PIL Pre-bar 2013

7/24/2019 PIL Pre-bar 2013

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

PUBLIC INTERNATIONAL LAW AS APPLIED TO PHILIPPINE

LAWby

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 rovide for legislature and courts;

(c) Lacks a unifying rule of recognition secifying sources of law and roviding general criteria

for the identification of its rules!

Ca!ter I. T"E SOURCES OF O#LI$ATION IN INTERNATIONAL LAW

"rticle #$(%) of the &tatute of the 'nternational ourt of ustice

(a) *reaties (see +ienna onvention on the Law of *reaties)

(i) ,hat is a *reaty-.lements: 'nternational agreement

&tates

,ritten /overned by international law

0+L*1 "rticle 2(%)(a) and 'L ommentary3

aacity: 4ational56ederal /overnment(but resort to 6ederal onstitution with regard to component state)

0+L*1 "rticle 73

(ii) *he 8aking of *reaties

8aking: /9 6ull owers needed.cetions:

%! Heads of states5governments

2! 6oreign affairs ministers

#! Heads of dilomatic missions limited<! 9eresentatives to international conferences limited

(4=*.: subse>uent confirmation of acts of reresentatives without

full owers validates action on behalf of state)0+L*1 "rticles ?$3

"dotion: /9 'f bilateral or few states1 all must concur .cetion @ international conference (25#)

.cetion to ecetion @ if 25# rovide different rule

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0+L*1 "rticle A3

onsent: signing1 echange of instruments1 ratification1 accetance1 accession1aroval1 etc! B (need for deosit1 echange and notification)

0+L*1 "rticles %%%7)

Philiine onstitutional Law "lication:"rticle ?1 &ec! 2C (foreign loans with 8onetary Doard concurrence)

"rticle ?1 &ec! 2% (treaty 25# &enate vote)

"rticle $1 &ec! < (constitutionality of treaty is heard en banc by &)"rticle %$1 &ec! 2E ( treaty on new military bases1 troos or facilities)

ase law: Bayan v. Zamora et! al! (/9 4os! %#$E?C1 %#$E?21 %#$E$? F %<$7$C1 =ct! %C1

2CCC) onstitutionality of +6" in relation to "rticle %$1 &ec! 2E;

interretation of the hrase Grecognied as a treaty!I

Nicolas v. Romulo (/9 %?E$$$1 6eb! %%1 2CCA) @ +6" as mere imlementationof the %AE% 9PJ& 8utual Kefense *reaty; +6" is a sole eecutive agreement

subject to the aseablocki agreement rocedure; G9omuloMenney"greements of Kec! %A and 221 2CC71I detaining "merican accused in J&

embassy1 is not in accord with "rt! E1 &ec! %C of +6"; distinguish the

following: (a) "rt! E1 &ec! 7 @ custody from commission of offense untilcomletion of all judicial roceedings is with J&1 while (b) "rt! E1 &ec! %C @

after conviction1 confinement or detention by Philiine authorities shall be

carried out in facilities agreed on by aroriate 9PJ& authorities!

Lim v. Executive Secretary (/9 %E%<<E1 "ril %%1 2CC2) GDalikatan

.ercises *erms of 9eferenceI does not need concurrence by &enate!

Pimentel v. Executive Secretary (<72 &9" 722) &igning and ratificationdistinguished; President may refuse to submit treaty (creating ') to &enate!

(4=*.: /9P already ratified the 9ome &tatute in "ugust 2C%%)

Sps. Renato v. Hon. Rosario (/9 %C7C7<1 =ctober %#1 2CCE) @ " debtbuyback

scheme is within the ower of the President to enter into under "rt! +''1 &ec!

2C of the onstitution!

Pharmaceutical v. DOH (/9 %?#C#<1 =ctober A1 2CC?) @ ,H= guidelines as

mere Gsoft law!I

baya v. Eb!ane (E%# &9" ?2C) @ .change of 4otes is a form of eecutive

agreement!

Province o" North #otabato v. $RP Panel (/9 %$#EA%1 =ctober %<1 2CC$ and89) @ 8emorandum of "greement on "ncestral Komain between /9P and

8'L6 is not a treaty!

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Bayan %una v. Romulo (/9 %EA7%$1 6ebruary %1 2C%%) @ *he 9PJ& 4on

&urrender "greement is an .change of 4otes constituting an inter

governmental agreement! 't is an international agreement but not in treatyform! 't does not contravene the 9ome &tatute because the ' recognies the

rimacy of international agreements! Primary jurisdiction rests uon the state

and secondarily with the '!

#hina National %achinery v. Santamaria (77E &9" %$A) @ " contract entered

into between nonstate entities does not constitute an eecutive agreement as inthis case1 4orth Luon 9ailways or! and hina 4ational 8achinery and

.>uiment or!

(iii) 9eservations to *reaties

/9 @ allowed

.cetions:%! if rohibited by treaty itself

2! if only secific reservations are allowed#! if incomatible with treaty urose

6orm of reservations5withdrawal5objection:

@ written F communicated

0+L*1 "rticles %A2#3

ase law:

Reservations to the &'() #onvention on the Prevention an! Punishment o" the#rime o" $enoci!e ("dvisory =inion1 '!!! 9eorts1 %AE%) @ =n the effect of

absence of reservation clause in a onvention; reservations were contemlated

but the urose of the treaty tended to discourage; intent to revent aninternational crime!

(4=*.: in the *nternational #riminal #ourt 1 no reservations are ermitted1

"rticle %2C)

(iv) 'nterretation of *reaties

/9 @ %! interret in good faith

2! ordinary meaning of word in GcontetI (resort to related tet)#! relate to object and urose

.cetion @ give Gsecial meaningI1 if arties intended0+L*1 "rticles #%#23

ase law:

*nterpretation o" Peace +reaties #ase (&econd Phase1 "dvisory =inion1 '!!!9eorts 22%1 %AEC) @ 'n a disute concerning the Peace *reaties of %A<?1 three

signatory states refused to comly with a threeerson anel disute settlement

rocedure for the urose of interreting the treaty whereby arties are re>uired

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to aoint their own reresentatives and1 by mutual agreement1 a third neutral

member of a ommission; the J!4! /eneral "ssembly asked whether the

&ecretary/eneral may now aoint the third neutral member; in answering inthe negative1 the ourt observed that Gaccording to the natural and ordinary

meaning of the terms1 Nit was intended that the aointment of the national

commissioners should recede that of the third member’!I *hus1 the three states(Dulgaria1 Hungary and 9omania) are under an obligation to aoint their

reresentatives to the *reaty ommissions1 failing which will entail

international resonsibility!

(v) Peremtory 4orms of 'nternational Law @ Jus Cogens

/9 arties cannot enter into a treaty contrary to ,us co-ens or norms recogniedand acceted by the international community; nonderogable! Examples: unlawful use of force1 commission of a criminal act1 trade in slaves1 iracy1 genocide1 human rights violations1 e>uality of states1 and self

determination!

0+L*1 "rticle E#3

(vi) ,ithdrawal1 *ermination and Rebus sic stantibus

/9 @ allowed to withdraw in conformity with treaty and anytime with the consent

of all

.cetion @ if no rovision

.cetion to ecetion @

%! if arties intended to allow withdrawal

2! if imlied by the nature of the treaty

.ffect of later treaty @ later one revails1 if all arties conclude and they intended

later one to govern; or1 if later one is incomatible with earlier one!

Rebus sic stantibus

/9 @ any unforeseen or fundamental change not a ground for termination or

susension

.cetion @

%! if essential basis of consent1 and

2! if obligation is transformed radically

.cetion to ecetion @

%! treaty establishing boundary /uti possi!etis "frican and &outh "mericaneerience after coloniers left; intended to reserve territorial integrity in

cases of state succession!); or1

2! if the fundamental change arose from a breach by the invoking arty 0+L*1 "rticles E<1 E71 EA1 7%1 723

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ase law:

0isheries 1uris!iction #ase (urisdiction1 Jnited Mingdom v! 'celand1 '!!!9eorts1 %A?<) @ *est of rebus sic stantibus the circumstances must have

increased the burden of the obligations to the etent of rendering the

erformance of an act essentially different from that originally undertaken!

Danube Dam #ase (Hungary v! &lovakia1 #? 'L81 %AA$) 'f joint eloitation of

the investment was no longer ossible because Hungary did not carry out most of the works1 "7%1 ar! 2 of the +L* states that imossibility of erformance may

not be invoked for the termination of a treaty by a arty to that treaty when it

results from that arty’s own breach of an obligation flowing from that treaty;

state of necessity is not a ground for terminating a treaty but may only beinvoked to eonerate one from resonsibility; neither could fundamental change

of circumstances roser because the change must be unforeseen 0here1 olitical

motive1 reduced economic activity of the Project1 and rogress of environmental

knowledge and international environmental law are not sufficient grounds3!+iolation of other treaty rules of general international law may justify the taking

of certain measures1 including countermeasures1 but does not constitute a groundfor termination of the treaty; the violation by echoslovakia was the diversion

of the waters of the Kanube in %AA2)!

(vii) Philiine Practice

.!=! <EA (%AA?) @ /uidelines in the 4egotiation of 'nternational "greements

(viii) 9ules on conflict between a treaty and a la%!

't deends which court is deciding:%! international court will uhold treaty obligation in general

2! domestic court will uhold local laws

&ecific situations of conflict:%! *reaty v! onstitution "<71 +L*1 when constitutional violation is

manifest and concerns a rule of internal law of fundamental imortance1

state may deviate from treaty obligation!(4=*.: &ee "2?1 +L* which states1 G" arty may not invoke the

rovisions of internal law as justification for its failure to erform a

treaty!I Jnder dualist theory1 unconstitutionality of a treaty is urely

domestic matter! &tate faces risk of international sanction!)

2! *reaty v! Komestic Legislation when the two instruments relate to thesame subject1 try to give effect to both; if inconsistent1 the later in date will

control1 rovided that the treaty stiulation is selfeecuting! Dut this rule

only alies in the domestic shere! " treaty1 even if contrary to a later

statute1 is binding in international law!

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ase Law:

Sei 0u,ii v. #ali"ornia (2<2 P! 2d 7%?; %A 'L9 #%21 %AE2) " alifornia alien

land law1 used by alifornia to have the roerty of a aanese citien in theJ!&! escheated to the &tate1 was challenged as contrary to J!4! harter1

secifically1 "EE and "E7 on human rights! *he ourt stated that the J!&!

onstitution distinguished between selfeecuting and nonself eecutingtreaties! Here1 the J!4! harter Preamble1 "%1 "EE and "E7 re>uire enabling

legislation to affect rivate ersons; the rights of rivate ersons were not

rescribed in detail in the J!4! harter in regard to the land law!

(b) &tate Practice

(i) ustomary 'nternational Law

Kefinition evidence of a general ractice acceted as law

.lements: %! Kuration (e!g! of >uick ones @ airsace and continental shelf)

2! Jniformity1 consistency of ractice (only substantial uniformity) #! /enerality (not all states are needed)

<! Opinio ,uris @

i! =bjective: settle! practiceii! &ubjective: obli-atory (as distinguished from mere act of courtesy1

fairness or morality)

ase law:

+he Pa2uete Habana (%?E J!&! 7??1 %ACC) 6ishing vessels and cargoes are eemt

as ries of war!

+he sylum #ase (olombia v! Peru1 %? '!L!9! 2$; '!!! 9eorts1 %AEC) @ oncet of Gregional customI; establish that the rule invoked is in accordance with a constant and

uniform usage racticed by &tates in >uestion; olombia can not unilaterally >ualify

an offense for uroses of asylum; ractice is inconsistent!

North Sea #ontinental Shel" #ase ('!!! 9eorts1 %A7A) *he use of the Ge>uidistant

rincileI in delimiting continental shelves has not attained the status of 'L; for a

rovision in a onvention to become 'L it must be GnormcreatingI in character!

Nuclear +est #ases ("ustralia v! 6rance; 4ew ealand v! 6rance1 '!!! 9eorts1 %A?<) @ ommuni>uO of 6rance to "ustralia and 4ew ealand and the J!4! /eneral"ssembly Gthat the atmosheric tests will be the last of this tyeI is a unilateral

declaration on a factual or legal situation1 made ublicly and er-a omnes1 which

creates binding obligations!

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Nicara-ua v. 3.S. ( '!! 9eorts1 %A$7) @ " formal communication that had been

committed to the ="& was held not to be a formal undertaking1 but a mere olitical

ledge!

(ii) /eneral "ssembly 9esolutions

/9 @ resolutions and declarations of international organs can be recognied as a factor in

the customgenerating rocess (evidence of general ractice) ase law:

Kissenting =inion of udge *anaka in the South45est "rica #ases ('!!! 9eorts1

%A77) @ oncet of Garliamentary dilomacyI; resolutions and declarations of

international organiations as evidence of a general ractice!

(iii) Kecisions of 'nternational =rganiations

9! Higgins1 *he "dvisory =inion on 4amibia: ,hich J!4! 9esolutions are Dinding

Jnder "rticle 2E of the harter-

/9 @ J!4! /eneral "ssembly resolutions are merely recommendatory.cetions @ obligatory and with binding effect on all members in relation to:

%! admission of new members

2! budget aroval#! aortionment of eenses

(4=*.: "rticle 2E of the J!4! harter states that J!4! members Ga-ree to accept an! carry out the !ecisions o" the Security #ouncil BI; interreted to mean "rt! 2<1 h! +'

+''' on eace and security matters1 i!e! intended to be obligatory!)

(iv) *he Limits of &tate Practice

Persistent =bjector @ a state that has ersistently objected to a rule of customary

international law during the course of its emergence is not bound; this has limited roletoday; in cases of new states1 they are bound by customary international law (not

treaties) as a conse>uence of statehood

(c) Komestic Law

(i) /eneral Princiles of Law

ase law:

*nternational Status o" South45est "rica6 Opinion o" Sir rnol! %cNair ('!!!

9eorts %2$1 %AEC) @ =bligations of the Jnion of &outh "frica in relation to themandate territory; alication of the rinciles of trust in civil law!

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Diversion o" 5aters "rom the River %euse (P!!'! series "5D1 4o! ?C1 < ,!!9! %?A1

%A#?) @ 9ecognition of e>uity as art of international law in no way restricts the

(international) ourt to decide the case ex ae2uo et bono6 if the arties agree!

Kistinction between e>uity and deciding a case ex ae2uo et bono:

%! .>uity @ law cannot cover every ossible situation1 so1 cases may be decided

using e>uitable rinciles!

2! Ex ae2uo et bono 7 ower of ' to decide a case e>uitably outside the rules of law!

