
the Protection of Human Rights or its protocols.
The Court may deal with the matter only after all
domestic remedies have been exhausted and within
six months of the final national decision. The Court
will declare an individual application inadmissible if
it is anonymous or substantially the same as a
matter that has already been examined by the Court,
or has already been submitted to another procedure
of international investigation or settlement, or if the
Court considers it to be contrary to the provisions of
the Convention or its protocols, or clearly unfounded
or abusive. (Sarmiento, 2007)
8. action by regional organizations – this
may be resorted to by the parties on their own
volition or taken by the body itself at its own
instance if allowed by agreement of the
members. One of these regional organizations is the
ASEAN.
CHAPTER 10
Use of Force Short of War – May 7, 2016
What is the basic principle found in the UN
Charter with respect to the recognition of the
autonomy of individual states and their right
to freedom from coercion and to the integrity
of their territory?
Article 2(4) provides that, “All Members
shall refrain in their international relations from the
threat or use of force against the territorial integrity
or political independence of any state, or in any
other manner inconsistent with the Purposes of the
United Nations”. (Bernas, 2009)
This same provision is considered the legal
prohibition against the use of force in International
Law. (Sarmiento, 2007).
Does Article 2(4) of the UN Charter
absolutely outlaw the threat or use of force
outside the UN Charter?
There are two conflicting views on this
matter:
a) The Restrictive View, which is based
on interpretation of the principles underlying
Article 2(4) of the UN Charter. Its proponents claim
that Article 2(4) was written with the view of
abolishing war entirely.
b)theQualified Prohibition View, which
is based on the plain meaning of Article 2(4). Its
proponents argue that Article 2(4) only prohibits
certain end results, i.e. when force is used against
the territorial integrity or political independence of
any state. (Ibid)
What is the nature of the prohibition of the
use of force as an international law?
The prohibition is not just conventional law.
It is a customary international law. (Bernas,
2009)
Is the threat of force also prohibited by the
UN Charter?
In the discussionby the ICJ in the case of the
Legality of the Threat or Use of Nuclear Weapons, it
declared that, “The notions of ‘threat’ and ‘use’ of
force under Article 2, paragraph 4 stands together in
the sense that if the use of force itself in a given case
is illegal – for whatever reason - the threat to use
such force will likewise be illegal…” (Ibid)
77
What are the two considered exceptions to
the general prohibition of the use of force in
Art.2, par. 4 of the UN Charter?
1.) Article 51 where the Charter recognizes
the inherent right of individual or collective self-
defense if an armed attack occurs;
2.) Article 42, whereby the Security Council
may take military enforcement measures in
conformity with Chapter VII of the Chapter.
(Sarmiento, 2007)
Does the general prohibition of the use of
force preclude the right to self-defense?
Article 51 provides that the Charter shall not
impair the inherent right of individual or collective
self-defense if an armed attack occurs against a
Member of the UN, until the Security Council has
taken measures necessary to maintain international
peace and security.
Measures taken by Members in the exercise of this
right of self-defense shall be immediately reported to
the Security Council and shall not in any way affect
the authority and responsibility of the Security
Council under the present Charter to take at any
time such action as it deems necessary in order to
maintain or restore international peace and security.
(Bernas, 2009)
What are the limitations to the exercise of
the right to individual or collective self-
defense?
1.) whether self-defense be individual or
collective, it can only be exercised in response to an
“armed attack” which shall include not merely action
by regular armed forces across an international
border, but also the sending by a State of armed
bands on to the territory of another State, if such an
operation, because of its scale and effects, would
have been classified as an armed attack had it been
carried out by regular armed forces;
2.) collective self-defense cannot also be
exercised in the absence of a request by the State
which is a victim of the alleged attack this being
additional to the requirement that the State in
question should have declared itself to have been
attacked. (Ibid)
What are the requisites of self-defense under
Article 51 of the UN Charter?
1.) an armed attack occurred against a
member of the UN;
2.) It must be “confined to cases in which
the necessity of that self-defense is instant,
overwhelming, and leaving no choice of means, and
no moment for deliberation”;
3.) The measures taken “must be limited by
that necessity and kept clearly within it”;
4.) The right of self-defense must give way to
measures that may be taken by the Security Council
to maintain international peace and security.
(Sarmiento, 2007)
What are the requirements of “necessity and
proportionality” in self-defense?
They embody the requirements for a valid
act of self-defense as formulated by US Secretary of
State Daniel Webster in his letter in the Caroline
Incident. According to him, self-defense was to “be
confined to cases in which the necessity of that self-
defense is instant, overwhelming, and leaving no
choice of means, and no moment for deliberation”
and that such actions justified by that necessity
”must be limited by that necessity and kept clearly
within it.”
These requirements apply whether a state is
acting in self-defense against an attack which has
already occurred or acting in anticipatory self-
defense. (Malone, 148)
These requirements were affirmed by the
ICJ in its decision in Nicaragua vs. US, June 27,
1986. (Ibid)
What is the right of collective self-defense?
If the state is entitled to use force in self-
defense under Article 51, other states are entitled to
come to the defense of the attacked state in collective
self-defense. This right exists independently of the
existence of a mutual defense treaty between the
attacked state and the other states which come to its
defense. (Ibid)
78
May a state exercise the collective right of
self-defense without an explicit request for
assistance from the state on whose behalf the
right is to be exercised?
In Nicaragua vs US, the ICJ concluded that
the US was not entitled to come to the defense of El
Salvador, Honduras, and Costa Rica because at that
time it had not been requested to do so. It held that
the exercise of the right of collective self-defense
presupposes that an armed attack has occurred; and
the victim state draws general attention to its plight
and finally, the victim state makes an express
request to other states to come to its help. (Ibid)
Is anticipatory self-defense allowed?
Opinion on the subject is divided. Those
who claim the existence of the right say that the
phrase “if an armed attack occurs” is not exclusive
which is reminiscent of the view that protection of
“vital interests” justifies the use of force.
In practical terms, however, states do not
invoke the right because they are afraid that it might
be used against them too. (Ibid)
What are the other measures of redress short
of war that are used by states?
a) severance of diplomatic relations;
b) non intercourse;
c) retorsion;
d) embargo;
e) reprisals;
f) display of force;
g) pacific blockade;
h) armed intervention without war;
i)international organizational sanctions. (Sarmiento,
2007)
Are these methods short of war allowed
under International Law?
With the adoption of the UN Charter, all
measures short of war that involves the threat or use
of force against the territorial jurisdiction or political
independence of any state or in any other manner
inconsistent with the purposes of the UN are no
longer allowed. (UN Charter Art. 2[4])
All members of the UN shall settle their
international disputes by peaceful means in such a
manner that international peace and security, and
justice, are not endangered. (Ibid, Art. 2[3])
However, this is without prejudice to the
authority of the Security Council under Chapter VII
of the UN Charter to decide what measures are to be
employed to give effect to its decisions, and it may
call upon the Members of the UN to apply such
measures which may include:
a.) complete or partial interruption of
economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of
communication;
b.) the severance of diplomatic relations;
c.) demonstrations;
d.) blockade; and
e.) other operations by air, sea or land
forces.(Ibid)
What is severance of diplomatic relations?
Before resorting to one or other of the
various forms of coercion, it was common for
governments to break off diplomatic relations with
the offending state by recalling their public ministers
resident at the foreign capital. However, this
measure was not in itself a form of forcible
procedure, but rather to serve as a warning that the
issue between the two states had reached a point
where the injured party regarded normal diplomatic
relations as no longer compatible with the conduct
of the other state, and that sterner measures might
possibly follow. (Fenwick, 531 as cited in Sarmiento,
2007)
Severance should be distinguished from
suspension of diplomatic relations. Suspension
involves withdrawal of diplomatic representation
but not of consular representation. (Bernas, 2009)
79
What is non-intercourse?
It consists of suspension of all commercial
intercourse with a state.
What is retorsion?
It is any action taken in “retaliation where
the acts complained of do not constitute a legal
ground of offense but are rather in the nature of
unfriendly acts but indirectly hurtful to other states.”
(Fenwick, 532 as cited in Cruz, 2000) The act of
retaliation is also unfriendly but not illegal and may
be in kind or of a different nature than the act that
provoked it. Examples of retorsions are severance of
diplomatic or consular relations, suspension of
commercial intercourse, boycott, stoppage of travel
to the other state, denunciation of treaties,
imposition of higher tariffs and other trade barriers,
currency restrictions, denial of loans and withdrawal
