Ateneo Society

of International Law
PUBLIC INTERNATIONAL LAW
BAR REVIEWER 2019*

• This reviewer is based on the Public International Law (PIL) syllabus of the 2019 Bar Examinations. The
reference materials used were the following: the PIL Bar Reviewer (2009) of Atty. Sarmiento, Introduction to PIL
(2009) of Father Bernas, the Handbook of International Law by Anthony Aust (2010), Principles of International
Environmental Law by Philippe Sands (2012), notes from the lectures of Atty. Abad, Atty. Arriola, Atty. Magante,
Atty. Aguinaldo and Atty. Sta. Maria, the Powerpoint presentation of Justice Carpio on the West Philippine Sea,
the ASIL PIL reviewer of Atty. Macaraeg, the Nationality and Statelessness Handbook (2005) by the lnter-
Paliamentary Union with the UNHCR, the International Justice Resource Center commentaries, and previous
ASIL PIL Bar Reviewers of past members of the ASIL Executive Committee. This is dedicated to all ASIL bar
takers. One Team. One Dream.

2019 edition by:

Bernadette Gabrielle R. Encarnacion, Deric Robert E. Siquian, Rohnwald T. Marcelo,

Kolleen Yvonne B. Ricaro, Luis Gonzaga S. Bonoan Jr., Jesse John M. Hermoso, Atty. Mark Enojo
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actions which may lead to its possession, cf uplication, or use by non-members of
the Society.
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TABLE OF CONTENTS.

I. Concepts of Public International Law .•.•••••••.••••••••.•••••........•... 2

II. International Law & National Law •.•••.••••••••••••••••..••.•...•••.•.•.... 3
III. Sources of International 4
Law •••••••••.••••••••••••••••• : ••••••••••••••...••..
IV. Subjects of International Law , .•.......... 6
v. Jurisdiction of States · 8
VI. Treaties .. · 12
VII. State Responsibility 17-
VIII. International Refugee Law 20
IX. Extradition 22
x. International Human Ri.ghts Law •...•..•.••....••.•...•.••..••.••..••••••• 24
XI. International Humanitarian Law & Neutrality •••••••••....•••••••.• 28
XII. Law of the Sea ." ~ 32
XIII. International Environmental Law ••••••.•••••••••.•••.••.........••...•..• 37
XIV. Case Doctrines of Philippine PIL Cases .•••.••••••••..••.••••••••••••••• 39
xv. Current· Events · I!' •••••••••••• 46
XVI. A Digest of The South China Sea Arbitration Case ••••.•.••.•••••• 53
XVII. Previous Bar Questions 66.
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CONCEPTS OF PUBLIC INTERNATIONAL LAW

A. OBLIGATIONS ERGA OMNES

Q. What are obligations erga omnes? . .

A. According to the Barcelona Traction case, obligations erga omnes are those obligations of a
State towards the international community as a whole. These concern those rights which; by
virtue of their importance, interest all States. Since critical rights are involved, any state has the
right to bring a complaint against a breach of such obJigations.

Q. What are some examples of obligations erga omnes?

A. Such obligations relating to prevention and punishment· of genocide, 'obliqatlons requiring
respect for the right to self-determination and obligations determined by international
humanitarian law.

B. Jus COGENS

Q. What is jus cogens? (Bar 2012)

A. According to Art. 53 of the Vienna Convention on the Law of Treaties (VCLT), it is a peremptory
norm of international law which is a norm accepted and recognized by the international
community of states as a norm from which no derogation is permitted and which tan only be
modified only by a subsequent norm of general international law having the same character.

Q. What happens when a treaty conflicts with a jus coqens norm?

A. According to Art. 53 of the VCLT, the treaty Is void if, at the time of its conclusion, it conflicts
with a peremptory norm of general international law.

Q. What are the rules considered to be jus cogens?

A. While there is a wide acceptance of the existence of jus cogens, there is a wide dispute as to
what principles rank as jus cogens. According to a 2006 Report of the International Law
Commission (ILC), however, the most frequently cited examples of jus cogens norms are the
prohibition against aggression, crimes against humanity, war crimes, maritime piracy, slavery .and
slave trade, genocide, racial discrimination apartheid and torture, and the right to self-
determination.

C. EX AEOUO ET BONO

Q. Explain the concept of 'ex aequo et bono' (according to right or-good/ from equity or
conscience).
A. This principle is found in Art. 3.8(2) of the Statute of the International Court of Justice (ICJ).
According to this provision, the parties to a case before the ICJ may stipulate and therefore ask
the Court to decide their dispute based solely on equity and outside the recognized set of rules
under international law.

Q. What is its difference from equity?

A. Equity, as a generally accepted principle [Art. 38(1)(c), IO Statute], is also a source of
obligation under international law.

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INTERNATIONAL LAW

Q. What is International Law?

& NATIONAL LAW

A. CLASSIC DEFINITION- It is a body of rules and principles of action which are 'blndlnq
upon civilized states in their relations to one another.

B. 3RD RESTATEMENT OF FOREIGN RELATIONS DEFINITION- The law concerned with the

conduct of states and of international organizations and with their relations inter se, as
well as with some of their relations with persons, whether natural or juridical.

Q. What is Municipal Law?

A. Municipal Law is a product of local custom or legislation that regulates relations ·between
individual persons under the state. It is the law of the sovereign over individuals.

Q. Explain the dualist and monist theories.

A. The dualist theory maintains that international law and municipal law belong to different
systems of law. The monist theory maintains that both belong to only one legal system.

Q. Is the Philippines a dualist or a montstz

A. Bernas and Magallona consider the Philippines to manifest adherence to the dualist theory, and
at the same time adopts the doctrine of incorporation with regard to customary laws and treaties
which had· become customary law. Treaties only become part of the law of the land when
concurred in by the Senate in accordance with Article VII, Section 21 of the Constitution, which
sets down the mechanism for transforming a treaty into binding municipal law. In Govt of the
USA v. Purganan, the Court ruled that the established pattern In jurisprudence In reconciling
treaties and the acts of Congress show that the Philippines "lean towards the dualist model."

However, in Kuroda v. Jalandoni, the Court applied the two treaties even when the country was
not a party thereto under the justification that said treaties were based on the generally accepted
principles of international law. Further, Article II, Section 2 of the Constitution reads: "[t]he
Philippines renounces war as an instrument of national policy, adopts the generally accepted
principles of international law as part of the law of the land xx x." This is a monist theory.

Q. In case of conflict between international & domestic law, which prevails?

A. It depends on the theory adhered to by the State in whose jurisdiction the conflict appears.
Those who maintain the dualist theory· hold that in case of conflict, municipal law prevails. Those
who adhere to the monist theory tend to fall to two categories: one group holds the supremacy
of international law (Kelsen), the other group holds the supremacy of domestic law (Lauterpacht).

Q. Differentiate Public International Law (PIL) & Private International Law {PRIL).
A. PIL governs the relationships between and among states and also their relations with
international organizations and individual persons. PRIL otherwise known as Conflicts of Law, Is
that part of municipal law which determines whether in dealing with a legal situation, the law or
judgment of another state will be recognized and given effect or applied (Coquia).

Q: Differentiate the doctrine of transformation & doctrine of incorporation.

A: Under the 1987 Constitution, international law can become part of the sphere of domestic law
either by transformation or incorporation. The transformation method requires that an
international law be transformed into a domestic law through a constitutional mechanism (Article
VII, Section 21, PHIL CONST.) such as local legislation. The incorporation method applies when, by
mere constitutional declaration (Article II, Section 2, PHIL CONST.), international law is deemed to

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have the force of domestic law (Pharmaceutical & Health Care Assn. of the Phil. v. Health
Secretary Duque, et al., G.R. No. 173034, October 19, 2007).

III. SOURCES OF INTERNATIONAL LAW

Q. What are the sources of International Law? (Bar 2()12)

A. According to Art. 38(1) of the Statute of the International Court of Justice (!CJ), the sources of
international law include: ·(1) international treaties and conventions; (2) .customarv International
law; (3) generally accepted principles of law (GAPL); and (4) judicial decisions and teachings of
the most highly qualified publicists (MHQPs).

Q. What is the difference between formal and material sources of IL'? . ·

A. Formal sources are those legal procedures and methods for the creation .of rules of general
application which are legally binding on the addressees. Examples of formal sources include
legislation, treaty making, judicial decision making, and practice of states. Material sources, on
the other hand, provide evidence for the existence of rules, which, when proved, have the status
of legally binding rules of general application. As such, state practice, UN Resolutions, judicial
decisions, treaties, and the writings of most highly qualified publicists are considered material
sources in so far as they provide what the obligations are.

Q. Is there a hierarchy among the sources?

A. No. The sources mentioned in Art. 38(1) of the ICJ Statute simply prescribes the order rather
than the hierarchy of the sources that the ICJ must adhere to. Thus, a distinction must be made
between the first three sources as against the fourth source. While the' first three (i.e. treaty,
custom, GAPL) are primary sources, the fourth (i.e. judicial decisions, teachings of MHQPs)are
subsidiary in nature. As such, judicial decisions and teachings of MHQPshave persuasive value
before the court insofar as they aid the interpretation of the primary sources.

A. TREATIES

Q. What is a Treaty?
A. A treaty is an: (a) international agreement; (b) conducted between states; (c) in written form;
and (d) governed by international law; (e) whether embodied in a single instrument or In two or
more related instruments,. and whatever particular designation they may be given. (VCLT, art.
2(1)(a)]

Q. How can one bind his State in entering a treaty?

A. Two ways: either (1) the person is a representative of a State; or. (2) s/he possesses. full
powers. (VCLT, art. 7)

Q. How are treaties interpreted?

Treaties must be interpreted in good faith and in accordancewith the ordinary meaning given to
the terms of the treaty in their context and in light of its object and purpose (VCLT, art. 31).
s.upplementary means of interpretations include: (a) preparatory works of the treaty; and (b)
circumstances to the treaty's conclusion. (VCLT,art. 32)

Q. What is the difference between a State-party and a signatory to a treaty? .

A. A State-party is bound to abide by all the provisions of the treaty. A signatory, according to
Art. 18 of the VCLT, is only bound to refrain from doing acts which defeat the object and purpose
of the treaty. . · .

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Q. What if treaty and custom contradict each other?
A. The answer varies. In the Wimbledon case, a treaty that came later than a particular custom
prevailed since it manifested the deliberate choice of the parties ·and the principle of pecte sunt
servanda. Article 53 of the VCLT however, emphasizesthat a later treaty is "void if, at the time of
its conclusion, it conflicts with a peremptory norm of general international law."

Q. What is the Philippine practice with regard to treaties?

A. The following are the relevant Constltutlonal provisions:
• Foreign loans: Art. VII, Sec. 20 (with prior concurrence of the Monetary Board)
• Treaties: Art. VII, Sec. 21 (with concurrenceof at least two-thirds of the Senate)
• Military beses: Art. XVIII, Sec. 25 (with the U.S.; when the Congress requires, majority of
votes cast by the people in a national referendum)
• Constitutionality of treaties: Art. VIII, Sec. 4 (concurrence of majority of members of the
Supreme Court who actually took part In the deliberations)

8. CUSTOMARY INTERNATIONAL LAW

Q. What is Customary International Law?.

A. According to the North Sea Continental Shelf Case, it consists of unwritten rules evinced from
the generality and uniformity of the practice of States and is adhered to by such states out of a
sense of legal obligation or opinio juris.

Q. What are the requisites of Custom?

A. According to the North Sea Continental Shelf Case, the following are the requisites for a certain
practice to achieve customary status: (a) duration; (b) uniformity and consistency of practice; (c)
generality of practice; and (d} a sense of legal obligation or opinio juris et necessitates.

Q. How long should a practice be before it is considered customary?

A. There is no "numerical" requirement. According to the. North Sea Continental Shelf Case,
although the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary law, state practice within the period, no matter how short it
might be, should have been both extensive and virtually uniform. ·

Q. Should there be total uniformity for a practice to be considered customary?

A. Total uniformity is not required. The !CJ in the North Sea Continental Shelf Cases and MHQP
Ian Brownlie are one in saying that what is needed Is virtuet uniformity or consistency. The IO
has recognized in the Asylum Case and In Nicaragua v. United States that uniformity and
generality of practice need not be in "in absolute conformity" with the forwarded custom, but the
same must be substantial.

Q. Should ALL states adhere to a practice for it to be customary?

A. No, according to the North Sea Continental Shelf Cases, for a practice to be general, it must be
adhered to by majority of 'specially affected' states. This means that customary law may even
bind only two states, for as long as the party claiming it must prove that the purported custom
also binds the other parts, as shown in Right of Passage over Indian Territory.

Q. What is opinio juris? (Bar 2008)

A. According to the Lotus case and the North Sea Continental Shelf Cases, it is the recognition and
feeling of a State that they are conforming to what amounts to a legal obligation, rather than
something that is just done out of courtesy, fairness or morality.

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Q. What is the value of Resolutions adopted by the U.N. General Assembly?
A. Generally, resolutions and declarations of the UNGAare not considered binding. However, this
is not the case when: (a) it concerns internal administrative matters (e.g. finances, admission of
new members, etc.); or (b) when such documents are unanimously adopted by all States. Under
the second case, such occurrence is .usually considered as evidence of opinio juris.
Q. What is the concept of "persistent objector"? ·
A. A state may not be bound by custom if since the process of formation and development of the
custom, such state has expressed its objection to the practice. The evidence of objection must be
clear and unequivocal.

Q. How is custom proven?

A. State practice may be evidenced by various forms such as treaties, dlplornatlc correspondence,
statements· of national leaders and political advisers, and the conduct of states. I~ must be noted
however, that these only arise as customary law if they are characterized by opinio juris, the
existence of which is subject to the proof discharged by the state claiming it.

Q. What is the Philippine practice with regard to customary international law? (Bar
2012)
A. According to Art. II, Sec. 2 of the Constitution, the Philippines "adopts the generally accepted
principles of international law as part of the law of the land." This provision, more popularly
known as the incorporation clause, considers both norms under customary international law and
generally accepted principles of law as part of the law of the land.

C. GENERALLY ACCEPTED PRINCIPLES OF INTERNATIONAL LAW

Q. What are Generally Accepted Principles of International Law?

A. General principles of law are principles of municipal law common to the legal systems of the
world. These are concepts such as estoppel, reparation, and due process of law.

D. JUDICIAL DECISIONS AND MOST HIGHLY QUALIFIED PUBLICISTS

Q. Is the ICJ bound by its prior decisions? (Bar 2013)

A. No, according to Art. 59 of the IO Statute, decisions of the Court have no binding force except
as between the parties and in respect of a particular case. The Court does not adhere to the
doctrine of stare decisis.

Q. Canthe Court apply decisions of national courts, or other international tribunals ( e.g.
ICC,ICSID,ITLOS)?
A. Yes, Art. 38(1)(d) of the ICJ Statute does not distinguish between cases decided by the ICJ as
against those decided by other courts, whether international or local.

Q. Who is a most highly qualified publicist? .

A. A most highly qualified publicist is one who is: (a) published; and (b) recognized as an expert
in the field of international law he/she is writing about.

IV. SUBJECTS OF INTERNATIONAL LAW

Q. Who are the subjects of International Law?

A. Subjects of international law are those recognized as capable of possessing rights and duties
and of bringing international claims. Generally, only States are recognized to be subjects of
international law because: (1) it possesses rights anchored on State responstbtllty: and (2) its

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ability to bring forth claims against other States. However, as will be shown, other entities such as
corporations, international organizations, and individuals now have certain mechanisms by which
their claims may be brought forth international tribunals or courts. ·

A. STATES

Q. What is a State?
A. According to Art. 1 of the Montevideo Convention, a state Is one with the following
qualifications: (a) a permanent population; (b) defined territory; (c) government; and (d) capacity
to enter into relations with other states.

Q. Is recognition a criterion for statehood?·

A. There are two theories: (1) declaratory theory of statehood; and (2) constructive theory of
statehood.

(1)Declaratory Theory of Statehood

Under this theory, recognition is not a criterion for statehood. Article 3 of the Montevideo
Convention provides that "[t]he political existence of the state is independent of.
recognition by the other states." Provided that the four requisites of statehood concur and.
that sovereignty was not gained by military force (Art. 11 of the Montevideo Convention),
it is a state, without the need for other states' recognition. Oppenheim .states th_at
"[i]nternational [l]aw does not say that a State is not in existence as long as it isn't
recognized."

(2)Constructive Theory of Statehood

Constructive theory includes recognition as an additional criterion for statehood. This
theory could be traced back as early as -1815, at the PeaceCongress of Vienna; the final
act of this congress recognized only 39 sovereign states in Europe, and it also established ·.
that any future state could be recognized as such only through the acceptance of prior
existing states.

Q. What are the standards for each requisite of Statehood?

A. (a) Population: no numerical requirement; so long as they are capable of maintaining and
governing themselves, a population may be had. (b) Defined territory: there is no minimum
amount.of territory required; so long as there is a place where the population could occupy and
function in, a defined territory is present (c) Government: there is no specified kind or type of
government required; so long as it exercises sovereignty and supremacy within, a government is
present ( d) Capacity to enter into relations with other states: power and right to enter into foreign
relations without restraint from another entity.

Q. What are the theories of recognition of States?

A. There are two: (1) constitutive; and (2) declaratory. On one hand, the constitutive theory
states that when a State is recognized by the international community as a state, then it is a
State. The declaratory theory, on the other hand, requires compliance with the four requisites of
Statehood as laid down in the Montevideo convention for one to be recognized as a state.

B. INTERNATIONAL ORGANIZATIONS

Q. How are International Organizations subjects of international law?

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A. International organizations are those set up by treaty among two or more states. Some
international organizations have the ability to make claims under international law. However, such
ability is limited by the organization's charter. For example, the U.N., in Reparations for. Injuries
Suffered in the Service of the United Nations, was able to sue for damages caused to an agent
through an international claim. While it does not have the same rights and duties as States, it has
the legal capacity to do "what is necessary" in the exercise of its functlons and fulfilment of its
purposes. (UN Charter, art. 104) ·

Q. What is the principle of specialty?

A. According to the Advisory Opinion on the Use of Nuclear Weapons, it is the principle of that
governs international organizations wherein they are invested by the State which created them
with powers, the limits of which are a function of the common interests whose promotion those
states entrust to them. ·

C. CORPORATIONS

Q. How are corporations subjects of international law?

A. Corporations, in certain instances, now have the ability to make international .clalrns before
tribunals. This is the case when what is entered into is an internationalized contract. When such
contracts are entered into by corporations, it acquires a limited capacity, by invoking the rights
derived from the contract. Usually, the medium by which these corporations may enforce their
rights is arbitration.

Q. What are the Ruggie Principles?

A. On 24 March 2011, Special Representative Ruggle issued "Guiding Principles on Busienss and
Human Rights", for the consideration of the· UN Human Rights Council at its June 2011 session.
The Council endorsed the Guiding Principles on 16 June 2011. The principles are framed In three
main pillars: the state duty to protect against human rights abuses, the corporate responsibility to
respect human rights, and the need to help victims achieve remedy. These do not create new
international obligations nor do they limit or undermine any existing legal cbllqatlons a State may
have been subject to. Rather, they elaborate the implications of existing standards and practices
for States and businesses. They apply to all states and to all business enterprises regardless of
location, origin, or nationality.

D. INDIVIDUALS

Q. How do individuals become subjects of international law?

A. While the classical rule states that humans are mere objects of international law (beneficiaries
of rights provided by instruments such as international human rights treaties), they are now
considered as subjects, although In a limited way. As a subject, not only may one bring claims,
he/she also may be held accountable under international law. In the International Criminal Court,
for example, individuals may be tried for the commission of the core crimes, which are: (a)
genocide; (b) crimes against humanity; (c) war crimes; and (d) crimes of aggression.

V. JURISDICTION OF STATES

Q. What is jurisdiction?
A. Jurisdiction is the power of the state· under international law to regulate or otherwise impact
upon people, property and circumstances and reflects the basic principles of state sovereignty,
equality of states and non-interference in domestic affairs. It may be achieved by means of three
ways: legislative action (prescriptive jurisdiction - i.e. creating, amending or repealing a rule of

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law), executive action (enforcement jurisdiction - i.e. enforcing this rule of law through police
power or investigative measures, among others) or judicial action (adjudicatory jurisdlctlcn - i.e.
hearing and deciding matters in its national courts and tribunals). Jurisdiction, although primarily
territorial, may be based on other grounds recognized under international law that warrant its
extraterritorial exercise; for example, the principle of nationality.

Q. What are the 5 principles of jurisdiction under international law?

As will be discussed below, a State can lawfully exercise jurisdiction over a certain property,
person or conduct when the following accepted bases of jurisdiction exist: (a) territoriality; (b)
nationality; (c) protective principle; (d) universality; and (e) passive personality.

A. TERRITORIALITY PRINCIPLE - A state has absolute, but not necessarily exclusive, power
to prescribe, adjudicate and enforce rules for conduct that occurs within its territory.
This principle serves as the basic principle of jurisdiction in-interriatlonal law and bars a
state· from exercising jurisdiction beyond· its borders, unless it has jurisdiction under
other principles that apply extraterritorially.
i. Effective control must be established. (Las Pa/mas Case)
ii. Effects doctrine - A state has jurisdiction over acts occurring outside Its territory
but having effects within it. (Lotus Case)

Q. What are the two principles of the "effects doctrine"?

A. SUBJECTIVE TERRITORIAL PRINCIPLE - a state has jurisdiction to prosecute and
punish for crimes commenced within the state but 'completed or consummated
abroad.