Other examples of general principles of law: rinciles of liability1 resonsibility1

rearation1 unjust enrichment1 roerty1 eroriation1 indemnity1 denial of justice1right of assage1 rescrition1 error1 resumtion1 administrative law1 rocedure1

humanity1 good faith1 pacta sunt servan!a1 estoel and human rights

(ii) "lication of 'nternational Law by Komestic ourts

#ase la8

0ilarti-a v. Pena4*rala (7#C 6! 2d $?71 %A$C) oelito 6ilartiga was kidnaed and

tortured to death by Pena'rala who was 'nsector/eneral of Police of Paraguay; torturemay be eretrated under color of official authority against anyone regardless of

nationality; J!&! "lien *ort Law allowed aliens to sue and have rights (recognied in

international law) enforced before J!&! courts even for acts committed outside the J!&! rovided there is jurisdiction over the defendant in the J!&!; torturer1 for civil liability

uroses1 is Ghostis humani generisI or enemy of all mankind!

+ren!tex +ra!in- #orporation v. #entral Ban9 o" Ni-eria (% "ll .!9! $$%1 %A??) @schoolsof thought in adoting international law to a domestic system:%! incororation @ automatic; ecet if in conflict with domestic system

2! transformation @ international law adoted thru decisions of judges1 law or custom

Philiine Practice: "rticle 21 &ec! 2 of the onstitution:

*he hrase Ga!opts the -enerally accepte! principles o" international la8 as part o" the

la8 o" the lan! I does not refer to treaties but customary international law (whether or notcodified in a treaty) and other general rinciles of law!

ase law:

+ana!a v. n-ara (2?2 &9" %$) @ Koctrine of incororation alied in regard toobligations arising from ratification of /"**,*=; pacta sunt servan!a was invoked! %i,ares v. Hon. Rana!a (/9 %#A##2E1 "ril %21 2CCE) @ 9ecognition and enforcementof judgments is among the generally acceted rinciles of international law!

(iii) *heories on the relationshi between 8unicial Law and 'nternational Law:

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%! %onism international law and municial law belong to only one system with

international law as suerior to domestic law; locates basic norm of the national legal

system in the norm of international law;2! Dualism4 international law as distinct from the domestic law system; dualism of

legal origin1 subjects and subject matter; sovereign act of municial law means it

eceeded its cometence in international law but does not void municial law!#! *nverte! monism municial law as suerior to international law; denies the term

GlawI to international law!

<! Harmoni:ation the two legal systems are harmonied and given effect!

Ca!ter II. &ERSONALIT' UNDER INTERNATIONAL LAW

(a) &tates

(i) haracteristics of &tatehood

"rticle % of the onvention on 9ights and Kuties of &tates (or the %A## 8ontevideoonvention) rovides for the >ualifications of a &tate:

%! ermanent oulation

2! defined territory#! government

<! caacity to enter into relations

ase law:#ase #oncernin- Ri-hts o" Nationals o" the 3nite! States o" merica in %orocco

('!!! 9eorts1 %?71 %AE2) @ .ven if 8orocco is under the Protectorate of 6rance1

the former is still a state in international law!

Report o" the 0i"th #ommittee o" 0irst ssembly o" the Lea-ue o" Nations6 8ithre"erence to !mission to the Lea-ue o" Liechtenstein (7 Kecember %A2C) @ .ven if

denied admission1 it remains a sovereign state!

9ecent cases: .ast *imor1 (&outh) &udan and Mosovo

(ii) 9ecognition

%! of &tates (widely racticed; does not resuose recognition of government)

2 theories:

(a) Declaratory theory ossession of the essential elements (b) #onstitutive theory recognition is what constitutes a &tate!

&tatus @ more of an otional and discretionary olitical act (as seen in the

cases of the former ugoslavia and &oviet Jnion) 2! of governments (recognition resuoses recognition of &tate)

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ase law:

+inoco rbitration1 %A2# .ven if not recognied1 may be de facto; juridically

cogniable!(iii) &elfdetermination

ase law: Declaration on the $rantin- o" *n!epen!ence to #olonial +erritories an!

Peoples (J!4! /!"! 9es! %E%< (Q+)1 %< Kecember %A7C) @ .lements of the

right to selfdetermination of &tates:%! right to determine olitical status; and1

2! right to ursue their economic1 social and cultural develoment!

ase law:5estern Sahara #ase ("dvisory =inion1 '!! ! 9eorts1 %A?E) @ ultimate

urose of Gsacred trustI was the selfdetermination and indeendence of the

eoles concerned; self determination may mean emergence of new state1association or integration with an indeendent state!

urrent cases on secession and the concet of shared sovereignty:

e!g! *he &udan @ 8achakos Protocol: lebiscitory consent 4orthern 'reland @ /ood 6riday "greement: lebiscitory consent

4eal 8aoist @ ower sharing

"ceh ('ndonesia) @ limited autonomyRuebec @ attemt at a legislative vote to secede

Mosovo

(iv) 4on&tate .ntities

%! +he #ommon8ealth o" ustralia v. the State o" Ne8 South 5ales (#2 !L!9!2CC1 %A2#) @ 4ew &outh ,ales is not a foreign country which may be suedwithout its consent!

2! ultural "greement Detween Province of Ruebec in anada and6rance @ Ruebec is allowed to enter into such agreement due to the

secial status accorded to it under the anadian onstitution!

#! 8andate &ystem

ase law:

*nternational Status o" South45est "rica ("dvisory =inion1 '!!! 9eorts1%AEC) @ 8andate created by the League of 4ations elased when the

League ceased to eist!

Le-al #onse2uences "or States o" the #ontinue! Presence o" South "rica in

Namibia /South45est "rica; Not8ithstan!in- Security #ouncil Resolution

<=> o" &'=? ('!!! 9eorts1 %A?%) @ 't is a general rincile of law that the

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ower of termination on account of breach1 even if uneressed1 must be

resumed to eist as inherent in any mandate!

<! ase of Delligerent ommunities or 'nsurgent /rous and imlications for

&tates like the Philiines in re: 84L658'L6 and PP54P"54K6 @

=bligations in the conduct of armed conflict!

E! ase of 'ndigenous Peoles (e!g! autonomous regions) @ J!4! Keclaration on

the 9ights of 'Ps; no right of secession

(b) 'nternational =rganiations

(i) Jnited 4ations

Charter of the United Nations, Articles 1, 2, 7, 1!

ase law:

Reparations "or *n,uries Su""ere! in the Service o" the 3nite! Nations ('!!!

9eorts1 %A<A) @ aacity of J!4! under international law to sue for damage

caused to an agent in the form of an international claim; but this is not the same assaying that it has the same rights and duties as a state; ersonality of the J!4! is

limited by the urose of its harter!

(ii) .uroean ommunities (now .J)

European Economic Communit" #reat", Article 211

.uroean Jnion1 8aastricht *reaty1 %AA%

(4=*.: .J ossesses the most etensive legal caacity!) (c) 'ndividuals

(i) lassical 9ule: Human rights @ human being as an object of international law!

(ii) Progression of the 9ule: Human being as a subject of international in a limited way!

ase law:

1u!-ment o" the Nurember- +ribunal @ Law of war imosed a duty on individuals;

"rticle 22$ of the *reaty of +ersailles illustrates this view of individual resonsibility;

acts deemed criminal in international law may be the subject of international claim; astate cannot rotect the individual accused of the crime if the state eceeded itscometence by allowing5ordering the individual to commit a crime vs! humanity;

officers liable but unishment may be mitigated if they merely followed orders!

(iii) 9ecent develoment:

%! ! hoc *nternational #riminal +ribunals (6ormer ugoslavia1 9wanda and

ambodia)

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2! Rome Statute of %AA$ (') @ 'ndividuals may be tried for genocide1 crimes

against humanity1 war crimes and crime of aggression (core crimes);entry into

force: uly 2CC2; aggression remains to be undefined; only covered crimescommitted after entry into force; no death enalty1 no trial in absentia

(4=*.: *he Philiine law in regard to international humanitarian law is 9!"! A$E%1 signed into law on Kecember %21 2CCA before the Philiine ratification of the 9ome

&tatute! 't defines unishable acts reflective of the relevant 'HL instruments1

including the concet of command resonsibility!)

(d) ororations

ase law: Dispute bet8een +exaco Overseas Petroleum #o.@#ali"ornia siatic Oil #o. an! the

$overnment o" the Libyan rab Republic (omensation for 4ationalied Proerty1

"rbitral "wards on the 8erits1 %A anuary %A??1 %? '!L!8!1 %A?$) @ 'nternationalied

contracts entered into between a state and a foreign cororation gives the latter limitedcaacity by invoking in international law the rights derived from the contract!

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Ca!ter III. (URISDICTION OF STATES

&reli)inary:

as a concept it is the caacity to:

%! legislate or to rescribe laws5rules

<. enforce laws5rulesas po8er it is eercised over:

%! ersons

2! roerty#! events

(a) urisdiction over *erritory

(i) *itle to *erritory

ase law: *slan! o" Palmas #ase (4etherlands v! J!&!"!1 2 9!'!"!"! $2A1 Permanent ourt

of "rbitration @ *est of title in international law is Gcontinuous and eaceful

dislay of territorial sovereigntyI; forms of ac>uisition of title are:%! occuation couled with effectiveness

2! con>uest (allowed before)

#! cession1 and1

<! accretion;

(4=*.: 'n international law1 title is not sufficient without the first element of

dislay of &tate functions!)

Le-al Status o" Eastern $reenlan! (P!!'!! 9eorts1 series "5D1 4o! E#1 %A##) @

"lied 'sland of Palmas ase!

5estern Sahara #ase ("dvisory =inion1 '!!! 9eorts1 %A?E) @

6or occuation to oerate1 territory must be terra nullius6 i.e. it belonged to no one

rior to occuation!

Philiine "lication: "rticle % (4ational *erritory) of %A$? onstitution

&abah cession&ratlys claimants: hina1 +ietnam1 /9P1 8alaysia1 Drunei1 *aiwan

History of 9P maritime boundaries:

%$A$ *reaty of Paris %A#C J&JM onvention

%A7% 9!"! #C<7 (baselines)

%A7$ 9!"! E<<7 (baselines) %A?$ PK %EA7 (M'/) and PK %EAA (..)

%A$< Philiine ratification of J4L=&

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/overnment Position:

/9P claims over other island grous: Paracels1 Pratas1 8acclesfield Dank1

&carborough &hoal1 8ischief 9eef .ffective occuation of GMalayaan 'sland /rouI by /9P through *omas

loma1 %A<7; and through PK %EA7 (%A?$) an administrative district was

formed to become a 8uniciality of the Province of Palawan

4=*.:

4ew Daselines Law is 9!"! AE22 (2CCA): declared M'/ and &carborough &hoal asGregime of islandsI ursuant to "rticle %2% of J4L=& '''

ase Law:

%a-allona v. Executive Secretary (/9 %$?%7?1 "ugust %71 2C%%) @ 9!"!AE22 is constitutional; it is not intended to delineate Philiine territory but

merely regulates seause rights over maritime ones and continental shelves that

J4L=& delimits!

(ii) "irsace (flight sace)

Paris #onvention1 =ctober %#1 %A%A @ &tate with eclusive sovereignty!

#onvention on *nternational #ivil viation1 signed at hicago on ? Kecember %A<<

@ rohibits entry of state aircraft without authoriation by secial agreement

(iii) 'nternal and *erritorial ,aters

ase law:

0isheries #ase (Jnited Mingdom v! 4orway1 '!!! 9eorts1 %AE%) @ &traight

baseline allowed and delimitation of territorial waters!

+he #or"u #hannel #ase ('!!! 9eorts1 %A<A) @ 'nnocent assage in international

straits allowed!

%A$2 onvention on the Law of the &ea1 "rticles #1 $

(b) urisdiction over "djacent 8aritime &eas

(i) ontinental &helf

#ase la8:

North Sea #ontinental Shel" #ases (/ermany v! Kenmark5Holland1 $ '!L!8!

#<C1 %A7A) @ ,hat confers title iso jure to continental shelf is the fact that thesubmarine areas concerned may be deemed to be actually art of the territory

of the coastal state in the sense that1 although covered with water1 they are a

rolongation or continuation of that territory!

$ul" o" %aine (anada5J&"1 '!!! 9eorts1 %A$<) @

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's geograhic adjacency basis for title to continental shelf-

Libya@%alta #ontinental Shel" #ase ('!!! 9eorts1%A$E) @ Kistance and natural rolongation as comlementary!

%A$2 onvention on the Law of the &ea1 "rticle ?7

(ii) .clusive .conomic one

ase law: 0isheries 1uris!iction #ase (J!M! v! 'celand1 8erits1 '!!! 9eorts1 %A?<) @

.clusive rights over fishery one must take into account interests of other

&tates!

%A$2 onvention on the Law of the &ea1 "rticles EE1 E71 E?1 2%%1 %2#

(c) urisdiction over Persons and .conomic "ctivity

Preliminary *heories (alicable to the eercise of criminal and civil jurisdiction):

%! Nationality civil law follows national wherever he5she may be! 2! Passive personality unish aliens abroad who injures one’s citien!

#! Security principle unish aliens for acts v! a &tate’s security1 indeendence

and territorial integrity <! 3niversality 7 e!g! iracy1 crimes against humanity1 etc!

E! Ob,ective territoriality elements of crime occurred in 2 states

(i) riminal urisdiction

%! =n the general theory of criminal jurisdiction

/9: +essels on high seas are subject to authority of flag&tate

.cetion: iracy1 slave trade1 hot ursuit1 right of aroach

ase law: (old rule)

+he S.S. Lotus (2 ,orld ourt 9eorts1 %A2C) @ oncurrent jurisdiction of flag&tate and other &tate affected this rule alies only if it haens on the high seas

(controversial decision; 77 vote); but see the new rule below!

New $ule: &ee "A?1 J4L=& the 9ule today is that no enal or administrative roceedings may be instituted against the master of a shi ecet before the

judicial or administrative authorities either of the:a! flag &tate1 or b! &tate of which such erson is a national!

+he ttorney4$eneral o" the $overnment o" *srael v. Eichmann (#7 '!L!9! 2??1%A72) @ Jniversal authority to try certain ersons wherever found outside of the

lace of the commission of crime; alies to serious crimes under international

law1 such as1 crimes against humanity1 war crimes1 iracy1 slavery1 crimes against

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eace1 genocide and torture! (&ee develoment of the Princeton Principles on

3niversal 1uris!iction!)

(Philiines)

People v. +ulin (/9 %%%?CA1 "ugust #C1 2CCA) @ *he crime of iracy is unishableunder PK E#2! .ven if the Philiineoerated vessel (85* *abangao owned by

P4=) was outside Philiine waters1 the crime of iracy is an ecetion to the

general rule on territoriality! Piracy is a crime against the whole world!

