Candelaria PIL Pre-bar 2014

PUBLIC INTERNATIONAL LAW (2013) by Dean Sedfrey M. Candelaria

PUBLIC INTERNATIONAL LAW AS APPLIED TO PHILIPPINE LAW by Dean Sedfrey M. Candelaria Ateneo Law School

Introduction: NATURE OF INTERNATIONAL LAW Hart’s observations: (a) Primary rules of obligations; (b) Lacks secondary rules of change and adjudication which provide for legislature and courts; (c) Lacks a unifying rule of recognition specifying sources of law and providing general criteria for the identification of its rules. Chapter I.

THE SOURCES OF OBLIGATION IN INTERNATIONAL LAW

Article 38(1) of the Statute of the International Court of Justice (a) Treaties (see Vienna Convention on the Law of Treaties) (i)

What is a Treaty? Elements: International agreement States Written Governed by international law [VCLT, Article 2(1)(a) and ILC Commentary] Capacity: National/Federal Government (but resort to Federal Constitution with regard to component state) [VCLT, Article 6]

(ii) The Making of Treaties Making:

GR- Full powers needed Exceptions: 1. Heads of states/governments 2. Foreign affairs ministers 3. Heads of diplomatic missions - limited 4. Representatives to international conferences - limited (NOTE: subsequent confirmation of acts of representatives without full powers validates action on behalf of state) [VCLT, Articles 7-8] Adoption:

GR- If bilateral or few states, all must concur Exception – international conference (2/3) 1


Exception to exception – if 2/3 provide different rule [VCLT, Article 9] Consent: signing, exchange of instruments, ratification, acceptance, accession, approval, etc. … (need for deposit, exchange and notification) [VCLT, Articles 11-16) Philippine Constitutional Law Application: Article 7, Sec. 20 (foreign loans with Monetary Board concurrence) Article 7, Sec. 21 (treaty - 2/3 Senate vote) Article 8, Sec. 4 (constitutionality of treaty is heard en banc by SC) Article 18, Sec. 25 ( treaty on new military bases, troops or facilities) Case law: Bayan v. Zamora et. al. (GR Nos. 138570, 138572, 138587 & 148680, Oct. 10, 2000) - Constitutionality of VFA in relation to Article 18, Sec. 25; interpretation of the phrase “recognized as a treaty.” Nicolas v. Romulo (GR 175888, Feb. 11, 2009) – VFA as mere implementation of the 1951 RP-US Mutual Defense Treaty; VFA is a sole executive agreement subject to the Case-Zablocki agreement procedure; “Romulo-Kenney Agreements of Dec. 19 and 22, 2006,” detaining American accused in US embassy, is not in accord with Art. 5, Sec. 10 of VFA; distinguish the following: (a) Art. 5, Sec. 6 – custody from commission of offense until completion of all judicial proceedings is with US, while (b) Art. 5, Sec. 10 – after conviction, confinement or detention by Philippine authorities shall be carried out in facilities agreed on by appropriate RP-US authorities. Lim v. Executive Secretary (GR 151445, April 11, 2002) - “Balikatan Exercises Terms of Reference” - does not need concurrence by Senate. Pimentel v. Executive Secretary (462 SCRA 622)- Signing and ratification distinguished; President may refuse to submit treaty (creating ICC) to Senate. (NOTE: GRP already ratified the Rome Statute in August 2011) Sps. Renato v. Hon. Rosario (GR 106064, October 13, 2005) – A debt-buyback scheme is within the power of the President to enter into under Art. VII, Sec. 20 of the Constitution. Pharmaceutical v. DOH (GR 173034, October 9, 2007) – WHO guidelines as mere “soft law.” Abaya v. Ebdane (513 SCRA 720) – Exchange of Notes is a form of executive agreement. Province of North Cotabato v. GRP Panel (GR 183591, October 14, 2008 and MR) – Memorandum of Agreement on Ancestral Domain between GRP and MILF is not a treaty. 2


Bayan Muna v. Romulo (GR 159618, February 1, 2011) – The RP-US NonSurrender Agreement is an Exchange of Notes constituting an intergovernmental agreement. It is an international agreement but not in treaty form. It does not contravene the Rome Statute because the ICC recognizes the primacy of international agreements. Primary jurisdiction rests upon the state and secondarily with the ICC. China National Machinery v. Santamaria (665 SCRA 189) – A contract entered into between non-state entities does not constitute an executive agreement as in this case, North Luzon Railways Corp. and China National Machinery and Equipment Corp. (iii) Reservations to Treaties GR – allowed Exceptions: 1. if prohibited by treaty itself 2. if only specific reservations are allowed 3. if incompatible with treaty purpose Form of reservations/withdrawal/objection: – written & communicated [VCLT, Articles 19-23] Case law: Reservations to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Advisory Opinion, I.C.J. Reports, 1951) – On the effect of absence of reservation clause in a Convention; reservations were contemplated but the purpose of the treaty tended to discourage; intent to prevent an international crime. (NOTE: in the International Criminal Court, no reservations are permitted, Article 120) (iv) Interpretation of Treaties GR – 1. interpret in good faith 2. ordinary meaning of word in “context” (resort to related text) 3. relate to object and purpose Exception – give “special meaning”, if parties intended [VCLT, Articles 31-32] Case law: Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion, I.C.J. Reports 221, 1950) – In a dispute concerning the Peace Treaties of 1947, three signatory states refused to comply with a three-person panel dispute settlement 3


procedure for the purpose of interpreting the treaty whereby parties are required to appoint their own representatives and, by mutual agreement, a third neutral member of a Commission; the U.N. General Assembly asked whether the Secretary-General may now appoint the third neutral member; in answering in the negative, the Court observed that “according to the natural and ordinary meaning of the terms, ‘it was intended that the appointment of the national commissioners should precede that of the third member’.” Thus, the three states (Bulgaria, Hungary and Romania) are under an obligation to appoint their representatives to the Treaty Commissions, failing which will entail international responsibility. (v) Peremptory Norms of International Law – Jus Cogens GR- parties cannot enter into a treaty contrary to jus cogens or norms recognized and accepted by the international community; non-derogable. Examples: unlawful use of force, commission of a criminal act, trade in slaves, piracy, genocide, human rights violations, equality of states, and selfdetermination. [VCLT, Article 53] (vi) Withdrawal, Termination and Rebus sic stantibus GR – allowed to withdraw in conformity with treaty and anytime with the consent of all Exception – if no provision Exception to exception – 1. if parties intended to allow withdrawal 2. if implied by the nature of the treaty Effect of later treaty – later one prevails, if all parties conclude and they intended later one to govern; or, if later one is incompatible with earlier one. Rebus sic stantibus: GR – any unforeseen or fundamental change not a ground for termination or suspension Exception – 1. if essential basis of consent, and 2. if obligation is transformed radically Exception to exception – 1. treaty establishing boundary (uti possidetis - African and South American experience after colonizers left; intended to preserve territorial integrity in cases of state succession.); or, 2. if the fundamental change arose from a breach by the invoking party 4


[VCLT, Articles 54, 56, 59, 61, 62] Case law: Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, I.C.J. Reports, 1974) – Test of rebus sic stantibus: the circumstances must have increased the burden of the obligations to the extent of rendering the performance of an act essentially different from that originally undertaken. Danube Dam Case (Hungary v. Slovakia, 37 ILM, 1998)- If joint exploitation of the investment was no longer possible because Hungary did not carry out most of the works, A61, par. 2 of the VCLT states that impossibility of performance may not be invoked for the termination of a treaty by a party to that treaty when it results from that party’s own breach of an obligation flowing from that treaty; state of necessity is not a ground for terminating a treaty but may only be invoked to exonerate one from responsibility; neither could fundamental change of circumstances prosper because the change must be unforeseen [here, political motive, reduced economic activity of the Project, and progress of environmental knowledge and international environmental law are not sufficient grounds]. Violation of other treaty rules of general international law may justify the taking of certain measures, including countermeasures, but does not constitute a ground for termination of the treaty; the violation by Czechoslovakia was the diversion of the waters of the Danube in 1992). (vii) Philippine Practice E.O. 459 (1997) – Guidelines in the Negotiation of International Agreements (viii) Rules on conflict between a treaty and a law. It depends which court is deciding: 1. international court- will uphold treaty obligation in general 2. domestic court- will uphold local laws Specific situations of conflict: 1. Treaty v. Constitution- A46, VCLT, when constitutional violation is manifest and concerns a rule of internal law of fundamental importance, state may deviate from treaty obligation. (NOTE: See A27, VCLT which states, “A party may not invoke the provisions of internal law as justification for its failure to perform a treaty.” Under dualist theory, unconstitutionality of a treaty is purely domestic matter. State faces risk of international sanction.) 2. Treaty v. Domestic Legislation- when the two instruments relate to the same subject, try to give effect to both; if inconsistent, the later in date will control, provided that the treaty stipulation is self-executing. But this rule

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only applies in the domestic sphere. A treaty, even if contrary to a later statute, is binding in international law. Case Law: Sei Fujii v. California (242 P. 2d 617; 19 ILR 312, 1952)- A California alien land law, used by California to have the property of a Japanese citizen in the U.S. escheated to the State, was challenged as contrary to U.N. Charter, specifically, A55 and A56 on human rights. The Court stated that the U.S. Constitution distinguished between self-executing and non-self executing treaties. Here, the U.N. Charter Preamble, A1, A55 and A56 require enabling legislation to affect private persons; the rights of private persons were not prescribed in detail in the U.N. Charter in regard to the land law. (b) State Practice (i)

Customary International Law Definition - evidence of a general practice accepted as law Elements: 1. Duration (e.g. of quick ones – airspace and continental shelf) 2. Uniformity, consistency of practice (only substantial uniformity) 3. Generality (not all states are needed) 4. Opinio juris – i. Objective: settled practice ii. Subjective: obligatory (as distinguished from mere act of courtesy, fairness or morality) Case law: The Paquete Habana (175 U.S. 677, 1900) - Fishing vessels and cargoes are exempt as prizes of war. The Asylum Case (Colombia v. Peru, 17 I.L.R. 28; I.C.J. Reports, 1950) – Concept of “regional custom”; establish that the rule invoked is in accordance with a constant and uniform usage practiced by States in question; Colombia can not unilaterally qualify an offense for purposes of asylum; practice is inconsistent. North Sea Continental Shelf Case (I.C.J. Reports, 1969) - The use of the “equidistant principle” in delimiting continental shelves has not attained the status of CIL; for a provision in a Convention to become CIL it must be “norm-creating” in character. Nuclear Test Cases (Australia v. France; New Zealand v. France, I.C.J. Reports, 1974) – Communiqué of France to Australia and New Zealand and the U.N. General Assembly “that the atmospheric tests will be the last of this type” is a unilateral declaration on a factual or legal situation, made publicly and erga omnes, which creates binding obligations. 6


Nicaragua v. U.S. ( I.C.J Reports, 1986) – A formal communication that had been committed to the OAS was held not to be a formal undertaking, but a mere political pledge. (ii) General Assembly Resolutions GR – resolutions and declarations of international organs can be recognized as a factor in the custom-generating process (evidence of general practice) Case law: Dissenting Opinion of Judge Tanaka in the South-West Africa Cases (I.C.J. Reports, 1966) – Concept of “parliamentary diplomacy”; resolutions and declarations of international organizations as evidence of a general practice. (iii) Decisions of International Organizations R. Higgins, The Advisory Opinion on Namibia: Which U.N. Resolutions are Binding Under Article 25 of the Charter? GR – U.N. General Assembly resolutions are merely recommendatory Exceptions – obligatory and with binding effect on all members in relation to: 1. admission of new members 2. budget approval 3. apportionment of expenses (NOTE: Article 25 of the U.N. Charter states that U.N. members “agree to accept and carry out the decisions of the Security Council…”; interpreted to mean Art. 24, Ch. VIVIII on peace and security matters, i.e. intended to be obligatory.) (iv) The Limits of State Practice Persistent Objector – a state that has persistently objected to a rule of customary international law during the course of its emergence is not bound; this has limited role today; in cases of new states, they are bound by customary international law (not treaties) as a consequence of statehood (c) Domestic Law (i)

General Principles of Law Case law: International Status of South-West Africa, Opinion of Sir Arnold McNair (I.C.J. Reports 128, 1950) – Obligations of the Union of South Africa in relation to the mandate territory; application of the principles of trust in civil law.

