PUBLIC INTERNATIONAL LAW

Concepts
REPRISAL is a coercive measure short of war, directed by a state against another, in
retaliation for acts of the latter and as means of obtaining reparation or satisfaction for
such acts. Reprisal involves retaliatory acts which by themselves would be illegal. For
example, for violation of a treaty by a state, the aggrieved state seizes on the high seas
the ships of the offending state.
RETORSION is a legal but deliberately unfriendly act directed by a state against another
in retaliation for an unfriendly though legal act to compel that state to alter its unfriendly
conduct. An example of retorsion is banning exports to the offending state.
The DECLARATORY THEORY OF RECOGNITION is a theory according to which
recognition of a state is merely an acknowledgment of the fact of its existence. In other
words, the recognized state already exists and can exist even without such recognition.
For example, when other countries recognized Bangladesh, Bangladesh already existed
as a state even without such recognition.
RECOGNITION OF BELLIGERENCY is the formal acknowledgment by a third party of
the existence of a state of war between the central government and a portion of that state.
Belligerency exists when a sizeable portion of the territory of a state is under the effective
control of an insurgent community which is seeking to establish a separate government
and the insurgents are in de facto control of a portion of the territory and population, have
a political organization, are able to maintain such control, and conduct themselves
according to the laws of war. For example, Great Britain recognized a state of belligerency
in the United States during the Civil War.
EXEQUATUR is an authorization from the receiving state admitting the head of a consular
post to the exercise of his functions. For example, if the Philippines appoints a consul
general for New York, he cannot start performing his functions unless the President of the
United States issues an exequatur to him.
T he principle of DOUBLE CRIMINALITY is the rule in extradition which states that for a
request to be honored the crime for which extradition is requested must be a crime in both
the requesting state and the state to which the fugitive has fled. For example, since
murder is a crime both in the Philippines and in Canada, under the Treaty on Extradition
between the Philippines and Canada, the Philippines can request Canada to extradite a
Filipino who has fled to Canada.
PROTECTIVE PERSONALITY principle is the principle by which the state exercise
jurisdiction over the acts of an alien even if committed outside its territory, if such acts are
adverse to the interest of the national state.
INNOCENT PASSAGE means the right of continuous and expeditious navigation of a
foreign ship through the territorial sea of a state for the purpose of traversing that sea
without entering the internal waters or calling at a roadstead or port facility outside internal
waters, or proceeding to or from internal waters or a call at such roadstead or port facility.
The passage is innocent so long as it is not prejudicial to the peace, good order or security
of the coastal state.

President Black of the Republic of Pasensya (RP) had a telephone conversation with
President Blue of the People’s Republic of Conquerors (PRC). In that conversation, both
leaders agreed that they will both pull- out all their vessels, civilian or otherwise, sea crafts
and other ships from the hotly disputed Kalmado Shoal area within eight (8) days in order
to de-escalate the situation. After eight days, all RP ships and vessels have left the area.
However, several military and civilian ships carrying the PRC flag remained in the area
and began construction of a dock that could provide fuel and other supplies to vessels
passing by. What is opinio juris in International Law?
To establish customary international law, two elements must concur: General state
practice and opinio juris sire necessitatis. State practice refers to the continuous repetition
of the same or similar kind of acts or norms bystates. Opinio juris requires that the state
practice or norm be carried out in such a way as to be evidence of the belief that it is
obligatory by the existence of a rule of law requiring it.

The legal yardstick in determining whether usage has become customary international
law is expressed in the maxim opinion juris sive necessitates or opinion juris for short.
What does the maxim mean?
Opinio juris sive necessitates means the common belief among states and actors
that a certain practice is obligatory. This is the subjective or psychological requirement of
customary law that makes state practice a binding rule of customary international law.

A, a British photojournalist, was covering the violent protests of the Thai Red-Shirts
Movement in Bangkok. Despite warnings given by the Thai Prime Minister to foreigners,
specially journalists, A moved around the Thai capital. In the course of his coverage, he
was killed with a stray bullet which was later identified as having come from the ranks of
the Red-Shirts. The wife of A sought relief from Thai authorities but was refused
assistance. Is there state responsibility on the part of Thailand?
o, there is no state responsibility on the part of Thailand because the acts of the
Thai Red-Shirts were not the acts of Thailand. Under the Principle of Attribution or
Imputation, a State only incurs liability for individual acts or omission which can be
attributed to it. The Thai Red-Shirts are not its officials, agents, or representatives and
they were not acting on the instructions of, or under the direction or control of, the Thai
Government.

What is the appropriate remedy available to the victim’s family under international law?
Unless the Red-Shirts become the new Government of Thailand or Thailand
acknowledges and adopts the conduct of the Red-Shirts as its own, the victim’s family
has no appropriate remedy under international law. Their remedy, if any, is only available
under the domestic laws of Thailand by the institution of the appropriate criminal cases
against the persons responsible for A’s killing and the filing of an action to recover
damages arising from A’s death.

An Executive Agreement was executed between the Philippines and a neighboring State.
The Senate of the Philippines took it upon itself to procure a certified true copy of the
Executive Agreement and, after deliberating on it, declared, by a unanimous vote, that
the agreement was both unwise and against the best interest of the country. Is the
Executive Agreement binding from the standpoint of international law? Explain.
The Executive Agreement is also binding from the standpoint of international law.
As held, in international law executive agreements are equally binding as treaties upon
the States who are parties to them. Additionally, under Article 2(1)(a) of the Vienna
Convention on the Law of Treaties, whatever may be the designation of a written
agreement between States, whether it is indicated as a Treaty, Convention or Executive
Agreement, is not legally significant.

President Black of the Republic of Pasensya (RP) had a telephone conversation with
President Blue of the People’s Republic of Conquerors (PRC). In that conversation, both
leaders agreed that they will both pull- out all their vessels, civilian or otherwise, sea crafts
and other ships from the hotly disputed Kalmado Shoal area within eight (8) days in order
to de-escalate the situation. After eight days, all RP ships and vessels have left the area.
However, several military and civilian ships carrying the PRC flag remained in the area
and began construction of a dock that could provide fuel and other supplies to vessels
passing by. Assuming that President Black and President Blue both had full capacity to
represent their states and negotiate with each other under their respective systems of
government, and further assuming that both leaders acknowledge the existence of the
conversation, is the verbal agreement via telephone binding under international law?
Explain.
The verbal agreement by telephone is binding between the parties on the basis of
customary international law. (In 1992 the dispute between Denmark and Finland about
the construction of a bridge was settled by a telephone conversation between the Danish
and Finnish Prime Ministers. In return for payment by Denmark, Finland agreed to
discontinue the case filed.

Assuming the answer to (a.) is in affirmative, does that agreement constitute a Treaty
under the 1969 Vienna Convention on the Law on Treaties?
The verbal agreement does not constitute a treaty under the Vienna Convention
on the Law of treaties. Article 3 requires that for an international agreement to be a treaty,
it must be in written form.

What are the sources of International Law?

The following are the sources of international law:
(1) International conventions, whether general or particular, establishing rules expressly
recognized by the contesting
states;
(2) International custom, as evidence of a general practice accepted as law;
(3) The general principles of law recognized by civilized nation;

What is the principle of auto-limitation?

Under the principle of auto-limitation, any state may by its consent, express or
implied, submit to a restriction of its sovereign rights. There may thus be a curtailment of
what otherwise is a plenary power.

What is the relationship between reciprocity and the principle of auto- limitation?
When the Philippines enters into treaties, necessarily, these international
agreements may contain limitations on Philippine sovereignty. The consideration in this
partial surrender of sovereignty is the reciprocal commitment of other contracting states
in granting the same privilege and immunities to the Philippines. For example, this kind
of reciprocity in relation to the principle of auto-limitation characterizes the Philippine
commitments under WTO-GATT. This is based on the constitutional provision that the
Philippines "adopts the generally accepted principles of international law as part of the
law of the land and adheres to the policy of cooperation and amity with all nations"

William, a private American Citizen, a university graduate and frequent visitor to the
Philippines, was inside the US embassy when he got into a heated argument with a
private Filipino citizen. Then, in front of many shocked witnesses, he killed the person he
was arguing with. The police came, and brought him to the nearest police station. Upon
reaching the station, the police investigator, in halting English, informed William of his
Miranda rights, and assigned him an independent local counsel. William refused the
services of the lawyer, and insisted that he be assisted by a Filipino lawyer currently
based in the US. The request was denied, and the counsel assigned by the police stayed
for the duration of the investigation.
William protested his arrest. He argued that since the incident took place inside the US
embassy, Philippine courts have no jurisdiction because the US embassy grounds are
not part of the Philippine Territory; thus, technically, no crime under the Philippine law
was committed. Is William correct? Explain your answer?
No, William is not correct. While Article 22 of the Vienna Convention on Diplomatic
Relations provides that the premises of a diplomatic mission shall be inviolable, and may
not be entered by the police or by any other agent of the receiving State, except with the
consent of the Ambassador or the head of the mission, it does not alter the fact, however,
that such premises are still part of Philippine territory. The concept of “exterritoriality,”
under which diplomatic premises are deemed to be part of the sovereign territory of the
sending State, has not been adopted in the Vienna Convention. Hence, a crime
committed on or within such premises by a private person like Williams who enjoys no
diplomatic immunity falls within the jurisdiction of Philippine courts.

Obligations erga omnes, in international law, it has been used as a legal term describing
obligations owed by states towards the community of states as a whole. An erga omnes
obligation exists because of the universal and undeniable interest in the perpetuation of
critical rights (and the prevention of their breach). Consequently, any state has the right
to complain of a breach. Examples of erga omnes norms include piracy and genocide.

Jus cogens is a peremptory norm of general international law accepted and recognized
by the international community as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international
law having the same character, An example is the prohibition against the use of force.

