uwu | Atty. RVP | PIL | A.Y.

2020-2021
Module 1 Spanish Jesuit Francisco Suarez who published his important work A
FOUNDATION AND STRUCTURE OF INTERNATIONAL LAW Treatise on Laws and God the Lawgiver. Suarez was succeeded by the,
Public International Law arguably, most famous international lawyer of all time.
It deals with legal issues of concern to more than one state.
The Dutchman Hugo Grotius, “FATHER OF INTERNATIONAL LAW”,
It is traditionally defined as the system of law that regulates the whose major contributions to the development of international law
interrelationship of sovereign states and their rights and duties with include The Freedom of the Seas and On the Law of war and Peace.
regard to one another. Among other things, Grotius was instrumental in applying natural law
to the conduct of international relations and developing the law of
But that must be added a host of other actors, most notably nations to make it a practical tool for regulating a variety of areas of
international organizations and individuals that may also possess international relations.
rights and/or obligations under international law.
Emmerich de Vattel whose Law of Nations from 1758 contains usefuL
Public International Law vs Private International Law legal guidance for practitioners of international law.
Public international law must be distinguished from ‘private The international legal system that we recognize today is generally
international law’ that consists of national laws that deal with tied to the emergence and consolidation of nation states in Europe.
conflicts of law and establish rules for the treatment of cases that
involve a foreign element. Westphalia
Old name for a place in modern “Germany”
An international society becomes ever more specialized and - The ‘birth’ of the international state system is usually traced back to
intertwined, so does international law. the 1648 Peace of Westphalia that brought an end to the Thirty Years
War that had ravaged continental Europe. Through this, the peace
A. History of international law (Henriksen, pp 1 – 19) treaties of Westphalia consisting of the Peace of Munster and the
It all began in Europe Treaties of Munster and Osnabruck, the major European powers
International Law was invented in Europe. sought to establish a semblance of order and structure in an
Europe in the Middle Ages (15th and 16th centuries) was otherwise anarchical and disorderly European world. The idea was to
characterized by both multiple levels of different allegiances and reduce the powers of transnational forces, like empire and religion,
rights and obligations as well as the universal political and religious and instead compartmentalize territory and individuals into sovereign
forces of, respectively, the Holy Roman Empire and the Catholic states.
Church.
In turn, over time, this helped to establish the state as the primary
Natural Law or jus naturale source of authority paving the way for an increasing sense of
This contained an all embracing set of ideas about natural and social allegiance among citizens to their respective states of nationality. By
life in the universe through primarily focused on the individual and his attempting to create an international order derived from agreed rules
or her relations to the world, it also applied to states by virtue of the and limits and basing it on a multiplicity of ‘states’ of equal legal
fact that rulers were also individuals and therefore subject to it. importance, Westphalia was a decisive turning point. What had
initially conceived of as a concept of order for war-torn continental
Jus gentium Europe, spread to the rest of the world and to this day remains a key
A law of people/nations and hence inferior to natural law, at times building block of international law.
simply perceived as being derived from the more overarching
principles of the latter. 19th Century
The 19th century was dominated by a full-on assault on the idea that
Colonialism acts of states could be judged according to whether or not they
Francisco de Vitoria concluded that the native populations of the New conformed to transcendental ideals of fairness or divine will.
World were part of the society of the human race and that the acts of In international law, this was the era of ‘positivism’, the primary
the Spanish conquistadores were thus governed by natural law. tenant of which was that the only true source of law was state will.

The 17th and 18th centuries Prosecution of Top German Officials

This is where we begin to see the contours of a modern international First, one of the ways in which the world (or, more correctly, the
legal system. victorious states in the war) reacted to the atrocities of the Nazis was
For one thing, a much clearer distinction was introduced between just to prosecute top German officials for international crimes before a
naturale and jus gentium and it is from the latter that international war crimes tribunal before a war crimes tribunal in Nuremberg,
law as we know it subsequently developed as a discipline. thereby setting an important precedent in international criminal law.
Important People in International Law The United Nations

By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 1
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The League of Nations was replaced by the United Nations (UN) which respect for sovereignty dictates that national law is ill-suited to a
was entrusted with the maintenance of international peace and situation where the interests of more than one sovereign state
security. The UN is built on solid ‘Westphalian’ principles and is based collide.
on respect for the principle of equal rights and self determination of
peoples and on the sovereign equality of all its members. NOTE:
In essence, then, international law serves as a supplement to national
The founding treaty of the UN-the Charter of the United Nations, law – as a residual legal system – the scope of which cannot be
Signed in San Francisco, USA. determined independently of national law. It is only when an issue of
Introduced a ban on the use of force and gave the collective organ- interest to more than one national sovereign that international law
the Security Council – the competence to maintain international enters the picture. The scope of international law thereby determined
peace and security and, to that end, if necessary, to authorize forceful by the inadequacy of national law. The content of international law,
measures. From then on, the maintenance of peace and the conduct and thus the concrete answers to the questions that cannot be
of war were to be a collective effort. In practice, however from the answered in national law, on the other hand, must be found in
outset the activities of the UN were marred by the outbreak of the international law.
Cold War and the struggle between the Great Powers of the East and
West. It was not until after the collapse of communism and the C. The basis of international obligation
successful sanctioned ousting of Iraq from Kuwait in 1991, that the The existence of plurality of sovereign states justifies the binding
collective security system in the UN began to live, to some extent, up character of international law. It is not, in other words, a matter of
to its promises. choosing between upholding either state sovereignty of international
legal obligations but, rather, of perceiving international legal
The UN Charter also established a General Assembly where all obligations as a logical consequence of sovereignty. Just as domestic
members are represented. Although the Assembly only has a societies must impose limits on the way individuals exercise their
consultative role, it offers an organizational structure where all states liberties, if liberty for all is to be respected, it is only by limiting the
– including those of marginal importance – can voice their opinions manner in which sovereign states may exercise their sovereignty of
and raise their concerns. The Assembly has also been instrumental in all states. The peaceful coexistence of sovereign states requires the
the promotion of a wide range of goals of global interest. existence of a number of basic rules that dictate how states may
behave and may not behave in their mutual relations.
In 1960, the Assembly adopted a landmark declaration on the
granting of independence to colonies that affirmed the right of all D. The relationship between international law and national law
people to self determination and proclaimed that colonialism should First of all, International law asserts its own supremacy over national
be brought to a speedy and unconditional end. law. A state cannot justify a breach of its international legal
obligations by arguing that compliance would be at variance with its
In 1946, it established the International Law Commission (ILC) whose national law. International law is not, however, generally preoccupied
primary purpose is to promote the progressive development of with how a state lives up to its international obligations and leaves it
international law. The ILC has been instrumental in the adoption of to each state to determine how it will implement its international
important treaties, such as in the law of the sea, diplomatic and commitments. What is of interest are actual breaches of international
consular relations, human rights and on treaty law itself. legal obligations in the form of concrete results that follow from acts
or omissions.
B. The structures of international law
The structures are built on the configuration of the sovereign state as NOTE:
the primary actor in the international system. In fact, the reason why There are exceptions, however, and member states of the EU may be
the 1648 Peace of Westphalia is generally perceived as a pivotal under obligations to implement EU regulations and directives in their
moment in the development of international law is because it domestic legal system in a certain manner.
founded the principle that sovereign states are the primary actors in
the international system and that they enjoy equal legal status as well A second point relates to the manner in which international law is
as protection from outside intervention. From then on, the applied in national legal systems by the legislature and national
international society has first and foremost been a society of courts. National implementation and concrete application of
individual sovereign states. international law is a constitutional issue that varies from state to
state. Most presentations begin the analysis with the two different
International law is best conceived of from the standpoint of national approaches that have denominated legal theory: monism and
law and as a response to a lawyer’s need for legal rules and principles dualism.
to complement those found in his or her national legal system.
National law is perfectly adequate to regulate the vast majority of Monism holds that international law and national law essentially form
legal disputes that merely involve the relationship between citizens a single legal order or a set of mutually intertwined legal orders that
of a sovereign state or between the citizens and the state. But mutual are presumed to be coherent.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 2
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Dualism, on the other hand, holds that international law and national This case actually relates to the doctrine of transformation and it best
law are two separate legal systems that operate independently. illustrates the most fundamental concepts of international law. You
have the Milk Code which was enacted by President Cory Aquino
Atty Pandi: because during that time it was still a freedom constitution. Both
If there is a dispute between international law and municipal or executive and legislative powers were vested in her office.
domestic law, which will prevail? It actually depends on where you
raise your case. If a dispute is raised before the International Court of The Milk Code was enacted and it was pursuant to the ICMBS, an
Justice, other international tribunals, international law would prevail international agreement or a form of a treaty that was issued
(Art. 27, Vienna Convention on the Law of Treaties; but if a dispute is pursuant to the authority of the WHO. It was transformed into a
raised before the domestic or national courts, then almost always, the Philippine law through the Milk Code so that the treaty will be
domestic courts will favor our own domestic laws. applicable to the Philippines. All treaties have to be transformed
through a constitutional mechanism such as a local legislation before
1. Sec. 2, Art. II, 1987 Constitution they become applicable. The treaty that we copied actually bans
Section 2, Article II of the 1987 Constitution embodies the advertising milk substitutes.
incorporation method.
However, our Milk Code, while it is substantially copied in verbatim
Doctrine of Incorporation relevant provisions, did not actually adapt the provision from the
This is wherein the Philippines adopts the generally accepted international treaty that prohibits advertising breast milk substitutes.
principles of international law and international jurisprudence as part We copied it but we changed some provisions and the provision
of the law of the land and adheres to policy, peace, cooperation, and changed was the advertising of breast milk substitutes.
amity with all nations. The incorporation method applies when, by
mere constitutional declaration, international law is deemed to have So, the issue here is WON the advertising of breast milk substitutes is
the force of domestic law. allowed.

The Philippines renounces war as an instrument of national policy, In the treaty, it is not allowed but in the Milk Code, it was allowed.
adopts the generally accepted principles of international law as part DOH contends that they just copied it from the treaty and it is already
of the law of the land and adheres to the policy of peace, equality, transformed into the Milk Code. Therefore, it is applicable in the
justice, freedom, cooperation, and amity with all nations. Philippines.

"Generally accepted principles of international law" refers to norms The SC said NO, because we did not apply or copy it in its entirety the
of general or customary international law which are binding on all ICMBS. Therefore, you cannot benefit from some of the provisions in
states. the international version that were not copied in the local version.
DOH has exceeded authority because the Milk Code does not
Atty Pandi: From now on, if you will read GAPIL, what should come absolutely ban the advertising of the milk substitutes.
to your mind is that it actually refers to Customary International Law
(CIL). DOH contends that these rules attain the customary international law
and whether if it was transformed through a local legislation or not,
2. Section 21, Article VII, 1987 Constitution it will be applicable in the Philippines by virtue of Art 2 Sec 2 of the
The Transformation Method is found in Article VII, Section 21 of the Constitution. Meaning, the prohibition on advertising breast milk
Constitution. substitutes actually form part of generally accepted principles of
international law which is automatically incorporated whether the
Doctrine of Transformation treaty was copied or in verbatim is immaterial because allegedly, it is
The transformation method requires that an international law be a GAPIL rule.
transformed into a domestic law through a constitutional mechanism
such as local legislation. The SC mentioned about the 2 elements of CIL to exist which are state
practice and opinio juris. Furthermore, they ruled that there is no
Treaties become part of the law of the land through transformation showing that the rule prohibiting the advertisement of breast milk
pursuant to Article VII, Section 21 of the Constitution which provides substitutes is considered CIL which are or should have been
that "[n]o treaty or international agreement shall be valid and automatically incorporated in our domestic laws. It was not proved.
effective unless concurred in by at least two- thirds of all the members The resolutions are recommendations. They are not binding because
of the Senate." they are merely recommendations and merely encourage states to
adopt these recommendations. They cannot be a source of a legally
3. Pharmaceutical and Health Care Association v. Duque III, G.R. No. binding obligation. Therefore, Mr. Duque exceeded his authority.
173034, 9 October 2007
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 3
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Question: If there is a GAPIL and it forms part of the law of the land Atty Pandi: Actually, yes. There are two prevailing theories, 1)
but we also established a new law which is trying to transform even monism and 2) dualist. Monism states that international law and
though it doesn’t need to be transformed but there is a discrepancy domestic law are one and the same therefore, we don’t even have to
between the two. So, which would prevail? bother ourselves which one should prevail over the other. And there's
the Dualist theory which provides that international law and domestic
Atty Pandi: Assuming that there is already a generally recognized law are separate legal systems. Now, the question is which is higher?
GAPIL which is the prohibition on the use of sovereign indemnity and The answer is it depends upon the court of law involved. Or it
then we can come up with a law as well about sovereign immunity depends where the case is pending.
and the situation is, what if there is variance in our local version and
then the GAPIL version also of sovereign immunity, that will unlikely The SC here in the breast milk substitute case preferred and gave
happen. Because when our Senators and members of Congress, when credence or premium to the Milk Code as opposed to the ICMBS, the
they legislate, they are supposed to be aware of GAPIL and their international version, because in the domestic courts, domestic law
legislations should not run inconsistent with GAPIL so they cannot reigns supreme, except if the principle involved is GAPIL because
form a new rule or version regarding state immunity because it’s again GAPIL is so powerful that it may be enforced anywhere and it
already GAPIL. In fact, it found its way to the Constitution and the laws will still retain its identity as GAPIL. But when you go to an
enacted by the Congress should not be inconsistent with the international tribunal, international law reigns supreme.
Constitution.
So it could be before the ICJ or before an arbitral body, international
So if there is a conflict, GAPIL will prevail which is the customary law law tribunal for the law of the sea, or ICC. So, it depends where the
version of the rule. If there is a variance in the local version or in the case is pending. Even if it pertains to the same issue, it’s possible that
legislation, it should be declared void or illegal because GAPIL forms it will win in the domestic court but lose in the international court.
part of the law of the land by mere declaration, there’s no need for a Because in international law, there is a very important provision
transformation or for a local legislation. under Article 27 of the Vienna Convention on the Law of Treaties
which provides that a state cannot invoke the provisions of its
Question: Adopting IL and transforming it to domestic laws just like internal law as a justification not to comply with its international
in the case about breast milk, do we need to follow it provision by obligations. So a State cannot invoke its domestic law and say that it
provision? If the government changes it a bit so it will be tailored to prohibits its domestic law from complying its obligations. The state
our culture or society because it's more effective to us, do we violate cannot invoke that before an international tribunal.
or cross the line of following the IL or GAPIL?
But can the state invoke non compliance with domestic law before
Atty Pandi: Again, what needs to be transformed are treaties signed the supreme court? Yes. So it depends where the case is pending. If
or ratified by the Philippine government. So if you want to come up it's within domestic courts, domestic law prevails over international
with a local version, we can make the necessary changes because law except GAPIL. If it's before international courts and tribunals,
treaties are consent-based. Obligations under a treaty rely on the international law prevails because of Art. 27 of the VCLT.
consent of the State. So if the extent of consent of the Philippines is
only here and it will not adopt in its entirety, that's totally fine Atty Pandi: What’s the difference between an executive agreement
because that's an inherent right of the state. Since it’s a sovereign and an international agreement?
State. It cannot be forced to comply with certain treaty obligations. Why is there a difference in the treatment? What’s so special about
Later on you will learn about reservations. However, when the rule in an international agreement that there has to be a participation of the
question is forming part of GAPIL, the State has no discretion on that members of the Senate and with respect to an executive agreement
because GAPIL is not based on consent. GAPIL and customary there is no such participation?
international law is based on usage and custom and there need not
be any treaty, any consent or accession or ratification before it can be Atty. Pandi: What’s the difference between an Executive Agreement
binding upon one State. For treaties, yes, we can suit our needs just and an International Agreement?
like what they did with the Milk Code. In GAPIL, there is no opting out,
there is no local version of GAPIL because GAPIL exists anywhere as BAR EXAM QUESTION
GAPIL, no ifs, ands and buts about it. It maintains its identity wherever The Philippines entered into an international agreement with
and whenever. members of the international community creating the International
Economic Organization(IEO), which will serve as a forum to address
Question: I understand the difference between the doctrine of economic issues between States, create standards, encourage
incorporation and the doctrine of transformation, it's even evident in greater volume of trade between its members, and settle economic
our Constitution in UNCLOS. We were taught that our State law is disputes. After the Philippine President signed the agreement, the
higher than IL, is it true that national law is higher than IL? Philippine Senate demanded that the international agreement be
submitted to it for ratification. The President refused, arguing that it
is an executive agreement that merely created an international
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 4
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organization and it dwells mainly on addressing economic issues Module 2
among States. SOURCES OF INTERNATIONAL LAW
A. Chapter 2 of Henriksen (pp 21 – 39)
Is the international agreement creating the IEO a treaty or an Sources of International Law
executive agreement. Explain. Article 38 paragraph (1) of the Statute of the Court of Justice
· International Conventions, whether general or particular,
It is a TREATY. establishing rules expressly recognized by the contesting states;
· International Custom, as evidence of a general practice
4. Intellectual Property Association of the Philippines v. Ochoa, G.R. accepted as law ;
No. 204605, 19 July 2016 · the general principles of law recognized by civilized nations;
· subject to the provisions of Article 59, judicial decisions and
Atty. Pandi: Let’s go back to the Madrid Protocol case. the teachings of the most highly qualified publicists of the
The accession was constitutional. Executive Agreements do not need various nations as subsidiary means for the determination of the
Senate concurrence, while International Agreement needs Senate law.
concurrence. International Agreement or otherwise known as
Treaties deal with political issues and changes of national policies and Primary Sources:
are permanent in character. Executive Agreements merely adjust a. convention
details of existing national policies. b. customary law
c. general principles of law.
The rationale for an executive agreement is prior, legislative, or
constitutional authorization. It merely implements or provides details Secondary Sources:
of existing Constitutional provisions. Pertaining to the question on the a. Judicial decisions and the teachings of the most highly qualified
International Economic Organization, there is no law that deals with publicist
it and justify it as an executive agreement.
Conventions (treaties) as a legal source
But in Madrid Protocol, we have the Intellectual Property Code, the —also called a ‘treaty’—is the most direct and formal way for states
accession made merely supplements an existing national policy which to create rights and obligations under international law.
is the Intellectual Property Code therefore it is an executive In fact, the treaty is the only instrument available to two or more
agreement and it is not the first time that would be implemented here states that want to enter into some sort of formal legal relationship.
in the Philippines. It is an international agreement if it is the first time The legal basis of treaty-based obligations is state consent and a
to be implemented here in the Philippines. treaty can therefore only create legal obligations for the consenting
states.
Executive Agreements do not need Senate concurrence because they The effect of a treaty is expressed in the principle pacta sunt servanda
are the ones who made laws that are to be implemented. In addition, according to which states are bound to honour their treaty-based
in terms of international relations, the Senate is in charge of the obligations.
external policies. Lastly, it is an executive agreement if there is prior
legislative authorization, if wala, it is necessary to knock on the doors As to International Convention
of the Senate for a treaty converted as a domestic law has the same Atty Pandi: Convention or Treaty is one of the important bases in
effect/level as a Statute. international law because they are based on the consent. The reason
was the Positivist Theory which states that a state is bound by an
Note: A Treaty may be enforceable in the international sphere but not International obligation that it consents to. Through participation,
in the domestic side without the concurrence of the Senate. However, ratification or signing of the treaty.
if the treaty is signed by the President it is binding for the Philippines
towards the International Tribunal. A treaty has a dual status. B. Custom as a source of international law
International customary law arises when a particular way of behaving
is: (1) followed as a general practice among states; and (2) accepted
by those states as legally binding.
Thus, there is both an objective element (state practice) and a
subjective element (jus cogens - the belief that the practice is legally
binding).

One of the challenges is to identify the point in time when

behaviour—the custom—ceases to be optional and becomes legally
required.

By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 5
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instantaneously is on the rule which allows states to exercise the
Customary rule binds all states including a state that has not taken RIGHT TO SELF-DEFENSE against non-state actors. You will learn in
part in the formation of the practice. Customary legal norms need not module 8 that a state has inherent right to self defense which means
be universal in scope, though. that state that has been subject to an armed attack will have an
opportunity and the right to attack to use nuclear force is self defense.
The ICJ stated that ‘long continued practice between two States Before the 9/11 attacks just recently commemorated the right to self
accepted by them as regulating their relations’ can form the basis of defense was generally understood to be excusable only with respect
mutual rights and obligations between those states. to another state meaning you can only examine the right to self-
determination against state entity but because of 9/11 attacks the US
Customary international law may also develop regionally between a government argued that there is inherent custom that perform the
particular group of states. exercise of the right to self defense against non- state actor.

As to custom In the case of the ALQAEDA members, the US attacked Afghanistan

Atty Pandi: Custom is based on consistent usage over a passage of through the use of force but Afghanistan complained that the US used
time. The custom rule must be the same since the time of the weapons as illegal. The US said dli ikaw afghanistan ako ge attack
immemorial. this for ALQAEDA group but Afghanistan said that the right to Self
defense is only against the entity. The rest of International
Two elements of Customary International Law community may now exercise against non-state actors. The reason
1. State Practice – objective element; followed as a general practice for this is that a non-state actor is much more powerful than an
among states existing state in the International community.
2. Opinio Juris Sive Necessitatis- subjective element; the belief that
the practice is legally binding As to Generality
Atty Pandi: the question is not the quantity but the quality . We
Elements of State practice examine the state whose impact is affected by the rules. There are
· Consistency- the practice needs not to be perfect. It must be certain states who are not affected by this practice.
reasonably uniform.
· Duration- The passage of only a short period of time is not Case Study: (Muro Ami Fishing)
necessarily, in itself, a bar to the formation of a new rule. Earlier this year, a group of Chinese vessels were caught engaging in
· Generality- the practice should include the majority of states. Muro ami fishing in some parts of the great barrier reef in AUSTRALIA.
The practice of the states whose interest especially affected. The Chinese crew manning the vessels were apprehended and
criminal cases were filed against them before Australian courts.
As to Consistency Australia argued that Chinese crew violated the rule prohibiting Muro
Atty Pandi: What if the states did not conform to this consistency? Or Ami fishing. This rule is recognized by at least 25 states, including
Even if they conform, the practice is not consistent? Whether or not Australia, Philippines, Maldives , Japan, Iceland states in central
there is a consistent practice by prohibiting the use of nuclear America and southern Africa. China argued that there is no customary
weapons? rule prohibiting Muro Ami as the rule is recognized by only a handful
of states and does not include such states as Russia, the states in the
Nuclear weapons must be prohibited. There was a time that the use middle east and central Europe and central Africa.
of nuclear weapons was prohibited under International law. Several How would you rule on the matter?
states said that it is prohibited out of 200 countries members of the
UN while more than 180 actively prohibits the use of nuclear Atty Pandi: Is there state practice?
weapons. A: check, relevant state practice. LOOK at the practice of states
affected by the rule. The countries enumerated are islands states.
Other states don’t prohibit inconsistent with the rest of the practice They are concerned by muro ami. However China invoked countries
of other states should not be viewed as negating the element of that are not affected by the rule . (e.g landlocked countries) .
consistency. Those that do not conform to the practice would view as
continuing breaches of consistent practice. We should consider Atty. Pandi: The norm in question is Muro-ami fishing. So, which
consistency practice by a few states to be inimical to the consistency states should we particularly examine?
or otherwise state practice on the matter.
Relevant State Practice. We should inquire about the states that are
As to Duration directly affected by this practice. The practice of relevant state is the
Atty Pandi: Instant Custom – sometimes there are certain rules to most important, and we know that they are relevant states if they are
develop instantaneously. They develop it because of exigencies specially affected by the norm. So if the norm is about muro-ami
circumstances. Therefore they must not be a passage for a long period fishing perhaps they do not want to inquire into the practice of central
of time. An important example of a custom that develops African states who are not involved in the fishing industry, or the
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 6
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landlocked states in central Asia or the Middle Eastern countries that Political or a Criminal Offense is until this day in fact in this month still
are not surrounded by water and that are only engaged in the very controversial, because one of the scientist allegedly from Wuhan
Petroleum industry. For us to properly contextualize the analysis, we China, sought Political Asylum in the United states, because she
look at the practice of relevant states. Example if the norm is about allegedly had relevant information about the creation of the
outer space law and whether or not there is a customary rule on space CoronaVirus. So she is now in the US, she keeps saying that she has
tourism, you do not want to examine the practice of all states, evidence against the government of China and therefore she is
because obviously not everyone is capable of embarking into space seeking political asylum because she will be prosecuted in China.
tourism. Do not include those who do not have the opportunity to
even imagine to embark in space tourism. So Mr. Dela Torre, was charged with Rebellion, so he is to be caught,
there is now a warrant of arrest directed against him. So since he
Only the practice of relevant states have to be examined for purposes knew that there is a Columbian Embassy in Peru, he went inside the
of identifying whether the element of generality has been complied embassy. You will learn later that embassies are actually extensions
with. of the Territory of one state. So the Columbian embassy is considered
a territory of Columbia and therefore the authorities of Peru cannot
Atty. Pandi: What do you understand of Opinio Juris? enter the embassy without the consent of the Ambassador or the
It is the essence that a state accepts a custom as legally binding. person in charge.

Atty. Pandi: What happened in the Asylum Case? When Mr. Dela Torre entered, he was accepted by Colmbia with arms
wide open and Columbia wrote to the Minister of Affairs of Peru
Asylum Case (Colombia vs. Peru), Judgment [1950] ICJ Report 266 saying, “Hey buddy, your citizen has come before our doors and we
*Student Recites Case* are treating him as a Political Asylum Refugee. We are treating his
offense as a Political Offense and therefore we are ready to grant him
There is a disagreement between the two countries as to the proper Asylum”
qualification of the offense. The issue here is, is there really a
customary international law that a state granting political Asylum, in Peru said “No, you cannot do that. Because you do not have a right to
this case Columbia, is competent to qualify the nature of the offense unilaterally qualify the offense as either political or not”
by a Unilateral and definitive decision which is also binding on Peru.
The ICJ ruled that the Columbian government must prove that the The qualification is necessary guys because the ground of refugee-
rule really exists. The Columbian government must prove that the role hood or Asylum status is given to political offenders, because if what
invoked by it is in accordance with a constant and uniform usage you committed is a criminal offense, you are not supposed to be given
practice by the state in question. That it is also in accordance with Asylum. According to Columbia, the revolution that Mr. Dela Torre led
Article 38 of Statute of the Court which refers to international custom is for Political purposes and therefore we are taking him in as a
as evidence of a general practice which is accepted as law. Political Asylum seeker.

