TERRITORY
Prescription
Territory
- is an element of a state means an area over which a state has effective control
- includes land, maritime areas, airspace and outer space
Modes of Acquisition
1. Occupation
o acquisition of terra nullius, that is, territory which is prior to occupation
belonged to no state or which may have been abandoned by a prior
occupant
o It must both possess and administer the territory.
▪ Possession requires the presence of a settlement coupled
with a formal act.
▪ A sovereign maintains sufficient administration when it sets
up some sort of supervision that exercises the functions of
government.
Western Sahara Case (October 16, 1975)
- The state practice of the relevant period indicates that territories
inhabited by tribes or people having a social and political
organization were not regarded as terra nullius.
- Acquisition of sovereignty was not generally considered as
effected unilaterally through “occupation” of terra nullius by original
title but through agreements with local rulers.
Island of Palmas Case (April 4, 1928)
- Discovery of terra nullius is not enough to establish sovereignty. It
must be accompanied by effective control.
- The title of contiguity, understood as a basis of territorial
sovereignty, has not foundation in international law.
- The title of sovereignty acquired by continuous and peaceful
display of state authority during a long period of time holds good.
o Terra Nullius: an unoccupied or unowned land; that is, not claimed by
any existing state
2.
o acquisition of a territory subject to the supreme power of another
sovereign through the continuous and undisturbed exercise of that
supreme power during such period as is necessary to create under the
influence of historical development, the general conviction that the
present condition of things it is conformity with international order
o like occupation, prescription requires effective control
o unlike occupation, the object of prescription is not terra nullius
3. Cession
o occurs when the acquiring sovereign derives its title to a new territory
by the ceding sovereign’s transferring to it the supreme power over
that territory
o requires possession or occupation by the acquiring of sovereign
o A treaty of cession which is imposed by a conqueror is invalid. Thus,
there may be a situation where what prevails is merely a de facto
regime
4. Conquest
o takes place if a sovereign firmly establishes a conquest and follows this
by a formal annexation
o In order for it to be effective, sovereigns must end their State of War
either formally by a peace treaty or simply by ceasing hostilities
o The conqueror must have had the intention of acquiring the territory
and not just occupying it temporarily.
5. Accretion and avulsion
o Sovereignty by operation of nature
o Accretion: signifies an increase in existing land masses by new
geological changes; gradual increase of territory by the action of nature
o Avulsion: sudden change resulting for instance from the action of a
volcano
LAW OF THE SEA
Baselines
- the low-water line along the coast as marked on large scale charts officially
recognized by the coastal State
2 ways of drawing the baseline
o Normal Baseline: follows the curvatures of the coast and would
normally not consist of straight lines
o Straight Archipelagic Baselines: Used generally by archipelagic states
Archipelagic States
- means a State is constituted wholly by one or more archipelagos and may
include other islands
- may draw straight archipelagic baselines joining the outermost points of the
outermost islands and drying safe
Straight Archipelagic Baselines
o straight lines are drawn connecting selected points on the coast
without appreciable departure from the general shape of the coast
▪ R.A. No. 5466 have drawn straight baselines around the
Philippines
Archipelagic Waters
o Areas of internal waters which had not previously been considered as
such until the establishment of a straight baseline in accordance with
Article 7 of the Law of the Sea Convention (LOS Convention)
Archipelagic Sea Lanes Passage
o The exercise of the right of an archipelagic state based on Article 53 of
the LOS Convention that it may designate sea lanes and air routes
thereabove, suitable for the continuous and expeditious passage of
foreign ships and aircraft through or over its archipelagic waters and
the adjacent territorial sea
Regime of Islands
o Article 121 of LOS Convention:
1. An island is a naturally formed are of land, surrounded by
water, at high tide.
2. Except as provided for in paragraph 3, the territorial sea, the
contiguous zone and the continental shelf of an island are
determined in accordance with the provisions of the
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.
Internal Waters
- all waters (part of the sea, rivers, lakes etc) landwards from the baseline of the
territory
- include the waters of lakes, rivers and bays as well as the internal waters
within archipelagic waters
- not subject to the right of innocent passage
- ports of every state must be open to foreign vessels and can only be closed
when vital interests of the state so require (Saudi Arabia v. Aramco -Arbitration
1963-)
> a coastal state may regulate access to its ports (Nicaragua v. US)
Territorial Sea
- a belt of sea outwards from the baselines and up to 12 nautical miles beyond,
and in case of an archipelagic state, the breadth of its territorial sea shall be
measured from its archipelagic baseline
- in cases of overlapping due between neighboring littoral states
> the dividing line is a median line equidistant from the opposite baselines
-- such rule, however, does not apply where historic title or other
special circumstances require a different measurement
Contiguous Zone
- an area of water not exceeding 24 nautical miles from the baseline that is used
in measuring the breadth of the territorial sea
- the coastal State may exercise the control necessary to:
(a) prevent infringement of its customs, fiscal, immigration or
sanitary laws and regulations within its territory or territorial sea
(b) punish infringement of the above laws and regulations
committed within its territory or territorial seas
*** The power of control given to the littoral state does not change the nature of
the waters. Beyond the territorial sea, the waters are high seas and are not
subject to the sovereignty of the coastal state.
Exclusive Economic Zone (EEZ)
- an area beyond and adjacent to the territorial sea, extending not more than
200 nautical miles beyond the baseline from which the breadth of territorial sea
is measured
 - the coastal state has rights over the economic resources of the sea, seabed - composed of 21 independent members, elected from among persons enjoying
and subsoil; it does not affect the right of navigation and overflight of other the higher reputation for fairness and integrity and of recognized competence in
states the field of the law of the sea

2 Primary Obligations of Coastal States

(1) Ensure through proper conservation and management measures that
the living resources of the EEZ are not subjected to over-exploitation
(2) Promote the objective of “optimum utilization” of living resources
- If the coastal state does not have such capacity, it must grant access to other
states.
- Delimitation of overlapping EEZ between adjacent states is determined by
agreement.
Continental Shelf
- refers to (a) the seabed and subsoil of the submarine areas adjacent to the
coastal state but outside the territorial sea, to depth of two hundred meters or
beyond that limit, to where the depth allows exploitation, and (b) the seabed and
subsoil of areas adjacent to islands
- coastal state has the right to:
> explore and exploit its natural resources
> erect installations needed
> erect a safety zone over its installations with a 500-meter radius
*** it does not affect the right of navigation of others
*** right does not extend to non-resource material in the shelf area
(i.e. wrecked ship and their cargoes)
Extended Continental Shelf (ECS) (Article 76 of the LOS Convention)
o the outer edge of the continental margin wherever the margin extends
beyond 200 nautical miles from the baselines from which the breadth
of the territorial sea is measured
o shall not exceed 350 nautical miles from the baselines from which the
breadth of the territorial sea is measured or shall not exceed 100
nautical miles from the 2,500-meter isobath
Magallona v. Ermita (July 16, 2011)
RA 952 is not a means to acquire, or lose, territory. What controls
when it comes to acquisition or loss of territory is the international
law principle on occupation, accretion, cession and prescription and
NOT the execution of multilateral treaties on the regulations of sea-
use rights or enacting statutes to comply with the treaty’s terms to
delimit maritime zones and continental shelves. Also, whether
referred to as Philippine ‘internal waters’ under the Constitution or
as ‘archipelagic waters’ under UNCLOS, the Philippines exercises
sovereignty over the body of water lying landward of the baselines,
including the air space over it and the submarine areas underneath
as affirmed by Art. 49, UNCLOS III.
In the matter of the South China Sea Arbitration
The arbitral tribunal, adjudicating the Philippines’ case against China
in the South China Sea ruled in favor of the Philippines, determining
that major elements of China’s claim—including its nine-dash line,
recent land reclamation activities, and other activities in Philippine
waters—was unlawful. The arbitral tribunal is the entity that has
jurisdiction over the case. It is a panel which consists of one or
more adjudicators, organized and sits to decide a dispute by means
of arbitration.

*** the ECS is not an extension of the EEZ

*** Sovereign rights that apply to the EEZ, especially rights to the resources
of the water column do not necessarily apply to the ECS

International Tribunal of the Law of the Sea

- an independent judicial body established by the United Nations Convention on
the Law of the Sea to adjudicate disputes arising out of the interpretation and
application of the LOS Convention
JURISDICTION OF STATES
3.In the cases provided for in paragraphs 1 and 2, the coastal State shall, if
Jurisdiction – the authority to affect legal interest the master so requests, notify a diplomatic agent or consular officer of the
5 Principles: flag State before taking any steps, and shall facilitate contact between such
1. Territoriality Principle agent or officer and the ship’s crew. In cases of emergency this notification
2. Nationality Principle may be communicated while the measures are being taken.
3. Protective Principle
4. Universality Principle 4. In considering whether or in what manner an arrest should be made, the
5. Passive Personality Principle local authorities shall have due regard to the interests of navigation.

(1) Territoriality Principle 5.Except as provided in Part XII or with respect to violations of laws and
- A state has absolute, but not necessarily exclusive, power to prescribe, regulations adopted in accordance with Part V, the coastal State may not
adjudicate and enforce rules for conduct that occurs within its territory take any steps on board a foreign ship passing through the territorial sea to
arrest any person or to conduct any investigation in connection with any
Effects Doctrine: A state also has jurisdiction over acts occurring outside its crime committed before the ship entered the territorial sea, if the ship,
territory but having effects within it. It has two principles: proceeding from a foreign port, is only passing through the territorial sea
SUBJECTIVE OBJECTIVE without entering internal waters.
If an activity takes place Where the action takes
within the territory of the place outside the territory Trail Smelter Case
forum State, then the of the forum State, but
forum State has the the primary effect of that A State owes at all times a duty to protect other States against
jurisdiction to prescribe a activity is within the injurious acts by individuals from within its jurisdiction. The Tribunal
rule for that activity. forum State. holds that the Dominion of Canada is responsible in international
law for the conduct of the Trail Smelter affecting the State of
Article 27, UNCLOS Washington.
Article 27: Criminal jurisdiction on board a foreign ship
1. The criminal jurisdiction of the coastal State not be exercised on board a
foreign ship passing through the territorial sea to arrest any person or to (2) Nationality Principle
conduct any investigation in connection with any crime committed on board - Every state has jurisdiction over its nationals even those nationals outside the
the ship during its passage, save only in the following cases: state

Blackmer v. United States (February 15, 1932)

a. If the consequences of the crime extend to the coastal State;
b. If the crime is of a kind to disturb the peace of the country or the
good order of the territorial sea;
c. If the assistance of the local authorities has been requested by
the master of the ship or by a diplomatic agent or consular officer
of the flag State; or
d. If such measures are necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances.
2.The above provisions do not affect the right of the coastal State to take
any steps authorized by its laws for the purpose of an arrest or investigation
on board a foreign ship passing through the territorial sea after leaving
internal waters.
The nationality principle says that every state has jurisdiction over its
nationals even when those nationals are outside of the state. A citizen
of the United States residing in a foreign country continues to owe
allegiance to the United States and is bound by its laws made
applicable to his situation. One of the duties of such absent citizens
to the United States is that of attending its courts to give testimony
when properly summoned, and Congress may provide for the
performance of this duty and prescribe penalties for disobedience.
Questions of authority in such cases are not questions of international
law, but of municipal law.
- For a state to claim a person as a national, the state must have reasonable
connection or an effective link with that person.
Effective Nationality Link
o Used to determine which of 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 Case (April 6, 1955)
Nationality serves above all to determine that the person upon whom
it is conferred enjoys the rights and is bound by the obligations which
the law of the State in question grants to or imposes on its nationals.
International arbitrators have given their preference to the real and
effective nationality, that which accorded with facts, that based on
stronger factual ties between the person concerned and one of the
States whose nationality is involved. Different factors are taken into
consideration, and their importance will vary from one case to the
next: the habitual residence of the individual concerned is an
important factor as well as the center of his interests, his family ties,
his participation in public life, attachment shown by him for a given
county and inculcated in his children, etc.
Nationality serves above all to determine that the person upon whom
it is conferred enjoys the rights and is bound by the obligations which
the law of the State in question grants to or imposes on its nationals.
Stateless persons
o Those who do not have a nationality
o De jure stateless persons are those who have lost their nationality, if
they had one, and have not acquired a new one.
o De facto stateless persons are those who have a nationality but to
whom protection is denied by their state when out of the state.
o How are they protected against violations of their human rights such as
deportation to parts unknown?
Mejoff v. Director of Prisons (September 26, 1951)
The protection against deprivation of liberty without due process of
law and except for crimes committed against the laws of the land is
not limited to Philippine citizens but extends to all residents, except
enemy aliens, regardless of nationality.
(3) Protective Principle
- a state may exercise jurisdiction over conduct outside its territory that
threatens its security, as long as that conduct is generally recognized as
criminal by states in the international community
- limited to those offenses posing a direct, specific threat to national security
(4) Universality Principle
- recognizes that certain activities, universally dangerous to states and their
subjects, require authority in all community members to punish such acts
wherever they may occur, even absent a link between the state and the parties
or the acts in question
- examples of punishable acts: piracy, genocide, crimes against humanity, war
crimes, aircraft piracy and terrorism
People v. Lol-lo and Saraw (February 27, 1992)
Piracy is a crime not against any particular state but against all mankind.
It may be punished in the competent tribunal of any country where the
offender may be found or into which he may be carried.
(5) Passive Personality Principle
- asserts that a state may apply law – particularly criminal law to an act
committed outside its territory by a person not its national where the victim of
the act was its national
United States v. Yunis (February 12, 1988)
The U.S. government may prosecute an airline hijacker even if the
hijacking’s only connection with the United States was the presence of
Americans on board the plane. There must be jurisdiction under both
international and domestic law in order for jurisdiction to exist in the
situation of this case.
Passive personality principle is increasingly accepted as applied to
terrorist and other organized attacks on a state’s nationals by reason of
their nationality, or to assassination of a state’s diplomatic
representatives or other officials.
Conflict of Jurisdiction
- more than one state may have a valid claim to jurisdiction; US courts
attempted to develop sophisticated modes of resolving conflict of jurisdiction:
 Balancing Test Extradition vis-à-vis Deportation
o in the case of Timberlane Lumber Co v Bank of America, it stated the
tripartite analysis to determine whether to assume jurisdiction or not. EXTRADITION DEPORTATION
1. Was there an actual or intended effect on American foreign Surrender by force of a Expulsion of an unwanted or
commerce wanted person by the undesirable alien
2. Is the effect sufficiently large to present a cognizable injury to requested State to the
the plaintiffs and, therefore, a civil violation of the anti-trust requesting State
laws May only be made pursuant to Pure unilateral act and an
3. Are the interests of, and link to, the United States including a treaty between the exercise of sovereignty.
effects on American foreign commerce sufficiently strong, vis- requesting State and the
à-vis those of other nations, to justify an assertion of requested State
extraordinary authority. For the benefit of the Takes place in the interest of the
requesting State country of residence and is
International Comity ordered without a request by a
o even when a state has basis for exercising jurisdiction, it will refrain third State.
from doing so if its exercise will be unreasonable

Forum Non Conveniens United States v. Alvarez-Machain (June 15, 1992)

o if the whole circumstances of the case it be discovered that there is a
real unfairness to one of the suitors in permitting the choice of a forum
which is not the natural or proper forum
o private interest factors and public interest factors are needed to be
weighed in by the court
Extradition
- the surrender of an individual by the state within whose territory he is found to
the state under whose laws he is alleged to have committed a crime or to have
been convicted of a crime
- a process governed by treaty
Elements:
(a) Acts of sovereignty on the part of two States
(b) A request by one State to another State for the delivery to it of an
alleged criminal
(c) The delivery of the person requested for the purposes of trial or
sentence in the territory of the requesting State.
The following principles govern extradition:
(1) No state is obliged to extradite unless there is a treaty
(2) Differences in legal system can be an obstacle to interpretation of what
the crime is
(3) Religious and political offenses are not extraditable
In the absence of an extradition treaty, nations are under no obligation
to surrender those in their country to foreign authorities for prosecution.
Extradition treaties exist so as to impose mutual obligations to surrender
individuals in certain defined sets of circumstances, following
established procedures.
To imply from the terms of the Treaty the prohibition of obtaining the
presence of an individual by means outside of the procedures the Treaty
established requires a much larger inferential leap, with only the most
general of international law principles to support it. To infer such would
mean that it prohibits all means of gaining presence of an individual
outside of its terms goes beyond the established precedent and practice.
Rodriguez v. Presiding Judge of RTC Manila (Feb. 17, 2006)
If after arrest and if the trial court finds that an extradite is not a flight
risk, the court may grant bail. The Court emphasized that bail may be
granted to possible extradite only upon a clear and convincing showing
(1) that he will not be a flight risk or a danger to the community, and
(2) that there exist special, humanitarian, and compelling
circumstances.
 Section 2(a) and 3(a), Presidential Decree No. 1069
Section 2(a). "Extradition" - The removal of an accused from the Philippines with
the object of placing him at the disposal of foreign authorities to enable the
requesting state or government to hold him in connection with any criminal
investigation directed against him or the execution of a penalty imposed on him
under the penal or criminal law of the requesting state or government.
Section 3. Aims of Extradition. Extradition may be granted only pursuant to a
treaty or convention, and with a view to:
(a) A criminal investigation instituted by authorities of the requesting state or
government charging the accused with an offense punishable under the
laws both of the requesting state or government and the Republic of the
Philippines by imprisonment or other form relevant extradition treaty or
convention.
Secretary of Justice v. Lanton (October 17, 2000)
Extradition treaties provide the assurance that the punishment of international and
transnational crimes will not be frustrated by the frontiers of territorial
sovereignty. The rule is recognized that while courts have the power to interpret
treaties, the meaning given them by the departments of government particularly
charged with their negotiation and enforcement is accorded great weight.
An extradition proceeding is not a criminal prosecution, and the constitutional
safeguards that accompany a criminal trial in this country do not shield an
accused from extradition pursuant to a valid treaty.
Extradition Proceeding Criminal Proceeding
1. Summary in nature 1. Involves a full-blown trial
2. The rules of evidence allow 2. Requires proof beyond reasonable
admission of evidence under less doubt
stringent standards
3. Our courts may adjudge an 3. Judgment becomes executory
individual extraditable but the upon being rendered final
President has the final discretion to
extradite him
Rule of Specialty (Specialty)
4. Due process not apply 4. Due process applies
The evaluation stage in an extradition proceeding is NOT similar to a
preliminary investigation in a criminal proceeding.
Government of the USA v. Puruganan (September 24, 2002)
The rule is that bail is not a matter of right in extradition cases.
However, an exception thereto is that after a potential extraditee has
been arrested or placed under the custody of the law, bail may be
applied for and granted as an exception, only upon a clear and
convincing showing (1) that, once granted bail, the applicant will not be
a flight risk or a danger to the community; and (2) that there exist
special, humanitarian and compelling circumstances including, as a
matter of reciprocity, those cited by the highest court in the requesting
state when it grants provisional liberty in extradition cases therein.
Govt of Hongkong-SAR v. Olalia (April 19, 2007)
The Supreme Court held that it could not ignore the following trends in
international law: (1) the growing importance of the individual person
in public international law who, in the 20th century, has gradually
attained global recognition; (2) the higher value now being given to
human rights in the international sphere; (3) the corresponding duty of
countries to observe these human rights in fulfilling their treaty
obligations; and (4) the duty of the Court to balance the rights of the
individual under our fundamental law, on one hand, and the law on
extradition, on the other.
While the SC in Purganan case limited the exercise of the right to bail
to criminal proceedings, in the light of various international treaties
giving recognition and protection to human rights, the SC in this case
re-examined the ruling in Purganan and declared that the exercise of
the State's power to deprive an individual of his liberty is not
necessarily limited to criminal proceedings.
While our extradition law does not provide for the grant of bail to an
extraditee, however, there is no provision prohibiting him or her from
filing a motion for bail, right to due process under the constitution.
o prohibits a Requesting State from trying an extradited individual for an
offense other than the one for which he was extradited
o a person extradited under the Treaty may only be detained, tried, or
punished in the Requesting State for:
 (1) the offense for which extradition was granted or a differently
denominated offense based on the same facts, provided the
offense is extraditable or is a lesser included offense;
(2) an offense committed after the extradition; or
(3) an offense for which the executive authority of the Requested
State consents.

Govt of Hongkong-SAR v. Munoz (August 16, 2016 and November 7, 2017)

Under the double criminality rule, the extraditable offense must be criminal
under the laws of both the requesting and the requested states. This simply
means that the requested state comes under no obligation to surrender the
person if its laws do not regard the conduct covered by the request for
extradition as criminal.

Under the rule of specialty in international law, a Requested State shall

surrender to a Requesting State a person to be tried only for a criminal
offense specified in their treaty of extradition. Conformably with the dual
criminality rule embodied in the extradition treaty between the Philippines
and the Hong Kong Special Administrative Region (HKSAR), however, the
Philippines as the Requested State is not bound to extradite the respondent
to the jurisdiction of the HKSAR as the Requesting State for the offense of
accepting an advantage as an agent considering that the extradition treaty is
forthright in providing that surrender shall only be granted for an offense
coming within the descriptions of offenses in its Article 2 insofar as the
offenses are punishable by imprisonment or other form of detention for
more than one year, or by a more severe penalty according to the laws of
both parties.
IMMUNITY FROM JURISDICTION
General Rule: Jurisdiction of a state within its territory is complete and absolute.
Exception:
1) Sovereign Immunity
a. State Immunity
b. Immunity of head of state
2) Immunity of the representatives of states or diplomatic and consular
immunities
Sovereign Immunity
- involves both immunity of Head of State and State Immunity
Deutsche Gesellschaft Für Technische Zusammenarbeit (Gtz) v. CA
The nature of the acts performed by the entity invoking immunity
remains the most important barometer for testing whether the privilege
of State immunity from suit should apply, however the Constitution
provides that invoking said immunity is conditional on its withholding of
consent.
Where a suit is led not against the government itself or its officials but
against one of its entities, it must be ascertained whether or not the
State, as the principal that may ultimately be held liable, has given its
consent to be sued. This would depend on whether the government
agency impleaded is incorporated (test of suability is found in its charter)
or unincorporated. If its charter says that it is suable, then it is so,
regardless of the functions it is performing.
1. Absolute Theory: A sovereign cannot, without its consent, be made a
respondent in the courts of another sovereign.
Holy See v. Rosario
According to the classical or absolute theory, a sovereign cannot, without
its consent, be made a respondent in the courts of another sovereign. On
the other hand, newer or restrictive theory states that the immunity of
the sovereign is recognized only with regard to public acts or acts jure
imperii of a state, but not with regard to private acts or acts jure
gestionis.
China National Machinery & Equipment Corp. v. Santamaria
Immunity from suit is determined by the character of the objects for which
the entity was organized. The mere entering into a contract by a foreign state
with a private party cannot be the ultimate test. Such an act can only be the
start of the inquiry. The logical question is whether the foreign state is
engaged in the activity in the regular course of business. If the foreign state
is not engaged regularly in a business or trade, the particular act or
transaction must then be tested by its nature. If the act is in pursuit of a
sovereign activity, or an incident thereof, then it is an act jure imperii,
especially when it is not undertaken for gain or profit.
The doctrine is available to foreign states insofar as they are sought to be
sued in the courts if the local state, necessary as it is to avoid “unduly vexing
the peace of nations”. If the suit has been brought directly against the name
of the state, there would be no doubt that it is a suit brought against a state,
and the only necessary inquiry is whether said state has consented to be
sued. However, if the suit was brought against an agent of the state, it is
necessary to know whether it is incorporated or unincorporated. State
immunity from suit may be waived by general or special law. The special law
can take the form of the original charter of the incorporated government
agency. Incorporated government agencies were ruled not entitled to invoke
immunity from suit, owing to provisions in their charters manifesting their
consent to be sued.
2. Restrictive Theory
o The immunity of the sovereign is recognized only with regard to
public acts or acts jure imperii of a state, but not with regard to
private acts or acts jure gestionis.
o The rule exempts a state from being sued in the courts of another
state without its consent or waiver. State immunity extends only to
sovereign and governmental acts (jure imperii); in contrast to
private, commercial and proprietary acts (jure gestionis).
US v. Ruiz
The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign,
its commercial activities or economic affairs. A state may be said to have
descended to 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
 Holy See v. Rosario
To distinguish the concepts of jure imperii and jure gestionis tentative
guidelines have been established since the act of entering into a contract
by a foreign state with a private party cannot be its sole basis. The
important question to ask is whether the state is engaged in the activity
in the regular course of business. If it is not engaged regularly in
business or trade, the particular act or transaction must be tested by its
nature. If the act is in pursuit of a sovereign activity, or an incident
thereof, then it is an act jure impreii, especially when not undertaken
for gain or profit
Republic of Indonesia v. Vinzon
A sovereign state does not merely establish a diplomatic mission and
leave it at that; the establishment of a diplomatic mission encompasses
its maintenance and upkeep. Hence, the State may enter into contracts
with private entities to maintain the premises, furnishings and equipment
of the embassy and the living quarters of its agents and officials. It is,
therefore, clear that petitioner Republic of Indonesia was acting in pursuit
of a sovereign activity when it entered into a contract with respondent for
the upkeep or maintenance of the air conditioning units, generator sets,
electrical facilities, water heaters, and water motor pumps of the
Indonesian Embassy and the official residence of the Indonesian
ambassador
United States of America v. Guinto
As expressed in Section 2, Article II, 1987 Constitution, Philippines
adopted the generally accepted principles of International Law. Even
without this affirmation, such principles are deemed incorporated as part
of the law of the land as a condition and consequence of our admission
in the society of nations
“There can be no legal right against the authority which makes the law on which
the right depends”
As applied to local state, the doctrine of state immunity is based on the
justification given by Justice Holmes that “there can be no legal right against
the authority which makes the law on which the right depends.” There are
other practical reasons for the enforcement of the doctrine. In the case of
the foreign state sought to be impleaded in the local jurisdiction, the added
inhibition is expressed in the maxim par in parem, non habet imperium. All
states are sovereign equals and cannot assert jurisdiction over one another.
A contrary disposition would, in the language of a celebrated case, “unduly
vex the peace of nations”.
While the doctrine appears to prohibit only suits against the state without its
consent, it is also applicable to complaints filed against officials of the state for
acts allegedly performed by them in the discharge of their duties.
The rule is that if the judgment against such officials will require the state
itself to perform an affirmative act to satisfy the same, such as the
appropriation of the amount needed to pay the damages awarded against
them, the suit must be regarded as against the state itself although it has
not been formally impleaded. In such a situation, the state may move to
dismiss the complaint on the ground that it has been filed without its
consent. The doctrine is sometimes derisively called “the royal prerogative
of dishonesty” because of the privilege it grants the state to defeat any
legitimate claim against it by simply invoking its non-suability. That is hardly
fair, at least in democratic societies, for the state is not an unfeeling tyrant
unmoved by the valid claims of its citizens. In fact, the doctrine is not
absolute and does not say the state may not be sued under any
circumstance. On the contrary, the rule says that the state may not be sued
without its consent, which clearly imports that it may be sued if it consents.
The consent of the state to be sued may be manifested expressly or impliedly.
Express consent may be embodied in a general law or a special law.
Consent is implied when the state enters into a contract or it itself
commences litigation.
The Philippine government consents and submits to be sued upon any moneyed
claim involving liability arising from contract, express or implied, which could
serve as a basis of civil action between private parties
When the government enters into a contract, it is deemed to have
descended to the level of the other contracting party and divested of its
sovereign immunity from suit with its implied consent. Waiver is also implied
when the government files a complaint, thus opening itself to a
counterclaim. The above rules are subject to qualification.
Express consent is effected only by the will of the legislature through the
medium of a duly enacted statute. The Court have held that not all contracts
entered into by the government will operate as a waiver of its non-suability;
distinction must be made between its sovereign and proprietary acts. As for
 the filing of a complaint by the government, suability will result only where
the government is claiming affirmative relief from the defendant.
USA v. Ruiz
It is only when the contract involves its sovereign or governmental
capacity that no such waiver may be implied.
Sanders v. Veridiano
The rule is derived from the principle of the sovereign equality of
states which wisely admonishes that par in parem non habet imperium
and that a contrary attitude works “unduly vex the peace of nations”.
Our adherence to this precept is formally expressed in Article II,
Section 2 of the 1987 Constitution.
This is not to say that in no case may a public officer be sued as such
without the previous consent of the state. It is clear that a public
officer may be sued as such to compel him to do an act required by
law, as where, in general, to secure a judgment that the officer
imposed may satisfy by himself without the government itself having
to do a positive act to assist him. It was also held that where the
government itself has violated its own laws, the aggrieved party may
strictly implied the government even without first filing his claim with
the Commission on Audit as normally required, as the doctrine of state
immunity “cannot be used as an instrument for preparing an injustice”.
It is also not necessary to secure the previous consent of the state,
nor could it be validly impleaded as a party defendant, where an officer
acted without or in excess of his authority.
The practical justification is that there can be no legal right against the
authority that makes the law on which the right depends
EXCEPTIONS TO THE DOCTRINE OF STATE IMMUNITY:
1.When there is waiver of State immunity
2. If the State itself has instituted the proceedings
3. Any counterclaim arising out of the same legal relationship or facts as the
claim presented by the State
4. Commercial transactions with private individuals or entities
5. Death or injury to the person, or damage to or loss of tangible property,
caused by an act or omission which is alleged to be attributable to the State
6. Right or interest of the State in movable or immovable property arising by
way of succession or donation
7. Alleged infringement of patent, industrial design, trade name or business
name, trademark, copyright or any other form of intellectual property
8. Participation in a company or other collective body, whether incorporated
or unincorporated
9. Proceeding which relates to the operation of a ship other than a warship
10. Proceedings involving the effects of an arbitration agreement.
Arigo v. Swift
As it is, the waiver of State immunity under the VFA pertains only to
criminal jurisdiction and not to special civil actions such as the present
petition for issuance of a writ of Kalikasan
Act of State Doctrine
- one of the methods by which States prevent their national courts from
deciding disputes which relate to the internal affairs of another State, the other
two being immunity and non-justiciability
- an avoidance technique that is directly related to a State’s obligation to respect
the independence and equality of other States by not requiring them to submit
to adjudication in a national court or to settlement of their disputes without their
consent
- every sovereign state is bound to respect the independence of every other
sovereign state, and the courts of one country will not sit in judgment on the
acts of the government of another done within its own territory
PCGG v. Sandiganbayan
The parameters of the use of the act of state doctrine were clarified in
Banco Nacional de Cuba v. Sabbatino. There, the U.S. Supreme Court held
that international law does not require the application of this doctrine nor
does it forbid the application of the rule even if it is claimed that the act of
state in question violated international law. Moreover, due to the doctrine’s
peculiar nation-to-nation character, in practice the usual method for an
individual to seek relief is to exhaust local remedies and then repair to the
executive authorities of his own state to persuade them to champion his
claim in diplomacy or before an international tribunal.
Basic Principles in Diplomatic and Consular Law
1. Diplomatic Immunities
Diplomats are concerned with the political relations of states.
Vienna Convention on Diplomatic Relations
Article 9
The receiving State may at any time and without having to explain its decision,
notify the sending State that the head of the mission or any member of the
diplomatic staff of the mission is persona non grata or that any other member of
the staff of the mission is not acceptable. In any such case, the sending State
shall, as appropriate, either recall the person concerned or terminate his
functions with the mission. A person may be declared non grata or not
acceptable before arriving in the territory of the receiving State.
If the sending State refuses or fails within a reasonable period to carry out its
obligations under paragraph 1 of this article, the receiving State may refuse to
recognize the person concerned as a member of the mission.
Article 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. He shall also enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the
territory of the receiving State, unless he holds it on behalf of the
sending State for the purposes of the mission.
(b) An action relating to succession in which the diplomatic agent is
involved as executor, administrator, heir or legatee as a private
person and not on behalf of the sending State.
(c) An action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside his
official functions.
(b) A diplomatic agent is not obliged to give evidence as a witness.
(c) No measures of execution may be taken in respect of a diplomatic agent
except in the cases coming under subparagraphs (a), (b) and (c) of
paragraph 1 of this article, and provided that the measures concerned can
be taken without infringing the inviolability of his person or of his residence.
(d) The immunity of a diplomatic agent from the jurisdiction of the receiving
State does not exempt him from the jurisdiction of the sending State.
Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying
immunity under article 37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying
immunity from jurisdiction under article 37 shall preclude him from invoking
immunity from jurisdiction in respect of any counterclaim directly connected
with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative
proceedings shall not be held to imply waiver of immunity in respect of the
execution of the judgement, for which a separate waiver shall be necessary.
o The Vienna Convention on Diplomatic Relations was a codification of
centuries-old customary law and the inviolability of ambassadors was
firmly established as a rule of customary international law.
o The Convention lists the classes of heads of diplomatic missions to
include (a) ambassadors or nuncios accredited to the heads of state,
(b) envoys, ministers or internuncios accredited to the heads of states;
and (c) charges d' affair accredited to the ministers of foreign affairs as
being provided with immunity, although restrictively applied.
o Under the Convention’s terms, only “diplomatic agents” are vested with
blanket diplomatic immunity from civil and criminal suits. Diplomatic
agents are the heads of missions or members of the diplomatic staff,
thus withholding the same privileges from all others. Even consuls, who
represent their respective states in concerns of commerce and
navigation and perform certain administrative and notarial duties do not
ordinarily enjoy the traditional diplomatic immunities and privileges
accorded diplomats, mainly for the reason that they are not charged
with the duty of representing their states in political matters. The main
yardstick in ascertaining whether person is a diplomat entitled to
immunity is the determination of whether or not he performs duties of
diplomatic nature.
o A foreign agent operating within a territory, can be cloaked with
immunity from suit but only as long as it can be established that he is
acting within the directives of the sending state. The consent of the
host state is an indispensable requirement of basic courtesy between
the two sovereigns