2! =n the rules governing .tradition under international law:

9e>uisites: =ne should ask

a! 's there a treaty- b! 's the crime listed-

/9: *here is no duty to etradite where there is no treaty!

.cetion @ .ven with treaty1 crimes with olitical comleion: GeemtI.cetion to the ecetion: Gattentat clauseI assassination of heads of &tates1 etc!

ase law:

*n the %atter o" the Re2ueste! Extra!ition o" 1oseph Patric9 +homas Doherty

(? +and! !*! L!1 %A$<) @ Kenial of etradition re>uest for an '9" member inthe J& who escaed from Delfast rison and convicted by 4orthern 'rish court

in absentia for murder!

#! Philiine .tradition Law (P!K! %C7A)

ase law

Secretary o" 1ustice v. Hon. Lantion (/!9! 4o! %#A<7E1 =ctober %?1 2CCC) @ 8ark imene is without any right to notice and hearing during the evaluation

stage of an etradition rocess by the K6" under the 9PJ& .tradition *reaty!

(4=*.: .tradition court may adjudge a erson as etraditable but Presidenthas final say! .tradition is not criminal in nature sui -eneris; thus1 Dill of

9ights rovisions on asects of due rocess in criminal roceedings not

alicable GsummaryI! Dut this ruling will later on be >ualified by the =laliacase of 2CC?)

Secretary o" 1ustice v. %uAo: (/!9! 4o! %<CE2C1 Kecember %$1 2CCC) @ 'n re: to

the 9PHongkong .tradition *reaty1 the ourt held that the rovisional arrestof resondent was valid noting that the re>uirements of the "greement on

documentation and the finding of robable cause have been comlied with!

( %ee new case on &o'(t) of *ong+ong ') Olalia, &$ 1-.7, April 1/, 270

allowing uno 3ail e'en as an extraditee) #his o'erturns the 4urganan

ruling))

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$overnment o" 3.S.. v. Hon. Pur-anan (/9 %<$E?%1 &et! 2<1 2CC2) *he

right to bail in etradition is not available! *he ultimate urose of etradition

roceedings in court is to determine whether the etradition re>uest comlieswith the etradition treaty! Dut1 in ecetional cases1 bail may issue (as element

of due rocess)1 rovided:

a! accused is not a flight risk; and1 b! comelling circumstances warrant!

Ro!ri-ue: v. R+# o" %anila (/9 %E?A??1 6ebruary 2?1 2CC7) @ " rosectiveetraditee is entitled to notice and hearing before the cancellation of his or her

own bail!

( NO#E5 4urganan ruling o'erturned 3" 27 &o'(t) of *ong6ong case)

$overnment o" Hon-9on- v. Olalia (/!9! %E#7?E1 "ril %A1 2CC?) @ *he

modern trend in ublic international law is the rimacy laced on the worth of the individual erson and the sanctity of human rights! ,hile etradition is not

a criminal roceeding1 it is characteried by the following: (a) it entails a

derivation of liberty on the art of the otential etraditee and1 (b) the meansemloyed to attain the urose of etradition is also the machinery of criminal

law! ,hile our etradition law does not rovide for the grant of bail1 there is no

rovision rohibiting the etraditee from filing a motion for bail1 a right to due

rocess! *he etraditee must establish Gclear and convincing roofI that he or she is not a flight risk and will abide with all the orders of the etradition court!

<! =n the rules governing commission of crimes on board an aircraft

+o9yo #onvention o" &'> @ for etradition uroses1 a crime may be

considered as having been committed in the Gstate of registry of the aircraftI; but jurisdiction by another ontracting &tate may be had if the offense:

(a) has an effect on its territory;

(b) has been committed by or against its national or a ermanent residenttherein;

(c) is against its national security;

(d) relates to a breach of its national rules on flight;(e) is the subject of an eercise of jurisdiction necessary to ensure the

observance of an obligation of such state under a multilateral agreement!

%ontreal #onvention o" &'=& "rticle $(2) becomes the basis for etraditioneven if there is no etradition treaty with another arty to the onvention!

E! =n +isiting 6orces58ilitary Dases @ see Nicolas case!

(ii) ivil urisdiction

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9!! ennings1 Extraterritorial 1uris!iction an! the 3nite! States ntitrust La8sC

Sherman ct o" &)'? an! 0e!eral +ra!e #ommission ct an! #layton ct o"

&'&( @ intended Gto rotect trade and commerce against unlawful restraints andmonoolies!I; should not contradict the local law!

(iii) 'mmunity from urisdiction

%! &tate 'mmunity (&overeign immunity): Head of &tate and the &tate itself Basis: equality an ine!enen"e #$ %tates

Kistinguish:a. *mmunity o" State an asect of act of &tate

b. ct o" State theory Gacts of &tate carried out within its own territory

cannot be challenged in the courts of other &tatesI; alies to acts of agents of the &tate; ecetions: war crimes1 crimes v! eace1 crimes against

humanity! 9ationale: ourts should not embarrass the .ecutive in its

conduct of foreign relations by >uestioning the acts of foreign states!

=n scoe of &tate 'mmunity

a! "bsolute

b! 9estrictive @ determine nature of the act

(%) ublic ( ,ure imperii) @ immune

(2) rivate( ,ure -estionis) not immune

ase law:

ictory +ransport *nc. v. #omisaria $eneral !e bastecimientos

y +ransportes (#E '!L!9!1 %%C J!&!!"! 2d irc!1 %AA<) @ "ct of transorting wheat during eacetime is not an act ,ure imperii!

$overnment o" the Democratic Republic o" the #on-o v. enne (22 K!L!9!

(#d) 77A1 %A?2) @ ongo’s entry into contract with a anadian architect for

sketching its avilion is a ublic act!

*& #on-reso !el Parti!o4 #uban Su-ar +ra!e (2 "ll .!9! %C7<1 %A$%) @

Playa Lar-a is a uban owned vessel but oerated by %ambisa6 a uban

&tate *rading o! not a Keartment of the uban /overnment! %ambisasold sugar to a hilean o! and shied the merchandise thru the Playa

Lar-a! 9estrictive immunity alied in this case!

+ren!tex +ra!in- #orporation v. #entral Ban9 o" Ni-eria (% "ll .!9! $$%1

%A?? @ 'ssuance by 4igerian D of letter of credit is urely commercial in

character and may be basis of suit)

Philiines: "rticle %71 &ec! # of the onstitution (immunity from suit)

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ase law (Philiines):

San!ers v. eri!iano (%72 &9" $$) " secial services director of the

former J!&! naval station in =longao was sued in a ersonal caacity for alleged libelous letter; court declared immunity because the acts comlained

of were done in the discharge of official functions!

3.S. v. $uinto (%$2 &9" 7<<) *he act of soliciting bids by the J!&! "6 is

rorietary in nature!

#hui!ian v. San!i-anbayan (/9 %#AA<%1 anuary %A1 2CC%) @ " letter of credit issued in 8anila was the basis of a suit by an alleged 8arcoscrony to

comel P4D to ay roceeds of the L5 before a J& Kistrict ourt! *he

6ederal ourt refused to comel P4D stating that P// freee orders areacts of state!

Dayrit v. Phil. Pharma8ealth (/9 %7A#C<1 8arch %#1 2CC?) @ &uingindividual etitioners in their individual caacities for damages in

connection with abuse of official ositions in order for Pharmawealth not to be awarded a contract is ermissible and an actionable wrong!

Pro"essional i!eo v. *.&K" (/9 %EEEC<1 une 271 2CCA) @ *.&K"

erforms governmental functions! &tate immunity alies in this case

notwithstanding *.&K"’s entry into contract for roduction of P+ cardsfor its trainees!

+#* v. Echin (/9 %?$EE%1 =ctober %%1 2C%C) @ .chin was hired by "*' in behalf of the 8inistry of Public Health of Muwait! "n alleged illegal

dismissal case was filed against "*' and the 8inistry! "*' cannot lead

immunity of the 8inistry where the solidary obligation may be frustrated!

$uni-un!o v. San!i-anbayan (/9 %2<??21 "ugust %<1 2CC?) @ "ct of state

doctrine does not aly in this case! *he &andiganbayan will not review the

freee orders of &wiss officials in ivil ase 4o! C%7<1 but will onlyeamine roriety of maintaining P//’s osition with resect to

comlainant’s accounts with D*"/ for the urose of determining roriety

of issuing a writ against P// and =&/!

ase law (J!M!):

Pinochet #ase (House of Lords1 4ovember 2E1 %AA$) 's Pinochet entitled to

immunity as former head of &tate- Jnder the Operativo #on!orF1 he1together with other governments ("rgentina) organied the commission of

crimes (e!g torture1 kidnaing) through the olice and secret service!

riminal comlaints on Gactio popularisI were filed by rivate citiens in&ain against Pinochet! *he &anish court ordered the arrest of Pinochet

who was then in Jnited Mingdom! " rovisional warrant of arrest was

issued by a London magistrate under the J!M! .tradition "ct of %A$A!Pinochet argued before the Kivisional ourt of the Rueen’s Dench Kivision

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that as former head of &tate1 he can not be rosecuted at common law

because he acted in a sovereign caacity! *he Kivisional ourt >uashed the

warrants of arrest but on aeal before the House of Lords1 it was held thatPinochet was not i))une fro) !ro*ecution in U.+. court* for cri)e*

under international la%! (Later1 the House of Lords set aside its decision

because the "ellate ommittee had been imroerly constituted! =nrehearing1 the /overnment of hile intervened to Gassert its own interest

and right to have these matters dealt with in hile1I resenting immunity not

as a shield for Pinochet but for its own sovereignty!)

(4=*.: *he following remedies eist:

Pinochet may be tried (a) in his own country; (b) in any other country that

can assert jurisdiction1 rovided hile waives immunity; (c) before the'nternational riminal ourt; or1 (d) before a secially constituted

international court!)

2! Kilomatic and onsular 'mmunity

ienna #onvention on Diplomatic Relations (%A7%) mostly codification of customary international law

ienna #onvention on #onsular Relations (%A7#) some customary international

law

$en. #onvention on the Privile-es an! *mmunities o" the 3.N. (%A<7)

9emedy of individual:

%! sue in home &tate of dilomat2! waiver by &tate of nationality of dilomat

#! declare dilomat persona non -rata

ase law:

3.S. Diplomatic an! #onsular Sta"" in +ehran (J!&! v! 'ran1 '!!! 9eorts #1

%A$C) @ 'ran violated the %A7% and %A7# onventions for failing to take

aroriate stes to ensure rotection of J!&! embassy and staff and roertyfrom attacks by militants students! *here was state resonsibility for having

even aroved of the acts of these demonstrators!

Re-ina v. Palacios (? K!L!9! %%21 <th1 %A$<) @ dilomatic immunity ceases to

be enjoyed at the moment the dilomat leaves the country1 or on eiry of a

reasonable eriod in which to do so!

Philiines: .certs from the %AA? 8anual on 'mmunities and Privileges (K6")

ase law:

Di!lo)at*,Con*ul*

Holy See v. Rosario (2#$ &9" E2<) 4 Holy &ee enjoys immunity where

the land subject of annulment was bought for site of "ostolic 4unciature!

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%inucher v. # (2%< &9" 2<2 and /!9! 4o! %<2#A71 6ebruary %%1 2CC#)

" J!&! dilomatic staff who is a member of the Krug .nforcement

"dministration of the K= was found to be immune from suit for allegedcriminal5tortuous conduct! "s an agent he was allowed by the Philiine

government to conduct activities to contain the drug traffic!

*n!onesia v. in:on (/9 %E<?CE1 une 271 2CC#) @ "n 'ndonesian

=fficial entered into a maintenance agreement to maintain secified

e>uiment at the embassy! *he agreement referred to Philiine law for uroses of any disute settlement! *he court held that this did not

constitute a waiver of dilomatic immunity! &ubmission to local

jurisdiction must be clear and une>uivocal!

Deutsche v. # (/9 %E2#%$1 "ril %71 2CCA) @ *he /* is e>uivalent to a

Philiine cororation organied under the ororation ode but owned

by the government! 't must secure an eecutive endorsement of its claim

of sovereign or dilomatic immunity!

International Or-aniation*

D0 v. NLR# (272 &9" #A) 'llegal dismissal suit against "KD;

immune!

Lasco v. 3N (2<% &9" 7$%) 'llegal dismissal suit against J!4!

9evolving 6und; immune!

5HO v. 2uino (<$ &9" 2<2) rates consigned to ,H= dilomateemt from search!

*#%# v. #alle,a (%AC &9" %#C) Kisallowed a etition for certificationelection!

Lian- v. People (/!9! %2E$7E1 anuary 2$1 2CCC) " criminal case for slander against an "KD emloyee may roser because it was not done in

the eercise of official functions!

Sps. Lacier!a v. Platon (/9 %E?%<%1 "ugust #%1 2CCE ) @ &."6K. is aninternational organiation which is immune from suits being clothed with

dilomatic immunity!

(d) "reas 4ot &ubject to the urisdiction of 'ndividual &tates

(i) High &eas

"llowable acts by any &tate: navigation1 overflight1 submarine cables5ielines1

construction of artificial islands or any installations1 fishing1 research1 etc! B

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%A$2 onvention on the Law of the &ea1 "rticles $?1 A?

%A$2 onvention on the Law of the &ea1 Kefinition of Piracy1 "rticle %C%

(ii) Kee &eabed (also called *he "9.")

ommon heritage of mankind @ =en for eaceful uroses and for eloitationfor the benefit of mankind; right of a coastal &tate to revent or mitigate any

grave and imminent danger to its coastline or environment; governed by the

'nternational &eabed "uthority! Keclaration of Princiles /overning the &eabed and the =cean 6loor and the

&ubsoil *hereof1 Deyond the Limits of 4ational urisdiction @ 9esolution 2?<A

QQ+ (%A?C)

%A$2 onvention on the Law of the &ea1 Part Q'

(iii) =uter &ace

Province of all mankind @ 4ot subject to national aroriation; no nuclear weaons in orbit; astronauts are Genvoys of mankindI and &tates are obliged to

render assistance to them in emergency landing; there is internationalresonsibility for national activities in outer sace; absolute liability for

damage caused by sace objects!

oncet of Ggeostationary orbitI and the GsatialI test: *here is no universally

acceted definition of outer sace and the roblem of demarcation between air

sace and outer sace is a old as the sace age itself! &ome suggest a satialisttest @ arbitrary height of A7%%C kms! from the e>uator1 limit of air flight1 limit

of the atmoshere1 etc!1 B

*reaty on Princiles /overning the "ctivities of &tates in .loration of =uter

&ace and the Jse of =uter &ace1 'ncluding the 8oon and other elestial

Dodies (%A7?)

onvention on Liability for Kamage aused by &ace =bjects (%A?2)

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Ca!ter I/. RES&ONSI#ILIT' OF STATES

R: an &tates be criminally resonsible-": Highly debatable!

