Public International Law, 2009
Fr. Joaquin Bernas | MANIEGO, A2012
PUBLIC INTERNATIONAL LAW
NOTES AND DISCUSSIONS (2009ED)
2-A 2012 (FR. JOAQUIN BERNAS)
CHAPTER ONE: THE NATURE OF INTERNATIONAL LAW
I.
What is international law?

Traditional definition: “The body of rules and principles of action binding upon
civilized states in their relation to one another.”

Entities governed: States (primarily), international organizations, individuals

(Third) Restatement of Foreign Relations Law of the United States
(Restatement): Considered by U.S. Courts as the most authoritative work on
international law.

Definition: “The law which deals with the conduct of states and of
international organizations and with their relations inter se, as well
as with some of their relations with persons, whether natural or
juridical.”

Scope of international law: In the age of technological advancement and
globalization, public international law (PIL) is rapidly expanding—new subject
matters, changing political and social principles and new states and entities
being added to the community of nations. Beyond the primary concern for the
maintenance of peace, it extends to cover all the interests of international and
even domestic life.

Is it a law?

The following reasons illustrate the arguments why PIL is not law,
and why it is commonly disregarded:
•
There can be no law binding sovereign states.
•
No international legislative body.
o
United Nations (UN) General Assembly
resolutions are generally not binding on
anybody.
•
No international executive to enforce legislation.
o
UN Security Council – intended to be an
international executive; always prevented by
veto power
o
No assured procedure of identifying violation—
most of UN powers have reference to
lawbreaking taking the form of an act of
aggression or as a threat to peace, but there
are many violations of PIL which are not of this
nature. As a result, all the UN can do is
censure.
•
No central authority to make judgments binding on states
o
International Court of Justice (ICJ) – can
only bind states when they consent to be
bound
National policy or interest is often preferred over
international law.
o
National officials often find justification for the
things they do.
Above arguments are based on an exaggerated notion of
sovereignty as embodying an individualist regime, but this is not
the reality. Reality is social interdependence and the predominance
of the general interest.
•
Henkin: “Almost all nations observe almost all principles
of international law and almost all of their obligations
almost all of the time.”
•
Brierly: Law is binding because a reasonable man,
whether as an individual or as part of a state, believes
that order is preferred over chaos, and that order is the
governing principle of the world.
Final analysis: There is a general fundamental respect for law
because of the possible consequences of defiance, either to
oneself or to the larger society. International law is law because it is
seen as such by states and other subjects of international law.
•



Theories about international law: command theory, consensual theory,
natural law theory

Command Theory – From John Austin; law consists of commands
originating from a sovereign and backed up by threats of sanction is
disobeyed.
•
In this view, international law is not law because there is
no command sovereign. This theory has been generally
discredited.

Consensual Theory – International law is binding because of the
consent of the states, like treaties and customary law.
•
However, there are many binding rules which do not
derive from consent.

Natural Law Theory – Law is derived by reason from the nature of
man. International law is the application of natural reason to the
nature of the state-person.
•
The theory finds little support but much of customary law
and what are regarded as general principles of
international law are expressions of natural law.

Dissenters: No objective basis for international law because it is a
mere combination of politics, morality and self-interest hidden under
the smokescreen of legal language.

Public vs. Private International Law: Scope and Differences
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Public International Law, 2009



Fr. Joaquin Bernas | MANIEGO, A2012
Public International Law – “International law” – Governs the
relationships between and among states, and also their relations
with international organizations and individual persons
Private International Law – “Conflicts of law” – Really considered
domestic law which deals with cases where foreign law intrudes in
the domestic sphere where there are questions of the applicability
of foreign law or the role of foreign courts
Historical development of International Law

Ancient Law to post-World War I
•
Ancient international law governed exchange of
diplomatic emissaries, peace treaties. The progressive
rules of jus gentium or law “common to all men” became
the law of the Roman Empire.
•
Modern international law began with the birth of nationstates in the Medieval Age. It was governed by Roman or
Canon Law, which drew heavily from natural law.
•
Hugh Grotius is the father of modern international law;
authored the De Jure Belli ac Pacis, which discussed the
“law of nations” (later named “international law” by British
philosopher Jeremy Bentham.) He was preceded by
largely natural law theorists.
•
Positivist approach reinterpreted international law on
the basis of what actually happened in the conflict
between states and not from concepts derived from
reason.
•
Notion of sovereignty gave rise to the Austin’s
command theory.
•
Pacta sunt servanda arose in light of the Peace of
Westphalia which ended the Thirty Years War (16181648) and established a treaty-based framework for
peace cooperation.
•
Congress of Vienna (1815) ended the Napoleonic Wars
and created a sophisticated system of multilateral
political and economic cooperation.
•
League of Nations (from the Treaty of Versailles):
Arose after the culmination of World War I, as an
institution set up by the victors of the war to prevent the
recurrence of world conflagration. It was originally
composed of 43 states. The United States did not join.
The League of Nations created the Permanent Court of
International Justice.

From the end of World War II to the end of the Cold War
•
United Nations (UN): Because the League of Nations
failed to prevent the occurrence of World War II, the
victors then set up the UN in 1945 as a new avenue for
peace. This marked a shift of power away from Europe
and the beginning of a truly universal institution.
•
Decolonization: The universalization began by the
establishment of the UN was advanced by

decolonization, resulting in an expansion of membership
in the UN composing of formerly colonies, now newly
recognized states.
•
Grouping of States during the Cold War—Western,
socialist, developing countries
o
Western States (United States, etc) were not
of one mind but insisted on two general
points—that legal provisions must be clear and
precise, and that any substantive rule must be
accompanied
by
an
implementation
mechanism that can spot and correct
violations. Some remained satisfied with the
status quo but some were more open to Third
World demands and were supportive of social
and legal changes
o
Socialist states were led by the Soviet Union,
which sought to avert Western intrusion into
domestic affairs even as they sought relatively
good relations with the West for the sake of
economic and commercial interchange. They
also sought to convert developing nations to
their ideology.
o
Developing
countries
formed
the
overwhelming majority and were mostly former
colonies suffering underdevelopment with
newly industrializing countries like the
Philippines, Malaysia, Thailand, Singapore and
South Korea who earned their independence
through armed or political struggle while
remaining under the influence of Western or
socialist ideas.
Post-Cold War Period
•
Dissolution of the Soviet Union led to the reemergence of international relations being based on
multiple sources of power and not on ideology. The Baltic
states (Estonia, Latvia, Lithuania) were restored to
statehood and the newly born Russian Federation did not
inherit the Soviet Union’s position as a superpower.
•
United States: The last remaining superpower, politically
and ideologically leading the Western States. It acts as
both world politician (in a selective manner) and global
mediator.
•
Socialist countries are no longer united; some depend
on support from Western states.
•
Developing countries have veered away from
ideological orientation and towards market orientation as
well as fighting poverty and backwardness.
•
The UN has declined as the international agency for the
maintenance of peace.
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Fr. Joaquin Bernas | MANIEGO, A2012
CHAPTER TWO: THE SOURCES OF INTERNATIONAL LAW
I.

What are the sources of international law?

As distinguished from domestic law: It is relatively easier to find domestic
law because they are generally found in statute books and in collections of
court decisions. In international law, there is no centralized legislative,
executive or judicial structure, making it difficult to locate the source of PIL.
The problem is further heightened by the constantly changing state of world
affairs and competing sovereignties.

Conditions for Legal Principles: Laid down by the doctrine of sources, these
conditions are the observable manifestations of the “wills” of the States as
revealed in the processes by which norms are formed—treaties and
customs.

Verification process is inductive and positivistic—finding what laws
the states have created and what laws they are willing to place
themselves under.
•
“Proof” that international law is characterized by
individualism.

Article 38(1) of the Statute of the International Court of Justice: Most widely
accepted statement on the “sources” of international law. However, Art. 38 is
primarily a directive; it does not speak of actual sources but directs the ICJ
on how to resolve conflicts brought before it.
Article 38 enumerates the following as applicable to disputes before it,
without prejudice to the power of the court to decide ex aequo et bono (for
the right and good) if the parties agree thereto:

International conventions, whether general or particular,
establishing rules expressly recognized by contesting states

International custom, as evidence of a general practice accepted
as law

General principles of law, recognized by civilized nations

Judicial decisions and teachings of highly qualified publicists
of various nations (as subsidiary means and subject to the
provisions of Art. 59—which states that the decision of the ICJ is
only res judicata as between the parties and with respect only to
that particular case)




Classification of sources—material and formal

Formal sources: May refer to various processes by which rules
come into existence, e.g. legislation, treaty-making, judicial
decision-making, state practice

Material sources: Concerned with the identification, substance and
content of the obligation; also called “evidence” or international law

Sources according to the Restatement:

A rule of international law is one that has been accepted as such
by the international community of states—
•
As customary law
•
By international agreement
By derivation from general principles common to the
major legal systems of the world
Customary law – that which results from a general and consistent
practice of states followed by them from a sense of legal obligation
International agreements – create law for the state parties
thereto; may lead to the creation of customary international law
when such agreements are intended for adherence to states
generally and are in fact widely accepted
General principles of law – general principles common to major
legal systems, even if not incorporated or reflected in customary
law or international agreements; applied as supplementary rules of
PIL where appropriate.
•

II.
Sources, in general: custom, treaties and other international agreements,
generally recognized principles of law, judicial decisions and teachings of
highly qualified and recognized publicists.
Customary Law

Definition: A general and consistent practice of states followed by them from
a sense of legal obligation. (Restatement)

Contains the basic elements of custom: the material factor (how
states behave) and the psychological or subjective factor (why
states behave the way they do)

Material factor (usus): Contains several elements—duration, consistency,
generality

Duration—may be long or short
•
Customary law as a result of long, immemorial practice:
Paquete Havana (US SC)—WON fishing smacks were
subject to capture by armed vessels of the US.
o
Ruling: By ancient usage centuries ago,
gradually ripening into a rule of international
law, coast fishing vessels, pursuing their
vocation has been recognized as exempt from
capture as prize of war
•
Customary law as a result of short duration is not
excluded: North Sea Continental Shelf (ICJ)—Ruling:
Passage of only a short time is not a bar to the formation
of custom on the basis of what was purely a conventional
rule, so long as State practice should have been both
extensive and virtually uniform and should show that
there is general recognition that a rule of law or legal
obligation is involved.
•
Duration is not the most important element; the other two
are more important.

Consistency—involves continuity and repetition, as laid down in
the Asylum case
•
Asylum (ICJ)—WON Colombian Ambassador could claim
de la Torre, alleged mastermind of a military rebellion in
Peru, as a political refugee, granting him asylum and safe
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




passage, over the objections of the Peruvian
government, who disputed Colombia’s claim.
o
Ruling: Against Colombia—because they didn’t
prove that there was constant and uniform
practice of unilateral qualification as a right of
the State of refuge and an obligation upon the
territorial State. Colombia, as the State
granting asylum, is not competent to qualify the
nature of the offense by unilateral and
definitive decision to bind Peru.
Uniformity and generality—need not be complete, just substantial
•
Nicaragua v. US (ICJ)—To deduce the existence of
customary law, it is sufficient that the conduct of states
should be consistent with such rules and that instances
of state conduct inconsistent with it should be considered
as breaches of the rule, not proof of a new rule in place.
Subjective factor (opinio juris): The belief that a certain form of behavior is
obligatory makes practice an international rule; otherwise, practice is not law.

Even humanitarian consideration by itself does not constitute opinio
juris:
•
Nicaragua v. US (ICJ)—For new customs to be created,
not only must the acts be settled practice, but they must
be accompanied by opinio juris sive necessitatis. The
conduct of States must be evidence of a belief that the
practice is rendered obligatory by the existence of a rule
of law requiring it. The need of such belief is implicit in
the notion of opinio juris.
Customary law can develop to bind only two or a few states, but the state
claiming it must prove that it is also binding on the other party/parties, as was
proved by Portugal in the Right of Passage over Indian Territory (ICJ).
Dissenting states may be bound by custom, unless they have consistently
objected to it.

Anglo-Norwegian Fisheries Case (ICJ)—WON Norway, who has
consistently objected to England’s coastline delimitation rule, is
bound by the aforesaid custom.
•
Ruling: Against England—It is inapplicable as against
Norway inasmuch as she has always opposed any
attempt to apply it on the Norwegian coast.

Dissent protects only the dissenter; the custom is applicable to
other states.

A new state joining the international law system is bound by any
kind of practice which has already been recognized as customary
law.
Contrary practice: Even after a practice is recognized as customary law, it is
possible to adopt a contrary practice. However, contrary practice can cast
doubt on the alleged law and can show great uncertainty as to the existing
customary law, unless it can gain general acceptance to supervene the
preceding custom.
Fr. Joaquin Bernas | MANIEGO, A2012




Evidence of state practice: Although custom may be proved in many ways,
like treaties, diplomatic correspondence, statements of political leaders, as
well as state conduct, the existence of opinio juris is a matter of proof and the
burden of proving its existence rests on the state claiming it.
Instant custom: Spontaneous activity of a great number of states
protesting/supporting a specific line of action. Best example—American line
of action after the attack on the World Trade Center in New York gave birth to
instant customary law classifying the act as an armed attack under Article 51
of the UN Charter justifying collective self-defense.
Martens Clause in Humanitarian Law: 1899 Hague Peace Convention—“Until
a more complete code of laws of war has been issued, the High Contracting
parties deem it expedient to declare that, in cases not included in the
Regulations adopted by them, the inhabitants and belligerents remain under
the protection and the rule of the principles of the laws of nations as they
result from the usages established among civilized peoples, from the laws of
humanity and the dictates of the public conscience.”

The clause places humanitarian laws and dictates of public
conscience on the same level as usage or usus, suggesting that
even without practice, there can emerge a principle of law based on
humanitarian law and the dictates of public conscience.
Treaties and custom: It depends on the intention of the parties—it may be
that the treaty is declaratory proof of customary law, or serves to complement
it. Adherence to treaties may be adherence to practice as opinio juris. If
treaties and custom contradict each other, the later one will prevail because it
is presumed to be a deliberate choice on the part of the state.

If a treaty is later than custom, the principle of pacta sunt servanda
(Lat. “agreements must be kept”) governs.
•
EXCEPT if the customary law has the status of jus
cogens (Lat. “compelling law”)—a norm accepted and
recognized by the international community as a whole as
one from which no derogation is permitted and can be
modified only by a subsequent norm of general
international law having the same character. Treaties
which conflict with a peremptory norm of general
international law are void.

If a custom comes later than a treaty, generally, the later custom is
said to prevail as an expression of a later will. However, attempts
ought to be made to reconcile the treaty with custom, as is shown
in the Angle-French Continental Case.
•
Anglo-French Continental Case: WON the equidistance
principle applies in the delimitation of the continental
shelves of the United Kingdom and France. Article 6 (in
the treaty) makes the application of the equidistance
principle obligatory for the Parties to the convention, but
the combined character of the equidistance-special
circumstances rule means that the obligation to apply the
equidistance principle is always qualified by the condition
“unless another boundary line is justified by special
circumstances.”
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III.
Treaties (will be treated in Chapter 3)
IV.
General principles of law recognized by civilized nations

Also known as “general principles of law recognized or common to the
world’s major legal systems.” (Restatement) It references municipal law
principles common to legal systems of the world and are evidence of the
fundamental unity of law, most of them incorporated into conventional
international law.

They are supplementary rules of international law, found in judicial
decisions and the teachings of highly qualified publicists of various
nations; they are a subsidiary means for the determination of rules
of law. Examples are—
•
Chorzow Factory (PCIJ): Every violation involves the
obligation to make reparation.
•
Private rights gained under one regime do not cease
upon a change of government.
•
Principle of estoppel

Article 38(1) (Statute) is an affirmation of general principles of law
in domestic law systems and makes up for the fact that there is no
international legislative system. It plugs in some of the gaps of the
current international law system.
•
Barcelona Traction Case (ICJ)—The Court cannot
disregard the institution of municipal law because it
would, without justification, invite serious legal difficulties.



Judicial decisions: Article 38 directs the court to apply these in a subsidiary
manner in the determination of the rules of law, subject to Article 59 (on res
judicata of ICJ cases as only being between parties). However, despite this,
cases decided by the ICJ are considered highly persuasive in international
law circles and have contributed to the formation of international law, e.g.
arbitral decisions have been instrumental in the formation of PIL principles.
Teachings of highly qualified writers and “publicists:” In cases of first
impression, the court reluctantly makes reference to writers since they are
the only available sources. Common law courts are less willing to use them
than civil law courts. “Publicists” are institutions which write on PIL, but may
bear potential national bias—being primarily government-sponsored
entities—like The International Law Commission (a UN organ), the Institut de
Droit International, the International Law Association (a multinational body),
the Restatement, and the annual Hague Academy of International Law’s
annual publication.
Equity considerations: As a source of law, the Permanent Court of Justice
had occasion to use equity in the case of Diversion of Water from the Meuse
(PCIJ), where the issue was WON Belgium had violated an agreement with
the Netherlands about any construction altering water levels and the rate of
flow of the Meuse waters when the Netherlands built a lock earlier than when
they were supposed to. The Court rejected both on the basis of equity, saying
that where two parties who have assumed reciprocal obligations, the
continuing non-performance of one party does not permit it to take advantage
of a similar non-performance by the other party, because a court of equity
refuses relief to a plaintiff whose conduct in regard to the subject matter has
Fr. Joaquin Bernas | MANIEGO, A2012


been improper. The Court here recognizes that, under Article 38 of the
Statute, the Court has some freedom to consider principles of equity as part
of the international law which it has to apply.
When it is accepted, equity is an instrument whereby customary or
conventional law may be supplemented or modified in order to achieve
justice. It has both a procedural and substantive aspect.

Procedurally, equity is a mandate to the judge to exercise discretion
to achieve a determination that is more equitable and fair.

Different kinds of equity are distinguished—intra legem, praeter
legem, contra legem
•
Intra legem: Within the law; the law is adapted to the
facts
•
Praeter legem: Beyond the law; the law is used to fill the
gaps within the law
•
Contra legem: Against the law; there is refusal to apply
the law because it is unjust
Other supplementary sources: UN Resolutions (merely recommendatory, but
may sometimes be an expression of opinio juris or are reflections of what has
become customary law), “soft law” (non-treaty agreements and not covered
by the Vienna Convention on Treaties, like administrative rules guiding
practice of states for international organizations; preferred by States because
it is simpler and more flexible for future relations.
CHAPTER THREE: THE LAW OF TREATIES
I.
Treaties




Many forms of treaties: conventions, pacts, covenants, charters, protocols,
concordat, modus vivendi, etc. It is the most deliberate form of commitment
through which governments cooperate with one another. The general term
used is international agreements. They are convenient tools through which
states show common intent, in the absence of international legislative.
1969 Vienna Convention on the Law of Treaties: Governs treaties between
states; entered into force in 1980.
A Convention on the Law of Treaties Between States and International
Organizations or Between International Organizations was adopted in March
th
1986, and should enter into force 30 days after the 35 ratification or
accession of states.
Definition: A treaty is an international agreement concluded between States
in written form, and governed by international law whether embodied in a
single instrument or in two or more related instruments and whatever its
particular designation. (Vienna Convention)

Elements of a treaty—1. In writing; 2. Reflective of the intention of
the parties to be bound; 3. Governed by international law

Some writers believe that even oral agreements can by binding.
However, only written agreements can be subject to the provisions
of the Vienna Convention.

No particular form is prescribed, as is shown in the following cases:
•
Qatar v. Bahrain (ICJ)—WON the two States should be
bound by the signing and exchange of Minutes between
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•


the two heads of state with the binding force of an
international agreement. Ruling: To ascertain whether it
can be considered as an international agreement, the
Court must have regard for its actual terms and the
particular circumstances in which it was drawn. The
Minutes had included a reaffirmation of the obligations
they entered into, and were not, thus, a simple record of
the meeting but enumerate the commitments to which the
parties have consented, thus creating rights and
obligations in international law for the parties and validly
constitute an international agreement. When it was
contended that there was no intention to be bound by the
Minutes, the Court deemed it unnecessary to have to
look into intentions because of the signatures of the two
ministers.
Norway v. Denmark (PCIJ): In a case involving a dispute
over sovereignty in Eastern Greenland where Norway
accepted Denmark’s offer of concessions in exchange for
non-obstruction of the latter’s plans, WON the Norwegian
Minister is bound by his statement to the Danish minister
“that the Norwegian Government would not make any
difficulty in the settlement of this question.” Court—YES.
Fr. Joaquin Bernas | MANIEGO, A2012


Making of treaties: Generally, treaties originate from foreign ministries and
negotiation is done through them. Larger multilateral treaties are negotiated
in diplomatic conferences run like a legislative body.

Negotiation: Negotiators must possess negotiating powers
because a treaty reached by one without proper authorization has
no legal effect unless ratified. A person represents the state in
negotiations when he produces appropriate full powers or it
appears that it is the practice of the State to consider that person as
representative of its interest for such purposes. Negotiations
conclude with the signing of the document.
•
Ex. Heads of State & Government and Ministers for
Foreign Affairs; heads of diplomatic missions;
representatives accredited by States to an international
conference or an international organization.

