Public International Law Green Notes 2015

Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015

Public International Law Recent Jurisprudence: Tubbataha reef was damaged due to the fault of US Guardian. The respondents argued that they are immune from suit and did not participate to UNCLOS. The court ruled that non-membership in the UNCLOS does not mean that the US will disregard the rights of the Philippines as a Coastal State over its internal waters and territorial sea. The court thus expects the US to bear ―international responsibility‖ under Art. 31 in connection with the USS Guardian pgrounding which adversely affected the Tubbataha reefs. Most Rev. Pedro D. Arigo, Et Al. vs. Scott H. Swift in His Capacity As Commander Of The U.S. 7th Fleet, Et Al., G.R. No. 206510, September 16, 2014, J. Villarama, Jr. The question of whether the Philippine government should espouse claims of Malaya Lolas against the Japanese government is a foreign relations matter, the authority for which is committed by our Constitution not to the courts but to the political branches. In this case, the Executive Department has already decided that it is to the best interest of the country to waive all claims of its nationals for reparations against Japan in the Treaty of Peace of 1951. The wisdom of such decision is not for the courts to question. Indeed, except as an agreement might otherwise provide, international settlements generally wipe out the underlying private claims, thereby terminating any recourse under domestic law. Isabelita C. Vinuya, Et Al. vs. Executive Secretary Alberto G. Romulo, Et Al., G.R. No. 162230, April 28, 2010, J. Del Castillo As may be palpably observed, the terms and conditions of Loan Agreement No. 4833-PH, being a project-based and government-guaranteed loan facility, were incorporated and made part of the SLA that was subsequently entered into by LBP with the City Government of Iligan. Consequently, this means that the SLA cannot be treated as an independent and unrelated contract but as a conjunct of, or having a joint and simultaneous occurrence with, Loan Agreement No. 4833-PH. Its nature and consideration, being a mere accessory contract of Loan Agreement No. 4833-PH, are thus the same as that of its principal contract from

which it receives life and without which it cannot exist as an independent contract. Indeed, the accessory follows the principal; and, concomitantly, accessory contracts should not be read independently of the main contract. Hence, as LBP correctly puts it, the SLA has attained indivisibility with the Loan Agreement and the Guarantee Agreement through the incorporation of each other‘s terms and conditions such that the character of fone has likewise become the character of the other. Land Bank of The Philippines vs. Atlanta Industries, Inc., G.R. No. 193796, July 2, 2014, J. Perlas-Bernabe The Responsibility to Protect (R2P) is an emerging international norm that imposes a responsibility on states — and where they fail, on the international community — to protect individuals within their borders. Today, perhaps nowhere is protection more needed than in Syria. Since Bashar al-Assad‘s regime met initially peaceful Syrian protests with military force in March of 2011, a raging civil war between the Assad regime and a number of rebel groups has claimed more than 191,000 lives and resulted in numerous horrific human rights violations. Nonetheless, on May 22, 2014, at the 7180th meeting of the U.N. Security Council, the Council determines threats to international peace and security and adopts recommendations or Chapter VII coercive measures (ICC referral, sanctions, and military intervention) to resolve them. A draft resolution referring the ever-worsening situation in Syria to the International Criminal Court (ICC) for investigation fell to a double veto by Russia and China. The failure of this resolution marks the fourth time that Russia and China have used their vetoes to block a Security Council resolution condemning the violence in Syria and pressuring the Assad regime to seek a peaceful settlement. This pattern highlights the tension between the purpose of R2P and the structure of the U.N. Security Council and strengthens the argument that R2P will prove unable to fulfill its larger purpose of elevating concern for individuals over national interests in deliberations on international crisis response. The Syrian Civil War began as a series of protests inspired by demonstrations in North Africa and in other parts of the Middle East. The protests initially inspired some minor changes in governance. For example, the

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 government repealed the forty-eight-year state of emergency. The violence escalated as security forces opened fire on protesters in March and April of 2011, deployed troops with tanks to select cities, imposed a communications blackout, and unleashed an artillery assault on the city of Homs. As a militarized opposition coa-lesced, both the Arab League‘s and the U.N.‘s efforts to negotiate a peaceful outcome consistently failed. The Arab League sponsored a peace plan calling for the cessation of violence against protesters. The Syrian Government agreed and then violated it . Even Kofi Annan, acting as Joint Special Envoy for the U.N. and the Arab League to negotiate a compromise, grew pessimistic about the prospect of negotiations and resigned, as did his replacement, Lakhdar Brahimi. Since then, bombardments by government forces and armed opposition, extremist, and terrorist groups have killed hundreds of civilians, all sides have targeted vital services, such as safe drinking water, electricity, and medical facilities. Neither women nor children have been spared from abuse. Violations against children include ―the killing and maiming of children, child recruitment and arbitrary detention and abduction, and there are reports of insurgent groups stoning women for alleged adultery, and systematic torture by security forces is widespread. The capacity of U.N. agencies to meet humanitarian needs is stretched thin — António Guterres, U.N. High Commissioner for Refugees, has called the conflict ―the most dramatic humanitarian crisis that we have ever faced.‖ The Security Council sought to respond by condemning the violence and pressuring the Syrian Government to seek a political settlement. U.N. SCOR, 69th Sess., 7180th mtg. at 4, U.N. Doc. S/PV.7180 (May 22, 2014) Draft Security Council Resolution Referring Syrian Conflict to the International Criminal Court Vetoed by Russia and China (13 in Favor, 2 Against). Recent Draft Resolution : U.N. SCOR, 69th Sess., 7180th mtg. at 4, U.N. Doc. S/PV.7180 (May 22, 2014) J AN 12, 201 5 128 Harv. L. Rev. 1055 Who is a refugee? A refugee is legally defined as a person who is outside his or her country of nationality and is unable to return due to a well-founded fear of persecution because of his or her race,

religion, nationality, political opinion, or membership in a particular social group. By receiving refugee status, individuals are guaranteed protection of their basic human rights, and cannot be forced to return to a country where they fear persecution. Who is an internally displaced person (IDP)? Internally displaced people (IDPs) have been forced to leave their homes as a result of armed conflict, generalized violence, or human rights violations, but unlike refugees they have not crossed an international border. Although internally displaced people outnumber refugees by more than two to one, no single UN or other international agency has responsibility for responding to internal displacement. As a result, the global response to the needs of IDPs is often ineffective. Who is a stateless person? Stateless people are individuals who do not have a legal bond of nationality with any state, including people who have never acquired citizenship of their birth country or who have lost their citizenship and have no claim to citizenship of another state. Children of stateless people often are born into statelessness and few manage to escape that status. According to the 1954 Convention relating to the Status of Stateless Persons, a de jure stateless person is someone ―not considered as a national by any State under the operation of its law.‖ Persons are considered de facto stateless if they have an ineffective nationality, cannot prove they are legally stateless, or if one or more countries dispute their citizenship. The Office of the UN High Commissioner for Refugees (UNHCR) has the international mandate for responding to the needs of stateless people and leading the global effort to reduce statelessness. Historically, however, the agency has devoted few resources to this aspect of its mandate. What is an asylum seeker? An asylum seeker is a person who is seeking to be recognized as a refugee, but has not yet received formal refugee status. During 2013, some 1.1 million individual applications for asylum or refugee status were submitted to governments and UNHCR offices. With 109,600 asylum claims, Germany was for the first time since 1999 the world‘s largest

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 recipient of new individual applications, followed by the United States of America (84,400) and South Africa (70,000). Can a country refuse to admit refugees? Under international law, refugees must not be forced back to the countries they have fled. This principle of non-refoulement is the key provision of the 1951 UN Refugee Convention, which defines international law and guidelines to protect refugees. Host governments are primarily responsible for protecting refugees and most states fulfill their obligations to do so. Others, however, avoid their responsibility by pointing to a lack of resources, threats to national security, fears of domestic political destabilization, or the arrival of even greater numbers of refugees. This is a violation of international law that is binding on all states. What is the Principle of Non-Refoulement? The principle of non-refoulement is well established in customary international law, prohibiting states from expelling, deporting or extraditing persons to countries where they face torture or ill-treatment.

Non-refoulement is a fundamental rule

of refugee law and several human rights instruments forbid the return of a person who has reason to fear for his/her life or physical integrity in his/her country of origin. What is the 1951 Refugee Convention?

The 1951 Geneva Convention is the main international instrument of refugee law. The Convention clearly spells out who a refugee is and the kind of legal protection, other assistance and social rights he or she should receive from the countries who have signed the document. The Convention also defines a refugee‘s obligations to host governments and certain categories or people, such as war criminals, who do not qualify for refugee status. The Convention was limited to protecting mainly European refugees in the aftermath of World War II, but another document, the 1967 Protocol, expanded the scope of the Convention as the problem of displacement spread around the world.

What are the solutions to refugee and displacement crises? The UN Refugee Agency (UNHCR) speaks of three ―durable solutions‖ to refugee crises: return; local integration; and third country resettlement. The most desirable way to end forced displacement is for people to return home when conflict ends. To return in safety and dignity, families need help with transportation and require basic goods for restarting their lives, including a provisional supply of food, seeds and tools, and building materials for home repair or construction. In addition, support for the reconstruction of schools and health clinics is also critical. Read more about Refugees International‘s work on Return & Reintegration. If instability persists or if the individual will face persecution when they return, then integrating into the country of asylum is another option. Most countries hosting refugees, however, are reluctant to allow refugees to integrate and become citizens, fearing competition for scarce resources between the refugees and residents of a particular locale. Resettlement to a third country can also be a solution for refugees who cannot return home, cannot establish a new life in their country of asylum, or are considered to be particularly vulnerable. Resettlement can never be an option for more than a tiny minority of the world‘s refugee population, but still benefits tens of thousands of refugees who have made new lives in countries such as the United States, Canada, Sweden, and Norway. Public International Law A. Concepts 1. Obligations Erga Omnes What is obligation erga omnes? It is an obligation of every State towards the international community as a whole. All States have a legal interest in its compliance, and thus all States are entitled to invoke responsibility of such an obligation.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 An international obligation of such character and importance that their violation by any State allows any other State to invoke the violators liability, even if only one state or only a few states incurred direct material damage. It usually has to do with issues on standing before a court or tribunal. Other scholars further make a distinction between obligations erga omnes omnium, which is strictly speaking, the obligation owed to the international community as a whole, and erga omnes partes, which pertains to obligations owed by states under a multilateral treaty. However, it may also be the case that a multilateral treaty partakes of both sets of obligations, inasmuch as the same merely restates norms already held as binding under customary international law (North Sea

Continental Shelf Cases ,1969; Nicaragua v. US, 1984; Kuroda v. Jalandoni, 1949)

Barcelona Traction Light and Power Co. Case (1970): The grant of standing to sue because of violationsof erga omnes obligations is premised on the idea that the maintenance of some norms are of interest to the entire world community, their violation being an injury to the interest of not only the state directly offended, but also of all states. Illustrations: (1) Outlawing of acts of aggression and of genocide (2) Principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination (Barcelona Traction Case, 1970) (3) The right to self-determination (East Timor case, 1994; the Wall Opinion case) 2. Jus Cogens A preemptory norm which States cannot derogate or deviate from in their agreements. It is a mandatory norm and stands on a higher category than a jus dispositivum norm which States can set aside or modify by agreement.

