Obligation Erga Omnes

PUBLIC INTERNATIONAL LAW A.
Concepts Obligation erga omnes: Refer to obligations which by virtue of their nature and importance, are the concern of all the States and for whose protection all States have a legal interest. It literally means towards all E.g., outlawing genocide, as well as protection from slavery and racial discrimination. Jus cogens: a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. (A. 53, VCLT) Elements: 1. NORM accepted and recognized 2. By the international community of States as a whole 3. Of which NO derogation is permitted 4. And can ONLY BE MODIFIED by a subsequent norm having the same character. NOTE: If a treaty at the time of conclusion conflicts with jus cogens, it is VOID. Jus Cogens Refers to duties which every State owes to the international community as a whole. A norm from which no derogation is permitted, and can only be modified by a subsequent norm of general international law having the same character. Jus Dispositivum disposable law refer to norms of ordinary customary international law derived from the consent of the States (only bind consenting States)
As to source: ML is a product of local custom or legislation and PIL is sourced from treaties and custom grown among states. As to relations to regulate: ML regulates relations between individual persons under the state, while PIL regulates relations between states. As to substance: ML is the law of the sovereign over individuals while PIL is a law between sovereign states. Which prevails: ML must prevail (Dualists are positivistsstrong emphasis on state sovereignty)
Monistic Theory: PIL and ML belong to only one system of law. Monism Theory 1: ML subsumes and is superior to PIL. Monism Theory 2: PIL is superior to ML (this theory is supported by Kelsen); this superiority stems from a deep suspicion of local sovereigns and from the conviction that PIL imbues the domestic order with a sense of moral purpose. How international law becomes municipal law for dualists: 1. Transformation - for PIL to become part of ML, it must be expressly and specifically transformed into domestic law through legislation or any other appropriate machinery. Treaties do not become part of the law of the land unless the State consents to it. 2. Incorporation - When any question arises which is properly the object of its
jurisdiction; the law of nations is adopted by common law, and becomes part of the law of the land.
NOTE: Incorporation only applies to customary law and treaties which have formed part of customary law, because the 1987 Constitution also provides that treaties have to be ratified. The Philippines applies BOTH principles. The doctrine of incorporation is embodied in 2, Art. II of the Constitution as it adopts the generally accepted principles of international law as part of the law of the land. ALL OTHER forms of international law (treaties etc.) require some other positive act from the government under the transformation theory. In the Phils., this is undertaken through the treaty-making power of the President, with the requisite Senate concurrence. Conflicts: o International rule: cannot invoke domestic provisions, unless violation was manifest and concerned rule of internal law of fundamental importance. Municipal law (when before domestic court): Usually given construction consistent with international law If there conflict between law and treaty: The one passed on a later date prevails, since they are of same rank (lex posterior derogate priori) Conflict between State Constitution and treaty: Treaty is not valid and operative as domestic law; the SC has the power to declare the treaty invalid. However, this does not mean that the theory is declared unconstitutional or that it loses its international character.
Ex aequo et bono: Literally means according to the right and good. Under the ICJ statute, the court can only decide cases ex aequo et bono, when the parties agree thereto. This pertains to a situation where there is no applicable rule of law (including an equitable rule), so the parties agree to the judge deciding in accord with what he thinks is right and good under the circumstances. DISTINCTION BETWEEN EQUITY AND EX AEQUO ET BONO 1. Equity when the law cannot cover every possible situation for the purpose of deciding a controversy, the case may be decided based on equitable principles 2. Ex Aequo Et Bono it pertains to the power of the ICJ to decide a case equitably outside the rules of law, at the instance of the parties to the case B. International Law and National Law Conflict between International Law and Municipal LawDualism vs. Monism Dualist/pluralist theory: International law (PIL) and municipal law (ML) are essentially different, and that International law has no role in domestic conflicts.
Fitzmaurice Compromise Assuming under the dualist theory that international and national law do not operate in the same field, they can never come into conflict. Each one of them is supreme in their own domain, thereby any apparent conflict in
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Political Law Review 2013 PUBLIC INTERNATIONAL LAW
the domestic field is automatically settled by the domestic conflict rules of the forum, and any conflict in the international field would be resolved by international law. C. Sources of PIL Article 38, ICJ Statute: 1. International conventions, whether general or particular, establishing rules expressly recognized by contesting states (i.e., VCLT) 2. International custom, as evidence of a general practice accepted as law (i.e., prohibition against genocide, torture, slavery, crimes against humanity) 3. General principles of law recognized by civilized nations (i.e., pacta sunt servanda, res judicata, due process) 4. Judicial decisions and teachings of most highly qualified publicists (subsidiary means) Treaties A treaty is an international agreement concluded between States in written form, and governed by international law whether embodied in a single instrument or in two or more related instruments and whatever its particular designation. (Vienna Convention) Elements of a treaty1. In writing; 2. Reflective of the intention of the parties to be bound; 3. Governed by international law Some writers believe that even oral agreements can by binding. However, only written agreements can be subject to the provisions of the Vienna Convention. But no particular form is prescribed. o Pacta sunt servanda obligation to honor agreement Party may not invoke provisions of internal law Except: violated laws of fundamental importance A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. (Article 46 of the Convention), and Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory.
C. Generality - It is sufficient that the conduct of states should be consistent with such rules and that state conduct inconsistent with it should be considered as breaches, not proof of a new rule in place. o But possible to bind only several states or even just two countries 2. Opinio juris sive necessitates This is the psychological factor, the belief by a State that certain behavior is obligatory, and that they were under a legal obligation to act that way. UN Resolutions are not sources of International Law per se but may be evidence of opinio juris Dissenting States Are still bound by custom except if they were persistent objectors since formation of the rule (Anglo-Norwegian Fisheries) A State joining the system after the practice has become law: BOUND o Martens Clause: Places the laws of humanity and dictates of public conscience placed on same level as usages of States or usus thus no need for thousands of civilians to be killed before ban becomes effective. General principles of Law: It references municipal law principles common to legal systems of the world and are evidence of the fundamental unity of law, most of them incorporated into conventional international law. o Principles of municipal law common to legal systems (i.e., good faith, estoppel, unjust enrichment) o Equity may either fall under this source or under ex aequo o Different kinds of equity: 1. Intra legem within law 2. Praeter legem beyond law 3. Contra legem against law Judicial decisions and teachings of highly qualified publicists: Judicial decisions: Article 38 directs the court to apply these in a subsidiary manner in the determination of the rules of law, subject to Article 59 (on res judicata of ICJ cases as only being between parties). Cases decided by the ICJ are considered highly persuasive in international law circles and have contributed to the formation of international law, e.g. arbitral decisions have been instrumental in the formation of PIL principles. Teachings of highly qualified writers and publicists: In cases of first impression, the court reluctantly makes reference to writers since they are the only available sources. Publicists are institutions which write on PIL, but this may bear potential national biasbeing primarily government-sponsored entitiessuch as: The International Law Commission (a UN organ), the Institut de Droit International, the International Law Association (a multinational body), the Restatement, and the annual Hague Academy of International Laws annual publication. D. Subjects of PIL Subject Has rights and duties under IL. Directly governed by the rules of Object Does NOT have rights and duties but are merely the object of a subjects rights and duties. Indirectly governed by the rules of
Conflict between treaties and custom: Whichever is later should prevail. Although there must be effort to reconcile them to comply with pacta sunt servanda (esp. If the treaty is earlier) But if treaty contradicts jus cogens custom prevails Custom: A general and consistent practice of states followed by them from a sense of legal obligation. (Restatement) Contains the basic elements of custom: the material factor (how states behave) and the psychological or subjective factor (why states behave the way they do) Basic elements: 1. State practice A. Duration o Exception: instant custom If within a short period of time, State Practice has become uniform and extensive. Coming about as a spontaneous activity of a great no. of states supporting a specific line of action. B. Consistency - involves continuity and repetition.
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international law. It can be a proper party in transactions involving the application of international law among members of the international community.
international law. Its rights are received and obligations imposed, indirectly through the instrumentality of an international agency.
1. State Elements of a State: (Montevideo Convention) a) Permanent population b) Defined territory Even if boundaries not finally settled c) Government Temporary absence of government does not terminate existence of the State d) Capacity to enter into relations with other States (sovereignty) Independence from outside control Dependent on recognition (an entity may possess all elements but if some States do not recognize it, it cannot establish relations) Recognition of States: A. Declaratory view recognition is merely declaratory of the possession of required elements B. Constitutive theory recognition is what confers legal personality to a State NOTE: As long as State meets requirements of State it cannot be derecognized Recognition of government: o If ordinary constitutional procedure recognition of new government is just a matter of course. o It is a political act and mainly a matter of policy on the part of each state; it is discretionary on the part of the recognizing authority; and it is exercised by the political (executive) department of the state. Thus, the legality and wisdom of recognition is not subject to Judicial review. Requirements for Recognition of Government: The government is stable and effective, with no substantial resistance to its authority; the government must show willingness and ability to discharge its international obligations; and the government must enjoy popular consent or approval of the people. Kinds of Recognition. May be express or implied: may also be: 1. De facto: Extended by the recognizing state which believes that some of the requirements for recognition are absent. The recognition is generally provisional and limited to certain juridical relations; It does not bring about full diplomatic intercourse and does not give title to assets of the state held/situated abroad. 2. De jure: Extended to a government fulfilling the requirements for recognition. When there is no specific indication, recognition is generally considered as de jure. The recognition is relatively permanent; brings about full diplomatic intercourse and observance of diplomatic immunities; and confers title to assets abroad. o Just because a State doesnt recognize the existence of a government, a de facto government still exits and can create private rights (Upright v Mercury Business Machines) o Mere recognition of a government does not mean approval.
Principle of Self Determination in relation to Statehood The right to independence for the people of non self-governing territories and people subject to alien subjugation, domination and exploitation. 1. Internal Self-determination a peoples pursuit of its political, social, economic and cultural development within the framework of an existing state. 2. External Self-determination The establishment of a sovereign and independent State, the free association or integration with an independent State, or the emergence into any other political status freely determined by a people. Independent Freedom to direct and control foreign relations without restraint from other states. Dependent An entity which, although theoretically a state, does not have full freedom in the direction of its external affairs. Neutralized Independence and integrity are guaranteed in an international treaty on the condition that such state obligates itself never to take up arms agaisnt any other state, or to enter into an international obligation as would indirectly involve it in war.
a. b.