According to the CONSTITUTIVE THEORY, recognition is the last indispensable element

that converts the state being recognized into an international person.
According to the DECLARATORY THEORY, recognition is merely an acknowledgment
of the pre-existing fact that the state being recognized is an international person.
A foreign ambassador to the Philippines leased a vacation house in Tagaytay for his
personal use. For some reason, he failed to pay rentals for more than one year. The
lessor filed an action for the recovery of his property in court. Can the foreign ambassador
invoke his diplomatic immunity to resist the lessor's action?
No, the foreign ambassador cannot invoke his diplomatic immunity to resist the
action, since he is not using the house in Tagaytay City for the purposes of his mission
but merely for vacation. Under Article 3(l)(a) of the Vienna Convention on Diplomatic
Relations, a diplomatic agent has no immunity in case of 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 purposes of the mission.

The lessor gets hold of evidence that the ambassador is about to return to his home
country. Can the lessor ask the court to stop the ambassador's departure from the
Philippines?
No, the lessor cannot ask the court to stop the departure of the ambassador from
the Philippines. Under Article 29 of the Vienna Convention, a diplomatic agent shall not
be liable to any form of arrest or detention.

Dr. Velen, an official of the World Health Organization (WHO) assigned in the Philippines,
arrived at the Ninoy Aquino International Airport with his personal effects contained in
twelve crates as unaccompanied baggage. As such, his personal effects were allowed
free entry from duties and taxes, and were directly stored at Arshaine Corporation's
warehouse at Makati, pending Dr. Velen's relocation to his permanent quarters. At the
instance of police authorities, the Regional Trial Court (RTC) of Makati issued a warrant
for the search and seizure of Dr. Velen's personal effects in view of an alleged violation
of the Tariff and Custom's Code. According to the police, the crates contained contraband
items. Upon protest of WHO officials, the Secretary of Foreign Affairs formally advised
the RTC as to Dr. Velen's immunity. The Solicitor General likewise joined Dr. Velen's plea
of immunity and motion to quash the search warrant. The RTC denied the motion.
Is the denial of the motion to quash proper?
The denial of the motion is improper. As held, as an official of the World Health
Organization, Dr. Velen enjoyed diplomatic immunity and this included exemption from
duties and taxes. Since diplomatic immunity involves a political question, where a plea of
diplomatic immunity is recognized and affirmed by the Executive Department, it is the
duty of the court to accept the claim of immunity.

A group of high-ranking officials and rank-and-file employees stationed in a foreign

embassy in Manila were arrested outside embassy grounds and detained at Camp Crame
on suspicion that they were actively collaborating with "terrorists" out to overthrow or
destabilize the Philippine Government. The Foreign Ambassador sought their immediate
release, claiming that the detained embassy officials and employees enjoyed diplomatic
immunity. If invited to express your legal opinion on the matter, what advice would you
give?
I shall advice that the high-ranking officials and rank-and-file employees be
released because of their diplomatic immunity. Article 29 of the Vienna Convention on
Diplomatic Relations provides:
 "The person of a diplomatic agent shall be inviolable. He shall not be liable to any
form of arrest or detention."
Under Article 37 of the Vienna Convention on Diplomatic Relations, members of
the administrative and technical staff of the diplomatic mission, shall, if they are not
nationals of or permanent residents in the receiving State, enjoy the privileges and
immunities specified in Article 29.
Under Article 9 of the Vienna Convention on Diplomatic Relations, the remedy is
to declare the high-ranking officials and rank-and-file employees personae non gratae
and ask them to leave.

MBC, an alien businessman dealing in carpets and caviar, filed a suit against policemen
and YZ, an attache of XX Embassy, for damages because of malicious prosecution. MBC
alleged that YZ concocted false and malicious charges that he was engaged in drug
trafficking, whereupon narcotics policemen conducted a "buy-bust" operation and without
warrant arrested him, searched his house, and seized his money and jewelry, then
detained and tortured him in violation of his civil and human rights as well as causing him,
his family and business serious damages amounting to two million pesos. MBC added
that the trial court acquitted him of the drug charges. Assailing the court's jurisdiction: YZ
now moves to dismiss the complaint, on the ground that (1) he is an embassy officer
entitled to diplomatic immunity; and that (2) the suit is really a suit against his home state
without its consent. He presents diplomatic notes from XX Embassy certifying that he is
an accredited embassy officer recognized by the Philippine government. He performs
official duties, he says, on a mission to conduct surveillance on drug exporters and then
inform local police officers who make the actual arrest of suspects. Are the two grounds
cited by YZ to dismiss the suit tenable?
The claim of diplomatic immunity of YZ is not tenable, because he does not
possess an acknowledged diplomatic title and is not performing duties of a diplomatic
nature. However, the suit against him is a suit against XX without its consent. YZ was
acting as an agent of XX and was performing his official functions when he conducted
surveillance on drug exporters and informed the local police officers who arrested MBC.
He was performing such duties with the consent of the Philippine government, therefore,
the suit against YZ is a suit against XX without its consent.

Italy, through its Ambassador, entered intona contract with Abad for the maintenance and
repair of specified equipment at its Embassy and Ambassador's Residence, such as air
conditioning units, generator sets, electrical facilities, water heaters, and water motor
pumps. It was stipulated that the agreement shall be effective for a period of four years
and automatically renewed unless cancelled. Further, it provided that any suit arising from
the contract shall be filed with the proper courts in the City of Manila. Claiming that the
Maintenance Contract was unilaterally, baselessly and arbitrarily terminated, Abad sued
the State of Italy and its Ambassador before a court in the City of Manila. Among the
defenses, they raised were "sovereign immunity" and "diplomatic immunity." As counsel
of Abad, refute the defenses of "sovereign immunity" and "diplomatic immunity" raised by
the State of Italy and its Ambassador.
As counsel for Abad, I will argue that sovereign immunity will not lie as it is an
established rule that when a State enters into a contract, it waives its immunity and allows
itself to be sued. Moreover, there is a provision in the contract that any suit arising
therefrom shall be filed with the proper courts of the City of Manila. On the issue of
diplomatic immunity, I will assert that the act of the Ambassador unilaterally terminating
the agreement is tortuous and done with malice and bad faith and not a sovereign or
diplomatic function.

At any rate, what should be the court's ruling on the said defenses?
The court should rule against said defenses. The maintenance contract and repair
of the Embassy and Ambassador's Residence is a contract in jus imperii, because such
repair of said buildings is indispensable to the performance of the official functions of the
Government of Italy. Hence, the contract is in pursuit of a sovereign activity in which case,
it cannot be deemed to have waived its immunity from suit.
On the matter of whether or not the Ambassador may be sued, Article 31 of the Vienna
Convention on Diplomatic Relations provides that a diplomatic agent enjoys immunity
from the criminal, civil and administrative jurisdiction of the receiving state except if the
act performed is outside his official functions, in accordance with the principle of functional
necessity. In this case, the act of entering into the contract by the Ambassador was part
of his official functions and thus, he is entitled to diplomatic immunity.

D, the Ambassador of the Kingdom of Nepal to the Philippines, leased a house in Baguio
City as his personal vacation home. On account of military disturbance in Nepal, D did
not receive his salary and allowances from his government and so he failed to pay his
rentals for more than one year. E, the lessor, filed an action for recovery of his property
with the Regional Trial Court of Baguio City. Can the action against D prosper?
Yes, the action can prosper. Article 31 of the Vienna Convention on Diplomatic
Relations provides: "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;"
The action against the Ambassador is a real action involving private immovable
property situated within the territory of the Philippines as the receiving state. The action
falls within the exception to the grant of immunity from the civil and administrative
jurisdiction of the Philippines.

Can E ask for the attachment of the furniture and other personal properties of D after
getting hold of evidence that D is about to leave the country?
No, E cannot ask for the attachment of the personal properties of the Ambassador.
Arts. 30 and 31 of the Vienna Convention on Diplomatic Relations provides that the
papers, correspondence and the property of diplomat agents shall be inviolable.
Therefore, a writ of attachment cannot be issued against his furniture and any personal
properties. Moreover, on the assumption that the Kingdom of Nepal grants similar
protection to Philippine diplomatic agents. Section 4 of Republic Act No. 75 provides that
any writ or process issued by any court in the Philippines for the attachment of the goods
or chattels of the ambassador of a foreign State to the Philippines shall be void.
Can E ask for the court to stop D's departure from the Philippines?
No, E cannot ask the court to stop the departure of the Ambassador of the Kingdom
of Nepal from the Philippines. Article 29 of the Vienna Convention on Diplomatic Relations
provides: "The person of a diplomatic agent shall be inviolable. He shall not be liable to
any form of arrest or detention."

Adams and Baker are American citizens residing in the Philippines. Adams befriended
Baker and became a frequent visitor at his house. One day, Adams arrived with 30
members of the Philippine National Police, armed with a Search Warrant authorizing the
search of Baker's house and its premises for dangerous drugs being trafficked to the
United States of America. The search purportedly yielded positive results, and Baker was
charged with Violation of the Dangerous Drugs Act. Adams was the prosecution's
principal witness. However, for failure to prove his guilt beyond reasonable doubt, Baker
was acquitted. Baker then sued Adams for damages for filing trumped-up charges against
him. Among the defenses raised by Adams is that he has diplomatic immunity,
conformably with the Vienna Convention on Diplomatic Relations. He presented
Diplomatic Notes from the American Embassy stating that he is an agent of the United
States Drug Enforcement Agency tasked with "conducting surveillance operations" on
suspected drug dealers in the Philippines believed to be the source of prohibited drugs
being shipped to the U.S. It was also stated that after having ascertained the target,
Adams would then inform the Philippine narcotic agents to make the actual arrest. (5%)
As counsel of plaintiff Baker, argue why his complaint should not be dismissed on the
ground of defendant Adams' diplomatic immunity from suit.
As counsel for Baker, I would argue that Adams is not a diplomatic agent
considering that he is not a head of mission nor is he part of the diplomatic staff that is
accorded diplomatic rank. Thus, the suit should not be dismissed as Adams has no
diplomatic immunity under the 1961 Vienna Convention on Diplomatic Relations.