llustrations: (1) The prohibition against the use of force under the U.N. Charter (Nicaragua Case) (2) Law on genocide (3) Principle of Self-Determination (4) Prohibition against apartheid (5) Crimes against humanity (6) Prohibition against slavery and slave trade (7) Piracy (Brownlie, Magallona) In the 2012 case Questions Concerning the Obligation to Prosecute or Extradite [Belgium v. Senegal (2012)], the ICJ affirmed the obligation of states parties to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) to either prosecute alleged perpetrators or extradite them to another country with jurisdiction for prosecution (the Grotian aut dedere, aut punire principle). The case involved Hissène Habré, the former president of Chad, who stands charged in Belgian courts for torture, war crimes, and crimes against humanity against thousands of victims during his term in office from 1982– 1990. Habré, who has been residing in Senegal as a political asylee since he was ousted from power two decades ago, was being sought for extradition by Belgium. The ICJ in this case observed that ―the prohibition on torture is part of customary international law and has become a peremptory norm (jus cogens).‖ However, the obligation to prosecute alleged perpetrators of torture only arises after the Convention has entered into force for that state party. The ICJ said, after noting that a number of complaints regarding serious offenses committed by Habré after that date for which Senegal is obligated to prosecute, said Belgium is entitled to invoke Senegal‘s compliance with the Convention beginning in 1999; in fact, Beligum has been requesting Senegal‘s compliance since 2000 when the first complaint against Habré was filed in Senegal. The ICJ, in this landmark decision, affirms that memberstates to the CAT may demand performance of obligations under the the same, even if the alleged torture occurred before the applicant state joined the Convention and even if the alleged torturer or victims have no connection with the applicant state. The ruling therefore allows the

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 enforcement of universal jurisdiction for torture. Thus it held that ―States parties to the Convention have a common interest to ensure . . . that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity,xxx‖ stressing that these obligations partake of the nature of ‗obligations erga omnes partes‘ in the sense that each State party has an interest in compliance with them in any given case.‖ Thus, any state party may make a claim for the cessation of any breach by another state party, whether or not the applicant state has any connection at all to the victims. In the 2007 case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, 2007), the ICJ finally erased all doubts as to the existence of a duty to prevent genocide separate from the duty to punish its perpetrators under the Genocide Convention. In the controversial Vinuya (2010) case, the Philippine Supreme Court dismissed a petition by the Malaya Lolas - a group of Filipino Comfort Women – seeking state espousal of their claims against Japan. Towards the end of its Judgment of April 28, 2010, the Supreme Court expressed its great sympathy for Petitioners, saying its members ―cannot begin to comprehend the unimaginable horror they underwent at the hands of the Japanese soldiers.‖ And then it goes on to say that it is ―deeply concerned‖ that – in ―apparent contravention of fundamental principles of law‖ – the Malaya Lolas ―appear to be without a remedy to challenge those that have offended them before appropriate fora.‖ The High Court had rejected the Petitioner‘s claim that rape and other sexual crimes committed against them were already prohibited as violations of jus cogens norms during World War II. In their pending Motion for Reconsideration, the Petitioners argue that early on, there has developed as a binding customary norm in international law an absolute prohibition on rape. Before San Francisco Peace Treaty in 1951, it was already penalized as a war crime and as a crime against humanity in the 1949 Geneva Conventions, as a crime against humanity in German Courts that tried war criminals of World War II and as

a war crime in the International Military Tribunal in the Far East that tried Japanese war criminals of World War II. In fact, they assert that right after World War I, a Preliminary Conference at Versailles created a Commission on Responsibility of the Authors of War and on Enforcement of Penalties. Too, the 15-member Commission – of which Japan was part – submitted a report to the Conference on the responsibility of belligerent states in which it included a list of punishable war crimes as violations of the laws and customs of war. These included, among other crimes, (1) rape, (2) abduction of girls and women for the purpose of enforced prostitution, (3) deportation of civilians, (4) internment of civilians under inhuman conditions and and (5) forced labor of civilians in connection with the military operations. The Philippine Supreme Court‘s decision sparked a massive controversy when significant portions of it were discovered to have been lifted from various sources without proper attribution. In addition to the plagiarism – which is a word for word lifting of pages from the three articles without the proper attribution – it appears that these stolen passages were also twisted to support the court‘s erroneous conclusion that the Filipina comfort women of World War Two have no further legal remedies. All three plagiarized articles by foreign authors –an article published in 2009 in the Yale Law Journal of International Law, a book published by the Cambridge University Press in 2005, and, an article published in 2006 in the Western Reserve Journal of International Law – argue otherwise. A Motion for Reconsideration and a Supplemental Motion for Reconsideration subsequently filed by lawyers on behalf of the Malaya Lolas highlighting the alleged plagiarism and twisting of sources are pending with the Court. The Malaya Lolas, in their Supplemental Motion for Reconsideration said the High Court‘s ruling, penned by Justice Mariano Del Castillo, "made it appear that these sources support the assailed judgment's arguments for dismissing instant petition when, in truth, the plagiarized sources even make a strong case for the petition's claims."

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 3. Concept of ex aequo et bono Ex Aequo Et Bono Literally meaning ―what is equitable and good‖, it is a standard that a court may apply to decide a case when the parties to the dispute so agree. This means simply that the court may reach a fair compromise in balancing the interests of the parties. Judgment will not be on the basis of the sources of international law, as listed in Art. 38(1) of the ICJ Statute, but on the grounds of fairness and justice. The court may have to rely on its own understanding of the broader context of equity and outside the accepted norms of law under Art. 38(1). But in the North Sea Continental Shelf cases, the ICJ found a situation where the Parties were under an obligation to act in such a way that in the particular case, and taking all the circumstances into account, equitable principles were applied, which meant that its decision on the applicability of the equitadistance principle in the delimitations proceeding was not founded on ex aequo et bono. It said thus: ―[i]t was precisely a rule of law that called for the application of equitable principles, and in such cases as the present ones the equidistance method could unquestionably lead to inequity.‖ B. International and National Law How may international law become a part of domestic law? Explain. Under the 1987 Constitution, international law can become part of the sphere of domestic law either by transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism such as local legislation. The incorporation method applies when, by mere constitutional declaration, international law is deemed to have the force of domestic law. Treaties become part of the law of the land through transformation pursuant to Article VII, Section 21 of the Constitution which provides that ―no treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of all the

members of the Senate.‖ Thus, treaties or conventional international law must go through a process prescribed by the Constitution for it to be transformed into municipal law that can be applied to domestic conflicts. (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G.R. No. 173034, October 19, 2007). May generally accepted principles of international law form part of the law of the land even if they do not derive from treaty obligations? Explain. Yes. Generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the laws of the land even if they do not derive from treaty obligations. The classical formulation in international law sees those customary rules accepted as binding result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion jurissive necessitates(opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. (Mijares v. Ranada, G.R. No. 139325, April 12, 2005, 455 SCRA 397). State the concept of the term ―generally accepted principles of international law‖ and give examples. ―Generally accepted principles of international law‖ refers to norms of general or customary international law which are binding on all states, i.e., renunciation of war as an instrument of national policy, the principle of sovereign immunity, a person‘s right to life, liberty and due process, and pactasuntservanda, among others. The concept of ―generally accepted principles of law‖ has also been depicted in this wise: Some legal scholars and judges upon certain ―general principles of law‖ as a primary source of international law because they have the ―character of jus rationale‖ and are ―valid through all kinds of human societies.‖ (Judge Tanaka in his dissenting opinion in the 1966 South West Africa Case, 1966, I.C.J. 296).O‘Conell holds that certain principles are part of international law because they are ―basic to legal systems generally‖ and hence

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 part of the jus gentium. These principles, he believes, are established by a process of reasoning based on the common identity of all legal systems. If there should be doubt or disagreement, one must look to state practice and determine whether the municipal law principle provides a just and acceptable solution. (Pharmaceutical & Health Care Assn. of the Phil. v. Sec. of Health Duque, et al., G.R. No. 173034, October 9, 2007). What is customary international law? Explain. Custom or customary international law means ―a general and consistent practice of states followed by them from a sense of legal obligation (opinion juris)‖. This statement contains the two basic elements of custom: the material factor, that is, how states behave, and the psychological or subjective factor, that is, why they behave the way they do. The initial factor for determining the existence of custom is the actual behavior of states. This includes several elements: duration, consistency, and generality of the practice of states. The required duration can be either short or long. Duration therefore is not the most important element. More important is the consistency and the generality of the practice. Once the existence of state practice has been established it becomes necessary to determine why states behave the way they do. Do states behave the way they do because they consider it obligatory to behave thus or do they do it only as a matter of courtesy? Opiniojuris or the belief that a certain form of behavior is obligatory, is what makes practice an international rule. Without it, practice is not law. (Pharmaceutical & Health Care Assn. of the Phil. v. Health Secretary Duque, et al., G. R. No. 173034, October 9, 2007).

June 2003, ASIL; Pharmaceutical & Health Care Assn. of the Phils. v. Health Secretary Duque, et al., G.R. No. 173034, October 9, 2007). It does not fall under the international law set forth in Article 38, Chapter III of the 1946 Statute of the International Court of Justice. Give examples of soft law. Certain declarations and resolutions of the UN General Assembly fall under this category. (Louis Henkins, et al., International Law, Cases and Materials, 2nd Ed.). The UN Declaration of Human Rights is an example. This was applied in Government of Hongkong Special

Administrative Region v. Olalia; Mejoff v. Director of Prisons; 90 Phil. 70 (1951); Mijares v. Ranada; Shangri-la International Hotel Management Ltd. v. Developers Group of Companies Inc., G.R. No. 159938, March 31, 2006, 486 SCRA 405. It is resorted to in order to reflect and respond to the changing needs and demands of constituents of certain international organizations like the WHO. What is the effect of Municipal Law in International Law?

2 Views: 1. Doctine Of Incorporation - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere.

What is a soft law? Is it an international law? Soft law is an expression of nonbinding norms, principles and practices that influence state behavior. (David Fidler, Development Involving SARS, International Law & Infections Disease Control at the FiftySix Meeting of the World Health Assembly,

a. Such is recognized in art. 2, sec. 2, as the Philippines "adopts the generally accepted principles of international law as part of the law of the land." b. Rules of international law are given equal standing with, but are not superior to, national legislative enactments. Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it. (Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000)

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 2. Doctrine Of Transformation - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law.

Elements of a state: Art. 1, Montevideo Convention: 1. 2. 3. 4.

a permanent population; a defined territory; government; capacity to enter into relations with other States

C. Sources Primary Sources (Article 38, ICJ Statute) (1) International Conventions, whether general or particular, establishing rules expressly recognized by the contracting states (Treaties); (2) International Custom, as evidence of a general custom accepted as law; (3) General Principles of Law recognized by civilized nations; Subsidiary Sources

If State A claims that State B acted without or in excess of its jurisdiction, who has the burden of proving that State B indeed acted without or in excess of its jurisdiction? There is no issue of having a burden of proving jurisdiction as both states A and B are considered equal in international law and both may prosecute crimes committed within their own jurisdiction. The President of State A is in the territory of State B. Can the President of State A claim that State B cannot exercise jurisdiction over his person?