Atty. Pandi: Was there custom on unilateral qualification of the Peru: “you cannot do that, there is no such rule”
offense?
Columbia: “There is such rule, our neighbors have been qualifying
No. Columbia was not able to prove that there was really an existing offenses as political offenses since time immemorial”
custom in this case.
ICJ: “No, there is so much uncertainty and contradiction in the
Atty. Pandi: What about the practice of states invoked by Columbia? examples of State practices presented by Columbia. There is
Columbia said, our neighbors in Latin America have been qualifying fluctuation, there is discrepancy, and even so much consistency.
the offense for several instances already, for example Argentina Brazil Assuming all those practices exist, those practices were actually
and all other Latin American Countries. impelled not by a legal obligation but by good neighborliness. So even
if those practice exist, they were motivated not by the belief that a
Even if there were allegedly such customs between or among the right or obligation exists but because they are just being friendly, for
states, the same couldn’t be invoked against Peru because Peru has being a good neighbor, they’re just doing it for political purposes, not
repudiated this kind of custom since the beginning. because they believe that they are bound by that obligation”

Atty. Pandi: What do you call the states that are not bound by Therefore, being impelled and motivated by non-legal motivational
Customary International Law? practice it cannot form part of opinio juris, it is just for courtesy,
Persistent Objector. That makes Peru a persistent objector. committee, and friendliness. That cannot generate Opinio Juris on the
matter.
Atty. Pandi: The Asylum case was decided in 1948, but the issues that
it talked about Unilateral Qualifications of an Offense whether it is
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The ICJ went one notch higher, by saying that even assuming that was ISSUE: Whether the Article 6 of the 1958 Geneva Convention on
custom and that there was Opinio Juris it could not apply to Peru, as Continental Shelf, prescribing the Equidistance Rule for delimiting
Peru has always repudiated the provision of the 1933 Montevideo continental shelves has attained the status of custom or customary
Convention. In effect Peru is considered a Persistent Objector, international law?
meaning the customary law will not apply to it, because it has always
objected to the rule since the very beginning. RULING: NO. The Court rejected the contention of Denmark and the
Netherlands to the effect that the delimitations in question had to be
Two (2) things to remember from the Asylum case: carried out in accordance with the principle of equidistance as
1. A custom need not be universal. There could be a custom defined in Article 6 of the 1958 Geneva Convention on the
that is applicable only to a particular region in the Continental Shelf, holding:
world. It may be applicable in Asia or Europe, but
necessarily applicable in the entire international - That Germany, which had not ratified the Convention, was not
community. There can be Regional Custom. legally bound by the provisions of Article 6;
2. The concept of Persistent Objector Rule – A state that - Germany can only be bound only if Art 6 on the
has consistently and persistently objected to a rule equidistance principle, has attained the status of Customary
since the very beginning will not be bound by the rule International Law.
even if the rule already ripens into customary
international law. Remember that the objection must - In this case, that the equidistance principle was not a necessary
be raised from the very beginning. If what the state consequence of the general concept of continental shelf rights, and
does it objects subsequently after the rule has ripened. was not a rule of customary international law.
That’s too late. Object while it is still young and in the - The Court said that while it was probably true that no
process of becoming a custom. other method of delimitation had the same combination of
practical convenience and certainty of application, those
North Sea Continental Shelf Cases (Germany v Denmark and factors did not suffice of themselves to convert what was a
Netherlands), Judgment [1969] ICJ Rep 3. method into a rule of law. Such a method would have to
Atty Pandi: What was the issue involved? The case also dealt with the draw its legal force from other factors than the existence of
existence of customary international law. What principles of those advantages.
international law were applied in this case?
THEREFORE, the Court found that the boundary lines in question were
FACTS: The dispute, which was submitted to the Court in 1967, to be drawn by agreement between the Parties and in accordance
related to the delimitation of the continental shelf between the with equitable principles, and it indicated certain factors to be taken
Federal Republic of Germany and Denmark on the one hand, and into consideration for that purpose. It was now for the Parties to
between the Federal Republic of Germany and the Netherlands on negotiate on the basis of such principles, as they have agreed to do.
the other. The Parties asked the Court to state the principles and rules
of international law applicable, and undertook thereafter to carry out Atty Pandi:
the delimitations on that basis. Germany is saying that it's unfair because of my unique geographical
configuration, it's unfair to use the equidistance special circumstance
Denmark and the Netherlands contended that the whole matter was rule, the principle that is invoked by Netherlands and Denmark.
governed by a mandatory rule of law which, reflecting the language Germany, what should be applied is the principle of just and equitable
of Article 6 of the Geneva Convention on the Continental Shelf of share because of the special circumstances concerning my shoreline
1958, was designated by them as the "equidistance-special (Atty showed North Sea Map)
circumstances" rule.
Germany argues that it is not a party of that 1958 convention,
In the case of a concave or recessing coast such as in this case, the because I did not consent because I am not a signatory, therefore it
effect of the equidistance method was to pull the line of the boundary cannot apply to me. Netherlands and Denmark said, your consent is
inwards, in the direction of the concavity. not necessary because the rule in question is already Customary
international law, so it is binding even without your consent.
Germany, for its part, had contended that the correct rule, at any rate
in such circumstances as those of the North Sea, was one according Netherlands and Denmark tried to prove that Art 6 on equidistance
to which each of the States concerned should have a "just and principle has already attained the status of a custom. N and D
equitable share" of the available continental shelf, in proportion to presented 15 instances where states applied the equidistance rule
the length of its sea-frontage. Additionally, Germany contented that (INCLUDING SEE full text), they said, these are enough to show that
he should not be bound by the 1958 Geneva Convention on the art 6 is CIL.
Continental shelf because he is not a party thereto.

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COURT HELD: there is no CIL. The court said that the 1) the no. of already an established rule in international law that coast fishing
ratifications and accessions are very limited. 2) the equidistance vessels, their implements and supplies or cargoes, if the crews are
principle involved is actually used by the practice of states that are unarmed or peacefully catching fishes, they are basically exempt
bound or parties to the treaty, they are bound by the equidistance from the capture as a prize of war. Also, the Court is bound to take
principle by virtue of the signatory or parties to the treaty. judicial notice of and to give effect to the absence of any treaty or any
other public act in relation to the matter.
Netherlands and Denmark actually said that they are not parties (only
some) that practiced the equidistance rule, however, (mere courtesy, Atty Pandi: The Paquete Habana Case is one of the landmark cases of
tradition or convenience will not make opinio juris. Opinio juris customary international law decided by the US Supreme Court.
applies only when there is a belief by the states, are applying this
practice because they believe it’s the law on the matter. However, the question in that case was whether the fishing vessels
are exempt from capture as prizes of war because that time there was
Atty also discussed the process when a treaty may contain several an ongoing war between the US and Spain. The fishing vessels were
provisions, some provisions will actually attain the status of completely unarmed and they were purely intended for fishing.
customary international law, but it does not make the ENTIRE treaty Therefore, they did not in any way participate in the war. There is no
itself as customary international law. It is possible that only certain reason for the US naval military officers to capture them. The names
provisions are CIL, that means, even if a State is not a signatory of that of the vessels were Paquete Habana and Lola. They were captured
treaty, the provisions of CIL are binding upon that state. Because it is because the owner of the vessels are Spanish nationals who are
possible that a certain provision is always applied by a state through domiciled in Cuba.
the passage of time, it actually becomes a CIL.
Upon reaching the SC of the US, it was realized that there was no
2 Elements for Customary International Law reason or there is no law in the US specifically governing fishing
vessels as prizes of war.
State practice - it is objective because you can see it and you can
examine it. It can be determined by physical examination. It may refer SC was therefore compelled to examine state practice outside the US
to the physical acts of the state or the omissions of the state. in order to determine whether the fishing vessels are exempt from
being captured as a prize of war. It was examined by the US SC the
Opinio juris - it is subjective because it’s a state of mind; abstract state practice from the 13th and 14th century and they saw that there
concept. It refers to a belief and so without it being manifested by is something common in those practices that is fishing vessels are
physical act, it is an abstract concept. You cannot see it. You don’t always exempt from being captured as prizes of war because they are
know why states act they do and you don’t know whether they are considered to be civilians.
impelled by legal motivation or by practical opinion or by courtesy.
Most important takeaway in the Paquete Habana Case:
The Paquete Habana Case, 175 US 677 The scope of international law is determined by the inadequacy of
(recits) national law.
There were 2 fishing vessels and in the course of their fishing trip International law supplements as a residual system. It comes into play
they’re originally from Havana and the owner of the vessels are from when national laws are inadequate to respond to the questions
Cuba. They were Spanish domiciles in Cuba. In the course of their presented before international courts. In this case, the question
fishing expedition, when they were done fishing, they traversed a presented was in respect to fishing vessels. Since the American
border somewhere in Cuba. There was a package from the armed national law was inadequate at that time to provide a solution, the US
forces of the US. During that, they were blotched and the vessels were SC went beyond the national law and examined international law on
confiscated along with the fishes they caught. (Take Note) When they that matter. It comes into play when nationals are unable to provide
were caught, the vessels as well as personnel manning the vessels solutions for the legal questions presented.
were unarmed.
Therefore, an analysis of whether something is a matter of
Atty. Pandi: Why is it important to highlight why the vessels were international law, always starts with the domestic law. We always
unarmed? give preference to whether the domestic law will be able to answer
the question because it is the whole concept of sovereignty or
A: It’s because the issue in this case is WON the US violated the rule Westphalian sovereignty that a state is independent and therefore, it
of customary international law that fishing vessels are exempt from is expected to provide solutions for everything within its territory. If
capture as a prize of war. the State cannot do it, then resort to international law. Paquete
Habana and Lola were released to their Spanish owners in Havana,
The ruling of the Court was that the capture was unlawful and Cuba.
without probable cause. The general concept of civilized nations of
the world independent of any express treaty or other public act, it is The Relationship between Custom and Treaty Law
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Treaties may codify customary international law, the parties to the And since these three countries are not made parties to the case,
treaty will be bound by the treaty as well as customary international therefore the condition of the US before accepting the jurisdiction of
law while non-parties are only bound by the latter. But in practice, of the ICJ has not been complied with. Therefore, ICJ should dismiss the
course, all states are under the same substantial obligation. case.

Treaties crystallize into custom. Treaty-based obligation may also be The ICJ said that the US is correct because the prohibition on the use
identical to obligations in customary international law if the treaty has of force is found in Article 2, Par. 4 of the UN Charter. Since the use
a ‘crystallizing’ effect whereby its content develops into customary of force is found in the UN Charter and the US said it does not
law. recognize the jurisdiction of the ICJ under the UN Charter, then the
case must be dismissed. The ICJ said that it is correct that it has no
Question: What is the relationship between treaty law and customary jurisdiction because there was no consent and because other parties
international law? If a rule is found in a treaty and it is also present as affected by the dispute were not made parties to the case. However,
a customary international law, how do you apply the law and what the US should take note that the prohibition on the use of force is not
basically is the general relationship between treaty law and only found in Article 2, Par. 4 of the UN Charter which is a treaty
customary international law? provision. The prohibition on the use of force is also customary
international law, meaning even if the UN Charter will not apply
because of the reservation, customary international law will apply
Military and Paramilitary Activities in and against Nicaragua and customary international law cannot be made subject to treaty
(Nicaragua v United States), Merits [1986] ICJ Rep 14 reservations or to any conditions before accepting the jurisdiction of
the ICJ.
Atty Pandi: Go straight to the issue whether or not the prohibition on
the use of force which is contained in Article 21 of the American Therefore, the ICJ has jurisdiction on the basis of customary
Charter is applicable in this case because the issue is whether the international law not on the basis of treaty provision under the UN
United States may be made liable for its illegal use of force against Charter. So therefore, if a rule is found in CIL and found in a treaty
Nicaragua in this case. provision at the same time, these two rules will apply independently
of each other, they will not cancel one another, they will be separate
Question: What did the ICJ say regarding the relationship between and distinct. In this case, the US succeeded in arguing that ICJ has no
treaty and custom in the Nicaragua case? jurisdiction under the UN Charter but it cannot succeed in arguing
that ICJ has no jurisdiction based on CIL because CIL is never based on
Atty Pandi: The US did not deny the use of force against Nicaragua. consent therefore it will not be subjected to any constraint
The defense of the US in this case is that ICJ has no jurisdiction whatsoever.
because at that time that the US signed in the UN Charter, the US
made a reservation. A reservation to the effect that it will not Question: Why do they need to be treated independently?
acknowledge the jurisdiction of the ICJ for any dispute involving the
US unless there is a: Atty Pandi: Because if the rule is CIL and found in a treaty law at the
1) consent to the jurisdiction same time, there is difference in the treatment. In a treaty signed by
2) the dispute involves or affects several states and those the parties and the rule is found in a treaty it only means to say that
states must be present or parties to the case. that rule found in treaty is affected by all the other provisions of the
treaty. Meaning, the treaty will have to be interpreted as a whole
Again, when the US signed the UN Charter, it says it does not including that specific provision. You will learn later on in Module 3
recognize the jurisdiction of the ICJ. Meaning, no one is allowed to file that when a state party fails to perform its obligations under a treaty,
a case against the US because it does not accept the jurisdiction of the other contracting party can actually suspend its own
the ICJ. It will only accept the jurisdiction of the ICJ if those two things performance of treaty obligations. Because you violated the treaty
are complied with. In this case, the conditions were not complied. provisions, for example Article 1 it is also possible not to comply with
First, there was no consent. Second, the case before the court Article 2 because of your violation. So the compliance of a treaty
concerns not only the US and Nicaragua but also El Salvador, Costarica obligations depends on the other provisions of the treaty. That does
and Honduras. And since El Salvador, Costarica and Honduras are not not apply in CIL because it is sui generis. Therefore, CIL has to be
parties to the case and they are affected by the dispute, then the first complied with absolutely. There is no excuse for non-compliance.
element or condition was also not complied with, essentially the ICJ Excuse for non compliance may be found in a treaty obligation
therefore has no jurisdiction because US said that this case actually because other parties can invoke violation of other provisions of a
involves El Salvador, Costarica and Honduras because these countries treaty. And most treaties will provide settlement of disputes which
were attacked by Nicaragua. Whatever the decision of the court in will be submitted to the ICJ.
this case will affect these three countries.
Question: What do you mean to say that a treaty codifies custom or
a treaty crystallizes custom? What do you mean by that?
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represents/implies/reflects their state practice and opinions on the
Atty Pandi: There are two ways that a treaty and a custom may matter. Each vote matters because it not just reflects State practice
actually co-exist or may actually affect each other: but also opinio juris on the rule in question.
1. A treaty may codify customary international law
-meaning, there is customary international law on the Legality of the Threat or Use of Nuclear Weapons, Opinion [1996] ICJ
matter. For example the prohibition on the use of force, Rep 226.
that’s a customary international law. It will be codified into FACTS: The General Assembly of the United Nations submitted before
a treaty if a particular treaty (Ex: The Charter of American the court its resolution questioning, in essence, the legality of the
State) if they indicated this to Article 21 saying that the use threat and use of nuclear weapons.
of force against the territorial integrity and political
independence of any State is against or is in violation of ISSUE: Is the threat or use of nuclear weapons in any circumstance
international law. Meaning, there is already a custom on permitted under international law?
the matter and customary international law need not be
written, it need not be based on the consent of the States RULING: The Court then turns to an examination of customary
because it is based on long practice and usage. If however, international law to determine whether a prohibition of the threat or
the parties in a treaty come up with a particular provision use of nuclear weapons as such flows from that source of law.
that basically copies or codifies the rule, then it can happen. It notes that the members of the international community are
Customary international law found its way, it was profoundly divided on the matter of whether non-recourse to nuclear
textualized, it was codified, it was written in a treaty which weapons over the past 50 years constitutes the expression of an
is an instrument. That is what codification means. opinio juris. Under these circumstances the Court does not find that
there is such an opinio juris.
2. A treaty may crystalize customary international law
-some treaties may actually contain provisions that are not Atty. Pandi: According to the case, UN-GA RESOLUTIONS can be used
the customary international law. Meaning, it's not yet EVIDENCE.
codified. State parties created a treaty, that same treaty In the UN General Assembly, the USE of Nuclear Weapons there is NO
contains several provisions but these provisions need not CUSTOM ON THE MATTER.
be customary international law. There is still just basically a ***LATEST NEWS – In 2018, there was a Treaty made to Prohibit
treaty provision. But, with the constant practice of State Nuclear Weapons.
with the constant use of the state of that particular
provision, that particular provision may crystallize into Question: Who would penalize States that are still using nuclear
customary international law. Therefore, it is possible that a weapons?
treaty is merely a reflection of customary international law,
that a treaty provision is merely a codification of Atty. Pandi: ICJ does not have an enforcement power, we will have to
international law. It is also possible that a treaty provision knock on the door of the UN. Unfortunately, most of the permanent
not yet a customary international law at that time the treaty members of the UN have their own nuclear weapons so they could
was enacted or signed but by subsequent practice of state, easily veto.
it may crystallized into customary international law.
Atty Pandi’s Discussion:
Question: Is there a repository of this customary international law? Evidence of Opinio juris is only looked for if there’s a reason to believe
that a particular behavior stands for non legal reservations. Which
Atty. Pandi: There is no repository of CIL. However, there are general means that Sometimes state is universal, sometimes if the practice is
agreements as to what constitutes CIL. In case of doubts, state overwhelming
practice and opinio juris will be the indicators/proof for CIL.
CIL is harder to prove than treaties. In CIL, you can’t directly say that For example, All states are party to that treaty. For example 198
the State is because it’s binding effect is not based on consent but on parties there is general consensus the provision on that embodied in
its implied nature and applicability. that treaty are customary intl law. Because why is there an
overwhelming support? So didto lang ta mu examine ug opini juris if
medjo di lang kayo extensive ang practice if the reason to believe is
Value of UN General Assembly Resolutions not practice for legal motivations.
Question: What is the value of the UN General Assembly Resolutions
in identifying CIL? Binding nature customary international law is implied because not
based on express consent. It is adaptive because of the practice and
Atty. Pandi: In the UN-GA, all States regardless of their power are beliefs of states. It would change depending on circumstances. CIL
represented. Most of the time, the members of UN-GA adopt now nga pwede ma overrule for another CIL .
resolutions, through votes. The vote of each member State
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General Rule: Customary International law binds all states.
Exception: Persistent objector. 3. Pacta Sunt Servanda - Another general principle of
international law is the principle that international agreements
CIL need not be universal because asylum cases acknowledge that are binding—also known as pacta sunt servanda.
regional custom may be possible and may be invoked by state parties
to the dispute. 4. Minimum Yardstick - In Nicaragua, the Court also referred
to the rules in Common article 3 to the four 1949 Geneva
C. General principles of law Conventions as constituting ‘a minimum yardstick’ that reflect
The third source in article 38 is that of ‘general principles of law ‘elementary considerations of humanity’. It also referred to
recognized by civilized nations’. ‘elementary considerations of humanity’ in its advisory opinion
on the Legality of the Threat or Use of Nuclear Weapons.
Why was it included? The drafters of the PCIJ Statute were concerned
that treaties and customs were insufficient to provide all the legal 5. Other Principles - In the Corfu Channel, the ICJ made
answers needed. reference to a number of principles that could be candidates for
general principles of international law. In addition to
General principles of international law would prevent the Court being ‘elementary considerations of humanity’, the Court found that
unable to decide a dispute due to a shortage of applicable law—so Albania had violated ‘the principle of the freedom of maritime
called non-liquet. communication’ as well as the (‘no harm’ principle) ‘every State’s
obligation not to allow knowingly its territory to be used for acts
General principles were thus primarily intended as “gap fillers” that contrary to the rights of other States’.
only needed to be consulted when a dispute could NOT be resolved
on the basis of a treaty or CIL. International rules on procedure and evidence are often based on
legal principles derived from national law.
The phrase ‘recognized by civilized nations’ is meant to illustrate that
the general principles are limited to those common to developed (CASE IN POINT) In the Genocide Convention case, the ICJ referred to
national legal systems as a means to prevent arbitrariness on the part a general principle of res judicata according to which a decision is final
of the judges. Today, the reference to ‘civilized nations’ is devoid of and binding on the parties. The principle ensures that litigation comes
meaning. (TODAY, this would mean - LAWS COMMON TO ADVANCED to an end at a certain point.
LEGAL SYSTEM IN THE WORLD, Example: Common Law system, Civil
Law system, and the Sharia’h Law system) (Additional CASE IN POINT) In Corfu Channel, the Court also relied on
circumstantial evidence and noted that such ‘evidence is admitted in
Examples of General Principles of law all systems of law’.
1. Equity –The most relevant ‘general principle of international
law’ Examples: clean hands doctrine, principle of estoppel
(CASE IN POINT) In the Diversion of Water from the Meuse case, Judge
Hudson of the PCIJ stated that ‘principles of equity have long been Corfu Channel (UK v Albania), Merits [1949] ICJ Rep 4.
considered to constitute a part of international law’ and that the GPL of not to allow knowingly one’s territory to be used for acts
Court ‘has some freedom to consider principles of equity as part of contrary to the rights of other states; GPL of circumstantial evidence .
the international law which it must apply’.
FACTS: The explosion of mines in the Albanian (P) waters resulted in
The ICJ has also made many references to equity, most notably in the death of a British naval personnel. It was on this basis that the
cases concerning maritime delimitations. (CASE IN POINT) In the United Kingdom (D) claimed that Albania (P) was internationally
North Sea Continental Shelf Cases, for example, the Court relied on responsible for damages.
equitable principles when it delimited the continental shelf between
West Germany, the Netherlands and Denmark. ISSUE:
i. WON international obligations in time of peace created through
(Additional CASE IN POINT) In Maritime Delimitation in the Black Sea, elementary consideration.
it reiterated that the role of equity in delimitation cases is ‘to achieve ii. WON UK is allowed to prove Albania's knowledge of the mine
a delimitation that is equitable’ not ‘an equal apportionment of through circumstantial evidence.
maritime areas’. iii. WON Albania is under the obligation to warn the others that its
territorial waters had mines.
2. Good Faith - International law also contains a general
principle of good faith that stipulates that states must act HELD:
honestly in the fulfilment of their international obligations. i. Yes. International obligations in peace time are created through
(CASE IN POINT) (Nuclear Test Case) elementary consideration. Every state has an obligation not to
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knowingly allow its territory to be used for acts contrary to the rights slag mines and they explode. The question was whether or not
of other states. In this case, the Court found that the Hague Albania is responsible for the explosion. No evidence was offered to
Convention of 1907 could not be applied but the Convention was prove that Albania laid the mines. The question whether the mines
applicable only in time of war. It was on the basis of the principle of laid down with Albania has knowledge and consent. Circumstantial
freedom of maritime communication that this case was decided. evidence was employed because of the unavailability of DIRECT
evidence.
ii. Yes, ICJ admitted the circumstantial evidence gathered by the UK
against Albania. The burden of proof had rested on the United Atty Pandi: Why is the direct evidence unavailable?
Kingdom, as it had been the applicant. The explosion happened within the territorial waters of Albania.
Therefore Albania has exclusive possession of evidence which can be
The UK relied on indirect evidence to prove that Albania knew of the used. Thus, Albania automatically withheld any evidence against it.
mines in its territorial waters. Namely, the UK established that Albania never allowed the UK GOVT to gather evidence within its
Albania kept a close watch over the waters of North Corfu Channel territorial waters and Albania refused to comply with the orders of
and that Albania had the ability to observe mine laying from the the court to submit certain requirements or memoranda.
Albanian Coast."
The court constrained to the circumstantial evidence because of
The Court found that a declaration by the Albanian Delegate in the absence in the direct evidence. Direct evidence could not have been
Security Council, diplomatic notes from Albania regarding the passage procured by the UK because it is only available in the waters available
of ships through its territorial waters, messages to the Secretary- and the UK cannot search those waters because without violating
General, and evidence of past mine sweeps conducted by Albania Albania’s sovereignty.
together revealed that Albania was vigilant in controlling its waters.
The court allowed UK's evidence against Albania. Direct evidence could not have been procured by the UK because it is
only available in the waters of Albania. The UK government cannot
The Court will permit liberal reliance on circumstantial evidence so search those waters without violating Albania’s sovereignty.
long as two conditions are met: (1) the direct evidence is under the
exclusive control of the opposing party; and (2) the circumstantial ICJ: Analyze all the circumstantial evidence. The laying of the mines
evidence does not contradict any available direct evidence or would have taken time, it would have taken at least 2.5 hours, it was
accepted facts. impossible for Albania not to notice, especially since the explosion
occurred 500 meters from the coast of Albania. Especially since
iii. Yes, Albania had the responsibility to warn the UK and other Albania has stationed many guards around the coast. Albania was
countries. The Court articulated the principle that every state is very watchful. IN fact there was even an instance when Albania used
obliged not to knowingly allow its territory to be used to commit acts a gun shot as a form of warning, when the British ships passed by.
against the rights of any other state. This meant, with respect to the
Corfu Channel, that Albania was obliged to warn others that its Based on circumstantial evidence it’s obvious that the laying of the
territorial waters were mined. mines responsible for the destruction of the 2 British vessels were
made with the consent and with the knowledge of Albania. And
Atty Pandi’s Discussion: Albania is responsible because of the customary international
Circumstantial evidence is the indirect evidence and you will prove principle which says that “A state must not knowingly allow its
them together that the crime shows beyond reasonable doubt. territory to be used by another state for purposes harmful to the
rights of another state” You should not allow your territory to be a
Question: ICJ employed to the ICJ why and how? launching pad to violate the rights of another state.
Answer: there are several events. There were telegraphs dated 1946
to the Secretary general UN raising the protest of the territorial Therefore, Albania is made liable under international law, because of
waters however there was no mention against the lake and the mine the no-harm principle, and because of the analysis or applicability of
field which in effect the various sovereignty. circumstantial evidence. The ICJ also said Albania violated the
Question: What other general principle of law applied? elementary considerations of humanity. Albania knew about the
Question: What pieces of evidence concluded Albania in pieces of the laying down of mines but he did not warn the British vessels.
mines?
Another issue in the case is the intrusion of the UK in Albanian waters,
Atty Pandi: the UK tries to justify by saying that it entered in order to gather
This was the first case decided by ICJ and its landmark case. Concerns evidence.
for the responsibility of Albania for the mining British warship went
through the corfu channel straight but before they went to corfu they ICJ: There is no customary international law that justifies the intrusion
mine sweep whether there was a mine ship in the water in order to into the territory of another for the purpose of gathering evidence.
be safe and it was in may. Niagi sila October unfortunately ni strike
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Albania loses with regard to the laying of the mine, and the UK loses Atty. Pandi: Why are unilateral statements or declarations binding?
for its intrusion into the waters of Albania without Albania’s consent Pacta sunt servanda – Agreements must be kept.
for the purpose of gathering evidence against Albania.
Atty. Pandi: The enumeration of sources of law under Article 38 is not
Students Question: In what form will Albania’s compensation be? exclusive, it includes Unilateral Declarations, and these are binding
under international law based on the principle of good faith. You
Atty. Pandi: This is under state responsibility, but I will answer that make promises, you comply with those promises. It is intended to
now. When there is a finding by the ICJ of a violation of international safeguard security and predictability in international relations.
law, there are consequences of that violation. There will be Imagine if the heads of states can issue statements and refuse to
reparations, and it may be in the form of: comply with that statement. Especially when another state has relied
1. Restitution in good faith on the declaration or that statement. International
2. Compensation relations will be mag ka ka golo.
3. Satisfaction (Apology – Assurance of non-
repetition) Therefore, a statement delivered in public by an authority, who has
the power to issue such a statement, and that statement is specific
D. Unilateral statements which deals with a particular obligation or a particular undertaking
Case law from both the PCIJ and the ICJ show that unilateral will be considered as a source of international law. One does not
statements by state representatives can create obligations under simply make a promise under international law and refuse to comply
international law. with such a promise, because it will create a culture of distrust in
Why Unilateral Statements Binding? Following the Principle of PACTA international relations, and we don’t want that. We want leaders to
SUNT SERVANDA – when you make statements/promises, you must utter statements and make commitments and comply with them.
follow those statements/promises in good faith.
Atty’ Discussion on the Nuclear Test Case
Atty. Pandi: What are Unilateral Statements or Unilateral New Zealand complained about the Nuclear fall out brought by the
Declaration? atmospheric test by the French government in the south Pacific,
because of that in a televised interview the French president issued a
Student: Statements (inaudible) … These are like promises for them statement to the effect that it would be the last atmospheric test in
to abide to. the Pacific. The French did not follow, they continued conducting
their atmospheric tests. So New Zealand sued before the ICJ, and the
Atty. Pandi: What are the elements for it to be a source of obligation? French said what did I violate? There is no treaty between us? There
is no Customary International Law that prohibits tests of Nuclear
Elements: For unilateral statements to be binding, the following must Weapons underground or in the Pacific, and there is no general
be present: principle of law involved.
(1) Public, for it may be made orally or in writing
(2) Authority, the declaration must be made by an authority vested ICJ: No no, there is a general principle of law involved. That is the
with the power to do so; principle of good faith. You make a promise, you comply with that
(3) Specific, the declaration must be stated in clear and specific terms promise in good faith.