OBJECTIVE TERRITORIAL PRINCIPLE - a state has jurisdiction to prosecute and punish

for crimes commenced outside the state but consummated within its territory.
(Trail Smelter Arbitration)

Q. What are the rules on boundaries where states are not islands but parts.
of a larger land mass?
A. Accordinqto the Third Restatement:
1. The boundary separating the land areas of two states is determined by acts of
the states expressing their consent to its location.
2. Unless a consent to a different rule has been expressed,
(a) when the boundary between two. states is a navigable river, its location is
the middle of the channel of navigation (Thalweg Doctrine); or
(b) when the boundary between two states is a non-navigable river or a lake,
its location is the middle of the river or lake.

Q. Exp.lainthe French and the English Rule over questions of jurisdiction

over foreign vessels in the Philippines. ·
A. FRENCH RULE - crimes committed aboard a foreign merchant vessel should not be
prosecuted in the courts of the country within whose territorial jurisdiction they
were committed, unless their commission affects the peace and security of the
territory.

ENGLISH RULE - crimes perpetrated under such circumstances are in general triable
in the courts of the country within whose territory they were committed. The
Philippines adheres to this rule.

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Q: Which rule does the UNCLOS apply to determine the nationality of ships?
A. Under Article 91(1) of the UNCLOS, ships carry with them the nationality of. the
State whose flag 'they are entitled to fly. These states are called flag-States and are
empowered to grant their nationality to ships and register such ships in their
territories, thereby granting them the right to fly their flags. However, the UNCLOS
requires a genuine link between the State and the ship. According to Article 92(1) of
the same, the flag-state has exclusive jurisdiction over its vessels on the high seas.

B. NATIONALITY PRINCIPLE - Every state has jurisdiction over its nationals, even when
those nationals are found outside of the state. Exampie: X is a US Citizen living in
France, and he failed to respond to a subpoena served by requiring him to be a
witness on behalf of the US. By this principle, X can be held in contempt. because
the US retained its authority over X. (Blackmer v. US)

Q. What is the doctrine on effective nationality link?

A. Espoused in the Nottebohm Case, this doctrine is used to determine which of the
two states of which a person is a national will be recognized as having the right to
give diplomatic protection to the holder of dual nationality. Nottebohm states that it
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. Shaw provides that it was a legal manifestation of the link
between the person and the state granting nationality and recognition that the
person was more closely connected with that state than with any other.

Q. Discuss the jurisdiction of a state over corporations and maritime

vessels under the nationality principle.
A. As to corporations, a state has jurisdiction over corporations organized under its
laws. Many states assert jurisdiction over corporations whose principal place of
business or registered office is located in their territories. States have also
sought to regulate corporations orqanlzed or having their principal place of
business abroad when these corporations are owned or controlled by their
nationals; however, such nationality has been controversial. More controversial
still are multi-national corporations which register various addresses for different
purposes.

As to maritime vessels, the state has jurisdiction over vessels· flying its flag
(Lotus Case). Each state determines requirements for registration. But flags of
convenience might be challenged·on the ground of ·a lack of sufficient I genuine
link between the flag-states .and their vessels. The same principle. is generally
applicable to aircrafts and spacecrafts.

C. PROTECTIVE PRINCIPLE - This principle provides that a state may exercise jurisdiction
over aliens who have committed acts abroad which threaten the national security or
the governmental functions of the particular state concerned. Examples: Plotting to
overthrow the government, forging its currency, plotting to break its immigration
regulations.

D. UNIVERSALITY PRINCIPLE - This principle refers to a state's exercise of jurisdiction over

certain serious offenses, universally regarded as the most heinous by the international
community, irrespective of the location of the crime and even absent any link between

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the victim-state and the perpetrators or offenses in question. Examples: Genocide,
Crimes against Humanity, War Crimes, Piracy, Terrorism.

E. PASSIVE PERSONALITY PRINCIPLE - It asserts that a state may apply law - particularly
criminal law - to an act committed abroad by an alien where the victim of the act was
its national. The principle is more accepted when applied to terrorist and other
organized attacks on a state's nationals by reason of their nationality, or to the
assassination of a state's -dlplomattc representatives or other officials. Example: the
U.S. Court had jurisdiction over a criminal proceeding against the several Arab men
who hijacked a Jordanian airline on the basis that some of the nationals taken hostage
were Americans. (U.S. v. Yunis)

Q. What does a 'conflict of jurisdiction' contemplate?.

Since there are various accepted principles for assuming jurisdiction, more than one state may
have a valid claim to jurisdiction. In order to develop more sophisticated modes of resolving
conflicts of'jurisdlctlon, U.S. courts developed three modes: "The balancing test," "international
comity," and "forum non conveniens."

Q. What are the principles governing conflicts of jurisdiction?

A. There are different modes to deal with such issue, such as the balancing test, international
comity, and forum non conveniens.

Q. What is the 'balancing test'?

A. If the answer is yes to all the following questions, the Courtwill have jurisdiction:
a. Was there-an actual or intended effect on a state's foreign commerce?
b. Is the effect sufficiently large to present a cognizableinjury to the plaintiffs, and, therefore,
a violation of the anti-trust law?
c. Are the interests ofthe state sufficiently strong, vis-a-vis those of other nations, to justify
an assertion of extraordinary authority? (Timberlane Lumber Co. v. Bank ofAmerica)

Q. What is 'international comity'?

A. Even when a state has basis to exercise jurisdiction, it will refrain from doing so If its exercise
will be unreasonable.

Q. What is 'forum non conveniens'?

A. The application is discretionary with the court - if in the whole circumstances of the case it be
discovered that there is 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/ domicile of parties or of its being the locus contractus or locus solutionis (Piper Aircraft
Co. v. Reyno).

Q. What are the exemptions from the exercise of jurisdiction by states?

1. ACT OF STATE DOCTRINE - This common law principle prevents the forum court from
examining the legality of certain acts performed in the exercise of sovereign authority
within a foreign country (Pinochet Case). This doctrine, a judicially fashioned rule peculiar
to American and British law, provides that local courts may not question the legal effect of
a recognized foreign sovereign state's public acts fully executed within such courts' own
territory, and has been described variously as a doctrine of judicial prudence/deference,
judicial restraint, judicial abstention, issue preclusion, conflict of laws, and choice of law.
Ex. U.S. courts should decline to rule on the acts of non-U.S. sovereigns that are
committed within their own territories.

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INTERNATIONAL ORGANIZATIONS AND THEIR OFFICIALS - When international organizations and their
officials come into contact with a municipal legal system, as a result of ·their relations with States
in which they operate, or with private persons whose activities are subject to the jurisdiction of
such States, they are entitled to jurisdictional immunity and are not subject to local jurisdic;:tions.
Such immunity is primarily derived from treaty law, the provisions of which may appear in the
constitutive instrument of the organization, and / or a further treaty between the member States
which more specifically define the immunities and privileges, and/or in the Headquarters
Agreement between the organization and its host State. Said provisions make broad reference to
"immunity from jurisdiction", or "immunity from every form of legal process."These immunities
serve as procedural bars to the jurisdiction of national courts, rather than exemptions from
substantive law. Substantively, when an international organization comes into ·contact with a
municipal legal system, usually that of one of its member States, the local law remains the
applicable law, but simply that the local court is the wrong forum to apply it. Ex. The World Bank,
as an international organization, is immune from suit by an employee alleging sexual harassment
since its employment relations are within the grant of Immunity in the International Organizations
Immunities Act (IOIA).

VI. TREATIES

Q. What are the functions of treaties?

A. They are sources of international law, they serve as the charter of international organizations,
they are used to transfer territory, regulate commercial relations, settle disputes, protect human
rights, guarantee investments, etc. But a treaty is not the only means by which a state can enter
into a legal obli.gation.

Q. What are the kinds of treaties?

A. (1) Multilateral treaties are those that are open to all states of the world. They create norms
which are the basis for a general rule of law. They are elther codification treaties or "law-
making treaties" or they may have the character of both.
(2) Another category includes treaties that create a collaborative mechanism. These can be of
universal scope or regional. They operate through the organs of different states.
(3) The largest category of treaties are bilateral treaties. Many of these are in the nature of
contractual agreements which create shared expectations such as trade agreements of various
forms. They are sometimes called "contract treaties."

Q. What are law-making treaties?

A. Law-making treaties create legal obligations the observance of which does not dissolve the
treaty obligation. According to McNair, such treaties are in principle binding only on parties, but
the number of parties, the explicit acceptance of rules of law, and in some 'cases, the declaratory
nature of the provisions produce a strong law-creating effect at least as great as the general
practice considered sufficient to support a customary rule.

Q. What is the fundamental principle of treaty law? (Bar 2011)

A. PACTA SUNT SERVANO/! - Treaties are binding upon the parties to them and must be performed in
good faith. This principle is reaffirmed in Article 26 of the VCLTand is now customary in nature.

Q. Cantreaties give rise to customary international law? .

A. It can. While treaties are generally binding only on the parties, the number of the contracting
parties and the generality of the acceptance of specific rules created by the treaty can have the

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effect of creating a universal law in the same way that general practice suffices to create
customary law.

Q. How can international law become part of the sphere of domestic law under the· 1987
Constitution?

A. International law can be part of domestic law· in either of two ways: (a)· transformation [Art.
VII, Sec. 21, 1987 Const.]; or (b) incorporation [Art. II, Sec. 2, 1987 Const.] (Pharmaceutical.and
Health Care Association of the Philippines v. Austria Martinez, G.R. No. 173034). The chart below
comparesand contrasts both methods in light of the Pharmaceutical Cese.

Doctrine of Transformation Doctrine of Incorporati

· Requires that an international law be·
transformed into a domestic law through a
constitutional mechanism such as local
legislation. Thus, treaties or conventional law
must go through a _process prescribed by the
Constitution for it to be transformed into
municipal law that can be applied to domestic
courts, such as the ratification procedure
under Article VII, Section 21 of the 1987
Constitution.
Under Article VII, Section 21 of the 1987
Constitution, treaties/international agreements
are transformed into valid and effective laws of
the land when they are concurred in by at
least two-thirds of all members of the
Senate.
Illustration:
In the Pharmaceutical Case, the International
Code of Marketing of Breastmilk Substitutes
(ICMBS), a code adopted by the World Health
Assembly (WHA), an organization that
advocatedagainst the promotion of breastmilk
substitutes through various WHA Resolutions,
had been transformed into domestic law
through the Milk Code, a local law that is
almost a verbatim reproduction of the ICMBS,
but did not adopt the ICMBS provision that
absolutely prohibits advertising and promotion
of breastmilk substitutes. Instead, the Milk
Code expressly provides that advertising,
promotion or other marketing materials may
be allowed if such materials are duly
authorized and approved by the Inter-Agency
Committee (!AC).
on
Applies when, by mere. constitutional
declaration, international law is deemed to
have the force of domestic law. Thus,
generally accepted principles of international
law form part of the law of the land, even if
they do not derive from treaty obligations, as
they are adopted under Article II, Section 2 of
the 1987 Constitution.
Under Article II, Section 2 of the 1987
Constitution, generally accepted principles of
international law are incorporated as part of
the law of the land. Generally accepted
principles of international law refer to norms of
general or customary international law which
are binding on all states; hence, customary
international law is deemed incorporate into
the Philippinedomestic system.
Illustration:
Since WHA Resolutions in the Pharmaceutical
Case have not been embodied in any local
legislation, they must have attained the status
of customary law in order to be deemed
incorporated as part of the law of the land.
However, the WHA Resolutions adopting the
ICMBS and the subsequent ones urging·
Member States to implement the ICMBS are
merely recommendatory and legally non-
binding. Thus, unlike what has been done
with the ICMBS whereby the legislature
enacted most of the provisions into law which
is the Milk Code, the subsequent WHA
Resolutions,specifically providing for exclusive
breastfeeding from 0-6 months, continued
breastfeeding up to 24 months, and absolutely
prohibiting advertisements and promotions of
breastmilk substitutes, have not been adopted
as a domestic law.

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WHA Resolutions may constitute "soft law" or

non-binding norms, principles and practices
that influence state behavior (e.g. UDHR),'
which do not fall into any of the sources of
international law Art. 38 of the !CJ Statute.

Hence, failing to establish the WHA

Resolutions as customary, legislation · Is
necessary to transform their provisions into
domestic law.

A. 1969 VIENNA CONVENTION ·aN THE LAW OF TREATIES (VCLT)

Q. What is the scope of the VCLT?

A. It covers treaties between and among states. It excludes agreements involving international
organizations. It also does not cover agreements between states which are to be governed by
municipal law.

Q. Do oral treaties come under the provisions of the Vienna Convention on the Law of
Treaties?
A. No. While no particular form is prescribed, the definition found in Article 2 of the VCLT explicitly
states that a treaty is an agreement in written form. There are no specific requirements of form in
international law for the existence of a treaty, although it is essential that the parties intend to
create legal relations as between themselves by means of their agreement. ·

However, an exception to the general rule on oral treaties was carved out by the Eastern
Greenland case which ruled that unilateral oral declarations may bind the State whose minister
made it. Here, the declaration made was by the Norwegian Minister of Foreign Affairs, M. Ihlen, to
the Danish Minister of Foreign Affairs, to the effect that "plans of the Danish Government 'over
Eastern Greenland would meet no opposition on the part of Norway." Such has been known as the
"Ihlen Declaration." Though not registered with the Secretariat of the League of Nations, a minute
of the declaration was prepared and initialed by the Norwegian Minister, and the Norwegian
Government admitted as to the content of the declaration. The Danish Government contended
that the declaration was in the nature of a binding agreement by which. the Norwegian
Government waived its objections to the extension of Danish sovereignty over Eastern Greenland.
According to Judge Anzilotti, the Ihlen Declaration, although a "verbal" one, was a valid
agreement and as such, was binding upon Norway, particularly since both parties were in
agreement as to its existence and tenor and therefore no question of proof was involved. Thus, a
unilateral oral declaration in the nature of a promise, the facts of which are admitted by the party
making it, is internationally binding upon the latter party.

Q. Doesthe 1969 VCLT constitute customary law?

A. Yes, with respect to certain provisions, the 1969 Vienna Convention on the Law of Treaties may
be regarded as reflective of customary international law, such as the rules on interpretation,
material breach and fundamental change of circumstances. However, others may not be so
regarded and constitute principles binding only upon States-parties.

Q. What are the steps in the creation of treaties?

A. i) Negotiation, ii) Authentication of text, iii) Consent to be bound, iv) Entry into force.

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Q. What do negotiations involve?
A. Negotiation is done through foreign ministries. Larger multilateral treaties are negotiated in
diplomatic conferences. Negotiators must possess powers to negotiate. An act relating to the
conclusion of a treaty by one who has no proper authorization has no legal effect unless confirmed
by his state.

Q. Who has powers to negotiate?

A. A person is considered as a representative of a State· if he (a) produces appropriate full powers
or (b) it appears from the practice of the States.co.ncerned or from other circumstances that their
intention was to consider that person as representing the State [VCLT, art. 7(1)].

Q. Who are considered as representatives of a State?

A. The following are considered as representing their State, without having to produce full powers:
(a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a treaty; (b) heads of diplomatic missions, for the
purpose of adopting the text of a treaty between the accrediting State and the State to which they
are accredited; (c) representatives accredited by State to an International conference or to an
international organization or one of its organs, for the purpose of adopting the text of a treaty in
that conference, organization or organ. [VCLT, art. 7(2)]

Q. When do negotiations end?

A. It concludes with the signing of the document. Article 9 of the VCLT provides that the adoption
of the text of a treaty at an international conference takes place by the vote of two-thirds of the
States present and voting, unless by the same majority they shall decide to apply a different rule.
The signatures can serve as authentication of the document.

Q. How does a State express its consent to be bound?

A. Article 11 provides the various ways by which consent to be bound is expressed. These are: by
signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.

Q. How does the Philippines ratify a treaty?

A. Article VII, Section 21 of the Constitution provides that. no treaty or international agreement
shall be valid and effective unless concurred In by at least two-thirds of all the Members of the
Senate.

Q. Does treaty withdrawal require Senate concurrence?

A. No, treaty withdrawal does not require concurrence of the Senate. Under the Constitution, the
concurrence of the legislature is only required in the treaties entered into by the President.
Section 21, Article VII of the 1987 Constitution clearly states that "no treaty or international
agreement shall be valid and effective unless concurred in by at least two-thirds of all the
Membersof the Senate." (Pimentel v. Executive Secretary, GR No. 158088, July 6, 2005)

Q. What are reservations?

A. Art. 2 of the VCLT defines reservation as a 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.

Q. Must a reservation be consented to by all parties for it to be effective?

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A. According to the Reservations to the Genocide Convention (IO Reports, 1951), a State which
has made and maintained a reservation that has been objected to by one or more parties to the
Convention but not by others, can be regarded as a party to the Convention if the reservation is
compatible with the object and purpose of the Convention. The Court added that compatibility
could be decided by States individually since If a party to the C:onventlon objects to a reservation
which it considers incompatible with the object and purpose of the Convention, it can consider
that the reserving state is not a party to the Convention. Under. this view, it is possible· for
different legal relationships to arise among parties to the same treaty.

Q. When do treaties enter into force?

A. Treaties enter into force on the date agreed upon by the parties. Where no date is indicated,
the treaty enters into force once consent has been.given. Multilateral treaties generally contain a
provision which says how many states have to accept the treaty before it can come into force.

Q. How are treaties interpreted?

A. Treaties must be interpreted in good .faith in light with its object and purpose. They must be
interpreted according to the ordinary meaning of the words. Where there are ambiguities in the
meaning of a treaty, resort may be made to supplementary sources. (VCLT, art. 31) Thus, the
purpose of the treaty, and the special meaning given by the parties may be appreciated. In case
there is conflict among "official texts," the language that the parties agreed to as authoritative is
followed.

Q. What are the grounds that would make a treaty invalid?

A. Error of fact, fraud, corruption of a representative of a State, and coercion of a State by .the
threat or use of force. Moreover, a violation of a jus cogens norm invalidates a treaty.

Q. What is the difference between amendment and modification of treaties?

A. Amendment is a formal revision done with the participation, at least in its initial stage, of all
the parties to the treaty. Modification involves only some of the parties.

Q. How are treaties terminated?

A. The following are ways in which a treaty may be terminated: (1) expiration of a period, (2)
consent of all parties, (3) accomplishment of the purpose, ( 4) material breach (repudiation not
sanctioned by the present Convention), (5) supervening impossibility of performance, (6)
fundamental change of circumstances (rebus sic stantibus), and (7) emergence of a new
· peremptory norm of general international law.

Q. Wh_en one state ceases to exist and is succeeded by another on the same territory, is
the new state bound by the commitments made by its predecessor?
A. No. The "clean slate" rule applies. Article 16 of the 1978 Vienna Convention on the Succession
of States with Respect to Treaties state that: "A newly independent State is not bound to maintain
in force, or to become a party to, 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
States relates."

Q. Is there an exception to the "clean slate" rule?

A. Yes. (1) A new state may agree to be bound by the treaties made by its predecessor, and (2)
the rule does not apply to treaties affecting boundary regimes. ·

Q. What is pacta tertiis nee nocent nee prosunt?

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A. Art. 34 of the VCLTprovides that: "[a] treaty does not create either obligations or rights for a
third State without it consent." To Brownlie, treaties bind only States parties to it. In cases where
a State does not want certain .provisions of a treaty to apply to it, such exception must be
expressed by means of a reservation, done at the time the State ratifies the treaty (Art; 2(1)(d),
VCLT).

VII. STATE RESPONSIBILITY

Q. What is the doctrine of State responsibility?

A.. State responsibility is a general principle of international law, originally developed to protect
the rights of aliens. It arises when a State commits an international wrong against another;
hence, in order for a State's international responsibility to set in in favor of an injured State, an
internationally wrongful act must first be established. An internationally wrongful act is essentially
a breach of an international obligation, which thereby gives rise to an· obligation to make·
reparation (Chorzow Factory case). According to Shaw, the doctrine of state responsibility
emanates from the twin international law doctrines of state sovereignty and equality of states.

Q. What are the essential characteristics of State responsibility?

A. (1) The existence of an international legal obligation in force as between two particular states;
and (2) that there has occurred an act or omission which violates that obligation and which is
imputable to the state responsible, and finally, (3) that loss or damage has resulted from the
unlawful act or omission.

Q. When will the international responsibility of a State arise?

A. In Phosphates in Morocco, the Permanent Court of International Justice (PCIJ) declared that
when a State commits an internationally wrongful act against another State, international
responsibility is established immediately as between the two States.

Q. What is the- coverage of international responsibility?

A. According to MHQP James Crawford, international responsibility covers relations which arise
under international law from the internationally wrongful act of a State whether such relations are
limited to the wrongdoing State and one injured State or whether they also extend to other States
or subjects of international law.

Q. When is there an internationally wrongful act?

A. According to Art. 2 of the Articles on State Responsibility (AOSR), .two elements are required to
establish the existence of an internationally wrongful act of the state. First, the conduct in
question must be attributable to the state under international law. Second, for responsibility to
attach to the act of the state, the conduct must constitute a breach of an international legal
obligation in force for that state at that time.

Q. What are the consequences of an internationally wrongful act?

A. According to the Chorzow Factory Case, aside from the obligation of cessation and assurances
or guarantees of non-repetition, the consequence of a commission of an internationally wrongful
act involves an obligation to. make reparation in an adequate form. Reparation must, so far as
possible, wipe out all the consequences of the illegal act and re-establish the situation which
would have existed if the wrongful act had not been committed.

Q. Is the characterization of a State's conduct as 'internationally wrongful' affected by

that State's internal law?

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A. No. According to Art. 3 of the AOSR, the characterization of an act of a State as internationally
wrongful is governed by international law. Such characterization is not ·affected by the
characterization of the same act as lawful by the State's internal law.

Q. What is a State organ?

A. A State organ includes entities exercising legislative, executive, judicial or any other functions,
whatever position it holds in the organization of a State, and whatever its character as an organ of
the central government or of a territorial unit of the State. It also includes any person or entity
which has that status in accordance with the internal law of the State. (AOSR,art. 4)

Q. Are all acts of a State organ attributable to the State?

A. No. However, responsibility may only be excluded in cases where the act had no connection
with the official function and constituted a purely private act. Ultra vires acts of an organ are
nevertheless considered as an act of the State.