Minucher v. CA
It is already well-established that a state cannot be sued in the courts
of a foreign state. If the acts giving rise to a suit are those of a foreign
government done by its foreign agent, although not necessarily a
diplomatic personage, but acting in his official capacity, the complaint
could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be,
in effect, suing the state itself. Such proscription is not accorded for
the benefit of the individual but for the state. Par in parem, non habet
imperium — that all states are sovereign equals and cannot assert
jurisdiction over one another.
2. Consular Immunities
Consuls attend to administrative and economic issues such as the issuance of
visas.
Vienna Convention on Consular Relations
Article 41: Personal inviolability of consular officers
1. Consular officers shall not be liable to arrest or detention pending trial,
except in the case of a grave crime and pursuant to a decision by the
competent judicial authority.
2. Except in the case specified in paragraph 1 of this article, consular officers
shall not be committed to prison or be liable to any other form of restriction
on their personal freedom save in execution of a judicial decision of final
effect.
3. If criminal proceedings are instituted against a consular officer, he must
appear before the competent authorities. Nevertheless, the proceedings
shall be conducted with the respect due to him by reason of his official
position and, except in the case specified in paragraph 1 of this article, in a
manner which will hamper the exercise of consular functions as little as
possible. When, in the circumstances mentioned in paragraph 1 of this
article, it has become necessary to detain a consular officer, the
proceedings against him shall be instituted with the minimum of delay.
Article 43: Immunity from jurisdiction
1. Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving State
in respect of acts performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this article shall not, however, apply in
respect of a civil action either:
(a) arising out of a contract concluded by a consular officer or a
consular employee in which he did not contract expressly or
impliedly as an agent of the sending State; or
(b) by a third party for damage arising from an accident in the
receiving State caused by a vehicle, vessel or aircraft.
DIPLOMATIC RELATIONS CONSULAR RELATIONS
Focus
Political relations between States Relationship between foreigners, i.e.,
citizens of the sending State and the
receiving State
Effect of Consent of the receiving State
The consent of the receiving State A consular post may serve as a step
to establish a diplomatic mission towards the establishment of a
includes the consent to establish a diplomatic mission but does not
consular post. establish one itself.
Effect of Establishment
Signified recognition of a State as Does not necessarily signify
subject of public international law recognition of a State as a subject of
public international law.
REPUBLIC ACT NO. 75
AN ACT TO PENALIZE ACTS WHICH WOULD IMPAIR THE PROPER
OBSERVANCE BY THE REPUBLIC AND INHABITANTS OF THE PHILIPPINES OF
THE IMMUNITIES, RIGHT, AND PRIVILEGES OF DULY ACCREDITED FOREIGN
DIPLOMATIC AND CONSULAR AGENTS IN THE PHILIPPINES
Section 4. Any writ or process sued out or prosecuted by any person in any
court of the Republic of the Philippines, or by any judge or justice, whereby the
person of any ambassador or public minister of any foreign State, authorized
and received as such by the President, or any domestic or domestic servant of
any such ambassador or minister is arrested or imprisoned, or his goods or
chattels are distrained, seized, or attached, shall be deemed void, and every
person by whom the same is obtained or prosecuted, whether as party or as
attorney, and every officer concerned in executing it, shall upon conviction, be
punished by imprisonment for not more than three years and a fine of not
exceeding two hundred pesos in the discretion of the court.
 Section 5. The provisions of section four hereof shall not apply to any case
where the person against whom the process is issued is a citizen or inhabitant
of the Republic of the Philippines, in the service of an ambassador or a public
minister, and the process is founded upon a debt contracted before he entered
upon such service; nor shall the said section apply to any case where the
person against whom the process is issued is a domestic servant of an
ambassador or a public minister, unless the name of the servant has, before the
issuing thereof, been registered in the Department of Foreign Affairs, and
transmitted by the Secretary of Foreign Affairs to the Chief of Police of the City
of Manila, who shall upon receipt thereof post the same in some public place in
his office. All persons shall have resort to the list of names so posted in the
office of the Chief of Police, and take copies without fee.
***Concurring Opinion of Justice Puno in the case of Liang v. People***
International public officials - persons who, on the basis of an international
treaty constituting a particular international community, are appointed by
this international community, or by an organ of it, and are under its control
to exercise, in a continuous way, functions in the interest of this particular
international community, and who are subject to a particular personal status
Specialized Agencies - international organizations having functions in
particular fields, such as posts, telecommunications, railways, canals, rivers,
sea transport, civil aviation, meteorology, atomic energy, finance, trade,
education and culture, health and refugees.

Section 7. The provisions of this Act shall be applicable only in case where the
country of the diplomatic or consular representative adversely affected has
provided for similar protection to duly accredited diplomatic or consular Three (3) major differences between Diplomatic Immunity and International
representatives of the Republic of the Philippines by prescribing like or similar Immunity
penalties for like or similar offenses herein contained. Diplomatic Immunity International Immunity
One of the recognized limitations of it International immunities may be
is that members of the diplomatic staff specially important in relation to
International Organizations of a mission may be appointed from the State of which the official is a
- such organizations are endowed with some degree of international legal among the nationals of the receiving national
personality such that they are capable of exercising specific rights, duties and State only with the express consent of
powers that State; apart from inviolability and
immunity from jurisdiction in respect of
UN Charter officials acts performed in the exercise
Article 105 of their functions, nationals enjoy only
1. The Organization shall enjoy in the territory of each of its Members such such privileges and immunities as may
privileges and immunities as are necessary for the fulfillment of its be granted by the receiving State.
purposes. The immunity of a diplomatic agent In this case, there is no sending
from the jurisdiction of the receiving State and an equivalent for the
2. Representatives of the Members of the United Nations and officials of the State does not exempt hi from the jurisdiction of the sending State
Organization shall similarly enjoy such privileges and immunities as are jurisdiction of the sending State therefore has to be found either in
necessary for the independent exercise of their functions in connection with the waiver of immunity or in some
Organization. international disciplinary or judicial
procedure
3. The General Assembly may make recommendations with a view to The effective sanctions which secure Does not enjoy similar protection
determining the details of the application of paragraphs 1 and 2 of this Article or respect for diplomatic immunity are the
may propose conventions to the Members of the United Nations for this principle of reciprocity and the danger
purpose. of retaliation by the aggrieved State

*** There is no common law doctrine recognizing the immunity of international

organizations.
Positive international law has devised three methods of granting privileges be judicial or executive, but they are
and immunities to the personnel of international organizations: rarely political or functions of
representation, such as those of the
1. By Conventional Stipulation - as was the case in the Hague Conventions diplomat.
of 1899 and 1907.
2. By Internal Legislation - whereby the government of a state, upon As to the The interruption of But the interruption of the activities
whose territory the international organization is to carry out its interruptio the activities of a of the international official does not,
functions, recognizes the international character of the organization and n of diplomatic agent is usually, cause serious dislocation of
grants, by unilateral measures, certain privileges and immunities to activities likely to produce the functions of an international
better assure the successful functioning of the organization and its serious harm to the secretariat.
personnel. In this situation, treaty obligation for the state in question to purposes for which
grant concessions is lacking. Such was the case with the Central his immunities were
Commission of the Rhine at Strasbourg and the International Institute of granted.
Agriculture at Rome. As to their They are similar in the sense that acts performed in an
3. By combination of the first two – in this method, one finds a similarities official capacity by either a diplomatic envoy or an
conventional obligation to recognize a certain status of an international international official are not attributable him as an individual
organization and its personnel, but the status is described in broad and but ate imputed to the entity, he represents, the state in the
general terms. The specific definition and application of those general case of the diplomat, and the organization in the case of the
terms are determined by an accord between the organization itself and international official.
the state wherein it is located. This is the case with the League of
Nations, the Permanent Court of Justice, and the United Nations.
Scope of its Privileges and Immunities
The privileges and immunities of diplomats and those of international officials o “immunity from every form of legal process” as used in the UN General
rest upon different legal foundations Convention has been interpreted to mean absolute immunity from a state’s
o Whereas those immunities awarded to diplomatic agents are a right jurisdiction to adjudicate or enforce its laws by legal process, and it is said
of the sending state based on customary international law, those that states have not sought to restrict that immunity of the United Nations
granted to international officials are based on treaty or conventional by interpretation or amendment.
law. o international organizations enjoy absolute immunity similar to the diplomatic
o Customary international law places no obligation on a state to prerogatives granted to diplomatic envoys
recognize a special status of an international official or to grant him o an international official is entitled to immunity only with respect to acts
jurisdictional immunities. Such as an obligation can only result from performed in their official capacity, unlike international organizations which
specific treaty provisions. enjoy absolute immunity.

Difference and similarities between a diplomat and an international official The most important immunity to an international official, in the discharge of
Diplomat International Official his international functions, is immunity from local jurisdiction
As to Those of the diplomat The functions of the international o an international official is independent of the jurisdiction of the local
functions are functions in the official are carried out in the authorities for his official acts
national interest. The international interest. He does not o those acts are not his, but are imputed to the organization, and without
task of the represent a state or of the interest waiver the local courts cannot hold him liable for them
ambassador is to of any specific state. He does not
represent his state, usually “represent” the organization Status of the international official with respect to his private acts
and its specific in the true sense of that term. His o Section 18(a) of the General: officials of the specified categories are denied
interest, at the capital functions normally are immunity from local jurisdiction for acts of their private life and empowers
of another state administrative, although they may
 local courts to assume jurisdiction in such cases without the necessity of
waiver

The international official’s immunity for official acts may be likened to a

consular official’s immunity from arrest, detention and criminal or civil
process
o It is not absolute but applies only to acts or omissions in the performance of
his official functions, in the absence of special agreement.
o Since a consular officer is not immune from all legal process, he must
respond to any process and plead and prove immunity on the ground that
the act or omission underlying the process was in the performance of his
official functions.

***End of Concurring Opinion of Justice Puno in the case of Liang v. People***

STATE RESPONSIBILITY
Protection of Aliens
- No state is obliged to admit aliens into its territory unless there is a treaty
requiring it.
- Realistically, it is difficult to deny admission. Hence, states impose legal
standards for admission.
- Once admitted, at least under democratic regimes, aliens may not be expelled
without due process.
- States protect aliens within their jurisdiction in the expectation that their own
nationals will be properly treated when residing or sojourning abroad.
- Diplomatic protection: instrument used for the protection of aliens.
o Basis: Traditional notion that the individual is an inappropriate
subject of international law and hence must have recourse to his
state of nationality for protection.
o Underlying theory: Injury to a national abroad is injury to the
individual’s state of nationality.
Corporation and Shareholders
o Doctrine of effective link
Barcelona Traction Case
When a State admits into its territory foreign investments or foreign
nationals it is bound to extend to them the protection of the law and
to assume obligations concerning the treatment to be afforded them.
In order to bring a claim in respect of the breach of such an
obligation, a State must first establish its right to do so. The breach,
if any, was committed in this case against the company. Only the
company, which was endowed with legal personality, could take
action in respect of matters that were of a corporate character. As to
who should have the right to protect the corporation, it is the state of
nationality of the corporation, in this case, Canada.
Standard for the Protection of Aliens
(1) Doctrine of “national treatment” or “equality of treatment”
- aliens are treated in the same manner as nationals of the state
where they reside
o Pros: aliens would enjoy the same benefits as local nationals
o Cons: if the state is tyrannical and its municipal law are harsh
and violative of human rights even of its own citizens, then
aliens would likewise be subjected to such harsh laws.
(2) Minimum International Standard
- However harsh the municipal laws might be against a state’s own
citizens, aliens should be protected by certain minimum standards
of human protection
- Widely accepted
Neer Claim
The propriety of the government acts should be put to the tests of
international standards, and that the treatment of an alien, in order to
constitute an international delinquency should amount to an outrage,
bad faith, willful neglect of duty, or an insufficiency of governmental
action so far short of international standards that every reasonable
and impartial man would readily recognize its insufficiency.
o Denial of Justice
• Harvard Draft Convention on the Responsibility of States
for Damages. Article 9. Denial of justice exists when there
is:
▪ Denial
▪ Unwarranted delay or obstruction of access to
courts
▪ Gross deficiency in the administration of judicial
or remedial process
▪ Failure to provide those guarantees which are
generally considered indispensable to the proper
administration of justice
▪ Manifestly unjust judgment
• An error of a national court which does not produce
manifest injustice is not denial of justice
Enforcement Regimes
- Who can resolve issues of violations of the rights of aliens when appealed
to by states in conflict?
1. International Court of Justice
2. Ad-hoc tribunals established for the purpose
• US-Iran Claims Tribunal
• UN Compensation Settlements
3. Lump-sum Settlements (Claims Settlement Agreements)
• US-Cambodia
• US-Vietnam
Doctrine of State Responsibility
- When an injury has been inflicted, there is need to determine whether the
State can be held responsible for it.
- Internationally wrongful act – committed when a State violates a customary
rule of international law or a treaty obligation
- What needs to be understood?
1. Elements of an Internationally wrongful act
2. Attributability of the wrongful act to the State
3. Enforcement of the obligation that arises from the wrongful act
Internationally Wrongful Act
- Interpretation of Provisions:
a. Article 1: No state can escape this responsibility once it has committed
an act which satisfies the requirements for an “internationally wrongful
act”
b. Article 2: Elements of an internationally wrongful act:
▪ Subjective- the act must be attributable not to the persons or
agencies who performed it but to the state itself
▪ Objective- a violation of an international obligation
c. Articles 3 & 12: What determines the wrongful character of the act is
international law not internal law.
International law violated can be:
▪ Customary
▪ Conventional
Attribution to the State
- Attribution/Imputability
o a legal construct whereby an internationally unlawful conduct of a
State organ acting in that capacity is regarded as the conduct of the
State itself, making that State responsible for it as an international
wrongful act.
- Principle of Attribution or Imputation
o A State only incurs liability for individual acts or omissions which
can be attributed to it.
o The State shall be responsible for the conduct of a person or group
of persons only when it is shown that said person/group is, in fact,
acting on the instructions, or under the direction or control, of that
State in carrying out the conduct.
***Even if the person or organ exceeds its authority or contravenes instructions,
the conduct shall be still be considered an act of the State under International
Law.
- Nature of the State’s Responsibility
o the State is internationally responsible for its own acts or omission as
an abstract entity. It can physically acts only through individuals or
groups of individuals performing “acts of the State”.
- Organ
o includes any person or body which has that status in accordance with
the international law of the State
1. Acts of State Organs:
a. Acts of any State organ whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it
holds, and whatever its character as an organ of the central
government or of a territorial unit of the State
b. Conduct of an entity which is not an organ of the State but which is
empowered to exercise elements of governmental authority
provided the entity was acting in that capacity in the case in
question.
c. Conduct of an organ placed at the disposal of a State by another
State acting in the exercise of elements of governmental authority
of the State at whose disposal it had been placed.
d. Conduct of a State organ or of an entity empowered to exercise
elements of governmental authority, such organ or entity having
acted in that capacity, exceeding its authority or contravening
instructions concerning its exercise.
2. Other Acts Attributable to the State:
a. Conduct of a person or group of persons that is in fact acting on
the instructions of, or under direction or control of, that State in
carrying out the conduct.
b. Conduct of a person or group of persons that is in fact exercising
governmental authority in the absence or default of official
authorities and in circumstances such as to call for the exercise of
that authority.
c. Conduct of an insurrectional movement which becomes the new
government of a State
d. Conduct of a movement, insurrectional or other, which succeeds in
establishing a new State in part of the territory of the pre-existing
State or in a territory under its administration, shall be considered
an of the new State.
e. Conduct which the State acknowledges and adopts as its own.
3. State Responsibility in Connection with the Wrongful Act of Another State:
a. When it aids or assists another State in the commission of an
internationally wrongful act
 b. When it directs and controls another State in the commission of an
internationally wrongful act
c. When it coerces another State to commit an internationally
wrongful act
Provided the following requisites are present:
1. That State does so with knowledge of the
circumstances of the internationally wrongful act
2. That act would be internationally wrongful if
committed by that State
Caire Claim
A state may be held internationally responsible for the unauthorized acts of
state officials, such as the unlawful killing of a foreign national by an army
or police officer, where those officials purported to act in an official
capacity and “used the means placed at their disposition by virtue of that
capacity”
Corfu Channel Case
The Court draws the conclusion that the laying of the minefield could not
have been accomplished without the knowledge of Albania. As regards the
obligations resulting for her from this knowledge, they are not disputed. It
was her duty to notify shipping and specially to warn ships proceeding
through the Strait of the danger to which they were exposed. In fact,
nothing was attempted by Albania to prevent the disaster, and these grave
omissions involve her international responsibility.
4. Acts of Other Persons:
a. Conduct of a person or group of persons acting on the instructions
of, or under the direction or control of, that State in carrying out
the conduct.
b. Conduct of persons or group of persons exercising elements of the
government authority in the absence or default of the official
authorities and in circumstances such as to call for the exercise of
those elements of authority.
- States in time of peace have a right to send their warships through straits
used for international navigation between parts of the high seas without the
previous authorization of a coastal State, provided that the passage is
innocent.
5. Acts of Revolutionaries:
Unites States v. Iran
Once organs of the Iranian State had thus given approval to the acts
complained of and decided to perpetuate them as a means of pressure on
the United States, those acts were transformed into acts of the Iranian
State: the militants became agents of that State, which itself became
internationally responsible for their acts.
The Iranian authorities’ decision to continue the subjection of the Embassy
to occupation, and of its staff to detention as hostages, gave rise to
repeated and multiple breaches of Iran’s treaty obligations.
a. Conduct of an insurrectional movement, which becomes the new
government of the State.
b. Conduct of a movement, insurrectional or other, which succeeds in
establishing a new State or in a territory under its administration.
Home Missionary Society Claim US v. Great Britain (1920)
It is well-established principle of international law that no government can
be held responsible for the act of rebellious bodies of men committed in
violation of its authority, where it is itself guilty of no breach of good faith,
or of no negligence in suppressing insurrection.
The good faith of the British Government cannot be questioned, and as to
the conditions prevailing in the Protectorate there is no evidence to
support the contention that it failed in its duty to afford the adequate
protection of life and property.
Short v. Iran
The acts of supporters of a revolution cannot be attributed to the
government following the success of the revolution just as the acts of
supporters of an existing government are not attributable to the
government.
Preliminary Objections
- The claim of denial of justice may be lost due to failure to answer some
preliminary objections. The objections are:
d. Lack of nationality link
e. Failure to exhaust national remedies
 ▪ Purpose: To protect international courts from being swamped
with cases which are better handled locally.
▪ Application: Cases founded on diplomatic protection or on
injury to aliens
Reparation
- Obligation to make full reparation for the injury caused by the internationally
wrongful act.
- Injury- any damage, whether material or moral, arising in consequence of the
internationally wrongful act of a State.
- Responsible State may not rely on the provisions of its internal law as
justification for failure to comply with its obligations.
- Forms of reparation:
a. Restitution – an obligation to re-establish the situation which existed
before the wrongful act was committed, provided if is not materially
impossible.
b. Compensation – an obligation to compensate for the damage caused
thereby, insofar as such damage is not made good by restitution.
c. Satisfaction – may consist in an acknowledgement of the breach, an
expression of regret, a formal apology or another appropriate modality
insofar as the injury cannot be made good by restitution or
compensation.
- Full reparation for the injury cause shall take the form of restitution,
compensation and satisfaction either singly or in combination.
Chorzow Factory Case
Restitutio in Integrum: Reparation must, as far as possible, wipe out all the
consequences of the illegal act and re-establish the situation which would,
in all probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which a restitution in kind would bear; the
award, if need be, or damages for loss sustained which would not be
covered by restitution in kind or payment in place of it – such are the
principles which should serve to determine the amount of compensation
due for an act contrary to international law.
Nature of liability of illegal acts done in contravention of an agreement
differs from the nature of liability of acts for the violation of the same.
Calvo Clause Rejected
- A provision in a contract to the effect that “under no condition shall the
intervention of foreign diplomatic agents in any matter related to the contract” be
resorted to.
- Rejected in North American Dredging Company Claim (1926) by the Mexico-
United States General Claims Commission.
- The right to seek redress is a sovereign prerogative of a state and a private
individual has no right to wave the state’s right.
Expropriation of Alien Property
- Expropriation- taking of property by the State
- It can be an international wrong if it is done contrary to the principles of
international law.
- 1962 UN GA Resolution on the Sovereignty over Natural Resources
o Expropriation shall be based on grounds or reasons of public utility,
security or the national interests which are recognized as overriding
purely individual or private interests, both domestic and foreign.
o In such cases the owner shall be paid appropriate compensation in
accordance with the rules in force in the state taking such measures in
the exercise of its sovereignty and in accordance with international law.
When breach of an obligation under International Law serious
- If it involves a gross and systematic failure by the responsible State to
fulfill the obligation.
- Aggravated Responsibility – arises when a State violates a rule laying down
a “community obligation”, that is either:
▪ a customary obligation erga omnes protecting such
fundamental values (e.g. peace, human rights)
▪ an obligation erga omnes contractanes laid down in a multi-
lateral treaty safeguarding those fundamental values
Countermeasures
- An injured State may take countermeasures against a State which is
responsible for an intentionally wrongful act but only for the purpose of
inducing of that State to comply with its obligation under International Law.
- Limitations:
▪ Limited to the non-performance for the time being of international
obligations of the State taking the measures towards the
responsible State
▪ Must be commensurate with the injury suffered, taking into
account the gravity of the internationally wrongful act and the rights
in question
▪ Countermeasures shall not affect the following:
1. Obligations to refrain from the threat or use of force
as embodied in the UN Charter
2. Obligations for the protection of fundamental human
rights
3. Obligations of a humanitarian character prohibiting
reprisals
4. Other obligations under peremptory norms of general
International Law
REFUGEES
- A refugee is a person who, owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his or her nationality and is unable or,
owing to such fear, is unwilling to avail himself or herself of the protection of
that country; or who, not having a nationality and being outside the country of
his or her former habitual residence (Section 1(d), DOJ Department Circular No.
058-12).
Requisites to be considered a refugee.
To be considered a refugee, the following requisites must concur:
1. the person is Outside the country of his nationality, or in the
case of stateless persons, outside the country of habitual
residence;
2. the person lacks national Protection; and
3. the person fears Persecution in his own country.
Persons excluded from the 1951 / 1954 U.N. Convention?]
The 1951 U.N. Convention and the 1954 U.N. Convention do not apply to
persons:
1. already Receiving from organs or agencies of the United Nations other
than the United Nations High Commissioner for Refugees (UNHCR)
protection or assistance so long as they are receiving such protection or
assistance;
2. already Recognized by the competent authorities of the country in
which they have taken residence as having the rights and obligations
which are attached to the possession of the nationality of that country;
3. if there are Serious reasons for considering that:
a. they have committed a crime against peace, a war crime, or a
crime against humanity, as defined in the international instruments
drawn up to make provisions in respect of such crimes;
b. they have committed a serious non-political crime outside the
Philippines prior to their admission to the Philippines; and
c. they have been found guilty of acts contrary to the purposes and
principles of the United Nations (DOJ Department Circular No. 058-
12, Section 19).
The 1951 UN Convention & The 1967 Protocol
Q: What is the main international legal framework for the protection of
refugees?
ANS: The main international legal framework for the protection of refugees
is the 1951 Convention Relating to the Status of Refugees (1951
Convention), which was later amended by the 1967 Protocol.
Q: What is/are the differences between the 1951 Convention and the 1967
Protocol?
ANS: The 1967 Protocol broadens the applicability of the 1951 Convention.
The 1967 Protocol removes the geographical and time limits that were part
of the 1951 Convention. These limits initially restricted the Convention to
persons who became refugees due to events occurring in Europe before 1
January 1951.
Q: Who determines whether a person is a refugee? How is this done?
ANS: Protecting refugees is primarily the responsibility of States. This may
be done by an individual or group assessment as to whether they meet the
definition in the Convention. Although the 1951 Convention does not
prescribe a particular procedure for the determination of whether a person
is a refugee, where an individual assessment is the preferred approach, any
procedures must be fair and efficient. This would require that States
designate a central authority with the relevant knowledge and expertise to
assess applications, ensure procedural safeguards are available at all stages
of the process and permit appeals or reviews of initial decisions. UNHCR has
been tasked to assist States to establish such procedures.
Q: What law governs the personal status of a refugee?
ANS: The personal status of a refugee shall be governed by:
1. the law of the country of his domicile; or
2. by the law of the country of his residence, if he has no domicile [1951
Convention, Art. 12 (1)].
Q: Why do refugees need protection?
ANS: Since, by definition, refugees are not protected by their own
governments, the international community steps in to ensure they are safe
and protected.
Q: What is the principle of non-refoulement?
ANS: According to the principle of non-refoulement, a refugee should not be
returned to a country where he or she faces serious threats to his or her life
or freedom (1951 Convention, Art. 33).
Q: How are refugees protected?
ANS: Countries may not forcibly return (refoulement) refugees to a territory
where they face danger or discriminate between groups of refugees. They
should ensure that refugees benefit from economic and social rights, at
least to the same degree as other foreign residents of the country of
asylum. For humanitarian reasons, states should allow a spouse or
dependent children to join persons to whom temporary refuge or asylum
has been granted. Finally, states have an obligation to cooperate with
UNHCR.
Q: What other rights do refugees have under the 1951 Convention?
ANS: The other rights contained in the 1951 Convention include:
1. The right not to be expelled, except under certain, strictly defined
conditions (Article 32);
2. The right not to be punished for illegal entry into the territory of a
contracting State (Article31);
3. The right to work (Articles 17 to 19);
4. The right to housing (Article 21);
5. The right to education (Article 22);
6. The right to public relief and assistance (Article 23);
7. The right to freedom of religion (Article 4);
8. The right to access the courts (Article 16);
9. The right to freedom of movement within the territory (Article 26);
10. The right to be issued identity and travel documents (Articles 27
and 28).
Q: Are persons fleeing war or war-related conditions such as famine and
ethnic violence refugees?
ANS: The 1951 Convention, the main international instrument of refugee
law, does not specifically address the issue of civilians fleeing conflict.
However, UNHCR considers that persons fleeing such conditions, and
whose state is unwilling or unable to protect them, should be considered
refugees.
Q: Can a criminal be a refugee?
ANS: Yes. A criminal who has received a fair trial for a common law offense
and who flees his country to escape jail is not necessarily a refugee.
However, a person accused of these or other non-political crimes, whether
innocent or guilty, may also be persecuted for political or other reasons, and
is thus not necessarily excluded from refugee status. Furthermore, people
convicted of the ‘crime’ of political activism may well be refugees.
Q: Can a war criminal be a refugee?
ANS: No. Persons who have participated in war crimes and violations of
international humanitarian and human rights law - including the crime of
terrorism - are specifically excluded from the protection accorded to
refugees.
Q: Can a soldier be a refugee?
ANS: No. A refugee is a civilian. A person who continues to pursue armed
action against his or her country of origin from the country of asylum cannot
be considered a refugee.
Q: May governments deport persons who are found not to be refugees?
ANS: Yes. Persons who have been determined, under an equitable
procedure, not to be in need of international protection are in a situation
similar to that of illegal aliens, and may be deported. However, UNHCR does
urge that protection be granted to people who come from countries
devastated by armed conflicts or generalized violence. The agency also
advocates that rejected asylum seekers be granted the right to a review
before being deported.
Q: What are the obligations of refugees?
ANS: Refugees are required to:
1. abide by the laws and regulations of their country of asylum; and
2. respect measures taken for the maintenance of public order (1951
Convention, Article 2).
Q: Is refugee protection under the 1951 Convention permanent?
ANS: The protection provided under the 1951 Convention is not
automatically permanent. A person may no longer be a refugee when the
basis for his or her refugee status ceases to exist as when he voluntarily
repatriates to his home country once the situation there permits such return;
or when he integrates or becomes naturalized in his host country and stay
there permanently.
Q: What is the difference between a refugee and a migrant?
ANS: A refugee is forced to flee because of a threat of persecution and
because he lacks the protection of his own country. A migrant, in
comparison, may leave his or her country for many reasons that are not
related to persecution, such as for the purposes of employment, family
reunification or study. A migrant continues to enjoy the protection of his or
her own government, even when abroad.
Q: Can someone be excluded from refugee protection?
ANS: Yes. The 1951 Convention only protects persons who meet the criteria
for refugee status. Certain categories of people are considered not to
deserve refugee protection and should be excluded from such protection.
Q: Who are the persons excluded from the refugee protection:
ANS: The persons excluded from the refugee protection are those persons
for whom there are serious reasons to suspect that:
 1. they have committed a crime against peace, a war crime, a
crime against humanity or a serious non-political crime outside
their country of refuge; or
2. they are guilty of acts contrary to the purposes and principles of
the United Nations.
ANS: Any dispute between parties to the 1951 Convention relating to its
interpretation or application, which cannot be settled by other means, shall
be referred to the International Court of Justice at the request of any one of
the parties to the dispute (1951 Convention, Art. 38).