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Diversion of Waters from the River Meuse (P.C.I.J series A/B, No. 70, 4 W.C.R. 179, 1937) – Recognition of equity as part of international law in no way restricts the (international) Court to decide the case ex aequo et bono, if the parties agree. Distinction between equity and deciding a case ex aequo et bono: 1. Equity – law cannot cover every possible situation, so, cases may be decided using equitable principles. 2. Ex aequo et bono – power of ICJ to decide a case equitably outside the rules of law. Other examples of general principles of law: principles of liability, responsibility, reparation, unjust enrichment, property, expropriation, indemnity, denial of justice, right of passage, prescription, error, presumption, administrative law, procedure, humanity, good faith, pacta sunt servanda, estoppel and human rights (ii) Application of International Law by Domestic Courts Case law: Filartiga v. Pena-Irala (630 F. 2d 876, 1980) - Joelito Filartiga was kidnapped and tortured to death by Pena-Irala who was Inspector-General of Police of Paraguay; torture may be perpetrated under color of official authority against anyone regardless of nationality; U.S. Alien Tort Law allowed aliens to sue and have rights (recognized in international law) enforced before U.S. courts even for acts committed outside the U.S. provided there is jurisdiction over the defendant in the U.S.; torturer, for civil liability purposes, is “hostis humani generis” or enemy of all mankind. Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977) –schools of thought in adopting international law to a domestic system: 1. incorporation – automatic; except if in conflict with domestic system 2. transformation – international law adopted thru decisions of judges, law or custom Philippine Practice: Article 2, Sec. 2 of the Constitution: The phrase “adopts the generally accepted principles of international law as part of the law of the land” does not refer to treaties but customary international law (whether or not codified in a treaty) and other general principles of law. Case law: Tanada v. Angara (272 SCRA 18) – Doctrine of incorporation applied in regard to obligations arising from ratification of GATT-WTO; pacta sunt servanda was invoked. Mijares v. Hon. Ranada (GR 1393325, April 12, 2005) – Recognition and enforcement of judgments is among the generally accepted principles of international law. (iii)

Theories on the relationship between Municipal Law and International Law:

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1. Monism- international law and municipal law belong to only one system with international law as superior to domestic law; locates basic norm of the national legal system in the norm of international law; 2. Dualism- international law as distinct from the domestic law system; dualism of legal origin, subjects and subject matter; sovereign act of municipal law means it exceeded its competence in international law but does not void municipal law. 3. Inverted monism- municipal law as superior to international law; denies the term “law” to international law. 4. Harmonization- the two legal systems are harmonized and given effect. Chapter II.

PERSONALITY UNDER INTERNATIONAL LAW

(a) States (i)

Characteristics of Statehood Article 1 of the Convention on Rights and Duties of States (or the 1933 Montevideo Convention) provides for the qualifications of a State: 1. permanent population 2. defined territory 3. government 4. capacity to enter into relations Case law: Case Concerning Rights of Nationals of the United States of America in Morocco (I.C.J. Reports, 176, 1952) – Even if Morocco is under the Protectorate of France, the former is still a state in international law. Report of the Fifth Committee of First Assembly of the League of Nations, with reference to Admission to the League of Liechtenstein (6 December 1920) – Even if denied admission, it remains a sovereign state. Recent cases: East Timor, (South) Sudan and Kosovo

(ii) Recognition 1. of States (widely practiced; does not presuppose recognition of government) 2 theories: (a) Declaratory theory- possession of the essential elements (b) Constitutive theory- recognition is what constitutes a State. Status – more of an optional and discretionary political act (as seen in the cases of the former Yugoslavia and Soviet Union) 2. of governments (recognition presupposes recognition of State)

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Case law: Tinoco Arbitration, 1923- Even if not recognized, may be de facto; juridically cognizable. (iii) Self-determination Case law: Declaration on the Granting of Independence to Colonial Territories and Peoples (U.N. G.A. Res. 1514 (XV), 14 December 1960) – Elements of the right to self-determination of States: 1. right to determine political status; and, 2. right to pursue their economic, social and cultural development. Case law: Western Sahara Case (Advisory Opinion, I.C. J. Reports, 1975) – ultimate purpose of “sacred trust” was the self-determination and independence of the peoples concerned; self determination may mean emergence of new state, association or integration with an independent state. Current cases on secession and the concept of shared sovereignty: e.g. The Sudan – Machakos Protocol: plebiscitory consent Northern Ireland – Good Friday Agreement: plebiscitory consent Nepal Maoist – power sharing Aceh (Indonesia) – limited autonomy Quebec – attempt at a legislative vote to secede Kosovo (iv) Non-State Entities 1. The Commonwealth of Australia v. the State of New South Wales (32 C.L.R. 200, 1923) – New South Wales is not a foreign country which may be sued without its consent. 2. Cultural Agreement Between Province of Quebec in Canada and France – Quebec is allowed to enter into such agreement due to the special status accorded to it under the Canadian Constitution. 3. Mandate System Case law: International Status of South-West Africa (Advisory Opinion, I.C.J. Reports, 1950) – Mandate created by the League of Nations elapsed when the League ceased to exist. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South-West Africa) Notwithstanding Security Council Resolution 276 of 1970 (I.C.J. Reports, 1971) – It is a general principle of law that the

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power of termination on account of breach, even if unexpressed, must be presumed to exist as inherent in any mandate. 4. Case of Belligerent Communities or Insurgent Groups and implications for States like the Philippines in re: MNLF/MILF and CPP/NPA/NDF – Obligations in the conduct of armed conflict. 5. Case of Indigenous Peoples (e.g. autonomous regions) – U.N. Declaration on the Rights of IPs; no right of secession (b) International Organizations (i)

United Nations Charter of the United Nations, Articles 1, 2, 7, 104 Case law: Reparations for Injuries Suffered in the Service of the United Nations (I.C.J. Reports, 1949) – Capacity of U.N. under international law to sue for damage caused to an agent in the form of an international claim; but this is not the same as saying that it has the same rights and duties as a state; personality of the U.N. is limited by the purpose of its Charter. (ii)

European Communities (now EU) European Economic Community Treaty, Article 211 European Union, Maastricht Treaty, 1991 (NOTE: EU possesses the most extensive legal capacity.)

(c) Individuals (i) Classical Rule: Human rights – human being as an object of international law. (ii) Progression of the Rule: Human being as a subject of international in a limited way. Case law: Judgment of the Nuremberg Tribunal – Law of war imposed a duty on individuals; Article 228 of the Treaty of Versailles illustrates this view of individual responsibility; acts deemed criminal in international law may be the subject of international claim; a state cannot protect the individual accused of the crime if the state exceeded its competence by allowing/ordering the individual to commit a crime vs. humanity; officers liable but punishment may be mitigated if they merely followed orders. (iii) Recent development: 1. Ad hoc International Criminal Tribunals (Former Yugoslavia, Rwanda and Cambodia) 11


2. Rome Statute of 1998 (ICC) – Individuals may be tried for genocide, crimes against humanity, war crimes and crime of aggression (core crimes);entry into force: July 2002; aggression remains to be undefined; only covered crimes committed after entry into force; no death penalty, no trial in absentia (NOTE: The Philippine law in regard to international humanitarian law is R.A. 9851, signed into law on December 12, 2009 before the Philippine ratification of the Rome Statute. It defines punishable acts reflective of the relevant IHL instruments, including the concept of command responsibility.) (d) Corporations Case law: Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the Government of the Libyan Arab Republic (Compensation for Nationalized Property, Arbitral Awards on the Merits, 19 January 1977, 17 I.L.M., 1978) – Internationalized contracts entered into between a state and a foreign corporation gives the latter limited capacity by invoking in international law the rights derived from the contract.

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Chapter III. JURISDICTION OF STATES Preliminary: as a concept- it is the capacity to: 1. legislate or to prescribe laws/rules 2. enforce laws/rules as power- it is exercised over: 1. persons 2. property 3. events (a) Jurisdiction over Territory (i)

Title to Territory Case law: Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent Court of Arbitration – Test of title in international law is “continuous and peaceful display of territorial sovereignty”; forms of acquisition of title are: 1. occupation coupled with effectiveness 2. conquest (allowed before) 3. cession, and, 4. accretion; (NOTE: In international law, title is not sufficient without the first element of display of State functions.) Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53, 1933) – Applied Island of Palmas Case. Western Sahara Case (Advisory Opinion, I.C.J. Reports, 1975) – For occupation to operate, territory must be terra nullius, i.e. it belonged to no one prior to occupation. Philippine Application: Article 1 (National Territory) of 1987 Constitution Sabah- cession Spratlys- claimants: China, Vietnam, GRP, Malaysia, Brunei, Taiwan -

History of RP maritime boundaries: 1898 Treaty of Paris 1930 US-UK Convention 1961 R.A. 3046 (baselines) 1968 R.A. 5446 (baselines) 1978 PD 1596 (KIG) and PD 1599 (EEZ) 1984 Philippine ratification of UNCLOS

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Government Position: - GRP claims over other island groups: Paracels, Pratas, Macclesfield Bank, Scarborough Shoal, Mischief Reef - Effective occupation of “Kalayaan Island Group” by GRP through Tomas Cloma, 1946; and through PD 1596 (1978) an administrative district was formed to become a Municipality of the Province of Palawan NOTE: New Baselines Law is R.A. 9522 (2009): declared KIG and Scarborough Shoal as “regime of islands” pursuant to Article 121 of UNCLOS III Case Law: Magallona v. Executive Secretary (GR 187167, August 16, 2011) – R.A. 9522 is constitutional; it is not intended to delineate Philippine territory but merely regulates sea-use rights over maritime zones and continental shelves that UNCLOS delimits. (ii) Airspace (flight space) Paris Convention, October 13, 1919 – State with exclusive sovereignty. Convention on International Civil Aviation, signed at Chicago on 7 December 1944 – prohibits entry of state aircraft without authorization by special agreement (iii) Internal and Territorial Waters Case law: Fisheries Case (United Kingdom v. Norway, I.C.J. Reports, 1951) – Straight baseline allowed and delimitation of territorial waters. The Corfu Channel Case (I.C.J. Reports, 1949) – Innocent passage in international straits allowed. 1982 Convention on the Law of the Sea, Articles 3, 8 (b) Jurisdiction over Adjacent Maritime Seas (i)

Continental Shelf Case law: North Sea Continental Shelf Cases (Germany v. Denmark/Holland, 8 I.L.M. 340, 1969) – What confers title ipso jure to continental shelf is the fact that the submarine areas concerned may be deemed to be actually part of the territory of the coastal state in the sense that, although covered with water, they are a prolongation or continuation of that territory. Gulf of Maine (Canada/USA, I.C.J. Reports, 1984) – 14


Is geographic adjacency basis for title to continental shelf? Libya/Malta Continental Shelf Case (I.C.J. Reports, 1985) – Distance and natural prolongation as complementary. 1982 Convention on the Law of the Sea, Article 76 (ii) Exclusive Economic Zone Case law: Fisheries Jurisdiction Case (U.K. v. Iceland, Merits, I.C.J. Reports, 1974) – Exclusive rights over fishery zone must take into account interests of other States. 1982 Convention on the Law of the Sea, Articles 55, 56, 57, 211, 123 (c) Jurisdiction over Persons and Economic Activity Preliminary Theories (applicable to the exercise of criminal and civil jurisdiction): 1. Nationality- civil law follows national wherever he/she may be. 2. Passive personality- punish aliens abroad who injures one’s citizen. 3. Security principle- punish aliens for acts v. a State’s security, independence and territorial integrity 4. Universality – e.g. piracy, crimes against humanity, etc. 5. Objective territoriality- elements of crime occurred in 2 states (i)

Criminal Jurisdiction 1. On the general theory of criminal jurisdiction GR: Vessels on high seas are subject to authority of flag-State Exception: piracy, slave trade, hot pursuit, right of approach Case law: (old rule) The S.S. Lotus (2 World Court Reports, 1920) – Concurrent jurisdiction of flag State and other State affected- this rule applies only if it happens on the high seas (controversial decision; 6-6 vote); but see the new rule below. New Rule: See A97, UNCLOS - the Rule today is that no penal or administrative proceedings may be instituted against the master of a ship except before the judicial or administrative authorities either of the: a. flag State, or b. State of which such person is a national. The Attorney-General of the Government of Israel v. Eichmann (36 I.L.R. 277, 1962) – Universal authority to try certain persons wherever found outside of the place of the commission of crime; applies to serious crimes under international law, such as, crimes against humanity, war crimes, piracy, slavery, crimes against 15


peace, genocide and torture. (See development of the Princeton Principles on Universal Jurisdiction.) (Philippines) People v. Tulin (GR 111709, August 30, 2009) – The crime of piracy is punishable under PD 532. Even if the Philippine-operated vessel (M/T Tabangao owned by PNOC) was outside Philippine waters, the crime of piracy is an exception to the general rule on territoriality. Piracy is a crime against the whole world. 2. On the rules governing Extradition under international law: Requisites: One should ask a. Is there a treaty? b. Is the crime listed? GR: There is no duty to extradite where there is no treaty. Exception – Even with treaty, crimes with political complexion: “exempt” Exception to the exception: “attentat clause”- assassination of heads of States, etc. Case law: In the Matter of the Requested Extradition of Joseph Patrick Thomas Doherty (7 Vand. J.T. L., 1984) – Denial of extradition request for an IRA member in the US who escaped from Belfast prison and convicted by Northern Irish court in absentia for murder. 3. Philippine Extradition Law (P.D. 1069) Case law: Secretary of Justice v. Hon. Lantion (G.R. No. 139465, October 17, 2000) – Mark Jimenez is without any right to notice and hearing during the evaluation stage of an extradition process by the DFA under the RP-US Extradition Treaty. (NOTE: Extradition court may adjudge a person as extraditable but President has final say. Extradition is not criminal in nature- sui generis; thus, Bill of Rights provisions on aspects of due process in criminal proceedings not applicable- “summary”. But this ruling will later on be qualified by the Olalia case of 2007) Secretary of Justice v. Muñoz (G.R. No. 140520, December 18, 2000) – In re: to the RP-Hongkong Extradition Treaty, the Court held that the provisional arrest of respondent was valid noting that the requirements of the Agreement on documentation and the finding of probable cause have been complied with. (See new case on Gov’t. of HongKong v. Olalia, GR 153675, April 19, 2007allowing Munoz bail even as an extraditee. This overturns the Purganan ruling.)