Authentication of text: When documents are signed, they are
deemed authenticated, making the text authoritative and definitive.
In cases of dispute, basis for resolution is the authenticated
document.

Consent to be bound: The most important step through which a
document becomes binding as international law. There are various
ways by which consent to be bound is expressed.
•
Ex. Through signature, exchange of instruments
constituting a treaty, acceptance, approval, accession, or
any other means agreed upon.

Ratification: Manner of ratification differs from state to state. In the
Philippines, it is done via concurrence of two-thirds of all the
members of the Senate (Sec. 21, Art. VII, 1987 Constitution.) By
this, a state is required not to engage in acts which can defeat the
purpose of the treaty.

Notification, Exchange and Deposit of Ratification: Unless the treaty
provides otherwise, notification, exchange and deposit establish the
consent of a State to be bound by a treaty.

Accession to a treaty: Only those not originally parties of the treaty
can express their consent to be bound by accession, where the
treaty provides or it is otherwise established that such consent may
be expressed by that State by means of accession.

Reservations: A unilateral statement made by a State when signing, ratifying
or approving a treaty purporting to exclude or modify the legal effect of
certain provisions of a treaty in its application. They are different from
statutes, which apply to all, and from interpretative declarations, which are
not derogations but are expressions of how a state understands its adoption
of the treaty.
On UNILATERAL DECLARATIONS:
•
Nuclear Test Cases: Australia v. France & New Zealand
v. France (ICJ): These cases were filed as a response to
France being a signatory to the Nuclear Test Ban Treaty
and yet continued to conduct tests in the South Pacific
until 1973. However, the cases were dismissed when
France, through a series of unilateral announcements,
said that it would conduct no further tests. Nonetheless,
the court commented that unilateral declarations have the
effect of creating legal obligations when the commitments
are a.) very specific and there is b.) a clear intent to be
bound.
•
European Union v. US: Attributing legal significance to
unilateral statements made by a State should not be
done lightly, and are subject to strict conditions.
Functions of treaties: May be sources of international law; charters of
international organizations; used to transfer territory, regulate commercial
relations, settle disputes, protect human rights, etc.

Multilateral treaties: Open to all states of the world; operate to
create norms which are the basis for a general rule of law. May be
either codification treaties (covering principles) or “law-making
treaties” (treaties which ripen into law) or they may have the
character of both.

Collaborative mechanism treaties: May be of universal or regional
scope, and operate through the organs of different states.
Bilateral treaties: In the nature of contractual agreements which
create shared expectations (trade agreements) and are sometimes
called “contract treaties.”
While treaties are generally binding only on the parties, the generality of the
acceptance of specific rules created by the treaty can have the effect of
creating a universal law in the same way that practice creates customary law.

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Reservation is not allowed when prohibited by the treaty, when the
treaty provides for special reservations, or when the reservation is
incompatible with the object and purpose of the treaty.

Reservations expressly authorized by treaty do not need to be
subsequently accepted unless provided by the treaty itself.

Reservation requires acceptance by all the parties if the number of
party States to the treaty are limited and the acceptance of the
treaty as a whole is essential to the purpose of the treaty.

If the treaty is integral for an international organization, a
reservation requires the acceptance of the organization.

Reservation is deemed to be accepted if others failed to raise any
objections within one year after notification of the reservation or
after it expressed its consent to be bound, whichever is later.

Reservations may be withdrawn at any time and consent of the
other State is not required for its withdrawal. Likewise, objections to
reservations may be withdrawn at any time. Withdrawal becomes
operative in relation to another contracting State only when notice
has been received by other contracting states.

Form: Reservation must be in writing and communicated to
contracting States and other states entitled to become parties.
Express acceptance of a reservation by other states does not
require confirmation in itself. Withdrawal of a reservation or of an
objection thereto must be in writing.

Reservation in bilateral treaties is considered a rejection of the
treaty. Reservations, then, are only applicable to multilateral
treaties.

The Philippines and the 1982 Law of the Sea: The Philippines
made a reservation conditioning its acceptance of the 1982 Law of
the Sea on the Philippine claim in the 1987 Constitution on “internal
waters” between islands, irrespective of breadth. USSR filed a
formal protest but FJB says that the reservation is unnecessary
because the new rule only applies to waters not previously
considered as internal waters.

Reservations in human rights treaties: No reservations can be
made for Human Rights treaties.
Entry into force of treaties: Enter into force on the date agreed upon by the
parties. Where no date is indicated, once consent has been given.
Multilateral treaties come into force once the required number of parties
consent or accept the treaty. They may also be applied provisionally.
Application of treaties:

The first fundamental rule on treaties is pacta sunt servanda,
ensuring that every treaty in force is binding upon the parties to it
and must be performed by them in good faith. (Article 26 of the
Convention)

The second fundamental rule is that a party may not invoke the
provisions of its internal law as justification for its failure to perform
a treaty. (Article 46 of the Convention)

Third—regarding the territorial scope of its applicability: Unless a
different intention appears from the treaty or is otherwise
established, a treaty or is otherwise established, a treaty is binding
Fr. Joaquin Bernas | MANIEGO, A2012



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upon each party in respect of its entire territory. (Article 29 of the
Convention)
Interpretation of treaties: Article 31 combines various approaches to treaty
interpretation

Objective approach: interpretation according to the ordinary
meaning of the words

Teleological approach: interpretation according to the telos or the
purpose of the treaty

Subjective approach: honors the special meaning given by the
parties

If there are ambiguities, supplementary sources may be used; in
case of conflicts, language that is agreed upon by the parties shall
prevail.
•
Air France v. Saks (US): WON an air carrier is liable for a
passenger’s injuries due to the dropping of air pressure
which occurred while the plane was in the process of
landing, causing the passenger to become deaf in one
ear. Despite the Warsaw Convention making the airline
liable for injuries sustained by passengers on the account
of any accident occurring onboard the aircraft or in the
course
of
any
of
its
operations
while
embarking/disembarking, the court found that the injuries
were a result of a usual and expected event (the
dropping of air pressure), which was not within the
meaning of the word “accident” in Article 17.
Invalidity of treaties: Error of fact, fraud, corruption, duress

Error: Mistake in a factual antecedent essential to the State
entering into the treaty in the first place; does not apply if there was
prior notice or the State head contributed to the mistake.

Fraud: Fraudulent behavior is involved in inducing another to enter
into a treaty with the State.

Corruption: Consent is procured through either direct or indirect
corruption of its representative.

Duress: There is duress by procuring consent through the coercion
of another State’s representative or acquiring another State’s
consent through threat or use of force in violation of the principles
of international law.

Jus cogens: A peremptory norm of international law from which no
derogation is permitted; any treaty which violates jus cogens is
deemed void.
Loss of right to assert the invalidity of a treaty: A state loses the right to
protest a treaty’s validity when, after knowing all of the facts, expressly
agreed to its validity or continues to keep it in force/in operation.
Municipal law as a ground to invalidate a treaty: Generally, a state cannot
use municipal law as a ground to invalidate a treaty unless there is a manifest
violation.

Manifest violation: A violation is manifest if it would be objectively
evident to any State conducting itself in the matter in accordance
with normal practice and in good faith.
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Ex. A state representative is subject to a restriction when
concluding a treaty (a manifest violation if he does not
observe the restriction, unless the other states were
informed of his lack of capacity and contracted with him
anyway)
Amendment of treaties: A formal revision done with the participation (at the
very least in its initial stage) by all the parties to the treaty.

A treaty may be amended by agreement of the parties. The
procedure to be followed is the same as formation—it is much more
difficult as to multilateral treaties than bilateral treaties because it is
difficult to obtain the consent of all the parties in multilateral
treaties.

Article 40: Applies for amendments which will affect only some of
the states but only after all parties have been given the opportunity
to consider the proposed amendments.
•
Notice of the proposal to amend must be given to all
contracting parties, because they all have the right to: a.)
the decision as to the action to be taken; b.) the
negotiation and conclusion of any agreement for the
amendment.
•
Every original contracting party-State is also entitled to
become a party to the amended treaty. Also, the
amended treaty does not bind those who do not give their
consent to it. A State that becomes a party to the treaty
after the amendment shall (unless it is expressed
differently) be considered as a party to the treaty as
amended and a party to the original treaty in relation to
those who did consent to the amended treaty.
Modification: A formal revision that involves only some of the parties.

Article 41: Allows for modification by two or more of the parties.
•
Two or more parties in a multilateral treaty may modify
the treaty as between themselves if the treaty provides
that it may be modified or it does not prohibit
modification. The lack of prohibition must also indicate
that it must not affect the enjoyment of rights under the
treaty by other parties, or it must not relate to a provision,
derogation from which is incompatible with the effective
execution of the objective of the treaty.
•
The modifying parties must also inform the other parties
of their intent to modify as well as the modification itself.
Termination of treaties: Termination according to—conclusion according to
the terms, by consent, expiration of definite period, achievement of purpose.

Change of government does not terminate a treaty.

Other modes of terminating a treaty: Material breach, impossible
performance, rebus sic stantibus
Material breach: The treaty’s terms are breached.
Bilateral: Innocent party may invoke the breach of the other party
as a ground to terminate or suspend the operation, in whole or in
part.

Multilateral: Breach of the treaty entitles the other parties (by
unanimous agreement) to suspend the operation of the treaty, in
whole or in part, either between themselves and the defaulting
State or as between all of the parties, or to ask for the termination
of the treaty
•
A party specially affected by the breach may invoke it as
a ground for suspending the operation of the treaty, or
suspend the relations between itself and the defaulting
State.
•
Any other party may invoke breach as a ground to
suspend the operation of the treaty in whole or in part
with respect to itself if it is of such a character that a
material breach by one radically changes the position of
all the other parties with respect to further performance.
•
Examples of breach: Unsanctioned repudiation of a
treaty, violation of a provision essential to the
accomplishment of the purpose of the treaty.
•
Note: The ground of material breach cannot apply to
provisions relating to the protection of the human person
contained in humanitarian treaties.

Namibia Case (ICJ): The case is an advisory opinion on the legal
consequences of a breach of a resolution sought by the Security
Council after it had ruled that South Africa’s extended stay in
Namibia was illegal. Ruling: The ICJ held that the two forms of
material breach had occurred in this case (unsanctioned
repudiation and violation of a treaty provision.) South Africa was
under an obligation to withdraw from Namibia, and other States
were under no obligation to recognize any acts by South African
administration from Namibia.
Supervening impossibility of performance: It has become impossible to fulfill
the treaty because of the disappearance or destruction of an object
indispensable for the execution of the treaty. If the impossibility is temporary,
it may only be cause to suspend. It cannot be invoked if the impossibility is a
result of a breach by the party claiming the ground.

Danube Dam Case (ICJ): WON Hungary could claim the right to
terminate the 1977 Treaty between the State and Czechoslovakia
to facilitate the construction of dams on the Danube river on the
basis of impossibility of performance and rebus sic stantibus. Due
to environmental concerns, Hungary had to suspend operations
causing Czechoslovakia to respond with unilateral measures,
causing Hungary to try to terminate the treaty. Ruling: The court
held that Hungary could not claim impossibility of performance if
they had a hand in the breach that caused the impossibility (in this
case, failure to carry out the works for which Hungary was
responsible.) Furthermore, the change in circumstance is not
fundamental enough to radically transform the extent of the
obligations under the Treaty.

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Rebus sic stantibus (Fundamental change in circumstance): There is a
fundamental change in the circumstances, unforeseen by the parties, from
those at the conclusion of the treaty.

This may not be invoked as a ground for terminating a treaty unless
those circumstances were an essential basis of the consent of the
parties to be bound to the treaty, and the effect of the change
transforms the extent of obligations still to be performed under the
treaty.

Rebus sic stantibus may also be invoked to suspend a treaty’s
operations. However, the modern approach to its invocation is
restrictive (Fisheries Jurisdiction case)—the changes must have
increased the burden of the obligations to be executed to the extent
of rendering performance something essentially different from the
original intention.
•
Fisheries Jurisdiction (ICJ): WON the proposed extension
of Iceland’s exclusive fisheries jurisdiction from 12 miles
to 50 miles was a breach of an agreement between the
State and UK, on Iceland’s argument that the agreement
was no longer binding because of rebus sic stantibus.
Ruling: The court ruled that the fundamental change
being pushed by Iceland (increased exploitation of fishery
resources because of the increased catching capacities
of fishing fleets) cannot be said to have transformed the
extent of the jurisdictional obligation imposed in the
agreement with the UK.

Exceptions: Fundamental change in circumstances cannot be
invoked as a ground for termination or withdrawal when the treaty
establishes a boundary, or if it is a result of a breach by the party
invoking it.
Procedure for termination:

Party-State must notify other parties (in writing and signed by one
with full powers) of the ground or defect in the consent which would
allow it to withdraw or terminate the treaty. Notification must
indicate the measure proposed and the reasons.

If within a period of not less than three (3) months, no objections
are raised, proposing State may carry out the measures proposed.
In case of an objection, the parties concerned shall seek a solution
through the necessary means.

If no solution is reached within 12 months, the dispute must be
submitted to:
•
ICJ
•
Arbitration, or
•
Secretary General of the UN for procedure specified in
the Annex of the Convention

The proposal may be revoked any time before it takes effect.
Authority to terminate: Vienna Convention does not enumerate those who
have the capacity to terminate treaties; however, it is logical that those with
the authority to enter into treaties also have the authority to terminate them.
Fr. Joaquin Bernas | MANIEGO, A2012
Can the President unilaterally terminate a treaty? In US jurisdiction
(Goldwater v. Carter), the question was raised but not resolved
because the case was not yet ripe for adjudication.
Succession to treaties: In the case of a brand new state (one state ceases to
exist and is succeeded by another occupying the same territory), the Vienna
Convention on the Succession of States with Respect to Treaties concluded
that the “clean slate rule” is applied, and a newly independent state is not
bound to maintain treaties entered into by the previous state. If they choose,
however, they may agree to be bound by the treaties of its predecessor.

Exception: Treaties affecting boundary regimes. They are
considered as attached to the territory, not to the State.


CHAPTER FOUR: INTERNATIONAL LAW AND MUNICIPAL LAW
I.
Conflict between International Law and Municipal Law—Dualism vs. Monism

Dualist/pluralist theory: International law (PIL) and municipal law (ML) are
essentially different.

As to source: ML is a product of local custom or legislation and PIL
is sourced from treaties and custom grown among states.

As to relations to regulate: ML regulates relations between
individual persons under the state, while PIL regulates relations
between states.

As to substance: ML is the law of the sovereign over individuals
while PIL is a law between sovereign states.

Which prevails: ML must prevail (Dualists are positivists—strong
emphasis on state sovereignty)

Monistic Theory: PIL and ML belong to only one system of law.

Monism Theory 1: ML subsumes and is superior to PIL.

Monism Theory 2: PIL is superior to ML (this theory is supported by
Kelsen); this superiority stems from a deep suspicion of local
sovereigns and from the conviction that PIL imbues the domestic
order with a sense of moral purpose.

ML in PIL: Prevailing practice accepts dualism to the extent that it recognizes
two legal systems.

Parties may not invoke provisions of ML to avoid or to justify its
failure to perform a treaty or any kind of international agreement.
Dualist theory blocks the entry of ML in the area of PIL.

A state that enters into an international agreement must modify its
ML to make it conform to the agreement. As in the case of
Exchange of Greek and Turkish Population, the Court ruled that a
state is “bound to make in its legislation such modifications as may
be necessary to ensure the fulfillment of the obligations
undertaken.”

However, even under a dualist perspective, the two systems are
not completely separate. Barcelona Traction Case (ICJ): A court
who disregards the relevant institution of ML would be losing touch
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with reality. However, PIL refers only to generally accepted rules in
municipal systems and not to the particular ML of a particular State.
If an international court is called to decide a case based on
municipal and not international law, they must apply it as it would
be applied in the country where it is from.

PIL in ML: Dualism still applies when it comes to entry of PIL into the
domestic sphere. Unless it becomes a part of municipal law, PIL has no place
in the settlement of conflicts in domestic law.

Two theories on how PIL becomes a part of ML: Doctrines of
transformation and incorporation

Transformation—for PIL to become part of ML, it must be expressly
and specifically transformed into domestic law through legislation or
any other appropriate machinery. Treaties do not become part of
the law of the land unless the State consents to it.

Incorporation: When any question arises which is properly the
object of its jurisdiction, the law of nations is adopted by common
law, and becomes part of the law of the land.
Philippine law: Treaties and international agreements become part of the law
of the land when concurred in by the Senate (1987 Constitution). The
acceptance of the Philippines of the generally accepted principles of PIL
manifests its adherence to the dualist theory and adopts the incorporation
theory, making PIL a part of ML. Philippine courts, then, can use PIL to settle
domestic disputes.

Incorporation only applies to customary law and treaties which have
formed part of customary law, because the 1987 Constitution also
provides that treaties have to be ratified.
When Philippine Courts use PIL to settle domestic disputes: Mejoff v. Director
of Prisons (Declaration of Human Rights, in deciding WON to release an
alien of Russian descent from detention pending deportation), Kuroda v.
Jalandoni (the Hague and Geneva Convention, in WON a military
commission had jurisdiction over war crimes committed in violation of the two
conventions prior to 1947), Agustin v. Edu (Vienna Convention on Road
Signs and Signals, in determining WON the Letter of Instruction prescribing
the use of early warning devices possesses relevance,) J.B.L. Reyes v.
Bagatsing (International duty to protect foreign embassies.)

International/Municipal Rule: Where there is a conflict between PIL and ML,
what prevails depends on whether the case goes to an international or a
domestic court. Before an international court, a party cannot argue or plead
its own law. Domestic courts have no choice but to follow local law.

Conflict between State Constitution and treaty: Treaty is not valid and
operative as domestic law; the SC has the power to declare the treaty invalid.
However, this does not mean that the theory is declared unconstitutional or
that it loses its international character.

Tanada v. Angara: WON the Senate’s ratification of the GATT
Treaty is contrary to national interest and the Constitution. The
Court ruled that the principles embodied in the Constitution are not

self-executing principles ready for enforcement but are used by the
Judiciary to aid or guide the exercise of its power of judicial review.
Tanada case is supposed to be a retreat from the next case.
Manila Prince Hotel v. GSIS: WON the State can award the
contract to a Filipino bidder over an international one on the basis
of the principles in the 1987 Constitution such as preferring
qualified Filipinos. The Court said that the provisions need not be
subject to legislation but are self-executory on their own, a
mandatory, positive command complete in itself. It is per se
judicially enforceable.
Conflict between treaty and law: Whichever one is later prevails—based on
the American view that treaties and statutes are equal in rank. However, the
preference of a statute over a treaty (in case a statute comes later) only
applies as to its domestic aspect, not to its international aspect.

Head Money Cases (US): Treaties do not hold a privileged position
above other acts of Congress, and other laws affecting "its
enforcement, modification, or repeal" are legitimate. So far as a
treaty made by the United States can become the subject of judicial
cognizance in the courts, it is subject to such acts which Congress
may pass.

Whitney v. Robertson (US): WON the agreement between Hawaii
and the US as to admit their sugars duty-free into the country would
also apply to the merchant-petitioners’ produce of similar centrifugal
and molasses sugar from San Domingo, a State which also has a
similar treaty with the United States. The court ruled, gleaning
doctrine also from the Head Money cases that when the
stipulations are not self-executing, they require legislation to put
them into effect. Such legislation is subject to modification and
repeal by Congress. If the treaty contains self-executing
stipulations, to that extent they have the force and effect of a
legislative enactment.
CHAPTER FIVE: SUBJECTS OF INTERNATIONAL LAW--STATES
I.
Subjects vs. Objects of International Law

They are entities endowed with rights and obligations in the international
order, possessing the capacity to take certain kinds of action on the
international plane.

Have international personality and are capable of acting in international law.

Vs. Objects: Objects of PIL are those who indirectly have rights under/are
beneficiaries of international law through the subjects of international law

States enjoy the fullest personality in PIL.
II.
Statehood

Commencement: A state as a person in PIL should possess the following
characteristics—a.) permanent population, b.) defined territory, c.)
government, and d.) capacity to enter into relations with other states.
(Montevideo Convention of 1933 on Rights and Duties of States)
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Examples: When a portion of territory has seceded, foreign control
over an entity claimed to be a state, or when states have formed a
union or continue to retain some autonomy, when members of a
federation claim to be a state.
Elements of Statehood—People, Territory, Government and Sovereignty

People/Population: A community of persons sufficient in number,
capable of maintaining permanent existence of the community and
held together by a common bond of law. There is no minimum
population required, nor are they required to have racial, cultural or
economic similarities.

Territory: An entity called a state must exercise sovereignty over a
definite territory; it may satisfy the territorial requirement for
statehood even if its boundaries have not yet been settled with
finality because it does not cease to be a state even if all its territory
is occupied by another power or if it has lost control of its territory
temporarily. (Restatement)

Government: Institution by which an independent society makes
and carries out rules of action necessary to enable men to live in a
social state, or which are imposed upon people forming that society
by those who possess the power or authority of prescribing them
(US v. Dorr, 2 Phil. 332.) In PIL, there is no required form of
government. For purposes of PIL, it is the national government
which has international personality and it is that which is
responsible for the actions of the agencies and instrumentalities of
the State. Temporary absence of government does not terminate
the existence of a state.