Simple Composite 1) Real Union 2 or more states merged under a unified authority so that they form a signle international person throguh which they act as one entity. 2) Federal Union combination of 2 or more states resulting in the creation of a new state with full international personality.
a.
b.
Protectorate established at the request of the weaker state for the protection by a strong power Suzerainty the result of a concession from a state to a former colony
Succession Succession of States. May be universal or partial. Consequences are: political laws are abrogated [People vs. Perfecto, 43 Phil. 887] while municipal laws remain in force [Vilas vs. City of Manila, 229 U.S. 345]; treaties are discontinued, except those dealing with local rights and duties, such as those establishing easements and servitudes; all rights of the predecessor state are inherited, but successor state can assume and reject liabilities at its discretion. [Note: In Halle Selassie vs. Cable Wireless, it was ruled that a conquered state has no personality in international law.] Methods: Decolonization, Dismemberment, Secession, Annexation, Merger o Territory: rights, capacities, duties of predecessor as to that territory o assumed and continued
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o o
State property: successor gets property in the territory it receives Public debts: remain with predecessor, except: rights and obligations under the contract are part of succeeded territory Treaties: Clean slate rule Except territorial boundaries (uti possidetis juris)
Succession of Governments. The integrity of the State is not affected; the state continues as the same international person except that its lawful representative is changed. The consequences are: all rights of the predecessor government are inherited by the successor; and where the new government was organized by virtue of constitutional reform duly ratified in a plebiscite, all obligations of the predecessor are likewise assumed; however, where the new government is established through violence, the new government may lawfully reject purely personal or political obligations of the predecessor, but not those obligations contracted by it in the ordinary course of official business. Principle of State Continuity. The state continues as a juristic being notwithstanding changes in its circumstances, provided only that such changes do not result in the loss of any of its essential elements. See Sapphire Case where, after Emperor Louis Napoleon filed a damage suit on behalf of France in an American court, he was deposed. Nonetheless, the action was not abated and could continue upon recognition of the duly authorized representative of the new government of France. Fundamental rights of States: Independence: Capacity of a state to provide for its own well-being and development free from the domination of other states, provided it does not impair or violate their legitimate rights. From this flows the power of jurisdiction over territory and permanent populations, the right to self-defense and the right of legation. Equality: Equality of legal rights irrespective of size or power of the State. In the UN, it is the doctrine behind the principle of one state, one vote. Peaceful co-existence: Elaborated in the Five Principles of Co-Existence by India and China (1954) and includes mutual respect for each others territorial integrity and sovereignty, mutual non-aggression, non-interference, and the principle of equality. State may not be sued without its consent (par in parem non habet imperium) based on equality of States o Immunity only for acts jure imperii (governmental acts) Act of State doctrine: Courts of one country will not sit in judgment on the acts of government of another, done within its own territory. However, this does not apply for purely commercial transactions. Case Of Belligerent Communities & Insurgent Groups Even belligerent groups and insurgents assume certain obligations under international law w/c among others, includes such obligations as: -combatants tion to refrain from treachery ct medical and religious personnel
2. International organizations Created through treaty among two or more states (constituent document) o Only states are members of IOs IOs can bring forth claims against governments established by necessary implication from Charter (Reparations case) BUT powers are not unlimited o Limited by constituent document Immunities: o To extent of exercise of functions o Immunities come from constituent document (ex. IRRI and ADB) United Nations Purposes of the United Nations:
a center for harmonizing the actions of nations in the attainment of these common ends o Enjoined from intervening in matters essentially within domestic jurisdiction (Art 2(7) of UN Charter) o International Constitutional Supremacy Clause: conflicts between obligations under UN Charter and other IOs UN Charter prevails Governing Principles:
ction taken in accordance w/ the Charter -member states act in accordance w/ the Principles as far as may be necessary to ensure international peace and security -intervention in purely domestic matters, nor shall members states be required to submit matters to settlement w/o prejudice to enforcement measures under Chapter VII (Security Council) Principal Organs o General Assembly: Plenary powers: can discuss any matter w/n scope of charter Important questions decided by 2/3rds majority Other questions majority o Security Council: 15 member states 5 permanent (US, UK, Russia, China, France Others elected for 2 year terms Vote for non-procedural matters: 9 affirmative votes, plus no veto from permanent 5 o Secretariat: Sec-Gen 5 year term Elected by GA, recommended by SC, subject to veto Chief administrator o Economic & Social Council o Trusteeship Council o International Court of Justice NOTE: The UN shall enjoy in the territory of its members such legal capacity as may be necessary for the exercise of its functions or the fulfillment of its purposes
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Reparations for injuries suffered in the service of the un international person Q: Can the UN, as an international person, bring a claim against the responsible government for the purpose of obtaining reparations due to damages cause to the UN and to the victim or persons entitled through him? A: Yes! Generally the capacity to bring international claims through the customary methods is reserved to states. However, the UN, due to the nature of its functions and purposes is likewise entitled to bring an action as an international person. The member states, by adopting the Charter, intended to constitute the UN as not only a center for harmonization, but rather as a political body w/ very important political tasks thus clothing the UN w/ international personality. In fact, given the nature of its functions, the only way by w/c the UN can operate in the international plane is for it to possess international personality. However, it is not correct to say that the UN possesses the same rights as a state. Neither is it correct to say that the UN is a super-state. The powers and duties of such an entity are limited to only those consistent w/ its purposes and functions. That being said, the members states have endowed the UN w/ the capacity to bring international claims whenever necessitated by the discharge of its functions. 3. Individuals individual responsibility Can an officer, acting pursuant to the orders of Hitler, be held liable for acts committed by him in violation of international laws? The answer is yes. Individuals can now be held responsible for violations of international law; they can no longer be protected by the doctrine of state sovereignty w/c states that IL is only concerned w/ the actions of states and not individuals, and that those who carry out acts of state are not personally responsible. Individuals now have international duties w/c transcend national obligations of obedience. The fact that a person acted merely in obedience to an order of his government will not shield him from liability but it may mitigate punishment. The true test is not the existence of the order but whether moral choice was in fact possible. Neither can states protect their individuals accused if they exceeded their competence by allowing or ordering the individual to commit the crime. (Nuremberg Trial) THE STATUTE OF ROME CREATING THE INTERNATIONAL CRIMINAL COURT the ICC has jurisdiction to try individuals (natural persons) for the most serious crimes of international concern. Crimes covered by the jurisdiction of the ICC include (1) genocide, or the systematic destruction, through various means, of a particular race or culture, (2) crimes against humanity, such as widespread and systematic attack upon civilian populations w/ full knowledge thereof, (3) war crimes, whenever they are committed as part of a plan or policy for large-scale commission, and (4) aggression. [Aggression has not yet been defined, and the jurisdiction of the court over such a crime will only begin when it is finally defined] The courts jurisdiction is triggered by the referral to the Prosecutor of (1) a state party, or (2) the Security Council, or (3) motu propio investigation by the Prosecutor. o The ICC only exercises complementary jurisdiction meaning it can only step in if the national authorities are unable or unwilling to act. This
principle ensures that the presence of the ICC will not be in derogation of the individual sovereignties of the states General principles of criminal law are applied such as mens rea, nulla crimen, and prospectivity. In deciding cases, the sources of law that may be used by the court include (1) the Statute, (2) applicable treaties and rules of international law, and (3) general principles of law whenever applicable Recent Developments: 1. European Commission on Human Rights - an individual may appeal after all domestic remedies have been exhausted. The Commission may then refer the matter to the European Court of Human Rights. Any person may address a complaint to the Secretary General of the Council of Europe if he is a victim by one of the High Contracting Parties provided that the latter recognizes the competence of the Commission. o Still rely on states for diplomatic protection, but now can petition to international bodies in light of violations. 2. Internationalized contracts - A sovereign state may enter into contractual relations w/ private persons or corporations. Through this, certain private persons may acquire capacities w/in the international sphere. However, their capacities, unlike those of sovereign states, are limited only to those that may be necessary to enable to them to act internationally and to invoke, in the field of IL, such rights that they may derive from the contract. o Internationalization does not elevate a corporation or person to the status of a state it only confers LIMITED personality by invoking in international law the rights derived from contract. o In the Philippines, similar to internationalized contracts are the FTAAs with foreign entities. E. Diplomatic and Consular Law Diplomats Vienna Convention on Diplomatic Relations governs diplomats, or those concerned with the political relations of states. Immunities and privileges enjoyed stem not from sovereignty but to be able to perform his or her functions properly. Actions that give or remove authority to send/accept envoys: 1. Agrement (not agreement ha): official approval by a government of a proposed envoy from a foreign government 2. Persona non grata Who may waive the immunity? Sending State (also applies for consuls) Nature of waiver: a) Must be express b) Waiver from immunity from proceedings separate from waiver from execution of judgment To whom else does the immunity extend to? 1. Family members of agent forming part of household 2. Administrative and technical staff for acts in course of duties, and their family 3. Service staff, for acts in course of duties 4. Private servants, from taxes and dues on emoluments Which family members are not exempt? Those who are nationals of the receiving State
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Category
May be arrested or detained Diplomatic agent Member of administrative and technical staff Service staff No1
Residence may be entered subject to ordinary procedures No
May be issued traffic ticket Yes
May be subpoenaed as witness
May be prosecuted for unofficial acts No
Official family member
No
Same as sponsor Same as sponsor No2
Diplomatic
No1 Yes2 Yes, if for a felony and pursuant to a warrant.2 Yes
No Yes
Yes Yes
No Yes No, for official acts. Testimony may not be compelled in any case. No, for official acts. Yes, in all other cases No, for official acts. Yes, in all other cases
No Yes2
Career consular officers
Yes4
Yes
Yes3
No2
Consular
Honorary consular officers Consular employees Diplomatic level staff of missions to international organizations International organization staff3
Yes
Yes
Yes
No
Yes2
Yes
Yes
Yes2
No2
What are the diplomatic immunities? 1. Premises of mission: Premises inviolable from search, requisition, execution, taxes Archives and documents, official correspondence, diplomatic bag, couriers also protected 2. Diplomatic agents person: inviolable Cannot be arrested or detained Immunity from criminal action Immunity from civil and administrative action, except: - Real action re: personally-owned private immovable property in receiving States territory - Hereditary or testamentary succession - Private professional/commercial activity Cannot be obliged to give evidence as witness 3. Private residence of diplomatic agent also inviolable 4. Agent exempt from social security of receiving States Extends to private servants, as long as not nationals/residents of receiving State and covered by SS of sending State 5. Agent exempt from all taxes, except: a) VAT, private immovable property taxes, transfer taxes, taxes from private commercial activity 6. Exempt from customs: a) Official articles b) Personal items and articles of agent Consuls - are not concerned with political matters but with administrative and
economic issues, such as the issuance of visas.