of privileges previously enjoyed, recognition of a
rival government, and adverse propaganda.(Ibid)
Other author describes it as any of the forms
of counter-measures in response to an unfriendly
act. Forms of retorsion include shutting of ports to
vessels of an unfriendly state, revocation of tariff
concessions not guaranteed by treaty, or a display of
naval forces near the waters of an unfriendly state.
(Bernas, 2009)
Is retorsion valid under International Law?
As long as retorsion does not involve the
threat or use of force, it is valid under International
law. (Sarmiento, 2007)
What are reprisals?
They are an act of self-help on the part of the
injured state, responding after an unsatisfied
demand to an act contrary to international law on
the part of the offending state. They have the effect
of suspending momentarily in the relations of the
two states the observance of this or that rule of
international law. They are limited by the
experience of humanity and the rules of good faith,
applicable in the relation of state with state.
They would be illegal if a previous act
contrary to international law had not furnished the
reason for them. They aim to impose on the
offending state reparation for Arbitration,
Portuguese-German Arbitral Tribunal, 1928 as cited
in Cruz, 2000)
Justice Cruz enumerated the more common
forms of reprisals as to include
a) display of force, as when the US Mediterranean
Fleet proceeded to and deployed along the coasts of
Turkey in 1903 pending compliance with the
demand for the return of an American national
kidnapped by a Turkish bandit;
b) occupation of territory, as when Italy seized
the Greek island of Corfu in 1923 for the murder of
certain Italian officers in Greece;
c) embargo or the detention by the state seeking
redress of the vessels of the offending state or its
nationals, whether such vessels are found in the
territory of the former or on the high seas, as
illustrated by the action taken by Holland against
Venezuela in 1908;
d) pacific blockade, by which the vessels of the
offending state are prevented from entering or
leaving its ports by the ships of the state seeking
redress, as was done by the Great Powers against
Greece in 1886 to dissuade it from going to war
against Turkey. (2000)
When is act of reprisal legitimate?
In the Naulilaa Arbitration Case (Portugal vs
Germany), 2 RIAA 1011(1928), the Versailles Swiss
arbitral panel laid down three conditions for the
legitimacy of reprisals:
a.) there must have been an illegal action on
the part of the other state;
b.) they must be preceded by a request for redress of
the wrong, for the necessity of resorting to force
cannot be established if the possibility of obtaining
redress by other means is not even explored;
c.) the measures adopted must not be
excessive, in the sense of being out of all proportion
to the vocation received. (Sarmiento, 2007)
In the present state of IL, may reprisals still
be held legitimate?
80
 Since the Kellog-Briand Pact of 1928 (Pact of
Paris) all forms of reprisals which may involve the
use of force are no longer legal. Article 2 of the Pact
states that “the settlement or solution of all disputes
or conflicts of whatever nature or of whatever origin
they may be shall never be sought except by pacific
means.” This prohibition was reaffirmed by the UN
Charter, Art. 2 [3,4]. (Ibid)
What is embargo?
It is the prohibition of commerce and trade
with the offending state. Laying an embargo upon
all vessels of the offending state that happen at the
time to be in the ports of the state seeking redress
does not contemplate confiscation (which is
considered an act of war), except in the event that
the redress for injuries suffered should be finally
refused. (Fenwick, 534 cited in Sarmiento, 2007)
This can consist of seizure of vessels even in
the high seas. It might also be pacific, as when a
state keeps its own vessels for fear that it might find
their way in foreign territory. There can also be
collective embargo, e.g. on import of drugs or of oil.
(Bernas, 2009)
What is boycott? Does it constitute a
violation of IL?
It is a concerted action undertaken by the
citizens of one state to suspend trade and business
relations with the citizens of the offending state. So
long as the boycott is a purely voluntary act on the
part of the citizens acting individually or in concert,
it is a measure that falls outside of the scope of IL.
But if any element of governmental pressure, or even
of governmental persuasion should enter into
boycott, there would be ground for protest by the
foreign government. (Fenwick, 535 cited in
Sarmiento, 2007)
It is a form of reprisal which consists of
suspension of trade or business relations with the
nationals of an offending state. Some claim that this
is a form of economic aggression which should be
prohibited by law. (Bernas, 2009)
What is blockade?
It is any effort to cut off all maritime
commerce between an enemy state and the rest of
the world. The purpose was not only to prevent
goods from reaching the enemy but also to prevent
the enemy from exporting to the outside world and
thereby sustaining its war economy. (Sarmiento,
2007)
What three things must be specified in a
declaration of blockade?
Article 9 of the 1909 Declaration of London
concerning Laws of Naval War enumerates the
things that a declaration of blockade must specify:
a) the date when the blockade begins;
b) the geographical limits of the coastline
under blockade;
c) the period within which neutral vessels
may come out. (Ibid)
Is blockade lawful in international law?
A blockade is lawful if made upon the order
or authority of the UN Security Council pursuant to
Article 42 of the UN Charter, that is, as a measure to
maintain or restore international peace and security.
Otherwise, if not authorized by the Security Council,
then it will fall under the UN Charter’s general
prohibition against the use of force under Article
2(4). (Ibid)
In the event that none of the above-discussed
methods succeeds in settling the dispute, or
even if they are not employed, may the UN be
asked or decide on its own authority to take a
hand in the settlement?
Yes, this task is addressed principally to the
Security council but may, when the occasion
requires, be taken over by the General Assembly
under proper conditions. (Cruz, 2000)
What disputes are within the Security
Council’s jurisdiction?
a) all disputes affecting international peace
and security (UN Charter Arts. 24, 34);
b) all disputes which, although coming
under the “domestic jurisdiction clause,” have been
81
submitted to it by the parties for settlement (Ibid,
Article 2) (Cruz, 2000)
How may such disputes be brought to the
attention of the SC?
a) by the SC itself, on its own motion (Ibid,
Art.39);
b) by the GA (Arts 10 & 11);
c) by the Secretary General (Art. 99);
d) by any member of the UN (Art. 35);
e) by any party to the dispute, provided that
in the case of non-members of the UN, they should
accept in advance, for purposes of the dispute, the
obligations of pacific settlement under the Charter.
(Arts. 35 & 37) (Cruz, 2000)
What are the steps under the UN Charter that
shall be taken by the SC in settling disputes
brought to its attention?
1) when it deems necessary, call on the
parties to settle the dispute by any peaceful means in
their own choice (Art 33);
2) in case the parties are unable to adjust
their differences by themselves through the peaceful
methods suggested, it may recommend appropriate
measures or methods of adjustment, taking into
consideration: a) any amicable measures already
adopted by the parties; and b) that legal disputes
should as a rule be referred to the ICJ (Art. 36);
3) if the above measures prove unavailing,
then it may recommend such actual terms of
settlement as it may consider appropriate (Art 36)
which is in the nature of a compulsory settlement of
the dispute which the parties are under obligation to
abide by in the interest of international peace and
security.
4) Finally, where the terms of settlement are
rejected by any of the parties, it is empowered to
take more drastic steps which include:
4.1) preventive action which consists of measures
not involving the use of armed force, such as
complete or partial interruption of economic
relations and of rail, sea air, postal, telegraphic,
radio and other means of communication, and
severance of diplomatic relations (Art 41);
4.2) enforcement action which may be taken if the
above measures would be or have proved
inadequate, or such action by air, sea or land forces
as may be necessary to maintain or restore
international peace and security. It may include
demonstrations, blockades, and other operations by
air, sea, or land forces of members of the UN (Art
41). (Cruz, 2000)
What is the Military Staff Committee?
It consists of the chiefs of staff of the
permanent members of the SC or their
representatives. It is supposed to advise and assist
the SC on all questions relating to its military
requirements for the maintenance of international
peace and security, the employment and command
of forces placed at its disposal, the regulation of
armaments, and possible disarmament. It shall also
be responsible under the SC for the strategic
direction of any armed forces placed at the disposal
of the said Council (Art 47). (Cruz, 2000)
What is “Uniting for Peace Resolution”?
This provides that “if the Security Council,
because of lack of unanimity of the permanent
members, fails to exercise its primary responsibility
for the maintenance of peace and security in any
case where there appears to be threat to the peace,
breach of peace, or act of aggression, the General
Assembly shall consider the matter immediately
with a view to making recommendations to the
members for collective measures, including in the
case of breach of the peace or act of aggression, the
use of armed forces when necessary, to maintain or
restore international peace and security.” (Ibid)
What if the GA is not in session at the time?
The GA may meet in emergency special
session within 24 hours of the request therefor
either by any nine members of the SC or by a
majority of the members of the UN.
Conformably to this resolution, the General
Assembly on November 4, 1956, provided for the
establishment of an international “police force”
under the UN command to supervise the area
involved in the Suez Canal crisis, in which two of the
permanent members of the SC were directly
involved. (Cruz, 2000)
82