Sovereignty: Independence from outside control. It is, according to
the Montevideo Convention, the capacity of the State to enter into
relations with other States. This, however, is dependent upon
recognition.

Self-determination: Related to but is not identical to sovereignty.
The latter falls under the broader concept of the right of selfdetermination. It is the impetus behind the birth of new states in the
post-World War II era, and is asserted by both the International
Covenant on Civil and Political Rights and International Covenant
on Economic, Social and Cultural Rights. “All peoples have the right
of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and
cultural development.
•
May be broken down into two levels of claim to selfdetermination: first, the establishment of new states—a
claim of a group within an established state to break
away and form their own identity; and second, claims to
be free from external coercion or to overthrow rulers and
establish a new government. The latter is the assertion of
the right of revolution, or that of autonomy.
•
The UN has various ways of giving effect to selfdetermination like resolutions of support, sanctions for
offenses against SD, rights of participation in
Fr. Joaquin Bernas | MANIEGO, A2012
international fora—however, PIL has yet to recognize a
right of secession from a legitimately existing state.





Recognition of states: When one state recognizes the capacity of another
state to exercise all the rights attributed to statehood; it is an act of
acknowledgement.

Declaratory theory: Recognition merely ‘declares’ the existence of
the state; statehood depends upon its possession of the elements,
not upon fact of recognition, and the recognizing state merely
accepts an already existing situation. (The weight of authority
supports this.)

Constitutive theory: Recognition ‘constitutes’ the state; there is no
state until it is recognized by another. The fact of recognition makes
the state a state, and confers legal personality on the entity. This
theory emphasizes that states are under no obligation to enter into
bilateral relations, but also allows those entities who do not have all
the Montevideo Convention elements of a state to be recognized as
such.

Political issue: Lately, it is of note that the recognition of states of
one another has become a matter of political discretion—a state
recognizes the existence of another if it is beneficial to them.
Treatment of recognition has been inconsistent and it is seen that
political realities have primacy over consistency in application.
Traditional criteria was largely amoral—how states came to be was
not a relevant factor; now, placing conditions leading to recognition
implies an attempt at greater moral dimension but have sacrificed
the application of a consistent doctrine.
Recognition of Government: Closely related to recognition of states, it is the
act of acknowledging the capacity of an entity to exercise powers of
government. If there is a change in government that came about through
constitutionally mandated means, recognition comes as a matter of right. If it
came about through extra-constitutional means, the cases of Tinoco
Arbitration and Upright v. Mercury Business Machines Co. may be helpful.

Tinoco Arbitration (W.H. Taft, arbitrator): WON Great Britain is
estopped from pursuing claims against the temporary Tenneco
government of Costa Rica because it never recognized the Tinoco
government either as de jure or de facto. Ruling: The status of the
brief Tenneco government was that of de facto, which was capable
of creating rights in different subjects, and these rights cannot be
ignored to work any injury to the succeeding government.

Upright v. Mercury Business Machines Co. (US): WON plaintiff, as
an assignee of a trade acceptance debt of a foreign corporation
which is a creature of East German government, can enforce the
unpaid claim against Mercury Business Machines despite East
Germany not being recognized by the United States. Ruling: An
unrecognized foreign government may have a de facto existence
juridically cognizable when it affects private rights and obligations.
Consequences of non-recognition: Recognition allows opportunities not
afforded to non-state entities, like extensions from funding agencies,
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Fr. Joaquin Bernas | MANIEGO, A2012
facilitation of loans, access to foreign courts, etc. However, recognition of a
government is a highly political decision.

Entry into the UN does not require recognition by all members.
Recognition is only to the extent of the activities of the organization.

Neither recognition nor diplomatic relations necessarily mean
approval of the government.
Termination of recognition: When a new regime is recognized in lieu of the
old government. A state cannot be de-recognized so long as it continues to
fulfill the requirements of statehood.
Succession of States: States do not last forever and state succession may
arise in different circumstances, such as a result of decolonization,
dismemberment, secession, annexation and merger. What occurs in each of
these instances is that an existing sovereignty disappears in whole or in part
and a new sovereignty arises giving rise to questions of succession to rights
and obligations.

Tabula rasa theory: Clean-slate theory, where a new state is not
bound by any rights and obligations of its predecessor.

Opposing theory says that a new state inherits all of the rights and
obligations of the old state.
Continuity: When a new state arises, what is its relation to the predecessor
state? Does it continue the existence of the old state or is it completely
distinct from it? It is less of a problem when there is a new regime
(constitutive of a ‘state’) like in the case of Pakistan and India succeeding
British India. It is more problematic in cases like the former Soviet Union and
Yugoslavia.
Specific provisions: Taken from the Restatement—

As to territory: When a state succeeds another state with respect
to particular territory, the capacities, rights and duties of the
predecessor state with respect to that territory terminate and are
assumed by the successor state.

As to state property: Subject to agreement between predecessor
and successor states, title passes as follows:
1.) Where part of the territory of a state becomes territory of
another state, property of the predecessor state located in that
territory passes to the successor state;
2.) Where a state is absorbed by another state, property of the
absorbed state, wherever located, passes to the absorbing state;
3.) Where part of a state becomes a separate state, property of the
predecessor state located in the territory of the new state passes to
the new state.

As to public debts: Subject to agreement between the states,
responsibility for public debts, rights and obliges under contracts,
remain with the predecessor state, except:
1.) Where part of the territory of a state becomes territory of
another state, local public debt, and the rights and obligations
under contracts relating to that territory, are transferred to the
successor state.
2.) Where it is absorbed by another state, the public debt, etc. pass
to the absorbing state.



3.) Where part of the state becomes a separate state, local public
debt, and rights and obligations relating to the territory of the new
state, pass to the new state.
As to treaties:
1.) When part of the territory of a state becomes territory of another
state, the treaties of the predecessor state cease to have effect in
respect of the territory and the treaties of the successor state come
into force there.
2.) When a state is absorbed by another state, the treaties of the
absorbed state are terminated and the treaties of the absorbing
state become applicable to the territory of the absorbed state.
3.) When a part of a state becomes a new state, the new state does
not succeed to the treaty to which the predecessor state was a
party, unless, expressly or by implication, it accepts such
agreements and the other party agrees (Clean slate theory).
4.) Pre-existing boundary and other territorial agreements continue
to be binding notwithstanding (uti possidetis rule).
Fundamental Rights of States—Independence, equality, peaceful coexistence

Independence: Capacity of a state to provide for its own well-being
and development free from the domination of other states, provided
it does not impair or violate their legitimate rights. From this flows
the power of jurisdiction over territory and permanent populations,
the right to self-defense and the right of legation.

Equality: Equality of legal rights irrespective of size or power of the
State. In the UN, it is the doctrine behind the principle of one state,
one vote.

Peaceful co-existence: Elaborated in the Five Principles of CoExistence by India and China (1954) and includes mutual respect
for each other’s territorial integrity and sovereignty, mutual nonaggression, non-interference, and the principle of equality.
Incomplete subjects—Protectorates, federal state, mandated and trust
territories, Taiwan, Malta, Holy See
CHAPTER SIX: SUBJECTS OF INTERNATIONAL LAW—OTHER SUBJECTS
I.
International Organizations

An organization that is set up by treaty among two or more states and is
different from NGOs, which are set-up by private persons. It is a treaty that is
the constituent document of international organizations.

Only states are members of international organizations. To be able to
delineate the activities of international organizations, one must look at the
relevant rules of its body and to its constitution.

How do they come into existence?

Do they have international personality?

Do they enjoy any kind of immunity?
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


Formed via multilateral treaties, but also treaties of a particular type—which
create new subjects of international law, imbued with some autonomy, where
parties are geared towards a common goal.

Reparations Case (ICJ Advisory Opinion): WON an agent of the
United Nations in the performance of his duties suffered injuries in
a situation involving responsibility of a State has the capacity to
bring an international claim against the responsible government to
obtain reparations for both the victim and the United Nations.
Ruling: Members of the UN created an entity possessing objective
international personality and not merely a personality recognized by
them alone. Despite the UN Charter being silent about the
organization’s international personality, its possession of legal
personality may be implied from the functions of the organization.
However, the recognition of an international organization’s personality does
not place it on the same level as states. It does not give them the powers and
privileges that a state enjoys, for their powers are limited by the instrument
which created them.

Advisory Opinion on the Use of Nuclear Weapons: International
organizations are governed by the principle of specialty and are
invested by the States which create them with powers, limited by
the function of common interests. The powers conferred on them
are normally the subject of an express statement of their charter
instrument. However, they may possess subsidiary powers
necessary to achieve their objectives called “implied powers.”
Immunities: The basis for their immunities is not sovereignty (as in States and
Heads of State) but the need for the effective exercise of their functions. The
immunities for the United Nations and its designated agents and
representatives are found in Article 105 of the UN Charter and are described
as “those which are necessary for the fulfillment of its/their purposes.” The
General Assembly may make recommendations to determine the details of
the application of the particular immunities, which they did in the General
Convention on the Privileges and Immunities of the United Nations and the
Convention and Privileges of Specialized Agencies.

The Philippine courts have recognized the immunity of other
international organizations in International Catholic Migration
Commission v. Calleja (190 SCRA 130), Southeast Asian Fisheries
Development Center v. Acosta (226 SCRA 49) and Lasco v. United
Nations Revolving Fund for Natural Resources Exploration (241
SCRA 681).

However, in the case of Kapisanan ng mga Manggagawa v.
International Rice Research Institute (190 SCRA 130, decided
jointly with the International Catholic Migration Commission case),
IRRI was treated as an international organization despite being
created via memorandum of agreement, not by treaty, by the
Philippine government and the Rockefeller and Ford Foundations.
Although initially considered a private corporation with the SEC,
IRRI was granted the status of an international organization in 1979
through PD 1620. The Court recognized it as a specialized agency
on the same footing as the International Catholic Migration
Commission, an international organization. The end result is that
Fr. Joaquin Bernas | MANIEGO, A2012



employees who were seeking redress for violation of labor rights
were rebuffed by the Supreme Court.

In the two cases involving the Asian Development Bank, of which
treaty the Philippines is a signatory, the results were different. In
one case, deciding whether or not the NLRC could take cognizance
of a case involving illegal dismissal against ADB, the immunity of
ADB was upheld. However, in the other case, the immunity of an
ADB employee was not upheld in the face of a criminal complaint
for grave oral defamation because the immunity could only be
limited to acts performed in an official capacity, and it could not
cover the commission of a crime.
United Nations’ Structure and Powers: The UN is a universal organization
charged with peace-keeping, the development of friendly relations among
nations, the achievement of international cooperation and the promotion of
human rights and fundamental freedoms for all human beings without
discrimination (BASICALLY: peace, cooperation, friendly relations and
human rights)

However, the UN is enjoined in intervening in matters which are
within domestic jurisdiction of any state.
In the hierarchy of international organizations, the UN occupies a position of
preeminence. In the event of a conflict between international agreements
between Member States and the UN Charter, the UN Charter must prevail.
Principal organs of the UN: General Assembly, Security Council, ECOSOC,
Trusteeship Council, Secretariat, ICJ and Other Agencies

General Assembly: Where all member States are represented. It
exercises plenary powers, and may discuss any question or matter
within the scope of its Charter. It distinguished between “important
questions” and “other questions.” Important questions are
decided by an absolute majority (2/3) of the members voting and
present. Other questions require only a majority. The Charter
identifies which questions are deemed important questions; the GA
may include other important questions by majority vote.

Security Council: Primarily responsible for the maintenance of
international peace and security. There are 15 member states, five
of them permanent (China, France, Russia [in the place of the
former USSR, as agreed upon by the former Soviet Union], the
United Kingdom and the United States—as the winners of World
War II). The other seats are filled up by election to two-year terms
in accordance with equitable geographic representation. It
distinguishes between “procedural matters” and “all other
matters.”
•
Matters which are not procedural only require nine
affirmative votes, including the concurring vote of the
permanent members. However, because the Charter
does not specify what matters are procedural and which
are not, it is the practice of the Council that a decision on
whether or not matters are procedural also requires the
concurrence of the permanent members. This makes the
double veto by the permanent members possible. An
abstention is considered a veto.
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ECOSOC: Has 54 member states elected for three year terms.
Subsidiary organs include the UN Commission on Human Rights
and the Commission on the Status of Women

Trusteeship Council: Supervises non-self governing territories.
Limited jurisdiction and has suspended operations, following
Palau’s independence in 1994.

Secretariat: Comprises of a Secretary General and such staff as
the Organization may require. A Secretary General is elected to a
five year term by the General Assembly upon the recommendation
of the Security Council, which is subject to veto power. He is the
Chief Administrator and has the power to bring to the attention of
the Security Council any matter which may threaten the
maintenance of international peace and security.

ICJ: Covered in another chapter.

Other Agencies: Other specialized agencies aside from the main
organs of the UN—UN 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.)
Regional Organizations: Regional organizations also play important roles, but
they are neither organs nor subsidiary agencies of the UN. They are
autonomous international organizations having institutional affiliation with the
UN by concluding agreements with the UN. They are created pursuant to
international agreements for the purpose of dealing with regional problems in
general, or with specific matters like economic, military or political concerns.

ASEAN: In this region, the Philippines is one of the original
Member Countries of the Association of South East Asian Nations
(ASEAN), formed in 1967. The other original members are
Indonesia, Malaysia, Singapore and Thailand. Brunei
Darussalam joined in 1984. Vietnam joined in 1995. Laos and
Myanmar joined in 1997. Cambodia became the last member in
1999. It was created pursuant to the Bangkok Declaration, which
sought to push for a joint effort to promote economic cooperation
and the welfare of the people in the region.

It aims to promote economic, social and cultural development of
the region through cooperative programs, to safeguard political and
economic stability of the region, and to serve as a forum for the
resolution of intra-regional differences. Its goals are accelerated
economic growth, social progress, cultural development, regional
peace and stability through respect for justice and adherence to the
UN Charter.

Comprises three pillars: ASEAN Security Community, ASEAN
Economic Community and ASEAN Socio-Cultural Community.

Fundamental principles: Mutual respect for independence and
sovereignty, recognition of the right of every state to lead its
national existence free from external influence, the non-interference
in internal affairs, peaceful settlement of differences, renunciation of
the threat or use of force and effective cooperation. (Treaty of Amity
and Cooperation in Southeast Asia [TAC])
Fr. Joaquin Bernas | MANIEGO, A2012



II.
All ten member States have already ratified the charter and it will
take effect upon the deposit of all ratifications.
Insurgents and Liberation Movements

Protocol II: Only international agreement regulating the conduct of parties in a
non-international armed conflict—1977 Protocol II to the 1949 Geneva
Conventions. It develops and supplements the Common Article 3 without
modifying its existing application. It covers non-international armed conflict
and, if satisfied, grants them the status of a subject of international law
as “para-statal entities possessing definite, if limited, form of international
personality.” They may be recognized as having belligerent status against the
de jure government and other states are required to maintain neutrality
towards them. They are also capable of entering into treaties.

Non-international armed conflict: Armed conflicts which take place
in the territory of a High Contracting Party between its armed forces
and dissident armed forces or other organized groups under (1)
responsible command which (2) exercise control over a
particular territory so that they can carry out sustained and
concerted military operations (sustained capability to maintain
themselves.)

Protocol II applies only when the two elements are present. The
Philippine Government has maintained that Protocol II will not apply
in the case of the National Democratic Front because they fail to
cross the threshold of Protocol II’s application.

Inapplicable to situations of internal disturbances like riots, or such
other isolated and sporadic acts of violence, even if armed forces
are called to suppress the disorder.

Common Article 3: States that in case of non-international armed conflict,
contracting parties are required to treat humanely persons who do not
partake of the hostilities at all times, without any adverse distinction as to
race, class, etc. Acts of violence to life and person (mutilation, cruel
treatment, torture), hostage-taking, outrages upon personal dignity, carrying
out of sentences and executions without those judicial guarantees recognized
as indispensable by civilized peoples, with respect to the persons previously
mentioned, shall be prohibited at all times. The wounded and sick shall be
cared for, and an impartial humanitarian body like the Red Cross may offer its
services. The application of Common Article 3 does not make the conflict an
international one.

National Liberation Movements: Organized groups fighting in behalf of a
people for freedom from colonial groups; people fighting against colonial
domination and alien occupation and against racist regimes in the exercise of
their right of self-determination.


First arose in Africa, then in Asia. Currently, liberation movements
are on the wane.
Characteristics: May be based within the territory they are seeking
to liberate, or based in a friendly country—control of territory is not
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
III.
a necessary factor. Legitimacy comes from their goal of selfdetermination. Therefore, they have a goal of eventual control of a
definite territory, and an organization capable of coming into
contact with other international organizations.

Once the goals are attained, they may claim status of international
subjects.
Unilateral declaration: An authority representing the people engaged in
armed conflict against a High Contracting Party in Article I of the 1977
Geneva Convention (meaning non-international armed conflict) may seek to
apply the Convention and the Protocols by means of unilateral declaration,
which bring the Convention and Protocol into force immediately, and the
represented party assumes the same rights and obligations as those which
have been assumed by a High Contracting Party to the same Conventions
and Protocol, making the latter agreements binding upon both of them.
Territory in PIL

Territory: Element of a state; an area over which a State has effective control.
Control over territory is the essence of a State. Even if boundaries are
uncertain, there is a definitive core over which sovereignty is exercised.
Sovereignty over a portion of the surface of the globe is the legal condition for
the inclusion of such portion in the territory of any particular state.

Includes land, maritime areas, airspace and outerspace.

Modes of acquisition: Discovery and occupation, prescription, cession,
conquest and subjugation, and accretion.

Occupation: Acquisition of terra nullius (territory which belonged to
no one, or was effectively abandoned without intent of returning
prior to occupation).
•
Western Sahara Case (ICJ Advisory Opinion): WON
Western Sahara was considered terra nullius if they were
inhabited by organized tribes. The Court advised that any
territory inhabited by peoples having a social or political
organization cannot be considered terra nullius.
Las Palmas Case (Perm. Crt.): WON the Island of Las
Palmas belongs to the US (via ceding of Spain’s rights
over it through the Treaty of Paris) of to the Netherlands
(via occupation and exercise of control). Ruling: Although
the original title by discovery could be traced to Spain, it
never exercised control over the territory and therefore
they only had inchoate title over the islands, because
discovery alone could not suffice to prove sovereignty
over the territory—it needs to be coupled with control
over it. Spain could not transfer more rights than she
herself possessed. Its inchoate right cannot prevail over
a definite title founded on continuous and peaceful
display of sovereignty, upon which the Netherlands
founded their claim. The Arbitrator rules in favor of the
Netherlands.
•
Relative effective control may depend upon the nature of
the case. Where there are two or more claimants to a
territory, effective control is also relative to the strength of
the claims.
•
Eastern Greenlands Case (PCIJ): WON Denmark or
Norway’s claim to sovereignty will prevail. Ruling: Claims
to sovereignty based upon continued displays of authority
involves two elements—intention and will to act as
sovereign, and actual display of authority. In addition to
that, the extent to which the sovereignty is also claimed
by some other Power must also be taken into account, as
to which of the two is stronger. Because up to 1931 there
was no other claim other than Denmark, and up to 1921
no one disputed the claim, the Court ruled in favor of
Denmark.
Prescription: A recognized mode of acquisition requiring effective
control, but the object of prescription is not terra nullius. This makes
the required length of effective control longer than that of
occupation. Prescription may be negated by a lack of acquiescence
by the prior occupant.
Cession: The acquisition of property through treaty. A treaty of
cession imposed by a conqueror is invalid, making what prevails
merely a de facto regime.
Conquest: Taking possession of territory through armed force. For
acquisition of conquered territory, it is necessary that war had
already ended either by treaty or by indication of surrender. The
conqueror must have intended to acquire the territory indefinitely
and not just occupy it temporarily. Conquest as a mode of
acquisition is proscribed by PIL today. The latest instance of a
response to an attempted conquest is the action taken against Iraq
when it invaded Kuwait.
Accretion or Avulsion: A kind of sovereignty by operation of nature.
Accretion is the gradual increase of territory by the action of nature
while avulsion is a sudden change.
•
Individuals

Individuals have increasingly become appropriate subjects of international
law because of greater global awareness of human rights, which have
granted them limited rights and obligations in PIL.

Best examples are those individuals who have acquired obligations arising
from regulation of armed conflicts, making those behind certain actions fall
under criminal responsibility. However, those who claim violations of their
individual rights still have to rely on the enforcement power of states, but
come treaties have provided for the right of individuals to petition international
bodies if a contracting state has violated some of their human rights.

Development of the International Criminal Court has allowed individuals to
have international legal personality; however, the Philippines is not a
signatory.
CHAPTER SEVEN: TERRITORY—LAND, AIR AND OUTER SPACE
I.
Fr. Joaquin Bernas | MANIEGO, A2012




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

II.
Fr. Joaquin Bernas | MANIEGO, A2012
Contiguity (when certain lands are deemed part of territory on the basis of
closeness) is not a basis for sovereignty, with Las Palmas as argument
against it because it is impossible to show a rule of positive international law
affirming contiguity as basis.
Intertemporal law: The view that the rules in effect at the time of the
acquisition should be applied.
Airspace

Prior to World War I, airspace was thought to be completely free. Because of
the invention of airplanes and the outbreak of the war, there was a realization
that the use of the air had security implications. It was then thought that
airspace is merely an extension of the territory below.