(1) Judicial Decisions; and (2) Teachings of the most highly qualified publicists of the various nations. (Art. 38, ICJ Statute)

Yes. While jurisdiction of State B is complete and absolute on its territory, it admits two exceptions: (1) sovereign immunity, and

(a) Treaties, Customs and General Principles (Primary Sources) create law; while court decisions publicists‘ teachings constitute evidence of what is the law. (b) With respect to the three primary sources, the order the enumeration does not provide a hierarchy in all cases.

(2) immunity of the representative of states (diplomatic and consular immunities). President A is the sitting foreign sovereign and therefore immune from any claim of jurisdiction over his person. Resolving Conflicts of Jurisdiction

NOTE: Although treaties are mentioned first, they are not ipso facto superior to customs and

(1) The balancing test (2) International comity

(3) Forum non conveniens

general principles. D. Subjects

Foreign State:

1. States

United States of America, et al. v. Hon. V. M. Ruiz, G.R. No. L-35645, May 22, 1985

A group of people, more or less numerous, permanently living in a definite territory, under an independent government organized for political ends and capable of entering into legal relations with other states (Art. 1, Montevideo Convention on the Rights and Duties of States, 1933)

The traditional rule of State immunity exempts a State from being sued in the courts of another State without its consent or waiver. This rule is a necessary consequence of the principles of independence and equality of States. However, the rules of International Law are not petrified; they are constantly developing and evolving. And because the

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 activities of states have multiplied, it has been necessary to distinguish them-between sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure gestionis). The result is that State immunity now extends only to acts jure imperii The restrictive application of State immunity is now the rule in the United States, the United Kingdom and other states in Western Europe.

bring an international claim for reparations, the UN nevertheless possessed functional personality. (Reparations for Injuries Advisory Opinion, 147) IO‘s are deemed to have powers not expressly granted in their charters where these unstated powers are either: (1) implicitly bestowed in their charters; or (2) necessary to effect powers expressly granted.

2. International organizations The status and powers of an IO is determined by agreement and not by general or customary international law. IO‘s are considered subjects of international law ―if their legal personality is established by their constituent instrument (charter).‖ Further, its constituent rights and duties, or capacities and immunities, are limited to those set forth in the treaty creating the international organization. Thus, legal personality in this context is a relative concept. (Magallona) PRECONDITIONS PERSONALITY

FOR

3. Individuals While States have traditionally been deemed to be subject of international law, individuals have likewise become in some degree subjects of that law. However, individuals may assume the status of subjects of international law only on the basis of agreement by states and in specific context, not in accordance with general or customary IL.

Illustrations: (1) Art. 187(c), (d) and (e), UNCLOS:

INTERNATIONAL

The jurisdiction of the Sea-Bed Disputes Chamber of the ITLOS extends to disputes between parties to contracts relating to the exploitation of the Area. Parties to such contracts may be natural or juridical persons.

(1) It must constitute a permanent association of states, with lawful objects, equipped with organs; (2) There must be a distinction, in terms of legal powers and purposes, between the organization and its member states; and

(2) Claims Settlement Declaration of 1981 between US and Iran: Direct access to the Iran-US Claims Tribunal is given to individuals for the settlement of their claims involving more than $250,000 either against Iran or the US.

(3) It must have legal powers that it may exercise on the international plane and not solely within the national systems of one or more states.

(3) Mixed Claims Tribunals established in the Treaties of Peace concluded at the end of WWI:

Capacity for Bring a Claim for Reparation An International Organization such as the United Nations (UN) must be deemed to have such powers which, though not expressly granted in its Charter, are conferred upon it by

Individuals enjoyed locus standi in actions against States relating to contracts, debts, and property adversely affected by the war.

necessary implication as being essential to the performance of its duties. Thus, though the UN Charter did not expressly clothe the UN with the capacity to

(4) London Agreement of the International Military Tribunal at Nuremberg:

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 In crimes against peace, war crimes and crimes against humanity, international law imposes duties and liabilities upon individuals as well as upon States.

(b) Envoys, Ministers and Internuncios – accredited to Heads of State; (c) Charges d‘affaires – accredited to Ministers of Foreign Affairs.

(5) Art. VI of the Convention on the Prevention and Punishment of the Crime of Genocide:

(2) Diplomatic Staff – those engaged in diplomatic activities and are accorded diplomatic rank. (3) Administrative and Technical Staff – those employed in the administrative and technical service of the mission.

―Parties charged with genocide‖ refers to individuals whose responsibility is thus under international law.

(4) Service Staff – those engaged in the domestic service of the mission (Nachura)

E. Diplomatic and consular law

Diplomatic Intercourse, also referred to as the Right of Legation, is the right of the State to send and receive diplomatic missions, which enables States to carry on friendly intercourse.

NOTE: In the Philippines, the President appoints (Sec. 16, Art.VII, Constitution), sends and instructs the diplomatic and consular representatives. Functions and Duties:

Agents of Diplomatic Intercourse Head of State The head of State represents the sovereignty of the State, and enjoys the right to special protection for his physical safety and the preservation of his honor and reputation. Upon the principle of exterritoriality, his quarters, archives, property and means of transportation are inviolate. He is immune from criminal and civil jurisdiction, except when he himself is the plaintiff, and is not subject to tax or exchange or currency restrictions. The Foreign Office The body entrusted with the conduct of actual day-to-day foreign affairs. It is headed by a Secretary or a Minister who, in proper cases, may make binding declarations on behalf of his government. (Legal Status of Eastern Greenland Case, 1933) The Diplomatic Corps the collectivity of diplomatic envoys accredited to a State. It is composed of: Refers

to

all

(1) Represent the sending State in the receiving State; (2) Protect in the receiving State the interests of the sending State and its nationals, within the limits allowed by international law; (3) Negotiate with the government of the receiving State; (4) Ascertain, by all lawful means, the conditions and developments in the receiving State and reporting the same to the sending State; (5) Promote friendly relations between the sending State and receiving State, and developing their economic, cultural and scientific relations (Art. 3(1), VCDR) (6) If diplomatic relation is severed, entrust the protection of its nationals to the diplomatic mission of a third State acceptable to the receiving State (Art. 45, VCDR) (7) May protect the interest of a third State by agreement with the receiving State, if there is no diplomatic relations between the third State and the receiving State (Art. 46, VCDR)

(1) Head of Mission – classified into: (a) Ambassadors or nuncios – accredited to Heads of State, and other heads of mission of equivalent rank;

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 Diplomatic Immunities and Privileges (Asked 9 Times in the Bar Exam)

(a) (b) (c)

Theoretical Basis of Diplomatic Privileges and Immunities (1) Extraterritoriality theory – the premises of the diplomatic mission represent a sort of extension of the territory of the sending State

Despite these differences, to be considered an executive agreement, the following three requisites provided under the Vienna Convention must nevertheless concur:

(2) Representational theory – the diplomatic mission personifies the sending State

(a) the agreement must be between states; (b) it must be written; and (c) it must governed by international law.

(3) Functional necessity theory – privileges and immunities are necessary to enable the diplomatic mission to perform its functions F. Treaties

does not require legislative concurrence; is usually less formal; and deals with a narrower range of subject matters.

The first and the third requisites do not obtain in the case at bar.

A 'treaty' is: (1) (2) (3) (4) (5)

an international agreement; concluded between States; in written form;

governed by international law;

whether embodied in a single instrument or in two or more related instruments; and (6) whatever its particular designation -

Art.2(1), Vienna Convention on the Law of Treaties or VCLOT)

Under the VCLOT, the term ―treaty‖ includes all agreements between states, regardless of how they are called. Thus, for purposes of international law, treaties, executive agreements, exchanges of notes, etc. are all treaties. Note, however, that Philippine law makes a distinction between treaties and executive agreements. Both are equally binding, but only treaties require the concurrence of the Senate to be effective. Article 2(1) of the Vienna Convention on the Law of Treaties (Vienna Convention) defines a treaty as follows: 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. In Bayan Muna v. Romulo (2011), this Court held that an executive agreement is similar to a treaty, except that the former

First, the Supreme Court said that CNMEG, the Chinese contractor, is neither a government nor a government agency, noting that Contract Agreement was not concluded between the Philippines and China, but between Northrail and CNMEG. Indeed, by the terms of the Contract Agreement, Northrail is a government-owned or controlled corporation, while CNMEG is a corporation duly organized and created under the laws of the People‘s Republic of China. Thus, both Northrail and CNMEG entered into the Contract Agreement as entities with personalities distinct and separate from the Philippine and Chinese governments, respectively. Second, neither can it be said that CNMEG acted as agent of the Chinese government. The fact that the Chinese Ambassador to Manila, in his letter dated 1 October 2003, described CNMEG as a "state corporation" and declared its designation as the Primary Contractor in the Northrail Project, did not mean it was to perform sovereign functions on behalf of China. That label was only descriptive of its nature as a state-owned corporation, and did not preclude it from engaging in purely commercial or proprietary ventures. Finally, the Contract Agreement itself expressly stated that is to be governed by Philippine law, while as defined in the VCLOT, a treaty or an executive agreement is governed by international law.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 But contrast the holding of the Court in Northrail with its ruling in the earlier case of Abaya v. Ebdane (2007), where the High Court ruled that a loan agreement, coupled with an exchange of notes between two governments, constitutes an Executive Agreement. The Exchange of Notes indicated that the two governments have reached an understanding concerning Japanese loans to be extended to the Philippines and that these loans were aimed at promoting our country‘s economic stabilization and development efforts.

Requisites for Validity (1) Treaty Making Capacity Possessed by all states as an attribute of sovereignty. International organizations also possess treaty-making capacity, although limited by the organization‘s purpose. (2) Competence of the Representative/Organ Making the Treaty Generally exercised by the head of state.

Full Powers - Refers to the authority of

An Exchange of Notes is a record of a routine agreement that has many similarities with the private law contract.

a person to sign a treaty or convention on behalf of a state.

The agreement consists of the exchange of two documents, each of the parties being in the possession of the one signed by the representative of the other. Under the usual procedure, the accepting State repeats the text of the offering State to record its assent. The signatories of the letters may be government Ministers, diplomats or departmental heads. The technique of exchange of notes is frequently resorted to, either because of its speedy procedure, or, sometimes, to avoid the process of legislative approval.

the head of state, head of government or foreign minister must produce such instrument in order to sign a treaty binding their government. Such a person is called a plenipotentiary.

The Supreme Court held that "treaties, agreements, conventions, charters, protocols, declarations, memoranda of understanding, modus vivendi and exchange of notes" all refer to "international instruments binding at international law." Both the 1969 Vienna Convention and the 1986 Vienna Convention do not distinguish between the different designations of these instruments. Instead, their rules apply to all of those instruments as long as they meet the common requirements. Agreements concluded by the President which fall short of treaties are commonly referred to as executive agreements and are no less common in our scheme of government than are the more formal instruments: treaties and conventions. They sometimes take the form of exchange of notes and at other times that of more formal documents denominated "agreements" or "protocols".

Plenipotentiary - Persons other than

(3) Parties Must Freely Give Consent: If consent was given erroneously, or it was induced by fraud, the treaty shall be voidable. (4) Object and Subject Matter Must be Lawful (5) Ratification in Accordance with the Constitutional Process of the Parties Concerned Doctrine of Transformation In Philippine Law, treaties have to be transformed in order to be part of Philippine law. A treaty is ―transformed‖ when a treaty is ratified after it has been concurred in by the Senate (Sec. 21, Art.VII, Constitution). After ratification, a treaty shall be deemed as if legislated by our Legislature.