As counsel of defendant Adams, argue for the dismissal of the complaint.

As counsel for Adams, I would argue that he worked for the United States Drug
Enforcement Agency and was tasked to conduct surveillance of suspected drug activities
within the country with the approval of the Philippine government. Under the doctrine of
State Immunity from Suit, if the acts giving rise to a suit are those of a foreign government
done by its foreign agent, although not necessarily a diplomatic personage, but acting in
his official capacity, the complaint could be barred by the immunity of the foreign
sovereign from suit without its consent. Adams may not be a diplomatic agent but the
Philippine government has given its imprimatur, if not consent, to the activities within
Philippine territory of Adams and thus he is entitled to the defense of state immunity from
suit.

Discuss the differences, if any, in the privileges or immunities of diplomatic envoys and
consular officers from the civil or criminal jurisdiction of the receiving state.
Under Article 32 of the Vienna Convention on Diplomatic Relations, 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 invoked 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.
On the other hand, under Article 41 of the Vienna Convention on Consular Relations, a
consular officer does not enjoy Immunity from the Criminal jurisdiction of the receiving
State. Under Article 43 of the Vienna Convention on Consular Relations, consular officers
are not 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.
However, this does not apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular officer 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.

A consul of a South American country stationed in Manila was charged with serious
physical injuries. May he claim Immunity from jurisdiction of the local court? Explain.
No, he may not claim immunity from the jurisdiction of the local court. Under Article
41 of the Vienna Convention of Consular Relations, consuls do not enjoy immunity from
the criminal Jurisdiction of the receiving State. He is not liable to arrest or detention
pending trial unless the offense was committed against his father, mother, child,
ascendant, descendant or spouse. Consuls are not liable to arrest and detention pending
trial except in the case of a grave crime and pursuant to a decision by the competent
judicial authority. The crime of physical Injuries is not a grave crime unless it be committed
against any of the above- mentioned persons.

Suppose after he was charged, he was appointed as his country's ambassador to the
Philippines. Can his newly-gained diplomatic status be a ground for dismissal of his
criminal case? Explain.
Yes, the case should be dismissed. Under Article 40 of the Vienna Convention on
Diplomatic Relations, if a diplomatic agent is in the territory of a third State, which has
granted him a passport visa if such visa was necessary, while proceeding to take up his
post, the third State shall accord him inviolability and such other immunities as may be
required to ensure his transit.

X, a Secretary and Consul in the American Embassy in Manila, bought from B a diamond
ring in the amount of P50,000.00 which he later gave as a birthday present to his Filipino
girlfriend. The purchase price was paid in check drawn upon the Citibank. Upon
presentment for payment, the check was dishonored for insufficiency of funds. Because
of X's failure to make good the dishonored check, B filed a complaint against X in the
Office of the City Prosecutor of Manila for violation of Batas Pambansa Big. 22. After
preliminary investigation, the information was filed against X in the City Court of Manila.
X filed a motion to dismiss the case against him on the ground that he is a Secretary and
Consul in the American Embassy enjoying diplomatic immunity from criminal prosecution
in the Philippines. If you were the Judge, how would you resolve the motion to dismiss?
If I were the Judge, I would grant the motion to dismiss. As consul, X is not immune
from criminal prosecution. Under Paragraph 3 of Article 41 of the Vienna Convention on
Consular Relations, a consular officer is not immune from the criminal jurisdiction of the
receiving state. In Schneckenburger vs. Moron, 63 Phil. 249, it was held that a consul is
not exempt from criminal prosecution in the country where he is assigned. However, as
secretary in the American Embassy, X enjoys diplomatic immunity from criminal
prosecution As secretary, he is a diplomatic agent. Under Paragraph 1 of Article 31 of the
Vienna Convention on Diplomatic Relations, a diplomatic agent enjoys immunity from the
criminal jurisdiction of the receiving State.

Hard law refers to binding international legal norms or those which have coercive
character. Examples of hard law are the provisions of the:
a. UN Charter
b. The Vienna convention on diplomatic relations
c. The Geneva Conventions of 1949
Soft law refers to norms that are non- binding in character. Soft law usually serves as a
precursor of hard law. the Universal Declaration of Human Rights (UDHR) is one such
example. It was a soft law when it was adopted by resolution of the UN General Assembly
in 1948, but it has led to the development of Hard Law with the adoption of 2 binding
covenants on human rights, ie., the ICCPR and ICESC.
Examples of soft law are:
a. Resolutions of the UN General Assembly
b. Draft of the International Law Commision.

Ex aequo et bono is Latin phrase for "according to the right and good" or "from equity and
conscience.”
Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the
court may decide cases ex aequo et bono only if the parties agree.
Article 33 of the United Nations Commission on International Trade Law's Arbitration
Rules (1976)provides that the arbitrators shall consider only the applicable law unless the
arbitral agreement allows the arbitrators to consider ex aequo et bono, or amiable
compositeur, instead. This rule is also expressed in many national and subnational
arbitration laws such as section 22 of the Commercial Arbitration Act 1984 (NSW).

On the other hand, the constituent treaty of the Eritrea–Ethiopia Claims Commission
explicitly forbids the body from interpreting ex aequo et bono.
Relationship between international and national law
An organization of law students sponsored an inter-school debate among three teams
with the following assignments and propositions for each team to defend:
Team "A" - International law prevails over municipal law. Team "B" - Municipal law
prevails over international law. Team "C" - A country's Constitution prevails over
international law but international law prevails over municipal statutes.
If you were given a chance to choose the correct proposition, which would you take and
why?
 I shall take the proposition for Team C. International Law and municipal law are
supreme in their own respective fields. Neither has hegemony over the other. Under
Article II, Section 2 of the 1987 Constitution, the generally accepted principles of
international law form part of the law of the land. Since they merely have the force of law,
if it is Philippine courts that will decide the case, they will uphold the Constitution over
international law. If it is an international tribunal that will decide the case, it will uphold
international law over municipal law. As held by the Permanent International Court of
Justice in the case of the Polish Nationals in Danzig, a State cannot invoke its own
Constitution to evade obligations incumbent upon it under international law.

Switzerland and Australia are outstanding examples of neutralized states,

What are the characteristics of a neutralized state?
Whether simple or composite, a State is said to be neutralized where its
independence and integrity are guaranteed by an international convention on the
condition that such State obligates itself never to take up arms against any other State,
except for self-defense, or enter into such international obligations as would indirectly
involve it in war. A State seeks neutralization where it is weak and does not wish to take
an active part in international politics. The power that guarantee its neutralization may be
motivated either by balance of power considerations or by the desire to make the weak
state a buffer between the territories of the great powers.

Is neutrality synonymous with neutralization? If not, distinguish one from the other.
Firstly, neutrality obtains only during war, whereas neutralization is a condition that
applies in peace or in war. Secondly, neutralization is a status created by means of treaty,
whereas neutrality is a status created under international law, by means of a stand on the
part of a state not to side with any of the parties at war. Thirdly, neutrality is brought about
by a unilateral declaration by the neutral State, while neutralization cannot be effected by
unilateral act, but must be recognized by other States.

The Japanese Government confirmed that during the Second World War, Filipinas were
among those conscripted as "comfort women" (or prostitutes) for Japanese troops in
various parts of Asia. The Japanese Government has accordingly launched a goodwill
campaign and has offered the Philippine Government substantial assistance for a
program that will promote through government and non-governmental organizations
womens' rights, child welfare, nutrition and family health care.
An executive agreement is about to be signed for that purpose. The agreement includes
a clause whereby the Philippine Government acknowledges that any liability to the
"comfort women" or their descendants are deemed covered by the reparations
agreements signed and implemented immediately after the Second World War. Juliano
Iglesias, a descendant of a now deceased comfort woman, seeks your advice on the
validity of the agreement. Advise him.
The agreement is valid. The comfort women and their descendants cannot assert
individual claims against Japan. As stated in Davis & Moore vs. Regan, 453 U.S. 654, the
sovereign authority of a State to settle claims of its nationals against foreign countries has
repeatedly been recognized. This may be made without the consent of the nationals or
even without consultation with them. Since the continued amity between a State and other
countries may require a satisfactory compromise of mutual claims, the necessary power
to make such compromises has been recognized. The settlement of such claims may be
made by executive agreement.

In 1993, historians confirmed that during World War II, "comfort women" were forced into
serving the Japanese military. These women were either abducted or lured by false
promises of jobs as cooks or waitresses, and eventually forced against their will to have
sex with Japanese soldiers on a daily basis during the course of the war, and often
suffered from severe beatings and venereal diseases. The Japanese government
contends that the "comfort stations" were run as "onsite military brothels" (or prostitution
houses) by private operators, and not by the Japanese military. There were many Filipina
"comfort women." Name at least one basic principle or norm of international humanitarian
law that was violated by the Japanese military in the treatment of the "comfort women."
The treatment of “comfort women” by the Japanese military violated Article XXVII
of the Geneva Convention (IV), which provides that: “Women shall be especially protected
against any attack on their honor, in particular against rape, enforced prostitution, or any
form of indecent assault.”

The surviving Filipina "comfort women" demand that the Japanese government apologize
and pay them compensation. However, under the 1951 San Francisco Peace Agreement
-the legal instrument that ended the state of war between Japan and the Allied Forces -
all the injured states, including the Philippines, received war reparations and, in return,
waived all claims against Japan arising from the war. Is that a valid defense?
The defense is not valid. Under the preamble of San Francisco Treaty, Japan
Undertook to conform to the protection and observance of human rights. The San
Francisco Treaty must yield to the United Nations Charter which provides for respect of
human rights. Article 103 of the United Nations Charter provides that the obligation of the
member-States prevail over any other international agreement. The waiver in Article 14(a)
of the San Francisco Treaty is qualified by Article 14(b), which stated that Japan had no
resources presently sufficient to make complete reparation for all such damages and
sufferings and meet its other obligations. Thus the waiver was operative only while Japan
had inadequate resources.