No Same as sponsor
No1
No
Yes
No
What is the equivalent of the agrement for consuls? Exequatur by receiving State Also, persona non grata rule applies What are the freedoms and immunities of consuls? 1. Freedom of movement 2. Freedom of communication, protection of official correspondence and consular bag 3. Communication and contact with nationals of sending state a) Receiving state informs consul of sending state if national of latter state is arrested or imprisoned or in custody pending trial b) Consular officers must be able to visit the detainee without delay 4. Immune from arrest or detention EXCEPT for grave crimes (not complete, like diplomats) 5. Immunity from jurisdiction For acts done in the exercise of official consulate functions EXCEPT Contracts entered into privately By third party, for damage from accident in receiving State by vehicle, vessel, aircraft Liability to give evidence - Cannot decline to give evidence; but if they do, no penalty/coercive measure allowed i) May be called upon to attend as witnesses in course of judicial/admin proceedings
Internation al organizatio n
No, for official acts. Yes3 No2 Yes, in all other cases Support staff of No, for missions to official acts. Yes Yes Yes Yes No international Yes, in all organizations other cases 1 Reasonable constraints, however, may be applied in emergency circumstances involving self-defense, public safety, or the prevention of serious criminal acts. Yes3 Yes3 Yes
2
This table presents general rules. Particularly in the cases indicated, the employees of certain foreign countries may enjoy higher levels of privileges and immunities on the basis of special bilateral agreements.
3 4
A small number of senior officers are entitled to be treated identically to "diplomatic agents".
Note that consular residences are sometimes located within the official consular premises. In such cases, only the official office space is protected from police entry.
When immunities begin and end: From entry into territory of receiving State or upon receipt of notice of appointment of receiving State until he leaves the country or expiration of reasonable period.
6.
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F. Treaties Treaty - International agreement concluded between States in written form and governed by international law, whether embodied in a single instrument of in 2 or more instruments and whatever its particular designation. Agreement between States including international organizations of States intended to create legal rights and obligations of the parties. Executive agreement, under municipal law, is not a treaty. But from the standpoint of international law, equally binding as treaties. Qatar vs. Bahrain: Minutes to a Meeting and exchange of letters constitute an international agreement creating rights and obligations for the parties. Nuclear Test cases: Unilateral declaration concerning legal or factual situations Elements of o o o o treaty: 1. International agreement between States 2. Written 3. Governed by PIL 4. Single instrument/two or more related instruments
5)
Ratification in accordance with constitutional processes of the parties concerned
Concurrence in by at least 2/3 of all the members of the Senate. Executive Agreements Implementation of treaties and statutes Transitory effectivity Adjustment of detail carrying out well-established national policies Temporary arrangements Does not require ratification. -
Treaties Basic political issues Changes in national policy
Permanent international arrangements Must be ratified by 2/3 of the Senate to become valid and effective -
Form - Article 2, 1969 Vienna Convention on the Law of Treaties, treaties should be in writing. However, no particular form is prescribed by it. Article 3, fact that treaty is unwritten shall not affect its legal force. But that convention rules on matters governed by international law independently of convention shall apply and that convention rules shall apply to the relations of the States among themselves. 1969 Convention on the Law of Treaties treaties executed between states 1986 Vienna Convention in Treaties for International Organizations treaties executed between States and International Organizations Requisites for Validity 1) Treaty-making capacity International organization, deemed to possess such, may be limited by the purpose and constitution of such organization. Competence of the representative/organ concluding the treaty In the Philippines, President w/ concurrence by 2/3 of all members of the Senate Parties must freely given consent Doctrine of Unequal Treaties imposed through coercion or duress by a State of unequal character is void. Object and subject matter must be lawful
An executive agreement may, within the context of municipal law, NOT be considered as a treaty [Commissioner of Customs v. Eastern Sea Trading], but from the standpoint of international law, they are equally binding as treaties. When there is a dispute as to whether or not an international agreement is purely an executive agreement, the matter is referred to the Secretary of Foreign Affairs who will then seek the comments of the SENATE REPRESENTATIVE and the LEGAL ADVISER of the DFA and after consultation with the Senate leadership, the Secretary shall then make the appropriate recommendations to the President.
Possessed by every state as attribute of sovereignty
2)
Generally, exercised by Head of State.
3)
4)
Within the commerce of nations and in conformity with international law. Doctrine of jus cogens customary international law has the status of peremptory norm of international law, accepted and recognized by the international community of states as a rule from which no derogation is permitted. A treaty which contravenes such norms/rules may be invalidated. Official torture of prisoners is violation of principle of jus cogens (Human Rights Cases vs. Marcos)
Treaty-making Process 1) Negotiations Pleine pouvoirs Absolute Power Even w/o such, it has been the general practice to consider the following as representatives of the State for treaty negotiations: 1) Head of State 2) Head of Government 3) Foreign Minister 4) Head of diplomatic missions 5) Representative accredited by the State to an international conference or to an international organization 2) Signing of the Treaty/Authentication of Text Signing the treaty authenticates it. Principle of alternat order of the naming of the parties and of the signatures of the plenitpotentiaries is varied so that each party is named and its plenipotentiary signs first in the copy of the instrument to be kept by it. 3) Ratification/Consent to be bound How to express consent to treaty: 1. Signature 2. Exchange of instruments 3. Ratification, acceptance, approval, or accession What the RP follows: ratification What is the obligation between the time when the State signs and ratifies a treaty? State required not to engage in acts which can defeat treatys purpose
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4)
Provisions of a treaty are formally confirmed and approved by a State and by which the State expresses its willingness to be bound by the treaty Philippines power to ratify is with the President, subject to concurrence by 2/3 of all the members of the Senate Accession or Adhesion non-signatory State becomes a party to the treaty; by invitation or permission of the contracting parties, a 3rd party who did not participate or who did not ratify on time, may be bound by a treaty. Entry into Force 1. On date agreed upon 2. If none, when consent is given 3. Usually, multilateral treaties provide specific number of States for it to come into effect Consent deemed established: 1) Bilateral - Exchange of instruments of ratification 2) Multilateral - Deposit of such instrument with a named depositary, coupled with the notification to the contracting State of such deposit. Registration with and publication by the UN failure does not affect the validity of the treaty; only that the unregistered instrument cannot be invoked by any party before any organ of the United Nations.
statement of the REASONS why compliance with the treaty is no longer required. Requisites 1) Change must be so substantial that the foundation of the treaty must have altogether disappeared 2) Change must have been unforeseen or unforeseeable at the time of the perfection of the treaty 3) Change must not have been caused by the party invoking the doctrine 4) Doctrine must be invoked within a reasonable time 5) Duration of the treaty must be indefinite 6) Doctrine cannot operate retroactively What are reservations? o Unilateral statement made by State excluding or modifying certain provisions of treaty in application to itself o N.B. only applies to multilateral treaties. If bilateral, there must be renegotiation. o When there can be no reservation? 1. Prohibited by treaty 2. Treaty only allows specified reservations 3. Reservation incompatible with object and purpose of treaty o Who must consent to reservation? 1. Reservation allowed by treaty: none needed from other States 2. Reservation defeats object and purpose of treaty: consent of all parties required 3. Reservation to treaty which s constituent instrument of IO: requires IOs organs consent N.B. Reservation deemed accepted if no rejection in period of 12 months o When does the reservation take effect? As soon as one other contracting States accepts Effect: Modifies application of the treaty to another party, as mentioned, but it doesnt affect relations with other parties. Interpretation of Treaties Interpreted in good faith Ordinary meaning given to the terms In the light of its objects and purposes Consider: 1) Preamble 2) Text 3) Annexes 4) Agreements relating to the treaty 5) Subsequent agreements Priority of rules on interpreting treaties: o 1. Objective: ordinary meaning, in light of object and purpose o 2. Teleological: context Instruments/agreements relating to its conclusion Preamble and annexes o 3. Subjective (subsequent agreement, subsequent practice, PIL rules) o 4. Special meaning given to terms
When non-signatories may be bound by a treaty GR: treaties cannot impose obligations upon States not parties to them. (Pacta tertiis nocent nec prosunt) Exception 1) Process of Accession or Adhesion 2) Most favored Nation Clause contracting State entitled to the clause may claim the benefits extended by the latter to another State in a separate agreement. 3) When treaty is a formal expression of customary international law 4) Treaty expressly extends benefits to non-signatory States Fundamental principles 1) Pacta sunt servanda Treaties must be observed in good faith. If necessary, State must modify its national legislation to make them conform to the treaty, to avoid international embarrassment Philippines treaty may be invalidated if contrary to Constitution Tanada vs. Angara: Treaties do not limit or restrict sovereignty of a State; by their voluntary act, States may surrender some aspects of their power in exchange for greater benefits granted by or derived from a convention or pact. 2) Rebus sic stantibus Contracting States obligations under a treaty terminates when a vital or fundamental change or circumstances occurs, thus allowing a State to unilaterally withdraw from a treaty, because of disappearance of the foundation upon which it rests. Doctrine does not operate automatically, there must be a FORMAL ACT OF REJECTION, usually by the HEAD OF STATE, with a
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Supplementary sources only for ambiguities Different languages of text particular text prevails as agreed upon
