PIL REVIEWER

Part II: Substance of International Law Negotiation

Law of Treaties Article 7
Q: Is a state bound by a treaty to which it is a party? Or one to which it Full powers (plein pouvoir)
is not a party?
Q: Compare the definition of “treaty” in VCLT and in Executive Order 1. A person is considered as representing a State for the purpose of
No. 459. Which definition is broader? VCLT. EO requires legislative adopting or authenticating the text of a treaty or for the purpose of
concurrence. expressing the consent of the State to be bound by a treaty if:
Q: May an individual enter into a treaty? No. very definition states that it
is concluded between one or more states (a) He produces appropriate full powers; or
Q: What are the stages in the treaty making process? (b) It appears from the practice of the States concerned or from other
(1) Negotiation circumstances that their intention was to consider that person as representing the
(2) Signature —parties have come into an agreement State for such purposes and to dispense with full powers.
(3) Ratification —which is the next step, is the formal act by
which a state confirms and accepts the provisions of a treaty 2. In virtue of their functions and without having to produce full powers,
concluded by its representatives the following are considered as representing their State:
(4) The exchange of instruments
(5) Publication under the UN Charter (a) Heads of State, Heads of Government and Ministers for Foreign
Affairs, for the purpose of performing all acts relating to the
• AKA. Conventions, covenants, charters, protocols, concordat, modus conclusion of a treaty;
vivendi etc. (b) heads of diplomatic missions, for the purpose of adopting the text of a treaty
o According to Grotius the names and titles of international between the accrediting State and the State to which they are accredited;
agreements have little or no legal significance (c) representatives accredited by States to an international conference or to an
• Law on treaties is found in VCLT à it governs treaties between states international organization or one of its organs, for the purpose of adopting the
text of a treaty in that conference,
• Brownlie: Treaties are not retroactive à unless a contrary intention is
organization or organ.
established
Authentification of the text
Definition of treaties
Negotiations conclude with the signing of the document. The signatures serve as
- Art. 2 of VCLT: “ an international agreement concluded between states
authentification of the document unless by the same majority they shall decide to
in written form and governed by international law, whether embodied in a
apply a different rule
single instrument or in two or more related instruments and whatever its
particular designation”
o In writing
Article 9
§ However, there are certain writers who old that even
Adoption of the text
oral agreements can be binding
1. The adoption of the text of a treaty takes place by the consent of all
o Reflective of the intention of the parties bound
the States participating in its drawing up except as provided in paragraph
o Governed by international law
2. The adoption of the text of a treaty at an international conference
- No particular form is prescribed
takes place by the vote of two-thirds of the States present and voting,
o Qatar v Bahrain: the exchange of notes between countries was
considered a treaty
o Nuclear Test Cases: a unilateral declaration concerning legal or
Consent to be bound
factual situations may create legal obligations
Once the document is signed, there are stages which follow which culminate in
making the document binding –Most important is the consent to be bound
The Making of treaties:
Four steps: (1) Negotiation (2) Adoption of the Test (3) Authentification (4)
Article 11
Conclusion
Means of expressing consent to be bound by a treaty