Nuclear Tests Case (New Zealand v France), Judgment [1974] ICJ Rep Case Concerning Armed Activities on the Territory of the Congo
457. (New Application: 2002)
*Student recites the nuclear case* *Shows the statement made*
In her statement Minister Mukabagwiza said inter alia the following:
Atty. Pandi: What promise was made by the French government “Rwanda is one of the countries that has ratified the greatest number
here? of international human rights instruments. In 2004 alone, our
Government ratified ten of them, including those concerning the
They made a statement by the president saying that “This round of rights of women, the prevention and repression of corruption, the
atmospheric tests would be the last” This was reiterated by France prohibition of weapons of mass destruction, and the environment.
minister of defense in a separate conference. The few instruments not yet ratified will shortly be ratified and past
reservations not yet withdrawn will shortly be withdrawn.”
Compare with Elements:
1. Public – made through the president, and the press Atty. Pandi: Is this statement binding upon Rwanda?
conference/televised interview Atty. Pandi: What are the elements again?
2. Authority - The president and Minister of Defense 1. Public
3. Specificity – It was referring to the last atmospheric test 2. Authority
3. Specific
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statements are to be construed as motherhood statements, intended
Atty Pandi: Was the statement made in public according to the case? to present a general policy on the promotion and protection of
Yes, the statement was made during a speech in the Sixty-first session human rights.
of the United Nation Commission on Human Rights.
Therefore, the unilateral statement made by Minister Mukabagwiza
Atty Pandi: In this case was the element of Authority complied with? is not binding upon Rwanda and therefore, Rwanda is not deemed to
Yes, because it was made by the Minister of Justice of Rwanda, have withdrawn the observation to the Genocide Convention.
according to the ICJ, although the statement should have been given
by the head of state or the minister of foreign affairs, because they Question: What if the reservation was properly made, would it mean
are in charge of international relations, but in this case the ICJ said the tribunal could not do anything?
that certain holder of technical ministerial portfolios can actually Atty’s Answer: If the obligation is purely found in the treaty and the
speak for and in behalf for issues falling within their competence. reservation is made refusing to submit itself to the jurisdiction of the
ICJ, then, there nothing that can be done; however, it is not the end
In this case, Mukabagwiza was merely the Minister of Justice, of the road. Resort to judicial processes is just one of the several ways
however, the content of her statement relates to her function of her of enforcing international law (such as countermeasures, like
office, which is the promotion of justice. economic embargo).
It would have been different if she was a Minister of Education or But if the obligation is found in the treaty is Customary International
Minister of Sports, her function would not be germane to the content Law, then it is no longer encumbered by the reservation.
of her statement on human rights.
Question: What if all the requisites are present, public, authority and
Atty Pandi: What about the third element, it must be Specific, was it specific, but the intent of the speaker does not want to be bound?
complied with? Atty’s Answer: The element of INTENT is crucial, because in analyzing
No, the statement was NOT categorical, clear and specific, any all the elements, we have to be very sure that the statement intends
ambiguity must be interpreted restrictively, meaning no obligation for an intentional obligation to be undertaken, but the intent is a state
has been assumed. Ordinarily, a state would not want to assume of mind, how do we analyze the intent? We analyze intent, based on
obligation under international law, because it is an additional burden the content, of the circumstances surrounding it, and the actual text
on the part of the state. itself, because specificity is important. The more specific the state the
more glaring the intent to be bound is.
In this case, the problem was in the last three lines, this was an
important part of the case, because the DRC filed a case against Question: Is Arbitrary Revocation of a unilateral statement allowed?
Rwanda for violation of the genocide convention. However, in signing Atty’s Answer: No, you cannot arbitrarily revoke a statement
the Genocide Convention, Rwanda made a reservation because especially if the other parties involved already relied on the
Article 9 of the Genocide Convention shall be submitted to the ICJ at statement.
the request of any parties to the dispute. However, revocation is possible if it is made immediately.

Rwanda said, you cannot do that because I made a reservation, to the

effect that I don’t acknowledge the jurisdiction of the ICJ, DRC says Atty Pandi is answering our padlet questions for Mod 1 and 2:
that they already withdrew their reservation because of the
statement of Mukabagwiza, therefore according to DRC, the ICJ now Disappointment in the enforcement of the ICJ’s decision
has jurisdiction. Just because there is rarity or just because there is difficulty in
enforcing the decisions of the ICJ does not mean they can be
The ICJ did not agree, this statement lacked the element of specificity, enforced. Just because there have been instances where the parties
because it merely mentions of reservations, the Rwandan refused to respect and to execute the judgement of the ICJ does not
government actually has made, the statement should have been mean it is not possible. Sure, there may be deviants but there are also
made specifically in reference to the Article 9 of the Genocide those who respect the rule of law. Don’t be discouraged by the ability
Convention. And because there was no such reference, then the or inability of the ICJ to enforce their own decisions. Even without that
statement is ambiguous and indeterminate in character and it’s not ability to enforce decisions, there have been 178 cases that are
specific enough and does refer specifically to the Article 9 of the registered in the ICJ right now and it all started in 1947 during its first
Genocide Convention, and therefore it lacked the element of judgement in the corfu channel case and in the last judgement last
Specificity and therefore Rwanda did not withdraw their reservation. November 11, 2019. This is the evidence of the confidence reposed
upon the ICJ. If you can check the number or the identity of the parties
ICJ has also said, to analyze the Context, under which the statement here, it is from the bigger countries such as Iran, Pakistan, India, US,
was given. The statement was given during the 61st session of the and other smaller countries. There are maybe several instances when
UNHCR, it is normal during the gathering celebrating human rights, it was not enforced by the losing parties. Notable case is Nicaragua v.
that there are statements made by state representatives, but those US. The US refused to provide monetary compensation in accordance
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with judgement. Take note, however, that the US funded Nicaragua organization and it dwells mainly on addressing economic issues
after many years as a form of development. Even big states like the among States.
US or UK have every incentive to respect the decision of the ICJ Is the international agreement creating the IEO a treaty or an
because they know they will benefit from that in the future. For executive agreement? Explain.
example, there is a pending case between Iran and the US right now
in 2020 and there have been several cases between them. Both of Atty Pandi: This is actually an international agreement because it
them are aware that they will resort to the court of law through the does not merely provide adjustment of details. There is no prior
ICJ in several instances. They will really have to respect it because in constitutional authorization or legislative authorization for the PH to
the future they will benefit from it and there may come a time that submit itself to an international organization for settling economic
they will be the aggrieved party. They don’t want to be placed in a disputes. A State does not simply submit itself to the jurisdiction of an
situation wherein they would be told that they didn’t acknowledge international body because that is a limitation to sovereignty. It has
the jurisdiction of the ICJ. More than legality, one thing that they will to be first concurred by the Senate. It will be considered as an
acknowledge the decision of the ICJ is to protect their image or international agreement because it will change our national policy
reputation and the possibility of reciprocity. There are some and it will change the primary structure of the government. This must
countries like China who do not acknowledge it but it will really take be submitted to the Senate for concurrence.
time. They are just saving face. Some of these countries like to warm
up for them to be immersed to the reality of the situation. With What if there is an inconsistency between the statute in the PH and
intense political pressure and calls from the international community, a treaty has been transformed into a local legislation?
they may soften their stances and enforce the judgement. Maybe not
in the same way that the tribunal has framed. There is actually no case Atty Pandi: Take note that a treaty or international agreement
filed against China to the ICJ. becomes part of the law of the land by transformation and when it
is transformed, it partakes the status of a statute. Meaning, the
What about the UN Security Council? ordinary RA we have right now enjoys the same status with a treaty
The UN Security Council is a political body. It is not a legal body. Its that has been transformed into local legislation.
make function is to enforce and maintain international peace and
security. What if there is conflict?
The powers of UNSC are enumerated in Chapter 7 of the UN Charter. In reality, there is no conflict because a treaty has to be submitted
They can come up with non-forcible measures - without using force. for concurrence by the Senate. The senate should be aware of our
(e.g. economic embargo, reprimand the state) They can also use existing or prior statute. Therefore, if it conflicts, it wouldn’t be
force against the airing State under Art 42 of the UN Charter if it finds concurred by the Senate. Now that it is a statute, the Senate and
that non-forcible measures are inadequate and insufficient to make Congress cannot enact subsequent laws inconsistent with a treaty
the airing state behave. It can authorize the use of force. that has been transformed into a local legislation.
The permanent members or heads in the UNSC have veto powers
which are very political. But, the UNSC does not act on the matter How is the UN-SC composed?
because maybe there’s a member who vetoed, it does not mean that There are permanent members and 10 temporary members. All in all
the aggrieved state has no choice. Aggrieved States have self-help 15. Temporary members will rotate and permanent members cannot
measures. They can take matters into their own hands. They can be replaced and they are China, France, UK, US, and Russia. The
come up with other measures and can do something with another reason why there are permanent members is to ensure stability and
state which is proportional to the damage it has suffered. So, it can no imbalance of power. Note that these countries which are
actually fight back. It can only stop fighting back when the UNSC permanent members come from different ideologies and they have
decides to take jurisdiction but if they don’t act on that matter, the alliances of their own and allies of their own. Considered to be a
aggrieved state is not precluded into taking self-help measures. representative of the State they are allied with.

Concerns about Bar Exam Question: Difference between Treaty and What happens when a national law of State A is contrary to a CIL of
Executive Agreement State B. Can State B file a case against State A despite recognition of
The Philippines entered into an international agreement with sovereignty of States?
members of the international community creating the International You don’t file a case UNLESS you are a victim. You don’t file a case
Economic Organization(IEO), which will serve as a forum to address unless your rights have been violated. It is possible that there is a
economic issues between States, create standards, encourage national law in State A which is consistent with CIL. But unless that
greater volume of trade between its members, and settle economic inconsistency of domestic law violates the rights of another state,
disputes. After the Philippine President signed the agreement, the then no legal standing to file a case or unless that CIL violates the
Philippine Senate demanded that the international agreement be rights of indigenous peoples of cultural minorities, then no legal
submitted to it for ratification. The President refused, arguing that it standing to file a case. You’ll have to wait for an actual controversy.
is an executive agreement that merely created an international

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• The concurrence of the Senate is important if the agreement is Question: Who will police perpetrators of international crimes?
something that is permanent, is something that changes
national bodies, and something that affects our state. Atty Pandi: Other states that are concerned about protection of
• It is always the foreign affairs that is the alter-ego of the international law.
executive department which determines whether it is an
international agreement or not, initially. Initially, it is the Atty Pandi: There is no mandatory and well-established procedure for
executive department who determines WON an international the settlement of legal disputes because it is primarily up to the legal
agreement that does not need senate concurrence or an subjects themselves to create, interpret and enforce the law.
international agreement that needs senate concurrence. That Meaning, states themselves create treaties, states themselves create
determination is subject to judicial review. Maybe actually the United Nations through the UN Charter which is a treaty. Unless
brought to the SC for the SC to ultimately decide WON that a state agrees on a particular manner or agrees on what the IL is, then
determination is correct and proper under the circumstances. there is no other recourse. But states have agreed that one of the
• If there are conflicting claims between international law and ways to settle disputes is through submitting it to ICJ because they
domestic law, the international legal system is merely a residual created the UN Charter which created the UN which created the ICJ.
legal system which means it will only apply if domestic law is ill- So by signing and ratifying the UN Charter, the states around the
equipped, inadequate, and is unable to respond to the legal world actually acknowledge that one of the ways of settling disputes
questions presented to it. (Paquete Habana case) An example of is through judicial proceedings before the ICJ.
this is Grace Poe’s case about the rights of foundlings. Our SC
invoked certain treaties in which the SC is a signatory such as Question: Why can’t we liken the security council to an international
the convention of the rights of a child. We applied it because we police?
have no existing laws. We can only apply it if we consent to it or
a signatory to that treaty. Regardless of our State consent, we Atty Pandi: Because police authorities don't have discretion on the
can only apply any rule so lang as it is customary international matter, especially if what is involved is a legal question. And the UN
law because CIL binds the state regardless of its own consent. security council does not act in the same manner. The UNSC is vested
The only exception is if the State is a persistent-objector which with discretion. It can actually refuse to act on a particular matter if it
means that the State has objected to that rule since the thinks that it does not concern international peace and security.
beginning.
Question: As we have said and established that senate concurrence
When does international law become a source of decision-making? is required in the conclusion of a treaty, can the same be applied in
If domestic law is inadequate. the revocation of a treaty?

Remedies? Atty Pandi: Our laws are silent about revocation of a treaty and that
Counter-measures, taking matters into your own hands, self-defense. has been a very controversial question recently because of the
All of that grant into a state. withdrawal of the Philippines from Rome statute. When we entered
and ratified the Rome statute, it needed senate concurrence but
What is the purpose of the UN? when we withdrew, it did not require the consent of the senate
Minor breaches, minor disrespect does not make the UN irrelevant because our constitution does not require it.
because there are other ways of enforcing international law. Again,
not only judicial decisions. There are other practical means and can Question: Does IL require IRR?
be sanctioned by the UN Charter itself.
Atty Pandi: No. IL does not require IRR. The treaty in itself can be the
What then is the use of the UN if the aggressor is a first-world basis for an obligation or can be the basis for filing a case against
country? another country for an alleged violation of one of the provisions of
We just have to give the benefit of the doubt to the countries around the treaty. The moment the treaty has entered into force, it will be
the world. There are those who are hard-headed but there are also binding upon states without prior need for an IRR because the treaty
those who actually consider or respect the rights of law. The UN is itself is self-executory.
there because it holds everyone intact. It makes everyone behave.
Imagine, the converse will be much worse. If we think that the UN is Atty Pandi: Opinio Juris and State Practice are requirements before
irrelevant now, imagine if you remove it in the picture. We will have we can say that there exists CIL. They are not obligations. They are
anarchy. The UN is not perfect but it is there to serve a particular evidence and proof of the existence of the CIL. So whenever you are
purpose and it has served its purpose in certain instances, so it is the in a judicial body, if you want to prove that the rule is custom, if there
glue or link that binds all state parties in the international legal is no treaty on that practice, you have to prove state practice and
community. opinio juris.

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1. State Practice (Atty’s case)
- In proving state practice: Opinio Juris- only relevant when the State practice is unclear and acts
a. We showed to the court that the entity has more than 178 of the State is ambiguous.
state parties. The nuclear non proliferation treaty has a
universal acknowledgement and acceptance. We showed Note on State Practice and Opinio Juris: Understand these two
them evidence of the number of states that ratify the non elements of Customs.
proliferation treaty.
b. We showed examples of states that actually had their own Questions: Are the Philippine Courts allowed to use International
nuclear weapons program but eventually gave up on those Laws in deciding cases even if they are not signatory?
nuclear weapons programs after the nuclear non
proliferation treaty. Atty. Pandi: The SC can take judicial notices but it is a matter of
arguing. It is a matter of how the parties argued before the SC. If they
2. Opinio Juris invoke CIL then the SC will answer/comment it. Example is the case of
- It is important because we have to analyze whether or not Ang Ladlad v. COMELEC. The SC will apply International if it is
the practice was due to the belief, the motivation that you necessary or invoked.
should do that because that is the accepted law. So if a state
does something but does it because of courtesy, tradition E. Hierarchy of sources
and convenience, that’s not opinio juris and that will not - National Laws - vertical system (Consti has higher legal status than
form part of CIL. legislation and admin regulations)
- International Laws - is by and large a horizontal legal order without
Question: Is CIL the same with GAPIL? a hierarchy

Atty Pandi: No. CIL is not the same as GAPIL. CIL requires state Question: How many are privilege norms?
practice and opinio juris. GAPIL requires a survey of the common legal Answer: There are 3 privilege norm which are Jus Cogens, Erga
principles in advance of the legal system. So they have different Omnes, Obligation under UN charter
categories of source of law.
RULE: all legal sources are deemed to have the same normative status
Question: Under the case of Nicaragua, assuming that the ICJ (General Presumption of Normative Equality)
acquired jurisdiction because the reservation was invalid, how will the EXCEPTIONS: In fact, there are at least three exceptions (aka
ICJ proceed on the matter? PRIVILEGED NORMS) to the general presumption of normative
equality
Atty Pandi: ICJ will apply both sources of law. It will make an analysis 1. Peremptory norms—also referred to as jus cogens. These are
under CIL and a separate analysis under the treaty law under the UN OBLIGATIONS OF A STATE THAT IS NOT DEROGABLE. These are norms
Charter. It can do that because as you have read, there is no hierarchy ‘accepted and recognized by the international community of States as
of sources, all the primary sources enjoy the same weight. No source a whole as a norm from which no derogation is permitted and which
is above the other. So the ICJ will employ two levels of analysis under can be modified only by a subsequent norm of general international
the treaty and under the CIL. law having the same character. Article 53 of the Vienna Convention
on the Law of Treaties (VCLT) stipulates that a treaty is void if it
Jus Cogens v. GAPIL ‘conflicts with a peremptory norm of general international law’.
Jus Cogens- an obligation of the State not subject to derogation. An o (CASE IN POINT) In a 2006 preliminary judgment in the Armed
obligation not excusable. A substantive obligation. Activities case, the ICJ referred to the prohibition of genocide as a
peremptory norm of general international law.’
GAPIL- not an obligation rather it is a source of international law. o (ADDITIONAL CASE IN POINT) And in Obligation to Extradite or
Prosecute, it similarly stated that the prohibition against torture is not
ICJ said, “Elementary considerations of humanity must be considered only part of customary international law but also ‘has become a
in the use of nuclear weapons; it is neither allowed nor prohibited by peremptory norm (jus cogens)’.
International Law. In the extreme circumstance of self-defense that a o Other likely norms include the ban on slavery, the prohibition of
State uses nuclear weapons, the State must consider elementary aggression, the ban on crimes against humanity, the prohibition of
considerations of humanity and must be in line with the rules of piracy and the prohibition of apartheid and other forms of gross racial
International Humanitarian Law. discrimination.
o Examples are very limited: Use of Force, torture, genocide,
State Practice v. Opinio Juris war crimes, crimes against humanity

State Practice- the support to the rule is overwhelming, you don’t look
for opinio juris
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2. Erga omnes obligations are normatively superior in the sense that HELD: An essential distinction should be drawn between obligations
they are not merely owed to another state but to the ‘international of a state towards the international community as a whole, and those
community as a whole’. arising from another state in the field of diplomatic protection. By
o “COMMON INTEREST” between states their very nature the former are the concern of all states. In view of
o an essential distinction should be drawn between the obligations the importance of the rights involved, all states can be held to have
of a State towards the international community as a whole, and those a legal interest in their protection; they are obligations erga omnes.
arising vis-à-vis another State in the field of diplomatic protection. By
their very nature the former is the concern of all States. In view of the It is not uncommon, however, for states to create norms of behavior
importance of the rights involved, all States can be held to have a legal of a non-legally binding nature. While legally binding norms are
interest in their protection; they are obligations erga omnes. generally referred to as ‘hard law’ those of a non-binding nature may
o Thus, erga omnes norms possess a particular procedural feature in be termed ‘soft law’.
the sense that breaches of the norms, unlike breaches of other legal
obligations, can be invoked by any state and not just by those which Compared to hard law, the creation of a soft law instrument is
are the immediate beneficiaries of the obligation. generally a faster and more flexible way to establish an expectation
o NOTE: erga omnes obligations will include the norms of a of behavior and, while a violation of the soft law norm will not be met
peremptory/jus cogens character. with legal sanctions, the political price associated with violating the
o The ICJ has also referred to the right to self-determination as a norm may be high. In practice, then, the declarations and resolutions
principle with an erga omnes character. from the General Assembly illustrate that while soft law instruments
are not legally binding on their own terms, they may in certain
3. Obligations under the UN Charter. (Article 103 of the Charter circumstances assist in the ‘crystallization’ of customary law and on
stipulates that obligations under the Charter prevail if they conflict that basis assist in the creation of (hard) international law.
with obligations under any other international agreement.)
o The primacy of Security Council resolutions is not absolute, Atty Pandi Discussion:
however, and the Council does not seem able to oblige states to Question: How do these erga omnes principle come into picture?
disregard norms of a jus cogens/peremptory character. Answer: The court drew a line of state between the obligation of the
state towards the international community which is erga omnes vs
obligation of the state in the field of diplomatic protection. Which
Atty Pandi’s Discussion: means owed by a particular state only. There is a bilateral treaty in its
These are considered privilege norms because they can override all case.
other sources of IL because the assumption there is presumption of Diplomatic protection cannot be held by all states' legal interest to it
normative equality. A state cannot enter into a treaty. The object of and it will not be considered as erga omnes. Which you owe to the
which is incompatible with jus cogen norm under article 53 of VCLT. international community.
The subject of the treaty must not be subject to jus cogens norm.
Obligations erga omnes – become privilege norm because the state
is bound only for signatory states. The treaties are bound who are Albania sued Spain because I’m fighting for my rights of my nationals.
only consents to it. Because some of the shareholders of Barcelona traction are Belgian
nationals and they have been deprived of their property rights
Even if the state is not a party of that state they can still invoke erga because of the action of the Spanish government. The question is
omnes obligations. As Ms. Vega said, obligations under the UN WON the Belgium have the right to sue against Spain
charter are privilege norms because the UN Security Council can just
tell states to suspend all of your obligations, don't do this instead. Because Belgium says I have rights because I’m fighting for my rights
for my nationals. In any case it's erga omnes obligations even if I’m
The only limitation to the power of UNSC is that it cannot violate the not directly affected by the state. The obligation is erga omnes I have
jus cogens because jus cogens is a very powerful norm in the legal standing before the court.
international community. It’s limited number of norms. As once
scholar said, the category of norms considered to be jus cogens “a Any state can file a case to the court even if the state is not directly
largely empty box”. Includes the prohibition of use of force, torture, affected by the violation. In that case the ICJ makes a distinction that
genocide, water crimes, and crimes against humanity and piracy. every state has a common interest therefore any state can file a case.
Any state can file a case to the ICJ .
Barcelona Traction, Light and Power Co, Ltd, Judgment [1970] ICJ
Rep 3. There are also obligations that can be owed by some states like the
ISSUE: Has a right of Belgium been violated on account of its Bilateral Agreement.
nationals’ having suffered infringement of their rights as shareholders
in a company not of Belgian nationality? Why does Belgium have no legal standing in this case?

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The Barcelona traction case a company incorporated in Canada the obligations contain treaty and it may only be invoke against party
meaning a Canadian national. to that treaty. For obligation erga omnes in general there may be
invoked against any state regardless of their participation or
It should be Canada that should file against the spain not Belgium membership or consent to a particular treaty.
because of these canadai nationals. It’s not a common interest of
mankind. Erga omnes obligations in this case because the obligations to
prosecute or extradite is found in the treaty.
Thus, Obligation erga omnes is a type of obligation the compliance of
which is an inherent common interest of all states. It does not require What is the reason why we have an erga omnes artes convention
legal standing, victim, legal status and obligations be offended especially in toruture? Ms. Tejero said because no specific legal
directly. interest is involved before a state may invoke compliance with the
obligation and such what Belgium did.
Questions Relating to the Obligation to Prosecute or Extradite
(Belgium v Senegal), Judgment [2012] ICJ Rep 422. Because the acts of torture were committed in a country in Africa, and
the victims were Chadian Nationals. Why is it that a completely
FACTS: After being overthrown at the head of rebellion 8 years into foreign state, Belgium, thousand and miles away, was the one that
his presidency of the Republic of Chad, Mr. Hissene Habre requested filed a case against Senegal? Because it is an obligation erga omnes
political asylum from the Senegalese Government. By 2000, various partes, all parties to the convention against torture have the legal
criminal proceedings were instituted before both Senegalese and standing to ensure compliance with it’s provisions whether or not
Belgian courts and eventually before the UN Committee against they are directly affected or regardless of whether their citizens are
Torture and the African Court on Human and People's Rights against the victims or not.
him. In Sep 2005, Belgian judge issued an international warrant in
absentia for the arrest of Mr. Habre for serious violations of Why? The Convention against torture will be rendered useless if there
international humanitarian law. On this basis, Belgium requested for is no erga omnes partes obligation. Say for example in this case
his extradition from Senegal. Habre, Habre was from Chad. When he stepped down from office, he
sought refuge in Senegal, why? Because the leader in Senegal at that
ISSUE: Belgium asked the Court to find that Senegal breached its time also has a reputation for committing human rights violations and
obligations under Article 5, paragraph 2, of the Convention against acts of torture. He knows that Senegal will not prosecute him,
Torture, and that, by failing to take action in relation to Mr. Habré’s because they are doing the same thing.
alleged crimes, Senegal has breached and continues to breach its
obligations under Article 6, paragraph 2, and Article 7, paragraph 1, It will defeat the whole purpose of the convention if you require a
of that instrument and under certain other rules of international law. direct legal status or interest. So they will just enter into a state
wherein he/she knows that he will not be prosecuted. So the
HELD: The Court considers that all the other States parties have a oppressive regimes and the oppressive leaders will agree among
common interest in compliance with these obligations by the State in themselves.
whose territory the alleged offender is present, that common
interest implying that the obligations in question are owed “Okay let’s violate human rights! But I will seek asylum under you
by any State party to all the other States parties to the Convention. It okay? Don’t prosecute me. If you need me in the future, I will not
follows that all the States parties “have a legal interest” in the prosecute you too.”
protection of the rights involved and that these obligations may be
defined as “obligations erga omnes partes” in the sense that each So it will defeat the purpose of the convention if you require a special
State party has an interest in compliance with them in any given case. interest or a victim status. If that were the case, all the other states
will not have the opportunity to file a case and will not be able to
ensure that the prohibition on torture is upheld. There is a need to
Atty Pandi’s Discussion:
prevent acts of torture and to ensure that authors do not enjoy
2 types of erga omnes obligation impunity, and authors often enjoy immunity if they find refuge with
· Erga omnes; and each other or from each other. That is something that Belgium
· Erga omnes inter partes refused to acknowledge. Belgium says “Senegal, you have two
Some erga omnes obligations need not be found in treaty. For obligation, you either prosecute or extradite” that is what aut dedere
example the Right To Self- Determination is an erga omnes right and aut judicare.
respect for that right is an erga omnes obligations. But certain
East Timor (Portugal v Australia), Judgment [1995] ICJ Rep 90.
obligations that erga omnes because they contain a treaty an example
*Student recites case*
of his convention against totrute which prohibits torture.
Attorney Highlights the word: Irreproachable
There are provisions against torture but since they are contain in a *Shows video*
treaty they are considered as erga omens partes obligations because
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 20
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Atty. Pandi: There is a pending case between East Timor and Australia therefore they are the only entity entitled to explore, utilize and
right now before the ICJ, because East Timor filed a case against develop it. Neither can Australia nor Indonesia do the same thing.
Australia for the spying, for the stealing of the documents and for the
bugging of relevant offices during the negotiation process.
The right to self determination means the right of the people to chart
East Timor used to be a former colony of Portugal, and as I colony, their own future, to chart their own political, economic and cultural
you expect it to be subjected to massive human rights violations. life. We are an independent group of people, we are unique, and we
When Portugal finally left in 1975 Australia came in and illegally do not want to be associated with anybody else and any state around
annexed East Timor and considered East Timor as it’s province, and the world. We want to live on our own.
as a part of its territory. Indonesia invaded East Timor and annexed it
as part of its territory. Australia said “We recognize the illegality of Erga omnes obligation in this case is the right to self determination
it is not erga omnes partes because the right to self determination is
what Indonesia did, but we also acknowledge that Indonesia is having
customary international law, it does not sprain from any treaty
De facto control over East Timor. Since you have De Facto control, I obligation although you can find it under Article 2 of the UN Charter.
will enter into a treaty with you concerning a natural resource, that
belongs to the people of East Timor (The Timor Gap)” Soft Laws
Soft laws are soft, meaning they are not hard. Meaning, because they
So there was a 1989 Treaty where both Australia and Indonesia are not hard they will not be able to hit the states and hurt states. So,
soft laws cannot hurt states because they are not binding under
agreed to jointly explore the natural resources belonging to another
international law.
group of people. Natural resources that have been there since time
immemorial. Imagine two countries coming up with a treaty They are not binding not because they are imprecise. They are very
governing the natural resources that belong to another. There is no precise. They are not binding however because they are not reduced
more injustice as dark as that, but they did that. in a form which will be binding under international law. Most soft law
instruments are preparatory works to come up with a treaty. Unless
So Portugal wanted to stop it. You cannot do that, because those are a soft law is reduced to a treaty that has been ratified by a state. It
not your natural resources. You cannot agree on a treaty over a will not be binding upon states.
subject matter that neither belongs to you and Portugal was correct.
One very important example of a soft law is the Universal Declaration
East Timor is not a state, so it cannot own natural resources. ICJ did of Human Rights. The UDHR contains all our rights in this just and
not agree. The people of East Timor have the right to self humane world, but it’s a soft law instrument, because it is merely a
determination. People have permanent sovereignty over their declaration, it is not reduced into a treaty and didn’t not go through
natural resources, and these natural resources attach to them by the process of treaty-making, so it is not binding.
virtue of being connected to the resources. So permanent sovereignty
over natural resources attaches regardless of whether the people Does it contain relevant rules concerning our human rights?
have founded a state. Yes, right of freedom of expression, right to life, right to liberty and
property and security, what it contains are precise statements of law,
Regardless of whether East Timor was independent or not (It was but they are not binding, because they are not reduced into a form
obviously not independent in 1989), they have permanent which will be binding under international law, for example it is not CIL
sovereignty over the natural resources in the Timor Gap. They own it or GAPIL or not reduced to a Treaty.
and no other country owns it. Because ownership attaches to the
people not to statehood, which is a legal fiction. What is the relevance of Soft law Instruments?
They are relevant because they have the tendency to harden, and
Australia and Indonesia have no right to agree into a treaty to utilize when they do, they may become binding upon state parties. There
the natural resources that belong to a minority group of people. The are several treaties that we have that came from soft law
people of East Timor. instruments, for example, the Treaty concerning outer space, the
treaties regulating cyber attacks and the use of force.
Portugal is right. Unfortunately, Portugal made a procedural blunder,
because it only filed a case against Australia when it should have Soft Law Instruments – are referred to as “LEX FERENDA”, which
included Indonesia. As to rule on the validity of the 1989 Treaty is to means the “future law”, the law which we want, the future law we
violate the right of Indonesia to Due Process. want to achieve. These are hardened through the process of Treaty-
making.
Portugal is wrong only with the procedural aspect of the case, but it Examples: UDHR, The Yogyakarta Principles on LGBT Rights (invoked
is perfectly correct in arguing that even if East Timor is not yet an in Ang Ladlad vs COMELEC)
Independent State. Even if there is no functioning government yet.
Those natural resources belong to the people of East Timor and Binding Law/Settled Law/Hard Law – are “LEX LATA”, are binding,
settled law.