When are treaties invalid? 1. Error of fact 2. Fraud (induced) 3. Corruption of State representative 4. Coercion of State representative 5. Coercion of a State by the threat of force 6. Violates jus cogens 7. Conflict with a peremptory norm (i.e., State fundamental law) What is the difference between amendment and modification of treaty? o Amendment is in negotiation stage of the treaty and binds all parties to it. o Modification is after the treaty has come to effect, involving only some of the parties. It is possible only if not disallowed by the treaty and if wont defeat the other signatories rights. If allowed by the treaty itself, 2 States may modify a provision only insofar as they are concerned. Termination of Treaties 1) EXPIRATION of the term or Accomplishment of Purpose 2) EXTINCTION of one of the parties (bipartite treaties) When the rights and obligations under the treaty would not devolve upon the State that may succeed the extinct State 3) MUTUAL AGREEMENT of ALL the parties 4) DENUNCIATION or DESISTANCE The right to give notice of termination or withdrawal right of denunciation 5) SUPERVENING IMPOSSIBILITY of performance 6) CONCLUSION of SUBSEQUENT INCONSISTENT TREATY 7) LOSS of the subject matter 8) MATERIAL BREACH or violation i. If bilateral, it entitles the other to terminate ii. If multilateral, other parties by unanimous agreement may be terminated by: 1. All, as to the breaching party 2. Specially affected party, who may suspend 3. Any party, if it radically changed everyones position as regards obligations 9) REBUS SIC STANTIBUS 10) Outbreak of WAR, unless the treaty precisely relates to the conduct of war 11) SEVERANCE of diplomatic relations 12) Doctrine of JUS COGENS or emergence of NEW PEREMPTORY NORM of general international law which renders void any existing treaty conflicting with such norm. How is a treaty terminated by consent 1. Notify other parties in writing 2. If no one objects in 3 months, party may carry out action 3. If there is objection, settle dispute through peaceful means
G. Nationality and Statelessness Nationality. Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. Citizenship Has a more exclusive meaning; applies only to certain members of the State accorded more privileges than the rest of the people who owe it allegiance. It has Municipal, NOT international significance. Nationality of maritime vessels A state has jurisdiction over vessels flying its flag. Each state determines requirements for registration. But flags of convenience might be challenged on the ground of lack of sufficient link. The same rule generally applies to aircraft and spacecraft. Effective Nationality Link Determines which of two states of which a person is a national will be recognized as having the right to give diplomatic protection to him. Decisions have given preference to the real and effective nationality, that which is based on stronger factual ties between the person concerned and one of the States whose nationality is involved. Different factors such as habitual residence, centre of interests, family ties, participation in public life, attachment shown for a given country etc. are considered. Determination of a person's nationality. The 1930 Hague Convention on Conflict of Nationality Laws states: a) It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States insofar as it is consistent with international conventions, international customs, and the principles of law generally recognized with regard to nationality. b) Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of that State. Acquisition of nationality. The modes of acquiring nationality are: c) Birth. The two principles on acquisition of nationality by birth are: i) jus sanguinis, i.e., by blood; and ii) /us so/i, i.e., by place of birth. d) Naturalization. This mode may be accomplished through marriage. legitimation, option (election), acquisition of domicile, appointment to government office, or grant on application. In the Philippines, naturalization may be by judicial process, legislative process, election or marriage Moy Ya LIm Yao v. Commisstoner of Immigration, 41 SCRA 292]. e) Repatriation. Recovery of nationality by individuals who were natural-born citizens of a State but who had lost their nationality. f) Subjugation. g) Cession. Loss of nationality. Nationality is lost by any of the following modes: i) release, e.g., Germany gives its citizens the right to ask for release from their nationality; ii) deprivation, e.g., Philippines, which deprives its citizens of nationality upon entry into the military service of another State; iii) renunciation; and iv) substitution, such as what happens when the former nationality is lost ipso facto by naturalization abroad. Multiple Nationality. When a person is possessed of more than one nationality because of the concurrent application to him of the municipal laws of two or more States claiming him as their national. This may arise by the concurrent application of
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the principles of jus sanguinis and jus soli, naturalization without renunciation of the original nationality, legitimation, or legislative action. Resolution of Conflicts in Multiple Nationality Cases. The 1930 Hague Convention on the Conflict of Nationality Laws provides the following solutions to multiple nationality cases: a) A person having two or more nationalities may be regarded as its national by each of the States whose nationality he possesses, and a State may not give diplomatic protection to one of its nationals against a State whose nationality that person possesses. b) If a person has more than one nationality, he shall, within a third State, be treated as if he had only one; the third State shall recognize exclusively either the nationality of the State in which he is habitually and principally resident, or the nationality of the State with which he appears in fact to be most closely connected. This is known as the principle of effective nationality. c) If a person, without any voluntary act of his own, possesses double nationality, he may renounce one of them with the permission of the State whose nationality he wishes to surrender and, subject to the laws of the State concerned, such permission shall not be refused if that person has his habitual residence abroad. Stateless Persons Stateless persons are those who do not have a nationality. They are either de jure or de facto stateless. De jure stateless persons those who have lost their nationality, if they had one, and have not acquired a new one De facto stateless persons those who have a nationality but to whom protection is denied by their state when out of that state. (ex: refugees) o Still covered by protections of IHRL (UDHR, etc.) Rights of Stateless Persons The Convention Relating to the Status of Stateless Persons, grant to stateless persons within their territories treatment at least as favorable as that accorded to their nationals with respect to: [a] freedom to practice their religion and freedom as regards the religious education of their children; [b] access to the courts of law; [c] rationing of products in short supply; [d] elementary education; [e] public relief and assistance; and [f] labor legislation and social security. The contracting States also agreed to accord stateless persons lawfully staying in their territory treatment as favorable as possible and, in any event, not less favorable than that accorded to aliens generally in the same circumstances, relative to: [a] acquisition of movable and immovable property; [b] right of association in non-political and non-profit-making associations and trade unions; [c] gainful employment and practice of liberal professions; [d] housing and public education other than elementary education; and [e] freedom of movement. Measures undertaken to prevent statelessness 1. A Contracting state shall grant its nationality to a person born in its territory who would otherwise be stateless. 2. A contracting state shall grant its nationality to a person, NOT born in the territory of the contracting state, who would otherwise be stateless, if the nationality of one of his parents at the time of the persons birth, was that of that state.
H. State Responsibility Any internationally wrongful act of a state establishes international responsibility. This is justified by the existence of an international legal order and the legal nature of the obligations it imposes upon its subjects. It is highly debatable, however, whether states can be held criminally liable before IL. State responsibility is concerned primarily with: (1) the consequences of illegal acts (reparations) and (2) payment of compensation. Internationally wrongful acts or omissions include: 1. international delicts 2. international crimes such as genocide, slavery, apartheid, mass pollution, aggression There is an internationally wrongful act of a State when conduct consisting of an action or omission: 1. Is attributable, not to the persons or agencies who performed it, but to the State itself (subjective element); and 2. Constitutes a breach of an international obligation of the State (objective element). The breach may either be active (through an act) or passive (through an omission). There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character. Examples: breach of treaty, injury to territory, property, or diplomats of a state, injury to persons or property of aliens. Categories of Internationally Wrongful Act: 1. Direct the injury is against another state or any of its organs or agents 2. Indirect against the persons or property of a national of another state Attribution to the State Acts which can be attributed to the state may be acts of: 1. state organs, 2. other persons, or 3. revolutionaries. Acts of State Organs: instances when the acts of state organs are acts of the state 1. The conduct of any State organ acting in that capacity shall be considered an act of the State under international law, whether the organ exercises legislative, executive, judicial, or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government of a territorial unit of the State. 2. An organ includes any person or body which has that status in accordance with the internal law of the estate. 3. The conduct of an entity which is NOT an organ of the State but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the entity was acting that capacity in the case in question. 4. The conduct of a person or group of persons shall be considered an act of the State under international law if the person or group of persons was in fact acting on the instructions of, or under the direction or control of, that State carrying out the conduct. 5. The conduct of a person or group of persons shall be considered an act of the
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State under international law if the person or group of persons was in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ was acting in the exercise of elements of the governmental authority of the State at whose disposal it had been placed. The conduct of an organ of a State or of an entity empowered to exercise elements of the governmental authority, such organ or entity having acted in that capacity, shall be considered an act of the State under international law even if, in the particular case, the organ or authority exceeded its authority or contravened the instructions concerning its exercise
i.e., a sniper in Canada shooting an American across the Niagara Falls in New York. The shooting takes place in Canada, the murder (effect) occurs in the United States. Therefore the US would have jurisdiction.
Acts of other persons 1. The conduct of a person or group of persons shall be considered an act of state if the person or group of persons was in fact exercising elements of the governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority. 2. The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ was acting in the exercise of elements of the governmental authority of the State at whose disposal it had been placed. Acts of Revolutionaries 1. The conduct of an insurrectional movement, which becomes the new government of a State, shall be considered an act of that State under international law. 2. The conduct of a movement, insurrectional or otherwise, which succeeds in establishing a new State in part of the territory of a pre-existing State or in a territory under its administration, shall be considered an act of the new State. I. Jurisdiction of States Jurisdiction. The power or authority exercised by a State over land, persons, property, transactions and events. The basic question of jurisdiction centers upon which State has sovereignty or legal control over land, persons, ships at sea, airships in flight, property, transactions or events, in various situations. a) Territorial Principle. - The State may exercise jurisdiction only within its territory. While there is no territorial limit on the exercise of jurisdiction over civil matters, a State, as a general rule, has criminal jurisdiction only over offenses committed within its territory, except over (i) continuing offenses; (ii) acts prejudicial to the national security or vital interests of the State; (iii) universal crimes Effects Doctrine: A state has jurisdiction over acts occurring outside its territory but having effects within it. o Subjective territoriality: A state has jurisdiction to prosecute and punish crime commenced within the state but completed abroad. o Objective territoriality: A state has jurisdiction to prosecute and punish crime commenced without the state but completed within its territory; OR Where the action takes place outside the territory of the forum State, but the primary effect of that activity is within the forum State.