La Chemise Lacoste v. Fernandez (1984): Lacoste, a French corporation, sued local counterfeiters before Philippine courts. When the counterfeiters challenged its legal personality to sue before Philippine courts, the Court held that the Philippines has ratified international conventions for the protection of intellectual property, and it would frustrate the object of these conventions if Lacoste is barred

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015

Genocide Conventions Advisory Opinion)

from filing its claims directly in Philippine courts. Philippine Law

Invalid Treaties (1) If the treaty violates a jus cogens norm of international law (void);

In the Philippines, the negotiation of treaties and their ratification are executive functions, subject to concurrence of the Senate. Under Sec. 21, Art. VII, (Treaty Clause) of the Constitution, treaties must receive the concurrence of the Senate before they may be effective.Pimentel v. Executive Secretary (2005):

(2) If the conclusion of a treaty is procured by threat or use of force (void); (3) Error of fact, provided that such fact formed an essential basis of a state‘s consent to be bound;

The power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate is limited only to giving or withholding its consent, or concurrence, to the ratification. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by SC via a writ of mandamus. SC has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties.

(4) If the representative of a state was corrupted to consent by another negotiating state; (5) If consent was obtained through fraudulent conduct of another negotiating state; (6) If the representative consented in violation of specific restrictions on authority, provided: i. the restriction was notified to the other negotiating States

Amendment or Modification of Treaty

General Rule: Consent of all parties is required.

ii. prior to the representative expressing such consent;

Exception: If the treaty itself so allows, two States may modify a provision only insofar as their relationship inter se.

(7) If consent was given in violation of provisions of internal law

Reservations

regarding competence to conclude treaties that is manifest and of

A unilateral statement made by a state upon entering a treaty whereby it purports to exclude or modify the legal effect of certain provision/s of the treaty in their application to the reserving state (Art. 19, VCLOT).

fundamental importance. Grounds for Termination (1) Expiration

modify or exclude the provisions of a treaty: (1) Where the treaty expressly prohibits reservations in general;

(2) Where

the treaty expressly prohibits that specific reservation being made; or

(3) Where

the

reservation is incompatible with treaty‘s object and purpose (Reservation to the

term,

or

of a party accordance with the treaty;

in

withdrawal

Exceptions: A reservation shall not operate to

of

the

(2) Extinction of a party to the treaty, when the treaty rights and obligations would not devolve upon the successor state; (3) Mutual agreement of parties; (4) Denunciation or desistance by a party;

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015

(5) Supervening performance; (6) Conclusion

impossibility of

inconsistent treaty;

a

of

subsequent

international law which renders void any existing, conflicting treaty. 1. Vienna Convention on the Law of Treaties

BAYAN v. Zamora, G.R. No. 138570, October 10, 2000

(7) Loss of subject matter;

(VFA as a treaty in international law)

(8) Material breach or violation of treaty (9) Fundamental

Change of Circumstance (Rebus sic stantibus)

A contracting state may unilaterally withdraw from a treaty when a vital or fundamental change of circumstance occurs such that the foundation upon which its consent to be bound initially rested has disappeared. (Art. 62, VCLOT)

Requisites of rebus sic stantibus: (a) Change is so substantial that the foundation of the treaty has altogether disappeared (b) Change was unforeseen or unforeseeable at the time of the treaty‘s perfection (c) Change was not caused by the party invoking the doctrine (d) Doctrine was invoked within a reasonable time (e) Treaty‘s duration is indefinite (f) Doctrine cannot operate retroactively (it must not adversely affect provisions which have already been complied with prior to the vital change) (10)Outbreak of war between the parties, unless the treaty relates to the conduct of war (ex. The Four Geneva Conventions). (11) Severance of diplomatic relations (if such relationship is indispensable for the treaty‘s application). (12)Jus Cogens Application: Emergence of a new peremptory norm of general

This Court is of the firm view that the phrase ―recognized as a treaty‖ means that the other contracting party accepts or acknowledges the agreement as a treaty. To require the other contracting state, the United States of America in this case, to submit the VFA to the United States Senate for concurrence pursuant to its Constitution, is to accord strict meaning to the phrase. Well-entrenched is the principle that the words used in the Constitution are to be given their ordinary meaning except where technical terms are employed, in which case the significance thus attached to them prevails. Its language should be understood in the sense they have in common use. Moreover, it is inconsequential whether the United States treats the VFA only as an executive agreement because, under international law, an executive agreement is as binding as a treaty. To be sure, as long as the VFA possesses the elements of an agreement under international law, the said agreement is to be taken equally as a treaty. A treaty, as defined by the Vienna Convention on the Law of Treaties, is ―an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.‖ There are many other terms used for a treaty or international agreement, some of which are: act, protocol, agreement, compromis d‘ arbitrage, concordat, convention, declaration, exchange of notes, pact, statute, charter and modus vivendi. All writers, from Hugo Grotius onward, have pointed out that the names or titles of international agreements included under the general term treaty have little or no legal significance. Certain terms are useful, but they furnish little more than mere description. Article 2(2) of the Vienna Convention provides that ―the provisions of paragraph 1

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 regarding the use of terms in the present Convention are without prejudice to the use of those terms, or to the meanings which may be given to them in the internal law of the State.‖ Thus, in international law, there is no difference between treaties and executive agreements in their binding effect upon states concerned, as long as the negotiating functionaries have remained within their powers. International law continues to make no distinction between treaties and executive agreements: they are equally binding obligations upon nations.

Nicolas v. Romulo, G.R. No. 175888, February 11, 2009 (These are petitions for certiorari, etc. as special civil actions and/or for review of the Decision of the Court of Appeals in Lance Corporal Daniel J. Smith v. Hon. Benjamin T. Pozon, et al., in CA-G.R. SP No. 97212, dated January 2, 2007) The rule in international law is that a foreign armed forces allowed to enter one‘s territory is immune from local jurisdiction, except to the extent agreed upon. The Status of Forces Agreements involving foreign military units around the world vary in terms and conditions, according to the situation of the parties involved, and reflect their bargaining power. But the principle remains, i.e., the receiving State can exercise jurisdiction over the forces of the sending State only to the extent agreed upon by the parties. As a result, the situation involved is not one in which the power of this Court to adopt rules of procedure is curtailed or violated, but rather one in which, as is normally encountered around the world, the laws (including rules of procedure) of one State do not extend or apply – except to the extent agreed upon – to subjects of another State due to the recognition of extraterritorial immunity given to such bodies as visiting foreign armed forces. Nothing in the Constitution prohibits such agreements recognizing immunity from jurisdiction or some aspects of jurisdiction (such as custody), in relation to long recognized subjects of such immunity like Heads of State, diplomats and members of the

armed forces contingents of a foreign State allowed to enter another State‘s territory. On the contrary, the Constitution states that the Philippines adopts the generally accepted principles of international law as part of the law of the land. (Art. II, Sec. 2). xxx It is clear that the parties to the VFA recognized the difference between custody during the trial and detention after conviction, because they provided for a specific arrangement to cover detention. And this specific arrangement clearly states not only that the detention shall be carried out in facilities agreed on by authorities of both parties, but also that the detention shall be ―by Philippine authorities.‖ Therefore, the RomuloKenney Agreements of December 19 and 22, 2006, which are agreements on the detention of the accused in the United States Embassy, are not in accord with the VFA itself because such detention is not ―by Philippine authorities.‖ Respondents should therefore comply with the VFA and negotiate with representatives of the United States towards an agreement on detention facilities under Philippine authorities as mandated by Art. V, Sec. 10 of the VFA.

How may one invoke rules of International Law before a Philippine court? International law may be used in the same manner as citing primary sources of Philippine laws. It may be invoked by citing treaties, customary law or general principles of international law as written by highly qualified publicists.

What are the Philippine rules on treatymaking? Philippine rules on treaty making are enunciated in the 1987 Constitution and Executive Order No. 59 (1997). Treaty agreements shall have the concurrence of 2/3 of the Senate and ratification by the President.

Ichong v. Hernandez 101 Phil. 1155 (1957) Another subordinate argument against the validity of the law is the supposed violation thereby of the Charter of the United Nations and of the Declaration of the Human

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 Rights adopted by the United Nations General Assembly. We find no merit in the Nations Charter imposes no strict or legal obligations regarding the rights and freedom of their subjects (Hans Kelsen, The Law of the United Nations, 1951 ed. pp. 29-32), and the Declaration of Human Rights contains nothing more than a mere recommendation or a common standard of achievement for all peoples and all nations (Id. p. 39.) That such is the import of the United Nations Charter aid of the Declaration of Human Rights can be inferred the fact that members of the United Nations Organizations, such as Norway and Denmark, prohibit foreigners from engaging in retail trade, and in most nations of the world laws against foreigners engaged in domestic trade are adopted. The Treaty of Amity between the Republic of the Philippines and the Republic of China of April 18, 1947 is also claimed to be violated by the law in question. All that the treaty guarantees is equality of treatment to the Chinese nationals "upon the same terms as the nationals of any other country." But the nationals of China are not discriminating against because nationals of all other countries, except those of the United States, who are granted special rights by the Constitution, are all prohibited from engaging in the retail trade. But even supposing that the law infringes upon the said treaty, the treaty is always subject to qualification or amendment by a subsequent law (U. S. vs. Thompson, 258, Fed. 257, 260), and the same may never curtail or restrict the scope of the police power of the State (plaston vs. Pennsylvania, 58 L. ed. 539.)

Gonzales v. Hechanova 9 SCRA 230 (1963) It is contended that the Government of the Philippines has already entered into two (2) contracts for the Purchase of rice, one with the Republic of Vietnam, and another with the Government of Burma; that these contracts constitute valid executive agreements under international law; that such agreements became binding effective upon the signing thereof by representatives the parties thereto; that in case of conflict between Republic Acts Nos. 2207 and 3452 on the one hand, and aforementioned contracts, on the other, the latter should prevail, because, if a treaty and a statute are inconsistent with each other,

the conflict must be resolved — under the American jurisprudence — in favor of the one which is latest in point of time; that petitioner herein assails the validity of acts of the Executive relative to foreign relations in the conduct of which the Supreme Court cannot interfere; and the aforementioned contracts have already been consummated, the Government of the Philippines having already paid the price of the rice involved therein through irrevocable letters of credit in favor of the sell of the said commodity. We find no merit in this pretense. The Court is not satisfied that the status of said tracts as alleged executive agreements has been sufficiently established. The parties to said contracts do not pear to have regarded the same as executive agreements. But, even assuming that said contracts may properly considered as executive agreements, the same are unlawful, as well as null and void, from a constitutional viewpoint, said agreements being inconsistent with the provisions of Republic Acts Nos. 2207 and 3452. Although the President may, under the American constitutional system enter into executive agreements without previous legislative authority, he may not, by executive agreement, enter into a transaction which is prohibited by statutes enacted prior thereto. Under the Constitution, the main function of the Executive is to enforce laws enacted by Congress. The former may not interfere in the performance of the legislative powers of the latter, except in the exercise of his veto power. He may not defeat legislative enactments that have acquired the status of law, by indirectly repealing the same through an executive agreement providing for the performance of the very act prohibited by said laws. The American theory to the effect that, in the event of conflict between a treaty and a statute, the one which is latest in point of time shall prevail, is not applicable to the case at bar, for respondents not only admit, but, also insist that the contracts adverted to are not treaties. Said theory may be justified upon the ground that treaties to which the United States is signatory require the advice and consent of its Senate, and, hence, of a branch of the legislative department. No such justification can be given as regards executive agreements not authorized by previous legislation, without completely upsetting the principle of separation of powers and the system of checks and balances which are fundamental in our

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 constitutional set up and that of the United States. As regards the question whether an international agreement may be invalidated by our courts, suffice it to say that the Constitution of the Philippines has clearly settled it in the affirmative, by providing, in Section 2 of Article VIII thereof, that the Supreme Court may not be deprived "of its jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error as the law or the rules of court may provide, final judgments and decrees of inferior courts in — (1) All cases in which the constitutionality or validity of any treaty, law, ordinance, or executive order or regulation is in question". In other words, our Constitution authorizes the nullification of a treaty, not only when it conflicts with the fundamental law, but, also, when it runs counter to an act of Congress.