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Government of U.S.A. v. Hon. Purganan (GR 148571, Sept. 24, 2002)- The right to bail in extradition is not available. The ultimate purpose of extradition proceedings in court is to determine whether the extradition request complies with the extradition treaty. But, in exceptional cases, bail may issue (as element of due process), provided: a. accused is not a flight risk; and, b. compelling circumstances warrant. Rodriguez v. RTC of Manila (GR 157977, February 27, 2006) – A prospective extraditee is entitled to notice and hearing before the cancellation of his or her own bail. (NOTE: Purganan ruling overturned by 2007 Gov’t. of Hongkong case.) Government of Hongkong v. Olalia (G.R. 153675, April 19, 2007) – The modern trend in public international law is the primacy placed on the worth of the individual person and the sanctity of human rights. While extradition is not a criminal proceeding, it is characterized by the following: (a) it entails a deprivation of liberty on the part of the potential extraditee and, (b) the means employed to attain the purpose of extradition is also the machinery of criminal law. While our extradition law does not provide for the grant of bail, there is no provision prohibiting the extraditee from filing a motion for bail, a right to due process. The extraditee must establish “clear and convincing proof” that he or she is not a flight risk and will abide with all the orders of the extradition court. 4. On the rules governing commission of crimes on board an aircraft Tokyo Convention of 1963 – for extradition purposes, a crime may be considered as having been committed in the “state of registry of the aircraft”; but jurisdiction by another Contracting State may be had if the offense: (a) has an effect on its territory; (b) has been committed by or against its national or a permanent resident therein; (c) is against its national security; (d) relates to a breach of its national rules on flight; (e) is the subject of an exercise of jurisdiction necessary to ensure the observance of an obligation of such state under a multilateral agreement. Montreal Convention of 1971- Article 8(2) becomes the basis for extradition even if there is no extradition treaty with another party to the Convention. 5. On Visiting Forces/Military Bases – see Nicolas case. (ii) Civil Jurisdiction

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R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust Laws; Sherman Act of 1890 and Federal Trade Commission Act and Clayton Act of 1914 – intended “to protect trade and commerce against unlawful restraints and monopolies.”; should not contradict the local law. (iii) Immunity from Jurisdiction 1. State Immunity (Sovereign immunity): Head of State and the State itself Basis: equality and independence of States Distinguish: a. Immunity of State- an aspect of act of State b. Act of State theory- “acts of State carried out within its own territory cannot be challenged in the courts of other States”; applies to acts of agents of the State; exceptions: war crimes, crimes v. peace, crimes against humanity. Rationale: Courts should not embarrass the Executive in its conduct of foreign relations by questioning the acts of foreign states. On scope of State Immunity a. Absolute b. Restrictive – determine nature of the act (1) public (jure imperii) – immune (2) private(jure gestionis) - not immune Case law: Victory Transport Inc. v. Comisaria General de Abastecimientos y Transportes (35 I.L.R., 110 U.S.C.A. 2d Circ., 1994) – Act of transporting wheat during peacetime is not an act jure imperii. Government of the Democratic Republic of the Congo v. Venne (22 D.L.R. (3d) 669, 1972) – Congo’s entry into contract with a Canadian architect for sketching its pavilion is a public act. I1 Congreso del Partido- Cuban Sugar Trade (2 All E.R. 1064, 1981) – Playa Larga is a Cuban owned vessel but operated by Mambisa, a Cuban State Trading Co. not a Department of the Cuban Government. Mambisa sold sugar to a Chilean Co. and shipped the merchandise thru the Playa Larga. Restrictive immunity applied in this case. Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977 – Issuance by Nigerian CB of letter of credit is purely commercial in character and may be basis of suit) Philippines: Article 16, Sec. 3 of the Constitution (immunity from suit)

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Case law (Philippines): Sanders v. Veridiano (162 SCRA 88) - A special services director of the former U.S. naval station in Olongapo was sued in a personal capacity for alleged libelous letter; court declared immunity because the acts complained of were done in the discharge of official functions. U.S. v. Guinto (182 SCRA 644) - The act of soliciting bids by the U.S. AF is proprietary in nature. Chuidian v. Sandiganbayan (GR 139941, January 19, 2001) – A letter of credit issued in Manila was the basis of a suit by an alleged Marcos-crony to compel PNB to pay proceeds of the L/C before a US District Court. The Federal Court refused to compel PNB stating that PCGG freeze orders are acts of state. Dayrit v. Phil. Pharmawealth (GR 169304, March 13, 2007) – Suing individual petitioners in their individual capacities for damages in connection with abuse of official positions in order for Pharmawealth not to be awarded a contract is permissible and an actionable wrong. Professional Video v. TESDA (GR 155504, June 26, 2009) – TESDA performs governmental functions. State immunity applies in this case notwithstanding TESDA’s entry into contract for production of PVC cards for its trainees. ATCI v. Echin (GR 178551, October 11, 2010) – Echin was hired by ATCI in behalf of the Ministry of Public Health of Kuwait. An alleged illegal dismissal case was filed against ATCI and the Ministry. ATCI cannot plead immunity of the Ministry where the solidary obligation may be frustrated. Gunigundo v. Sandiganbayan (GR 124772, August 14, 2007) – Act of state doctrine does not apply in this case. The Sandiganbayan will not review the freeze orders of Swiss officials in Civil Case No. 0164, but will only examine propriety of maintaining PCGG’s position with respect to complainant’s accounts with BTAG for the purpose of determining propriety of issuing a writ against PCGG and OSG. Case law (U.K.): Pinochet Case (House of Lords, November 25, 1998)- Is Pinochet entitled to immunity as former head of State? Under the “Operativo Condor”, he, together with other governments (Argentina) organized the commission of crimes (e.g torture, kidnapping) through the police and secret service. Criminal complaints on “actio popularis” were filed by private citizens in Spain against Pinochet. The Spanish court ordered the arrest of Pinochet who was then in United Kingdom. A provisional warrant of arrest was issued by a London magistrate under the U.K. Extradition Act of 1989. 19


Pinochet argued before the Divisional Court of the Queen’s Bench Division that as former head of State, he can not be prosecuted at common law because he acted in a sovereign capacity. The Divisional Court quashed the warrants of arrest but on appeal before the House of Lords, it was held that Pinochet was not immune from prosecution in U.K. courts for crimes under international law. (Later, the House of Lords set aside its decision because the Appellate Committee had been improperly constituted. On rehearing, the Government of Chile intervened to “assert its own interest and right to have these matters dealt with in Chile,” presenting immunity not as a shield for Pinochet but for its own sovereignty.) (NOTE: The following remedies exist: Pinochet may be tried (a) in his own country; (b) in any other country that can assert jurisdiction, provided Chile waives immunity; (c) before the International Criminal Court; or, (d) before a specially constituted international court.) 2. Diplomatic and Consular Immunity Vienna Convention on Diplomatic Relations (1961)- mostly codification of customary international law Vienna Convention on Consular Relations (1963)- some customary international law Gen. Convention on the Privileges and Immunities of the U.N. (1946) Remedy of individual: 1. sue in home State of diplomat 2. waiver by State of nationality of diplomat 3. declare diplomat persona non grata Case law: U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran, I.C.J. Reports 3, 1980) – Iran violated the 1961 and 1963 Conventions for failing to take appropriate steps to ensure protection of U.S. embassy and staff and property from attacks by militants students. There was state responsibility for having even approved of the acts of these demonstrators. Regina v. Palacios (7 D.L.R. 112, 4th, 1984) – diplomatic immunity ceases to be enjoyed at the moment the diplomat leaves the country, or on expiry of a reasonable period in which to do so. Philippines: Excerpts from the 1997 Manual on Immunities and Privileges (DFA)

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Case law: Diplomats/Consuls Holy See v. Rosario (238 SCRA 524) - Holy See enjoys immunity where the land subject of annulment was bought for site of Apostolic Nunciature. Minucher v. CA (214 SCRA 242 and G.R. No. 142396, February 11, 2003) - A U.S. diplomatic staff who is a member of the Drug Enforcement Administration of the DOJ was found to be immune from suit for alleged criminal/tortuous conduct. As an agent he was allowed by the Philippine government to conduct activities to contain the drug traffic. Indonesia v. Vinzon (GR 154705, June 26, 2003) – An Indonesian Official entered into a maintenance agreement to maintain specified equipment at the embassy. The agreement referred to Philippine law for purposes of any dispute settlement. The court held that this did not constitute a waiver of diplomatic immunity. Submission to local jurisdiction must be clear and unequivocal. Deutsche v. CA (GR 152318, April 16, 2009) – The GTZ is equivalent to a Philippine corporation organized under the Corporation Code but owned by the government. It must secure an executive endorsement of its claim of sovereign or diplomatic immunity. International Organizations DFA v. NLRC (262 SCRA 39) - Illegal immune.

dismissal suit against ADB;

Lasco v. UN (241 SCRA 681) - Illegal dismissal suit against U.N. Revolving Fund; immune. WHO v. Aquino (48 SCRA 242) - Crates consigned to WHO diplomat exempt from search. ICMC v. Calleja (190 SCRA 130) - Disallowed a petition for certification election. Liang v. People (G.R. 125865, January 28, 2000) - A criminal case for slander against an ADB employee may prosper because it was not done in the exercise of official functions. Sps. Lacierda v. Platon (GR 157141, August 31, 2005 ) – SEAFDEC is an international organization which is immune from suits being clothed with diplomatic immunity.