The surviving Filipina "comfort women" sue the Japanese government for damages
before Philippine courts. Will that case prosper?
The Filipina “comfort women” cannot sue Japan for damages, because a foreign
State may not be sued before Philippine courts as a consequence of the principles of
independence and equality of States.

What is the concept of association under international law?

Under international law, an association is formed when two states of unequal
power voluntarily establish durable links. In the basic model, one state, the associate,
delegates certain responsibilities to the other, the principal, while maintaining its
international status as a state. Free associations represent a middle ground between
integration and independence.
Association under international Law, is a formal arrangement between a non-self-
governing territory and independent State whereby such territory becomes an associated
State with internal self- government, but the independent state is responsible for foreign
relations and defense.
For an association to be lawful, it must comply with the general conditions
prescribed in the UN General Assembly Resolution 1541 (XV) of 14 December 160: (1)
the population must consent to the association; and (2) the association must promote the
development and well- being of the dependent state (the non- self-governing territory).
Association subject to UN approval.
In deciding the constitutionality of the Memorandum of Agreement on the Ancestral
Domain (MOA-AD) Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001, the
Supreme Court had ruled that the concept of association under international law is not
recognized under the 1987 Constitution as it runs counter to the national sovereignty and
territorial integrity of the Republic.

Sources of obligations in international law

State your general understanding of the primary sources and subsidiary sources of
international law, giving an illustration of each.
Under Article 38 of the Statute of the International Court of Justice, the PRIMARY
SOURCES of international law are the following:
1. International conventions, e.g., Vienna Convention on the Law of Treaties.
2. International customs, e.g., sabotage, the prohibition against slavery, and the
prohibition against torture.
3. General principles of law recognized by civilized nations, e.g., prescription, res judicata,
and due process.
The SUBSIDIARY SOURCES of international law are judicial decisions, subject to the
provisions of Article 59, e.g., the decision in the Anglo-Norwegian Fisheries Case and
Nicaragua v. United States, and TEACHINGS of the most highly qualified publicists of
various nations, e.g., Human Rights in International Law.
Subjects
States
Distinguish between de facto recognition and de jure recognition of states.
The following are the distinctions between de facto recognition and de Jure
recognition of a government:
1. De facto recognition is provisional, de Jure recognition is relatively permanent;
2. De facto recognition does not vest title in the government to its properties abroad; de
Jure recognition does;
3. De facto recognition is limited to certain juridical relations; de jure recognition brings
about full diplomatic relations.

What is the doctrine of Sovereign immunity in international Law?

By the doctrine of sovereign immunity, a State, its agents and property are immune
from the judicial process of another State, except with its consent. Thus, immunity may
be waived and a State may permit itself to be sued in the courts of another State,
Sovereign immunity has developed into two schools of thought, namely, absolute
immunity and restrictive immunity. By absolute immunity, all acts of a State are covered
or protected by immunity. On the other hand, restrictive immunity makes a distinction
between governmental or sovereign acts (acta jure imperii) and nongovernmental,
propriety or commercial acts (acta jure gestiones). Only the first category of acts is
covered by sovereign immunity.
The Philippine adheres to the restrictive immunity school of thought.

The Republic of China (Taiwan), in its bid to develop a hydrogen bomb and defend itself
against threats of invasion coming from the People's Republic of China, conducted a
series of secret nuclear weapons tests in its own atmosphere. The tests resulted in
radioactive fallouts which contaminated the rivers in and around Aparri and other bodies
of water within the territorial jurisdiction of the Philippines, Can the Philippines complain
against the Republic of China for violation of its sovereignty?
In the Trial Smelter Arbitration between the United States and Canada, the Arbitral
Tribunal held that air pollution from Canada should be enjoined, because sovereignty
includes the right against any encroachment which might prejudice the natural use of the
territory and the free movement of its inhabitants.
Since the nuclear tests conducted by the Republic China resulted in radioactive fallouts
which contaminated the rivers and other bodies of water within the Philippines, the
Republic of China violated the sovereignty of the Philippines.
YES, the Philippines can complain against the Republic of China for violation of its
sovereignty. Article 194 of the Convention on the Law of the Sea requires States to take
all measures necessary to ensure that activities under their jurisdiction or control are so
conducted as not to cause damage by pollution to other States and their environment.
Principle 21 of the United Nations Conference on the Human Environment imposes upon
states the responsibility to ensure that activities within their jurisdiction or control do not
cause damage to the environment of other States.

How is state sovereignty defined in International Law?

State sovereignty signifies independence in regard to a portion of the globe, and
the right to exercise and enforce jurisdiction therein, to the exclusion of any other state
the functions of the state. Sovereignty means in- dependence from outside control. The
1933 Montevideo Convention expresses this in positive terms as including "the capacity
to enter into relations with other states."

Is state sovereignty absolute?

State sovereignty is not absolute. On the contrary, the rule says that the state may
not be sued without its consent, which clearly imports that it may be sued if it consents.
Moreover, certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family of nations; and (2) limitations imposed by treaty
stipulations. The sovereignty of a state therefore cannot in fact and in reality be
considered absolute.

In a raid conducted by rebels in a Cambodian town, an American businessman who has

been a long-time resident of the place was caught by the rebels and robbed of his cash
and other valuable personal belongings. Within minutes, two truckloads of government
troops arrived prompting the rebels to withdraw. Before fleeing they shot the American
causing him physical injuries. Government troopers immediately launched pursuit
operations and killed several rebels. No cash or other valuable property taken from the
American businessman was recovered.
In an action for indemnity filed by the US Government in behalf of the businessman for
injuries and losses in cash and property, the Cambodian government contended that
under International Law it was not responsible for the acts of the rebels. Is the contention
of the Cambodian government correct? Explain.
Yes, the contention of the Cambodian Government is correct. Unless it clearly
appears that the government has failed to use promptly and with appropriate force its
constituted authority it cannot be held responsible for the acts of rebels, for the rebels are
not its agents and their acts were done without its volition. In this case, government
troopers immediately pursued the rebels and killed several of them.

Suppose the rebellion is successful and a new government gains control of the entire
State, replacing the lawful government that was toppled, may the new government be
held responsible for the injuries or losses suffered by the American businessman?
Explain.
The new government may be held responsible if it succeeds in overthrowing the
government. Victorious rebel movements are responsible for the illegal acts of their forces
during the course of the rebellion. The acts of the rebels are imputable to them when they
assumed as duly constituted authorities of the state.

What is the basis of the Philippines' claim to a part of the Spratly Islands?
The basis of the Philippine claim is effective occupation of a territory not subject to
the sovereignty of another state. The Japanese forces occupied the Spratly Island group
during the Second World War. However, under the San Francisco Peace Treaty of 1951
Japan formally renounced all right and claim to the Spratlys. The San Francisco Treaty
or any other International agreement however, did not designate any beneficiary state
following the Japanese renunciation of right. Subsequently, the Spratlys became terra
nullius and was occupied by the Philippines in the title of sovereignty. Philippine
sovereignty was displayed by open and public occupation of a number of islands by
stationing of military forces, by organizing a local government unit, and by awarding
petroleum drilling rights, among other political and administrative acts. In 1978, it
confirmed its sovereign title by the promulgation of Presidential Decree No. 1596, which
declared the Kalayaan Island Group part of Philippine territory.

International organizations
State X invades and conquers State Y. The United Nations Security Council declares the
invasion and conquest illegal and orders an international embargo against State X.
Subsequently, the same U.N. body adopts a resolution calling for an enforcement action
against State X under Chapter VII of the U.N. Charter. State Z, a U.N. member, religiously
complies with the embargo but refuses to take part in the enforcement action, sending a
medical mission instead of fighting troops to the troubled area. Did State Z violate its
obligations under the U.N. Charter?
 No, State Z did not violate its obligations under the United Nations Charter. It
complied with the resolution calling for enforcement action against State X, because it
sent a medical team.

If so, what sanctions may be taken against.

No sanctions may be taken against State Z. because it did not violate its obligation
under the United Nations Charter.

If not, why not?

Compliance with the resolution calling for enforcement action against Slate X does
not necessarily call for the sending of fighting troops. Under Art 43 of the United Nations
Charter, compliance with the call for enforcement action against State X has to be made
in accordance with a special agreement with the Security Council and such agreement
shall govern the numbers and types of forces, their degree of readiness and general
locations, and the nature of the facilities and assistance to be supplied by members of the
United Nations.

Individuals
Jurisdiction of states
Basis of jurisdiction
Territoriality principle
Police Officer Henry Magiting of the Narcotics Section of the Western Police District
applied for a search warrant in the Regional Trial Court of Manila for violation of Section
11, Article II (Possession of Prohibited Drugs) of Republic Act (R.A.) No. 9165
(Comprehensive Dangerous Drugs Act of 2002) for the search and seizure of heroin in
the cabin of the Captain of the MSS Seastar, a foreign-registered vessel which was
moored at the South Harbor, Manila, its port of destination.
Based on the affidavits of the applicant's witnesses who were crew members of the
vessel, they saw a box containing ten kilograms of heroin under the bed in the Captain's
cabin. The RTC found probable cause for the issuance of a search warrant; nevertheless,
it denied the application on the ground that Philippine courts have no criminal jurisdiction
over violations of R.A. No. 9165 committed on foreign-registered vessels found in
Philippine waters. Is the ruling of the court correct? Support your answer with reasons.
foreign-registered vessel was not in transit. It was moored in South Harbor, Manila,
its port of destination. Hence, any crime committed on board said vessel, like possession
of heroin, is triable by our courts, except if the crime involves the internal management of
the vessel.