Tañada v. Angara, G.R. No. 118295, May 2, 1997 Third issue (WTO Agreement and Legislative Power) The Constitution has not really shown any unbalanced bias in favor of any business or enterprise, nor does it contain any specific pronouncement that Filipino companies should be pampered with a total proscription of foreign competition. On the other hand, respondents claim that WTO/GATT aims to make available to the Filipino consumer the best goods and services obtainable anywhere in the world at the most reasonable prices. Consequently, the question boils down to whether WTO/GATT will favor the general welfare of the public at large. This Court notes and appreciates the ferocity and passion by which petitioners stressed their arguments on this issue. However, while sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. Unquestionably, the Constitution did not envision a hermit-type isolation of the country from the rest of the world. In its Declaration of Principles and State Policies, the Constitution "adopts the generally accepted principles of international law as part of the law of the

land, and adheres to the policy of peace, equality, justice, freedom, cooperation and amity, with all nations." By the doctrine of incorporation, the country is bound by generally accepted principles of international law, which are considered to be automatically part of our own laws. One of the oldest and most fundamental rules in international law is pacta sunt servanda — international agreements must be performed in good faith. "A treaty engagement is not a mere moral obligation but creates a legally binding obligation on the parties . . . A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations undertaken." By their inherent nature, treaties really limit or restrict the absoluteness of sovereignty. By their voluntary act, nations may surrender some aspects of their state power in exchange for greater benefits granted by or derived from a convention or pact. After all, states, like individuals, live with coequals, and in pursuit of mutually covenanted objectives and benefits, they also commonly agree to limit the exercise of their otherwise absolute rights. Thus, treaties have been used to record agreements between States concerning such widely diverse matters as, for example, the lease of naval bases, the sale or cession of territory, the termination of war, the regulation of conduct of hostilities, the formation of alliances, the regulation of commercial relations, the settling of claims, the laying down of rules governing conduct in peace and the establishment of international organizations. The sovereignty of a state therefore cannot in fact and in reality be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very nature of membership in the family of nations; and (2) limitations imposed by treaty stipulations. As aptly put by John F. Kennedy, "Today, no nation can build its destiny alone. The age of self-sufficient nationalism is over. The age of interdependence is here." In the foregoing treaties the Philippines has effectively agreed to limit the exercise of its sovereign powers of taxation, eminent domain

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 and police power. The underlying consideration in this partial surrender of sovereignty is the reciprocal commitment of the other contracting states in granting the same privilege and immunities to the Philippines, its officials and its citizens. The same reciprocity characterizes the Philippine commitments under WTO-GATT. Treaty-making under Philippine law

Pimentel v. Office of the Executive Secretary, G.R. No. 158088, July 6, 2005 The case is about a petition for

mandamus filed by Pimentel et al. to compel

the Office of the Executive Secretary and the Department of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal Court to the Senate of the Philippines for its concurrence in accordance with Section 21, Article VII of the 1987 Constitution. Justice Isagani Cruz, in his book on International Law, describes the treaty-making process in this wise: The usual steps in the treaty-making process are: negotiation, signature, ratification, and exchange of the instruments of ratification. The treaty may then be submitted for registration and publication under the U.N. Charter, although this step is not essential to the validity of the agreement as between the parties.

Negotiation

may be undertaken directly by the head of state but he now usually assigns this task to his authorized representatives. These representatives are provided with credentials known as full powers, which they exhibit to the other negotiators at the start of the formal discussions. It is standard practice for one of the parties to submit a draft of the proposed treaty which, together with the counterproposals, becomes the basis of the subsequent negotiations. The negotiations may be brief or protracted, depending on the issues involved, and may even ―collapse‖ in case the parties are unable to come to an agreement on the points under consideration. If and when the negotiators finally decide on the terms of the treaty, the same is opened for signature. This step is primarily intended as a means of authenticating the instrument and for the purpose of symbolizing the good faith of the parties; but, significantly, it does not indicate the final consent of the state in cases where

ratification of the treaty is required. The document is ordinarily signed in accordance with the alternat, that is, each of the several negotiators is allowed to sign first on the copy which he will bring home to his own state. Ratification, which is the next step, is the formal act by which a state confirms and accepts the provisions of a treaty concluded by its representatives. The purpose of ratification is to enable the contracting states to examine the treaty more closely and to give them an opportunity to refuse to be bound by it should they find it inimical to their interests. It is for this reason that most treaties are made subject to the scrutiny and consent of a department of the government other than that which negotiated them. xxx The last step in the treaty-making process is the exchange of the instruments of ratification, which usually also signifies the effectivity of the treaty unless a different date has been agreed upon by the parties. Where ratification is dispensed with and no effectivity clause isembodied in the treaty, the instrument is deemed effective upon its signature. Petitioners‘ submission that the Philippines is bound under treaty law and international law to ratify the treaty which it has signed is without basis. The signature does not signify the final consent of the state to the treaty. It is the ratification that binds the state to the provisions thereof. In fact, the Rome Statute itself requires that the signature of the representatives of the states be subject to ratification, acceptance or approval of the signatory states. Ratification is the act by which the provisions of a treaty are formally confirmed and approved by a State. By ratifying a treaty signed in its behalf, a state expresses its willingness to be bound by the provisions of such treaty. After the treaty is signed by the state‘s representative, the President, being accountable to the people, is burdened with the responsibility and the duty to carefully study the contents of the treaty and ensure that they are not inimical to the interest of the state and its people. Thus, the President has the discretion even after the signing of the treaty by the Philippine representative whether or not to ratify the same. The Vienna Convention on the Law of Treaties does not contemplate to defeat or even restrain this power of the head of states.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 If that were so, the requirement of ratification of treaties would be pointless and futile. It has been held that a state has no legal or even moral duty to ratify a treaty which has been signed by its plenipotentiaries. There is no legal obligation to ratify a treaty, but it goes without saying that the refusal must be based on substantial grounds and not on superficial or whimsical reasons. Otherwise, the other state would be justified in taking offense. It should be emphasized that under our Constitution, the power to ratify is vested in the President, subject to the concurrence of the Senate. The role of the Senate, however, is limited only to giving or withholding its consent, or concurrence, to the ratification. Hence, it is within the authority of the President to refuse to submit a treaty to the Senate or, having secured its consent for its ratification, refuse to ratify it. Although the refusal of a state to ratify a treaty which has been signed in its behalf is a serious step that should not be taken lightly, such decision is within the competence of the President alone, which cannot be encroached by this Court via a writ of mandamus. This Court has no jurisdiction over actions seeking to enjoin the President in the performance of his official duties. The Court, therefore, cannot issue the writ of mandamus prayed for by the petitioners as it is beyond its jurisdiction to compel the executive branch of the government to transmit the signed text of Rome Statute to the Senate. Petition was dismissed.

PCIJ Advisory Opinion on Tunis and Morocco Nationality Decrees (1923).

G. Nationality and Statelessness

―Diplomatic protection‖ theory:

Are there international rules on nationality? Rule 1: Each state determines who its nationals are. Limitation 1: custom, Art.15 of UDHR (1) Everyone has a right a right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Limitation 2: treaty, Convention on the Reduction of Statelessness (NOTE: PH not a party) Bases for determining membership in political entity  

Membership in political entity determines  

Nationality of juridical persons shall be in the place of registration. (Barcelona Traction Case,

Belgium v. Spain, 1970)

Is ―nationality‖ different from ―citizenship‖? Yes. Nationality refers to membership in a nation (ethnic, cultural) while citizenship refers to membership in a state (political).

Status Legal rights

Importance of membership in political entity  

Nationality is a legal bond having as its basis a social fact of attachment. Nottebohm

Case (Lechtenstein v. Guatemala, 1955)

Accident of birth Free choice

Individual may ask for protection State may claim ―right‖ to protect

-injury to national is injury to the state Statelessness The condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. (Cruz) The Universal Declaration of Human Rights:

Who determines whether an individual is a national (or citizen) of a certain state?

(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

It is usually the state who determines their nationals or citizen. This was affirmed in

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 Covenant Relating to the Status of Stateless Persons

(1) The injured alien must first exhaust all local remedies

A stateless person is entitled to, among others, the right to religion and religious instruction, access to courts, elementary education, public relief and assistance and rationing of products in short supply, as well as treatment of no less favorable than that accorded to aliens.

(2) He must be represented in the int'l claim for damages by his own state (ordinarily, individuals have no standing to bring a claim before international law). I. Jurisdiction of States

H. State responsibility

1.

1. Doctrine of state responsibility STATE RESPONSIBILITY 1. It is the doctrine which holds a state responsible for any injury sustained by an alien within its jurisdiction. Because of an international wrong imputable to it, the state will be responsible if it is shown that it participated in the act or omission complained of or was remiss in redressing the resultant wrong. 2. Elements of State Responsibility a, breach of an international obligation b, attributability 3. Types of State responsibility a, Direct responsibility-attaches to the state if the wrongful act/omission was effected through any of its superior organs acting on its behalf b, Indirect responsibility- Acts of the following are attributable to the state: i, state organs ii, other persons exercising elements of governmental authority in the absence or default of the official authorities and in circumstances calling for the exercise of those elements of authority iii, insurrectional or other movement which becomes the new government 4. Conditions for the enforcement of the doctrine of state responsibility

Territoriality principle: The fundamental source of jurisdiction is sovereignty over territory. A state has absolute, though not necessarily exclusive, power to prescribe, adjudicate, and enforce rules for conduct within its territory.

2. Nationality principle: Every state has jurisdiction over its nationals even when those nationals are outside the state. 3. Protective principle: A state may exercise jurisdiction over conduct outside its territory that threatens its security, as long as that conduct is generally recognized as criminal by the states in the international community. 4. Universality principle: Recognizes that certain offenses are so heinous and so widely condemned that any state, if it captures the offender, may prosecute and punish that person on behalf of the world community regardless of the nationality of the offender or victim or where the crime was committed. 5. Passive personality principle: A state may apply law – particularly criminal law – to an act committed outside its territory by a person not its national where the victim of the act was its national. This principle has not been ordinarily accepted for ordinary torts or crimes, but is increasingly accepted as applied to terrorist and other organized attacks on a state‘s nationals by reason of their nationality, or to assassination of a state‘s diplomatic representatives of other officials.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 J. Treatment of aliens

e.