Q: What are the rules on the expulsion of refugees?

ANS: The following are the rules in case of expulsion of refugees:
1. The Contracting States shall not expel a refugee lawfully in their
territory save on grounds of national security or public order;
2. The expulsion of such a refugee shall be only in pursuance of a
decision reached in accordance with due process of law;
3. The Contracting States shall allow such a refugee a reasonable
period within which to seek legal admission into another country
(1951 Convention, Art. 32).

Q: Can a State accede simultaneously to both the 1951 Convention and the
1967 Protocol?
ANS: Yes. When acceding simultaneously to both instruments, States must
still make a formal declaration regarding the geographical application under
1B (1) of the 1951 Convention.

Q: Is the 1951 Convention the only instrument relevant to the rights of

refugees?
ANS: No. The 1951 Convention is the only global legal instrument dealing
with the status and rights of refugees. In addition to the 1951 Convention,
there are several conventions and declarations that are of particular
relevance in specific regions. For example, there are legal instruments on
refugees that apply in Africa, Latin America and the European Union. There
is also a substantial body of international human rights law that
complements the rights of refugees in the 1951 Convention.

Q: Can a country that has not signed the 1951 Convention refuse to admit
a person seeking protection?
ANS: No. A refugee seeking protection must not be prevented from entering
a country as this would amount to refoulement. The principle of non-
refoulement, which prohibits the return of a refugee to a territory where his
or her life or freedom is threatened, is considered a rule of customary
international law. As such it is binding on all States, regardless of whether
they have acceded to the 1951 Convention or 1967 Protocol.

Q: Which court has jurisdiction over disputes relating to the

interpretation and application of the 1951 Convention?
INTERNATIONAL HUMAN RIGHTS LAW - UDHR principles elevated to the status of Customary Law

Human Rights Examples of rights in UDHR

- Those inalienable and fundamental rights which are essential for life as human - Right to life, liberty, or property
beings - Freedom of speech and expression
- Freedom of assembly
Three Generations of Human Rights - Liberty of movement
1. Traditional civil and fundamental rights - Freedom of religion
2. Social and economic rights
3. Right to peace, clean environment, self-determination, common heritage of International Covenant on Civil and Political Rights (ICCPR)
mankind, development, minority rights - The state party shall undertake to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the rights recognized in the
Characteristics of Huma Rights Convention.
1. Inherent in every human being
2. Indivisible Substantive rights in ICCPR
3. Inalienable
4. Imprescriptible a. Life, liberty and property, and equality
5. Inviolable - ICCPR does not say when protected life begins. PH protects “the life of
6. Universal the unborn from conception” (Imbong v. Ochoa)
- Rights of the accused
UN Human Rights Obligations - Physical liberty, and arrest and detention
1. Art. 55, UN Charter - Right to compensation for (1) unlawful arrest or detention, and
- UN shall promote: (2) non-disclosure of the unknown facts attributed to him.
a) Higher standard of living, full employment, and conditions of economic and - Equal Protection
social progress and development - Death penalty, only after convition
b) Solutions of international economics, social, health, and related problems;
and international cultural and educational cooperation; and SECOND PROTOCOL
c) Universal respect for and observance of, human rights and fundamental - Signed on Sept. 20, 2006
freedoms for all without distinction as to race, sex, language, or religion. - PH not a party
- Prohibits death penalty
2. Art. 56, UN Charter
- All Members pledge themselves to take joint and separate action in b. Torture, ill-treatment and prison conditions
cooperation with the Organization for the achievement of the purposes set forth - Prohibits torture and other forms of ill-treatment
in Art. 55 - Including to personal dignity
- Right to humane prison conditions
3. Art. 2(7) UN Charter
- Nothing contained in the present Charter shall authorize the UN to intervene in c. Freedom of movement
matters which are essentially within the domestic jurisdiction of any state - Rights to travel within the country
- Or shall require the Members to submit such matters to settlement under the - Right to leave the country
present Charter. - Right to change one’s residence

Universal Declaration of Human Rights Limitations

- Created Dec. 10, 1948 and Ph. on of the signatory - For protection of national security
- Not as a law, but a “common standard” for nations to attempt to reach. - Public order (ordre public)
 - Public health or morals or the rights and freedoms of others
*Exile is prohibited by customary law and may be jus cogens
Marcos v. Manglapus
- Right to return to one’s country, a totally distinct right under
international law, independent although related to right to travel
- Not among rights guaranteed in the Bill of Rights
d. Legal personality, privacy and the family
- Right to be recognized as a person
- Protects privacy, family, home or correspondence, honour and
reputation.
- Rights of the family and of children
1. Having a legal personality
- Belongs to all, whether citizens or aliens
2. 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 benefits,
and international law.
North Cotabato v. GRP
- Self-determination aspects
1. Internal right
- Right of the people to pursue its political, economic,
social and cultural development within the framework of an
existing state.
2. External right
- The establishment of a sovereign and independent State,
the free association or integration with an independent
State or the emergence into any other political status freely
determined by a people constitute modes of implementing
the right of self-determination by that people.

2. Capacity to act
- May not available to some by reason International Convention on Economic, Social, and Cultural Rights (ICESR)
- Adopted at the same time as the ICCPR, but embodied on a different
e. Thought, conscience, religion, expression and political freedoms document for ideological and practical reasons between the Western
- To protect public safety, order, health, morals or the fundamental rights countries, and social socialist and Third World countries.
of others - The rights specific to this are social welfare rights
- Freedom of expression a. Right to work (Art. 6);
- Rights of assembly and petition b. Right to favorable conditions of work (Art. 7);
- Prohibits propaganda for war c. Right to form free trade unions (Art. 8);
d. Right to social security and insurance (Art. 9);
f. Associations and unions e. Right to special assistance for families (Art. 10);
- Right to form associations and union f. Right to adequate standard of living (Art. 11);
- Silent about the right of government employees to form unions; the PH g. Right to the highest standard of physical and mental health (Art.
constitution is explicit in the assertion of the right. 12);
h. Right to education including compulsory primary education (Arts.
g. Minorities 13 and 14); and
- Guarantees ethnic, religious or linguistic minorities i. Right to the enjoyment of cultural and scientific benefits and
- Right to enjoy their own culture international contracts (Art. 15).
- Profess and practice their own religion - The rights protected by the IECSR are subject to limitations as determined
- Use their own language by law and only insofar as this may be compatible with the nature of these
rights and solely for the purpose of promoting the general welfare in a
h. Self-determination of peoples democratic society. (Art. 4, IECSR)
1. Right to freely determine their political status and freely pursue their
economic, social and cultural development.
The Duty to Implement
- The Philippines is not only a party to the UNC and the UHDR but also to the
ICCPR and the ICESCR as well to the Optional Protocol to the ICCPR.
- The nation is bound “to bring its laws and practices into accord with the
accepted international obligations and not to introduce new laws or practices
which would be variance with such obligations.”
- Treaty commitments become part of domestic law thus, the self-executing
provisions of the Covenants must be implemented in domestic law.
- The non-self-executing provisions must be attended by “necessary steps, in
accordance with its constitutional processes and with the provisions of the
present Covenant” either by legislative or executive measures.
Principle of Progressive Realization
- Recognizes that the full realization of some rights under the Covenant may
be difficult to achieve in a short period of time.
- “A state is obligated to undertake a program of activities...and to realize
those rights which are recognized by the Economic Covenant.”
Other Conventions on Human Rights
a. Genocide Convention
- The 1984 Genocide Convention protects national. Ethnic, racial, and
religious groups. R.A. 9851 (The Philippines Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against
Humanity) has added “social or any other similar stable and permanent
group.”
- Genocide, whether committed in time of peace and in time of war, is a
crime under International Law. (Genocide Convention, Art. 1)
b. Convention on the Elimination of All Forms of Racial Discrimination
- The State Parties condemn racial discrimination, racial segregation and
apartheid and undertake to pursue by all appropriate means and without
delay a policy of eliminating racial discrimination in all forms and
undertake to prevent, prohibit, eradicate racial segregation and
apartheid. (Arts. 2 and 3)
- The Convention does not apply to distinctions, exclusions, restrictions,
or preferences made by a State Party to the Convention between
citizens and non-citizens. (Art. 1[2])
c. Convention on the Elimination of All Forms of Discrimination Against Women
- States should condemn violence against women and should not invoke
any custom, tradition, or religious consideration to avoid their
obligations with respect to its elimination. States should pursue by all
appropriate means and without delay a policy of eliminating violence
against women. (Art. 4)
d. Convention Against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
- No exceptional circumstances whatsoever, whether a state of war or a
threat of war internal policy instability or any other public emergency,
may be invoked as a justification of torture. (Art. 2[2])
- The prohibition on torture has evolved into a preemptory norm or jus
cogens.
e. Convention on the Rights of the Child
- Rights of the Child
1. Right to be registered after birth (Art. 7);
2. Right to acquire nationality (Art. 7);
3. Right to know and be cared for by his parents (Art. 7);
4. Right not to be separated from his parents against his will (Art. 9);
5. Freedom of expression (Art. 13);
6. Freedom of thought, conscience, and religion (Art. 14);
7. Freedom of association (Art. 15);
8. Freedom of peaceful assembly (Art. 15);
9. Protection from all forms of physical or mental violence, injury,
abuse, neglect, negligent treatment, maltreatment, or exploitation,
sexual abuse (Art. 19);
10. Enjoyment of the highest attainable standard of health (Art. 24);
11. Right to benefit from social security (Art. 26);
12. Right to a standard of living adequate for the child’s physical,
mental, spiritual, moral, and social development (Art. 27)t;
13. Right to education (Art. 28);
14. Not to be denied the right to enjoy his own culture, to profess and
practice own religion, or to use his own language (Art. 30);
15. Right to reset and leisure (Art. 31;
16. Protection from economic exploitation (Art. 32); and
17. Protection from all forms of sexual exploitation and sexual abuse.
(Art. 34)
f. Convention on Migrant Workers
- Rights of all Migrant Workers and their Family Members
1. Freedom to leave any State including their State of origin and the
right at any time to enter and remain in their State of origin (Art. 8);
2. Not to be subjected to torture, or to cruel, inhuman, or degrading
treatment or punishment (Art. 10);
3. Not to be held in slavery or forced or compulsory labor (Art. 11);
4. Right to freedom of thought, conscience, and religion (Art. 12);
5. Right to hold opinions without interference and to freedom of
expression (Art. 13);
 6. Not to be subjected to arbitrary or unlawful interference (Art. 14);
7. Right against arbitrary deprivation of property (Art. 15);
8. Right to liberty and security of person (Art. 16);
9. Right to equality with nationals before the court (Art. 18); and
10. Right to life. (Art. 9)
Customary human rights law
- It can also be said that some human rights principles have become
customary law in the light of state practice. This would include the
prohibition of torture, genocide, slavery and the prohibition of discrimination.
(BERNAS, p. 263)
International Implementation of Human Rights Law
a. Municipal Courts
b. Regional Courts
c. Human Rights Commission of the United Nations Economic and Social
Council (ECOSOC) -
Two Procedures:
1. ECOSOC Resolution 1503
- Authorizes the Sub-Commission on the Prevention of
Discrimination and Protection of Minorities to appoint a
group consisting of not more than five members to meet
once a year in private meetings to onsider all
communications, including replies of the governments
concerned, with a view to bringing to attention of the Sub-
Commission those communications which appear to
reveal a pattern of gross and reliably attested vioaltions of
human rights. (BERNAS, p. 264)
2. ECOSOC Resolution 1235
- Authorized the Commission and its Subsidiary
Commission on Prevention of Discrimination and
Protection of MInorities to examine reports relevant to
gross violations of human rights and to examine whether
the violations revealed a consistent pettern and thereafter
make recommendations to ECOSOC. (BERNAS, p. 264)
The International Criminal Court (Rome Statute)
a. Establishment
- The International Criminal Court (ICC) was established by the Rome
Statute on July 17, 1988. It is a permanent institution having jurisdiction
over most serious crimes of international concern and shall be
complementary to national criminal jurisdictions. It shall be
complementary to national criminal jurisdictions. (Rome Statute, Art. 1)
- The seat of the ICC is in the Netherlands at Hague. (id, Art. 3)
- The ICC shall have international legal personality and have such legal
capacity as much as necessary for the exercise of its functions and the
fulfillment of its purposes. (id, Art. 4)
b. Jurisdiction
- The jurisdiction of the ICC is limited to the following crimes:
1. Genocide
2. Crimes against humanity
3. War crimes
4. Crime of aggression (id, Art. 5)
- Jurisdictional rules applicable to the ICC:
1. Jurisdiction ratione materiae (subject matter)
2. Jurisdiction ratione loci (place of the commission)
3. Jurisdiction ratione personae (over the person of the accused)
4. Jurisdiction ratione temporis (time of commission of crime)
(id, Art. 11)
c. General Principles of Criminal Law
1. Nullum crimen sine lege
- A person shall not be criminally responsible under this Statute
unless the conduct in question constitutes, at the time it takes
place, a crime within the jurisdiction of the Court. (id, Art. 22)
2. Nulla peona sine lege
- A person convicted by the Court may be punished only in
accordance with this Statute. (id, Art. 23)
3. Non-retroactivity ratione personae
- No person shall be criminally responsible under this Statute for
conduct prior to the entry into force of the Statute.
- In the event of a change in the law applicable to a given case
prior to a final judgement, the law more favourable to the
person being investigated, prosecuted or convicted shall apply.
(id, Art. 24)
4. Individual Criminal Responsibility
- The Court shall have jurisdiction over natural persons pursuant
to this Statute. A person who commits a crime within the
jurisdiction of the Court shall be individually responsible and
liable for punishment in accordance with this Statute. (id, Art.
25)
5. Exclusion of jurisdiction over persons under eighteen (id, Art. 26)