By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 21
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Module 3
LAW OF TREATIES Case law from the ICJ shows that it does not take much for a concrete
A. Chapter 3 of Henriksen (pp 40 – 59) disputed agreement to be considered a binding treaty under
The primary rules and principles in the area of the law of treaties are international law.
found in the 1969 Vienna Convention on the Law of Treaties (VCLT)
that was adopted by the UN Conference on the Law of Treaties in May B. See generally Vienna Convention on the Law of Treaties
1969 and entered into force in January 1980. The draft articles of the ATTAINED CIL standing:
Convention were prepared by a number of successive Special Art 26 - Pacta Sunt Servanda
Rapporteurs of the International Law Commission. Art 31 - treaty interpretation
Art 61-62 – on Termination
Since the Convention seeks to codify existing customary practices, it
generally reflects customary international law. In fact, there has yet Advantage of agreement in accord with the VCLT – they benefit even
to be a case where the International Court of Justice has found the those principle that does not yet crystallize into CIL
content of a particular convention provision does not reflect
customary law. C. Treaty as a concept under international law

Adopted: May 1969 UN Conference on the Law of Treaties LIFE CYCLE OF A TREATY
Entry into force: January 1980 1. Negotiations and Conclusion - who may conclude a treaty for or
on behalf of a State
Article 2 (1)(a) of the Vienna Convention on the Law of Treaties 2. Consent – What are the ways of expressing consent to be bound?
“Treaty” means an international agreement concluded between 3. Entry into Force – When does a treaty enter into force?
States in written form and governed by international law, whether 4. Validity – what are the grounds for invalidating a treaty?
embodied in a single instrument or in two or more related 5. Amendments – How may a treaty be amended/modified?
instruments and whatever its particular designation. 6. Termination – what are the grounds for terminating or
withdrawing from a treaty
International organizations may also be parties to a treaty governed
by international law but the treaty will not be governed by the VCLT. 1. Aegean Sea Continental Shelf (Greece v Turkey), Judgment [1978]
Instead, it will be regulated by the 1986 Vienna Convention on the ICJ Rep 3.
Law of Treaties between International Organizations or between Atty Pandi: Where was the joint communique issued to? It was issued
States and International Organizations. to the press.

The legal basis of a treaty obligation is state consent. No one can force In this, the instrument questioned was Brussels communique which
a sovereign state to enter into a legally binding agreement and a is basically just a piece of paper issued to the press by the heads of
treaty only creates legal obligations for the parties. (See Article 34 of states; the representatives of both States Greece and Turkey
the VCLT). following their meeting. But, it was not signed. However, the text of
the Brussels communique provides that if they fail to arrive at a
Pacta Sunt Servanda – When a state has consented to be bound by a settlement, both States must agree in a special agreement to submit
treaty and has become a party to it, the state must comply with its the case to the jurisdiction of the ICJ.
terms. The principle is reflected in Article 26 of the VCLT whereby a
treaty in force ‘is binding upon the parties to it and must be A special agreement is a piece of paper wherein the facts relating to
performed by them in good faith’. the case are stipulated and jointly agreed to be the facts of the case.
Meaning, the 2 states going to the ICJ, already prepare a special
Oral Agreements are also ‘treaties’ for the purposes of international agreement containing all facts that the ICJ can consider in arriving at
law. Article 3 of the VCLT explicitly stipulates that the fact that the a decision and this is what we call special agreement because the
Convention only applies to written treaties does not affect the legal parties themselves have delineated what facts and circumstances are
force of other agreements. considered by the ICJ in making a decision. On the strength of this
joint communique, Greece actually went to the ICJ to file a case
The title of the written instrument is immaterial for the purposes of against Turkey and it asked the ICJ to come up with a decision
determining if it is a ‘treaty’ governed by international law. As long as regarding the delineation of the agency. This is a very relevant case
the instrument in question testifies to an intention to create rights because until now, Turkey and Greece are still fighting over certain
and obligations it is a treaty for the purposes of international law. areas in the agency. There have been several military exercises with
the Turkish government.
Terms such as ‘will’ and ‘ought’ to usually signal that the parties do
not intend to make a binding commitment, whereas words like ‘shall’, ICJ ruled that, sure a joint communique that did not go to formalities
‘rights’, ‘oblige’ or ‘must’ indicate the opposite. that did not bear the signature of the state representatives can
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 1
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actually be a source of an international obligation because what
matters is not the form but what matters is that it is an agreement Saudi failed to settle it so Bahrain went to the ICJ. It triggered the
between the states that it is to be governed by international law that right of Bahrain to invoke the jurisdiction of the ICJ to make a final
it is written. We don’t care about its designation whether it is called a determination on the matter. Therefore, the ICJ has jurisdiction even
treaty, communique, we don’t care about formality. So, the joint over the opposition of Qatar in that case.
communique can actually be a binding source of an international
obligation because it says in the designation that regardless of its Atty Pandi: This is quite similar to the continental shelf case in that it
designation. However, the ICJ said that because that joint does not matter whether it is a minute or not, the form does not
communique, as an instrument can be a binding source of an matter. What you look into are the actual text of the treaties and the
obligation, does not mean it will stop there. We still have to make an circumstances of the adoption. In this case, the minutes were created
analysis and check the actual text of the joint communique itself. because of failed efforts of the governments to actually settle the
matter regarding their continental shelves. Actually, the minutes
What is the material source and what does the treaty provide? The were born out by the willingness of both governments to settle the
joint communique actually provides that any resort to the ICJ has to matter.
be jointly agreed by the parties.
The circumstances of the matter will tell you that there was an
What Greece did was it unilaterally submitted the case to the attempt, in good faith, coming from both states to actually be
jurisdiction of the ICJ which is in contravention of what the joint governed by international law. The statement of the minutes was to
communique provides. While the joint communique is a treaty under the effect that Saudi do you best within 6 months and after 6 months
international law, it did not provide for a unilateral right to file a case nothing happened, we will submit the case to the jurisdiction ICJ.
against the ICJ. Greece has to secure the consent of Turkey via a Therefore, the minutes of the meeting was a binding source of
special agreement before it will go to ICJ. obligation and the ICJ has jurisdiction. Form and designation does
not matter. What matters is the actual text of the instrument and
ICJ said that in analyzing whether an instrument is a binding source of the circumstances of its adoption.
IL, sure we don’t look at the formalities but what is important is we
analyze the actual text of the instrument and the circumstances of the The authority to conclude a treaty
adoption. The joint communique did not provide a unilateral right. All states possess the legal capacity to conclude treaties but not all
There has to be a special agreement and joint consent to be given by representatives of a state are considered competent to conclude a
both states before it will be brought to the ICJ. treaty on behalf of a state.

2. Maritime Delimitation and Territorial Questions Between Qatar ONLY representatives who has a “full power” document will be so
and Bahrain, Jurisdiction and Admissibility, Judgment [1994] ICJ Rep authorized.
112. XPNS: Representatives that do not need to produce ‘full powers’
Atty Pandi: What should be taken into account that the minutes of o According to article 7(2)(a), by virtue of their functions:
the meeting (instrument) created an international obligation? - heads of state,
Intention of the parties. - heads of government and
- ministers for foreign affairs
In this case, the questioned instrument is the minutes of the meeting. o A more limited authority to represent a home state rests on heads
However, the minutes of the meeting between Bahrain and Qatar of diplomatic missions and representatives accredited by a state to an
with the special offices of Saudi Arabia was special because they did international conference or an international organization.
not contain the narration of what just transpired but it also contained § Depending on the circumstances, these individuals may participate
certain commitments and certain undertakings by both governments. in the adoption of a text of a treaty without full powers.
They were actually in the process of negotiating their continental
shelves but they could not agree. They actually asked for the good The issue of ‘representation’ is dealt with in article 7 of the VCLT that
offices in Saudi Arabia. refers to the concept of ‘full powers’.
So, Saudi being a good neighbor of these 2 countries, intervened as A ‘full power’ is a document that authorizes a state representative to
an arbitrator because it is a 3rd party that is disinterested in this case. negotiate and conclude a treaty on behalf of the state.
They asked for help for Saudi.
Q: What is the effect of violation of provisions of national law
During the meeting, it was agreed that the Saudi government will find regarding competence to conclude treaties?
or exhaust all means to settle the dispute between them. Saudi was A: Article 46 of VCLT
given 6 months to do that. After the 6 months and if still no “a state may not invoke the fact that its consent to be bound by a
settlement from Saudi, both parties agreed to submit the case to the treaty has been expressed in violation (in conflict) of a provision of its
jurisdiction of the ICJ and that obligation to submit the case to the ICJ internal law regarding competence to conclude treaties as
was clearly expressed in the minutes of the meeting.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 2
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invalidating its consent, unless that violation was manifest and In Article 27, what the state is saying is, “sure, I am bound to the
concerned a rule of its internal law of fundamental importance". treaty. My consent to be bound is expressed in a manner that is legal,
no irregularities. However, there is a subsequent internal law in my
According to article 46(1) of the VCLT, a state may not invoke the fact state and that internal law is in conflict with my international law
that its consent to be bound by a treaty has been expressed in obligation, because I have to prioritize my international law, I don’t
violation of its national laws as invalidating its consent unless the have a choice but not to comply with my international obligations.
violation of national law was manifest and concerned a national rule That is the evil that Article 27 seeks, to actually suppress, that a state
of fundamental importance. cannot come up with a subsequent national law inconsistent with its
international obligations as embodied in a prior treaty or a prior
Under article 46(2), the violation of internal law must be ‘manifest’ in international agreement.
the sense that it is objectively evident to any state conducting itself in
the matter in accordance with normal practice and good faith. In Article 46, what the VCLT provides is that generally, the state
cannot say “I am not bound” because the competent person who
If a person with no authority to conclude a treaty has nevertheless supposed to bind me acted beyond the confines of its authority.
done so, the state may decide to avail itself of the opportunity to Remember, Article 46 is under the section on the Invalidity of
disavow the act of the person in question by subsequently endorsing Treaties.
the act and thereby establishing its consent to be bound.
So, 46 seeks to invalidate the treaty. 27, is under the chapter on
The state will be held to have done so by implication if it invokes the Application of the Treaty. What basically the state is doing under
provisions of the treaty or otherwise acts in such a way as to appear Article 27 is it refuses to apply the treaty because allegedly, applying
to treat the act in question as effective. the treaty would run contrary to a national or a domestic law.

3. Land and Maritime Boundary Between Cameroon and Nigeria 46 (1) provides that a state may not invoke the fact that its consent
(Cameroon v Nigeria; Equatorial Guinea intervening), Judgment to be bound by a treaty has been expressed in violation of a provision
[2002] ICJ Rep 303. of its internal law regarding competence to conclude treaties as
A case about the authority of the State to give consent. invalidating consent unless two requirements are met.

Atty Pandi: Most of the questions deal with Article 46 and its Meaning, in Article 46, the state cannot say its not bound by the treaty
relationship with Article 27. Article 27 of the VCLT provides that a because its internal laws concerning competence to conclude treaty
state cannot invoke the provisions of its internal law as a justification was not complied with and to best illustrate this, Cameroon vs.
to avoid or evade or not to comply with its international obligations. Nigeria. The Maroua Declaration sets boundaries between Cameroon
On the other hand, Article 46 of the VCLT provides that a state cannot and Nigeria. Now, subsequently, the Nigerian government argued
invoke that its consent to be bound has been made in violation of its that it is not bound by the Maroua declaration because allegedly, the
internal law regarding competence to consent. head of State, its president, indeed signed the treaty but the
constitution of Nigeria provides that for Nigeria to be bound by any
Atty Pandi: So what’s the difference between 27 and 46 first? 27 treaty, the treaty must be ratified by the supreme military council.
Presupposes that there is no problem with consent, that the treaty is
binding upon the state in question and that the representative of that There is a body in Nigeria that is vested with the right, the power to
state in signing or ratifying its treaty acted within the confines of ratify any treaty entered into by the head of state. Nigeria said there
his/her authority. Therefore, Article 27 only applies if there is no was no ratification by the supreme military council as provided in its
question regarding consent which was admitted by the state party constitution. Therefore, the head of state that signed the treaty is not
that it has consented and that there was no violation of competence competent because our constitutional law regarding competence to
to consent. Meaning, whatever our representative did, in signing or conclude a treaty has not been complied with. But the ICJ said that
ratifying the treaty is something that we have to acknowledge and this argument can only be invoked when two requisites concur. A
something we recognized. state can impugn the competence of its authority or of its
representative to sign the treaty or ratify the treaty. 2 requisites:
Article 46 on the other hand questions the competence of the 1. If the violation of internal rule was manifest.
representative to express consent on behalf of a state. Meaning, the 2. The violation concerned a rule on fundamental importance.
state itself is impugning the effectiveness of the treaty with respect
to itself. Meaning, it’s not bound to the treaty because my consent to Paragraph 2 provides that the violation is manifest if it is objectively
begin with has been expressed in a manner that the one who signed evident to a state acting in good faith and according to normal
or ratified the treaty on my behalf was not authorized. That’s the practice.
argument in Article 46.
In this case, the second element was complied with. What was not
complied with was the first element.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 3
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adopted in 1986 to regulate the treaty relations of international
Question: How do we analyze or determine whether the violation organizations.
was manifest?
Consent to be bound
Atty Pandi: ICJ will check normal practice and good faith. In normal In order for a state to become legally bound by a treaty, it must
practice, do you impugn the authority of a head of state to actually consent to it.
bind and represent the state? ICJ said no because the heads of state According to article 11 of the VCLT, consent may be expressed by a
are granted with full powers, they are actually not required to signature, an exchange of the instruments that constitute a treaty,
present full powers because by the very nature of their function and ratification, acceptance, approval or accession ‘or by any other means
their position, they are deemed to be authorized to represent the if so agreed’.
state where they come from. Therefore, the violation in this case was
not manifest. Cameroon was well within its rights to rely that the Consent How Expressed:
President of Nigeria had the authority to bind the state, because you 1. Signature
don’t simply question the authority of the President and in all 2. Exchange of Instruments constituting a treaty
previous dealings applying normal practice, it's usually the heads of 3. Acceptance, approval or accession
states that actually signed treaties. Therefore the violation was not 4. Any other agreed means
manifest. When it is manifest? If the representative is unknown. He
does not know the formalities regarding conclusion and negotiation Today, there is a widespread practice of simply expressing consent by
of treaties or maybe he did not wear formal wear. signature—also known as a definitive signature.

Saguisag v. Ochoa, Jr., G.R. Nos. 212426 & 212444, 12 January 2016 Article 15 of the VCLT also permits consent by accession, where a
EDCA authorized the U.S. military forces to have access to and state consents to be bound by a treaty, which it has already
conduct activities within certain “Agreed Locations” in the signed, in the following circumstances:
Philippines. The Secretary of National Defense and the U.S. (a) if the treaty provides for it;
Ambassador to the Philippines signed the agreement on 28 April (b) if it is otherwise established that the negotiating parties were
2014. President Benigno (“noynoy”) S. Aquino III ratified EDCA on 6 agreed that it should be possible; or
June 2014. EDCA, however, was not transmitted to the Senate for (c) if all the parties have subsequently agreed that a state may express
concurrence. Did the signing of EDCA comply with the Constitution? its consent by such means.
YES.
Signature vs Ratification
SUMMARY: Petitioners are arguing that EDCA should have been in the In some circumstances, consent to be bound by a treaty requires not
form of a treaty concurred in by the Senate, not an executive only a signature by the potential state party in question, but also a
agreement. The Court distinguished between treaties, which are subsequent confirmation by the state that it intends to be bound by
formal documents that require ratification with the approval of two- the treaty.
thirds of the Senate, and executive agreements become binding
through executive action without the need of a vote by the Senate or The purpose of ratification is to allow the signing state a period of
by Congress. The SC basically ruled that the President may enter into time before it gives its binding consent, often by seeking the approval
the EDCA as an executive agreement because it was necessary to of its national parliament or, more rarely, at the hands of the general
implement the existing provisions of the Visiting Forces Agreement public through a referendum.
and the Mutual Defense Treaty between the Philippines and the
United States. Hence, there was no need for a treaty that required Hence, when subsequent ratification is required, the (initial)
ratification. signature is not (yet) confirmation that the state intends to be bound
by the treaty.
(FROM HENRIKSEN)
Treaties between states and international organizations According to article 14 of the VCLT, ratification is required if:
Both the ICJ’s advisory opinions in the Certain Expenses case and the (a) it is specified in the treaty itself;
Legality of the Use by a State of Nuclear Weapons in Armed Conflict (b) it is otherwise established that the negotiating parties agreed that
illustrate that, depending on the circumstances, international it was needed;
organizations may have some treaty-making powers. For example, (c) the representative who signed the treaty did so subject to
since their (treaty-based) establishment, both the UN and the EU ratification; or
have entered into a substantial number of treaties that cover a wide (d) it appeared from the full powers of the representative or it was
variety of issues. expressed during the negotiation that that was the intention of the
state.
The Vienna Convention on the Law of Treaties between International If it is not specified or otherwise manifest that ratification is needed,
Organizations or between States and International Organizations was there is a presumption that ratification is not required.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 4
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Entry into force—obligations in the interim period With the exception of treaties in violation of jus cogens, the
Entry into Force: underlying rationale of a claim of invalidity will be that the consent to
1. Upon ratification of specified number of States be bound was somehow defective, meaning that consent would not
2. When consent has been established for all negotiating States have been forthcoming had it not been for the circumstance in
3. In the interim, consenting States must refrain from doing acts question.
which would defeat the object and purpose of the treaty.
The rules on invalidity are found in articles 46–53 and 64 of the VCLT
In practice, a state is not legally bound by the treaty until the treaty and they illustrate that it is very difficult to successfully raise a claim
enters into force. of invalidity.
According to article 24 of the VCLT, a treaty enters into force ‘in such
manner and upon such date as it may provide or as the negotiating RULE: In fact, predictability, stability and mutual trust dictate that
states may agree’. once agreed and entered into, even seemingly ‘unequal’ or
‘unreasonable’ treaties must be considered valid and legally binding.
In the case of simple bilateral agreements, the treaty may enter into
force when both parties sign the agreement. Error (when it can be invoked)
But it is not unusual for a substantial amount of time to pass before a a. the error must relate to a fact or situation which was assumed by
multilateral treaty enters into force. the State to exist at the time when the treaty was concluded;
The VCLT itself did not enter into force until more than ten years after b. the error must have formed an essential basis for a party’s consent
it was adopted. to be bound by the treaty;
c. the claiming party must not have contributed by its own conduct
If the treaty does not specify when it enters into force, it will generally to the error or must not have had notice of the error.
enter into force as soon as consent has been established for all the
negotiating states. Article 49 specifies that a state can invoke fraud as invalidating
consent if it has been misled or ‘induced to conclude a treaty’.
A treaty that has not yet entered into force cannot create any legal
obligations for the contracting states. article 50 specifies that corruption of a representative of a state may
be a ground for invoking invalidity. (related to Article 51)
But good faith requires that a state is not entirely free to act as it
pleases in the period between when it gave its consent to be bound by Article 51 concerns coercion and stipulates that an expression of
the treaty and when the treaty enters into force—known as ‘the consent shall be without legal effect if it has been procured ‘through
interim period’. acts or threats’ directed against a state representative.

Article 18(b) of the VCLT specifies that during that period consenting article 52, according to which a ‘treaty is void if its conclusion has
states must refrain from acts which would ‘defeat the object and been procured by the threat or use of force in violation of … the
purpose’ of the treaty. Charter of the United Nations’.

Whether an act ‘defeats the object and purpose’ of a treaty must be The most relevant of the provisions on potential invalidity is article
determined on a case-by-case basis. The provision is easier to apply 53 that relates to the issue of peremptory character/jus cogens.
to treaties of a contractual nature than to more general law-making Article 53 specifies that a treaty is void if it ‘conflicts with a
treaties. peremptory norm of general international law’.

As a point of departure, however, it will probably only be in those Article 53 differs from the other articles on invalidity in that it is the
cases where a state’s behaviour in relation to a treaty appears to be only one that focuses on the content of the treaty in question and
‘unwarranted and condemnable’ and potentially motivated by bad thereby tries to limit the contractual freedom of the states.
intentions that it will be found to violate its interim obligations.
Article 53 should be read in conjunction with article 64 according to
Validity which an existing treaty becomes void and terminates if it conflicts
What invalidates a treaty? with an emerging (new) peremptory norm.
1. ERROR - Party advancing error must not have contributed to the
error. (Art 48, VCLT) Reservations
2. FRAUD & CORRUPTION -State has been misled and representative A unilateral statement, however phrased or named, made by a State
has been corrupted. (Art 49-50, VCLT) when signing, ratifying, accepting, approving or acceding to a treaty,
3. COERCION - Acts or threats were directed against a State whereby it purports to exclude or modify the legal effect of certain
representative. (Art 51, VCLT) provisions of the treaty in their application to that state.

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1) The first is that the invalidity of the reservation nullifies the
Distinguish between ‘reservations’ and ‘interpretative declarations’ instrument as a whole whereby the (reserving) state is no longer
Unlike a reservation, an interpretative declaration (which is not considered a party to the agreement at all.
mentioned in the VCLT) does not seek to modify the treaty obligation 2) The second option is to essentially ignore the reservation and
but merely to specify or clarify the meaning or scope the declaring conclude that the (reserving) state remains bound by the treaty,
state attaches to the obligation in question. Hence, the purpose of including the provision(s) to which the reservation related.
such a declaration is to communicate to other parties what the
declaring state understands the existing obligation to be. A reservation subsequent to ratification cannot therefore be
effective unless it is accepted by the other contracting parties.
Derogations vs Reservations
Some human rights treaties contain provisions that authorize a state It is important to recall, however, that a state that wishes to become
to ‘derogate’—and thereby not to apply certain provisions—in times ‘un-bound’ by a treaty obligation may still be bound by the content of
of emergency or similar periods of national emergency. the obligation if it has become binding as a matter of customary
international law.
To derogate means not to respect. To derogate means not to comply
with your obligations and derogation applies in human rights 1. Reservations to the Convention on Genocide, Advisory Opinion
instruments. [1951] ICJ Rep 15.

Articles 20 and 21 of the VCLT deal with the important—and The concrete rules on treaty reservations owe much to the 1951
controversial — issues regarding acceptance/objection to Genocide Reservations case where the ICJ issued an advisory opinion
reservations and the legal effects of reservations. on the making of reservations to the 1948 Genocide Convention.