Each state has exclusive jurisdiction over the air space above its territory,
and consent for transit must be obtained before passage is allowed.

Chicago Convention on International Civil Aviation created the
International Civil Aviation Organization (ICAO) and prescribed
ruled for civil aviation. The Chicago Convention is applicable only to
civil and not State aircraft, which are aircraft used in military,
customs and police services.
•
No state aircraft of any contracting states shall fly over
the territory of another state or land there without
authority by special agreement or otherwise, and only
according to the terms thereof. They will also have due
regard for the safety of navigation of civil aircraft.

Flight over territory is divided into non-scheduled and scheduled.

Non-scheduled flights: Contracting states making non-scheduled
flights have the right, subject to the observance of the convention,
to make flights into and in transit non-stop across the territory and
stops for non-traffic purposes without requiring prior permission,
subject to the State flown over’s right to require landing. The state
making the NSF reserves the right to require aircraft wanting to
proceed over inaccessible regions or those without adequate air
navigation facilities to obtain special permission for such flights or
to follow prescribed routes.

Scheduled flights: No scheduled flights may be operated without
the special permission or authority of the State flown over, and in
accordance with such terms laid down in the permit.

Cabotage (the transport of goods/passengers within the same
country): Each contracting State shall have the right to refuse
permission to the aircraft of other contracting States to take on,
within its territory, passengers, mail or cargo for pay/hire and
destined for another point within its territory. Every contracting
State undertakes not to enter into arrangements which grant this
privilege on an exclusive basis to any other State nor shall they
obtain any such privilege from any other State.

Rationale: Chicago Convention attempts to protect civil aviation; however,
since then, a number of incidents have taken place, like the 1955 shooting of
an Indian aircraft by Bulgaria, the 1973 shooting of a Libyan aircraft by Israel,
and the 1983 shooting of a Korean aircraft by Russia. As to the latter,
Russia’s justification was based on its sovereign right to protect its airspace.

III.
Flexible rule with respect to State aircraft: In 1953, it was suggested by
Lissitzyn in an AJIL article that a flexible rule be adopted as to State aircraft,
in that the territorial sovereignty must not expose the aircraft and its
occupants to unnecessary great danger in relation to the apprehended
harmfulness of the intrusion. An aircraft must not be attacked unless there is
reason to suspect that the aircraft is a real threat, and even then, a warning
must be relayed to land or change course before attacking. As to civilian
aircraft, many have held that they must never be attacked. Even the Soviet
Union, as part of its justification in the preceding paragraph, predicated its
attack upon the mistaken notion that the South Korean aircraft was an
American reconnaissance aircraft.
Outer Space

The assertion under air space law used to be that air sovereignty extended
unlimitedly; this was changed by the development of outer space law. Thus,
sovereignty over air space extends only until where outer space begins.
There is no definite answer yet as to the delineation between air and outer
space.

Outer space, it has been accepted, is not susceptible to appropriation by any
State.

1967 Treaty on the Exploration and Use of Outer Space: First achievement in
outer space law.

Outer space shall be free for exploration and use by all States
without discrimination of any kind, on a basis of equality and in
accordance with international law. There shall be free access to all
areas of celestial bodies, freedom of scientific investigation, and
States shall encourage and facilitate international cooperation in
such investigation.

States shall not place in orbit or install on any celestial bodies any
objects carrying nuclear weapons or any other kinds of weapons of
mass destruction.

The Moon and other celestial bodies shall be used by all State
parties exclusively for peaceful purposes, and it shall be prohibited
to establish military bases and to conduct military exercises on
celestial bodies.

Astronauts shall be considered envoys of mankind in outer space
and all States shall render to them all possible assistance in the
event of accident, distress, or emergency landing on the territory of
another State or on the high seas. When they land, they shall be
returned to the State of registry of their space vehicle.

Any important data or information discovered which could constitute
a danger shall be relayed immediately to the State Parties or the
Secretary General of the United Nations.
CHAPTER EIGHT: TERRITORY—THE LAW OF THE SEA
I.
Maritime Law

Importance of the sea flows from two factors:

As a medium of communication
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

II.
Fr. Joaquin Bernas | MANIEGO, A2012

As a carrier of vast natural resources
Doctrine of the Open Seas: Despite the Portuguese believing that some
areas of the open sea belonged to it, Grotius elaborated on the doctrine of
the open seas which considered the high seas as res communis or
accessible to all. However, it has recognized as permissible the delineation of
a maritime belt by littoral states as an indivisible part of its domain called the
territorial sea.
1982 Convention of the Law of the Sea (LOS): The sovereignty of a coastal
State extends beyond its land territory and internal waters and, if
archipelagic, beyond its archipelagic waters, to an adjacent belt of sea called
the territorial sea.

Sovereignty shall extend to the airspace above the territorial sea as
well as its bed and subsoil.

Sovereignty shall be subject to this convention and PIL.
Territorial Sea

A belt of sea twelve (12) nautical miles from the baseline of the coastal State.

If the application of the 12-n.mile rule results in overlapping, the rule used is
the equidistance rule, where the dividing line is the median line equidistant
from the opposite baselines. However, this only applies if there is historic title
or other special circumstances requiring a different measurement.

Baselines: The low water line along the coast as marked on large scale
charts officially recognized by the coastal State. The use of the low water
mark is most favorable to the coastal States and shows the character of the
territorial waters as appurtenant to the land territory. (Anglo-Norwegian
Fisheries Case)

Normal baseline method: Follows the low water line along the coast
along its curvatures.

Straight baseline method: Traditionally used by archipelagic states,
where straight lines are drawn connecting selected points on the
coast without appreciable departure from the general shape of the
coast. This was first upheld in the Anglo-Norwegian Fisheries Case
when used by Norway. In the Philippines, RA 3046 and RA 5446
have drawn straight baselines around the Philippines.
•
Article 7 and 47(1) of LOS upheld the use of the straight
baseline method for archipelagic states, subject to certain
limitations.
•
The main islands must be drawn within the straight
baselines, which join the outermost points of the
outermost islands. The ratio of the land to the water
included within the territory must be between 1 to 1 and 9
to 1.
•
Lengths of baselines must not exceed 100nm, except 3%
of the total number of baselines used to enclose the
territory. The 3% may exceed the length up to 125nm.
•
The baselines must not depart from the general
configuration of the archipelago. Baselines cannot be
drawn to and from low-tide elevations unless there are
lighthouses or any similar installations permanently


III.
above sea level and the elevation is not within the
territorial sea of another State.
•
The straight baselines must not cut off from the high seas
or the exclusive economic zone the territorial sea of
another State. If part of the archipelagic waters of an
archipelagic State lies in between two parts of an
adjacent neighboring State, existing rights traditionally
exercised by that neighboring State shall be respected.
•
The baselines drawn according to this method shall be
placed on charts or lists of geographical coordinates
which shall be given due publicity. Copies of the chart/list
must be deposited with the Secretary-General of the UN.
Sovereignty: Sovereignty over the territorial sea, the airspace above and the
bed and subsoil shall be exercised in the same manner as it is exercised on
land.
Right of innocent passage: Territorial sea is subject to the right of innocent
passage by other States. The right applies to ships and aircraft; submarines
must surface.

The right of innocent passage is passage that is not prejudicial to
the peace, good order or security of the coastal State. Thus, the
following acts are considered prejudicial and not subject to the right
of innocent passage.
•
Threat/use of force
•
Use of weapons
•
Gathering intelligence reports/surveillance
•
Acts of propaganda affecting defense/security of the
coastal State
•
Taking onboard or launching of any aircraft or any
military device
•
Loading of any goods contrary to law
•
Willful pollution contrary to LOS
•
Fishing activities
•
Carrying out of research or survey activities
•
Acts aimed at interfering with communication systems or
any other facilities of the coastal State
•
Any other activity with no direct bearing on passage

Coastal states have the unilateral right to verify the character of
passage and to take necessary steps to prevent passage if it turns
out not to be innocent.

As determined by the Corfu Channel Case, the right of innocent
passage is applicable to straits. In times of war, warships may pass
through straits, provided it is innocent. In times of peace, no State
has the right to prohibit passage unless otherwise provided in an
international convention.
Internal waters

All waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of
the territory.

Sovereignty: Same as in land.

Right of innocent passage: NOT subject to RoIP.
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However, ports must be open to foreign vessels and can only be closed when
vital interests of the State so requires. (Saudi Arabia v. Aramco) States may
regulate access to ports. (Nicaragua v. US)

Archipelagic Waters

Internal waters + waters in between islands as enclosed by the use of the
straight baseline method. These are called archipelagic waters and an
archipelagic state may designate sea lanes and air routes suitable for
continuous and expeditious passage of foreign ships and aircraft through its
archipelagic waters and the adjacent territorial sea.

Right of Innocent Passage: YES, there is RoIP.

Philippine Reservation to LOS: Because of this concept of archipelagic
waters, there was a seeming conflict between the Philippine Constitution,
which had considered those waters as internal waters (meaning, no RoIP.)
Because of this, upon its ratification of the LOS, it made the reservation as to:

The convention’s non-impairment of the Philippine’s sovereign
rights arising from the Constitution, of its rights as successor to
the United States’ rights acquired through the Treaty of Paris
(Spain to US) and the Treaty of Washington (UK to US), of its
rights and obligations through the Mutual Defense Treaty with the
US, of its sovereign rights over the sea lanes and the deprivation
of the RoIP over its straits connecting the internal waters with the
special economic zone or the high seas.

The reservation is not necessary because the new rule in the LOS
applies only to those waters which had not been previously
considered as internal waters. The 1973 Constitution, which states
that the archipelagic waters are internal waters, predates the 1982
LOS.


IV.
V.


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. It is not a bay unless its area is as large as, or
is larger than, that of the semi-circle whose diameter is a line drawn across
the mouth of that indentation (LOS.)

Waters of a bay are considered internal waters.
Measurement: Area of indentation is that lying between the low water mark of
the indentation and a line joining the low water mark of its natural entrance
points. The line measuring the internal waters shall not exceed 24nm; if the
mouth of the bay is more than 24nm, then only the maximum area which may
be enclosed by the 24nm shall be considered the internal waters.
Exceptions: The above method of measuring bays shall not apply to so-called
historic bays, or where the system of straight baseline method applies.
Historic bays are those which are treated by the coastal state as internal
waters on the basis of historic rights acknowledged by other states.
Contiguous Zone

Area of water not exceeding 24nm from the baseline; it exceeds 12nm from
the edge of the territorial sea.
Sovereignty: The coastal state exercises such authority 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.
The power of control of the littoral state does not change the nature of the
waters. It is still beyond the territorial sea, considered as part of the high
seas, and is not subject to the complete sovereignty of the coastal state.
VII.
Exclusive economic zone or “patrimonial seas”

The waters 200nm from the baseline. The doctrine of patrimonial seas
developed in light of conservation and management of coastal fisheries. A
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 (meaning, RoIP cannot be deprived of foreign states.)

The provision imposes corresponding rights and obligations on coastal states
relative to the exploitation, management and preservation of the resources
found within the zone.

Two primary obligations:

Coastal states must ensure through proper measures that the living
resources of the EEZ are not subject to over-exploitation. There is a
duty to maintain and restore populations of harvested fisheries at
levels which produce maximum sustainable yield.

Coastal states must promote the objective of optimum utilization
of the living resources; if it cannot utilize or harvest the resources, it
must grant access to other states.

Delimitation of the overlapping exclusive economic zone between adjacent
states is determined by agreement/treaty.
VIII.
Continental/Archipelagic Shelf

Continental/archipelagic/insular shelf for archipelagos refer to:

Seabed and subsoil of the submarine areas adjacent to the coastal
state BUT outside the territorial seas, up to a depth of 200m or,
beyond that, to where the depth allows exploitation.

Seabed and subsoil of areas adjacent to islands.

Coastal state has the right to explore and exploit its natural resources, to
erect installations as needed and to erect a safety zone over its installations
with a radius of 500m.

This application does not affect the right of navigation of others. Moreover,
the right does not extend to non-resource material on the shelf area such as
wrecked ship and their cargoes.
IX.
The Deep Seabed: “The Common Heritage of Mankind”

Includes: Areas of the seabed, ocean floor and its subsoil, which lie beyond
any national jurisdiction. Being the common heritage of mankind, it may not
be appropriated by any state or person.
X.
Islands

Bays

VI.
Fr. Joaquin Bernas | MANIEGO, A2012
Naturally formed area of land, surrounded by water. It is above water at high
tide.
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


XI.
Its territorial sea, contiguous zones and continental shelf shall be determined
in accordance with the provisions of the Convention applicable to other land
territory.
Rocks which cannot sustain human habitation or economic life of their own
shall have no exclusive economic zone or continental shelf.

There is no clear definition in PIL of “economic life”
Artificial islands or installations are not islands, but may be subject to safety
zones which coastal states may establish around them. Safety measures
may also be prescribed.
High Seas

Article I, Geneva Convention: High Seas—all parts of the sea that are not
included in the territorial sea or in the internal waters of a State.

Subject to six freedoms:

Freedom of navigation

Freedom of overflight (belonging to both civil and State aircraft)

Freedom of fishing

Freedom to lay submarine cables and pipelines

Freedom to construct artificial islands and structures

Freedom of scientific research

First four are from the 1958 Convention of the High Seas and the last two
were added by the 1982 LOS, but the latter two are subject to restrictions.

The flag state has exclusive jurisdiction over its ships on the high seas to the
extent not limited by agreement because by legal fiction, a ship is a “floating”
part of the flag state.

Freedom of fishing is qualified by the duty to cooperate in taking measures to
ensure the conservation and management of the living resources of the high
seas.

Article 86: “The six freedoms apply to all parts of the sea not included in the
EEZ, in the territorial sea or the internal or archipelagic waters of a state.”
However, this is not an indication of what constitutes high seas, because the
EEZ is not a part of the territorial sea.

Doctrine of Hot Pursuit: Where there is good reason to believe that a foreign
vessel has violated laws or regulations of a coastal state, hot pursuit is
allowed. However, the pursuit must commence when the foreign vessel is
within internal waters, archipelagic waters or territorial waters, or the
contiguous zone, and may be continued without interruption if it enters into
the high seas. If the foreign vessel is in the contiguous zone, it may be
pursued only for violations of the coastal state in the contiguous zone.

Hot pursuit must stop when the ship pursued enters the territorial
waters of its own state or that of a third party.

Hot pursuit may be carried out by warships or military aircraft.

The I’m Alone case (AJIL): WON the US is liable for the sinking of a
vessel on the basis of hot pursuit. Ruling: Although the hot pursuit
was justified, the sinking of the vessel was not, and the US must
pay damages and apologize to the Canadian government.

Settlement of Disputes: Peaceful settlement is compulsory and required by
law. If a bilateral statement fails, Article 285 requires submission of the
dispute in one of the tribunals clothed with jurisdiction like the International
Fr. Joaquin Bernas | MANIEGO, A2012
Tribunal for the LOS, the ICJ or an arbitral tribunal, constituted under the
Convention.
CHAPTER NINE: JURISDICTION OF STATES
I.
Jurisdiction

The authority to affect legal interests; jurisdiction may follow the powers of
government—there is executive jurisdiction to enforce the norms prescribed,
legislative jurisdiction to prescribe norms of conduct, and judicial jurisdiction,
jurisdiction to adjudicate.

PIL limits itself to criminal not civil jurisdiction, because civil jurisdiction is
subject of conflicts of law or private international law.

Five principles of State jurisdiction:

Territoriality

Nationality

Protective

Universality

Passive Personality

The first three are generally supported in customary law and the fourth has
special circumstances; the fifth does not enjoy wide acceptance.

Jurisdiction may be acquired via treaty.
II.
The Territoriality Principle

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. This is why it is necessary to
determine boundaries.

Rules on boundaries:

Boundary separating two states is determined by acts of the states
expressing their consent to the location.

Thalweg doctrine: If the boundary between two states is a
navigable river, its location is the middle of the channel, without
prejudice to a different arrangement consented to.

If the boundary between two states is a non-navigable river or lake,
its location is the middle of the river or lake, without prejudice to a
different arrangement consented to.

To have jurisdiction, control must be established, along with occupation.

Effects Doctrine: A state has jurisdiction over acts occurring outside its
territory but having effects within it.

Subjective territoriality: A state has jurisdiction to prosecute and
punish crime commenced within the state but completed abroad.

Objective territoriality: A state has jurisdiction to prosecute and
punish crime commenced without the state but completed within its
territory.

The Lotus Case (PCIJ): WON Turkey has jurisdiction over the offense
committed against its vessel, the Boz-Kourt, which collided with a French
steamer, the Lotus, near Constantinople, Turkey, causing the death of 8
Turkish national sailors. By virtue of filing criminal proceedings against Lt.
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Demons, the officer in charge of the Lotus at the time of the collision, it is
contended by France that Turkey has violated international law; in reply,
Turkey alleged that no principle of IL conflicts with the act. Ruling: The Court
held that there is no rule in PIL prohibiting the State to which the ship on
which the effects of the offense have taken place belongs from regarding the
offense as having been committed within its territory and capable of
prosecution. While this can be overturned by showing a rule of customary law
which conflicts with it, France has not proven such. Therefore, there is no
rule. The Court therefore rules that it is a case of concurrent jurisdiction.



III.
Jurisdiction over foreign vessels in the Philippines:

French rule: Crimes committed aboard a foreign merchant vessel
should not be prosecuted in the courts of the country within whose
territorial jurisdiction they were committed unless the commission
affects the peace and security of the territory.

English rule: Followed in the US; crimes perpetrated under such
circumstances where the territoriality principle is applicable are in
general triable in the courts of the country within whose territory
they were committed. The Philippines adheres to this rule.
Trail Smelter Arbitration: WON Canada is liable to the US for damages
caused by its smelter which produced emissions of sulphur dioxide allegedly
damaging Washington state. Ruling: Yes, Canada is liable for damages since
there was injury caused to the US, because a State owes at all times a duty
to protect other States against injurious acts by individuals from within its
jurisdiction. The smelter is enjoined from causing further damage to the State
of Washington.
The Nationality Principle

Every state has jurisdiction over its nationals, even when those nationals are
outside the state.

Blackmer v. US (US): WON Blackmer was correctly adjudged in
contempt for failure to respond to subpoenas served upon him in
France requiring him to appear as witness in behalf of the US and
WON the statute authorizing the issuance of subpoenas is
repugnant to the Constitution for violation of the due process
clause. Ruling: Even if Blackmer became a resident of France, he
continued to owe allegiance to the United States and the US
retained its authority over him. He was bound by its laws made
applicable to him in a foreign country.

State nationals and the “effective nationality link”: A state has the right to
decide who its nationals are using either the principle of jus sanguinis or jus
soli or naturalization laws. However, before a person can be claimed by a
state as a national, there must be established an effective nationality link.
Consent of the individual alone is not enough.

Nottebohm Case (ICJ): WON Nottebohm, a German national by
birth, constant fixture in Guatemala and newly claimed
Liechtenstein national by naturalization, can be claimed by
Liechtenstein as its national in a case for reparations over the
protests of Guatemala, Ruling: Liechtenstein cannot claim

Nottebohm as its national, despite valid fulfillment of its
naturalization laws because of failure to satisfy the effective
nationality link sufficient for Liechtenstein to extend and exercise
protection for him. Evidence against him: he was a habitual resident
of Guatemala, it being the center of his interests and of his
business activities. Nationality is a legal bond, concerning the
citizen personally, a genuine connection of existence, interests and
sentiments together with the existence of reciprocal rights and
obligations.
Corporations: A state has jurisdiction over corporations organized under its
rules. Other bases: Principal residence/place of business test, control test.
Stateless persons: Those who do not have a nationality. They may be either
de jure or de facto stateless. The former are those who lost their nationality, if
they had one, and have not acquired a new one, while the latter are those
who have a nationality but to whom protection is denied by their state when
out of the state.

Mejoff v. Director of Prisons (90 Phil. 70): WON Boris Mejoff, a
former Russian national who was brought to the Philippines as a
spy for Japanese forces and subsequently detained for two years
because no ship would take him, and he lacked travel documents,
should be released. Ruling: Even if they are stateless, aliens have
no right of asylum, If there is no charge against them, However,
they cannot remain in detention indefinitely. Because he was
brought in by a de facto corporation, his entrance was not illegal.
Mejoff should be released but placed under the surveillance of
qualified immigration authorities.
IV.
The Protective Principle

A state may exercise jurisdiction over conduct outside its territory what
threatens its security so long as that conduct is generally recognized as
criminal by states in the international community.

“Lord Haw Haw:” A decision upholding the conviction of an American citizen
guilty of high treason because of messages he broadcast trying to get the
Allies to surrender. No principle of comity demands that a state should ignore
the crime of treason committed against it outside its territory.

Limitations: Only offenses posing a direct, specific threat to national security.
When applied to terrorist activities, a more liberal approach to the limitation
may be applied.
V.
The Universality Principle

Certain activities, universally dangerous to states and their subjects, require
authority in all community members to punish such acts wherever they may
occur, even absent a link between the state and the parties or the acts in
question.