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(d) Areas Not Subject to the Jurisdiction of Individual States (i) High Seas Allowable acts by any State: navigation, overflight, submarine cables/pipelines, construction of artificial islands or any installations, fishing, research, etc. … 1982 Convention on the Law of the Sea, Articles 87, 97 1982 Convention on the Law of the Sea, Definition of Piracy, Article 101 (ii) Deep Seabed (also called The AREA) Common heritage of mankind – Open for peaceful purposes and for exploitation for the benefit of mankind; right of a coastal State to prevent or mitigate any grave and imminent danger to its coastline or environment; governed by the International Seabed Authority. Declaration of Principles Governing the Seabed and the Ocean Floor and the Subsoil Thereof, Beyond the Limits of National Jurisdiction – Resolution 2749 XXV (1970) 1982 Convention on the Law of the Sea, Part XI (iii) Outer Space Province of all mankind – Not subject to national appropriation; no nuclear weapons in orbit; astronauts are “envoys of mankind” and States are obliged to render assistance to them in emergency landing; there is international responsibility for national activities in outer space; absolute liability for damage caused by space objects. Concept of “geostationary orbit” and the “spatial” test: There is no universally accepted definition of outer space and the problem of demarcation between air space and outer space is a old as the space age itself. Some suggest a spatialist test – arbitrary height of 96-110 kms. from the equator, limit of air flight, limit of the atmosphere, etc., … Treaty on Principles Governing the Activities of States in Exploration of Outer Space and the Use of Outer Space, Including the Moon and other Celestial Bodies (1967) Convention on Liability for Damage Caused by Space Objects (1972)

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Chapter IV. RESPONSIBILITY OF STATES Q: Can States be criminally responsible? A: Highly debatable. (a) General Principles of Responsibility (i) Scope: concerned with incidence and consequences of illegal acts and the payment of compensation (ii) Theory – internationally wrongful act or omission: 1. international delict- most cases 2. international crime- e.g. aggression, colonization by force, slavery, genocide, apartheid, mass pollution (iii) Distinguish: law of treaties and general principles of responsibility (iv) Distinguish: 1. objective responsibility- strict liability (good or bad faith is immaterial) 2. subjective- fault theory (v) Examples: 1. breach of treaty 2. injury to territory, property, diplomat of a State 3. injury to person/property of aliens (vi) Reparation required for injury caused:

1. restitution 2. damages (vii) Requisites: 1. act/omission attributable to the State 2. breach of an international obligation (viii) Categories: 1. Direct – when injury is against another State (any of its organs or agents). 2. Indirect – against the person or property of a national of another State. (ix) Imputability: (direct responsibility) 1. State Organs a. Executive – e.g. failure to take appropriate steps to punish culprits who are police officers. b. Legislative – e.g. if a treaty requires incorporation of certain rules in domestic law, failure to do so entails responsibility. 23


c. Judiciary – e.g. if the court commits errors in the application and interpretation of treaties or fails to give effect to a treaty or is unable to do so because the necessary change in or addition to, the national law has not been made, its judgment involves the State in a breach of treaty. 2. Territorial governmental authority (LGUs) 3. Persons/groups authorized by the State (x) Ultra vires acts of State organs and officials – considered act of State even if beyond the competence of the agent for as long as there is proof of apparent authority or the act was done within the general scope of authority. An example is when police officers take revenge against another person but seemingly acted in the role of police to the average observer. (NOTE: Abuse of Rights – there could be compensation for the injurious consequences of lawful acts of State organs or officials. An example is Article 22, par. 3 of the Convention on the High Seas which allows compensation for loss or damage caused as a result of the exercise of the right of warships to board merchants when suspicious circumstances would warrant.) Case law: Youmans Case (RIAA iv. 110, 1926) – Here, soldiers were sent to protect aliens besieged by rioters but ultimately joined in the attack which resulted in the killing of the aliens. Soldiers inflicted personal injuries or committed wanton destruction or looting act in disobedience of some rules laid down by superior authority. Caire Claim Case (France v. Mexico, French-Mexican Claims Commission, RIAA v. 516, 1929)- A French national was killed in Mexico by Mexican forces after failing to pay ransom money. Objective responsibility applies in this case wherein the military officers conducted themselves as officers in the brigade. The officers even used the means placed at their disposition by virtue of their capacity. The ultimate test is the amount of State control which ought to have been exercised under the circumstances. (But distinguish this from the earlier case of Youmans.) (xi) Acts of private citizens and rebels: 1. Private citizen- As a rule, acts of private citizens do not entail State responsibility. In localized riots and mob violence, the State has the duty to take reasonable precautionary and preventive action to protect foreign public and private property. 2. Rebels- Insurrectional movement’s act is act of State once it is established as the new government. Belligerent groups may be held responsible for their acts during 24


the armed conflict. There is a duty on the part of the State to prevent or suppress the insurrection using the standard of due diligence; however, a higher standard of protection applies to diplomats and consuls. Case law: Home Missionary Society Case (RIAA vi. 42, 1920) – This religious Society suffered losses during the rebellion in the Protectorate of Sierra Leone. The U.S. claimed compensation on behalf of the Society alleging that the British Government failed to take appropriate steps for the maintenance of order. This claim was dismissed because there was an assumption of risk on the part of the Society and there was no failure of duty based on the facts. (xii) International crimes and delicts International Law Commission Draft Articles on State Responsibility, Articles 110, 19 (b) Responsibility for Acts Affecting Individuals (i) Traditional International Liability 1. Theory

of denial of justice

Case law: United States (Chattin) v. Mexico (4 R.I.A.A. 282, 1927 – The arrest, trial and conviction of an American national in Mexico was deemed irregular and in violation of international standards, thus, giving rise to responsibility. 2. Harvard Research Draft, definition (Article 9) – “…unwarranted delay or obstruction of access to courts, gross deficiency in the administration of judicial or remedial process, failure to provide those guarantees which are generally considered indispensable to the proper administration of justice, or a manifestly unjust judgment. An error of a national court which does not produce manifest injustice is not a denial of justice.” (ii) International Protection of Human Rights 1. Human Rights Principles and Enforcement Mechanisms a. U.N. Charter, Articles 1(3), 55, 56 – State obligation to respect and promote human rights. b. Universal Declaration of Human Rights (1948) – Deemed by some international legal scholars as customary international law.

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c. International Covenant on Civil and Political Rights (1966) and Optional Protocols 1 and 2 – OP1 is on individual communications procedure through the HR Committee. OP2 is of the abolition of the death penalty (GRP ratified the ICCPR and OP1 but is not a signatory to OP2); most rights are selfexecuting rights. d. International Covenant on Economic, Social & Cultural Rights (1966) – There is only a reportorial duty; generally, ecosoc rights are based on progressive realization principle. Ratified by GRP. e. Convention on the Elimination of Racial Discrimination (1969) – There are individual communications procedure and State to State communications. Ratified by GRP. f. Convention on the Elimination of Discrimination against Women (1981) and Optional Protocol (2000) – There is an optional protocol on individual communication and inquiry procedures. All ratified by GRP. g. Convention against Torture (1987) – There are individual communications procedure and State to State communications. Ratified by GRP. h. Convention on the Rights of the Child (1990) and Optional Protocols on Sale, Prostitution and Pornography (2002) and Children in Situations of Armed Conflict (2002)- There is a reportorial duty to a CRC Committee. All ratified by GRP. i. Migrant Workers Convention (2003) –Ratified by GRP 2.

Concepts of International Minimum Standard and National Treatment These apply to certain areas of activity of aliens, like investment and trade matters; for the protection of aliens against discriminatory acts of the host State. (NOTE: Alien is treated like a national of host State in all respects as to property right – if protection pertains to the “person” of the alien, apply international human rights law principles.) Case law: South-West Africa Cases, Second Phase (I.C.J. Reports, 1966, Dissenting Opinion of Judge Tanaka) – “Apartheid” as violation of principle of equality before the law. (Philippines) Mejoff v. Director of Prisons (90 Phil. 70) – Application of the UDHR by Philippine Supreme Court in a habeas corpus case of an alien of Russian descent who was brought to the country from Shanghai as a secret 26


operative by the Japanese forces. After the war, he was arrested as a Japanese spy by the U.S. Army. He was detained by the Commonwealth Government and was detained for 2 years after he was ordered deported. Article 8 of UDHR proclaimed that “everyone has the right to an effective remedy by the competent national tribunals for acts violating … fundamental rights…” Marcos v. Manglapus (177 SCRA 668; 178 SCRA 760) – Application of the UDHR and ICCPR on the right to return of the Marcoses from Hawaii even if the Bill of Rights did not specify this right. However, the Court held that the GRP did not act arbitrarily in determining that the return of the Marcoses under the circumstances then existing posed a serious threat to national interest and welfare. International School Alliance of School Educators v. Quisumbing (G.R. No.128845, June 1, 2000) - Application of ICESCR to a suit for recovery of compensation on the basis of equal pay for equal work. The Court required the International School to treat local and foreign hired teachers equally. Republic v. Sandiganbayan (GR 104768, July 21, 2003) – The revolutionary government following EDSA 1 in 1986 was subject to the ICCPR and UDHR. Central Bank Employees v. BSP (GR 148208, December 14, 2004) – The equality provisions of international human rights instruments impose a measure of positive obligation on State Parties to eradicate discrimination. (Writ of Amparo) Sec. of National Defense v. Manalo (GR 180906, October 7, 2008); Reyes v. CA (GR 182161, December 3, 2009); Rubrico v. GMA (GR 183871, February 18, 2010); and, BOAC v. Cadapan (GR 184461-62, May 31, 2011) – The writ of amparo is a remedial measure designed to direct specific courses of action to government agencies to safeguard the constitutional right to life, liberty and security of aggrieved individuals. Biraogo v. Truth Commission (GR 192935 and 193036, December 7, 2010) – E.O. No.1 insofar as it intended to investigate human rights violations is consistent with generally accepted principles of international law. But it is unconstitutional due to its limitation of its investigation to the GMA administration in violation of the equal protection clause.

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(iii) The Taking of Foreign-Owned Property: Nationalization and Expropriation GR: State with right to expropriate foreign-owned property for a public purpose. Exception: if arbitrary or discriminatory or motivated by considerations of political nature. (NOTE: Unsettled – amount of compensation and what constitutes expropriation. Two views on the matter: U.S. and capitalist States – “prompt, adequate, effective” Socialist States – no compensation) Norm/practice – “Bilateral Investment Treaties” would provide the standard of compensation. United Nations Declaration on Permanent Sovereignty over Natural Resources, 1962, U.N.G.A. Resolution 1803 (XVII) – There is an inalienable right of State to freely dispose of natural wealth and resources; bases for expropriation are public utility, security and national interest; standard “appropriate” compensation. United Nations Resolution 3171 (XXVIII) on Permanent Sovereignty over Natural Resources, Dec. 17, 1973 – State is entitled to determine compensation and mode of payment; and dispute on this matter to be settled based on national legislation. Charter of Economic Rights and Duties of States, 1974, U.N.G.A. Resolution 3281 (XXIX) – Right of a State to regulate foreign investment without preferential treatment; standard - “appropriate” compensation. Proposed Amendment to Article 2 of Charter of Economic Rights and Duties of States – Developing States rejected amendment to Article 2 aimed at using the term “just compensation”. Case law: Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the Government of Libyan Arab Republic (Compensation for Nationalized Property, 19 January 1977, 17 I.L.M. 1) – Companies entitled to “restitutio in integrum” on the basis of violation of an internationalized contract; tribunal disregarded issue of nationalization; reference to general principles of law outside internal law – “breach of contract”; private party has specific but limited “international capacities” in this case. (NOTE: International law allows the operation of rules of private international law. When a claim arises based on breach of contract between an alien and a government, the issue may be decided in 28


accordance with the applicable municipal law designated by the rules of private international law.) (c) Responsibility for Environmental Harm Case law: The Trail Smelter Arbitration (3 R.I.A.A.1905, 1938/1941) – State is bound to protect other States against injurious acts by individuals from within its jurisdiction. The Corfu Channel Case (supra.)- Albania could not permit use of its territory to harm others. The Stockholm Principles (1972) – The duty of States to notify other States of activities that may have extra-territorial effect was not accepted (but see U.N.G.A. Resolution 2995 (XXVII). (NOTE: The Stockholm Declaration was adopted in 1972 by the 113 participating States. It contains 26 principles which provide the basis of an international policy for the protection and improvement of the environment, of which Principles 21 and 22 directly concern international law. Principle 21 provides for the right of a State to exploit its own natural resources and the duty not to cause harm to others or to places outside of its territory in the course of their exploitation. Principle 22 imposes an obligation to cooperate to develop the duty further.) U.N.G.A. Resolution 2995 (XXVII) U.N.G.A. Resolution 2996 (XXVII) International Law Association Resolution 1972 United Nations Environment Program: Governing Council Decisions Concerning Policy Objectives, 12 I.L.M. 1183 (1973) Rio Declaration on Environment and Development, A/CONF.151/5/Rev.1, 31 I.L.M. 874 (1992) – Emphasized the right of a State to exploit resources but with the corresponding duty not to damage the environment; “special situation of developing countries” considered; trade policy measures for environmental purposes should not constitute as means for arbitrary or unjustifiable discrimination or a disguised restriction on international trade; there is a duty to notify other States regarding disasters.

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Montreal Protocol on Substances that Deplete the Ozone Layer-expressly provides for the periodic review and assessment of control measures taken and their adjustment whenever deemed necessary. 1989 Basel Convention on the Transboundary Movement of Hazardous Wastes - authorizes the regularly scheduled meetings of the conference of the parties to take legislative initiatives to ensure the effectiveness and continuous improvement of the regime. Precautionary Principle – The obligation requires a State to abstain from conduct that carries a significant risk of harm. It is an obligation that has several procedural companion-elements, namely: the duty of prior information and of consultation. These obligations have become part of customary international law according to legal scholars. The evolution of a duty of prevention can be traced from its conceptual origin in the Trail Smelter decision all the way to the international law commission’s focus on prevention and its work on the liability topic. Case law: DENR v. Concerned Residents (GR 171947-48, December 18, 2008) – Philippines is a member of the International Marine Organization and a signatory to the International Convention for the Prevention of Pollution from Ships. Clean-up of Manila Bay is a duty which covers general pollution incidents. (d) International Claims GR: Every State has a duty to protect its national. The State should establish its legal interest by proving the nationality of the claim.

