PIL Finals Notes
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notes in Public International law...
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Public International Law Finals Notes 201 3
So this is part of the discussion on territory as element of state. So it is important for you to go over the dierent modes of acquiring territory. territory. ou ou will notice that one here may no longer be applicable at present because of the inhibition on the use of force. I!m tal"ing about conquest or sub#ugation. sub #ugation. Let!s #ust go over the meaning as well as the conditions under which these modes can be considered as valid mode of acquiring a territory. territory. $ession% as you "now is the transfer of territory by agreement. So usually% it is in the form of treaty. &hat is important here usually is the principle of nemo dat quod non habet 'no 'no one gives that which he does not have( which is a principle in civil law or in property. property. )his is relevant to cession cession because this is transfer of territory territory 'considered property( from one state state to another. another. *s you remember remember in the Island of Palmas case% the Island of Palmas was argued to be part of the Philippine territory when the Philippines was ceded to the +S by Spain. ,ut the -utch protested because there was no followup on the part of Spain% even assuming that Spain was the /rst one to discover the Island. )he discovery was not followed by eective occupation on the part of Spain and therefore% that is a defect in the title. )hat defect in the title should also aect the title of the th e transferee in the treaty ceding the territory. territory. In other words% you cannot give what you cannot have. )hat is easy to understand. )hen we have occupation. It should be occupation occupation or discovery *N- occupation occupation but N0102 #ust discovery% as you have already learned. Note however the concept of terra nullus. )he only territory that may be sub#ect to discovery and occupation must be terra nullius% meaning the territory does not belong to any state. )here are two "inds "inds of terra nullius3 4. )he ordina ordinary ry concept concept of terra terra nullius nullius where where it really does not belong to any state5 state5 or 6. Probab obably ly at one point belonging to a state but has been efectively abandoned. abandoned. )here may in fact be reasons for the abandonment of a particular territory. territory. 7ne possible p ossible reason could be internal con8ict in the government which compelled it to abandon the governance or administration of a particular territory for a period of time. )here is no hard and fast rule on abandonment. It is more on intent as you will later see. a. )here )here are two component components s of abandonment abandonment which which ma"es ma"es a territory territory terra nullius. i. Failur ailure e to e9er e9ercis cise e authori authority ty ii. ii. Inte Intent nt to to aban abando don n )hru the eorts eorts of 2oom 2oom :;an% ?acildo% ?acildo% Nardo% Nardo% Lulu% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 4. )his is a question question of fact fact because because intent intent is in the the mind but a state has not mind. So there are a lot of things to consider such as the mind of the leaders. )his is hard to prove so there is no hard and fast rule unli"e in civil law.
&hat you should ta"e note of occupation is 4. )he two "inds of terrae nullius and 6. 0ective occupation. *s here mentioned% discovery of territory is not n ot suCcient to acquire a terra nullius territory. territory. So the other concept that you should sh ould ta"e note in discovery is that while wh ile it is not suCcient% there is however acquisition of what is "nown as Dinchoate titleE to the territory. So if it is #ust inchoate does it have legal force if you have inchoate title to the territory es% es% because it deals with the legitimacy legitimacy of whatever the state does to any possible intruder to the newly discovered territory. territory. 09ample if the discovering state uses force to protect the newly discovered territory% then it shouldn!t b e considered as violation of international law because it is merely e9ercising e9ercising its inchoate right. righ t. *nd that in fact means to the e9clusion of other states. ,ased on history% it may probably be #ust an inchoate title and because conquest or sub#ugation was then recogni@ed% you will notice that there are a lot of times when the discoverer has been eectively dispossessed by another state. es% es% it may be a violation of the inchoate title of the discovering state% but if the interfering state is able to administer eectively as the time when the prohibition on the use of force has not yet gained the status of customary norm% then it was practically acceptable in the past. )he option to occupy a territory territory may be in reasonable reasonable time. the option to occupy the territory may be within a reasonable time. how long should the time be thereGs no /9ed rule but certainly in relation to prescription as you will see later on% prescription would require a longer time to be able to ma"e prescription a basis for acquiring a territory. territory. naa pa ba b a ruy state na terra nullius probably by reason of natural creation of a terrrritory. )hru the eorts eorts of 2oom 2oom :;an% ?acildo% ?acildo% Nardo% Nardo% Lulu% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 4. )his is a question question of fact fact because because intent intent is in the the mind but a state has not mind. So there are a lot of things to consider such as the mind of the leaders. )his is hard to prove so there is no hard and fast rule unli"e in civil law.