Q. Can the conduct of non-State organs exercising governmental functions be

attributable to the State?
A. Yes. According to Art. 5 of the AOSR,the conduct of any person or entity which is not an organ
of a State, but which is empowered by the law of that State to exercise elements of governmental
authority, shall be considered an act of the State under international law, provided the person or
entity is acting in that capacity in the particular instance.

Q. Can the acts of State organs or entities in excess of their authority or contravention
of instructions be attributable to the State?
A. Yes. It is clear from Art. 7 of the AOSR that the conduct of an organ of a State or of a person
or entity empowered to exercise elements of the governmental authority shall be considered an
act of the State under international law, if the organ, person or entity acts in that capacity, even if
it exceeds its authority or contravenes instructions.

Q. Is conduct directed or controlled by the State attributable to the State?

A. Yes. The conduct of a person or group of persons shall be considered an act of a State under
international law if the person or group of persons is in fact acting on the instructions of, or under
the direction and control of that State in carrying out the conduct.

Q. What conduct can be attributable to the State in the absence or default of official
authorities?
A. According to Art. 9 of the AOSR, the conduct of a person or group of persons shall be
considered an act of a State under international law if the person or group of persons is in fact
exercising elements of the governmental authority in the absence or default of the official
authorities, in circumstances such as to call for the exercise of those elements of authority.

Q. To whom shall the conduct of an insurrectional movement be attributed?

A. It depends. If the movement becomes the new government of a State, then the conduct of the
insurrectional movement shall be considered as an act of that State under international law. If the
insurrectional movement succeeds in establishing a new State in part of the territory of the pre-
existing State, then its conduct shall be considered as an act of the new State under international
law.

Q. Can a State subsequently ratify the acts of a private person or entity?

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A. Yes. In such a case, according to Art. 11 of the AOSR,the conduct which is not attributable to
a State shall nevertheless be consideredan act of that State under international law, if and to the
extent that the State acknowledges and adopts the conduct in question.

Q. When is there breach of an international obligation? .

A. According to Art. 12 of the AOSR, 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 such obligation
regardlessof its origin or character.

Q. How can consent preclude the wrongfulness of an act?

A. According to Art. 20 of the AOSR,consent by a State to particular conduct by another State
precludes the wrongfulness of that act in relation to the consenting.state;. provided the .consent is
valid and to the extent that the conduct remains within the limits of the consent.qlven. ·

Q. Can a State invoke self-defense?

A. Yes. According to Art. 21 of the AOSR, the wrongfulness of an act of a State is precluded if the
act constitutes a lawful measure of self-defense taken in conformity with the Charter of the United
Nations.

Q. What is a countermeasure?
A. According to the Gabcikovo-Nagymaros Project Case, a countermeasure is a conduct of a State
in response to a previous international wrongful act of another State and directed against that
State.

Q. What are the elements of force majeure?

A. Force majeure may only be invoked if three elements are met: first, the act in question must
be brought about by an irresistible force or an unforeseen event; second, such should be beyond
the control of the State concerned; and third, such makes it materially impossible in the
circumstances for the State to perform the obligation.

Q. When is there a state of necessity?

A. There is necessity where the only way a State can safeguard an essential interest threatened
by a grave and imminent peril is, for the time being, not to perform some other international
obligation of lesser weight or urgency.

Q. When can state of necessity be invoked?

A. According to Art. 25 of the AOSR, necessity may be invoked if the act is: first, the only means
for the State to safeguard an essential interest against a grave and imminent peril; and second,
such does not seriously impair an interest of the State/s towards which the obligation exists, or of
the international community as a whole.

Q. What are the instances wherein a State cannot invoke necessity?

A. According to Art. 25 of the AOSR, a State cannot invoke necessity if the international obligation
in question excludes the possibility of necessity or if the State has contributed to the situation of
necessity.

Q. What are the different forms of reparation?

A. According to Art. 34 of the AOSR, full reparation for injury caused by an internationally
wrongful act shall take the form of restitution, compensation, and satisfaction, either singly or in
combination.

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Q. Can the Responsible State rely on the provisions of its internal law?
A. No. According to Art. 32 of the AOSR, a State cannot rely on the provisions of lts internal law
as justification for failure to comply with its obligations. This is an affirmation of Article 27 of the
VCLT.

Q. Can there be an award of interest in international cases? ·

A. Yes. According to Art. 38 of the AOSR, interest on any principal sum shall be payable when
necessary in order to ensure full reparation. Interest runs from the date when the principal sum
should have been paid until the date the obligation to pay is fulfilled.

Q. What is diplomatic protection?

A. Diplomatic protection includes, in a broader sense, consular action, negotiation, mediation,
judicial and arbitral proceedings, reprisals, a retort, severance of diplomatic relations, and
economic pressures. But there is under international law, no obligation for states to provide
diplomatic protection for their nationals abroad, although it can be said that nationals have a right
to request their government to consider diplomatic protection .and that government is under a
duty to consider that request rationally. In addition, once a state does this, the claim then
becomes that of the state.

Q. What is the principle of exhaustion of local remedies?

A. Customary international law provides that before international proceedings. are instituted or
claims or representations made, the remedies provided by the local state should have been
exhausted. This rule applies only to cases founded on diplomatic protection or on injury to aliens.

VIII. INTERNATIONAL REFUGEE LAW

Q. Who is a refugee?
A. According to the Art. 1 of the 1951 Refugee Convention, the term refugee shall apply to any
person who, owing to a well-founded fear of being persecuted for reasons of race, religjon,
nationality, membership of a particular social group or political opinion, is~.outside the country of
his nationality and is unable or, owing to such fear is unwilling to avail himself of the protection of
that country; or 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.

Q. What is a migrant worker?

A. A migrant worker is a person who is to be engaged, is engaged or has been engaged in a
remunerated activity in a State of which he or she is not a national.

Q. What is the difference between a refugee and migrant?

A. There is no universal definition of a migrant. However, it is described as "any person who is
outside a State of which they are a citizen or national, or, in the case of a stateless person, their
State of birth or habitual residence." A refugee, on the other hand, is defined under international
law ·as one outside of his or her country of origin due to persecution or conflict. While a refugee is
entitled to the full protection of refugee law, a migrant is only entitled to the protection of human
rights law.

Q. What are the restrictions (exceptions and cessation clauses) on eligibility for refugee
status?
A. Under Article 1(0) of the 1951 Refugee Convention, individuals who, at the time of the
Convention, were already receiving protection or assistance from another UN organ or agency are
excluded from the coverage of refugees. Article l(D) largely applied to Koreans receiving aid from

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the United Nations Korean Reconstruction Agency (UNKRA)and Palestiniansreceiving aid from the
United Nations Relief and Works Agency for Palestine· Refugees in the Near East (UNRWA) and
continues to apply to the latter. Although Palestiniansliving .in areas where UNRWAoperates are
eligible for refugee status under the 1951 Convention.

Under Article l(F), the exclusion includes individuals who with respect to whom there are- serious
reasonsfor considering that: .
a) He has committed a crime against peace, a war crime; or -a crime against humanity, as
defined in the international instruments drawn up to make provision in respect of such
crimes;
b) He has committed a serious no_n-political criine outside the country of refuge prior to his.
adrnlssion to that country as a refugee;
c) He has been guilty of acts contrary to the purposesand principles of the United Nations.

Additionally, under Article l(C), individuals who voluntarily avail themselves of the protection of
their country of nationality or habitual residenceor individuals who have received protection in a
third country are also not considered refugees.

Q. What rights do refugees have?

A. The following are the rights of refugees under the 1951 RefugeeConvention:
1. Non-refoulement;
2. Freedom of movement;
3. Right to liberty and security of the person;
4. Right to family life; and
5. Other rights.

Other rights include the rights to education, access to justice, employment, and other
fundamental freedoms and privileges similarly enshrined in international and regional human
rights treaties.

Q. Explain the right of asylum.

A. It asserts the fact that every State exercises territorial -supremacy over all persons on its
territory, whether they are its subjects or aliens, excludes the exercise of power of foreign States
over their nationals in the territory of another state. Thus, a foreign State is provisionally at least,
an asylum for every individual who, being prosecutedat home, crosses its frontier.

Q. What are the national procedures for claiming asylum?

A. Refugee status determinations or asylum adjudications are conducted by an official from a
designated government department or agency. In most cases, the official will interview the
asylum seeker to evaluate his or her evidence and credibility. The burden is on the asylum seeker
to prove that he or she meets the definition of a refugee and asylum seekers are encouraged to
supply as much supporting evidence as possible. Supporting evidence may take the form of
country reports, NGO reports, news articles, affidavits, or the in-person testimony of witnesses.

Q. Does an applicant's irregular entry affect the asylum seeker's application?

A. Pursuant to Article 31 of the 1951 Convention, States parties provide in their domestic law. that
an applicant's irregular entry (i.e., without an entry visa or other documentation) will not have a
negative effect on the asylum seeker's application. Some States, however, do place time
restraints on how many days after entry into their country an asylum seeker may make an

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application. In addition to making a claim at the border, individuals in deportation proceedings·
may also raise an asylum claim, provided their claim is timely.

If the official finds that the asylum seeker has a well-founded fear of persecution, he or she can
grant the applicant asylum. Individuals granted asylum receive a residence permit for themselves
as well as one for any dependent relatives. States provide that where the Government denies an
asylum application, the asylum seeker is to receive an explanation of the reasons for the denial.
Asylum seekers have a right to appeal their negative decision. Generally, an applicant may not be
removed unless they have exhausted all of their available remedies.

Q. Can ineligible applicants for asylum be protected?

Individuals who are· ineligible for asylum may nonetheless be eligible for more limited forms of
protection. These include protection under Article 3 of the Convention against Torture, which
forbids States parties from extraditing or returning an individual to a country where they risk
being tortured or subjected to cruel, inhuman, or degrading treatment or punishment. States also
grant complementary forms of protection, such as withholding of removal, subsidiary protection,
and Temporary Protected Status to individuals who do not meet the definition of a refugee but
whose life or freedom would be in danger if returned to their country of nationality or country of
habitual residence.

Q. What is the principle of non-refoulement?

A. It states that no contracting State shall expel or return a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.

Q. What is the principle on non-penalization of refugees?

A. The Contracting States shall not impose penalties, on account of their illegal entry or presence,
on refugees who enter or are present in their territory without authorization, provided they
present themselves without delay to the authorities and show good cause for their illegal entry or
presence. (1951 RefugeeConvention, art. 31)

IX. EXTRADITION

Q. Is there an obligation to admit aliens?

A. Generally, no. As an aspect of soverei'gnty,no state is obliged to admit aliens into its territory
unless a treaty requires it.

Q. What is extradition? (Bar 2012)

A. The legal process by which a person charged or convicted of a criminal offense is surrendered
by one State to another State. It isa processgenerally governed by treaty, and the legal right to
demand extradition and the correlative duty to surrender a fugitive exist only when governed by
treaty.

Q. Can persons accused for religious and political offenses be extradited?

A. The character of these offenses are not extraditable. This is known as the 'political offence
exception' which is often provided by domestic law and extradition treaties.

A. EXTRADITION
i. Fundamental Principles
1. Principle of dual criminality - an offense is extraditable only when punished
in both the requesting and requested State

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2. Principle of double jeopardy or non bis in idem - a person should not be
tried or punished twice for the same offense
3. Principle of specialty - the extradited person, without the consent of the
requested State, cannot be convicted for other criminal offenses than that
expressly shown in the request for extradition

ii. Procedure
1. Requesting State submits an extradition request, along with necessary
supporting documents, to the Secretary of Foreign Affairs.
2. If the request compiles with the requirements provided for by law and the
relevant treaty, these are forwarded to the Secretary of Justice, who shall
designate an attorney to handle the case.
3. Once all the supporting documents are in order, the DOJ attorney will
prepare the extradition petition and file it with the RTC.
4. The judge may issue a warrant of arrest if in the court's opinion, the
immediate arrest and temporary detention of the accused will best serve
the ends of justice.
5. Summary hearing and decision will be rendered.
6. If extradition is granted, the accused shall be placed at the disposal of the
authorities of the requesting State.
7. Provisional arrest may be granted pending receipt of the request for
extradition, but the period of detention is only 20 days. (P.D. 1069)

Q. What is the rule on Extradition in the Philippines?

A. An application of the basic twin due processrights of notice and hearing will not go against the
RP-US Extradition Treaty or the implementing law. Neither the Treaty nor the Extradition Law
precludes these rights from a prospective extraditee. The rights of notice and hearing, although
not guaranteed by statute or by treaty, are protected by constitutional guarantees. (Sec. of
Justice v. Lantion, 2000)

Q. Is bail a matter of right in extradition proceedings?

A. YES, but bail may be granted to a possible extradite only upon clear and convincing showing
that:
1. He will not be a flight risk or a danger to the community; and
2. There exist special, humanitarian and compelling circumstances. (Rodriguez, et al. v. The
Hon. Presiding Judge, RTC, Manila Branch 17, et al., 2006)

iii. Distinguished from Deportation

Deportation
Purpose is to expel unwanted
immigrants. It has no preference as
to the destination of the individual.
Only aliens may be deported.
Unilateral act of the deporting state.
The individual must be deported to a
receivinq state.
Extradition
Concerned with the transfer of an
individual to a specified foreign state
so that he mav be prosecuted there.
Aliens and nationals may be
deported'.
Arises from the request of a foreign
state.
The individual is extradited to a
requesting state.

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INTERNATIONAL HUMAN RIGHTS LAW

Q. What are Human Rights?

A. Those rights which are inalienable and fundamental which are essential for life. as human
beings. These are rights against the State, not private persons.

Q. What are the three generations of human rights?

A. pt Generation: Civil and Political Rights
2nd Generation: Social and Economic Rights
3rd Generation: Rights such as the right to peace, clean environment, self-determination,
common heritage of mankind, development; minority rights

Q. What are the seven core international human rights convention s under the direct
auspices of the UN?
A. The seven core instruments are the following:
1. The International Convention on the Elimination of All forms of Racial Discrimination
(CERD);
2. The International Covenant on Civil and Political Rights (ICCPR);
3. The International Covenant on Economic, Social and Cultural Rights (ICESCR);
4. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW);
5. The Convention against Torture and other Cruel, Inhuman and Degrading Treatment or
Punishment (CAT);
6. The Convention on the Rights of the Child (CRC);
7. The International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (ICRMW).

Q. What are the basic human rights obligations of States?

A. States have the obligation to respect, to protect and to fulfil human rights. The obligation to
respect means that States must refrain from interfering with or curtailing the enjoyment of
human rights. The obligation to protect requires States to protect individuals and groups
against human rights abuses. The obligation to fulfil means that States must take positive
action to facilitate the enjoyment of basic human rights.

Q. Are derogations from the protection of rights allowed under the international human
rights conventions and agreements?
A. Yes, the requirements are:
1. There must be a public emergency which threatens the life of the nation;
2. Such public emergency must be officially proclaimed;
3. Derogation is allowed only to the extent strictly required by the exigencies of the situation;
4. The measures taken· should not be inconsistent with their other obligations under
International Law; and;
5. The measures may not involve discrimination solely on the ground of race, color, sex,
language, religion or social origin.

Q. What are the non-derogable rights?

A. These are the following:
1. right to life;
2. freedom from torture and other inhuman or degrading treatment or punishment;
3. freedom from slavery;
4. freedom from imprisonment merely for inability to fulfil a contractual obligation;
5. freedom from post facto legislation and other judicial guarantees;
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6. right to recognition before the law; and
7. freedom .of thought, conscienceand religion.

Q. What are the customary human rights laws?

A. Prohibition of torture, genocide, slavery, and discrimination.

Q. What is Genocide? (Bar 1997)

A. Genocide includes any of the following acts committed with intent to destroy, In ·whole 'or in
part, a national, ethnical, racial or religious group, such as:
1. Killing members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended·to prevent births within the group;
5. Forcibly transferring children of the group to another group.

Q. What is torture?
A. Torture is any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or
with the consent or acquiescenceof a public official or other person acting in an official capacity
(Convention Against Torture, art. 1).

Q. What is slavery?
A. Slavery is the status or condition of a person over whom any or all of the powers attaching to
the right of ownership are exercised.

Q. What constitutes "discrimination against women"?

A. Any distinction, exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective·
of their marital status, on a basis of equality of men and women, of human rights and
fundamental freedoms in the political, economic, social, cultural, civil or any other field
(Convention on the Elimination of All. Forms of Discrimination against Women, art. 1).

A. UNIVERSAL DECLARATION OF HUMAN RIGHTS

Q. What is the Universal Declaration of Human Rights (UDHR)?

A. The UDHR is a "common standard of achievement for .all peoples and all nations, to the end
that every individual and every organ of society shall strive by teaching and education to promote
and respect their universal and effective recoqnitlon and observance." It is not a treaty but it
serves as the foundation for other treaties such as the ICESCRand ICCPRwhich cover the most
important human rights.

Q. Is UDHR binding?
Although the UDHR is not a legally binding document, it is not merely aspirational either. Many of
the rights enshrined in the UDHR have subsequently been reflected in other human rights
instruments and treaties that have been ratified by Member States, thus, much of the UDHR is
now codified into binding human rights obligations. Nonetheless, there is a growing recognition
that the rights in the UDHR contain minimum standards that are applicable to all countries. (Hurst

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Hannum, The Status of the Universal Declaration in National
(1995))
Law, 25 GA. J. INT'L & COMP. L. 287

Q. What is the philosophy on which it is based?

A. That "all humans are born free and equal in dignity and rights. They are endowed with reason
and conscience and should act towards one another in a spirit of brotherhood."

B. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

Q. What is the ICCPR?

A. It is a multilateral treaty for·the protection of the first generation human. rights. The Covenant
guarantees the following rights:
• Right to life, liberty and property, and equality
• Freedom from torture, ill-treatment and poor prison conditions
• Freedom of Movement - travel within and outside one's country; change one's residence
• Legal Personality, privacy and the family
o Thought, conscience, religion, expressionand political freedoms
• Freedom to form associations and unions
• Protection of minorities
• Self-determinationof peoples

Q. What is the difference between a declaration and a covenant?

A. In a 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. On the other hand, in a declaration, there is a presumption that something
less than full effectiveness in terms of law is intended. It serves as moral rules rather than a
contract, as there is no juridical tie or vinculum juris.

Q. What are the Optional Protocols to the ICCPR?

A. 1. The lST OPTIONAL PROTOCOL-establishes the Human Rights Committee to receive and
consider communications from individuals claiming to be victims of violations of any of the
rights under the Covenant. But they can only file complaints against those States who have
ratified the Protocol. Entered into force on March 23, 1976. The Philippines has ratified this
Protocol already.
2. The 2ND OPTIONAL PROTOCOL-aims at the abolition of the death penalty.

Q: What is the right to self-determination?

A: Self-determination covers two important rights: 1) The right freely to determine their political
status and freely pursue their economic, social, and cultural development; and 2) 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.

Q. Explain the right of asylum.

A. It asserts the fact that every State exercises territorial supremacy over all persons on its
territory, whether they are its subjects or aliens, excludes the exercise of power of foreign States
over their nationals in the territory of another State. Thus, a foreign State is provisionally at least,
an asylum for every individual who, being prosecuted at home, crosses its frontier.

Q. What is the principle of non-refoulement?

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A. It states that no contracting State shall expel or return a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom would be threatened on account of his race
religion, nationality, membership of a particular social ·group or political opinion. '

C. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS

Q. What is the ICESCR?

A. It is a multilateral treaty for the protection· of the second generation human rights such as
right to work, right to favorable conditions of work, right to form free trade unions, right to social
security and insurance, right to special assistance for families, right to adequate standard of
living, right to the highest standard of physical and mental health, right to education including
compulsory primary education, and the right to the enjoyment of cultural arid scientific· benefits
and international contracts which are characterized as social welfare rights. These are reflected in
the Philippine Constitution in the Articles pertaining to Social Justice; Family; Education, Science
and Technology, Arts, Culture, and Sports.

Q. What is the principle of progressive realization?

Art. 2 of the ICESCR provides that a state is obligated to undertake an evolving program of
activities to realize those rights which are 'recognized' by the Economic Covenant. And that
despite limited resources, the level of effort by the States should increase over time.

Q. What is the effect of the Philippines being a party to these instruments?

A. The country is bound to bring its laws and practices into accord with these international
obligations and not to introduce new laws or practices, which would be contrary to these
instruments. In addition to this, States are obligated to cooperate and assist other States to
provide and extend international protection for these economic and social rights.

D. INTERNATIONAL CRIMINAL LAW

Q. What is the role of the International Criminal Court?

Created by the 1998 Rome Statute, the ICC- is where certain international crimes are prosecuted
and individual liabilities are determined. The international crimes are limited to the most serious.
ones such as genocide, crimes against humanity, war crimes, and crimes of aggression. It is a
court of last resort pursuant to the principle of complementarity which states that a court is not
allowed to act when the local judicial system is able and willing to prosecute.

Q. Compare and contrast the jurisdiction of the International Criminal Court and
International Court of Justice. (Bar 2010)
A. The jurisdiction of the ICC is limited to the most serious crimes of concern to the international
community as a whole, particularly: (a) the Crime of Genocide; (b) Crimes against Humanity; (c)
War crimes; and (d) the Crime of Aggression. On the other hand, the jurisdiction of the !CJ covers
legal disputes which the States refer to it. This includes disputes concerning: (a) the interpretation
of a treaty; (b) any question of international law; (c) the existence of any fact which, if
established, would constitute a breach of an international obligation; and (d) the nature or extent
of the reparation to be made for the breach of an international obliga_tion. (Article 36, !CJ Statute)
The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be
requested by the General Assembly or the Security Council or on legal questions arising within the
scope of the activities of other organs and specialized agencies of the U.N. upon their request and
when so authorized by the General Assembly (U.N. Charter, art. 96).

