PUBLIC INTERNATIONAL LAW NOTES

Definition:
- Body of rules and principles of action
- Which are binding upon civilized States in their relations with one another or upon the members
of the international community in their mutual relations
- Mutual relations

Other relations:
1) Between international organizations and States
2) Among international organizations themselves
3) Between States or international organizations and natural or juridical persons

International Law was coined by Jeremy Bentham

Father of International law is Hugo Grotius.

Three Main Schools of International Law

NATURAL POSITIVIST ECLECTIC OR GROTIAN

There are certain normative
principles or postulates that are
true or self-evident and which
exist independently of their
codification or enforcement by
human beings
- Norms are valid only Part of a product of natural law
insofar as they have and positive consent of the
been created according States to be bound by its rules
to a definite and
discernible rule
- All norms can be traced
back to an ultimate rule,
according to which the
norms of this order are
established, annulled,
receive or lose their
validity
- Law is independent of
morality

Is International Law true law?

- No sovereign supranational body to enforce International Law

- Recognized as law in practice and the sanctions for failing to comply, although often less direct,
are similar to those of municipal law
- Include the force of public opinion, self-help, intervention by third-party States, the sanctions of
international organizations

Manifestation of the States (to be bound by International Law)

1) Expressed- treaties or conventions
2) Implied- customs
3) Presumed general principles of law
Basis of International Law

1) Direct Consent
- absence of any form of international legislature, competent to enact law after the manner of
the legislatures of democratic States
- upon their individual acceptance of its principles and rules

2) Implied Consent a fiction to account for the acceptance of the great body of principles and
specific rules that had come from the body of customary law

3) Mutuality of Interest
- International law is subjective law

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 - Binding force depended upon the mutuality of interest, which could only be maintained by
altering from time to time such rules as it might be no longer to the interest of the parties to
observe

4) Necessity
- The fact that nations have common interests constitutes the actual community of Statesand at
the same time imperatively demands a rule of law
- International law may be said to be based upon the very necessity for its existence

International Comity or Comitas Gentium

- Refers to the rules of:

o Politeness
o Convenience
o Goodwill
Which are observed by States in their mutual intercourse without being legally bound by them
- Example: neighborliness, mutual respect, friendly waiver of technicalities which are involved,
exemption of diplomatic envoys from customs duties
- Such rules may develop into rules of customary international law when maintained over a long
period

Hard Law vs Soft Law

HARD LAW SOFT LAW

Refers to binding international legal norms or Refers to norms that are non-binding in character
those which have coercive character
1) U.N. Charter
2) Vienna Convention on Diplomatic
Relations
3) Geneva Convention of 1949
4) Other treaties in force
but still have legal relevance
1) UN General Assembly
2) Draft articles of International Law
Commission
Serves a s a precursor of hard law (e.g The
Universal Declaration of Human Rights)
Not a law
Meant to indicate that the instrument or provision
in question is not itself law but significant in
signaling the evolution and establishment of
guidelines which may ultimately be converted into
legally binding rules
Important and influential but do not themselves
constitute legal norms

Yogyakarta Principles
- Human rights in relation to sexual orientation and gender identity
- Not binding on the Philippines
- Considered as soft law

Public International Law vs Private International Law

Public International Law Private International Law or Conflict of Laws

Regulates Selects between conflicting municipal systems of
1) the relationship between states and law to regulate the relationship between persons
international entities
2) competing demands
Establishes the frameworks for predictable and Focuses on the conduct of individuals,
agreed behavior among the parties corporations and other private entities

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RELATIONSHIP BETWEEN INTERNATIONAL LAW AND NATIONAL LAW
Incorporation or Applicability of International Law

Article II, Section 2 of the 1987 Philippine Constitution

adopts in the generally accepted principles of International Law as part of the law of the land and adheres
to the policy of peace, equality, justice, freedom, cooperation and amity of with all nations

Validity of Treaties and International Agreements

Article VII, Sec 2 of the 1987 Philippine Constitution

No treaty or international agreement shall be valid and effective unless concurred by at least two-thirds
of all the Members of the Senate

Note: not required for foreign loan agreements (requires the prior concurrence of the Monetary Board
and subject to such limitations as may be provided by law)

Standing of International Agreements Vis--vis the Constitution

Article VIII, Section 5 of the 1987 Philippine Constitution

Supreme Court shall have the power to review the constitutionality or validity of any treaty, international
or executive agreement.

Compliance of International Treaty Obligation on Human Rights

Article XIII, Sec 18(7) of the 1987 Philippine Constitution

The Constitution has created a Commission on Human Rights to monitor the Philippine Governments
compliance with international treaty on human rights

Allowance of Foreign Military Bases

Article XVIII, Sec 25 of the 1987 Philippine Constitution

foreign military bases, troops, or facilities shall not be allowed in the Philippines except under a treaty
duly concurred in by the Senate and, when the Congress so requires, ratified by a majority of the votes
cast by the people in a national referendum held for that purpose, and recognized as a treaty by the other
Contracting State

SOURCES OF INTERNATIONAL LAW

(under Article 38 of the Statute of the International Court of Justice)

Definition Examples
1) International Whether general or particular, Vienna Convention on the Law
Conventions establishing rules expressly of Treaties
recognized by the contesting
States
2) International Custom Evidence of general practice Prohibition against genocide,
accepted as law torture, slavery, crimes against
humanity
3) General Principles of Recognized by civilized nations Pacta sunt servanda
Law Res judicata
Due process

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 4) Judicial Decisions and Subsidiary means for Decisions of the International
teachings of the most determination of the rules of law Court of Justice and municipal
highly qualified tribunals dealing with matters of
publicists of the various International Law
nations
Nos. 1 to 3 are principal sources of International Law

Ex Aequo et Bono
- by what is fair and good or from equity and conscience
- refers to the power of arbitrators to dispense with consideration of the law but consider solely
what they consider to be fair and equitable in the case at hand
- Application of the sources of international law, shall not prejudice the power of the Court to
decide a case Ex Aequo et Bono if the parties agree thereto

Non Liquet
- it is not clear
- Refers to a situation where there is no applicable law
- The parties have not agreed to have their case decided ex aequo et bono

Article 129 of the Rules of Court

- Take judicial notice of existence and principles of International Law
- Law of nations, the admiralty and maritime courts of the world and seals

Norm
- Refers to a model or standard accepted by society or other large group
- Which society judges something
- Shared expectations of about what behavior is considered proper

GENERAL PRINCIPLES OF TREATY LAW

TREATY
- Defined by Article 2 of the 1969 Vienna Convention on Law of Treaties
- International agreement concluded between States
- In written form
- Governed by the International law
- Whether embodied in a single instrument or in two or more related instruments and whatever its
particular designation

Requisites:
1) Between States
2) In written form shall not affect the legal force of agreements that are not written in form (when
what was agreed upon is not a treaty) e.g. phone conversation between Denmark and Finland by
their respective prime ministers
3) Governed by International Law

Law-Making Treaties
- Multilateral agreements that create legal obligations
- Observance of which does not dissolve the treaty obligation
- Create general norms for the future conduct of parties in terms of legal propositions
- The obligations are basically the same for all parties

Contract Treaties
- Bilateral or multilateral agreements
- For the mutual interchange of benefits between the parties
- Create reciprocal or concessionary obligations between and towards particular parties only and
not towards the whole international community