As a main rule, and as a natural consequence of the consensual Up until then, reservations were not valid unless accepted by all the
nature of the law of treaties, a reservation will not become effective contracting parties. (OLD RULE)
in relation to another contracting state unless that state has accepted
it—either explicitly or implicitly. The ICJ adopted a new and more flexible approach to reservations
that subsequently found its way into the VCLT. According to the Court,
If a state has not objected within 12 months, it is deemed to have reservations are generally acceptable if they are compatible with ‘the
accepted it. object and purpose’ of the treaty in question. (NEW RULE)

If, however, it appears from the limited number of participating states Reservations are unilateral statements made by a certain State that
and the object and purpose of the treaty that it is meant to apply in seeks to exclude the applicability or modify the legal effects of those
its entirety to all parties, reservation requires the consent of all those provisions.
parties.
A State when making a reservation, it refuses to be bound by a certain
If nothing is provided in the treaty, reservations are governed by the provision/provisions subject by a reservation. Reservations are made
following principles. in relation to compromissory clauses which provide that a State
(a) If a state accepts a reservation by another state they will be consents to the jurisdiction of the ICJ, respecting the applicability and
parties to the same treaty. the enforcement of the Treaty itself.
(b) If a state objects to another state’s reservation the treaty will not
enter into force between the two states if the objecting state Before a State can be a part of the Treaty, a State can make a
expresses a definite intention for that to be the case. reservation but that reservation needs to be accepted by the State
(c) A state’s reservation is effective when at least one other parties.
contracting state has accepted it.
What we want in International Law is the maximum participation of
With regard to the legal effects of reservations and objections, article the States in a Treaty especially Treaties that governs common
21 of the VCLT stipulates that a reservation modifies the provisions of interest. That is why it is difficult to make a State accept/agree to a
the treaty for the reserving and the other state. It does not, however, Treaty that is beyond their capacities to contract.
modify the provisions for the other parties inter se.
In Genocide Convention, which is intended to punish the acts of the
If a reservation violates a treaty’s object and purpose, the reserving Genocide and to made sure that the perpetrators do not experience
state cannot rely on it in its treaty relations with other parties. impunity.
Two (2) possible outcomes:
RULE: The State can make a reservation for as long as it is compatible
with the object and purpose of the Treaty.
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2. Context- preamble, annexes, agreements and instruments
Q: Are reservations allowed all the time? When is a reservation not made in connection with the conclusions of the treaty
allowed? 3. Object and purpose
No. Reservations are not allowed all the time.
Q: What do you understand about travaux préparatoires?
Article 19 of the VCLT provides for the formulation of reservations: A: Article 32 of the VCLT concerns the status of the preparatory works
A State may, when signing, ratifying, accepting, approving or acceding to a treaty (travaux préparatoires)
to a treaty, formulate a reservation unless:
(a) the reservation is prohibited by the treaty; ART 32, VCLT. Supplementary means of interpretation. Recourse may
(b) the treaty provides that only specified reservations, which do not be had to supplementary means of interpretation, including the
include the reservation in question, may be made; or preparatory work of the treaty and the circumstances of its
(c) in cases not failing under subparagraphs (a) and (b), the conclusion, in order to confirm the meaning resulting from the
reservation is incompatible with the object and purpose of the application of ART 31, or to determine the meaning when the
treaty. interpretation according to ART 31: a) leaves the meaning ambiguous
or obscure, b) leads to a result which is manifestly absurd or
Q: When is the object and purpose of a treaty compromised? unreasonable.
A: If the reservation ‘affects an essential element of the treaty that is
necessary to its general tenour, in such a way that the reservation Atty Pandi: What are the modes of treaty ?
impairs the raison d’être of the treaty’. A; Methods Treaty Interpretation
1. Textualist
Legal Effect: 2. Teleological
a. Invalid reservation means an obligation to be bound in the 3. Evolutionary
Treaty. That is why the State must express that if the 4. Systematic
reservation won’t be accepted then the State will not be 5. Subsequent Practice
part/bound by the Treaty.
b. The reservation is compatible with the object and purpose Atty Pandi: What is the Principle of effectiveness?
of the Treaty, it will be the time to ask the other party States A constitutive treaty, that establishes an international institution and
if they will agree/accept the reservations made. If one of specifies the functions and competences of that institution, is
the State parties disagrees/rejects with the reservation, it generally considered to be of a ‘special nature’ that calls less for
should be expressly manifested. interpretation in accordance with the intention of the parties that
created the institution than an interpretation that stresses
F. Interpretation ‘effectiveness’ (‘functionality’).
ART 31, VCLT. General Rule of Interpretation.
(1) A treaty shall be interpreted in good faith in accordance with the Principle of effectiveness – focuses on validity and enforceability,
ordinary meaning to be given to the terms of the treaty in their meaning and logic of the treaty,
context and in the light of its object and purpose.
Nicaragua v United States), Merits [1986] ICJ Rep 14
The reference to ‘good faith’ derives from the pacta sunt servanda ICJ held that the U.S. had violated international law by supporting the
obligation in article 26. Contras in their rebellion against the Nicaraguan government and by
mining Nicaragua's harbors. The Court found in its verdict that the
According to article 31(4), a ‘special meaning’ must be given to a term United States was "in breach of its obligations under customary
in a treaty provision if ‘it is established that the parties so intended’. international law not to use force against another State", "not to
intervene in its affairs", "not to violate its sovereignty", "not to
Article 31(1) illustrates that the interpretation of a treaty must interrupt peaceful maritime commerce", and "in breach of its
consider three elements: obligations under Article XIX of the Treaty of Friendship, Commerce
the text, its context and the object and purpose of the treaty as and Navigation between the Parties signed at Managua on 21 January
desired by the parties. 1956."

Thus, all elements must be considered and none are intended to be Also, in this case, the court held that it is not necessary that state
of greater weight than the others. practice in question had to be ‘in absolutely rigorous conformity’ with
the purported customary rule. The Court continued: “In order to
Elements to Consider in Treaty Interpretation: deduce the existence of customary rules, the Court deems it sufficient
1. Text- if a wording is clear but its application would lead to that the conduct of states should, in general, be consistent with such
unreasonable result, other elements must be applied rules, and that instances of state conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not
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as indications of the recognition of a new rule.” For a new customary
rule to be formed, not only must the acts concerned ‘amount to a Nicaragua – Object in tangible sense.
settled practice’, but they must be accompanied by the opinio juris Costa Rica – object is for purpose.
sive necessitatis.
ANSWER OF THE COURT: (EVOLUTIONARY APPROACH – NOT in the
Either the States taking such action or other States in a position to VCLT)
react to it, must have behaved so that their conduct is ‘evidence of a Where the parties have used generic terms in a treaty, the parties
belief that this practice is rendered obligatory by the existence of a necessarily having been aware that the meaning of the terms was
rule of law requiring it. The need for such a belief, i.e. the existence likely to evolve over time, and where the treaty has been entered into
of a subjective element, is implicit in the very notion of the opinio juris for a very long period or is “of continuing duration”, the parties must
sive necessitatis. be presumed, as a general rule, to have intended those terms to have
an evolving meaning.
Recits and Discussion
Q: What do you understand about evolutionary approach? 1. First, “comercio” (commerce) is a generic term, referring to a
A: When the parties somehow used generic terms in a treaty. The class of activity. It is furthermore a term so broad that it necessarily
parties are not necessarily having been aware of the meaning of the should be subject to interpretation in context of the events of present
terms and necessarily invoke overtime and where the treaty has been society under which the term is applied.
entered into for a very period is of continuing duration then the 2. Second, the 1858 treaty was entered into for an unlimited
parties must presume a general rule to have intended those terms to duration; from the outset, it was intended to create a legal régime
have meaning. characterized by its perpetuity. (*that long period of time will allow
the treaty to have a whole new meaning)
Q: So what if the parties used generic terms?
A: If the parties used the generic terms it is subject to various sensible THEREFORE, The ICJ held that Costa Rica’s interpretation prevails.
interpretations that might cause confusion. It may lead to dispute.
Atty Pandi: Navigational is about the San Juan river which borders
Q: Why is there a requirement that a treaty be applied for a long Costa Rica and Nicaragua. Costa Rica and Nicaragua agreed that has
duration? sovereign right over the river. What is granted to CR are navigational
A: It would be applicable to prospective treaties. right but don’t exercise any right of dominion. The treaty entered into
1858, but now the navigation includes tourist, business man and all
Dispute Regarding Navigational and Related Rights (Costa Rica v other forms of individuals. Nicaragua complained why is there tourist
Nicaragua), Judgment [2009] ICJ Rep 214. here. These are not object of commerce. Nicagura says object of
PETITIONER: COSTA RICA commerce pertain to the object of concrete and material sense. LUBI,
RESPONDENTS: NICARAGUA SAGING AND GOODS But objects of commerce could not pertain to
individuals and tourists because these are services already and I think
SUMMARY: On 29 September 2005, Costa Rica filed an Application it’s not related to commerce. But Costa Rica evolved commerce. The
instituting proceedings against Nicaragua in a dispute concerning the commerce in 1858 is not the same right now. Now, we have tourism
navigational and related rights of Costa Rica on a section of the San industry. It pertains to business meetings.
Juan River, the southern bank of which forms the boundary between
the two States provided for by an 1858 bilateral treaty. In its Nicaragua- commerce in the concrete and material sense
Application, Costa R- the object is to undertake related to commerce.

Costa Rica affirmed that “Nicaragua has — in particular since the late ICJ believes in Costa Rica because evolution applies. The generic
1990s — imposed a number of restrictions on the navigation of Costa terms will actually will transform as society progresses especially the
Rican boats and their passengers on the San Juan River”, in violation treaty will apply for a long period of time.
of Article VI of the 1858 Treaty, which “granted to Nicaragua Example. Prohibiting weapons, the treaty is applied for 5 years but
sovereignty over the waters of the San Juan River, recognizing at the weapons is a generic term but then it is only applied for 5 years. The
same time important rights to Costa Rica”. term weapons have significant meaning. It must be long in order to
accommodate social development.
CONTENTION: It’s generic if there are no qualifying terms.
Nicaragua contends that it is important to give the words used in the
Treaty the meaning they had at the time the Treaty was concluded, 2 important things to Remember in Costa Rica vs Nicaragua
not their current meaning, which can be quite different, because this Nicaragua is not a party to VCLT. VCLT would not apply. Article 31 of
is the only way to remain true to the intent of the drafters of the VCLT is cil.
Treaty; and determining that intent is the main task in the work of The treaty was enacted in 1858. The VCLT was born 1969. The treaty
interpretation. comes first before vclt. Nicaragua says, why are you applying 1969
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agreement or rule to an 1858 but the treaty exists first. ICJ said 2nd mode of Interpretation – Subsequent practice of states in case of
relevant rules of IL are to be applied at a time the dispute arose. The Derogation
1969 VCLT WILL APPLY. - (CASE IN POINT) In Hassan v UK, the ECtHR concluded that
subsequent practice of the parties ‘could be taken as establishing
Case: Hassan vs. UK their agreement not only as regards interpretation but even to modify
1st mode of interpretation - (systemic integration) – harmonize the the text’ of the ECHR. The Court found that the detention of
two conventions individuals on the basis of the Third and Fourth 1949 Geneva
In European Convention on Human Rights (ECHR), before you can go Conventions in the course of an international armed conflict would
to regional courts (these are called regional bodies), there has to be appear to be prima facie inconsistent with the right to liberty under
exhaustion of domestic remedies. You cannot go to the ECHR or the article 5 of the Convention unless the detaining state has made a valid
ICC or the Human Rights Committee, unless all of your remedies are derogation from its obligations under that article. It also concluded,
exhausted at the domestic level. however, that subsequent state practice showed that the lack of a
So, Hassan in this case went to the British courts. When he was met formal derogation should not prevent the Court from taking account
with an adverse decision, he went all the way to the ECHR. of the Geneva Conventions when interpreting and applying article 5.

In ICJ cases, it is state versus state, no need to exhaust remedies. - In Hassan v UK mentioned above, the ECtHR relied on this provision
ECHR, if you check the subsequent practice of states, they don’t make when it concluded that the interpretation of a party’s human rights
derogations for extra- territorial arrests in times of war. The arrest obligations should take account of the existence of international
was done by the British forces but was done in Iraq. But the ECHR said humanitarian law. It found that the grounds for permitting
just because there was no derogation the human rights of Hassan no deprivation of liberty set out in article 5 of the ECHR should be
longer apply. Thus, systemic integration. ‘accommodated … with the taking of prisoners of war and the
detention of civilians who pose a risk to security under the Third and
International Humanitarian Law governs the rights of individuals and Fourth Geneva Conventions’.
combatants during war. European Convention on Human Rights
governs the rights of European citizens during peace. So, there are Recits and Discussion
rules in times of war, and there are rules in times of peace. That’s the Q: What modes of treaty interpretation by human rights in this case?
principle of systemic integration. When you interpret one document A: Its systemic integration
or one convention or one treaty, you also consider the other
instruments or conventions related to it. So, you integrate them Q: What do you understand about systemic integration?
systematically. A: you take into consideration not just you interpret convention. You
can also consider instruments applicable to the parties if binding and
enforceable.
What specific rule/s of interpretation did the European Court of
Human Rights apply in Hassan v. UK? Q: What fields of law combined in this case?
Answer: The primary principles governing treaty interpretation are A: IHL governs the rights of individuals during war. The ECHR which
contained in Articles 31 and 32 of the Vienna Convention on the Law covers the rights of citizens during peace
of Treaties that reflect customary international law. Articles 31(3)(a)
and (b) permits consideration of agreements and practice established Atty Pandi: Hassan filed a case against the UK for the death of his
subsequent to the adoption of the treaty. brother at the hands of British forces in Iraq . The Hassan brother filed
In Hassan v. UK, the ECHR concluded that subsequent practice could a case as a brutish national. allegedly my brother died in the hands of
be taken as establishing their agreement not only as regards British forces therefore the UK is liable. My brother (Hassan) is
interpretation but even to modify the text of the ECHR. illegally detained and arrested. The brother was arrested at their
It also concluded that the subsequent state practice showed that the house and he has gun in his arms and several other documents that
lack of a formal derogation should not prevent the Court from taking could potentially connect him to revolutionary govt. Ang contra sa UK
account of the Geneva Conventions when interpreting and applying then he went to camp thru screening but after realizing that he is not
article 5. combatant but unfortunately, he found dead. The brother of Hassan
filed a complaint on the death of his brother. Its violation of human
The ECHR also relied on Article 31(3c) which specifies that treaty rights. The question: Does ECHR apply during peacetime? Or does
interpretation shall take into account any relevant rules of Geneva conventions apply during war?
international law applicable in the relations between the parties
when it concluded that the interpretation of a party’s human rights Nadakpan is a brother in Iraq but not in the UK. EUHR said we have
obligations should take into account the existence of international no choice, we can actually apply this both. It doesn’t matter that
humanitarian law. there is war and the right has to exist. But you apply liberal standards
during war time because the complaint of my brother (Hassan) kay
there is no warrant and many others. The EUHR said we respect
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human rights but we don’t respect the heavy requirement this time Article 31 Paragraph 3(d): Subsequent Practice of States
because of its war time and lisud mangita warrant of arrest. The subsequent state practices of the are a party to a treaty under
consideration. Sure there was war, sure there was an emergency, but
Not arbitrary detention. There must be proper judicial proceeding, under the European Convention On Human Rights, if you wish to
there must be proper investigation. The arrested person must be able suspend compliance of your Human Rights obligation, you have to file
to respond to the allegations and must be able to know the derogation.
circumstances that justify his arrest.
A derogation is a right of one state to temporarily suspend its human
European Court of Human Rights said that the arrest was not rights obligations because it is faced with the National Emergencies
arbitrary, because it sprang from the campaign to actually apprehend or there is a threat to National Security. So if there is a derogation, it
combatants and those who may be supportive of the gorilla is allowed that a state will not respect it’s human rights obligations
government. When the brother who died was arrested, he was found (i.e. liberty and security)
with the possession of several firearms, and even documents that
could potentially link him to the revolutionary forces. So it was not Hassans Contention: Why didn’t you file a derogation, if you thought
Arbitrary, because there was a ground for his arrest. No warrant, that it was justified because there is a war and a public emergency.
because under the circumstances, you cannot secure a warrant. For the first time the state has actually asked the court not to apply
the principle of derogation.
*At this point, Attorney is asking and answering his own question*
Q: Was he properly charged? Was he properly brought to the UK: Dear European Court of Human rights, do not apply the principle
authorities? of Human Derogation in this case because it is not required. It’s not
A: Obviously you cannot bring him to court. There were no required because the alleged Human Rights Violations are outside my
functioning courts that time. So they brought him to the military territory and not inside my territory.
camp. Where he was actually investigating. His identity was properly
examined and upon showing that he isn’t a combatant, he was ECHR: There is extraterritorial application of Human Rights.
released. So there was no arbitrary arrest and there was not arbitrary
detention. UK: Well, examine all European countries that sent their armed forces
in another country. Whenever they make arrests, and whenever they
The same rule was applied, the same right was applied under the refuse to comply with Human Rights Obligation, have they filed
European Human Convention on Rights which applies during Derogation required under the ECHR? No. They didn’t, and that is a
peacetime, was applied in a situation where there was war. But subsequent practice of states, that could potentially re-interpret the
imploring or using different standards. Not the strict standards under principle of derogation under the EHCR.
human rights law during peacetime, but the liberal standards under
Humanitarian Law which applies during war time. Therefore, there Meaning, because of the subsequent practice of states. It is now an
was no violation of the right against arbitrary arrest and detention. accepted rule that derogation is not required if the arrest was made
Because it was compiled by harmonizing both systems of laws. by armed forces of one country that are situated in another country
for purposes of assisting an armed conflict. It mirrors the practice of
Q: Oh no sir, didn’t you say that he died and he got arrested in Iraq states that are not European states (US). Whenever they send their
and Human Rights Law usually applies Territorially only? armed forces no derogation was ever required. There is no rule that
A: There is what you call an extra territorial application of human requires a state to make a reservation whenever its arm forces make
rights, even if the victim of a human rights violation is located outside an arrest in the territory of another state whenever there is an armed
the territory of one state, that state would still be responsible if that conflict or there is a war going on.
victim was under the jurisdiction of the State.
Therefore, both in systemic integration, and interpretation by
When is a victim under the Jurisdiction of a State even if he/she is subsequent practice, the UK government won in this case. There was
outside the territory? no violation of the Human rights of Mr. Hassan in this case. By virtue
Through the armed forces, if the armed forces of one state goes to of Treaty interpretation, the UK government is not liable.
another country in order to participate in an armed conflict or
participate in a war. It’s as if that state itself has gone to that specific (From Henriksen)
country. So because the arrests were made by the Armed Forces of Amendments and modifications
the British Government in Iraq, it’s as if Hassan (the victim) was What is a protocol?
actually under the jurisdiction of the UK. So that is why there is an An amendment by specific agreement of the parties. Unless
extraterritorial application of Human rights. otherwise provided for in the treaty, the regular consent-centered
formalities on the conclusion and coming into effect of treaties will
apply to such amendments.

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In the absence of specific provisions, a proposed amendment has to lost” i.e. submergence of an island, destruction of the dam which is
be notified to ALL contracting parties. the object or the subject of the treaty. There is supervening
Impossibility because you can no longer perform the obligation,
What is a FRAMEWORK CONVENTION? because the object of the obligation itself.
Parties adopt this when it is particularly obvious to parties that their
treaty-based commitments need to take account of subsequent Atty. Pandi: What was the alleged material breach in the case of
developments. Unlike other treaties, these do not need to Czechoslovakia? The abandonment of the project.
exhaustively regulate a given topic but instead seeks to establish an
organizational structure that will be competent to develop the Atty. Pandi: Was Hungary correct in arguing there was material
substantive regulation. breach of the treaty? No.

Under article 39 of the VCLT, a treaty may also be formally amended Atty. Pandi: Why not? No breach has taken place yet.
by the specific agreement of the parties—often termed ‘protocols’.
Atty. Pandi: What do you mean by that? There must be a time frame
In practice, many treaties, and most multilateral treaties, will contain involved? The invocation of material breach was premature?
provisions on amendments.
Atty. Pandi: What is a material breach?
In the absence of any specific provisions, a proposed amendment has
to be notified to all contracting states. Material Breach
1. Repudiation and that repudiation is not justified (Not
Regardless of any modifications, article 41 of the VCLT states that two sanctioned by the VCLT) i.e Rebus Sic Stantibus
or more parties to a multilateral treaty may conclude an agreement 2. When there is a violation of a treaty provision essential to
modifying the treaty between them. the accomplishment of its object and purpose.

When it is particularly obvious to parties that their treaty-based Gabčíkovo-Nagymaros Project (Hungary v Slovakia), Judgment
commitments need to take account of subsequent developments, [1997] ICJ Rep 7.
they may decide to adopt a so-called framework convention. In the Gabcikovo Nagymaros Project Case, Hungary argued that it was
entitled to terminate the 1977 Treaty on the ground that
Unlike other treaties, a framework convention does not seek to Czechoslovakia’s planning, construction and putting into operation of
exhaustively regulate a given topic but instead seeks to establish an Variant C amounted to a material breach of the 1977 Treaty. Was
organizational structure that will be competent to develop the Hungary correct?
substantive regulation.
- EXAMPLE: Framework conventions are particularly relied Atty. Pandi: Was there material Breach? No.
upon in international environmental law where a well-known
example is the 1992 UN Framework Convention on Climate Atty. Pandi: What was the purpose of the 1977 Treaty here?
Change (UNFCCC). They wanted to produce energy, they wanted to control floods and
Some framework conventions adopt a ‘list technique’ whereby they wanted to be able to improve navigation, and basically share the
obligations are linked to one or more periodically updated lists resources of the Danube.
contained in protocols or annexes to the treaty.
Atty. Pandi: Is that object and purpose violated by any of the acts of
G. Termination Czechoslovakia? No.
A treaty may come to an end and terminate if its purpose has been
fulfilled or if it is clear that it is limited in time and that time has May 1922 – Hungary sent termination
passed. October 1992 – Czechoslovakia diverted the water

Atty. Pandi: What are the grounds to suspend, withdraw from, or At the time therefore that Hungary terminated the Treaty, there was
terminate a treaty? yet no material breach. Because the material breach happened in
1. Material Breach October 1992, several months after when Czechoslovakia finally
2. Treaty, Provision, Consent diverted the waters of the Danube.
3. Supervening impossibility of performance
4. Rebus Sic Stantibus Atty. Pandi: What happened in May 1992 that impelled Hungary to
terminate the Treaty on the ground of material Breach? In May 1992,
Supervening Impossibility of Importance Czechoslovakia actually did preparatory works to actually divert the
Not very relevant today, as the example given by the international law water. It already built its own bypass canals, foundations, it started
commission is “When the object indispensable to the treaty has been constructing. At that time, Czechoslovakia was also foreseeing the
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possibility that Hungary will not comply because Hungary has already Unforeseeable
displayed several acts that it might violate the treaty. So Something unexpected; something that never crossed your mind at
Czechoslovakia was ready to build its walls to protect itself. the time you signed the treaty.

So, it began constructing and laying the foundation, but it has not Essential basis of consent
diverted the waters yet because he only did preparatory works. Signed up the treaty because of this particular fact and that fact has
Therefore, the mere act of constructing those projects or those change therefore your consent is inextricably linked to that very fact,
foundations or structures is not material breach yet. The material with that fact changing your consent has also changed
breach manifested in October 1992 upon the completion of the
project, and upon the very physical act of diverting the water to the Radically transformed the obligations yet to be performed
bypass canals. The change has made it more difficult or burdensome to perform the
obligations under the treaty.
Therefore, in May 1992 when Hungary terminated the treaty on the
alleged ground of material breach there was no material breach yet. How do these elements apply in relation to Hungary’s case in the
Therefore, it was premature. No grounds to terminate the treaty at Gabcikovo-Nagymaros?
that time. The change invoked by Hungary in this case, is the changes in
environmental law.
Atty. Pandi: How did Hungary try to argue that maybe it was Rebus 1) Objective Change
Sic Stantibus? Was there Rebus Sic Stantibus? Was there a a. Hungary contended that Since 1977, there were so many
fundamental change in the circumstances? *Calls another student* International Law intended to protect the environment. Rio
Summit, Rio Declaration. This project would harm the environment,
Atty. Pandi: What are the elements before we can say that there is a if we continue with this project, it is as if we are continuously
fundamental change in circumstance? violating the international laws regarding the environment. There is
1. Objective change an objective change.
2. Unforeseeable [Link], Hungary said that, when we signed the 1977 Treaty,
3. Essential basis of consent Czechoslovakia now changed to Czech Republic and Slovak
4. Radical transformation of the obligation Republic, thus there is a change in their political status. Who then
are signatories in the treaty? (not relevant for now.)
Atty. Pandi: What was the change invoked by Hungary? c. COURT RULING: YES. There is an objective change. Changes in
* Decides to discuss on his own * scientific advancement, changes in development of the law,
changes in progress, or any other change beyond the control of any
Fundamental Change in Circumstance state is actually an objective change. So, in this case, the
A ground to terminate the treaty based on equity. Based on the development of the environment Is actually an objective change
notion that you must be given a right to terminate a treaty when beyond the control of Hungary.
something has happened subsequently that you never even 2) Unforeseeable
contemplated since the time you signed the treaty. a. Were the changes in the state of the environment unforeseeable?
ICJ RULING: No, it was not complied with. The ‘change’ contended
Because certain things happened along the way, my consent has by Hungary was “if we continue with this project, we will be
morphed into something I never signed up to. My consent has harming the environment, we will affect the water quality of the
dramatically changed. It is now making me assume obligation I never Danube, the quality of marine life in the Danube.” ICJ said that
even contemplated. Obligations that were unforeseeable. My change is actually not unforeseeable, both Hungary and
consent initially given is no longer valid. Because that consent was Czechoslovakia have foreseen that changes in the environment will
based on certain factual predicates and certain assumptions, that are happen, and that the project will have adverse effect to the water
no longer applicable, assumptions that are no longer true today. quality of the river, proven by the Articles 15, 19, and 20 of the 1977
Treaty, it provides for the obligation to cooperate and negotiate in
It allows a state to exit a treaty, because sticking to that unhealthy order to make the necessary adjustments for whatever damage the
relationship is already very burdensome. Exit before it becomes much project may have to the environment, in general and the water
unhealthier and more dangerous for both parties. quality of the Danube, in particular (to mitigate or minimize the
* Suddenly starts to sound like a break up quotes * harmful effects of the project).

Objective Therefore, both parties have foreseen that the project will have
If it is beyond the state of the party invoking, it is beyond its control. adverse effects to the environment, like effect on the water quality
It all happened without my participation. Even if I participated, I of the river. Therefore, it was not unforeseeable.
cannot stop it.

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Therefore, as all elements must concur, Hungary’s contention fails. Convention or some part of it by other arrangements made between
The changes it was invoking were actually foreseeable and the themselves; it followed that any special regime, or any disagreement
evidence for this foreseeability were the provisions of the treaty, that concerning its existence, would raise issues concerning the
provide for the obligation to negotiate in order to mitigate, minimize interpretation or application of those articles.
and address the environmental hazards that the Gabcikovo-
Nagymaros project may bring, therefore, there is no fundamental Finally, Pakistan had argued that, if India maintained the contention
change of circumstance. that the Treaties were terminated or suspended between the Parties,
then such matters were regulated by Articles 89 and 95 of the Chicago
Appeal Relating to the Jurisdiction of the ICAO Council (India v Convention and Articles I and III of the Transit Agreement; but the two
Pakistan), ICJ (1972). Parties had given divergent interpretations of those provisions, which
ICAO Case related to war and emergency conditions and to the denunciation of
SUMMARY: the Treaties.
On 4 February 1971, following a hijacking incident involving the
diversion of an Indian aircraft to Pakistan, India suspended overflights THEREFORE, The Court concluded that the Council was invested with
of its territory by Pakistan civil aircraft. On 3 March 1971 Pakistan, jurisdiction in the case because it required the interpretation and
alleging that India was in breach of the two treaties, submitted the application of the Treaties.
issue to the ICAO Council.