The Lotus Case (PCIJ): WON Turkey has jurisdiction over the offense committed against its vessel, the Boz-Kourt, which collided with a French steamer, the Lotus, near Constantinople, Turkey, causing the death of 8 Turkish national sailors. By virtue of filing criminal proceedings against Lt. Demons, the officer in charge of the Lotus at the time of the collision, it is contended by France that Turkey has violated international law; in reply, Turkey alleged that no principle of IL conflicts with the act. Ruling: The Court held that there is no rule in PIL prohibiting the State to which the ship on which the effects of the offense have taken place belongs from regarding the offense as having been committed within its territory and capable of prosecution. While this can be overturned by showing a rule of customary law which conflicts with it, France has not proven such. Therefore, there is no rule. The Court therefore rules that it is a case of concurrent jurisdiction. b) Nationality Principle. The State has jurisdiction over its nationals anywhere in the world, based on the theory that a national is entitled to the protection of the State wherever he may be, and thus, is bound to it by duty of obedience and allegiance, unless he is prepared to renounce his nationality. This applies to civil matters, and also in taxation. Active Nationality Principle - a State has jurisdiction over its nationals, regardless of whether the crime has been committed within the own country or abroad. If the person living and working in Austria is a German national, German authorities will have jurisdiction to prosecute and punish him. State nationals and the effective nationality link: A state has the right to decide who its nationals are using either the principle of jus sanguinis or jus soli or naturalization laws. However, before a person can be claimed by a state as a national, there must be established an effective nationality link. Consent of the individual alone is not enough. o Nottebohm Case (ICJ): WON Nottebohm, a German national by birth, constant fixture in Guatemala and newly claimed Liechtenstein national by naturalization, can be claimed by Liechtenstein as its national in a case for reparations over the protests of Guatemala, Ruling: Liechtenstein cannot claim Nottebohm as its national, despite valid fulfillment of its naturalization laws because of failure to satisfy the effective nationality link sufficient for Liechtenstein to extend and exercise protection for him. Evidence against him: he was a habitual resident of Guatemala, it being the center of his interests and of his business activities. Nationality is a legal bond, concerning the citizen personally, a genuine connection of existence, interests and sentiments together with the existence of reciprocal rights and obligations. Corporations: A state has jurisdiction over corporations organized under its rules. Other bases: Principal residence/place of business test, control test. c) Protective Principle. State has jurisdiction over acts committed abroad (by nationals or foreigners) which are prejudicial to its national security or vital interests. See Art. 2; Revised Penal Code, which speaks of Philippine criminal jurisdiction over (i) offenses committed on board a Philippine ship or airship; (ii) forgery/counterfeiting of Philippine coins or currency notes; (iii) introduction into the
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Philippines of such forged or counterfeit coins or notes; (iv) offenses committed by public officers or employees in the exercise of official functions; and (v) crimes against national security and the law of nations. This principle is invoked where the victim would be the government or sovereign itself. d) Principle of Universality. State has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. Universal crimes are those which threaten the international community as a whole and are considered criminal offenses in all countries, e.g., piracy jure gentium, genocide, white slave trade, hi-jacking, terrorism, war crimes. e) Principle of Passive Personality. State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. This principle may be resorted to if the others are not applicable. So, if German nationals suffer injury, Germany has jurisdiction, i.e. to bring charges against the person that under German law is committing a crime. The principle is generally not accepted for ordinary torts or crimes, but it is increasingly accepted as applied to terrorist attacks and other organized attacks on a states nationals on the basis of their nationality. Conflicts of Jurisdiction - Because of the various ways of a state to assume jurisdiction, there may be instances of conflicting yet valid claims of jurisdiction. 1. The Balancing TestTimberlane Lumber Co. v. Bank of America: Tripartite analysis was used to determine WON a US Court can assume jurisdiction over an antitrust claim. If the answer is yes to all of the questions below, the court assumes jurisdiction. Was there an actual or intended effect on American foreign commerce? (There must be an effect before federal courts can exercise subject matter jurisdiction under the Sherman Act statutes) Is the effect sufficiently large to present cognizable injury to the plaintiffs and represent a civil violation of the anti-trust laws? (To show that there is a greater burden) Are the interests of and link to the US including effects on American foreign commerce sufficiently strong, versus those of other nations, to justify an assertion of extraordinary authority? 2. International comityHartford Fire Insurance Co. v. California: Even when a state has basis to exercise jurisdiction, it will refrain from doing so if its exercise will be unreasonable. Unreasonableness is determined by evaluating various factors, such as: a. the link of the activity to the territory of the regulating state; b. the connection between the regulating state and the person principally responsible for the activity to be regulated (ex: nationality, residence, economic activity); c. the character of the activity to be regulated; d. the existence of justified expectations that might be protected or hurt by the regulation; and e. the likelihood of conflict with regulation by another state.
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Forum non conveniens If in the circumstances of the case, it be discovered that there is a real unfairness to one of the suitors in permitting the choice of a forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis, then the doctrine of forum non conveniens is properly applied. The application of the doctrine is discretionary with the court. The court needs to weigh the private interest and the public interest factors. The private interest factors are: Access to sources of proof Availability of compulsory process for unwilling witnesses Other personal problems which make trial easy, expeditious, and inexpensive. The public interest factors are: Congestion Desire to settle local controversies at home Having the case tried in a forum at home with the applicable law.
J. Treatment of aliens When are States obliged to admit aliens? As an aspect of sovereignty, no State is obliged to admit aliens into a territory unless a treaty requires it. o 1. There is treaty requiring it o 2. Treaty imposes legal standards for admission Once an alien is admitted, he/she cannot be expelled without due process. They are considered nationals abroad and come under its own states protection. How are aliens protected by their own States? o Through diplomatic protection, under the theory that injury to a national abroad is injury to his State. This power is discretionary. o Recall: effective link doctrine Minimum International Standards However harsh Municipal law may be, aliens should be protected by certain minimum standards of humane protection. This is the widely accepted standard. Neer Claim: This standard applies if the treatment of the alien constitutes an outrage readily recognizable by every reasonable/impartial person
Two standards for protection of aliens: National Treatment/Equality of Treatment Aliens are treated in the same manner as nationals of the State where they reside. The disadvantage to this is that the state may treat its own nationals oppressively, which would make aliens subject to harsh laws as well.
What is extradition? The removal of an accused from the Philippines with the object of placing him at the disposal of foreign authorities to enable the requesting state or government to hold him in connection with any criminal investigation directed against him or the execution of a penalty imposed on him under the penal or criminal law of the requesting state or government. Elements: 3. Act of sovereignty on the part of two states 4. Request by one state to another state for the delivery to it of an
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alleged criminal. Delivery of the person requested for the purposes of trial or sentence in the territory of the requesting state.
Principal questions to be asked regarding extradition: 1. Is there a treaty? 2. Is the crime listed? General Rule: There is no duty to extradite in the absence of a treaty. Exception: Even in the presence of a treaty, crimes with a political complexion are exempt therefrom Exception to the exception: an attendant clause such as one involving assassination of heads of state or any member of his family. This likewise applies for the crime of genocide. Factors to consider whether an act will qualify under the exception of political nature are: (1) the nature of the act, (2) the context in w/c it was committed, (3) status of the party committing the act, (4) nature of the organization, and (5) particularized circumstances. Principles of extradition: o 1. No State is obliged to extradite unless in a treaty o 2. Differences in legal system can be an obstacle in interpreting treaties (double criminality requirement) o 3. Religious and political offenses are non-extraditable An extradition treaty does not prohibit all means of gaining presence of an individual outside of its terms (US v Alvarez-Machain) Principle of Specialty The general rule is that a fugitive who is extradited may be tried only for the crime specified in the request for extradition, which is included in the list of extraditable offenses in the treaty. Principle of Double Criminality A person may be extradited only when his/her actions constitute an offense in both the requesting and requested states. A party to a treaty may ask the other to extradite a person for a crime committed before the effectivity of the treaty. Due process: o No need for notice and hearing because he might flee when given notice. Notice and hearing for extradition cases is not required during the Executive Phase of the proceedings, but it is required in the Judicial Phase thereof. o Not a criminal proceeding but an executive process. Meaning, The extradition court may adjudge a person to be extraditable, but the President still has the final say. Extradition is not criminal is not criminal in nature; it is sui generis. o Just prima facie not beyond reasonable doubt Bail now applicable the exercise of the States power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, have likewise been