What are the so-called Mandates and Trust Territories? Does the United Nations exercise
sovereignty over these territories? In the affirmative, how is this jurisdiction exercised?
The Mandates were the overseas possessions of the defeated states of Germany
and Turkey which were placed by the League of Nations under the administration of
mandatories to promote their development and ultimate independence. When the United
Nations replaced the League of Nations, the system of Mandates was replaced by the
System of Trust Territories. The United Nations exercised residuary sovereignty over the
Trust Territories through the Trustee Powers, who exercised the powers of sovereignty
subject to supervision by and accountability to the United Nations.

Nationality principle and statelessness

Who are stateless persons under International Law?
STATELESS PERSONS are those who are not considered as nationals by any
State under the operation of its laws.

What are the consequences of statelessness?

The consequences of statelessness are the following:
a. No State can intervene or complain in behalf of a stateless person for an international
delinquency committed by another State in inflicting injury upon him.
b. He cannot be expelled by the State if he is lawfully in its territory except on grounds of
national security or public order.
c. He cannot avail himself of the protection and benefits of citizenship like securing for
himself a passport or visa and personal documents.

Is a stateless person entirely without right, protection or recourse under the Law of
Nations? Explain.
No. Under the Convention in Relation to the Status of Stateless Person, the
Contracting States agreed to accord to stateless persons within their territories treatment
at least as favorable as that accorded to their nationals with respect to freedom of religion,
access to the courts, rationing of products in short supply, elementary education, public
relief and assistance, labor legislation and social security. They also agreed to accord to
them treatment not less favorable than that accorded to aliens generally in the same
circumstances. The Convention also provides for the issuance of identity papers and
travel documents to stateless person.

What measures, if any, has International Law taken to prevent statelessness?

In the Convention on the Conflict of Nationality Laws of 1930, the Contracting
States agreed to accord nationality to persons born in their territory who would otherwise
be stateless. The Convention on the Reduction of Statelessness of 1961 provides that if
the law of the contracting States results in the loss of nationality as a consequence of
marriage or termination of marriage, such loss must be conditional upon possession or
acquisition of another nationality.

Protective principle
Universality principle
Passive personality principle
Exemptions from jurisdiction
Act of State doctrine
International organizations and its officers
The sovereignty over certain islands is disputed between State A and State B. These two
states agreed to submit their disputes to the International Court of Justice [ICJ]. Does the
ICJ have jurisdiction to take cognizance of the case?
 The International Court of Justice has jurisdiction over the case, because the
parties have jointly submitted the case to it and have thus indicated their consent to its
jurisdiction.

Who shall represent the parties before the Court?

Parties to a case may appoint agents to appear before the International Court of
Justice in their behalf, and these agents need not be their own nationals. However, under
Article 16 of the Statutes of the International Court of Justice, no member of the court may
appear as agent in any case.

The State of Nova, controlled by an authoritarian government, had unfriendly relations

with its neighboring state, America. Bresla, another neighboring state, had been shipping
arms and ammunitions to Nova for use in attacking Ameria. To forestall an attack, Ameria
placed floating mines on the territorial waters surrounding Nova. Ameria supported a
group of rebels organized to overthrow the government of Nova and to replace it with a
friendly government. Nova decided to file a case against Ameria in the International Court
of Justice On what grounds may Nova's causes of action against Ameria be based?
If Nova and Ameria are members of the United Nations, Nova can premise its
cause of action on a violation of Article 2(4) of the United Nations Charter, which requires
members to refrain from the threat or use of force.

On what grounds may Ameria move to dismiss the case with the ICJ? Decide the case.
By virtue of the principle of sovereign immunity, no sovereign state can be made
a party to a proceeding before the International Court of Justice unless it has given its
consent. If Ameria has not accepted the Jurisdiction of the International Court of Justice.
Ameria can invoke the defense of lack of jurisdiction. Even if Ameria has accepted the
jurisdiction of the court but the acceptance is limited and the limitation applies to the case,
it may invoke such limitation its consent as a bar to the assumption of jurisdiction.

If jurisdiction has been accepted, Ameria can invoke the principle of anticipatory self-
defense, recognized under customary international law, because Nova is planning to
launch an attack against Ameria by using the arms it bought from Bresia.
If jurisdiction over Ameria is established, the case should be decided in favor of
Nova, if jurisdiction over Ameria is not established, the case should be decided in favor
of Ameria because of the principle of sovereign immunity.

Under its Statute, give two limitations on the jurisdiction of the International Court of
Justice?
The following are the limitations on the jurisdiction of the International Court of
Justice under its Statute:
1. Only states may be parties in cases before it. (Article 34)
2. The consent of the parties is needed for the court to acquire jurisdiction over a case.
(Article 36)
The sovereignty over certain islands is disputed between State A and State B. These two
states agreed to submit their disputes to the International Court of Justice [ICJ]. What
language shall be used in the pleadings and oral argument?
Under Article 39 of the Statutes of the International Court of Justice, the official
languages of the court are English and French. In the absence of an agreement, each
party may use the language it prefers. At the request of any party, the court may authorize
a party to use a language other than English or French.

In case State A, the petitioner, falls to appear at the oral argument, can State B, the
respondent, move for the dismissal of the petition?
Under Article 39 of the Statutes of the International Court of Justice, the official
languages of the court are English and French. In the absence of an agreement, each
party may use the language it prefers. At the request of any party, the court may authorize
a party to use a language other than English or French.

Where is the seat of the International Court of Justice?

The seat of the International Court of Justice is at the Hague or elsewhere, as it
may decide, except during the judicial vacations the dates and duration of which it shall
fix .
How many are its members?
The Court is composed of fifteen members who must be of high moral character
and possess the qualifications required in their respective countries for appointment to
the highest judicial office or are jurisconsults of recognized competence in international
law (I.C.J. Statute, Art. 2).
What is the term of their office?
They are elected for a term of nine years, staggered at three-year intervals by
dividing the judges first elected into three equal groups and assigning them by lottery
terms of three, six and nine years respectively. Immediate re-election is allowed (I.C.J.
Statute, Art. 13).
n 1980, the United States filed with the International Court of Justice a complaint against
Iran alleging that the latter is detaining American diplomats in violation of International
Law. Explain how the International Court of Justice can acquire jurisdiction over these
contending countries.
Under Article 36 of the I.C.J. Statutes, both parties must agree to submit
themselves to the jurisdiction of the International Court of Justice.

Compare and contrast the jurisdiction of the International Criminal Court (ICC) and
International Court of Justice (ICJ).
The jurisdiction of the International Criminal Court (ICC) primarily deals with the
prosecution of individuals for core international crimes, while the jurisdiction of the
International Court of Justice (ICJ) deals with contentious proceedings between States.
As to subject matter jurisdiction (ratione materiae), the jurisdiction of the ICC is limited to
the most serious crimes of concern to the international community as a whole, particularly:
(a) the Crime of Genocide;
(b) Crimes against Humanity;
(c) War crimes; and
(d) the Crime of Aggression.
On the other hand, the jurisdiction of the ICJ covers legal disputes which the States refer
to it. This includes disputes concerning:
(a) the interpretation of a treaty;
(b) any question of international law; (c) the existence of any fact which, if established,
would constitute a breach of an international obligation; and
(d) the nature or extent of the reparation to be made for the breach of an international
obligation. (Article 36, ICJ Statute)
The ICJ also has jurisdiction to give an advisory opinion on any legal question as may be
requested by the General Assembly or the Security Council or on legal questions arising
within the scope of the activities of other organs and specialized agencies of the U.N.
upon their request and when so authorized by the General Assembly. (Article 96, U.N.
Charter)
As to jurisdiction over the persons or parties (ratione personae), the ICC shall have the
power to exercise its jurisdiction over persons for the most serious crimes of international
concern, and shall be complementary to national criminal jurisdictions. (Art. 1, Rome
Statute) On the other hand, only States may be parties in cases before the ICJ and their
consent is needed for the ICJ to acquire jurisdiction.

General principles of treaty law

May a treaty violate international law? if your answer is in the affirmative, explain when
such may happen. If you answer is in the negative, explain why?
Yes, a treaty may violate international law when at the time of its conclusion, it
conflicts with peremptory norm of general international law (jus cogens) or if its conclusion
has been procured by the threat or use of force in violation of the principles of international
law embodied in the Charter of the United Nations. (Vienna Convention on the Law of
Treaties, Art. 52 & 53).

Doctrine of state responsibility

Refugees
Extradition
What is the difference if any between extradition and deportation?
The following are the differences between extradition and deportation:
a. EXTRADITION is effected for the benefit of the state to which the person being
extradited will be surrendered because he is a fugitive criminal in that state, while
DEPORTATION is effected for the protection of the State expelling an alien because his
presence is not conducive to the public good.
b. EXTRADITION is effected on the basis of an extradition treaty or upon the request of
another state, while DEPORTATION is the unilateral act of the state expelling an alien.
c. In EXTRADITION, the alien will be surrendered to the state asking for his extradition,
while in DEPORTATION the undesirable alien may be sent to any state willing to accept
him.

Patrick is charged with illegal recruitment and estafa before the RTC of Manila. He jumped
bail and managed to escape to America. Assume that there is an extradition treaty
between the Philippines and America and it does not include illegal recruitment as one of
the extraditable offenses. Upon surrender of Patrick by the U.S. Government to the
Philippines, Patrick protested that he could not be tried for illegal recruitment. Decide.
Under the principle of specialty in extradition, Patrick cannot be tried for illegal
recruitment, since this is not included in the list of extraditable offenses in the extradition
treaty between the Philippines and the United States, unless the United States does not
object to the trial of Patrick for Illegal recruitment.