India contended that it is entitled to terminate or suspend them by Fisheries Jurisdiction Case (UK v Iceland), Merits [1974] ICJ Rep 3.
reason of a material breach of them for which Pakistan was Facts: This was a case between the UK and Iceland concerning the
responsible, arising out of the hijacking incident. extent of their fishing zone.
In 1961, there was an Exchange of Notes between the UK and Iceland,
India had further argued that the jurisdictional clauses of the Treaties the Exchange of Notes is to the effect that as of 1961, each will have
allowed the Council to entertain only disagreements relating to the 12 nautical miles from their coastline to have exclusive fishing
interpretation and application of those instruments, whereas the jurisdiction.
present case concerned their termination or suspension.
The Exchange of Notes also provides that if there is a need to extend
RULING: the extent or limit of the fishing jurisdiction, we have to submit that
ICJ said: because of that termination, that we have jurisdiction. determination to ICJ. So that ICJ would determine to what extent.
Because we have to evaluate the character of the breach, whether or
not it is legal and if your termination of the treaty was justified. If that In the 1990's Iceland experienced advancements in fishing techniques
were to be allowed, that the mere termination of the treaty, any party and fishing vessels and the fishing manner was no longer traditional.
may be allowed to avoid litigation.
There could be no doubt of the exceptional dependence (or vital
Court ruled to have jurisdiction over the appeal but did not touch on interest as an archipelagic state) of Iceland on its fisheries and the
the Merits for it was better to leave it to the judgement of the ICAO situation appeared to have been reached when it was imperative to
Council. preserve fish stocks in the interests of rational and economic
exploitation. There might be over exploitation that would deplete the
The Court found that Pakistan's claim disclosed the existence of a fishing resources.
disagreement relating to the interpretation or application of the
Treaties and that India's defenses likewise involved questions of their Therefore, according to Iceland, the 12 nautical miles should be
interpretation or application. extended because there is an objective change (advancement of
technology in fishing), fundamental changes in circumstance beyond
In the first place, Pakistan had cited specific provisions of the Treaties my control, in order to adjust and respond to the problem of over
as having been infringed by India's denial of overflight rights, while exploitation. Therefore, Iceland extended unilaterally.
India had made charges of a material breach of the Convention by
Pakistan: (RULING) in order to determine the validity of those charges The UK objected because it needs to go to the ICJ first, Iceland should
and counter-charges, the Council would inevitably be obliged to not unilaterally extend.
interpret or apply the Treaties. Iceland invokes fundamental change of circumstance; thus, the 1960
Exchange of Notes is no longer applicable.
In the second place, India had claimed that the Treaties had been
replaced by a special regime, but it seemed clear that Articles 82 and Issue: Did the ICJ accept Iceland’s argument regarding fundamental
83 of the Chicago Convention (relating to the abrogation of change of circumstances?
inconsistent arrangements and the registration of new agreements)
must be involved whenever certain parties purported to replace the
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Ruling: No, ICJ rejected Iceland’s argument. The court ruled (in Module 4
Iceland’s absence) that Iceland could not properly invoke changed ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
circumstances. English ships were not precluded from fishing within
the fifty-mile area claimed by Iceland. A. Chapter 4 of Henriksen (pp 61 – 84)
FROM MODULE
Looking into the elements one-by-one: GUIDE QUESTIONS
Objective Change – yes, advancement in science or fishing technology Who are the key players active in the IL system?
Unforeseeable – yes, it was unforeseeable because of science and its How has IL evolved to embrace additional relevant actors?
advancement. What rights and obligations does each participant enjoy?
Essential basis of Consent and Radical Transformation – No. In this What are the defining characteristics of a state?
case, the original undertaking (if both parties want to extend, they When is secession justified under international law?
have the obligation to submit the case to ICJ), has never changed, and
did not change despite the changes in fishing techniques. The ACTORS IN THE INTERNATIONAL LEGAL SYSTEM
obligation remains the same (to submit the jurisdiction to ICJ), · States
whether there is an advancement of science or increase in size of · International Organizations
fishing vessels, the obligation is purely devoid of any physical · Individuals
manifestations or connections on the ground. The obligation was not · Groups of Individuals
radically transformed. · Territories other than States

The obligation to submit to the ICJ was not conditioned on the fact (FROM NARRATED SLIDES)
that if there is any advancement in fishing techniques, there will be *Actors =aka subjects of international law/ entities that possess legal
no more obligation personality under international law
*The Principle Features of International Legal Personality
Therefore, Iceland was bound by the 1961 Exchange of Notes. 1. Capacity to bring claims in respect of breaches of
international law
2. the capacity to conclude treaties
3. the enjoyment of privileges and immunities from the
exercise of national jurisdiction

*HOWEVER, not All participants in the international legal system hold

the same rights and obligations (non-state actors derive their legal
personality from states) – states can actually limit the extent of rights
and obligations of these non-state actors
*The rights and obligations are not necessarily identical in their
nature or in their extent. Their nature also depends upon the needs
of the community, and states primarily identify what these needs are.

INDIVIDUALS
RIGHTS - human rights law, trade law / foreign investments, laws of
armed conflict
OBLIGATIONS - international criminal law
*rights of individuals in international law are limited.
*’laws of armed conflict’ – individuals not directly included in the
hostilities must not be included in the hostilities
*obligation upon individuals – under the Nuremburg, criminal acts
under the ICC or Rome Statue (types of crimes: 1war crimes; 2crime
of genocide; 3crime of aggression; 4crime of against humanity)

BEFORE GOING TO INTERNATIONAL COURTS, an Individual must:

1) Exhaust Domestic Remedies First
2) The Principle of Subsidiarity as a Constitutional Principle in
International Law. ... A principle of subsidiarity regulates how
to allocate or use authority within a political or legal order, and
holds that the burden of argument lies with attempts to
centralize authority.
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Crimes against international law are created by men, not by abstract STATEHOOD
entities, and only by punishing individuals who commit such crimes The Montevideo criteria and the requirements of effectiveness (THE
can the provisions of international law be enforced. ~NUREMBERG MONTEVIDEO CRITERIA)
MILITARY TRIBUNAL~ According to the Convention’s article 1, a ‘state’ must possess the
following:
INTERNATIONAL ORGANIZATIONS 1. PERMANENT POPULATION – it simply requires that someone has
DEFINITION – a) established by a treaty or other instrument governed made the territory their home.
by international law, b) possessing its own international legal · It is not a requirement that the population in question has a certain
personality size.
· “Permanent”?>In Western Sahara, the ICJ simply concluded that
RIGHTS & OBLIGATIONS – a) conclude agreements; b) immunity from nomadic people ‘possessed rights, including some rights relating
jurisdiction by national courts to the lands through which they migrated’.
2. DEFINED TERRITORY - As long as the authorities control a
**Notable Examples of international orgs: UN, ASEAN consistent area of undisputed territory, an entity is likely to fulfil
*non-government organization – private organization not governed the requirement of defined territory.
by international law, does not possess international legal capacity. · nothing precludes an entity with a tiny landmass from fulfilling the
Example: amnesty international, human rights watch, Greenpeace. requirement of a territory.
· the entity’s boundaries need not be precisely demarcated and
GROUP OF INDIVIDUALS settled.
·PEOPLES – usually generally enjoy the right to Self-determination, · The lack of a definite territorial delineation of parts of Israel, for
including the right to secede from the Mother state. example, did not prevent its acceptance as a state by a majority
of states.
·INDIGENOUS GROUPS – 2 core principles: 1) indigenous groups have · In a similar vein, the political uncertainties about the exact location
the right to full enjoyment as a collective or as individuals of all human of a potential territorial border between Israel and Palestine are
rights and fundamental freedoms, and 2) indigenous peoples shall be not decisive to the issue of Palestinian statehood.
free from any kind of discrimination. 3. GOVERNMENT - it must have someone who can exercise control
over the territory and ensure its compliance with international
·INSURGENT GROUPS – these are groups that seek independence, obligations.
they want to be separated from their Mother Government, may · There must be some sort of entity in charge of running affairs and
involve hostilities between the mother state and the armed forces of able to answer to the outside world.
these groups. Therefore, there is a need to regulate the conduct of · It is not a requirement under the Montevideo Convention that a
these hostilities. government is democratically elected or otherwise governs
o Which is why Additional Protocol 1 of the 1977 Geneva Convention according to the wishes of the population of the territory in
– under certain circumstances, national liberation movements, may question.
actually have rights and may impose certain obligations under · What is decisive is that the government in question is effective. In
international law. Secession or Autonomy, standards of “effectiveness” are applied
o In the conduct of motilities, should only target Military objects, more strictly on secession.
spare individual, respect cultural sites, and observe all the other · The government in question does not necessarily need to be in a
obligations imposed upon them in the conduct of hostilities as position where it can exercise its authority throughout the entire
enumerated in the Geneva Conventions territory.
4. SOVEREIGNTY - a state must have the capacity to enter into relations
·NATIONAL LIBERATION MOVEMENTS – example: Members of the with other states.
Liberation Tigers of Tamil Eelam, a national liberation group in Sri · What is of importance here is legal rather than political or economic
Lanka. independence.
o National Liberations Movements – are also granted the right to · Temporary interference with an established state’s independence and
conclude treaties (Ex. MNLF) ability to enter into relations with other states—for example,
o In 1976, the PH Govt and MNLF, signed the Tripoli Agreement in belligerent occupation such as Iraq’s unlawful occupation of Kuwait
Libya. Supervised by Libya, Senegal and Somalia, and Saudi Arabia. in 1990–1991— does not alter statehood.
(Contained provision containing the autonomy of Muslim Mindanao)
o In 1989 – the Jeda Accord, between Pres. Cory Aquino (PH) and the WHY IS STATEHOOD IMPORTANT?
MNLF, followed by the Final Peace Agreement in Jakarta, Indonesia, · States are the only actor that can create international law.
in 1996, between Pres. Ramos and the MNLF. · All other actors derive their rights and obligations from
*collective entities states.
*unique reasons, granting international

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The issue of recognition
DECLARATORY VIEW - the creation of states is a matter of law and 3. OCCUPATION - Obtaining title to territory that has never been
the fulfillment of a legal criteria the subject of any State (terra nullius)
- Under this approach, the relevant criterion for acquiring 4. PRESCRIPTION - Obtaining title to territory previously under the
statehood is essentially one of effectiveness. sovereignty of another State
- Contemporary international law is based on the declaratory
approach. RIGHT TO SELF-DETERMINATION
- according to article 3 of the 1933 Montevideo Convention All peoples have the right to freely determine their political status and
on the Rights and Duties of States, the ‘political existence of the pursue their economic, social, and cultural development.
State is independent of recognition by other States’.
INTERNAL SELF-DETERMINATION: AUTONOMY - within the
CONSTITUTIVE VIEW - the recognition of by other states is a framework of an existing State (e.g. Greenland in relation to
precondition for statehood Denmark)
EXTERNAL SELF-DETERMINATION: SECESSION - arises in the most
Q: Is there a threshold for the no. of states that would recognize in extreme cases (e.g. East Timor in relation to Indonesia)
order to create a state?
A: No, there is no threshold for the no. of states that is needed to EXTERNAL SELF-DETERMINATION
recognize, and for good reasons. That is why the constitutive view is 1. COLONIAL PEOPLES - “a people” is governed as part of a colonial
not favored. It has many pitfalls; it creates arbitrary standards for empire
recognition of statehood. It would depend then on who or what 2. ALIEN SUBJUGATION - “a people” is subject to alien subjugation,
states recognized you. Therefore, recognition is not a precondition for domination or exploitation
statehood, just the compliance/fulfillment of the Montevideo criteria 3. NO MEANINGFUL AUTONOMY - “a people” is denied any
is enough, otherwise, a putative state will be held hostage or be at meaningful exercise of its right to self-determination within the state
the whims of other states.
ILLEGALITY IN THE CREATION OF A STATE
Example: Dissolving of Yugoslavia and the USSR, which required other BANGLADESH - India invaded Pakistan
conditions for recognition, such as democratic principles or TURKISH REPUBLIC OF NORTHERN CYPRUS - Turkey invaded attacked
maintaining diplomatic relations. Cyprus
KOSOVO - NATO launched aerial strikes against Yugoslavia
State vs Government
STATE SUCCESSION - is the replacement of one state by another in
State Government
the responsibility for the international relations of territory
2 Approaches
state is the legal entity under the government is the
1) TABULA RASA APPROACH
international law representative of the state that
a. EXCEPTIONS TO THE TABULA RASA APPROACH
is entitled to act on the state’s
· TERRITORIAL TREATIES
behalf.
· BOUNDARY TREATIES
2) CONTINUITY APPROACH
The actual effects of lack of A decision not to recognize a
recognition of a state are of government that claims to
UTI POSSIDETIS JURIS - Geographical boundaries created by treaties
greater legal importance than represent a territorial entity is
remain in force regardless of whether or not the boundaries coincide
those relating to lack of not the same as denying that
with ethnic, tribal, religious or political affiliations.
recognition of a government. the entity in question qualifies
for statehood.
Sovereignty over Pulau Ligitan and Pulau Sipadan (Indonesia v
Malaysia), Judgment [2002] ICJ Rep 625.
There are 4 modes of acquiring territory and one of them is
ACQUISITION OF NEW TERRITORY
efectivites, which is acquiring a territory by virtue of a continuous
1. CESSION - Purchase of territory from another State
display of sovereignty and intent to act as a sovereign with respect to
2. ACCRETION - New land is gradually created naturally (*in IL, can
a particular area. One very good illustrative case is Pulau Ligitan and
pertain to all bodies of water)
Pulau Sipadan.

In PIL, accretion means it can be sea or it can be any body of water

There are two small islands located in Celebes Sea.
that can actually form new lands or can generate a formation of a new
island. Unlike property and land titles, this only pertains to rivers but
Atty Pandi: The easiest way to acquire territories is through a title.
in PIL, any body of water.
When there is a title, that is the most convenient and the easiest way
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to prove ownership in a particular property. Both Malaysia and private acts are not to be attributable to the government and
Indonesia in this case went on to greater lengths in proving that they therefore, Malaysia has a better claim for ownership based on
actually have a title to both islands. But, the ICJ found that neither of efectivites.
these 2 countries have titles to these islands. Since they haven’t
proved based on ownership through a title, which is the primary TN: The proximity or nearness of the place to these islands is not
consideration, then both states actually attempted to prove that they included in the elements of deciding in favor of Malaysia. Only the
exercised efectivites in these two islands. two elements must concur.

They were contesting to prove before the ICJ that they were able to Atty. Pandi: Islands of Palmas case has the same topic with Pulau
exercise acts of sovereignty over these two islands. The acts case about which states who actually display sovereignty. Same
performed by the Malaysian government in the islands that they principle will apply for efectivites with our discussion above
established obligations and control over the taking of turtles and the
collection of turtle eggs, bird sanctuary, constructed a lighthouse, and One of the actors of the international legal system as individuals, we
a licensing system of fishing boats. are actually granted a limited personality under IL and that limited
personality is very prominent in international human rights law (IHL).
Indonesia argued that their citizens or fishermen have been plying the One of the landmark cases in IHL is actually Lansman v. Finland when
waters of these two islands. Indonesia’s contention was: 1.) We have we speak about rights of cultural minorities and culture. This is
been conducting surveillance to the area and patrolling by virtue of decided by the UN Human Rights committee, which is a judicial organ
the Dutch Navy 2.) our fishermen have plied the waters of these two of the ICCPR (International Covenant on Civil and Political Rights). So,
islands. it’s one of the international organs which actually cater to
applications filed by individuals against their states for violation of
A claim to sovereignty based not upon some particular act or title human rights.
such as a treaty of cession but merely upon continued display of
authority (Effectivites), involves two elements each of which must be Länsman et al. v Finland, Communication No. 511/1992, U.N. Doc.
shown to exist: CCPR/C/52/D/511/1992 (1994).
● There is an intention and a will to act as a sovereign.
● There is an actual exercise or display of sovereignty. Atty Pandi: Article 27 provides that in those states in which ethnic,
They must both concur. religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right in community with the other
The ICJ in this case decided that Malaysia has the better display of members of their group to enjoy their culture, to profess and practice
sovereignty. The acts of the Malaysian government were modest but their own religion or to use their own language. So, what Article 27
very diverse. They already came up with administrative regulations, provides is that this cultural minority shall not be denied their right to
ordinances that regulate activities within these two islands. The ICJ practice culture. The question therefore is, is the grant of a license to
further ruled that the extent of activities that a state can make for this company to gather stones within the area where the ethnic
purposes of analyzing whether there was exercise of sovereignty, minorities are, does that amount to a denial of right of those cultural
must be dependent on the area and the size of property. These are minorities to practice their religion?
really small islands. What else can you do with these islands if not
regulate marine life, regulate tourism, and natural resources. You The UN Human Rights Committee said, not yet. Because at that time
can’t expect to make oil platforms in these islands. What Malaysia the issue was analyzed by the UNHRC, ang gi grant nga amount of
did was correct. stone nga pwede kuhaon sa company is actually 5000 cubic meters
and ang na extract pa lang nga stone during that time is merely 30
Indonesia did not win because the navy surveillance allegedly offered cubic meters. So, the extracted stone and the extent of the activity
is not actually exclusive to Indonesia. The patrolling over the Celebes fails in comparison to what is authorized by the government initially
Sea and Northern Borneo Sea is actually a joint exercise between the under the license or the contract. So HRC said that “as of now, we
British Forces representing Malaysia and the Dutch Forces cannot make a pronouncement whether there was a denial of the
representing Indonesia. The ICJ said that the patrolling is not actually right to practice culture because the activity was tailored, it made
specific to the two islands. What they are actually guiding is the sure and even consulted the cultural minorities that their right to
Celebes Sea and the North Borneo Sea from pirates. They were not practice their own culture will not be minimized.”
actually protecting the islands but the waters against pirates.
But the HRC was saying that it is possible that if the activity of the
The two islands were not objects of exercise and display of stone company will actually arise to a level where it becomes very
sovereignty. More or so, their argument of that of the fisherman, the disruptive, that could actually amount to a denial, but not yet. As the
ICJ said that acts of public nature can qualify for purposes of facts stand, there is no denial yet. There has to be a balance between
identifying that there was display of sovereignty. Sure, the fishermen the rights of cultural minorities and the rights of the state over the
were there since time immemorial but, these are private acts. These natural resources.
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system, the military could simultaneously appease soldiers' sexual
One of the interesting arguments raised in this case is that it appetites. However, the executive department refuses.
contended that they are not cultural minorities anymore because
they are now using technological devices when they slaughter deers, Now, can the petitioners, as individuals go directly to the court of
therefore there is no observance of culture in this practice. This is a International Court? – No. In the international sphere, traditionally,
very interesting argument because it applies elsewhere. the only means available for individuals to bring a claim within the
international legal system has been when the individual is able to
The HRC said that it doesn't matter whether or not the practice of persuade a government to bring a claim on the individual's behalf.
their culture is already infused with modern civilization or modernity, Even then, it is not the individual's rights that are being asserted, but
whether the way they slaughter deers they are not using traditional rather, the states’ own rights.
weapons anymore. It does not matter because culture is something
that is intrinsic, it is not only extrinsic but the belief system is what Atty Pandi: The issue is whether or not the petitioners can compel
makes culture, a culture. the Philippine government to file a case against Japan. Have you
encountered the term “espousal of claims” in this case?
Lastly, the most important takeaway in this case. Before you can go
to a human rights body or to a regional human rights body, you have The individuals in this case are aware that they cannot file a case as
to exhaust domestic remedies. You have to prove that your state has individuals before the ICJ for the violations of the Japanese
failed to protect your rights. Meaning, you must be able to show that government and the Japanese military officials because they have no
it is now futile. Before a state can be made a defendant in an legal standing. Before the ICJ and other international tribunals, only
international case, there has to be a showing by the individual states have the legal capacity to bring claims.
applicant that all domestic remedies have been exhausted. Example,
you appealed the case to the highest court of the land. So, what they did was to ask and compel the Philippine government
to espouse their claim. Meaning, to file a case against Japan on their
Exhaustion is really important because of the Principle of behalf. Espousal of claim is otherwise known as exercise of diplomatic
Subsidiarity. Meaning, there is a premium given to domestic tribunals protection. When a state exercises diplomatic protection, it means
and the domestic state to actually remedy the alleged human rights that the state itself is not the injured party directly. The injured party
violation. It's only when the state itself has failed to discharge that is the individual citizen or national of that state. Because that citizen
remedy or to protect the rights should an individual be allowed to go or national of that state cannot go directly to the ICJ or international
to a Human Rights tribunal. Human rights tribunal therefore acts as tribunal, it is the state that will espouse his claim and will exercise
surrogate mothers, they should only entertain or admit a case and diplomatic protection on his/her behalf. That is what the NGO tried
application if it has been shown that there can be no other option in to do in this case. However, espousal of claim is purely a political act
the domestic courts. and we cannot compel our governments to fight for us before the
international tribunals.
One does not simply go to the HRC, you only go to the HRC if you can
prove that you can no longer file a case or you can no longer seek Question: What would be the other options of the individual?
redress for the protection of my rights before my national courts Answer: If the individuals or the victims of comfort women can
either because: actually specify an individual, like they can identify one specific
1. All remedies have been exhausted; case filed all the way to general for example, they can file a case against that general before
the supreme court. the ICC. Because before the ICC, individuals are respondents,
2. The government itself is complicit and not partial to try the individuals can become defendants. You cannot file a case against an
case and the government itself is responsible for the alleged individual in the ICJ.
human rights violation.
Question: Are these imprescriptible rights?
Remember, principle of subsidiarity and exhaustion of domestic Atyy Pandi: No concept of prescription in international law. As far as
remedies. I'm concerned, the ICJ statute does not provide a prescriptive period
for filing cases.
Vinuya v Romulo, G.R. No. 162230, 28 April 2010.
PETITIONER: all members of the MALAYA LOLAS. State Succession
RESPONDENTS: Office of the Executive Secretary, the Secretary of the - It happens when either the state has disintegrated, whether
Department of Foreign Affairs (DFA), the Secretary of the Department there is separation, extinction. This became very prominent
of Justice (DOJ), and the Office of the Solicitor General (OSG). because of the disintegration of the former Yugoslavia.
There are a lot of states that were born in international law,
SUMMARY: Petitioners in this case are claiming for reparations from they were confused as to the treaties entered into by
the act of Japanese Soldiers During the Second world war. During the Yugoslavia. Do the treaties transfer or will be inherited by
war, Japanese established a "COMFORT WOMEN" system. Under this the born states? Is there a replacement of one state by
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 18
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another in the responsibility for the international relations Examples:
of territory? Treaties for Neutrality- if they wanted to make a certain place neutral
Treaty of Demilitarization-North Korea and South Korea
2 Theories regarding succession:
1. Tabula rasa approach Legal Consequences of the Construction of a Wall in Palestinian
- clean slate approach, no inheritance. The new Territory, Advisory Opinion [2004] ICJ Rep 136.
state is completely free from the treaty
obligations of the predecessor state. *Atty plays video about Palestinian Wall*
2. Continuity approach
- the successor state continues to be bound by the SUMMARY: During the 1965-armed conflict, Israeli forces occupied
obligations of the predecessor state. territories to the East of the Green Line, constituting Palestine’s
territory. Israel constructed a wall intersecting parts of the Green Line
If the treaty is political in nature, the tabula rasa approach will apply. boundary in Palestinian territory, including in and around East
Why? Because political treaties are akin to contract treaties and Jerusalem. The construction of the wall resulted to the creation of
political treaties are actually dependent upon the personality of the enclaves on the Occupied Palestinian territory, wherein Palestinians
contracting parties. because political treaties are dependent upon the would reside in territories completely surrounded by the foreign
personality of the contracting parties, the successor state should not occupants. UNGA asked the opinion of the court regarding this
inherit the treaties because its personality is different now. So, the situation. The court ruled that it is illegal to acquire any territory
tabula rasa approach will apply. resulting from the threat or use of force, as enshrined by the United
Nations Charter and General Assembly resolution 2625 (XXV). The
Question: When can the continuity approach be applied? (aka principle as to the use of force is customary international law. As laid
Exceptions to the Tabula Rasa Approach) down in the UN Charter and GA resolution 2625 (XXV): "Every State
1. Territorial treaties has the duty to refrain from any forcible action which deprives
- Continue to govern and continue to be effective peoples of their right to self-determination." Article 1 of the
even when there is state disintegration or International Covenant on Economic, Social and Cultural Rights
whenever there is dismemberment. Both the (ICESCR) and the International Covenant on Civil and Political Rights
predecessor state and the successor state are (ICCPR) also reaffirms the right of all peoples to self-determination.
actually bound by territorial treaties. The construction of the wall and its associated régime, by contributing
- Are those that govern the use of certain bodies of to the demographic changes contravene Article 49, paragraph 6, of
water. the Fourth Geneva Convention and the Security Council resolutions
previously cited. Article 49 paragraph 6 of the Geneva Convention
2. Boundary treaties - boundaries actually achieved states that “The Occupying Power shall not deport or transfer parts
permanence that the treaties creating them don’t usually of its own civilian population into the territory it occupies.” The
even enjoy. construction of the wall severely impedes the exercise by the
Palestinian people of its right to self-determination and is therefore a
Principle of Uti Possidetis Juris breach of Israel’s obligation to respect that right.
- geographical boundaries created by treaties remain enforced
regardless whether or not those boundaries coincide to ethnic or DOCTRINE: “The sovereign that is displaced by the occupation merely
political affiliations. loses de facto possession of the territory but not de jure possession.
- colonies are bound by the boundaries drawn by those colonizers In the absence of an agreement to the contrary, Israel cannot obtain
sovereignty over those parts of Palestine that it occupies”.
Examples of Political Treaties (Henriksen)
a. Amity
b. Economy
c. Mutual Defense Atty Pandi Discussion:
d. Trade Relations There have been several violations against the prohibition of
e. Treaties that enhanced National Security annexation. Israeli is doing right now is about annexation. The ICJ’S
UNCLEAR opinion is how did the wall violates the right to
Note: Only States can enter Treaties. palestinean’s self determinan?