Q. How does a state-party withdraw from the International Criminal Court?

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A. A State Party may, by written notification addressed to the Secretary-General of the United
Stations, withdraw from this Statute. The withdrawal shall take effect one year after the receipt of
the notification, unless notification specifies a later date. (Rome Statute, art. 127)

Q. Can ICC assume jurisdiction after withdrawal by a State party?

A. Yes. A State Party's withdrawal shall not affect any cooperation with the ICC in connection with
criminal investigations and proceedings in relation to which the withdrawing State had a duty to
cooperate and which were commenced prior to the date on which the withdrawal became
effective, nor shall it prejudice in any way the continued consideration of any matter which was
already under consideration by the ICC prior to the date on which the withdrawai became
effective. (Rome Statute, art. 127)

Q. What is superior or command responsibility? (Bar 2017)

A. Command responsibility pertains to the responsibility of commanders for crimes committed by
subordinate members of the armed forces or other persons subject to their control in international
wars or domestic conflicts. The doctrine has now found application in civil actions for human rights
abuses, and in proceedings seeking the privilege of the Writ of Amparo. To hold someone liable
under the doctrine of command responsibility, the following elements must obtain: 1) the
existence of a superior-subordinate relationship between the accused as superior and the
perpetrator of the crime as his subordinate; 2) the superior knew or had reason to know that the
criminal act was about the be or had been committed; and 3) the superior failed to take the
necessary and reasonable measures to prevent the criminal act or punish the perpetrators
thereof. (Rodriguez v. Arroyo, 2011, G.R. No. 191805)

XI. INTERNATIONAL HUMANITARIAN LAW & NEUTRALITY

Q. What is International Humanitarian Law?

A. International Humanitarian Law (IHL) deals with the means and methods of warfare. It applies
as soon as there is an armed conflict. Thus, it is known as the Laws of War. It sets certain
bounds on the use of force against an adversary. It determines both the relationship of the
parties to a conflict with one another and their relationship with neutral states. Certain· provisions
of international humanitarian law are also applicable in the relationship between the state and its
own citizens.

Q. What are the sources of IHL?

A. 1. The Four Geneva Conventions of 1949.
2. The Three Additional Protocols to the Geneva Conventions of 1977.
3. The Hague Conventions.
4. Customary IHL.

Q. What is the "Martens Clause"?

A. The Martens Clause implements rules of IHL applicable in armed conflict that are so
fundamental to the respect of the human person and elementary considerations of humanity. It is
an effective means of addressing the rapid evolution of military technology. It states that "the
inhabitants and the belligerents remain under the protection and the rule of the principles of the
law of nations, as they result from the usages established among civilised peoples from the laws
of humanity and the dictates of the public conscience'."

Q. What is an "armed attack"?

A. In Nicaragua v. US, the ICJ held that armed attacks included not only the actions of regular
armed forces across international borders, but also the sending by or on behalf of the State of

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armed groups, bands, irregulars or mercenaries, which carry out acts of actual armed attack
conducted by regular forces or their substantial involvement therein.

A. CATEGORIES OF ARMED CONFLICTS

· i. International .Armed Conflicts - An international armed conflict exists if one

state uses force of arms against another state. This shall also apply to all cases
of total or partial military occupation, even if this occupation meets with no
armed resistance. The use of military force by individual persons or groups of
persons will not suffice. It is irrelevant whether the 'parttes to the conflict
consider. themselves to be at war with each other and how they describe this
conflict. . . .

ii. Non-International Armed Conflicts - A non-international armed conflict is a

confrontation between the existing governmental authority and groups of
persons subordinate to this authority and groups of persons subordinate to this
authority or between different groups none of which acts on behalf of the
government, which ls carried out by force of arms within national territory and
reaches the magnitude of an armed confrontation or a civil war.

iii. Internationalized Armed Conflicts - A non-international armed conflict

occurring on the territory of a State may become international in case of
intervention of armed forces belonging to, or under overall control of one or
more third State(s). If the authorities did not consent to the intervention and/or
the intervention of the third State(s) is made against the authorities of the
State where the NIAC occurred, whether or not the third State(s) support(s) the
rebels, the conflict is "internationalised", which means that it becomes an
international armed conflict.

iv. War of National Liberation Movements - situations "in which peoples are
fighting against colonial domination and alien occupation and against racist
regimes in the exercise of their right of self-determination, as enshrined in the.
Charter of the United Nations and the Declaration on Principles of International
law concerning Friendly Relations and Co-operation among states in accordance
with the Charter of the United Nations." It is treated as a conflict of an
international character.

Q: Is a formal declaration of war necessary before the application of IHL?

A: No, it is irrelevant whether or not the parties to the conflict consider themselves to be at war
with each other; the application of IHL does not depend on a formal declaration of war.

B. CORE OBLIGATIONS OF STATES IN IHL

Q. What are the core obligations of States in IHL?

A. 1. To engage in limited methods and means of warfare;
2. To differentiate between civilian population and combatants, and work to spare civilian
population and property;
3. To abstain from harming or killing an adversary who surrenders or who can no longer take
part in the fighting; and
4. To abstain from physically or mentally torturing or performing cruel punishments on
adversaries.

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PRINCIPLES OF IHL

1) TREATMENT OF CIVILIANS (FOURTH GENEVA CONVENTION, ADDmONAL PROTOCOL I)

i. Principle of Distinction in the treatment of Civilians - According to Additional

Protocol I, belligerents must first distinguish between civilians (those that do
not take part in hostilities) and combatants (those that take part in· hostilities).
ii. Principle of Proportionality in the use of force - The principle of
proportionality states that even if there is a clear military target, it is not
possible to attack it if the risk of civilians, or civilian property, being harmed is
larger than the expected military advantage.
iii. Principle of Necessity - The use of force must be used against a. valid military
objective or those which, at the time, offer a definite military advantage if
destroyed, captured, or neutralised.
iv. Prohibition to inflict unnecessary suffering
v. Prohibition to attack those hors de combat (out of combat)

Q. Who is a civilian?
A. Art. 50 (1) of Protocol I defines a civilian as any person who is not a combatant. In case of
doubt, a person is considered a civilian.

Q. When does the Convention come into operation?

A. as soon as there is an outbreak of hostilities or the start of an occupation. It also ends at the
general close of the military operations.

2) TREATMENT OF PRISONERS OF WAR (THIRD GENEVA CONVENTION)

Q. Who are Prisoners of War?

A. Art. 4 of the Third Geneva Convention of 1949 states that it covers the following persons
belonging to one of the following categories, who have fallen into the power of the enemy:
1. members of the armed forces of a party to the conflict, including militias or volunteer corps
that are part of the armed force; and
2. members of other militias and volunteer corps, including those of organized resistance
movements, belonging to a party to the conflict provided they:
a. being commanded by a person responsible for his subordinates;
b. having a fixed distinctive sign recognizable at a distance;
c.. carrying arms openly;
d. conducting operations in accordance with the laws and customs of war.
3. Inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously
take up arms to resist the invading forces, without having had time to form themselves
into regular armed units, provided they carry arms openly and respect the laws and
customs of war.

The definition provided by the Third Geneva Convention is supplemented by Art. 45 of Additional
Protocol I of the Geneva Convention which provides that a person who takes part in hostilities and
falls into the power of an adverse party shall be presumed to be a prisoner of war and therefore
protected by the Third Convention.

Q. What are the rights granted to POWs?

A. 1. It is prohibited to treat prisoners of war inhumanely or dishonorably (i.e. cannot display
POWson television in a degrading manner). (Third Geneva Convention, art. 13)
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2. Any discrimination on the grounds of race, nationality, religious belief or political opinions,
or similar criteria is unlawful.
3. Reprisals against POWSare prohibited.
4. Representatives of the protecting power and delegates of the International Committee of
the Red Cross (ICRC) may visit prisoners in their camps at any time and talk to them
individually and without witnesses.
5. A detaining power may transfer POS to another power only if it has satisfied itself of the
willingness and ability of the latter to apply the rules of International law as to the
protection of POWs.
1. It is prohibited to inflict any physical or mental torture, or any form of coercion to secure
information from POWs.They are only bound to divulge their name, date of birth, rank and
serial number (Third Geneva Convention, art. 17). ·
2. POWs must be released and repatriated without delay after cessation of- hostilities (Third
Geneva Convention, art. 118).

Q. Can POWsbe punished or disciplined? .

A. POWsare subject to the laws and orders of the state detaining them (Third Convention, art.
82). They may be punished for disciplinary offences and tried for offences committed before
capture (war crimes, offences against law of state holding them).

D. LAW ON NEUTRALITY

Q. What is Neutrality?
A. Neutrality is the legal .posltion of a State which remained aloof between two other States or
groups of States while maintaining certain rights towards the belligerents and observing certain
duties prescribed by customary law or by international conventions or treaties.

Q. What are neutralized States?

A. Neutralized States are States upon which the status of permanent neutrality in all future wars
was formally imposed by a group of great powers. The act of neutralization generally took the
form of a treaty between the parties and was as a rule accompanied by a guarantee of the
independence and territorial integrity of the neutralized State.

Q. What is the difference between Neutral States and Neutralized States?

A. A neutral State has a status of temporary neutrality in time of war between other States, while
a neutralized State has a status of permanent neutrality.

Q. What is RA 9851?
A. RA 9851 is the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and
Other Crimes Against Humanity. RA 9851 adopts the generally accepted principles of international
law, including The Hague Conventions of 1907 and the Geneva Conventions as part of the law of
the nations. By defining and criminalizing international crimes, the Philippines ensures that it can
prosecute war crimes, genocide, and crimes against humanity at the national level.

Q. What are the crimes punishable under RA 9851?

A. (1) WAR CRIMES.
a. In case of an international armed conflict, grave breaches of the Geneva Conventions of
12 August 1949, namely, any of the acts against persons or property protected under
provisions of the relevant Geneva Convention, as enumerated under Sec. 4(a) of RA 9851.
b. In case of a non-international armed conflict, serious violations of common Article 3 to
the four (4) Geneva Conventions of 12 August 1949, any of the acts committed against

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persons taking no active part in the hostilities, including member of the armed forces who
have laid down their arms and those placed hors de combat by sickness, wounds,.
detention or any other cause, as enumerated under Sec. 4(b) of RA 9851. ·
c. Other serious violations of the laws and customs applicable in armed conflict, within the
established framework of international law, as enumerated under Sec. 4(c) of RA 9851.

(2) GENOCIDE
Any of the acts with intent to destroy, in whole or in part, a national, ethnic, racial,
religious, social or any other similar stable and permanent group, as enumerated under
Sec. 5 of RA 9851.

(3) OTHER CRIMES AGAINST HUMANITY.

Any of the acts when committed as part of a widespread or systematic attack directed
against any civilian population, with knowledge of the attack, as enumerated under Sec. 6
of RA 9851.

XII. LAW OF THE SEA

Jurisdiction in the Maritime Zones

Zone Internal Territorial Contiguous Zone Exclusive Economic Zone
Waters Sea
Distance from Within the 12 NM 24 NM Up to 200 NM
the Baselines baselines.
Jurisdiction of Sovereign Sovereign Authority over that 1) Sovereign rights
the Coastal area to the extent for the purpose of
State necessary to prevent exploring and
infringement of its exploiting, conserving
fiscal, immigration, and managing the
sanitation or natural resources.
customs authority
over its territorial 2) Jurisdiction with
waters or territory. regard to:

a. the establishment
and use of artificial
islands, installations
and structures;
b. marine scientific
research;
c. the protection and
preservation of the
marine environment

Q. What is the Archipelagic Theory?

A. The Archipelagic Theory considers a group of Islands which are so closely interrelated and their
interconnecting waters as one geographical unit. The theory allows an archipelagic State to 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 [UNCLOS, art. 47(1)]. The waters enclosed by the archipelagic baselines shall
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become archipelagic waters regardless of their depth or distance from the coast, and within these
archipelagic waters, the archipelagic State may draw c;losing lines for the delimitation of its
internal waters [UNCLOS, art. 49].

Q. Up to where does sovereignty over the sea extend to?

A. Art. 2 of the 1982 Convention on the Law of the Sea provides that:
1. Sovereignty of a coastal State extends, beyond its land territory and internal waters and,
in case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea,
described as territorial sea
2. Sovereignty extends to the air space over the territorial sea as well as to its bed and
subsoil
3. Sovereignty over the territorial sea is exercised subject to this Convention arid to other
rules of international law

Q. What is the regime of islands doctrine?

A. Under the regime of islands doctrine, an island generates its own maritime zone (Maga/Iona v.
Executive Secretary, 2011, G.R. 187167)

Article 121 of the UNCLOS provides that:

1. An island is a naturally formed area of land, surrounded by water, which is above water at
high tide.
2. Except as provided for in paragraph 3, the territorial sea, the contiguous zone, the
exclusive economic zone · and the continental shelf of an island are determined in
accordance with the provisions of this Convention applicable to other land territory
3. Rocks which cannot sustain human habitation or economic life of their own shall have no
exclusive economic zone or continental shelf."

A. BASELINES

Q. What is a baseline? (Bar 2012)

A. The low water line along the coast as marked on large scale charts officially recognized by the
coastal State. The use of the low water mark is most favorable to the coastal States and shows
the character of the territorial waters as appurtenant to the land territory. (Anglo-Norwegian
Fisheries Case)

Q. What are the different baseline methods?

A. 1. Normal baseline method: Follows the low water line along the coast along Its curvatures.
2. Straight baseline method: Traditionally used by archipelagic states, where straight lines
are drawn connecting selected points on the coast without appreciable departure from the
general shape of the coast. Art. 47 of the Convention on the Law of the Sea - the length of
such baseline shall not exceed 100 nautical miles, except that. up to 3% of the total
number of baselines enclosing any archipelago may exceed that length up to a maximum
length of 125 nautical miles.

B. ARCHIPELAGIC STATES

i. Straight Archipelagic Baselines - Straight lines are drawn connecting selected

points on the coast without appreciable departure from the general shape of the
coast.

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ii. Archipelagic Waters - Internal waters + waters in between islands as. enclosed
by the use of the straight baseline method.
iii. Archipelagic Sea Lanes Passage - An archipelagic state may designate sea lanes
and air routes thereabove, suitable for the continuous and expeditious passage
of foreign ships and aircraft through or over its archipelaglc waters and the
adjacent territorial sea.

C. INTERNAL WATERS

Q. What are internal waters?

A. All waters (part of the sea, rivers, lakes, etc.) landwards from the baseline of the territory.

Q. Is there right of innocent passage in internal waters?

A. No.

Q. What is the right of innocent passage?

A. Passage that is not prejudicial to the peace, good order or security of the coastal State.
Coastal states have the unilateral right to verify the innocent character of passage, and it may
take the necessary steps to prevent passagethat it determines to be not innocent.

D. TERRITORIAL SEA

Q. What is the Territorial Sea? (Bar 2015)

A. It is a belt of sea outwards from the baseline and up to 12 nautical miles (nm).

Q. What if the Territorial Seas of two States overlap?

A. The rule used is the equidistance rule, where the dividing line is the median line equidistant
from the opposite baselines. However, this only applies if there is no historic· title or other special
circumstances requiring a different measurement.

Q. What is the extent of sovereignty over the Territorial Sea?

A. The same as sovereignty over its land territory. The sea and the strait are subject to the right
of innocent passage by other states.

Q. Is there a right of innocent passage in the territorial sea?

A. Yes.

Q. Distinguish the territorial sea and the internal waters of the Philippines.
A.
Territorial sea Internal waters
Under the UNCLOS, the territorial sea is an Article I of the 1987 Constitution defines the
adjacent belt of sea which may extend up to a internal waters of the Philippines as "the waters
breadth of 12 nautical miles from the baseline around, between, and connecting the islands of
over which the sovereignty of a coastal State the archipelago, regardless of their breadth and
extends. dimensions."

Under Article 7 of the UNCLOS, waters on the

landward side of the baseline of the territorial
sea form part of the internal waters of the
State.

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A. CONTIGUOUS ZONE

Q. What is the Contiguous Zone? (Bar 2015, 2012)

A. An area of water not exceeding 24 nm from the baseline. It is adjacent to the territorial sea.

Q. What are the rights that can be exercised over the Contiguous Zone? [FISC]
A. A coastal state exercises authority over that · area to the extent necessary to prevent
infringement of its fiscal, immigration, sanitation or customs authority over Its territorial
waters or territory and to punish such infringement.

B. EXCLUSIVE ECONOMIC ZONE

Q. What is the Exclusive Economic Zone ("EEZ")? (Bar 2013, 2015)

A. The exclusive economic zone shall not extend beyond 200 nm from the baseline from which
the terrttortat sea is measured. It is an area beyond and adjacent to the territorial sea.

The doctrine of patrimonial seas developed in light of conservation and management of coastal
fisheries.

Q. What are the rights of a Coastal State to its EEZ?

A. A coastal state has sovereign rights 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, and 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; but the right does not affect the right of navigation, overflight, laying of
submarine cables and pipelines, and other internationally lawful uses of the sea related to these
freedoms, such as those associated with the operation of ships, aircraft and submarine cables and
pipelines, and compatible with the other provisions of the UNCLOS.

A Coastal state also has jurisdiction as provided for in the relevant provisions of the UNCLOS with
regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;

Q. What are the two primary obligations for the EEZ?

A. 1. Coastal states must ensure through proper measures that the living resources of the EEZ
are not subject to over-exploitation. There is a duty to maintain and restore populations of
harvested fisheries at levels which produce maximum sustainable yield.
2. Coastal states must promote the objective of optimum utilization of the living resources; if
it cannot utilize or harvest the resources, it must grant access to other states.

Q. What if the EEZs of two States overlap?

A. According to Article 59 of the UNCLOS, the conflict should be resolved on the basis of equity
and in the light of all the relevant circumstances, taking into account the respective importance of
the interests involved to the parties as well as to the international community as a whole.

Q. May a Coastal State enforce its domestic laws in the EEZ?

A. Yes. The coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve
and manage the living resources in the EEZ, take such measures, including boarding, inspection,

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arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and
regulations adopted by it in conformity with the UNCLOS.(UNCLOS, art. 73)

Q. May a Coastal State impose the penalty of imprisonment for violations In the EEZ?
A. No. Coastal State penalties for violations of fisheries laws and regulations In the EEZ may not
include imprisonment, in the absence of agreements to the contrary by the States concerned, or
any other form of corporal punishment. (UNCLOS,art. 73)

Q. What is the current status of the revenue sharing arrangement between the
Philippines and Indonesia?
A. The Philippines and Indonesia, both archipelagic states, are States parties to the UNCLOS,
which gives the parties entitlement to a 200 Nautical Mile EEZ to be used for utilizatfon of living
and non-living resources. However, the two States Parties have overlapping EEZsin the Mindanao
Sea, the Celebes Sea and in the southern section of the Philippine Sea in the Pacific Ocean. Under
Article 74 of the UNCLOS, the delimitation or division of the overlapping EEZ of opposite states
shall be settled by an agreement on the basis of international law, as referred to in Article 38 of
the Statute of the International Court of Justice, in order to achieve an equitable solution.

Pursuant to the UNCLOS, the Philippines and Indonesia conducted a series of negotiations to
delimit their overlapping EEZs and embody the results of the negotiations in an agreement.

The Senate, on June 3, 2019, concurred with the ratification of the treaty that draws a boundary
between the overlapping EEZs, making this the Phillppines' first maritime boundary treaty.

As a result of the 1,161km long boundary, Law enforcement authorities of both countries will now
know the maximum extent of their respective jurisdictions where they are mandated to Implement
laws, rules, and regulations on fishing, environmental protection and maritime security.

C. CONTINENTAL SHELF

Q. What is the Continental Shelf? (Bar 2015)

A. This refers to the (1) Seabed and subsoil of the submarine areas adjacent to the coastal state
but beyond the territorial sea throughout the natural prolongation of its land territory to the outer
edge of the continental margin, or to a distance of 200 nm from the baselines where · the
continental margin does not extend up to that distance; or (2) Seabed and subsoil of areas
adjacent to islands.

Q. What is the Continental Margin?

A. The continental margin comprises the submerged prolongation of the land mass of the-coastal
State, and consists of the seabed and subsoil of the shelf, the slope and the rise. It does not
include the deep ocean floor with its oceanic ridges or the subsoil thereof.

Q. What are the rights over the Continental Shelf?

A. The coastal State exercises over the continental shelf sovereign rights for the purpose of
exploring it and exploiting its natural resources. These are exclusive, hence, no one may
undertake these activities without the express consent of the coastal State. The rights of the
coastal State over the continental shelf do not depend on occupation, effective or notional, or on
any express proclamation.

i. Extended Continental Shelf

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Q. What is the Extended Continental Shelf?
A. It is the continental shelf that extends beyond the 200 nautical mile margin. A
nation that wishes to extend its continental shelf beyond the standard 200 nautical
miles can do so only by showing the claimed area is a natural prolongation of the
country's land territory.

Q. What is the limit of the extended continental shelf?

A. Since a country may not extend its continental shelf past the limits of its continental
margin, the limits on its continental margin serve as the absolute extent to which it
may extend its continental shelf.

H. INTERNATIONAL TRIBUNAL dF THE LAW OFT.HE SEA (ITLOS)

Q: What is the International Tribunal of the Law of the Sea (ITLOS)?

A: The tribunal created under Annex VI of the UNCLOSto settle maritime disputes between
States. It has jurisdiction over any legal disputes concerning the interpretation or application of
the UNCLOSor over any dispute under a treaty related to the purposes of the UNCLOS. For this
reason, parties to the dispute need not be parties to the UNCLOS.