The Extradition Treaty between France and the Philippines is silent as to its applicability
with respect to crimes committed prior to its effectivity. Can France demand the
extradition of A, a French national residing in the Philippines, for an offense committed in
France prior to the effectivity of the treaty? Explain.
Yes, France can ask for the extradition of A for an offense committed in France
before the effectivity of the Extradition Treaty between France and the Philippines. It was
held that an extradition treaty applies to crimes committed before its effectivity unless the
extradition treaty expressly exempts them. As Whiteman points out, extradition does not
define crimes but merely provides a means by which a State may obtain the return and
punishment of persons charged with or convicted of having committed a crime who fled
the jurisdiction of the State whose law has been violated. It is therefore immaterial whether
at the time of the commission of the crime for which extradition is sought no treaty was in
existence. If at the time extradition is requested there is in force between the requesting
and "the requested States a treaty covering the offense on which the request is based,
the treaty is applicable.

Can A contest his extradition on the ground that it violates the ex post facto provision of
the Philippine Constitution? Explain.
No, A cannot contest his extradition on the ground that it violates the ex post facto
provision of the Constitution. As held, the prohibition against ex post facto laws in Section
22, Article 3 of the Constitution applies to penal laws only and does not apply to extradition
treaties.

John is a former President of the Republic X, bent on regaining power which he lost to
President Harry in an election. Fully convinced that he was cheated, he set out to
destabilize the government of President Harry by means of a series of protest actions.
His plan was to weaken the government and, when the situation became ripe for a take-
over, to assassinate President Harry. William, on the other hand, is a believer in human
rights and a former follower of President Harry. Noting the systematic acts of harassment
committed by government agents against farmers protesting the seizure of their lands,
laborers complaining of low wages, and students seeking free tuition, William organized
groups which held peaceful rallies in front of the Presidential Palace to express their
grievances. On the eve of the assassination attempt, John's men were caught by
members of the Presidential Security Group. President Harry went on air threatening to
prosecute plotters and dissidents of his administration. The next day, the government
charged John with assassination attempt and William with inciting to sedition.
John fled to Republic A. William, who was in Republic B attending a lecture on democracy,
was advised by his friends to stay in Republic B. Both Republic A and Republic B have
conventional extradition treaties with Republic X. If Republic X requests the extradition of
John and William, can Republic A deny the request? Why? State your reason fully.
Republic A can refuse to extradite John, because his offense is a political offense.
John was plotting to take over the government and the plan of John to assassinate
President Harry was part of such plan. However, if the extradition treaty contains an
attentat clause, Republic A can extradite John, because under the attentat clause, the
taking of the life or attempt against the life of a head of state or that of the members of his
family does not constitute a political offense and is therefore extraditable.

The Philippines and Australia entered into a Treaty of Extradition concurred in by the
Senate of the Philippines on September 10, 1990. Both governments have notified each
other that the requirements for the entry into force of the Treaty have been complied with.
It took effect in 1990. The Australian government is requesting the Philippine government
to extradite its citizen, Gibson, who has committed in his country the indictable offense of
Obtaining Property by Deception in 1985. The said offense is among those enumerated
as extraditable in the Treaty. For his defense, Gibson asserts that the retroactive
application of the extradition treaty amounts to an ex post facto law. Rule on Gibson's
contention.
Gibson is incorrect. It was held that the retroactive application of the Treaty of
Extradition does not violate the prohibition against ex post facto laws, because the Treaty
is neither a piece of criminal legislation nor a criminal procedural statute. It merely
provided for the extradition of persons wanted for offenses already committed at the time
the treaty was ratified.

Lawrence is a Filipino computer expert based in Manila who invented a virus that destroys
all the files stored in a computer. Assume that in May 2005, this virus spread all over the
world and caused $50 million in damage to property in the United States, and that in June
2005, he was criminally charged before United States courts under their anti-hacker law.
Assume that in July 2005, the Philippines adopted its own anti-hacker law, to strengthen
existing sanctions already provided against damage to property. The United States has
requested the Philippines to extradite him to US courts under the RP-US Extradition
Treaty. Is the Philippines under an obligation to extradite Lawrence? State the applicable
rule and its rationale.
The Philippine is under no obligation to extradite Lawrence. Under the principle of
dual or double criminality, the crime must be punishable in both the requesting and
requested states to make it extraditable. In this case, only the United States had anti-
hacker law at the time of the commission of the crime in May 2005. The rational for the
principle of dual criminality rests “in part on the basic principle of reciprocity” and “in part
of the maxim nulla poena sine lege.”

Assume that the extradition request was made after the Philippines adopted its anti-
hacker legislation. Will that change your answer?
The Philippines will be under the obligation to extradite Lawrence. Both the
Philippines and the United States have an anti-hacker law. The requirement of double
criminality is satisfied even if the act was not criminal in the requested state at the time of
its occurrence if it was criminal at the time that the request was made.
Basic principles of International Human Rights Law
Give three multilateral conventions on Human Rights adopted under the direct auspices
of the United Nations?
The following are multilateral conventions on Human Rights adopted under the direct
auspices of the United Nations:
1. International Covenant on Civil and Political Rights;
2. Convention on the Elimination of All Forms of Discrimination against Women;
3. Convention on the Rights of the Child;
4 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment;
5. International Convention on the Elimination of All Forms of Racial Discrimination;
6. Convention on the Prevention and Punishment of the Crime of Genocide; and
7. International Convention on Economic, Social, and Cultural Rights

Walang Sugat, a vigilante group composed of private businessmen and civic leaders
previously victimized by the Nationalist Patriotic Army (NPA) rebel group, was implicated
in the torture and kidnapping of Dr. Mengele, a known NPA sympathizer. Under public
international law, what rules properly apply? What liabilities, if any, arise thereunder if
Walang Sugat's involvement is confirmed.
On the assumption that Dr. Mengele is a foreigner, his torture violates the
International Covenant on Civil and Political Rights, to which the Philippine has acceded.
Article 7 of the "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment."
In accordance with Article 2 of the Covenant on Civil and Political Rights, it is the
obligation of the Philippines to ensure that Dr. Mengele has an effective remedy, that he
shall have his right to such a remedy determined by competent authority, and to ensure
the enforcement of such remedy when granted.

Distinguish civil rights from political rights and give an example of each right. What are
the relations of civil and political rights to human rights? Explain.
The term "CIVIL RIGHTS" refers to the rights secured by the constitution of any
state or country to all its Inhabitants and not connected with the organization or
administration of government,
POLITICAL RIGHTS consist in the power to participate, directly or indirectly, in the
management of the government. Thus, civil rights have no relation to the establishment,
management or support of the government.
CIVIL RIGHTS defines the relations of individual amongst themselves while
POLITICAL RIGHTS defines the relations of Individuals vis-a-vis the state. CIVIL RIGHTS
extend protection to all inhabitants of a state, while POLITICAL RIGHTS protect merely
its citizens.
Examples of civil rights are the rights against involuntary servitude, religious
freedom, the guarantee against unreasonable searches and seizures, liberty of abode,
the prohibition against imprisonment for debt, the right to travel, equal protection, due
process, the right to marry, right to return to this country and right to education.
 Examples of political rights are the right of suffrage, the right of assembly, and the
right to petition for redress of grievances.
Human rights are broader in scope than civil and political rights. They also include
social, economic, and cultural rights. Human rights are inherent in persons from the fact
of their humanity. Every man possesses them everywhere and at all times simply because
he is a human being. On the other hand, some civil and political rights are not natural
rights. They exist because they are protected by a constitution or granted by law. For
example, the liberty to enter into contracts is not a human right but is a civil right.

The City Mayor issues an Executive Order declaring that the city promotes responsible
parenthood and upholds natural family planning. He prohibits all hospitals operated by
the city from prescribing the use of artificial methods of contraception, including condoms,
pills intrauterine devices and surgical sterilization. As a result, poor women in his city lost
their access to affordable family planning programs. Private clinics, however, continue to
render family planning counsel and devices to paying clients. Is the Philippines in breach
of any obligation under international law? Explain.
The acts of the City Mayor may be attributed to the Philippines under the principle
of state responsibility Article 26 of the International Covenant on Civil and Political rights
requires that Philippine law shall prohibit any discrimination and shall guarantee to all
persons equal and effective protection against discrimination on any ground such as
social origin, birth or other status. The Executive Order of the City Mayor discriminates
against poor women.

Which statement best completes the following phrase:

“Freedom from torture is a right
a. Subject to derogation when national security is threatened
b. Confined only during custodial investigation
c. Which is non-derogable both during peacetime and in a situation of armed conflict
d. Both (a) and (b)
e. None of the above
C. “Freedom from torture is a right which is non-derogable both during peacetime
and in a situation of armed conflict.”
Article 2(2) of the U.N. Convention Against Torture provides that “No exceptional
circumstances whatsoever, whether a state of war or a threat of war, internal political
instability or any other public emergency, may be invoked as a justification of torture.”
Because of the importance of the values it protects, the prohibition of torture has evolved
into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the
international hierarchy than treaty law and even ordinary customary rules. The most
conspicuous consequence of this higher rank is that the norm prohibiting torture cannot
be derogated from by States through international treaties or local or special customs or
even general customary rules not endowed with the same normative force.

Basic principles of International Humanitarian Law

What is "Genocide," and what is the foremost example thereof in recent history?
"Genocide" refers to any of the following acts, whether committed in time of war or
peace, with intent to destroy in whole or in part national, ethnic, racial or religious group:
(a) Killing members of a group;
(b) Causing bodily or mental harm to its members;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) Imposing measures to prevent births within the group; and
(e) Forcibly transforming children of the group to another group.
The foremost example of genocide is the Holocaust (1933-1945) where about 6
million Jews (two thirds of the Jewish population of Europe before World War II) were
exterminated by the Nazis. Along with the Jews, another 9 to 10 million people (Gypsies
and Slavs) were massacred.