6. Irrelevance of official capacity (id, Art. 27)
7. Non-applicability of statute of limitations
- The crimes within the jurisdiction of the Court shall not be
subject to any statute of limitations. (id, Art. 29)
8. Mental Element
- Unless otherwise provided, a person shall be criminally
responsible and liable for punishment for a crime within the
jurisdiction of the Court only if the material elements are
committed with intent and knowledge.
- A person has intent where: (a) in relation to conduct, that
person means to engage in the conduct and (b) In relation to
a consequence, that person means to cause that consequence
or is aware that it will occur in the ordinary course of events.
- For the purposes of this article, "knowledge" means awareness
that a circumstance exists or a consequence will occur in the
ordinary course of events. "Know" and "knowingly" shall be
construed accordingly. (id, Art. 30)
9. Grounds for excluding criminal responsibility
- In addition to other grounds for excluding criminal
responsibility provided for in this Statute, a person shall not be
criminally responsible if, at the time of that person's conduct:
a) The person suffers from a mental disease or defect that
destroys that person's capacity to appreciate the
unlawfulness or nature of his or her conduct, or capacity
to control his or her conduct to conform to the
requirements of law.
b) The person is in a state of intoxication that destroys that
person's capacity to appreciate the unlawfulness or nature
of his or her conduct, or capacity to control his or her
conduct to conform to the requirements of law, unless the
person has become voluntarily intoxicated under such
circumstances that the person knew, or disregarded the
risk, that, as a result of the intoxication, he or she was
likely to engage in conduct constituting a crime within the
jurisdiction of the Court.
c) The person acts reasonably to defend himself or herself or
another person or, in the case of war crimes, property
which is essential for the survival of the person or another
person or property which is essential for accomplishing a
military mission, against an imminent and unlawful use of
force in a manner proportionate to the degree of danger to
the person or the other person or property protected. The
fact that the person was involved in a defensive operation
conducted by forces shall not in itself constitute a ground
for excluding criminal responsibility under this
subparagraph.
d) The conduct which is alleged to constitute a crime within
the jurisdiction of the Court has been caused by duress
resulting from a threat of imminent death or of continuing
or imminent serious bodily harm against that person or
another person, and the person acts necessarily and
reasonably to avoid this threat, provided that the person
does not intend to cause a greater harm than the one
sought to be avoided. Such a threat may either be: (i)
Made by other persons or (ii) Constituted by other
circumstances beyond that person's control. (id, Art. 31)
10. Mistake of fact or mistake of law
- A mistake of fact shall be a ground for excluding criminal responsibility only
if it negates the mental element required by the crime.
- A mistake of law as to whether a particular type of conduct is a crime within
the jurisdiction of the Court shall not be a ground for excluding criminal
responsibility. A mistake of law may, however, be a ground for excluding
criminal responsibility if it negates the mental element required by such a
crime, or as provided for in article 33. (id, Art. 32)
11. Superior orders and prescription of law
- The fact that a crime within the jurisdiction of the Court has been committed
by a person pursuant to an order of a Government or of a superior, whether
military or civilian, shall not relieve that person of criminal responsibility
unless: (a) The person was under a legal obligation to obey orders of the
Government or the superior in question; (b) The person did not know that
the order was unlawful; and (c) The order was not manifestly unlawful.
- For the purposes of this article, orders to commit genocide or crimes
against humanity are manifestly unlawful. (id, Art. 33)
PEACEFUL SETTLEMENT OF INTERNATION LAW
International Dispute
- A disagreement on a point of law or fact, a conflict of legal views or interests
between two persons.
- A disagreement does not amount to a dispute if its resolution would have no
practical effect on the relationship between the parties.
Examples of disputes: disagreements over the interpretation of a treaty or about
state boundaries or about state responsibility
Article 2, par. 3 of the UN Charter: “All members shall settle their international
disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered.”
There is no general obligation to settle disputes, except perhaps those which
according to Article 33, might endanger peace security:
“The parties to any dispute, the continuance of which is likely to endanger
the maintenance of international peace and security, shall, first of all, seek a
solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements, or other peaceful
means of their own choice.”
Peaceful methods of settling disputes (3)
Key provisions in the UN Charter:
▪ Article 33.
1. The parties to any dispute, the continuance of which is likely to
endanger the maintenance of international peace and security, shall first
seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the
parties to settle their dispute by such means.
▪ Article 36.
1. The Security Council may, at any stage of a dispute of the nature
referred to in Article 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment.
2. The Security Council should take into consideration any procedures for
the settlement of the dispute which have already been adopted by the
parties.
3. In making recommendations under this Article the Security Council
should also take into consideration that legal disputes should as a
general rule be referred by the parties to the International Court of
Justice in accordance with the provisions of the Statute of the Court.
▪ Article 37.
1. Should the parties to a dispute of the nature referred to in Article 33 fail
to settle it by the means indicated in that Article, they shall refer it to the
Security Council.
2. If the Security Council deems that the continuance of the dispute is in fact
likely to endanger the maintenance of international peace and security, it
shall decide whether to take action under Article 36 or to recommend such
terms of settlement as it may consider appropriate.
▪ Article 38.
Without prejudice to the provisions of Articles 33 to 37, the Security Council
may, if all the parties to any dispute so request, make recommendations to
the parties with a view to a pacific settlement of the dispute.
1. Non-judicial or diplomatic methods
Negotiation
- Negotiation is a preferred vehicle since states are generally
hesitant to submit their disputes to an adjudicatory body.
- A give-and-take process of looking for a win-win situation
- No set rules.
- The parties must agree to the negotiated settlement for it to be
binding.
- May be formalized in: (a) treaty, (b) simple exchange of notes
- May be carried out by: (a) diplomatic correspondence, (b) face-
to-face dialogue between permanent envoys or by designated
negotiators
Mediation
- Mediation involves assistance by third parties who either act as
bridge between parties.The mediator must be approved by the
disputants.
Inquiry
- Inquiry is a fact-finding done by a designated group of individuals
or an institution.
Conciliation
 - Conciliation is a more formal technique whereby the parties agree to refer
controversies to an individual, a group of individuals or an institution to
make findings of fact and recommendations
- As a rule, parties do not agree to be bound by recommendations.
2. Quasi-judicial method
Arbitration
- Arbitration is the binding settlement of a dispute on the basis of
law by a non-permanent body designated by the parties.
- “compromis d’arbitrage”: where the parties agree upon the
composition, the jurisdiction and the rules of procedure to be
applied.
- States cannot be required to submit to arbitration unless there is
a previous agreement making arbitration compulsory.
- Types:
First, an arbitration clause that is arbitrated as part of a
treaty -- commonly found in commercial treaties
Second, treaties whose sole function is to establish
methods for the arbitration od disputes
-e.g. The Hague Convention for the Pacific Settlement of Disputes
Third, ad-hoc arbitral agreements
-e.g. the agreement for the settlement of claims between the US
and Iran (1981)
Arbitral decisions
- Arbitral tribunals apply international law unless the parties specify
that some other law should be applied.
- Four most commonly accepted bases by which arbitral decisions
may be challenged:
a. That the arbitral body extended its powers;
b. That there was corruption on the part of a member of
the body
c. That there was a failure to state the reasons for the
awards or a serious departure from a fundamental rule of
procedure
d. that the undertaking to arbitrate or the compromis is a
nullity
- Domestic courts may refuse to give recognition to awards given
by arbitral tribunals under the following grounds (Convention on
the Recognition and Enforcement of Foreign Arbitral Awards):
(1) A court in a state party to the Convention may deny recognition
or enforcement to a foreign arbitral award if:
(a) The agreement to arbitrate was not valid under
applicable law;
(b) The party against which the award was rendered did
not receive proper notice of the proceedings or was
otherwise not afforded an opportunity to present its
case;
(c) The award deals with matters outside the terms of
agreement to arbitrate;
(d) The constitution of the arbitral tribunal or the arbitral
procedure was contrary to the agreement of the
parties or to the law of the state where the arbitration
took place; or
(e) The awards has not yet become binding on the
parties, or has been suspended or set aside by a
competent court in the state where it was made.
(f)
(2) A court of a state party to the Convention may also deny
recognition or enforcement to a foreign arbitral award that meets
the requirements of Sec. 487 if, under the law of that state:
(a) The subject matter of the controversy is not capable
of settlement by arbitration; or
(b) Recognition or enforcement would be contrary to
public policy. (Sec. 488, Third Restatement)
3. Judicial Method: The International Court Justice (ICJ)
ICJ (1945)
- UN’s principal judicial organ
- Successor to the Permanent Court of International Justice
established by the League of Nations
- Came into being through the Statute of Court in 1945
-All members of the UN are ipso facto parties to the Statute of the
International Court of Justice
- Being a party to the Statute ≠ acceptance to the jurisdiction of the
ICJ; States may accept the jurisdiction of the court.
- Cardinal rule in international courts: “States cannot be compelled
to submit disputes to the international adjudication unless they
have consented to it either before a dispute has arisen or
thereafter. States are also free to limit their acceptance to certain
types of disputes and to attach various conditions or reservations
to their acceptance.”
Jurisdiction of the ICJ: Contentious Jurisdiction
The principal rules on contentious jurisdiction are found under Article 36 of the
Statute of International Court:
(1) The jurisdiction of the Court comprises all cases which the parties refer
to it and all matters specially provided for in the Charter of the United
Nations or in treaties and conventions in force.
(2) The states parties to the present Statute may at any time declare that
they recognize as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
(i) the interpretation of a treaty;
(ii) any question of international law;
(iii) the existence of any fact which, if established, would
constitute a breach of an international obligation;
(iv) the nature or extent of the reparation to be made for the
breach of an international obligation.
(3) The declarations referred to above may be made unconditionally or on
condition of reciprocity on the part of several or certain states, or for a
certain time.
(4) Such declarations shall be deposited with the Secretary-General of the
United Nations, who shall transmit copies thereof to the parties to the
Statute and to the Registrar of the Court.
(5) Declarations made under Article 36 of the Statute of the Permanent
Court of International Justice and which are still in force shall be
deemed, as between the parties to the present Statute, to be
acceptances of the compulsory jurisdiction of the International Court of
Justice for the period which they still have to run and in accordance
with their terms.
(6) In the event of a dispute as to whether the Court has jurisdiction, the
matter shall be settled by the decision of the Court.
***The jurisdiction of the ICJ is applicable only to disputes between states.
*** The ICJ can only exercise its contentious jurisdiction when a case is
referred to it by parties.
***The disputes before ICJ are settled by international law, not domestic
law.
Three ways on which the ICJ may accept jurisdiction:
1. Ad hoc basis – one party applies unilaterally to the Court and
such application is consented by the other state.
2. Adherence to treaty – parties adhere to a treaty which accepts
the jurisdiction of the court on matters of interpretation or
application of the treaty.
3. Unilateral declaration – unilateral declaration that recognition of
jurisdiction in relation to any other state accepting the same
jurisdiction in all legal disputes. This method creates optional
system of submitting to the jurisdiction of the Court.
Optional System
- The optional system is operative only for states that “at any time declare
that they recognize as compulsory ipso facto and without special agreement,
in relation to any other state accepting the same obligation, the jurisdiction
of the Court in all legal 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;
d. the nature or extent of the reparation to be made for the breach
of an international obligation.”
- The declaration in the optional system is deposited with the Secretary
General.
- The declaration may be unconditional or on condition of reciprocity on
the part of several or certain states, or for a certain time.
o By reason of reciprocity in the case of Declarations accepting
compulsory jurisdiction of the Court, a state party may invoke
a reservation to such acceptance, which it has not expressed
in its own Declaration but which the other party has expressed
in its Declaration.
Provisional measures
- Under Art 41 of the Statute, the ICJ shall have the power to indicate, if it
considers that circumstances so requirem any provisional measures which
ought to be taken to preserve the respective rights of either party, and that
pending the final decision, notice of the measures suggested shall forthwith
be given to the parties and to the Security Council.
Intervention
- Under Art 62 of the Statute, a state who considers itself to have an interest
of a legal nature over a decision effected by the ICJ, may submit a request
 to the Court to be permitted to intervene, and it shall be for the ICJ to decide
upon this request.
- The Court has the competence to permit an intervention even though it
be opposed by one or both of the parties to the case.
- Intervention under Art 62 is for the purpose of protecting a State’s
interest of a legal nature which may be affected by a decision in an
existing case already established between other state parties to the
case.
- However, a state which is allowed to intervene in a case does not, by
reason of being an intervener, become a party to the case. If an
intervenor will be allowed to become a party to a case by merely being
permitted to intervene, then the same will be a considerable departure
from the principle of consensual jurisdiction, wherein specific consent
of the parties is necessary to confer jurisdiction to the Court.
- An intervenor state has the right to be heard, although such state does
not become a party to the proceedings, nor does it acquire rights or
become subject to the obligations attaching to the parties to the case.
The state intervenor’s right to be heard may be through submission of
written statements of participation in hearings.
Obligation to comply with decisions
Under the Statute of International Court of Justice:
o Article 59 – binding force of ICJ’s decision and non-applicability of
the principle of stare decisis
- The decision of the Court has no binding force except between
the parties and in respect of that particular case.
o Article 60 – ICJ decisions are deemed final without appeal
- The judgment is final and without appeal. In the event of dispute
as to the meaning or scope of the judgment, the Court shall
construe it upon the request of any party.
o Article 61 – rules as to application for revision of judgement
1. An application for revision of a judgment may be made only
when it is based upon the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment was
given, unknown to the Court and also to the party claiming revision,
always provided that such ignorance was not due to negligence.
2. The proceedings for revision shall be opened by a judgment of the Court
expressly recording the existence of the new fact, recognizing that it has
such a character as to lay the case open to revision, and declaring the
application admissible on this ground.
3. The Court may require previous compliance with the terms of the judgment
before it admits proceedings in revision. The application for revision must be
made at latest within six months of the discovery of the new fact.
4. No application for revision may be made after the lapse of ten years from
the date of the judgment.
Under the UN Charter:
o Article 94 – Enforcement of judgments rendered by ICJ
1. Each Member of the United Nations undertakes to comply with
the decision of the International Court of Justice in any case to
which it is a party.
2. If any party to a case fails to perform the obligations
incumbent upon it under a judgment rendered by the Court,
the other party may have recourse to the Security Council,
which may, if it deems necessary, make recommendations or
decide upon measures to be taken to give effect to the
judgment.
Jurisdiction of the ICJ: Advisory Jurisdiction
- Advisory Jurisdiction may in accordance with the Charter of the United
Nations under Art. 65 of Statute of the International Court of Justice. The
provision of the ICJ say:
1. The Court may give an advisory opinion on any legal question at the
request of whatever body may be authorized by or in accordance with the
Charter of the United Nations to make such a request.
2. Questions upon which the advisory opinion of the Court is asked shall be
laid before the Court by means of a written request containing an exact
statement of the question upon which an opinion is required, and
accompanied by all documents likely to throw light upon the question.
- Art. 96. United Nations Charter
1. The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question.
2. Other organs of the United Nations and specialized agencies, which may
at any time be so authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope of
their activities.

*** By definition advisory opinions are non-binding. Acceptance or non-

acceptance of the advisory opinion is determined by the internal law of the
institution.
USE OF FORCE
Art. 2(4), UN Charter – All members shall refrain in their international relations from
the threat or use of force against the territorial integrity or political independence of
any state, or in any other manner inconsistent with the Purposes of the United
Nations.
*The prohibition in the charter broadly prohibits the use of force “in any
other manner inconsistent with the Purposes of the United Nations”. It goes
beyond the protection of the territorial integrity and political independence of
states.
Art. 51, UN Charter – Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a Member of
the United Nations, until the Secretary Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defense shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.
Traditionally Allowable Coercive Measures
- These measures may be employed by individual states or by collective
action under the United Nations.
1. Retorsion – any of the forms of counter-measures in response to an
unfriendly act. Forms of retorsion include shutting of ports to vessels of an
unfriendly state, revocation of tariff concessions not guaranteed by treaty, or
the display of naval forces near the waters of an unfriendly state.
2. Reprisal – denotes any kind of forcible or coercive measures whereby one
State seeks to exercise a deterrent effect or obtain redress or satisfaction,
directly or indirectly, for the consequences of the illegal act of another state
which has refused to make amends for such illegal acts. Unlike retorsion,
the acts, standing by themselves, would normally be illegal. Moreover,
reprisal must be preceded by an unsatisfied demand for reparation. Under
the Charter, however, reprisals have been narrowed down especially since
situations likely to cause disruption of peace should be brought to the
Security Council.
3. Embargo – consist of seizure of vessels even in the high seas. Embargo
might also be pacific, as when a state keeps its own vessels for fear that it
might find their way in foreign territory. There can also be collective
embargo, e.g., on import of drugs or of oil.
4. Boycott – a form of reprisal which consists of suspension of trade or
business relations with the nationals of an offending state. Some claim that
this is a form of economic aggression which should be prohibited by law.
5. Non-intercourse – consists of suspension of all commercial intercourse with
a state.
6. Pacific Blockade – a naval operation carried out in time of peace whereby a
state prevents access to or exit from particular ports or portions of the coast
of another state for the purpose of compelling the latter to yield to demands
made by the blockading state. It is essentially a warlike act and therefore
frowned upon by the UN Charter.
Self-defense
The general prohibition of the use of force does not preclude the right to self-
defense. This is evident in Article 51 of the charter.
Nicaragua v. US
The general rule prohibiting force established in customary law allows
certain exceptions. The exception of the right of individual or collective self-
defense is also, in the view of States, established in customary law, as is
apparent for example from the terms of Article 51 of the United Nations
Charter, which refers to an “inherent right”, and from the declaration in
resolution 2625. The parties, who consider the existence of this right to be
established as a matter of customary international law, agree in holding that
whether the response to an attack depends on the observance of the criteria
of the necessity and the proportionality of the measures taken in self-
defense.
Whether self-defense be individual or collective, it can only be exercised in
response to an armed attack. In the view of the court, this is to be
understood as meaning not merely an action by regular armed forces
across an international border, but also the sending by a state of armed
bands on the territory of another State, if such an operation, because of its
scale and effects, would have been classified as armed attack had it been
carried out by regular armed forces.
 The court quotes General Assembly Resolution No. 3314 which defines
aggression as “use of armed force by a State against the sovereignty,
territorial integrity or political independence of another State, or in any other
manner inconsistent with the Charter of the United Nations, as set out in
this Definition.”

The court does not believe that the concept of “armed attack” includes
assistance to rebels in the form of the provision of weapons or logistical or
other support. Furthermore, the court finds that in customary international
law, whether of a general kind or particular to the inter-American legal
system, there is no rule permitting the exercise of collective self-defense in
the absence of a request by a state which is a victim of the alleged, this
being additional to the requirement that the State in question should have
declared itself to have been attacked.