1. 2. 3. 4.

Forms of protection: Protest Enquiry Negotiation Submission to arbitral tribunal/court

Precondition: exhaustion of local remedies – if indirect responsibility. (NOTE: by taking up the case of a national, a State is, in reality, asserting its own rights – its right to ensure, in the person of its subject, respect for the rules of international law. Therefore, the subject matter of the claim is the individual and his property, but the claim is that of the STATE.) Case law: United States [North American Dredging Co. of Texas] v. United Mexican States (4 R.I.A.A. 26, 1927); See dissent of Judge Nielsen in the subsequent case of International Fisheries Co., (Nielsen’s Opinions 207, 1931) – Calvo 30


clause: “A contract containing a clause depriving the party subscribing to the clause of the right to submit any claims connected with his contract to an international commission.”; the individual can make such promise but can not deprive his/her own state in applying international remedies; however, there is no rule of international law giving the State the right to intervene in order to strike down such a lawful contract; the remedy of denial of justice is independent of the violation of contract. The Tattler (United States v. Great Britain, Nielsen Rep. 489, 1920) – The American citizens’ waiver of claims (and right of libel) in consideration of the release of the American schooner Tattler are not binding upon the U.S. government. The Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania, P.C.I.J. Series A/B, No. 76, 1939) – The test of right of claim by a State is the “bond of nationality” which existed at the time of the injury occurred. It is also an established rule that exhaustion of remedies afforded by municipal law must be availed of except if there is an ineffective remedy. Nottebohm Case (Liechtenstein v. Guatemala, I.C.J. Reports 4, 1955) – The naturalization of Nottebohm under Liechtenstein law will not be sufficient to allow a claim in his behalf. It was shown that Nottebohm was a former German national who has resided in Guatemala for more than 30 years (since 1905). It was only in October 1939, after the opening of the 2 nd WW that he submitted an application for naturalization. (This was obviously an attempt to enable him to substitute for his status as a national of a belligerent German State that of a national of a neutral Liechtenstein and evade proceedings against him and his property interests.) He continued to stay in Guatemala until his removal as a result of war measures in 1943. He attempted to return to Guatemala but was refused, for which reason he finally went to Liechtenstein in 1946. The Court held that in cases of dual nationality, where the question arose with regard to the exercise of protection, the “real and effective nationality” test has been applied. Case Concerning the Barcelona Traction (Belgium v. Spain, I.C.J. Reports 3, 1970) – In determining nationality of a corporation, the “place of incorporation and the location of the registered office” are material elements. It was found that Barcelona Traction Co. was incorporated under Canadian law and had its registered office in Canada. Belgium did not have capacity to espouse the claim of Belgian shareholders in the company. Banco Nacional de Cuba v. Peter L.F. Sabbatino (376 U.S. 398, 1964) – The Cuban Government characterized the reduction in the Cuban sugar quota by the U.S. as an act of “aggression, for political purpose,” which prompted the Cuban President to nationalize by forced expropriation property or enterprises in which American nationals had an interest. The U.S. Supreme Court held that “(h)owever offensive to the public policy of (the U.S.) and its constituent 31


States an expropriation of this kind may be, we conclude that both the national interest and progress toward the goal of establishing the rule of law among nations are best served by maintaining intact the act of state doctrine in this realm of its application.” Alfred Dunhill of London Inc. v. The Republic of Cuba (425 U.S. 682, 48 L.Ed. 2d.301, 1976) – U.S. Supreme Court did not apply the act of state doctrine to this case wherein the Cuban Government failed to return to Alfred Dunhill of London, Inc. funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill by certain expropriated Cuban cigar businesses. The act relied upon by Cuba was an act arising out of the conduct by Cuba’s agents in the operation of cigar businesses for profit. Buttes Gas and Oil Co. and Another v. Hammer and Another (3 W.L.R. 787, H.L., 1981) – In a litigation instituted in the U.K. between two petroleum companies, there were allegations of conspiracy to cheat and defraud the U.K. involving foreign rulers in the Persian Gulf region. The plaintiffs (Buttes) applied for an order that the court should not exercise jurisdiction in respect of specified matters said to be “acts of state” of the governments of Sharjah, Umm al Qaiwain, Iran and the U.K. The issue arose from a press conference given in London in 1970 by Dr. Hammer wherein he accused Buttes of using improper methods and colluding with the ruler of Sharjah to backdate a decree by the ruler extending the territorial waters of Sharjah, from 3 miles to 12 miles so as to obtain for themselves the benefit of the oil-bearing deposit at the location which Dr. Hammer claimed was discovered by and belonging to a competitor of Buttes. It was held that the court cannot entertain the suit for it would bring to trial non-justiciable issues. (Philippines) Vinuya v. Romulo (619 SCRA) – Espousal of claim on behalf of the “Malaya Lolas” is discretionary upon the State (Peace Treaty of 1951 satisfied claims).

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Chapter V.

RESOLUTION OF DISPUTES

(a) Use of Force (i)

General Grotius, On The Rights of War and Peace (1901) General Treaty for the Renunciation of War Briand-Kellogg Pact (1928) Charter of the United Nations, Articles 2 (3) (4), Articles 39-42 General Assembly Resolution 3314 XXX on the Definition of Aggression Pro-democratic Invasion

(ii) The Concepts of Self-Defense and Self Protection Charter of the United Nations, Article 51 Right of States to Use Armed Force (iii) The Legality of Reprisals Legal Implications of Israel’s 1982 Invasion into Lebanon (b) Judicial and Arbitral Settlement (i)

International Court of Justice Statute of the International Court of Justice: A3- 15 judges A4- elected by GA and SC; nominated by national groups A16- no other involvement political/administrative functions;  occupation A19- diplomatic immunity A21- President, VP, Registrar; 3-yr. term; with re-election A34- only States may be Parties A36- jurisdiction: recognition of compulsory jurisdiction- declaration by member A39- language: French and English; except: “request” by one party for other language A43- written and oral proceedings A55- majority ruling A60- bindingness of decision: only between Parties and in that particular case A60- no appeal A61- revision of judgment: discovery of some fact (newly discovered evidence)w/in 6 months from discovery but not more than 10 years A62- motion to intervene allowed 33


A65- advisory opinions- request by a body based on UN Charter Case law: 1. Jurisdiction a. Aerial Incidence Case b. Nicaragua v. U.S. c. Case Concerning East Timor 2. Provisional Measures a. Nicaragua v. U.S. b. Case Concerning Legality of Use of Force 3. Intervention a. El Salvador v. Honduras (ii) International Arbitration Case law: (Philippines) Del Monte v. CA (GR 136154, February 7, 2001) – The trial court found it expedient to proceed with trial in the interest of justice instead of allowing simultaneous arbitration proceedings. The Philippines under RA 876 authorizes arbitration of domestic disputes. It adhered to the 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards through Senate Resolution 71 of May 10, 1965. LM Power v. Capitol Industrial Construction (GR 141833, March 26, 2003) – Arbitration clause does not divest courts of jurisdiction to pass upon findings of arbitral bodies. Frabelle Fishing Corp. v. Philamlife (GR 158560, August 17, 2007) – To brush aside a contractual agreement calling for arbitration would be a step backward. Gonzalez v. Hon. Pimentel (GR 167994, January 22, 2007) – RA 876 recognizes the contractual nature of arbitration agreement. RCBC v. Banco de Oro (687 SCRA 583) – Partiality of the Chairman of the Arbitral Tribunal was manifested when the Chairman gave the parties copies of the ICC Bulletin which may have equipped RCBC with legal arguments.

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Chapter VI. SPECIAL TOPICS IN INTERNATIONAL LAW (a) The United Nations (i) The UN Charter and the Problem of Interpretation - Treaty drafted mainly by politicians with little assistance from lawyers - Mixture of legal with political factors explains why States are reluctant to refer disputes about interpretation of UN charter to ICJ - “travaux preparatoires” as subsidiary means of interpretation (N.B. tends to be limited to the past) (ii) Purpose: – – – –

Peace and security Friendly relations Cooperation Harmonize actions of States/nations

(iii) Theory of Respect for Domestic Jurisdiction of States - Art. 2(7) – respect for internal or domestic issues - Issues outside the domestic jurisdiction of States 1. Breach of international law 2. Threat to international peace 3. Gross violation of human rights 4. Self-determination (iv) Membership – – –

Art. 4: Security Council vote for admission; recommends to General Assembly Charter says nothing on withdrawal China issue: only a question of rightful representative

(v) Organs of UN General Assembly } “assembly” Security Council} ECOSOC } “council” Trusteeship } Secretariat } 35


ICJ

} “organs”

(vi) Security Council: 5 permanent members – U.S., Russia, France, U.K. and China 10 non-permanent members– 5 selected each year for term of 2 years  

“Veto”: each permanent member with a veto on non-procedural matters. “Double veto”: to determine whether a question is by itself a procedural question.

(vii) General Assembly: -

discusses and makes recommendations on: 1. studies on progressive development of international law 2. international cooperation “internal” decisions as binding on the members “GA resolutions” with important legal effects

(viii) Secretariat - “Secretary-General” appointed by GA upon recommendation of SC; non- procedural matter subject to veto; chief administrative officer - “quota” in hiring UN personnel (ix) Enforcement Action and UN Forces - Chapter VII- threats to peace, breaches of peace and acts of aggression - 2 forms of enforcement action: Art. 41- non-military- cut economic relations/ communications/ diplomatic relations Art. 42- military (NOTE: Art. 43- State consent to join military action is necessary) (x) Economic and Social Cooperation - Arts. 55 and 56: standard of living and human rights - ECOSOC members elected each year for 3-yr. term - e.g. FAO, IMCO, ICAO, ILO, IBRD, IMF, IFAD, UNESCO, UPU, WHO (b) International Economic Law (i) Bretton Woods system: designed to reconstruct world economic system in matters of trade (GATT/WTO) and finance (WB and IMF) (ii) Core principles: 36


1. comparative advantage 2. economies of scale (iii) Fundamental Norms: 1. most favoured nation - is an obligation to treat that State, its nationals or goods, no less favorably than any other State, its nationals or goods 2. national treatment – is an obligation to treat the nationals or goods of another State as the State treats its own nationals or goods (iv) GR: State duty to refrain from injuring others through economic acts. (v) Safeguards and Escape Clauses: The GATT authorizes countervailing duties on the importation of subsidized products only if the effect of subsidization is such as to cause or threaten material injury to or to retard materially the establishment of a domestic industry. It also permits the antidumping duty to be in the full amount of the margin of dumping whenever there is a sale in the importing State below “normal value.” An escape clause in GATT allows a State party to suspend its obligation or withdraw or modify a concession with respect to a product if, as a result of unforeseen developments the product is being imported into its territory in such increased quantities and under such conditions as to threaten serious injury to domestic producers. (vi) Generalized System of Preferences: U.S. Trade Act of 1974 authorizes a GSP which gives the President power to designate States as eligible to introduce eligible goods free of duty or subject to reduced goods. (vii) Specialized Dispute Settlement Body (viii) Free Trade Area (e.g. AFTA, NAFTA): eliminates barriers on trade among members, but leaves each member State free to determine barriers to the outside world. (ix) Customs Union (e.g. EU): a grouping of States in which duties and other restrictions are eliminated with respect to substantially all trade among members, and substantially the same duties and other regulations are applied by all members of the union to imports from all other States. (c) Global Terrorism (i) No precise definition but only “operative definition” (ii) History of instruments: 1. 1973 International Convention for Prevention and Punishment of terrorism- “ all criminal acts directed v. a State and intended or calculated to create a state of terror” 2. 1972- after the Munich Tragedy, UN initiative to prevent terrorism 37


3. 1963-2001- 12 multilateral treaties a. On civil aviation (1963 Tokyo, 1970 Hague and 1971 Montreal) b. Violence v. State leaders/officials/diplomats (1973 Convention Preventing Crimes v. Internationally Protected Persons) c. On taking hostages (1979) d. On terrorist bombings (1996) e. On financing of terrorism (1999) (iii) Post 9-11-01: UN Security Council Resolution 1373 acting under Chapter VII of the UN Charter on threats to peace and on aggression established the “CounterTerrorism Committee” (NOTE: Problem of distinguishing terrorism and acts of national liberation movements.) (iv) What is the allowable response to terrorism? (Cassese) - Concerted and multi-lateral action (Security Council Resolution 1373) - Elements of Proportionality Principle: 1. Detain those responsible 2. Destroy military targets 3. International humanitarian law should be respected: POW 4. Defer to Security Council authorization to use force v. specific States 5. Bring captives to justice before the ICC. Case law: (Philippines) Southern Hemisphere v. ATC (GR 178552, October 5, 2010) – The Supreme Court upheld the Human Security Act or RA 9372. Petitioners failed to prove its invalidity based on the void for vagueness and overbreadth doctrines. Facial challenge of a criminal statute is not countenanced. (d) Iraq War (Gulf War) (i) Issue: Three UN Security Council Resolutions culminating in UNSCR 1441 allegedly laid the basis for pre-emptive strikes under the theory of self-defense (ii) UNSCR 678: authorized the use of force to enforce Iraq’s obligation to disarm. (iii)UNSCR 687: authorized use of force against Iraq to eject it from Kuwait and to restore peace in the area. (iv)UNSCR 1441: provided for serious consequences should Iraq fail to comply with its duty to disarm and cooperate with the UN Inspection team. The resolution also recognized that Iraq has continued to be in “material breach” of past resolutions and gave it the last opportunity to comply.