(a) /eneral Princiles of 9esonsibility

(i) &coe: concerned with incidence and conse>uences of illegal acts and the

ayment of comensation

(ii) *heory @ internationally wrongful act or omission:

%! international delict most cases

2! international crime e!g! aggression1 coloniation by force1 slavery1 genocide1aartheid1 mass ollution

(iii) Kistinguish: law of treaties and general rinciles of resonsibility

(iv) Kistinguish: %! objective resonsibility strict liability (good or bad faith is immaterial)

2! subjective fault theory

(v) .amles:

%! breach of treaty 2! injury to territory1 roerty1 dilomat of a &tate

#! injury to erson5roerty of aliens

(vi) Reparation required for injury caused:

%! restitution

2! damages (vii) 9e>uisites:

%! act5omission attributable to the &tate 2! breach of an international obligation

(viii) ategories:

%! Kirect @ when injury is against another &tate (any of its organs or agents)!

2! 'ndirect @ against the erson or roerty of a national of another &tate!

(i) 'mutability: (direct resonsibility)

%! &tate =rgans

a! .ecutive @ e!g! failure to take aroriate stes to unish culrits who are

olice officers!

b! Legislative @ e!g! if a treaty re>uires incororation of certain rules in domesticlaw1 failure to do so entails resonsibility!

c! udiciary @ e!g! if the court commits errors in the alication and interretation

of treaties or fails to give effect to a treaty or is unable to do so because the

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necessary change in or addition to1 the national law has not been made1 its

judgment involves the &tate in a breach of treaty!

2! *erritorial governmental authority (L/Js)

#! Persons5grous authoried by the &tate

() 3ltra vires acts of &tate organs and officials @ considered act of &tate even if beyond

the cometence of the agent for as long as there is roof of aarent authority or the act

was done within the general scoe of authority! "n eamle is when olice officers takerevenge against another erson but seemingly acted in the role of olice to the average

observer!

(4=*.: "buse of 9ights @ there could be comensation for the injurious conse>uences of

lawful acts of &tate organs or officials! "n eamle is "rticle 221 ar! # of the onvention

on the High &eas which allows comensation for loss or damage caused as a result of theeercise of the right of warshis to board merchants when susicious circumstances

would warrant!)

ase law:

Goumans #ase (9'"" iv! %%C1 %A27) @ Here1 soldiers were sent to rotect aliens

besieged by rioters but ultimately joined in the attack which resulted in thekilling of the aliens! &oldiers inflicted ersonal injuries or committed wanton

destruction or looting act in disobedience of some rules laid down by suerior

authority!

#aire #laim #ase (6rance v! 8eico1 6rench8eican laims ommission1

9'"" v! E%71 %A2A) " 6rench national was killed in 8eico by 8eican

forces after failing to ay ransom money! =bjective resonsibility alies inthis case wherein the military officers conducted themselves as officers in the

brigade! *he officers even used the means laced at their disosition by virtue

of their caacity! *he ultimate test is the amount of &tate control which oughtto have been eercised under the circumstances! (Dut distinguish this from the

earlier case of Goumans!)

(i) "cts of rivate citiens and rebels:

%! Private citien "s a rule1 acts of rivate citiens do not entail &tate resonsibility!

'n localied riots and mob violence1 the &tate has the duty to take reasonable recautionary and reventive action to rotect foreign ublic and rivate

roerty!2! 9ebels 'nsurrectional movement’s act is act of &tate once it is established as the

new government! Delligerent grous may be held resonsible for their acts during

the armed conflict! *here is a duty on the art of the &tate to revent or suressthe insurrection using the standard of due diligence; however1 a higher standard

of rotection alies to dilomats and consuls!

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ase law:

Home %issionary Society #ase (9'"" vi! <21 %A2C) @ *his religious &ocietysuffered losses during the rebellion in the Protectorate of &ierra Leone! *he

J!&! claimed comensation on behalf of the &ociety alleging that the Dritish

/overnment failed to take aroriate stes for the maintenance of order! *hisclaim was dismissed because there was an assumtion of risk on the art of the

&ociety and there was no failure of duty based on the facts!

(ii) 'nternational crimes and delicts

'nternational Law ommission Kraft "rticles on &tate 9esonsibility1 "rticles %

%C1 %A

(b) 9esonsibility for "cts "ffecting 'ndividuals

(i) *raditional 'nternational Liability

%! *heory of denial of justice

ase law:

3nite! States /#hattin; v. %exico (< 9!'!"!"! 2$21 %A2? @ *he arrest1 trial and

conviction of an "merican national in 8eico was deemed irregular and inviolation of international standards1 thus1 giving rise to resonsibility!

2! Harvard 9esearch Kraft1 definition ("rticle A) @ GBunwarranted delay or

obstruction of access to courts1 gross deficiency in the administration of

judicial or remedial rocess1 failure to rovide those guarantees which aregenerally considered indisensable to the roer administration of justice1 or amanifestly unjust judgment! "n error of a national court which does not

roduce manifest injustice is not a denial of justice!I

(ii) 'nternational Protection of Human 9ights

%! Human 9ights Princiles and .nforcement 8echanisms

a! J!4! harter1 "rticles %(#)1 EE1 E7 @ &tate obligation to resect and romote human rights!

b! Jniversal Keclaration of Human 9ights (%A<$) @ Keemed by someinternational legal scholars as customary international law! c! 'nternational ovenant on ivil and Political 9ights (%A77) and =tional

Protocols % and 2 @ =P% is on individual communications rocedure through

the H9 ommittee! =P2 is of the abolition of the death enalty (/9P ratified

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the 'P9 and =P% but is not a signatory to =P2); most rights are self

eecuting rights!

d! 'nternational ovenant on .conomic1 &ocial F ultural 9ights

(%A77) @ *here is only a reortorial duty; generally1 ecosoc rights are based on

rogressive realiation rincile! 9atified by /9P!

e! onvention on the .limination of 9acial Kiscrimination (%A7A) @ *here are

individual communications rocedure and &tate to &tate communications!9atified by /9P!

f! onvention on the .limination of Kiscrimination against ,omen (%A$%)

and =tional Protocol (2CCC) @ *here is an otional rotocol on individualcommunication and in>uiry rocedures! "ll ratified by /9P!

g! onvention against *orture (%A$?) @ *here are individual communications

rocedure and &tate to &tate communications! 9atified by /9P!

h! onvention on the 9ights of the hild (%AAC) and =tional Protocols on&ale1 Prostitution and Pornograhy (2CC2) and hildren in &ituations of

"rmed onflict (2CC2) *here is a reortorial duty to a 9 ommittee! "ll

ratified by /9P!

i! 8igrant ,orkers onvention (2CC#) @9atified by /9P

2! oncets of 'nternational 8inimum &tandard and 4ational *reatment

*hese aly to certain areas of activity of aliens1 like investment and trade

matters; for the rotection of aliens against discriminatory acts of the host&tate!

(4=*.: "lien is treated like a national of host &tate in all resects as to

roerty right @ if rotection ertains to the GersonI of the alien1 alyinternational human rights law rinciles!)

ase law:

South45est "rica #ases1 &econd Phase ('!!! 9eorts1 %A771 Kissenting=inion of udge *anaka) @ G"artheidI as violation of rincile of

e>uality before the law!

(Philiines)

%e,o"" v. Director o" Prisons (AC Phil! ?C) @ "lication of the JKH9 by

Philiine &ureme ourt in a habeas corus case of an alien of 9ussiandescent who was brought to the country from &hanghai as a secret

oerative by the aanese forces! "fter the war1 he was arrested as a

aanese sy by the J!&! "rmy! He was detained by the ommonwealth

/overnment and was detained for 2 years after he was ordered deorted!

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"rticle $ of JKH9 roclaimed that Geveryone has the right to an effective

remedy by the cometent national tribunals for acts violating B

fundamental rightsBI

%arcos v. %an-lapus (%?? &9" 77$; %?$ &9" ?7C) @ "lication of

the JKH9 and 'P9 on the right to return of the 8arcoses from Hawaiieven if the Dill of 9ights did not secify this right! However1 the ourt held

that the /9P did not act arbitrarily in determining that the return of the

8arcoses under the circumstances then eisting osed a serious threat tonational interest and welfare!

*nternational School lliance o" School E!ucators v. uisumbin- (/!9!

4o!%2$$<E1 une %1 2CCC) "lication of '.&9 to a suit for recoveryof comensation on the basis of e>ual ay for e>ual work! *he ourt

re>uired the 'nternational &chool to treat local and foreign hired teachers

e>ually!

Republic v. San!i-anbayan (/9 %C<?7$1 uly 2%1 2CC#) @ *he

revolutionary government following .K&" % in %A$7 was subject to the'P9 and JKH9!

#entral Ban9 Employees v. BSP (/9 %<$2C$1 Kecember %<1 2CC<) @ *he

e>uality rovisions of international human rights instruments imose ameasure of ositive obligation on &tate Parties to eradicate discrimination!

/5rit o" mparo; Sec. o" National De"ense v. %analo (/9 %$CAC71 =ctober ?1 2CC$); Reyes

v. # (/9 %$2%7%1 Kecember #1 2CCA); Rubrico v. $% (/9 %$#$?%1

6ebruary %$1 2C%C); an!6 BO# v. #a!apan (/9 %$<<7%721 8ay #%12C%%) @ *he writ of amaro is a remedial measure designed to direct

secific courses of action to government agencies to safeguard the

constitutional right to life1 liberty and security of aggrieved individuals!

Birao-o v. +ruth #ommission (/9 %A2A#E and %A#C#71 Kecember ?1 2C%C)

@ .!=! 4o!% insofar as it intended to investigate human rights violations is

consistent with generally acceted rinciles of international law! Dut it isunconstitutional due to its limitation of its investigation to the /8"

administration in violation of the e>ual rotection clause!

(iii) *he *aking of 6oreign=wned Proerty: 4ationaliation and .roriation

/9: &tate with right to eroriate foreignowned roerty for a ublic urose!

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.cetion: if arbitrary or discriminatory or motivated by considerations of

olitical nature!

(4=*.: Jnsettled @ amount of comensation and what constitutes

eroriation! *wo views on the matter:

J!&! and caitalist &tates @ Gromt1 ade>uate1 effectiveI&ocialist &tates @ no comensation)

4orm5ractice @ GDilateral 'nvestment *reatiesI would rovide the standardof comensation!

Jnited 4ations Keclaration on Permanent &overeignty over 4atural

9esources1 %A721 J!4!/!"! 9esolution %$C# (Q+'') @ *here is an inalienableright of &tate to freely disose of natural wealth and resources; bases for

eroriation are ublic utility1 security and national interest; standard

GaroriateI comensation!

Jnited 4ations 9esolution #%?% (QQ+''') on Permanent &overeignty over

4atural 9esources1 Kec! %?1 %A?# @ &tate is entitled to determinecomensation and mode of ayment; and disute on this matter to be settled

based on national legislation!

harter of .conomic 9ights and Kuties of &tates1 %A?<1 J!4!/!"! 9esolution#2$% (QQ'Q) @ 9ight of a &tate to regulate foreign investment without

referential treatment; standard GaroriateI comensation!

Proosed "mendment to "rticle 2 of harter of .conomic 9ights and Kuties

of &tates @ Keveloing &tates rejected amendment to "rticle 2 aimed at using

the term Gjust comensationI!

ase law:

+exaco Overseas Petroleum #o.@#ali"ornia siatic Oil #o. an! the

$overnment o" Libyan rab Republic (omensation for 4ationaliedProerty1 %A anuary %A??1 %? '!L!8! %) @ omanies entitled to

restitutio in inte-rumF on the basis of violation of an internationalied

contract; tribunal disregarded issue of nationaliation; reference togeneral rinciles of law outside internal law @ Gbreach of contractI;

rivate arty has secific but limited Ginternational caacitiesI in this

case!

(4=*.: 'nternational law allows the oeration of rules of rivate

international law! ,hen a claim arises based on breach of contract between an alien and a government1 the issue may be decided in

accordance with the alicable municial law designated by the rules of

rivate international law!)

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(c) 9esonsibility for .nvironmental Harm

ase law:

+he +rail Smelter rbitration (# 9!'!"!"!%ACE1 %A#$5%A<%) @ &tate is boundto rotect other &tates against injurious acts by individuals from within its

jurisdiction!

*he orfu hannel ase /supra.;4 lbania coul! not permit use o" itsterritory to harm others.

+he Stoc9holm Principles /&'=<; @ +he !uty o" States to noti"y other States o"

activities that may have extra4territorial e""ect 8as not accepte! /but see3.N.$.. Resolution <''I /JJ**;.

/NO+E +he Stoc9holm Declaration 8as a!opte! in &'=< by the &&

participatin- States. *t contains <> principles 8hich provi!e the basis o" an

international policy "or the protection an! improvement o" the environment6o" 8hich Principles <& an! << !irectly concern international la8. Principle

<& provi!es "or the ri-ht o" a State to exploit its o8n natural resources an! the !uty not to cause harm to others or to places outsi!e o" its territory in the

course o" their exploitation. Principle << imposes an obli-ation to cooperate

to !evelop the !uty "urther.;

J!4!/!"! 9esolution 2AAE (QQ+'')

J!4!/!"! 9esolution 2AA7 (QQ+'')

'nternational Law "ssociation 9esolution %A?2

Jnited 4ations .nvironment Program: /overning ouncil Kecisions

oncerning Policy =bjectives1 %2 '!L!8! %%$# (%A?#)

9io Keclaration on .nvironment and Keveloment1 "5=46!%E%5E59ev!%1 #%

'!L!8! $?< (%AA2) @ .mhasied the right of a &tate to eloit resources but

with the corresonding duty not to damage the environment; Gsecialsituation of develoing countriesI considered; trade olicy measures for

environmental uroses should not constitute as means for arbitrary or

unjustifiable discrimination or a disguised restriction on international trade;

there is a duty to notify other &tates regarding disasters!

8ontreal Protocol on &ubstances that Kelete the =one Layereressly

rovides for the eriodic review and assessment of control measures takenand their adjustment whenever deemed necessary! %A$A Dasel onvention on the *ransboundary 8ovement of Haardous

,astes authories the regularly scheduled meetings of the conference of the

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arties to take legislative initiatives to ensure the effectiveness and

continuous imrovement of the regime!