Criteria for a valid Self-Defense

Proportionality- that the force used in self-defense must be proportional to
the seriousness of the attack and danger being defended against.
INTERNATIONAL HUMANITARIAN LAW
What used to be known as the Laws of War, International Humanitarian Law provides
for instances when the use of armed force is justifiable (jus ad bellum) and regulates
the conduct of armed conflict (jus in bello).
The Hague Law
• Customary law
• Twenty-six (26) countries met at the The Hague and promulgated
Conventions and Declarations (1899 and 1907)
• The principles adopted constitute that part of the law of armed conflict
known as The Law of the Hague governing land and naval warfare while
principles governing the conduct of air warfare were to follow later.
• Prohibits the employment of “arms, projectiles or material calculated to
cause unnecessary suffering”.
The Geneva Conventions of 1949
• Customary law
• One of the most significant developments in the law of armed conflicts was
the adoption of four (4) Geneva “Red Cross” Conventions governing, to wit:
I – Wounded and Sick in the Field;
II – Wounded, Sick and Shipwrecked at Sea;
III – Prisoners of War; and
IV – Civilians including in Occupied Territory
• The essence of this convention is that persons not actively engaged in
warfare should be treated humanely and such rules apply to any
international armed conflict, whether a declared war or not.
Methods of Warfare: Jus in Bello
The purpose of the laws on armed conflict is stated in the Declaration of St.
Petersburg of 1868, which states that:
“That the progress of civilization should have the effect of alleviating as
much as possible the calamities of war; That the only legitimate object which
States should endeavour to accomplish during war is to weaken the military
forces of the enemy; That for this purpose it is sufficient to disable the
greatest possible number of men; That this object would be exceeded by the
employment of arms which uselessly aggravate the sufferings of disabled
men, or render their death inevitable; That the employment of such arms
would, therefore, be contrary to the laws of humanity…”
Armed Conflict
An armed conflict exists whenever there is a resort to armed force:
1. Between States;
2. Protracted armed violence between governmental authorities and organized
armed groups; or
3. Between organized armed groups within a state.
Categories of Armed Conflict
1. International Armed Conflicts
These are those in which at least two States are involved. It includes all
cases of declared war or of any other armed conflict which may arise
between two or more States which are parties to the Conventions, even if
the State of war is not recognized by one of them and all cases of partial or
total occupation of the territory of a State Party, even if the said occupation
meets with no armed resistance.
Common Article 2, the Geneva Conventions of 1949
“In addition to the provisions which shall be implemented in peacetime, the
present Convention shall apply to all cases of declared war or of any other
armed conflict which may arise between two or more of the High
Contracting Parties, even if the state of war is not recognized by one of
them. The Convention shall also apply to all cases of partial or total
occupation of the territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.
Although one of the Powers in conflict may not be a party to the present
Convention, the Powers who are parties thereto shall remain bound by it in
their mutual relations. They shall furthermore be bound by the Convention in
relation to the said Power, if the latter accepts and applies the provisions
thereof.”
Article 1(4), the Geneva Conventions of 1949 Additional Protocol I of 1977
“The situations referred to in the preceding paragraph include armed
conflicts in which peoples are fighting against colonial domination and alien
occupation and against racist régimes 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.”
• Created a new category of international armed conflict which includes those
people who are fighting against colonial domination and alien occupation
and against racist regimes in the exercise of their right of self-determination.
• Those engaged in such conflict receive a Combatant Status and are entitled
to combatant rights and duties.
Fundamental Rules of International Humanitarian Law applicable to Armed
Conflicts
1. Protection of persons hors de combat (out of combat/out of fight);
2. Prohibition from killing or injuring an enemy who surrenders or who is
hors de combat;
3. The wounded and sick shall be collected and cared for by the party to
the conflict which has them in its power;
4. Protection of captured combatants and civilians under the authority of
an adverse party;
5. Judicial guarantees;
6. Choice of methods and means of warfare is limited – prohibited to
cause unnecessary losses or exclusive suffering; and
7. Distinguishing between civilian population and combatants.
Hors de combat
Any person who:
1. Is in the power of an adverse party;
2. Has clearly expressed an intention to surrender;
3. Has been rendered unconscious or otherwise incapacitated by
wounds or sickness and therefore is incapable of defending
himself.
2. Internal/ Non-international
Those restricted to the territory of a single State, involving either regular or
armed forces fighting groups of armed dissidents, or armed groups fighting
each other. They are governed by the common Article 3 of the four Geneva
Conventions as well as the Additional Protocol II.
Internationalized Armed Conflict
An internal armed conflict may become an internationalized armed conflict if
another state intervenes in that conflict through its troops and some
participants of such internal armed conflict act on behalf of the other state
(Prosecutor v. Tadic, supra at par. 72).
Common Article 3, Geneva Conventions of 1949
“In the case of armed conflict not of an international character occurring in
the territory of one of the High Contracting Parties, each Party to the conflict
shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and
those placed hors de combat by sickness, wounds, detention, or
any other cause, shall in all circumstances be treated humanely,
without any adverse distinction founded on race, colour, religion or
faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at
any time and in any place whatsoever with respect to the above-
mentioned persons:
a. violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;
b. taking of hostages;
c. outrages upon personal dignity, in particular humiliating and
degrading treatment;
d. the passing of sentences and the carrying out of executions
without previous judgment pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as
indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International
Committee of the Red Cross, may offer its services to the
Parties to the conflict.
The Parties to the conflict should further endeavour to
bring into force, by means of special agreements, all or
part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect
the legal status of the Parties to the conflict.”
Common Article 3
Each of the four Geneva Conventions contains a Common Article 3 which
insures minimum humanitarian protection in internal conflict.
Article 1, Additional Protocol II of 1977
Article 1 — Material field of application
1. This Protocol, which develops and supplements Article 3 common to
the Geneva Conventions of 12 August 1949 without modifying its
existing conditions of applications, shall apply to all armed conflicts
which are not covered by Article 1 of the Protocol Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection
of victims of International Armed Conflicts (Protocol I) and which take
place in the territory of a High Contracting Party between its armed
forces and dissident armed forces or other organized armed groups
which, under responsible command, exercise such control over a part
 of its territory as to enable them to carry out sustained and concerted
military operations and to implement this Protocol.
2. This Protocol shall not apply to situations of internal disturbances and
tensions, such as riots, isolated and sporadic acts of violence and other
acts of a similar nature, as not being armed conflicts.
Material Field of Application
a. Armed dissidents must be under responsible command; and
b. They must exercise such control over a part of its territory as to enable
them to carry out sustained and concerted military operations and to
implement this Protocol.
Republic Act No. 9851 – Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes Against Humanity” (December 11,
2009)
Section 3 (c) — “Armed conflict” means any use of force or armed violence
between States or a protracted armed violence between governmental authorities
and organized armed groups or between such groups within a State : Provided,
That such force or armed violence gives rise, or may give rise, to a situation to
which the Geneva Conventions of 12 August 1949, including their common
Article 3, apply. Armed conflict may be international, that is, between two (2) or
more States, including belligerent occupation; or non-international, that is,
between governmental authorities and organized armed groups or between such
groups within a State. It does not cover internal disturbances or tensions such as
riots, isolated and sporadic acts of violence or other acts of a similar nature.
• The purpose of the passage of RA 9851 is to mandate both the State and
non-state armed groups to observe international humanitarian law standards
and gives the victims of war-crimes, genocide and crimes against humanity
legal recourse.
• The application of the provisions of this Act shall not affect the legal status
of the parties to a conflict, nor give an implied recognition of the status of
belligerency.
• Take note of Article 2, Sec 2 – “The Philippines renounces war as an
instrument…”
War Crimes
1. In case of an international armed conflict:
a. Willful killing;
b. Torture or inhuman treatment, including biological experiments;
c. Willfully causing great suffering, or serious injury to body or health;
d. Extensive destruction and appropriation of property not justified by
military necessity and carried out unlawfully and wantonly;
e. Willfully depriving a prisoner of war or other protected person of the
rights of fair and regular trial;
f. Arbitrary deportation or forcible transfer of population or unlawful
confinement;
g. Taking of hostages;
h. Compelling a prisoner of war or other protected person to serve in
the forces of a hostile power; and
i. Unjustifiable delay in the repatriation of prisoners of war or other
protected persons crimes [Sec. 4(a), RA9851].
2. In case of a non-international armed conflict, committed against 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:
a. Violence to life and person, in particular, willful killings, mutilation,
cruel treatment and torture;
b. Committing outrages upon personal dignity, in particular, humiliating
and degrading treatment;
c. Taking of hostages; and
d. The passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court,
affording all judicial guarantees which are generally recognized as
indispensable crimes [Sec. 4(b), RA9851].
Genocide
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; and
5. Forcibly transferring children of the group to another group [Sec. 5, RA 9851].
INTERNATIONAL ENVIRONMENTAL LAW
Environmental law is a collective term describing international treaties (conventions),
statutes, regulations, and common law or national legislation (where applicable) that
operates to regulate the interaction of humanity and the natural environment, toward
the purpose of reducing the impacts of human activity.
Section 16, Article II, 1987 Constitution
The State shall protect and advance the right of the people to a balanced and
healthful ecology in accord with the rhythm and harmony of nature.
Oposa vs. Factoran, Jr.
Q; What obligation does the right to a balanced and healthful ecology
carry with it?
ANS: The right to a balanced and healthful ecology carries with it the
correlative duty to refrain from impairing the environment. The said right
implies, among many other things, the judicious management and
conservation of the country’s forests. Without such forests, the ecological or
environmental balance would be irreversibly disrupted
What does the “rhythm and harmony of nature” under Section 16, Article
II, of the 1987 Constitution connotes?
ANS: Nature means the created world in its entirety. Such rhythm and
harmony indispensable include, inter alia, the judicious disposition,
utilisation, management, renewal and conservation of the country’s forest,
mineral land, waters, fisheries, wildlife, off-shore areas and other natural
resources to the end that their exploration, development and utilisation be
equitably accessible to the present as well as future generations
Can the present generation represent the generations yet unborn for the
cause of “intergenerational responsibility” and “intergenerational
justice”?
ANS: Yes, every generation has a responsibility to the next to preserve that
rhythm and harmony for the full enjoyment of a balanced and healthful
ecology.
Sustainable Development. It is a concept adopted by the World Commission on
Environment and Development in recognition of competing claims of states in the
areas of the preservation of the environment and the right to development. The
concept encourages development in a manner and according to methods which do
not compromise the ability of future generations and other states to meet their
needs.
Principle 15, Rio Declaration
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.
Precautionary Principle
Principle 15 of the Rio Declaration is also known as the Precautionary Principle. The
precautionary principle is part of a system of rules designed to guide the decision-
making of States towards the goal of an environmentally sustainable development. It
has become a guiding principle of modern international law and, increasingly, of
national instruments and jurisprudence relating to protection of the environment and
conservation of natural resources. The precautionary principle requires that, if there
is a strong suspicion that a certain activity may have environmentally harmful
consequences, it is better to control that activity now rather than to wait for
incontrovertible scientific evidence.
Mosqueda v. PBGEA
The precautionary principle shall only be relevant if there is
concurrence of three elements, namely:
(1) uncertainty;
(2) threat of environmental damage; and
(3) serious or irreversible harm.
What is a precautionary principle?
ANS: Principle 15 of the 1992 Rio Declaration on Environment and
Development (1992 Rio Agenda), embodied this principle, as follows:
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.
In this jurisdiction, the principle of precaution appearing in the Rules of
Procedure for Environmental Cases (A.M. No. 09-6-8-SC) involves matters
of evidence in cases where there is lack of full scientific certainty in
establishing a causal link between human activity and environmental effect.
In such an event, the courts may construe a set of facts as warranting either
judicial action or inaction with the goal of preserving and protecting the
environment.
 Is the precautionary principle always applicable?
ANS: No, in situations where the threat is relatively certain, or that the
causal link between an action and environmental damage can be
established, or the probability of occurrence can be calculated, only
preventive, not precautionary measures, may be taken. Neither will the
precautionary principle apply if there is no indication of a threat of
environmental harm, or if the threatened harm is trivial or easily reversible.
Is there a need for scientific study before the precautionary principle to be
applied?
ANS: Yes, although the precautionary principles allows lack of full scientific
certainty in establishing a connection between the serious or irreversible
harm and the human activity, its application is still premised on empirical
studies. Scientific analysis is still a necessary basis for effective policy
choices under the precautionary principle.
As much as possible, a complete and objective scientific evaluation of the
risk to the environment or health should be conducted and made available to
decision-makers for them to choose the most appropriate course of action.
*** Various principles of environmental protection are gradually being developed and
are coming out from various conferences. Notable is the Stockholm Declaration of
1972 formulated in a UN Conference on the Human Environment by 113 states. The
Conference calls upon Governments and peoples to exert common efforts for the
preservation and improvement of the human environment, for the benefit of all the
people and for their posterity.
Principle 21, 1972 Stockholm Declaration and Principle 2, 1992 Rio Declaration
Principle 21, 1972 Stockholm Declaration
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
This Principle is generally recognized today as the basic norm of customary
international environmental law. The Roman principle sic utere tuo ut alienum non
laedas underlies the Good Neighborliness Principle.
Principle 2, 1992 Rio Declaration
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.
The Stockholm and the Rio Declarations are just that, declarations. They do not have
the force of law. There exist, however, some conventions which are legally binding
on the parties. Some of these are:
- In Articles 192-194 of the 1982 LOS there are prohibitions on marine
pollution.
- The Vienna Convention for the Protection of the Ozone Layer of 1985
adopts various measures for the protection of the “ozone layer,” the layer of
atmospheric ozone above the planetary boundary layer.
- The United Nations Conference on Environment and Development, 1992,
seeks to achieve “stabilization of greenhouse gas concentration in the
atmosphere at a level that would prevent dangerous anthropogenic
interference with the climate system.”
- The Kyoto Protocol, already ratified by 84 States as of 1 November 1999,
also seeks to protect the atmosphere.
- There is also a Convention on International Trade in Endangered Species
of Wild Fauna and Flora, 1973, and also a Convention on Biological
Diversity, 1992.
- There are also regional conventions involving environmental matters such
as the Treaty of Rome of 1957 (European Union), a 1994 North American
Agreement on Environmental Cooperation, a 1991 Protocol on
Environmental Protection to the Antarctic Treaty of 1991, and the Amazon
Declaration of 1989.
CASE DIGESTS
TERRITORY
Western Sahara Casa
October 16, 1975
FACTS:
The Secretary-General of UN, adopting the resolution of the UN General Assembly,
sought the advisory opinion of the ICJ regarding the status of the Territory of Western
Sahara (Rio de Oro and Sakiet El Hamra) at the time it was colonized by Spain for fear
that the legal dispute between Spain and Morocco regarding said territory may
jeopardize the stability and harmony in the north-west African region. Note: There were
already efforts of decolonization and self-determination during this time. The settlement
of this issue will not affect the rights of Spain as the administering Power (colonizer),
but will assist the General Assembly in deciding on the policy to be followed in order
to accelerate the decolonization process in the territory.
ISSUE:
Whether or not Western Sahara (Rio de Oro and Sakiet El Hamra), at the time of the
colonization by Spain, a territory belonging to no one
RULING:
No, the State practice of the relevant period indicates that territories inhabited by tribes
or peoples having a social and political organization were not regarded as terra nullius..
In law, “occupation” was a means of peaceably acquiring sovereignty over territory
other than by cession or succession. It is a cardinal condition of a valid “occupation”
that the territory should be a terra nullius. In this matter, territories inhabited by tribes
or peoples having a social and political organization were not regarded as terra nullius.
The information furnished to the Court shows that at the time of colonization, Western
Sahara was inhabited by peoples who, if nomadic, were socially and politically
organized into tribes and under chiefs competent to represent them.
Island of Palmas Case
April 4, 1928
FACTS:
Palmas (or Miangas) is an island located about halfway between the islands of
Mindanao in the Philippines and Nanusa in the Netherlands Indies. It is, however, within
the boundaries of the Philippines as defined by Spain and thus ceded to US. When
American General Leonard Wood visited Palmas, he discovered that the Netherlands
also claimed sovereignty over the land. Both Netherlands and US submitted the dispute
to binding arbitration. US, as successor of Spain, based its title over Palmas on
discovery and treaty, in particular the Treaty of Munster, to which Spain and the
Netherlands are themselves are Contracting Parties. It also contend that the island
forms a geographical part of the Philippines and in virtue of the principle of contiguity
belongs to the Power having sovereignty over the Philippines
ISSUE:
Whether or not Palmas, in its entirety, forms part of territory belonging to the US or
Netherlands.
RULING:
To the Netherland. .
Continues and Peaceful Display of Sovereignty
Practice, as well as doctrine, recognizes that the continuous and peaceful display of
territorial sovereignty (peaceful in relation to other States) is as good as a title. It is a
constituent element of territorial sovereignty is based on the conditions of the
formation of independent states and their boundaries as well as on an international
jurisprudence and doctrine widely accepted. Discovery alone, without any subsequent
act, cannot at the present time suffice to prove sovereignty over the Island of Palmas.
A title that is inchoate cannot prevail over a definite title found on the continuous and
peaceful display of sovereignty. Peaceful and continuous display of territorial
sovereignty is as good as title. However, discovery alone, without a subsequent act,
cannot suffice to prove sovereignty over the island. The territorial sovereignty of the
defendant, Netherlands, was not contested by anyone from 1700 to 1906 so the title
of discovery at best an inchoate title and does not prevail over the Netherlands claims
of sovereignty.
Principle of Contiguity
No positive international law which favored the US ’approach of terra firma, where the
nearest continent or island of considerable size gives title to the land in dispute. The
arbitrator held that mere proximity was not an adequate claim to land noted that if the
international community followed the proposed United States approach, it would lead
to arbitrary results.
The title of contiguity, understood as a basis of territorial sovereignty, has no
foundation in international law. The principle of contiguity, in regard to islands, may not
be out place when it is a question of allotting them to one state rather than another,
either by agreement between the parties, or by a decision not necessarily based on
law; but as a rule establishing ipso jure the presumption of sovereignty in favor of a
particular state, this principle would be in conflict with what has been said as to
territorial sovereignty and as to the necessary relation between the right to exclude
other states from a region and the duty to display therein the activities of a state.
Magallona vs. Ermita
G.R. No. 187167, 16 July 2011
FACTS:
Petitioners assail the constitutionality of RA No. 9522 on two principal grounds, namely:
RA 9522 reduces Philippine maritime territory, and logically, the reach of the Philippine
state’s sovereign power; in violation of Article 1 of the 1987 Constitution, embodying
the terms of the Treaty of Paris and ancillary Treaties,
RA 9522 opens the country’s waters landward of the baselines to maritime passage by
all vessels and aircrafts, undermining Philippine sovereignty and national security,
contravening the country’s nuclear-free policy, and damaging marine resources, in
violation of relevant constitutional provisions.
RA 9522’s treatment of the KIG as “regime of islands” not only results in the loss of a
large maritime area but also prejudices the livelihood of subsistence fisherman. To
buttress their argument of territorial diminution, petitioners facially attack RA 9522 for
what it excluded and included - its failure to reference either the Treaty of Paris or
Sabah and its use of UNCLOS III’s framework of regime of islands to determine the
maritime zones of the KIG and the Scarborough Shoal.
In 1961, Congress passed Republic Act No. 3046 (RA 3046).
RA 3046 demarcating the maritime baselines of the Philippines as an archipelagic State.
This law followed the framing of the Convention on the Territorial Sea and the
Contiguous Zone in 1958 (UNCLOS I), codifying, among others, the sovereign right of
States parties over their “territorial sea,” the breadth of which, however, was left
undermined.
Note: Attempts to fill this void during the second round of negotiations in Geneva in
1960 (UNCLOS II) proved futile. Thus, domestically, RA 3046 remained unchanged for
nearly five decades, save for legislation passed in 1968 (RA 5446) correcting
typographical errors and reserving the drawing of baselines around Sabah in North
Borneo.
In March 2009, Congress amended RA 3046 be enacting RA 9522, the statute now
under scrutiny.
The change was prompted by the need to make 3046 compliant with the terms of the
United Nations Convention on the Law of the Seas (UNCLOS III), which the Philippine
ratified on 27 February 1984.
Among others, UNCLOS III prescribes the water-land ratio, length, and contour of
baselines of archipelagic States like the Philippines and sets deadline for the filing of
application for the extended continental shelf.
Complying with these requirements, RA 9522 shortened one baseline, optimised the
location of some basepoints around the Philippine archipelago and classified adjacent
territories, namely, the Kalayaan Island Group (KIG) and the Scarborough Shoal, as
“regimes of islands” whose islands generate their own applicable maritime zones.
1. Does the enactment of RA 9522 delineate Philippine Territory?
ANS: No, RA 9522 is a statutory tool to demarcate the country’s maritime zones
and continental shell under UNCLOS III; not to delineate Philippine territory.
2. Does UNCLOS III do with the acquisition (or loss) of territory?
ANS: No, UNCLOS III has nothing to do with the acquisition (or loss) of territory.
It is a multilateral treaty regulating, among others, sea-use rights over maritime
 zones1.
UNCLOS III was the culmination of decades-long negotiations among United
Nations members to codify norms regulating the conduct of States in the world’s
oceans and submarine areas, recognizing coastal and archipelagic States’
graduated authority over a limited span of waters and submarine lands along
their coasts.
3. Under traditional international law typology, how does State acquire or lose
territory?
ANS: Under traditional international law typology, States acquire (or conversely,
lose) territory through occupation, accretion, cession and prescription, not by
executing multilateral treaties on the regulations of sea-use rights or enacting
statutes to comply with the treaty’s term to delimit maritime zones and
continental shelves.
4. Does territorial claim to land within UNCLOS III?
ANS: No, territorial claims to land features are outside UNCLOS III, and are
instead governed by the rules on general international law.
Baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out
specific basepoints along their coasts from which baselines are drawn, either straight
or contoured, to serve as geographic starting points to measure the breadth of the
maritime zones and continental shelf.
This gives notice to the rest of the international community of the scope of the
maritime space and submarine areas within which States parties exercise treaty-based
rights.
5. Should the KIG and the Scarborough Shoal be within the configuration of the
baselines drawn as Philippine archipelago?
ANS: No, he configuration of the baselines drawn under RA 3046 and RA 9522
shows that RA 9522 merely followed the basepoints mapped by RA 3046, save
for at least nine basepoints that RA 9522 skipped to optimise the location of
basepoints and adjust the length of one baseline (and thus comply with UNCLOS
III’s limitation on the maximum length of baselines.)
Shoal as part of the Philippine archipelago, adverse legal effects would have
ensued. The Philippines would have committed a breach of two provisions2 of
1
The territorial waters [12 nautical miles from the baselines], contiguous zone [24 nautical
miles from the baselines], exclusive economic zone [200 nautical miles from the baselines]),
and continental shelves that UNCLOS III delimits.
2
1. Article 47 (3) of UNCLOS III requires that “the drawing of such baselines shall not depart to
any appreciable extent from the general configuration of the archipelago.”
UNCLOS III.
These outlying areas are located at an appreciable distance from the nearest
shoreline of the Philippine archipelago, such that any straight baseline loped
around them from the nearest basepoint will inevitably “depart to an appreciable
configuration of the archipelago.”
1. Does the Philippines lose sovereignty and jurisdiction over the KIG and the
Scarborough Shoal?
ANS: No, Section 2 of RA 9522 commits to text the Philippines’ continued claim
of sovereignty and jurisdiction over the KIG and the Scarborough Shoal:
Sec. 2. The baselines in the following areas over which the Philippines
likewise exercises sovereignty and jurisdiction shall be determined as
“Regime of Islands” under the Republic of the Philippines consistent with
Article 121 of the UNCLOS:
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal.
2. Is the statutory claim over Sabah under RA 5446 retained?
ANS: Yes, statutory claim over Sabah under RA 5446 retained.
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in
Northern Borneo, over which the Republic of the Philippines has acquired
dominion and sovereignty.
3. What rights do UNCLOS III give to a coastal-state like the Philippines?
ANS: UNCLOS III favors States with a long coastline like the Philippines.
- UNCLOS III creates a sui generis maritime space - the exclusive economic zone
- in waters previously part of the high seas.
- UNCLOS III grants new rights to coastal States to exclusively exploit the
resources found within this zone up to 200 nautical miles.
2. Article 47 (2) of UNCLOS III requires that “the length of the baselines shall not exceed 100
nautrical miles,” save for three per cent (3%) of the total number of baselines which can reach
up to 125 nautical miles.
 - UNCLOS III, however, preserves the traditional freedom of navigation of other
States that attached to this beyond the territorial sea before UNCLOS III.
—————
Whether referred to as Philippine “internal waters” under Article I of the Constitution
or as “archipelagic waters” under UNCLOS III (Article 49[1]), the Philippines
exercises sovereignty over the body of water lying landward of the baselines
including the air space over it and the submarine areas underneath. UNCLOS III
affirms this:
Article 49. Legal status of archipelagic waters, of the air space over
archipelagic waters and of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters enclosed
by the archipelagic baselines drawn in accordance with Article 47,
described as archipelagic waters, regardless of their depth or distance from
the coast.
2. This sovereignty extends to the air space over the archipelagic waters, as
well as to their bed and subsoil, and the resources contained therein.
3. The regime of archipelagic sea lanes passage established in this Part shall
not in other respect affect the status of the archipelagic waters, including
sea lanes, or the exercise by the Archipelagic State of its sovereignty over
such waters and their air space, bed and subsoil, and the resources
contained therein.
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation.
Thus, domestically, the political branches of the Philippine government, in the
competent discharge of their constitutional powers, may pass legislation
designating routes within the archipelagic waters to regulate innocent and sea
lanes passage.
The fact that for archipelagic States, their archipelagic waters are subject to both the
right of innocent passage and sea lanes passage does not place them in lesser footing
vis-a-vis continental coastal States which are subject, in their territorial sea, to the right
of innocent passage and the right of transit passage through international straits.
The imposition of these passage rights through archipelagic waters under UNCLOS III
was a concession by Archipelagic States, in exchange for their right to claim all the
waters landward of their baselines, regardless of their depth or distance from the coast,
as archipelagic waters subject to their territorial sovereignty.
Press Release: In the matter of the South China Sea Arbitration
P.C.A. Case No. 2013-19
FACTS:
The South China Sea Arbitration between the Philippines and China concerned an
application by Philippines for rulings in respect of four matters concerning the
relationship between the Philippines and China in the South China Sea.
First, the Philippines sough a ruling on the sources of the Parties’ rights and obligations
in the South China Sea and the effect of the United Nations Convention on the Law of
the Sea (“Convention”) on China’s claims to historic rights within it so-called ‘nine-dash
line’.
Second, the Philippines sought a ruling on whether certain maritime features claimed
by both China and the Philippines are properly characterized as islands, rocks, low-tide
elevations or submerged banks under the Convention. The status of these features
under the Convention determines the maritime zones they are capable of generating.
Third, the Philippines sought rulings on whether certain Chinese actions in the South
China Sea have violated the Convention, by interfering with the exercise of the
Philippines’ sovereign rights and freedoms under the Convention or through
construction and fishing activities that have harmed the marine environment.
Finally, the Philippines sought a ruling that certain actions taken by China, in particular
its large-scale land reclamation and construction of artificial islands in the Spratly
Islands since this arbitration was commenced, have unlawfully aggravated and
extended the Parties’ dispute.
China does not accept and is not participating in this arbitration but stated its position
that the Tribunal “does not have jurisdiction over this case.” In its Position Paper, China
advanced the following arguments:
The essence of the subject-matter of the arbitration is the territorial sovereignty over
several maritime features in the South China Sea, which is beyond the scope of the
Convention and does not concern the interpretation or application of the Convention
China and the Philippines have agree, through bilateral instruments and the Declaration
on the Conduct of Parties in the South China Sea, to settle their relevant disputes
through negotiations. By unilaterally initiating the present arbitration, the Philippines
has breached its obligation under international law.
Even assuming, arguendo, that the subject-matter of the arbitration were concerned
with the interpretation or application of the Convention, that subject-matter would
constitute an integral part of maritime delimitation between the two countries, thus
falling within the scope of the declaration by China in 2006 in accordance with the
Convention, which includes, inter alia, disputes concerning maritime delimitation from
compulsory arbitration and other compulsory dispute settlement procedures.
ISSUES:
5. Does China’s non-participation deprive the Tribunal of jurisdiction?
ANS: No, China’s non-participation does not the Tribunal of jurisdiction and that
the Tribunal had been properly constituted pursuant to the provisions of Annex
VII of the Convention, which include a procedure to form a tribunal even in the
absence of one party.
Two provisions of the Convention address the situation of a party that objects to
the jurisdiction on a tribunal and declines to participate in the proceedings:
(d) Article 288 of the Convention provides that:
“In the event of a dispute as to whether a court or tribunal has jurisdiction,
the matter shall be settled by decision of that court or tribunal.
(e) Article 9 of Annex VII to the Convention provides that:
“If one of the parties to the dispute does not appear before the arbitral
tribunal or fails to defend its case, the other party may request the tribunal
to continue the proceedings and to make its award. Absence of a party or
failure of a party to defend its case shall not constitute a bar to the
proceedings. Before making its award, the arbitral tribunal must satisfy itself
not only that it has jurisdiction over the dispute but also that the claim is
well founded in fact and law.
2. Does the Parties’ disputes concerned the interpretation or application of the
Convention, which is a requirement for resort to the dispute settlement
mechanisms of the Convention?
ANS: Yes, the matters submitted to arbitration by the Philippines do not concern
sovereignty. The Tribunal accepted that there is a dispute between the Parties
concerning sovereignty over islands in the South China Sea, but held that the
matters submitted to arbitration by the Philippines do not concern sovereignty.
3. Does the 2002 China-ASEAN Declaration on the Conduct of Parties in the South
China Sea prevented the Philippines from initiating arbitration?
ANS: No, the Tribunal held that the Declaration is a political agreement and not
legally binding, does not provide a mechanism for binding settlement, does not
exclude other means of dispute settlement, and therefore does not restrict the
Tribunal’s jurisdiction under Articles 281 or 282.
Note: The Tribunal further held that the Parties had exchanged views regarding the
settlement of their disputes, as required by Article 283 of the Convention, before the
Philippines initiated the arbitration. The Tribunal concluded that this requirement was
met in the record of diplomatic communications between the Philippines and China, in
which the Philippines expressed a clear preference for multilateral negotiations
involving the other States surrounding the South China Sea, while China insisted that
only bilateral talks could be considered.
4. Does Chinese historic rights and the ‘nine-dash line’ were affected by the
exception from jurisdiction for disputes concerning “historic title” in Article 298
of the Convention?
ANS: No, the Tribunal concluded that China claims historic rights to resources
within the ‘nine-dash line’, but does not claim historic title over the waters of the
South China Sea.
Note:
“Historic title”, in the law of the sea, refers to claims of historic sovereignty over bays
and other near-shore waters.
5. Does Philippine submission concern boundary delimitation?
ANS: No, the Tribunal reviewed evidence about the reefs and islands claimed by
China in the South China Sea and concluded that none is capable of generating
an entitlement to an exclusive economic zone. Because China has no possible
entitlement to an exclusive economic zone overlapping of the Philippines in the
Spratly Islands, the Tribunal held that the Philippines’ submissions were not
dependent on a prior delimitation of a boundary.
Note:
Features that are above water at high tide generate an entitlement to at least a 12
nautical mile territorial sea, where features that are submerged at high tide do not.
Under Article 121 of the Convention, islands generate an exclusive economic zone of
200 nautical miles and a continental shelf, but “rocks which cannot sustain human
habitation or economic life of their own shall have no exclusive economic zone or
continental shelf.”
6. What rights do other States have on the exclusive economic zone?
 ANS: States only have a limited right of access to fisheries in the exclusive
economic zone (in the event the coastal State cannot harvest the full allowable
cash) and no rights to petroleum or mineral resources.
Note: The Tribunal concluded that historical navigation and fishing by China in the
waters of the South China Sea represented the exercise of high sea freedoms, rather
than a historic right, and that there was no evidence that China had historically
exercised exclusive control over the waters of the South China Sea or prevented other
States from exploiting their resources.
7. What does an island as provided under Article 121 depends for one to be entitled
to such feature?
ANS: The Tribunal interpreted Article 121 and concluded that the entitlements of
a feature depend on:
a. The objective capacity of a feature,
b. In its natural condition, to sustain either
c. A stable community of people or
d. Economic activity that is neither dependent on outside resources nor
purely extractive in nature.
rights with respect to its exclusive economic zone and continental shelf.
11. Does China violated its duty to respect the traditional fishing rights of Philippine
fishermen by halting access to Scarborough Shoal?
ANS: Yes, Philippines, as well as fishermen from China and other countries, had
long fished at the Shoal and had traditional fishing rights in the area. China had
violated its duty to respect the traditional fishing rights of Philippine fishermen by
halting access to the Shoal.
Note: Because Scarborough Shoal is above water at high tide, it generates an
entitlement to a territorial sea, its surrounding waters do not form part of the exclusive
economic zone, and traditional fishing rights were not extinguished by the Convention.
—————
The Tribunal recalled that there exists a duty on parties engaged in a dispute settlement
procedure to refrain from aggravating or extending the dispute or disputes at issue
during the pendency of the settlement process.

8. Does the Spratly islands generate an exclusive economic zone or continental

shelf?
ANS: No, the current presence of official personnel on many of the features,
does not establish their capacity, in their natural condition, to sustain a stable
community of people and considered that historical evidence of habitation or
economic life was more relevant to the objective capacity of the features.
Accordingly, the Tribunal concluded that all of the high-tide features in the
Spratly Islands are legally “rocks” that do not generate an exclusive economic
zone or continental shelf.

9. Does a group of island generate maritime zones collectively as a unit?

ANS: No, the Tribunal held that the Convention does not provide for a group of
islands such as the Spratly Islands to generate maritime zones collectively as a
unit.

10. Does China violates Philippines’ sovereign rights with respect to its exclusive
economic zone and continental shelf?
ANS: Yes, having found that Mischief Reef, Second Thomas Shoal and Reed Bank
are submerged at high tide, form part of the exclusive economic zone and
continental shelf of the Philippines, and are not overlapped by any possible
entitlement of China, the Tribunal concluded that the Convention is clear in
allocating sovereign rights to the Philippines with respect to sea areas in its
exclusive economic zone. Therefore, China had violated the Philippines’ sovereign