detained. In the past, the right to bail has already been granted to deportees; there is thus no reason not to grant the same to extraditees. True that extradition is not criminal in nature, nonetheless, the means of enforcing the same have utilized the machinery of criminal proceedings such as arrest and detention. The potential extradite will have the burden of proving by clear and convincing evidence [lower than proof beyond reasonable doubt but higher than mere preponderance]. The potential extraditee must prove that he is not a flight risk and will abide with all the orders and processes of the extradition court. Extradition Surrender by force of a wanted person by the requested state to the requesting state. May only be made pursuant to a treaty between the requesting and requested state. Based on offenses generally committed in the state of origin. Calls for the return of the fugitive to the state of origin. For the benefit of the requesting state. Deportation Exclusion of an unwanted or undesirable alien. Pure unilateral act under the States exercise of sovereignty. Based on causes arising in the deporting state. An undesirable alien may be deported to a state other than his or her own state/state of origin. Takes place in the interest of the country of residence.
Procedure to be followed in Extradition 1. REQUEST through diplomatic representative with: a. Decision of conviction, criminal charge and warrant of arrest, recital of facts, text of applicable law designating the offense, pertinent papers. 2. DFA forwards the request to the DOJ 3. DOJ files a petition for extradition with the RTC 4. Upon recepit, the judge should make a prima facie finding of WON: a. They are sufficient in form and substance b. They show compliance with Extradition Treaty and Law c. The person sought is extraditable. i. If No-dismiss ii. If yes Issue summons or warrant of arrest to compel the appearance of the individual. 5. HEARING (counsel de oficio provided if necessary) 6. APPEAL to the CA within 10D [decision is final and executory] 7. Decision forwarded to the DFA through the DOJ 8. The individual is placed at the disposal of the authorities of the requesting state. Rules governing commission of crimes on board an aircraft For purposes of extradition, a crime may be considered as having been committed in the state of registry of the aircraft. But the jurisdiction of another state may be had if the offense: o has an effect on its territory o has been committed by or against its national or permanent resident o is against its national security o relates to a reach of its national rules of flight o is the subject of an exercise of jurisdiction necessary to ensure the observance of an obligation arising from a multilateral agreement
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NOTE: Once the doors are closed, the craft is considered in flight In the absence of an extradition treaty w/ another party to the Convention, the 1971 Montreal Convention becomes the basis for such extradition. L. International Human Rights Law Human Rights Rights inherent in our nature as human beings. Those which are necessary for the individual to possess and enjoy in order to be fully human. Human rights are rights which provide standard-setting norms Those asserted by the individual to protect and respect his or her dignity as a human being. In claiming these human rights, everyone also accepts the responsibility not to infringe on the rights of others and to support those whose rights are abused or denied. --- without which people cannot live in dignity. Remember: non-intervention clause in Art. 2 Sec 7 of the UN Charter (cannot intervene in matters essentially within domestic jurisdiction of member nations) o Although human rights are now not within the exclusive domestic sphere of nations Universal Declaration of Human Rights (1948). Not a legally binding Treaty but a mere declaration or statement of generally accepted principles of human rights. Distinction between a Declaration and a Covenant International Covenant There is a meeting of the minds of the contracting parties on the specific duties and obligations they intend to assume, and the agreement that the undertakings must be effectively performed. It leaves no doubt about the legal nature of the provisions it contains. The vinculum juris created by a covenant, generally absent from a declaration, places a duty on the contracting parties to bring their laws and practices into accord with the accepted international obligations and not to introduce new laws or practices which would be at variance with such obligations. Declaration It admits the presumption that something less than full effectiveness in terms of law is intended. It is often deemed to enunciate moral rules only. Contra: covenant imposes specific duties and obligations, and places parties on position to bring laws and practices according to these obligations Three Generations of Human Rights 1. First Generation traditional civil and fundamental rights; International Convention on Civil and Political Rights What does the ICCPR cover? o 1. Protection of life, liberty, and property Bias for abolition of the death penalty; but it allows its imposition but only for the most serious crimes Although nothing in the article can be used to delay or prevent abolition of death penalty No DP for minors and pregnant women Second additional protocol requires abolition of death penalty, but RP is not a party No publicity of criminal proceedings where there is interest of juvenile persons, matrimonial disputes, or guardianship of children o o
o o
o o o What o
o What
Anyone unlawfully arrested or detained must have enforceable right to compensation and victim of miscarriage of justice shall be compensated 2. No torture, ill-treatment, and prison conditions must be good 3. Freedom of movement Limit: public health, safety, morals, order, etc. Right to return cannot be deprived arbitrarily Exile is now prohibited by customary law Right of aliens not be expelled without due process 4. Legal personality guaranteed but capacity to act may be limited 5. Thought, conscience, religion, expression, political freedoms Limit: public safety, order, health, morals, fundamental rights of others 6. No war propaganda 7. Associations and unions But silent on right of govt employees to form unions 8. Minorities can enjoy own culture, own religion, own language are the optional protocols to the ICCPR? First - Enables private parties who are victims of violations of rights under the ICCPR, to file communications (complaints) against States that have ratified the Protocol, with the Human Rights Commission. The Philippines is a party to this. Second Ained at abolishing the death penalty. Phils. NOT a party. are non-derogable rights under the ICCPR? o the right to life; o freedom from torture; o freedom from slavery; o freedom from post facto legislation and other judicial guarantees; o right to recognition everywhere as a person before the law; o freedom of thought, conscience and religion.
2. Second Generation social and economic rights; International Covenant on Economic, Social and Political Rights What rights does the ICESCR cover? o 1. To work and favorable conditions of work o 2. To form free trade unions o 3. To social security and insurance o 4. Special assistance for families o 5. To adequate standard of living o 6. To highest standard of physical and mental health o 7. To education including compulsory primary education o 8. Enjoyment of cultural and scientific benefits and international contacts What is the duty to implement ICESCR rights? o 1. Bring laws and practices into accord o 2. Not to introduce new laws or practices contrary to these o 3. Provide remedies to enforce these 3. Third Generation right to peace, clean environment, self-determination, common heritage of mankind, development, minority rights. Self-determination of Peoples covers two important rights: 6. the right freely to determine their political status and freely pursue
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their economic, social, and cultural development; and the right for their own ends, to freely dispose of the natural wealth and resources without prejudice to any obligations arising out of international cooperation based upon the principle of mutual benefit and international law. But minorities do not have a right of self-determination in the sense of the right to secede. 7. Contrast rules of implementation of ICCPR and ICESCR: o ICCPR: immediate implementation o ICESCR: implemented gradually and dependent on development conditions (progressive realization) What are the two different procedures under the Human Rights Commission? o 1. Confidential consideration Working group of not more than 5 members meet in private to consider all reports which revolve patterns of gross and reliably attested violations of HR CHR submits report/recommendation to ECOSOC o 2. Public debate Annual public debates where governments and NGOs can identify situations that deserve attention Methods of implementation: o 1. Name and shame o 2. Pressure on governments o 3. Appointment of Special Rapporteur to examine/report o 4. Request to Security Council to take up issue
Armed conflict exists when there is a resort to armed forces between States, or protracted armed violence between governmental authorities and organized armed groups, or between such groups within a state. Includes sending by or on behalf of the State, armed groups, bands, irregulars or mecenaries. To be considered a war, hostilities must be preceded by a declaration of war or an ultimatum with a fixed limit (rarely followed). Usually it is the victim of the first attack which declares war. a.) International Armed Conflict situations that involve two or more states engaged in armed conflict. In such situations, the central provisions of IHL become operative, particularly those contained in the four Geneva Conventions and Protocol I to the Geneva Conventions. 1. Jus ad bellum The title given to the branch of law that defines the legitimate reasons a state may engage in war; focuses on certain criteria that render a war just. Ex. self-defense, counter-measures, etc. [jus contra bellum is the law on the prevention of war]. GR: Article 2: All members shall REFRAIN in their international relations from the threat or the use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations; Exception: Article 51: Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations. [Anticipatory Self Defense] NOTE: Self defense is usually just against States that engage in unlawful armed attack, and is attended by proportionality and necessity. However, the ICJ in the Palestinian Wall advisory opinion (Sep. Op., Higgins) recognized that there can be self-defense against non-State actors (some say this is instant custom) Self-defense vs. Just War Self-defense Permits only the use of force to put an end to an armed attack, and to any occupation of territory or other forcible violation of rights which may have been committed. 2. Just war Once a state has a valid reason for resorting to force, there is no limit to the extent of force which could be employed.
International Human Rights Law International Humanitarian Law Strive to protect the lives, health and dignity of individuals. Protect the individual at peacetime and Applies in situations of armed conflict. during times of war [subject to - Ensures minimum protection to victims exceptions] of armed conflict by outlawing excessive human suffering and material destruction in light of military necessity. Some treaties allow derogation from NON-derogable because it is specifically certain rights in situations of public conceived for emergency situations emergency. arising from armed conflict. Wider personal, temporal and material Less egalitarian, although nonfields of applicability. discrimination guaranteed with regard to the enjoyment of the rights afforded by law. Both will apply simultaneously in times of international & non-international armed conflicts L. IHL and neutrality What is IHL? A set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. Also known as the law of war or the law of armed conflict.
Jus in bello (Laws of War) is the set of laws that come into effect once a war has begun. Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why they had begun. This branch of law relies on customary law, based on recognized practices of war, as well as treaty laws, which set out the rules for conduct of hostilities. Other principal documents include the four Geneva Conventions of 1949, which protect war victims 1. Wounded and sick in the field 2. Wounded, sick, and shipwrecked at sea 3. Prisoners of War (POWs) 4. Civilians