The dictatorial regime of the President A of the Republic of Gordon was toppled by a
combined force led by Gen. Abe, former royal guards and the secessionist Gordon
People’s Army. The new government constituted a Truth and Reconciliation Commission
to look into the serious crimes committed under President A’s regime. After the hearings,
the Commission recommended that an amnesty law be passed to cover even those
involved in mass killings of members of indigenous groups who opposed President A.
International human rights groups argued that the proposed amnesty law is contrary to
international law. Decide with reasons.
The proposed amnesty law is contrary to international law.
The indigenous group may constitute an ethnic group which is protected by the law on
Genocide. If the mass killing was committed with the intent to destroy (dolusspecialis) the
said ethnic group as such, in whole or in part, then the crime of Genocide was committed.
The international norm for the prevention, prosecution and punishment of Genocide is a
peremptory (just cogens) norm of international law and, therefore, non- derogable.
Even if the mass killing was not committed with the dolusspecialis to destroy the
ethnic group as such, the same may still constitute the Crime Against Humanity of
Extermination if the mass killing was widespread and systematic or the War Crime of
Intentionally Attacking Civilians if the same took place in the context of or was associated
with an armed conflict. The norm for the prevention, prosecution and punishment of
crimes against humanity and war crimes are also customary norms of international and
therefore binding on all States.
Thus, Republic of Gordon has the obligation under international law to prosecute
and punish all those involved in the mass killing of the members of the indigenous group
and providing amnesty to those involved is violative of this obligation.

Not too long ago, "allied forces", led by American and British armed forces, invaded Iraq
to "liberate the Iraqis and destroy suspected weapons of mass destruction." The Security
Council of the United Nations failed to reach a consensus on whether to support or
oppose the "war of liberation". Can the action taken by the allied forces find justification
in International Law? Explain.
The United States and its allied forces cannot justify their invasion of Iraq on the
basis of self-defense under Article 51 attack by Iraq, and there was no necessity for
anticipatory self- defense which may be justified under customary international law.
Neither can they justify their invasion on the ground that Article 42 of the Charter of the
United Nations permits the use force against a State if it is sanctioned by the Security
Council. Resolution 1441, which gave Iraq a final opportunity to disarm or face serious
consequences, did not authorize the use of armed force.

The State of Nova, controlled by an authoritarian government, had unfriendly relations

with its neighboring state, Ameria. Bresla, another neighboring state, had been shipping
arms and ammunitions to Nova for use in attacking Arneria. To forestall an attack, Ameria
placed floating mines on the territorial waters surrounding Nova. Ameria supported a
group of rebels organized to overthrow the government of Nova and to replace it with a
friendly government. Nova decided to file a case against Ameria in the International Court
of Justice. On what grounds may Nova's causes of action against Ameria be based?
If Nova and Ameria are members of the United Nations, Nova can premise its
cause of action on a violation of Article 2(4) of the United Nations Charter, which requires
members to refrain from the threat or use of force against the territorial integrity or political
independence of any state. If either or both Nova or Ameria are not members of the United
Nations, Nova may premise its cause of action on a violation of the non-use of force
principle in customary international law which exists parallel to Article 2(4) of the United
Nations Charter.
The International Court of Justice considered the planting of mines by one state
within the territorial waters of another as a violation of Article 2(4) of the United Nations
Charter. If the support provided by Ameria to the rebels of Nova goes beyond the mere
giving of monetary or psychological support but consists in the provision of arms and
training, the acts of Ameria can be considered as indirect aggression amounting to
another violation of Article 2(4).
In addition, even if the provision of support is not enough to consider the act a
violation of the non-use of force principle, this is a violation of the principle of non-
intervention in customary International law.
Aggression is the use of armed force by a state against the sovereignty, territorial integrity
or political independence of another state or in any other manner inconsistent with the
United Nations Charter.

On what grounds may Ameria move to dismiss the case with the ICJ?
By virtue of the principle of sovereign immunity, no sovereign state can be made
a party to a proceeding before the International Court of Justice unless it has given its
consent.

Decide the case.

If jurisdiction over Ameria is established, the case should be decided in favor of
Nova, because Ameria violated the principle against the use of force and the principle of
non- Intervention. The defense of anticipatory self- defense cannot be sustained, because
there is no showing that Nova had mobilized to such an extent that if Ameria were to wait
for Nova to strike first it would not be able to retaliate.
However, if jurisdiction over Ameria is not established, the case should be decided in
favor of Ameria because of the principle of sovereign immunity.

On October 13, 2001, members of Ali Baba, a political extremist organization based in
and under the protection of Country X and espousing violence worldwide as a means of
achieving its objectives, planted high-powered explosives and bombs at the International
Trade Tower (ITT) in Jewel City in Country Y, a member of the United Nations. As a result
of the bombing and the collapse of the 100-story twin towers, about 2,000 people,
including women and children, were killed or injured, and billions of dollars in property
were lost. Immediately after the incident, Ali Baba, speaking through its leader Bin
Derdandat, admitted and owned responsibility for the bombing of ITT, saying that it was
done to pressure Country Y to release captured members of the terrorist group. Ali Baba
threatened to repeat its terrorist acts against Country Y if the latter and its allies failed to
accede to Ali Baba's demands. In response, Country Y demanded that Country X
surrender and deliver Bin Derdandat to the government authorities of Country Y for the
purpose of trial and "in the name of justice." Country X refused to accede to the demand
of Country Y. What action or actions can Country Y legally take against Ali Baba and
Country X to stop the terrorist activities of Ali Baba and dissuade Country X from harboring
and giving protection to the terrorist organization? Support your answer with reasons.
Country Y may exercise the right of self-defense, as provided under Article 51 of
the UN Charter "until the Security Council has taken measure necessary to maintain
international peace and security". Self-defense enables Country Y to use force against
Country X as well as against the Ali Baba organization.
It may bring the matter to the Security Council which may authorize sanctions
against Country X, including measure invoking the use of force. Under Article 4 of the UN
Charter, Country Y may use force against Country X as well as against the Ali Baba
organization by authority of the UN Security Council.

At the Nuremberg trial of the Nazi war criminals at the end of the World War II. the defense
argued on behalf of the German defendants that although a nation could not wage
aggressive war without transgressing International law, it could use war as an Instrument
of self-defense, and that the nation itself must be the sole judge of whether its actions
were in self-defense. How would you meet the argument if you were a member of the
Tribunal trying the case?
No rule of International law gives a state resorting to war allegedly in self-defense
the right to determine with a legally conclusive effect the legality of such action.
The Judgment of the Nuremberg International Military Tribunal rejected the defense of
the Nazi war criminals:"But whether action taken under the claim of self-defense was in
fact aggressive or defensive must ultimately be subject to investigation and adjudication
if international law is ever to be enforced."

The Charter of the United Nations prohibits not only recourse to war but also resort to the
use of force or threat. In the ardent desire to maintain peace, the Charter obliges members
to settle their international disputes by peaceful means and to refrain in their international
relations from the threat or use of force. The same Charter, however, recognizing perhaps
the realities of international relations, allows the use of force in exceptional occasions.
Please state two occasions when the use of armed forces is allowed by the U.N. Charter.
Under art. 42 of the UN Charter, should the Security Council consider that pacific
methods of settling disputes are 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 UN.
Under art. 51 member states also have the inherent right of collective self defense
if an armed attack occurs against a member state, until the Security Council has taken
measures necessary to maintain international peace and security.

Reden, Jolan and Andy. Filipino tourists, were in Bosnia-Herzegovina when hostilities
erupted between the Serbs and the Moslems. Penniless and caught in the crossfire,
Reden, Jolan, and Andy, being retired generals, offered their services to the Moslems for
a handsome, salary, which offer was accepted. When the Serbian National Guard
approached Sarajevo, the Moslem civilian population spontaneously took up arms to
resist the invading troops. Not finding time to organize, the Moslems wore armbands to
identify themselves, vowing to observe the laws and customs of war. The three Filipinos
fought side by side with the Moslems. The Serbs prevailed resulting in the capture of
Reden, Jolan and Andy, and part of the civilian fighting force. Are Reden, Jolan and Andy
considered combatants thus entitled to treatment as prisoners of war?
Reden, Jolan and Andy are not combatants and are not entitled to treatment as
prisoners of war, because they are mercenaries. Article 47 of the Protocol I to the Geneva
Conventions of 1949 provides:" A Mercenary shall not have the right to be combatant or
a prisoner of war."
Pursuant to Article 47 of Protocol I of the Geneva Conventions of 1949, Reden,
Jolan, and Andy are mercenaries, because they were recruited to fight in an armed
conflict, they in fact took direct part in the hostilities, they were motivated to take part in
the hostilities essentially by the desire for private gain and in fact was promised a
handsome salary by the Moslems, they were neither nationals of a party to the conflict
nor residents of territory controlled by a party to the conflict, they are not members of the
armed forces of a party to the conflict, and they were not sent by a state which is not a
party to the conflict on official duty as members of its armed forces.

Are the captured civilians likewise prisoners of war?

The captured civilians are prisoners of war. Under Article 4 of the Geneva
Convention relative to the Treatment of Prisoners of War, inhabitants of a non-occupied
territory, who on the approach of the enemy spontaneously take up arms to resist the
invading forces, without having had time to form themselves into regular armed forces,
provided they carry arms openly and respect the laws and customs of war, are considered
prisoners of war if they fall into the power of the enemy.

A terrorist group called the Emerald Brigade is based in the State Asyaland. The
government of Asyaland does not support the terrorist group, but being a poor country, is
powerless to stop it.
The Emerald Brigade launched an attack on the Philippines firing two missiles that killed
thousands of Filipinos. It then warned that more attacks were forthcoming. Through
diplomatic channels the Philippines demanded that Asyaland stop the Emerald Brigade;
otherwise, it will do whatever is necessary to defend itself.
Receiving reliable intelligence reports of another imminent attack by the Emarld Brigae,
and it appearing that Asyaland was incapable of preventing the assault, the Philippines
sent a crack commando team to Asyaland. The team stayed only for a few hours in
Asyaland, succeeded in killing the leaders and most of the members of the Emerald
Brigade, then immediately returned to the Philippines. Was the Philippine action justified
under the international law principle of self- defense? Explain your answer.
The Philippines action cannot be justified as self-defense. Self-defense is an act
of a State by reason of an armed attack by another State. The acts of terrorism in this
case were acts of private group and cannot be attributed to Asyaland, which does not
support the Emerald Brigade. Article 51 of the Charter of the United Nations has no
applicability, because self defense in Article 51 contemplates a response to a legitimate
armed attack by a State against another State. The attack of Emerald Brigade is an attack
by a private group without authority as an organ of Asyaland.