JURISDICTION OF STATES
Trail Smelter Case (1941)
Facts: The U.S. Government complained to the Government of Canada that fumes
discharged from the smelter of the consolidated Mining and Smelting company at Trail,
British Columbia, have been causing damage in the State of Washington. They mutually
agreed to submit the dispute to a tribunal to determine whether Canada should be held
liable for said damages and that if so, up to what extent.
Issue: Whether or not Canada is liable to U.S. for the damage caused in Washington
Ruling: YES. The Tribunal held that Canada must indemnify U.S. in the amount of
$78,000 and compensation for all damage which occurred since January 1, 1932 up to
October 1, 1937. As Prof. Eagleton puts it, “A State owes at all times a duty to protect
other States against injurious acts by individuals from within its jurisdiction.” A great
number of such general pronouncements by leading authorities concerning the duty of
a State to respect other States and their territory have been presented to the Tribunal.
This principle, as such, has not been questioned by Canada. But the real difficulty often
arises rather when it comes to determine what is deemed to constitute an injurious
act.
Considering the circumstances of the case, the Tribunal holds that the Dominion of
Canada is responsible in international law for the conduct of the Trail Smelter. It is,
therefore, the duty of the government of the Dominion of Canada to see to it that this
conduct should be in conformity with the obligation of the Dominion under international
law as herein determined.
437 to 439. Blackmer v. United States (15 February 192)
Facts: Harry M. Blackmer is a United States citizen but a resident of Paris, France. The
United States government issued two subpoenas requesting Blackmer appear as a
witness on its behalf at a criminal trial. Blackmer failed to appear, and two separate
contempt actions were instituted against him in the Supreme Court of the District of
Columbia. Blackmer was found guilty of contempt on both counts. Blackmer argued
that the statute did not comply with due process requirements under the United States
Constitution.
Issue: Whether or not there must be due process for the exercise of judicial jurisdiction
in personam
Held: Yes. There must be due process for the exercise of judicial jurisdiction in
personam. The court may adjudge the witness guilty of contempt if the witness fails to
comply with the court order. the power of Congress to provide, legislatively, for the
service of subpoenas on American citizens outside the United States derived from the
fact that the United States possessed the power inherent in sovereignty to require the
return to this country of a citizen, resident elsewhere, whenever the public interest
required it, and to penalize him in case of refusal. Since Blackmer retained his U.S.
citizenship, he was still subject to U.S. authorities.
Summary: Nottebohm Case – Liechtenstein v. Guatemala (April 6,
1955)
Facts: Nottebohm was a German national by birth. He moved to Guatemala on 1905,
where he maintained a residence and a business enterprise. Sometime between 1931
and 1939, he visited a brother in Liechtenstein on several occasions, while the rest of
his relatives and friends lived in Guatemala or Germany. In 1939, he applied for
citizenship by naturalization in Liechtenstein, and it was granted. Months before
declaring war on Germany, the United States blacklisted Nottebohm and froze his US
assets. In 1943, Guatemala arrested Nottebohm as a dangerous enemy alien and
deported him to the US. He then returned to Liechtenstein after Guatemala refused his
application for readmission. Guatemala also confiscated his property on the grounds
that he was an enemy alien.
Liechtenstein’s contention: The Government of Guatemala in arresting, detaining,
expelling and refusing to readmit Mr. Nottebohm and in seizing and retaining his
property without compensation acted in breach of their obligations under international
law and consequently in a manner requiring the payment of reparation.
Guatemala’s contention: Liechtenstein’s claim is inadmissible on grounds of the
nationality of the claimant.
Issues:
1) Whether or not the Government of Guatemala acted in breach of their
obligations under international law with respect to the case of Mr. Nottebohm
2) Whether or not the nationality conferred on Nottebohm by Liechtenstein
entitles it to the exercise of protection in respect of Nottebohm as against
Guatemala
- At the time of his naturalization, does Nottebohm appear to have been
more closely attached by his tradition, his establishment, his interests,
 his activities, his family ties, and his intentions for the near future to
Liechtenstein than of any other State?
Ruling:
1) No, the Government of Guatemala did not act in breach of their obligations
under international law. This was evidenced by a letter made by Swiss consul
addressed to the Minister of External Affairs of Guatemala, with reference to
the entry on the Black Lists of “Frederick Nottebohm, a national of
Liechtenstein”. Guatemala expressly stated in its reply that it could not
recognize that Mr. Nottebohm has acquired the nationality of Liechtenstein
without changing his habitual residence. This shows an express denial by
Guatemala of Nottebohm’s Liechtenstein nationality.
2) No, Liechtenstein is not entitled to extend its protection to Nottebohm. He had
been settled in Guatemala for 34 years. His center of interests and business
activities remained there. He only went to Liechtenstein because of the refusal
of Guatemala to readmit him. Based on the facts of the case, it was shown
that Nottebohm intended to be naturalized for the purpose of obtaining a legal
recognition of his membership in the population of Liechtenstein, as it was to
enable him to substitute for his status as a national of a belligerent State that
of a national of a neutral State, with the sole aim of thus coming within the
protection of Liechtenstein but not of becoming wedded to its traditions, etc.
and exercising the rights pertaining to the status thus acquired.
Mejoff v. Director of Prisons (1951)
Facts: Russian Boris Mejoff was brought to the Philippines as a secret operative by the
Japanese forces during the latter’s regime in the country. Upon liberation of the
Philippines, he was arrested for being a Japanese spy by the U.S. Army Counter
Intelligence Corps., which handed him over to the Commonwealth Government. Later,
he was released by the court; however, after finding he had no travel documents, the
immigration authorities declared that he entered the Philippines illegally and ordered
for his deportation.
When two boats of Russian nationality arrived at the Cebu Port, its masters refused to
take Mejoff alleging lack of authority to do so. After repeated failures to ship Mejoff
abroad, it was decided that he be confined in the Bilibid Prison to keep him under
detention while arrangements for his departure are being made. Two years have
passed and he still remained in detention since the Government has not found a way
to remove him out of the country (although it was through no fault of theirs that no
ship or country would take Mejoff).
Issue: Whether Mejoff may be released from prison
Ruling: YES. Although it is true that aliens illegally staying in the Philippines have no
right of asylum therein, even if they are “stateless,” which Mejoff claims to be, it is no
less true that foreign nationals, not enemy against whom no charge has been made
other than that their permission to stay has expired, may not indefinitely be kept in
detention. The protection against deprivation of liberty without due process of law and
except for crimes committed against the laws of the land is not limited to Philippine
citizens but extends to all residents, except enemy aliens, regardless of nationality. In
this case, Mejoff’s entry into the Philippines was not unlawful; he was brought by the
armed and belligerent forces of a de facto government whose decrees were law during
the occupation.
Moreover, the Philippines "adopts the generally accepted principles of international law
as part of the law of Nation." And in the Universal Declaration of Human Rights
approved by the UN General Assembly of which the Philippines is a member, the right
to life and liberty and all other fundamental rights as applied to all human beings were
proclaimed.
United States v. Yunis (12 February 1988)
Facts: Fawaz Yunis (Defendant) with several accomplices, citizens of Lebanon, hijacked
a Jordanian airliner while it was on the ground in Beirut. The plane flew to several
locations around the Mediterranean Sea, and eventually flew back to Beirut, where the
hijackers blew up the plane and then escaped into the hills. The only connection
between the whole event and the United States was that several Americans were on
board the whole time. USA arrested Mr. Yunis when he went to USA and started a case
for that hijacking that plane. Yunis was indicted for violating the Hostage Taking Act.
He was also indicted under the Destruction of Aircraft Act. He moved to dismiss on
grounds of jurisdiction.
Issue: Whether or not the United States government may prosecute an airline hijacker
even if the hijacking’s only connection with the United States was the presence of
several Americans on board the place
Held: Yes. The U.S. government may prosecute an airline hijacker even if the
hijacking’s only connection with the United States was the presence of Americans on
board the plane. There must be jurisdiction under both international and domestic law
in order for jurisdiction to exist in the situation of this case. International law relates to
the power of Congress to have extraterritorial application of its law; domestic law
relates to its intent to do so.
International law recognizes several bases for a nation to give extraterritorial application
to its laws. One is the universal principle. Some acts are considered to be so heinous
and contrary to civilization that any court may assert jurisdiction. The acts that fall
within this category are mainly defined by international convention. The universal
principle applies because numerous conventions condemn hijacking and hostage
taking. The passive personal principle is also relevant, which applies to offenses against
a nation’s citizens abroad. The United States has been slow to recognize this principle,
but it is now generally agreed upon.
International law having been disposed of on this issue, domestic law must now be
discussed. The Hostage Taking Law, clearly includes an offender that has seized or
detained a U.S. citizen. The language could not be plainer. With regard to the
Destruction of Aircraft Act, that the law was intended to apply only when the aircraft in
question either began or ended its flight in the United States. Since the flight in question
did not do this, the Act does not apply.
The People of the Philippine Islands v. Lol-lo and Saraw
Facts: Two boats left Matuta, a Dutch possession, for Peta, also another Dutch
Possession. After days of navigation, the second boat arrived between the Islands of
Buang and Bukid in the Dutch East Indies. The boat was surrounded by six vintas
manned by 24 Moros all armed. The Moros asked for food, attacked some of the men
and brutally violated two of the women. The boat finally arrived at Maruro, a Dutch
possession. Two of the Moros were Lol-lo and Saraw. When these two later returned
to their home in South Ubian, Tawi-Tawi, Sulu, they were arrested and were charged
in the Court of First Instance of Sulu with the crime of piracy. The two defendants were
found guilty and each of them was sentenced to life imprisonment.
Issue: Whether or not the Court of First Instance of Sulu has jurisdiction over this case
of piracy
Ruling: Yes, the Court of First Instance has jurisdiction over this case. Pirates are
considered as hostes humani generis. Piracy is a crime not against any particular state
but against all mankind. It may be punished in the competent tribunal of any country
where the offender may be found or into which he may be carried. The jurisdiction of
piracy has no territorial limits, nor does it matter that the crime was committed within
the jurisdictional 3-mile limit of a foreign state, “for those limits, though neutral to war,
are not neutral to crimes.” (U.S. v. Furlong)
United States v. Alvarez-Machain (1992)
FACTS: Mexican Humberto Alvarez-Machain, a medical doctor, was forcibly kidnapped
from his office in Guadalajara, Mexico and flown by plane to El Paso Texas, where he
was arrested by U.S. Drug Enforcement Administration (DEA) officials. He was being
indicted for allegedly participating in the kidnap and murder of a DEA Agent and his
pilot, particularly by prolonging Agent Camarena-Salazar’s life so that the others could
further torture and interrogate him.
The District Court dismissed the indictment on the ground that his abduction violated
the Extradition Treaty between U.S. and Mexico, leaving the court wanting of
jurisdiction and ordered for Alvarez-Machain’s repatriation to Mexico. The Court of
Appeals affirmed the same.
ISSUE: Whether Alvarez-Machain, abducted to the U.S. from a nation with which it has
an extradition treaty, acquires a defense to the jurisdiction of the U.S. court
RULING: NO. In the absence of an extradition treaty, nations are under no obligation
to surrender those in their country to foreign authorities for prosecution. Extradition
treaties exist so as to impose mutual obligations to surrender individuals in certain
defined sets of circumstances, following established procedures.
In this case, neither the Treaty’s language nor the history of negotiations and practice
under it supports the proposition that it prohibits abductions outside of its terms. The
Treaty says nothing about either country refraining from forcibly abducting people from
the other’s territory or the consequences if an abduction occurs. In addition, although
the Government of Mexico was made aware of the Ker doctrine, that forcible abduction
is no sufficient reason as to why the party should not answer when brought within the
jurisdiction of the court which has the right to try him for such an offence, and presents
no valid objection to his trial in such court, as early as 1906, and language to curtail
Ker was drafted as early as 1935, the Treaty’s current version contains no such clause.
Moreover, to imply from the terms of the Treaty the prohibition of obtaining the
presence of an individual by means outside of the procedures the Treaty establishes
requires a much larger inferential leap, with only the most general of international law
principles to support it. To infer such would mean that it prohibits all means of gaining
presence of an individual outside of its terms goes beyond the established precedent
and practice. While respondent’s abduction was ‘shocking’ and that it may be in
violation of general international law principles, the decision of whether he should be
returned to Mexico, as a matter outside of the Treaty, is a matter for the Executive
branch. Thus, the abduction was not in violation of the Extradition Treaty between the
U.S. and Mexico. The rule of Ker is fully applicable to this case. The fact of respondent’s
forcible abduction does not therefore prohibit his trial in a court in the U.S. for violations
of the criminal laws of the U.S.
Rodriguez v. Presiding Judge RTC of Manila
Facts: The United States Government filed a petition fo extradition against petitioners
Rodriguez before the Department of Justice. After the arrest, they applied for bail which
the trial court granted. They posted cash bonds for the bail set for 1 million pesos for
each. The US Government appealed to the decision to grant bail The Supreme Court
remanded the case to the trial court with a direction to resolve the matter of bail
according to the ruling in US v. Purugganan. The court then, without prior notice and
hearing, cancelled the bail of the petitioners and issued a warrant of arrest. The
petitioners are questioning the validity of the order of arrest, contending that their right
to due process was denied because no notice was given to them when their bail was
cancelled.
Issue:
1. Whether or not there should be a notice and hearing before the cancellation
of bail
2. What constitutes a “special circumstance” to be exempt from the no-bail rule
in extradition cases?
Held:
1. Yes. The grant of the bail, presupposes that the co-petitioner (Imelda
Rodriguez, since the issue has become moot and academic insofar as
petitioner Eduardo Rodriguez is concerned because he is in the USA facing
the charges against him during this decision) has already presented evidence
to prove her right to be on bail, and that she is not a flight risk.
2. It constitutes the fact that there exist special, humanitarian, and compelling
circumstances. Under these premises, co-petitioner Imelda Rodriguez has
offered to go on voluntary extradition; that she and her husband had posted
a cash bond of P1 million each; that her husband had already gone on
voluntary extradition and is presently in the USA undergoing trial; that the
passport of co-petitioner is already in the possession of the authorities; that
she never attempted to flee; that there is an existing hold-departure order
against her; and that she is now in her 60’s, sickly and under medical
treatment, we believe that the benefits of continued temporary liberty on bail
should not be revoked and their grant of bail should not be cancelled, without
the co-petitioner being given notice and without her being heard why her
temporary liberty should not be discontinued. Absent prior notice and
hearing, the bail’s cancellation was in violation of her right to due process.
Secretary of Justice v. Hon. Ralph C. Lantion, Presiding Judge,
Regional Trial Court of Manila, Branch 25, and Mark B. Jimenez
Facts: In 1977, former President Ferdinand E. Marcos issued Presidential Decree No.
1069 “Prescribing the Procedure for the Extradition of Persons Who Have Committed
Crimes in a Foreign Country”. The Decree is founded on the doctrine of incorporation
under the Constitution.
In 1994, former Secretary of Justice Franklin M. Drilon represented the Government of
the Republic of the Philippines in signing the RP-US Extradition Treaty in Manila. The
Senate expressed its concurrence in the ratification of the treaty through Resolution
No. 11.
In 1999, the Department of Justice received from the Department of Foreign Affairs
U.S. Note Verbale No. 0522 which contains a request for the extradition of private
respondent, Mark Jimenez, to the United States, and other supporting documents such
as the Grand Jury Indictment, the warrant of arrest issued by the U.S. District Court,
Southern District of Florida. Private respondent appears to be charged in the United
States with the following violations: a) Conspiracy to commit offense or to defraud the
United States, b) Attempt to evade or defeat tax, c) Fraud by wire, radio, or television,
d) False statement or entries, and e) Election contributions in the name of another.
Private respondent filed with the RTC of the National Capital Judicial Region a petition
against the Secretary of Justice, the Secretary of Foreign Affairs, and the Director of
the NBI, for mandamus to compel petitioner to furnish private respondent the
extradition documents, to give him access thereto, and to afford him an opportunity to
comment on, or oppose, the extradition request, and thereafter to evaluate the request
impartially, fairly and objectively.
On January 18, 2000, the petition was dismissed by a vote of 9-6 and the petitioner
was ordered to furnish private respondent copies of the extradition request and its
supporting papers, and to grant him a reasonable period within which to file his
comment with supporting evidence.
In the present case, petitioner filed an Urgent Motion for Reconsideration assailing the
decision on the grounds that the deliberate omission of the notice and hearing
requirement in the Philippine Extradition Law is intended to prevent flight, and that by
instituting a “proceeding” not contemplated by PD No. 1069, the SC has encroached
upon the constitutional boundaries separating it from the other two co-equal branches
of government.
Issues:
1) Whether or not the private respondent is entitled to the due process right to
notice and hearing during the evaluation stage of the extradition process
2) Whether or not there is a threat to private respondent’s liberty
Ruling:
1) No, private respondent is not entitled to the due process right to notice and
hearing during the evaluation stage of the extradition process. There is no
provision in the RP-US Extradition Treaty and in PD No. 1069 which gives an
extradite the right to demand from the petitioner copies of the extradition
request from the U.S. government and its supporting documents and to
comment thereon while the request is still undergoing evaluation. PD No.
1069 expressly provides that after the filing of the petition for extradition in
the extradition court, a copy of the petition for extradition as well as its
supporting papers shall be furnished to the extraditee.
2) No, the threat to liberty of private respondent does not exist. According to the
RP-US Extradition Treaty and PD No. 1069, private respondent may be
provisionally arrested only pending receipt of the request for extradition. DFA
received the extradition request from the United States way back and it was
already turned over to the DOJ. The United States never requested for private
respondent’s provisional arrest. Hence, the threat to private respondent’s
liberty has passed.
Government of the United States v. Purganan (2002)
Facts: The U.S. Government requested from the Philippine Government the extradition
of Mark Jimenez, also known as Mario Crespo, who is to be charged for violations of
several U.S. Code provisions. Upon learning of the request, Jimenez sought and was
granted a Temporary Restratining Order (T.R.O.) by Regional Trial Court of Manila,
which prohibited the Department of Justice (DOJ) from filing a petition for his
extradition. The Secretary of Justice assailed the validity of the T.R.O. before the
Supreme Court, which dismissed the petition at first, but reconsidered the same and
held that Jimenez was bereft of the right to notice and hearing during the evaluation
stage of the extradition process.
Thereafter, the Philippine Department of Justice (DOJ) filed a petition for the extradition
of Jimenez, which prayed for the issuance of an order for his ‘immediate arrest’
pursuant to the Extradition Law. This prompted Jimenez to file a motion praying that
the application for the warrant of arrest be set for hearing, which the trial court granted.
After the hearing, the trial court directed the issuance of an arrest warrant and fixed
the bail at P1,000,000. After he had surrendered his passport and posted the required
cash bond, Jimenez was granted provisional liberty. Hence, this petition.
Issue: Whether Jimenez is entitled to bail or provisional liberty while the extradition
proceedings are pending
Ruling: NO. As suggested by the use of the word ‘conviction,’ the constitutional
provision on bail, as well as Sec. 4 of Rule 114 of the Rules of Court, applies only when
the person has been arrested and detained for violation of Philippine criminal laws. It
does not apply to extradition proceedings, because extradition courts do not render
judgments of conviction or acquittal.
Moreover, the constitutional right to bail "flows from the presumption of innocence in
favor of every accused who should not be subjected to the loss of freedom as
thereafter he would be entitled to acquittal, unless his guilt be proved beyond
reasonable doubt." It follows that the constitutional provision on bail will not apply to a
case like extradition, where the presumption of innocence is not at issue.
The rule is that bail is not a matter of right in extradition cases. However, an exception
thereto is that after a potential extraditee has been arrested or placed under the custody
of the law, bail may be applied for and granted as an exception, only upon a clear and
convincing showing (1) that, once granted bail, the applicant will not be a flight risk or
a danger to the community; and (2) that there exist special, humanitarian and
compelling circumstances including, as a matter of reciprocity, those cited by the
highest court in the requesting state when it grants provisional liberty in extradition
cases therein.
Government of Hongkong – SAR v. Olalia (GR 153675, April 19, 2007)
Facts: DOJ received from the HK Department of Justice a request for the provisional
arrest of private respondent Antonio Muñoz who was charged before the Hongkong
Court. The DOJ then forwarded the request to the NBI which, in turn, filed with the RTC
of Manila an application for the provisional arrest of Muñoz. Muñoz was subsequently
arrested.
Petitioner filed with the RTC of Manila a petition for the extradition of private
respondent. For his part, private respondent filed in the same case, a petition for bail
which the petitioner opposed. Judge Bernardo issued an Order denying the petition for
bail, holding that there is no Philippine law granting bail in extradition cases and that
private respondent is a high flight risk.
The case was raffled off to the branch of herein respondent judge Hon. Felixberto Olalia
Jr. when Judge Bernardo Jr inhibited himself from further hearing the case. And when
Muñoz filed a motion for reconsideration of the Order denying his application for bail,
respondent judge granted the same, setting the bail at P750,000.
Issue: Whether or not a prospective extradite can avail of himself the right to bail
Held: Yes. The Philippines, along with the other members of the family of nations,
committed t o uphold the fundamental human rights as well as value the worth and
dignity of every person. This commitment is enshrined in Section II, Article II of our
Constitution.
The Philippine authorities are therefore under obligation to make available to every
person under detention such remedies which safeguard their fundamental right to
remedy xxx [and the remedies include] the right to be admitted to bail. While the SC in
Purganan case limited the exercise of the right to bail to criminal proceedings, in the
light of various international treaties giving recognition and protection to human rights,
the SC in this case re-examined the ruling in Purganan and declared that:
1. The exercise of the State's power to deprive an individual of his liberty is
not necessarily limited to criminal proceedings. Respondents in administrative
proceedings, such as deportation and quarantine have likewise been detained.
2. To limit bail to criminal proceedings would be to close our eyes to our
jurisprudential history. In fact, bail has been allowed in this jurisdiction to
persons in detention during pendency of administrative proceedings, taking
into cognizance the obligation of the Philippines under international
conventions to uphold human rights.
Extradition has been characterized as the right of a foreign power, created by treaty, to
demand the surrender of one accused or convicted of a crime within its territorial
jurisdiction, and correlative duty of the other state to surrender him to the demanding
state. Even if the potential extraditee is a criminal, an extradition proceeding is not by
its nature criminal, for it is not punishment for a crime, even though such punishment
may follow extradition. It is sui generis, tracing its existence wholly to treaty obligations
between different nations.
An extradition proceeding, while ostensibly administrative, bears all earmarks of a
criminal process. A potential extraditee may be subjected to arrest, to a prolonged
restraint of liberty, and forced to transfer to the demanding state following the
proceedings.
While our extradition law does not provide for the grant of bail to an extraditee,
however, there is no provision prohibiting him or her from filing a motion for bail, aright
to due process under the constitution.
Government of Hong Kong Special Administrative Region,
represented by the Philippine Department of Justice v. Juan Antonio
Muñoz
August 16, 2016
Facts: Respondent was the Head of the Treasury Department of the Central Bank of
the Philippines (now the Bangko Sentral ng Pilipinas). The Governor instructed Munoz
to raise US$700M in order to fund the buyback of Philippine debts and the purchase
of zero coupon US Treasury Bonds. Respondent recommended that the amount be
obtained through gold loans or swaps. With this, seven (7) contracts of about US$100M
each were to be awarded to certain accredited parties. Two of the contracts were
granted to Mocatta, London. These in turn were rolled over as they matured, thus, they
totaled to five (5) gold loan/ swap agreements.
The CA affirmed the RTC’s conclusion that the crimes of (1) conspiracy to defraud and
(2) accepting an advantage as an agent were extraditable offenses, and that both
crimes satisfied the double criminality rule, or the principle to the effect that extradition
was available only when the act was an offense in the jurisdictions of both parties.
Munoz filed a motion for reconsideration. CA amended its decision by partly granting
Munoz’s motion. Although it affirmed its previous ruling, it concluded that the crime of
accepting an advantage as an agent should be excluded from the charges under which
Munoz would be tried due to non-compliance with the double criminality rule.
Petitioner filed a motion for reconsideration, denied. Petitioner appealed by petition for
review on certiorari. (See ruling)
November 17, 2017
For consideration and resolution is the petitioner's motion for reconsideration to seek
the review and reversal of the decision promulgated on August 16, 2016.
Based on the MR, petitioner insists that Munoz must also be extradited for the crime
of accepting an advantage as an agent. Petitioner cited the ruling in the case of B v.
The Commissioner of the Independent Commission Against Corruption saying that the
term “agent” in Section 9 (see for reference below) of the HKSAR’s Prevention of
Bribery Ordinance (POBO) also covered public servants in another jurisdiction. In
relation to this, petitioner prays that the exclusion of the crime of accepting an
advantage as an agent be reversed, and that the Court should hold Muñoz to be
extraditable also for such crime.
Issues:
1) Whether or not the other crime of accepting an advantage as an agent comply
with the double criminality rule
2) Whether or not the Court should reverse the decision promulgated on August
16, 2016
Ruling:
August 16, 2016 – (1) No, the crime of accepting an advantage as an agent did not
comply with the double criminality rule.
In its ruling, the Court denied the petition for review on certiorari. It held that
respondent Munoz could only be extradited to and tried by the HKSAR for seven counts
of conspiracy to defraud, but not for the other crime of accepting an advantage as an
agent. This was because conspiracy to defraud was a public sector offense, and
accepting an advantage as an agent dealt with private sector bribery, thus, the dual
criminality rule embodied in the treaty of extradition has not been satisfied.
For purposes of the extradition of Munoz, the HKSAR as the requesting state must
establish the following six elements, namely: (1) there must be an extradition treaty in
force between the HKSAR and the Philippines; (2) the criminal charges that are pending
in the HKSAR against the person to be extradited; (3) the crimes for which the person
to be extradited is charged are extraditable within the terms of the treaty; (4) the
individual before the court is the same person charged in the HKSAR; (5) the evidence
submitted establishes probable cause to believe that the person to be extradited
committed the offenses charged; and (6) the offenses are criminal in both the HKSAR
and the Philippines (double criminality rule).
The first five of the elements are present in this case. However, it was the sixth element
which was not established. It was concluded that the crime of accepting an advantage
as an agent did not have an equivalent in this jurisdiction considering that when the
unauthorized giving and receiving of benefits happened in the private sector, the same
was not a crime because there was no law that defined and punished such act as
criminal in this jurisdiction.
November 7, 2017 – (2) No, the Court denies petitioner’s MR for its lack of merit.
Article 2 of the RP-Hong Kong treaty provides that surrender of the extraditee by the
Requested State to the Requesting State shall only be for an offense coming within any
of the descriptions of the offenses therein listed insofar as the offenses are punishable
by imprisonment or other form of detention for more than one year, or by a more
severe penalty according to the laws of both parties. The provision expresses the dual
criminality rule.
The Court held that to grant petitioner’s prayer would be to take judicial notice of the
ruling in B v. The Commissioner of the Independent Commission Against Corruption.
The Court is not at liberty to take judicial notice of the ruling without contravening our
own rules on evidence under which foreign judgments and laws are not considered as
matters of a public or notorious nature that prove themselves. Indeed, foreign
judgment and laws have to be duly alleged and competently proved like any other
disputed fact.
In this case, the petitioner did not present an official publication of the ruling in the
case mentioned. As a result, the ruling was not also shown to be a public document
under the laws of the HKSAR.
Moreover, the courts in the Philippines lacked expertise on the laws of the HKSAR. A
hearing was conducted before the trial court for the purpose of receiving opinion
testimonies from qualified experts on the laws of HKSAR. These legal experts shared
the same opinion that the offense defined in Section 9 of the POBO was a private sector
offense. “To extradite Muñoz also for the crime for accepting an advantage as an agent
would be devoid of justification if the Philippines did not have an equivalent crime of
accepting an advantage as an agent.”
Private Sector Bribery Public Sector Bribery
Section 9. Corrupt transactions with Section 4. BRIBERY, x x x x.
agents. (2) Any public servant who, whether in
(1) Any agent who, without lawful Hong Kong or elsewhere, without lawful
authority or reasonable excuse, solicits authority or reasonable excuse, solicits
or accepts any advantage as an
inducement to or reward for or
otherwise on account of his –
(a) doing or forbearing to do or having
done or forborne to do, any act in
relation to his principal's affairs or
business; or
or accepts any advantage as an
inducement to or reward for or
otherwise on account of his – (Amended
28 of 1980 s. 3)
a. performing or abstaining from
performing, or having performed or
abstained from performing, any act in
his capacity as a public servant;
xxxx
shall be guilty of an offence.
IMMUNITY FROM JURISDICTION
ARIGO v. SWIFT
[G.R. No. 206510. September 16, 2014]
FACTS: This is a petition for the issuance of a writ of Kalikasan with prayer for the
issuance of a Temporary Environmental Protection Order under AM No 09-6-8-SC,
otherwise known as the Rules of Procedure for Environmental Cases, involving
violations of environmental laws and regulations in relation to the grounding of the US
military ship USS Guardian over the Tubbataha reefs, a UNESCO World Heritage Site.
On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067, otherwise known as
the "Tubbataha Reefs Natural Park (TRNP) Act of 2009" "to ensure the protection and
conservation of the globally significant economic, biological, sociocultural, educational
and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of
present and future generations."
In December 2012, the US Embassy in the Philippines requested diplomatic clearance
for the said vessel "to enter and exit the territorial waters of the Philippines and to
arrive at the port of Subic Bay for the purpose of routine ship replenishment,
maintenance, and crew liberty." On January 6, 2013, the ship left Sasebo, Japan for
Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.
On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in
Makassar, Indonesia. On January 17, 2013 at 2:20 a.m. while transiting the Sulu Sea,
the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs,
about 80 miles east-southeast of Palawan. No one was injured in the incident, and
there have been no reports of leaking fuel or oil.
1. Whether or not the Court has jurisdiction over the US respondents who did not
submit any pleading or manifestation in this case.
NO. The US respondents were sued in their official capacity as commanding officers
of the US Navy who had control and supervision over the USS Guardian and its crew.
The alleged act or omission resulting in the unfortunate grounding of the USS Guardian
on the TRNP was committed while they were performing official military duties.
Considering that the satisfaction of a judgment against said officials will require
remedial actions and appropriation of funds by the US government, the suit is deemed
to be one against the US itself. The principle of State immunity therefore bars the
exercise of jurisdiction by this Court over the persons of respondents Swift, Rice and
Robling.