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Some Treaties to which the Philippines is party thereto

1) United Nations Charter (October 24, 1945)

2) 1946 RP-US Treaty of General Relations
3) 1949 Geneva Conventions
4) 1950 Genocide Convention
5) 1951 RP-US Mutual Defense Treaty
6) 1951 Treaty of Peace with Japan
7) 1954 South East Asian Treaty Organization
8) 1982 Convention on the Law of the Sea
9) 1994 RP-US Extradition Treaty
10) 1998 Visiting Forced Agreement with the United States

Other Terms Used to refer as Treaty

1) Act
2) Protocol
3) Agreement
4) Compromis d arbitrage
5) Concordat- treaty or agreement between the Pope and a State or Government that deals with
religious matters, as well as the recognition and privileges of the Holy See in the other States
6) Convention
7) Declaration
8) Exchange of notes
9) Pact
10) Statues
11) Charter
12) Modus Vivendi- temporary or provisional agreement, usually intended to replace later on, if
circumstances permit, by one or more permanent and detail character

Restrictions on subject Matter of Treaties

1) Jus Cogens restrictions

- peremptory norm or compelling law
- A treaty is void if, at the time of its conclusion, it conflicts with the peremptory norm of general
International Law
2) UN Charter restrictions in case of conflict, obligations under such charter shall prevail

How a Treaty may violate international law

1) At the time of its conclusion it conflicts with a peremptory norm of general international law
2) Or if its conclusion has been procured by threat or use of force in violation of the principles of
international law embodied in the Charter of the United Nations

Pacta tertiis nec nocent nec prosunt

General Rule: a treaty does not create either obligations or rights for a third State without its consent
Exception: when a treaty may become binding upon a third State as a customary rule of international law
when it is recognized as such

Jus Cogens Norms

- Compelling, peremptory or an imperative norm accepted and recognized by the international
community of the States as a whole norm from which no derogation is permitted
- Can be modified only by a subsequent norm of general International Law having the same
character
- Article 53, Vienna Convention
Examples:
1) Prohibition, prosecution, and punishment of genocide, crimes against humanity and war crimes
2) Prohibition of torture

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 3) Prohibition of slavery, slave trade and piracy
4) Prohibition of wars of aggression and territorial aggrandizement
5) Prohibition of apartheid racial segregation or discrimination

Three Groups of Jus Cogens Norms

First Group Encompasses the maxims of International Law, which protect the foundations of
law, peace and humanity in the international order and which at present are
considered by nations as the minimum standard for their mutual relations
Second Group Covers rules of peaceful cooperation in the sphere of International Law, which
protects fundamental common interests
Third Group Regards the protection of humanity, especially of the most essential human rights

Jus Cogens vs Jus Dispositivum

Jus Cogens Jus Dispositivum

compelling law disposable law
Obligations erga omnes (in relation to everyone) Refers to norms of ordinary Customary
International Law which are derived from consent
of the States and therefore only bind States which
consented thereto
They are duties which every State owes to the
international community 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

Treaty-making Process
1) Negotiation
2) Adoption to the text
3) Authentication of the text
4) Conclusion signature plus ratification, consent or acceptance by the State is required

Representatives of a State for purposes stated above

1) Produces appropriate plein pouvoir (full powers)
By virtue of functions deemed to possess full powers:

For the purpose of performing all acts relating to the conclusion of a treaty:
a) Heads of State
b) Heads of Government and Ministers for Foreign Affairs

For the purpose of adopting the text of a treaty between the accrediting State and the State to
which they are accredited
c) Heads of diplomatic Missions

For the purpose of adopting the text of a treaty in that conference, organization or organ
d) Representatives accredited by the States to an international conference or to an international
organization or one of its organs

2) It appears from the practice of the States concerned or from other circumstances that their
intention was to consider that person as representing the State for such purpose and to dispense
will full powers

Other Definitions:

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 1) Protocol de Cloture instrument which records the winding up of the proceedings of a diplomatic
conference and usually includes a reproduction of the texts of treaties, conventions,
recommendations and other acts agreed upon and signed by the plenipotentiaries attending the
conference and not a treaty itself; summary of the proceedings
2) Alternat- principle which provides that a States own name will be listed ahead of the other
signatory or signatories in its own official copy of the treaty
3) Accession process by which a State expresses its consent to be bound by an already existing
treaty
4) Reservation unilateral Statement, however phrased or named, made by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify
the legal effect of certain provisions of the treaty in their application to that State

General Rule: State may formulate a reservation when signing, ratifying, approving or acceding to a
treaty
Exception:
1) Reservation is prohibited by the treaty
2) Treaty provides that only specified reservations, which do not include the reservation in question,
may be made
3) Reservation is incompatible with the object and purpose of the treaty

Confidentiality of Diplomatic Negotiations (Doctrine of Executive Privilege)

- information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest
- secrecy of the negotiations with foreign countries is not violative of the constitutional provisions
of freedom of speech or of the press nor of the freedom of access to information
- contracts entered into by the Government in its proprietary or commercial capacity is not covered
by the Doctrine of Executive Privilege because these are matters of public concern

Goldwater vs Carter (2008 Bar)

The Philippine Supreme Court should sustain the validity of the treaty abrogation by the President alone.
The Constitution is silent as to the Senates participation in the abrogation of a treaty. In light of the
absence of any constitutional provision governing the termination of a treaty, and the fact that different
termination procedures may be appropriate for different treaties, the case must surely be controlled by
political standards, even more so because it involves the conduct of foreign relations

Treaty is Suspended or Terminated

1) agreement of the parties, if the treaty so provides
2) if the goal of the treaty is already realized
3) termination due to a material breach
4) supervening impossibility of performance
5) fundamental change in circumstances

Rebus sic stantibus- it is a fundamental change of circumstances which has occurred with regard
to those existing at the time of the conclusion of a treaty, and which was not foreseen by the
parties)
General Rule: not a valid ground for terminating or withdrawing from treaty unless:
a) existence of those circumstances constituted an essential basis of the consent off the parties
to be bound by the treaty
b) the effect of the change is radically to transform the extent of obligations still to be performed
under the treaty

Requisites:
i. fundamental change in the circumstances
ii. change was not foreseen by the parties
iii. existence of those circumstances constituted an essential basis of consent of the parties to
be bound by the treaty

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 iv. change in the circumstances must radically transform the extent of obligations still to be
performed under the treaty

6) later inconsistent treaties between the parties

7) war between contracting parties
State may not invoke its internal as a justification for its failure to perform a treaty; may invoke
the fact that its consent to be bound by a treaty has been expressed in violation of a provision of
its internal law regarding competence to conclude treaties as invalidating consent

Doctrine of Unequal Treaties

- Treaties are unequal either because of their substance or because of the unequal procedure are
not legally binding

Material Breach of a Treaty

a) repudiation of the treaty not sanction by the Vienna Convention
b) violation of a provision essential to the accomplishment of the object or purpose of the treaty

Pacta Sunt Servanda

- every treaty in force is binding upon the parties to it and must be performed by them in good faith
- general rule on the interpretation of treaties
- a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose

Travaux Preparatories
- preparatory work of a treaty that contains its legislative history