Distinguish enforcement action from
peacekeeping forces?
Enforcement action involving deployment of
troops differs from peacekeeping forces in that
enforcement action is imposed without the consent
of the state against which such action is directed,
while peacekeeping forces are deployed with the
consent of the state concerned like the first United
nations Emergency Forces (UNEF 1) which was
deployed by the GA with the consent of Egypt in
1956 and the ONUC (Operation des Nations Unies
au Congo) which was deployed by the SC in 1960
with the consent of Congolese government during
the Congolese civil war. (Malone, 144-145 cited in
Sarmiento, 2007).
Is the preservation and maintenance of
international peace and security the
“exclusive” responsibility of the SC?
No, the preservation and maintenance of
international peace and security is the “primary”,
but not the “exclusive,” responsibility of the SC.
(Certain Expenses Case)
The preservation and maintenance of
international peace and security is the obligation of
all members of the UN and the responsibility of the
Organization itself, which must be discharged
primarily through the SC and secondarily through
the GA. (Sarmiento, 2007)
Is protection of nationals abroad an aspect of
the right to self-defense in Article 51?
Though the legitimacy of such intervention is not
firmly established in international law, the
proponents believe that such position can be
defended since population is an essential element of
statehood. Others argue that Article 2(4) does not
prohibit it because it does not compromise the
“territorial integrity or political independence” of a
state.
Examples of forcible rescue of nationals are the raid
of Entebee in Uganda and the US intrusion into
Stanleyville to rescue American students. (Bernas,
2009)
When is “humanitarian intervention”
permissible?
1.) If the SC determines that massive violations of
human rights occurring within a country constitute a
threat to the peace; and
2.) SC then calls for or authorizes an enforcement
action to put an end to these violations. (Ibid)
What is intervention in international law?
Justice Cruz includes intervention along
with retorsions and reprisals in the hostile methods
of settling international disputes.
It is defined as an act by which a state
interferes with the domestic or foreign affairs of
another state or states through the employment of
force or threat of force. Such force may be physical
or, in the present state of world affairs, even political
or economic. Lacking such pressure, the
involvement of a state in the affairs of another, even
if unsolicited, cannot be considered intervention.
Intervention is not sanctioned in
international relations except only when it is
exercised as an act of self-defense or when it is
decreed by the SC as a preventive or enforcement
action for the maintenance of international peace
and security. Other others add as exception if
intervention is agreed upon in a treaty. Intervention
may also be allowed when requested from sister
states or from the UN by the parties to a dispute or
by a state beset by rebellion. (Cruz, 2000)
CHAPTER 11
The Law of War (International
Humanitarian Law)
What is International Humanitarian Law?
It used to be known as Laws of War which
provides for instances when the use of armed force is
justifiable (jus ad bellum) and it regulates the
conduct of armed conflict (jus in bello). (Bernas,
2009)
It is a set of rules which seeks, for
humanitarian reasons, to limit the effects of armed
83
conflict. It protects persons who are not or are no
longer participating in the hostilities and restricts
the means and methods of warfare. (ICRC Fact
Sheet, What is International Humanitarian Law
cited in Sarmiento, 2007)
Did early international law consider war as
unlawful?
No. Early international law did not consider
as unlawful a war waged to gain political or other
advantages over another. In fact, war was in law a
natural function of the State and a prerogative of its
uncontrolled sovereignty. (Hyde, 1922 cited in
Bernas, 2009)
Prior to World War II, what were the early
attempts to outlaw war?
Early attempts to outlaw war were found
inHague Convention II in 1907, Covenant of the
League of Nations (1919), and in the Kellog-Briand
Pact for the Renunciation of War (1928). (Ibid)
What law formulated after the Second World
War was considered more effective in
preventing war?
The UN Charter which provides:“ All
Members shall refrain, in their international
relations, from the threat or use of force against the
territorial integrity or political independence of any
state, or in any other manner inconsistent with the
Purposes of the United Nations.” Art 2(4) (Ibid)
How can the paradox that despite the
prohibition of armed conflict, there is the
proliferation of laws of war, be explained?
Three facts can explain the paradox:
1) Those who resort to the use of arms do not give up
until they have achieved victory;
2) Given the first fact, humanitarian consideration
dictates the need for rules which curtail violence
beyond what is necessary to achieve a state’s goal;
and
3) There still remains in the hearts of the soldiery an
acceptance of chivalry as a value. (Ibid)
What were the provisions of the Hague Law?
The Conventions and Declaration in 1899
and the conferences held in 1907 produced
principles that constitute that part of the law of
armed conflict still known as the Law of the Hague
governing land and naval warfare. Principles
governing the conduct of air warfare were to follow
later. (Ibid)
What do Geneva Conventions of 1949
provide?
There are four Geneva “Red Cross”
Conventions which consist of the following:
1) I – Wounded and Sick in the Field;
2) II - Wounded, Sick and Shipwrecked at
Sea;
3) III - Prisoners of War;
4) IV – Civilians
The essence of the Geneva Conventions is
that persons not actively engaged in warfare should
be treated humanely. The rules apply to any
international armed conflict, whether a declared war
or not. (Ibid)
How are non-parties to these Conventions
bound by them?
Since much of what are embodied in the
Hague and Geneva Conventions are customary law,
non-parties to the Convention are covered by the
customary law of armed conflict. It has become
common practice when one of the parties to the
conflict is not a party to the conventions for such
party to make a declaration that it will abide by the
terms of the Convention. (Ibid)
What are the three statements of the ICRC
which sum up the basic rules governing
armed conflicts?
1. Soldier’s Rules;
2. Fundamental Rules of International
Humanitarian Law Applicable to Armed Conflicts;
and
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3. Non-international Armed Conflicts
How are the agreements or conventions on
the laws of war enforced?
The commonly accepted sanctions are:
1) protest lodged by one belligerent, usually
accompanied or followed by an appeal to world
opinion against the unlawful acts of warfare
committed by the other belligerent;
2) reparation for damages caused by the defeated
belligerent; and
3) punishment of war criminals (Cruz, 2000)
How does war commence?
War may start with a declaration of war (The
Hague Conventions of 1907); with the rejection of an
ultimatum, or with the commission of an act of force
regarded by at least one of the belligerents as an act
of war. (Cruz, 2000)
What are the effects of the outbreak of war?
1) The laws of peace cease to regulate the relations of
the belligerents and are superseded by the laws of
war. Third states are governed by the laws of
neutrality in their dealings with the belligerents.
2) Diplomatic and consular relations between the
belligerents are terminated and their respective
representatives are allowed to return to their own
countries.
3) Treaties of political nature, such as treaties of
alliance, are automatically cancelled, but those
which are precisely intended to operate during war,
such as one regulating the conduct of hostilities
between the parties, are activated. Multipartite
treaties dealing with technical or administrative
matters, like postal conventions, are deemed merely
suspended as between the belligerents.
4) Individuals are impressed with enemy character:
a. under the nationality test, if they are
nationals of the other belligerent, wherever
they may be; b)
b. under the domiciliary test, if they are
domiciled aliens in the territory of the other
belligerent, on the assumption that they
contribute to its economic resources; and
c. under the activities test, if being
foreigners, they nevertheless participate in
the hostilities in favor of the other
belligerent.
Corporations and other juridical persons, on the
other hand, are regarded as enemies if a majority or
a substantial portion of their capital stock is in the
hands of enemy nationals or if they have
incorporated in the territory or under the laws of the
other belligerent.
5) Enemy public property found in the territory of
the other belligerent at the outbreak of hostilities is,
with certain exceptions, subject to confiscation.
Enemy private property may be sequestered, subject
to return, reimbursement or other disposition after
the war in accordance with the treaty of peace. (Ibid)
Who are combatants?
The following are regarded as combatants:
1) the members of the armed forces, whether
pertaining to the army, the navy or the air force,
except those not actively engaged in combat, such as
chaplains and medical personnel;
2) the irregular forces, such as the francstireurs or
the guerillas, provided, that: a) they are commanded
by a person responsible for his subordinates; b) they
wear a fixed distinctive sign recognizable at a
distance; c) they carry arms openly; and d) they
conduct their operations in accordance with the laws
and customs of war.
3) the inhabitants of unoccupied territory who, on
approach of the enemy, spontaneously take arms to
resist the invading troops without having had time
to organize themselves, provided only that they carry
arms openly and observe the laws and customs of
war. This is often referred to as levee en masse.
4) the officers and crew of merchant vessels who
forcibly resist attack.
What are the rights accorded to combatants
when captured?
1) right to the proper respect commensurate with
their rank;
2) right to adequate food and clothing;
3) right to safe and sanitary quarters;
85
4) right to medical assistance;
5) right to refuse to give military information or
render military service against their own state;
6) right to communicate with their families.
Non-combatants or those who do not engage directly
in hostilities do not enjoy identical rights when
captured but are protected from inhumane
treatment under the Geneva Convention of 1949
relative to the treatment of civilian persons in time
of war.
What are the three basic principles