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b.) Internal or non-international armed conflict - Protocol II provides that internal armed conflicts must take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under (1) responsible command, and (2) exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations. o Between States and non-state armed groups or insurgents engaged in protracted armed violence Protocol II applies only when the two elements are present. Inapplicable to situations of internal disturbances like riots, or such other isolated and sporadic acts of violence, even if armed forces are called to suppress the disorder. Common Article 3: States that in case of non-international armed conflict, contracting parties are required to: 1) Treat humanely persons who do not partake of the hostilities at all times, without any adverse distinction as to race, class, etc. 2) Acts of violence to life and person (mutilation, cruel treatment, torture), hostage-taking, outrages upon personal dignity, carrying out of sentences and executions without judicial guarantees shall be prohibited at all times. 3) The wounded and sick shall be cared for, and an impartial humanitarian body like the Red Cross may offer its services. NOTE: application of Common Article 3 does not make the conflict an international one. Therefore, it does not preclude the possibility that any participant in the conflict may be prosecuted for treason. Internationalized Armed Conflict An internal armed conflict breaking out in the territory of a State may become international if: a) Another State intervenes throguh its troops b) Some of the participants in the internal armed conflict act on behalf of the other State. 3. War of National Liberation - Protocol I: Created a new category of international armed conflict and defines it as an armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination. Those engaged in such a conflict receive combatant status and are entitled to combatant rights and duties. Core International Obligations of States in IHL 1. Persons hors de combat (outside of combat), and those not taking part in hostilities, shall be protected and treated humanely. 2. It is forbidden to kill or injure an enemy who surrenders, or who is hors de combat. 3. The wounded and the sick shall be cared for and protected by the party to the conflict which has them in its power. [The emblem of the "Red Cross," or of the "Red Crescent," shall be required to be respected as the sign of protection.] 4. Captured combatants and civilians must be protected against acts of violence and reprisals. They shall have the right to correspond with their families and to receive relief. 5. No-one shall be subjected to torture, corporal punishment, or cruel or degrading treatment. 6. It is prohibited to employ weapons or methods of warfare of a nature to cause unnecessary losses or excessive suffering.
7.
Parties to a conflict shall at all times distinguish between the civilian population and combatants. Attacks shall be directed only against military objectives and not against civilians.
Basic Principles of International humanitarian law Principle of distinction - protects civilian persons and civilian objects from the effects of military operations. It requires parties to an armed conflict to distinguish at all times, and under all circumstances, between combatants and military objectives on the one hand, and civilians and civilian objects on the other. It also provides that civilians lose such protection should they take a direct part in hostilities. It is therefore an established norm of customary international law in both international and non-international armed conflicts. Principle of Necessity The use of military force is justified only to the extent it is necessary to achieve a military goal. This force used must not exceed the level required to stop the threatening activity. Principle of proportionality - Attacks are prohibited if they cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that is excessive in relation to the anticipated concrete and direct military advantage of the attack. The principle of proportionality has also been found by the ICRC to form part of customary international law in international and non-international armed conflicts. Other fundamental IHL principles include the duty to take precautions to spare the civilian population before and during an attack; the prohibition against infliction of unnecessary suffering or destruction, or of superfluous injury; and the prohibition against engaging in indiscriminate attacks. Treatment of Civilians - Any person who does not belong to an armed force and is not a combatant. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. - The civilian population comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character. Basic Protections of Civilians - The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 1. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 2. Civilians shall enjoy the protection afforded by this Section, unless and for such time as they take a direct part in hostilities. 3. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 4. The presence or movements of the civilian population or individual civilians
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shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. Prisoners of War are lawful combatants who have fallen into the power of the enemy. They are entitled to the following basic protections: 1. May only be transferred by the Detaining Power to a Power which is also a party to the Convention 2. They must at all times be humanely treated. No prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest. Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity. 3. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men. 4. The State detaining prisoners of war shall be bound to provide free of charge, their maintenance and the medical attention required by their state of health. 5. All prisoners of war shall be treated alike by the Detaining Power, without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria. Neutrality - In a conflict there are some who wish to stay out of the way and adopt an attitude of impartiality. Such an attitude must be recognized by the opposing party-States and creates both rights and duties in the neutral states. The decision to employ a neutral stance is dictated by political/internal mechanisms and not PIL. Neutrality Dependent on the attitude of the neutral state, which is free to join either of the belligerents anytime it sees fit. Governed by laws of nations agreements Obtains only during war. Neutralization Result of treaty wherein duration and other conditions are agreed upon by the neutralized state and other states. Governed by the neutralization agreement. Intended to operate both in times of peace as well as war.
b. c. d.
Absolute useful for war under all circumstances (guns/ammunitions) v. Conditional have both civilian and military utility (food and clothing) vi. Free list exempt from the law on contraband for humanitarian reasons (Medicines) Doctrine of Ultimate Consumption goods intended for civilian use which may ultimately find their way to and be consumed by belligerent forces may be seized on the way. Doctrine of Infection innocent goods shipped with contraband may also be seized Doctrine of continuous voyage/continuous transport goods reloaded at an intermediate port on the same vessel or reloaded on another vessel or other forms of transportation may also be
iv.
2. 3.
seized Doctrine of Ultimate Consumption Engaging in Unneutral Services acts of a more hostile character than carriage of contraband or breach of a blockade, undertaken by merchant vessels of a neutral state in aid of any of the belligerents. To prevent its territory and other resources from being used in the conduct of hostilities To acquiesce to certain restriction and limitations which the belligerents may find necessary to impose in connection with international commerce. e.
M. Law of the Sea What is the nature of the sea, in general? o Res communis (open to all) Sovereignty of State extends to: o 1. Internal waters o 2. Archipelagic waters o 3. Territorial sea Baselines Low water mark along the coast from which the belt of the territorial sea is measured. Line from which the breadth of the territorial sea, CZ and EEZ is measured to determine the maritime boundary of the coastal State. o Normal Drawn from the low water mark, following the sinuosities and curvature of coast. o Straight collecting selected points on coast without appreciable departure from general shape Length must not exceed 100 n.m. (except 3% of total baselines may go up to125 n.m.) Areas lying within the straight baselines should be particularly closely linked to the land formations which divide or surround them. Cannot cut off high seas or EEZ of another State o From where do you count the baseline? Count from low-water-mark o What does the RP follow? Straight baselines
Neutrals have the right and duty to: 1. Abstain from taking part in the hostilities and from giving assistance to either belligerents by: i. Sending of troops ii. Official grant of loans iii. Carriage of contraband a. Contraband goods which, although neutral property, may be seized by a belligerent because they are useful for war and are bound for a hostile destination.
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So what are Islands? Naturally formed areas of land, surrounded by water, which is above water at high tide. Rocks which cannot sustain human habitation or economic life of their own have no EEZ or continental shelf. What are internal waters? (under our Municipal Law). These are all waters landward from the baseline of the Territorial Sea. There is no right of innocent passage. Bays are considered internal waters. o Merely an indentation if it is NOT larger than the semi-circle whose diameter is a line drawn across the mouth of the indentation o If distance between low water marks between natural entrance points of bay X exceed 24 nautical miles: may enclose and treat as internal o If more than 24 straight baseline of 24 n.m. may be drawn to enclose maximum area of water o Exception to the 24 rule: historic bays, which are treated as internal waters based on historic rights The territorial sea (under UNCLOS) [12 n.m.] an adjacent belt of sea with a breadth of 12 nautical miles measured from the baselines of a state and over which the state has sovereignty. Ships of all states enjoy right of innocent passage. What is the sovereign right over territorial sea? Same as sovereignty over land, but subject to right of innocent passage in territorial sea and straits (Corfu Channel) What is NOT innocent passage: o 1. Threat/use of force, exercising defense/security functions o 2. Load/unload commodity contrary to customs, fiscal, immigration, sanity laws o 3. Fishing activities o 4. Research/survey Rules on Air Passage 1. Territorial Sea NO air passage for aircraft generally allowed 2. Archipelagic Waters air passage allowed. SO THEN, What is the rule on archipelagic waters? Under UNCLOS, our Internal Waters = Archipelagic Waters, which grants the ff: Right of Archipelagic Sea Lane passage Right of Innocent Passage Right to Fish by Traditional Foreigners Magallona vs. Ermita [Baselines Law, Art. I, UNCLOS, RA9522] Whether referred to as Philippine internal waters under Article I of the Constitution39 or as archipelagic waters under UNCLOS III (Article 49 [1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the submarine areas underneath. The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded, expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus, domestically, the political branches of the Philippine government, in the competent discharge of their constitutional powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and
Straight Archipelagic Baselines means Archipelagic States like the Philippines may draw straight baselines by joining the outermost parts of the outermost islands and drying reefs of the archipelago. NOTE: When the use of straight baselines enclose as internal waters those not previously considered internal waters right of innocent passage remains. What is a Regime of Islands? - a group of islands detached from the main territory of the state but over which that state enjoys full ownership and sovereignty.(i.e., Hawaii, which is not part of the American mainland but is under the sovereignty of the United States.) The United Nations Convention on the Laws of the Seas (UNCLOS) treats regimes of islands in the same way as it does the main archipelago, granting it its own 12nm territorial sea, 24nm contiguous zone and 200nm Exclusive Economic Zone. This is how the Philippines treats the KIG and Scarborough Shoal.