Executive Agreements
- international agreements embodying adjustments of details of carrying out well-established
national policies and traditions and those involving arrangement of a more or less temporary
nature
- cover wide array of subjects that have various scopes and purposes
- involve arrangements on the implementation of existing policies, rules, laws or agreements
- Concluded to:
1) Adjust the details of a treaty
2) Pursuant to or upon confirmation by an act of the legislature
3) Exercise of the Presidents independent powers under the Constitution
- The raison detre hinges on prior constitutional or legislative authorizations

Executive Agreement Treaty

Point of view No difference: has binding effect upon No difference: has binding effect upon
of States concerned as long as the States concerned as long as the
International negotiating functionaries have remained negotiating functionaries have
Law within their powers remained within their powers
Philippine Concluded by the President base on Concluded by the President with the
Law as to the authority granted by Congress or based advice and consent of the State (two-
conclusion on the inherent authority granted to the thirds of all the members of the Senate)
President by the Constitution

Customary International Law

- Consists of rules of law derived from the consistent conduct of the States acting out of the belief
that the law required them to act that way

Elements:
1) Duration or Long State Practice
2) Consistency of the State practice or the widespread repetition by States of similar international
acts over time
3) Generality of the State Practice or that the acts are taken by a significant number of States and
not rejected by a significant number of States

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 4) Opinio Juis Sive Necessitatis or the requirement that the acts must occur out of a sense of
obligation

Two Approaches:
a) Objectivist approach- considers customary norms of International Law as having universal
application and therefore binding on all States

b) Participatory Approach- considers that the rules of law binding upon States emanate from their
own free will as expressed in conventions or by usages generally accepted as expressing principles
of law and established in order to regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims; restrictions upon the
independence of States cannot therefore be presumed

Doctrine of Persistent Objector Doctrine

- If a State persistently objects to a developing norm of International Law, it will not be bound by
that norm when it ripens into a customary norm
- Valid defense against the enforceability of a customary norm to the persistent objector unless the
customary norm attains the status of a peremptory norm

Usage- general practice which does not reflect a legal obligation

EQUITY IN INTERNATIONAL LAW

EX AEQUO ET BONO
- According to what is equitable and good
- Power given to the court or an arbitral panel to resolve dispute based only on equity and
conscience, even disregarding the law
- International Court may decide a dispute based on such principle

Three Functions it may perform:

1) Equity infra legem - It can be used to adapt the facts of the individual cases
2) Equity praeter legem used to fill gaps in the law
3) Equity contra legem used as a reason for refusing to apply unjust laws

INTERNATIONAL AND MUNCIPAL/NATIONAL LAW

Theoretical Approaches
1) Monism
- supposes that the International Law and national law are simply two components of a single body
of knowledge called law
- law is seen as a single entity of which national and international version are merely particular
manifestations

2) Dualism
- Considers International Law and national law as independent of each other
- Both systems are regarded as mutually exclusive and independent
- Exist side by side within different spheres of action the international plane and the domestic
plane

Under the Philippine Constitution

1) Transformation requires that an international law be transformed into a domestic law through
a constitutional mechanism such as local legislation
2) Incorporation applies when, by mere constitutional declaration, international law is deemed to
have the force of domestic law

Doctrine of Incorporation

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 Rules of international law form part of the law of the land no further legislative action is needed
to make such rules applicable in the domestic sphere
In case of conflict, municipal law shall be upheld
Section 2, Article II of the 1987 Philippine Constitution
Restrictive (only generally accepted principles of International Law) and automatic (becomes part
of the law of the land)

Transformation Theory
- The rules of International Law do not become part of domestic or national law until they have
been expressly adopted by the State
- Requires deliberate act on the part of the State concerned
- To be determined by its own national laws

2 Types:
1) Hard Transformation Theory- holds that only legislation can transform International Law into
domestic law
2) Soft Transformation Theory- hold that either a judicial or legislative act of a State can transform
International Law to domestic law

Charming Betsy Canon- an act of the Congress ought never to be construed to violate the law of nations
if any other possible construction remains

Norms adopted by the Philippine Constitution:

1) Renunciation of war
2) Immunity of States

SUBJECTS

SUBJECTS OBJECTS
One to whom the rules of International law are Person or entity for which the subjects of
addressed International Law hold rights and
obligations in the international order

Directly qualified or obligated by the rules of Traditional dichotomy, individuals

International Law

Traditional dichotomy, only States are considered Things in respect to which rights are held
and duties imposed
Persons to whom the law attributes rights and duties According to Oppenheim- individuals are
granted rights by their municipal laws
According to Oppenheim- only States are subjects
According to Fenwick- individuals are the subjects but
because of practical necessity, the State becomes the
agent of the individuals

Act of Individual = Act of State

- Act is performed by an individual who, as an organ of the State, is competent under the law to
represent the State in relation to other States
- E.g. Heads of States

A. Individuals

Nationality Principle
- Provides that it is for each Sate to establish its own standards for conferring Nationality

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Nationality
- bond which unties a person to a given State
- constitutes membership in a particular Sate
- gives him a claim to the protection of the Sate and which subjects him to the obligations created
by laws of the State
- interchanged with citizenship- possessed of the full rights and privileges of membership in a
political community

Status of Individual under International Law

- may be regarded as true subjects
- directly and individually subjects of obligations, responsibilities and rights established by Intl Law
- indirectly and collectively, in their capacity as organs or members of the State, subjects of the
obligations, responsibilities and rights presented as obligations, responsibilities and rights of the
State
- private individual in the field of recognition of Human Rights

Peoples Right to Self-Determination

- freely determine their political status and freely pursue their economic, social and cultural
development
- equal rights of self-determination
- does not extend to unilateral right of secession
Secession or External Self-Determination the establishment of a sovereign and independent State or the
emergence into any other political status freely determined by a people constitute modes of
implementing the right to self-determination by that people.

STATELESSNESS
Stateless Persons
- person who is not considered as a national by any State under the operation of its law
- has the obligation to the country he finds himself, to conform to the laws and regulations as well
as to measures taken for the maintenance of public order

Kinds of Stateless persons

1) De Jure- status of individuals stripped of their nationality by their former government without
having an opportunity to acquire another
2) De Facto status of individuals possessed of a nationality whose country does not give them
protection outside their own country and referred to as refugees

Consequences of Statelessness
- A problem of identity under the law
- Results in the inability to enjoy the rights and freedoms afforded by the law
- Inability to exercise:
o The right to work
o Own property
o Access to health care
o To education
o Ability to travel, vital right to leave and return
o States right to grant diplomatic protection and to represent an individual at the
international level

Rights of Stateless Persons

1) Shall be accorded the same treatment which is granted to a national of the country of his habitual
residence artistic rights, elementary education, public relief and assistance
2) Not less favorable than that accorded to aliens generally in the same circumstances with respect
to rights to movable and immovable property, right to association, wage-earning employment,
liberal professions, housing, freedom of movement
3) Shall be issued identity papers in their territory when he does not possess a valid travel document

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 4) May not be expelled in the territory of the Contracting State unless on the grounds of national
security or public order.