&hat you should ta"e note of occupation is 4. )he two "inds of terrae nullius and 6. 0ective occupation. *s here mentioned% discovery of territory is not n ot suCcient to acquire a terra nullius territory. territory. So the other concept that you should sh ould ta"e note in discovery is that while wh ile it is not suCcient% there is however acquisition of what is "nown as Dinchoate titleE to the territory. So if it is #ust inchoate does it have legal force if you have inchoate title to the territory es% es% because it deals with the legitimacy legitimacy of whatever the state does to any possible intruder to the newly discovered territory. territory. 09ample if the discovering state uses force to protect the newly discovered territory% then it shouldn!t b e considered as violation of international law because it is merely e9ercising e9ercising its inchoate right. righ t. *nd that in fact means to the e9clusion of other states. ,ased on history% it may probably be #ust an inchoate title and because conquest or sub#ugation was then recogni@ed% you will notice that there are a lot of times when the discoverer has been eectively dispossessed by another state. es% es% it may be a violation of the inchoate title of the discovering state% but if the interfering state is able to administer eectively as the time when the prohibition on the use of force has not yet gained the status of customary norm% then it was practically acceptable in the past. )he option to occupy a territory territory may be in reasonable reasonable time. the option to occupy the territory may be within a reasonable time. how long should the time be thereGs no /9ed rule but certainly in relation to prescription as you will see later on% prescription would require a longer time to be able to ma"e prescription a basis for acquiring a territory. territory. naa pa ba b a ruy state na terra nullius probably by reason of natural creation of a terrrritory. )hru the eorts eorts of 2oom 2oom :;an% ?acildo% ?acildo% Nardo% Nardo% Lulu% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 what weGre even e9pecting now is the loss of territory than emergence of new territories. how is eective control shown or manifested usually through the e9ercise of acts of governmental authority in the form usually of establishment of administration in the territory. territory. thatGs why it was not uncommon in the past that the moment a state discovers a territory taht is terra nullius% almost always% there will be a followingof its inhabitants to that territory because% how will you e9ercise governmental authority when there are no governed
for some territories that are not habitable 'e.g. Aalayaan Islands( % our claims is that it had been discovered by a certain ,oholano by the name of )omas Ploma. he supposedly ceded his right over the property to the Philippine >overnment% and it was by that reason that the Philippine >overnment claims that it had been discovered by the government% by the Philippines% and had been eectively occupied not literally by inhabitants but it was made part of one of the municipalities of Palawan. so thatGs one way of showing e9ercise of power or administrative power% you include it as part of the territory% you send inhabitants% troops. if it is habitable% then itGs a lot better if you put there or place there inhabitants with a certain local government in the territory. territory. so that is usually how eective control is manifested through the e9ercise e9ercise og governmental authorities. it should not be #ust temporary% it should be more or less permanent because there is the requirement or threshold of will to act as sovereign. and then% third one is prescription. the dierence of course is in occupation% )hru the eorts eorts of 2oom 2oom :;an% ?acildo% ?acildo% Nardo% Nardo% Lulu% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 the ob#ect of the occupation is the terra nullius% in prescription% it is a territory of another state. and probably% as a reason or as a result of inaction on the part of the state owning the territory and for a very long period of time% in fact there is a doctrine called immemorial prescription doctrine the length of time of occupation to ma"e prescription a valid mode of acquiring property should go beyong the memory of man.Since time immemorial. it presupposes generations upon generations. the length of time required is certainly longer than that of eective occupation. and then the same requirement of eective control and intent and will to act as sovereign. fourth% conquest or sub#ugation% no longer allowed under modern international law because it is now accepted or wellsettled that the use of force is already a prohibited act% and it is a customary international norm already. already. one manifestation of that aside from the +N c$harter is the growing observance of Stimson -octrine.