underlying the rules of warfare?
1) Principle Of Military Necessity
Under this principle, the belligerents may,
subject to the other principles, employ any amount
and kind of force to compel the complete submission
of the enemy with the least possible loss of lives,
time and money. Measures such as sieges,
blockades, bombardments, and devastation of
property, which may involve direct hardships on the
non-combatants within the area affected, are
undertaken under this principle.
2) Principle Of Humanity
This principle prohibits the use of any
measure that is not absolutely necessary for the
purposes of the war, such as the poisoning of wells
and weapons, the employment of dumdum or
expanding bullets and asphyxiating gases, the
destruction of works of art and property devoted to
religious or humanitarian purposes, the bombarding
of undefended places, and attack of hospital ships.
When an enemy vessel is sunk, the other
belligerent must see to the safety of the persons on
board. Pillage (taking of goods by force in time of
war) is prohibited. The wounded and the sick must
be humanely treated without distinction of
nationality by the belligerent in whose power they
are. The rule that a combatant who surrenders may
not be killed and the agreements relating to the
treatment of prisoners of war also fall under this
principle.
3)Principle Of Chivalry
This principle is the basis of such rules as
those that require the belligerents to give proper
warning before launching a bombardment or
prohibit the use of perfidy (treachery or
faithlessness) in the conduct of hostilities.
False flags are not allowed in land warfare,
but war vessels may sail under a flag not their own,
subject only to the requirement that they haul it
down and hoist their own flag before attacking the
other belligerent. Espionage is also prohibited.
(Ibid)
When can an individual be considered a spy?
An individual can only be considered a spy
if, acting clandestinely or on false pretenses, he
obtains, or seeks to obtain, information in the zone
of operations of a belligerent, with the intention of
communicating it to the hostile party. Spies are
subject to the municipal law of the other belligerent
except that, as provided in the Hague Conventions of
1907, “a spy taken in the act cannot be punished
without previous trial”. A spy who succeeds in
rejoining his army and is later captured incurs no
responsibility for his previous acts of espionage and
is entitled to be treated as a prisoner of war. (Articles
30 & 31 as cited in Cruz, 2000)
Is booty or personal property found in the
battlefield subject to confiscation?
Yes, except only the personal belongings of
the individual combatants which have no military
value such as jewelry.
Distinguish theatre of war from region of
war?
The first is the place where the hostilities are
actually conducted while the second is the greater
area where the belligerents may lawfully engage each
other.
When is a territory deemed occupied by a
belligerent?
It is deemed occupied when it is actually
placed under the authority of the hostile army, but
this occupation is limited only to the area where
such authority has been established and can be
effectively exercised. It is not necessary that every
square foot of the territory in question be actually
occupied, as it doubtless suffices that the occupying
army can, within a reasonable time, send
detachment of troops to make its authority felt
within the occupied district. (Hyde, Vol.2, 364 cited
in Cruz, 2000)
What are the consequences of belligerent
occupation?
86
1. It does not result in transfer or suspension of the
sovereignty of the legitimate government although it
may at the moment be unable to exercise it.
2. The belligerent occupant cannot perform such
acts as declaring the independence of the occupied
territory or requiring its inhabitants to renounce
their allegiance to the lawful government.
3. The belligerent is required to restore and ensure
public order and safety while respecting, unless
absolutely prevented, the laws in force in the country
more particularly with regard to family honor and
rights, the lives of persons, private property, and
religious convictions and practice. (Hague
Convention No. IV, 1907, Reg., Arts 53-56)
4. Whenever necessary, the belligerent occupant
may promulgate new laws, non-political as well as
political, provided they do not contravene the
generally accepted principles of international law.
Political laws are automatically abrogated upon the
end of the occupation but the non-political laws may
continue even beyond the occupation unless they are
expressly repealed or modified by the legitimate
government. (HiladovsDela Costa, April 30, 1949)
5. The belligerent occupant is permitted to exact
from the populace contributions over and above the
regular taxes for the needs of the army of occupation
or for the administration of the territory. (HC No.
IV, 1907, Reg., Arts 49-51) It may also, for valuable
consideration, make requisitions of things or
services for the needs of the occupying forces. (Ibid,
Art.52)
6. The belligerent occupant is permitted to introduce
military currency, provided the purpose is not to
debase the country’s economy. Thus, in Haw Pia vs
China Banking Corporation (80 Phil 604), the
Supreme Court upheld the validity of the payments
made by the plaintiff in Japanese military notes to
settle a loan extended to her in Philippine currency
before the outbreak of the Pacific war.
7. Private property cannot be confiscated, but those
susceptible of military use may be seized, subject to
restoration or compensation when peace is made.
(HC No. IV, Reg., Arts 53-56) The property of
municipalities and of institutions dedicated to
religion, charity and education, and the arts and
sciences, even when state-owned, shall be treated as
private property, and their destruction is expressly
forbidden. (Ibid)
8. The army of occupation can only take possession
of cash, funds and realizable securities which are
strictly the property of the state, depots of arms,
means of transport, stores and supplies, and
generally movable property of the state, depots of
arms, means of transport, stores and supplies, and
generally movable property belonging to the state
which may be used for military operations. (Ibid) All
appliances, whether on land, at sea, or in the air,
adapted for the transmission of news, or for the
transport of persons or things, exclusive of cases
governed by naval law, depots of arms and generally
all kinds of ammunition of war may be seized but
must be restored and compensation fixed when
peace is made.(Ibid)
9. The occupying state shall be regarded only as
administrator and usufructuary of public buildings,
real estate, forests, agricultural estates belonging to
the hostile state and situated in the occupied
territory. (Ibid, Art 55)
This rule was applied in
BanaagvsSingsonEncarnacion (April 19, 1949),
where a lease of five years granted by Philippine
Executive Commission in 1942 over certain
municipal fisheries was deemed automatically
canceled upon the re-establishment of the
Commonwealth government. (Ibid)
What is the right of postliminy or
postliminium?
It “is that in which persons or things taken
by the enemy are restored to the former state on
coming actually into the power of the nation to
which they belong”. (Vattel in Leitensdorfervs Webb,
1 N.M. 34, 44 cited in Cruz, 2000) In its broadened
concept, the jus postliminium also imports the
reinstatement of the authority of the displaced
government once control of the enemy is lost over
the territory affected.
Thus, upon the end of a belligerent
occupation, the laws of the re-established
government are revived and all acts taken by the
belligerent occupant which it could not legally do
under the law of nations, as well as lawful acts of a
political complexion, are invalidated.
What are the non-hostile intercourse?
1. A flag of truce is a white flag carried by an
individual authorized by one belligerent to enter into
communications with the other. The bearer, or
parlementaire, is entitled to inviolability as long as
he does not take advantage of his privileged position
to commit an act of treachery. But the other
belligerent is not obliged to receive a flag of truce.
(HC No.IV, 1907, Reg., Arts. 32, 34; Fenwick, 578;
Wilson and Tucker, 294 cited in Cruz, 2000)
87
2. Cartels are agreements to regulate intercourse
during war on such matters as postal and telegraphic
communication, the reception of flags of truce, and
the exchange of prisoners. A cartel ship is a vessel
sailing under a safe-conduct for the purpose of
carrying exchanged prisoners of war. (Fenwick, 575;
Wilson and Tucker, 295 cited in Cruz, 2000)
3. A passport is a written permission given by the
belligerent government or its authorized agent to the
subjects of the enemy state to travel generally in
belligerent territory. (Wilson and Tucker, 295 cited
in Cruz, 2000)
4. A safe-conduct is a pass given to an enemy
subject or to an enemy vessel allowing passage
between defined points. This is given either by the
belligerent government or by the commander of the
area within which it is effective. (Ibid)
5. A safeguard is a protection granted by a
commanding office either to enemy persons or
property within his command. When it is enforced
by a detail of men, they must use extreme measures,
if necessary to fulfill their trust, and are themselves
exempt from attack or capture by the enemy.
6. A license to trade is a permission given by the
competent authority to individuals to carry on trade
even though there is a state of war. A general
license grants to all the subjects of the enemy state
or to all its own subjects the right to trade in
specified places or in specified articles. A special
license grantsto a certain person the right to trade
in the manner specified in his license. (Ibid, 296)
Distinguish suspension of arms from
armistice.
A suspension of arms is a temporary
cessation of the hostilities by agreement of the local
commanders for such purposes as the gathering of
the wounded and the burial of the dead. (Fenwick,
579; Wilson and Tucker, 297) Whereas, armistice
is the suspension of all hostilities within a certain
area (local) or in the entire region of the war
(general) agreed upon by the belligerent
governments, usually for the purpose of arranging
the terms of the peace. The purpose of the armistice
is political while that of suspension of arms is
military; armistice may be concluded only by the
commanders-in-chief of the belligerent governments
while suspension of arms may be agreed upon by the
local commanders; and armistice is usually in
writing while suspension of arms may be oral. (Cruz,
2000)
What is a cease-fire?
A cease-fire is an unconditional stoppage
of hostilities by order of an international body like