Prevent Statelessness
1) A Contracting State shall grant its nationality to a person born in its territory who would otherwise
be stateless
2) Shall grant its nationality to a person, not born in the territory, who would otherwise be stateless,
if the nationality of one of his parents at the time of the persons birth was that of the State

Refugee
- A person who owing to well-founded fear of being persecuted for:
o Race
o Religion
o Nationality
o Membership of a particular social group or political opinion
- Outside the country of his nationality and is unable or is unwilling to avail himself of the
protection of that country
- Who not having a nationality and being outside the country of his former habitual residence as a
result of such events, is unable or, owing to such fear, is unwilling to return to it

Doctrine of Effective Nationality

- Within a third State, a person having more than one nationality shall be treated as if he had only
one
Recognize exclusively in its territory either the nationality of the country
1) Which he is habitually and principally a resident
2) Nationality of the country with which in the circumstances he appears to be in fact most
closely connected

B. States
- An entity that has a defined territory and permanent population, under the control of its own
government, and that engages in, or has the capacity to engage in, formal relations with other
such entities

Facts of Statehood
1) Permanent population
2) Defined territory
3) Government
General Rule: necessary to carry out the duties and able to assert itself without aid of foreign
troops
Exceptions:
a) Lack of effective government due to civil war, newly gained independence or similar
upheavals
b) Simple change in regime and even conflicting claims of governmental authority will not
disqualify an entity from statehood
c) Occupied by and enemy in times of war continues to be a State as long as allies are fighting
on its behalf against it enemy
4) Capacity to enter into relations with other States

Existence of a State
- When a community acquires not momentarily, but with a reasonable probability of permanence,
the essential characteristics of a State, namely an organized government, defined territory, and
such a degree of independence of control by any other State as to be capable of conduction its
own international relations

When does a State become a SUBJECT of International Relations?

- from the moment of its establishment with respect to peremptory norms and obligations erga
omnes under Customary International Law

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 - express consent or recognition by other States is necessary for the new Sate to be bound by the
said norms and obligations
Co-optation- individual and collective recognition on the part of the already existing States

Nation- body of people more or less of the same race, language, religion and historical traditions

Classification of States
1) Sovereign States
- those enjoying full membership in the international community
- exercise undivided authority over all persons and property within the borders
- independent of direct control of any other power

2) Neutralized States
- Status of permanent neutrality in all future wars was formally imposed by a group of great powers

3) Dependent States
- Practical complete control of their domestic affairs
- internal independence
- Subject to a greater or lesser degree of independence upon another State in respect of their
control over their relations with third States

a) Vassal States or States under Suzerainty

Subject to a bond of vassalage and were in respect to their foreign affairs dependent upon
a suzerain State to which they pay formal homage
b) Protectorates
State which has by formal placed itself under the protection of a stronger power,
surrendering to the latter control over its foreign affairs

4) Confederation and Unions states which are associated for certain specific purposes
1) Real union- a special form of confederation which exists when two or more severally
sovereign States have the same monarch and for international purposes act as on State
2) Federal State control of the external relations of all the member States has been
permanently surrendered to a central government so that the only State which exists for
international purposes is the State formed by the Union
3) Confederation though a central government exists and exercises certain powers and does
not control all the external relations of the member States

Concept of Association
- When two or more States of unequal power voluntarily establish durable links
a) Associate- one state delegates certain responsibilities to the other
b) Principal- while maintaining its international status as a state

DE FACTO GOVERNMENT DE JURE GOVERNMENT

Impliedly a government which is in control but Lawfully in power even though it retains little
illegally so actual power

Three Kinds of De Facto Government

1) Government that gets the possession and control of, or usurps, by force or by the voice of
majority, the rightful legal government and maintains itself against the will of the latter
2) Government of paramount force which is established and maintained by military forces who
invade and occupy a territory of the enemy in the course of war
3) Established as an independent government by the inhabitants of a country who rise in
insurrection against the parent State

Principle of State Continuity

- Once the identity of the State as an international person has been fixed and its position in the
international community established, the State continues to be the same corporate person
whatever changes may take place in its internal organization and government

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 - May withstand even the most radical transformations in its constitution

State Succession
- Shift of responsibility over a territory form State to another State
- Affects the legal identity of a State and its treaty obligations
- Occurs with the secession of the States, annexation, merger and consolidation and decolonization
- Substitution of a new sovereign over the territory in question and it calls for the determination
not of the de jure character of the sovereign but of the right of the new sovereign to assert the
claims of the former sovereign in respect to the particular area of territory and the duty to meet
its obligations

Kinds of Succession
1) Universal- on State completely absorbs the international personality of another State and thereby
becomes the sole representative at law of the rights and obligations of the latter State
2) Partial- when an existing State takes over, whether by force or voluntary cession, the sovereignty
of a portion of territory formerly belonging to another State

Clean Slate Doctrine

- Newly-independent State begins its existence free of the obligations of its predecessor State
- Not obliged to become a party of any treaty by reason only of the fact that at the date of the
succession of States the treaty was in force in respect of the territory to which the succession of
State relates

Newly-Independent State
- A successor State the territory of which immediately before the date of the succession of States
was a dependent territory for the international relations of which the predecessor Sate was
responsible

Status of Vatican
- Officially recognized the sovereignty of Holy See in 1929
- The Lateran Treaty of 1929
- Unique and exceptional character
- Represents in a community of national States an institution organized primarily for international
objects, whose legal personality is marked by a few acres of territory and a handful of subjects
but whose worldwide interests and activities are such as to make it in a sense an International
State
- Papal Nuncio- ambassador

Ex injuria jus non oritur Principle

- A right cannot arise from a wrong
- Illegal act cannot produce legal rights

Doctrine of Equality of States

- All States are equal in International Law despite their obvious factual inequalities as to size,
population, wealth, strength, or degree of civilization

What is Independence
- Right to exercise to the exclusion of any other State the functions of a State

Right to Independence
- Right of State to be free from control by any other State in the management of its domestic affairs
and in the determination of its relations with other members of the international community

Two Distinct Aspects:

1) Internal Independence (right of national self-government) the supreme authority or jurisdiction
of the State to control all persons and property within its territorial domain
2) External Independence the supreme power of the State to determine the relations it desires to
maintain with other States, without interference on the party of any Third State

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Obligations ERGA OMNES
- Owed by States towards the international community
- in relation to everyone
o Prohibition of acts of aggression
o Prohibition of genocide, piracy, slavery, racial discrimination
o Obligations concerning the protection of basic human rights, self-determination and
obligations relating to the environment
Remedies in case of Breach
1) Cessation of the internationally wrongful acts
2) Performance of the obligation of reparation in the interest of the State, entity or individual which
is especially affected by breach
3) Restitution should be effect unless materially impossible

STATE RESPONSIBILITY
- every internationally wrongful act of a State entails the international responsibility of the State
Elements of Internationally wrongful act of a State:
1) attributable to the State under International Law
2) constitutes a breach of an international obligation of the State

Attribution or Imputability
- legal construct whereby an internationally unlawful conduct of a State organ acting in that
capacity is regarded as the conduct of the State itself, making that State responsible for it as an
internationally wrongful act
- must be acting on the instructions or under the direction or control of the Sate in carrying out the
conduct

Calvo Doctrine Calvo Clause

State has no -contracts between the government and aliens
responsibility for losses -prevents appeals by aliens to their home governments for diplomatic
suffered by aliens in time intervention in behalf of their contract rights
of civil war -not to give rise to any international reclamation

State is responsible for the wrongful act of another State

1) aids or assists in the commission of an internationally wrongful act
2) directs and controls another State in the commission of an IWA
3) coerces another State to commit IWA
Requisites:
a. State does so with knowledge of the circumstances of the IWA
b. Act would be considered an IWA if committed by that State