Aisa manang population na sige ug transfer +nsa mai tawag ana nila Nomads. 'based on the answers of the pre/ e9ams( 'daghan ug #o"e si sir( LAW OF TH !A )here are so many many details in the study of the law of the the sea. >o over the speci/c requirements but what I can give you is to show you the important rules% aspects in the law of the sea. 2elevant aspects in the law. law. ou ou must have study the law of the sea "ay pag ari ninyo% nagstudy naman mo. -iba Sa"to "o sah Law of the sea na siya class "ay the same as treaties% before conventional% it is customary international law. law. ,ut a lot of customary customary international law has been )hru the eorts eorts of 2oom 2oom :;an% ?acildo% ?acildo% Nardo% Nardo% Lulu% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 incorporated in the +nited Nations $onvention on the Law of the Seas '+N$L7S(. &hich of course was completed in 4JK6 in ?amaica% that is why it is called the 4JK6 1ienna $onvention of the Law of the Sea. &hich is "nown as +N$L7S III. ,ecause there were three attempts before. First% in 4Jregorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 ,ut then again% as I mentioned last time% this may not be observed because sovereignty may be insisted on other matters. For foreign merchant vessels% there is full civil #urisdiction. *s to criminal #urisdiction% it is optional on the part of the state to e9ercise criminal #urisdiction because there are 6 theories on the e9ercise of criminal #urisdiction on foreign ships. )here!s the 0nglish rule and the French rule 'a"a 8agstate rule(. It is up to the state what rule to e9ercise% because the issue on #urisdiction is determined by the forum. )he 0nglish rule provides that the coastal state can e9ercise #urisdiction #urisdiction on crimes committed onboard the foreign merchant vessels. 09ception is when the oense relates to administrative matters 'e.g.% matters relating to the discipline of the crew(. )he French rule is the reverse. It is the 8ag state that e9ercises #urisdiction unless it pre#udices the security and peace and order of the coastal state% in which case it yields to the #urisdiction of the coastal state. Note3 Flag state of the vessel is usually the state where it is registered. If you loo" at these two rules% the eects are the same. Many authors say so. Now what is this Darchipelagic watersE by the way *nd how do you distinguish it from internal waters and territorial sea
&hat is the dierence between *2$BIP0L*>I$ &*)02S and IN)02N*L &*)02S *rchipelago may be de/ned in two ways3 4. It!s a group of islands surrounded with a body of water5 or 6. It!s a body of water studded with islands.
)hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 So% it is not really absolutely prohibited to ma"e and attac" that will result to death of civilians. So now% tal"ing about that% there is a diCculty in using Buman rights law and the IBL. )here is a theory that in times of armed con8ict% there is an entirely new set of laws to be applied and it is IBL and no other law so human rights law are somehow set aside. It is because there are also provisions in IBL that ta"e care of human rights li"e torture 'prohibited by both(. ,ut it is not because there is torture during the armed con8ict that human rights may be applied but it may be in the case that the speci/c provisions in the IBL that should be applied rather than human rights law. *pply B2L during peace and IBL during an armed con8ict% but that distinction is not yet applicable in International Law. +ntil now% there is still diCculty when to apply. So now% we have two "inds of armed con8ict3 International and Noninternational. &hen is there an armed con8ict It is when3 a( armed force between states 'e9. State * vs. State ,( b( protracted armed violence between governmental authorities and organi@ed armed groups 'e9. *FP v. 7rgani@ed *rmed >roup( c( ,etween between such groups within a state 'e9. Minority vs. Ma#ority *rmed >roups5 this is common is secessionist movements( ,ut% ta"e note than when the con8ict is between states% there is no such requirement of protracted armed violence. Protracted armed violence is applicable only to letter , and $ in the paragraph supra. If it involves *% it is automatically an International armed con8ict. Protracted armed violence is a manifestation of the state!s failure to Internal System to resolve armed con8ict. IBL applies when there is an International armed con8ict.