While historically, warships enjoy sovereign immunity from suit as extensions of their
flag State, Art. 31 of the UNCLOS creates an exception to this rule in cases where they
fail to comply with the rules and regulations of the coastal State regarding passage
through the latter's internal waters and the territorial sea. But what if the offending
warship is a non-party to the UNCLOS, as in this case, the US?
Non-membership in the UNCLOS does not mean that the US will disregard the rights
of the Philippines as a Coastal State over its internal waters and territorial sea. We thus
expect the US to bear "international responsibility" under Art. 31 in connection with the
USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed, it is
difficult to imagine that our long-time ally and trading partner, which has been actively
supporting the country's efforts to preserve our vital marine resources, would shirk
from its obligation to compensate the damage caused by its warship while transiting
our internal waters. Much less can we comprehend a Government exercising
leadership in international affairs, unwilling to comply with the UNCLOS directive for all
nations to cooperate in the global task to protect and preserve the marine environment
as provided in Article 197, UNCLOS.
2. Whether or not there is a waiver of immunity from suit found in the VFA
NO. The VFA is an agreement which defines the treatment of United States troops and
personnel visiting the Philippines to promote "common security interests" between the
US and the Philippines in the region. It provides for the guidelines to govern such visits
of military personnel, and further defines the rights of the United States and the
Philippine government in the matter of criminal jurisdiction, movement of vessel and
aircraft, importation and exportation of equipment, materials and supplies. The
invocation of US federal tort laws and even common law is thus improper considering
that it is the VFA which governs disputes involving US military ships and crew
navigating Philippine waters in pursuance of the objectives of the agreement.
As it is, the waiver of State immunity under the VFA pertains only to criminal jurisdiction
and not to special civil actions such as the present petition for issuance of a writ of
Kalikasan.
In any case, it is the considered view of the Court that a ruling on the application or
non-application of criminal jurisdiction provisions of the VFA to US personnel who may
be found responsible for the grounding of the USS Guardian, would be premature and
beyond the province of a petition for a writ of Kalikasan. The Court also find it
unnecessary at this point to determine whether such waiver of State immunity is indeed
absolute. In the same vein, we cannot grant damages which have resulted from the
violation of environmental laws. The Rules allows the recovery of damages, including
the collection of administrative fines under R.A. No. 10067, in a separate civil suit or
that deemed instituted with the criminal action charging the same violation of an
environmental law.
WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is
hereby DENIED.
US vs GUINTO
[G.R. No. 76607. February 26, 1990]
FACTS: The private respondents are suing several officers of the U.S. Air Force
stationed in Clark Air Base in connection with the bidding conducted by them for
contracts for barbering services in the said base.
The Western Pacific Contracting Office, Okinawa Area Exchange, US Air Force, solicited
bids for such contracts through its contracting officer. Among those who submitted
their bids were private respondents. The bidding was won by Ramon Dizon, over the
objection of the private respondents, who claimed that he made a bid for four facilities,
including the Civil Engineering Area, which was not included in the invitation to bid. The
private respondents complained to the Philippine Area Exchange (PHAX). The latter,
through its representatives explained that the Civil Engineering concession had not
been awarded to Dizon as a result of a solicitation. Dizon was already operating this
concession, then known as the NCO club concession, and the expiration of the contract
had been extended. They further explained that the solicitation of the CE barbershop
would be available only by the end of June and the private respondents would be
notified. By the end of June, the private respondents filed a complaint in the court
below to compel PHAX and the individual petitioners to cancel the award to defendant
Dizon, to conduct a rebid-ding for the barbershop concessions and to allow the private
respondents by a writ of preliminary injunction to continue operating the concessions
pending litigation.
Upon the filing of the complaint, the respondent court issued an ex parte order
directing the individual petitioners to maintain the status quo. Thereafter, the
petitioners filed a motion to dismiss and opposition to the petition for preliminary
injunction on the ground that the action was in effect a suit against the United States
of America, which had not waived its non-suability. The individual defendants, as
officials/employees of the U.S. Air Force, were also immune from suit.
RTC: denied the application for a writ of preliminary injunction as well as denied the
petitioner’s motion to dismiss. The Court, further, is of the view that Article XVIII of the
RP-US Bases Agreement does not cover such kind of services falling under the
concessionaireship, such as a barber shop concession.
ISSUE: WON the barbershop subject of the concessions granted by the US are
commercial enterprises operated by private persons
HELD: We find that the barbershops subject of the concessions granted by the United
States government are commercial enterprises operated by private persons. They are
not agencies of the United States Armed Forces nor are their facilities demandable as
a matter of right by the American servicemen. These establishments provide for the
grooming needs of their customers and offer not only the basic haircut and shave (as
required in most military organizations) but such other amenities as shampoo,
massage, manicure and other similar indulgences. And all for a fee. Interestingly, one
of the concessionaires, private respondent Valencia, was even sent abroad to improve
his tonsorial business, presumably for the benefit of his customers. No less
significantly, if not more so, all the barbershop concessionaires are, under the terms
of their contracts, required to remit to the United States government fixed commissions
in consideration of the exclusive concessions granted to them in their respective areas.
This being the case, the petitioners cannot plead any immunity from the complaint filed
by the private respondents in the court below. The contracts in question being
decidedly commercial, the conclusion reached in the United States of America v. Ruiz
case cannot be applied here.
SANDERS v. VERIDIANO
[G.R. No. L-46930. June 10, 1988]
FACTS: Private respondents Rossi and Wyer were advised that their employment at
the U.S Naval Station has been converted from permanent-full time to permanent-part
time. They protested the conversion and the result was a recommendation from the
hearing officer for their reinstatement to permanent full time status plus back wages.
Petitioner Sanders, as the special services director, disagreed with the hearing officer’s
report. In a letter, Sanders addressed petitioner Moreau, as the commanding officer of
the Subic Naval Base, and asked for the rejection of the officer’s recommendation.
Allegedly, petitioner Moreau sent a letter to the Chief of Naval Personnel explaining the
change of the private respondent’s employment status and requesting concurrence
therewith.
On the basis of the facts, private respondents filed before the Court of First Instance
and claims that the letter contained libelous imputations. However, in a motion to
dismiss, petitioners argue that the acts complained of were performed by them in the
discharge of their official duties and that the court had no jurisdiction over them under
the doctrine of state immunity.
ISSUE: Whether or not petitioners were performing their official duties when they did
the acts for which they have been sued for?
HELD: Yes. The acts for which the petitioners are being called to account were
performed by them in the discharge of their official duties. Sanders had supervision
over its personnel, including the private respondents, and had a hand in their
employment, work assignments, discipline, dismissal and other related matters. As for
Moreau, his act of writing a letter to the Chief of Naval Personal was official in nature
as the immediate superior of Sanders and directly answerable to Naval Personnel in
matters involving the special services department is NAVSTA.
Petitioners were being sued as officers of the United States government. As they have
acted on behalf of the government, and within the scope of their authority, it is that
government, and not the petitioners personally, that is responsible for their acts.
Assuming that the trial can proceed and it is proved that the claimant have a right to
the payment of damages, such award will have to be satisfied by the United States
government. This will require that government to perform an affirmative act to satisfy
the judgment, viz, the appropriation of the necessary amount to cover the damages
awarded, thus making the action a dot against that government without its consent.
The government if the United States has not given its consent to be sued for the official
acts of the petitioners, who cannot satisfy any judgment that may be rendered against
them. As it is the American government itself that will have to perform the affirmative
act of appropriating the amount that may be adjudged dire the private respondents, the
complaint must be dismissed for lack of jurisdiction.
US v. RUIZ
[G.R. No. L-35645. May 22, 1985]
FACTS: The United States has a naval base in Subic, Zambales. It invited the
submission of bids for the repair of the fender system and the repair of the NAS Cubi
shoreline and shoreline revetment, and the repair of the Leyte Wharf. Eligio de Guzman
& Co., Inc. responded to the invitation and submitted bids. However, the company
received a letter from the Department of the Navy of the United States, which states
that the company did not qualify to receive an award for the projects because of its
previous unsatisfactory performance rating on a repair contract for the sea wall at the
boat landings of the Naval Station.
The company sued the United States of America and demanded that they be allowed
to perform the work on the projects. The defendants filed a motion to dismiss but to
no avail. Hence, this petition.
ISSUE: Whether or not the complaint against petitioners should be dismissed on the
ground that it has not given its consent to be sued?
HELD: Yes. When a sovereign state enters into commercial contracts with a private
person, the state can be sued upon the theory that it has descended to the level of an
individual from which it can be implied that it has given its consent to be sued under
the contract. In this case, the projects are an integral part of the naval base which is
devoted to the defense of both the United States and the Philippines, indisputably a
function of the government of the highest order. They are not utilized for nor dedicated
to commercial or business purposes.
PCGG vs SANDIGANBAYAN
[G.R. No. 124772. August 14, 2007]
FACTS: On 7 April 1986, in connection with criminal proceedings initiated in the
Philippines to locate, sequester and seek restitution of alleged ill-gotten wealth
amassed by the Marcoses and other accused from the Philippine Government,1 the
Office of the Solicitor General (OSG) wrote the Federal Office for Police Matters in
Berne, Switzerland, requesting assistance for the latter office to: (a) ascertain and
provide the OSG with information as to where and in which cantons the ill-gotten
fortune of the Marcoses and other accused are located, the names of the depositors
and the banks and the amounts involved; and (b) take necessary precautionary
measures, such as sequestration, to freeze the assets in order to preserve their existing
value and prevent any further transfer thereof (herein referred to as the IMAC request).
On 29 May 1986, the Office of the District Attorney in Zurich, pursuant to the OSG’s
request, issued an Order directing the Swiss Banks in Zurich to freeze the accounts of
the accused in PCGG I.S. No. 1 and in the “List of Companies and Foundations.” 3 In
compliance with said Order, Bankers Trust A.G. (BTAG) of Zurich froze the accounts of
Officeco Holdings, N.V. (Officeco). Officeco appealed the Order of the District Attorney
to the Attorney General of the Canton of Zurich. The Attorney General affirmed the
Order of the District Attorney. 5 Officeco further appealed to the Swiss Federal Court
which likewise dismissed the appeal on 31 May 1989.
Instead of complying with the PCGG requirement for it to submit countervailing
evidence, on 12 September 1994, Officeco filed the complaint 8 which was docketed
as Civil Case No. 0164 of the Sandiganbayan. The complaint prayed for the PCGG and
the OSG to officially advise the Swiss government to exclude from the freeze or
sequestration order the account of Officeco with BTAG and to unconditionally release
the said account to Officeco.
ISSUE: WON the Sandiganbayan erred in dismissing Civil Case No. 0164 on the ground
of lack of jurisdiction on account of the “acts of state doctrine”
HELD: NO. The classic American statement of the act of state doctrine, which appears
to have taken root in England as early as 1674, and began to emerge in American
jurisprudence in the late eighteenth and early nineteenth centuries, is found in Underhill
v. Hernandez, where Chief Justice Fuller said for a unanimous Court:
“Every sovereign state is bound to respect the independence of every other state, and
the courts of one country will not sit in judgment on the acts of the government of
another, done within its territory. Redress of grievances by reason of such acts must
be obtained through the means open to be availed of by sovereign powers as between
themselves.”.
The act of state doctrine is one of the methods by which States prevent their national
courts from deciding disputes which relate to the internal affairs of another State, the
other two being immunity and non-justiciability. It is an avoidance technique that is
directly related to a State’s obligation to respect the independence and equality of other
States by not requiring them to submit to adjudication in a national court or to
settlement of their disputes without their consent. It requires the forum court to
exercise restraint in the adjudication of disputes relating to legislative or other
governmental acts which a foreign State has performed within its territorial limits.
It is petitioners’ contention that the Sandiganbayan “could not grant or deny the prayers
in [Officeco’s] complaint without first examining and scrutinizing the freeze order of
the Swiss officials in the light of the evidence, which however is in the possession of
said officials” and that it would therefore “sit in judgment on the acts of the government
of another country.” We disagree.
The parameters of the use of the act of state doctrine were clarified in Banco Nacional
de Cuba v. Sabbatino. There, the U.S. Supreme Court held that international law does
not require the application of this doctrine nor does it forbid the application of the rule
even if it is claimed that the act of state in question violated international law. Moreover,
due to the doctrine’s peculiar nation-to-nation character, in practice the usual method
for an individual to seek relief is to exhaust local remedies and then repair to the
executive authorities of his own state to persuade them to champion his claim in
diplomacy or before an international tribunal.
Even assuming that international law requires the application of the act of state
doctrine, it bears stressing that the Sandiganbayan will not examine and review the
freeze orders of the concerned Swiss officials in Civil Case No. 0164. The
Sandiganbayan will not require the Swiss officials to submit to its adjudication nor will
it settle a dispute involving said officials. In fact, as prayed for in the complaint, the
Sandiganbayan will only review and examine the propriety of maintaining PCGG’s
position with respect to Officeco’s accounts with BTAG for the purpose of further
determining the propriety of issuing a writ against the PCGG and the OSG. Everything
considered, the act of state doctrine finds no application in this case and petitioners’ government, but was plainly a business strategy employed by CNMEG with a view to
resort to it is utterly mislaid. securing the commercial enterprise. Hence, it is not immune from suit.

CHINA NATIONAL MACHINERY & EQUIPMENT CORP. v. SANTAMARIA DEUTSCHE GESELLSCHAFT FÜR TECHNISCHE ZUSAMMENARBEIT
(GTZ) v. CA
[G.R. No. 185572. February 7, 2012]
[G.R. No. 152318. April 16, 2009]
FACTS: Petitioner China National Machinery & Equipment Corp. Group (CNMEG)
entered into a Memorandum of Understanding with the North Luzon Railways FACTS: In September 1971, the Governments of both Germany and Philippines ratified
Corporation (Northrail) for the conduct of a feasibility study on a possible railway line an Agreement to promote jointly Social Health Issuance-Networking and Empowerment
from Manila to San Fernando, La Union (the Northrail Project). (SHINE), which was designed to enable Philippine families to maintain their health and
secure health care of sustainable quality. Both countries named their respective
The Export Import Bank of China (EXIM Bank) and the Department of Finance of the
implementing organizations for SHINE. For the Philippines, the Department of Health
Philippines (DOF) entered into a Memorandum of Understanding, wherein China agreed
(DOH) and Philippine Health Insurance Corporation (PhilHealth) were designated. For
to extend Preferential Buyer’s Credit to the Philippine government to finance the
Germany, GTZ was charged with the implementation of its contributions.
project.
The private respondents were engaged as contract employees hired by GTZ to work
Respondents filed a complaint for annulment of contract against CNMEG, the Office of
for SHINE. In September 1991, the other petitioner in this case, Nicolay, assumed the
the Executive Secretary, the DOF, the Department off Budget and Management, the
post of SHINE Project Manager. Disagreements due to salary adjustments, a different
National Economic and Development Authority and Northrail. They allege that the
management style that has altered SHINE’s original goals, among others, ensued
Contract Agreement and the Loan Agreement were void for being contrary to the
between Nicolay and private respondents. The letter conveyances of the parties ended
constitution, Republic Act No. 9184, Presidential Decree No. 1445 and Executive Order
with Nicolay causing the pre-termination of the private respondents’ contracts of
292.
employments on the grounds of serious and gross insubordination, resulting to loss of
CNMEG filed a motion to dismiss on the ground that the trial court has no jurisdiction confidence and trust.
over its person, as it was an agent of the Chinese government, making it immune from
A case for illegal dismissal was then filed with the NLRC. GTZ filed a Motion to Dismiss
suit. However, the motion was denied. Hence, this petition.
on the ground that it was immune from suit. The Labor Arbiter dismissed said motion
ISSUE: Whether or not the petitioner CNMEG is an agent of the sovereign People’s and granted complaint for illegal dismissal. GTZ then assailed said decision through a
Republic of China? special civil action for certiorari with the Court of Appeals. CA dismissed GTZ petition;
thus, the present petition.
HELD: No. The application of the doctrine of immunity from suit has been restricted to
sovereign or governmental activities (jure imperii). The mantle of state immunity cannot ISSUE: Whether GTZ is able to enjoy Germany’s immunity from suit.
be extended to commercial, private and proprietary acts (jure gestionis). A state may
HELD: NO. The principle of state immunity from suit, whether a local or foreign state,
be said to have descended to the level of an individual and can this be deemed to have
is reflected in Sec.9, Art. XVI of the Constitution which states that a state may not be
tacitly given its consent to be sued only when it enters into business contracts. It does
sued without its consent.
not apply where the contract relates to the exercise of its sovereign functions.
GTZ is characterized as an implementing agency of Germany in the SHINE agreement
In this case, CNMEG was engaged in a proprietary activity. The desire of CNMEG to
and it does not automatically invest GTZ with the ability to invoke State immunity from
secure the Northrail Project was in the ordinary our regular course of its business as
suit. When the suit is filed against one of the entities of the government, the distinction
a global construction company. The feasibility study was conducted not because of
lies for immunity from suit lies on whether the said agency is incorporated or not. If an
any diplomatic gratuity from our exercise of sovereign functions by the Chinese
agency s incorporated, the test of its suability is found in its charter.
In the case of the PH, the DoH and PHIC are its implementing agencies. The latter was
established under RA 7875, Sec. 16(g) which grants the corporation the power to sue
and be sued in Court, thus, PHIC would not enjoy immunity from suit even in the
performance of its functions connected with SHINE, however governmental in nature
they may be.
As for the case of GTZ, its only description provides for it being an “implementing
agency”, with no mention of it being incorporated or unincorporated. However, in the
GTZ website, it is stated therein that GTZ is owned by Germany, but it is also stated
that it was organized under private law and not through a legislative charter.
GTZ has failed to establish that under German law, it has not consented to be sued,
thus, the rule follows that in the absence of evidence to the contrary, foreign laws are
presumed to be the same as those of the Philippines. In this case, GTZ is assumed to
be that of a GOCC which has consented to be sued under the Corporation Code. Had
GTZ secured from the Department of Foreign Affairs (DFA) a certification of diplomatic
status and entitlement to diplomatic privileges including immunity from suits, it would
have at least provided a factual basis for its claim of immunity, which the opposing
party is to overcome with its own factual evidence.
THE HOLY SEE v. ROSARIO
[G.R. No. 101949. December 1, 1994]
FACTS: The Holy See, which exercises sovereignty over the Vatican City is and is
represented in the Philippines by the Papal Nuncio, is the registered owner of Lot 5-A
located in Parañaque, Manila. The said lot is contiguous to Lots 5-B and 5-D which are
registered under the name of the Philippine Realty Corporation (PRC). All three lots
were sold to Licup through Msgr. Cirilos acting as an agent on behalf of sellers -
petitioner and PRC. The agreement to sell was made on the condition that earnest
money of 100,000 PHP was to be paid by Licup to the sellers, and that the latter had
to clear out the squatters occupying the lots. After having paid the earnest money,
Licup transferred his rights over the property to private respondents Starbright Sales
Enterprises Inc. (SSEI).
Upon SSEI’s demand to Msgr. Cirilos to fulfill the condition of evicting the squatters,
the latter proposed instead that either SSEI undertake the eviction or that the earnest
money be returned since the squatters refused to vacate the lots. Msgr. Cirilos returned
the earnest money and sold the said lots to Tropicana Properties and Development
Corporation. SSEI thus prayed for the annulment of the sale, reconveyance of lots,
specific performance, and damages. Petitioner moved to dismiss the complaint based
on its sovereign immunity from suit.
The Department of Foreign Affairs filed for a Motion for Intervention as it claimed its
legal interest in the outcome of the diplomatic immunity of the petitioner.
ISSUE: Whether the Holy See properly invoked its sovereign immunity from suit.
HELD: Yes. Lot 5-A was acquired by petitioner as a donation from the Archdiocese of
Manila. The said donation was not for commercial purpose, but for the use of petitioner
to construct thereon the official place of residence of the Papal Nuncio. The right of a
foreign sovereign to acquire property, real or personal, in a receiving state, necessary
for the creation and maintenance of its diplomatic mission, is recognized in the 1961
Vienna Convention on Diplomatic Relations. Art. 31(a) provides that a diplomatic envoy
is granted immunity from the civil and administrative jurisdiction of the receiving state
over any real action relating to private immovable property situated in the territory of
the receiving state which the envoy holds on behalf of the sending state for the
purposes of the mission.
The decision to transfer the property and the subsequent disposal thereof are likewise
clothed with a governmental character. Petitioner did not sell Lot 5-A for profit or gain.
It merely wanted to dispose off the same because the squatters living thereon made it
almost impossible for petitioner to use it for the purpose of the donation.
The DFA’s act of intervening in the case officially certified that the Embassy of the Holy
See is a duly accredited diplomatic mission to the Republic of the Philippines exempt
from local jurisdiction and entitled to all the rights, privileges and immunities of a
diplomatic mission or embassy in this country. Where the plea of immunity is
recognized and armed by the executive branch, it is the duty of the courts to accept
this claim so as not to embarrass the executive arm of the government in conducting
the country's foreign relations.
MINUCHER v. CA
[G.R. NO. 142396. February 11, 2003]
FACTS: Petitioner Minucher is an Iranian National staying in the Philippines. He was
charged with the violation of Sec. 4 of The Dangerous Drugs Act after Philippine
Narcotics Agents, accompanied by private respondent Scalzo conducted a buy-bust
operation in his home wherein a quantity of heroin was said to have been seized. RTC
acquitted petitioner of the said offense.
Later on, petitioner filed a civil case for damages on what he claimed to be trumped-
up charges of drug trafficking made by Scalzo. The private respondent filed a motion
to dismission the case on the ground that he was a special agent of the Drug
Enforcement Administration, DOJ of the United States, and working in the US Embassy
in the Philippines, and thus entitled to diplomatic immunity. After the SC initially
remanded the case to RTC, the lower court ruled in favor of Minucher. CA however
reversed said decision and sustained the immunity of Scalzo; hence, this petition.
Scalzo contends that the Vienna Convention on Diplomatic Relations to which the
Philippines is a signatory, grants him absolute immunity from suit. Scalzo’s functions
as an agent of the United States Drug Enforcement Agency includes conducting
surveillance operations on suspected drug dealers in the Philippines believed to be the
source of prohibited drugs being shipped in the US. After then ascertaining the target
he would inform the PH narcotic agents to make the arrest.
ISSUE: Whether or not private respondent Scalzo is entitled to diplomatic immunity.
HELD: YES. The main yardstick in ascertaining whether person is a diplomat entitled
to immunity is the determination of whether or not he performs duties of diplomatic
nature.
Scalzo asserted in the evidence he submitted that he was an Assistant Attaché of the
US diplomatic mission and was accredited a such by the PH government. Attaches
assist a chief of mission in his duties and are administratively under him, but their main
function is to observe, analyze and interpret trends and developments in their
respective fields in the host country and submit reports to their own ministries or
departments in the home government. They are not generally regarded as members of
the diplomatic mission, nor are they normally designated as having diplomatic rank.
Although there are inadequacies to support the "diplomatic status" of Scalzo, the
official exchanges of communications between the two countries and the participation
of the PH Narcotics Command in the buy-bust operation indicate that the Philippine
government has given its imprimatur, if not consent, to the activities within Philippine
territory of agent Scalzo of the United States Drug Enforcement Agency. The job
description of Scalzo has tasked him to conduct surveillance on suspected drug
suppliers and, after having ascertained the target, to inform local law enforcers who
would then be expected to make the arrest.
In conducting surveillance activities on Minucher, later acting as the poseur-buyer
during the buy-bust operation, and then becoming a principal witness in the criminal
case against Minucher, Scalzo hardly can be said to have acted beyond the scope of
his official function or duties.
THE REPUBLIC OF INDONESIA v. VINZON
[G.R. No. 154705. June 26, 2003.]
FACTS: In August 1995, petitioner Republic of Indonesia entered into a Maintenance
Agreement for its specified buildings in the embassy with respondent James Vinzon as
sole proprietor of Vinzon Trade and Services. The said Agreement was effective for
four years and will renew itself automatically unless cancelled by either party by giving
thirty days prior written notice from the date of expiry.
Before August 1999, respondent was informed that the renewal of the agreement shall
be at the discretion of the incoming Chief of Administration, petitioner Minister
Counsellor Azhari Kasim.
On August 31, 2000, the Indonesian Embassy terminated the said agreement.
Respondent claimed that the said termination was arbitrary and unlawful. Thus, he filed
a complaint against petitioners in the Regional Trial Court of Makati, Branch 145. In
response, petitioners filed a motion to dismiss by alleging that the Republic of
Indonesia has sovereign immunity from suit and that Ambassador Soeratmin and
Minister Counsellor Kasim enjoy diplomatic immunity. The trial court denied petitioners'
motion to dismiss. The Court of Appeals likewise denied petitioners' petition for
certiorari and prohibition in relation thereto. Hence, this petition for review on certiorari.
ISSUE: Whether or not petitioners have waived their immunity from suit by using as
its basis the provision in the Maintenance Agreement
HELD: No. The Court held that the immunity of the sovereign is recognized only with
regard to public acts or acts jure imperii, but not with regard to private acts or acts jure
gestionis. In this case, there is no dispute that the establishment of a diplomatic
mission is an act jure imperii. A sovereign state does not merely establish a diplomatic
mission and leave it at that; the establishment of a diplomatic mission encompasses
its maintenance and upkeep. Hence, the State may enter into contracts with private
entities to maintain the premises, furnishings and equipment of the embassy and the
living quarters of its agents and officials. It is, therefore, clear that petitioner Republic
of Indonesia was acting in pursuit of a sovereign activity when it entered into a contract
with respondent for the upkeep or maintenance of the air conditioning units, generator
sets, electrical facilities, water heaters, and water motor pumps of the Indonesian
Embassy and the official residence of the Indonesian ambassador.
Moreover, the act of petitioners Ambassador Soeratmin and Minister Counsellor Kasim
in terminating the Maintenance Agreement is not covered by the exceptions provided
in Article 31 of the Vienna Convention on Diplomatic Relations. Accordingly, the petition
was granted and the complaint against petitioners was dismissal.
LIANG v. PEOPLE
[G.R. No. 125865; March 26, 2001]
FACTS: This case has its origin in two criminal Information for grave oral defamation
filed against petitioner, a Chinese national who was employed as an Economist by the
Asian Development Bank (ADB), alleging that on separate occasions, petitioner
allegedly uttered defamatory words to Joyce V. Cabal, a member of the clerical staff of
ADB.
The Metropolitan Trial Court of Mandaluyong City, acting pursuant to an advice from
the Department of Foreign Affairs that petitioner enjoyed immunity from legal
processes, dismissed the criminal Information against him. On a petition for certiorari
and mandamus filed by the People, the Regional Trial Court of Pasig City, Branch 160,
annulled and set aside the order of the Metropolitan Trial Court dismissing the criminal
cases. Petitioner, thus, brought a petition for review with this Court.
On January 28, 2000, we rendered the assailed Decision denying the petition for
review. We ruled, in essence, that the immunity granted to officers and staff of the ADB
is not absolute; it is limited to acts performed in an official capacity. Furthermore, we
held that the immunity cannot cover the commission of a crime such as slander or oral
defamation in the name of official duty.
Thereafter, the oral arguments of the parties were heard. This Court also granted the
Motion for Intervention of the DFA. The parties were directed to submit their respective
memorandum. For the most part, petitioner’s Motion for Reconsideration deals with
the diplomatic immunity of the ADB, its officials and staff, from legal and judicial
processes in the Philippines, as well as the constitutional and political bases thereof. It
should be made clear that nowhere in the assailed Decision is diplomatic immunity
denied, even remotely.
ISSUE: WON the statements allegedly made by petitioner were uttered while in the
performance of his official functions, in order for this case to fall squarely under the
provisions of Section 45 (a) of the “Agreement Between the Asian Development Bank
and the Government of the Republic of the Philippines Regarding the Headquarters of
the Asian Development Bank”
HELD: After a careful deliberation, we find no cogent reason to disturb our 2000
Decision. As we have stated therein, the slander of a person, by any stretch, cannot be
considered as falling within the purview of the immunity granted to ADB officers and
personnel. Petitioner argues that the Decision had the effect of prejudging the criminal
case for oral defamation against him. We wish to stress that it did not. What we merely
stated therein is that slander, in general, cannot be considered as an act performed in
an official capacity. The issue of whether or not petitioner’s utterances constituted oral
defamation is still for the trial court to determine.
HELD: No, precaution is a risk management principle involved after scientific inquiry
takes place. The precautionary approach should not be applied in sustaining the ban
against aerial spraying if little or nothing is known of the exact or potential dangers that
aerial spraying may bring to the health of the residents within and near the plantations
and to the integrity and balance of the environment. It is dangerous to quickly presume
that the effects of aerial spraying would be adverse even in the absence of evidence.
Accordingly, for lack of scientific data supporting a ban on aerial spraying, the
ordinance should be struck down for being unreasonable.
PUNO, J., Concurring Opinion on the case of Liang v. People
The term “international organizations”—“is generally used to describe an organization
set up by agreement between two or more states. Under contemporary international
law, such organizations are endowed with some degree of international legal
personality such that they are capable of exercising specific rights, duties and powers.
They are organized mainly as a means for conducting general international business in
which the member states have an interest.”
International public officials have been defined as: “x x x persons who, on the basis
of an international treaty constituting a particular international community, are
appointed by this international community, or by an organ of it, and are under its control
to exercise, in a continuous way, functions in the interest of this particular international
community, and who are subject to a particular personal status.”
“Specialized agencies” are international organizations having functions in particular
fields, such as posts, telecommunications, railways, canals, rivers, sea transport, civil
aviation, meteorology, atomic energy, finance, trade, education and culture, health and
refugees.
Petitioner’s argument that a determination by the Department of Foreign Affairs that he
is entitled to diplomatic immunity is a political question binding on the courts, is
anchored on the ruling enunciated in the case of WHO, et al. vs. Aquino, et al., viz.
“It is a recognized principle of international law and under our system of
separation of powers that diplomatic immunity is essentially a political
question and courts should refuse to look beyond a determination by the
executive branch of the government, and where the plea of diplomatic
immunity is recognized and affirmed by the executive branch of the
 government as in the case at bar, it is then the duty of the courts to accept II. There are three major differences between diplomatic and international
the claim of immunity upon appropriate suggestion by the principal law officer immunities.

of the government, the Solicitor General in this case, or other officer acting
DIPLOMATIC IMMUNITIES INTERNATIONAL IMMUNITIES
under his direction. Hence, in adherence to the settled principle that courts
may not so exercise their jurisdiction by seizure and detention of property, as One of the recognized limitations of International immunities may be
to embarrass the executive arm of the government in conducting foreign diplomatic immunity is that specially important in relation to the
relations, it is accepted doctrine that in such cases the judicial department of members of the diplomatic staff of a State of which the official is a national.
mission may be appointed from
the government follows the action of the political branch and will not
among the nationals of the receiving
embarrass the latter by assuming an antagonistic jurisdiction.”
State only with the express consent
This ruling was reiterated in the subsequent cases of International Catholic Migration of that State; apart from inviolability
Commission vs. Calleja; The Holy See vs. Rosario, Jr. Lasco vs. UN and DFA vs. NLRC. and immunity from jurisdiction in
respect of official acts performed in
The case of WHO vs. Aquino involved the search and seizure of personal effects of the exercise of their functions,
petitioner, an official of the WHO. Verstuyft was certified to be entitled to diplomatic nationals enjoy only such privileges
immunity pursuant to the Host Agreement executed between the Philippines and the and immunities as may be granted
WHO. by the receiving State.

ICMC vs. Calleja concerned a petition for certification election filed against ICMC and The immunity of a diplomatic agent In the case of international immunities
IRRI. As international organizations, ICMC and IRRI were declared to possess diplomatic from the jurisdiction of the receiving there is no sending State and an
immunity. It was held that they are not subject to local jurisdictions. It was ruled that State does not exempt him from the equivalent for the jurisdiction of the
the exercise of jurisdiction by the Department of Labor over the case would defeat the jurisdiction of the sending State sending State therefore has to be
very purpose of immunity, which is to shield the affairs of international organizations found either in waiver of immunity or
from political pressure or control by the host country and to ensure the unhampered in some international disciplinary or
judicial procedure.
performance of their functions’.