This principle was started with instances of piracy. Piracy means any illegal
act of violence or depredation committed for private ends on the high seas or
outside the territorial control of any State.
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


Currently covers genocide, crimes against humanity, war crimes, aircraft
piracy and terrorism. Growing support for universal jurisdiction over crimes
against human rights.
Genocide: Acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:

Killing members of the group;

Causing serious bodily or mental harm to members of the group;

Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;

Imposing measures intended to prevent births within the group;

Forcibly transferring children of the group to another group.
Crimes against humanity: Any of the following acts when committed as part
of a wide-spread or systematic attack (where “attack directed against any
civilian population” means the multiple commission of the following acts
against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such an attack) against any civilian population
with knowledge of the attack:

Murder;

Extermination – includes intentional infliction of conditions of life,
the deprivation of access to food and medicine, calculated to bring
about the destruction of part of a population;

Enslavement – the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of
such power in the course of trafficking persons, in particular women
and children;

Deportation or forcible transfer of population – forced displacement
of the persons concerned by expulsion or other coercive acts from
the area in which they are lawfully present, without grounds
permitted under int’l law;

Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;

Torture – intentional infliction of severe pain or suffering, physical or
mental, upon a person in the custody or under the control of the
accuser; does not include pain or suffering arising from, inherent, or
incidental to lawful sanctions;

Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of
comparable gravity – forced pregnancy is the unlawful confinement
of a woman forcibly made pregnant with the intent of affecting the
ethnic composition of any population;

Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, or other grounds – intentional and severe
deprivation of fundamental rights contrary to int’l law by reason of
the identity of the group or collectivity;

Enforced disappearance of persons – arrest, detention or abduction
of persons by, or with the authorization, support, or acquiescence
of a State or a political organization, followed by a refusal to
acknowledge that deprivation of freedom or to give information on
the fate or whereabouts of those persons, with the intention of
Fr. Joaquin Bernas | MANIEGO, A2012

VI.
removing them from the protection of the law for a prolonged period
of time;

Apartheid – inhumane acts committed in the context of an
institutionalized regime of systematic oppression and domination by
one racial group over any other racial group with the intention of
maintaining that regime.

Other inhumane acts of a similar character intentionally causing
great suffering, or serious injury to body or to mental or physical
health.
War crimes: Grave breaches of the Geneva Conventions of 1949.

Filartiga v. Pena-Irala (F.2D US): WON the US Court has jurisdiction over a
case concerning the wrongful death of a 17-year old tortured to death in
Paraguay, brought by two nationals of Paraguay, on the basis of the Alien
Tort Act. Ruling: Yes, it has jurisdiction, claiming the universality principle.
The requisites of torture require it to be committed by one in an official
capacity, and its prohibition has become part of customary international law.
Several declarations and documents, including the Universal Declaration of
Human Rights, have created an expectation of adherence among its member
states.

Eichmann Cases (Courts of Israel): WON Israel has jurisdiction to try the
case of a high-ranking SS officer on the basis of the Nazi Collaborator’s Law,
a law intending retroactive application, despite the acts being committed
outside its borders by a person who is not a national. Ruling: The power of
Israel to enact the law is based on a dual foundation—the universal character
of the crimes in question and their specific character as intended to
exterminate the Jewish people. The offense of genocide is a grave offense
against the law of nations itself (delicta juris gentium) and is the gravest type
of act against humanity. In this case, it is a just retroactive law. As to the
universality principle, power is vested in every State regardless of the fact
that the offence was committed outside its territory by a person who did not
belong to it, provided he is in its custody at the time he is brought to trial.
The Passive Personality Principle

Asserts that a state may apply law—particularly criminal law—to an act
committed outside its territory by a person not a national where the victim of
the act was its national.

The principle is not accepted for ordinary torts or crimes, but it is increasingly
accepted as applied to terrorist attacks and other organized attacks on a
state’s nationals on the basis of their nationality.

US v. Fawiz-Yunis (Federal US): WON the US Court has jurisdiction over a
criminal proceeding against the several Arab men who hijacked a Jordanian
airline on the basis that some of the nationals taken hostage were
Americans. Ruling: Yes, the Court has jurisdiction under the universality
principle and under the passive personality principle. As to the latter, it
recognizes that states have a legitimate interest in protecting the safety of its
citizens when they journey outside national borders. Even though it is the
most controversial of the five sources of jurisdiction, it is agreed that the
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
VII.
Fr. Joaquin Bernas | MANIEGO, A2012
international community recognizes the legitimacy of the Passive Personality
Principle.
Rationale: The reason why this is so frowned upon is because any assertion
of this kind of jurisdiction may subject a country to indefinite criminal liability;
a country may be subject to laws not their own and may be arrested for
committing acts which they do not know to be illegal.
Conflicts of Jurisdiction

Because of the various ways of a state to assume jurisdiction, there may be
instances of conflicting yet valid claims of jurisdiction.

The Balancing Test—Timberlane Lumber Co. v. Bank of America: Tripartite
analysis to determine WON a US Court can assume jurisdiction over an
antitrust claim. If the answer is yes to all of the questions below, the court
assumes jurisdiction.

Was there an actual or intended effect on American foreign
commerce? (There must be an effect before federal courts can
exercise subject matter jurisdiction under the Sherman Act statutes)

Is the effect sufficiently large to present cognizable injury to the
plaintiffs and represent a civil violation of the anti-trust laws? (To
show that there is a greater burden)

Are the interests of and link to the US including effects on American
foreign commerce sufficiently strong, versus those of other nations,
to justify an assertion of extraordinary authority?

Balancing test:

Degree of conflict with foreign law or policy

The nationality or allegiance of the parties the locations or principal
places of business of corporation

The extent to which enforcement by either state can be expected to
achieve compliance

The relative significance of effects on the U.S. as compared with
those elsewhere

The extent to which there is explicit purpose to harm or affect
American commerce, the foreseeability of such effect

The relative importance to the violations charged of conduct with
the US as compared with conduct abroad.

International comity—Hartford Fire Insurance Co. v. California: Even when a
state has basis to exercise jurisdiction, it will refrain from doing so if its
exercise will be unreasonable.

Unreasonableness is determined by evaluating various factors—
link of the activity to the territory of the regulating state, the
connection (such as nationality, residence, economic activity)
between the regulating state and the person principally responsible
for the activity to be regulated, the character of the activity to be
regulated, the existence of justified expectations that might be
regulated, the existence of justified expectations that might be
protected or hurt by the regulation, the likelihood of conflict with
regulation by another state.

Forum non conveniens—Piper Aircraft Co. v. Reyno: Discretionary
application of the court. Applies when, in the circumstances of the case, it be
discovered that there is a real unfairness to one of the suitors in permitting
the choice of a forum which is not the natural or proper forum, either on the
ground of convenience of trial or the residence or domicile of parties or of its
being the locus contractus or locus solutionis, then the doctrine of forum non
conveniens is properly applied.

The court needs to weigh the private interest and the public interest
factors.

The private interest factors are:
•
Access to sources of proof
•
Availability of compulsory process for unwilling witnesses
•
Other personal problems which make trial easy,
expeditious, and inexpensive.

The public interest factors are:
•
Congestion
•
Desire to settle local controversies at home
•
Having the case tried in a forum at home with the
applicable law.
VIII.
Extradition

The surrender of an individual by the state within whose territory he is found
to the state under whose laws he is alleged to have committed a crime. It is a
process governed by treaty, and the legal right to demand extradition and the
correlative duty to surrender a fugitive exist only when governed by treaty.
Extradition is normally done through diplomatic channels.

No state is obliged to extradite unless there is a treaty.

Differences in legal system can be obstacles to interpretation of
what the crime is

Religious and political offenses are not extraditable.

US v. Alvarez-Machain (US): WON the US Court has jurisdiction over Alvarez
who is indicted for participation in the kidnap and the murder of a DEA agent
and Mexican pilot. Ruling: Yes, they do. The forcible abduction of Alvarez did
not violate the extradition treaty between US and Mexico because nothing in
the treaty proscribes forcible abduction because it does not specify the ways
by which a State may gain custody of a national of the other country for the
purposes of prosecution.

Due Process in Extradition: Secretary of Jusice v. Lantion: WON notice and
hearing are essential during the evaluation stage of the proceedings. Ruling:
There is no provision in the RP-US Extradition Treaty that gives the right to
demand copies of the extradition requests. The likening of an extradition to a
criminal procedure is not persuasive because an extradition is sui generis
and does not involve the determination of guilt.

Bail in Extradition Cases: A court may grant bail after the determination by
the court that (1) he/she is not a flight risk, and (2) There exist special,
humanitarian and compelling circumstances. (Rodriguez v. Judge)

Lately, the Court overturns stare decisis in favor of the growing
importance of the individual person in PIL, who has attained global
recognition, the higher value being given to human rights in the
international sphere.

If bail can be granted in deportation proceedings, there is no
justification not to allow it for extradition because both are
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Fr. Joaquin Bernas | MANIEGO, A2012
administrative proceedings where the innocence or guilt of the
parties is not in issue.
commodities for diplomacy or war. Today, however, it has become
commonplace for the State to enter into the free market and even
enter into direct competition with their own nationals. It must follow
that the immunity that initially developed has ceased to become
applicable.
CHAPTER TEN: IMMUNITY FROM JURISDICTION
I.
Immunity

General rule: The jurisdiction of a state within its territory is complete and
absolute

Exceptions: Sovereign immunity and diplomatic immunity
II.
Head of State Immunity

Immunity is enjoyed by the head of state and by the self itself. While the head
of State is sitting, the immunity is absolute.

Mighell v. Sultan of Johore: WON the Sultan of Johore can be sued for
breach of promise to marry. Ruling: The Court ruled that the subject matter of
the case was a private matter, and upon verification of the Sultan’s foreign
sovereignty, the case was dismissed because the immunity of heads of state
was recognized.

Pinochet Case (UK): WON a former Head of State can enjoy immunity
rationae materiae in relation to acts done by him as Head of State. Ruling:
The immunity for former heads of state shields only acts which were done in
an official or governmental capacity. It cannot be said that international crime
against humanity and jus cogens can ever be done in a governmental
capacity; therefore, upon relinquishment of his seat, a head of state may be
liable to be called to account if there is evidence that he authorized or
perpetrated serious international crimes. It is also argued that absolving
Pinochet on the basis of immunity RM would circumvent the system of
making people liable for the international crime of torture.


State Immunity: “The state may not be sued without its consent”

Found in both municipal and international law.

Based on the principle of equality of states—par in parem non
habet imperium.

The Schooner Exchange case: “The nation within its own territory is
necessarily exclusive and absolute; however, absolute sovereignty
does not include the presence of foreign sovereigns nor their
sovereign rights as its objects.”

The immunity of the sovereign head is also communicated to the
foreign sovereign state. Every sovereign is understood to waive the
exercise of a part of that complete exhaustive territorial jurisdiction,
which is the attribute of every nation.
Acts jure imperii v. Acts jure gestionis: The distinction drawn between acts
jure imperii (governmental acts) and acts jure gestionis (trading and
commercial acts) are elaborated on in Dralle v. Czechoslovakia.

Dralle case (Austria): It can no longer be said that acts jure
gestionis are exempt from municipal jurisdiction. The immunity as
regards acts jure gestiontis, when the State’s actions as regards
trading and commercial activity were usually limited to commercial
acts, developed out of political activities such as the purchase of
III.

Traditional rule on State Immunity exempts a state from being sued in the
courts of another State without its consent or waiver. A State’s commercial
activity is a descent to the level of individuals and there is a form of tacit
consent to be sued when it enters into business contracts with others.

Holy See v. Eriberto Rosario, Jr. However, not every contract
entered into is a form of tacit consent to be sued. It depends upon
whether the foreign state is engaged in the activity in the regular
course of business. If not, or it is in pursuit of a sovereign activity, it
falls within the exemption of acts jure imperii especially when not
intended for gain or profit.

A state claiming sovereign immunity must request the Foreign
Office of the state where it is sued to convey to the Court that said
defendant is entitled to immunity.

A party who feels transgressed by anyone claiming immunity may
ask his own government to espouse his cause through diplomatic
channels.

Republic of Indonesia v. Vinzon: WON the Republic of Indonesia,
represented by Chief of Administration, Minister Counsellor Kasim, enjoys
immunity in a case concerning a maintenance agreement. Ruling: The Court
ruled in favor of Indonesia, and stated that international law is founded on
principles of reciprocity, comity, independence and equality of States. The
existence alone of a paragraph in the maintenance agreement allowing for
certain actions to be tried in a venue does not constitute a waiver of
sovereign immunity from suit.
Diplomatic and consular immunities

Vienna Convention on Diplomatic Relations governs diplomats, or those
concerned with the political relations of states. Immunities and privileges
enjoyed stem not from sovereignty but to be able to perform his or her
functions properly.

Diplomatic immunity is enjoyed by:

Head of the mission – the person charged by the sending State
with the duty of acting in that capacity;

Members of the mission – the head of the mission and the
members of the staff of the mission;

Members of the staff of the mission – the members of the
diplomatic, administrative, technical and service staff of the
mission;

Members of the diplomatic staff – members of the staff of the
mission having diplomatic rank;

Diplomatic agent – head of the mission or a member of the
diplomatic staff of the mission
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Members of the administrative and technical staff – members of the
staff of the mission employed in the administrative and technical
service of the mission;

Members of the service staff – members of the staff of the mission
in the domestic service of the mission;

Private servant – a person who is in the domestic service of a
member of the mission and who is not an employee of the sending
State;

Premises of the mission – buildings or parts of the buildings and the
land ancillary thereto, irrespective of ownership, used for the
purposes of the mission, including the residence of the head of the
mission.
Functions of the diplomatic mission:

Representing the sending State in the receiving State;

Protecting in the receiving State the interest of the sending State
and of its nationals, within the limits permitted by international law;

Negotiating with the government of the receiving State;

Ascertaining by all lawful means conditions and developments in
the receiving state, and reporting thereon to the Government of the
sending State;

Promoting friendly relations between the sending State and the
receiving State, and developing their economic, cultural and
scientific relations.
Establishment of diplomatic relations:

Relations are established by mutual consent. Agreements must first
be obtained before the head of a mission is sent to the receiving
State. The receiving state is not obliged to give reasons for refusing
an agreement and, at any time and without need to give
explanations, upon notice to the sending state, may declare the
head of mission or any member of the diplomatic mission as
persona non grata. A person declared persona non grata is
declared as not acceptable, and the sending State shall recall the
person or terminate his functions.
Fr. Joaquin Bernas | MANIEGO, A2012




IV.
It is the duty of all persons enjoying the privileges and immunities of
diplomats to respect the laws and regulations of the receiving State.
Consuls and Consular immunities

Consuls are not concerned with political matters but with administrative and
economic issues, such as the issuance of visas.

Functions of Consuls:

1. Protecting in the receiving State the interests of the sending
State and of its nationals, within the limits permitted by int’l law;

2. Furthering the development of commercial, economic, cultural,
and scientific relations between the sending state and the receiving
state and promoting friendly relations between them;

3. Ascertaining all lawful means, conditions, and developments in
the commercial, economic, cultural, and scientific life of the
receiving State, reporting thereon to the Government of the sending
state and giving information to interested persons;


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
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
4. Issuing passports and travel documents to nationals of the
sending State, reporting thereon to the Government of the sending
State, and visas or appropriate documents to persons wishing to
travel to the sending State;
5. Helping and assisting nationals of the sending State;
6. Acting as notary and civil registrar;
7. Safeguarding the interests of national of the sending State in
case of succession mortis causa in the territory of the receiving
State;
8. Safeguarding the interests of minors and other persons lacking
full capacity who are nationals of the sending State, particularly
where any guardianship or trusteeship is required;
9. Representing or arranging appropriate representation for
nationals of the sending state before the tribunals and other
authorities of the receiving state to preserve their rights and
interests;
10. Transmitting judicial and extra-judicial documents or executing
letters rogatory or commissions to take evidence for the courts of
the sending state;
11. Exercising rights or supervision and inspection in respect of
vessels having the nationality of the sending state and or aircraft
registered in that state and in respect of their crews;
12. Extending assistance to vessels and aircraft mentioned above
and to their crews, taking statements regarding the voyage of a
vessel, examining and stamping the ship’s papers, and conducting
investigations into any incidents which occurred during the voyage
and settling disputes between master, officers, and seamen;
13. Other functions entrusted by the sending state not prohibited by
the laws and regulations of the receiving state or to which no
objection is taken by the receiving state or which are referred to in
the international agreements in force.
Act of State Doctrine

Local courts cannot pass upon the validity of the acts of a foreign
state; Judicial restraint in domestic law in deference to the
executive who is the principal architect of foreign relations.

All acts concerning the act of State doctrine concern political and
legislative acts, but never judicial.


Underhill v. Hernandez: WON Underhill is entitled to damages from
Hernandez based on the latter’s refusal to grant him a passport to
leave the country and on the assertions that he had been kept in
detention by Hernandez. Ruling: Underhill is not entitled to
damages because of the “act of state doctrine” Courts of one state
will not sit in judgment on the acts of the government of another,
done within its own territory.
Dunhill v. Cuba: WON Cuba’s failure to return the overpayment
made by Dunhill on cigars can be considered as an act of state.
Ruling: No, it is not an act of state. An act of state cannot extend to
include the repudiation of a purely commercial obligation.
Page 24 of 42
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

Kirkpatrick Co. v. Environmental Tectonics Corporation: WON
Kirkpatrick & Co. can get the case (where he is accused of bribing
Nigerian officials to win a bidding war contrary to the Foreign
Corrupt Practices Act) against it dismissed by invoking the act of
State doctrine. Ruling: No, it cannot be invoked. It is not the validity
of a foreign act at issue; the act of state doctrine does not establish
exceptions for controversies, but merely requires that acts of
foreign sovereigns within their jurisdictions shall be deemed valid.
Provincial Government v. Placer Dome: WON the district court had
jurisdiction over the case based upon the act of state doctrine such
that removal from state to federal court was proper (on the grounds
that, by raising the act of state doctrine, the case would be moved
to the federal court from the district court because it tendered
questions of international law and foreign relations.) Ruling: The
Court reverses the decision of the district court, which was done
pursuant to a claim by Placer Dome. It must be shown on the
plaintiff’s complaint that it is attacking the validity of any act of a
foreign state, or else a rejection of the act of state doctrine is
proper. None of the supposed acts of state identified by the district
court as justification to raise it to the federal court is essential to the
claim of Province. Nothing in the complaint would require a
court to pass judgment on any official act of the Philippine
government. “Just as raising the specter of political issues cannot
sustain dismissal under the political question doctrine, neither does
a general invocation of international law or foreign relations mean
that an act of state is an essential element of a claim.” It cannot be
thought that every case touching foreign relations lies beyond
judicial cognizance.
APPENDICES—CHAPTER TEN: IMMUNITY FROM JURISDICTION

Rights and privileges of diplomats:

Article 22 – Inviolability of Premises of the Mission:
•
The premises of the mission shall be inviolable. Agents of
the receiving State may not enter them, except with the
consent of the head of the mission.
•
The receiving State is under a special duty to protect the
premises of the mission against any intrusion or damage
and to prevent any disturbance of the peace of the
mission or impairment of its dignity.
•
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.