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(e) International Humanitarian Law (i) Introduction: International Law and the Use of Force - Theory of just war (in conformity with Divine Will)- this justified Christianization of Roman Empire; goal- correct wrongdoing - Europe nation-states changed the concept on account of “sovereignty” Prescribed rule: attempt to negotiate and resolve disputes Goal: maintain order by peaceful means Norms of just war: a. Immunity of innocent persons b. Proportionate use of force - After the Peace of Westphalia (1648)- “just war” disapproved Rule: States were sovereign and equal, no one State could judge whether another’s cause was just or not. Norm: “balance of power” - 1st WW- ended balance of power; raised the question of unjust war - League of Nations- duty to submit disputes likely to lead to a rupture to arbitration/judicial settlement/inquiry by the League; State may resort to force after judgment - 1928- “Kellogg-Briand Pact”- renunciation of war as instrument of national policy - UN Charter- A2(4): “…refrain… from the threat or the use of force against the territorial integrity or political independence of any State…” (NOTE: This provision is declaratory of Customary International Law. The term “force” rather than “war” is better to cover situations in which violence is employed which fall short of the technical requirements of the state of war.) Exceptions: 1. Collective measures by UN 2. Self-defense (ii) Evolution of IHL - Mid- 19th century: Battle of Solferino in 1859 Henry Dunant- pioneered work Result: Geneva Convention for the Amelioration of the Condition of the Wounded in the Field (1864) (amended in 1906) 1806- Declaration of St. Petersburg prohibited use of small explosive or incendiary projectiles - Codification: Hague Peace Conferences of 1899 and 1907 Included: a. land and naval warfare b. “belligerents” subject to law of nations c. measures over occupied territory d. rights and duties of neutral states 39


e. prohibition on arms, projectiles or material calculated to cause unnecessary suffering (NOTE: Apart from 1954 Hague Convention for Protection of Cultural Property in Time of Armed Conflict, rules of war remained codified in1907.) - 1929 Conventions: revised 1864 and 1906 instruments and dealt with rules concerning the wounded and sick in armies in the field and POWs - replaced by Four Geneva “Red Cross” Conventions of 1949 >Included: 1. amelioration of the condition of the wounded and sick in armed forces in the field 2. amelioration of the condition of the wounded, sick and ship-wrecked members of the armed forces at sea 3. POWs’ treatment 4. protection of civilians >Basic Principle: persons not actively in warfare should be treated humanely. Therefore, it prohibits: – Taking of hostages – Torture – Illegal executions – Reprisals >Other Principles: 1. Standard of care of POWs 2. Prohibition on deportation 3. Prohibition on indiscriminate distribution of property - 1977 Additional Protocols: built upon earlier conventions - Contributions: 1. Law of Hague- interstate rules on use of force 2. Law of Geneva- protection of persons 3. Wars of liberation 4. Mercenaries (prohibited by Declaration on Friendly Relations) 5. Apartheid (iii) Scope of Protection of Combatants and Non-combatants - GC 1- respect and protection to medical personnel and establishment - GC 2- (at sea): hospital ships - GC 3- POWs Definition of POWs: - Members of Armed Force (including militias and volunteer corps) - Other militias and volunteer corps (including organized resistance movement) Tests: 1. Commanded by person responsible for subordinates 2. Use of fixed distinctive sign 40


3. Carry arms openly 4. Operates in laws/ customs of war NOTE: “use of guerillas”- since 1949; subject to expanded definition in A43 and A 44 of P1, 1977 (expanded definition, controversial) Armed Forces consist of “all organized armed units under an effective command structure which enforces compliance with international law”. A44(3) duty- to distinguish themselves from the civilian population while in operation… when an armed combatant cannot so distinguish himself, the status of combatant may be retained provided that arms are carried openly during engagement. - Treatment of POWS: 1. No violence, intimidation, insults and public curiosity e.g Breach- display POWs on TV confessing and criticizing governments (Iraq) 2. Information allowed - name, date of birth, serial number… but one cannot use coercion to get information 3. Put in camps (away from combat zones) 4. A23- cannot use presence of POWs to render certain points immune from military operations 5. POWs subject to laws of the State holding them 6. May be disciplined and prosecuted for war crimes 7. May be prosecuted for crimes against the holding State - GC4- in relation o A50(1) of P1, 1977 - Definition: Civilian- “any person not combatant and in cases of doubt, a person is to be considered as a civilian”. - Scope of Protection: person, honor, convictions, religious practice - Prohibition: torture, other cruel, inhuman, or degrading treatment, hostage-taking, reprisal - Guarantee: due process - Civilians in occupied territory: e.g. Kuwait- sec. 3, GC4 - Case: West Bank of Jordan - During hostilities: A48, 81, P1- distinguish: population and combatants; civilian and military; objectives A51- civilians cannot be object of attack - prohibits acts or threats to violence or to spread terror - no indiscriminate attack A52- civilian objects shall not be object of attack A53 and 1954 Convention on Cultural Property – cultural property and places of worships, protected. 41


A54- objects indispensable for survival of civilians (e.g. foodstuffs, agricultural areas, livestock, water supplies, irrigation…) A56- installations containing dangerous forces (e.g. dams, dykes, nuclear generating stations…) (iv) Methods of Warfare - 1868 Petersburg Declaration- Preamble “the only legitimate object which states should endeavor to accomplish during war is to weaken the military forces of the enemy.” – International law imposes constraint on the use of methods of warfare Case: “Legality of the Threat of Use of Nuclear Weapons” (ICJ, 1996)- never use weapons that : 1. are incapable of distinguishing between civilian and military targets… 2. cause unnecessary suffering to combatants… 3. cause (combatants) such harm or (aggravates) suffering. Held: CIL ( no need to be party to Hague Peace Conference or GC)- “overriding consideration of humanity” Note: On legality of possession or threat or use of nuclear weapons- not prohibited (for self-defense) [see Nuclear Weapons Non-proliferation Treaty] – Disallowed weapons: 1. projectiles (St. Petersburg, 1868) 2. dum-dum bullets (Hague, 1899) 3. asphyxiating and deleterious gases (Hague, 1899) (Gen. Prot., 1925) 4. not detectible by x-ray (1980 Conventional Weapons Treaty, Prot. 1) 5. mines and booby- traps v. civilians (PII of 1980 CWT) 6. incendiary devices v. civilians or military objectives (P III of 1980 CWT) Note: protect the environment from long-term and severe damage: A55, P1, GC; 1977 Convention on Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (v) Scope of Application: International and Internal Armed Conflicts Case: Tadic case- ITWCFY “ An armed conflict exists whenever there is resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” – Therefore, A3 of the ITWCFY Statute gave jurisdiction “regardless of whether they occurred within an internal or an international armed conflict.” – Non International Armed Conflict - Common A3 of 1949 GC and P II, 1977 Note: may range from full-scale civil wars to minor disturbances… – Protection accorded: –

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–

1. Persons taking no active part in hostilities to be treated humanely without any adverse distinction based on race, color, religion or faith, sex, birth or wealth. - Prohibited acts: a. Violence to life and person b. Hostage-taking c. Outrages upon human dignity d. Passing of sentences and carrying out of executions in the absence of due process 2. Wounded and sick are to be cared for P II, 1977 - “armed forces” v. “dissident forces” Test: a. Responsible command b. Exercise such control over part of territory c. Able to carry out sustained and concerted military operations d. Able to implement P II - Excluded: a. Internal disturbances b. Tensions c. Riots d. Sporadic acts of violence - Specific rights: a. Protection v. violence to life, health b. Protection v. torture, collective punishment, hostage-taking, terrorism c. Protection v. outrage upon personal dignity, rapes and prostitution, pillage d. Protection of children, civilians e. Protection of works/installations which may cause severe losses f. Protection of displaced civilians g. Protection of prisoners/detainees h. Protection of wounded/sick -

“outside” threshold of A3 and P II a. Internal strife- being addressed by ICRC (gray area: HR and IHL)

(vi) Enforcement of IHL – – – – –

Use of “Protecting Power”: Switzerland; to look after nationals of one State in the control of one of conflicting parties International Fact- Finding (PI):–grave breaches of GC Ad Hoc Inquiry (both parties) War crimes: subject to universal jurisdiction (e.g. Nuremberg Charter, A6- individual responsibility for violations, etc…) Martens Clause- Russian delegate (Hague) 43


1. “unforeseen cases should, in the absence of a written undertaking, not to be left to the arbitrary judgment of military commanders…” 2. “civilians and combatants remain under the protection… of the principles of the law of nations.” (f) The Rome Statute (ICC) and R.A. No. 9851 “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity” Part 1.Establishment of the Court The Court (Article 1)  Complementary to national criminal jurisdictions Relationship of the Court with the United Nations (Article 2)  An agreement approved by the Assembly of States Parties Seat of the Court (Article 3)  The Hague  May sit elsewhere, whenever it considers it desirable Legal Status and Powers of the Court (Article 4)  International legal personality  May exercise its functions and powers on the territory of any State and, by special agreement; on the territory of any other State Crimes within the Jurisdiction of the Court (Article 5)  The crime of genocide;  Crimes against humanity;  War crimes;  The crime of aggression. Genocide (Article 6)  Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Crimes Against Humanity (Article 7)  Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; 44


(b) (c) (d) (e) (f) (g) (h) (i) (j) (k)

Extermination; Enslavement; Deportation or forcible transfer of population; Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; Torture; Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; Persecution against any identifiable group or collectivity; Enforced disappearance of persons; The crime of apartheid; Other inhumane acts.

War Crimes (Article 8)  Part of a plan or policy or as a part of a large-scale commission of such crimes. (a)

Grave breaches of the Geneva Conventions of 12 August 1949 (i) Willful killing; (ii) Torture; (iii) Willfully causing causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity; (v) Compelling a prisoner to serve in the forces of a hostile Power; (vi) Depriving a prisoner of the rights of fair and regular trial; (vii) Unlawful deportation or unlawful confinement; (viii) Taking of hostages.

(b)

Other serious violations of the laws and customs applicable in international armed conflict: (i) Attacks against the civilian population; (ii) Attacks against civilian objects; (iii) Attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping; (iv) Attack in the knowledge that such attack will cause incidental loss of life or injury and severe damage to the natural environment; (v) Attacking towns, villages, dwellings or buildings which are undefended; (vi) Killing or wounding a combatant having laid down his arms; (vii) Improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions; (viii) Transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all parts of the population of the occupied territory within or outside this territory;

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(ix) (x) (xi) (xii) (xiii) (xiv) (xv) (xvi) (xvii) (xix) (xx) (xxi) (xxii) (xxiii) (xxiv) (xxv) (xxvi)

Attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected; Physical mutilation; Killing or wounding treacherously individual belonging to the hostile nation or army; Declaring that no quarter will be given; Destroying or seizing the enemy’s property; Declaring abolished the rights and actions of the nationals of the hostile party; Compelling the nationals of the hostile party to take part in the operations of war directed against their own country; Pillaging a town or place; Employing poison; Employing bullets which expand or flatten; Employing weapons which are of a nature to cause superfluous injury provided that such weapons are the subject of a comprehensive prohibition; Outrages upon personal dignity; Committing rape or any other form of sexual violence; Utilizing the presence of a civilian to render certain points immune from military operations; Attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions; Using starvation of civilians as a method of warfare ; Enlisting children under the age of 15

(c)

In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949: (i) Violence to life and person; (ii) Outrages upon personal dignity; (iii) Taking of hostages; (iv) Passing of sentences and the carrying out of executions without previous judgement.