the UN Security Council for the purpose of
employing peaceful means of settling the differences
between the belligerents. (Salonga and Yap, 451-452
cited in Cruz, 2000)
What is a truce?
A truce is sometimes used interchangeably
with armistice but is now generally regarded as a
cease-fire with conditions attached. (Fenwick, 579
cited in Cruz, 2000)
What is a capitulation?
It is the surrender of military forces, places
or districts in accordance with the rules of military
honor. (HC No.IV, 1907, Reg. Art. 35)
How may war be terminated?
War may be terminated by any of the
following:
1) Simple Cessation Of Hostilities
Among the wars that were terminated by
simple cessation of hostilities are those between
Sweden and Poland in 1716, between France and
Spain in 1720, between Spain and its American
colonies in 1825, and between France and Mexico in
1862-67. Under this method, property or territory in
the possession of the respective belligerents upon
the termination of the war is retained by them in
accordance with the principle of utipossidetis.
This is to be distinguished from the usual
stipulation for the status quo ante, which calls
for the complete restoration to their former owners
of property or territory that may have changed
hands during the hostilities, with the exception only
of prize and booty.
2) Negotiated Treaty Of Peace
At times, belligerents may be unable to
effect a decisive victory against each other and may
decide finally to settle their disagreement in what is
known as a negotiated treaty of peace. One
example was the case of Great Britain and the US
when they terminated the War of 1812 with the
conclusion of the Treaty of Ghent.
3) Defeat Of One Of The Belligerents
The surrender of the defeated belligerent
may either be conditional or unconditional. In
the former case, a treaty of peace is concluded
88
embodying the condition specified in the surrender;
in the latter, the victorious belligerent usually issues
a unilateral declaration announcing the end of the
war, to be followed with a peace treaty dictated by it
and specifying the rules on the settlement of the
obligations of the vanquished state and the
disposition of its territories.
What are the consequences of war?
1) The implied judgment that the vanquished
belligerent is the guilty party in the dispute that
caused the hostilities; and
2) Nationals of the vanquished state may be
protected and punished as war criminals and for
other violations of international law who may not
escape responsibility on the ground that they were
merely acting on orders of their state; Here, the state
itself is liable for issuing such orders and the
individuals for obeying them provided a moral
choice was possible.
In Yamashita vsStyer (75 Phil 563), the
Commander General of the Imperial Japanese
Forces in the Philippines was convicted of war
atrocities by a military commission and sentenced to
death by hanging. He questioned his trial and
conviction on the ground that the military
commission had no authority or jurisdiction to try
him, but the Philippine Supreme Court and the US
Supreme Court affirmed the sentence. The latter
court declared that the acts directed against the
civilian population of an occupied country and
against prisoners of war are recognized in
international law as violations of the law of war.
(Cruz, 2000)
When is a state said to be neutral?
A state is neutral if it does not take part,
directly or indirectly, in a war between other states.
How does neutrality differ from
neutralization?
Neutrality is dependent solely on the
attitude of the neutral state, which is free to join any
of the belligerents anytime it sees fit, while
neutralization is the result of a treaty wherein the
duration and the other conditions of the
neutralization are agreed upon by the neutralized
state and other powers. This agreement governs the
conduct of the signatories whereas neutrality is
governed by the general law of nations. Neutrality
obtains only during war while neutralization is
intended to operate in time of peace as well as in
time of war. Only states may become neutral but
portions of states, like islands, rivers and canals,
may be neutralized.
May there be neutrality among members of
the UN?
Yes, a state can become a member of the UN
and still maintain its neutrality. At present, several
neutral states, like Austria, Finland, Ireland,
Sweden, and recently Switzerland in 2002, are
members of the UN. (sarmiento, 2007)
What are the rights and duties of a neutral
state?
A neutral state has the right and duty to
abstain from taking part in the hostilities and from
giving assistance to either belligerent; to prevent its
territory and other resources from being used in the
conduct of hostilities by the belligerents, and to
acquiesce in certain restrictions and limitations that
the belligerents may find necessary to impose,
especially in connection with international
commerce. (Schwarzenberger, 208, cited in Cruz,
2000)
What are the obligations of belligerents?
They are bound to respect the status of the
neutral state, avoiding any act that will directly
involve it in their conflict, and to submit to any
lawful measures it may take to maintain or protect
its neutrality.
Is the use of neutral territory completely
barred to the belligerents?
No. The passage of sick and wounded
troops is allowed through a neutral state provided
personnel and materials of war are not also carried.
(HC V 1907 Art. 12.) Persons bound for enlistment
in the belligerent armies may cross the neutral
frontiers if they do so individually or separately and
not as a body. (HC V 1907 Art 6) The neutral state
itself may give refuge to troops from the belligerent
forces but must intern them as far as possible, at a
distance from the theatre of war. (HC V 1907 Art. 11)
Escaped prisoners of war need not be detained by
the neutral state but must be assigned a place of
residence if they are allowed to remain. (HC V 1907
Art 13)
Is the neutral state obliged to prevent the
export from or transit through its territory of
war supplies purchased from private traders
by the belligerents in the ordinary course of
commerce?
89
 No. But it is required to take reasonable
diligence in preventing the delivery of vessels
constructed and armed in its territory for use by any
of the belligerents. (In Alabama Claims Case, Great
Britain was found liable in damages to the US for
violation of this duty.)
Is the neutrality of one state compromised
when its nationals enlist in a belligerent
army or engage in commerce with any of the
belligerents?
No. The neutrality of the state is not
compromised in the absence of special rules
imposing upon the neutral state the duty of
intervening in the transaction. Except for these,
international law considers the relationship as
strictly between the individual and the belligerent
states and whatever hardships may be suffered by its
nationals as a result thereof must, as a rule, be
acquiesced in by the neutral state.
What is contraband?
It refers to goods which, although neutral
property may be seized by a belligerent because they
are useful for war and are bound for a hostile
destination. Absolute contraband are necessarily
useful for war under all circumstances, like rifles and
ammunition (Declaration of London, Articles 22,
24), whereas conditional contraband, like food
and clothes, have both civilian and military
purposes. “Free list” includes goods useful for war
and bound for the belligerents but exempted from
the law on contraband for humanitarian reasons like
medicines and medical supplies for the use of the
sick and the wounded.
Absolute contraband are subject to seizure
so long as they are bound for enemy or enemy-held
territory, (Ibid, Art 29) but conditional contraband
may be seized only when it can be shown that they
are destined for the armed forces or the authorities
of the belligerent government. (Ibid, Art. 33)
What is the doctrine of ultimate
consumption?
Under this doctrine, goods intended for
civilian use which may ultimately find their way to
and be consumed by the belligerent forces are also
liable to seizure on the way. (Cruz, 2000)
What is the doctrine of infection?
Under this doctrine, if innocent goods
belonging to the same owner are shipped together
with contraband which are subject to condemnation,
innocent goods may also be confiscated.
(Declaration of London, Art. 42)
Is the vessel carrying the contraband subject
also to confiscation?
Only if the contraband are more than one-
half of the total cargo by weight, value, freight or
volume (Ibid, Art 40)
What is the doctrine of ultimate destination?
Under this doctrine, the liability of
contraband to capture is determined not by their
ostensible but by their real destination. (Cruz, 2000)
This doctrine is called the doctrine of
continuous voyage when the goods are reloaded at
the intermediate port on the same vessel and the
doctrine of continuous transport when they are
reloaded on another vessel or other form of
transportation. (Ibid)
What is unneutral service?
It consists of acts, of a more hostile
character than carriage of contraband or breach of
blockade, which are undertaken by merchant vessels
of a neutral state in aid of any of the belligerents.
(Ibid)
When is a neutral vessel liable to
condemnation for unneutral service?
a) if it is making a voyage special with a view to the
transport of individual passengers who are
embodied in the armed forces of the enemy or with a
view to the transmission of information in the
interest of the enemy; or
b) if with the knowledge of the owner, or the one
who charters the entire vessel, or of the master, it is
transporting a military detachment of the enemy or
one or more persons who, during the voyage, lend
direct assistance to the operations of the enemy.
The cargo, if belonging to the owner of the vessels, is
likewise confiscable. (Declaration of London, Art.
45)
When is a neutral vessel liable to
condemnation and to be treated as a
merchant vessel of the enemy?
1. if it takes a direct part in the hostilities;
2. if it is under the orders or control of an agent
placed on board by the enemy government;
3. if it is chartered entirely by the enemy
government; or
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 4. if it is at the time and exclusively either
devoted to the transport of enemy troops or
the transmission of information in the interest
of the enemy. The goods belonging to the
owner of the vessel are likewise liable to
condemnation. (Ibid, Art 46)
What is angary?
By the right of angary, a belligerent may,
upon payment of just compensation, seize, use or
destroy, in case of urgent necessity for purposes of
offenses or defense, neutral property found in its
territory, in enemy territory, or on the high seas.