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The consent of a State to be bound by a treaty may be expressed by
signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed.
Article 12
Consent to be bound by a treaty expressed by signature
1. The consent of a State to be bound by a treaty is expressed by the
signature of its representative when:
(a) the treaty provides that signature shall have that effect;
(b) it is otherwise established that the negotiating States were agreed
that signature should have that effect; or
(c) the intention of the State to give that effect to the signature
appears from the full powers of its representative or was expressed
during the negotiation.
2. For the purposes of paragraph 1:
(a) the initialling of a text constitutes a signature of the treaty when
it is established that the negotiating States so agreed;
(b) the signature ad referendum of a treaty by a representative, if
confirmed by his State, constitutes a full signature of the treaty.
Article 13
Consent to be bound by a treaty expressed by an exchange of
instruments constituting a treaty
The consent of States to be bound by a treaty constituted by instruments
exchanged between them is expressed by that exchange when:
(a) the instruments provide that their exchange shall have that effect;
or
(b) it is otherwise established that those States were agreed that the
exchange of instruments should have that effect
Article 14
Consent to be bound by a treaty expressed by
ratification, acceptance or approval
1. The consent of a State to be bound by a treaty is expressed by
ratification when:
(a) the treaty provides for such consent to be expressed by means of ratification;
(b) it is otherwise established that the negotiating States were agreed that
ratification should be required;
(c) the representative of the State has signed the treaty subject to
ratification; or
(d) the intention of the State to sign the treaty subject to ratification
appears from the full powers of its representative or was expressed during the
negotiation.
2. The consent of a State to be bound by a treaty is expressed by
acceptance or approval under conditions similar to those which apply to
ratification.
Article 15
Consent to be bound by a treaty expressed by accession
The consent of a State to be bound by a treaty is expressed by accession
when:
(a) the treaty provides that such consent may be expressed by that State
by means of accession;
(b) it is otherwise established that the negotiating States were agreed
that such consent may be expressed by that State by means of
accession; or
(c) all the parties have subsequently agreed that such consent may be
expressed by that State by means of accession.
Article 16.
Exchange or deposit of instruments of ratification, acceptance, approval or
accession
Unless the treaty otherwise provides, instruments of ratification,
acceptance, approval or accession establish the consent of a State to be
bound by a treaty upon:
(a) their exchange between the contracting States;
(b) their deposit with the depositary; or
(c) their notification to the contracting States or to the depositary, if
50 agreed.
Article 17
Consent to be bound by part of a treaty and choice of differing provisions
1. Without prejudice to articles 19 to 23, the consent of a State to be
bound by part of a treaty is effective only if the treaty so permits or the
other contracting States so agree.
2. The consent of a State to be bound by a treaty which permits a choice
between differing provisions is effective only if it is made clear to which of the
provisions the consent relates.
Reservations
A unilateral statement, however phrased or named, made by a state when
signing, ratifying, accepting, approving or acceding to a treaty.
Must a reservation be consented by all parties for it to be effective? NO, for
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as long as the reservation is compatible with the object and purpose of the treaty
Entry into force of treaties
Treaties enter into force on the date agreed upon by the parties. Where no date
is indicated, the treaty enters into force once consent has been given.
Article 24
Entry into force
1. A treaty enters into force in such manner and upon such date as it may
provide or as the negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as
soon as consent to be bound by the treaty has been established for all the
negotiating States.
3. When the consent of a State to be bound by a treaty is established on a
date after the treaty has come into force, the treaty enters into force for
that State on that date, unless the treaty otherwise provides.
4. The provisions of a treaty regulating the authentication of its text,
the establishment of the consent of States to be bound by the treaty, the
manner or date of its entry into force, reservations, the functions of the
depositary and other matters arising necessarily before the entry into
force of the treaty apply from the time of the adoption of its text.
Article 25
Provisional application
1. A treaty or a part of a treaty is applied provisionally pending its
entry into force if:
(a) the treaty itself so provides; or
(b) the negotiating States have in some other manner so agreed.
2. Unless the treaty otherwise provides or the negotiating States have otherwise
agreed, the provisional application of a treaty or a part of a treaty with respect to
a State shall be terminated if that State notifies
the other States between which the treaty is being applied provisionally of its
intention not to become a party to the treaty.
Application of treaties
Fundamental rules:
(1) A26 (Pacta sunt servanda)--“every treaty in force is binding upon the
parties to it and must be performed by them in good faith
(2) A.46 – A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty
(3) A.29 –“Unless a different intention appears from the treaty or is
otherwise established, a treaty is binding upon each party in respect of
its entire territory”
Different approaches according to Brownlie
(1) Textual approach (recognized under VCLT) –A31 says that the intention
of the parties, as expressed in the text, is the best guide to the common
intention of states
(2) Teleological approach –any ambiguity should be resolved by preferring
the interpretation which gives effect to the object and purpose of the
treaty
Note: A31 is said to be a reflection of Custom
Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary
meaning to be given to the terms of the treaty in their context and in the light of
its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties
in connexion with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other parties as an instrument
related to the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation
of the treaty or the application of its provisions;
(b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) any relevant rules of international law applicable in the relations between the
parties.
4. A special meaning shall be given to a term if it is established that the parties so
intended.
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Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in order to
confirm the meaning resulting from the application of article 31, or to determine
the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
Invalidity of treaties
- Usual ground for the invalidity of contracts: error of fact, fraud, corruption
or duress
- A violation of jus cogens also invalidates a treaty (A53)
o Ex. A treaty contemplating an unlawful use of force
Amendment and Modification
- Amendment is a formal revision done with the participation, at least in its
initial stage, by all the parties to the treaty
- Modification –involves on some of the parties
Article 40
Amendment of multilateral treaties
1. Unless the treaty otherwise provides, the amendment of multilateral treaties
shall be governed by the following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must be
notified to all the contracting States, each one of which shall have the right to
take part in:
(a) the decision as to the action to be taken in regard to such proposal;
(b) the negotiation and conclusion of any agreement for the amendment of the
treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to
become a party to the treaty as amended.
4. The amending agreement does not bind any State already a party to the treaty
which does not become a party to the amending agreement; article 30,
paragraph 4(b), applies in relation to such State.
5. Any State which becomes a party to the treaty after the entry into force of the
amending agreement shall, failing an expression of a different intention by that
State:
(a) Be considered as a party to the treaty as amended; and
(b) Be considered as a party to the unamended treaty in relation to any party to
the treaty not bound by the amending agreement.
Article 41
Agreements to modify multilateral treaties between certain of the parties
only
1. Two or more of the parties to a multilateral treaty may conclude an
agreement to modify the treaty as between themselves alone if:
(a) the possibility of such a modification is provided for by the treaty;
or
(b) the modification in question is not prohibited by the treaty and:
(i) does not affect the enjoyment by the other parties of their
rights under the treaty or the performance of their obligations;
(ii) does not relate to a provision, derogation from which is
incompatible with the effective execution of the object and purpose
of the treaty as a whole.
2. Unless in a case falling under paragraph 1(a) the treaty otherwise
provides, the parties in question shall notify the other parties of their
intention to conclude the agreement and of the modification to the treaty
for which it provides.
Termination of treaties
- A treaty may be terminated or suspended according to the terms of the
treaty or with the consent of the parties
- A treaty with a definite period may also expire
- It may also expire when the purpose is achieved
- Other important modes: material breach, impossibility of performance,
and change of fundamental conditions
Article 60
Termination or suspension of the operation of a treaty
as a consequence of its breach
1. A material breach of a bilateral treaty by one of the parties entitles
the other to invoke the breach as a ground for terminating the treaty or
suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties
entitles:
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(a) the other parties by unanimous agreement to suspend the operation of
the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for
suspending the operation of the treaty in whole or in part in the
relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a
ground for suspending the operation of the treaty in whole or in part
with respect to itself if the treaty is of such a character that a
material breach of its provisions by one party radically changes the
position of every party with respect to the further performance of
its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article,
consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention;
or
(b) the violation of a provision essential to the accomplishment of the
object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the
treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection
of the human person contained in treaties of a humanitarian character, in
particular to provisions prohibiting any form of reprisals against persons
protected by such treaties.
Article 61
Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground
for terminating or withdrawing from it if the impossibility results from
the permanent disappearance or destruction of an object indispensable for
the execution of the treaty. If the impossibility is temporary, it may be
invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground
for terminating, withdrawing from or suspending the operation of a treaty
if the impossibility is the result of a breach by that party either of an
obligation under the treaty or of any other international obligation owed
to any other party to the treaty.
Article 62
Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to
those existing at the time of the conclusion of a treaty, and which was not
foreseen by the parties, may not be invoked as a ground for terminating or
withdrawing from the treaty unless:
(a) the existence of those circumstances constituted an essential basis
of the consent of the parties to be bound by the treaty; and
(b) the effect of the change is radically to transform the extent of
obligations still to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for
terminating or withdrawing from a treaty:
(a) if the treaty establishes a boundary; or
(b) if the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty or of any other
international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental
change of circumstances as a ground for terminating or withdrawing from a
treaty it may also invoke the change as a ground for suspending the
operation of the treaty.
Under Philippine Law
- Process under EO 459
- Treaty signed by PH rep à DFA prepares ratification papers à
President ratifies treaty à DFA submits to senate for concurrence à
DFA complies with provisions of the treaty to render it effective
Jurisdiction of States and Immunities, Including Diplomatic And Consular Law
Jurisdiction means the authority to affect legal interests
Five general principles
(Generally supported in customary law)
(1) The territoriality principle
- Fundamental source of jurisdiction is sovereignty over territory
- A state has absolute, but necessarily exclusive, power to prescribe,
adjudicate and enforce rules for conduct that occurs within its territory
The effects doctrine
- A state also has jurisdiction over acts occurring outside its territory but
having effects within it
- Lotus Case
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o Subjective territorial principle –a state has jurisdiction to
prosecute and punish for crime commenced within the state but
completed or consummated abroad
o Objective territorial principle –a state has jurisdiction to
prosecute and punish for crime commenced without the state
but consummated within its territory
(2) Nationality principle
- Every state has jurisdiction over its nationals even when those nationals
are outside the state
(3) Protective principle
- A state may exercise jurisdiction over conduct outside its territory that
threatens security, as long as that conduct is generally recognized as
criminal by states in the international community
(Application in special circumstances)
(4) The university principle
- 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 acts in question
- Covers piracy, genocide, crimes against humanity, war crimes, aircraft
piracy and terrorism
(Does not enjoy wide acceptance)
(5) the passive personality principle
- Comment in the 3rd restatement says: This 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.
- Increasingly accepted as applied to terrorist and other organized attacks
on a state’s national
Conflicts of jurisdiction
(Developed by US Courts)
(1) The Balancing test
a. Was there an actual or intended effect on commerce?
b. Is the effect sufficiently large to present a cognizable injury?
c. Are the interests of, and link to, the state?
i. If answer to all is yes, assume jurisdiction
(2) International Comity
a. Even when a state has basis for exercising jurisdiction, it will
refrain if exercise is unreasonable
(3) Forum non conveniens
a. Forum non conveniens is a discretionary power that allows
courts to dismiss a case where another court, or forum, is much
better suited to hear the case. This dismissal does not prevent
a plaintifffrom re-filing his or her case in the more appropriate
forum. See Res Judicata. This doctrine may be invoked by
either the defendant, or 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
- It is a process governed by treaty
o The legal right to demand extradition and the correlative duty to
surrender a fugitive exist only when created by treaty
- Principles that govern extradition
o No state is obliged to extradite unless there is a treaty
o Differences in the legal system can be an obstacle to
interpretation of what the crime is
o Religious and political offenses are not extraditable
Immunity from Jurisdiction
- General rule is that jurisdiction of a state within its territory is complete
and absolute
- 2 exceptions:
o Sovereign immunity
§ Head of state
§ State itself
o Immunity of the representative of states or diplomatic and
consular immunities
Immunity of head of state
- Look at the Pinochet case
o Under customary international law, it is accepted that a state is
entitled to expect that its former head of state will not be
subjected to the jurisdiction of the courts of another state while
he was head of state
§ UNLESS, immunity is waived by the current
government of the state of which he was once head
o Should be in the performance of a governmental, not private,
act.
State Immunity
- The principle that the state may not be sued without its consent found in
the PH constitution is also found under international law applicable to
foreign states
- This is based on the principle of equality of states (par in parem non
habet imperium)
- “The nation within its territory is necessarily exclusive and absolute. It is
susceptible of no limitation not imposed by itself” (The schooner
exchange v Mcfaddon)
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- Immunity may only be reserved for acts jure imperii (governmental acts)
but not for acts jure gestionis (trading and commercial acts
Diplomatic and Consular Immunities
- Purpose: to enable them to perform their functions properly
- On the part of the receiving state, there are certain obligations to protect
the representative and his property and office
(1) Diplomatic Immunities
- Diplomats are concerned with the political relations of states
- Codification of law may be found in the VCDR
- Diplomatic missions are purely by mutual consent
o Before the head of a mission is sent, an agreement must first be
obtained
What are the differences in the privileges or immunities of diplomatic envoys and
consular officials?
- As to criminal jurisdiction
o Diplomats –not liable to any form of arrest or detention and
enjoy immunity from the criminal jurisdiction of the receiving
state
o Consuls – shall not enjoy immunity from criminal proceedings
- As to civil jurisdiction
o Diplomats –enjoy immunity
§ Except in cases involving: (1) Real property (2)
succession and (3) professional or commercial activity
o Consuls –enjoy immunity
Art.3 (functions of the diplomatic mission)
1.The functions of a diplomatic mission consist, inter alia, in:
(a) Representing the sending State in the receiving State; (b) Protecting
in the receiving State the interests of the sending State and of its
nationals, within the limits permitted by international law; (c) Negotiating
with the Government of the receiving State; (d) Ascertaining by all lawful
means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State; (e) Promoting
friendly relations between the sending State and the receiving State, and
developing their economic, cultural and scientific relations.
2.Nothing in the present Convention shall be construed as preventing
the performance of consular functions by a diplomatic mission.
Rights and functions of a diplomatic mission:
Article 22 1.The premises of the mission shall be inviolable. The agents of the
receiving State may not enter them, except with the consent of the head of the
mission. 2.The receiving State is under a special duty to take all appropriate
steps to protect the premises of the mission against any intrusion or damage and
to prevent any disturbance of the peace of the mission or impairment of its
dignity. 3.The premises of the mission, their furnishings and other property
thereon and the means of transport of the mission shall be immune from search,
requisition, attachment or execution.
Article 23 1.The sending State and the head of the mission shall be exempt from
all national, regional or municipal dues and taxes in respect of the premises of
the mission, whether owned or leased, other than such as represent payment for
specific services rendered. 2.The exemption from taxation referred to in this
article shall not apply to such dues and taxes payable under the law of the
receiving State by persons contracting with the sending State or the head of the
mission.
Article 24 The archives and documents of the mission shall be inviolable at any
time and wherever they may be.
Article 25 The receiving State shall accord full facilities for the performance of the
functions of the mission.
Article 26 Subject to its laws and regulations concerning zones entry into which is
prohibited or regulated for reasons of national security, the receiving State shall
ensure to all members of the mission freedom of movement and travel in its
territory.
Article 27 1.The receiving State shall permit and protect free communication on
the part of the mission for all official purposes. In communicating with the
Government and the other missions and consulates of the sending State,
wherever situated, the mission may employ all appropriate means, including
diplomatic couriers and messages in code or cipher. However, the mission may
install and use a wireless transmitter only with the consent of the receiving State.
2.The official correspondence of the mission shall be inviolable. Official
correspondence means all correspondence relating to the mission and its
functions. 3.The diplomatic bag shall not be opened or detained. 4.The packages
constituting the diplomatic bag must bear visible external marks of their character
and may contain only diplomatic documents or articles intended for official use.
5.The diplomatic courier, who shall be provided with an official document
indicating his status and the number of packages constituting the diplomatic bag,
shall be protected by the receiving State in the performance of his functions. He
shall enjoy person inviolability and shall not be liable to any form of arrest or
detention. 6.The sending State or the mission may designate diplomatic couriers
ad hoc. In such cases the provisions of paragraph 5 of this article shall also
apply, except that the immunities therein mentioned shall cease to apply when
such a courier has delivered to the consignee the diplomatic bag in his charge.
7.A diplomatic bag may be entrusted to the captain of a commercial aircraft
scheduled to land at an authorized port of entry. He shall be provided with an
official document indicating the number of packages constituting the bag but he
shall not be considered to be a diplomatic courier. The mission may send one of
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its members to take possession of the diplomatic bag directly and freely from the
captain of the aircraft.
Article 28 The fees and charges levied by the mission in the course of its official
duties shall be exempt from all dues and taxes.
Article 29 The person of a diplomatic agent shall be inviolable. He shall not be
liable to any form of arrest or detention. The receiving State shall treat him with
due respect and shall take all appropriate steps to prevent any attack on his
person, freedom or dignity.
Article 30 1.The private residence of a diplomatic agent shall enjoy the same
inviolability and protection as the premises of the mission. 2.His papers,
correspondence and, except as provided in paragraph 3 of article 31, his
property, shall likewise enjoy inviolability.
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. 2.A diplomatic agent is not obliged to give evidence as a witness. 3.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. 4.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.
Article 33 1.Subject to the provisions of paragraph 3 of this article, a diplomatic
agent shall with respect to services rendered for the sending State be exempt
from social security provisions which may be in force in the receiving State. 2.The
exemption provided for in paragraph 1 of this article shall also apply to private