Q. What is the rule on the settlement of disputes under the UNCLOS?

A. Peaceful settlement is compulsory and required by such treaty. If no settlement has been
reached, Article 286 requires submission of the dispute in one of the tribunals/courts clothed with
jurisdiction like the ITLOS, the IO or an arbitral tribunal, constituted under the Convention.

Q. In which Court/Tribunal did the Philippines file its maritime claim against China?
A. In the Permanent Court of Arbitration (PCA) which facilitated a Tribunal constituted under
Annex VII of the UNCLOS.

XIII. INTERNATIONAL ENVIRONMENTAL LAW

Q. What is international environmental law?

A. International environmental law comprises those substantive, procedural ·and institutional rules
of international law which have as their primary objective the protection of the environment.

Q. What are the general principles for International Environmental Law?

A. Note: These are only declarations and do not have the force of law.

1. Sovereignty over natural resources and the responsibility not to cause damage to the
environment of other states or to areas beyond national jurisdiction.

A. Stockholm Declaration - A non-binding document established under the 1972United

Nations Conference on the Human Environment.

PRINCIPLE 21 - States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment of
other States or of areas beyond the limits of national jurisdiction.

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B. Rio Declaration - A non-binding document produced at the 1992 United Nations
Conference on Environment and Development (UNCED) and. consists of 27 principles
with an emphasis on sustainable development.

PRINCIPLE 2 - States have, in accordance with the Charter of the United Nations and
the principles of international law, the sovereign right to exploit their own resources
pursuant to their own environmental and developmental policies, and the responsibility
to ensure that activities within their jurisdiction or control do not cause damage to the
environment of other States or of areas beyond the limits of national jurisdiction.

2. Sustainable Development - development that meets the needs of the present without
compromising the ability of future generations to meet their own needs.

PRINCIPLE 4 - In order to achieve sustainable development, environmental protection

shall constitute an integral part of the development process and cannot. be considered
in isolation from it. PRINCIPLE 5 All States and all people shall co-operate in the
essential task of eradicating poverty as an indispensable requirement for sustaina.ble
development, in order to decrease the disparities in standards of living arid better meet
the needs of the majority of the people of the world.

PRINCIPLE 8 - To achieve sustainable development and a higher quality of life for all
people, States should reduce and eliminate unsustainable patterns of production and
consumption and promote appropriate demographic policies.

3. Principle of Preventive Action - the obligation requiring the prevention of damage to

the environment, and otherwise to reduce, limit or control activities which might cause or risk
such damage.

4. Precautionary Principle - aims to provide guidance in the development and application

of international environmental law where there is scientific uncertainty. It is reflected in
Principle 15 of the Rio Declaration.

PRINCIPLE 15 - In order to protect the environment, the precautionary approach shall

be widely applied by states according to their capabilities. Where there are threats of
serious or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental degradation.

5. Polluter-pays Principle - establishes the requirement that the costs of pollution should
be borne by the person responsible for causing the pollution and is reflected in Principle 16 of
the Rio Declaration.

PRINCIPLE 16 - National authorities should endeavor to promote the internalization of

environmental costs and the use of economic instruments, taking into account the
approach that the polluter should, in principle, bear the costs of pollution, with due
regard to the public interests, and without distorting international trade and
investment.

6. Principle of Common but Differentiated Responsibility - States have a common

responsibility to protect the environment taking into account differing circumstances such as
each state's contribution to the environmental problem and its ability to prevent, reduce and
control the threat. It is reflected in Principle 7 of the Rio Declaration.

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PRINCIPLE 7 - States shall cooperate in a spirit of global partnership to conserve,

protect and restore the health and integrity of the Earth's ecosystem. In view of the
different contributions to global environmental degradation, states have common but
differentiated responsibilities. The developed countries acknowledge the responsibility
that they bear in the international pursuit of sustainable development in view of the
pressures their societies place on the global environment and of the. technologies and
financial resources they command.

Q. What is the relation between International Environmental Law and Human Rights
Law?
A. "The protection of the environment is a ... vital part of contemporary human rights doctrine,
for it is a sine qua non for numerous human rights such as the right to ·health, and the right to
life itself." (Danube Dam Case, 1997)

Q. What is the obligation not to cause transboundary harm?

A. it is the obligation of a state not to use or permit the use of its territory in such a manner as to
cause injury to the territory of another, or the properties or persons therein. (Trail Smelter
Arbitration, 1941).

Q. What are the elements of transboundary harm/damage?

A. According to Xue Hanqin, they are
(1) the physical relationship between the activity concerned and the damage caused;
(2) human causation;
(3) a certain threshold of severity that calls for legal action; and
(4) transboundary movement of the harmful effects.

XIV. CASE DOCTRINES OF PHILIPPINE PIL CASES

1. Bayan v. Zamora (2000): The contention as to "recognition of the other contracting state"
of the treaty means that the contracting party simply accepts or acknowledges it as a treaty.
There is no need to submit the agreement to the US Senate to be considered as recognition by
the US of the binding character of the said treaty.

2. Lim v. Exec. Secretary (2002): The VFA permits the US to engage in "activities" here in the
country, but there is no exact definition of what the activities mean. Art. 31 and 32 of the
VCLT provides that in interpreting international agreements, the general rule is to give Its
ordinary meaning in light of the intention of the parties but one may resort to supplementary
means. Here, the SC construed that the term "activities" was deliberately made to give both
parties room to negotiate and it includes. the Balikatan exercises being done as including the
exercises done in the Balikatan. ·

3. Pimentel v. Executive Secretary (2005): The President, being the Head of State, has the
sole authority to negotiate with other states and to enter into treaties. However, this power of
the President is limited by requiring the concurrence of 7S of all the members of the Senate for
the validity of the treaty. Nevertheless, the President still has the authority to decide whether
to submit or refuse to ratify a treaty. The steps in treaty-making are as follows: negotiation,
signature, ratification, and exchange of instruments of ratification. Here, the Senate's role is
limited only to giving or withholding its consent to the ratification. The Court cannot enjoin the
President of performing his official duties.

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4. Abaya v. Ebdane {2007): The exchange of notes can be a form of executive agreements and
is considered binding even without concurrence by the Senate. SC agreed that pacta sunt
servanda must then be observed and that the award was proper.

s. Pharmaceutical v. DOH {2007): International law can be part of domestic law by

transformation or incorporation. Here, the international Instruments cited such as the UN
Convention on the Rights of the Child, ICESCR,and the Convention on the Elimination of all
forms of discrimination against women are only guides for the State to foll.ow. There must first
be legislation for the provisions of the World Health Assembly resolutions to be implemented
by the DOH.

6. The Province of North Cotabato v. GRP Peace Panel (2008): The MOA-AD would not
amount to an "international agreement or unilateral declaration" binding on the Philippines
under international law since respondents' act of "guaranteeing amendments" is, by itself,
already a constitutional violation that renders the MOA-ADfatally defective.

7. Tanada v. Angara (2007): The provisions in Art. 2 of the Constitution are not self-executing
but are merely guides for the exercise of judicial review and for the legislature. The
constitution also recognizes the need to do business with the global community. It does not
promote an isolationist policy. And, contrary to the petitioners' belief, the WTO recognizes the
need to protect weak economies.

8. Magallon a et al. vs. Executive Secretary Ermita et al. (2011): As to the matter of
reducing territory, the SC held that the UNCLOSis not a means to acquire or lose territory. It
merely marks out the basepoints along the coasts to serve as notices to the international
community of the scope of our maritime space. As to the second issue, the right of innocent
passage is customary in nature and in observance of international law, no State can validly
prohibit innocent passage. Lastly, the use of the framework to define the "regime of islands" is
not inconsistent with the country's claim of sovereignty over these areas. Such classification
does not diminish the maritime area and it is pursuant to the basepoints mapped out by
previous baseline law (RA 3046). (Bar 2015)

9. Gov't. of U.S.A. v. Hon. Purganan (2002): Given that extradition proceedings are sui
generis and are not criminal proceedings, they do not call into operation the rights of the
accused under the Bill of Rights. The Constitutional provision on bail only applies when a
person has been arrested and detained for violating Philippine criminal laws and where the
presumption of innocence is at issue. The general rule is that bail is not a matter of right in
extradition cases. However, it may be granted as an exception if a) the defendant can show
that he is not a flight risk; b) there are exceptional, humanitarian, or compelling
circumstances.

10. Gov't. of Hongkong v. Olalia (2007): In light of the modern trends and instruments
(UDHR, ICCPR) in international law highlighting the primacy of human rights, the Court re-
examined its judgment In the Purganan case. Following the ruling in Mejoff v. Director of
Prisons wherein bail can be granted to deportation proceedings, the Court said that there is no
reason why it cannot apply to extradition proceedings which are also administrative in nature
and the innocence or guilt of the person detained is not an issue. However, the Court held that
since Munoz has not presented evidence to show he is a flight risk, they remanded the case to
the trial court to determine whether Munoz can be granted bail on the basis of "clear and
convincing evidence."

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11. Sanders v. Veridiano (1988): Given the official character of the letters, the petitioners
were being sued as officers of the U.S. Government. The complaint-therefore cannot prosper
unless the government sought to be held liable has given its consent to be sued (Art. XVI, Sec
3 of the Constitution). The doctrine of state immunity applies not only to our own government
but also to foreign states to be subjected to the jurisdiction of our courts. Such application is
derived from the principle of the sovereign equality of states, which wisely admonishespar in
parem non habet imperium. Our adherence to this precept is formally expressed· in. Art. II,
Sec. 2 of our Constitution.

12. United States v. Guinto (1990): The restrictive application of state immunity is proper only
when the proceedings arise out of commercial transactions of the foreign sovereign, its
commercial 'actlvltles or economic affairs. A State may have be said to have descendedto the
level of an individual and can thus be deemed to have tacitly given Its consent to be sued only
when it enters into business contracts. It does not apply where the contract relates to the
exercise of its sovereign functions. The Court finds barbershops subject of the concessions
granted by the U.S. Government are commercial enterprises operated by private persons

13. Republic of Indonesia v. Vinzon (2003): The mere entering into a contract by a foreign
State with a private party cannot be construed as the ultimate test of whether or not it is an
actjure imperii (public acts) or jure gestionis (private acts). In this case, the establishment of
a diplomatic mission is undoubtedly an act jure imperii. Petitioner was acting in pursuit of a
sovereign activity in entering into the Maintenance Agreement. The existence alone of a
paragraph in a contract stating that any legal action arising out of the agreement shall be
settled according to the laws of the Philippinesand by a specified court of the Philippines ls not
necessarily a waiver of sovereign immunity from suit. Submission by a foreign state to local
jurisdiction must be clear and unequivocal. It must be given explicitly or by necessary
implication.

14. Minucher v. CA (1992): The Vienna Convention on Diplomatic Relations lists the classes of
heads of diplomatic missions to include: a) ambassadorsor nuncios accredited to the heads of
state; b) envoys, ministers or internuncios accredited to heads of states; and c) charges
d'affaires accredited to the ministers of foreign affairs. Comprising the "staff of the
(diplomatic) mission" are the diplomatic staff, the admtnlstratlve staff, and the technical and
service staff. Even while the VCDR provides for immunity to the members of diplomatic
missions, it does so, nevertheless, with an understanding that the same be restrictively
applied. Only "diplomatic agents," under the terms of the Convention, are vested with blanket
diplomatic immunity from civil and criminal suits. Ultimately, the main yardstick In
ascertaining whether a person is a diplomat entitled to immunity ls the determination of
whether or not he performs duties of diplomatic nature. Scalzo was an Assistant Attache of the
U.S. diplomatic mission and was accredited as such by the Philippine Government. Attaches
belong to a category of officers in the diplomatic establishment who may be in charge of its
cultural, press, administrative, or financial affairs, but they are not generally regarded as
members of the diplomatic mission. In any case, vesting a person with diplomatic immunity Is
a prerogative of the executive branch of the government.

15. Nicolas v. Romulo (2009): The equal protection clause is not violated, because there is a
substantial basis for a different treatment of a member of a foreign military armed forces
allowed to enter our territory and all other accused. The rule in international law is that a
foreign armed forces allowed to enter ones territory is immune from local jurisdiction, except
to the extent agreed upon. Applying the provisions of the VFA, the Court finds that there is a
different treatment when it comes to detention as against custody. The moment the accused

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has to be detained, e.g. after conviction, Article V, Sec. 10 of the VFA applies, stating that
detention shall be by Philippine authorities.

16. Marcos v. Manglapus (1989): The right to return to one's country is not among the rights
specifically guaranteed in the Bill of Rights,· although such right may be considered as. a
generally accepted principle of international law. Still, it remains distinct and separate from the
right to travel, which enjoys a different protection under the International Covenant of Civil
and Political Rights. It would therefore be inappropriate to construe the limitations to the right
to return to one's country in the same context as those pertaining to the liberty of abode and
the right to travel.

17. International School Alliance of Educators v. Quisumbing (2000): The ICESCR

provisions on the rights to equal treatment in employment and labor are violated. when there
are no substantial distinctions to justify the differences in such treatment afforded to persons
in like circumstances. There is no evidence here that foreign-hires perform 25% more
efficiently or effectively than the local-hires. Both groups have similar functions and
responsibilities, which they perform under similar working conditions.

18. China National Machinery and Equipment Corp. v. Sta. Maria (2012): CNMEG, a state
corporation, is not immune from suit. It is engaged in a proprietary activity. The use of the
term "state corporation" in a letter, by the Chinese Ambassador, to refer to CNMEGwas only
descriptive of its natures as a government-owned and/or -controlled corporation, and its
assignment as the Primary Contractor did not imply that it was acting on behalf of China in the
performance of the latter's sovereign functions. To imply otherwise would result in ah absurd
situation, in which all Chinese corporations owned by the state would be automatically
considered as performing governmental activities, even if they are clearly engaged in
commercial or proprietary pursuits.

19. Poe-Llamanzares v. COMELEC (2016): Foundlings are citizens under international law.
Many countries have passed legislation recognizing foundlings as citizens. These
circumstances, including the practice of jus sanguinis countries, show that it is a generally
accepted principle of international law to presume foundlings as having been born of nationals
of the country in which the foundling is found.

20. Intellectual Property Association of the Philippines v. Ochoa (2016): There is no

conflict between the Madrid Protocol and the IP Code. The Madrid Protocol does not amend or
modify the IP Code on the acquisition of trademark rights considering that the applications
under the Madrid Protocol are still examined according to the relevant national law. In that
regard, the IPOPHL will only grant protection· to a mark that meets the local registration
requirements.

21. Vinuya v. Romulo (2010): At present, there is no sufficient evidence to establlsh a general
international obligation for States to exercise diplomatic protection of their own nationals .
abroad. Though, perhaps desirable, neither state practice nor opinio juris has evolved in such
a direction. If it is a duty internationally, it is only a moral and not a legal duty, and there is no
means of enforcing its fulfillment. Absent the consent of states, an applicable treaty regime, or
a directive by the Security Council, there is no non-deroqable duty to institute proceedings
against Japan.

22. Wilson v. Ermita (2016): The Philippines only ratified the ICCPR and the Optional Protocol.
Nowhere in the instrument does it say that a Communication of the Committee forms part of
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the treaty. Any Communication issued by the Committee only displays "important
characteristics of a judicial decision" and are not per se decisions which may be enforced
outright. These Communications, therefore, are mere recommendations to guide the State It Is
issued against. It is beyond the purview of the Court to act on such recommendations as these
are matters which are best taken up by the Legislative and the Executive branches of
government as can be seen by the formation of the Presidential Human Rights Committee.
Hence, there is no ministerial duty and clear legal right which would justify the issuance of a
writ of mandamus to enforce the United Nations Human Rights Committee Communication No.
868/1999.

23. Laude v. Ginez-Jabalde (201_5): Failure to meet the three-day notice rule for filing rnotlons
and to obtain the concurrence of the Public Prosecutor to move for an interlocutory relief in a
criminal prosecution cannot be excused by general exhortations. of human rights. The.
obligation contemplated by Article 2, paragraph (3) of the International Covenant on Civil and
Political Rights is for the State Party to establish a system of accessible and effective remedies
through judicial and administrative mechanisms. The trial of Pemberton indicates that there is
a legal system of redress ·for violated rights. Acting in total disregard of the mechanism for
criminal proceedings established by the Court should not be tolerated under the guise of a
claim to justice, especially the act of furnishing the accused a copy of the Motion only during
the hearing. Upholding human rights pertaining to access to justice cannot be eschewed to
rectify an important procedural deficiency that was not difficult to comply with.

24. Ocampo v. Enriquez (2016): The burial of Marcosat the LNMB will not violate the rights of
the Human Rights Victims to "full" and "effective" reparation under international human rights
and humanitarian law instruments. The International Covenant on Civil and Political Rights, as
well as the U.N. principles on reparation and to combat impunity, call for the enactment of
legislative measures, establishment of national programmes, and provision for ·administrative
and judicial recourse, in accordance with the country's constitutional processes, that are
necessary to give effect to human rights embodied in treaties, covenants. and other
international laws. The 1987 Constitution contains provisions that promote and protect human
rights and social justice. The Philippines is more than compliant with its international
obligations. After the successful People Power Revolution, the three branches of the
government have done their fair share to respect, protect and fulfill the country's human
rights obligations. As to judicial remedies, aside from the writs of habeas corpus, amparo, and·
habeas data, the Supreme Court promulgated on March 1, 2007 Administrative Order No. 25-
2007. On the part of the Executive Branch, it issued a number of administrative and executive
orders. The Congress passed a number of laws affecting human rights.

25. Biraogo v. Del Rosario (2013): A petition for Mandamus cannot lie to compel the Secretary
of Foreign Affairs to press the Philippine claim to North Borneo (Saba_h) before the
International Court of Justice (!CJ) or such other fora authorized under international law. The
submission to the !CJ of the Philippine claim over Sabah involves the conduct of foreign
relations. This is primarily an executive prerogative, and the courts may not inquire into the
wisdom or lack of it in the exercise thereof.

26. Saguisag v. Ochoa (2016): There remain two very important features that distinguish
treaties from executive agreements and translate them into terms of art in the domestic
setting. First, executive agreements must remain traceable to an express or implied
authorization under the Constitution, statutes, or treaties. The absence of these precedents
puts the validity and effectivity of executive agreements under serious question for the main
function of the Executive is to enforce the Constitution and the laws enacted by the
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Legislature, not to defeat or interfere in the performance of these rules. In turn, executive
agreements cannot create new international obligations that are not expressly allowed or
reasonably implied in the law they purport to implement. Second, treaties are, by their very.
nature, considered ·superior to executive agreements. Treaties are products of the acts of the
Executive and the Senate unlike executive agreements, which are· solely executive actions;
216 Because of legislative participation through the Senate, a treaty Is regarded as being on
the same level as astatute. If there tsan irreconcilable conflict, a later law or treaty takes
precedence over one that is prior. An executive agreement is treated differently. Executive
agreements that are inconsistent with either a law or a treaty are considered Ineffective. Both
types of international agreement are nevertheless subject to the supremacy of the
Constitution.

27. Republic v. Provincial Government of Palawan (2018): The ·tiNCLOSdid. not confer on
LGUstheir own continental shelf. The concept of continental shelf under the UNCLOS does not,
by the doctrine of transformation, automatically apply to the LGUs. Even if the UNCLOSwere
to be considered to have been transformed to be part of the municipal law, after Its ratification
by Congress, the UNCLOS did not automatically amend the Local Government Code and the
charters of the local government units. It must be stressed that the provisions under the
UNCLOSare specific in declaring the rights and duties of a state, not a local government unit.
The UNCLOS confirms the sovereign rights of the States over the continental shelf and the
maritime zones. The UNCLOS did not confer any rights to the States' local government units.

28. Enrile v. Sandiganbayan {2015): In the grant of bail to Enrile, the principal purpose of
which is to guarantee the appearance of the accused at the trial or whenever so required by
the court, the Court is further mindful of the Philippines' responsibility in the international
community arising from the national commitment under the Universal Declaration of Human
Rights. This national commitment to uphold the fundamental human rights as well as value the
worth and dignity of every person has authorized the grant of bail not. only to those charged in
criminal proceedings but also to extraditees upon a clear and convincing showing: (1) that the
detainee will not be a flight risk or a danger to the community; and (2) that there exist
special, humanitarian and compelling circumstances.

29. People v. Jumawan (2014): The ancient customs and ideologies from which the irrevocable
implied consent theory evolved have already been superseded by modern global principles
established in various international conventions, such as the Covenant on the Elimination of All
Forms of Discrimination against Women (CEDAW). The Philippines, as State Party to the
CEDAW,accordingly vowed to take all appropriate measures to modify the social and cultural
patterns of conduct of men and women. One of such measures is R.A. No. 8353 insofar as it
eradicated the archaic notion that marital rape cannot exist. It is now acknowledged that rape,
as a form of sexual violence, exists within marriage. A man who penetrates her wife without
her consent or against her will commits sexual violence upon her, and the Philippines, as a
State Party to the CEDAW and its accompanying Declaration, defines and penalizes the act as
rape under R.A. No. 8353. Surely, the Philippines cannot renege on its international
commitments and accommodate conservative yet irrational notions on marital activities that
have lost their relevance in a progressive society.

30. Razon v. Tagitis (2009): While the Philippines is not yet formally bound by the terms of the
Convention on Enforced Disappearance (or by the specific· terms of the Rome Statute) and has not
formally declared enforced disappearance as a specific crime, there is evidence showing that enforced
disappearance as a State practice has been repudiated by the international community, so that the ban
on it is now a generally accepted principle of international law, which we should considera part of the
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law of the land, and which should be acted upon to the extent already allowed under our laws and the
international conventions that bind the Philippines. The elements that constitute enforced
disappearance are essentially fourfold: (a) arrest, detention, abduction or any form of deprivation of
liberty; {b) carried out by agents of the State or persons or groups of persons acting with the
authorization, support or acquiescence of the State; (c) followed by a refusal to acknowledge the
detention, or a concealment of the fate of the disappeared person; and (d) placement of the
disappeared person outside the protection of the law.