(Oppenheim-Lauterpacht, Vol 2, 28 cited in Cruz,
2000)
Thus, the exercise of this right is
conditioned upon three requisites:
1. that the property is in the territory under the
control or jurisdiction of the belligerent;
2. that there is urgent necessity for the taking;
and
3. that just compensation is paid to the owner.
(Cruz, 2000)
What is a prize court? What are its duties
and jurisdiction?
Prize courts are domestic tribunals of a
belligerent state that determined the legality of the
capture by a belligerent of enemy or neutral
merchant vessels and of their liability to
confiscation.
Although the authority and the jurisdiction
of prize courts were derived from national law, the
rules which they applied were the rules of
International Law, except in so far as special
national legislation might have prescribed a
particular interpretation of these rules. (Fenwick,
644 cited in Sarmiento, 2007)
How is neutrality terminated?
1. when the neutral state itself joins
the war;
2. upon the conclusion of peace (Cruz,
2000)
Do civil wars or rebellion violate
international law?
No, Article 2(4) of the UN Charter does not
apply to internal conflicts. (Bernas, 2009)
Is outside help for governments experiencing
rebellion legitimate?
Generally, yes, provided requested by the
government. However, aid to rebels is contrary to
international law.
What international law on armed conflict is
applicable to internal conflicts?
Common Article 3 of each of the four
Geneva Conventions provides for minimum
humanitarian protection in cases of internal conflict.
What is Protocol II?
It is the first and only international
agreement exclusively regulating the conduct of
parties in a non-international armed conflict
promulgated in 1977. It “develops and supplements
Article 3 common to the Geneva Conventions of 12
August 1949 without modifying its existing
conditions or application.” A definition of a non-
international armed conflict covered by this
expanded guarantee is found in Article 1. It states:
A non-international armed conflict are
armed conflicts which take place in the territory of a
High Contracting Party between its armed forces
and dissident armed forces or other organized
armed groups which, under responsible command,
exercise such control over a part of its territory as to
enable them to carry out sustained and concerted
military operations and to implement this Protocol.
(Bernas, 2009)
Is Protocol II applicable to situations of
internal disturbances and tensions?
No, Protocol II shall not apply to situations
of internal disturbances and tensions, such as riots,
isolated and sporadic acts of violence and other acts
of a similar nature, as not being armed conflicts. (Art
1 of the Protocol II) This is true even if the armed
forces of the territory may have been called upon to
suppress the disorder. (Ibid)
May terrorist attacks be the subject of an
enforcement action by the UN Security
Council?
Yes, terrorist attacks may be considered as
threats to international peace and security which
would justify the calling of enforcement actions
under Chapter VII of the UN Charter. (Sarmiento,
2007)
Are terrorist acts subject to IHL?
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 No. Banditry, unorganized and short-lived
insurrections, and terrorist activities are not subject
to IHL. (Ibid)
CHAPTER 12
RIGHTS OF REFUGEES
What does the term “refugee” mean?
The term shall apply to any person who, owing to
well-founded fear of being persecuted for reasons of
race, religion, nationality, membership of a
particular social group or political opinion, is outside
the country of his nationality and is unable or, owing
to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a
nationality and being outside the country of his
former habitual residence as a result of such events,
is unable or, owing to such fear, is unwilling to
return to it. (Art 1 of the 1951 Convention relating to
the Status of Refugees [Refugee Convention], which
entered into force on April 22, 1954, and as modified
by the 1966 Protocol relating to the Status of
Refugees, which entered into force on October 4,
1967 as cited in Sarmiento, 2007)
What are the obligations of refugees to the
country where they find themselves?
He should conform to its laws and regulations as
well as to measures taken for the maintenance of
public order. (Refugee Convention, Art 2 cited in
Sarmiento, 2007)
What are the rights of refugees?
Under the 1951 Refugee Convention, the contracting
states shall accord to refugees within their territories
treatment at least as favorable as that accorded to
their nationals with respect to:
1. freedom to practice their religion and
freedom as regards the religious education
of their children; (Art 4)
2. protection of industrial property, such as
inventions, designs or models, trademarks,
trade names, and of rights in literary, artistic
and scientific works; (Art.14)
3. access to the courts, including legal
assistance and exemption from
cautiojudicatumsolvi; (Art 16)
4. general distribution of products in short
supply; (Art 20)
5. housing; (Art 21)
6. public elementary education; (Art 22)
7. public relief and assistance; (Art 23)
8. labor legislation and social security benefits.
(Art 24)
Moreover, the contracting states shall accord to
refugees treatment as favorable as possible and, in
any event, not less favorable than that accorded to
aliens generally in the same circumstances, as
regards:
1. the acquisition of movable and immovable
property and other rights pertaining thereto;
(Art 13)
2. participation in non-political and non-profit
making associations and trade unions; (Art
15)
3. the right to engage in wage-earning
employment; (Art 17)
4. the right to engage on his own account in
agriculture, industry, handicrafts and
commerce and to establish commercial and
industrial companies; (Art 18)
5. the practice of a liberal profession; (Art 19)
6. right to choose their place of residence and
to move freely within its territory. (Art 26)
Furthermore, the contracting states shall issue
identity papers and travel documents to any refugee
in their territory who does not possess a valid travel
document. (Arts 27, 28) (Ibid)
May a state party to the 1951 Refugee
Convention expel a refugee from its
territory?
As a state party to the 1951 Refugee Convention, it
shall not expel a refugee in their territory save on
grounds of national security or public order. In any
event, the expulsion of such a refugee shall be only
in pursuance of a decision reached in accordance
with due process of law.
Except where compelling reasons of national
security otherwise require, the refugee shall be
allowed to submit evidence to clear himself, and to
appeal to and be represented for the purpose before
competent authority or a person or persons specially
designated by the competent authority.
The state party shall also allow such a refugee a
reasonable period within which to seek legal
admission into another country. (Art 32) (Ibid)
Is there a right of asylum under
International Law?
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Articles 13 and 14 of the Universal Declaration of
Human Rights and the General Assembly’s 1967
Declaration on Territorial Asylum recognize the
“right to leave any country, including one’s own” and
the “right to seek and to enjoy in other country’s
asylum from persecution.” Those rights, however
are not coupled with a corresponding state
obligation to grant asylum.
Thus, all states have the right to grant asylum, but
the individual has no right to demand asylum.
(Malone, 127 cited in Sarmiento, 2007)
What is diplomatic asylum?
It is the granting of refuge by a state in its embassies,
ships or aircraft in the territory of another state.
Once diplomatic asylum is granted, there is a right of
safe conduct from the foreign state. Beyond that, the
rules of asylum are generally based on treaty rather
than on Customary International Law. (Malone, 128
cited in Sarmiento, 2007)
What is the principle of non-refoulement?
No contracting state shall expel or return a refugee
in any manner whatsoever to the frontiers of
territories where his life or freedom would be
threatened on account of his race, religion,
nationality, membership of a particular social group
or political opinion.
However, this would not apply where there are
reasonable grounds for regarding the refugee as a
danger to the security of the country in which he is,
or who, having been convicted by a final judgment of
a particular serious crime, constitutes a danger to
the community of that country. (Refugee
Convention, Art.33 cited in Sarmiento, 2007)
INTERNATIONAL ENVIRONMENTAL LAW
How does the Philippine Constitution
express the concern about the environment?
Article II, Section 16 provides that, “The State shall
protect and advance the right of the people to a
balanced and healthful ecology in accord with the
rhythm and harmony of nature.”
The discussions in the 1986 Constitutional
Commission manifested a clear desire to make
environmental protection and ecological balance
conscious objects of police power. (4 Record of the
Constitutional Commission 912-916 cited in Bernas,
2009)
What are the foremost environmental cases
decided by the Supreme Court upholding the
constitutional provisions on environmental
concerns?
1. OposavsFactoran 224 SCRA 792 (1993)
2. LLDA vs CA 231 SCRA 292 (1994)
3. Social Justice Society vs Atienza February 13,
2008
4. MMDA vs Residents of Manila Bay December 18,
2008
Why is the protection of the environment
considered a challenge to the development of
international law?
The protection of the environment is considered a
challenge to the development of international law
because its demands cannot be met without
intrusion into the domestic jurisdiction and
sovereignty of states. The nature and magnitude of
the challenge are such that they require not only the
joint action of states but also the involvement of
non-state actors. (Bernas, 2009)
What consist concern of environmental
protection?
The concern of environmental protection is not just
about the atmosphere, the sea, the land, flora and
fauna. It is also about the preservation of the
cultural heritage of mankind as found in
archeological and artistic remains. (Ibid)
What is the goal of environmental
protectionists?
Their goal is the rational use of the elements that
make up the environment through control, reduction
and, wherever possible, elimination of the causes of
environmental degradation. (Ibid)
Are environmental concerns related to
human rights issues?
Yes, they are inseparably related. In the Danube
Dam Case, the ICJ held that, “The protection of the
environment is a …vital part of contemporary
human rights doctrine, for it is a sine qua non for
numerous human rights such as the right to health,
93
and the right to life itself.” (ICJ Rep 1997 cited in