Article 23 – Exemption from Property Taxes:
•
The sending State and head of the mission shall be
exempt 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.
Fr. Joaquin Bernas | MANIEGO, A2012
Exemption from taxation is NOT applicable to dues and
taxes payable under the law of the receiving State by
persons contracting with the sending State or the head of
the mission.
Article 24 – Inviolability of Archives and Documents
•
Archives and documents of the mission shall be
inviolable at any time and wherever they may be.
Article 27 – Inviolability of Official Correspondence
•
The receiving State shall permit and protect free
communication on the part of the mission for all official
purposes. The mission may employ all appropriate
means, including diplomatic couriers and messages in
code or cipher. However, the mission may install and use
a wireless transmitter only with the consent of the
receiving state.
•
Official correspondence of the mission shall be inviolable.
Official correspondence means all correspondence
relating to the mission and its functions.
•
The diplomatic bag shall not be opened or detained.
•
Packages constituting the diplomatic bag must bear
visible external marks of their character and may contain
only diplomatic documents or articles intended for official
use.
•
The diplomatic courier shall be protected by the receiving
State in the performance of his functions. He shall enjoy
personal inviolability and shall not be liable to any form of
arrest or detention.
•
The sending State of the mission may designate
diplomatic couriers ad hoc who shall enjoy the immunities
of a diplomatic courier until he has delivered to the
consignee the diplomatic bag in his charge.
Article 29 – Inviolability of Person of the Diplomatic Agent
•
The person of a diplomatic agent shall be inviolable. He
shall not be liable to any form of arrest or detention. The
receiving state shall treat him with due respect and shall
take appropriate steps to prevent any attack on his
person, freedom or dignity.
Article 30 – Inviolability of the Private Residence, Papers,
Correspondence, and Property of the Diplomatic Agent
•
Same protection granted to the residence, papers,
property, and correspondence of the diplomatic agent as
that granted to the premises of the mission.
Article 31 – Immunity from Criminal, Civil, and Administrative
Jurisdiction
•
A diplomatic agent shall enjoy immunity from the criminal
jurisdiction of the receiving State.
•
He shall also enjoy immunity from its civil and
administrative jurisdiction EXCEPT:
o
a. in real actions relating to private immovable
property situated in the territory of the receiving
•
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State, unless he holds it on behalf of the
sending State for the purposes of the mission;
o
b. in actions relating to succession in which the
diplomatic agent is involved as executor,
administrator, heir, or legatee as a private
person;
o
c. in actions relating to any professional or
commercial activity exercised by the diplomatic
agent in the receiving State outside of his
official functions.
•
A diplomatic agent is not obliged to give evidence as a
witness.
•
A diplomatic agent is exempt from execution except if the
case falls under the three exceptions under #2, and
provided that the measures of execution can be taken
without infringing the inviolability of his person or his
residence.
•
The diplomatic agent is not exempt from the jurisdiction
of the sending state.
Article 32 – Waiver of Immunity
•
Immunity from jurisdiction of diplomatic agents and of
persons enjoying immunity under Art. 37 may be waived
by the sending State.
•
Waiver must be express.
•
The initiation of proceedings by a diplomatic agent or by
a person enjoying immunity from jurisdiction under Art.
37 shall preclude him from invoking immunity in respect
of any counter-claim directly connected with the principal
claim.
•
Waiver of immunity in respect of civil or administrative
proceedings shall not be held to imply waiver of immunity
from execution of the judgment, for which a separate
waiver is necessary.
Article 33 – Exemption from Social Security Provisions
•
A diplomatic agent shall be exempt from social security
provisions with respect to services rendered for the
sending state.
•
The exemption also applies to private servants who are
in the sole employ of a diplomatic agent, provided:
o
a. that they are not nationals or permanent
residents of the receiving state; and
o
b. they are covered by the social security
provisions in force in the sending state or a
third state.
•
A diplomatic agent who employs persons to whom the
exemption in #2 does not apply, shall not be exempt from
social security provisions of the receiving state imposed
upon employers.
Fr. Joaquin Bernas | MANIEGO, A2012
But the diplomatic agent can voluntarily participate in the
social security system of the receiving state, provided
that it is permitted by the receiving state.
Article 34 – Exemption from Taxation
•
A diplomatic agent shall be exempt from all dues and
taxes, personal or real, national, regional or municipal,
EXCEPT:
o
Indirect taxes normally incorporated in the
price of goods or services;
o
Dues and taxes on private immovable property
situated in the territory of the receiving state,
unless held on behalf of the State for the
purposes of the mission;
o
Estate, succession, or inheritance tax;
o
Dues and taxes on private income derived
within the State and capital taxes on
investments made in commercial undertakings
in the receiving State;
o
Charges levied for specific services rendered;
o
Registration, court or record fees, mortgage
dues, and stamp duty with respect to
immovable property.
Article 36 – Exemption from Customs Duties
•
The following are exempt from customs duties, taxes and
other related charges for storage, cartage, and other
similar services:
o
a. articles for official use of the mission;
o
b. articles for the personal use of a diplomatic
agent or members of his family forming part of
his household, including articles intended for
his establishment.
•
Personal baggage of a diplomatic agent shall be exempt
from inspection unless there are serious grounds to
presume that it contains articles not covered by the
exempted items above, or that are prohibited or
controlled by quarantine regulations of the receiving
State. The inspection shall be conducted only in the
presence of the diplomatic agent or his authorized rep.
Article 37 – Immunity of members of the family and other staff
•
Members of the family of a diplomatic agent forming part
of his household shall, if they are not nationals of the
receiving State, enjoy the privileges and immunities in
Articles 29-36.
•
Members of the admin and technical staff of the mission,
together with their family members, who are not nationals
or permanent residents of the receiving state shall enjoy
the immunities under Articles 29-35, except that the
immunity from civil and administrative jurisdiction shall
not extend to acts performed outside the course of their
duties. They shall also enjoy the privileges under Art. 36,
•
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in respect of articles imported at the time of first
installation.
•
Members of the service staff of the mission who are not
nationals or permanent residents of the receiving State
shall enjoy immunity in respect of acts performed in the
course of their duties, exemption from dues and taxes on
the emoluments received by reason of their employment,
and the exemption granted in Art. 33.
•
Private servants or members of the mission who are not
nationals or permanent residents in the receiving State
shall be exempt from dues and taxes on emoluments
received by reason of their employment. In other
respects, they may enjoy privileges and immunities to the
extent admitted by the receiving State.
Article 38 – Immunity of Diplomatic Agents who are Nationals of
Permanent Residents of the Receiving State
•
If the receiving State grants additional privileges and
immunities, a diplomatic agent who is a national of or
permanent resident in the State shall enjoy only immunity
from jurisdiction and inviolability in respect of official acts
performed in the exercise of his functions.
•
Immunity or other members of the staff of the mission
and private servants who are nationals or permanent
residents: Only to the extent admitted by the receiving
state. But state must exercise its jurisdiction without
unduly interfering with the performance of the functions of
the mission.
Article 39 – Commencement and Termination of the Immunities
•
The immunities commence from the moment the person
enjoying the immunities enters the territory of the
receiving State on proceeding to take up his port or, if
already in its territory, from the moment when his
appointment is notified to the Ministry of Foreign Affairs.
•
They end when the functions of a person enjoying
immunity have come to an end, the immunities 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.
•
With respect to acts performed by the person in the
exercise of his functions as a member of the mission,
immunity shall continue to subsist.
Article 41 – Duty of Persons Enjoying Immunity
•
Duty is to respect the laws and regulations of the
receiving State.
Article 42 – Prohibitions
•
They may not practice for personal profit any professional
or commercial activity in the receiving State.
Rights and privileges of Consuls:

Article 34 – Freedom of Movement
Fr. Joaquin Bernas | MANIEGO, A2012
Subject to its laws and regulations concerning zones
entry into which is prohibited or regulated for reasons of
national security, the receiving state shall ensure
freedom of movement and travel in its territory to all
members of the consular post.
Article 35 – Freedom of Communication
•
The receiving State shall permit and protect free
communication on the part of the consular post for all
official purposes. The mission may employ all appropriate
means, including diplomatic or consular couriers,
diplomatic or consular bags, and messages in code or
cipher. However, the consular post may install and use a
wireless transmitter only with the consent of the receiving
state.
•
Official correspondence of the consular post shall be
inviolable.
Official
correspondence
means
all
correspondence relating to the consular post and its
functions.
•
The consular bag shall not be opened or detained. But if
the competent authorities of the receiving state have
serious reason to believe that the bag contains
something other than the correspondence, documents or
articles, they may request that the bag be opened by an
authorized rep of the sending state. If the request is
refused, the bag shall be returned to its place of origin.
•
Packages constituting the consular bag must bear visible
external marks of their character and may contain only
diplomatic documents or articles intended for official use.
Article 36 – Communication and Contact with Nationals of the
Sending State
•
Consular officers shall be free to communicate with
nationals of the sending state and to have access to
them. Nationals of the sending state shall have the same
freedom to communicate and to access consular officers
of the sending state.
•
If he so requests, the competent authorities of the
receiving state shall, without delay, inform the consular
post of the sending state if a national of that state is
arrested or committed to prison or to custody pending
trial or is detained in any other manner. Any
communication addressed to the consular post by the
person arrested shall be forwarded by the authorities
without delay;
•
Consular officers shall have the right to visit a national of
the sending state who is in prison, custody, or detention,
to converse and correspond with him and to arrange for
his legal representation. They shall also have the right to
visit any national of the sending state who is in prison,
custody or detention in their district in pursuance of a
judgment. Nevertheless, consular officers shall refrain
•
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Fr. Joaquin Bernas | MANIEGO, A2012
from taking action on behalf of a national who is in prison,
custody or detention if he expressly opposes such action.
Article 41 – Personal Inviolability of Consular Officers
•
Consular officers shall not be liable to arrest of detention
pending trial EXCEPT in the case of a grave crime and
pursuant to a decision by the competent judicial authority.
Article 42 – Notification of Arrest, Detention, or Prosecution
•
If a members of the consular staff is arrested or detained,
the receiving state shall notify the head of the consular
post.
Article 43 – IMMUNITY FROM JURISDICTION
•
Consular officers and employees shall be immune from
jurisdiction of the judicial and administrative authorities of
the receiving State in respect of acts performed in the
exercise of consular functions.
•
NO IMMUNITY in civil cases, which:
o
a. arise out of a contract concluded by the
consular officer or employee in which he did
not contract expressly or impliedly as an agent
of the sending state;
o
b. are instituted by a third party for damage
arising from accidents in the receiving state
caused by a vehicle, vessel, or aircraft.
Article 44 – Liability to Give Evidence
•
Members of a consular post may be called upon to attend
as witnessed in judicial or administrative proceedings.
•
A consular employee or a member of the service staff
shall not decline to give evidence.
•
If a consular officer should decline to do so, no coercive
measure or penalty may be applied to him.
Article 45 – Waiver of Privileges and Immunities
•
The sending state may waive the privileges and
immunities.
Page 28 of 42
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Fr. Joaquin Bernas | MANIEGO, A2012
of their shareholdings in Barcelona Traction, which was
incorporated in Canada, because the breach (if any) was
committed against the corporation and not against the
shareholders, and only the company could protect its own
interest. To be different, the act must be directed against the
rights of the shareholder as such.
CHAPTER ELEVEN: STATE RESPONSIBILITY
I.
II.
In General
 Individuals are generally considered as “objects” and not “subjects” of
international law. Any wrongs committed against them can only be
redressed by states with international personality.
 They possess no international legal rights to assert on their own.
However, individuals may be the subject of state v. state litigation.
Protection of Aliens
 General: As an aspect of sovereignty, no state is obliged to admit aliens
into its territory unless a treaty requires it. However, practically speaking,
it is difficult to deny admission to all. Therefore, what a state does is to
impose legal standards for admission.
• Once an alien is admitted into a state, he/she cannot be
expelled without due process.


Proper treatment of aliens: They are considered “nationals abroad” and
remain under its own state’s protection.
• Practice of proper treatment of aliens is based on the
commonality of interests between states, in the expectation
that a State’s own nationals will be protected when residing or
sojourning abroad.
• Mistreatment of nationals is a common cause of international
responsibility
• Various forms of ill-treatment: Mistreatment by judicial or police
authorities, unlawful expropriation of property, failure to
prosecute those who attack foreign nationals, or a denial of
justice (denial of due process of the law).
• Diplomatic Protection: Well-developed customary law which is
based on the traditional notion that the individual is an
inappropriate subject of international law and must have
recourse to his state for protection. Another applicable theory is
that injury to the state national is injury to the state itself. This
keeps individuals at the mercy of their state, because the latter
enjoys discretion as to whether or not to prosecute the claims
of its national. This doctrine requires the satisfaction of the
“effective national link” between the national and the state.
Corporations and shareholders: It is the state of nationality of the
corporation who has the right to protect the corporation and not the state
nationality of its shareholders.
• Barcelona Traction Case (Belgium v. Spain): WON Belgian
nationals/shareholders of a company incorporated in Canada
could claim reparation for damages against Spain when the
latter state declared it to be bankrupt. The Court held that the
Belgians lacked legal standing to exercise diplomatic protection
III.

Standard for the Protection of Aliens: International law has progressed
from not affording aliens protection to Roman law, which came up with
the concept of jus gentium (a law for both citizens and aliens) as distinct
from jus civile (only for citizens). The rights of aliens expanded with the
growth of international commerce.
• “National treatment” or “equality of treatment”: Aliens are
treated in the same manner as nationals of the state where
they reside. The disadvantage to this is that a state may treat
its own nationals oppressively, which would make aliens
subject to harsh laws as well.
• Minimum international standard: However harsh municipal law
may be, aliens should be protected by certain minimum
standards of humane protection. This is the widely accepted
standard.
 Neer Claim (US v. Mexico, Joint Claims
Commission): WON Mexico was negligent in the
investigation of the murder of a US national who was
stopped by armed men and shot to death while
working in Mexico. The Commission held that the
treatment of an alien, to constitute international
delinquency, should amount to an outrage, bad faith
or wilful neglect of duty, or to an insufficiency of
governmental action short of international standards.

Enforcement Regimes: ICJ may resolve issues of violations of the rights
of aliens, but claims may also be settled by ad hoc tribunals established
for the purpose, like the US-Iran Claims Tribunal and the UN
Compensation Commission. States may also enter into lump sum
settlements.
Doctrine of State Responsibility
 In General: When an injury has been inflicted, there is need to determine
whether the state can be held responsible for it.
 Internationally Wrongful Act: If a state violated a customary rule of
international law or a treaty obligation, and the act is attributable to the
State under international law, it has committed an “internationally
wrongful act.” Every internationally wrongful act of a State entails the
international responsibility of that State
• Requisites: The elements of an internationally wrongful act, the
attributability of the wrongful act to the state, and the
enforcement of the obligation that arises from the wrongful act.
The characterization of an act of a State as internationally
wrongful is governed by international law.
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• Legal obligations: When a state consents to be part of an
international legal system, it also accepts corresponding legal
obligations. It must accept responsibility for actions which have
effect on other international legal persons. No state can avoid
responsibility when once it has committed an act which
satisfies the requirements of an “internationally wrongful act.”
• An internationally wrongful act consists of a subjective and an
objective element.
 Subjective: The act must be attributable not to
persons or agencies who performed it but to the state
itself.
 Objective: A violation of an international obligation. It
may be either an act or an omission.

State attribution: Acts of state organs, acts of other persons, or the acts
of revolutionaries.

Acts of State Organs: Any State organ (who is accorded that status
according to internal law) which conducts itself in that capacity, entities
empowered by law to exercise elements of governmental authority even if
not considered an organ of the state, persons or a group of persons
acting under the instructions of the State or carrying out acts of a State in
the absence of official authorities, and attribution to the state of the
conduct of organs placed at its disposal by another state, even if they
exceeded authority.
Cases
• Caire Claim (France v. Mexico, French-Mexican Claims
Commission): WON Mexico was responsible for the death of a
French national at the hands of Mexican soldiers. The
Commission (ruling on the objective responsibility) ruled that
Mexico had the responsibility to make reparations because the
soldiers acted to all appearances as competent officials or
organs and used powers or methods appropriate to their official
capacity, even if done without specific authorization.
• Corfu Channel Case (UK v. Albania, ICJ): WON Albania is
responsible for the loss of life suffered by the British when two
of its destroyers struck mines in Albanian waters. The Court
ruled that Albania is responsible, even though it was two
Yugoslav ships who had undertaken to lay the mines, because,
firstly, of the attitude displayed by Albania before and after the
incident, and secondly, the possibility of observing the mine
laying from the Albanian coast. The aforementioned factual
circumstances draw the conclusion that the mines could not
have been laid without Albania’s knowledge and her lack of
notifying the UK ships led to her international responsibility.
• Nicaragua v. US (ICJ): WON the US was involved in the
revolution in Nicaragua to the extent of providing direct support
for the contra forces as well as laying mines in Nicaraguan
ports, among other allegations. The Court, in determining the
closeness of the relationship between the US government to

Fr. Joaquin Bernas | MANIEGO, A2012
the contras would be enough to equate their actions with one
another, ruled that there was a partial dependency may be
inferred but not enough that the US actually exercised a degree
of control to justify the contras as acting on its behalf. For the
US to be responsible, it would have to be proved that the State
had effective control of the operations during the course of the
alleged acts.

Acts of Other Persons: Conduct of a person/group are acts of the State
under international law if the person/group exercised elements of
governmental authority in the absence or default of the official authorities
and in circumstances such as to call for the exercise of those elements of
authority. Conduct of an organ placed at the disposal of a State by
another State is considered an act of the former State under international
law if the organ was acting in the exercise of elements of the
governmental authority of the State at whose disposal it had been placed.
• US v. Iran (ICJ): WON Iran could be made responsible of the
acts of the Muslim Student Followers of the Imam’s Policy
against the United States Embassy. The Court ruled that Iran
was responsible because, being aware of their obligations to
the US protect the embassy and having the means at their
disposal to do so, they failed to protect it.

Acts of Revolutionaries: Conduct of an insurrectional movement shall be
considered an act of that State under international law if it becomes the
new State government. If it succeeds in establishing a new State in part
of the territory of a pre-existing state or in a territory under its
administration, it shall be considered an act of the new State under
international law, without prejudice to the attribution to a State of any
conduct, however related to that of the movement concerned.
• Home Missionary Society Claim (US v. Great Britain, American
and British Claims Arbitration Tribunal): WON Great Britain is
responsible for the loss of life suffered by the US, because their
act of imposing a hut tax on the natives of Sierra Leone caused
a serious and widespread revolt. The Court ruled that Britain
was entitled to impose the tax as an exercise of its sovereignty,
and stated that no government can be held responsible for the
act of rebellious bodies of men committed in violation of its
authority where it is itself guilty of no breach of good faith, or of
no negligence in suppressing insurrection.
• Short v. Iran (US. v. Iran, Iran-US Claims Tribunal): WON
Short, an American national, could claim compensation for
salary and other losses sustained from his expulsion from his
office due to the rise of the Islamic Revolutionary Government.
The Tribunal ruled that Short could not because he failed to
prove that his departure from Iran was due to the wrongful
conduct of the latter, because a successor government is
responsible only for acts imputable to it, and the company
orders expelling Short were done by the supporters of the
revolutionaries.
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
Preliminary Objections: These are things which need to be satisfied
before a state can validly claim standing. Examples are lack of nationality
link and failure to exhaust national remedies.

Reparation: A responsible state is obliged to make full reparation for
injury caused by its internationally wrongful act. This injury shall consist of
any damage, material or moral, arising in consequence of the
internationally wrongful act of a State. The responsible State cannot rely
on municipal law to justify its failure to comply.
• Chorzow Factory Case (Germany v. Poland, PCIJ): WON the
expropriation by Poland of a factory in Chorzow was contrary to
the 1922 Geneva Convention between Germany and Poland,
and if so, if Germany is entitled to reparation for the damage
caused. The Court ruled that the damages to be awarded are
not limited to actual damages sustained by Germany but that
the restitution must wipe out all the consequences of the illegal
act and re-establish the situation which would have existed had
the act not been committed.

Calvo Clause: A provision in a contract to the effect that “under no
condition shall the intervention of foreign diplomatic agents in any matter
related to the contract be resorted to.” This was already rejected in a
case because the right to seek redress is a sovereign prerogative.
Expropriation: Expropriation (the taking of property by the state) can be
an international wrong if done contrary to the principles of international
law. Expropriation must be based on grounds or reasons of public utility,
security, or the national interest recognized as overriding purely individual
or private interests, both foreign and domestic. Just compensation must
be accorded the owner.
Fr. Joaquin Bernas | MANIEGO, A2012
• Third generation: right to peace, clean environment, selfdetermination, common heritage of mankind, development,
minority rights.
II.