X3 Aung mu lapas sa 6;; n.m ang natural prolongation% let!s say the natural prolongation is li"e this not more than Hregorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 7A ra Aaya. A*A**NIN N*)INV Q-
)hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 B+M*N 2I>B)S L*& )he H generations or categories3 a. +N declaration of human rights 4. $ivil and Political 2ights 6. 0conomic% social and cultural rights b. opinions of publicists H. rights to peace% selfdetermination. $ommon heritage of man"ind principle% environment% development% minority rights
)hru the eorts of 2oom :;eneral *ssembly violations of human rights law. +nya imention dayon didto during general assembly based on the report for e9ample%iran" nila ug "insa tong Z 4 violator of a specie of human right unya di "a mauwaw Z4 violator "a didto Probably encouraging or even motivating states to e9ert eorts% implement programs in order to comply with the norms set forth in the international human rights law documents. *side from that% human rights law document may be a basis of the de/nition of a prohibited act at the domestic level. ou want for e9ample to pass a law torture. &here will you get the de/nition of torture It should be a universal concept so you might want to visit for e9ample conventions pertaining to torture. *nd then your statute wants to "now the meaning of racial discrimination then you can ma"e use of various conventions on the matter. So standard for domestic legislative measures. )hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3
and submarines must navigate on the surface and show their 8ag. May be suspended for protection of security of the coastal state. S+,M*2IN03 obligations when passing through Must navigate on the surface and show their 8ag
Note3 •
•
It is for us to determine the baseline. It has nothing to do with e9pansion of territory but only to determine baseline '6;44 case% read( Instances3 *sdf o
.
*edian Line &here the coasts of two states are opposite or ad#acent to • each other% neither of them is entitled% failing agreement between them to the contrary% to e9tend its territorial sea beyond the median line every point of which is DequidistantE from the nearest points on the baselines. '*lso applicable in the case of continental shelf( In practice% it is resolved by treaties. • 09ceptions3 Bistoric title or other special circumstances. • 2ead3 orth Sea Continental shelf • o ,eyond 46nm [ international waters Bigh Seas [ after the 6;; nm o o F+LL -IS$20)I7N [ internal waters and territorial sea. $onsidered part of the territory of the state. Land Mass \ Maritime -omain Q territory% element of state. @urisdiction o) coastal state over )oreign vessel in territorial "aters 'this applies if they are there lawfully% consent is present( o Foreign ,ublic vessel [ no #urisdiction Floating territories [ warships Presupposes that it does not engage in commercial activities.
)hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 % &ights and limitations' (here is no more full jurisdiction. It is limited only to the so)called protective jurisdiction of the state. Protective in a sense that the coastal state is allowed to e#ercise jurisdiction for purposes of preventing infringement of customs laws, *scal, immigration, and sanitary regulations, meaning, you can e#tend the enforcement of your customs laws, *scal, immigration and sanitary regulations even outside the territorial sea 'clusive cono#ic Bone 6;; nm from the baseline $oastal state has sovereign rights over all the economic resources of the sea% seabed% and subsoil which includes not only /sh but also minerals beneath the seabed Bowever% if the coastal stat is unable to fully e9ploit the resources% it must ma"e arrangement to share the surplus with other states. N7) P*2) 7F )B0 )022I)72 &ontinental !hel) 'more of an area% not a @one( $onsists of the seabed and the subsoil of the submarine areas that e9tend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin% or to a distance of 6;;nm% whichever is greater. ,ut% it shall not e9ceed Han% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 !this is what you call the end of the CS. 4oes that mean that the right of the coastal state over the natural resources in the CS, supposed to e#tend up to the natural promulgation of the CS up to 3nm IC0 says N5. 1e follow the 667 principle. I8 the situation is li2e that and encroaching now on the 67 of the other, you are only up to your $nm. o
High !eas ,eyond 6;; nm from the baseline May be used feely by ships of all nations 'including landloc"ed states( DFreedom on the high seasE includes3 freedom of navigation% • freedom of /shing% • freedom to lay submarine cables and pipelines and • freedom to 8y over the high seas. • o )hese freedoms are however sub#ect to certain conventions and agreements. 'cf. DFive *ir FreedomsE( 2es communis ,ut the e9ploitation must not be useless. *s a rule% ships in the high seas are governed by '4(international la"5 and • '6( the Dag o) the state • )he D8ag of the stateE refers to the nationality of the 8ag% which is determined by the place of registration. * ship can only use one 8ag 'unli"e persons( DFlags of $onvenienceE [ countries that allow registration of a ship for a fee. Must be accompanied by authority% administrative. • Interference 'by warships( with merchant ships of another states in the Bigh Seas3 Stateless ships 'non registered% what about 8ags of • convenience can argue( Bot pursuit • o )he oending vessel must have the commenced the commission of the crime in the territorial waters. 2ight of approach • )reaties •
)hru the eorts of 2oom :;regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3
)here is a system on determining how this should be accomplished. *nd when developing countries also have some commitments. So naay target for developed countries for e9ample on their reduction of carbon emission because they are deemed to be the cause% developed countries of climate change. So we have to ta"e a loo" at these $onventions and the Ayoto Protocol for this.