Bernas, 2009)
Who have environmental rights?
The real object of protection in protecting
the environment are persons capable of having
rights. (Ibid)
What is sustainable development?
It is an important concept in the field both of
economics and environmental rights. The concept of
sustainable development encourages development in
a manner and according to methods which do not
compromise the ability of future generation and
other states to meet their needs. (Ibid)
What is long-range transboundary air
pollution?
It means air pollution whose physical origin is
situated wholly or in part within the area under the
national jurisdiction of one State and which has
adverse effects in the area under the jurisdiction of
another State at such a distance that it is not
generally possible to distinguish the contribution of
individual emission sources or groups of sources.
(1979 Convention on Long-Range Transboundary
Air Pollution, Art. 1[b] cited in Sarmiento, 2007)
What is the Good Neighborliness principle?
This principle prohibits States from using or
permitting the use of its territory in a manner that is
injurious to another State, or that other State’s
persons or property. This principle is now codified
in Principle 21 of the Stockholm Declaration and in
principle 2 of the Rio Declaration (Earth Summit).
(Sarmiento, 2007)
What Roman law principle underlies the
Good Neighborliness Principle?
Sic uteretuoutalienum non laedas. So use
your own as not to injure the rights of others. (Ibid)
What are the possible bases of liability for
transboundary pollution under International
Law?
There are several theories of liability for
transboundary pollution:
a) An absolute duty to protect against harm from
ultra-hazardous activities, which if violated, results
in a state being held strictly liable;
b) “Abuse of Rights” Theory: responsibility for
negligent or intentional acts;
c) “Good Neighborliness” Principle: liability for a
State which permits transboundary pollution to
exceed that which neighbors can reasonably be
expected to endure. (Malone, 217 cited in Sarmiento,
2007)
What are the major instruments that have
shaped the modern development of
international environmental law?
a) The Stockholm Declaration on the Human
Environment which was adopted at the 1972 UN
Convention on the Human Environment, held in
Stockholm, Sweden;
b) The Rio Declaration on Environment and
Development, which was adopted at the 1992 Rio
Conference on Environment and Development, also
known as the “Earth Summit” – it reaffirms the
Stockholm Declaration with the goal of establishing
a new and equitable global partnership through the
creation of new levels of cooperation among States,
key sectors of societies and people. (Ibid)
What are the important principles contained
in the Stockholm Declaration on the Human
Environment?
a) Principle 1: Man has the fundamental right to
freedom, equality and adequate conditions of life, in
an environment of a quality that permits a life of
dignity and well-being, and he bears a solemn
responsibility to protect and improve the
environment for present and future generations.
b) Principle 21 (Principle of Good Neighborliness)
States have the sovereign right to exploit their own
resources pursuant to their own environmental
policies, and the responsibility to ensure that
activities within their jurisdiction or control do not
cause damage to the environment of other states or
of areas beyond the limits of national jurisdiction.
c) Principle 22: States shall cooperate to develop
further the International Law regarding liability and
compensation for the victims of pollution and other
environmental damage caused by activities within
the jurisdiction or control of such states to areas
beyond their jurisdiction. (Ibid)
What are some of the important principles
contained in the 1982 Rio Declaration (Earth
Summit)?
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a) Principle 1: States have the sovereign right to
exploit their own resources pursuant to their own
environmental and developmental policies, and the
responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the
limits of national jurisdiction.
b) Principle 2: The right to development must be
fulfilled so as to equitably meet developmental and
environmental needs of present and future
generations.
c) Principle 3: States shall develop national law
regarding liability and compensation for the victims
of pollution and other environmental damage.
d) Principle 4: States shall immediately notify other
States of any natural disasters or other emergencies
that are likely to produce sudden harmful effects on
the environment of those States. Every effort shall
be made by the international community to help
States so afflicted.
e) Principle 5: warfare is inherently destructive of
sustainable development. States shall therefore
respect International Law providing protection for
the environment in times of armed conflict and
cooperate in its further development, as necessary.
f) Principle 6: States shall resolve all their
environmental disputes peacefully and by
appropriate means in accordance with the Charter of
the UN. (Ibid)
What is the Principle of Common but
Differentiated Responsibility?
This principle is embodied in Principle 7 of
the Rio Declaration which states:
“States shall cooperate in a spirit of
global partnership to conserve, protect
And restore the health and integrity
of the earth’s ecosystem. In view of the different
Contributions to global
environmental degradation, States have common
but
Differentiated responsibilities. The developed
countries acknowledge the responsibility
That they bear in the international pursuit to
sustainable development in view of the
Pressures their societies place on the global
environment and of the technologies and
Financial resources they command.” (Ibid)
What is the Precautionary Approach?
This approach is contained in Principle 15 of
the Rio Declaration, which states:
“In order to protect the environment, the
precautionary approach shall
Be widely applied by States according to their
capabilities. Where there are
Threats of serious or irreversible damage, lack of full
scientific certainty shall
Not be used as a reason for postponing cost-effective
measures to prevent
Environmental degradation.” (Ibid)
May a State be held responsible by another
State for trans-boundary pollution caused by
private parties within its jurisdiction?
Yes. The Trail Smelter Case (US vs Canada, 1941)
established the two fundamental principles of
liability for trans-boundary pollution under
International Law:
a) First, a state must show material damage and
causation to be entitled to legal relief; and
b) Second, a state has a duty to prevent, and may be
held responsible for pollution by private parties
within its jurisdiction if such pollution results in
demonstrable injury to another state.
In the said case, the Arbitration Tribunal held that
Canada was legally responsible for the actions of the
privately-owned smelter near Trail, Canada, ordered
Canada to pay damages, and required the smelter to
refrain from causing further damage in the US.
(Ibid)
May a downstream state object to the use of
the water by an upstream state?
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A downstream state may not oppose the upstream
state’s use of the water provided the upstream state
will not alter the waters of a river or lake. (Lake
Lanoux Arbitration, France vs Spain cited in
Sarmiento, 2007)
INTERNATIONAL ECONOMIC LAW
What is international economic law?
“The law of international economic relations in its
broadest sense includes all the international law and
international agreements governing economic
transactions that cross state boundaries or that
otherwise have implications for more than one state,
such as those involving the movement of goods,
funds, persons, intangibles, technology, vessels or
aircraft.”( The 3rd Restatement of Foreign Relations
Law cited in Bernas, 2009)
What are the four characteristics of IEL?
1. IEL is part of international law as treaties make
this so.
2. IEL is intertwined with municipal law since the
balancing of economic treaty law with municipal law
is important.
3. IEL requires multi-disciplinary thinking involving
not only economics but also political science,
history, anthropology, geography, and other
disciplines.
4. Empirical research is very important for
understanding its operation. (Ibid)
What were the two main objectives of the
Bretton Woods Conference of 1944?
1. to advance the reduction of tariffs and other trade
barriers; and
2. to create a global framework designed to minimize
economic conflicts (Ibid)
What were the economic institutions
established out of the mentioned conference?
1. International Monetary Fund
Its function was to provide short-
term financing to countries in balance of payments
difficulties.
2. International Bank for Reconstruction and
Development (World Bank)
It was designed to provide long-
term capital to support growth and development.
3. International Trade Organization (ITO)
It was intended to promote a liberal
trading system by proscribing certain protectionist
trade rules.
The intended function of the ITO was
eventually taken over by the General Agreement on
Tariff and Trade ( GATT) and its successor the
World Trade Organization. (Ibid)
What are the most important trade oriented
institutions?
The GATT and the WTO are the most important
trade oriented institutions. They shape domestic
import and export laws which impact on
international trade on goods and services.
GATT went through a series of modifications
Rounds with the Uruguay Round of 1994 as the final
one. The final agreement proposed the
establishment of a World Trade Organization which
would oversee the operation of GATT and a new
General Agreement on Trade and Services. (Ibid)
What are the key principles of international
trade law?
1. Agreed tariff levels
The GATT contains specified tariff levels for each
state and each state agrees not to raise tariff levels
above those contained in the schedule though these
can be renegotiated.
2. The most favored nation principle (MFN)
This clause embodies the principle of non-
discrimination. This means that any special
treatment given to a product from one trading
partner must be made available for like products
originating from one trading partner must be made
available for like products originating from or
destined for other contracting partners. In practice,
this generally refers to tariff concessions.
3. Principle of national treatment
This prohibits discrimination between domestic
producers and foreign producers. In practice, this
96
means that once foreign producers have paid the
proper border charges, no additional burdens may
be imposed on foreign products.