Reparations:
1) Restitution
2) Compensation
3) Satisfaction

Restitutio in integrum
- Fundamental principle
- Governs the duty to make reparation for an IWA
- The reparation must, as far as possible, wipe out all the consequences of the illegal act and
reestablish the situation which would, in all probability, have existed if the act had not been
committed

STATE SOVEREIGNTY
- Independent personality of the Sate in relation with other members of the international
community
- Over certain territory: supreme, absolute, and uncontrollable power by which any independent
State is governed

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 - Absolute right to govern or jus summa imperri

Absolute Sovereignty
- The jurisdiction of the nation within its own territory is necessarily exclusive and absolute
- Any restriction upon it, deriving validity from an external source, would imply a dimuniton of its
sovereignty to the extent of the restriction, ad an investment of that sovereignty to the same
extent in that power which could impose such restriction

Principle of Auto-Limitation
- The concept of sovereignty as auto-limitation is the property of a State-force due to which it has
the exclusive capacity of legal self-determination and self-restriction
- Any State may, by its implied or express consent, submit to a restriction of its sovereign rights
- A State then, if it chooses to, may refrain from the exercise of what otherwise is illimitable
competence
- There may be a curtailment of what otherwise is a power plenary in character

Reciprocity Principle of Auto-Limitation

Underlying consideration behind the principle of Partial surrender of sovereignty
auto-limitation

Nominal Sovereignty Residual Sovereignty

Grantee
In time of peace, under treaty may receive
considerable powers of administration amounting
to a delegation of the exercise of many of the
powers of the territorial sovereign to the
possessor for a particular period
grantor
In time of peace, allows portions of its territory to
be occupied by a foreign State on the basis of a
treaty

Intervention Non-Intervention
- Denotes almost any act of interference by - Norm which prohibits States from
on state in the affairs of another, domestic interfering into the domestic or foreign
or foreign, which violate the States affairs of another State
independence
- Imperative form or backed by the threat
of force
Grounds: -
1) Measure of self-defense by the State
2) Measure of legitimate reprisal
3) Takes place under a treaty giving such
right to the intervening State
4) For humanitarian reasons

C. International Organizations

- Refers to public or intergovernmental organizations

- Typically are:
1) Institutions established by a treaty (charter) which serves as the constitution of the
organization
2) Composed of members that are States or international organizations
3) Regulated by International Law
4) Endowed with a legal personality, generally can engage in contracts, and can sue and be sued
in national courts subject to certain immunities
- Organized mainly as a means for conducting general international business in which the member
States have an interest

Specialized Agencies

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 - Have functions in a particular fields
- Posts, telecommunications, railways, canals, rivers, sea transport, civil aviation, meteorology,
atomic energy, finance, trade, education and culture, health and refugees

Supranationality
- Internationally organization generally regarded as one that has the power to bind its member
States by its decisions
- More governmental authority and law-making power in relation to their member States than to
traditional international organizations
- Authority of the organization to make its law directly applicable and enforceable within the
territory of the member States without further execution by the national governments

Supranational Organization
1) Decisions of these organizations are generally binding upon the members of the government
2) Has the power to enforce its decisions
3) Unilateral withdrawal is usually not possible
- States transfer a larger degree of sovereignty to them than to international organizations

United Nations
- A public organization of States
- Established by the intergovernmental cooperation after the Second World War
- Established on October 24, 1945
- Has its own juridical personality
o Capacity to contract
o Acquire and dispose movable and immovable property
o Institute legal proceedings

Four Purposes (according to Charter):

1) Maintain international peace and security
2) Develop friendly relations among nations
3) To cooperate in solving international problems and in promoting respect for human rights
4) To be a center for harmonizing the actions of nations

Principle of Charter Supremacy

- In the event of conflict between the obligations of the members of the UN under the Charter and
their obligations under any other international agreement, their obligations under the Charter
shall prevail

Principle of International Constitutional Supremacy

- Places the UN Charter at the apex in the hierarchy of international law norms
- Giving it a status comparable to a national constitution in a national law

Domestic Jurisdiction Clause

- Prohibits the United Nations from intervening in matters which are essentially within the
domestic jurisdiction of any State

Classes of Members of United Nations

1) Original Members
2) Non-Original Members admitted to membership by a decision of two-thirds majority vote in the
General Assembly upon the recommendation of a qualified majority in the Security Council

Great Power of Unanimity or Veto Power (Yalta Formula)

- Each member of the Security Council (France, China, Russia, United States of America, Kingdom
of Great Britain and Northern Ireland and 10 other members elected with 2 years term)
- Procedural Questions --- decided by affirmative vote of any nine members or more
- Non-Procedural Questions --- decided by affirmative vote of nine members including the
concurring votes of the permanent members

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International Court of Justice
Seat: Peace Place in The Hague (Netherlands)
Members: 15 members, no two of whom may be nationals of the same State
Term: 9 years and may be elected
Incumbent President: Ronny Abraham (France)

JURISDICTION OF STATES
International Jurisdiction
- Allocation of authority among States

Types of Jurisdiction:
1) Jurisdiction to prescribe
2) Jurisdiction to enforce
3) Jurisdiction to adjudicate

Under International Law As Adopted by the Philippines

A. Territoriality Principle
I. Subjective Territoriality if an activity takes
place within the territory of the forum
State, then the latter has the jurisdiction to
prescribe a rule for that activity
II. Objective Territoriality action takes place
outside the territory of the forum State, but
the primary effect of that activity is within
the forum State
B. Nationality
I. Active Nationality forum State asserts the
right to prescribe a law for an action based
on the nationality of the actor
II. Passive Nationality based on the
nationality of the victim
C. Protective Principle expresses the desire of a
sovereign to punish actions committed in other
places solely because it feels threatened by
those actions or when the vital interests of the
State are threatened
D. Universality right of sovereign to capture
pirates, slavery, genocide, hijacking, war crimes
and crimes against humanity
penal laws and those of public security
and safety shall be obligatory upon all
who live or sojourn in the Philippine
territory, subject to the principles of
public international law and to treaty
stipulations
laws relating to the family rights and
duties, or to the status, condition and
legal capacity of persons are binding
upon citizens of the Philippines, even
though living abroad
Revised Penal Code enforceable within
the Philippine Archipelago and outside
its jurisdiction (Article 2)
e.g. piracy

STATE IMMUNITY
- Doctrine of Sovereign Immunity
- A State may not be sued without its consent in the local courts of another State as a necessary
consequence of the principles of independence and equality of States
- Parem non habet imperium among equals, there can be no superior

Restrictive Theory
- The immunity of the sovereign is recognized only with regard to public acts or acts jure imperii,
but not with regard to private acts or acts jure gestionis

Suggestion
- When a State or international agency wishes to plead sovereign or diplomatic immunity in a
foreign court, it requests the Foreign Office of the State where it is sued to convey to the court
that said defendant is entitled to immunity

DIPLOMATIC AND CONSULAR IMMUNITY

Privileges and Immunities of Diplomatic Agents

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 1) Diplomatic Inviolability person of the diplomatic agent, his residence, and the diplomatic
premises and property may not be the subject of any kind of interference on the part of the
receiving State which is legally bound to afford him protection
2) Shall not be liable to any form of arrest or detention
3) Private residence of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission
4) Immunity from criminal jurisdiction of the receiving state but the immunity from jurisdiction may
be waived by the Sending State
5) Not obliged to give evidence as a witness
6) With respect to services rendered for the sending State be exempt from social security provisions
which may be in force in the receiving State
7) Exemption from dues and taxes, personal or real, national, regional or municipal
8) Exemption from all personal services, from all public service of any kind whatsoever
9) Exemption from all customs duties, taxes and related charges
10) Practice of professional or commercial activity is not for personal profit

General Rule: exempted from civil and administrative jurisdiction

Exception:
1) Real action relating to the private immovable property situated in the territory of the receiving
state, unless he holds it in behalf of the sending state for the purpose of the mission
2) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the Sending State
3) An action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving state outside his official functions.