servants who are in the sole employ of a diplomatic agent, on condition: (a) That
they are not nationals of or permanently resident in the receiving State; and (b)
That they are covered by the social security provisions which may be in force in
the sending State or a third State. 3.A diplomatic agent who employs persons to
whom the exemption provided for in paragraph 2 of this article does not apply
shall observe the obligations which the social security provisions of the receiving
State impose upon employers. 4.The exemption provided for in paragraphs 1 and
2 of this article shall not preclude voluntary participation in the social security
system of the receiving State provided that such participation is permitted by that
State. 5.The provisions of this article shall not affect bilateral or multilateral
agreements concerning social security concluded previously and shall not
prevent the conclusion of such agreements in the future.
Article 34 A diplomatic agent shall be exempt from all dues and taxes, personal
or real, national, regional or municipal, except:
(a) Indirect taxes of a kind which are normally incorporated in the price of goods
or services; (b) Dues and taxes on 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; (c) Estate, succession or inheritance duties
levied by the receiving State, subject to the provisions of paragraph 4 of article
39; (d) Dues and taxes on private income having its source in the receiving State
and capital taxes on investments made in commercial undertakings in the
receiving State; (e) Charges levied for specific services rendered; (f) Registration,
court or record fees, mortgage dues and stamp duty, with respect to immovable
property, subject to the provisions of article 23.
Article 35 The receiving State shall exempt diplomatic agents from all personal
services, from all public service of any kind whatsoever, and from military
obligations such as those connected with requisitioning, military contributions and
billeting.
Article 36 1.The receiving State shall, in accordance with such laws and
regulations as it may adopt, permit entry of and grant exemption from all customs
duties, taxes, and related charges other than charges for storage, cartage and
similar services, on: (a) Articles for the official use of the mission; (b) Articles for
the personal use of a diplomatic agent or members of his family forming part of
his household, including articles intended for his establishment. 2.The personal
baggage of a diplomatic agent shall be exempt from inspection, unless there are
serious grounds for presuming that it contains articles not covered by the
exemptions mentioned in paragraph 1 of this article, or articles the import or
export of which is prohibited by the law or controlled by the quarantine
regulations of the receiving State. Such inspection shall be conducted only in the
presence of the diplomatic agent or of his authorized representative.
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Article 37 1.The members of the family of a diplomatic agent forming part of his
household shall, if they are not nationals of the receiving State, enjoy the
privileges and immunities specified in articles 29 to 36. 2.Members of the
administrative and technical staff of the mission, together with members of their
families forming part of their respective households, shall, if they are not
nationals of or permanently resident in the receiving State, enjoy the privileges
and immunities specified in articles 29 to 35, except that the immunity from civil
and administrative jurisdiction of the receiving State specified in paragraph 1 of
article 31 shall not extend to acts performed outside the course of their duties.
They shall also enjoy the privileges specified in article 36, paragraph 1, in respect
of articles imported at the time of first installation. 3.Members of the service staff
of the mission who are not nationals of or permanently resident in the receiving
State shall enjoy immunity in respect of acts performed in the course of their
duties, exemption from dues and taxes on the emoluments they receive by
reason of their employment and the exemption contained in article 33. 4.Private
servants of members of the mission shall, if they are not nationals of or
permanently resident in the receiving State, be exempt from dues and taxes on
the emoluments they receive by reason of their employment. In other respects,
they may enjoy privileges and immunities only to the extent admitted by the
receiving State. However, the receiving State must exercise its jurisdiction over
those persons in such a manner as not to interfere unduly with the performance
of the functions of the mission.
Article 38 1.Except insofar as additional privileges and immunities may be
granted by the receiving State, a diplomatic agent who is a national of or
permanently resident in that State shall enjoy only immunity from jurisdiction, and
inviolability, in respect of official acts performed in the exercise of his functions.
2.Other members of the staff of the mission and private servants who are
nationals of or permanently resident in the receiving State shall enjoy privileges
and immunities only to the extent admitted by the receiving State. However, the
receiving State must exercise its jurisdiction over those persons in such a
manner as not to interfere unduly with the performance of the functions of the
mission.
Article 39 1.Every person entitled to privileges and immunities shall enjoy them
from the moment he enters the territory of the receiving State on proceeding to
take up his post or, if already in its territory, from the moment when his
appointment is notified to the Ministry for Foreign Affairs or such other ministry as
may be agreed. 2.When the functions of a person enjoying privileges and
immunities have come to an end, such privileges and immunities shall normally
cease at the moment when he leaves the country, or on expiry of a reasonable
period in which to do so, but shall subsist until that time, even in case of armed
conflict. However, with respect to acts performed by such a person in the
exercise of his functions as a member of the mission, immunity shall continue to
subsist.
3.In case of the death of a member of the mission, the members of his family
shall continue to enjoy the privileges and immunities to which they are entitled
until the expiry of a reasonable period in which to leave the country.4.In the event
of the death of a member of the mission not a national of or permanently resident
in the receiving State or a member of his family forming part of his household, the
receiving State shall permit the withdrawal of the movable property of the
deceased, with the exception of any property acquired in the country the export
of which was prohibited at the time of his death. Estate, succession and
inheritance duties shall not be levied on movable property the presence of which
in the receiving State was due solely to the presence there of the deceased as a
member of the mission or as a member of the family of a member of the mission.
(2) Consular Immunities
- Consuls are not concerned with political matters –they attend to
administrative and economic issues such as the issuance of visas
- Codification of the law may be found in the VCCR
- Exequatur –head of a consular post admitted to the exercise of his
functions by an authorization from the receiving state
- The receiving state may at any time notify the sending state that the
officer is persona non grata
o Sending state may either recall person or terminate his
functions with the consular post
- The receiving state must insure the unimpeded functioning of the
consular offices
Article 5 Consular functions Consular functions consist in: (a) protecting in
the receiving State the interests of the sending State and of its nationals,
both individuals and bodies corporate, within the limits permitted by
international law; (b) furthering the development of commercial, economic,
cultural and scientific relations between the sending State and the receiving
State and otherwise promoting friendly relations between them in
accordance with the provisions of the present Convention; (c) ascertaining by
all lawful means conditions and developments in the commercial, economic,
cultural and scientific life of the receiving State, reporting thereon to the
Government of the sending State and giving information to persons
interested; (d) issuing passports and travel documents to nationals of the
sending State, and visas or appropriate documents to persons wishing to
travel to the sending State; (e) helping and assisting nationals, both
individuals and bodies corporate, of the sending State
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Article 35 Freedom of communication 1.The receiving State shall permit and
protect freedom of communication on the part of the consular post for all
official purposes. In communicating with the Government, the diplomatic
missions and other consular posts, wherever situated, of the sending State,
the consular post may employ all appropriate means, including diplomatic or
consular couriers, diplomatic or consular bags and messages in code or
cipher. However, the consular post may install and use a wireless transmitter
only with the consent of the receiving State.
2.The official correspondence of the consular post shall be inviolable. Official
correspondence means all correspondence relating to the consular post and its
functions. 3.The consular bag shall be neither opened nor detained.
Nevertheless, if the competent authorities of the receiving State have serious
reason to believe that the bag contains something other than the
correspondence, documents or articles referred to in paragraph 4 of this article,
they may request that the bag be opened in their presence by an authorized
representative of the sending State. If this request is refused by the authorities of
the sending State, the bag shall be returned to its place of origin. 4.The packages
constituting the consular bag shall bear visible external marks of their character
and may contain only official correspondence and documents or articles intended
exclusively for official use. 5.The consular courier shall be provided with an
official document indicating his status and the number of packages constituting
the consular bag. Except with the consent of the receiving State he shall be
neither a national of the receiving State, nor, unless he is a national of the
sending State, a permanent resident of the receiving State. In the performance of
his functions he shall be protected by the receiving State. He shall enjoy personal
inviolability and shall not be liable to any form of arrest or detention. 6.The
sending State, its diplomatic missions and its consular posts may designate
consular couriers ad hoc. In such cases the provisions of paragraph 5 of this
article shall also apply except that the immunities therein mentioned shall cease
to apply when such a courier has delivered to the consignee the consular bag in
his charge. 7.A consular bag may be entrusted to the captain of a ship or of a
commercial aircraft scheduled to land at an authorized port of entry. He shall be
provided with an official document indicating the number of packages constituting
the bag, but he shall not be considered to be a consular courier. By arrangement
with the appropriate local authorities, the consular post may send one of its
members to take possession of the bag directly and freely from the captain of the
ship or of the aircraft.
Article 36 Communication and contact with nationals of the sending State 1.With
a view to facilitating the exercise of consular functions relating to nationals of the
sending State: (a) consular officers shall be free to communicate with nationals of
the sending State and to have access to them. Nationals of the sending State
shall have the same freedom with respect to communication with and access to
consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall,
without delay, inform the consular post of the sending State if, within its consular
district, a national of that State is arrested or committed to prison or to custody
pending trial or is detained in any other manner. Any communication addressed
to the consular post by the person arrested, in prison, custody or detention shall
be forwarded by the said authorities without delay. The said authorities shall
inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State
who is in prison, custody or detention, to converse and correspond with him and
to arrange for his legal representation. They shall also have the right to visit any
national of the sending State who is in prison, custody or detention in their district
in pursuance of a judgement. Nevertheless, consular officers shall refrain from
taking action on behalf of a national who is in prison, custody or detention if he
expressly opposes such action. 2.The rights referred to in paragraph 1 of this
article shall be exercised in conformity with the laws and regulations of the
receiving State, subject to the proviso, however, that the said laws and
regulations must enab
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 42 Notification of arrest, detention or prosecution In the event of the arrest
or detention, pending trial, of a member of the consular staff, or of criminal
proceedings being instituted against him, the receiving State shall promptly notify
the head of the consular post. Should the latter be himself the object of a any
such measure, the receiving State shall notify the sending State through the
diplomatic channel.
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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.
Article 44 Liability to give evidence 1.Members of a consular post may be called
upon to attend as witnesses in the course of judicial or administrative
proceedings. A consular employee or a member of the service staff shall not,
except in the cases mentioned in paragraph 3 of this article, decline to give
evidence. If a consular officer should decline to do so, no coercive measure or
penalty may be applied to him. 2.The authority requiring the evidence of a
consular officer shall avoid interference with the performance of his functions. It
may, when possible, take such evidence at his residence or at the consular post
or accept a statement from him in writing. 3.Members of a consular post are
under no obligation to give evidence concerning matters connected with the
exercise of their functions or to produce official correspondence and documents
relating thereto. They are also entitled to decline to give evidence as expert
witnesses with regard to the law of the sending State.
Article 45 Waiver of privileges and immunities 1.The sending State may waive,
with regard to a member of the consular post, any of the privileges and
immunities provided for in articles 41, 43 and 44. 2.The waiver shall in all cases
be express, except as provided in paragraph 3 of this article, and shall be
communicated to the receiving State in writing. 3.The initiation of proceedings by
a consular officer or a consular employee in a matter where he might enjoy
immunity from jurisdiction under article 43 shall preclude him from invoking
immunity from jurisdiction in respect of any counterclaim directly connected with
the principal claim. 4.The waiver of immunity from jurisdiction for the purposes of
civil or administrative proceedings shall not be deemed to imply the waiver of
immunity from the measures of execution resulting from the judicial decision; in
respect of such measures, a separate waiver shall be necessary.
NEWS FLASH!!!
PH Envoy Summoned over video showing extraction of Maids from Kuwaiti
Homes
- The Ministry of Foreign Affairs here summoned Philippine Ambassador
to Kuwait Renato Villa to hand him two diplomatic protest notes.
- A spokesperson at the ministry said the notes were “related to recent
remarks by several Filipino officials which [amounted to] serious
offences against the State of Kuwait and [led] to the actions some
embassy employees in violation of the diplomatic norms governing
relations between the two countries as per the Vienna Convention on
Diplomatic Relations,” the Kuwait News Agency reported. The
spokesperson “expressed regret over such practices which could harm
the friendship between the two countries.”
- Meanwhile, Undersecretary for Migrant Workers Affairs Sarah Lou
Arriola announced during a meeting with the Filipino community on
Friday that the embassy led by Villa is coordinating with Kuwaiti
authorities for the preparation of the upcoming visit of President Rodrigo
Duterte to Kuwait, which will likely happen after the Holy Month of
Ramadan sometime in June.
- Arriola and her team arrived in Kuwait on Friday to oversee and assist
the Philippine Embassy in the repatriation of undocumented overseas
Filipino workers in Kuwait who received amnesty from the Kuwait
government. There will be last two flights that will fly 340 undocumented
Filipinos out of Kuwait as the amnesty ends on April 22.
Total Deployment Ban to Kuwait Still Holds
- The Philippine government’s total ban on the deployment of Filipino
workers to Kuwait would stay despite a Kuwaiti court’s handing of death
sentence against the couple accused of killing overseas Filipino worker
(OFW) Joanna Demafelis.
- In a press briefing, Senior Deputy Executive Secretary Menardo
Guevarra said the ban “still holds” until the country finally seals an
agreement with the Gulf state that would ensure protection of OFWs in
Kuwait.
- “The agreement – that still holds… the total ban on sending OFWs to
Kuwait is still on. But of course an agreement, a memorandum of
understanding is being formulated and hopefully… the state parties will
come to terms as to how our OFWs in Kuwait as well as in other Middle
Eastern countries will be protected,” Guverra said.
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Kuwait Orders PH Ambassador to Leave
- Declaring him persona non grata, the Kuwaiti government ordered
Philippine Ambassador to Kuwait Renato Villa to leave within a week,
state-run Kuwait News Agency reported Wednesday, April 25.
- The Kuwaiti government cited the "undiplomatic acts by Philippine
embassy staff" after they rescued abused overseas Filipino workers
(OFWs) in Kuwait.
- Kuwait also recalled its ambassador to the Philippines, Saleh Ahmad
Althwaikh, "for consultation."
- "The action taken by the Kuwaiti Government is deeply disturbing as it is
inconsistent with the assurances given by Kuwaiti Ambassador Musaed
Saleh Ahmad Althwaikh during his meeting with Secretary Alan Peter S.
Cayetano in Manila on Tuesday," the DFA said.
- "The Department will ask Ambassador Saleh to explain first thing
tomorrow why the Kuwaiti Government reneged on the agreement
reached with him to work together to move bilateral relations between
the Philippines and Kuwait forward," added the DFA.
Kuwait Orders the Arrest of 3 Filipino Diplomats
- In a statement, the DFA said it served a diplomatic note to the Embassy
of Kuwait over the issuance of arrest warrants against three Filipino
diplomats, the expulsion of Philippine Ambassador Renato Pedro Villa,
and the continued detention of four other Filipino embassy personnel.
- "The Department served a diplomatic note to the Embassy of Kuwait
conveying its strong surprise and great displeasure over the declaration
of Ambassador Renato Pedro Villa as persona non grata; the continued
detention of four Filipinos hired by the Philippine Embassy; and the
issuance of arrest warrants against three diplomatic personnel," the DFA
said.
- The DFA, however, did not name the Filipino diplomats and embassy
personnel involved.
- Kuwait on Wednesday ordered Villa to leave the country following the
controversial rescue of Filipino migrant workers from the homes of their
employers.
- The envoy's action came amid persistent reports of overseas Filipino
workers (OFWs) experiencing abuse in the hands of their employers in
the Gulf state.
DFA’s OFW Rescuers Need Rescuing in Kuwait
- The Philippines and Kuwait are holding “sensitive” negotiations to
extricate three Filipino diplomats who face arrest for kidnapping after the
Philippine Embassy rescued allegedly abused Filipino maids from their
employers’ homes, according to Foreign Secretary Alan Peter Cayetano.
- The rescue mission, a video of which was uploaded on the internet,
angered Kuwait, calling it a violation of its sovereignty.
- There are 30 personnel inside the Philippine Embassy, according to the
Department of Foreign Affairs (DFA).
- The three diplomats threatened with arrest, who were not identified by
the DFA, were among those sent to Kuwait to support the embassy staff
process the mass repatriation of OFWs in the final days of the amnesty
for undocumented workers in Kuwait, which ended on April 22.
- After Kuwait vowed to take action against those who participated in the
rescue, the diplomatic personnel transferred from their hotels to the
embassy.
- Cayetano insisted that the country’s diplomats did not commit a crime
nor violate Kuwait’s sovereignty or diplomatic protocol in launching the
rescue.
- For the first time since the diplomatic row between Manila and Kuwait
broke out two weeks ago, Cayetano admitted on Friday that the
movement of the diplomatic staff holed up inside the embassy in Kuwait
had been “restricted,” but they were not under threat.
- Cayetano said “efforts to resolve the issue are moving.”
- Four other Filipinos, whom Cayetano said were hired as drivers, were
immediately arrested for taking part in the rescue mission.
- Cayetano said the embassy, invoking security, refused to give to Kuwaiti
authorities the names of its personnel who were involved in the
operations to rescue distressed Filipino housemaids that allegedly were
not coordinated with local authorities.
- “But they have identified some people [involved], so as a precaution they
stayed in the embassy. And there’s a pronouncement of the Ministry of
Interior that there will be an investigation and possibly kidnapping”
charges, Cayetano told reporters.
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Nationality and Statelessness • PCIJ opinion on Tunis and Morocco Nationality decrees
o Issue: WON grant of nationality is within a state’s domestic
1. Concept jurisdiction
- National: natio, ethnic § International law changes over time
- Citizen: Civitas, membership § Questions of nationality are solely within jurisdiction
- Subject: subordinate based on the law now
- Statute of a natural person based on his/ her relation with the state § ex. limitations under international law
3. International law imposes limitations on a state’s discretion with regard to
Why is nationality important in international? grant or removal of its nationality
A. Accepted ground for discrimination • Limit 1: custom -- a foundling shall be considered born in the state where
- admission, expulsion (immigration) it was found and the parents of that state’s nationality
- qualification (public office, natural resources) • Limit 2: treaty--US-Spain Treaty
- Preference (trade)
B. Legal requirement for certain actions d. A state is not required to recognise another state’s grant of nationality unless it
- Diplomatic protection by a state is a real and effective nationality
- Treaty benefits by a person - Domestic aspect
- International criminal law jurisdiction
2. Sources - Rome statute Art. 12
- Custom —UDHR - Nottebohm
- Treaty - Nationality is a legal bond having as a social fact of attachment
- 1951 convention on refugee status 5. Institutions
- 1954 convention on stateless person status : stateless persons TREATMENT OF ALIENS
accorded the same treatment as is accorded to aliens generally 1. National Treatment
- 1961 convention on statelessness reduction (PH not a party) 2. International minimum standards
- General principles of la 1. ex. PH-Germany bilateral investment treaty
3. Subjects Requirements:
- States (1) Extradition treaty
- International Organisations (2) Double criminality
- Natural persons (3) Offense must be punishable under both laws