Territorial Treaties are permanent. Withdrawing from the treaties We want to know if such rights are violated by mere construction of
made possible if the party states would want to withdraw from the the wall. (Back to slide)
treaty. Express consent is needed, if not, Territorial treaties exist
forever. Green line- is the agreed line following the Armistice agreement
between Israel or Arab nations.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 19
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Grey line- is the configuration of the wall. was no discussion on whether or not the unilateral declaration should
They want to construct the wall because they want fertile lands like be valid or not or accepted by other states.
olive industry and the water aquifers (not sure spelling) . A massive
source of water from underground. They want to control the water. It was not enough; the advisory opinion was too short. The ICJ could
They have become refugees, become scarcity of water etc. have done more, but it ended there. As to whether the international
Some configuration of the wall. The calquilla is the city of more than community will accept that, it’s up to them.
100k people and is surrounded by a lot of people. The hospital and
others are outside of the borders. The case of Kosovo affirms the declaratory view, it affirms the fact
Calquilla is just a microscope of the rest of the west bank and that the creation of a state is a question of fact. The principle of
Palestine. effectiveness applies. Kosovo was subsequently recognized, because
The wall is still illegal. Up until now is still continuing these walls. No it possesses all the elements of statehood. Regardless of whether
water resources and other means. China, Serbia and Latin America refuse to recognize it. Because it has
The advisory is not just advisory. It should not be reduced to paper. all the four elements. So, Kosovo is slowly being recognized as a state.
The advisory opinions should direct all states to acknowledge the wall
is illegal. But why are we not doing something about it? Illegal use of force
The illegal use of force for purposes of fulfilling the right to self-
Accordance with International Law of the Unilateral Declaration of determination does not affect statehood.
Independence in Respect of Kosovo, Advisory Opinion [2010] ICJ Rep Illegal use of force has a different effect with use of force. The
403. statehood will be recognized but the illegal use of force will never be
* Watch video: Kosovo Case Summary on YouTube * condoned, which is why even after Kosovo gained its independence,
Atty. Pandi: Basically, to prepare Kosovo for independence, right? Serbia filed a case against Belgium for illegal use of force that time.
Yes. Attorney.
Serbia accepted, okay Kosovo you are independent but I will sue
Atty. Pandi: Kosovo was not able to do anything with any further Belgium and all the other countries that used force against my
negotiations and talks because it was futile, Serbia was not willing to territory. Because that is a separate matter altogether. It will not
surrender. So Kosovo unilaterally declared itself to be an independent affect statehood. But it will not free the state that illegally used force
state. Is that Unilateral declaration of independence allowed by from accountability under International Law.
international law?
In the case of India when it illegally attacked Pakistan in order to free
Yes. This advisory opinion is a little problematic. Right the Supreme West Pakistan or East Bangladesh.
Court cannot render an advisory opinion here in the Philippines. The International Community did not condemn the illegal use of force
There has to be an actual case of controversy. So that’s why we have of India against Pakistan in order to liberate or to help Bangladesh
the concept of moot and academic, because if there are no parties gain independence because it was clear that Bangladesh, the people
there are no issues the case will not be entertained. of Bangladesh, at that time was systematically discriminated against
by the Pakistani mother government.
But the ICJ, has two modes of jurisdiction:
1. Contentious – when there are two states asserting different Discerning ang international community, they know and they can tell
claims or issues or different rights or obligations. the difference between the use of force that is abusive and purely for
2. Advisory Opinion – no conflicting parties, but the UN political gain and a use of force that is intended to free certain peoples
General Assembly asks for an opinion on a particular from an abusive government.
matter.
When the use of force, therefore, is for the furtherance of the right
In this case the question is: Can a group of people unilaterally to self-determination, it is clearly acknowledged and condoned by the
proclaim themselves as independent? Meaning the ICJ limited the international legal community. BUT, if the use of force is not in
question as referring to the physical act of declaring oneself as furtherance of the right to self-determination, but is intended to
independent. The ICJ never dealt with the question of legal effects. expand territory then the international legal community will not
Whether a unilateral declaration has legal effects. tolerate that.
Example: The attempt of the Russian government to annex Crimea,
The only answer given by the ICJ is short, you can unilaterally declare which is a city in Ukraine. In Crimea, it’s a city that usually has many
yourself, nothing is stopping you. International law does not contain Russian, Russia attacked Ukraine in order to allegedly free the
any rule that either allows or prohibits a unilateral declaration. It Crimeans from Ukraine, but the Ukrainian Government is not actually
never dealt into the analysis that the declaration of Kosovo was launching a campaign of massive human rights violations against
justified. There was no discussion whether the unilateral declaration Crimea. There was no need for the Russian government to launch an
is impelled by the exercise of the right to self-determination. There attack and liberate the people of Crimea. Therefore, it was not
tolerated by the international community.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 20
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Module 5
JURISDICTION According to the so-called ‘passive personality’ principle, a state can
assert its jurisdiction over an offence committed abroad on the sole
A. Chapter 5 of Henriksen (pp 85 – 100) ground that the victim of the offence was a national of the state.
International law primarily seeks to maintain international order by
compartmentalizing territory and individuals into sovereign states. The passive personality principle makes it practically impossible for a
One of the defining aspects of sovereignty, then, is the exclusive right potential offender to anticipate which state’s laws he or she may be
of each state to govern its internal affairs. subjected to and it creates uncertainty about acceptable behavior
within a state.
In international law, the dual aspects of sovereignty mentioned above
are reflected in the principles of the lawful exercise of jurisdiction. 3. Protective jurisdiction
The term jurisdiction relates to the authority of a state to exert its Jurisdiction on the basis of territory and nationality usually provides a
influence and power—in practice make, apply and enforce its rules— state with sufficient jurisdictional means to protect its interests from
and create an impact or consequence on individuals or property. potential harm.

In practice, the principles of jurisdiction translate into important Exceptions:

distinctions between various means of jurisdiction, the primary ones Holds that a state may extend jurisdiction over any matter that has a
being jurisdiction to enforce and jurisdiction to prescribe. deleterious effect on it regardless where the acts occur or who has
committed it.
‘independence’ – the right to exercise the functions of the state to
the exclusion of any other state. Protective jurisdiction is derived from the sovereign right of all states
Source – state sovereignty to conduct their affairs without outside interference. The exercise of
Role of international law – to limit the exercise of jurisdictional protective jurisdiction does require, however, the existence of a
powers. genuine threat to a vital state interest and it must not, therefore, be
confused with controversial effect doctrine visited earlier whereby a
Three (3) Forms of Jurisdiction. state extends its laws to acts that merely have negative economic
PRESCRIPTIVE effect in the state.
ENFORCEMENT
ADJUDICATIVE 4. Universal Jurisdiction
International law recognizes that certain offences are so serious
Commonly asserted bases of prescriptive jurisdiction. and/or disruptive to international society that any state may claim
1. Territorial jurisdiction jurisdiction over them no matter where they have been committed or
The most basic and uncontroversial basis of jurisdiction is the by whom. The lack of direct link between the state and the offence
principle of territoriality derived from the sovereign state. In a sense, makes so-called ‘universal jurisdiction’ stand out from the other
all other principles of jurisdiction can be considered ‘extraterritorial’. principles of jurisdiction.

The territoriality principle holds that a state has jurisdiction over all Violations of norms of a peremptory character/jus cogens, such as
acts, whether criminal or not, committed on its territory and over genocide, crimes against humanity, serious war crimes and torture,
everyone located on the territory of that state. Subject to limitations are the most serious offences under international law and therefore
imposed under human rights law, a state can legislate as it pleases on constitute obvious candidates for being crimes under universal
whatever matter it so desires on its own territory. jurisdiction even in the absence of a treaty-based entitlement.

‘Territory’ includes not only territory on land but also territorial sea How does the international system cope with conflicting claims of
and the airspace above the land and sea territory. jurisdiction?
The issue of concurrent jurisdiction and the simultaneous exercise of
2. Jurisdiction on the basis of nationality jurisdiction by more than one state over the same matter may give
States may extend their laws to their own nationals regardless of rise to considerable international friction and it is therefore
where they are located. Indeed, as a basis for jurisdiction, this so- somewhat unfortunate that states are not under a legal obligation to
called ‘active personality’ principle. exercise their jurisdiction in a particularly reasonable manner.

States have a legitimate interest in the behavior of their own citizens A principle of comity suggests that a state should limit the reach of its
abroad and since they are reluctant to extradite their nationals to laws and defer to other states if those have a stronger link to a
criminal prosecution in other states, preventing impunity for serious situation.
offences occasionally requires the state of nationality to prosecute its
own nationals for crimes they have committed abroad.
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 21
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Enforcement Jurisdiction therefore, filed a case in the ICJ. Liechtenstein, representing
1. Extradition Nottebohm in the exercise of espousal claim and diplomatic
Basic Principles: protection, filed a case against Guatemala. What they asked is
a. Pacta Sunt Servanda applies - The obligation to extradite is restitution and compensation.
treaty-based.
b. Political Exception - Extradition could not cover political The first issue here is WON Liechtenstein has legal standing to file a
offenses. case on behalf of Nottebohm. Liechtenstein contended that they have
c. Ex post facto - The ex post facto law prohibition does not because he is their national and granted him naturalization and
apply citizenship. Therefore, in exercising diplomatic protection, what is
d. Dual Purpose - The purpose includes both prosecution and merely required is nationality.
execution.
The ICJ agreed with that. However, the ICJ said that while states are
Double criminality granted discretion to determine how and when to grant nationality
This stipulates that the offence involved must be a criminal offence in because that’s an exercise of sovereignty, the effect of that
both states concerned. nationality upon third states will be a different issue. As a state, all
states around the world have prescribed requirements for citizenship
Double jeopardy (ne bis in idem) and nationality. Some of them require minimum stay, minimum
This specifies that an individual should not be punished twice for the amount of investment or real property and many others. It’s
same offence. absolutely granted discretion how and when to grant nationality but
that discretion to grant nationality will not automatically bind upon
2. Deportation third states especially if there is no genuine and effective link as in
3. Abduction this case.

Mala Captus Bene Detentus While Liechtenstein granted nationality to Nottebohm, that grant of
A state can try an individual even if the state believes that the nationality may not be binding upon third states such as Guatemala
defendant was brought into the state through measures that violated in this case because it is really obvious that in securing nationality in
international law. Liechtenstein, Nottebohm’s sole aim is to come in Liechtenstein’s
protection as a neutral state did not intend to be wedded to
Rendition - means to deliver an individual from one state to another Liechtenstein’s intentions, interest, and way of life. In fact,
Different forms of rendition. immediately after the grant of naturalization, he flew back to
Guatemala. There was no intent to stay, no intent be bound by duties
Nottebohm (Second Phase) (Liechtenstein v Guatemala), Judgment and obligations as a Liechtenstein citizen.
[1955] ICJ Rep 4.
Liechtenstein filed a case to the ICJ against Guatemala because of Therefore, there is no genuine and effective link. While he may be
Nottebohm’s property and these were confiscated by the considered a citizen of Liechtenstein physically as a contractual
Guatemalan government as a war measure. Remember that arrangement but that grant of nationality may not be automatically
Guatemala is in Latin America and allied with the USA. Therefore, binding upon third states. Also, there were testimonies from the
kontra sila with Germany in WW2 and because Nottebohm is a relatives of Nottebohm and they said that Nottebohm has expressed
German national, his properties were confiscated in Guatemala. his intention to stay in Guatemala until his old age. His family is even
Liechtenstein was so angry on why this was done to its national there. He was only applying citizenship in Liechtenstein to protect
interest. himself to the adverse effects of the war that his German government
has lodged.
Atty Pandi: Nottebohm is a very smart guy. He knows that his country
of birth, Germany, is about to wage war against Poland which will Just to illustrate how very discretionary the grant of nationality is a
trigger WW2. Because of that, he doesn’t want to be a national of prerogative granted into states. In International Schools in the
Germany anymore. He wants to be a national of a neutral state. He Philippines, there is a minimum quota among Filipino students. There
went to Liechtenstein and applied for naturalization a month before is a percentage of Filipino students and foreign students. Usually,
WW2 and the sole reason. n is that he wants to seek protection in there should be more foreign students. There are some people who
Liechtenstein as a neutral state. So that he will get rid of his German are constrained to apply for citizenship in foreign countries because
nationality and will not be considered as a belligerent national. they want their kids to enroll in an international school. Other
Therefore, his properties in Guatemala will not be confiscated. But it countries, even if you just purchase a condominium or real property,
was still confiscated by Guatemala because he is a belligerent they are granted nationality.
national. After that, Liechtenstein got mad and contends that he is
their national and the act of Guatemala of illegal confiscating his
properties is actually an offense upon his property rights and
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 22
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United States v Fawaz Yunis, aka Nazeeh, Appellant, 924 F.2d 106 But then, international actually acknowledges what we call mala
(DC Circ. 1991). captus, bene detentus which means, it does not matter whether the
arrest or capture was illegal for the person charged for the
Atty Pandi: We said that the Passive Personality principle (PPP) is commission of an offense.
controversial because it is unfair to the defendant that he does not
know that the act he committed is a criminal offense in the national Question: Why? What are the justifications why although the arrest
of the victim but we said that the PPP very effective if the offense is was illegal, the prosecution was still valid?
something heinous or serious just like terrorism, murder, and in this
case, a hijacking incident. Therefore, in here, the US had jurisdiction Answer: Because the illegally arrested person, when brought before
based on PPP although only 2 passengers of that flight were American the court, will still be granted all the rights as an accused, a right to
citizens. have counsel, to be informed of the offense charged against him, to
be granted of due process, a substantive due process. So, what
Just to be more specific with the facts here that the airplane involved happened was, it is okay that the illegality of the arrest, an
is the Royal Jordanian airlines and it left by route in Lebanon but then apprehension, can be addressed actually by the subsequent rights
hijackers went inside, Yunis et al and went to the cockpit and said to granted to him throughout the trial process. This is the justification
direct the flight to Tunis, a country in North Africa wherein the for the mala captus, bene detentus.
conference of the Arab league was being undertaken. So, all of the
leaders of the Arab nation were there. That is why Yunis redirected The same is true with Mr. Eidman who was prosecuted in the courts
the airplane to go there because he wanted to make a demand to the of Israel for the acts of Holocaust for his participation in the
heads of state of the Arab nations to remove Palestinians in Lebanon. Holocaust. At that time, he was charged by the Israel courts, he was
He wanted the Arab nations to agree to come up with a measure to actually in Argentina. So, the Israeli government did not secure the
remove Palestinians in Lebanon. Obviously, they were not noticed so consent of the Argentinian government for extradition. The Israeli
they were forced to fly to for example Sicily and they had no choice agents actually illegally entered the territory of Argentina to kidnap
because no airport would want them to land so they came back to Mr. Adolf Eitman. Initially, Argentina argued that what the Israeli
Lebanon. Lebanon released the passengers. After releasing the government did is a violation of international law, a violation of the
passengers, the airplane was made to explode. The US was mad prohibition of non-intervention, when you illegally enter the territory
because 2 passengers were Americans. of another state. But Argentina waived the illegality of the act
because Argentina realized that it is justified under the circumstances
US filed a case against Yunis for violation of hostage-taking act. The although Argentina said not to do it again, that's male captus, bene
hostage-taking act specifically provides that the US will have detentus.
jurisdiction over offenses that, although not committed by the US but
committed outside but the hostage individuals are their own citizens. Question: When should male captus, bene detentus be illegal and
So, very telling of the PPP. The problem is, Yunis is in Lebanon. He unnecessary?
cannot be brought to the US courts because he was in Lebanon during 1. Mala captus, bene detentus is not practicable and will not have the
that time. So, Mala Captus Bene Detentus enters into picture. What support of the international community if the state where the
normally happens is that the US should seek the extradition of Yunis accused is located is actually willing to cooperate and to surrender
from Lebanon to the US due to the extradition treaty between the 2 the accused.
countries but the US did not wait for that. What the US did was it 2. Male captus, bene detentus should not apply if that State where
deployed CIA and pretend that they are normal citizens intended to the accused got kidnapped actually makes a complaint or rejects or
be part of the drug cartel and this is without the knowledge and objects to the illegal apprehension. So, whenever a state objects to
consent of Lebanon. They went to Lebanon and this is called an illegal apprehension or to the kidnapping of a person found within
operation golden-rod. Pretending to be a member of the drug cartel, its territory, the kidnapping state should return the kidnapped
they boarded Mr. Yunis to a yacht into the Mediterranean Sea because male captus, bene detentus rarely applies when there is
because there is a drug investment he can join. Yunis agreed and so an objection from the home state.
when he went to the Mediterranean, he was captured and was flown
to the USA to answer for the crime charged. Government of Hongkong Special Administrative Region v. Munoz,
GR No. 207342, 16 August 2016.
First Question is: Does the American Courts have jurisdiction over the Atty Pandi: Was the extradition valid in this case?
crime? YES because of the Passive Personality Principle. No because the double criminality principle was not complied with.
There is no law in the Philippines that would penalize Muñoz. Crime
Q: Does the American Court have jurisdiction over this person? here is accepting advantage as an agent. How about the Philippines?
How about Bribery? In Hong Kong, the law pertains to private
Atty Pandi: The US Courts should not have jurisdiction because he was persons. Bribery can only be committed by public individuals. Hence,
illegally captured. He was basically kidnapped. He was brought to there is a violation of double criminality principle, that the crime
court by illegal means and therefore the court should not proceed. subject of the request must be penalized by both countries but in this
By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 23
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case, there is no crime penalizing “bribery” of private individuals. In Module 6
the Philippines, the only instance you’ll be penalized for accepting Immunities under International Law
money is if you’re a government official, either under bribery or anti- A. Chapter 6 of Henriksen (pp 101 – 125)
graft practices act. Three kinds of immunities
a. State immunity
Atty Pandi: There were 6 elements that were actually evaluated by b. State representatives immunity
the SC in this case but we all know that the element that has not been c. Immunities accorded to Envoys or diplomatic agents
complied with was with respect to the double criminality. Why was
the double criminality not complied with in this case? Absolute State immunity v. Restrictive Immunity
Absolute Immunity
There are 2 things that we have to remember in this case. The double - a State cannot compel/require another State to submit to
criminality rule and the rule of specialty. So the double criminality its jurisdiction
rule was not complied in this case although there is an extradition Restrictive Immunity
treaty and remember, there is no obligation to extradite if there is no -restriction on the acts itself of the State incases of;
extradition treaty to begin with. a. Jure imperii - act of the State is public in nature which
results to immunity/government purposes
So, Munoz unfortunately was charged under Section 9 of the Bribery b. Jure gestionis - acts is private in nature/ non-immunity of
Ordinance of Hong Kong. Section 9 covers private sector bribery. commercial interests
Hongkong also criminalizes public sector bribery. However, public
sector bribery is found in Section 4 of the same ordinance. But Atty. Pandi:
Munoz’s charge before Hongkong court is for accepting an advantage Absolute Immunity- it is absolute because we don’t look at the nature
as an agent, meaning for private sector bribery under section 9. of the act in question but on the identity of the defendant. If the
Unfortunately, bribery cannot be committed by a private individual in defendant is the state, automatically state immunity.
the Philippines. We don’t have an equivalent crime, because the
person involved here is Munoz who was a public official and therefore Restrictive Immunity- the present prevailing rule. We look at the
there is no equivalent offense of Section 9 on private sector bribery subject matter of the dispute.
in Hongkong in the Philippines. Since we don’t criminalize private
sector bribery here, we don’t consider it as a criminal offense Oleynikov v Russia, ECtHR, App No. 36703/04, 14 March 2013.
therefore the double criminality rule was not met. Therefore, Munoz SUMMARY:
extradition is allowed for him to respond to the seven counts of Violation of Article 6 (access to court) of the European Convention on
conspiracy to defraud, because we have an equivalent offense for Human Rights.
that under Article 315 paragraph 2 of the RPC. He will not be 1,500USD
prosecuted or tried for private sector bribery. The case concerned a Russian national who complained about the
refusal by the Russian courts to examine his claim concerning the
There’s one thing that I would like to highlight here. Refer to the repayment of a loan to the Trade representation of North Korea.
political exception principle governing extradition. Extradition could
not cover political offenses, it only covers criminal offenses. The The Court held that the limitation of Mr Oleynikov’s right of access to
reason being is that we don’t want to constrain or hamper the court had pursued the legitimate aim of promoting good relations
exercise of political rights. Because sometimes, there is a very fine between States through the respect of national sovereignty.
line between political offense and an offense punishable as rebellion, However, it concluded that the Russian courts had failed to examine
sedition, or offenses intended to overthrow the government. There whether the nature of the transaction underlying the claim was of a
should not be extradition to political offenses because we want to private law nature and to take into account the provisions of
maximize political participation, we want to maximize accountability, international law in favour of restrictive immunity.
we want to be able to have individuals who are willing to participate
in civic engagement and demand for the best from the respective FACTS:
governments and sometimes governments will categorize free Applicant lent the Trade Counsellor of the Embassy of Korea, 1,500
speech for example or exercise of civil and political rights as a criminal US dollars to be repaid on 29 May 1997. IN a receipt, the debtor
offense and therefore there is a need to protect individuals who are pledged a Totyota Camry car. Furthermore, a 1% interest per day of
fighting for our rights and who are ensuring that the government does delay was agreed upon. When the Trade Counsellor failed to pay, the
not go beyond the confines of its rights and on its powers. applicant sent several letters of claim which were unanswered.

Also remember what we call as the Attentat Clause a clause that is Thus, applicant wrote to the Russian Ministry of External Affairs but
usually found in extradition treaties which provides that the murder he was told that the Counsellor was a constituent unit of the Embassy
of the head of state or any member of his family will not be and therefore an organ of the Republic of Korea which acted on its
considered as a poilitical offense. Therefore, it is extraditable. own behalf and enjoyed immunity from suit and immunity from
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attachment or execution. Applicant complained that Russian courts’ access the court. Therefore, ikiha nako si Russia in violation of article
refusal to examine his claim and the DPRK’s failure to give consent to 6.
an examination of his claim by Russian courts violated his rights
under ART 6 of the European Convention and ART 1 of Protocol NO. Jurisdictional Immunities of the State (Germany v Italy: Greece
1 to the Convention (these provisions pertain to right of access to the intervening), Judgment [2012] ICJ Rep 99.
Courts). Measures of Constraints by the Italian government with respect to
Villa Vigoni, in that case, the decision against Germany was rendered
ISSUE: on the merits by the Greek Courts.
Does the rule of State immunity from jurisdiction restrict the exercise
of the right of access to court? In that case, the Greek citizens filed a case against Germany for the
acts of torture, the massacre and for all the atrocities of the German
RULING: armed forces did during World War II.
Such a limitation must pursue a legitimate aim and that State
immunity was developed in international law out of the principle par A case was filed before the Greek Courts. Germany said it is entitled
in parem non habet imperium, by virtue of which one State could not to immunity. Greek Court said no, because these are violations of jus
be subject to the jurisdiction of another. cogens norms. Greek courts issued its decision against Germany. The

The grant of immunity to a State in civil proceedings pursues the Greek courts realized it cannot enforce the decision, because there is
legitimate aim of complying with international law to promote comity no German Property in Greece, however, the Greek courts became
and good relations between States through the respect of another aware that in Italy, there is this Villa Vigoni.
State’s sovereignty.
Greek Courts went to Italy seeking to execute the judgement by Italy.
The impugned restriction must also be proportionate to the aim The Italian Court did not hear the merits of the claim of the Greek
pursued. The Court observes that the application of absolute State citizens. The Italian court, here, was only asked to execute a
immunity has, for many years, clearly been eroded, in particular with judgement already rendered in Greece.
the adoption of the Convention on Jurisdictional Immunities of States
and their Property by the UN General Assembly in 2004. ART 10 of its The Italian Courts agreed. Then it took measures of constraints
Draft Articles endorsed the principle of RESTRICTIVE IMMUNITY, against Villa Vigoni. The property was freezed then it was attached,
having provided that a State CANNOT rely upon immunity from subject to the finality of the proceedings before the ICJ.
jurisdiction if it engages in a commercial transaction with a foreign
natural or juridical person. Can the Italian Courts do that?
Yes, if none of the exceptions apply, because immunity from
The Draft Articles as now enshrined in the 2004 Convention apply enforcement is also enjoyed by a State. Even if a State consents to the
under customary international law, even if the State in question, has exercise of jurisdiction, meaning it submitted itself to the jurisdiction
not ratified that convention, provided it has not opposed it either. to another State. A separate consent is necessary before a judgment
may be executed against one state. That is immunity from
IN this case, the court considers the grant of immunity to a State in enforcement.
the present case pursued the legitimate aim of complying with
international law in order to promote comity and good relations Three (3) Exceptions to the Immunity from Enforcement: (When
between States through the respect of another State’s sovereignty. subject to execution)
1) The State Consents. the State has expressly consented to
The domestic courts however, did not undertake any analysis of the the taking of a measure of constraint
nature of the transaction underlying the claim. They thus made no 2) Earmarked. The State has allocated the property in
effort to establish whether the claim related to acts of the DPRK question for the satisfaction of a judicial claim. If the State has
performed in the exercise of its sovereign authority or as a party to a specifically Earmarked certain properties, where upon
transaction of a private law nature. judgement may be executed.
3) Commercial Use. The property in question must be in use
Thus by rejecting the applicant’s claim without examination of the for commercial purposes. If property is used for commercial
essence of the dispute, the Russian courts failed to preserve a functions, and not for governmental functions, it may be subject
reasonable relationship of proportionality. They impaired to execution.

Recits and Discussion In this case, Villa Vigoni, is not used for commercial purposes, it is in
Q: What case did he file in ECHR? fact, used as a cultural center and intended to foster healthy relations
A: In the European human rights, wala naningil si Oyleniko sa iyaha between Germany and Italy, and serves to create a healthy
1500 kay waly jurisdiction ECHR. the Russian govt violated my right to relationship diplomatic-wise, trade-wise and cultural-wise between
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the two states. Strengthening cultural relationships and Q: In terms of properties, for example, performing sovereign
strengthening diplomatic relationships is actually an exercise of functions, can State-owned banks invoke immunity?
governmental function, therefore, Villa Vigoni is exempt from A: It is a gray area. Function of the State-owned banks will depend on
execution. the transaction. It will be on a case-to-case basis.

Therefore, Italy could not have validly taken measures against it, and Al-adsani vs UK
it is not a proper subject of enforcement jurisdiction. The ECHR admitted, Yes, acts of torture were committed but
unfortunately, the acts of torture were perpetrated by the Police
Recits and Discussion Forces of Kuwait, who were acting under the instruction of the Ymir
Q: Is the state immunity affected by the gravity of the offense and the Sheik, which are officials of the government of Kuwait.
allegedly committed by the state, what if it violates a jus cogens Therefore, because the actions were committed by the official organs
norm? of Kuwait, immunity will apply, regardless of the nature of those
A: No. The Court could not find any practice that supported the claim actions.
that state immunity could be limited in cases of serious violations of Why? It was because the case was filed against a State.
international law and it concluded that a state’s entitlement to
immunity does not depend upon the ‘gravity of the act … or the It would have been a different case altogether if, the case was filed
peremptory nature of the rule which it is alleged to have violated’. against the specific individuals responsible for the acts of torture and
if the case was filed in another court or another tribunal. But,
Since state immunity serves as a procedural bar to the exercise of unfortunately, Al-Adsani filed the case against the state of Kuwait
jurisdiction by a national court, the court must dismiss a case against who can altogether invoke State Immunity.
a state that is entitled to state immunity, regardless of the nature of
the allegations against the state. Atty. Pandi: It was published right? All right? How was he tortured?
He was a burnt and severely injured attorney. He got mud mod in the
Q: What is the difference immunity from enforcement jurisdiction and pool.
adjudicative jurisdiction?
A: I asked this question because I want to establish that acts of torture
were committed. It was filled with blood and corpses, so obviously
Q: Measures of complaint against what property? there were acts of torture committed by the police officers.
A: Villa Vigoni
The Human Rights Court said in this case, the alleged violation of
Q: Can the Italian govt do that? Article 6 paragraph 1 was applicable to the circumstances, and noted
A: No, because there is immunity of enforcement, Villa Vigoni was that immunity was not a substantive right but a mode procedural
actually used as a cultural center, it was performing government matter. It also stated that by a narrow majority of 9 votes to 8, the
functions, thus immune from execution. court held that the grant of sovereignty immunity was made in civil
proceedings were legitimately complied with by international law,
Example: (Immunity from Execution) and unlike criminal cases it was unable to discern any firm basis for
There is one big building, owned by another state, and that big concluding that a state no longer enjoys immunity from civil suit on
building is located in the territory of another state. Assuming that one the course of another state.
state lost in a case, and it needs to be executed. If the building is
divided into several rooms, apartments or compartments. Atty. Pandi: I have to cut you there. You are correct so far, and I agree
1st Floor rented to private individuals, 2 nd Floor as an Embassy, 3rd with you hah, the state does not lose immunity even if the alleged act
Floor is used as a Consular Office, and 4 th Floor used as a Cultural committed is a violation of a jus cogens norm. Such a norm prohibiting
Center/Hub. torture. You said that the reason for this is that state immunity is
concerned with procedural rules. What do you mean by that?
Only the 1st floor is subject to execution, because it is used for
commercial purposes, it is not used for government purposes Student: Procedural in nature because, criminal jurisdiction of the UK
because it is leased to private individuals. The 2 nd, 3rd and 4th Floors over acts of torture, the UK ratified the human convention ---
will not be subject to execution because they are being used for
governmental functions. Atty. Pandi: Mr. Sarip is correct, but what do you mean by that? That
state immunity is procedural? --
So, you don’t look at ownership. In immunity from Enforcement
jurisdiction, you look at the use of the property (private/commercial Atty. Pandi: When is state immunity invoked by one state? -- We are
function -> not exempted, governmental function -> talking about the immunity of the state itself as an artificial being. --
exempted/immune).