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CURRENT EVENTS

PHILIPPINE WITHDRAWAL FROM THE ROME STATUTE/ICC ON MARCH 2018

The Philippines acceded to the Rome Statute on November 1, 2011, thus acceding to the
jurisdiction of the International Criminal Court over persons who .commit the most serious crimes
of international concern. In relation to the Philippines, the jurisdiction of the ICC covers acts
committed on or after the date of ratification.

On February 8, 2018, Prosecutor Fatou Bensoudaof the International Criminal Court announced
that she would open a preliminary examination into the· Philippine war on drugs. It had been
alleged that since July 1, 2016, thousands have been killed in relation to their alleged involvement
in illegal drugs. It is also alleged that the incidents involve extra-judicial killings in the course of
police operations.

The Philippine Government responded by depositing a written notification of withdrawal to the

United Nations' Secretary General on March 17, 2018. The ICC was officially notified of such
deposit on March 19, 2018.

Article 127 of the Rome Statue governs the withdrawal of a State from the Statute. It States that
"the withdrawal shall take effect one year after the date of receipt of the notification, unless the
notification specifies a later date". The one-year period is counted from the date of receipt by the
Secretary General of the United Nations. Hence, the withdrawal of the. Philippines will only take
effect on March 17, 2019.

In the meantime, The Philippines shall not be discharged, by reason of its withdrawal, from the
obligations arising from this Statute while it was a Party to the Statute', including any financial
obligations which may have accrued. Its withdrawal shall not affect any cooperation with the
Court in connection with criminal investigations and proceedings in relation to which the
withdrawing State had a duty to cooperate and which were commenced prior to the date on which
the withdrawal became effective, nor shall it prejudice in any way the continued consideration of
any matter which was already under consideration by the Court prior to the date on which the
withdrawal became effective.

The Philippine cannot instantly escape the jurisdiction of the ICC by the submission of a written
notification.

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THE PARIS AGREEMENT ON CLIMATE CHANGE

In December 2015 at the Paris Climate Conference {COP21), 195 countries adopted the Paris
Agreement on Climate Change which is the first-ever· universal, legally binding global climate
treaty. The Aqreernent aims to hold the increase in global temperature averaqe to well below 2°c
above pre-industry levels and to pursue efforts to limit the temperature increase to 1.5°C in order
to significantly reduce the risks and impacts of climate change. ·
In order to achieve the long-term temperature goals of the agreement, each state agrees to
prepare, communicate and maintain successivenationally determined contributions that it intends
to achieve. Parties shall pursue domestic mitigation measures, with the aim of achieving the
objectives of such contributions.
On October 2015, the Philippines communicated that it intends to undertake Green House Gas
(C02e) emissions reduction of about 70% by 2030 relative to its business-as-usualscenario. of
2000-2030. Reduction of C02e emissions will come from energy, transport, waste, forestry and
industry sectors.

Aside from the 1.5°C goal, the ParisAgreement also recognizesthe following:
• Climate Justice - the Agreement recognizes the impact of mitigating climate change to
promote human rights, including the rights of indigenous peoples, women, youth and
migrants among others;

• Ecosystem integrity in climate actions - the Agreement recognizes integrity of all

ecosystems, including oceans, and the protection of biodiversity, recognized by some
cultures as Mother Earth when taking action to address climate change;

• Support in finance, technology and capacity building for all adaptation and mitigation
efforts - the Agreement recognizes the urgent need for developed countries to support the
finance, technology and capacity-developmentcapabilities of developing countries in order
to enhance their pre-2020 actions;

• Loss and Damage - "loss" refers to complete disappearance of something (i.e., human
lives, habitat, species) while "damage" refers to something that can be repaired (i.e.,
roads, buildings). The Agreement recognizes the important of averting, minimizing and
addressing loss and damage associated with the adverse effects of climate change and
extreme weather events (i.e., flooding, drought). In line with this, the Agreement sets to·
enforce the continuation of the Warsaw International Mechanism (WIM) for Loss .and
Damage. The WIM for Loss and Damage is an institution established. in COP19in 2013 to
explore initial questions about loss and damage. However, there is a move for the creation
of a Loss and Damage article separate from WIM that would ensure recovery and
restoration of communities, livelihoods and ecosystems adversely affected by extreme
weather events and climate change.

In recognition of the principle of common but differentiate responsibilities, the Paris Agreement
allocatesthe responsibilities among developed, developing, and least developedcountries..
1) Developed country Parties - should continue taking the lead by undertaking economy-
wide absolute emission reduction targets.
2) Developing country Parties - should continue enhancingtheir mitigation efforts, and are
encouraged to move over time towards economy-wide emission reduction or limitation
targets in the light of different national circumstances.
3) Least developed countries and small island developing States - may prepare and
communicate strategies, plans and actions for low greenhouse gas emissions
development reflecting their special circumstances.

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The Philippines is a signatory to the said Agreement. The Agreement is due to enter into force in
2020. However, it can be provisionally applied prior to the said date.

The United States of America as announced its intention to leave the Paris Agreement last June 1, ·
2017. However, in accordance with Article 28 of the agreement, the earliest possible withdrawal
from the agreement will be 4 years after the ratification, or on 04 November 2020.

As of November 1, 2017, the only state to refuse the climate change deal is the USA. The last two
to sign were Nicaragua and Syria, respectively.

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Background
of International Law
THE REFUGEE CRISIS IN EUROPE

Hundreds of thousands of. people, mainly Syrians, Afghans, and Eritreans, have crossed the
MediterraneanSea and the Balkans to reach Europe in a bid to flee war or persecution. One out of
three of them were. Syrians which, according to the United Nations Refugee agencies, ought to
qualify as "refugees". Under the 1951 Refugee Convention, the · European States who are
signatory to the Convention cannot deport these refugees. This posed a policy problem to
Europeangovernments who must spread and allocate the said refugees across EuropeanStates.

Refugee versus Migrant

Due to the domestic and regional tensions brought about by this influx, there is.a debate whether
to categorize these people as "refugees" or "migrants". Under the 1951 Refugee Convention, a
"refugee" is a person who is outside the country of his nationality owing to a well-founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular opinion and
is unwilling to avail himself of the protection of that country. On the other hand, a "migrant" is
anyone moving from one country to another, not because of a direct threat or persecution, but to
mainly improve their lives by finding work, or in some cases for education, family reunion, or
other reasons. Unlike refugees, migrants can safely return to their country of origin. The 1951
Refugee Convention and Its additional 1967 Protocol obligates States to give asylum to the former
but not the latter. This is in due to principle of non-refou/ement (no forced return) under Article
33 of the Convention. Thus, refugees cannot be deported but migrants can be for various reasons
such as for not possessing legal papers.

The European Complication

While the U.N. already identified the fleeing Syrians as refugees, the European Union introduced a
complication by creating a rule that the refugees' application for asylum must be handled in the
by the country of their first arrival. Thus, refugees who have come from Greece, Italy or Austria
and have moved to another European State can be sent back to those countries. This rule was
heavily opposed by countries who had overwhelming numbers of first arrivals. Another argument
for this rule is that refugees who have moved from their country of first arrival are no longer
refugees, but are migrants who are seeking for better opportunities at another European State.
The U.N. disagrees with this by countering that a refugee does not cease to be a refugee or
become a migrant simply because they leave one host or travel to another. Instead, the U.N -.
insists that the Convention's definition must hold - that a person is a refugee because it lacks
protection from their country of origin and such status cannot not be altered by any supervening
circumstances.

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ROHINGYA REFUGEE CRISIS OF 2015
The Rohingya are a de facto stateless people residing prtrnarlly In the Rakhine state of western
Myanmar. For decades, the Rohingya have suffered from systemic oppression, including
restrictions on their movement, subsistence, development, and a denial of citizenship. Recently,
violence against the Rohingya has escalated, as Myanmar's security forces' commenced "clearance
operations" throughout Rakhine state, which indiscriminately targeted and terrorized the entire
Rohingya population. Myanmar's security forces are alleged to have committed human rights
violations on a colossal scale, including killing more than 10,000 civilians, the systematic rape of
women, and the destruction of entire villages. As a result, an estimated 727,000 Rohingya
refugees fled from Myanmar into neighboring Bangladesh, putting the total Rohingya refugee
population in Bangladeshat an estimated 921,000 as of September 2018-,

However, the United Nations Security Council (UNSC). has failed to take action, hindered by
Russia's and China's use of their veto powers. Recently, the International Criminal Court's Pre-
Trial Chamber gave the green light for further examination into the atrocities suffered by the
Rohingya,affirming the ICC's plausible basis for jurisdiction despite Myanmar not being a party to
the Rome statute. The ICC Prosecutor has launched a preliminary examination, and actively
invited civil society and victims to participate in the process.

The United Nations Human Rights Council (HRC) has also taken action, commissioning an
independent fact-finding investigation into the Rohingya crisis that recently issued a report
describing atrocious crimes against the Rohingya committed by the Myanmar military. Following
this, the HRChas authorized the creation of an agency to collect and preserve- evidence that could
be used in future prosecutions.

Despite the positive developments at the ICC, the question remains as to whether the prosecutor
will investigate the crime of genocide. Nonetheless, a genocide case is still possible. Since
Myanmar is a signatory to the Genocide Convention, any contracting party that has accepted the
International Court of Justice's (ICJ) jurisdiction under Article IX could bring a genocide claim
against Myanmar before the ICJ.

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BR EXIT

The European Union (EU) is the most advanced regional union of States with notable features
such as the 'EU Single Market' and the 'Schengen Area'. It was established by the Maastricht
Treaty which was further amended and modified by various succeedingtreaties such as the Lisbon
Treaty. The United Kingdom (UK) has been an EU member since 1973. However, over the past
four decades, calls to break membership developed due to the influx of immigrants and refugees
as well as the growing contempt against non-democratically elected EU leaders in Brussels,
among others. UK's Parliament, through Prime Minister David Cameron, recognizedthis discontent
and pushed for a referendum to determine the future of UK's EU membership. This was dubbed as
the 'Brexit' (British Exit)· referendum. On 24 June 2016, the 'Leave' camp won by a controversial
margin over the 'Remain' camp by 51.9% (17,410,742) against 48.1% (16,141,241) of the total
votes cast. The fallout was immediate. The value of the pound cliff-dived, PM Cameron tendered
his resignation effective on October, 2016, and widespread divide in various demographics
sparked throughout UK. Notably, Scotland, Northern Ireland and the city of London heavily voted
in favor of 'Remain' while England and Wales heavily voted in favor of 'Leave'. Scotland, in
particular, seeks to retain EU membership with its First Minister, Nicola Sturgeon, calling for a
second Scottish referendum to secede from the UK in order to achieve such goal. As of date, UK
has yet to send a formal withdrawal notification to the EuropeanCouncil.

Legal Analysis

The withdrawal of a State party from a treaty may take place only as a result of the application of
the provisions of the treaty or of the Vienna Convention on the Law of Treaties (VCLT) [VCLT, art.
42(2)]. Thus, for UK to formally withdraw from the EU, it must follow the withdrawal requirements
set by the Lisbon Treaty. Under Article SO of the Lisbon Treaty, a member State which decidesto
withdraw from the EU can do so (i) in accordance with its own constitutional requirements
followed by (ii) sending a notification of such decision to the European Council. After such
notification, the EU will then negotiate a withdrawal agreement with the withdrawing State. The
Lisbon Treaty shall cease to apply from such State from the date of the withdrawal agreement's·
entry into force, or failing that, two years after the Article 50 notification. Technically, the Brexit
referendum is not binding to UK's Parliament. Hence, it cannot compel Parliament to trigger the
withdrawal process. In any case, for UK to withdraw, its constitution requires that the Parliament
must first pass a bill to repeal the 1972 EuropeanCommunitiesAct which incorporated EU law into
the UK. Thereafter, its would-be Prime Minister can send the Article 50 notification to the
European Council and formally start the negotiation for the withdrawal agreement. Conversely,
absent such repealing bill and notification, the UK remains part of EU.

With respect to UK's international obligations, Brexit will render them largely unaffected. This is
because the withdrawal of a State party from a treaty shall not in any way impair such State's
duty to fulfill any obligation under international law independent of the treaty (VCLT, art. 43).
Thus, with respect- to the refugee crisis, UK's exit from the EU will not affect its obligation to grant
asylum to refugees as it remains a signatory to the 1951 Refugee Convention and its additional
1967 Protocol - obligations which are independent from the Lisbon/Maastricht Treaty.

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UNHRC INVESTIGATION ON THE PHILIPPINES

The UNHRCadopted a resolution on July 11, 2019 which lays out several key actions against the
rise of the drug-related killings in the Philippines, including those under the war on drugs declared
by President Duterte. The resolution urged the Philippine government to take necessary steps in
order to prevent extrajudicial killings and enforced disappearances as well as to carry out
impartial investigations and to ensure that perpetrators be held accountable in accordancewith
international norms as well as due process and the rule of law.

The Human Rights Commission

The HRC is a subsidiary organ of the ECOSOC. There are two different procedures used by the
HRC for responding to violations of human rights:

1. Confidential Consideration Procedure

Resolution 1503 of the ECOSOCauthorizes the Sub-Commission on Prevention of Discrimination

and Protection of Minorities to appoint a working group of not more than 5 members to meet once
a year in private meetings to consider all communications with a view to bringing to the attention
of the Sub- Commission those communications which appear to reveal a pattern of gross and
reliably attested violations of human rights.

The confidential findings of the Sub-Commission are brought to the attention of the Commission
on Human Rights, .which submits its report and recommendation to the ECOSOC. The procedure is
kept confidential until the CHRdecides to make recommendations to the ECOSOC.

2. Public Debate Procedure

Resolution 1235 of the ECOSOC authorizes the CHR and its subsidiary Commission on Prevention
of Discrimination and Protection of Minorities to examine reports relevant to gross violations of
human right and to examine whether the violations reveal a consistent pattern and thereafter
make recommendations to the ECOSOC. ·

The procedure carries out two types of activities:

1. It holds annual public debates in which NGOs are given the opportunity to identify
publicly country-specific situations which deserve attention.
2. It engages in studies and investigations of particular situations through the use of
various techniques the Commission might deem appropriate.

Possible results of these procedures:

1. Embarrassment of countries referred to, that might generate change in policy;

2. Pressure on governments to take the issue on a bilateral or multilateral level;
3. Statements of exhortation from the Commission or call from the Commission for all
available information;
4. The Commission might appoint a special rapporteur to examine and submit a report on the
issue;
5. The Commission might. ask the Security Council to take up the issue with a view to
promulgating sanctions.

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XVI. A DIGEST OF THE SOUTH CHINA SEA ARBITRATION CASE

Introduction
• The Parties to this arbitration are the Republic of the Philippines
("Philippines") and the People's Republic of China ("China").
o This arbitration concerns disputes between the Parties regarding:
O The legal basis of maritime rights and entitlements In the South
China Sea;
O The status of certain geographic features In the South China Sea,
and;
O The lawfulness of certain actions taken by China in the South China
Sea
• The basis for this arbitration is the 1982 United Nations Convention on
the Law of the Sea ("UNCLOS"). Both the Philippines and China are parties
to the Convention, the Philippines having ratified it on 9 May 1984, and China
on 7 June 1996.
• UNCLOSwas adopted as a "constitution for the oceans" in order to "settle all
disputes relating to the law of the sea," and has been ratified by 168 parties.
UNCLOS,however, does not address the sovereignty of States over land
territory. Accordingly, this Tribunal has not been asked to, and does not
purport to, make any ruling as to which State enjoys sovereignty over any
land territory in the South China Sea. None of the Tribunal's decisions in this
award are dependent on a finding of sovereignty.
• Moreover, this Award does not delimit any maritime boundary between
the Parties or involving any other State bordering on the South China
Sea. Although UNCLOSdoes contain provisions concerning the delimitation of
maritime boundaries, China made a declaration in 2006 to exclude maritime
boundary delimitation from its acceptance of compulsory dispute settlement,
something expressly permitted by UNCLOS.Thus, the Tribunal was not asked
to, nor does it purport to, rule on maritime boundaries. ·
• The disputes that the Philippines has placed before the Tribunal fall broadly
within four categories:
O First, the Philippines has asked the Tribunal to rule on the source of
maritime rights and entitlements in the South China Sea.
Specifically, the Philippines seeks a declaration that China's rights are
based on the Convention and not any claim of historic rights, and that
the "nine-dash line" is without legal effect.
O Second, the Philippines has asked the Tribunal. to resolve a dispute
between the Parties concerning the entitlements to maritime zones
that would be generated under the Convention by Scarborough
Shoal and certain maritime features in the Spratly Islands that
are claimed by both Parties.
O Third, the Philippines has asked the Tribunal to resolve a series of
disputes between the Parties concerning the lawfulness of China's
actions in the South China Sea. The Philippines seeks declaration
that China has violated the Convention by:
II Interfering with the exercise of the Philippine's rights by the
Convention, including with respect to fishing, oil exploration,
navigation, and the construction of artificial islands and
installations;

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D Failing to protect and preserve the marine environment by
tolerating and actively supporting Chinese fishermen in the
harvesting of endangered species and the use of harmful
fishing methods that damage the fragile coral reef ecosystem
mi Inflicting severe harm on the marine environment by
constructing artificial islands and engaging in extensive
land reclamation at seven reefs in the Spratly Islands
O Fourth, the Philippines has asked the Tribunal to find that China has
aggravated and extended the disputes by restricting access to a
detachment of Philippines marines stationed at Second Thomas
Shoal
o China has consistently rejected the Philippines' recourse to arbitration.
Nevertheless, this Award is binding on the Parties has per Article 296(1) of
UNCLOSand Article 11 of Annex VII (of UNCLOS).
o Despite its decision not to appear formally at any point the proceedings,
China's Foreign Ministry on 7 December 2014 published a Position Paper
which argued that the Tribunal lacksjurisdiction because:
0 "The essence of the subject-matter of the arbitration is the
sovereignty over the relevant maritime features in the South China
Sea";
0 "China and the Philippines, have agreed, through bilateral
instrumen ts and the Declaration on the Conduct of Parties in the
South · China Sea, to settle their relevant disputes through
negotiations," and;
O The disputes submitted by the Philippines "would constitute an integral
part of maritime delimitation between two countries."
o The Tribunal decided to treat the Position Paper and communications from
China as equivalent to an objection to jurisdiction and to conduct a
separate hearing and rule on its jurisdiction as a preliminary question.
• The Tribunal issued its Award on Jurisdiction and Admissibility on 29
October 2015. In its Award on Jurisdiction, the Tribunal reached conclusions
with respect to 7 of the Philippines' 15 Submissions while deferring decisions
on seven other Submissionsfor further consideration.

II. Procedural History

• The Philippines initiated arbitration proceedings against China pursuant to the
Convention.
• China rejected the arbitration and stated that its position on the South China Sea
issues has been consistent and that "at the core are the territorial disputes over
some islands and reefs of the Nansha Islands."
• Philippines appointed Judge Wolfrum, a German national, as a member of the
Tribunal in accordancewith Article 3(b) of Annex VII to the Convention.
• China did not appoint an arbitrator so the President of the International Tribunal
for the Law of the Sea:
• Appointed Judge Pawlak, a national of Poland, as the second arbitrator
pursuant to Articles 3(c) and 3(e) of Annex VII to the Convention
• Appointed the remaining three arbitrators, in accordance with Articles 3{d)
and 3(e) of Annex VII to the Convention
• The Tribunal issued an Order adopting the Rules of Procedure and fixing a date for

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the Philippines to submit a Memorial that shall fully address all issues.
Philippines submitted its Memorial addressing all aspects· of the case including
issues of jurisdiction, admissibility, and the merits, and concluded with 15
subrnlsslons setting out the relief sought.
• The Philippines wrote to the Tribunal concerning recent actions of.Chlnato prevent
the rotation. and resupply of Philippine personnel stationed at _Second Thomas
(Ayungin) Shoal, regarding China's most recent actions in and around the same,
and expressing concern about China's activities at several features in the South
China Sea, in particular the land reclamation at McKennan Reef,· Hughes Reef,
Johnson Reef, the Gaven Reefs, and Cuarteron Reef..
• The Chinese government expressed that it will not participate In the ·arbitration
unilaterally initiated by the Philippines.
• Chinese Ambassador to the Netherlands sent a second letter to the members of
the Tribunal recalling China's practice of resolving the disputes related to terrttorv
through negotiation and noting China's "legitimate right" under the Convention not
to accept any imposed solution or any unilateral resorting to a third-party
settlement, a right that it considered the Philippines breached by initiating the
arbitration.
• Philippines filed written responses to questions posed by the Tribunal. China did
not respond but instead published remarks reiterating that they are neither
accepting nor participating in the arbitration, as well as that the Arbitral Tribunal
has no jurisdiction.
• Tribunal issued its Award on Jurisdiction, which was unanimous, only addressed
matters of jurisdiction and admissibility; it did not address the merits of the
Parties' dispute.
• The Tribunal confirmed that it was ready to proceed with a hearing on the merits
and any outstanding questions of jurisdiction and admissibility and stated that it
was willing to make schedule adjustments if China decided to participate. China did
not comment.
• The Hearing on the Merits - oral presentations in two rounds in late November
2015 at the Peace Palacein The Hague, Netherlands.