CHAPTER TWELVE: INTERNATIONAL HUMAN RIGHTS LAW
I.
In General—From Alien Rights to Human Rights
 Definition of human rights: Rights which are inalienable and fundamental
and essential for life as human beings.
 East v. West: Asian culture believes that human rights is a mostly
Western concept, but the common denominator is the belief that the
individual must be protected and the international community must
contribute to that protection, even if between the two views there is
differing emphases.
• Western/American: emphasis on the individual
• Eastern/Confucian: emphasis on the community
 Western tradition developed from the Natural Law view that some rights
are higher than positive/man-made law and flows from the nature of man
himself, which demands immunities or liberties.
 Three generations of human rights:
• First generation: traditional civil and fundamental rights
• Second generation: social and economic rights
International Bill of Human Rights
 Emergence of an International Bill of Human Rights: Started to rise after
World War II, because of the recognition that the way nations treat
persons under their jurisdiction has become an international concern, not
just domestic. It is said to chip away at the old concept of sovereignty and
recognizes that individuals can be made the subject of international law,
and that they can find protection and remedies within the international
community against their own state.
 UN Charter: Breaking ground for the development of the new
international human rights law. The Charter set down a fundamental
premise of “faith in fundamental human rights in the dignity and worth of
the human person in the equal rights of men and women.”
• Article 1(3): “To achieve international cooperation in solving
international problems of an economic, social, cultural or
humanitarian character and in promoting and encouraging
respect for human rights and for fundamental freedoms for all
without distinction as to race, sex, language or religion.
 Obligations assumed by UN Members:
• Creation of stability and well being necessary for peaceful and
friendly relations among nations based on respect for the
principles of equal rights and self-determination.
• Promotion of higher standards of living, full employment and
conditions of economic and social progress and development
• Advance solutions of international economic, social, health and
related problems and international cultural and educational
cooperation
• Universal respect for and observance of human rights and
fundamental freedoms for all without distinction as to race, sex,
language or religion.
• All Members pledge to take joint and separate action in
cooperation with the Organization for the achievement of the
purposes aforementioned.
 Universal Declaration of Human Rights: First significant milestone in the
internationalization of human rights. It was adopted by the UN General
Assembly on December 10, 1948, not as law but as a “common
standard” for nations to attempt to reach. Its authority is mostly political
and moral.
 Declaration as distinct from Covenant
• International covenant: Meeting of the minds of the contracting
parties on specific duties and obligations they intend to
assume, and the agreement that the undertakings must be
effectively performed. Leaves no doubt about the legal nature
of the provisions it contains.
• Declaration: Admits the presumption that something less than
full effectiveness in terms of law is intended. Dictates moral
rules only. There is no vinculum juris in the agreement.
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III.
Covenant on Civil and Political Rights
 Life, Liberty and Property:
• The Covenant’s provisions on the right to life do not go
beyond what the Philippine Bill of Rights guarantees. However,
it does not say when protected life begins while the Philippines
protects the life of the unborn child from conception.
• There is no right to property in the Covenant, even if there is
one in the Universal Declaration. A respected author states that
it would be difficult to draft a right to property which could gain
universal and general acceptance.
• The Covenant expresses an inclination towards the abolition of
the death penalty but allows its imposition only after conviction
of the most serious crimes. A Second Optional Protocol (which
has not come into force yet) expressly forbids the execution of
any person within a State party’s jurisdiction. The Philippines is
not a party to the Second Optional Protocol, but it has since
disallowed its imposition in RA 9346 (after it initially allowed it
again for the most heinous crimes).
• The Bill of Rights adequately covers what is mentioned in the
Covenant regarding physical liberty and arrests and
detention, such as the rights of the accused. However, the
Covenant is more restrictive as to the publicity of criminal
proceedings where the interests of juvenile persons,
matrimonial disputes or guardianship are at issue, which would
not pass Philippine tests.
• As to compensation in the Covenant, it guarantees that
anyone who are victims of unlawful arrest and miscarriage of
justice shall be compensated according to the law. In the
Philippine Constitution, one is only accorded the right to
compensation pursuant to violations of one’s rights under
investigation.
 Torture, Ill-treatment and Prison Conditions: The Covenant prohibits
torture and other forms of ill-treatment that offend bodily integrity and
personal dignity. Humane prison conditions must also be implemented
(the Philippines requires adequate prison conditions.) The UN Human
Rights Commission says that imprisonment in conditions detrimental to a
prisoner’s health constitutes violation of the Covenant.
 Freedom of Movement: The Covenant guarantees the rights to travel
within the country, to leave the country, and to change one’s residence.
These are limited by law, public health, national security or the rights and
freedoms of others, and those inconsistent with the other rights in the
present Covenant. Unlike in the Philippine Bill of Rights, the Covenant
does not require a court order for the impairment of liberty of abode.
There is a difference between the right to return to one’s country from the
right to leave one’s country. Exile is now prohibited by customary law and
the prohibition of exile may even be jus cogens.
 Legal Personality, Privacy and Right to Family: Difference between “legal
personality” and “capacity to act.” Legal personality belongs to all,
whether citizens or aliens. Capacity to act may not be available to some
Fr. Joaquin Bernas | MANIEGO, A2012
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

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
IV.
by reason of infancy, minority, or insanity. State parties must treat every
human being everywhere as a person before the law, enjoying the
protection of the law and of the forces of the law, with power to have
rights and assume obligations. The Covenant does not say when one
becomes a person but the Philippine Constitution protects the life of the
unborn. However, it does not say if the unborn is a person. The Civil
Code says that the unborn is a person for purposes favorable to him.
Thought, Conscience, Religion, Expression, Political Freedom: The limits
on exercise of the aforementioned rights found in the Covenant are “to
protect public safety, order, health, or morals or the fundamental rights of
others.” The Covenant has express protection of the right of parents in
the matter of religion for their children. An established religion is not
incompatible with the covenant. The Covenant also guarantees freedom
of expression, the right of assembly and petition, and political freedom.
Associations and Unions: The Covenant has a detailed set of provisions
protecting the right to form associations and unions. It is silent about the
right of government employees to form unions.
Minorities: Minorities are accorded the right to enjoy their own culture, to
profess and practice their own religion or to use their own language.
There is no right to secede. The concern for minorities has a two-fold
aspect: 1. 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; and 2. 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.
Self-determination of peoples: Self-determination covers two important
rights: 1. The right freely to determine their political status and freely
pursue their economic, social, and cultural development; and 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. They also have an internal aspect (as to the two rights
aforementioned) and an external aspect (belong to non-self-governing
and Trust Territories).
Optional Protocol on the Covenant on Civil and Political Rights:
Supplement to the Covenant on Civil and Political Rights. The Philippines
has ratified the Protocol and it entered into force in March 1976.
Covenant on Economic, Social and Cultural Rights
 Reasons for division: Ideological and practical reasons.
• Ideological: The contest between Western on the one hand and
socialist and Third World countries on the other. Western
countries found it difficult to apply a treaty containing economic
and cultural rights beyond those guaranteed in the Constitution,
while socialist and developing countries felt that the lack of
economic, social and cultural rights would render civil and
political guarantees meaningless.
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• Practical: It is difficult to implement civil and political guarantees
without the corresponding economic social and cultural rights
and could only be done considering developmental conditions.
Rights guaranteed:
• 1. To work
• 2. To favorable conditions of work
• 3. To form free trade unions
• 4. To social security and insurance
• 5. To special assistance for families
• 6. To adequate standard of living
• 7. To the highest standard of physical and mental health
• 8. To education including compulsory primary education; and
• 9. To the enjoyment of cultural and scientific benefits and
international contacts.
V.
Duty to Implement
 Philippines’ international obligations: The nation is bound, both internally
and to its foreign relations, to bring its laws and practices into accord with
accepted international obligations and not to introduce new laws or
practices which would be at variance with such obligations. Treaty
commitments become part of domestic law. Self-executing provisions of
the Covenants must be implemented in domestic law. Those not selfexecuting must be attended to by necessary steps, in accordance with its
constitutional processes and with the provisions of the Covenant.
 Principle of progressive realization: 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.
 Beyond domestic obligations are international obligations. In the
economic and social fields, the keywords are “cooperation” and
“assistance.” In the civil and political field, this involves participation in the
implementation measures of the UN system.
VI.
International Implementation of Human Rights Law
 Other conventions on human rights: 1948 Genocide Convention, 1966
Convention on the Elimination of all forms of Racial Discrimination, 1979
Convention on the Elimination of all forms of Discrimination against
Women, 1984 Convention against torture and other Cruel, Inhuman,
Degrading Treatment or Punishment, 1989 Rights of the Child
Convention and 1990 Convention on Migrant Workers.
 Customary international human rights law: Some human rights principles
have become customary law, like prohibition against torture, genocide,
slavery and the prohibition of discrimination.
 International implementation:
• Human Rights Commission: Subsidiary organ of ECOSOC
• Confidential Consideration Procedure (1503 Procedure):
Resolution 1503 of the ECOSOC authorizes the Sub-
Fr. Joaquin Bernas | MANIEGO, A2012
Commission on Prevention of Discrimination and Protection of
Minorities to appoint a working group of not more than 5
members to meet once a year in private meetings to consider
all communications 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, which submits its report and recommendation to the
ECOSOC. The procedure is kept confidential until the CHR
decides to make recommendations to the ECOSOC.
• Public Debate Procedure (1235 Procedure): Resolution 1235 of
the ECOSOC authorizes the CHR and its subsidiary
Commission on Prevention of Discrimination and Protection of
Minorities to examine reports relevant to gross violations of
human right and to examine whether the violations reveal a
consistent pattern and thereafter make recommendations to
the ECOSOC.
• The procedure carries out two types of activities:
1. It holds annual public debates in which NGOs are
given the opportunity to identify publicly countryspecific situations which deserve attention.
2. It engages in studies and investigations of particular
situations through the use of various techniques the
Commission might deem appropriate.
• Possible results of these procedures:
1. Embarrassment of countries referred to, that might
generate change in policy;
2. Pressure on governments to take the issue on a
bilateral or multilateral level;
3. Statements of exhortation from the Commission or
call from the Commission for all available
information;
4. The Commission might appoint a special rapporteur
to examine and submit a report on the issue;
5. The Commission might ask the Security Council to
take up the issue with a view to promulgating
sanctions.
VII. International Criminal Court
 Significance and Goal: The International Criminal Court was created in
1998 by the Rome Statute. The treaty came into force in April 2002 when
the 60th country needed to establish the ICC submitted its ratification.
The US and the Philippines have not ratified it.
• Prior to the establishment of the ICC, international crimes were
prosecuted in ad hoc criminal courts. These tribunals were
undermined and weakened by the charges of politically
motivated investigations and selective justice. Unlike temporary
tribunals, the ICC will be established without any specific
country in mind. Besides being permanent, it will be neutral.
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Gradually too, it will be able to establish precedents. Its goal is
individual and not collective accountability.
Jurisdiction: The jurisdiction of the ICC will be limited to the most serious
international crimes: genocide, crimes against humanity, war crimes, and
the crime of aggression.
Principle of Complementarity: The court is a court of last resort. It must
await referral of a crime by a state party or by the Security Council. The
court cannot act when the local judicial system is able to prosecute. Once
a state has taken the initiative to investigate a crime, the ICC cannot
intervene. Because of the principle of complementarity, the effective
functioning of the court will depend very much on the cooperation of state
parties. The crimes over which the ICC has jurisdiction must first be
punishable in domestic law.
Fr. Joaquin Bernas | MANIEGO, A2012
II.
Non-Judicial/Diplomatic Settlement
 Negotiation: Preferred vehicle because states are generally reluctant to
submit their disputes to an adjudicatory body. It is a very flexible method
because there are no set rules. It may be at arm’s length or face-to-face,
or it may be formalized in a treaty or a mere exchange of notes. May be
carried out by diplomatic correspondence, face-to-face dialogue between
permanent envoys or designated negotiators. It is essentially a give and
take process looking for a win-win situation.
• Good offices: Preliminary step in negotiation. A neutral third
party brings the two parties together as an initial step before
judicial settlement is referred to.
 Mediation: Involves assistance by third parties acting as a bridge
between the disputants, who do not meet or who may sit with the two
parties at chair meetings, suggest solutions and cajole them to a
resolution. The mediator is approved of by both parties.
 Inquiry: A fact-finding conducted by a group or by an institution.
Frequently resolves disputes on questions of fact when applied for with
the consent of the parties.
 Conciliation: A more formal technique where disputants agree to refer the
controversy to an individual, a group of individuals or an institution to
make findings of fact and recommendations. Parties generally do not
agree to be bound by the findings made but this “clears the air.”
III.
Quasi-Judicial: Arbitration
 Arbitration: The binding settlement of a dispute on the basis of law by a
non-permanent body designated by the parties. The composition,
jurisdiction and procedure employed are agreed upon by the parties in a
compromis d’arbitrage. States are not required to submit to arbitration
unless there is an agreement making it compulsory.
• Distinguished from judicial settlement: Arbitration is more
flexible and parties have a greater say in deciding the law to be
applied.
• Three types of arbitral agreements:
 Arbitration clause that is incorporated as part of a
treaty.
 Arbitration treaties where the sole function of the
treaty is to establish methods for the arbitration of
disputes.
 Ad-hoc arbitral agreements
 Arbitral decisions apply international law unless the parties specify
otherwise.
 Arbitral decisions are often challenged pursuant to the following grounds:
• Arbitral body exceeded its powers
• There was corruption on the part of a member of the body
• There was failure to state the reasons for the awards or a
serious departure from a rule of procedure
• The undertaking to arbitrate/compromis is a nullity
 Grounds of domestic courts to refuse to recognize arbitral awards:
• The agreement to arbitrate was not valid under applicable law
• No due process
CHAPTER THIRTEEN: PEACEFUL SETTLEMENT OF DISPUTES
I.
International Dispute
 Definition: Not every disagreement is a dispute. A dispute is an
“international dispute” if there is “a disagreement on a point of law or fact,
a conflict of legal views or interests between two persons.”
• Examples: Disagreements over the interpretation of a treaty,
state boundaries or about state responsibility.
• Article 2(3): All members shall settle their international disputes
by peaceful means in such a manner that international peace
and security and justice are not endangered.
• There is no obligation to settle disputes unless they fall under
the categorization of Article 33 (those which might endanger
peace and security. However, if there is a decision regarding
settling disputes, the obligation to settle them is by peaceful
means.
 Peaceful Methods of Settling Disputes (Article 33): The parties to any
dispute, continuance of which is likely to endanger the maintenance of
international peace and security, shall try to seek a solution by the
following methods:
• Judicial: Recourse to the International Court of Justice (ICJ) or
other international tribunals
• Quasi-iudicial: Arbitration
• Non-judicial: Negotiation, Mediation, Inquiry and Conciliation
 Article 36: The Security Council may recommend appropriate procedures
or methods of adjustment in a situation referred to in Article 33, or any
similar circumstances.
 Article 37: If the parties failed to resolve their dispute in the methods
aforementioned, they shall refer it to the Security Council. The Security
Council will then decide whether they will enforce the procedure of Article
36 or to recommend terms of settlement if it deems necessary.
 Article 38: If the parties to the dispute so request, the Security Council
can make recommendations to the parties with a view to a peaceful and
pacific settlement.
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• Award deals with matters outside the arbitration agreement
• Arbitral tribunal is contrary to the agreement of the parties
• Reward is not yet binding, has been suspended or set aside by
a competent court
documents. By definition, advisory opinions are non-binding.
Acceptance or non-acceptance of the advisory opinion is
determined by the internal law of the institution.

IV.
Judicial: The International Court of Justice, et al
 The International Court of Justice: The UN’s principal judicial organ. It is
the successor of the Permanent Court of Justice which was established
by the League of Nations, and it came into being through the Statute of
the Court. All members of the UN are ipso facto parties to the Statute of
the International Court of Justice. However, being parties to the Statute
does not mean acceptance of its jurisdiction; it just allows the possibility
because only State parties may be parties in the court.
• Cardinal rule: States cannot be compelled to submit disputes to
international adjudication unless they have consented to it
either before a dispute has arisen or thereafter. They may also
limit their acceptance to certain types of disputes and to attach
various conditions or reservations to their acceptance.
 Composition of the Court: A body of independent judges (elected
regardless of nationality) of high moral character possessing the
qualifications required in their respective countries for appointment to the
highest judicial offices, or are jurisconsults of recognized competence in
international law.
• Consists of 15 members, no two of whom may be nationals of
the same state. A member is a national of a state where he/she
ordinarily exercises civil and political rights.
• Chambers: The Court may form one or more chambers
composed of three or more judges to deal with particular
categories of cases like labor, transit and communications, etc.
In dealing with a particular case, the court may form a chamber
for that purpose. If parties request it, the case may be heard in
the chamber. Judgment rendered by a chamber is considered
as rendered by the whole Court.
• Possible partiality: Judges of the same nationality as one of the
parties shall retain their right to sit in a case before the court. Is
the Court includes upon the bench a judge of the nationality of
one of the parties, any other party may choose a person to sit
as judge (preferably from the list of persons nominated as
candidates.)
 Jurisdiction of the Court:
• Contentious: Such jurisdiction of the Court over all cases which
the parties refer to it and all matters specially provided for in
the Charter of the UN or in treaties or conventions.
• Advisory: The Court may give an advisory opinion on any legal
question. UN Charter empowers the General Assembly and the
Security Council to make requests for advisory opinions, while
the General Assembly may authorize other UN agencies to
seek advisory opinions. Requests must be made in writing
containing an exact statement of the question upon which an
opinion is required, and accompanied by all necessary

Contentious Jurisdiction
• Subject matters: (a) Interpretation of treaties; (b) question of
international law; (c) existence of any fact which, if established,
would constitute breach of an international obligation; and (d)
nature or extent of the reparation to be made for the breach of
an international obligation
• Ways a State recognizes jurisdiction:
 First: Ad Hoc Basis – When a party unilaterally
applies to the Court and the other party expresses
his consent thereafter
 Second: Via Treaty – When parties adhere to a
treaty which accepts the jurisdiction of the court on
matters of interpretation or application of the treaty.
 Third: Optional System – By unilateral declaration
that recognition of jurisdiction in relation to any other
state accepting the same jurisdiction in all legal
disputes.
 Declaration is the form by which state
parties recognize as compulsory ipso facto
and without special agreement, in relation
to any other state party accepting the
same obligation, the jurisdiction of the
court. These may be made unconditionally
or on condition of reciprocity on the part of
several or certain states or for a certain
period of time. This way, states can limit
the extent to which they subject
themselves to the jurisdiction of the court.
The declarations shall be deposited with
the Secretary General of the United
Nations, who shall transmit copies thereof
to the parties to the Statute and to the
Court’s Registrar.
 Interhandel case: If two parties to a case
are called to the Court, A via a Declaration
without conditions and B with conditions, A
can invoke the conditions in B’s declaration
for himself.
Optional system:
• Aerial Incidence Case (US v. Bulgaria, ICJ): WON Bulgaria has
submitted itself to the Court’s jurisdiction when it is alleged that
Bulgarian military failed to take actions necessitated by
international civil aviation agreements when an El Al Israel
airliner entered into Bulgarian airspace and was shot down by
them. The case was dropped by the US. The objections of
Bulgaria must be noted, particularly its objection which called
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upon the grounds of reciprocity and consensual basis of ICJ
jurisdiction by invoking the Connally amendment reservation,
exempting from ICJ Jurisdiction matters cognizable within its
internal competence.
• Nicaragua v. US (ICJ): WON the US accepted the jurisdiction
of the ICJ. In 1946, US declared its adherence to ICJ
jurisdiction, noting that it would be terminated after six months
notice given to the UN regarding its expiration. After figuring
out that Nicaragua would bring the situation to court, they
deposited the 1984 notification with the UN. The Court ruled
that Nicaragua was a “state accepting the same obligation” as
the US as in its acceptance of the Court’s jurisdiction under the
Statute of the Permanent Court of International Justice, and
that the US could not defy its own Declaration by not complying
with its “6-months notice” provision.
• Case of East Timor (Portugal v. Australia, ICJ): WON Portugal
can bring an action against Australia regarding the “Zone of
Cooperation” which is the subject of the treaty between
Australia and Indonesia. The Court ruled that the actual dispute
was between Portugal and Indonesia, and could not continue
because Indonesia had not accepted the jurisdiction of the ICJ.

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Provisional measures: The Court can indicate and impose any provisional
remedies to preserve the rights of either party, pending final decision of
the courts.
• Nicaragua v. US (Summary, ICJ): Same fact set as above
Nicaragua cases. Given the circumstances, the Court deems it
appropriate to grant provisional measures, and emphasizes
that the grant does not prejudice the eventual decision of the
main case.
• Case concerning the legality of use of force (Yugoslavia v. US,
ICJ): WON the Court can grant the provisional measures
requested by Yugoslavia against the NATO states regarding
bombings on the basis of the Genocide Convention. The Court
denied the application because the US did not give its consent
to be bound by the Court’s jurisdiction and, not consenting, the
provisional measure cannot be imposed.
Intervention: The intervention of a third party state in the dispute between
other states on the basis of its interest in the outcome of the case. Its
interest must be of a legal nature. Request for intervention is submitted to
ICJ.
• El Salvador v. Honduras (Nicaragua intervention, ICJ): WON
Nicaragua can intervene in the dispute between El Salvador
and Honduras regarding the protection of its legal rights in the
Gulf of Fonseca. The Court ruled that Nicaragua was able to
show proof that they had interest of a legal nature which may
be affected by the Court’s decision and granted the request to
intervene.
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Obligation to comply with obligations: The ICJ’s decision has no binding
force except as between the parties and only in respect of that particular
case. The judgment is final and without appeal. Revision of judgment can
only be made upon discovery of a new fact of such a nature as to be a
decisive factor which was unknown to the Court and also to the party
claiming revision, provided that the ignorance was not due to negligence.
Proceedings will be opened by a new judgment by the ICJ recording the
existence of the new fact and recognizing that it is of such a character to
lay the case open to revision.
• No application shall be made after the lapse of 10 years after
the judgment.
Enforcement: Member states must comply with the judgment. If not, the
aggrieved party can appeal to the UN Security Council which can make
recommendations or decide upon measures to be taken to give effect to
the judgment.
Other active international courts: Court of Justice of the European
Communities, the European Court of Human Rights, the Benelux Court of
Justice and the Inter-American Court of Human Rights. The International
Criminal Court entered into force only in 2002.
CHAPTER FOURTEEN: USE OF FORCE SHORT OF WAR
I.
The Use of Force
 General principle: International law recognizes the autonomy of individual
states and their right to freedom from coercion and to the integrity of their
territory. From the UN Charter: “All Members shall refrain in their
international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.”
• The text does not use the word ‘war’ because it is a technical
term that does not include all uses of force.. The prohibition in
the UN Charter applies more broadly.
 Doctrine of self-help and ICJ’s interpretation: In the Corfu Channel case,
the UK wanted to secure the mines to prevent further danger. This was
presented as a new and special application of the theory of intervention,
where the intervening state was acting as a method of self protection or
self-help. The Court cannot accept this line of defense because
espousing it would be allowing a policy of force which cannot find a place
in international law.
• The prohibition of the use of force is also customary
international law, not just conventional. There exists in
customary law an opinio juris as to the binding character of
abstention from the use of force. Consent to resolutions
expressing such abstention from use of force is consent to
such customary law.
• Judge Sette-Camara: The non-use of force and nonintervention are not only cardinal principles of customary
international law but could be recognized as peremptory rules
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Fr. Joaquin Bernas | MANIEGO, A2012
of customary international law which impose obligations on all
States.
II.
III.
The Threat of Force
 Examples of threat of force: The threat to use force may come in various
forms, the most typical of which is the ultimatum in which the State to
which it is addressed is given a time limit to accept demands upon it and,
if rejected or upon failure to comply, war will be declared on it or certain
coercive measures will be employed.
• Legality of the Threat or Use of Nuclear Weapons (ICJ
Advisory Opinion): The Charter prohibits the use of force
against the territorial integrity or political independence of
another State in any other manner inconsistent with the
purposes of the UN, and the prohibition extends not just to
specific weapons but to any use of force regardless of
weapons employed, because there is not express permission
nor prohibition against nuclear weapons in the Charter.
• Article 51: Entitlement to self-defense is subject to the
conditions of necessity and proportionality. “Self-defense
only warrants measures which are proportional to the armed
attack and necessary to respond to it.”
• Proportionality principle: A use of force that is proportionate
under the law of self-defense must, to be lawful, meet the
requirements of the law applicable in armed conflict which
comprise the principles and rules of humanitarian law.
• Threats to use force: Whether or not there is a signalled
intention (threat) to use force if upon the occurrence of certain
events depends on several factors—if the use of said force is
illegal, then the threat to use such a force is also deemed
illegal.
Individual and Collective Self-Defense
 Individual and collective self-defense (inherent rights) are not completely
prohibited. Individual and collective self-defense is allowed subject to the
principles of necessity and proportionality, without prejudice to the right of
the Security Council to take actions it deems needed to restore
international peace and security.
 Self-defense can only be exercised in response to an “armed attack.” In
the view of the Court, this is understood to be not merely action by
regular armed forces across an international border but also the sending
by a State of armed bands to the territory of another State.
• Does not include “assistance to rebels” in the form of weapons
or logistical support within its purview.
• There is no rule permitting collective self-defense without a
State requesting for its assistance and a State declaring itself
to have been attacked.
 Anticipatory self-defense: Opinion on its legality is divided. Some say that
“protection of vital interests” justifies the use of force while others refrain
from using it in the fear that it may be used against them as well.