4. Substance
1. Nationality is possessed by natural persons as well as juridical persons
• Barcelona traction
• corporations and shareholders have separate personalities
• injury to corporation different from injury to shareholders
2. Nationality is within the domestic jurisdiction of a state
• 1919 covenant of the league of nations
• 1945 UN charter —no UN intervention in matters “essentially within the
domestic jurisdiction of any state”

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International Human Rights Law
- Human Rights: Inalienable and fundamental rights which are essential
for life as human beings
- 3 generations of human rights
1. Traditional Civil and fundamental rights
2. Social and economic rights
3. Right to peace, clean environment, self-determination, common
heritage of mankind, development, minority rights
The Covenant on Civil and Political Rights
Article 1
1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and
resources without prejudice to any obligations arising out of international
economic co-operation, based upon the principle of mutual benefit, and
international law. In no case may a people be deprived of its own means of
subsistence.
3. The States Parties to the present Covenant, including those having
responsibility for the administration of Non-Self-Governing and Trust Territories,
shall promote the realization of the right of self-determination, and shall respect
that right, in conformity with the provisions of the Charter of the United Nations.
Article 2
1. Each State Party to the present Covenant undertakes to respect and to ensure
to all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social origin,
property, birth or other status.
2. Where not already provided for by existing legislative or other measures, each
State Party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes and with the provisions of the
present Covenant, to adopt such laws or other measures as may be necessary to
give effect to the rights recognized in the present Covenant.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are
violated shall have an effective remedy, notwithstanding that the violation has
been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by
any other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when
granted.
Article 3
The States Parties to the present Covenant undertake to ensure the equal right
of men and women to the enjoyment of all civil and political rights set forth in the
present Covenant.
Article 4
1 . In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the present
Covenant to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may
be made under this provision.
3. Any State Party to the present Covenant availing itself of the right of
derogation shall immediately inform the other States Parties to the present
Covenant, through the intermediary of the Secretary-General of the United
Nations, of the provisions from which it has derogated and of the reasons by
which it was actuated. A further communication shall be made, through the same
intermediary, on the date on which it terminates such derogation.
Article 5
1. Nothing in the present Covenant may be interpreted as implying for any State,
group or person any right to engage in any activity or perform any act aimed at
the destruction of any of the rights and freedoms recognized herein or at their
limitation to a greater extent than is provided for in the present Covenant.
2. There shall be no restriction upon or derogation from any of the fundamental
human rights recognized or existing in any State Party to the present Covenant
pursuant to law, conventions, regulations or custom on the pretext that the
present Covenant does not recognize such rights or that it recognizes them to a
lesser extent.
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PART III
Article 6
1. Every human being has the inherent right to life. This right shall be protected
by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death
may be imposed only for the most serious crimes in accordance with the law in
force at the time of the commission of the crime and not contrary to the
provisions of the present Covenant and to the Convention on the Prevention and
Punishment of the Crime of Genocide. This penalty can only be carried out
pursuant to a final judgement rendered by a competent court.
3. When deprivation of life constitutes the crime of genocide, it is understood that
nothing in this article shall authorize any State Party to the present Covenant to
derogate in any way from any obligation assumed under the provisions of the
Convention on the Prevention and Punishment of the Crime of Genocide.
4. Anyone sentenced to death shall have the right to seek pardon or commutation
of the sentence. Amnesty, pardon or commutation of the sentence of death may
be granted in all cases.
5. Sentence of death shall not be imposed for crimes committed by persons
below eighteen years of age and shall not be carried out on pregnant women.
6. Nothing in this article shall be invoked to delay or to prevent the abolition of
capital punishment by any State Party to the present Covenant.
- On the more detailed aspects of physical liberty, and arrests and
detention found in A8,9,11 of the covenant, these are more adequately
covered by corresponding provisions in the Bill of rights
- Similarly, the rights of an accused detailed in A14 and 15 have long
been part of the PH accusatory system in the Constitution
1. All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent,
independent and impartial tribunal established by law. The press and the public
may be excluded from all or part of a trial for reasons of morals, public order
(ordre public) or national security in a democratic society, or when the interest of
the private lives of the parties so requires, or to the extent strictly necessary in
the opinion of the court in special circumstances where publicity would prejudice
the interests of justice; but any judgement rendered in a criminal case or in a suit
at law shall be made public except where the interest of juvenile persons
otherwise requires or the proceedings concern matrimonial disputes or the
guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be
entitled to the following minimum guarantees, in full equality: (a) To be informed
promptly and in detail in a language which he understands of the nature and
cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal
assistance, of this right; and to have legal assistance assigned to him, in any
case where the interests of justice so require, and without payment by him in any
such case if he does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak
the language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take
account of their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and
sentence being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence
and when subsequently his conviction has been reversed or he has been
pardoned on the ground that a new or newly discovered fact shows conclusively
that there has been a miscarriage of justice, the person who has suffered
punishment as a result of such conviction shall be compensated according to
law, unless it is proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he
has already been finally convicted or acquitted in accordance with the law and
penal procedure of each country.
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Article 15
1 . No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence, under national or
international law, at the time when it was committed. Nor shall a heavier penalty
be imposed than the one that was applicable at the time when the criminal
offence was committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter penalty, the offender
shall benefit thereby.
2. Nothing in this article shall prejudice the trial and punishment of any person for
any act or omission which, at the time when it was committed, was criminal
according to the general principles of law recognized by the community of
nations.
- The guaranty of equality is found in A26. It is the bill of rights’ more terse
“equal protection” clause in A3S1
Article 26
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
Torture, Ill-treatment and Prison Conditions
Article 7
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free consent to
medical or scientific experimentation.
Article 10
1. All persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person.
2.
(a) Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons and shall be subject to separate treatment appropriate to
their status as unconvicted persons;
(b) Accused juvenile persons shall be separated from adults and brought as
speedily as possible for adjudication.
3. The penitentiary system shall comprise treatment of prisoners the essential
aim of which shall be their reformation and social rehabilitation. Juvenile
offenders shall be segregated from adults and be accorded treatment appropriate
to their age and legal status.
Freedom of Movement
Article 12
1. Everyone lawfully within the territory of a State shall, within that territory, have
the right to liberty of movement and freedom to choose his residence.
2. Everyone shall be free to leave any country, including his own.
Legal Personality, privacy and Family
Article 16
Everyone shall have the right to recognition everywhere as a person before the
law.
Article 17
1. No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
2. Everyone has the right to the protection of the law against such interference or
attacks.
Thought, conscience, religion, expression and political freedoms
Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in public
or private, to manifest his religion or belief in worship, observance, practice and
teaching.
2. No one shall be subject to coercion which would impair his freedom to have or
to adopt a religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedoms of others.
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4. The States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the religious
and moral education of their children in conformity with their own convictions.
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless
of frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with
it special duties and responsibilities. It may therefore be subject to certain
restrictions, but these shall only be such as are provided by law and are
necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of
public health or morals.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be
placed on the exercise of this right other than those imposed in conformity with
the law and which are necessary in a democratic society in the interests of
national security or public safety, public order (ordre public), the protection of
public health or morals or the protection of the rights and freedoms of others.
Associations and Unions
Article 22
1. Everyone shall have the right to freedom of association with others, including
the right to form and join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those
which are prescribed by law and which are necessary in a democratic society in
the interests of national security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and freedoms
of others. This article shall not prevent the imposition of lawful restrictions on
members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour
Organisation Convention of 1948 concerning Freedom of Association and
Protection of the Right to Organize to take legislative measures which would
prejudice, or to apply the law in such a manner as to prejudice, the guarantees
provided for in that Convention.
Minorities
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons
belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise
their own religion, or to use their own language.
Self-determination of peoples
Article 1
1. All peoples have the right of self-determination. By virtue of that right they
freely determine their political status and freely pursue their economic, social and
cultural development.
Optional protocol on the ICCPR
- Designed to enable private parties who are victims of HR violations
- Complaints may only be filed against states that have ratified the
protocol
- PH has ratified the protocol
Covenant on Economic, Social and Cultural Rights
Article 2
1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation, especially
economic and technical, to the maximum of its available resources, with a view to
achieving progressively the full realization of the rights recognized in the present
Covenant by all appropriate means, including particularly the adoption of
legislative measures.
- What governs is the principle of “progressive realization” –while limited
by resource constraints, priority is on social welfare
- Key words: cooperation and assistance
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International Humanitarian Law
- International humanitarian law (IHL) regulates relations between States,
international organizations and other subjects of international law. It is a
branch of public international law that consists of rules that, in times of
armed conflict, seek – for humanitarian reasons – to protect persons
who are not or are no longer directly participating in the hostilities, and to
restrict means and methods of warfare
- Source: Treaty and custom
- 2 branches:Law of Geneva and Law of the Hague
- IHL is a compromise between two underlying principles, of humanity and
of military necessity. These two principles shape all its rules
- The parties to a conflict must at all times distinguish between civilians
and combatants in order to spare the civilian population and civilian
property. Neither the civilian population as a whole nor individual
civilians may be attacked.
- Jus ad bellum refers to the conditions under which States may resort to
war or to the use of armed force in general. The prohibition against the
use of force amongst States and the exceptions to it (self-defence and
UN authorization for the use of force), set out in the United Nations
Charter of 1945, are the core ingredients of jus ad vellum
- Jus in bello regulates the conduct of parties engaged in an armed
conflict. IHL is synonymous with jus in bello; it seeks to minimize
suffering in armed conflicts, notably by protecting and assisting all
victims of armed conflict to the greatest extent possible.
- IHL applies to the belligerent parties irrespective of the reasons for the
conflict or the justness of the causes for which they are fighting. If it were
otherwise, implementing the law would be impossible, since every party
would claim to be a victim of aggression
- “The responsibility to protect is a principle which seeks to ensure that the
international community never again fails to act in the face of genocide
and other gross forms of human rights abuse. “R2P,” as it is commonly
abbreviated, was adopted by heads of state and government at the
World Summit in 2005 sitting as the United Nations General Assembly.
The principle stipulates, first, that states have an obligation to protect
their citizens from mass atrocities; second, that the international
community should assist them in doing so; and, third, that, if the state in
question fails to act appropriately, the responsibility to do so falls to that
larger community of state
- Such action can take various forms: diplomacy, humanitarian measures
or other peaceful means; it can also, as a last resort, involve the use of
force, but only after the UN Security Council’s authorization. Although
R2P is referred to sometimes as an “emerging norm,” it is not a binding
legal obligation committing the international community, but a political
instrument.
- IHL applies only in situations of armed conflict. It offers two systems of
protection: one for international armed conflict and another for non-
international armed conflict. The rules applicable in a specific situation
will therefore depend on the classification of the armed conflict.
- restrict means and methods of warfare among combatants to reduce ill-
effects on non-combatants
- limit the effects of armed conflict for humanitarian reasons
- These rules also limit the manner of harming
- In case of armed conflict does HR law apply? YES.
- Can they apply to the same territory? YES
- HR rights laws apply all the time but IHL applies only during times of war.
HL allow for derogation/ suspension but only in very specific instances
(e.g. public emergency threatening the life of the nation)
Purpose of IHL
- Do you use IHL to see whether a state’s use of force is lawful or not?
JUS IN BELLO —law during war, regulates use of force against
combatants, non-combatants and property
JUS AD BELLO —law of (regarding) war, regulates us of force of
states, against another state
Art. 2(4) UN Charter all members shall refrain in their IR
from the threat or use of force against the territorial
integrity or political independence of any state
Humanitarian Law: Lex specialis
B. Material scope (rationae materiae) —whenever there is armed conflict
C. Temporal scope (rationae temporae) —from start of armed conflict
But when will the application of IHL end? When there is no more conflict
But if there is a lull do they still apply? YES. until “the general close of
military operations”
- Territorial scope —what territory is covered? location of actual combat is
irrelevant; International: entire territory of states involved; non international:
entire territory under control of a party involved
Concepts
- Armed conflict: Same as war? NO.
Armed conflict: hostilities between armed groups
War = hostilities between the armed forces of states + declaration of
war
but when there is either war/ ac, IHL still applies
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Sources ADDITIONAL PROTOCOL 1 applies to armed conflicts “which take place in the
- Treaty and customs of war territory of a High Contracting Party between its armed forces and dissident
- Treaties: Geneva Convention, armed forces at sea, rules for handling armed forces or other organized armed groups which, under responsible
prisoners of war, protection of civilians, Hague conventions (enforced treaties) command, exercise such control over a part of its territory as to enable them to
- Additional protocol I and II (I—international armed conflict, II- dissident armed carry out sustained and concerted military operations and to implement this
conflict under responsible command, exercising control, carrying out Protocol.” (See Article 1, paragraph 1, of Additional Protocol II.) The definition of
sustained activity, capable of implementation) an NIAC in Additional Protocol II is narrower than the notion of NIAC under
- Common art. 3 —applies to conflicts not of an international character common Article 3 in two aspects.
- Custom: Martens clause
It introduces a requirement of territorial control, by providing that organized non-
Subjects State armed groups must exercise such territorial control “as to enable them to
- States —if its a treaty? parties to the convention custom? everybody carry out sustained and concerted military operations and to implement this
- Armed groups Protocol.”
- Natural persons
- International organizations
Additional Protocol II expressly applies only to armed conflicts between State
When does IHL apply?
armed forces and dissident armed forces or other organized armed groups.
Unlike common Article 3, Additional Protocol II does not apply to armed conflicts
(1) International Armed Conflict between organized non-State armed groups.

