OBLIGATIONS ERGA OMNES
All they can
An obligation of every State towards the
international community as a whole. All states
have
a legal interest in its compliance, and thus all
States
are entitled to invoke responsibility for breach of
such an obligation (Case Concerning The
Barcelona
Traction, ICJ 1970).
NOTE: Such obligations derive, for example, in
contemporary international law, from the
outlawing of acts of aggression, and of genocide,
as
also from the principles and rules concerning the
basic rights of the human person, including
protection from slavery and racial discrimination.
Some of the corresponding rights of protection
have entered into the body of general
international
law others are conferred by international
instruments of universal or quasi-universal
character (Romulo v. Vinuya, G.R. No. 162230,
April
29, 2010).
Examples of obligations erga omnes
1. Outlawing of acts of aggression
2. Outlawing of genocide
3. Basic human rights
4. Protection from slavery
Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim
against the Japanese officials and military
officers who ordered the establishment of
the “comfort women” stations in the
Philippines. But officials of the Executive
Department declined to assist the
petitioners, and took the position that the
individual claims of the comfort women for
compensation had already been fully
satisfied by Japan’s compliance with the
Peace Treaty between the Philippines and
Japan. May we force the government to
pursue the claims of comfort women under
the doctrine of jus cogens?
A: NO, the Philippines is not under any
international obligation to espouse petitioners’
claims.
NOTE: A State may exercise diplomatic
protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the
State is asserting. Should the natural or legal
person on whose behalf it is acting consider that
their rights are not adequately protected, they
have no remedy in international law.
do is resort to national law, if means are available,
with a view to furthering their cause or obtaining
redress. The State, therefore, is the sole judge to
decide whether its protection will be granted, to
what extent it is granted, and when will it cease. It
retains, in this respect, a discretionary power the
exercise of which may be determined by
considerations of a political or other nature,
unrelated to the particular case (Vinuya v.
Romulo, G.R. No. 162230, April 28, 2010).
(Jus cogens is defined as: “a
peremptory norm of general
international law accepted and
recognized by the international
community of States as a whole, as a
norm from which no derogation is
permitted and which can be modified
only by a subsequent norm of general
international law having the same
character.”)
--
Reprisal – a retaliatory action against an enemy in
wartime. (1991 Bar)
Retorsion – an act perpetrated by one nation
upon another in retaliation or reprisal for a
similar act perpetrated by the other nation. (1991,
2010 Bar)
2. Retorsion: retaliation for
discourteous, unkind, or unfair and
inequitable acts of the same or similar
nature.
3. Reprisals: injurious or otherwise
internationally illegal act committed by
one State against another for the purpose
of compelling the latter to consent to a
satisfactory settlement of a dispute
created by its own international
delinquency. (Oppenheim-Lauterpacht,
p. 136)
See The Naulilaa Incident Arbitration,
supra
4. Embargo: is Spanish in origin which
literally means detention of ships in
port.
(a) Each conflicting State may lay an
embargo upon merchant vessels of the
other State in its ports, by way of
anticipation and with the view of
facilitating capture and condemnation in
the event of war.
(b) Arret de prince is the detention of
foreign ships to prevent the spread of
news of political importance.
(c) Jus angariae is an embargo where
the belligerent State seizes and makes
use of neutral property in case of
necessity, with the obligation to pay the
neutral State.
3. Recognition of States
3.1. Theories on nature and effect of
recognition
Constitutive Theory: maintains that it
is the act of recognition which
constitutes or creates the statues of a
State as a subject of public international
law and thus gives it a legal personality.
Declaratory Theory: asserts that
recognition merely confirms the
acceptance of the States of the status of
the entity as a State.
3.2. Functions of Recognition:
First, the determination of statehood is a
question of law.
Second, the act of recognition is a
condition for the establishment of
formal, optional and bilateral relations
including diplomatic relations and the
conclusion of treaties.
Three different approaches to
recognition of governments by other
states:
(a) Traditional approach: States consider
four factors in deciding whether to
recognize a state:
(1) effectiveness of control
(2) stability and permanence
(3) popular support
(4) ability and willingness to
fulfill obligations
(b) Estrada doctrine: when a new
government comes to power either
through constitutional means or
otherwise, its relations with other states
remain unchanged.
This was created by the Mexican
government, which found that it would
be insulting to make determinations
about recognition of governments
because it would involve passing
judgment on the internal affairs of other
states.
(c) Tobar doctrine: States will not
recognize governments which come into
power as a consequence of a coup or of
a revolution against the government, so
long as the freely elected representatives
of the people thereof have not
constitutionally reorganized the country.
3.3. Consequences of Recognition of
Government
1. The recognized government or State
acquires the capacity to enter into
diplomatic relations with recognizing
States and to make treaties with them.