1. Extradition

f.

a) Fundamental principles g. 1.

EXTRADITION is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment.

2. Basis of Extradition: a treaty. Outside of treaty, there is no rule in international law compelling a State to extradite anyone. Such may be done, however, as a gesture of comity.

h.

hearing (provide counsel de officio if necessary) appeal to CA within 10 days whose decision shall be final and executory; decision forwarded to DFA through the DOJ; Individual placed at the disposal of the authorities of requesting state-costs and expenses to be shouldered by requesting state.

c) Distinguished from deportation

Deportation – is the expulsion of an alien who is considered undesirable by the local state, usually but not necessarily to his own state. It is usually a unilateral act of the local state and is made in its own interests.

3. Principles: a. Principle of Specialty - a fugitive who is extradited may be tried only for the crime specified in the request for extradition and such crime is included in the list of extraditable offenses in the treaty. b.

Under the Political offense exception, most extradition treaties provide that political and religious offenders are not subject to extradition. Attendant Clause- assassination of head of state or any member of his family is not regarded as political offense for purposes of extradition. Also for the crime of genocide.

c. There can only be extradition if there is a treaty between the states. b) Procedure PROCEDURE FOR EXTRADITION: (Judicial and diplomatic process of request and surrender) PD 1069 a. Request through diplomatic representative with: b. DFA forwards request to DOJ c. DOJ files petition for extradition with RTC, d. RTC issues summons or warrant of arrest to compel the appearance of the individual;

The Philippines entered into an extradition treaty with another country which provided that it would apply crimes committed before its effectivity. The country asked the Philippines to extradite X for a crime committed before the effectivity of the treaty. X argued the extradition would violate the prohibition against ex post facto laws. Is he right? No. The constitutional prohibition applies to penal laws only. The extradition treaty is not a penal law.(Wright v. CA, 235

SCRA 341)

Secretary of Justice v. Hon. Lantion And Mark Jimenez (G.R. # 139465, Oct. 17, 2000 (overturning the Court‘s previous decision in 322 SCRA 160 dated Jan. 18, 2000) FACTS: By virtue of an extradition treaty between the US and the Philippines, the US requested for the extradition of Mark Jimenez for violations of US tax and election laws. Pending evaluation of the extradition documents by the Philippine government, Jimenez requested for copies of the US' extradition request. The Secretary of Justice denied that request. ISSUE: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? HELD: Private respondent is bereft of the right to notice and hearing during the

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 evaluation stage of the extradition process. Extradition is a proceeding sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited. There is NO deprivation of the right to due process. Dissent (original decision): Under the extradition treaty, the prospective extraditee may be provisionally arrested pending the submission of the request. Because of this possible consequence, the evaluation process is akin to an administrative agency conducting an investigative proceeding, and partakes of the nature of a criminal investigation. Thus, the basic due process rights of notice and hearing are indispensable. Assuming that the extradition treaty does not allow for such rights, the Constitutional right to procedural due process must override treaty obligations. When there is a conflict between international law obligations and the Constitution, the Constitution must prevail.

the purpose of securing due recognition and respect for the rights of others and of the meeting the just requirements of morality, public order and the general welfare in a democratic society. Rights may not be exercised contrary to the purposes and principles of the UN. (Article 29 of the UDHR) 2. International Political Rights

1. Universal Declaration of Human Rights

What is the Universal Declaration of Human Rights (UDHR)? The UDHR is the basic international statement of the inalienable and inviolable rights of human beings. It is the first comprehensive international human rights instrument.

What are the rights covered by the UDHR? proclaims two

broad

(a) civil and political rights; and (b) economic, rights.

social,

and

on

Civil

and

What are some of the civil and political rights recognized under the ICCPR?

K. International Human Rights Law

The UDHR category of rights:

Covenant

cultural

Are these rights subject to limitations? Yes, the exercise of these rights and freedoms may be subject to certain limitations, which must be determined by law, only for

1.

Right of the peoples to selfdetermination (art. 1) 2. Right to an effective remedy (art. 2) 3. Equal rights of men and women in the (a) enjoyment of civil and political rights/non-discrimination on the basis of sex (Art. 3) 4. Right to life (art. 6) 5. Freedom from torture or cruel, inhuman or degrading punishment (art. 7) 6. Freedom from slavery (art. 8) 7. Right to liberty and security of person (art. 9) 8. Right to be treated with humanity in cases of deprivation of liberty (art. 10) 9. Freedom from imprisonment for failure to fulfill a contractual obligation (art. 11) 10. Freedom of movement and the right to travel (art. 12) 11. Right to a fair, impartial and public trial (art. 14) 12. Freedom from ex post fact laws (art. 15) 13. Right of recognition everywhere as a person before the law (art. 16) 14. Right to privacy (art. 17) 15. Freedom of thought, conscience, and religion (art. 18) 16. Freedom of expression (art. 19) 17. Freedom of peaceful assembly (art. 21) 18. Freedom of association (art. 22) 19. Right to marry and found a family (art. 23) 20. Right of a child to protection, a name and nationality (art. 24) 21. Right to participation, suffrage, and access to public service (art. 25) 22. Right to equal protection before the law (art. 26)

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 23. Right of minorities to enjoy their own culture, to profess and prtactice their religion and to use their own language. When can a State Party derogate from the ICCPR? A state party to the ICCPR may derogate from the treaty ―in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.‖ (Art. 4 (1), ICCPR)

ii. right to adequate food (Art. 11 (1).11 (2)); iii. to adequate clothing (Art. 11(1)) 2. Right to health (Art. 12) 3. Right to education (Arts. 13 &14) 4. Cultural rights (Art. 15) What are the States-parties‘ obligations under the Covenant?

What are the Non-derogable rights under the ICCPR? Even in times of national emergency, no derogation can be made from the following: 1. Right to life (art. 6) 2. Freedom from torture or cruel, inhuman or degrading punishment (art. 7) 3. Freedom from slavery (art. 8) 4. Freedom from imprisonment for failure to fulfill a contractual obligation (art. 11) 5. Freedom from ex post fact laws (art. 15) 6. Right of recognition everywhere as a person before the law (art. 16) 7. Freedom of thought, conscience, and religion (art. 18) (Art. 4 (2), ICCPR) 3. International Covenant on Economic, Social and Cultural Rights What are the rights guaranteed by the Covenant? (1) Right of self-determination (Art. 1) (2)Right to work and accompanying rights thereto (Arts. 6, 7, 8) (3)Right to Social Security and other social rights (Arts. 9& 10) (4)Adequate standard of living (Art. 11 (1)) including: i.

1. Specific Obligations under Article 2 To take steps ti the maximum available resources, towards the progressive realization of the rights in the covenant; Non-discriminationstates guarantee the exercise of the rights without discrimination (Art. 2 [2]). 2. Three General duties/ obligations of states: Just like the ICCPR and other human rights conventions, ESCR imposes three different types of obligations: a. To respect- requires to refrain from interfering with enjoyment of rights. Thus, there is violation if it engages in forced eviction; b. To protect- requires states to prevent violations by third parties. Thus, failure to ensure compliance by private employers with basic labor standards violates the right to work; c. To fulfill- requires states to take appropriate measures (legislative, judicial etc.) towards the full realization of the rights. Thus, the states‘ failure to provide essential primary health care to the needy amounts to a violation.

right to adequate housing (Art. 11 (1));

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 L. International Neutrality

Humanitarian

Law

and

(2) With respect to the persons mentioned above, the following acts shall remain prohibited:

What is international humanitarian law (IHL)? (a) Violence to life and person, in particular, murder of all kinds, mutilation, cruel treatment and torture; (b) Taking of hostages; (c) Outrages upon personal dignity, in particular humiliating and degrading treatment; (d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

It is the law that governs armed conflict short of war, when a state may use force (jus ad bello) and how combatants should behave (jus in bello). 1. Categories of armed conflicts a) International armed conflicts An Armed Conflict exists when there is resort to the use of force: (1) between two states (international armed conflict), or (2) between government authorities and an organized armed group, or (3) between such groups within the same territory –non-international armed conflict (Prosecutor v. Dusko Tadic, 1995)

Note: Wars of National Liberation have been classified as international armed conflicts (ICRC). Mere internal disturbances and tensions, or riots or isolated or sporadic acts of armed violence does not amount to an armed conflict (Tadic) Note: Cases of this type are governed by the provisions of human rights law and the relevant domestic laws. b) Internal or non-international armed conflict

(3) The wounded and the sick shall be collected and cared for. The application of provisions above does not affect the legal status of the parties to the conflict. Hence, an insurgent or a rebel group does not assume belligerency status. Article 3 is indifferent to the legal character of such group. It must be noted that Article 3 is to be applied as a minimum. Common Article 3 and Protocol II Protocol II develops and supplements common Article 3 (Art. 1, Protocol II).

Conventions are the only provision applicable to non-international armed conflicts. It defines the following obligations: (1) Persons taking no active part in the hostilities, including (a) members of the armed forces who have laid down their arms and (b) those placed hors de combat, shall in all instances be treated humanely without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria.

It applies to: (1) all armed conflicts which take place in the territory of a State Party, (2) between its armed forces and dissident armed forces or other organized groups (3) which, under responsible command, exercise such control over a part of its territory (4) as to enable to carry out sustained and concerted military operations and to implement the Protocol.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 Application of Article 3 and Protocol II The rules in Article 3 are recognized as customary norms of international law, and therefore applicable to all States. However, Protocol II is a treaty and binding only States that are parties to it. Its rules, however, may still develop into customary norms binding on all states, by the general practice of states coupled with their acceptance of them as law (opinio juris). Control-of-Territory The test of whether a dissident armed force has control of territory is when such armed force can (1) carry out sustained and concerted military operations, and whether it has (2) the capacity to comply with the provisions of the Protocol. In a non-international armed conflict where the dissident armed forces do not exercise such control over territory, Article 3, and not Protocol II may be applicable. The result is that this situation may give rise to two categories of non-international armed conflicts: one where only Article 3 applies, and the other where both Article 3 and Protocol II apply.

Wars by peoples against racist, colonial and alien domination "for the implementation of their right to self-determination and independence is legitimate and in full accord with principles of international law," and that any attempt to suppress such struggle is unlawful (Resolution 3103 [XXVIII]). When peoples subjected to alien domination resort toforcible action in order to exercise their right to selfdetermination, they "are entitled to seek and to receive support in accordance with the purposes and principles of the Charter (1970 Resolution 2625 XXV) 2. Core international obligations of states in International Humanitarian Law Combatants: Members of the armed forces of a Party to a conflict (Art. 3(2), Protocol 1). They have the right to participate directly and indirectly in hostilities. ( Art 43(2) Protocol 1)

Note: Only combatants are allowed to engage in hostilities. A combatant is allowed to use force, even to kill, and will not be held personally responsible for his acts, as he would be where he to the same as a normal citizen (Gasser)

Hors de combat: Under Art. 41(2) of Protocol I, a person is hors de combat if he:

c) War of national liberation

(1) Is in the power of an adverse party to the conflict; (2) He clearly expresses an intention to surrender; or (3) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending himself, provided that in any of these cases, he abstains from any hostile act and does not attempt to escape.