Precautionary Princile @ *he obligation re>uires a &tate to abstain from

conduct that carries a significant risk of harm! 't is an obligation that has

several rocedural comanionelements1 namely: the duty of rior information and of consultation! *hese obligations have become art of

customary international law according to legal scholars! *he evolution of a

duty of revention can be traced from its concetual origin in the +rail Smelter decision all the way to the international law commission’s focus on

revention and its work on the liability toic!

ase law: DENR v. #oncerne! Resi!ents (/9 %?%A<?<$1 Kecember %$1 2CC$) @

Philiines is a member of the 'nternational 8arine =rganiation and a

signatory to the 'nternational onvention for the Prevention of Pollution

from &his! leanu of 8anila Day is a duty which covers general ollution incidents!

(d) 'nternational laims

/9: .very &tate has a duty to rotect its national! *he &tate should establish its legalinterest by roving the nationality of the claim!

6orms of rotection:

%! Protest 2! .n>uiry

#! 4egotiation <! &ubmission to arbitral tribunal5court

Precondition: ehaustion of local remedies @ if indirect resonsibility!

(4=*.: by taking u the case of a national1 a &tate is1 in reality1 asserting its own

rights @ its right to ensure1 in the erson of its subject1 resect for the rules of international law! *herefore1 the subject matter of the claim is the individual and his

roerty1 but the claim is that of the &*"*.!)

ase law:

3nite! States KNorth merican Dre!-in- #o. o" +exas v. 3nite! %exican

States (< 9!'!"!"! 271 %A2?); &ee dissent of udge 4ielsen in the subse>uentcase of *nternational 0isheries #o!1 (4ielsen’s =inions 2C?1 %A#%) @ Cal'o

clause: G" contract containing a clause deriving the arty subscribing to the

clause of the right to submit any claims connected with his contract to an

international commission!I; the individual can make such romise but can notderive his5her own state in alying international remedies; however1 there is

no rule of international law giving the &tate the right to intervene in order to

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strike down such a lawful contract; the remedy of denial of justice is

indeendent of the violation of contract!

+he +attler /3nite! States v. $reat Britain6 4ielsen 9e! <$A1 %A2C) @ *he

"merican citiens’ waiver of claims (and right of libel) in consideration of the

release of the "merican schooner +attler are not binding uon the J!&!government!

+he Paneve:ys4Sal!utis9is Rail8ay #ase /Estonia v. Lithuania6 P!!'!! &eries

"5D1 4o! ?71 %A#A) @ *he test of right of claim by a &tate is the Gbond of nationalityI which eisted at the time of the injury occurred! 't is also an

established rule that ehaustion of remedies afforded by municial law must

be availed of ecet if there is an ineffective remedy!

Nottebohm #ase /Liechtenstein v. $uatemala6 '!!! 9eorts <1 %AEE) @ *he

naturaliation of 4ottebohm under Liechtenstein law will not be sufficient toallow a claim in his behalf! 't was shown that 4ottebohm was a former

/erman national who has resided in /uatemala for more than #C years (since%ACE)! 't was only in =ctober %A#A1 after the oening of the 2nd ,, that he

submitted an alication for naturaliation! (*his was obviously an attemt toenable him to substitute for his status as a national of a belligerent /erman

&tate that of a national of a neutral Liechtenstein and evade roceedings

against him and his roerty interests!) He continued to stay in /uatemalauntil his removal as a result of war measures in %A<#! He attemted to return

to /uatemala but was refused1 for which reason he finally went to

Liechtenstein in %A<7! *he ourt held that in cases of dual nationality1 wherethe >uestion arose with regard to the eercise of rotection1 the Greal and

effective nationalityI test has been alied!

#ase #oncernin- the Barcelona +raction /Bel-ium v. Spain 1 '!!! 9eorts #1

%A?C) @ 'n determining nationality of a cororation1 the Glace of

incororation and the location of the registered officeI are material elements!

't was found that Darcelona *raction o! was incororated under anadianlaw and had its registered office in anada! Delgium did not have caacity to

esouse the claim of Delgian shareholders in the comany!

Banco Nacional !e #uba v. Peter L.0. Sabbatino (#?7 J!&! #A$1 %A7<) @ *he

uban /overnment characteried the reduction in the uban sugar >uota by

the J!&! as an act of Gaggression1 for olitical urose1I which romted the

uban President to nationalie by forced eroriation roerty or enterrisesin which "merican nationals had an interest! *he J!&! &ureme ourt held

that G(h)owever offensive to the ublic olicy of (the J!&!) and its constituent

&tates an eroriation of this kind may be1 we conclude that both the nationalinterest and rogress 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 alication!I

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l"re! Dunhill o" Lon!on *nc. v. +he Republic o" #uba (<2E J!&! 7$21 <$ L!.d!

2d!#C%1 %A?7) @ J!&! &ureme ourt did not aly the act of state doctrine to

this case wherein the uban /overnment failed to return to "lfred Kunhill of London1 'nc! funds mistakenly aid by Kunhill for cigars that had been sold to

Kunhill by certain eroriated uban cigar businesses! *he act relied uon

by uba was an act arising out of the conduct by uba’s agents in theoeration of cigar businesses for rofit!

Buttes $as an! Oil #o. an! nother v. Hammer an! nother (# ,!L!9! ?$?1H!L!1 %A$%) @ 'n a litigation instituted in the J!M! between two etroleum

comanies1 there were allegations of consiracy to cheat and defraud the J!M!

involving foreign rulers in the Persian /ulf region! *he laintiffs (Duttes)

alied for an order that the court should not eercise jurisdiction in resect of secified matters said to be Gacts of stateI of the governments of &harjah1

Jmm al Raiwain1 'ran and the J!M! *he issue arose from a ress conference

given in London in %A?C by Kr! Hammer wherein he accused Duttes of using

imroer methods and colluding with the ruler of &harjah to backdate a decree by the ruler etending the territorial waters of &harjah1 from # miles to %2

miles so as to obtain for themselves the benefit of the oilbearing deosit atthe location which Kr! Hammer claimed was discovered by and belonging to a

cometitor of Duttes! 't was held that the court cannot entertain the suit for it

would bring to trial nonjusticiable issues!

(Philiines)

inuya v. Romulo (7%A &9") @ .sousal of claim on behalf of the G8alaya

LolasI is discretionary uon the &tate (Peace *reaty of %AE% satisfied claims)!

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Ca!ter /. RESOLUTION OF DIS&UTES

(a) Jse of 6orce

(i) /eneral

/rotius1 =n *he 9ights of ,ar and Peace (%AC%)

/eneral *reaty for the 9enunciation of ,ar

DriandMellogg Pact (%A2$)harter of the Jnited 4ations1 "rticles 2 (#) (<)1 "rticles #A<2

/eneral "ssembly 9esolution ##%< QQQ on the Kefinition of "ggression

Prodemocratic 'nvasion

(ii) *he oncets of &elfKefense and &elf Protection

harter of the Jnited 4ations1 "rticle E%

9ight of &tates to Jse "rmed 6orce

(iii) *he Legality of 9erisals

Legal 'mlications of 'srael’s %A$2 'nvasion into Lebanon

(b) udicial and "rbitral &ettlement

(i) 'nternational ourt of ustice

&tatute of the 'nternational ourt of ustice:

"# %E judges"< elected by /" and &; nominated by national grous

"%7 no other involvement olitical5administrative functions;

occuation

"%A dilomatic immunity

"2% President1 +P1 9egistrar; #yr! term; with reelection

"#< only &tates may be Parties"#7 jurisdiction: recognition of comulsory jurisdiction declaration by member

"#A language: 6rench and .nglish; ecet: Gre>uestI by one arty for other

language

"<# written and oral roceedings"EE majority ruling

"7C bindingness of decision: only between Parties and in that articular case"7C no aeal

"7% revision of judgment: discovery of some fact (newly discovered evidence)

w5in 7 months from discovery but not more than %C years

"72 motion to intervene allowed"7E advisory oinions re>uest by a body based on J4 harter

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ase law:

&. urisdictiona. erial *nci!ence #ase

b. Nicara-ua v. 3.S.

c! #ase #oncernin- East +imor <. Provisional 8easures

a. Nicara-ua v. 3.S.

b! #ase #oncernin- Le-ality o" 3se o" 0orce. 'ntervention

a! El Salva!or v. Hon!uras

(ii) 'nternational "rbitration

ase law: (Philiines)

Del %onte v. # (/9 %#7%E<1 6ebruary ?1 2CC%) @ *he trial court found it

eedient to roceed with trial in the interest of justice instead of allowing

simultaneous arbitration roceedings! *he Philiines under 9" $?7 authoriesarbitration of domestic disutes! 't adhered to the %AE$ onvention on

9ecognition and .nforcement of 6oreign "rbitral "wards through &enate

9esolution ?% of 8ay %C1 %A7E!

L% Po8er v. #apitol *n!ustrial #onstruction (/9 %<%$##1 8arch 271 2CC#) @

"rbitration clause does not divest courts of jurisdiction to ass uon findings of

arbitral bodies!

0rabelle 0ishin- #orp. v. Philamli"e (/9 %E$E7C1 "ugust %?1 2CC?) @ *o brush

aside a contractual agreement calling for arbitration would be a ste backward!

$on:ale: v. Hon. Pimentel (/9 %7?AA<1 anuary 221 2CC?) @ 9" $?7 recognies

the contractual nature of arbitration agreement!

R#B# v. Banco !e Oro (7$? &9" E$#) @ Partiality of the hairman of the

"rbitral *ribunal was manifested when the hairman gave the arties coies

of the ' Dulletin which may have e>uied 9D with legal arguments!

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Ca!ter /I. S&ECIAL TO&ICS IN INTERNATIONAL LAW

(a) Te United Nation*

(i) *he J4 harter and the Problem of 'nterretation

*reaty drafted mainly by oliticians with little assistance from lawyers

8iture of legal with olitical factors elains why &tates are reluctant to refer disutesabout interretation of J4 charter to '

Gtravau rearatoiresI as subsidiary means of interretation

(4!D! tends to be limited to the ast)

(ii) Purose:

@ Peace and security @ 6riendly relations

@ ooeration

@ Harmonie actions of &tates5nations

(iii) *heory of 9esect for Komestic urisdiction of &tates

"rt! 2(?) @ resect for internal or domestic issues 'ssues outside the domestic jurisdiction of &tates

%! Dreach of international law

2! *hreat to international eace#! /ross violation of human rights

<! &elfdetermination

(iv) 8embershi

@ "rt! <: &ecurity ouncil vote for admission; recommends to /eneral "ssembly

@ harter says nothing on withdrawal @ hina issue: only a >uestion of rightful reresentative

(v) =rgans of J4

/eneral "ssembly S GassemblyI

&ecurity ouncilS .=&= S GcouncilI

*rusteeshi S

&ecretariat S

' S GorgansI

(vi) &ecurity ouncil:

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E ermanent members @ J!&!1 9ussia1 6rance1 J!M! and hina

%C nonermanent members@ E selected each year for term of 2 years

G+etoI: each ermanent member with a veto on nonrocedural matters!

GKouble vetoI: to determine whether a >uestion is by itself a rocedural>uestion!

(vii) /eneral "ssembly:

- discusses and makes recommendations on:

%! studies on rogressive develoment of international law 2! international cooeration

- GinternalI decisions as binding on the members

- G/" resolutionsI with imortant legal effects

(viii) &ecretariat

G&ecretary/eneralI aointed by /" uon recommendation of &; non rocedural

matter subject to veto; chief administrative officer

G>uotaI in hiring J4 ersonnel

(i) .nforcement "ction and J4 6orces

hater +'' threats to eace1 breaches of eace and acts of aggression

2 forms of enforcement action:

"rt! <% nonmilitary cut economic relations5 communications5 dilomatic

relations"rt! <2 military

(4=*.: "rt! <# &tate consent to join military action is necessary)

() .conomic and &ocial ooeration

"rts! EE and E7: standard of living and human rights .=&= members elected each year for #yr! term

e!g! 6"=1 '8=1 '"=1 'L=1 'D9K1 '861 '6"K1 J4.&=1 JPJ1 ,H=

(b) International Econo)ic La%

(i) Dretton ,oods system: designed to reconstruct world economic system inmatters of trade (/"**5,*=) and finance (,D and '86)

(ii) ore rinciles:

%! comarative advantage2! economies of scale

(iii) 6undamental 4orms:

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%! most fa'oured nation is an obligation to treat that &tate1 its nationals or

goods1 no less favorably than any other &tate1 its nationals or goods

2! national treatment @ is an obligation to treat the nationals or goods of another &tate as the &tate treats its own nationals or goods

(iv) /9: &tate duty to refrain from injuring others through economic acts!

(v) &afeguards and .scae lauses: *he /"** authories counter'ailing duties on

the imortation of subsidied roducts only if the effect of subsidiation is such

as to cause or threaten material injury to or to retard materially the establishmentof a domestic industry! 't also ermits the antidumping dut" to be in the full

amount of the margin of duming whenever there is a sale in the imorting &tate

below Gnormal value!I "n escape clause in /"** allows a &tate arty tosusend its obligation or withdraw or modify a concession with resect to a

roduct if1 as a result of unforeseen develoments the roduct is being imorted

into its territory in such increased >uantities and under such conditions as tothreaten serious injury to domestic roducers!

(vi) /eneralied &ystem of Preferences: J!&! *rade "ct of %A?< authories

a /&P which gives the President ower to designate &tates as eligible tointroduce eligible goods free of duty or subject to reduced goods!

(vii) &ecialied Kisute &ettlement Dody

(viii) 6ree *rade "rea (e!g! "6*"1 4"6*"): eliminates barriers on trade among

members1 but leaves each member &tate free to determine barriers to the outsideworld!

(i) ustoms Jnion (e!g! .J): a grouing of &tates in which duties and other restrictions are eliminated with resect to substantially all trade among members1and substantially the same duties and other regulations are alied by all

members of the union to imorts from all other &tates!

(c) $lo0al Terrori*)

(i) 4o recise definition but only Goerative definitionI

(ii) History of instruments:

%! %A?# 'nternational onvention for Prevention and Punishment of

terrorism all criminal acts !irecte! v. a State an! inten!e! or calculate! to create a state o" terrorF

2! %A?2 after the 8unich *ragedy1 J4 initiative to revent terrorism

#! %A7#2CC% %2 multilateral treatiesa! =n civil aviation (%A7# *okyo1 %A?C Hague and %A?% 8ontreal)

b! +iolence v! &tate leaders5officials5dilomats (%A?# onvention

Preventing rimes v! 'nternationally Protected Persons)c! =n taking hostages (%A?A)

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d! =n terrorist bombings (%AA7)

e! =n financing of terrorism (%AAA)

(iii) Post A%%C%: J4 &ecurity ouncil 9esolution %#?# acting under hater +''

of the J4 harter on threats to eace and on aggression established the Gounter

*errorism ommitteeI

(4=*.: Problem of distinguishing terrorism and acts of national liberation

movements!)