As a consequence of the foregoing incident, Asyaland charges the Philippines with

violation of Article 2.4 of the United Nations Charter that prohibits “the threat or use of
force against the territorial integrity or political independence of any State. The Philippines
counters that its commando team neither took any territory nor interfered in the political
processes of Asyaland. Which contention is correct? Reasons.
The contention of Asyaland is correct. The Philippines violated Article 2(4) of the
Charter of the United Nations, which prohibits States from the threat or use of force
against territorial integrity of any State.

Assume that the commando team captured a member of the Emerald Brigade and
brought him back to th Philippines. The Philippine Government insists that a special
international tribunal should try the terrorist. On the other hand, the terrorist argues that
terrorism is not an international crime and, therefore, the municipal laws of the Philippines,
which recognize access of the accused to constitutional rights, should apply. Decide with
reasons.
The terrorist should be tried in the Philippines. Section 58 of Republic Act No. 9372,
thr Human Security Act provides for its extraterritorial application to individual persons
who, although outside the territorial limits of the Philippines, commit an act of terrorism
directly against Filipino citizens where their citizenship was a factor in the commission of
the crime.

Under the WILSON DOCTRINE, recognition shall not be extended to any government
established by revolution or internal violence until the freely elected representatives of the
people have organized a constitutional government.
Under the ESTRADA DOCTRINE, the Mexican government declared that it would, as it
saw fit, continue or terminate its diplomatic relations with any country in which a political
upheaval had taken place and in so doing it would not pronounce judgment on the right
of the foreign state to accept, maintain or replace its government.

Law of the sea

Baselines
Archipelagic states
Under Section 1, Article I of the 1987 Constitution, the Internal watersof the Philippines
consist of the waters around, between and connecting the islands of the Philippine
Archipelago, regardless of their breadth and dimensions, including the waters in bays,
rivers and lakes. No right of innocent passage for foreign vessels exists in the case of
internal waters. Internal waters are the waters on the landward side of baselines from
which the breadth of the territorial sea is calculated.

Territorial sea is an adjacent belt of sea with a breadth of twelve nautical miles measured
from the baselines of a state and over which the state has sovereignty. (Articles 2 and 3
of the Convention on the Law of the Sea.) Ship of all states enjoy the right of innocent
passage through the territorial sea. (Article 14 of the Convention on the Law of the Sea.)
Contiguous zone is a zone contiguous to the territorial sea and extends up to twelve
nautical miles from the territorial sea and over which the coastal state may exercise
control necessary to prevent infringement of its customs, fiscal, immigration or sanitary
laws and regulations within its territory or territorial sea. (Article 33 of the Convention on
the Law of the Sea.)
Exclusive economic zone s a zone extending up to 200 nautical miles from the baselines
of a state over which the coastal state has sovereign rights for the purpose of exploring
and exploiting, conserving and managing the natural resources, whether living or
nonliving, of the waters superjacent to the seabed and of the seabed and subsoil, and
with regard to other activities for the economic exploitation and exploration of the zone.
(Articles 56 and 57 of the Convention on the Law of the Sea.)

What is the concept of the exclusive economic zone under the UN Convention on the Law
of the Sea?
The exclusive economic zone under the Convention on the Law of the Sea is an
area beyond and adjacent to the territorial sea, which shall not extend beyond 200
nautical miles from the baselines from which the territorial sea is measured. The coastal
State has in the exclusive economic zone:
(a) Sovereign rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, if the waters superjacent to the sea-
bed and of the seabed and subsoil, and with regard to other activities for the economic
exploitation and exploration of the zone, such as the production of energy from the water,
currents and winds;
(b) Jurisdiction as provided in the relevant provisions of the Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research; and
(iii) the protection and preservation of the marine environment;
(c) Other rights and duties provided form the Convention. [Article 56 of the Convention of
the Law of the Sea.)

Continental shelf and extended continental shelf International Tribunal for the Law of the
Sea
CONTINENTAL SHELF of a coastal state comprises the sea-bed and subsoil of the
submarine areas that extend beyond its territorial sea throughout the natural prolongation
of its land territory to the outer edge of the continental margin, or to a distance of 200
nautical miles from the "baselines from which the breadth of the territorial sea is measured
where the outer edge of the continental shelf does not extend up to that distance.
Distinguish briefly but clearly between: The flag state and the flag of convenience.
FLAG STATE means a ship has the nationality of the flag of the state it flies, but there
must be a genuine link between the state and the ship. (Article 91 of the Convention on
the Law of the Sea.)
FLAG OF CONVENIENCE refers to a state with which a vessel is registered for various
reasons such as low or non-existent taxation or low operating costs although the ship has
no genuine link with that state.

En route to the tuna fishing grounds in the Pacific Ocean, a vessel registered in Country
TW entered the Balintang Channel north of Babuyan Island and with special hooks and
nets dragged up red corals found near Batanes. By international convention certain corals
are protected species, just before the vessel reached the high seas, the Coast Guard
patrol intercepted the vessel and seized its cargo including tuna. The master of the vessel
and the owner of the cargo protested, claiming the rights of transit passage and innocent
passage, and sought recovery of the cargo and the release of the ship. Is the claim
meritorious or not? Reason briefly.
The claim of innocent passage is not meritorious. While the vessel has the right of
innocent passage, it should not commit a violation of any international convention. The
vessel did not merely navigate through the territorial sea, it also dragged red corals in
violation of the international convention which protected the red corals. This is prejudicial
to the good order of the Philippines. (Article 19(2) of the Convention on the Law of the
Sea)

State Epsilon, during peace time, has allowed foreign ships innocent passage through
Mantranas Strait, a strait within Epsilon's territorial sea which has been used by foreign
ships for international navigation. Such passage enabled the said ships to traverse the
strait between one part of the high seas to another. On June 7, 1997, a warship of State
Beta passed through the above-named strait. Instead of passing through continuously
and expeditiously, the ship delayed its passage to render assistance to a ship of State
Gamma which was distressed with no one nearby to assist. When confronted by Epsilon
about the delay, Beta explained that the delay was due to force majeure in conformity
with the provision of Article 18(2) of the 1982 Convention on the Law of the Sea
(UNCLOS). Seven months later, Epsilon suspended the right of innocent passage of
warships through Mantranas Strait without giving any reason therefor. Subsequently,
another warship of Beta passed through the said strait, and was fired upon by Epsilon's
coastal battery. Beta protested the aforesaid act of Epsilon drawing attention to the
existing customary international law that the regime of innocent passage (even of transit
passage) is non-suspendable. Epsilon countered that Mantranas Strait is not a necessary
route, there being another suitable alternative route. Resolve the above-mentioned
controversy, Explain your answer.
Assuming that Epsilon and Beta are parties to the UNCLOS, the controversy
maybe resolved as follows:
Under the UNCLOS, warships enjoy a right of innocent passage. It appearing that
the portion of Epsilon's territorial sea in question is a strait used for international
navigation, Epsilon has no right under international law to suspend the right of innocent
passage. Article 45(2) of the UNCLOS is clear in providing that there shall be no
suspension of innocent passage through straits used for international navigation.
On the assumption that the straits in question is not used for international navigation, still
the suspension of innocent passage by Epsilon cannot be effective because suspension
is required under international law to be duly published before it can take effect. There
being no publication prior to the suspension of innocent passage by Beta's warship,
Epsilon's act acquires no validity.
Moreover, Epsilon's suspension of innocent passage may not be valid for the
reason that there is no showing that it is essential for the protection of its security. The
actuation of Beta's warship in resorting to delayed passage is for cause recognized by
the UNCLOS as excusable, i.e., for the purpose of rendering assistance to persons or
ship in distress, as provided in Article 18(2) of the UNCLOS. Hence, Beta's warship
complied with the international law norms on right of innocent passage.

En route to the tuna fishing grounds in the Pacific Ocean, a vessel registered in Country
TW entered the Balintang Channel north of Babuyan Island and with special hooks and
nets dragged up red corals found near Batanes. By international convention certain corals
are protected species. Just before the vessel reached the high seas, the Coast Guard
patrol intercepted the vessel and seized its cargo including tuna. The master of the vessel
and the owner of the cargo protested, claiming the rights of transit passage and innocent
passage, and sought recovery of the cargo and the release of the ship. Is the claim
meritorious or not? Reason briefly.
The claim of innocent passage is not meritorious. While the vessel has the right of
innocent passage, it should not commit a violation of any international convention. The
vessel did not merely navigate through the territorial sea, it also dragged red corals in
violation of the international convention which protected the red corals. This is prejudicial
to the good order of the Philippines. (Article 19(2) of the Convention on the Law of the
Sea)

Basic principles of International Environmental Law

What is outer-space? Who or which can exercise jurisdiction over astronauts while in
outer space?
There are several schools of thought regarding the determination of outer space,
such as the limit of air flight, the height of atmospheric space, infinity, the lowest altitude
of an artificial satellite, and an altitude approximating aerodynamic lift. Another school of
thought proceeds by analogy to the law of the sea. It proposes that a State should
exercise full sovereignty up to the height to which an aircraft can ascend. Non-militant
flight instrumentalities should be allowed over a second area, a contiguous zone of 300
miles. Over that should be outer space. The boundary between airspace and outer space
has not yet been defined. Under Article 8 of the Treaty on the Principles Governing the
Activities of States in the Exploration and Use of Outer Space, Including the Moon and
Other Celestial Bodies, a State on whose registry an object launched into outer space
retains jurisdiction over the astronauts while they are in outer space.