An armed conflict may be of such nature in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination. This conflict, however, is considered an

international armed conflict under Art. 1, par. 3 and 4 of Protocol I.

Note: Article 2 common to the four Geneva conventions provides that ―all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.‖ Hence, the Geneva conventions and Protocol I govern wars of national liberation.

Persons hors de combat shall be protected and treated humanely without any adverse distinction. Their right to life and physical and moral integrity shall be respected Protected Persons: They are those who enjoy or are entitled to protection under the Geneva Conventions. Categories of protected persons include:

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 (1) The wounded, shipwrecked; (2) Prisoners of War (3) Civilians

the

sick,

and

(1)

Members of the armed forces of a Party to the conflict, including militias or volunteer corps (2) Militias or volunteer corps operating in or outside their own territory, even if such territory is occupied provided:

For purposes of protection, civilians are further classified as: (1) Civilians who are victims of conflict in countries involved (2) Civilians in territories of the enemy; (3) Civilians in occupied territories; (4) Civilians internees

(a) They are being commanded by a person responsible for his subordinates (b) Have a fixed distinctive sign recognizable at a distance (c) Carries arms openly (d) Conducts their operations in accordance with the laws and customs of war

3. Principles of International Humanitarian Law What are the fundamental IHL principles?

(3) Members of regular armed forces who profess allegiance to a government or authority not recognized by the Detaining Power (4) Civilians who accompany the armed forces, provided that they have received authorization from the armed forces which they accompany (5) Members of crews of merchant marine and the crews of civil aircraft of the Parties to the conflict (6) Inhabitants of a non-occupied territory who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (7) Persons belonging to the armed forces of the occupied territory

Distinction Distinguish between civilian population and combatants. Proportionality Action must be focused on attainment of military objective. No unlimited choice of means and methods. (1)

(2) (3)

(4) (5)

Persons hors de combat and those not taking part in hostilities shall be protected and treated humanely. It is forbidden to kill or injure an enemy who surrenders or is hors de combat. The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. Captured combatants and civilians must be protected against acts of violence and reprisals. No one shall be subjected to torture, corporal punishment or cruel or degrading treatment.

a) Treatment of civilians b) Prisoners of war

Article

4,

Geneva

Convention:

Prisoners of war are persons belonging to one of the following categories:

4. Law on neutrality Neutrality is the legal status of a State in times of war, by which it adopts impartiality in relation to the belligerents with their recognition. The Hague Convention Respecting the Rights and Duties of Neutral Powers (Oct. 18, 1907) governs the status of neutrality by the following rules:

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 (1) The territory of the neutral Power is inviolable; (2) Belligerents are forbidden to move troops or munitions of war and supplies across the territory of a neutral Power; (3) A neutral power is forbidden to allow belligerents to use its territory for moving troops, establishing communication facilities, or forming corps of combatants. (4) Troops of belligerent armies received by a neutral Power in its territory shall be interned by away from the theatre of war; (5) The neutral Power may supply them with food, clothing or relief required by humanity; (6) If the neutral Power receives escaped prisoners of war, it shall leave them at liberty. It may assign them a place of residence if it allows them to remain in its territory; (7) The neutral power may authorize the passage into its territory of the sick and wounded if the means of transport bringing them does not carry personnel or materials of war The Third Geneva Convention

(Prisoners of War) allows neutral Powers to cooperate with the parties to the armed conflict in making arrangements for the accommodation in the former‘s territory of the sick and wounded prisoners of war. Interned persons among the civilian population, in particular the children, the pregnant women, the mothers with infants and young children, wounded and sick, may be accommodated in a neutral state in the course of hostilities, by agreement between the parties to the conflict. M. Law of the sea The Convention on Law of the Sea (UNCLOS) is the body of treaty rules and customary norms governing the use of the sea, the exploitation of its resources, and the exercise of jurisdiction over maritime regimes.

(Magallona)

It is the branch of PIL which regulates the relations of states with respect to the use of the oceans. How are international rules of the sea created? They are created by treaties and customs. The latest was the Convention of the Law of the Sea (LOS) of 1982 whose provisions are a repetition of earlier convention law (Geneva Conventions 1958, 1960) or a codification of customary law, with matters not regulated is governed by the principles of international law. Who are bound by international rules of the sea? State parties to the convention or those states which have consented to be bound by international rules of the sea shall be bound as such. All other states are deemed party to the Convention after failing an expression of different intention (Article 316(4), UNCLOS) 1. Baselines The line from which a breadth of the territorial sea and other maritime zones, such as the ―contiguous zone‖ and the ―exclusive economic zone‖ is measured. Its purpose is to determine the starting point to begin measuring maritime zones boundary of the coastal state. NORMAL BASELINE -the territorial sea is the low-water line along the coast as marked on large-scale charts officially recognized by the coastal state. (Art.

5, UN Convention on the Law of the Sea, or UNCLOS) STRAIGHT BASELINE -where the coastline is deeply indented or cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight lines joining the appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured (Art. 7,

UNCLOS)

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 (1) Rights under existing agreement on the part of third states should be respected by the archipelagic state. (2) Within its archipelagic waters, the archipelagic state shall recognize traditional fishing rights and other legitimate activities of immediately adjacent neighboring states. (3) The archipelagic state shall respect existing submarine cables laid by other states and ―passing through its waters without making a landfall‖. (4) Right of archipelagic sea lanes passage: It is the right of foreign ships and aircraft to have

2. Archipelagic states It is a state made up of wholly one or more archipelagos. It may include other islands. An archipelago is a group of islands, including parts of islands, interconnecting waters and other natural features which are so closely related that such islands, waters and natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded as such. Two Kinds of Archipelagos: (1)

Coastal — situated close to a

mainland and may be considered part thereof, i.e. Norway (2) Mid-Ocean — situated in the ocean at such distance from the coasts of firm land, i.e. Indonesia (note: The Archipelagic State

continuous, expeditious, and unobstructed passage in sea lanes and air routes through or over archipelagic waters and the

adjacent territorial sea of the archipelagic state. Note: the archipelagic state designates the sea lanes as proposals to the ―competent international organization‖.

provisions apply only to midocean archipelagos composed of islands, and NOT to a partly continental state.)

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

It is the International Marine Organization (IMO) which adopts them through Art. 53(9) of the UNCLOS which states that ―the Organization may adopt only sea lanes and traffic separation schemes as may be agreed with the archipelagic state, after which such state may designate, prescribe or substitute them.‖

Territorial sea and other maritime

Special Issue: Under Art. 1 of the 1987 Constitution, the archipelagic waters of the

straight archipelagic baselines.

zones – the breadth of the territorial sea, the contiguous zone, and the EEZ is measured from the straight archipelagic baselines. b) Archipelagic waters

These are the waters enclosed by the straight archipelagic baselines, regardless of their depth or distance from the coast. It is subject to the sovereignty of the archipelagic state, but subject to the right of innocent passage for the ships of all states. c) Archipelagic sea lanes passage Other Rights Archipelagic Waters

with

Respect

to

Philippines are characterized as forming part of ―the internal waters of the Philippines.‖ However, under the UNCLOS, archipelagic waters consist mainly of the ―waters around, between, and connecting the islands of the archipelago, regardless of breadth or dimension.‖ Thus, conversion from internal waters under the Constitution into archipelagic waters under the UNCLOS gravely derogates the sovereignty of the Philippine state. Remember that sovereignty over internal waters precludes the right of innocent passage and other rights pertaining to archipelagic waters under the UNCLOS. Also, under Art. 47 of the UNCLOS, it is not mandatory upon concerned states to declare themselves as archipelagic states; the Philippines did, under its new baselines law,

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 RA 9522 – a legislative act upheld as constitutional by the Supreme Court in Magallona v. Executive Secretary. The result could be disastrous, at least, in Dean Magallona‘s view. 3. Internal waters These are waters of lakes, rivers, and bays landward of the baseline of the territorial sea. However, in case of archipelagic states, waters landward of the baseline other than those rivers, bays and lakes, are archipelagic

waters.

NOTE: Internal waters are treated as part of a State's land territory, and is subject to the full exercise of sovereignty. Thus, the coastal state may designate which waters to open and which to close to foreign shipping. 4. Territorial sea These waters stretch up to 12 miles from the baseline on the seaward direction. They are subject to the jurisdiction of the coastal state, which jurisdiction almost approximates that which is exercised over land territory, except that the coastal state must respect the rights to (1) innocent passage and, in the case of certain straits, to (2) transit passage.

Innocent passage: Navigation through the territorial sea w/o entering internal waters, going to internal waters, or coming from internal waters and making for the high seas. It must: (1) involve only acts that are required by navigation or by distress, and (2) not prejudice the peace, security, or good order of the coastal state.

Transit passage —The right to exercise freedom of navigation and over flight solely for the purpose of continuous and expeditious transit through the straights used for international navigation. The right cannot be unilaterally suspended by the coastal state.

economic resources, artificial installations, scientific research, and pollution control.

NOTE: Under the UNCLOS, states have the sovereign right to exploit the resources of this zone, but shall share that part of the catch that is beyond its capacity to harvest. Resources covered by sovereign rights of coastal states in the EEZ include living and non-living resources in the waters of the seabed and its subsoil.

Note: Coastal states have the primary responsibility to utilize, manage and conserve the living resources within their EEZ, i.e. ensuring that living resources are not endangered by overexploitation, and the duty to promote optimum utilization of living resources by determining allowable catch. If after determining the maximum allowable catch, the coastal state does not have the capacity to harvest the entire catch, it shall give other states access to the surplus by means of arrangements allowable under the UNCLOS. The UNLCOS, however, does not specify the method for determining ―allowable catch.‖ Hence, states may establish illusory levels. Geographically disadvantaged states (those who have no EEZ of their own or those coastal states whose geographical situations make them dependent on the exploitation of the living resources of the EEZ of other states) and land-locked states have the right to participate, on equitable basis, in the exploitation of the surplus of the living resources in the EEZ of coastal states of the same sub region or region.

Note: a coastal state whose economy is overwhelmingly dependent on the exploitation of its EEZ is not required to share its resources. Jurisdiction of Coastal State over EEZ:

5. Exclusive economic zone A stretch of area up to 200 miles from its baselines. Within this zone, a State may regulate nonliving and living resources, other

(1) establishment and use of artificial islands, installations and structures, (2) scientific research, (3) the preservation and protection of marine environment.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 Under Art. 58 of the UNCLOS, all states enjoy the freedom of navigation, over flight, and laying of submarine cables and pipelines in the EEZ of coastal states. The coastal state has the right to enforce all laws

and regulations enacted to conserve and manage the living resources in its EEZ. It may board and inspect a ship, arrest a ship and its crew and institute judicial proceedings against them.

Note: In detention of foreign vessels, the coastal state has the duty to promptly notify the flag state of the action taken. Conflicts regarding the attribution of rights and jurisdiction in the EEZ must be resolved on the basis of equity and in the light of all relevant circumstances, taking into account the respective importance of the interests involved to the parties as well as to the international community as a whole. (Art. 59, UNCLOS) 6. Continental shelf a) Extended continental shelf It is the seabed and subsoil of the submarine areas extending beyond the territorial sea of the coastal state throughout the natural prolongation of its lands territory up to: (1) the outer edge of the continental margin, or (2) a distance of 200 nautical miles from the baselines of the territorial sea where the outer edge of the continental margin does not extend up to that distance.