(2) Non- International Armed Conflict

applies to “armed conflicts not of an international character occurring in the

territory of one of the High Contracting Parties.” These include armed conflicts in
which one or more organized non-State armed groups are involved. NIACs may
occur between State armed forces and organized non-State armed groups or
only between such groups

Many armed conflicts today are non-international in nature. An NIAC is an armed

conflict in which hostilities are taking place between the armed forces of a State
and organized non-State armed groups, or between such groups. For hostilities
to be considered an NIAC, they must reach a certain level of intensity and the
groups involved must be sufficiently organised.

COMMON ARTICLE III applies to “armed conflicts not of an international

character occurring in the territory of one of the High Contracting Parties.” These
include armed conflicts in which one or more organized non-State armed groups
are involved. NIACs may occur between State armed forces and organized non-
State armed groups or only between such groups. (look at p. 25)

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Substance
2 kinds of IAC
- Involving states (low threshold for hostilities)
3. Armed conflict between states
4. Declared war, not recognised by one
5. Occupation (total or partial) by a states
6. even if the state of war is not recognised by one of them
(2) not involving states
(4) What are the elements of API -Art.1(4): AP1 state party v authority
representing a people
Engaged in a struggle against colonial domination, foreign
occupation, racist regimes
(5) Non-international armed conflict
PROSECUTOR v TADIC (ICTY) “protracted armed violence) between state-
organised armed groups —government, between such groups in a state
Conflict under APII
- high level of intensity and organisation
“Internationalized Armed Conflict”
- What kind of involvement ? armed troops act like proxies
- but not necessary that the state directs every attack
- Prosecutor v Tadic: “overall control test”
- State intervenes indirectly in a non-international armed conflict on the side of
the rebels
WHO DOES IHL PROTECT?
CIVILIANS are entitled to protection in two different situations. First, they enjoy
general protection against dangers arising from hostilities. (See Question 11.)
Civilians, defined as all persons who are not combatants (see definition of
‘combatants’ below), must not be the object of attacks. The only exceptions to
this rule are civilians who directly participate in hostilities, for example, by taking
up arms against the enemy. In such instances, they may be targeted for attack,
but only so long as they directly participate in hostilities
Second, civilians are ‘protected persons’ under IHL when in the hands of a party
to the conflict, provided that:
2. they are not nationals of this enemy State
3. they are not nationals of an ally of this enemy State (unless these two States
do not enjoy normal diplomatic relations)
4. they are not nationals of a neutral State, i.e. a non-belligerent State (unless
these two States do not enjoy normal diplomatic relations). In occupied
territories, however, nationals of a neutral State are always protected
persons
Combatants hors de combat Although they do enjoy protection from superfluous
injury or unnecessary suffering, combatants are not protected against the effects
of hostilities. (See Question 12.) Thus, they can be attacked unless they are hors
de combat. All members of the armed forces of a party to the conflict (except
medical and religious personnel) are defined as ‘combatants’. The armed forces
of a party to a conflict consist of all organized armed forces, groups and units that
are under a command responsible to that party for the conduct of its
WHO IS BOUND BY IHL? (p.31)
All parties to an armed conflict – whether States or organized non-State armed
groups – are bound by treaty and customary rules of IHL. Rules of customary IHL
apply at all times to all parties, irrespective of their ratification of IHL treaties.
Geographical scope of application
Another major difference between IHL and human rights law is their
extraterritorial reach. That IHL governing international armed conflicts applies
extraterritorially is not a subject of controversy, given that its purpose is to
regulate the conduct of one or more States involved in an armed conflict on the
territory of another. The same reasoning applies in non-international armed
conflicts with an extraterritorial element: the parties to such conflicts cannot be
absolved of their IHL obligations when the conflict reaches beyond the territory of
a single State. Despite the views of a few important dissenters, it is widely
accepted that human rights law applies extraterritorially based, inter alia, on
decisions by regional and international courts. The precise extent of such
application, however, is yet to be determined. Human rights bodies generally
admit the extraterritorial application of human rights law when a State exercises
control over a territory (e.g. occupation) or a person (e.g. detention). Human
rights case law is unsettled, however, on the extraterritorial application of human
rights norms governing the use of force.
Personal scope of application
IHL aims to protect persons who are not or are no longer taking direct part in
hostilities. It protects civilians and combatants hors de combat, such as the
wounded, the sick and the shipwrecked or prisoners of war.
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Human rights law, developed primarily for peacetime, applies to all persons Fundamental principles
within the jurisdiction of a State. Unlike IHL, it does not distinguish between
combatants and civilians or provide for categories of ‘protected person’. (1) proportionality —should not cause too much collateral damage
(2) Distinction —Art.48, API
Parties bound by IHL and human rights law a. Military objective
(3) Necessity —justified only to the extent that it achieves a military goal
IHL binds all parties to an armed conflict and thus establishes an equality of Enforcement
rights and obligations between the State and the non-State side for the benefit of 1. education
everyone who may be affected by their conduct (an essentially ‘horizontal’ 2. legislation
relationship). 3. prosecution
a. National prosecution
i) Kuroda v Jalandoni —even if you don’t have
Human rights law explicitly governs the relationship between a State and persons national jurisdiction may use customary rules
who are on its territory and/or subject to its jurisdiction (an essentially ‘vertical’ ii) International prosecution
relationship), laying out the obligations of States vis à vis individuals across a
wide spectrum of conduct. International Criminal Law
A concise History of International Criminal Law
Thus, human rights law binds only States, as evidenced by the fact that human - The ICC has jurisdiction over war crimes, crimes against humanity, and
rights treaties and other sources of human rights standards do not create legal genocide as defined by its Statute. Although the crimes against the
obligations for non-State armed groups. The reason for this is that most groups of peace charge was the lynchpin of the Nuremberg Indictment and Trial,
this kind are unable to comply with the full range of obligations under human the crime of aggression has eluded modern definition. Drafters of the
rights law because, unlike governments, they cannot carry out the functions on ICC Statute were unable to come up with a consensus definition of
which the implementation of human rights norms is premised. There is a notable aggression in time for the treaty to be opened for signature, so they
exception to this generalization about non-State armed groups: those cases in punted.
which a group, usually by virtue of stable control of territory, has the ability to act Republic Act No. 9745
like a State authority and where its human rights responsibilities may therefore be AN ACT PENALIZING TORTURE AND OTHER CRUEL, INHUMAN AND
recognized de facto. DEGRADING TREATMENT OR PUNISHMENT AND PRESCRIBING
PENALTIES THEREFOR
Substantive scope of application
Section 4.Acts of Torture. - For purposes of this Act, torture shall include, but not
be limited to, the following:
IHL and human rights law share common substantive rules (such as the
prohibition of torture), but they also contain very different provisions. IHL deals
(a) Physical torture is a form of treatment or punishment inflicted by a
with many issues that are outside the purview of human rights law, such as the
person in authority or agent of a person in authority upon another in
status of ‘combatants’ and ‘prisoners of war’, the protection of the red cross and
his/her custody that causes severe pain, exhaustion, disability or
red crescent emblems and the legality of specific kinds of weapon. Similarly,
dysfunction of one or more parts of the body, such as:
human rights law deals with aspects of life that are not regulated by IHL, such as
the freedom of the press, the right to assembly, to vote, to strike, and other
matters (1) Systematic beating, headbanging, punching, kicking, striking
with truncheon or rifle butt or other similar objects, and jumping
on the stomach;

(2) Food deprivation or forcible feeding with spoiled food, animal

or human excreta and other stuff or substances not normally
eaten;

(3) Electric shock;