(d) (e)

Does not apply to situations of internal disturbances; Other serious violations of the laws and customs applicable in armed conflicts not of an international character; Paragraph 2(e) applies to armed conflicts not of an international character when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.

(f)

Jurisdiction ration as is temporis (Article 11)  Crimes committed after the entry into force of this Statute.

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

If a State becomes a Party to this Statute after its entry into force, jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

Preconditions to the exercise of jurisdiction (Article 12)  In the case of article 13, par. (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3; (a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft; (b) The State of which the person accused of the crime is a national. 

If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question.

Exercise of jurisdiction (Article 13)  Referred to the Prosecutor by a State Party;  Referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations; or  The Prosecutor has initiated an investigation in respect of such crime  

Referral of a situation by a State Party (Article 14) Requesting the Prosecutor to investigate the situation.

Prosecutor (Article 15)  Prosecutor may initiate investigations motu proprio.  He or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation.  Refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the presentation of a subsequent request by the Prosecutor based on new facts or evidence. Deferral of investigation or prosecution (Article 16)  For a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations. Issues of admissibility (Article 17)  A case is inadmissible where: (a) being investigated or prosecuted by a State (b) the State has decided not to prosecute the person concerned (c) tried for conduct

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

In order to determine unwillingness in a particular case (a) shielding the person (b) unjustified delay (c) not being conducted independently or impartially

In order to determine inability in a particular case, a total or substantial collapse or unavailability of its national judicial system Preliminary rulings regarding admissibility (Article 18)  The prosecutor shall notify all States Parties  Within one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction 

  

Challenges to the jurisdiction of the Court or the admissibility of a case (Article 19) The Court may, on its own motion, determine the admissibility of a case. Challenges to the admissibility of a case may be made by: (a) An accused or a person for whom a warrant of arrest or a summons to appear has been issued under article 58; (b) A State which has jurisdiction over a case, on the ground that it is investigating or prosecuting the case or has investigated or prosecuted or; (c) A State from which acceptance of jurisdiction is required under article 12.



Admissibility of a case or the jurisdiction of the Court may be challenged only once by any person or State referred to in paragraph 2. Challenge shall take place prior to or at the commencement of the trial. Challenges to the admissibility of a case, at the commencement of a trial, or subsequently with leave of the Court, may be based only on article 17, paragraph 1(c). If the Court has decided that a case is inadmissible under article 17, the Prosecutor may submit a request for a review of the decision.



Ne bis in diem (Article 20)  No person shall be tried before the Court with respect to conduct which formed the basis of crimes for which the person has been convicted or acquitted by the Court.  Unless the proceedings in the other court: (a) Were for the purpose of shielding the person; (b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law. Applicable law (Article 21)  In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;  In the second place, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict;  Failing that, general principles of law, the national laws of States that would normally exercise jurisdiction over the crime;  Principles and rules of law as interpreted in its previous decisions. 48


Part 3.General Principles of Criminal Law Nullum crimen sine lege (Article 22)  Conduct in question constitutes, at the time it takes place, a crime within the jurisdiction of the Court. Nulla poena sine lege (Article 23)  Punished only in accordance with this Statute. Non-retroactivity ratione personae (Article 24)  Prior to the entry into force of the Statute. Individual criminal responsibility (Article 25)  Natural persons;  Individually responsible;  A person shall be criminally responsible and liable for punishment for a crime if that person: (a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible; (b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted; (c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission; (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose; (e) In respect of the crime of genocide, directly and publicly incites others to commit genocide; (f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. 

Responsibility of States under international law.

Exclusion of jurisdiction over persons under eighteen (Article 26) Irrelevance of official capacity (Article 27)  Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

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

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from executing its jurisdiction over such a person.

Responsibility of commanders and other superiors (Article 28)  Military commander or person (i) Either knew or owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; (ii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution. 

Superior and subordinate relationships (i) Superior either knew or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes; (ii) Crimes concerned activities that were within the effective responsibility and control of the superior; (iii) Superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

Non-applicability of statute of limitations (Article 29)  Shall not be subject to any statute of limitations. Mental element (Article 30)  A person has intent (a) In relation to conduct, that person means to engage; (b) In relation to a consequence, that person means to cause that consequence; Grounds for excluding criminal responsibility (Article 31)  Mental disease or defect;  State of intoxication;  Acts reasonably to defend himself or herself or another person or, in the case of war crimes, property which is essential for the survival of the person or another person or property which is essential for accomplishing a military mission, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person or the other person or property protected;  Caused by duress. Mistake of fact or mistake of law (Article 32)  Mistake of fact- ground for excluding criminal responsibility only if it negates the mental element.  Mistake of law- not a ground for excluding criminal responsibility. May be a ground for excluding criminal responsibility if it negates the mental element required by such a crime or as provided for in article 33. 50


Superior orders and prescription of law (Article 33)  Person was under a legal obligation to obey orders.  Person did not know that the order was unlawful.  Order was not manifestly unlawful.  Orders to commit genocide or crimes against humanity are manifestly unlawful.

Part 4.Composition and Administration of the Court Organs of the Court (Article 34)  Presidency  Appeals Division, Trial Division and Pre-Trial Division  Prosecutor  Registry Service of Judges (Article 35)  Full-time members Qualifications, nomination and election of judges (Article 36)  18 judges  Presidency may propose an increase  Nominations made by any State Party  Candidate need not necessarily be a national of that State Party  Elected by secret ballot at a meeting of the Assembly of States Parties  Term of nine years shall not be eligible for re-election Judicial vacancies (Article 37)  Serve for the remainder of the predecessor’s term The Presidency (Article 38)  President and the First and SecondVice-Presidents Chambers (Article 39)  Divisions Appeals Division Trial Division Pre-Trial Division Independence of the judges (Article 40)  Shall not engage in any other occupation of a professional nature. Excusing and disqualification of judges (Article 41)  In which his or her impartiality might reasonably be doubted. 51


The Office of the Prosecutor (Article 42)  A separate organ  Deputy Prosecutors full time basis The Registry (Article 43)  Non-judicial aspects  Judges elect the Registrar  Term of five years Removal from office (Article 46)  Serious misconduct or a serious breach of duties.  Unable to exercise the functions.  Made by the Assembly of States Parties. Privileges and immunities (Article 48)  Same privileges and immunities as are accorded to heads of diplomatic missions and after the expiry of their terms of office. Official and working languages (Article 50)  Official languages Arabic Chinese English French Russian Spanish  Working languages English French Rules of Procedure and Evidence (Article 51)  Conflict between the Statute and the Rules, the Statute shall prevail. Part 5. Investigation and Prosecution Initiation of an investigation (Article 53)  Prosecutor may reconsider a decision based on new facts or information. Duties and powers of the Prosecutor with respect to investigation(Article 54)  Prosecutor may conduct investigations on the territory of a state. Rights of persons during an investigation (Article 55)  Not be compelled to incriminate himself or herself.

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      

Not be subjected to coercion, duress or threat, torture or cruel, inhuman or degrading treatment or punishment. Assistance of a competent interpreter. Not be subjected to arbitrary arrest or detention. Informed, prior to being questioned that there are grounds to believe that he or she has committed a crime. Remain silent. Legal assistance. Questioned in the presence of counsel.

Role of the Pre-Trial Chamber in relation to a unique investigative opportunity (Article 56)  Take testimony which may not be available subsequently for the purpose of a trial. Functions and powers of the Pre-Trial Chamber (Article 57)  Protection and privacy of victims and witnesses, preservation of evidence, protection of persons who have been arrested.  Seek the cooperation of States to take protective measures for the purpose of forfeiture. Arrest proceedings in the custodial State (Article 59)  Before the competent judicial authority in the custodial State.  Right to apply for interim release pending surrender.  Pre-Trial Chamber shall be notified of any request for interim release. Initial proceedings before the Court (Article 60)  Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes. Confirmation of the charges before trial (Article 61)  Pre-Trial Chamber shall hold a hearing to confirm the charges on which the Prosecutor intends to seek trial;  Hearing in the absence of the person charged;  Waived right;  Fled or cannot be found;  Determine whether there is sufficient evidence to establish substantial grounds to believe that the person committed each of the crimes charged;  Once the charges have been confirmed the Presidency shall constitute a Trial Chamber. Part 6. The Trial Place of trial (Article 62)  The seat of the Court. Trial in the presence of the accused (Article 63) Functions and powers of the Trial Chamber (Article 64) 53


     

Fair and expeditious; Production of evidence; Protection of the accused, witnesses and victims; Public; Read to the accused the charges; Rule on the admissibility or relevance of evidence.

Proceedings on an admission of guilt (Article 65)  Consider the admission of guilt, together with any additional evidence. Presumption of innocence (Article 66)  Beyond reasonable doubt. Rights of the accused (Article 67)  Public hearing;  To be informed of the nature, cause and content of the charge;  To be present at the trial;  To examine witnesses;  Assistance of a competent interpreter;  Not to be compelled to testify or to confess guilt and to remain silent;  To make an unsworn oral or written statement. Article 68  Protection of the victims and witnesses;  Proceedings in camera. Evidence (Article 69)  Oral or recorded testimony. Offences against the administration of justice (Article 70)  Giving false testimony;  Corruptly influencing a witness;  Corruptly influencing an official of the Court;  Imprisonment not exceeding five years; Sanctions for misconduct before the Court (Article 71) Protection of national security information (Article 72) Third-party information or documents (Article 73)  Consent of the originator to disclose. Requirements for the decision (Article 74)  Deliberations remain secret; 54




Decision shall be in writing.

Reparations for victims (Article 75) Sentencing (Article 76)  Pronounced in public, in the presence of the accused. Part 7. Penalties Applicable penalties (Article 77)  Maximum of 30 years;  Life imprisonment when justified by the extreme gravity;  Forfeiture. Determination of the sentence (Article 78)  Deduct the time spent in detention. Trust Fund (Article 79)  Benefit of victims of crimes. Non-prejudice to national application of penalties and national law (Article 80) Part 8. Appeal and Revision Appeal against decision of acquittal or conviction or against sentence (Article 81)  Prosecutor may make an appeal:  Procedural error;  Error of fact;  Error of law.  Convicted person, or the Prosecutor on that person’s behalf, may make an appeal:  Procedural error;  Error of fact;  Error of law.  Ground that affects the fairness or reliability of the proceedings. Appeal against other decisions (Article 82) Proceedings on appeal (Article 83) Revision of conviction or sentence (Article 84)  New evidence;  Decisive evidence was false;  One or more of the judges has committed act of serious misconduct. Compensation to an arrested or convicted person (Article 85) 55


  

Unlawful arrest; Reversed conviction; Manifest miscarriage of justice.

Part 9. International Cooperation and Judicial Assistance Requests for cooperation: general provisions (Article 87)  Diplomatic channel or any other;  International Criminal Police Organization or any appropriate regional organization;  Protection of information;  Where a State Party fails to comply with a request to cooperate, refer the matter to the Assembly of States Parties or to the Security Council. Availability of procedures under national law (Article 88) Surrender of persons to the Court (Article 89)  Request for the arrest and surrender of a person to any State on the territory of which that person may be found;  If the person sought is being proceeded against or is serving a sentence in the requested State for a crime different from that for which surrender to the Court is sought, consult with the Court. Competing requests (Article 90)  Request from the Court for the surrender of a person, also receives request from any other State for the extradition of the same person for the same conduct;  Notify the Court. Contents of request for arrest and surrender (Article 91)  In writing. In urgent cases, any medium capable of delivering a written record;  Issued by the Pre-Trial Chamber supported by:  Describing the person;  Copy of the warrant of arrest;  Documents necessary to meet the requirements for the surrender, if possible, should be less burdensome. Provisional Arrest (Article 92)  In urgent cases, pending presentation of the request for surrender. Other forms of cooperation (Article 93)  Identification and whereabouts of persons;  Taking of evidence;  Questioning of any person;  Service of documents;  Facilitating the voluntary appearance;  Temporary transfer of persons; 56


      

Examination of places; Execution of searches and seizures; Provision of records and documents; Protection of victims and witnesses; Freezing or seizure of proceeds, property and assets for the purpose of eventual forfeiture; State Party may deny a request which relates to its national security; Request the temporary transfer of a person in custody for purposes of identification.