2. The recognized government or State
acquires the right of suing in the courts
of law of the recognizing States.
3. It is immune from the jurisdiction of
the courts of law of recognizing States.
4. It becomes entitled to demand and
receive possession of property situated
within the jurisdiction of a recognizing
State, which formerly belonged to the
preceding government.
5. Its effect is to preclude the courts of
recognizing State from making the new
State liable for any judgment on the
legality of its acts, past and future since
recognition is retroactive.
Marcos v. Manglapus, G. R. No.
88211, 15 September 1989: The Supreme Court
held that:
“The Constitution limits resort to the
political question doctrine and broadens
the scope of judicial inquiry…But
nonetheless there remain issues beyond
the Court’s jurisdiction the
determination of which is exclusively
for the President…We cannot, for
example, question the President’s
recognition of a foreign government, no
matter how premature or improvident
such action may appear.”
(Ambassadors are diplomats)
Vienna Convention on Diplomatic
Relations (p. 342)
 Article 29: diplomatic agents are not
liable to any form of arrest or detention,
subject to wavier by the sending state.
Article 31: diplomatic agents are
immune from civil and administrative
jurisdiction, except in the case of…an
action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving state
outside his official functions
Exceptions:
(a) 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;
(b) 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;
(c) An action relating to any professional or
commercial activity exercised by the
diplomatic agent in the receiving State
outside his official functions.
Two categories of diplomatic immunity:
– Immunity ratione personae –
procedural
 Immunity that attaches to the
person of the diplomat while he
is a diplomat
 This is irrelevant for former
diplomats
– Immunity ratione materiae –
substantive
 This is normally irrelevant
while a person is a diplomat; we
look at it for former officials (it
is applied retrospectively)
 When a person ceases to be a
diplomat, or his government
waives his immunity, the person
retains substantive immunity for
actions he performs in his civil
function
o The definition of
“official acts” is not
always clear
Fatemi v. United States of America
(U.S. Court of Appeals, District of
Columbia, 1963): Fourteen Iranian
nationals appealed their cases from
convictions for “unlawful entry”. The
claim of immunity involving inviolability
of premises must be invoked by a
member of the diplomatic mission.
State Jurisdiction: competence of the State to
prescribe rules of conduct, to enforce its legal
processes and to adjudicate controversies and
claims.
Exceptions: Head of State immunity &
Diplomat/Consul Immunity
NZ v France
Brief Fact Summary. Australia and New Zealand
(P) requested France (D) to put an halt to
atmospheric nuclear test in the South Pacific.
Synopsis of Rule of Law. Declaration made
through unilateral acts may have the effect of
creating legal obligations.
Facts. A series of nuclear tests was completed by
France (D) in the South Pacific. This action made
Australia and New Zealand (P) to apply to the I.C.J.
demanding that France (D) cease testing
immediately. Before the case could be completed,
France (D) announced it had completed the test
and did not plan any further test. So France (D)
moved for the dismissal of the application.
Issue. May declaration made through unilateral
act has effect of creating legal obligations?
Held. Yes. Declaration made through unilateral
acts may have the effect of creating legal
obligations. In this case, the statement made by
the President of France must be held to constitute
an engagement of the State in regard to the
circumstances and intention with which they were
made. Therefore, these statement made by the
France (D) are relevant and legally binding.
Application was dismissed.
Discussion. The unilateral statements made by
French authorities were first relayed to the
government of Australia. There was no need for
the statements to be directed to any particular
state for it to have legal effect. The general nature
and characteristics of the statements alone were
relevant for evaluation of their legal implications.
Vienna con on treaties
Article 3. INTERNATIONAL AGREEMENTS NOT
WITHIN THE SCOPE OF THE PRESENT
CONVENTION The fact that the present
Convention does not apply to international
agreements concluded between States and
other subjects of international law or between
such other subjects of international law, or to
international agreements not in written form,
shall not affect:
(a) The legal force of such agreements; (b) The
application to them of any of the rules set forth
in the present Convention to which they would
be subject under international law
independently of the Convention; (c) The
application of the Convention to the relations of
States as between them selves under
international agreements to which other
subjects of international law are also parties.
Akbayan v Aquino
Privileged Character of Diplomatic Negotiations
Recognized
The privileged character of diplomatic
negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the
right to information, the Court in Chavez v. PCGG
held that “information on inter-government
exchanges prior to the conclusion of treaties and
executive agreements may be subject to
reasonable safeguards for the sake of national
interest.”
Treaty-making power of the President
xxx they (petitioners) argue that the President
cannot exclude Congress from the JPEPA
negotiations since whatever power and authority
the President has to negotiate international trade
agreements is derived only by delegation of
Congress, pursuant to Article VI, Section 28(2) of
the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.