III. Preliminary Matters

• The Legal and Practical Consequencesof China's Non-Participation
O Throughout the proceedings, China has rejected and returned·
correspondence from the Tribunal sent by the Registry, reiterating on
each occasion "that it does not accept the arbitration initiated by the
Philippines." UNCLOS, however, expressly acknowledges the possibility
of non-participation by one of the parties to a dispute and confirms
that such non-participation does not constitute a bar to the·
proceedings.
O The Tribunal has taken a number of measures to safeguard the
procedural rights of both China and the Philippines, such as ensuring
that all communications and materials have been promptly delivered to
the Ambassador of China in The Hague and providing multiple hearings
and opportunities for both parties to comment on certain materials
relevant to the dispute.
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O The Tribunal has considered and addressed the disadvantages of non-
participation such as (1) delay, (2) lack of opportunity to address any
specific issues that the Arbitral Tribunal considers not to have been
canvassed, or to have been canvassed inadequately, and (3) the
participating party being put in the 'position -of having to guess' what
the non-participating party's arguments might be and to 'formulate
arguments for both States."'
o Steps Taken by the Tribunal to Satisfy Itself that It Has Jurisdiction and that
the Claim is Well Founded in Fact and Law
O The Tribunal has actively sought to satisfy Itself as to whether it has
jurisdiction over the dispute. Following China's 'declslon not to file a
Counter-Meniorial, the Tribunal requested the Philippines under Artlcle
25 of the Rules of Procedure to provide further written argument on
certain jurisdictional questions and posed questions to the Philippines
both prior to and during the Hearing on Jurisdiction.
O Article 9 of the Tribunal's Rules of Procedure has led the Tribunal to
take steps to test the evidence provided by the Philippines and to
augment the record by seeking additional evidence, expert input, and
Party submissions relevant to questions arising in this merits phase,
including as to the status of features in the South China Sea, the
allegations concerning violations of maritime safety obligations, and
claims about damage to the marine environment.
• Summary of the Tribunal's Award on Jurisdiction
O There is a dispute between the Parties concerning the interpretation or
application of the Convention, which is. a basis for the dispute
settlement mechanisms of the Convention
O The Tribunal has jurisdiction to consider the Philippines' Submissions
• Status and Effect of the Tribunal's Award on Jurisdiction
O The Tribunal's Award on Jurisdiction is an "award of the arbitral
tribunal" for the purposes of Article 10 of Annex VII to the Convention.
Pursuant to Article 11 of Annex VII to the Convention, "[t]he award
shall be final and without appeal, unless the parties to the dispute have
agreed in advance to an appellate procedure. It shall be compiled with
by the parties to the dispute."
O China has not, to date, accepted the decisions in the Tribunal's Award
on Jurisdiction and has stated that the Award "is null and void, and has
no binding effect on China." China's objections are:
m First, the essence of the subject-matter of the arbitration is
territorial sovereignty over several maritime features in the
South China Sea, which is beyond the scope of the UNCLOS.
m Second, even assuming some of the claims were concerned with
the interpretation and application of the UNCLOS, they would
still be an integral part of maritime delimitation, which has been
excluded by China through its 2006 Declaration and
consequently is not subject to compulsory arbitration
ID Third, given that China and the Philippines have agreed to settle
their disputes in the South China Sea through negotiation, the
Philippines is precluded from initiating arbitration unilaterally.
ED Fourth, the Philippines failed to fulfill the obligation of·
exchanging views with China on the means of dispute
settlement.

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O After considering each of these objections, the Tribunal reaffirms in full
the conclusions and reasoningset out in its Award on Jurisdiction.

IV. The "Nine-Dash Line" and China's Claim to Historic Rights in the Maritime
Areas of the South China Sea (Submissions No. 1 and 2)
o Submission No. 1: China's maritime entitlements in the South China Sea, like .those
of the Philippines, may not extend beyond those expressly permitted by UN CLOS
• Submission No. 2: China's claims to sovereign rights jurisdiction, and to "historic
rights" with respect to the .rnarltlme areas of the South China Sea encompassedby
the so called "nine dash line" are contrary to the Convention and without lawful
effect to the extent that they exceed the geographic and substantive limits of
China's maritime entitlements expressly permitted by UNCLOS ·
• The Philippines' Position: Jurisdiction
O China's statements since May 2009 make a consistent distinction between
claims to "sovereignty" and claims to "sovereign rights and jurisdiction," and
a further distinction between the "islands in the South China Sea and the
adjacent waters" and the "relevant waters".
O The nature of China's claim as one of sovereign rights and jurisdiction is
confirmed by China's conduct In (a) seeking to ban fishing by other States
within the 'nine-dash line'; (b) Interfering with the Philippines' petroleum
exploration activities; and (c) offering concessions to oil blocks in areas
within the 'nine-dash line' but beyond the possible limits of China's
entitlements under the Convention.
O The exception to jurisdiction in Article 298 of the Convention is limited 'to
disputes involving "historic bays or titles.", covered by Article 298(1)(a)(i).
The Philippines argues, "China's claim of 'historic rights' within the area
encompassed by the nine-dash line is not covered by this article.

o The Philippines' Position: China's claim to Historic Rights

O First, the Philippines submits that international law did not historically permit
the type of expansive claim advanced by China's 'nine-dash line' and that,
even if China did possess historic rights in the South China Sea, any such
rights were extinguished by the adoption of the Convention.
O Second, the Philippines argues that, on the basis of the historical record of
China's activities in the South China Sea, China cannot meet the criteria for
having established historic rights within the 'nine- dash line'.
• China's Position
O China claims historic rights within the area of the 'nine-dash line'
o The Tribunal's Consideration: Does China's claim fall under Article 298(1)(a)(I) of
UNCLOS, which involves delimitations Involving historic bays or titles?
O Using Article 33 of the VCLTin interpreting UNCLOS,the Tribunal concluded
that the exception to jurisdiction in Article 298(1)(a)(i) Is limited to disputes
involving historic titles and that China does not claim historic title to the
waters of South China Sea, but rather a constellation of historic rights short
of title
O Thus, the Tribunal has jurisdiction to consider Submissions No. 1 and 2
o Judgment on the Merits
O The Tribunal concludes that China's claim to historic rights to the living and
non-living resources within the 'nine-dash line' is incompatible with the
Convention to the extent that it exceeds the limits of China's maritime zones
as provided for by the Convention. This is apparent in the text of the

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Convention which comprehensively addresses the rights of other States
· within the areas of the exclusive economic zone and continental shelf and.
leaves no space for an assertion of historic rights.
O It is also reinforced by the negotiating record of the Convention. where .the
importance of adopting a comprehensive Instrument was manifest and where
the cause of securing the rights of developing States over their exclusive
economic zone and continental shelf was championed, In particular, by
China.
O Accordingly, upon China's accession to the Convention and its entry Into
force, any historic rights that China may haye had to the living and non-
living resources within the 'nine-dash line' were superseded, as a matter of
law and as between the Philippines and China·, by the limits of the maritime
zones provided for by the Convention.
O The Tribunal distinguished China's claims to historic rights between those
excess and incompatible with the Convention from those that are not.
II China's ratification of the Convention in June 1996 did not extinguish
historic rights in the waters of the South China Sea. Rather, China
relinquished the freedoms of the high seas that it had previously
utilised with respect to the living and non-living resources of certain
sea areas which the international community had collectively
determined to place within the ambit of the exclusive economic zone
of other States. At the same time, China gained a greater degree of
control over the maritime zones adjacent to and projecting from its
coasts and islands. China's freedom to navigate the South China Sea
remains unaffected.
II The Tribunal's decision should not be understood to comment in any
way on China's historic claim to the islands of the South China Sea.
o Conclusion
O With respect to Submission No. 1, the Tribunal concludes that, as between
the Philippines and China, the Convention defines the scope of maritime
entitlements in the South China Sea, which may not extend beyond the
limits imposed therein.
O With respect to Submission No. 2, the Tribunal concludes that, as between
the Philippines and China, China's claims to historic rights, or other
sovereign rights or jurisdiction, with respect to the maritime areas of the
South China Sea encompassedby the relevant part of the 'nine-dash line'
are contrary to the Convention and without lawful effect to the extent that
they exceed the geographic and substantive limits of China's maritime
entitlements under the Convention. The Tribunal concludes that the
Convention superseded any historic rights or other sovereign rights or
jurisdiction in excess of the limits imposed therein.

v. The Status of Features in the South China Sea (Submissions No. 3 to 7)

• In this Chapter, the Tribunal assesses the status of certain maritime
features and the entitlements to maritime zones that they are capable of
generating for the purposes of UNCLOS.
• Definition of Terms
O Low-tide elevation: a feature that is exposed at low tide but covered
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Ii Art. 13(1): "A low-tide elevation is a naturally formed area of
land which is surrounded by and above water at low tide but
submergedat high tide."
13 Art. 13(2): "Where a low-tide elevation is wholly situated at a
distance exceeding the breadth of the territorial sea from the
mainland or an island, it has no territorial sea of its own."
O Islands: generic term to refer to features that are above water at high
tide
II Art. 121(1): "An island is a naturally formed area of land,
surroundedby water, which is above water at high tide."
O High-Tide features: generic category of features that meet the
definition of an island in Article 121(1) of UNCLOs;· "Rocks" and "fully
entitled islands" are thus both subsets of the broader category of
"high-tide features"; they are entitled to 12 nautical miles of territorial
sea
O Rocks: high-tide features that "cannot sustain human habitation or
economic life of their own" and which, therefore, pursuant to Article
121(3), are disqualified from generating an exclusive economic zone
(EEZ) or continental shelf
0 "Fully entitled islands": high-tide features which are not rocks, and
which pursuant to Article 121(2) enjoy the same entitlements as other
land territory under UNCLOS (i.e. exclusive economic zone and
continental shelf)
O Submerged features: features that are fully submerged, even at low
tide
• The status of the following 10 features are in dispute:
O Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef,
McKennan Reef, Hughes Reef, the Gaven Reefs, Subi Reef, Mischief
Reef, and SecondThomas Shoal
• The Philippines submits that each of the 5 maritime features mentioned in its
Submissions 4 to 6 is a low-tide elevation: Second Thomas Shoal, Mischief
Reef, Subi Reef, "Mckennan Reef Including Hughes Reef" (treated as one
feature), and the Gaven Reefs.
• The Tribunal notes that the inclusion of the term "naturally formed" in the
definition of both low tide elevation (Art. 13(1)) and an island (Art. 121(1))
indicates that as a matter of law, human modification cannot change the
seabed into a low-tide elevation or a low-tide elevation into an island.
Thus, despite the substantial human modification made on some of these
islands (e.g. installations, airstrips, etc.), the Tribunal considers that UNCLOS
requires that the status of a feature be ascertained on the basis of its earlier,
natural condition, prior to the onset of human modification.
• Art. 13(2) states that, except where a low-tide elevation falls within the
breadth of a territorial sea generated from a high-tide feature or mainland, it
generates no territorial sea of its own. Thus, a low-tide elevation is
not entitled to an exclusive economic zone or continental shelf, as
necessarily implied in Arts. 57 and 76.
• As for the other features, particularly Scarborough Shoal and all of the
high-tide features in the Spratly Islands, the Philippines seeks a
declaration that they are "rocks" within the meaning of Art. 121(3) of UNCLOS
and thus generate no exclusive economic zone or continental shelf. (~rt.

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121(3) states: "Rocks which cannot sustain human habitation or economic life
of their own shall have no exclusive economic zone or continental shelf').
The following are the conclusions reached by the Tribunal with regard to the
interpretation of Art. 121(3): .
O First, the use of the word "rock" does not limit the provision to
features composed of solid rock. The geological and geomorphological
characteristics of a high-tide feature are not relevant to its
classification pursuant to Art. 121(3).
O Second, the status of a feature is to be determined on the basis of its
natural capacity, without external additions or modifications intended
to increase its capacity to sustain human habitation or an economic life
of its own.
O Third, with respect to "human habitation," the critical factor is the
non-transient character of the inhabitation, such that the
inhabitants can fairly to be said to constitute the natural population of
the feature, for whose benefit the resources of the EEZ were seen to
merit protection. The term "human habitation" should be understood to
involve the inhabitation by a stable community of people for whom
the feature constitutes a home on which they remain (military
personnel not included).
O Fourth, the term "economic life of their own" is linked the requirement
of human habitation and the two will in most instances go hand in
hand. The Tribunal considers that the "economic life" in question
will ordinarily be the life and livelihoods of the human
population inhabiting and making its home on a maritime
feature or group of features. Also, the phrase "on its own" means
that economic life must be oriented around the feature itself and not
solely on the waters or seabed of the surrounding territorial sea.
O Fifth, the text of Article 121(3) is disjunctive, such that the ability to
sustain either human habitation or an economic life of its own would
suffice to entitle a high-tide feature to an EEZ and continental shelf.
But as a practical matter, the Tribunal considers that a maritime
feature will ordinarily only possessan economic life of its own
if it is inhabited by a stable human community.
O Sixth, Article 121(3) is concerned with the capacity of a maritime
feature to sustain human habitation or an economic life of its own
(necessarily an objective criterion), not whether the feature is
presently, or has been, inhabited or home to economic life.
O Seventh, the capacity of a feature to sustain human habitation or an
economic life its own must be assessedon a case-by-case basis.
O Eighth, the Tribunal considers that the capacity of a feature should be
assessed with due regard to the potential for a group of small island
features to collectively sustain human habitation and economic life.
O Ninth, the evidence of physical conditions alone is insufficient to
determine whether the features are capable of sustaining a human
habitation or economic life.
O Thus, the Tribunal considers that the most reliable evidence of the
capacity of a feature will usually be the historical use to which
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O The Tribunal also concludes that there is no evidence for an agreement
based· upon State practice on the interpretation of Article 121(3)
which differs from the interpretation as outlined.
• The following have been used as evidence to determine the status of these
features: satellite imagery, nautical surveying and sailing directions.
o The Tribunal concludes that the following are high-tide features:
O Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef, Johnson Reef,
McKennan Reef, Gaven Reef (North)
• The Tribunal concludes that the following are low-tide elevations:
O Hughes Reef, Gaven Reef (South), Subi Reef, Mischief .Reef, Second
Thomas Shoal ·
o The Tribunal· concludes that the following are rocks that .cannot sustain
human habitation or economic life of their own and accordingly, shall have no
EEZ or continental shelf:
O Scarborough Shoal, Johnson Reef, Cuarteron Reef, Fiery Cross Reef,
Gaven Reef (North), McKennan Reef, and the Spratly Islands
• Finally, the following are located within 200 nautical miles of the Philippines'
coast on the island of Palawan and are located in an area not overlapped by
the entitlements generated by any maritime feature claimed by China, and
hence, form part of the EEZ and continental shelf of the Philippines:
O Mischief Reef and Second Thomas Shoal

VI. Chinese Activities in the South China Sea {SubmissionsNo. 8 to 13)

• The Philippines' Submission No. 8 requests the Tribunal to declare that
China has unlawfully interfered with the enjoyment and exercise of the
sovereign rights of the Philippines with respect to the living and non-living
resources of its exclusive economic zone and continental shelf
• China has objected to or acted to prevent petroleum exploration by the
Philippines in the South China Sea w/in 200 nautical miles of the Philippines'
baselines on several occasions:
O Petroleum Blocks at Reed Bank and the M/V Veritas Voyager Incident
O West Calamian Petroleum Block
O North-West Palawan Petroleum Blocks
• China has also acted to assert its jurisdiction over fisheries in the South China
Sea and to restrict fishing by Philippine nationals in areas within 200 nautical
miles of the Philippines' baselines:
O China's Prevention of Fishing by Philippine Vessels at Mischief Reef
O China's Extension of Jurisdiction over Fisheries in the South China Sea
o The Philippines' Position
O Jurisdiction: there are no maritime features in the South China Sea
claimed by China that can generate entitlements to an exclusive
economic zone in the areas relevant to its Submission No. 8
O Rights in the EEZ: China's interference with oil and gas exploration and
exploitation, and measures adopted to prevent fishing in these areas
are violative of UNCLOS
• China's Position
O China has sovereignty and sovereign rights in the questioned areas
• The Tribunal's Decision
O China has, through the operation of its marine surveillance vessels with
respect to M/V Veritas Voyager on 1 to 2 March 2011 breached Article
77 of the Convention with respect to the Philippines' sovereign rights

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over the non-living resources of its continental shelf in the area of
Reed Bank.
O The Tribunal further finds that China has, by promulgating its 2012
moratorium on fishing in the South· China Sea, without _exception for
areas of the South China Sea falling within the exclusive economic
zone of the Philippines and without limiting the moratorium to Chinese
flagged vessels, breached Article 56 of the Convention with respect to
the Philippines' sovereign rights over the living resources of its
exclusive economic zone.
• The Philippines' Submission No. 9 states that China has unlawfully failed
to prevent its nationals and vessels from exploiting the living resources in the
Philippines' EEZ, specifically MischiefReef and SecondThomas Shoal
o The Philippines' Position ·
O The Tribunal has jurisdiction to consider its Submission No. 9, for the
same reasons set out with respect to its Submission No. 8
o China's Position
O The Philippines does not have rights in the questioned areas
• The Tribunal's Decision
O China has, through the operation of its marine surveillance vessels in
tolerating and failing to exercise due diligence to prevent fishing by
Chinese flagged vessels at Mischief Reef and Second Thomas Shoal in
May 2013, failed to exhibit due regard for the Philippines' sovereign
rights with respect to fisheries in its exclusive economic zone.
O Accordingly, China has breached its obligations under Article 58(3) of
the Convention.
o The Philippines' Submission No. 10 states that China has unlawfully
prevented Philippine fishermen from pursuing their livelihoods by interfering
with traditional fishing activities at Scarborough Shoai since 2012, in
particular their interactions with Philippine fishermen proximate to the feature
• The Philippines' Position
O China violated its obligations under Article 2(3) of the Convention, and
considers this conclusion supported indirectly by reference to Articles
51(1) and 62(3) of the Convention.
O Additionally, China has violated Articles 279 and 300 of the Co_nvention
O China has "unlawfully endangered justice by exacerbating the dispute
between it and the Philippines concerning their maritime rights and
entitlements in the vicinity of ScarboroughShoal
o China's Position
O China claims sovereignty over Scarborough Shoal and asserts that its
waters constitute a traditional fishing ground for Chinese fishermen. ·
• The Tribunal's Decision
O China has, through the operation of its official vessels at Scarborough
Shoal from May 2012 onwards, unlawfully prevented Filipino fishermen
from engaging in traditional fishing at. Scarborough Shoal, without
prejudice to the question of sovereignty over Scarborough Shoal
• The Philippines' Submissions 11 and 12{b) state that:
0 11: China has violated its obligations under the Convention to protect
and preserve the marine environment at Scarborough Shoal, Second
Thomas Shoal, Cuarteron Reef, Fiery Cross Reef, Gaven Reef, Johnson
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O 12(b): China's occupation of and construction activities on Mischief
Reef violate China's duties to protect and preserve the marine
environment under the Convention
~ Documents adduced by the Philippines record the following:
O A number of instances since the late 1~90s in which Chinese fishing
vessels have engaged in environmentally harmful fishing practices and
the harvesting of endangered or threatened species.
O China undertook some construction and land reclamation on seven
features in the Spratly Islands [(a) Cuarteron Reef, (b) Fiery Cross
Reef, (c)Gaven Reef (North), (d) Johnson Reef, (e) Hughes Reef, (f)
Subi Reef, and (g) Mischief Reef] from the early 1990s to 2013
o The Phflippines' Position
O China's actions have damaged the diverse and fragile ecosystem of the
South China Sea
o China's Position
O China has not directly stated its position with respect to the allegations
as presented in the Philippines' Submissions No. 11 and 12(b).
Nevertheless, China's position can be discerned from contemporaneous
official statements.
• The Tribunal's Decision
O China has, through its toleration and protection of, and failure to
prevent Chinese fishing vessels engaging in harmful harvesting
activities of endangered species at Scarborough Shoal, Second Thomas
Shoal and other features in the Spratly Islands, breached Articles 192
and 194(5) of the Convention.
O China has, through its island-building activities at Cuarteron Reef, Fiery
Cross Reef, Gaven Reef (North), Johnson Reef, Hughes Reef, Subi Reef
and Mischief Reef, breached Articles 192, 194(1), 194(5), 197, 123,
and 206 of the Convention
o The Philippines Submissions No. 12(a) and 12(c) state that China's occupation
of and construction activities on Mischief Reef:
O (a): violate the provisions of the Convention concerning artificial
islands, installations and structures
O ( c): constitute unlawful acts of attempted appropriation in violation of
the Convention
• The Philippines' Position
O China's activities at Mischief Reef violate Articles 60 and 80 of the
Convention, relating to artificial islands, installations. and structures.
and constitute unlawful acts of attempted appropriation under the
Convention.
o China's Position
O China emphasised the economic character of its activities and
explained that the construction was intended to provide shelter for
fishermen from local winds; in short, that China's -activities are for
civilian purposes
o The Tribunal's Decision
O China has, through its construction of installations and artificial islands
at Mischief Reef without the authorisation of the Philippines, breached
Articles 60 and 80 of the Convention with respect to the Philippines'
sovereign rights in its exclusive economic zone and continental shelf.

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O The Tribunal further finds that, as a low-tide elevation, Mischief Reef is
not capable of appropriation.
The Philippines' Submission No. 13 requests a declaration that China has
breached· its obligations under the Convention by operating its law
enforcement vessels in a dangerous manner causing serious risk of collision to
Philippine vessels navigating in the vicinity of Scarborough Shoal
o The Philippines' Position
O China has operated its law enforcement vessels in a dangerous
manner, causing "serious risk[] of collision" to Philippi_nevessels
navigating in the vicinity of Scarborough Shoal, and that China has
breached its obligations relating to safe navigation under Articles
94 and 21 of the Convention and related provisions in the Convention
on the International Regulations for Preventing of Collisions at Sea,
1972
o China's Position
O China, through contemporary statements, considers its actions at
Scarborough Shoal to have been generally lawful
The Tribunal's Decision
O China has, by virtue of the conduct of Chinese law enforcement vessels
in the vicinity of Scarborough Shoal, created serious risk of collision
and danger to Philippine vessels and personnel. The Tribunal finds
China to have violated Rules 2, 6, 7, 8, 15, and 16 of the COLREGS
and, as a consequence, to· be in breach of Article 94 of the Convention.