(iv) ,hat is the allowable resonse to terrorism- (assese)

oncerted and multilateral action (&ecurity ouncil 9esolution %#?#)

.lements of Proortionality Princile: %! Ketain those resonsible

2! Kestroy military targets

#! 'nternational humanitarian law should be resected: P=,

<! Kefer to &ecurity ouncil authoriation to use force v! secific&tates

E! Dring catives to justice before the '!

ase law: (Philiines)

Southern Hemisphere v. +# (/9 %?$EE21 =ctober E1 2C%C) @ *he &ureme

ourt uheld the Human &ecurity "ct or 9" A#?2! Petitioners failed to roveits invalidity based on the void for vagueness and overbreadth doctrines! 6acial

challenge of a criminal statute is not countenanced!

(d) Ira1 War 2$ulf War3

(i) 'ssue: *hree J4 &ecurity ouncil 9esolutions culminating in J4&9 %<<%

allegedly laid the basis for reemtive strikes under the theory of selfdefense

(ii) J4&9 7?$: authoried the use of force to enforce 'ra>’s obligation to

disarm!

(iii)J4&9 7$?: authoried use of force against 'ra> to eject it from Muwait and

to restore eace in the area!

(iv)J4&9 %<<%: rovided for serious conse>uences should 'ra> fail to comly

with its duty to disarm and cooerate with the J4 'nsection team! *he resolution

also recognied that 'ra> has continued to be in Gmaterial breachI of astresolutions and gave it the last oortunity to comly!

(e) International "u)anitarian La%

(i) 'ntroduction: 'nternational Law and the Jse of 6orce

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*heory of just war (in conformity with Kivine ,ill) this justified hristianiation

of 9oman .mire; goal correct wrongdoing

.uroe nationstates changed the concet on account of GsovereigntyIPrescribed rule: attemt to negotiate and resolve disutes

/oal: maintain order by eaceful means

4orms of just war:a! 'mmunity of innocent ersons

b! Proortionate use of force

"fter the Peace of ,esthalia (%7<$) Gjust warI disaroved9ule: &tates were sovereign and e>ual1 no one &tate could judge whether

another’s cause was just or not!

4orm: Gbalance of owerI

%st ,, ended balance of ower; raised the >uestion of unjust war League of 4ations duty to submit disutes likely to lead to a ruture to

arbitration5judicial settlement5in>uiry by the League; &tate may resort to force

after judgment

%A2$ GMelloggDriand PactI renunciation of war as instrument of national olicy

J4 harter "2(<): GBrefrainB from the threat or the use of force against theterritorial integrity or olitical indeendence of any &tateBI

(4=*.: *his rovision is declaratory of ustomary 'nternational Law!

*he term GforceI rather than GwarI is better to cover situations in whichviolence is emloyed which fall short of the technical re>uirements of the

state of war!)

.cetions:

%! ollective measures by J42! &elfdefense

(ii) .volution of 'HL

8id %Ath century: Dattle of &olferino in %$EA

Henry Kunant ioneered work

9esult: /eneva onvention for the "melioration of the ondition of the,ounded in the 6ield (%$7<) (amended in %AC7)

%$C7 Keclaration of &t! Petersburg rohibited use of small elosive or incendiary

rojectiles odification: Hague Peace onferences of %$AA and %AC?

'ncluded:

a! land and naval warfare

b! GbelligerentsI subject to law of nationsc! measures over occuied territory

d! rights and duties of neutral statese! rohibition on arms1 rojectiles or material calculated to cause

unnecessary suffering

(4=*.: "art from %AE< Hague onvention for Protection of ultural

Proerty in *ime of "rmed onflict1 rules of war remained codified in%AC?!)

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4=*.: Guse of guerillasI since %A<A; subject to eanded definition in "<#

and " << of P%1 %A?? (eanded definition1 controversial)

"rmed 6orces consist of Gall organied armed units under an effective

command structure which enforces comliance with international lawI!

"<<(#) duty to distinguish themselves from the civilian oulation while in

oerationB when an armed combatant cannot so distinguish himself1 the

status of combatant may be retained rovided that arms are carried oenlyduring engagement!

*reatment of P=,&:

%! 4o violence1 intimidation1 insults and ublic curiositye!g Dreach dislay P=,s on *+ confessing and criticiing governments

('ra>)

2! 'nformation allowed name1 date of birth1 serial numberB but one cannot use

coercion to get information#! Put in cams (away from combat ones)

<! "2# cannot use resence of P=,s to render certain oints immune frommilitary oerations

E! P=,s subject to laws of the &tate holding them

7! 8ay be discilined and rosecuted for war crimes?! 8ay be rosecuted for crimes against the holding &tate

/< in relation o "EC(%) of P%1 %A??

Kefinition: ivilian Gany erson not combatant and in cases of doubt1 a erson isto be considered as a civilianI!

&coe of Protection: erson1 honor1 convictions1 religious ractice

Prohibition: torture1 other cruel1 inhuman1 or degrading treatment1 hostagetaking1rerisal

/uarantee: due rocess

ivilians in occuied territory: e!g! Muwait sec! #1 /< ase: ,est Dank of ordan

Kuring hostilities:

"<$1 $%1 P% distinguish: oulation and combatants; civilian and military;objectives

"E% civilians cannot be object of attack

rohibits acts or threats to violence or to sread terror no indiscriminate attack

"E2 civilian objects shall not be object of attack

"E# and %AE< onvention on ultural Proerty @ cultural roerty and laces of worshis1 rotected!

"E< objects indisensable for survival of civilians (e!g! foodstuffs1 agricultural

areas1 livestock1 water sulies1 irrigationB)

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"E7 installations containing dangerous forces (e!g! dams1 dykes1 nuclear

generating stationsB)

(iv) 8ethods of ,arfare

%$7$ Petersburg Keclaration PreambleGthe only le-itimate ob,ect 8hich states shoul! en!eavor to accomplish !urin- 8ar is to

8ea9en the military "orces o" the enemy!I

@ 'nternational law imoses constraint on the use of methods of warfare

ase: Le-ality o" the +hreat o" 3se o" Nuclear 5eaponsF ('1 %AA7) never use

weaons that :

%! are incaable of distinguishing between civilian and militarytargetsB

2! cause unnecessary suffering to combatantsB

#! cause (combatants) such harm or (aggravates) suffering!

Held: 'L ( no need to be arty to Hague Peace onference or /) Goverridingconsideration of humanityI

4ote: =n legality of ossession or threat or use of nuclear weaons not rohibited (for selfdefense) 0see 4uclear ,eaons 4onroliferation *reaty3

@ Kisallowed weaons:%! rojectiles (&t! Petersburg1 %$7$)

2! dumdum bullets (Hague1 %$AA)

#! ashyiating and deleterious gases (Hague1 %$AA) (/en! Prot!1 %A2E)

<! not detectible by ray (%A$C onventional ,eaons *reaty1 Prot! %)E! mines and booby tras v! civilians (P'' of %A$C ,*)

7! incendiary devices v! civilians or military objectives (P ''' of %A$C ,*)

4ote: rotect the environment from longterm and severe damage: "EE1 P%1 /; %A??

onvention on Prohibition of 8ilitary or any other Hostile Jse of .nvironmental

8odification *echni>ues

(v) &coe of "lication: 'nternational and 'nternal "rmed onflicts

ase: +a!ic case4 '*,6 @ G n arme! con"lict exists 8henever there is resort to arme! "orce bet8een States or

protracte! arme! violence bet8een -overnmental authorities an! or-ani:e! arme! -roups or

bet8een such -roups 8ithin a State!I @ *herefore1 "# of the '*,6 &tatute gave jurisdiction Gregardless of whether they occurred

within an internal or an international armed conflict!I

@ 4on 'nternational "rmed onflict ommon "# of %A<A / and P ''1 %A?? 4ote: may range from fullscale civil wars to minor disturbancesB

@ Protection accorded:

%! Persons taking no active art in hostilities to be treated humanely without any adverse

distinction based on race1 color1 religion or faith1 se1 birth or wealth!

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- Prohibited acts:

a! +iolence to life and erson b! Hostagetaking

c! =utrages uon human dignity

d! Passing of sentences and carrying out of eecutions in the absence

of due rocess2! ,ounded and sick are to be cared for

@ P ''1 %A??- Garmed forcesI v! Gdissident forcesI

*est:

a! 9esonsible command

b! .ercise such control over art of territoryc! "ble to carry out sustained and concerted military oerations

d! "ble to imlement P ''

- .cluded:

a! 'nternal disturbances

b! *ensionsc! 9iots

d! &oradic acts of violence

- &ecific rights:

a! Protection v! violence to life1 health b! Protection v! torture1 collective unishment1 hostagetaking1

terrorism

c! Protection v! outrage uon ersonal dignity1 raes and rostitution1 illage

d! Protection of children1 civilians

e! Protection of works5installations which may cause severe losses

f! Protection of dislaced civiliansg! Protection of risoners5detainees

h! Protection of wounded5sick

- GoutsideI threshold of "# and P ''

a! 'nternal strife being addressed by '9 (gray area: H9 and 'HL)

(vi) .nforcement of 'HL

@ Jse of GProtecting PowerI: &witerland; to look after nationals of one &tate in the control of

one of conflicting arties

@ 'nternational 6act 6inding (P'):@grave breaches of /

@ "d Hoc 'n>uiry (both arties) @ ,ar crimes: subject to universal jurisdiction (e!g! 4uremberg harter1 "7 individual

resonsibility for violations1 etcB)

@ 8artens lause 9ussian delegate (Hague)

%! Gunforeseen cases should1 in the absence of a written undertaking1 not to be left to the

arbitrary judgment of military commandersBI

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2! Gcivilians and combatants remain under the rotectionB of the rinciles of the law

of nations!I

(f) Te Ro)e Statute 2ICC3 and R.A. No. 4567 8&ili!!ine Act on Cri)e* A-ain*t

International "u)anitarian La%9 $enocide9 and Oter Cri)e* A-ain*t "u)anity

Part %!.stablishment of the ourt

*he ourt ("rticle %) omlementary to national criminal jurisdictions

9elationshi of the ourt with the Jnited 4ations ("rticle 2) "n agreement aroved by the "ssembly of &tates Parties

&eat of the ourt ("rticle #) *he Hague

8ay sit elsewhere1 whenever it considers it desirable

Legal &tatus and Powers of the ourt ("rticle <) 'nternational legal ersonality

8ay eercise its functions and owers on the territory of any &tate and1 by secial

agreement; on the territory of any other &tate

rimes within the urisdiction of the ourt ("rticle E) *he crime of genocide;

rimes against humanity;

,ar crimes;

*he crime of aggression!

/enocide ("rticle 7) "ny of the following acts committed with intent to destroy1 in whole or in art1 a

national1 ethnic1 racial or religious grou1 as such:

(a) Milling members of the grou;

(b) ausing serious bodily or mental harm to members of the grou;(c) Keliberately inflicting on the grou conditions of life calculated to bring about its

hysical destruction in whole or in art;

(d) 'mosing measures intended to revent births within the grou;

(e) 6orcibly transferring children of the grou to another grou!

rimes "gainst Humanity ("rticle ?) "ny of the following acts when committed as art of a widesread or systematic

attack directed against any civilian oulation1 with knowledge of the attack:

(a) 8urder;

(b) .termination;

(c) .nslavement;

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(d) Keortation or forcible transfer of oulation;

(e) 'mrisonment or other severe derivation of hysical liberty in violation of

fundamental rules of international law;(f) *orture;

(g) 9ae1 seual slavery1 enforced rostitution1 forced regnancy1 enforced

steriliation1 or any other form of seual violence of comarable gravity;(h) Persecution against any identifiable grou or collectivity;

(i) .nforced disaearance of ersons;

(j) *he crime of aartheid;(k) =ther inhumane acts!

,ar rimes ("rticle $) Part of a lan or olicy or as a art of a largescale commission of such crimes!

(a) /rave breaches of the /eneva onventions of %2 "ugust %A<A(i) ,illful killing;

(ii) *orture;(iii) ,illfully causing causing great suffering1 or serious injury to body

or health;(iv).tensive destruction and aroriation of roerty1 not justified by

military necessity;

(v) omelling a risoner to serve in the forces of a hostile Power;(vi)Keriving a risoner of the rights of fair and regular trial;

(vii) Jnlawful deortation or unlawful confinement;

(viii) *aking of hostages!

(b) =ther serious violations of the laws and customs alicable in international armed

conflict:(i) "ttacks against the civilian oulation;(ii) "ttacks against civilian objects;

(iii) "ttacks against ersonnel1 installations1 material1 units or vehicles

involved in a humanitarian assistance or eacekeeing;(iv)"ttack in the knowledge that such attack will cause incidental loss of life

or injury and severe damage to the natural environment;

(v) "ttacking towns1 villages1 dwellings or buildings which are undefended;(vi)Milling or wounding a combatant having laid down his arms;

(vii) 'mroer use of a flag of truce1 of the flag or of the military

insignia and uniform of the enemy or of the Jnited 4ations1 as well as of

the distinctive emblems of the /eneva onventions;(viii) *ransfer by the =ccuying Power of arts of its own civilian

oulation into the territory it occuies1 or the deortation or transfer of all

arts of the oulation of the occuied territory within or outside thisterritory;

(i)"ttacks against buildings dedicated to religion1 education1 art1 science or

charitable uroses1 historic monuments1 hositals and laces where thesick and wounded are collected;

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() Physical mutilation;

(i)Milling or wounding treacherously individual belonging to the hostile

nation or army;(ii) Keclaring that no >uarter will be given;

(iii) Kestroying or seiing the enemy’s roerty;

(iv) Keclaring abolished the rights and actions of the nationals of thehostile arty;

(v) omelling the nationals of the hostile arty to take art in the

oerations of war directed against their own country;(vi) Pillaging a town or lace;

(vii) .mloying oison;

(i) .mloying bullets which eand or flatten;

() .mloying weaons which are of a nature to cause suerfluousinjury rovided that such weaons are the subject of a comrehensive

rohibition;

(i) =utrages uon ersonal dignity;

(ii) ommitting rae or any other form of seual violence;(iii) Jtiliing the resence of a civilian to render certain oints immune

from military oerations;(iv) "ttacks against buildings1 material1 medical units and transort1

and ersonnel using the distinctive emblems of the /eneva onventions;

(v) Jsing starvation of civilians as a method of warfare ;(vi) .nlisting children under the age of %E

(c) 'n the case of an armed conflict not of an international character1 serious violations

of article # common to the four /eneva onventions of %2 "ugust %A<A:(i) +iolence to life and erson;

(ii) =utrages uon ersonal dignity;

(iii) *aking of hostages;(iv)Passing of sentences and the carrying out of eecutions without revious

judgement!