The subject of Article VI Section 28(2) of the
Constitution is not the power to negotiate treaties
and international agreements, but the power to fix
tariff rates, import and export quotas, and other
taxes xxx.
As to the power to negotiate treaties, the
constitutional basis thereof is Section 21 of Article
VII – the article on the Executive Department.
xxx
While the power then to fix tariff rates and other
taxes clearly belongs to Congress, and is exercised
by the President only be delegation of that body, it
has long been recognized that the power to enter
into treaties is vested directly and exclusively in
the President, subject only to the concurrence of
at least two-thirds of all the Members of the
Senate for the validity of the treaty. In this light,
the authority of the President to enter into trade
agreements with foreign nations provided under
P.D. 1464 may be interpreted as an
acknowledgment of a power already inherent in
its office. It may not be used as basis to hold the
President or its representatives accountable to
Congress for the conduct of treaty negotiations.
Chavez v PCGG
The question that remains is whether the
constitutional provision likewise guarantee access
to information regarding ongoing negotiations or
proposals prior to the final agreement. Reviewing
the deliberations of the Constitutional
Commission, the Court held that it is incumbent
upon the PCGG and its officers, as well as other
government representatives, to disclose sufficient
public information on any proposed settlement
they have decided to take up with the ostensible
owners and holders of ill-gotten wealth. Such
information, though, must pertain to definite
propositions of the government, not necessarily to
intra-agency or inter-agency recommendations or
communications during the stage when common
assertions are still in the process of being
formulated or are in the "exploratory" stage.
C. Genocide as a Crime
Under the Convention on the Prevention and
Punishment of the Crime of Genocide, genocide
means “any of the following acts committed with
the intent to destroy, in whole or in part, a
national, ethnical, racial, or religious group, such
as:
1. Killing of the members of the group;
2. Causing serious bodily or mental harm to
members of the group;
3. Deliberately inflicting on the group, conditions
of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended to prevent births
within the group; and
5. Forcibly transferring children of the group to
another group. (Article II)
Most importantly, amnesties that prevent the
prosecution of individuals who may be legally
responsible for war crimes, genocide, crimes
against humanity and other gross violations of
human rights are inconsistent with States’
obligations under various widely ratified
treaties as well as United Nations policy, and
may also be inconsistent with emerging
principles of customary law.
Under various sources of international law and
under United Nations policy, amnesties are
impermissible if they:
(a) Prevent prosecution of individuals who may
be criminally responsible for war crimes,
genocide, crimes against humanity or gross
violations of human rights, including gender-
specific violations;
(b) Interfere with victims’ right to an effective
remedy, including reparation; or
(c) Restrict victims’ and societies’ right to know
the truth about violations of human rights and
humanitarian law.
Extradition
(1996 BAR)
The right of a foreign power, created by treaty, to
demand the surrender of one accused or convicted
of a crime within its territorial jurisdiction, and
the correlative duty of the other State to
surrender
Basis of extradition
The extradition of a person is required only if
there is a treaty between the State of refuge and
the State of origin. As a gesture of comity,
however, a State may extradite anyone.
Furthermore, even with a treaty, crimes which
are political in character are exempted.
Membership non membership in UNCLOS
effect (look for it)
Political Asylum
Someone may ask for political asylum when they
are frightened to live in their own country. They
will then go to another country. If they are allowed
to live in the new country this is called political
asylum.
People who seek asylum say they are victims of
threats, physical harm or denigration of their
human dignity as these are violating their human
rights.[1]
The political asylum is one of the human rights
affirmed by Article 14 of the Universal Declaration
of Human Rights, and a rules of international
human rights law. All countries who have agreed
to the United Nations Conventions Relating to the
Status of Refugees must let people, who do qualify,
come into their country.
People who qualify for asylum are those who can
show that they might be badly treated in their
own country because of their:
Religion,
Political opinions
Membership of a particular social group or social
activities or
Personal lifestyle and sexual orientation.
People often confuse exiling an individual from
his/her home country as a migration to a political
asylum but that is not as it seems, migrating with
one's own will due to personal reasons can be a
political migration but not under the sentence of
Government. People who are given political
asylum are called refugees. They are often
confused with "economic refugees". Economic
refugees are people who move from a poor
country to a richer one so that they may work and
make more money, often to send back to their
families.
Search effect of foreign aid to rebels
Flag State
It refers to the State whose nationality the ship
possesses; for it is nationality which gives the
right
to fly a country’s flag. In the high seas, a state has
exclusive jurisdiction over ships sailing under its
flag. It is required however, that there exists a
genuine link between the State and the ship
(UNCLOS, Arts. 91[1], 92[2]).