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(4) Cigarette burning; burning by electrically heated rods, hot oil,
acid; by the rubbing of pepper or other chemical substances on
mucous membranes, or acids or spices directly on the
wound(s);
(5) The submersion of the head in water or water polluted with
excrement, urine, vomit and/or blood until the brink of
suffocation;
(6) Being tied or forced to assume fixed and stressful bodily
position;
(7) Rape and sexual abuse, including the insertion of foreign
objects into the sex organ or rectum, or electrical torture of the
genitals;
(8) Mutilation or amputation of the essential parts of the body
such as the genitalia, ear, tongue, etc.;
(9) Dental torture or the forced extraction of the teeth;
(10) Pulling out of fingernails;
(11) Harmful exposure to the elements such as sunlight and
extreme cold;
(12) The use of plastic bag and other materials placed over the
head to the point of asphyxiation;
(13) The use of psychoactive drugs to change the perception,
memory. alertness or will of a person, such as:
(i) The administration or drugs to induce confession and/or
reduce mental competency; or
(ii) The use of drugs to induce extreme pain or certain
symptoms of a disease; and
(14) Other analogous acts of physical torture; and
(b) "Mental/Psychological Torture" refers to acts committed by a person
in authority or agent of a person in authority which are calculated to
affect or confuse the mind and/or undermine a person's dignity and
morale, such as:
(1) Blindfolding;
(2) Threatening a person(s) or his/fher relative(s) with bodily
harm, execution or other wrongful acts;
(3) Confinement in solitary cells or secret detention places;
(4) Prolonged interrogation;
(5) Preparing a prisoner for a "show trial", public display or
public humiliation of a detainee or prisoner;
(6) Causing unscheduled transfer of a person deprived of liberty
from one place to another, creating the belief that he/she shall
be summarily executed;
(7) Maltreating a member/s of a person's family;
(8) Causing the torture sessions to be witnessed by the person's
family, relatives or any third party;
(9) Denial of sleep/rest;
(10) Shame infliction such as stripping the person naked,
parading him/her in public places, shaving the victim's head or
putting marks on his/her body against his/her will;
(11) Deliberately prohibiting the victim to communicate with any
member of his/her family; and
(12) Other analogous acts of mental/psychological torture.
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Section 5. Other Cruel, Inhuman and Degrading Treatment or Punishment. -
Other cruel, inhuman or degrading treatment or punishment refers to a deliberate
and aggravated treatment or punishment not enumerated under Section 4 of this
Act, inflicted by a person in authority or agent of a person in authority against
another person in custody, which attains a level of severity sufficient to cause
suffering, gross humiliation or debasement to the latter. The assessment of the
level of severity shall depend on all the circumstances of the case, including the
duration of the treatment or punishment, its physical and mental effects and, in
some cases, the sex, religion, age and state of health of the victim.
(9) Unjustifiable delay in the repatriation of prisoners of war or
other protected persons.
(b) In case of a non-international armed conflict, serious violations of
common Article 3 to the four (4) Geneva Conventions of 12 August
1949, namely , any of the following acts 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;

Republic Act No. 9851

(1) Violence to life and person, in particular, willful killings,
mutilation, cruel treatment and torture;
Section 4. War Crimes. - For the purpose of this Act, "war crimes" or "crimes
against Interntional Human Humanitarian Law" means:
(2) Committing outrages upon personal dignity, in particular,
humiliating and degrading treatment;
(a) In case of an international armed conflict , grave breaches of the
Geneva Conventions of 12 August 1949, namely, any of the following
(3) Taking of hostages; and
acts against persons or property protected under provisions of the
relevant Geneva Convention:
(4) The passing of sentences and the carrying out of executions
(1) Willful killing; without previous judgment pronounced by a regularly
constituted court, affording all judicial guarantees which are
generally recognized as indispensable.
(2) Torture or inhuman treatment, including biological
experiments;
(c) Other serious violations of the laws and customs applicable in armed
conflict, within the established framework of international law, namely:
(3) Willfully causing great suffering, or serious injury to body or
health;
(1) Internationally directing attacks against the civilian
population as such or against individual civilians not taking
(4) Extensive destruction and appropriation of property not direct part in hostilities;
justified by military necessity and carried out unlawfully and
wantonly;
(2) Intentionally directing attacks against civilian objects, that is,
object which are not military objectives;
(5) Willfully depriving a prisoner of war or other protected
person of the rights of fair and regular trial;
(3) Intentionally directing attacks against buildings, material,
medical units and transport, and personnel using the distinctive
(6) Arbitrary deportation or forcible transfer of population or emblems of the Geneva Conventions or Additional Protocol III in
unlawful confinement; conformity with intentional law;

(7) Taking of hostages;