(d) Koes not aly to situations of internal disturbances;

(e) =ther serious violations of the laws and customs alicable in armed conflicts not

of an international character;

(f) Paragrah 2(e) alies to armed conflicts not of an international character whenthere is rotracted armed conflict between governmental authorities and organied

armed grous or between such grous!

urisdiction ration as is temoris ("rticle %%)

rimes committed after the entry into force of this &tatute!

'f a &tate becomes a Party to this &tatute after its entry into force1 jurisdiction only with

resect to crimes committed after the entry into force of this &tatute for that &tate1 unless

that &tate has made a declaration under article %21 aragrah #!

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Preconditions to the eercise of jurisdiction ("rticle %2) 'n the case of article %#1 ar! (a) or (c)1 the ourt may eercise its jurisdiction if one or

more of the following &tates are Parties to this &tatute or have acceted the jurisdiction of

the ourt in accordance with aragrah #;

(a) *he &tate on the territory of which the conduct in >uestion occurred or1 if the crimewas committed on board a vessel or aircraft1 the &tate of registration of that vessel

or aircraft;

(b) *he &tate of which the erson accused of the crime is a national!

'f the accetance of a &tate which is not a Party to this &tatute is re>uired under

aragrah 21 that &tate may1 by declaration lodged with the 9egistrar1 accet the eerciseof jurisdiction by the ourt with resect to the crime in >uestion!

.ercise of jurisdiction ("rticle %#) 9eferred to the Prosecutor by a &tate Party;

9eferred to the Prosecutor by the &ecurity ouncil acting under hater +'' of theharter of the Jnited 4ations; or

*he Prosecutor has initiated an investigation in resect of such crime

9eferral of a situation by a &tate Party ("rticle %<)

9e>uesting the Prosecutor to investigate the situation!

Prosecutor ("rticle %E) Prosecutor may initiate investigations motu proprio.

He or she shall submit to the Pre*rial hamber a re>uest for authoriation of an

investigation! 9efusal of the Pre*rial hamber to authorie the investigation shall not reclude the

resentation of a subse>uent re>uest by the Prosecutor based on new facts or evidence!

Keferral of investigation or rosecution ("rticle %7) 6or a eriod of %2 months after the &ecurity ouncil1 in a resolution adoted under

hater +'' of the harter of the Jnited 4ations!

'ssues of admissibility ("rticle %?)

" case is inadmissible where:

(a) being investigated or rosecuted by a &tate

(b) the &tate has decided not to rosecute the erson concerned(c) tried for conduct

'n order to determine unwillingness in a articular case

(a) shielding the erson

(b) unjustified delay

(c) not being conducted indeendently or imartially

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'n order to determine inability in a articular case1 a total or substantial collase or

unavailability of its national judicial systemPreliminary rulings regarding admissibility ("rticle %$)

*he rosecutor shall notify all &tates Parties

,ithin one month of receit of that notification1 a &tate may inform the ourt that it is

investigating or has investigated its nationals or others within its jurisdiction

hallenges to the jurisdiction of the ourt or the admissibility of a case ("rticle %A)

*he ourt may1 on its own motion1 determine the admissibility of a case!

hallenges to the admissibility of a case may be made by:

(a) "n accused or a erson for whom a warrant of arrest or a summons to aear has

been issued under article E$;(b) " &tate which has jurisdiction over a case1 on the ground that it is investigating or

rosecuting the case or has investigated or rosecuted or;

(c) " &tate from which accetance of jurisdiction is re>uired under article %2!

"dmissibility of a case or the jurisdiction of the ourt may be challenged only once byany erson or &tate referred to in aragrah 2! hallenge shall take lace rior to or at thecommencement of the trial! hallenges to the admissibility of a case1 at the

commencement of a trial1 or subse>uently with leave of the ourt1 may be based only on

article %?1 aragrah %(c)! 'f the ourt has decided that a case is inadmissible under article %?1 the Prosecutor may

submit a re>uest for a review of the decision!

Ne bis in !iem ("rticle 2C) 4o erson shall be tried before the ourt with resect to conduct which formed the basis

of crimes for which the erson has been convicted or ac>uitted by the ourt! Jnless the roceedings in the other court:

(a) ,ere for the urose of shielding the erson;

(b) =therwise were not conducted indeendently or imartially in accordance with the

norms of due rocess recognied by international law!

"licable law ("rticle 2%) 'n the first lace1 this &tatute1 .lements of rimes and its 9ules of Procedure and

.vidence;

'n the second lace1 alicable treaties and the rinciles and rules of international law1

including the established rinciles of the international law of armed conflict; 6ailing that1 general rinciles of law1 the national laws of &tates that would normally

eercise jurisdiction over the crime; Princiles and rules of law as interreted in its revious decisions!

Part #!/eneral Princiles of riminal Law

Nullum crimen sine le-e ("rticle 22)

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onduct in >uestion constitutes1 at the time it takes lace1 a crime within the jurisdiction

of the ourt!

Nulla poena sine le-e ("rticle 2#)

Punished only in accordance with this &tatute!

4onretroactivity ratione personae ("rticle 2<) Prior to the entry into force of the &tatute!

'ndividual criminal resonsibility ("rticle 2E) 4atural ersons;

'ndividually resonsible;

" erson shall be criminally resonsible and liable for unishment for a crime if that

erson:(a) ommits such a crime1 whether as an individual1 jointly with another or through

another erson1 regardless of whether that other erson is criminally resonsible;(b) =rders1 solicits or induces the commission of such a crime which in fact occurs or is

attemted;(c) 6or the urose of facilitating the commission of such a crime1 aids1 abets or

otherwise assists in its commission or its attemted commission1 including

roviding the means for its commission;(d) 'n any other way contributes to the commission or attemted commission of such a

crime by a grou of ersons acting with a common urose;

(e) 'n resect of the crime of genocide1 directly and ublicly incites others to commitgenocide;

(f) "ttemts to commit such a crime by taking action that commences its eecution by

means of a substantial ste1 but the crime does not occur because of circumstancesindeendent of the erson’s intentions!

9esonsibility of &tates under international law!

.clusion of jurisdiction over ersons under eighteen ("rticle 27)

'rrelevance of official caacity ("rticle 2?) &tatute shall aly e>ually to all ersons without any distinction based on official

caacity! 'n articular1 official caacity as a Head of &tate or /overnment1 a member of a

/overnment or arliament1 an elected reresentative or a government official shall in no

case eemt a erson from criminal resonsibility under this &tatute1 nor shall it1 in andof itself1 constitute a ground for reduction of sentence!

'mmunities or secial rocedural rules which may attach to the official caacity of a

erson1 whether under national or international law1 shall not bar the ourt from

eecuting its jurisdiction over such a erson!

9esonsibility of commanders and other sueriors ("rticle 2$)

8ilitary commander or erson

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(i) .ither knew or owing to the circumstances at the time1 should have known that the

forces were committing or about to commit such crimes;

(ii) 6ailed to take all necessary and reasonable measures within his or her ower to revent or reress their commission or to submit the matter to the cometent

authorities for investigation and rosecution!

&uerior and subordinate relationshis

(i) &uerior either knew or consciously disregarded information which clearly

indicated1 that the subordinates were committing or about to commit such crimes;(ii) rimes concerned activities that were within the effective resonsibility and control

of the suerior;

(iii) &uerior failed to take all necessary and reasonable measures within his or her ower to revent or reress their commission or to submit the matter to the

cometent authorities for investigation and rosecution!

4onalicability of statute of limitations ("rticle 2A)

&hall not be subject to any statute of limitations!

8ental element ("rticle #C) " erson has intent

(a) 'n relation to conduct1 that erson means to engage;

(b) 'n relation to a conse>uence1 that erson means to cause that conse>uence;

/rounds for ecluding criminal resonsibility ("rticle #%) 8ental disease or defect;

&tate of intoication;

"cts reasonably to defend himself or herself or another erson or1 in the case of war

crimes1 roerty which is essential for the survival of the erson or another erson or roerty which is essential for accomlishing a military mission1 against an imminent andunlawful use of force in a manner roortionate to the degree of danger to the erson or

the other erson or roerty rotected; aused by duress!

8istake of fact or mistake of law ("rticle #2) 8istake of fact ground for ecluding criminal resonsibility only if it negates the mental

element!

8istake of law not a ground for ecluding criminal resonsibility! 8ay be a ground for

ecluding criminal resonsibility if it negates the mental element re>uired by such a

crime or as rovided for in article ##!

&uerior orders and rescrition of law ("rticle ##) Person was under a legal obligation to obey orders!

Person did not know that the order was unlawful!

=rder was not manifestly unlawful!

=rders to commit genocide or crimes against humanity are manifestly unlawful!

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*he 9egistry ("rticle <#) 4onjudicial asects

udges elect the 9egistrar

*erm of five years

9emoval from office ("rticle <7) &erious misconduct or a serious breach of duties!

Jnable to eercise the functions!

8ade by the "ssembly of &tates Parties!

Privileges and immunities ("rticle <$) &ame rivileges and immunities as are accorded to heads of dilomatic missions and after

the eiry of their terms of office!

=fficial and working languages ("rticle EC) =fficial languages

"rabic hinese

.nglish 6rench

9ussian

&anish ,orking languages

.nglish

6rench

9ules of Procedure and .vidence ("rticle E%) onflict between the &tatute and the 9ules1 the &tatute shall revail!

Part E! 'nvestigation and Prosecution

'nitiation of an investigation ("rticle E#) Prosecutor may reconsider a decision based on new facts or information!

Kuties and owers of the Prosecutor with resect to investigation("rticle E<)

Prosecutor may conduct investigations on the territory of a state!

9ights of ersons during an investigation ("rticle EE) 4ot be comelled to incriminate himself or herself!

4ot be subjected to coercion1 duress or threat1 torture or cruel1 inhuman or degrading

treatment or unishment! "ssistance of a cometent interreter!

4ot be subjected to arbitrary arrest or detention!

'nformed1 rior to being >uestioned that there are grounds to believe that he or she has

committed a crime!

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9emain silent!

Legal assistance!

Ruestioned in the resence of counsel!

9ole of the Pre*rial hamber in relation to a uni>ue investigative oortunity ("rticle E7) *ake testimony which may not be available subse>uently for the urose of a trial!

6unctions and owers of the Pre*rial hamber ("rticle E?) Protection and rivacy of victims and witnesses1 reservation of evidence1 rotection of

ersons who have been arrested! &eek the cooeration of &tates to take rotective measures for the urose of forfeiture!

"rrest roceedings in the custodial &tate ("rticle EA) Defore the cometent judicial authority in the custodial &tate!

9ight to aly for interim release ending surrender!

Pre*rial hamber shall be notified of any re>uest for interim release!

'nitial roceedings before the ourt ("rticle 7C)

Pre*rial hamber shall satisfy itself that the erson has been informed of the crimes!

onfirmation of the charges before trial ("rticle 7%) Pre*rial hamber shall hold a hearing to confirm the charges on which the Prosecutor

intends to seek trial; Hearing in the absence of the erson charged;

,aived right;

6led or cannot be found; Ketermine whether there is sufficient evidence to establish substantial grounds to believe

that the erson committed each of the crimes charged; =nce the charges have been confirmed the Presidency shall constitute a *rial hamber!

Part 7! *he *rial

Place of trial ("rticle 72) *he seat of the ourt!

*rial in the resence of the accused ("rticle 7#)

6unctions and owers of the *rial hamber ("rticle 7<) 6air and eeditious;

Production of evidence;

Protection of the accused1 witnesses and victims;

Public;

9ead to the accused the charges;

9ule on the admissibility or relevance of evidence!

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Proceedings on an admission of guilt ("rticle 7E) onsider the admission of guilt1 together with any additional evidence!

Presumtion of innocence ("rticle 77)

Deyond reasonable doubt!

9ights of the accused ("rticle 7?) Public hearing;

*o be informed of the nature1 cause and content of the charge;

*o be resent at the trial;

*o eamine witnesses;

"ssistance of a cometent interreter;

4ot to be comelled to testify or to confess guilt and to remain silent;

*o make an unsworn oral or written statement!

"rticle 7$ Protection of the victims and witnesses;

Proceedings in camera!

.vidence ("rticle 7A) =ral or recorded testimony!

=ffences against the administration of justice ("rticle ?C) /iving false testimony;

orrutly influencing a witness;

orrutly influencing an official of the ourt; 'mrisonment not eceeding five years;

&anctions for misconduct before the ourt ("rticle ?%)

Protection of national security information ("rticle ?2)

*hirdarty information or documents ("rticle ?#) onsent of the originator to disclose!

9e>uirements for the decision ("rticle ?<)

Keliberations remain secret; Kecision shall be in writing!

9earations for victims ("rticle ?E)

&entencing ("rticle ?7) Pronounced in ublic1 in the resence of the accused!

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Part ?! Penalties

"licable enalties ("rticle ??) 8aimum of #C years;

Life imrisonment when justified by the etreme gravity;

6orfeiture!

Ketermination of the sentence ("rticle ?$) Keduct the time sent in detention!

*rust 6und ("rticle ?A) Denefit of victims of crimes!

4onrejudice to national alication of enalties and national law ("rticle $C)

Part $! "eal and 9evision

"eal against decision of ac>uittal or conviction or against sentence ("rticle $%) Prosecutor may make an aeal:

Procedural error;

.rror of fact;

.rror of law!

onvicted erson1 or the Prosecutor on that erson’s behalf1 may make an aeal:

Procedural error;

.rror of fact;

.rror of law!

/round that affects the fairness or reliability of the roceedings!

"eal against other decisions ("rticle $2)

Proceedings on aeal ("rticle $#)

9evision of conviction or sentence ("rticle $<) 4ew evidence;

Kecisive evidence was false;

=ne or more of the judges has committed act of serious misconduct!

omensation to an arrested or convicted erson ("rticle $E) Jnlawful arrest;

9eversed conviction;

8anifest miscarriage of justice!

Part A! 'nternational ooeration and udicial "ssistance

9e>uests for cooeration: general rovisions ("rticle $?)

EE

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Kilomatic channel or any other;

'nternational riminal Police =rganiation or any aroriate regional organiation;

Protection of information;

,here a &tate Party fails to comly with a re>uest to cooerate1 refer the matter to the

"ssembly of &tates Parties or to the &ecurity ouncil!

"vailability of rocedures under national law ("rticle $$)

&urrender of ersons to the ourt ("rticle $A) 9e>uest for the arrest and surrender of a erson to any &tate on the territory of which that

erson may be found; 'f the erson sought is being roceeded against or is serving a sentence in the re>uested

&tate for a crime different from that for which surrender to the ourt is sought1 consult

with the ourt!

ometing re>uests ("rticle AC)

9e>uest from the ourt for the surrender of a erson1 also receives re>uest from any other &tate for the etradition of the same erson for the same conduct;

4otify the ourt!

ontents of re>uest for arrest and surrender ("rticle A%) 'n writing! 'n urgent cases1 any medium caable of delivering a written record;

'ssued by the Pre*rial hamber suorted by:

Kescribing the erson;

oy of the warrant of arrest;

Kocuments necessary to meet the re>uirements for the surrender1 if ossible1

should be less burdensome!