9/11: Article 51 on self-defense was used to justify a response to a nonstate aggressor.
IV.
Traditionally Allowable Coercive Measures
 Severance of diplomatic relations: Resorted to only when absolutely
necessary because severance might endanger peace. This is
distinguished from suspension which only involves withdrawal of
diplomatic representation, but not consular.
 Retorsion: Any of the forms of counter-measure in response to an
unfriendly act like shutting of ports to vessels, recovation of tariff
concessions or the display of naval forces near the waters of an
unfriendly state.
 Reprisal: Forcible coercive measure which seeks to deter/obtain redress
from another because of the other’s illegal act, and because of the other’s
refusal to make amends. By itself, the act of reprise is illegal. It must be
preceded by an unsatisfied demand.
 Embargo: May consist of seizure of vessels even in the high seas. It may
be pacific, as when a state keeps its own vessels for fear that it might find
their way into foreign territory. There is also collective embargo on import.
 Boycott: Form of reprisal which consists of suspension of trade or
business relations with the nationals of an offending state. A form of
economic aggression which ought to be prohibited by law.
 Non-intercourse: Suspension of all commercial intercourse with a state.
 Pacific Blockade: Naval operation carried out in peacetime where a state
prevents access to or exit from particular ports or portions of the coast of
another state for the purpose of compelling the latter to yield to demands
made by the blockading state. It is essentially a warlike act.
V.
Protection of Nationals Abroad
 The right to protect nationals stems from the right to self-defense in
Article 51 coupled with the notion of population as an element of
statehood, where nationals abroad are considered members of the
populace in another state. The legitimacy of such intervention is not firmly
established in international law
VI.
Humanitarian Intervention
 Armed humanitarian intervention by states: Intervention without the
authorization of the Security Council violates international law, because
armed humanitarian intervention as a response to massive violation of
human rights in another state begins with a general prohibition against
the use of force.
 Legality v. Illegality: Only permissible is sanctioned by the Security
Council. They must consider the massive violation of human rights as a
threat to peace and calls for an enforcement action such as humanitarian
intervention to put an end to violations. Absent such a declaration,
military coercion employed constitutes a breach of the Charter.
Additionally, the human rights violations must transcend borders and lead
to armed attack against other states to be able to qualify as an “armed
attack.”
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Fr. Joaquin Bernas | MANIEGO, A2012
Three reasons against the existence of a right of humanitarian
intervention:
• UN Charter and PIL do not incorporate such a right
• No real need because there are only a handful of genuine
cases of intervention
• Prudential grounds; because the scope of abuse argues
strongly against its creation. Benefits outweigh the costs in
terms of respect for PIL.
Laws should not be changed to follow humanitarian impulses because of
the potential for abuse and because it might just be an isolated incident
only.
Another author asks, as regards the NATO armed intervention: Should
the respect for the Rule of Law be sacrificed on the altar of compassion?
Because ethically, acts of humanitarian intervention are justified but
legally, are contrary to law.
The same author submits that under certain strict conditions, resort to
armed force may gradually become justified, even absent any
authorization by the Security Council:
• Crimes against humanity are carried out on the territory of a
sovereign state and central authorities are unable to do
anything
• There is proof of anarchy
• Security Council cannot take any coercive action to stop the
acts
• Exhaustion of all peaceful avenues
• There must be both a group of states willing to stop the
conflicts and support/non-opposition of the other MemberStates of the UN
• Armed force is only limited to the stopping of the atrocities.
The more urgent the situation, the more intensive and immediate may be
the military response thereto.
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CHAPTER FIFTEEN: THE LAW OF WAR (INTERNATIONAL HUMANITARIAN LAW)
I.
International Humanitarian Law in general
 Proliferation of laws on war: Side by side with the prohibition against the
use of force is the proliferation of laws of war, because:
• Those who resort to the use of arms do not give up until they
have achieved victory;
• Given the first fact, humanitarian considerations dictate the
need for rules which curtail violence beyond what is necessary
to achieve a state’s goal;
• There still remains in the hearts of the soldiery an acceptance
of chivalry as a value.
 Humanizing the conduct of war was the driving need to formulate laws,
assuming that wars can always happen. This was pioneered by Henry
Dunant who was appalled by the brutality of war.
II.
The Hague Law: Early customary law. At present the laws of war are
mostly conventional. Principles adopted in the Law of the Hague refer to
land and naval warfare.
The Geneva Conventions of 1949: Persons not engaged in warfare
should be treated humanely. The Geneva Conventions are referred to as
the “Red Cross” Conventions governing—I: Wounded and Sick in the
Field; II: Wounded, Sick and Shipwrecked at Sea; III: Prisoners of War;
and IV: Civilians.
Customary and Conventional Law: Much of what is embodied in the
aforementioned conventions are customary law. Non-parties to the
Convention are still covered by the customary law on armed conflict.
• Commencement of Hostilities: For an armed conflict to be
considered a war, hostilities must be preceded by a declaration
of war or an ultimatum with a fixed limit. This is rarely followed.
Usually, it is the victim of the first attack which will be the ones
declaring war. In the Philippines, the power to declare war is in
the legislature while the power to make war is in the executive.
• Effects of Commencement: Commencement of hostilities result
in the severance of all normal relations. Political and economic
treaties are terminated. However, treaties of a humanitarian
character should remain in force. Nationals of combatant states
residing in enemy territories may be subjected to restrictions
imposed by the enemy. Merchant vessels are given a grace
period to depart.
• Termination of Hostilities: Laws of armed conflict remain in
effect until the conflict is terminated. It terminated usually upon
a peace treaty. However, once combatant states have made a
declaration that hostilities have come to an end, armed forces
are bound by that declaration even absent a treaty.
• Armistice/Cease fire: An agreement to suspend hostilities. It
does not end the conflict.
Protocol I: Created a new category of international armed conflict and
defines it as “armed conflicts in which people are fighting against colonial
domination and alien occupation and against racist regimes in the
exercise of their right of self-determination.” Those engaged in such a
conflict receive combatant status and are entitled to combatant rights and
duties.
Methods of Warfare: Jus in Bello
 The only legitimate object which states should endeavour to accomplish
during the war is to weaken enemy forces. For this reason it is sufficient
to disable the greatest possible number of men.
 Prohibited methods: The Hague Convention prohibits the employment of
arms, projectiles or material calculated to cause unnecessary suffering.
States can never make civilians the objects of attack and must never use
weapons that are incapable of distinguishing between civilian and military
targets. States do not have unlimited freedom of choice of means in the
weapon they use.
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III.
IV.
International Commission of the Red Cross’ Soldier’s Rules (Summary)
• Be a disciplined soldier because disobedience of the laws of
war dishonours your army and yourself. Fight only enemy
combatants. Destroy no more than your mission requires. Do
not fight enemies who are ‘out of combat’ (hors de combat) or
surrender. Collect and care for the sick and wounded, friend or
foe. Treat all civilians and enemies with humanity. Prisoners of
war must be treated humanely. Do not take hostages. Abstain
from acts of vengeance. Respect the Red Cross and all those
bearing its emblem. Respect other person’s property. Prevent
breaches of the above rules.

International Commission of the Red Cross’ Fundamental Rules of
International Humanitarian Law Applicable to Armed Conflicts
(Summary):
• Persons out of combat are entitled to respect for their lives and
moral and physical integrity. It is forbidden to kill or injure an
enemy out of combat. The wounded and sick shall be collected
and cared for and the Red Cross respected. Captured
combatants of another party are entitled to respect for their
lives and dignity. Everyone shall be entitled to judicial
guarantees. Parties to a conflict do not have an unlimited
choice of methods or means of warfare. Distinguish between
civilians and combatants.

Non-international Armed Conflicts (Summary):
• There is a prohibition against indiscriminate attacks. There is
an obligation to distinguish between combatants and civilians.
The latter are not to be attacked. Unnecessary suffering is
prohibited. The prohibition to kill, injure or capture an adversary
by resort to perfidy (def. dishonesty) is prohibited. The
obligation to respect and protect medical and religious
personnel is given. There is a prohibition against attacks
against property and destruction of objects indispensable to the
survival of civilians
• Do not use the following weapons: Chemical weapons,
expanding or flattening bullets, poison, mines and booby traps
which may be easily mistaken by civilians, incendiary weapons
(against civilians).
Neutrality
 In a conflict there are some who wish to stay out of the way and adopt an
attitude of impartiality. Such an attitude must be recognized by the
opposing party-States and creates both rights and duties in the neutral
states. The decision to employ a neutral stance is dictated by
political/internal mechanisms and not PIL.
 Neutral states must not engage in activities which interfere with the
activities of the belligerents while the latter respect the former’s rights.
Non-International Conflicts
Fr. Joaquin Bernas | MANIEGO, A2012
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V.
Civil wars: They do not violate international law. They do not fall under
the UN Charter’s purview. Outside help is allowable only if the
government requested for it. Aiding rebels is contrary to international law.
Common Article 3: Allows minimum humanitarian protection to cover
internal conflict. Common to all 1949 Geneva Conventions. See
discussion in Chapter Six.
Protocol II: The first and only international agreement regulating the
conduct of parties to a non-international armed conflict. Supplements the
Common Article 3. See discussion in Chapter Six.
International Terrorism
 Definitions: There is not crime named terrorism in the Philippine
statutes, although some acts which are considered territoristic are
punishable by the Revised Penal Code.
• US: Anti-Terrorism Law; UK: Terrorism Act of 2000.
• British law defines it as: Violent moves against person or
property or against public health and safety which have for their
purpose to influence the government or to intimidate a section
of the public or to advance a political, religious or ideological
purpose.
 In international law, it is difficult to criminalize terrorism because of the
difficulty in defining the prohibited act. The draft definition (at the
International Convention for the Suppression of the Financing of
Terrorism is as follows:
• An act done by any person intended to cause (a) death or
serious bodily injury to any person, or (b) serious damage to a
State or Government facility with intent to cause extensive
destruction of such a place, facility or system, or where such
destruction results or is likely to result in major economic loss,
when the purpose of such an act is to intimidate a population or
to compel a Government or an international organization to do
or abstain from doing any act.
 Universality: Is terrorism a crime against humanity? Many consider it to
be such because of the 9/11 attacks. They were led to this conclusion
because of the act’s magnitude, gravity, and the targeting of civilians as
part of a well-planned operation. The characterization of the 9/11 attack
as a crime against humanity is important in US justification for its use of
international law on self-defense.
 There are still many aspects of international terrorism which need to be
clarified for the purpose of effecting legislation, such as magnitude of
attack to be considered as an attack by a state, and what specifically is a
target of self-defense, its timing, duration and the admissible means,
among many others.
CHAPTER SIXTEEN: INTERNATIONAL ENVIRONMENTAL LAW
I.
Environmental concerns
 Expressions of environmental concern in the Philippine Constitution:
Article II, Section 16, which states that “the State shall protect and
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II.
advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.”
• Oposa v. Factoran, Jr: WON the parties had legal standing on
the basis of “intergenerational protection.” The Court ruled that
they did, recognizing the constitutional right to a balanced and
healthful ecology and the correlative duty to refrain from
impairing the environment.
• Laguna Lake Development Authority v. CA: WON the LLDA
had the authority to protect the inhabitants of the Laguna Lake
Area from the deleterious effects of pollutants coming from
garbage dumping and discharge of wastes in the area. The
Court ruled that it did, basing its decision on Setion 16 and the
Universal Declaration of Human Rights, and ruled in favour of
LLDA and against the municipalities around the lake, to
address the environmental and ecological stress on Laguna
Lake.
• Social Justice Society v. Atienza: WON the Manila ordinance
requiring the oil companies to close and transfer the Pandacan
Terminal to another location was valid. The Court ruled that it
was valid.
• Metropolitan Manila Development Authority v. Residents of
Manila Bay: The Court ruled in favour of the residents and
ordered various governmental agencies to clean up Manila
Bay.
Environmental concerns: Not just limited to atmosphere, land, sea, flora
and fauna but also includes the preservation of the cultural heritage of
mankind as found in archaeological and artistic remains. The goal of
environmental protectionists is the rational use of the elements which
make up the environment through control, reduction and elimination of
the causes of environmental degradation.
• Human rights is intricately related to environmental concerns
because protection of the environment is a vital part of
contemporary human rights doctrine, even considering it as a
sine qua non for many human rights such as the right to health
and the right to life.
Difficulty: Due to the various competing interests, it is difficult to espouse
environmental concern because of issues of sovereignty and state
responsibility, in addition to individual interests and pursuits. This is
compounded by the problem of poverty and exploding population.
Environmental rights
 The real objects of protection are persons capable of having rights, so
trees and other inanimate objects cannot be said to have any rights
except in the metaphorical sense. The approach in Oposa v. Factoran, Jr
is then instructive as to the view of the law on the matter, where they
used “intergenerational protection and responsibility” as the bases for the
Secretary of Natural Resources to cease and desist from receiving,
accepting, processing, renewing or approving new timber license
agreements. The Supreme Court agreed on the justiciability of the
Fr. Joaquin Bernas | MANIEGO, A2012
proceedings and remanded the case to the lower courts to receive
evidence.
.
III.
Sustainable Development
 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. According to Justice
Douglas, it is the recognition that the voice of the inanimate object and
the existing beneficiaries of tenvironmental wonders not be stilled.
IV.
Emerging Principles
 Stockholm Declaration (Summary): Man has the fundamental right to
freedom, equality, and adequate conditions of life, and has a
responsibility to protect and improve the environment for present and
future generations. It is for the benefit of future and present generations.
Earth’s capacity to sustain life must be maintained, in addition to the
preservation of wildlife and their habitats, of current environmental
resources and the prevention of discharge of toxic substances or fumes
and pollution. Man must support the development of sustainable
development, economic and social development, the address of
environmental deficiencies, the stability of prices and earnings of basic
goods for developing countries, environmental policies, an integrated and
controlled approach to development planning of all States to make
compatible with environmental protection, rational planning to reconcile
development with environmental protection, demographic policies in
overpopulated areas, science and technology to identify and remedy
environmental risks, research and development for environmental
problems, and education regarding environmental matters. The
sovereignty of states is recognized, limited by their own responsibility.
State cooperation must be employed to aid pollution victims. The
standard of applicability must be considered for all states, and
international cooperation through multilateral and bilateral arrangements
must be employed. There is a prohibition against man-made destruction.
 Rio Declaration (Summary): Human beings are at the center of
concerns for sustainable development. While there is a recognition of
their sovereign right to exploit their own resources, they have the
responsibility to ensure that activities within their jurisdiction do not cause
damage to the environment of other States. The right to development
must be fulfilled to meet developmental and environmental needs. To
achieve sustainable development, environmental protection shall be an
integral part of the developmental process. There shall be a spirit of
global partnership to conserve, protect and restore the health and
integrity of the Earth’s ecosystem. States should reduce and eliminate
unsustainable patterns of production and consumption and strengthen
endogenous capacity building for sustainable development by improving
scientific and technological knowledge. Environmental issues are best
participated in by all concerned citizens. States shall enact effective
environmental legislation and cooperate to promote a supportive and
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open international economic system which would lead to economic
growth and sustainable development. States must develop national law
about liability and compensation for victims of environmental damage,
and should cooperate to discourage or prevent the relocation and transfer
to other States activities causing environmental damage. The
precautionary approach shall be applied by States to protect the
environment. Internalization of environmental costs should be
endeavoured by national authorities. Environmental impact assessment
shall be undertaken for proposed activities which are perceived to have a
large environmental impact. States should immediately notify other states
in case of any natural disasters or other emergencies. Indigenous
peoples, women and the youth have vital roles in environmental
management and development. Warfare is inherently destructive and
should respect international law providing protection for the environment
in times of armed conflict. States and people shall cooperate in good faith
to fulfil all the principles embodied herein.
Fr. Joaquin Bernas | MANIEGO, A2012
•
•

CHAPTER SEVENTEEN: INTERNATIONAL ECONOMIC LAW
I.
International Economic Law
 Definitions: Distinct part of international law which is related to the
regulation of interstate trade, the creation of international economic
institutions, the formulation of definite rules covering a wide range of
economic matters and the establishment of methods of dispute
resolution.
 90% of international law is economic because it includes all the
international law and international agreements governing economic
transactions that cross state boundaries that have implications for more
than one state, like those governing movement of goods, funds, persons,
intangibles, technology, vessels and aircrafts.
 Characteristics of International Economic Law:
• 1. International economic law is a part of public international
law
• 2. International economic law is entwined with municipal law
and is balanced accordingly with it.
• 3. International economic law requires multidisciplinary thinking
because it involves many other disciplines such as history,
political science, anthropology, geography, et cetera.
• 4. Empirical research is important for understanding its
operation.
 Important economic institutions:
• Bretton Woods Conference of 1944: Objectives were to
advance the reduction of tariffs and other trade barriers, and to
create a global framework designed to minimize economic
conflicts.
• International Monetary Fund (IMF): To provide short-term
financing to countries in balance of payments and difficulties


International Bank for Reconstruction and Development (World
Bank): To provide long-term capital to support growth and
development
International Trade Organization (ITO): Intended to promote a
liberal trading system by proscribing certain protectionist trade
rules.
 General Agreement on Tariff and Trade (GATT) 
World Trade Organization (WTO) – These are the
two most important trade-oriented institutions
because they shape import and export laws which
impact international trade and services.
Key principles of International Trade Law:
• Agreed tariff levels: Each state agrees not to raise tariff levels
above those contained in the schedule. The schedule is open
to renegotiation.
• Most favored nation clause/principle: Embodies the principle of
non-discrimination. Any special treatment given to a product
from one trading partner must be made available for like
products originating from other contracting partners. AKA tariff
concessions.
• Principle of national treatment: This prohibits discrimination
between domestic producers and foreign producers. Once
foreign producers have paid border charges, no additional
burdens may be imposed.
• Principle of tariffication: Prohibits the use of quotas on imports
or exports and the use of licenses on importation or
exportation. Prevents the imposition of non-tariff barriers.
Exceptions to Key Principles:
• General: Public morals, public health, currency protection,
products of prison labor, national treasures of value and
protection of exhaustible natural resources.
• Specific: Security and regional trade exceptions, such as
exception for developing nations.
• Tanada v. Angara: WON the GATT is going to be detrimental
to local industries and constitutes grave abuse of discretion in
its implementation. The Court ruled that it was not going to be
detrimental because of the exceptions it provides to developing
nations because of its view towards raising standards of living
and optimal use of world resources for sustainable
development, and lets the developing countries have a share in
economic trade through reciprocal or mutual advantages. For
example, the WTO gives developing countries a more lenient
treatment by aiding and protecting their domestic industries.
Dispute resolution: A Dispute Settlement Body (DSB) is established by
the WTO Agreement. Each state has a right to the establishment of a
Panel. The DSU provides for a permanent appellate body, consisting of
persons with recognized expertise in law to handle appeals from a Panel
decision.
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Fr. Joaquin Bernas | MANIEGO, A2012
Expanded scope: IEL now includes intellectual property, services,
sanitary and physiosanitary measures and investment, as well as
strengthening of the rules on subsidies, countervailing duties and antidumping. It has become a very specialized field and it is now affecting the
sovereignty of states and their capacity to give force to national
objectives.
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