*lright% we go to &ars. )here are two systems of Law in the study of the Law of &ar. &hat is jus ad bello and jus in bello
@us ad bellu# refers to the set of laws or rules governing the resort of armed con8ict. )his tal"s about the lawfulness of wars meaning whether or not engaging in war is legitimate. *nd what then comes into your mind if you are to test the lawfulness or legitimacy of engaging in war. &hen% as you have already learned% use of force is prohibited in *rticle 6% paragraph : of the +nited Nations $harter. )his is a simple legal system in so far as war in concerned because this should only spea" of what I!m tal"ing about rules concerning legitimacy of engaging in war. Bow may a state lawfully engage in war in other words. ou #ust said it% selfdefense. &e!ll tal" about therefore of selfdefense as a basis for the lawful e9ercise or use of force. If we tal" about legitimacy in engaging in war% we only have to tal" about selfdefense apart from +N collective action as I will show later on.
Now% the second rule or system of law or laws in war is ?us in ,ello.
@us in %ello 2ules governing the actual conduct of armed con8ict dealing with the lawful acts in times of war and usually this is what we call the study of International Bumanitarian Law 'IBL(.
&ithout suCcient provocation State * attac"s State ,. *s a result% State , retaliated with the same amount of force and that resulted to an armed con8ict. Is International Bumanitarian Law applicable in this case
)hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3
)he other valid ground for the use of force or may be considered as legitimate is as you have mentioned earlier% !el)9de)ense. Selfdefense may be individual or collective selfdefense. So you go to *rticle *BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 individuals that there should be an unlawful aggression and that it should be imminent Should anticipatory selfdefense be allowed )hatGs a modern concern also. )here could be be a possibility of mista"e on the part of the state e9ercising anticipatory selfdefense. )here could also be a possibility of using it in the prete9t of ma"ing an attac". )hat is the most dangerous for how would you "now that indeed there is that basis for preventive or anticipatory selfdefense. If you loo" at the de/nition in *rticle an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 that it can be shown that the local courts had already initiated the prosecution of the crimes committed by individuals and by the way the sub#ects of international criminal law are actually individuals and not states although in some respect there maybe State responsibility but practically the sub#ects of international criminal law are individuals not States. )hat is the principle of complementarity that the 2ome Statute or the I$$ e9ercises #urisdiction only as complementary to national or domestic #urisdiction and as much as possible it must yield to an ongoing investigation or prosecution of crimes committed within a territory of a State. It is only when it can be shown that a State fails or refuses to even initiate investigations or prosecute perpetrators that the I$$ can e9ercise #urisdiction. ou will also see in the 2ome Statute the principle of complementarity. So this principle is to stri"e a balance between the sovereignty of a State and also the need to punish International crimes as an erga omnes norm of States. *nd also% there is a speci/c de/nition of armed con8ict as you will see later on and the threshold for the e9istence of armed con8ict is high. So there are in fact probably called Darmed con8ictE but will not compel the I$$ to ta"e #urisdiction of that Darmed con8ictE if the threshold have not been met. So therefore which court will acquire #urisdiction over the atrocities of