Provisional "rrest ("rticle A2) 'n urgent cases1 ending resentation of the re>uest for surrender!

=ther forms of cooeration ("rticle A#)

'dentification and whereabouts of ersons;

*aking of evidence;

Ruestioning of any erson;

&ervice of documents;

6acilitating the voluntary aearance;

*emorary transfer of ersons; .amination of laces;

.ecution of searches and seiures;

Provision of records and documents;

Protection of victims and witnesses;

6reeing or seiure of roceeds1 roerty and assets for the urose of eventual

forfeiture;

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9ole of &tates in enforcement of sentences of imrisonment ("rticle %C#) &erved in a &tate designated by the ourt from a list of &tates which have indicated to the

ourt their willingness to accet sentenced ersons!

hange in designation of &tate of enforcement ("rticle %C<) &entenced erson may aly to the ourt to be transferred!

.nforcement of the sentence ("rticle %CE) &entence of imrisonment shall be binding on the &tates Parties!

&uervision of enforcement of sentences and conditions of imrisonment ("rticle %C7) onsistent with widely acceted international treaty standards!

*ransfer of the erson uon comletion of sentence ("rticle %C?) "roved by the ourt!

Limitation on the rosecution or unishment of other offences ("rticle %C$)

.nforcement of fines and forfeiture measures ("rticle %CA) Proerty1 or the roceeds of the sale of real roerty shall be transferred to the ourt!

9eview by the ourt concerning reduction of sentence ("rticle %%C)

&erved two thirds of the sentence1 or 2E years in the case of life imrisonment!

.scae ("rticle %%%)

Part %%! "ssembly of &tate Parties

"ssembly of &tate Parties ("rticle %%2) =ne reresentative may be accomanied by alternates and advisers!

Dureau: President1 two +icePresidents and %$ members elected by the "ssembly for

threeyear terms!

Part %2! 6inancing

6inancial 9egulations ("rticle %%#)

Payment of eenses ("rticle %%<)

6unds of the ourt and of the "ssembly of &tates Parties ("rticle %%E) "ssessed contribution;

6unds rovided by the Jnited 4ations!

+oluntary contributions ("rticle %%7)

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"ssessment of contributions ("rticle %%?)

"nnual audit ("rticle %$)

Part %#! 6inal lauses

&ettlement of disutes ("rticle %%A)

Kecision of the ourt;

"ny other disute between two or more &ates Parties referred to the "ssembly of &tates

Parties! "ssembly may itself seek to settle or may make referral to the 'nternational ourt

of ustice!

9eservations ("rticle %2C)

4o reservations!

"mendments ("rticle %2%)

.iry of seven years1 submitted to the &ecretary/eneral of the Jnited 4ations;

"mendments to rovisions of an institutional nature ("rticle %22)

9eview of the &tatute ("rticle %2#)

*ransitional Provision ("rticle %2<)

8ay declare that1 for a eriod of seven years after the entry into force of this &tatute for

the &tate concerned1 it does not accet the jurisdiction of the ourt with resect to thecategory of crimes referred to in article $ when a crime is alleged to have been committed

by its nationals or on its territory!

&ignature1 ratification1 accetance1 aroval or accession ("rticle %2E)

.ntry into force ("rticle %27)

,ithdrawal ("rticle %2?)

"uthentic tets ("rticle %2$)

Case %tud"

A!!lication of International Cri)inal La% to &ili!!ine Munici!al La%: R.A. 4567; I**ue*

and Concern*

Preliminary onsiderations hater ': Keclaration of Princiles

%! Koctrine of 'ncororation @ -enerally accepte! principles o" *.L. /par. a;

2! "dotion of 'HL /par. !;

#! 6air *rial @ "ollo8 international stan!ar!s /par. ";<! 4o imlied recognition of belligerency @ shall not a""ect le-al status o" the parties

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to a con"lict /par. -;

hater '' @ Kefinition

%! "rmed onflict /par. c; &tate v! &tate ('nternational haracter)

Protracted "rmed +iolence: /overnment v! =rganied "rmed /rous (4on'nternational)

"rmed /rous v! "rmed /rous (4on'nternational)

(4P" v! 8'L6)(8'L6 v! "&/)

2! &tandards of "rmed 6orces /par. !;

a! 9esonsible ommand b! Kiscilinary &ystem

c! omliance with 'HL

#! .nforced or 'nvoluntary Kisaearance &tate or olitical organiation (4on&tate "ctor)

4ote: =nly instance 4&" mentioned (-)<! 6orced regnancy

*o affect ethnic comosition ("frica1 Dosnia)

E! Perfidy (ar! j) Detrayal of confidence of an adversary

7! Protected Person (ar! >)

&tateless or 9efugee

hater ''': rimes "gainst 'nternational Humanitarian Law1 /enocide and =ther

rimes "gainst Humanity

%! ,ar rimes @ 6our (<) /eneva onventions and Protocols

a! 'nternational "rmed onflict ,illful killing

*orture

,anton destruction of roerty (outside military necessity)

Jnfair trial of P=,

"rbitrary deortation

Hostagetaking

6orced military service

Jnjustifiable delay in reatriation of risoners

b! 4on'nternational "rmed onflict

ommon "# of /eneva onventions violations @ willful killing1 torture1 outragesuon ersonal dignity1 hostagetaking1 no judicial rocess

c! =ther serious violations of customs alicable in armed conflict /uide to tye of violations:

%! "ttacks vs! noncombatants1 eacekeeing missions

2! "ttacks vs! nonmilitary targets#! &evere damage to environment

<! 'mroer use of flag of truce1 enemy uniform1 rotective signs

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E! Physical mutilation or scientific eerimentation of subject ersons

7! Perfidy

?! Kislacement of civilian oulation$! *orture1 humiliation

A! &eual violence

%C! 'nhumane methods of warfare2! /enocide @ destroy a stable grou (national1 ethnic1 racial1 religious or social)

#! =ther rimes "gainst Humanity @ widesread or systematic attack v! civilian

oulation

hater '+ @ Penal Provisions

9eclusion temoral @ acts under &ecs! <7

9eclusion eretua @ etreme gravity (e!g!1 with death1 rae) Prision mayor @ inciting to commit genocide

hater +: &ome Princiles of riminal Liability

%! 'ndividual riminal 9esonsibilities (rincial1 accomlice1 attemt to commit)

2! 'rrelevance of =fficial aacity/9 @ no immunity

.cet: (a) President (onstitution)

(b) Kilomatic (*reaty)#! 9esonsibility of &ueriors

(a) "ctual or resumed knowledge; and

(b) 6ailure to address1 investigate or rosecute<! 'mrescritibility

E! =rders from a &uerior

4ote: .culatory if

(a) Jnder legal obligation to obey(b) Lack of knowledge of unlawfulness of order

(c) =rder not manifestly unlawful

4ote: Gmanifestly unlawfulI @ genocide1 crimes v! humanity

hater +': Protection of +ictims and ,itnesses

%! Protection of +ictims and ,itnesses

/ender and hild &ensitivity .cetion to ublic trial

in camera

electronic evidence resentation

Limit on access to information

2! 9earations to +ictims 9estitution1 comensation1 rehabilitation

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hater +'': "licability of 'nternational Law and =ther Laws

%! "licability of 'nternational Law

(a) *he %A<$ /enocide onvention;

(b) *he %A<A /eneva onventions ''+1 their %A?? "dditional Protocols ' and '' and

their 2CCE "dditional Protocol ''';(c) *he %AE< Hague onvention for the Protection of ultural Proerty in the .vent

of "rmed onflict1 its 6irst Protocol and its %AAA &econd Protocol;

(d) *he %A$A onvention on the 9ights of the hild and its 2CCC =tional Protocol onthe 'nvolvement of hildren in "rmed onflict;

2! &uletory "lication of the 9evised Penal ode and =ther /eneral or &ecial Laws

hater +''': urisdiction

%! urisdiction @ Guniversal jurisdictionI

(a) *he accused is a 6iliino citien;

(b) *he accused1 regardless of citienshi or residence1 is resent in the Philiines; or (c) *he accused has committed the said crime against a 6iliino citien!

Note Keferrence to another court outside 9!P!

Kouble jeoardy

9* @ designated secial courts

2-3 O<er<ie% of Funda)ental &rinci!le* on International En<iron)ental (u*tice

'! 'ntroduction: &coe of 'n>uiry

"! oncet of .nvironment Dasic .lements of the .arth: air1 land and water

"ll living elements of the earth as well as natural resources

Holistic: lace of humans in the environment

D! *heory of .nvironmental ustice Laarus @ G.nvironmental ustice focuses on the distribution of environmental

haards across society and seeks a fair distribution of those haards I

Hofrichter’s @ G e>ual access to natural resources and the rights to clean air

and water1 ade>uate health care1 affordable shelter1 and a safe worklace !I

''! Preliminary onsiderations

"! .nvironmental Protection v! Keveloment%! Drundtland ommission (%A$?): G&ustainable KevelomentI

integrates environmental and develomental asirations at all levels of decision

making!

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Gdeveloment that meets the needs of the resent without comromising the

ability of future generations to meet their own needs!I

D! Legal haracteriation of .nvironmental Protection Princiles

%! hallenging *raditional Legal &ystems (not indigenous law) as GimedimentsI

(i) concet of right and duty bearers: only the living(ii) only human beings as ossessed with rights

(iii) absolute freedom of contract

(iv) absolute ownershi

2! &hifting 4otion of &tate &overeignty: 6rom individualist to socially oriented @

Gollution does not recognie the doctrine of state sovereignty as it roceeds beyond state boundariesI

'''! Keveloment of 4ormative &tandards in .nvironmental Protection

"! &tockholm Keclaration (%A?2)

Princile % @ Gfundamental right to ade>uate conditions of life1 in an environment of

a >uality that ermits a life of dignity and wellbeing1 and a solemn resonsibility to

rotect and imrove the environment for resent and future generations !I

Princile 2% @ Gstates have1 in accordance with the harter of the Jnited 4ations and the

Princiles of 'nternational Law1 the sovereign right to eloit their own resources ursuant to their own environmental olicies1 and the resonsibility 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!I

D! Drundtland 9eort (%A$?)

e!g! intergenerational and intragenerational e>uity @ Ge>uitableI access toenvironmental resources both within the resent generation as well as for future

generations

e!g! recautionary rincilee!g! maintenance of biological diversity and biological integrity

C. ,orld harter for 4ature (%AA2)

9esect for nature; rinciles of conservation of the environment; eloitation of nonrenewable resources with restraint; use of best available technologies!

K! 9io Keclaration (%AA2) and "/.4K" 2%

Princile % @ GHuman beings center of concerns for sustainable develoment

entitled to a healthy and roductive life in harmony with nature!I

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Princile # @ G meet needs of resent and future generations!I

Princile $ @ G environmental rotection an integrated art of develomental rocess !I

Princile %C @ G articiation of all concerned citiens I

@ G access to information concerning the environment I

@ G effective access to judicial and administrative roceedings I

Princile %E

@ G the recautionary aroach shall be widely alied by states according to their caabilities! ,here there are threats of serious or irreversible damage1 lack of full

scientific certainty shall not be used as reason for ostoning costeffective measures to

revent environmental degradation!I

Princile %7

@ G the olluter should1 in rincile1 bear the cost of ollution1 I

Princile %?

@ G .'" as a national instrument I

'+! *he ore .nvironmental Law 9ights and Kuties 'n 9elation to Philiine onstitutional

Law 6ramework

A. 9ight to Life and Health

INTERNATIONAL CONSTITUTION

Gratio legisI (.=&=) of

environmental law more than absence of illness

,!H!=! Gthe attainment by all citiens

of a level of health that will ermit them to lead a socially and

economically roductive lifeI Health roblems related to

environmental living conditions; healthstatus is a first indicator of

environmental degradation I

"#1 &!% (life) in relation to "21

&!%E (health) and %7 (ecology)1"%#1 &!%%%# (health)

D! 6reedom of "ssociation

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" 2C1 JKH9

" 2%1 'P9

"#1 &!$ (association) in relation to

"21 &!%$ (labor)1 "%#1 &!# (labor)1

"%#1 &!%E%7 (eole’s

organiations)

C. 9ight to "ccess to 'nformation and Particiation


" %A1 JKH9

" %A1 'P9

Princile %C: 9io Keclaration (access

to environmental information) Princiles %$ and %A (notification in

transboundary environmental disasters)

"#1 &!? (matters of ublic concern)

D. &ectoral oncerns


7. Indi-enou* &eo!le*

'L= %7A (*ribal Poulation)

J4K9'P&1 2CC?

Princile 221 9io Keclaration U

hater 271 "genda 2%

"%21 &!E (ancestral domain) in

relation to "21 &!22 (indigenous eoles)1 "%C1 &!%E2%

(autonomous region)1 "%#1 &!7

(ancestral lands)

=. Wo)en

Princile 2C1 9io Keclaration %AA# +ienna Keclaration

Part %1 ar (%$) @ Ge>ual

articiation of womenI

"21 &!%< (women)1 "%#1 &!%<

(women)

>. Cildren

"rticle 2A1 ar A (e)1 9

"21 &!%2 (child) and %# (youth)

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?. Mi-rant Wor@er*

8igrant ,orkers’ onvention

"%#1 &!# (overseas workers)

6. Di*a0led

.nvironmental factors often

resonsible for disability

"%#1 &!%% (disabled)

. Refu-ee*9 Internally Di*!laced and

/icti)* of Ar)ed Conflict

Keterioration of environment as a

main cause of dislacement %A?? Protocol % "dditional to 6our

/eneva onventions of %A<A"rticle #E1 ar! # @ rohibited

means of warfare"rticle EE @ attacks v! environment

Princile 27 of &tockholm

Keclaration1 ars! E and 2C of ,orld harter

Princile 2< of 9io Keclaration

9!"! 4o! A$E% ('HL)

+! oncluding =bservations: Paradigm &hift and 4ormative reativity

urisrudence:

Oposa v. 0actoran @ intergenerational resonsibility

Zia v. 5ap!a @ citien’s suit; recautionary rincile

0aroo2ue v. Ban-la!esh @ locus standi

%ehta v. Mamal Nath @ ublic trust; olluter ays

%%D v. #oncerne! #iti:ens @ continuing mandamus (cleanu of 8anila Day)

Documents

PIL Pre-bar 2013