Postponement of execution of a request in respect of ongoing investigation or prosecution (Article 94)  Postponement shall be no longer than is necessary to complete the relevant investigation or prosecution. Postponement of execution of a request in respect of an admissibility challenge (Article 95) Contents of request for other forms of assistance under article 93 (Article 96)  In writing. In urgent cases, any medium capable of delivering a written record. Consultations (Article 97)  Problems may include:  Insufficient information to execute the request;  Person sought cannot be located. The person in the requested State is clearly not the person named in the warrant;  Execution of the request would require the requested State to breach a preexisting treaty obligation. Cooperation with respect to waiver of immunity and consent to surrender (Article 98)  Court may not proceed with a request for surrender or assistance which would require the requested State to act inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person or property of a third State, unless the Court can first obtain the cooperation of that third State for the waiver of the immunity. Execution of requests under article 93 and 96 (Article 99)  In accordance with the relevant procedure under the law of the requested State;  Where it is necessary for the successful execution of a request which can be executed without any compulsory measures, the Prosecutor may execute such request directly on the territory of a State. Costs (Article 100)  Ordinary costs for execution of requests in the territory of the requested State shall be borne by that State. Rule of speciality (Article 101) 57




Person surrendered shall not be proceeded against for any conduct committed prior to surrender.

Use of terms (Article 102) Part 10. Enforcement Role of States in enforcement of sentences of imprisonment (Article 103)  Served in a State designated by the Court from a list of States which have indicated to the Court their willingness to accept sentenced persons. Change in designation of State of enforcement (Article 104)  Sentenced person may apply to the Court to be transferred. Enforcement of the sentence (Article 105)  Sentence of imprisonment shall be binding on the States Parties. Supervision of enforcement of sentences and conditions of imprisonment (Article 106)  Consistent with widely accepted international treaty standards. Transfer of the person upon completion of sentence (Article 107)  Approved by the Court. Limitation on the prosecution or punishment of other offences (Article 108) Enforcement of fines and forfeiture measures (Article 109)  Property, or the proceeds of the sale of real property shall be transferred to the Court. Review by the Court concerning reduction of sentence (Article 110)  Served two thirds of the sentence, or 25 years in the case of life imprisonment. Escape (Article 111) Part 11. Assembly of State Parties Assembly of State Parties (Article 112)  One representative may be accompanied by alternates and advisers.  Bureau: President, two Vice-Presidents and 18 members elected by the Assembly for three-year terms. Part 12. Financing Financial Regulations (Article 113) Payment of expenses (Article 114) 58


Funds of the Court and of the Assembly of States Parties (Article 115)  Assessed contribution;  Funds provided by the United Nations. Voluntary contributions (Article 116) Assessment of contributions (Article 117) Annual audit (Article 18) Part 13. Final Clauses Settlement of disputes (Article 119)  Decision of the Court;  Any other dispute between two or more Sates Parties referred to the Assembly of States Parties. Assembly may itself seek to settle or may make referral to the International Court of Justice. Reservations (Article 120)  No reservations. Amendments (Article 121)  Expiry of seven years, submitted to the Secretary-General of the United Nations; Amendments to provisions of an institutional nature (Article 122) Review of the Statute (Article 123) Transitional Provision (Article 124)  May declare that, for a period of seven years after the entry into force of this Statute for the State concerned, it does not accept the jurisdiction of the Court with respect to the category of crimes referred to in article 8 when a crime is alleged to have been committed by its nationals or on its territory. Signature, ratification, acceptance, approval or accession (Article 125) Entry into force (Article 126) Withdrawal (Article 127) Authentic texts (Article 128) Case Study Application of International Criminal Law to Philippine Municipal Law: R.A. 9851- Issues and Concerns

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Preliminary Considerations  Chapter I: Declaration of Principles 1. Doctrine of Incorporation – generally accepted principles of I.L. (par. a) 2. Adoption of IHL (par. d) 3. Fair Trial – follow international standards (par. f) 4. No implied recognition of belligerency – shall not affect legal status of the parties to a conflict (par. g) 



Chapter II – Definition 1. Armed Conflict (par. c)  State v. State (International Character)  Protracted Armed Violence: Government v. Organized Armed Groups (NonInternational)  Armed Groups v. Armed Groups (Non-International) (NPA v. MILF) (MILF v. ASG) 2. Standards of Armed Forces (par. d) a. Responsible Command b. Disciplinary System c. Compliance with IHL 3. Enforced or Involuntary Disappearance  State or political organization (Non-State Actor) Note: Only instance NSA mentioned (?) 4. Forced pregnancy  To affect ethnic composition (Africa, Bosnia) 5. Perfidy (par. j)  Betrayal of confidence of an adversary 6. Protected Person (par. q)  Stateless or Refugee Chapter III: Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity 1. War Crimes – Four (4) Geneva Conventions and Protocols a. International Armed Conflict  Willful killing  Torture  Wanton destruction of property (outside military necessity)  Unfair trial of POW  Arbitrary deportation  Hostage-taking  Forced military service  Unjustifiable delay in repatriation of prisoners b. Non-International Armed Conflict  Common A3 of Geneva Conventions violations – willful killing, torture, outrages upon personal dignity, hostage-taking, no judicial process 60


c. Other serious violations of customs applicable in armed conflict  Guide to type of violations: 1. Attacks vs. non-combatants, peace-keeping missions 2. Attacks vs. non-military targets 3. Severe damage to environment 4. Improper use of flag of truce, enemy uniform, protective signs 5. Physical mutilation or scientific experimentation of subject persons 6. Perfidy 7. Displacement of civilian population 8. Torture, humiliation 9. Sexual violence 10. Inhumane methods of warfare 2. Genocide – destroy a stable group (national, ethnic, racial, religious or social) 3. Other Crimes Against Humanity – widespread or systematic attack v. civilian population



Chapter IV – Penal Provisions   

Reclusion temporal – acts under Secs. 4-6 Reclusion perpetua – extreme gravity (e.g., with death, rape) Prision mayor – inciting to commit genocide



Chapter V: Some Principles of Criminal Liability 1. Individual Criminal Responsibilities (principal, accomplice, attempt to commit) 2. Irrelevance of Official Capacity GR – no immunity Except: (a) President (Constitution) (b) Diplomatic (Treaty) 3. Responsibility of Superiors (a) Actual or presumed knowledge; and (b) Failure to address, investigate or prosecute 4. Imprescriptibility 5. Orders from a Superior Note: Exculpatory if (a) Under legal obligation to obey (b) Lack of knowledge of unlawfulness of order (c) Order not manifestly unlawful Note: “manifestly unlawful” – genocide, crimes v. humanity



Chapter VI: Protection of Victims and Witnesses 1. Protection of Victims and Witnesses  Gender and Child Sensitivity  Exception to public trial 61


 in camera  electronic evidence presentation  Limit on access to information 2. Reparations to Victims  Restitution, compensation, rehabilitation 

Chapter VII: Applicability of International Law and Other Laws 1. Applicability of International Law (a) The 1948 Genocide Convention; (b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II and their 2005 Additional Protocol III; (c) The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, its First Protocol and its 1999 Second Protocol; (d) The 1989 Convention on the Rights of the Child and its 2000 Optional Protocol on the Involvement of Children in Armed Conflict; 2. Suppletory Application of the Revised Penal Code and Other General or Special Laws



Chapter VIII: Jurisdiction 1. Jurisdiction – “universal jurisdiction” (a) The accused is a Filipino citizen; (b) The accused, regardless of citizenship or residence, is present in the Philippines; or (c) The accused has committed the said crime against a Filipino citizen. Note:  Deferrence to another court outside R.P.  Double jeopardy  RTC – designated special courts

(g) Overview of Fundamental Principles on International Environmental Justice I.

II.

Introduction: Scope of Inquiry A.

Concept of Environment  Basic Elements of the Earth: air, land and water  All living elements of the earth as well as natural resources  Holistic: place of humans in the environment

B.

Theory of Environmental Justice  Lazarus – “Environmental Justice focuses on the distribution of environmental hazards across society and seeks a fair distribution of those hazards x x x”  Hofrichter’s – “x x x equal access to natural resources and the rights to clean air and water, adequate health care, affordable shelter, and a safe workplace x x x.”

Preliminary Considerations

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A.

Environmental Protection v. Development 1. Brundtland Commission (1987): “Sustainable Development”  integrates environmental and developmental aspirations at all levels of decisionmaking.  “development that meets the needs of the present without compromising the ability of future generations to meet their own needs.”

B.

Legal Characterization of Environmental Protection Principles 1. Challenging Traditional Legal Systems (not indigenous law) as “impediments” (i) concept of right and duty bearers: only the living (ii) only human beings as possessed with rights (iii) absolute freedom of contract (iv) absolute ownership 2. Shifting Notion of State Sovereignty: From individualist to socially oriented – “pollution does not recognize the doctrine of state sovereignty as it proceeds beyond state boundaries”

III.

Development of Normative Standards in Environmental Protection A. Stockholm Declaration (1972) Principle 1 – “fundamental right to x x x adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and a solemn responsibility to protect and improve the environment for present and future generations x x x.” 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.” B. Brundtland Report (1987) e.g. intergenerational and intra-generational equity – “equitable” access to environmental resources both within the present generation as well as for future generations e.g. precautionary principle e.g. maintenance of biological diversity and biological integrity C. World Charter for Nature (1992) Respect for nature; principles of conservation of the environment; exploitation of non-renewable resources with restraint; use of best available technologies. D. Rio Declaration (1992) and AGENDA 21 63


Principle 1 – “Human beings x x x center of concerns for sustainable development x x x entitled to a healthy and productive life in harmony with nature.” Principle 3 – “x x x meet x x x needs of present and future generations.” Principle 8 – “x x x environmental protection x x x an integrated part of developmental process x x x.” Principle 10 – “x x x participation of all concerned citizens x x x” – “x x x access to information concerning the environment x x x” – “x x x effective access to judicial and administrative proceedings x x x” Principle 15 – “x x x the precautionary approach shall be widely applied by states according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as reason for postponing cost-effective measures to prevent environmental degradation.” Principle 16 – “x x x the polluter should, in principle, bear the cost of pollution, x x x” Principle 17 – “x x x EIA x x x as a national instrument x x x” IV.

The Core Environmental Law Rights and Duties In Relation to Philippine Constitutional Law Framework A. Right to Life and Health INTERNATIONAL   



“ratio legis” (ECOSOC) of environmental law more than absence of illness W.H.O. “the attainment by all citizens x x x of a level of health that will permit them to lead a socially and economically productive life” Health problems related to x x x environmental living conditions; health status is a first indicator of environmental degradation x x x”

CONSTITUTION 

A3, S.1 (life) in relation to A2, S.15 (health) and 16 (ecology), A13, S.11-13 (health)

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B. Freedom of Association INTERNATIONAL  

A 20, UDHR A 21, ICCPR

CONSTITUTION 

A3, S.8 (association) in relation to A2, S.18 (labor), A13, S.3 (labor), A13, S.15-16 (people’s organizations)

C. Right to Access to Information and Participation INTERNATIONAL    

A 19, UDHR A 19, ICCPR Principle 10: Rio Declaration (access to environmental information) Principles 18 and 19 (notification in transboundary environmental disasters)

CONSTITUTION 

A3, S.7 (matters of public concern)

D. Sectoral Concerns INTERNATIONAL 1. Indigenous Peoples  ILO 169 (Tribal Population)  UNDRIPS, 2007  Principle 22, Rio Declaration + Chapter 26, Agenda 21 2. Women  Principle 20, Rio Declaration  1993 Vienna Declaration Part 1, par (18) – “equal





CONSTITUTION A12, S.5 (ancestral domain) in relation to A2, S.22 (indigenous peoples), A10, S.15-21 (autonomous region), A13, S.6 (ancestral lands) A2, S.14 (women), A13, S.14 (women)

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participation of women” 3. Children  Article 29, par 9 (e), CRC



A2, S.12 (child) and 13 (youth)

4. Migrant Workers  Migrant Workers’ Convention



A13, S.3 (overseas workers)

5. Disabled  Environmental factors responsible for disability



A13, S.11 (disabled)



R.A. No. 9851 (IHL)

often

6. Refugees, Internally Displaced and Victims of Armed Conflict  Deterioration of environment as a main cause of displacement  1977 Protocol 1 Additional to Four Geneva Conventions of 1949 Article 35, par. 3 – prohibited means of warfare Article 55 – attacks v. environment  Principle 26 of Stockholm Declaration, pars. 5 and 20 of World Charter  Principle 24 of Rio Declaration

V.

Concluding Observations: Paradigm Shift and Normative Creativity Jurisprudence:  Oposa v. Factoran – intergenerational responsibility  Zia v. Wapda – citizen’s suit; precautionary principle  Farooque v. Bangladesh – locus standi  Mehta v. Kamal Nath – public trust; polluter pays  MMDA v. Concerned Citizens – continuing mandamus (clean-up of Manila Bay)

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