(8) Compelling a prisoner a prisoner of war or other protected

person to serve in the forces of a hostile power; and

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(4) Intentionally directing attacks against personnel,
installations, material, units or vehicles involved in a
humanitarian assistance or peacekeeping mission in
accordance with the Charter of the United Nations, as ling as
they are entitled to the protection given to civilians or civilian
objects under the international law of armed conflict;
(5) Launching an attack in the knowledge that such attack will
cause incidental loss of life or injury to civilians or damage to
civilian objects or widespread, long-term and severe damage to
the natural environment which would be excessive in relation to
the concrete and direct military advantage anticipated;
(6) Launching an attack against works or installations containing
dangerous forces in the knowledge that such attack will cause
excessive loss of life, injury to civilians or damage to civilian
objects, and causing death or serious injury to body or health .
(7) Attacking or bombarding, by whatever means, towns,
villages, dwellings or buildings which are undefended and which
are not military objectives, or making non-defended localities or
demilitarized zones the object of attack;
(8) Killing or wounding a person in the knowledge that he/she
is hors de combat, including a combatant who, having laid down
his/her arms or no longer having means of defense, has
surrendered at discretion;
(9) Making improper use of a flag of truce, of the flag or the
military insignia and uniform of the enemy or of the United
Nations, as well as of the distinctive emblems of the Geneva
Conventions or other protective signs under International
Humanitarian Law, resulting in death, serious personal injury or
capture;
(10) Intentionally directing attacks against buildings dedicated to
religion, education, art, science or charitable purposes, historic
monuments, hospitals and places where the sick and wounded
are collected, provided they are not military objectives. In case
of doubt whether such building or place has been used to make
an effective contribution to military action, it shall be presumed
not to be so used;
(11) Subjecting persons who are in the power of an adverse
party to physical mutilation or to medical or scientific
experiments of any kind, or to removal of tissue or organs for
transplantation, which are neither justified by the medical, dental
or hospital treatment of the person concerned nor carried out in
his/her interest, and which cause death to or seriously endanger
the health of such person or persons;
(12) Killing, wounding or capturing an adversary by resort to
perfidy;
(13) Declaring that no quarter will be given;
(14) Destroying or seizing the enemy's property unless such
destruction or seizure is imperatively demanded by the
necessities of war;
(15) Pillaging a town or place, even when taken by assault;
(16) Ordering the displacements of the civilian population for
reasons related to the conflict, unless the security of the
civilians involved or imperative military reasons so demand;
(17) Transferring, directly or indirectly, by the occupying power
of parts of its own civilian population into the territory it
occupies, or the deportation or transfer of all or parts of the
population of the occupied territory within or outside this
territory;
(18) Commiting outrages upon personal dignity, in particular,
humiliating and degrading treatments;
(19) Commiting rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any other form of
sexual violence also constituting a grave breach of the Geneva
Conventions or a serious violation of common Article 3 to the
Geneva Convensions;
(20) Utilizing the presence of a civilian or other protected person
to render certain points, areas or military forces immune from
military operations;
(21) Intentionally using starvation of civilians as a method of
warfare by depriving them of objects indespensable to their
survival, including willfully impeding relief supplies as provided
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for under the Geneva Conventions and their Additional
Protocols;
(22) In an international armed conflict, compelling the nationals
of the hostile party to take part in the operations of war directed
against their own country, even if they were in the belligerent's
service before the commencement of the war;
(23) In an international armed conflict, declaring abolished,
suspended or inadmissible in a court of law the rights and
actions of the nationals of the hostile party;
(24) Commiting any of the following acts:
(i) Conscripting, enlisting or recruiting children under
the age of fifteen (15) years into the national armed
forces;
(ii) Conscripting, enlisting or recruiting children under
the age of eighteen (18) years into an armed force or
group other than the national armed forces; and
(iii) Using children under the age of eighteen (18) years
to participate actively in hostilities; and
(25) Employing means of warfare which are prohibited under
international law, such as:
(i) Poison or poisoned weapons;
(ii) Asphyxiating, poisonous or other gases, and all
analogous liquids, materials or devices;
(iii) Bullets which expand or flatten easily in the human
body, such as bullets with hard envelopes which do not
entirely cover the core or are pierced with incisions;
and
(iv) Weapons, projectiles and material and methods of
warfare which are of the nature to cause superfluous
injury or unecessary suffering or which are inherently
indiscriminate in violation of the international law of
armed conflict.
Any person found guilty of commiting any of the acts specified herein
shall suffer the penalty provided under Section 7 of this Act.
Section 5. Genocide - (a) For the purpose of this Act, "genocide" means any of
the following acts with intent to destroy, in whole or in part, a national, ethnic,
racial, religious, social or any other similar stable and permanent group as such:
(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.
(b) It shall be unlawful for any person to directly and publicly incite others
to commit genocide.
Any person found guilty of committing any of the acts specified in paragraphs (a)
and (b) of this section shall suffer the penalty provided under Section 7 of this
Act.
Section 6. Other Crimes Against Humanity. - For the purpose of this act, "other
crimes against humanity" means any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population,
with knowledge of the attack:
(a) Willful killing;
(b) Extermination;
(c) Enslavement;
(d) Arbitrary deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
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(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable
gravity;
(h) Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender, sexual orientation or
other grounds that are universally recognized as impermissible under
international law, in connection with any act referred to in this paragraph
or any crime defined in this Act;
(i) Enforced or involuntary disappearance of persons;
(j) Apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
Any person found guilty of committing any of the acts specified herein shall suffer
the penalty provided under Section 7 of this Act.
The Genocide Convention
Article II
In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such : (a) Killing members of the group; (£) Causing serious bodily or
mental harm to members of the group; (e) Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in
part; (rf) Imposing measures intended to prevent births within the group; (e)
Forcibly transferring children of the group to another group
Article VII
acts enumerated in article III shall not be considered as political crimes for the
purpose of extradition. The Contracting Parties pledge themselves in such cases
to grant extradition in accordance with their laws and treaties in force.
NEWSFLASH!!!
ICC to launch ‘preliminary examination on the war on drugs’
- Presidential Spokesperson Harry Roque said the government has been
informed that the ICC has decided to conduct a preliminary examination
on the government’s anti-illegal drugs drive to determine if there was a
basis to conduct a formal investigation into allegations that Duterte
committed crimes against humanity.
“Rome Statute Violates PH Charter”
- Lawyer Salvador Panelo claimed that under the Rome Statute, heads of
state cannot invoke immunity from prosecution – something that he said
goes against the Philippine Charter which states that a sitting President
cannot be sued.
- Panelo also claimed that under the treaty, ratified by the Philippine
Senate in 2011, the prosecutor can make an appeal after the accused is
acquitted.
- The ICC announced in February that it would conduct a preliminary
examination of the deaths tied to President Duterte’s war on illegal
drugs. The international tribunal was acting on a communication by
lawyer Jude Sabio, who claimed Duterte was behind the deaths of more
than 7,000 suspected drug personalities.
- Duterte responded by withdrawing the Philippines’ ratification of the
Rome Statute and accusing officials of the ICC and the United Nations of
making “outrageous attacks” against him.
- The Duterte administration said the Rome Statute is not binding on the
Philippines because it was not published in the Official Gazette, the
government’s official publication.
- Some legal experts dispute this, saying publication is not needed for a
treaty to take effect.
- After a preliminary investigation, the prosecutor would have to go to the
pre-trial chamber of the Court for confirmation of charges before the
charges can even be filed in the Court. The pre-trial chamber is an
innovation, it’s the only chamber found in any Court in this planet,” he
noted.
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Duterte's statement on Int'l Criminal Court withdrawal
- Due process of law has been defined as a process that hears before it
condemns. It affords the accused the opportunity to be heard, to be
informed of the nature of the offense charged, and a reasonable time to
prepare for his defense.
- For a person to be charged with a criminal offense, there must be a law
that shall specify a particular act as criminal with an imposition of a
corresponding penalty:
- How can the accused be informed of the nature of the offense, if he is
not aware of the same because the law penalizing the act he is being
charged with has not seen the light of day by way of a publication as
required by law?
- In our jurisdiction, our country adopts the generally accepted principles
of international law – and in fact they are deemed to be part of the law of
the land.
- The constitutional provision above-quoted however is not absolute as
any principle of international law even if generally accepted, if it
contravenes our Constitution, cannot supplant nor diminish the
Philippine Constitution.
- Domestic laws are supreme over international law unless the former are
violative of internationally recognized principles of justice.
- The Special Prosecutor is also aware that national jurisdictions have the
primary responsibility to investigate and prosecute those responsible for
international crimes – as in her public declaration she recognized such
basic principle, thus, she stated:
- Moreover, the International Criminal Court’s Special Prosecutor is
likewise aware that before placing the national under investigation, she
must first reconsider issues of whether or not the International Criminal
Court has jurisdiction over the person or the subject-matter complained
of; whether or not the evidence submitted to it in relation thereto passes
the rules on admissibility; and whether or not it is in the interest of justice
Arresting ICC prosecutor could get Duterte in more legal trouble, says lawyer
that she makes such determination as shown in her public statement, to
wit:
- Given these foregoing considerations I cannot help but believe that the
International Criminal Court’s Special Prosecutor’s premature public
statements was intended to foist to the world that I am being subjected
now to an investigation for crimes falling under the International Criminal
Court’s jurisdiction.
- Let us tackle the questions on jurisdiction of the International Criminal
Court, assuming that the preliminary examination ripens into an informed
determination that there is a reasonable basis to proceed with an
investigation pursuant to the criteria established by the Rome Statute.
Does the International Criminal Court have jurisdiction over the subject
matter? The answer must be in the negative.
- The jurisdiction of the International Criminal Court is limited to the most
serious of crimes in the international community a.) crime of genocide b.)
crime against humanity c.) war crimes and d.) crime of aggression
- The crime of genocide cannot be said to be applicable because the act
must be committed with intent to destroy in whole or in part a national
ethnical, racial or religious group as such:
- What about the International Criminal Court’s jurisdiction over my
person? Does the International Criminal Court have jurisdiction?
- In our jurisdiction, it is required that a law before it takes effect, the same
must be either published in the Official Gazette or in a newspapers of
general circulation.
- There being no jurisdiction of the said law, it stands to reason that the
Rome Statute cannot be enforceable in the Philippines hence the
International Criminal Court has not acquired jurisdiction nor can it
acquire jurisdiction over my person.
- A127 is not applicable in so far as the effectivity of the withdrawal of the
Philippines as a signatory to the Rome Statute is concerned, for the
reason that there appears to be fraud in entering into such agreement.
- The Philippines in ratifying the Rome Statute was made to believe that
the principle of complementarity shall be observed; that the principle of
due process and the presumption of innocence as mandated by our
Constitution and the Rome Statute shall prevail; and that the legal
requirement of publication to make the Rome Statute enforceable shall
be maintained.
- President Rodrigo Duterte cannot just order the arrest of a prosecutor of
the International Criminal Court (ICC) without repercussions.
- Carranza stressed that the withdrawal would take effect only after a year
based on the Rome Statute provisions.
- During the period, he added, the ICC prosecutor could still open an
investigation about the alleged extrajudicial killings in the Philippines
until March 2019, without the question of jurisdiction.
- Carranza said the ICC prosecutor might not have to physically go to the
President to open an investigation.
- The prosecutor, he added, could use the documentation from media
coverage to establish patterns in the killings under the drug war.
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Use of Force
Art.2(4) UN Charter
Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1,
shall act in accordance with the following Principles.
(1) The Organization is based on the principle of the sovereign equality of
all its Members.
(2) All Members, in order to ensure to all of them the rights and benefits
resulting from membership, shall fulfill in good faith the obligations
assumed by them in accordance with the present Charter.
(3) All Members shall settle their international disputes by peaceful means in
such a manner that international peace and security, and justice, are not
endangered.
(4) 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.
(5) All Members shall give the United Nations every assistance in any action
it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking
preventive or enforcement action.
(6) The Organization shall ensure that states which are not Members of the
United Nations act in accordance with these Principles so far as may be
necessary for the maintenance of international peace and security.
(7) Nothing contained in the present Charter shall authorize the United
Nations to intervene in matters which are essentially within the domestic
jurisdiction of any state or shall require the Members to submit such
matters to settlement under the present Charter; but this principle shall
not prejudice the application of enforcement measures under Chapter
Vll.
CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE,
BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or
decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may,
before making the recommendations or deciding upon the measures provided for
in Article 39, call upon the parties concerned to comply with such provisional
measures as it deems necessary or desirable. Such provisional measures shall
be without prejudice to the rights, claims, or position of the parties concerned.
The Security Council shall duly take account of failure to comply with such
provisional measures.
Article 41
The Security Council may decide what measures not involving the use of armed
force are to be employed to give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may take such action by
air, sea, or land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade, and
other operations by air, sea, or land forces of Members of the United Nations.
Article 43
5. All Members of the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the
Security Council, on its call and in accordance with a special agreement
or agreements, armed forces, assistance, and facilities, including rights
of passage, necessary for the purpose of maintaining international
peace and security.
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6. Such agreement or agreements shall govern the numbers and types of forces,
their degree of readiness and general location, and the nature of the
facilities and assistance to be provided.
7. The agreement or agreements shall be negotiated as soon as possible on the
initiative of the Security Council. They shall be concluded between the
Security Council and Members or between the Security Council and
groups of Members and shall be subject to ratification by the signatory
states in accordance with their respective constitutional processes.
Article 44
When the Security Council has decided to use force it shall, before calling upon a
Member not represented on it to provide armed forces in fulfilment of the
obligations assumed under Article 43, invite that Member, if the Member so
desires, to participate in the decisions of the Security Council concerning the
employment of contingents of that Member's armed forces.
Article 45
In order to enable the United Nations to take urgent military measures, Members
shall hold immediately available national air-force contingents for combined
international enforcement action. The strength and degree of readiness of these
contingents and plans for their combined action shall be determined within the
limits laid down in the special agreement or agreements referred to in Article 43,
by the Security Council with the assistance of the Military Staff Committee.
Article 46
Plans for the application of armed force shall be made by the Security Council
with the assistance of the Military Staff Committee.
Article 47
- There shall be established a Military Staff Committee to advise and assist the
Security Council on all questions relating to the Security Council's
military requirements for the maintenance of international peace and
security, the employment and command of forces placed at its disposal,
the regulation of armaments, and possible disarmament.
-
- The Military Staff Committee shall consist of the Chiefs of Staff of the
permanent members of the Security Council or their representatives.
Any Member of the United Nations not permanently represented on the
Committee shall be invited by the Committee to be associated with it
when the efficient discharge of the Committee's responsibilities requires
the participation of that Member in its work.
- The Military Staff Committee shall be responsible under the Security Council
for the strategic direction of any armed forces placed at the disposal of
the Security Council. Questions relating to the command of such forces
shall be worked out subsequently.
- The Military Staff Committee, with the authorization of the Security Council and
after consultation with appropriate regional agencies, may establish
regional sub-committees.
Article 48
D. The action required to carry out the decisions of the Security Council for the
maintenance of international peace and security shall be taken by all the
Members of the United Nations or by some of them, as the Security
Council may determine.
E. Such decisions shall be carried out by the Members of the United Nations
directly and through their action in the appropriate international agencies
of which they are members.
Article 49
The Members of the United Nations shall join in affording mutual assistance in
carrying out the measures decided upon by the Security Council.
Article 50
If preventive or enforcement measures against any state are taken by the
Security Council, any other state, whether a Member of the United Nations or not,
which finds itself confronted with special economic problems arising from the
carrying out of those measures shall have the right to consult the Security
Council with regard to a solution of those problems.
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Article 51
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of
this right of self-defence 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.
CHAPTER VIII: REGIONAL ARRANGEMENTS
Article 52
- Nothing in the present Charter precludes the existence of regional
arrangements or agencies for dealing with such matters relating to the
maintenance of international peace and security as are appropriate for
regional action provided that such arrangements or agencies and their
activities are consistent with the Purposes and Principles of the United
Nations.
- The Members of the United Nations entering into such arrangements or
constituting such agencies shall make every effort to achieve pacific
settlement of local disputes through such regional arrangements or by
such regional agencies before referring them to the Security Council.
- The Security Council shall encourage the development of pacific settlement of
local disputes through such regional arrangements or by such regional
agencies either on the initiative of the states concerned or by reference
from the Security Council.
- This Article in no way impairs the application of Articles 34 and 35.
Article 53
- The Security Council shall, where appropriate, utilize such regional
arrangements or agencies for enforcement action under its authority. But
no enforcement action shall be taken under regional arrangements or by
regional agencies without the authorization of the Security Council, with
the exception of measures against any enemy state, as defined in
paragraph 2 of this Article, provided for pursuant to Article 107 or in
regional arrangements directed against renewal of aggressive policy on
the part of any such state, until such time as the Organization may, on
request of the Governments concerned, be charged with the
responsibility for preventing further aggression by such a state.
- The term enemy state as used in paragraph 1 of this Article applies to any
state which during the Second World War has been an enemy of any
signatory of the present Charter.
Article 54
The Security Council shall at all times be kept fully informed of activities
undertaken or in contemplation under regional arrangements or by regional
agencies for the maintenance of international peace and security.
8. Section 2, Article II, Philippine Constitution
SECTION 2. The Philippines renounces war as an instrument of national policy,
adopts the generally accepted principles of international law as part of the law of
the land and adheres to the policy of peace, equality, justice, freedom,
cooperation, and amity with all nations.
9. Kellog-Briand Pact 1928
Kellogg-Briand Pact, also called Pact of Paris, (Aug. 27, 1928), multilateral
agreement attempting to eliminate war as an instrument of national policy. It was
the most grandiose of a series of peacekeeping efforts after World War I.
Hoping to tie the United States into a system of protective alliances directed
against a possible resurgence of German aggression, the French foreign
minister, Aristide Briand, first suggested a bilateral nonaggression pact in the
spring of 1927. The U.S. secretary of state, Frank B. Kellogg, prodded by the
American “outlawry of war” movement and supported by those who were
disappointed at the failure of the United States to join the League of Nations,
proposed that the pact be converted into a general multilateral treaty, which the
French accepted.
As a result of Kellogg’s proposal, nearly all the nations of the world eventually
subscribed to the Kellogg-Briand Pact, agreeing to renounce war as an
instrument of national policy and to settle all international disputes by peaceful
means. The signatories allowed themselves a great variety of qualifications and
interpretations, however, so that the pact would not prohibit, for example, wars
of self-defense or certain military obligations arising from the League Covenant,
the Monroe Doctrine, or postwar treaties of alliance. These conditions, in addition
to the treaty’s failure to establish a means of enforcement, rendered the
agreement completely ineffective
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View/Listen:

Dapo Akande on (i) the Prohibition of the Use of Force, and (ii) Self Defense, - It comprises the use of any weapons by a state directed against another
Prohibition on the use of force state. The Charter does not give any hint of a prerequisite of a certain
level of armed force, thus even minor violations of boundaries are
- “save succeeding generations”; “maintain international peace” forbidden.
- General and comprehensive rules on war - It is uncontested that the wording of Article 2(4) comprises the indirect
- Give up means of the use of force in order to protect rights use of force regardless whether the direct force is actually applied by
- What is the link between the prohibition and setting up an organisation? regular troops of another state or by unofficial bands organized in a
- Should the use of force be interpreted on the success of these collective military manner (e.g. mercenaries or insurgents). While it is common
security schemes? ground that the acts carried out directly towards the other state have to
- 3 key provisions: amount to the use or threat of force (i.e. incursions into foreign territory
- Article 41 or cross- border shooting), it remains controversial which activities may
- prohibition on the use of force is a jus covens norm qualify for an indirect use of such force. In this respect, the Friendly
- NIcaragua: not only in the UN charter but it is a principle of customary Relations Declaration mentions the organizing of irregular forces or
into law armed bands, encouraging their organization, instigating, assisting, or
- Art 2 (4) —main thrust is to prevent armed force participating in acts of civil strife or terrorist acts or acquiescing in such
- Does the prohibition on the use of force cover cyberwarfare? organized activities. In the Nicaragua judgment, the ICJ stated that not
- irregular/ non-state groups? every act of assistance might qualify for an indirect use of force, holding
- US v Nicaragua. 3 types of support the arming and training of “contras” by the United States to be a violation
of the prohibition but rejecting the mere supply of funds to them.
- financing
- Under the prevailing view, clearly all non-military effects on another
- Use of force: against the territorial integrity, political independence
state, such as environmental pollution, remain outside the scope of
- It is a comprehensive provision
Article 2(4) of the U.N. Charter. But some commentators question such a
- to be found unlawful must be based on an exception found somewhere
finding in cases in which the effects of the use of mere physical force
else
equal military measures (e.g. the expulsion of population or the diversion
- Self-Defense
of a river by an upstream state). Although in any case these situations
- must be proportional and necessary
are governed by the principle of non-intervention, the application of the
- Oil Platforms Case prohibition of the use of force is promoted if the effects equal an armed
- US case was not necessary because there was no previous complaint attack, allowing for the right of self-defense under Article 51 of the U.N.
on the platforms Charter
- The destruction of the oil platforms and vessels was disproportionate
- measures that it be done for necessary is strict and affords no room for
Concept
discretion
- “Force” —Armed Force/ Troops, military equipment
- Implied conditions in necessity: immediacy and the only way to repel the
- Militia? Civilians? Non- military equipment
attack
o Possible.
- “instant, overwhelming, leaving no choice of means”
- Threat by a state
- force may not be used to resolve territorial disputes (UNGA resolution) o actions (troop mobilisation, high alert); words;
- Use by a state
International Law and the Use of Force (Heselhaus)
o State troops or officials
Content of the Prohibition of the use of force
o Stage agents (e.g. rebel groups)
- The prevailing view restricts the prohibition to the use of military armed
o Tests: overall control and effective control
force. In respect to former provisions banning war, the scope has been
significantly broadened.