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sea lanes passage. Significantly, the right of innocent passage is a customary international law, thus automatically incorporated in the corpus of Philippine law, No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without risking retaliatory measures from the international community. Contiguous zone [24 n.m.] over which the coastal state may exercise limited control necessary to prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea. Exclusive economic zone [200 n.m.] A coastal nation has control of all economic resources within this zone, including fishing, mining, oil exploration, and any pollution of those resources, which include the sea, seabed, and subsoil to the exclusion of other states. - Exclusive right and jurisdiction with respect to establishment and use of artificial islands, offshore terminals, installations and structures, preservation of the marine environment, including prevention and control of pollution, as well as scientific research. - However, other nations have the right of navigation and overflight over this area, subject to the regulation of the coastal state. (has to be proclaimed by the State). o What is the reciprocal obligation? Must ensure proper conservation and management, and optimum utilization of living resources (must maximize allowable catch, or else, grant other States this right Continental Shelf - This is the: o 1. Seabed and subsoil adjacent to coastal state but outside territorial sea o 2. Seabed and subsoil adjacent to islands. The continental shelf extends 200 n.m., and in some cases may extend up to 350 n.m., following the natural prolongation of the soil. Rights over the Area: 1. Explore and exploit natural resources 2. Erect installations 3. Erect safety zone Does NOT extend to shipwrecks and man-made resources. Extended Continental Shelf up to 350 n.m. must be claimed by the State. - Grants Limited sovereignty over the shelf for exploration and exploitation of natural resources. Surplus catch goes to other states. What about the deep seabed? o It is beyond any national jurisdiction and cannot be appropriated What is covered by the high seas? o All parts of the sea not included in the territorial sea or internal waters. Includes CZ and EEZ. What are the freedoms in the high seas? o 1. Navigation o 2. Over-flight o 3. Fishing o 4. Laying submarine cables/pipelines o 5. Constructing artificial islands/structures
o 6. Scientific research What is the rule on hot pursuit? o A ship which has violated law or regulations of the coastal State (or CFIS, if in the contiguous zone, or EEZ rights if the EEZ) can be pursued to the high seas. o Stopped when the ship enters another States territorial sea. o The pursuing State cannot sink the ship.
International Tribunal for the Law of the Sea (ITLOS) The jurisdiction of the Tribunal comprises all disputes and all applications submitted to it in accordance with the Convention. It also includes all matters specifically provided for in any other agreement which confers jurisdiction on the Tribunal (Statute, article 21). The Tribunal has jurisdiction to deal with disputes (contentious jurisdiction) and legal questions (advisory jurisdiction) submitted to it. Contentious jurisdiction The Tribunal has jurisdiction over all disputes concerning the interpretation or application of the Convention, subject to the provisions of article 297 and to the declarations made in accordance with article 298 of the Convention. - Parties may also agree to submit to the Tribunal a dispute otherwise excluded from the Tribunal's jurisdiction. Advisory jurisdiction The Seabed Disputes Chamber gives advisory opinions on legal questions arising within the scope of the activities of the Assembly or Council of the International Seabed Authority. The Tribunal may also give an advisory opinion on a legal question if this is provided for by "an international agreement related to the purposes of the Convention" (Rules of the Tribunal, article 138). NOTE: The International Tribunal for the Law of the Sea (ITLOS) has appointed all 5 members of the United Nations Tribunal that will hear the territorial case filed by the Philippines against China over the West Philippine Sea (South China Sea. N. Madrid Protocol and the Paris Convention for the Protection of Industrial Property The sytem of International Registration of Marks is governed by two treaties o Madrid Agreement concerning the International Registration of Marks (1891) o Protocol relating to the Madrid Agreement (1996) What is the Madrid System? The Madrid System for Intl Reg. of TM provides for one single procedure for the registration of a mark in several territories. It is governed by the Madrid Agreement (1891) and the Madrid Protocol (1996), administered by the Intl Bureau of the WIPO. National Treatment under the Paris Convention (Art. 2) (1) Nationals of any country of the Union shall, as regards the protection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are
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complied with. (2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoyment of any industrial property rights. (3) The provisions of the laws of each of the countries relating to judicial and administrative procedure, jurisdiction, and to the designation of an address for service, which may be required by the laws on industrial property are expressly reserved. Same Treatment for Certain Categories of Persons as for Nationals of Countries of the Union (Art. 3) Nationals of countries outside the Union who are domiciled or who have real and effective industrial or commercial establishments in the territory of one of the countries of the Union shall be treated in the same manner as nationals of the countries of the Union. O. International Environmental Law Pertinent Intl Instruments in Envi Law o Stockholm Declaration on the Human Environment. o Rio Declaration on environment and development What are the important Principles in the Stockholm Declaration? Principle 1: Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permists a life of dignity and well-being. Principle 21: 1. States have sovereign right to exploit their own resources pursuant to their own environmental policies, and 2. The responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. Principle of Good Neighborliness Prohibits States from using or permitting the use of its territory in a manner that is injurious to another State, or its persons or property. Hinges on the maxin Sic utere tuo ut alienum (So use your own so as not to injure others). Trail Smelter Arbitration: WON Canada is liable to the US for damages caused by its smelter which produced emissions of sulphur dioxide allegedly damaging Washington state. Ruling: Yes, Canada is liable for damages since there was injury caused to the US, because a State owes at all times a duty to protect other States against injurious acts by individuals from within its jurisdiction. The smelter is enjoined from causing further damage to the State of Washington. Fundamental Principles of Liability for Transboundary Pollution in Int. Law 1. A State must show material damage and causation to be entitled to legal relief 2. A State has a duty to prevent, and may be held responsible, even for pollution by private parties within its jurisdiction, if such pollution results in a demonstrable injury to another state. (Quarendum: May this be applied to the recent Singapore haze due to the forest fires in Indonesia?)
P. International Economic Law A distinct part of international law which is related to the regulation of interstate trade, the creation of international economic institutions, the formulation of definite rules covering a wide range of economic matters and the establishment of methods of dispute resolution. - 90% of international law is economic because it includes all the international law and international agreements governing economic transactions that cross state boundaries that have implications for more than one state, like those governing movement of goods, funds, persons, intangibles, technology, vessels and aircrafts. Areas of International Economic Law a. International Trade Law regulation of the exchange of goods and services across borders. Predominantly based on reciprocity and mutual benefits between State parties (WTO) b. International Anti-trust and competition law governs interplay of domestic competition (antitrust) rules concerning the issue of undertakings. c. International Investment Law Covers the promotion of foreign investments and their protection against interference by the Host state. d. International Monetary Law like the IMF rules for surveillance of currency arrangements and assistance to Member States in case of balance of payment deficits. Characteristics of International Economic Law: 1. International economic law is a part of public international law 2. International economic law is entwined with municipal law and is balanced accordingly with it. 3. International economic law requires multidisciplinary thinking because it involves many other disciplines such as history, political science, anthropology, geography, et cetera. 4. Empirical research is important for understanding its operation. Important economic institutions: International Monetary Fund (IMF): To provide short-term financing to countries in balance of payments and difficulties International Bank for Reconstruction and Development (World Bank): To provide long-term capital to support growth and development World Trade Organization (WTO): Intended to promote a liberal trading system by proscribing certain protectionist trade rules. General Agreement on Tariff and Trade (GATT) World Trade Organization (WTO) are the two most important trade-oriented institutions because they shape import and export laws which impact international trade and services. Key principles of International Trade Law: Agreed tariff levels: Each state agrees not to raise tariff levels above those contained in the schedule. The schedule is open to renegotiation. Most favored nation clause/principle: Embodies the principle of non-discrimination. Any special treatment given to a product from one trading partner must be made available for like products originating from other contracting partners. AKA tariff concessions.
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Principle of national treatment: This prohibits discrimination between domestic producers and foreign producers. Once foreign producers have paid border charges, no additional burdens may be imposed. Principle of tariffication: Prohibits the use of quotas on imports or exports and the use of licenses on importation or exportation. Prevents the imposition of non-tariff barriers. Exceptions to Key Principles: General: Public morals, public health, currency protection, products of prison labor, national treasures of value and protection of exhaustible natural resources.
Specific: Security and regional trade exceptions, such as exception for developing nations. Tanada v. Angara: The Court ruled that the GATT was not going to be detrimental to the Philippines because of the exceptions it provides to developing nations in accordance with its view towards raising standards of living and optimal use of world resources for sustainable development. For example, the WTO gives developing countries a more lenient treatment by aiding and protecting their domestic industries.
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PUBLIC INTERNATIONAL LAW A.

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Residence may be entered subject to ordinary procedures No

May be issued traffic ticket Yes

May be subpoenaed as witness

May be prosecuted for unofficial acts No

Official family member

Same as sponsor Same as sponsor No2

No1 Yes2 Yes, if for a felony and pursuant to a warrant.2 Yes

Career consular officers

economic issues, such as the issuance of visas.

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Ratification in accordance with constitutional processes of the parties concerned

Treaties Basic political issues Changes in national policy

Possessed by every state as attribute of sovereignty

Generally, exercised by Head of State.

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

Political Law Review 2013 PUBLIC INTERNATIONAL LAW

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