4. Principle oftariffication

The principle prohibits the use of quotas on imports

or exports and the use of licenses on importation or
exportation. The purpose of the principle is to
prevent the imposition of non-tariff barriers. But
GATT provides for exceptions on a quantitative and
temporary basis for balance of payments or infant
industry reasons in favor of developing states.(Ibid)

What are the exceptions to key principles?

1. exceptions which are general in nature such as

those referring to public morals, public health,
currency protection, products of prison labor,
national treasures of historic, artistic or
archeological value, and protection of exhaustible
natural resources;

2. Security exceptions and regional trade exceptions;

and

3, Exceptions for developing nations. (Ibid)

How does WTO provide for dispute

resolution?

A Dispute Settlement Body (DSB) has been

established by the WTO Agreement which consists of
the General Council of the WTO and operates under
the Understanding on Rules and Procedures
Governing the Settlement of Disputes 1994 (DSU).
Each state has a right to the establishment of a
Panel. The DSU has also provided for a permanent
Appellate Body, consisting of persons with
recognized expertise in law, to handle appeals from a
Panel decision.(Ibid)

What consist the expanded scope of the

multilateral trade regime of the Uruguay
Round of 1994?

It now includes intellectual property, services,

sanitary and physio-sanitary measures and
investment, as well as the strengthening of the rules
on subsidies, countervailing duties and
antidumping.

Thus, IEL has become a very specialized field and it

is affecting the sovereignty of states and their
capacity to give force to national policy objectives.
(Ibid)

97