INTERNATIONAL ENVIRONMENTAL LAW

Precautionary Principle or Precautionary Approach

- When there are threats of serious or irreversible damage, lack of full scientific certainty shall not
be sued as a reason for postponing cost-effective measures to prevent environmental
degradation

Polluter Pays Principle

- Provides that the polluter who creates an environmental harm generally should be force to pay
the costs of remedying that harm

Principle of Non-Discrimination
- Each State should ensure that its regime of environmental protection, when addressing pollution
originating within the State, does not discriminate between pollution affecting the State and
pollution affecting other States

Principle of Intergenerational Equity

- Right to sue in behalf of the succeeding generations
- Right to a balanced and healthful ecology
- Responsibility to preserve the rhythm and harmony for the full enjoyment of a balanced and
healthful ecology

Stockholm Declaration:
- Responsibility of States 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
- Transboundary pollution responsible for pollution within its jurisdiction if such pollution results
in demonstrable injury to another State
Liability for Transboundary pollution
o Must show material damage and causation to be entitled to legal relief
o State has duty to prevent, and may be held responsible for pollution by private parties
within its jurisdiction if such pollution results in demonstrable injury to another State

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 Not nationals or permanent Privileges and Immunities
residents of receiving state
Administrative and Technical Same as diplomats except the immunity from civil and
Staff administrative jurisdiction of the receiving State shall not extend
to acts performed outside the course of their duties
Members of the families Same as above
forming part of their respective
households
Private servants of members of Exempt from dues and taxes on the emoluments they receive by
diplomatic mission reason of their employment
Service staff -Acts performed in the course of their duties
-Exempt from dues and taxes on the emoluments they receive by
reason of their employment

International Public Officials

- Persons who, on the basis of an international treaty, constituting a particular international
community, are appointed by the international community or by an organ of it, and are under its
control to exercise, in a continuous way, functions in the interest of this particular international
community, and who are subject to a particular personal status
- Unlike diplomats whose immunity is based on the principle of reciprocity, Privileges and
immunities must be express and specified in a treaty

Consular Immunity
Consular Officers and Consular Employees.

1) Shall not be liable to arrest or detention pending trial, except in the case of a grave crime and
pursuant to the decision by the competent judicial authority (does not enjoy immunity from
criminal jurisdiction)
2) Shall not be amenable to the jurisdiction of the judicial or administrative authorities of the
receiving State in respect of acts performed in the exercise of consular functions, except in a civil
action either
a. Arising out of a contract concluded by a consular officer or a consular employee in which
he did not contract expressly or impliedly as an agent of the sending State
b. By a third party for damage arising from an accident in the receiving State caused by a
vehicle, vessel or aircraft
3) No obligation to give evidence concerning matters connected with the exercise of their functions
or to produce official correspondence and documents relating thereto
4) Entitled to decline to give evidence as expert witnesses with regard to the law of the sending State
5) Exempt from registration of aliens and residence permits, work permits, taxation, customs duties
and inspections, and from personal services and contribution

Note: waiver of Sending State of immunity is not deemed an implied waiver of immunity from the
measures of execution resulting from the judicial decision.

TREATMENT OF ALIENS

Extradition
- Removal of an accused from the requested State (Asylum State) 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

SUBJECTS TO EXTRADITION

Fugitives Only upon the authority of an extradition treaty between the requesting and
requested State

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 Persons Charges or convicted of offenses that are extraditable under the terms of the
extradition treaty between the requesting State where the crime was committed,
and the requested State where the person requested to be extradited has sought
refuge

Offenses Subject to Extradition

1) List-type Extradition Treaty specifically listed in the extradition treaty
2) Double Criminality Clause makes all offenses defined and punished as crimes under the laws of
both States Parties as extraditable without need of a specific listing of extraditable offense in the
treaty; at the time of the request both laws must exist
Usual Exceptions: Political and Religious Offenses

Elements of Extradition
1) Acts of sovereignty on the part of two States
2) A request by one State to another State for the delivery to it of an alleged criminal
3) The delivery of the person requested for the purposes of trial or sentence in the territory of the
requesting State

Aims or Purposes of Extradition

1) Criminal Prosecution instituted by authorities of the requesting State or government charging
the accused with an offense
2) Execution of a Prison Sentence imposed by a court of the requesting State or government,
with such duration as that stipulated in the relevant extradition treaty or convention, to be
served in the jurisdiction of and as a punishment for an offense committed by the accused
within the territorial jurisdiction of the requesting State or government

Attenant Clause
- Exception to the political crimes exception in extradition treaties
- The assassination, murder, attempt on the life of, or other willful crimes against the person of
the Head of State or Head of Government either of the State Parties or of a member of his
family shall not be regarded as a political crime

Procedure:
Request; By whom made; Requirements. Requesting State through its Foreign Diplomat
addressed to the Secretary of Foreign Affairs of the Philippines and shall be accompanied by:
1. The original or an authentic copy of either the decision or sentence imposed upon
the accused by the court of the requesting state or government; or he criminal charge
and the warrant of arrest issued by the authority of the requesting state or government
having jurisdiction of the matter or some other instruments having the equivalent legal
force.
2. A recital of the acts for which extradition is requested, with the fullest particulars as to
the name and identity of the accused, his whereabouts in the Philippines, if known, the
acts or omissions complained of, and the time and place of the commission of these
acts;
3. The text of the applicable law or a statement of the contents of said law, and the
designation or description of the offense by the law, sufficient for evaluation of the
request; and
4. Such other documents or information in support of the request.
NOTE: A request for extradition does not require that there is a pending case against the extraditee or
even an indictment. Issuance of warrant of arrest is sufficient that he was wanted for prosecution

Provisional Arrest. In case of urgency, the requesting state may, pursuant to the relevant treaty
or convention and while the same remains in force; request for provisional arrest of the accused
pending receipt of the request for extradition made in accordance with Section 4 of this Decree.
*Urgency connotes such conditions relating to the nature of the offense charged and the personality
of the prospective extradite to the inclination to flee or escape from the jurisdiction.

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 1. A request for provisional arrest shall be sent to the Director of the National Bureau of
Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.
2. The Director of the National Bureau of Investigation or any official acting on his behalf
shall upon receipt of the request immediately secure a warrant for the provisional arrest
of the accused from the presiding judge of the Court of First Instance of the province or
city having jurisdiction of the place, who shall issue the warrant for the provisional
arrest of the accused. The Director of the National Bureau of Investigation through the
Secretary of Foreign Affairs shall inform the requesting of the result of its request.
3. If within a period of 20 days after the provisional arrest the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4
of this Decree, the accused shall be released from custody.
4. Release from provisional arrest shall not prejudice re-arrest and extradition of the
accused if a request for extradition is received subsequently in accordance with the
relevant treaty of convention.