Continental margin –the submerged prolongation of the land mass of the continental state, consisting of the continental shelf proper, the continental slope, and the continental rise

When the continental shelf extends beyond 200 nautical miles, the coastal state shall establish its outer limits. At any rate, the continental shelf shall not extend beyond 350 nautical miles from the baseline of the territorial sea, or 100 nautical miles from the 2500 meter isobath (or the point where the waters are 2500 meters deep). Rights of the Coastal Continental Shelf

State

over

the

The continental shelf does not form part of the territory of the coastal state. It only has sovereign rights with respect to the exploration and exploitation of its natural resources, including the mineral and other non-living resources of the seabed and subsoil together with living organisms belonging to the sedentary species. For example, the coastal state has the exclusive right to authorize and regulate oildrilling on its continental shelf. These rights are exclusive in the sense that when the coastal state does not explore its continental shelf or exploit its resources, no one may undertake these activities without the coastal state‘s consent.

NOTE: In instances where the continental margin is more than 200 nautical miles from the baselines, and hence extends beyond the EEZ, the coastal state has the exclusive right to exploit mineral and nonliving resources in the ―excess area.‖ 7. International Tribunal for the Law of the Sea Jurisdiction of Court or Tribunal The court or Tribunal has jurisdiction over:

Limits of The Continental Shelf Juridical or Legal Continental Shelf: 0200 nautical miles from baselines.

Extended Continental Shelf: 200-350 nautical miles from baselines depending on geomorphologic or geological data and information

(1) any dispute submitted to it concerning the application or interpretation of UNCLOS (2) any dispute concerning the interpretation or application of an international agreement: (a) related to the purposes of the UNCLOS (b) when such dispute is submitted to it in accordance with that agreement.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 Composition of the International Tribunal for the Law of the Sea (ITLOS) It is composed of 21 ―independent members elected from among persons enjoying the highest reputation for fairness and integrity and of recognized competence in the field of the law of the sea‖. The composition shall also be representative of the world‘s principal legal systems and of equitable geographical distribution. Jurisdiction of ITLOS Its jurisdiction covers all disputes submitted to it in accordance with the UNCLOS. It also includes matters submitted to it under any other agreement. Applicable Laws in Settlement of Disputes by the ITLOS The Tribunal shall apply the UNLCOS and other rules of international law not incompatible with the UNCLOS. It may also decide a case ex aequo et bono (what is equitable and just) if the parties so agree. Notes on the Philippine Arbitral Case Over the Chinese Nine-Dash Claim CHINESE NINE-DASH LINE CLAIM This declaration, first made known internationally in 1947, features a map with a series of nine dashes or dotted lines forming a U-shaped enclosure and covering about 90 percent of the South China Sea. Included in the Chinese claim are areas that, under the UNCLOS, would normally pertain to the maritime entitlements of the other states in the region, with the Philippines and Vietnam being its most vocal critics. Practically all the coastal states – with the possible exception of Indonesia – reject the Chinese Nine-Dash Line claim as a legallydefinitive maritime boundary for China in the South China Sea. In 1995, Ali Alatas, then the Indonesian Foreign Minister obtained assurances from Beijing that it has no quarrel with Indonesia. This served as basis for Indonesia‘s exploitation of the Natuna gas fields with nary a protest from the Chinese.

In 2009, China formally submitted a map to the UN showing the areas in the area it claims under the declaration. One observer says the situation is compounded by the lack of clarity in the territorial and maritime assertions being made by China through its Nine-Dash Line claim, stressing that ―China has chosen to leave the nine-dash line ambiguous (with no map coordinates), because the ambiguity gives greater room for manoeuvre.‖ Growing Chinese naval presence in SCS Since 2012 China has been stepping up its presence in the area with new warships – including its very first aircraft carrier – and expanded naval patrols and swarms of quasigovernmental fishing vessels. While, just a few months ago, amid much fanfare, China put up a new administrative structure to govern areas it has occupied and those it claims, much to the protestations of the other claimants. It has also engaged the Philippines in a standoff over the Scarborough Shoal (also known to Filipinos as Panatag Shoal and Bajo De Masinloc), a rock and coral reef formation about 220 kilometers off Masinloc town in the Philippine coastal province of Zambales and about 840 kilometers from the nearest point of the Chinese coast. The shoal has been tacked to Philippine territory by a Treaty between London and Washington in the year 1900 and declared by the Philippines in a 2009 new baselines law to be an island regime as defined under article number 121 of the UNCLOS. As early as 1913, Manila courts have heard cases of shipwrecks in the vicinity. With Philippine permission, the shoal was also used for live-fire exercises by the US Navy while it ran its largest naval facility outside the US mainland at Subic Bay until the early 1990s. The US and the Philippines still maintain a Mutual Defense Treaty signed in 1951 and regularly hold joint training exercises under a Visiting Forces Agreement. Yet China designates the shoal Huangyan Island and asserts historic entitlements over it because it falls inside the Nine-Dash Line claim. One expert observer argues that Scarborough shoal occupies a central place in the Chinese plans to enforce its sovereignty claims over what it calls the ―Zhongsha Qundao‖‗, which consists of Macclesfield Bank, Truro Shoal, Saint Esprit Shoal, Dreyer Shoal

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 and Scarborough Shoal. Except for Scarborough, all banks and shoals of Zhongsha Qunda are underwater for the most part. Without Scarborough, it is said that the Chinese cannot assert ownership over the entirety of Zhongsha Qundao, thus making the Nine-Dash Line claim useless. In June last year, China established Sansha City on Yongxing Island in its southernmost province of Hainan to administer the Spratlys, the Paracels and Macclesfield Bank, with provision for a deployment of troops there. To be sure, China has also resorted to deceptively innocuous but no less rankling ways, such as printing new passports with a map of territories it claims (to include land areas India also considers its own ), and perhaps, even exporting to unsuspecting bookstores in the Philippines educational globes indicating China‘s expansive territorial claims. Philippines Takes China to Arbitration In late January this year, the Philippines brought matters to a head by bringing China to arbitration over the latter‘s Nine Dash Line claim.

For this reason, the Philippines was emphatic in its Notification and Statement of Claims against China, that its arbitral challenge does not cover any of the items in the Chinese reservations. Among others things, the Philippines wants the arbitral tribunal to rule on the compatibility of the Nine-Dash Line Claim with China‘s internal waters, territorial sea, or exclusive economic zone under the UNCLOS. In other words, the Philippine submission asks whether properly interpreted, the Chinese declaration complies with the maritime regimes set under the UNCLOS. In addition, it also questions Chinese occupation of reefs which are underwater – namely Mischief, McKeenan, Gaven and Subi – asking the tribunal to rule that since these are neither ―rocks‖ nor ―islands‖under the UNCLOS, these should be interpreted as part of the Philippine continental shelf. As for Scarborough Shoal, which consists of six small rocks now conceded as uninhabitable islands, the Philippines claims it as part of its EEZ. N. Madrid Protocol and the Paris Convention for the Protection of Industrial Property Madrid Protocol

As expected, China while insisting on bilateral negotiations immediately rejected the arbitration proceedings. This raises questions over the viability of arbitration under the UNCLOS on the Law of the Sea as a binding procedure. Truth to tell, UNCLOS procedures for binding arbitrations are complicated and tricky. Membership means a state‘s acceptance of compulsory and binding dispute mechanism procedures provided in the treaty. However, the treaty also allows member-states to opt out of these binding dispute mechanisms under Article number 298 exceptions, which, among other things, pertain to disputes concerning military activities, including military activities by government vessels and aircraft engaged in non-commercial service, and disputes concerning law enforcement activities in regard to the exercise of sovereign rights or jurisdiction as well as sea boundary delimitations, or those involving historic bays or titles. China has made such an exception in a formal declaration on 25 August 2006.

The Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks or The Madrid Protocol is one of two treaties comprising the Madrid System for international registration of trademarks and it deals more with the procedure for filing than with substantive rights.

Purpose: It provides a cost-effective and efficient way for trademark holders -individuals and businesses – to ensure protection for their marks in multiple countries through the filing of one application with a single office, in one language, with one set of fees, in one currency. While an International Registration may be issued, it remains the right of each country or contracting party designated for protection to determine whether or not protection for a mark may be granted. Once the trademark office in a designated country grants protection, the mark is protected in that country just as if that office had registered it.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015 The Madrid Protocol also simplifies the subsequent management of the mark, since a simple, single procedural step serves to record subsequent changes in ownership or in the name or address of the holder with World Intellectual Property Organization's International Bureau. The International Bureau administers the Madrid System and coordinates the transmittal of requests for protection, renewals and other relevant documentation to all members. The Paris Convention for the Protection of Industrial Property The treaty was signed in 1883 and it is one of the first treaties dealing with intellectual property and its protection. Substantive Provisions:

National Treatment: requires that each

member state grant the same quality and quantity of protection to eligible foreigners as it grants to its own nationals in respect to the intellectual property enumerated in the Convention. The Right of Prioriy:

It provides that an applicant eligible for Convention benefits who files a first regular patent or trademark application in any of the countries of the Union, can then file subsequent applications in other countries of the Union for a defined period of time which subsequent applications will have an effective filing date as of the first filed application. O. International environmental law Environmental law -is a collective term describing international treaties (conventions), statutes, regulations, and common law or national legislation (where applicable) that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity. ―Principle 21 of the Stockholm Declaration‖ 1972 Stockholm Declaration of the United Nations Conference on the Human Environment Principle 21

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. 2002 Johannesburg Declaration on Sustainable Development The Johannesburg Declaration on Sustainable Development was adopted at the World Summit on Sustainable Development (WSSD), sometimes referred to as Earth Summit 2002, at which the Plan of Implementation of the World Summit on Sustainable Development was also agreed upon. The Johannesburg Declaration builds on earlier declarations made at the United Nations Conference on the Human Environment at Stockholm in 1972, and the Earth Summit in Rio de Janeiro in 1992. While committing the nations of the world to sustainable development, it also includes substantial mention of multilateralism as the path forward. In terms of the political commitment of parties, the Declaration is a more general statement than the Rio Declaration. It is an agreement to focus particularly on ―the worldwide conditions that pose severe threats to the sustainable development of our people, which include: chronic hunger; malnutrition; foreign occupation; armed conflict; illicit drug problems; organized crime; corruption; natural disasters; illicit arms trafficking; trafficking in persons; terrorism; intolerance and incitement to racial, ethnic, religious and other hatreds; xenophobia; and endemic, communicable and chronic diseases, in particular HIV/AIDS, malaria and tuberculosis.‖ P. International economic law A field of international law that encompasses both the conduct of sovereign states in international economic relations, and the conduct of private parties involved in cross-border economic and business transactions.

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Green Notes 2015 Public International Law Notes compiled by: The Barristers’ Club 2015

FIELDS4: International Economic Law covers, among others, the following: (1) International Trade Law (2) International Financial Law (3) Regional Economic Integration (4) International Development Law (5) International Business Regulation (6) Intellectual Property law --God Bless--

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