In Lasco vs. United Nations, the United Nations Revolving Fund for Natural Resources
Exploration was sued before the NLRC for illegal dismissal. The Court again upheld the
doctrine of diplomatic immunity invoked by the Fund.
Finally, DFA v. NLRC involved an illegal dismissal case filed against the Asian
Development Bank. Pursuant to its Charter and the Headquarters Agreement, the
diplomatic immunity of the Asian Development Bank was recognized by the Court.
It bears to stress that all of these cases pertain to the diplomatic immunity enjoyed by
international organizations. Petitioner asserts that he is entitled to the same diplomatic
immunity and he cannot be prosecuted for acts allegedly done in the exercise of his
official functions.
I. A perusal of the immunities provisions in various international conventions and
agreements will show that the nature and degree of immunities vary depending on who
the recipient is.
the effective sanctions which secure International immunities enjoy no
respect for diplomatic immunity are similar protection.
the principle of reciprocity and the
danger of retaliation by the
aggrieved State;
III. Positive international law has devised three methods of granting privileges and
immunities to the personnel of international organizations. The first is by simple
conventional stipulation, as was the case in the Hague Conventions of 1899 and 1907.
The second is by internal legislation whereby the government of a state, upon whose
territory the international organization is to carry out its functions, recognizes the
international character of the organization and grants, by unilateral measures, certain
privileges and immunities to better assure the successful functioning of the
organization and its personnel. In this situation, treaty obligation for the state in
question to grant concessions is lacking. Such was the case with the Central
Commission of the Rhine at Strasbourg and the International Institute of Agriculture at
Rome. The third is a combination of the first two. In this third method, one finds a
conventional obligation to recognize a certain status of an international organization
and its personnel, but the status is described in broad and general terms. The specific
definition and application of those general terms are determined by an accord between
the organization itself and the state wherein it is located. This is the case with the
League of Nations, the Permanent Court of Justice, and the United Nations. The Asian
Development Bank and its Personnel fall under this third category.
There is a connection between diplomatic privileges and immunities and those
extended to international officials. The connection consists in the granting, by
contractual provisions, of the relatively well-established body of diplomatic privileges
and immunities to international functionaries. This connection is purely historical. Both
types of officials find the basis of their special status in the necessity of retaining
functional independence and freedom from interference by the state of residence.
However, the legal relationship between an ambassador and the state to which he is
accredited is entirely different from the relationship between the international official
and those states upon whose territory he might carry out his functions. The privileges
and immunities of diplomats and those of international officials rest upon different legal
foundations. Whereas those immunities awarded to diplomatic agents are a right of the
sending state based on customary international law, those granted to international
officials are based on treaty or conventional law. Customary international law places no
obligation on a state to recognize a special status of an international official or to grant
him jurisdictional immunities. Such an obligation can only result from specific treaty
provisions.
IV. Looking back over 150 years of privileges and immunities granted to the personnel
of international organizations, it is clear that they were accorded a wide scope of
protection in the exercise of their functions—The Rhine Treaty of 1804 between the
German Empire and France which provided “all the rights of neutrality” to persons
employed in regulating navigation in the international interest; The Treaty of Berlin of
1878 which granted the European Commission of the Danube “complete independence
of territorial authorities” in the exercise of its functions; The Covenant of the League
which granted “diplomatic immunities and privileges.” Today, the age of the United
Nations finds the scope of protection narrowed. The current tendency is to reduce
privileges and immunities of personnel of international organizations to a minimum.
The tendency cannot be considered as a lowering of the standard but rather as a
recognition that the problem on the privileges and immunities of international officials
is new. The solution to the problem presented by the extension of diplomatic
prerogatives to international functionaries lies in the general reduction of the special
position of both types of agents in that the special status of each agent is granted in
the interest of function. The wide grant of diplomatic prerogatives was curtailed
because of practical necessity and because the proper functioning of the organization
did not require such extensive immunity for its officials. While the current direction of
the law seems to be to narrow the prerogatives of the personnel of international
organizations, the reverse is true with respect to the prerogatives of the organizations
themselves, considered as legal entities. Historically, states have been more generous
in granting privileges and immunities to organizations than they have to the personnel
of these organizations.
On the other hand, international officials are governed by a different rule. Section 18(a)
of the General Convention on Privileges and Immunities of the United Nations states
that officials of the United Nations shall be immune from legal process in respect of
words spoken or written and all acts performed by them in their official capacity. The
Convention on Specialized Agencies carries exactly the same provision. The Charter of
the ADB provides under Article 55(i) that officers and employees of the bank shall be
immune from legal process with respect to acts performed by them in their official
capacity except when the Bank waives immunity. Section 45 (a) of the ADB
Headquarters Agreement accords the same immunity to the officers and staff of the
bank. There can be no dispute that international officials are entitled to immunity only
with respect to acts performed in their official capacity, unlike international
organizations which enjoy absolute immunity.
V. Section 18 (a) of the General Convention has been interpreted to mean that officials
of the specified categories are denied immunity from local jurisdiction for acts of their
private life and empowers local courts to assume jurisdiction in such cases without the
necessity of waiver. It has earlier been mentioned that historically, international officials
were granted diplomatic privileges and immunities and were thus considered immune
for both private and official acts. In practice, this wide grant of diplomatic prerogatives
was curtailed because of practical necessity and because the proper functioning of the
organization did not require such extensive immunity for its officials. Thus, the current
status of the law does not maintain that states grant jurisdictional immunity to
international officials for acts of their private lives. This much is explicit from the Charter
and Headquarters Agreement of the ADB which contain substantially similar provisions
to that of the General Convention.
VI. It appears that the inclination is to place the competence to determine the nature
of an act as private or official in the courts of the state concerned. That the prevalent
notion seems to be to leave to the local courts determination of whether or not a given
act is official or private does not necessarily mean that such determination is final. If
the United Nations questions the decision of the Court, it may invoke proceedings for
settlement of disputes between the organization and the member states as provided in
Section 30 of the General Convention. Thus, the decision as to whether a given act is
official or private is made by the national courts in the first instance, but it may be
subjected to review in the international level if questioned by the United Nations.
CONCLUSION
First, under the Vienna Convention on Diplomatic Relations, a diplomatic envoy is
immune from criminal jurisdiction of the receiving State for all acts, whether private or
official, and hence he cannot be arrested, prosecuted and punished for any offense he
may commit, unless his diplomatic immunity is waived. On the other hand, officials of
international organizations enjoy “functional” immunities, that is, only those necessary
for the exercise of the functions of the organization and the fulfillment of its purposes.
This is the reason why the ADB Charter and Headquarters Agreement explicitly grant
immunity from legal process to bank officers and employees only with respect to acts
performed by them in their official capacity, except when the Bank waives immunity.
In other words, officials and employees of the ADB are subject to the jurisdiction of the
local courts for their private acts, notwithstanding the absence of a waiver of immunity.
Petitioner cannot also seek relief under the mantle of “immunity from every form of
legal process” accorded to ADB as an international organization. The immunity of ADB
is absolute whereas the immunity of its officials and employees is restricted only to
official acts. This is in consonance with the current trend in international law which
seeks to narrow the scope of protection and reduce the privileges and immunities
granted to personnel of international organizations, while at the same time aims to
increase the prerogatives of international organizations.
Second, considering that bank officials and employees are covered by immunity only
for their official acts, the necessary inference is that the authority of the Department of
Affairs, or even of the ADB for that matter, to certify that they are entitled to immunity
is limited only to acts done in their official capacity. Stated otherwise, it is not within
the power of the DFA, as the agency in charge of the executive department’s foreign
relations, nor the ADB, as the international organization vested with the right to waive
immunity, to invoke immunity for private acts of bank officials and employees, since
no such prerogative exists in the first place. If the immunity does not exist, there is
nothing to certify.
Third, I choose to adopt the view that it is the local courts which have jurisdiction to
determine whether or not a given act is official or private. While there is a dearth of
cases on the matter under Philippine jurisprudence, the issue is not entirely novel.
Finally, considering that the immunity accorded to petitioner is limited only to acts
performed in his official capacity, it becomes necessary to make a factual determination
of whether or not the defamatory utterances were made pursuant and in relation to his
official functions as a senior economist.
I vote to deny the motion for reconsideration.
CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR
STAFF IN TEHRAN
Judgment of 24 May 1980
Whether the seizure, hostage taking, and detention of United States diplomatic and
consular members by Iranian militants was attributable to Iran, considering that Iran
knew about, but completely failed to act on, its obligations to prevent and intervene in
the conduct in question.
In its Judgment in the case concerning United States Diplomatic and Consular Staff in
Tehran, the Court decided:
1) that Iran has violated and is still violating obligations owed by it to the United
States;
2) that these violations engage Iran's responsibility;
3) that the Government of Iran must immediately release the United States
nationals held as hostages and place the premises of the Embassy in the
hands of the protecting power;
4) that no member of the United States diplomatic or consular staff may be kept
in Iran to be subjected to any form of judicial proceedings or to participate in
them as a witness;
5) that Iran is under an obligation to make reparation for the injury caused to the
United States; and
6) that the form and amount of such reparation failing agreement between the
parties, shall be settled by the Court.
Phase 1: The first phase of the events underlying the Applicant's claims covers the
armed attack on the United States Embassy carried out on 4 November 1979 by Muslim
Student Followers of the Imam's Policy, the overrunning of its premises, the seizure of
its inmates as hostages, the appropriation of its property and archives, and the conduct
of the Iranian authorities in the face of these occurrences.
The Court points out that the conduct of the militants on that occasion could be directly
attributed to the Iranian State only if it were established that they were in fact acting on
its behalf. The information before the Court did not suffice to establish this with due
certainty. However, the Iranian State which, as the State to which the mission was
accredited, was under obligation to take appropriate steps to protect the United States
Embassy, did nothing to prevent the attack, stop it before it reached its completion or
oblige the militants to withdraw from the premises and release the hostages. The Court
is therefore led to conclude that on 4 November 1979, the Iranian authorities were fully
aware of their obligations under the conventions in force, and also of the urgent need
for action on their part, that they had the means at their disposal to perform their
obligations, but that they completely failed to do so.
Phase 2: The second phase of the events underlying the United States' claims
comprises the whole series of facts which occurred following the occupation of the STATE RESPONSIBILITY
Embassy by the militants. Though it was the duty of the Iranian Government to take
every appropriate step to end the infringement of the inviolability of the Embassy
Summary: The Corfu Channel Case (9 April 1949)
premises and staff, and to offer reparation for the damage, it did nothing of the kind.
Instead, expressions of approval were immediately heard from numerous Iranian
DOCTRINE: States in time of peace have a right to send their warships through straits
authorities. Ayatollah Khomeini (the leader of the Iranian Revolution)himself proclaimed
used for international navigation between parts of the high seas without the previous
the Iranian State's endorsement of both the seizure of the premises and the detention
authorization of a coastal State, provided that the
of the hostages. He described the Embassy as a "centre of espionage", declared that
passage is innocent.
the hostages would (with some exceptions) remain “under arrest” until the United
States had returned the former Shah and his property to Iran, and forbade all
FACTS: On May 15, 1946, two British ships passed through Albania’s North Corfu
negotiation with the United States on the subject.
Channel where Albanian’s fired at them. This led to diplomatic discussions about the
right of British ships to pass peacefully through Albanian waters. Albanian’s contented
Once organs of the Iranian State had thus given approval to the acts complained of and
that the ships shall not pass through without providing prior notification to the Albanian
decided to perpetuate them as a means of pressure on the United States, those acts
government. However, UK argued that under international law it has a right to
were transformed into acts of the Iranian State: the militants became agents of that
innocently pass through the straits. After this incident (between 15th May, 1946 and
State, which itself became internationally responsible for their acts. During the six
22nd October, 1946), the Albanian government placed mines in the Corfu Channel.
months which ensued, the situation underwent no material change: the Court's Order
Albania was at war with Greece, and the mines were supposed to be a part of its
of 19 December 1979 was publicly rejected by Iran, while the Ayatollah declared that
defense. On the 22nd October the British again attempted to pass through the straits,
the detention of the hostages would continue until the new Iranian parliament had taken
and de-mined the channel, which led to a loss of human life. UK claimed that the ships
a decision as to their fate.
were involved in an innocent passage. Albania claimed that sending warships through
the channel was meant to be intimidating and thus not ‘innocent’.

ISSUE: The UK brought a suit in the ICJ on the ground that Albania had a duty to warn
the approaching British ships of the mines. It sought damages from Albania. Albania
argued that the British ships had violated its territorial rights on May 15, 1946, and that
it was entitled to a satisfaction.

STATUTE APPLICABLE: Articles 17-21 of the Convention - Rules of innocent passage,

Article 39 of the Convention - Rules of transit passage.

RATIO: The ICJ found that ships could use narrow channels for ‘innocent passage’,
even if that meant they had to enter the 12-mile territorial waters of a coastal country.
The ICJ found that the UK had a right to traverse the Channel. The ICJ found that since
the Channel could be used to innocent passage, Albania could not mine it without giving
prior notice.
The ICJ also said that UK couldn’t sweep the Channel for mines, since minesweeping
was outside the definition of innocent passage. The Court recognized that the Albanian
Government completely failed to carry out its duties after the explosions, and the
dilatory nature of its diplomatic notes, were extenuating circumstances for the action
of the United Kingdom Government.
This case mainly decided based on customary international law, as it occurred prior to
the Convention on the Law of the Sea [1833 U.N.T.S. 3 (1982)], which would now
apply.
DISPOSITION: To ensure respect for international law, of which it is the organ, the
Court declared that the action of the British Navy constituted a violation of Albanian
sovereignty.
Home Frontier and Foreign Missionary Society of the United States
Brethren in Christ (18 December 1920)
DOCTRINE: No government can be held responsible for the act of rebellious bodies of
men committed in violation of its authority, where it is itself guilty of no breach of good
faith, or of no negligence in suppressing insurrection.
FACTS: In 1898 the collection of a tax newly imposed on the natives of the Protectorate
and known as the "hut tax" was the signal for a serious and widespread revolt in the
Ronietta district where Home Missionary Society had several establishments. In the
course of the rebellion all these missions were attacked, and either destroyed or
damaged, and some of the missionaries were murdered.
The contention of the United States Government before this Tribunal is that the revolt
was the result of the imposition and attempted collection of the "hut tax"; that it was
within the knowledge of the British Government that this tax was the object of deep
native resentment; that in the face of the native danger the British Government wholly
failed to take proper steps for the maintenance of order and the protection of life and
property; that the loss of life and damage to property was the result of this neglect and
failure of duty, and therefore that it is liable to pay compensation”.
ISSUE: Whether the claim presented by the United States Government on behalf of the
Home Missionary Society has any any foundation in law.
RATIO: It is a well-established principle of international law that no government can be
held responsible for the act of rebellious bodies of men committed in violation of its
authority, where it is itself guilty of no breach of good faith, or of no negligence in
suppressing insurrection. The good faith of the British Government cannot be
questioned, and as to the conditions prevailing in the Protectorate there is no evidence
to support the contention that it failed in its duty to afford adequate protection for life
and property. On the contrary the evidence of eye-witnesses proves that under
peculiarly difficult and trying conditions they did their duty with loyalty and daring, and
upheld the highest traditions of the British army.
Missionary Society must have been aware of the difficulties and perils to which it
exposes itself in its task of carrying Christianity to so remote and barbarous a people.
The contempt for difficulty and peril is one of the noblest sides of their missionary zeal.
DISPOSITION: The tribunal decides that this claim must be dismissed.
122 to 126: Chorzow Factory Case (P.C.I.J. (1928))
DOCTRINE: Nature of liability of illegal acts done in contravention of an agreement
differs from the nature of liability of acts for the violation of the same.
FACTS: The Government of the German Reich submitted to the Permanent Court of
International Justice a suit concerning the reparation due by the Polish Government for
the damage suffered by the Oberschlesiche and Bayerische Stickstoffwerke in
consequence of the attitude adopted by that Government towards these companies in
taking possession of the nitrate factory situated at Chorzow, which has been previously
declared by the Court to have violated the Geneva Convention between Germany and
Poland.
ISSUE: What is the nature, amount, and method of payment of the reparation which
may be due Poland, Reparation or Restitution?
HELD: The action of Poland which the Court has judged to be contrary to the Geneva
Convention is not an expropriation (to render it lawful, only the payment of fair
compensation is wanting), it is a seizure of property, rights and interests which could
not be expropriated even against compensation. The reparation in this case, is the
consequence not of the application of Art. 6-22 of the Geneva Convention, but of acts
contrary to those articles.
The compensation due to the German Government is not necessarily limited to the
value of the undertaking at the moment of dispossession, plus interest to the day of
payment. This limitation would only be admissible if the Polish Government had had
the right to expropriate, ad if its wrongful act consisted merely in not having paid to
the two Companies the just price of what was expropriated; such a limitation might
result in placing Germany and the interests protected by the Geneva Convention in a
situation more unfavourable than that in which Germany would have been if Poland
had respected the said Convention. Such a situation would not only be unjust, but also
and above all incompatible with the articles of the Convention.
The essential principle contained in the actual notion of an illegal act is that repatriation
must, as far as possible, wipe-out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if that fact had not
been committed. Restitution in kind, or, if this is not possible, payment of a sum
corresponding to the value which restitution in kind would bear; the award, if need be,
of damages for loss sustained which would not be covered by restitution in kind or
payment in place of it. Such are the principles which should serve to determine the
amount of compensation due for an act contrary to international law.
The dispossession of an industrial undertaking, the expropriation of which is prohibited to perform their obligations, but that they completely failed to do so. Instead,
by the Geneva Convention, involves the obligation to restore the undertaking and, if expressions of approval were immediately heard from numerous Iranian authorities.
this is not possible, to pay its value at the time of the indemnification, which value is Once the organs of the Iranian State had given approval to the acts complained of and
designed to take place of restitution which has become impossible. decided to perpetuate them as a means of pressure on the U.S.A., those acts were
transformed into acts of the Iranian State: the militants became agents of that State,
which itself became internationally responsible for their acts.
Case Concerning the United States Diplomatic and Consular Staff in
Tehran
DOCTRINE: Once the organs of a State had given approval to the acts complained of
and decided to perpetuate them as a means of pressure, those acts were transformed
into acts of the such State: the perpetrators became agents of that State, which itself
became internationally responsible for their acts.

FACTS: On 4 November 1979, there was an armed attack on the U.S. Embassy in Iran
by Muslim Student Followers of the Imam’s Policy. On 29 November 1979, the U.S.A.
had instituted proceedings against Iran in the International Court of Justice for the
seizure of its Embassy and detention as hostages of its diplomatic and consular staff
in Tehran. And on December of the same year, the Court issued an Order, pending final
judgement, that the Embassy should immediately be given back and the hostages
release. On March 1980, the U.S.A. filed a Memorial requesting that the Court adjudge
and declare that the Iranian Government had violated its international legal obligations
to the U.S.A. and must; ensure the immediate release of the hostages; afford its
diplomatic and consular personnel the protection and immunities to which they were
entitled and provide them with facilities to leave Iran: submit the persons responsible
for the crimes committed to the competent Iranian Authorities for prosecution, or
extradite them to the United States; and pay them reparation. Iran took no part in the
proceedings.

ISSUE: Is the Iranian Government responsible and therefore may be held liable for the
armed attack on the U.S. Embassy and its diplomatic and consular staff?

HELD: Yes. The Court points out that the conduct of the militants could be directly
attributed to the Iranian State only if it were established that they were in fact acting on
its behalf. The information before the Court did not suffice to establish this with due
certainty.
However, the Iranian State was under the obligation to take appropriate steps to protect
the United States Embassy, but it did nothing to prevent the attack, stop it before it
reached its completion or oblige the militants to withdraw from the premises and
release the hostages. This inaction constitutes a clear and serious violation of Iran’s
obligations to the U.S.A. under the 1961 Vienna Convention on Diplomatic Relations,
the Vienna Convention on Consular Relations and the 1955 Treaty. The Iranian
authorities were fully aware of their obligations under the conventions in force, and
also of the urgent need for action on their part, that they had the means at their disposal

INTERNATIONAL HUMAN RIGHTS LAW
Republic v. Sandiganbayan (G.R. No. 104768, 21 July 2003)
Facts: Evidence in the record showed that respondent Ramas is the owner of a house
and lot located at 15-Yakan St., La Vista, Quezon City with a value estimated to be
around P700,000. He is also the owner of a house and lot located in Cebu City which
has lot area of 3,327 square meters. Affidavits of military members stationed at Camp
Eldridge in Los Baños, Laguna, disclosed that Elizabeth Dimaano is the mistress of the
Ramas. He goes and stays in the alleged house of Dimaano in Barangay Tengga, Itaas,
Batangas City. Military equipment and communication facilities were found in the
premises of Dimaano. Moreover, the raiding team was also able to confiscate money
in the amount of ₱2,870,000.00 and $50,000 US Dollars in the house of Elizabeth
Dimaano on 3 March 1986.
The PCGG filed a petition for forfeiture under R.A. No. 1379 against Ramas alleging
that he acquired funds, assets and properties manifestly out of proportion to his salary
and his other income from legitimately acquired property by taking undue advantage
of his public office. The Sandiganbayan dismissed the complaint and one of the
grounds stated was that there was an illegal search and seizure of the items
confiscated. Petitioner argues that a revolutionary government was operative at that
time by virtue of Proclamation No. 1 and asserts that the revolutionary government
effectively withheld the operation of the 1973 Constitution which guaranteed private
respondents’ exclusionary right. Petitioner contends that all rights under the Bill of
Rights had already reverted to its embryonic stage at the time of the search. Therefore,
the government may confiscate the monies and items taken from Dimaano and use the
same in evidence against her since at the time of their seizure, private respondents did
not enjoy any constitutional right.
Issue: WON the protection accorded to individuals under the International Covenant on
Civil and Political Rights and the Universal Declaration of Human Rights remained in
effect during the interregnum.
Ruling: Yes. The revolutionary government, after installing itself as the de jure
government, assumed responsibility for the State's good faith compliance with the
Covenant to which the Philippines is a signatory. Article 2(1) of the Covenant requires
each signatory State "to respect...and to ensure to all individuals within its territory and
subject to its jurisdiction the rights recognized in the present Covenant." Under Article
17(1) of the Covenant, the revolutionary government had the duty to insure that "no
one shall be...subjected to arbitrary or unlawful interference with his privacy, family,
home or correspondence." The Declaration, to which the Philippines is also a signatory,
provides in its Article 17(2) that "no one shall be arbitrarily deprived of his property."
The revolutionary government did not repudiate the Covenant or the Declaration during
the interregnum. The Court considers the Declaration as part of customary international
law, and that Filipinos as human beings are proper subjects of the rules of international
law laid down in the Covenant. As the de jure government, the revolutionary
government could not escape responsibility for the State's good faith compliance with
its treaty obligations under international law.
Marcos v. Manglapus (G.R. No. 88211, 15 September 1989)
Facts: Marcos filed a petition for mandamus and prohibition asking the Court to order
the respondents to issue travel documents to Mr. Marcos and the immediate members
of his family and enjoin the implementation of the President’s decision to bar their
return to the Philippines. Petitioner argued that it was unconstitutional to forbid him
from returning under the guarantees of due process, the liberty of abode, and the right
to travel. The petitioner also argued that his right to return to the Philippines was
guaranteed under the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights. The respondent argued that the right of the State
to national security trumped individual rights and that the decision to ban Marcos and
his family from returning to the Philippines for reasons of national security and public
safety has international precedents as other dictators were also prevented from going
back to their home.
Issue: WON there is violation of Marcos’ right to abode and right to travel
Ruling: No. The right involved is the right to return to one’s country which is a distinct
right under international law, independent from although related to the right to travel.
The Universal Declaration of Humans Rights and the International Covenant on Civil
and Political Rights treat: (a) the right to freedom of movement and abode within the
territory of a state (b) the right to leave a country, and (c) the right to enter one’s
country as separate and distinct 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. The right to return to one’s
country is not among the rights specifically guaranteed under the Bill of Rights, though
it may well be considered as a generally accepted principle of international law which
is part of the law of the land. The Court allowed the government’s ban on Marcos’ and
his family’s return due to the President’s residual power to protect the general welfare
of the people.
Dissenting Opinion in Marcos v. Manglapus by Justice Sarmiento
It will not suffice, so I submit, to say that the President’s plenitude of powers, as
provided in the Constitution, or by sheer constitutional implication, prevail over express
constitutional commands. "Clearly," so I borrow J.B.L. Reyes, in his own right, a titan
in the field of public law, "this argument . . . rests . . . not upon the text of the
[Constitution] .. but upon a mere inference therefrom." For if it were, indeed, the intent
of the Charter to create an exception, that is, by Presidential action, to the right of travel
or liberty of abode and of changing the same other than what it explicitly says already
("limits prescribed by law" or "upon lawful order of the court") — the Charter could
have specifically declared so. As it is, the lone deterrents to the right in question are:
(1) decree of statute, or (2) lawful judicial mandate. Had the Constitution intended a
third exception, that is, by Presidential initiative, it could have so averred. It would also
have made the Constitution, as far as limits to the said right are concerned, come full
circle: Limits by legislative, judicial, and executive processes.
Obviously, none of the twin legal bars exist. There is no law banning the Marcoses
from the country; neither is there any court decree banishing him from Philippine
territory.
xxx
The new Constitution, however, so it clearly appears, has divested the Executive’s
implied power. And, as it so appears the right may be impaired only "within the limits
provided by law." The President is out of the picture.
Admittedly, the Chief Executive is the "sole" judge of all matters affecting national
security and foreign affairs; the Bill of Rights — precisely, a form of check against
excesses of officialdom — is, in this case, a formidable barrier against Presidential
action. (Even on matters of State security, this Constitution prescribes limits to
Executive’s powers as Commander-in-Chief)
USE OF FORCE
Nicaragua vs US
The general rule prohibiting force established in customary law allows certain
exceptions. The exception of the right of individual or collective self-defense is also, in
the view of States, established in customary law, as is apparent for example from the
terms of Article 51 of the United Nations Charter, which refers to an “inherent right”,
and from the declaration in resolution 2625. The parties, who consider the existence
of this right to be established as a matter of customary international law, agree in
holding that whether the response to an attack depends on the observance of the
criteria of the necessity and the proportionality of the measures taken in self-defense.
Whether self-defense be individual or collective, it can only be exercised in response
to an armed attack. In the view of the court, this is to be understood as meaning not
merely an action by regular armed forces across an international border, but also the
sending by a state of armed bands on the territory of another State, if such an
operation, because of its scale and effects, would have been classified as armed attack
had it been carried out by regular armed forces.
The court quotes General Assembly Resolution No. 3314 which defines aggression as
“use of armed force by a State against the sovereignty, territorial integrity or political
independence of another State, or in any other manner inconsistent with the Charter
of the United Nations, as set out in this Definition.”
The court does not believe that the concept of “armed attack” includes assistance to
rebels in the form of the provision of weapons or logistical or other support.
Furthermore, the court finds that in customary international law, whether of a general
kind or particular to the inter-American legal system, there is no rule permitting the
exercise of collective self-defense in the absence of a request by a state which is a
victim of the alleged, this being additional to the requirement that the State in question
should have declared itself to have been attacked.
 INTERNARNATIONAL ENVIRONMENTAL LAW

Mosqueda vs. PBGEA

G.R. No. 189185, 16 August 2015

FACTS: After several committee hearings and consultations with various stakeholders,
the Sangguniang Panlungsod of Davao City , without any scientific study, enacted
Ordinance to impose a ban against aerial spraying as an agricultural practice by all
agricultural entities within Davao City.
City Mayor Rodrigo Duterte approved the ordinance on February 9, 2007 and took
effect on March 23, 2007 after its publication in the newspaper Mindanao Pioneer.
Pursuant to Section 5 thereof, the ban against aerial spraying would be strictly enforced
three months thereafter.

The Pilipino Banana Growers and Exporters Association, Inc. and two of its members,
filed their petition in the RTC to challenge the constitutionality of the ordinance, and to
seek the issuance of provisional reliefs through a temporary restraining order (TRO)
and/or writ of preliminary injunction. They alleged that the ordinance exemplified the
unreasonable exercise of police power; violated the equal protection clause; amounted
to the confiscation of property without due process of law; and lacked publication
pursuant to Section 511 of Republic Act No. 7160 (Local Government Code).
The petitioners plead, among other things, that the Court should look at the merits of
the ordinance based on the precautionary principle. They argue that under the
precautionary principle, the City of Davao is justified in enacting Ordinance No. 0309-
07 in order to prevent harm to the environment and human health despite the lack of
scientific certainty.

ISSUE: Whether or not the Court should look at the merits of the ordinance based on
the precautionary principle.

HELD: No, precaution is a risk management principle involved after scientific inquiry
takes place. The precautionary approach should not be applied in sustaining the ban
against aerial spraying if little or nothing is known of the exact or potential dangers that
aerial spraying may bring to the health of the residents within and near the plantations
and to the integrity and balance of the environment. It is dangerous to quickly presume
that the effects of aerial spraying would be adverse even in the absence of evidence.
Accordingly, for lack of scientific data supporting a ban on aerial spraying, the
ordinance should be struck down for being unreasonable.