Determination by DFA. Primary evaluation is done not by the Department of Justice but by the
Department of Foreign Affairs who shall:
1. See that the request meets the requirements of the Extradition Treaty and PD 1069.
2. Verify the completeness of the documentary requirements in support of the extradition
request.
3. Require the accompanying documents be certified by the principal diplomatic or
consular officer of the Philippines resident in the requesting State.
4. Determine that the request is not politically motivated and not a military offense.

The role of the Secretary of Justice; Filing of a petition.

1. Unless it appears to the Secretary of Foreign Affairs that the request fails to meet the requirements
of this law and the relevant treaty or convention, he shall forward the request together with the
related documents to the Secretary of Justice, who shall immediately designate and authorize an
attorney in his office to take charge of these case.

2. The attorney so designated shall file a written petition with the proper Court of First Instance of the
province or city having jurisdiction of the place, with a prayer that the court take the request under
consideration and shall attach to the petition all related documents. The filing of the petition and the
service of the summons to the accused shall be free from the payment of docket and sheriff's fees.

3. The Court of First Instance with which the petition shall have been filed shall have and continue to
have the exclusive power to hear and decide the case, regardless of the subsequent whereabouts of
the accused, or the change or changes of his place of residence

4. Immediately upon receipt of the petition, the presiding judge of the court shall, as soon as
practicable, summon the accused to appear and to answer the petition on the day and hour fixed in
the order. We may issue a warrant for the immediate arrest of the accused which may be served
anywhere within the Philippines if it appears to the presiding judge that the immediate arrest and
temporary detention of the accused will best serve the ends of justice.
*In the context of extradition, this means preventing the flight of the accused.

5. The order and notice as well as a copy of the warrant of arrest, if issued, shall be promptly served
each upon the accused and the attorney having charge of the case.

NOTE: Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee
of the pendency of the petition, lest he latter be given the opportunity to escape and frustrate the
proceedings.

The extradition hearing; Hearing in Public; Exception; Legal Representation.

1. The hearing shall be public unless the accused requests, with leave of court, that it be
conducted in chamber.

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 2. The attorney having charge of the case may upon request represent the requesting
state or government throughout the proceeding. The requesting state or government
may, however, retain private counsel to represent it for particular extradition case.
3. Should the accused fail to appear on the date set for hearing, or if he is not under
detention, the court shall forthwith issue a warrant for this arrest which may be served
upon the accused anywhere in the Philippines.

NOTE: An extradition proceeding is sui generis. It is not a criminal proceeding which will call into
operation all the rights of an accused as guaranteed by the Bill of Rights. To begin with, the process of
extradition does not involve the determination of the guilt or innocence of an accused.

Deportation
- Unilateral act of the deporting State in order to get rid of an undesired foreign national
- Purpose is achieved when such a foreign national leaves the deporting States territory
- Destination of the deportee is irrelevant to the purpose of deportation

Extradition
Surrender by force of a wanted person by the
requested State to the requesting State
In pursuant of a treaty between the requesting
State and the requested State
For the benefit of the requesting State
Deportation
Expulsion of an unwanted or undesirable alien
Pure unilateral act and an exercise of
sovereignty
In the interest of the country of residence and is
ordered without a request by a third State

FIVE POSTULATES OF EXTRADTION

1) Extradition is a major instrument for the suppression of crime
2) The Requesting State will accord due process to the accused
3) The proceedings are sui generis prevent the escape of a person accused or convicted of a crime
and to secure his return to the State form which he fled, for the purpose of trial and punishment;
administrative but bears all the earmarks of a criminal process
4) Compliance in good faith (pacta sunt servanda)
5) There is an underlying risk of flight

INTERNATIONAL HUMAN RIGHTS LAW

- Protects individuals regardless of their nationality

Three Generations of Human Rights

First Generation Civil and political rights
Second Generation Economic, social and cultural rights
Third Generation Rights beyond the mere civil and social; eg environment

Universal Declaration of Human Rights

- As a common stander of achievement for all peoples and all nations, to end that every individual
and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms and by progressive measures,
national and international, to secure their universal and effective recognition and observance,
both among, the peoples of Member States themselves and among the peoples territories under
their jurisdiction
- Not per se legally binding
- These rights and freedoms may in no case be exercised contrary to the purposes and principles of
the United Nations
- In the exercise of ones rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for rights
and freedoms of others and of meeting the just requirements of morality, public order, general
welfare of a democratic society

International Covenant on Civil and Political Rights

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 - Each State Party undertakes to respect and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the Covenant, without distinction to any kind,
such as race, color, sex, language, religion, political, or other opinion, national or social origin,
property, birth or other status

Right of Derogation allows State Parties to the ICCPR in time of public emergency which threatens the
life of the nation and the existence of which is officially proclaimed to take measure derogating from their
obligations under the Covenant to the extent strictly required by the exigencies of the situation

Following Rights are Non- Derogable:

1) Right to life
2) Freedom from torture, or to cruel, inhuman or degrading treatment or punishment, and freedom
from being subjected to medical or scientific experiment without his free consent
3) Freedom from slavery and servitude
4) Freedom from imprisonment for inability to fulfill a contractual obligation
5) Right against ex post facto laws
6) Right to recognition everywhere as a person before the law
7) Freedom of thought, conscience and religion

International Covenant on Economic, Social and Cultural Rights

- Ideal of free human beings enjoy freedom from fear and want can only be achieved if conditions
are created whereby everyone may enjoy his economic, social and cultural rights, as well as his
civil and political rights

Principle of Progressive
- Recognizes that the full realization of some rights under the Covenant may be difficult to achieve
in a short period of time
- Allows each State to take steps, individually, and through international assistance and
cooperation, especially economic and technical, to the maximum of its available resources, with
a view to achieving progressively the full realization of the rights recognized in the covenant by
all appropriate means, including adoption of legislative measures
- Does not apply to the ICCPR

Genocide
- Includes any of the following acts, committed with the intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, such as:
o Killing members of the group
o Causing serious bodily or mental harm to members of the group
o Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part
o Imposing measures intended to prevent births within the group
o Forcibly transferring children of the group to another group

BASIC PRINCIPLES IN INTERNATIONAL HUMANITARIAN LAW

International Armed Conflicts Non-international armed Conflicts

Involves at least two states Restricted to the territory of a single State
Including all cases of declared war or of any Involving either regular armed forces fighting
other armed conflict which may arise between groups of armed dissidents, or armed groups
two or more States which are parties to the fighting each other
Conventions, even if the State of war is not
recognized by one of them and all cases of
partial or total occupation of the territory of a
State Party, even if the said occupation meets
with no armed resistance

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*armed conflict exists whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or between such groups within
the State
The Intensity of the Conflict- consider facts such as intensity of the attack, increase in armed
clashes, spread of clashes, increase in the number of government forces and mobilization and the
distribution of weapons
The Organization of Parties take into account the existence of headquarters, designated zones
of operation, and the ability to procure, transport, and distribute arms