Duty of the flag state
A flag state has the duty to render assistance in
distress in the sense that it shall require the
master
of the ship, without serious danger to the ship,
crew or passengers, to render assistance to any
person at sea in danger of being lost, or to rescue
persons in distress. It shall require the master to
assist the other ship after a collision or its crew
and
passengers (UNCLOS, Art. 98).
Applicable laws to vessels sailing on the high
seas
GR: Vessels sailing on the high seas are subject
only to international law and to the laws of the
flag
State.
XPN: However, the arrest or boarding of a vessel
sailing in the high seas may be made by a State,
other than the flag-State of such vessel, in the
following instances:
1. A foreign merchant ship by the coastal State in
its internal waters, the territorial sea and the
contiguous zones for any violation of its laws.
2. A foreign merchant ship for piracy.
3. Any ship engaged in the slave trade.
4. Any ship engaged in unauthorized
broadcasting.
5. A ship without nationality, or flying a false flag
or refusing to show its flag.
Flag of Convenience (2004 Bar)
It is a national flag flown by a ship not because the
ship or its crew has an affiliation with the nation,
but because the lax controls and modest fees and
taxes imposed by that nation have attracted the
owner to register it there. Jurisdiction over Crimes
committed on board a foreign private vessel
anchored in a coastal state
Under both the English and French rules, a crime
will be tried by a local state, if serious enough as
to compromise the peace of its port; otherwise by
the flag state, if it involves only the members of
the crew and is of such a petty nature as not to
disturb the peace of the local state.
In the French rule, it recognizes the jurisdiction of
the flag state over crimes committed on board the
vessel except if the crime disturbs the peace, order
and security of the host country. In English rule
the host country has jurisdiction over the crimes
committed on board the vessel unless they involve
the internal management of the vessel.
Protection under IHL
1. IHL prohibits the use of weapons which are
particularly cruel or which do not distinguish
between combatants and civilians.
2. The parties to a conflict are required to:
a. Distinguish between combatants and
civilians, and to refrain from attacking
civilians;
b. Care for the wounded and sick and protect
medical personnel;
c. Ensure that the dignity of prisoners of war
and civilian internees is preserved by
allowing visits by International Committee
of the Red Cross delegates.
Combatants
Those individuals who are legally entitled to take
part in hostilities. These include:
1. Regular Forces (RF) – members of the armed
forces except those not actively engaged in
combat. These are the army, navy, and air force.
Non-combatant members of the armed forces
include: chaplains, army services and medical
personnel.
2. Irregular Forces (IF) – also known as
franctireurs consist of militia and voluntary corps.
These are members of organized resistance
groups, such as the guerrillas. They are treated as
lawful combatants provided that they are:
a. Being commanded by a person responsible for
his subordinates;
b. Wearing a fixed distinctive sign or some type of
uniform;
c. Carrying arms openly; and
d. Obeying the laws and customs of war.
3. Non-privileged Combatants (NPC) –
individuals who take up arms or commit hostile
acts against the enemy without belonging to the
armed forces or forming part of the irregular
forces. If captured, they are not entitled to the
status of prisoners of war.
4. Citizens who rise in a “levee en masse” – The
inhabitants of unoccupied territory who, on
approach of the enemy, spontaneously take arms
to resist the invading troops without having time
to organize themselves, provided only that they:
a. Carry arms openly; and
b. Observe the laws and customs of war.
5. The officers and crew members of merchant
vessels who forcibly resist attack.
1. Security Council
• The Security Council has the ability to
make decisions that are legally binding on
member States.
• Under Article 25 of the U.N. Charter,
members agree that decisions of the Security
Council will be legally binding on them and all
other members.
• Under Article 103 of the U.N. Charter, if
there is a conflict between Charter obligations and
obligations under another treaty, Charter
obligations prevail (Thus, the Security Council can
adopt policies that require States to abrogate
other treaty obligations)
• Under Chapter VII on powers of the
Security Council, if it takes action with respect to a
threat to peace, breach of peace or act of
aggression under Chapter VII, its action is binding
on all State parties.

Individuals?
Article 38(2) of the Statute of the International
Court of Justice (ICJ) provides that the court may
decide cases ex aequo et bono, but only where the
parties agree thereto. Article 33 of the United
Nations Commission on International Trade Law's
Arbitration Rules (1976) provides that the
arbitrators shall consider only the applicable law,
unless the arbitral agreement allows the
arbitrators to consider ex aequo et bono, or
amiable compositeur.

Deportation of undesirable aliens

Harvey et al v. Defensor-Santiago, 162 SCRA 1988:
Under the theory of delegation of powers, the
Commissioner of Immigration, after due hearing,
may exclude an alien and the alien’s liberty may
be restrained by virtue of a Mission Order signed
by the Commissioner.