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- “International Relations” —used by a state against another state EX.1 Self Defense — nothing will impair the inherent right (custom)
(civilians, troops, territory) - only when there is an armed attack
- China may have deployed missile systems —threat of force - only if the UNSC hasn’t taken any measures yet
- what if the armed attack is imminent? may a state exercise anticipatory self-
History of defence? NO but some authors argue under custom that there is a right
- Grotius and Vattel but under strict circumstances using the Caroline incident
- League of Nations Covenant: pre-condition to waging war - Caroline Incident (US v UK) —IMMINENCE
- Kellog-Briand Pact - Necessary: “necessity of self-defence was instant, overwhelming, no choice of
- UN Charter means, and no moment for deliberation
- Proportional: Nothing unreasonable or excessive; since the act is justified
Is War the same as Use of Force? NO
- Use of force requires state v another state According to Brownlie:
- Central difficulty is in defining the term: “armed attack”
Source o Drafters likely interpreted the term as encompassing the kind of
- Treaties: UN charter, Mutual defense treaties (can a state that hasn’t been conventional attack characteristic of WW2
attacked invoke these laws? YES) - Another criteria for armed attack focuses on the scale and effects of an
- Custom: same content on the prohibition of the use of force attack, distinguishing the most grave forms of force from other less grave
What is the quality? Jus Cogens. forms
- Is mere financing use of force? NO. intelligence and information? - A51 may justify the use of force in self-defence only within the strict
- No effective control but US did violate non-intervention confines there laid down
- treaty and custom treat use of force differently - It does not allow the use of force by a state to protect perceived security
- Other ways to distinguish interests beyond those parameters
- Even if a customary rule is codified it has no effect on the existing treaty rule EX2. Collective action
4. UN has primary responsibility for the maintenance of international peace and
Subjects security
(1) States —Treaty —> parties; Custom: all 5. Step 1: UNSC determines existence of threat to or breach of the peace
(2) Natural Persons 6. Step 2: UNSC recommends or decides what measures to take, to maintain or
(3) IOs restore international peace and security (art. 39)
a. Option A: No use of armed force
General Rule: No threat or use of force by one state against another (UN b. Option B: use of armed force
charter. Art.2.4) 7. Can go to option B agad apparently
- Exception 1: Self-defense (UN chapter Art.51) 8. Never revoked so they
- Exception 2: Collective action (Un Charter Chapter 7)
EX.3. Humanitarian intervention
UN Charter 2.4 - Has to be possibility of armed conflict between states
- Only by UN members? NO —custom - Prevailing view is that there is no right
- Only against UN members? NO
- Only military force? —YES? it depends. but there has to be armed force
- Only against territorial integrity? NO. prevailing view is that these words are
merely descriptive

Primary purpose: maintain international peace and security

UN v EU —EU and Asean are more economic union

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The Humanitarian Intervention Debate (Holzgrefe)
- Definition: it is the threat or use of force across state borders by a state
group of states) aimed at preventing or ending widespread and grave
violations of the fundamental human rights of individuals other than its
own citizens, without the permission of the state within whose territory
force is applied
- Deliberately excludes 2 types of behavior:
(1) Non-forcible interventions such as the threat or use of economic,
diplomatic, or other sanctions
(2) Forcible interventions aimed at protecting or rescuing the
intervening state’s own nationals
Legality of Humanitarian Intervention
(1) The UN Charter
- For most international lawyers, the meaning of the UN charter is clear –
but a growing number of legal scholars beg to disagree. 3 arguments
aimed at reconciling jus ad bellum with human intervention
a) A2(4) only forbids the threat or use of force when directed
against the territorial integrity or political independence of
any state
b) The phrase: “or in any other manner inconsistent with the
purposes of the UN” permits unauthorized humanitarian
intervention where the SC fails to realize one of its chief
purposes –the protection of human rights
c) Inexpensive interpretation of A39: “any threat to the peace”
–over any threat to international peace, permits it to
intervene to end HR violations that lack transboundary
effects
(2) Human Rights Conventions
- Most states are signatories to conventions that legally oblige them to
respect the human rights of their citizens
(3) Custom
- Some scholars argue for the continued existence of a customary right of
unauthorized human intervention
- This idea is contested on 2 grounds
(1) Scholars contend that the handful of pre-charter humanitarian
interventions were insufficient to establish a customary right of
humanitarian intervention
(2) Even if it did exist, it did not survive the creation of the UN’s jus ad
bellum regime
The UN Security Council
d) Within the UN system, the security council is the sole body
with the capacity to authorize the use of force
e) The SC is not responsible for the direct enforcement of non-
forcible measures; rather it obliges members to implement
any measures so ordered
f) A42 –SC can take such action by air, sea or land forces as
may be necessary to maintain or restore international
peace or security
NEWSFLASH!!!
US Accuses China of pointing lasers at its pilots from Djiibouti Base
- The US has formally complained to China over several incidents of
its pilots being irritated by lasers it says are coming from a Chinese
base in Djibouti.
- The Pentagon said it had asked China to investigate several "very
serious incidents".
- It said people at the east African base had been shining military-grade
lasers at US pilots coming in to land.
- The US has a military base in Djibouti on the Horn of Africa, which is
used for counter-terrorism operations in Africa and the Middle East
- Last year, China opened its first overseas military base only a few
kilometres from the US facility.
- In one case, two pilots on a cargo plane suffered minor eye injuries as
they came in to land, US officials sai
US warns China over missiles deployed on 3 PH reefs
- The White House has warned that China would face “consequences” for
its military buildup in contested waters in the western Pacific following
reports that the Chinese had installed missiles on three disputed reefs in
the South China Sea.
- “We’ve raised concerns directly with the Chinese about this and there
will be near-term and long-term consequences,” Sanders did not say
what the consequences would be.
- Malacañang on Friday expressed concerns over the reported Chinese
missile deployments on Kagitingan, Zamora and Panganiban, three of
seven Philippine-claimed reefs that China had seized and transformed
into artificial islands.
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- The three reefs are internationally known as Fiery Cross, Subi and Subjects
Mischief reefs, respectively. They are among the marine features in the - States
Spratly archipelago that are disputed by China and the Philippines and - International organisations
three other Southeast Asian nations— o UNCLOS art. 305.1.f
- The missile installations meant that China has deployed weapons within - Natural and Juridical persons
the Philippines’ 370-kilometer exclusive economic zone (EEZ), according - Obligation to follow fishing regulations of coastal state
to Alexander Neill, Shangri-la Dialogue senior fellow for Asia-Pacific - Natural persons —traditional fishing rights
security at the International Institute for Strategic Studies.
- “In practice, China now has the capability to deny the Philippines access
in the air or at sea to the islands and reefs it claims,” Neill told the Substance
Inquirer. —Maritime Zones (water, air, seabed, subsoil)

Law of the Sea (1) Internal Waters

Concepts - Archipelagic waters —less than full sovereignty
Land territory (2) Territorial sea — up to 12 nautical miles
— for coastal and archipelagic states (3) contiguous zone —
—For other states —UNCLOS (4) EEZ
(5) Extended continental shelf
PHL constitution
—Art. 1 “The national territory comprises” Baselines
—basis to file a writ of kalikasan General: Normal Coast (normal baselines)
- internal waters =/ to archipelagic waters —Unclos art. 5
Following countour of the coast
Fundamental right of a state?
- Logic: if you have full sovereignty over Exception 1: deeply indented coast (straight baselines)
- History: until early 20th C: “freedom of the seas” (mare liberum) —Anglo-norwegian fisheries
- 1940: US, americans states asserted 200 UNCLOS art. 7
- Package deal: UNCLOS art. 309 “No reservations or exceptions may be General direction of the coast
made to this convention unless expressly permitted by other articles of
this convention” Exception 2: other features
- US is not bound Mouth of river:any length
Sources Mouth of a bay: max 24 nm length
- Treaty —UNCLOS art. 311 and .2 Low tide elevations (LTE): max 12 nm distance
- Look at type, term and specificity
- Unclos art. 311.3 —doesn’t have to be in writing Exception 3:archipelago (archipelagic baselines)
- Custom —UNCLOS preamble —“codify and help in the progressive - UNCLOS art 47
development”; art. 2.3 - Philippine statutes 1961, 1968, 2009
- General principle s of law - General: max 100 nm length, exception 3%max 125 nm

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PIL REVIEWER
NEWSFLASH!!!
Duterte Offers 60-40 deal to China in West PH Sea Joint Exploration
- “You cannot go against anybody. You cannot fight there. But President
Xi is a friend. We‟ll share with you,” said Duterte.
- Earlier this month, both Duterte and Xi gave the "go signal” for their
countries to craft a framework for joint exploration in the West Philippine
Sea, the part of the South China Sea that belongs to the Philippines but
is claimed by China.
- "File a diplomatic protest because if they don't, the world might think we
are yielding, we are accepting this as a fait accompli to the detriment of
our sovereign rights to the West Philippine Sea," he said.
- Chinese Foreign Ministry spokesperson Hua Chunying, in a
press briefing on Thursday, confirmed the deployment of missiles but
maintained that the installation "targets no one."
- "Our peaceful construction activities on the Nansha Islands (Spratlys
islands), including the deployment of necessary national defense
facilities, are meant to safeguard China's sovereignty and security, which
is also the rights a sovereign state is entitled to," she said.

- Duterte agreed to joint exploration even if the Philippines won a Hague - "Anyone with no invasive intention will find no reason to worry about this.
ruling in 2016 over China, affirming the Philippines' rights over the West We hope that the relevant party could view this matter in an objective
Philippine Sea. and calm way," she added.

- Duterte, however, has since downplayed this victory in exchange

for economic benefits from China.The Philippine President had said “it's
important that our people see the benefit" of the relationship between
Manila and Beijing.

- Critics of the move have said that entering into a joint exploration with
China would negate the Philippines' historic, hard-won victory in the
Permanent Court of Arbitration.

- Senior Associate Justice Antonio Carpio earlier said said the Philippine
Constitution bans "joint development" within the country's exclusive
economic zone (EEZ).
Government urged to file Diplomatic protest vs China over S. China Sea Missile
Deployment

- The Philippine government should file a diplomatic protest against China

for the latter’s recent installation of missiles in the Spratly islands, former
National Security Adviser Roilo Golez said Saturday.

- China is the threat because China is claiming 90 percent of our West

Philippine Sea-- not just claiming, but actually occupying 90 percent of
our sea,” he said.

- The West Philippine Sea is the Philippines' exclusive economic zone in

the disputed South China Sea.

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