Internationalized Armed Conflict

- An internal armed conflict breaking out on the territory of a State, it may be become international
if
o Another State intervenes in that conflict through it troops, or alternatively if
o Some of the participants in the internal armed conflict act on behalf of that other State

War of National Liberation

- Conflict in which peoples are fighting against colonial domination and alien occupation and
against racist regimes in the exercise of their right of self-determination
- Treated as a conflict of an international character

Extradition Treaty (additional)

Standard Treaty Definition
Limitations on
Extradition
Prohibition of not granted if it would subject the fugitive based on race, nationality, or
Discrimination political opinion
Lack of Probable Cause Request for extradition must include sufficient prima facie evidence of guilt
Clause attributable to the person requested to be extradited

Exceptions for political Shall not be granted for political offenses or if the executive authority of the
and military offenses requested State determines the request is politically motivated or when it
relates to a military offense that is not punishable under non-military penal
legislation
Rule of Specialty Designed to ensure that a fugitive surrendered for one offense is not tried
for other crimes, prevents a request for extradition from being used as a
subterfuge to obtain custody of a person for trial or execution of a sentence
on different charges that are not extraditable or properly documented in
the request

Transfer of Sentence Persons Extradition Treaty

Agreement:
1) Spain 4) Australia
2) Thailand 5) Canada
3) Hong Kong 6) South Korea
7) Indonesia
8) Switzerland
9) United States of
America
10) Hong Kong
11) China

LAW OF THE SEA

Baseline

- Low-water mark along the coast from which the belt of the territorial sea is measured

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 - It is determined by International Law
- Normal baseline low-water line along the coast as marked on large-scale charts officially
recognized by the coastal State

Territorial Sea Internal Waters

Adjacent belt of sea which may extend up to a The waters around, between, and connecting the
breadth of 12 nautical miles from the baseline islands of the archipelago, regardless of their
over which the sovereignty of a coastal State breadth and dimensions
extends

Archipelago Archipelagic State

Means a group of islands, including parts of A State constituted wholly by one or more
islands, interconnecting waters and other natural archipelagos and may include other islands
features which are so closely interrelated that (naturally formed area of land, surrounded by
such islands, waters and other natural features water, which is above water at high tide)
form an intrinsic geographical, economic and
political entity, or which historically have been
regarded as such

Regime of Islands
- each island has its own territorial sea, contiguous zone, EEZ, and continental shelf.

Archipelagic Theory
- Considers a group of islands which are so closely interrelated and their interconnecting waters as
on geographical unit
- Allows an archipelagic State to draw straight archipelagic baselines joining the outermost points
of the outermost islands and drying reefs of the archipelago
- Waters enclosed by the archipelagic baselines shall become archipelagic waters regardless of their
depth or distance from the coast, and within these archipelagic waters, the archipelagic State may
draw closing lines for the delimitation of its internal waters

Note: UNCLOS State parties baselines laws are statutory mechanisms to delimit with precision the extent
of their maritime zones and continental shelves; it give notice to the rest of the international community
of the scope of the maritime space and submarine areas within which State parties exercise treaty-based
rights:
1) exercise of sovereignty over territorial waters
2) jurisdiction to enforce customs, fiscal, immigration and sanitation laws in the contiguous zone
3) right to exploit the living and non-living organism sin the exclusive economic zone and continental
shelf

Innocent Passage
- means navigation through the territorial sea of another State for the purpose of :
1) traversing that sea without entering internal waters or calling at a roadstead or port facility
outside the internal waters
2) proceeding to or from internal waters or a call at such roadstead or port facility and so long
as it is not prejudicial to the peace, good order or security of the coastal State

Archipelagic Sea Lanes Passage

- means the exercise in accordance with the LOS Convention of the rights of navigation and
overflight in the normal mode solely for the purpose of continuous, expeditious and unobstructed
transit between one part of the high seas or an exclusive economic zone and another part of the
high seas or an exclusive economic zone

Straight Archipelagic Baselines

1. An archipelagic State may draw straight archipelagic baselines joining the outermost points of the
outermost islands and drying reefs of the archipelago provided that within such baselines are included
the main islands and an area in which the ratio of the area of the water to the area of the land, including
atolls, is between 1 to 1 and 9 to 1.

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2. The length of such baselines shall not exceed 100 nautical miles, except that up to 3 per cent of the
total number of baselines enclosing any archipelago may exceed that length, up to a maximum length of
125 nautical miles.
3. The drawing of such baselines shall not depart to any appreciable extent from the general
configuration of the archipelago.
4. Such baselines shall not be drawn to and from low-tide elevations, unless lighthouses or similar
installations which are permanently above sea level have been built on them or where a low-tide
elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from
the nearest island.
5. The system of such baselines shall not be applied by an archipelagic State in such a manner as to cut
off from the high seas or the exclusive economic zone the territorial sea of another State.

Breadth of Territorial Sea

1) up to not exceeding 12 nautical miles, measured from the baseline or from the archipelagic
baseline

Contiguous Zone
- may extend up to 24 nautical miles from the same baseline that is used in measuring the breadth
of the territorial sea
- exercise:
o prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea
o punish infringement of the above laws and regulations committed within its territory or
territorial sea

Exclusive Economic Zone

- area beyond and adjacent to the territorial sea, over which a State has special rights over the
exploration and utilization of the marine resources
- not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial
sea is measured
- in case of archipelagic States, its breadth shall be measured from the archipelagic baseline

Rights
A. Sovereign Rights
1) For the purpose of exploring and exploiting, conserving and managing the natural resources,
whether living or non-living, of the waters superjacent to the seabed and of the seabed and
its subsoil
2) With regard to other activities for the economic exploitation and exploration of the zone, such
as the production of energy from the water, currents and winds
B. Jurisdiction:
1) Establishment and use of artificial islands, installations and structures
2) Marine scientific research
3) The protection and preservation of the marine environment

Continental Shelf

Geological Continental Shelf Legal/Juridical Continental Shelf

Comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its
land territory to the outer edge of the continental
margin
Comprises the seabed and subsoil of the
submarine areas that extend beyond its territorial
sea throughout the natural prolongation of its
land territory to the outer edge of the continental
margin but not to exceed 100 nautical miles from
the baselines

Extended Continental Shelf

- Portion of the continental shelf beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured

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 - The outer limits extended continental shelf on the seabed shall not exceed 350 nautical miles
from the baselines from which the breadth of the territorial sea is measured or shall not exceed
100 nautical miels from the 2,500 metre isobaths, which is line connecting the depth of 2,500
metres

Continental Margin
- Comprises the submerged prolongation of the landmass of the coastal State, and consists of the
seabed and subsoil of the shelf the slop and the rise
- Does not include the deep ocean floor with its oceanic ridges or the subsoil thereof

International Tribunal for the Law of the Sea

- Independent judicial body established by the mandate of the UNCLOS to adjudicate disputes
arising out of the interpretation and application of the Convention
- City of Hamburg, Germany
- Deals with contentious jurisdiction (disputes) and legal questions (advisory jurisdiction) submitted
to it
- 21 independent members who enjoy diplomatic immunity and privileges; proven highest
reputation of fairness and integrity and of recognized competence in the field of the law of the
sea
- Advisory Jurisdiction: to given an advisory opinion on legal questions arising within the scope of
activities of the Assembly; on legal question if it is provide by an international agreement related
to the purpose of the Convention

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