VII. Aggravation or Extension of the Dispute Between the Parties {Submission

No. 14)
o The Philippines' Submission No. 14 states that China has unlawfully
aggravated and extended the dispute by, among other things:
O (a) interfering with the Philippines' rights of navigation in the waters
at, and adjacent to, Second Thomas Shoal;
0 (b) preventing the rotation and resupply of Philippine personnel
stationed at Second Thomas Shoal;
0 (c) Endangering the health and well-being of Philippine personnel
stationed at Second Thomas Shoal; and
0 (d) Conducting dredging, artificial island-building and construction
activities at Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven
Reef, Johnson Reef, Hughes Reef, and Subi Reef
• The Philippines' Position:
O On Jurisdiction: The Tribunal has jurisdiction to consider its Submission
No. 14; Articles 297 and 298 of the Convention do not exclude the
Tribunal's jurisdiction to consider conduct that aggravates .a dispute
pending arbitration
O The Philippines has a right to have a dispute settled peacefully, and
that China is under a corresponding obligation not to aggravate or
extend a dispute pending its resolution
O China has dramatically and dangerously altered the status quo
pendente lite since the commencement of this arbitration, by
aggressively challenging "the long-standing presence of the Philippines
at Second Thomas Shoal" and "unlawfully preventing" the routine
rotation and resupply missions "that the Philippines has been
conducting consistently since· 1999.

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China's Position
O China has on a number of occasions commented on the importance of
good faith and the duties incumbent on States Parties pursuant to the
Convention. It has consistently asserted that it has indisputable
sovereignty over the Nansha Islands, which include the Ren'ai Jlao,
and the adjacent waters. China hereby strongly protests and firmly
opposes to the Philippines' reinforcement of a military vessel illegally
'grounded' on the Ren'al Jiao.
O China notes that its "Indisputable sovereignty over Nansha Islands and
their adjacent waters" includes Mischief Reef and Fiery Cross Reef,
among others.
o The Tribunal's Decision .
O The Tribunal thus reserved any final decision on its jurisdiction with
respect to Submission No. 14 for further consideration In this
Award.1454 The Tribunal also notes that the Philippines' amendment of
its claims to Include Submission No. 14(d) took place following the
Tribunal's Award on Jurisdiction and that the Tribunal has not yet
considered its jurisdiction in respect of the Philippines' amended claim.
O The Tribunal found that that China has in the course of these
proceedings aggravated and extended the disputes between the Parties
through its dredging, artificial island-building, and construction
activities. In particular, while these proceedings were ongoing:
IJ (a) China has aggravated the Parties' dispute concerning their
respective rights and entitlements in the area of Mischief Reef
by building a large artificial island on a low-tide elevation
located in the exclusive economic zone of the Philippines.
m (b) China has aggravated the Parties' dispute concerning the
protection and preservation of the marine environment at
Mischief Reef by inflicting permanent, irreparable harm to the
coral reef habitat of that feature.
rm (c) China has extended the Parties' dispute concerning the
protection and preservation of the marine environment by
commencing large-scale Island-building and construction works
at Cuarteron Reef, Fiery Cross Reef, Gaven Reef (North),
Johnson Reef, Hughes Reef, and Subi Reef.
Ill (d) China has aggravated the Parties' dispute concerning the
status of maritime features In the Spratly Islands and their
capacity to generate entitlements to maritime zones by
permanently destroying evidence of the natural condition of
Mischief Reef, Cuarteron Reef, Fiery Cross Reef, Gaven Reef
(North), Johnson Reef, Hughes Reef, and Subi Reef.

VIII. The Future Conduct of the Parties (Submission No. 15)

o The Tribunal considers it beyond dispute that both Parties are obliged to
comply with the Convention, including its provisions regarding the resolution
of disputes, and to respect the rights and freedoms of other States under the
Convention. Neither Party contests this. The Tribunal is therefore not
persuaded that it is necessary or appropriate for it to make· any further
declaration.

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XVII.
of International Law
PREVIOUS BAR QUESTIONS
2008 BAR
-I -
a. The legal yardstick in determining whether
usage has become customary international
law is expressed in the maxim opinio juris sive
necessitatis or opinio juris for short. What
does the maxim mean? (3%)
b. Under international law, differentiate "hard
law" from "soft law".(3%)
- II -
May a treaty violate international law? If your
answer is in the affirmative, explain when such
may happen. If your answer is in the negative,
explain why. (5%)
- III -
The President alone without the concurrence of
the Senate abrogated a treaty. Assume that the
other country-party to the treaty is agreeable to
the abrogation provided it complies with the
Philippine Constitution. If a case involving the
validity of the treaty abrogation is brought to the
Supreme Court, how should it be resolved? (6%)
2009 BAR
I. TRUE or FALSE. Answer TRUEif the statement
is true, or FALSE if the statement is false. Explain
your answer in not more than two (2)
sentences. (5%)
b. Under the archipelago doctrine, the waters
around, between, and connecting the islands of
the archipelago form part of the territorial sea of
the archipelagic state.
XII
William, a private American citizen, a university
graduate and frequent visitor to the Philippines,
was inside the U.S. embassy when he got into a
heated argument with a private Filipino citizen.
Then, in front of many shocked witnesses, he
killed the person he was arguing with. The police
came, and brought him to the nearest police
station. Upon reaching the station, the police
investigator, in halting English, informed William
of his Miranda rights, and assigned him an
independent local counsel. William refused the
services of the lawyer, and insisted that he be
assisted by a Filipino lawyer currently based in the
U.S. The request was denied, and the counsel
assigned by the police stayed for the duration of
the investigation. William protested his arrest. ·
a. He argued that since the Incident took
place inside the U.S. embassy, ·Philippine
courts have no jurisdiction because the
U.S. embassy grounds are not part of
Philippine territory; thus, technically, · no
crime under Philippine law was committed.
Is William correct? Explain your
answer. (3%)
b. He also claimed that his Miranda rights
were violated because he was not given
the lawyer of his choice; that being an
American, he should have been Informed
of his rights in proper English; and that he
should have been informed of his rights as
soon as he was taken into custody, not
when he was already at the pollce station.
Was William denied his Miranda rights?
Why or why not? (3%)
c. If William applies for bail, claiming that he
is entitled thereto under the "international
standard of justice" and that he comes
from a U.S. State that has outlawed
capital punishment, should William be
granted bail as a matter of right?
Reasons. (3%)
XIII
A terrorist group called the Emerald Brigade is
based in the State of Asyaland. The government of
Asyaland does not support the terrorist group, but
being a poor country, is powerless to stop it.
The Emerald Brigade launched an attack on the
Philippines, firing two missiles that killed
thousands of Filipinos. It then warned that more
attacks were forthcoming. Through diplomatic
channels, the Philippines demanded that Asyaland
stop the Emerald Brigade; otherwise, it wlll do
whatever is necessary to defend itself.
Receiving reliable intelligence reports of another
imminent attack by the Emerald Brigade, and it
appearing that Asyaland was Incapable of
preventing the assault, the Philippines sent a
crack commando team to Asyaland. The team
stayed only for a few hours in Asyaland,
succeeded in killing the leaders and most of the
members of the Emerald Brigade, then
immediately returned to the Philippines.
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Was the Philippine action justified under
the international law principle of "self-
defense"? Explain your answer. (3%)
his coverage, he was killed with a stray bullet
which was later identified as having come from
the ranks of the Red-Shirts. The wife of A sought
b. As a consequence of the foregoing relief from Thai authorttles but was refused
incident, Asyaland charges the Philippines assistance. .
with violation of Article 2.4 of the United a. Is there state responsibility on the part of
Nations Charter that prohibits "the threat Thailand? (2%)
or use of force against the territorial b. What is the appropriate remedy available
integrity or political independence of any to the victim's family under international
State." The Philippines counters that its law? (3%)
commando team neither took any territory
nor interfered in the political processes of IV
Asyaland. Which contention is correct? Choose the statement which appropriately
Reasons. (3%) · completes the opening phrase:
"A State which resorts to retorsion in international
c. Assume that the commando team law
captured a member of the Emerald a. must ensure that·all states consent to its
Brigade and brought him back to the act.
Philippines. The Philippine Government b. cannot curtail migration from 'the
insists that a special international tribunal offending state.
should try the terrorist. On the other c. can expel the nationals of the offending
hand, the terrorist argues that terrorism is state.
not an international crime and, therefore, d. should apply proportionate response
the municipal laws of the Philippines, within appreciable limit.
which recognize access of the accused .to e. None of the above.
constitutional rights, should apply. Decide
with reasons. (3%) Explain your answer. (2%)

2010 BAR 2011 BAR

I 39. Carlos, a foreign national was charged with

The dictatorial regime of President A of the and convicted of a serious crime in State X and
Republic of Gordon was toppled by a combined sentenced to life imprisonment. His country
force led by Gen. Abe, former royal guards and applied for relief with the International Court of
the secessionist Gordon People's Army. The new Justice (IO), arguing that State X did not inform
government constituted a Truth and Reconciliation Carlos of his right under Article 36 of the Vienna
Commission to look into the serious crimes Convention to be accorded legal assistance by his.
committed under President A's regime. After the government. State X, as signatory to the Vienna
hearings, the Commission recommended that an Convention, agreed to IO's compulsory
amnesty law be passed to cover even those jurisdiction over all disputes regarding the
involved in mass killings of members of indigenous interpretation or application of the Vienna
groups who opposed President A. International Convention. ICJ ruled that State X violated its
human rights groups argued that the proposed obligation to provide · consular notification to the
amnesty law is contrary to international law. foreign national's country. IO also required State
Decide with reasons. (4%) X to review and reconsider the life sentence
imposed on the foreign national. State X then
II wrote the United Nations informing that it was
Compare and contrast the jurisdiction of the withdrawing from the Optional Protocol on Vienna
International Criminal Court and International Convention and was not bound by the ICJ
Court of Justice. (3%) decision. What principle of international · law did
State X violate?
III
A, a British photojournalist, was covering the (A) Pacta Sunt Servanda
violent protests of the Thai Red-Shirts Movement (B) Act of State Doctrine
in Bangkok. Despite warnings given by the Thai (C) Protective Principle
Prime Minister to foreigners, specially journalists, (D) Jus Cogens
A moved around the Thai capital. In the course of

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2012 BAR

Under Article 38(1) of the Statute of the

d. 200 miles from the outer limits.

It is a line from which the breadth of the territorial

International Court of Justice, which one of the sea and other maritime zones is measured:
following is NOT considered a source of a. contiguous line;
international law: b. economic line;
a. international conventions; c. baseline;
b. international custom; d. archlpelagic line.
c. international humanitarian law; It is a maritime zone adjacent to the territorial
d. general principles of law. seas where the coastal state may exercise certain
protective jurisdiction:
In international law, it is a norm which States a. baseline zone;'
cannot derogate or deviate from their b. contiguous zone;
agreements: c. transit zone;
a. terra nullius; d. appurtenant zone.
b. opinio juris;
c. jus cogens;
d. jus cogentus. 2013 BAR

In international law, the status of an entity as a ESSAY

State is accepted by other States through this act.
It is the "act by which another State acknowledges
that the political entity recognized possesses the
attributes of statehood."
a. accession;
b. recognition;
c. acknowledgment;
d. attribution.
An act or process by which a State, in compliance
with a formal demand or request, surrenders to
another State an alleged offender or fugitive
criminal who has sought refuge in the· territory of
the first State, in order to stand trial or complete
his prison term:
a. extramediation;
b. exterrertioriality;
c. extradition;
d. extraterritoriality.
This doctrine considers the general or customary
norms of international law as a part of municipal
law and are to be enforced as such, without
regard as to whether they are enacted as
statutory or legislative rules or not:
a. accession;
b. incorporation;
c. accretion;
d. adoption.
Under the United Nations Conference of the Law of
the Sea (UNCLOS), the extent of the contiguous
zone is:
a. 3 nautical mi. from the lowest water
mark;
b. 12 miles from the outer limits;
c. 12 miles from the lowest water mark;
x.
The Ambassador of the Republic of Kafiristan
referred to you for handling, the case of the
Embassy's Maintenance Agreement with CBM, a
private domestic company engaged in
maintenance work. The Agreement binds CBM, for
a defined fee, to maintain the Embassy's
elevators, air-conditioning units and electrical
facilities. Section 10 of the Agreement provides
that the Agreement shall be governed by
Philippine laws and that any legal action shall be
brought before the 'proper court of Makati.
Kafiristan terminated the Agreement because CBM
allegedly did not comply with their agreed
maintenance standards.
CBM contested the termination and filed a
complaint against Kafiristan before the Regional
Trial Court of Makati. The Ambassador wants you
to file a motion to dismiss on the ground of state
immunity from suit and to oppose the position
that under Section 10 of the Agreement, Kafiristan
expressly waives its immunity from suit.
Under these facts, can the Embassy successfully
invoke immunity from suit? (6%)
MCQ
IV. What is the legal effect of decisions of the
International Court of Justice in cases submitted
to it for resolution? (1%)
(A) The decision is binding on other countries
in similar situations.
(B) The decision is not binding on any
country, even the countries that are
parties to the case.

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(C) The decision is binding only on the parties
but only with respect to that particular
case.
(D) The decision Is not binding on the parties
and is only advisory.
(E) The binding effect on the parties depends
on their·submission agreement.
V. Under the UN Convention on the Law of the
Sea, the exclusive economic zone refers to an
area. (1%)
(A) that is at least 100 miles from the
baselines from which the outer limit of the
territorial sea Is measured
(B) that is at least 200 miles but not to
exceed 300 miles from the· baselines from
which the outer limit of the territorial sea
is measured
(C) beyond and adjacent to a country's
territorial sea which cannot go beyond 200
nautical miles from the baselines from
which the outer limit of the territorial sea
is measured
(D) that can go beyond 3 nautical miles but
cannot extend 300 nautical miles from the
baselines from which the outer limit of the
territorial sea is measured
(E) None of the above
2014 BAR
XXIV.
Alienmae is a foreign tourist. She was asked
certain questions in regard to a complaint that
was filed against her by someone who claimed to
have been defrauded by her. Alienmae answered
all the questions asked, except in regard to some
matters in which she invoked her right against
self-incrimination. When she was pressed to
elucidate, she said that the questions being asked
might tend to elicit incriminating answers insofar
as her home state is concerned. Could Alienmae
invoke the right against self-incrimination if the
fear of incrimination is in regard to her foreign
law? (4%)
XXIX.
Ambassador Gaylor is State Juvenus' diplomatic
representative to State Hinterlands. During one of
his vacations, Ambassador Gaylor decided to
experience for himself the sights and sounds of
State Paradise, a country known for its beauty and
other attractions. While in State Paradise,
Ambassador Gaylor was caught in the company of
children under suspicious circumstances. He was
arrested for violation of the strict anti-pedophilia
statute of State Paradise. He claims that he is
immune from arrest and incarceration by virtue of
his diplomatic immunity. Does the claim of
Ambassador Gaylor hold water? (4%)
2015 BAR
I. The Philippines and the Republic of Kroi Sha
established diplomatic relations and immediately
their respective Presidents signed the -following:
(1) Executive Agreement allowing the Republic of
Kroi Sha to establish Its embassy and consular
offices within Metro Manila; and (2) Executive
Agreement allowing the Republic of Krol Sha to
bring to the Philippines its military complement,
warships, and armaments from time to time for a
period not exceeding one month for the purpose
of training exercises with the Philippine military
forces and exempting from Philippine criminal
jurisdiction acts committed In the line of duty by
foreign military personnel, and from paying
custom duties on all the goods brought by said
foreign forces into Philippine territory in
connection with the holding of the activities
authorized under the said Executive Agreement.
Senator Maagap questioned the constitutionality of
the said Executive Agreements and demanded
that the Executive Agreements be submitted to
the Senate for ratification pursuant to the
Philippine Constitution. Is Senator Maagap
correct? Explain. (4%)
IL (1) A bill was introduced in the. House of
Representatives in order to Implement faithfully
the provisions of the United Nations Convention on
the Law of the Sea (UNCLOS) to whlch the
Philippines is a signatory. Congressman Pat Rio
Tek questioned the constitutionality of the bill on
the ground that the provisions of UN CLOS are
violative of the provisions of the Constitution
defining the Philippine internal waters and
territorial sea. Do you agree or not with the said
objection? Explain. (3%)
(2) Describe the following maritime regimes under
UNCLOS (4%)
(a) Territorial sea
(b) Contiguous zone
( c) Exclusive economiczone
(d.) Continental shelf
2016 BAR
-x-
The Philippines entered into an international
agreement with members of the international
community creating the International Economic
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Organization (IEO) which will serve as a forum to
address economic issues between States, create
standards, encourage greater volume of trade
between its members, and settle economic
disputes. After the Philippine President signed the
agreement, the Philippine Senate demanded that
the international agreement be submitted to it for
its ratification. The President refused, arguing that
it is an executive agreement that merely created
an international organization and it dwells mainly
on addressing economic issues among States.
Is the international agreement creating the IEO a
treaty or an executive agreement? Explain. (5%)
-xvn-
[aJ Define the archipelagic doctrine of national
territory, state its rationale; and explain how it is
implemented through the straight baseline
method. (2.5%)
[b] Section 2 of RA 9522 declared the Kalayaan
Island Group (KIG) and Scarborough Shoal as
"Regimes of Islands." Professor Agaton contends
that since the law did not enclose said islands,
then the Philippines lost its sovereignty and
jurisdiction over them. Is his contention correct?
Explain. (2.5%)
2017 BAR
II.
A. Under the doctrine of immunity from suit, the
State cannot be sued without its consent. How
may the consent be given by the State? Explain
your answer. (3%)
B. The doctrine of immunity, from suit in favor of
the State extends to public officials in the
performance of their official duties. May such
officials be sued nonetheless to prevent or to undo
their oppressive or illegal acts, or to compel them
to act? Explain your answer. (3%)
C. Do government-owned or -controlled
corporations also enjoy the lmrnunlty of the State
from suit? Explain your answer. (3%)
III.
State A and State B, two sovereign states, enter
into a 10-year mutual defense treaty. After five
years, State A finds that the more progressive
State B did not go to the aid of State A when it
was threatened by its strong neighbor State C.
State B reasoned that it had to be prudent and
deliberate in reacting to State C because of their
existing trade treaties.
(a) May State A now unilaterally withdraw
from its mutual defense treaty with State
B? Explain your answer. (2.5%)
(b) What is the difference between the
principles of pacta sunt servende and
rebus sic stantibus in international law?
(2.5%) .
(c) Are the principles of pacta sunt
servendeand rebus sic stantibusrelevant
in the treaty relations between State A
and State 87 What about In the treaty
relations between State B and State C?
Explain your answer. (2.5%)
v.
(a) What is the right of legation, and how is it
undertaken between states? Explain your answer.
(2%)
· (b) Under this right, may a country like Malaysia
insist that the Philippines establishes a consulate
in Sabah to look after the welfare of the Filipino
migrants in the area? Explain your answer. (2%)
IX.
A. Ambassador Robert of State Alpha committed a
very serious crime while he headed his foreign
mission in the Philippines. Is he subject to arrest
by Philippine authorities? Explain your answer.
{3%)
B. Extradition is the process pursuant to a treaty
between two States parties for the surrender by
the requested State to the custody of the
requesting State of a fugitive criminal residing in
the former. However, extradition depends on the
application of two principles - the principle of
specialty and the dual criminality principle. Explain
these principles. {4%)
XIII.
Command responsibilitypertains to the
responsibility of commanders for crimes
committed by subordinate members of the armed
forces or other persons subject to their control. in
international wars or domestic conflicts. The
doctrine has now found application in civil actions
for human rights abuses, and in proceedings
seeking the privilege of the writ of amparo.
(a) What are the elements to be established in
order to hold the superior or commander liable
under the doctrine of command
responsibility?(4%)
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(b) May
of International Law
the doctrine of command
responsibility apply to the President for the
abuses of the armed forces (AFP and PNP)
given his unique role as the commander-in-
chief of all the armed forces? Explain your .
answer. (4%)
2018 BAR
III
What and whose vote is required for the following
acts: (2% each)
(b) a declaration of the existence of a
state of war;
xv
Annika sued the Republic of the Philippines,
represented by the Director of the Bureau of Plant
Industry, and asked for the revocation of a deed
of donation executed by her in favor of said
Bureau. She alleged that, contrary to the terms of
the donation, the donee failed to install lighting
facilities and a water system on the property
donated, and to build an office building and
parking lot thereon, which should have been
constructed and made ready for occupancy on or
before the date fixed In the deed of donation.
in its headquarters in Manila. Both were charged
with criminal acts before the local trial courts.
Andreas was caught importing illegal drugs into
the country as part of his "personal effects" and
was thus charged with violation of Comprehensive
Dangerous Drugs Act of 2002. Before the criminal
proceedings could commence, the President had
him deported as an undesirable alien. Aristotle
was charged with grave oral defamation for
uttering defamatory words against a colleague at
work. In his defense, Aristotle claimed diplomatic
Immunity. He presented as proof a communication
from the Department of Foreign Affairs stating
that,· pursuant to the Agreement between the
Philippine Government and the ADS, the bank's
officers and staff are immune from legal processes
with respect to acts performed by them In their
official capacity.
(a) Can the Presldent'sact of deporting an
undesirable alien be subject to judicial
review? (2.5%)
(b) Is Aristotle's claim of diplomatic
immunity proper? (2.5%)

The Republic invoked state immunity and moved

for the dismissal of the case on the ground that it
had not consented to be sued. Should the
Republic's motion be granted? (2.5%)

xx
Andreas and Aristotle are foreign nationals
working with the Asian Development Bank (ADS)

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