course the domestic courts. In other words% this is highly e9ceptional that an I$$ not a local court will e9ercise #urisdiction on certain crimes. So you need to "now what is an armed con8ict and if there is no armed con8ict li"e what is referred to as internal disturbance in a state. So% what is the eect if an I$$ will not acquire #urisdiction because IBL is not applicable to a situation because it cannot be characteri@ed as an armed con8ict under the 2ome Statute )he domestic courts will have #urisdiction over the case. In an I$$% usually there are two stages in the prosecution of an accused. 7ne is the stage dealing with procedure and the other one is the stage dealing with the merits of the case. So that in the /rst stage of the prosecution matters concerning #urisdiction will certainly be a common issue that will be discussed during the procedural stage because it is in here that the parties will have to establish whether or not there is an armed con8ict so that the I$$ can e9ercise #urisdiction. For as long as it can be established that there is an armed con8ict then they will proceed in the deliberation on whether or not the con8ict is international or not international armed con8ict. So% after that you ta"e note of the fundamental principles that govern the conduct of war% military necessity in relation to collateral damage% principle of proportionality% principle of distinction and then individual responsibility. K.
)hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 'a( Murder5 'b( 09termination5 'c( 0nslavement5 'd( -eportation or forcible transfer of population5 'e( Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law5 'f( )orture5 'g( 2ape% se9ual slavery% enforced prostitution% forced pregnancy% enforced sterili@ation% or any other form of se9ual violence of comparable gravity5 'h( Persecution against any identi/able group or collectivity on political% racial% national% ethnic% cultural% religious% gender as de/ned in paragraph H% or other grounds that are universally recogni@ed as impermissible under international law% in connection with any act referred to in this paragraph or any crime within the #urisdiction of the $ourt5 'i( 0nforced disappearance of persons5 '#( )he crime of apartheid5 '"( 7ther inhumane acts of a similar character intentionally causing great suering% or serious in#ury to body or to mental or physical health. So% that!s the common element there. )he attac" must be widespread and systematic and directed against a civilian population% with the "nowledge of such element as being a civilian population. &ar crimes also usually are committed in an international armed con8ict. So% there are crimes which can only be committed when there is an international armed con8ict. *nd there are also crimes which can be committed only when there is an internal armed con8ict. *rmed con8ict is always an element in the application of IBL. )here is a distinction between internal armed con8ict and mere internal disturbance. +sually% e9amples ani class% riots. )he documents that you need to consider in studying IBL% the : >eneva $onventions of 4J:J and additional protocols. )hese are the : >eneva $onventions3 I. II. III. I1.
*melioration of the $ondition of the &ounded and Sic" *rmed Forces *melioration of the $ondition of &ounded% Sic" and Shipwrec" Members of )reatment of prisoners of war Protection of civilian persons in time of &ar
*ll these : >eneva $onventions has what is "nown as common *rticle H. )a"e note of common article H because most of these govern international armed con8ict but common article H is applicable to noninternational armed con8ict. So when you study the : >eneva $onventions% you!re trying to loo" at *rticle H in each one and see how relevant is what we call in IBL as the common article H.
)hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 civilian as a result of attac" may be #usti/ed under the principle of military necessity. )hatGs another situation where death of civilian may not actually be punishable. )a"e for e9ample an attac" on a lawful military target. LetGs say a military base of the opponent. Is that a lawful target 7f course. ,ecause it is a military ob#ect. It can be a lawful sub#ect of attac" in times of armed con8ict. )here are% letGs say 4;%;;; soldiers in that particular military station for e9ample. 7ne day for e9ample% ?ollibee delivers 4;%;;; chic"en #oy and employing 4%;;; crew of ?ollibee. )hey are there at the time that the attac" was made. Bow do you call the deaths of the crew of ?ollibee *nd the destruction of ?ollibee vehicles $ollateral damage. So itGs not really prohibited to ma"e an attac" thatGll result to deaths of civilians. So now% tal"ing about that therefore% there is an ongoing diCculty in determining the application of human rights law and at the same time applying the IBL. )here is a theory that says in time of armed con8ict% it is an entirely new set of laws that should apply. In times of armed con8ict% we follow IBL and no other laws. )herefore% human rights law should step aside. ,ecause there are provisions also in IBL that ta"e care of some human rights provisions. )orture for e9ample% that is also prohibited. ,ut itGs not that because there is torture during armed con8ict that human rights law may be applied but it may be the case that the speci/c provisions in IBL that should be applied rather than the human rights law. ,ecause basically human rights law% you apply that in times of peace% and then you apply IBL in times of war. ,ut that distinction is not yet acceptable in international law. 0ven until now there is diCculty in determining when human rights law may be applied and when it may not be applied. ,ecause certainly% whenever there is armed con8ict% you apply IBL. )he issue now is whether you can still tal" about human rights law when there is already IBL Sir% ayaw mi tagae og problem. )agae miGg solution. 'laughter(. IGm #ust raising that up. So we have the 6 "inds of armed con8ict3 international armed con8ict and non international armed con8ict. ,ut /rst% what is an armed con8ict )here is armed con8ict when there is a resort to... H "inds ni% in other words3 4.*rmed force between states 'state * v. state ,( 6.or protracted armed violence between governmental authority and organi@ed armed groups% second "ind. '*rmed Forces of the Philippines v. organi@ed armed group in the territory( H.or between such groups within state. Ominority 'armed group( for e9ample v. ma#ority armed group% it can happen. *nd in fact in many cases in every states naa may minority and now they want to insist independence5 very common in secessionist movements. ,ut ta"e not% that while there are H "inds of armed con8ict% one is a con8ict between )hru the eorts of 2oom :;an% ?acildo% Nardo% Lulu% Parawan% 2e#uso% Salas% ,alt% 1erador% ,ristol% -igaum% ,enin% Pe=a% Pla@a% Sayson% Susvilla% )ampus% >regorio% Sanche@ PIN*A* >*BI N>* ,*)$B 6;4<
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Public International Law Finals Notes 201 3 So riots are considered internal disturbances.
>overned by $ommon *rticle H of the : >eneva $onventions and *dditional Protocol II
Noninternational Internal *rmed $on8ict vs. Internal -isturbance
)ests3 4. Intensity of the $on8ict 'Protracted( consider the seriousness of the attac"s% increase in armed clashes% spread of clashes over territory and over a period of time% etc.
6. 7rgani@ation of the Parties '7rgani@ed *rmed >roups( headquarters% @ones of operations% ability to procure and transport arms% etc.
*re there thresholds on this respect
☀ Protracted
if the con8ict for e9ample lasted for two wee"s% protracted
,ased on the decisions of ad hoc tribunals% 'before I$$% we created ad hoc tribunals to punish international crimes e9. International criminal tribunal of the former ugoslavia 'I$)(% International criminal tribunal of 2wanda 'I$)2( they were dissolved after the prosecution of the accused peersons in the atrocities committed in the former ugoslavia and 2wanda% after that% no more na% thatGs why I$$ was created(
)hru the eorts of 2oom :;asoline Stations% $hurch% )emples [ )hese are not military ob#ects per se. ,ut it can be a Military 7b#ect if in the course of war% the opponents% for )hru the eorts of 2oom :;enocide. Y-o not ever thin" that every "illing of a group is considered >enocide. /rticle ; !&596 S(/(genocide> means any of the following acts committed with intent to destroy , in whole or in part, a national# ethnical# racial or religious group, as such$ !a
?illing members of the group@
!b
Causing serious bodily or mental harm to members of the group@
!c 4eliberately inAicting on the group conditions of life calculated to bring about its physical destruction in whole or in part@ !d
Imposing measures intended to prevent births within the group@
!e
8orcibly transferring children of the group to another group.
• •
Limited ang genocide to those groups mentioned. D*s suchE is important because that is where you have to loo" into the Mens 2ea of the perpetrators. &ere they "illed because of their being a race 7r their being a religious group 7r for some other purpose
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