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Atty. Pandi: I'll discuss, all right. The acts of the armed forces of committed acts of torture, raped women, beheaded them after, and
Germany during world war II are serious offenses of Humanitarian chopped their bodies several times. Those were the allegations of the
Law, they tortured individuals, they subjected individuals to torture complaint Now, if you make state immunity dependent on the
and forced labor, the massacred villages, basically they killed allegations in the complaint. You will assume jurisdiction and say
individuals regardless of their association. All of those acts are serious “Okay, the defendant is a state but I want to know if it is really true
violations of International Humanitarian Law and of International that he did it.” Then later he finds out that the complaint is a sham,
Human rights law. In this case between Italy and Germany. so he will say “Sorry State B, you are actually entitled to State
immunity. I made a mistake” That would be too late in the day.
There is no question whether the German armed Forces did all of Because in the process of hearing and accepting evidence, you
those acts. In fact, they paid, and they granted compensation. The already subjected that state to your jurisdiction and therefore state
issue here is whether Germany loses its state immunity because of immunity was already violated.
the Heinous crimes that its state organs did. Because obviously the
acts of the German armed forces are acts of the state. The acts of the Therefore, state immunity must not be dependent on the action or
armed forces are a sovereign function. the veracity, the truthfulness or even the nature of the case. To do
so, would make state immunity irrelevant under international law.
The question is, whether state immunity is affected by the gravity of
the offense alleged to have been committed by the state? It is procedural in nature, because it asks the question whether I
should hear the case or not.
If you violate Jus Cogens norm, that is an extreme violation. But a
violation of a state of a Jus Cogens Norm whether true or not. Does State immunity only applies in the relationships between states -
not result in the loss of state immunity. Horizontal - but can file a case against State B for the same offense
before an international tribunal? YES. Because in the vertical level,
State immunity applies even for violation of Jus Cogens norms. international tribunal, no state immunity applies. There is an
Because state immunity is concerned with procedural norms. State appropriate judicial body, and that is International Courts. State
immunity answers the question, whether one state should entertain immunity be invoked in international courts.
a case filed against another state. We have already learned that states
enjoy equal status under international law. States have sovereignty The courts are not closed to the idea that an exception may be crafted
and by virtue of that sovereignty one state should not be subjected in the future. (To have Horizontal) However, there is no need for that
to the jurisdiction of another state, because states are equal. “Par in anymore, because you may file a case of violation of Jus Cogens norms
parem non habet imperium.” before the international court of justice.

Therefore, if the courts of state A, receive a complaint against State If you can identify a specific head of state, official, specific military
B. The question is whether State A can assume jurisdiction of a case commander responsible for the acts, you can also file a case against
against state B, within its domestic courts. Because if that happens, if that person before International Criminal Courts, or before Special
State A takes jurisdiction and hears the case, it is in fact subjecting Courts of International Criminal Law. So there are many opportunities
state B into its own territory and jurisdiction. That is a violation of and avenues for these. There is no need to craft for a state immunity
sovereign equality of states. So, state immunity is not concerned with horizontally, because there are many possible avenues for them to be
the substance. It is only concerned with the question, whether or not held liable for their actions.
the defendant is a state, and whether the defendant state performs
sovereign functions. It will not look at the exact merits of the case. Student: Is immunity absolute, even if it is a criminal case or a civil
case?
Requirements:
1. It is an act of a state Atty. Pandi: That no longer concerns state immunity. That is on state
2. The act is in the exercise of sovereignty, or governmental representatives such as, heads of states or ministers of foreign affairs
functions in various international engagements.

Therefore, immunity automatically attaches. You no longer have to Whether immunities of heads of states and state representatives are
deal with the specifics whether or not those acts were in reality absolute? The answer is it depends upon the nature of the crime. It
committed, because that goes into the merits of the case. depends upon whether he is incumbent or whether he stepped down
from office, and it depends upon the jurisdiction of international
What happens if State immunity is made dependent on the alleged courts and tribunals. It is not a question that can be answered in one
gravity of the violation committed by a state? brush or in one stroke. There are several things that you will have to
consider.
Another example, a complaint was filed against State B in the courts
of state A. The complaint said that State B through its armed forces
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For example: Assuming that the Philippines is still a party to the
international criminal court or the Rome Statute.

Assuming before withdrawal, Pres. Duterte is an incumbent official,

he therefore enjoys immunity, as a head of state. Can you file a case
against Pres. Duterte before the International Criminal Court (ICC)
while he is still an incumbent president? The Answer is yes, if the ICC
has jurisdiction, which means, if it can prove that the crime
committed by Pres Duterte during his incumbency, are predicate
crimes (war crimes, crimes against humanity, crime of aggression,
crime of genocide.) These are the only four (4) crimes that can give
jurisdiction to the ICC. State immunity for State Representatives is not
absolute, it depends upon whether he is still in the position or not and
also on the nature/gravity of the act committed. This is discussed in
the case of Belgium vs DRC(?).

That is why, you must be able to differentiate:

a) the Immunity of the State itself, b) Immunity of State
Representatives, and c) Immunity of Diplomatic Agents or Envoys
(Diplomats, Ambassadors and Consuls).

-End of Discussion on Immunities of States itself-

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Immunities of State Representatives Issue: WON the immunity of Yerodia was violated with international
State representatives enjoy certain immunities from national law for a mere issuance of the international arrest warrant.
jurisdiction because they ‘personify’ the state on whose behalf they
act and because they need protection from national jurisdiction in Yerodia enjoys immunity during his tenure.
order to fulfil their functions as state representatives.
The immunities are therefore not granted for the personal benefit of (Most important in this case: From Henriksen)
the representative but so that the individual can fulfil his or her In the Arrest Warrant, the Court stated that criminal prosecution of a
official functions. minister for foreign affairs is possible in four circumstances.
o First, the minister can be criminally prosecuted by courts in his or
immunity ratione personae vs immunity ratione materiae her own ‘home state’.
o Secondly, prosecution in the forum state is possible if the ‘home
immunity ratione personae—or immunity ratione materiae—
state’ agrees to the prosecution by waiving immunity. A waiver of
‘personal immunity’ ‘functional immunity’
immunity must, however, be expressed.
o The third option for prosecution mentioned by the court was
Flows from the position a relates to the functions the criminal prosecution before international courts.
representative hold in a state representative performs o As a fourth option for possible criminal prosecution, the Court stated
that a foreign minister can be prosecuted after his or her term
expires for acts committed either prior or subsequent to the
only enjoyed by a very small enjoyed by all state period of office or for private acts committed during the period in
group of individuals with representatives office.
certain high-level governmental
position as well as by diplomatic Can he be prosecuted while in his tenure?
agents and by representatives 4 exceptions:
on ‘special missions. Firstly, such persons enjoy no immunity under international law in
their own countries, and may thus be tried by those countries’ courts
As a form of immunity, it It does not apply to private acts
in accordance with rules of domestic law.
applies to both official and but applies after the
private acts as well as to acts representative leaves his or her
Secondly, they will cease to enjoy immunity from foreign jurisdiction
committed both before and position for public acts
if the State which they represent or have represented decides to
while the representative committed while in public
waive that immunity.
occupied his or her public service.
position.
Thirdly, after a person ceases to hold the office of Minister for Foreign
Affairs, he or she will no longer enjoy the immunities accorded by
Atty Pandi: international law, in respect of acts committed prior or subsequent to
Whenever the minister of foreign affairs or the president travels to his or her period of office, as well as in respect of acts committed
engage in negotiation, to participate in meetings, and sign a treaty, during that period of office in a private capacity.
those are the very important functions to require protection from
immunity because without immunity, these heads of states or Fourthly, an incumbent or former Minister for Foreign Affairs may be
minister of foreign affairs, they will have second thoughts about subject to criminal proceedings before certain international criminal
traveling. They will be afraid that when they arrive in the venue, the courts, where they have jurisdiction.
country hosting the meeting, they could probably be arrested. These
individuals are granted immunity because they travel Atty Pandi: This case was brought by Belgium before the ICJ against
internationally. They represent the countries in the governmental Congo issuing an international warrant against Minister Yerodia.
meetings and in-charge of the relations of the state which is why
there is a special treatment, status, or right granted in them. Why was there a need to issue an international arrest warrant
against Yerodia?
Arrest Warrant of 11 April 2000 (Congo v Belgium), Judgment [2002], The offense of Yerodia in this case is he issued speeches on television
ICJ Rep 3. and radio inciting racial hatred. So, Yerodia didn’t kill anyone and did
*Student Recits* not directly participate in hostilities or human rights violations. All he
Atty Pandi: The time when the case arrived at the ICJ, Minister did was to issue or deliver statements over broadcast on radio and tv
Yerodia already stepped down so there is no issue but ICJ said that on citing religious and racial hatred against the Tutsis, an ethnic group
the critical date is the date when the international warrant was issued in Congo originally from Rwanda. The Rwandan genocide was actually
which is questioned by Congo. perpetrated because a lot of personalities described the Tutsis as
cockroaches, meaning they are pests and because of that, there was
massive campaign for mass killings. Their villages have been burned
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to the ground, they’ve been physically and brutally killed because The first exception is the home state itself prosecutes the minister
they are pests and roaches who do not deserve a place in the himself. There is no problem because no other states are involved.
Rwandan society. Because of that, the Tutsis moved to a neighboring For example, if Congo prosecutes Yerodia before Congolese courts
country which is Congo to seek refuge. And then in Congo, Yerodia is that is allowed because no other state is involved and therefore, no
there doing the same thing inciting racial hatred among the Tutsis. issue of jurisdiction can actually arise. So, if the Congolese
Belgium said that Yerodia cannot do that because you will repeat government decides to prosecute Yerodia…
what these Tutsis have experienced when they were still in their
home country. The very reason that they seek asylum to Congo is ...that is an exception to immunities. In fact, it’s not even an exception
because they want to seek protection. That is why Belgium filed a case because there is no immunity to speak of in a state because no third
in order to stop Yerodia from further sighting racial hatred. state is involved.
Nowadays, simple speeches can assume great significance because The second exception is waiver. Which means that a second third
speeches can move people to do something. Some of the speeches state is involved. Meaning, Yerodia may be prosecuted in Belgium
are actually loaded for example there is a coded message like with the consent of Congo. Meaning, if the Congolese government
describing certain people as roaches, pests. The audience understood waives its right to object to the exercise of jurisdiction, then that is
that as a campaign against those people and as an instruction to kill possible because immunities can be waived and a state can actually
these people. That is what exactly happened in the Rwandan consent to the exercise of jurisdiction by another state.
genocide. They were killing Tutsi children because they don’t want
any other Tutsis to grow and be alive. They were threatened because The third one is more complicated. It happens when the minister of
of the speeches delivered by Yerodia. foreign affairs ceases to hold office. Meaning, he is no longer
incumbent.
So, Belgium filed an international arrest warrant against Yerodia.
Yerodia was never arrested pursuant to the warrant. However, the Question: What are the immunities enjoyed by a former minister of
ICJ said that the mere issuance of an international warrant directed foreign affairs?
against an official that enjoys immunity is actually a violation of Atty Pandi: The former minister of foreign affairs will not have
international law even if no state has acted on the warrant. The immunity for acts done prior to his office and subsequent to his office.
purpose of the immunity is actually not to hamper the performance It’s obvious because those acts have nothing to do with his position.
of the ministers of foreign affairs or the heads of state. In this case, So, the moment the foreign minister steps down from office, he will
the issuance of the warrant actually hampered the performance of be prosecuted for acts done prior and subsequent to his office.
the functions of Yerodia. Yerodia was actually apprehensive to travel
to attend international conventions. In fact, even if he had to attend, Question: What about acts done during incumbency?
he was forced to travel by round-about routes. He was forced to use Atty Pandi: Acts done during incumbency are not immune so long as
backdoor channels just so he can travel because of the apprehension they were made in private capacity.
of being arrested pursuant to the warrant. So, the mere fact that he During incumbency, a minister of foreign affairs enjoys immunity for
had to travel on round-about routes, is actually a violation of the both private and official acts. But after ceasing to hold office, the
immunities already because at that time, he was still an incumbent minister of foreign affairs only enjoys immunities for acts done during
minister of foreign affairs. his term of office and official in nature. For acts done during term of
office or tenure but are in private capacity, he is no longer exempted.
*Latest News on Tutsis*
Atty Pandi: Rwanda is responsible for Tutsis. Rwanda now files a case Finally, ministers of foreign affairs or heads of states even during
against Myanmar, for the genocide against of Rohini Ans. Rwanda is incumbency may be prosecuted before ICC where these courts have
now trying to build an image and trying to pay for the atrocities done jurisdiction. Meaning, Yerodia or ministers of foreign affairs can be
in the past. subjected to a criminal prosecution before the ICC, even if they are
incumbent, even if they are still currently holding positions. Why?
Recap on 4 Exceptions (aka When criminal prosecution of a minister Because again, you don’t speak of immunities before international
for foreign affairs is possible) tribunals because the issue of immunity is only relevant when one
There are 4 exceptions and this is the most important in this case. state exercises jurisdiction over another state horizontally. But, when
Please remember that immunities apply horizontally. Belgium cannot it is an international court or tribunal exercising jurisdiction over one
exercise jurisdiction in the minister of foreign affairs in Congo because state or an individual vertical, there is no immunity to speak of.
that is tantamount to exercising jurisdiction of Congo and that could
not be possible because it’s our equal in international law. They are This explains why former Ombudsman Conchita Carpio Morales and
representatives of the state and therefore, subjecting the minister of former DFA Secretary Albert Del Rosario filed a case against President
foreign affairs in your own jurisdiction is akin to subjecting jurisdiction Xi Jin Ping, the incumbent President of China before the ICC for
of that state to your own jurisdiction. alleged crimes against humanity done by the Chinese government
through the leadership of Xi Jin Ping to fishermen in the West
Philippine Sea and many others.
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Note that even during incumbency, the ministers of foreign affairs or Here, Judge Borrell died and the case was closed before the Djibouti
heads of states can still be prosecuted before the ICC but remember, courts but then the French courts thought that there was a foul play,
it says there “where they have jurisdiction”. It is very important that they think that there was a participation of the Djibouti government
we satisfy jurisdictional requirements. Therefore, immunities of these in the said crime and therefore the trial was not impartial before the
ministers of foreign affairs do not mean impunity. There is no Djibouti court, so they decided to open the case before French courts.
impunity because they can be subjected to prosecution upon a waiver Pursuant to that case, the French court actually issued summonses to
or in their home states or before international courts and tribunals. the head of state of Djibouti, the prosecutor de la republic or the
So no, international law does not condone illegal acts. It’s just that solicitor general of Djibouti and third, the head of national security or
there is a much better and proper forum to address grievances and the secretary of national defense. Obviously, you cannot issue a
violations committed by individuals. Not of horizontal state to state summon to the president because that will be a violation of the
level but in a vertical state international court level. immunities enjoyed by a head of state.

Question: So, the main purpose behind why there is immunity is so it Question: The issuance of summon to the solicitor general and to the
does not temper the functions of the state representative, since there head of national security a violation of immunities under
is no immunity on a vertical level meaning, between a state and the international law?
international court, wouldn’t that be going beyond the purpose of
immunity? So, if you are a state representative being tried in an Remember, only the minister of foreign affairs and head of state are
international court, wouldn’t it tamper your ability to perform your covered by immunities. The solicitor general and the secretary of
function? national defense are in no way considered ministers of foreign affairs,
therefore, they do not automatically enjoy immunity.
Atty Pandi: No longer, because they already have jurisdiction and
that’s what we mean by it does not amount to impunity. While we Take note that international courts or other states are supposed to
respect that they need to discharge their functions, there is an end to take judicial notice and are supposed to automatically grant
brutality and there is an end to an oppressive regime. They cannot immunities to heads of states and ministers if foreign affairs. With
just escape the consequences of their acts. So whenever international respect to all other officials by another state, they are not assumed
courts and tribunals have jurisdiction, then we don’t care whether or or required to grant immunity. Immunity is automatically granted to
not we can hamper with their functions because that should be the the president and ministers of foreign affairs. However, if the official
end of the exercise of your functions because it’s no longer healthy is not a president nor a minister of foreign affairs, the state where
and we don’t want to tolerate such kinds of atrocities and horrendous they came from must invoke immunity because that immunity will
acts. This is the status of the law as it stands. This will change because not be awarded to them if not especially invoked.
there is a pending case now before the ICC about Al-Bashir. Al-Bashir
is a former head of state who was prosecuted before the ICC and then In this case, the Djibouti government did not invoke the immunity of
there was an arrest warrant issued by the ICC but then no other state its solicitor general and its head of national security which is why the
actually arrested Al-Bashir. He was able to freely roam in Jordan and French courts did not violate immunities under international law by
many other countries in Egypt. So now, there is a case against Jordan the mere fact of issuing summonses.
or the refusal of Jordan to arrest Mr. Al-Bashir.
Question: Does the mere fact of issuing summons actually amount to
Certain Questions of Mutual Assistance in Criminal Assistance a violation of immunity?
(Djibouti v France), Judgment [2008] ICJ Rep 177.
*recitation* The ICJ said yes, because there is a violation of immunity, when a state
is subjected to the constraining act, the phrase I will look for is
Atty Pandi: The French courts issued summonses to three officials of “constraining act” of authority by another state. The mere fact that
Djibouti. What’s the very important pronouncement in this case? you issued summons, you are subjecting him to a constraining act
under pain of contempt. In fact, during the oral proceedings of the
Atty Pandi: If it’s a head of state, absolutely enjoys immunity from case, the ICJ noted that the plea was inconsistent. The mere fact that
proceedings. Especially that the proceedings are in France, meaning the Djibouti is confused as to what immunities are enjoyed by these
the French government is exercising jurisdiction against the Djibouti officials is a testament that they don’t actually enjoy immunity.
which is not allowed under state immunity principles. Therefore, there was no violation from the French government.

Question: The two officials, are they ministers of foreign affairs? Atty’s Discussion on Djibouti
* Student Recites the case *
Djibouti is the former colony of France and that’s why there is an
institutional relationship between them which explains why many of Atty. Pandi: Let’s go to the part where summons was issued by the
the power team of French team in football and in soccer are Africans. Domestic Court. The French court actually issued summons to three
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individuals. Would you know who these individuals are that are · The host state may at any time and without justification
officials of Djibouti? -- The problem actually here is the third and the declare that the head of the mission or any other member of the
second. diplomatic mission is not welcome on its territory — ‘persona non
grata’—in which event the sending state must recall the person or
Djibouti is a former colony of France, that is why there is an terminate his or her functions with the mission.
institutional relationship between them. The judge died, and the case
was closed before the Djibouti courts. There seemed to be foul play, Obligations of the sending state and abuse of privilege
so they think the Djibouti government had participation, it was not · Article 41 of the VCDR explicitly states that all persons protected by
impartial. So, they decided to open the case before French courts. the Convention must respect the local laws and regulations.
Pursuant to that case the French courts issued summons: · If a sending state abuses its rights and privileges, the VCDR offers
1. The head of state of Djibouti the host state a number of remedies. (Remedies in case of Abuse of
2. Prosecutor de la republic (Solicitor General of Djibouti) Privilege)
3. The head of National Security (Secretary of National o First, under article 9 of the Convention it can withdraw its
Defense) consent in respect of a member of the mission by declaring
the representative persona non grata in which cases the
Obviously, you cannot issue a summons to the president, that will be sending state must recall the individual or terminate his or her
a violation of the immunities enjoyed by the head of state. functions.
o Secondly, in a particularly serious case of abuse the host state
So, the issue is, is the issuance for the Solicitor General and the Head may break off diplomatic relations. (aka. Sever diplomatic ties)
of National Security a violation of the state immunities under
international law? United States Diplomatic and Consular Staff in Tehran (United States
v Iran), Judgment [1980] ICJ Rep 3.
Remember, what is covered is only the Ministers and heads of states. *Student recites the case*
The Solicitor General and the Secretary of National Security are in no Violation of Iran on Diplomatic Relations
way ministers of foreign affairs, therefore they do not automatically
enjoy immunity. Iran violated Article 22 of the 1961 Vienna Convention:
[Link] premises of the mission shall be inviolable. The agents of the
TN: International courts or other states are supposed to take judicial receiving State may not enter them, except with the consent of the
notice and are supposed to automatically grant state immunity to head of the mission.
Heads of States and Minister of Foreign affairs. With respect to all [Link] receiving State is under a special duty to take all appropriate
other officials by another state, they are not required to grant state steps to protect the premises of the mission against any intrusion or
immunity. If it is the president or the Minister of Foreign affairs then damage and to prevent any disturbance of the peace of the mission
it is automatic. However, if the official is not the president or the or impairment of its dignity.
minister of foreign affairs the state where they came from must [Link] premises of the mission, their furnishings and other property
invoke immunity. Otherwise, that immunity will not be awarded to thereon and the means of transport of the mission shall be immune
them if not especially invoked. from search, requisition, attachment or execution.

In this case, the Djibouti government did not invoke the immunity of What happened?
it’s solicitor general and its head of national security, which is why the Iran and the US relationship is already sour. The US asks permission
French courts did not violate immunities under international law by from Iran about the medical situation of the Former Shah. The
the mere fact of issuing summons. students bombed the embassy with the diplomats/ambassadors in it.

Does the mere fact of issuing summons violate state immunities? YES. Is Iran liable for the acts of the students?
There is a violation of immunity by a state because the state is Yes. Iranian government approved the acts of the students. They
subjected to the constraining act of authority by another state. tolerate and accept the conduct of the students therefore they must
be held responsible for it.
The problem is it was not invoked by Djibouti.
The Iranian government took more than 3 hours to send
Immunities of Diplomats, Consuls reinforcements to the situation.
· Accordingly, the purpose of diplomatic law is not to benefit
the state representative in his or her personal capacity but the state Were the steps taken by Iran appropriate?
he or she represents. Under International Law, there are 2 types of obligations:
· The purpose of diplomatic law is to strike a balance *Obligation of conduct merely requires the State to do a particular
between the legitimate concerns of the sending state and the state in conduct regardless if the result has been achieved
which the representatives and the diplomatic mission are based.
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*Obligation of result- it is enough that the State has done something, Module 7
what controls is that, whether that conduct has produced the result. STATE RESPONSIBILITY

Answer: (From Atty’s PPT, Notes, and Discussion)

Atty Pandi discussion on Tehran Case: Fundamental Principle of State Responsibility
You cannot expect to ensure absolutely the integration of mission. Article 1, ARSIWA - Every internationally wrongful act of a State
Article 22 does not make of integrity of the mission and the security entails the international responsibility of that State.
of embassy. It only ask to take appropriate step. The question is WON
to take appropriate circumstances. IICJ said NO. Iran cannot say my Elements of State Responsibility
hands are full because of prior incidents and it negate that argument. 1. Breach – conduct that breaches international law
Remember ge attack ang Iran 1979. The Iranian authorities were able 2. Attribution – conduct is attributable to the state
to respond right away. The ICJ then ask ngano wala nimo na siya ge
himo karun? Well it's different now as Iran said. ICJ ask what about (From Atty’s Discussion)
Nov. 5 cause ge attack ang embassy November 4? One day after, the (By: Enriquez, KAT 2020)
same students attacked the embassy or consulate in Iraq (Tabriz and
shiraz). The Iranian Embassy immediately called on these students. The law on State responsibility is otherwise known as the Law on
The leader that time Ayatollah Komenie ask the students to leave and Secondary Rules. The Articles on the Responsibility of States for
stop the wrongful conduct. Internationally Wrongful Acts (ARSIWA) pertains to the secondary
rules under international law.
The ICJ said before why you were not able to do it on November 4
because there was a blatant deliberate refusal on the part of Iranian The law on state responsibility essentially asks the question whether
government. Therefore, Iranian government violated its special duty the state or whether there is a conduct that breached an international
under article 22 of the VCDR and many others. Kay dili raba ang obligation and whether that conduct or that breach is attributable to
embassy and protected but also diplomatic envoys, consuls and a state.
ambassadors.
An Internationally Wrongful Act (IWA) is the international law term
The American government engages in saying that they are actually for whether there was a violation committed by a state under
using this embassy to control us (Iran). I need to put away the international law.
illegality. ICJ said I will not put an argument due to the veracity of that
argument. Article 2, ARSIWA recognizes that an internationally wrongful act may
be committed through [A] action or [B] omission.
Furthermore, ICJ said assuming Iran is correct but that still doesn’t not
entitle you to do the thing that you did. Or to take it upon us. IWA BY OMISSION
Any violation by a state of any obligation, of whatever origin, gives
The Vienna convention of diplomatic relations is a self- contained rise to state responsibility.3 In several cases,4 the ICJ has remarked
regime. Meaning a strong independent woman or man. Complete in that responsibility may be incurred by the State if it manifestly fails to
itself. exercise due diligence or to take all measures to prevent wrongful
conduct within its control. This duty of due diligence assumes special
Why self-contained? significance in the areas of international human rights law5 and
It lay down the rights and obligations of the state parties to the international environmental law.
convention
2. It foresees the possibility of abuse. The convention is aware. IWA BY ACTION
3. It specifically provides for the rights and obligations. As States are juridical persons, it is essential to determine whether
acts committed by private persons in violation of international law are
What are the 2 solutions of VCDR? attributable to a State. While the process of attribution is essentially
If ever the Sending State in this case, the US abuses its privilege. The normative, it must nonetheless demonstrate sensitivity to the facts of
VCDR provides 2 possible solutions: each case.
1. Consider the agents or ambassador as persona non grata. Meaning
to take them home.
2. Severe diplomatic ties. Or cut the diplomatic ties. Two (2) Elements for an IWA to exist
So therefore, for there to be an internationally wrongful act or IWA:
Unfortunately, Iran did not do this. That’s why they violated the (1) Breach - there has to be a breach of an international law
Vienna Convention. obligation; and

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(2) Attribution - that breach of an international law obligation must Primary Rule vs Secondary Rule
be attributable to the state, because only states can actually commit,
Primary Rule Secondary Rule
generally, an internationally wrongful act.

Q: If there is a secondary rule, there must be a primary rule, right? So The substance of the rule is The ARSIWA, known as the
why is ARSIWA or why is the law on state responsibility referred to as actually in the secondary rule,
the secondary rule? primary rules. That’s your does not contain substantive
treaties, your obligations, the
A: ARSIWA or the law on state responsibility is known as the conventions, and customary ARSIWA does not contain what
secondary rule, because it is about determining whether a state international law. rights and duties
should be held accountable or responsible under international law. the states have under
But the ARSIWA or the draft articles does not actually enumerate on international law.
the legal obligations that which the state must perform or must
comply with.
The most important topic in our discussion on state responsibility
revolves around three topics:
The primary rules actually identify what the obligations of states are
1. First, an analysis whether there was an internationally
under international law. What the secondary will provide, which is
wrongful act;
ARSIWA, is an analysis whether the primary rule has been violated
2. Second, an analysis whether that internationally wrongful
and that primary rule or that violation is attributable to the state.
act is precluded, which means whether that is excused, meaning
whether that's justified and;
In the cases assigned for example:
3. Third, if there is a finding that the internationally wrongful
In the Rainbow Warrior case the primary rule in that case was the one
act is not excused or justified then we'll talk about the
containing the treaty between
consequences of that internationally wrongful act.
New Zealand and France, governing the detention, arrest, and
prosecution of the two French agents.
1. Whether there was a breach.
The identification or the analysis whether there is a breach of
In Nicaragua for example, the primary rule involved is the prohibition
international law depends upon the primary rule, we will not discuss
on the use of force.
that anymore. What we will discuss here would be the rules on
Attribution.
In the Bosnian Genocide case, the primary rule was the prohibition of
genocide, which is contained in the genocide convention.
Attribution is the process of creating a factual or a legal link between
the act and the state.
In the Gabčíkovo-Nagymaros Project case, the primary rule in that
Attribution, therefore, is the process of creating that link, in order to
case was the 1977 Treaty. So, the rules on state responsibility do not
make the state accountable and responsible under international law.
enumerate the primary rules, which the state or which states
around the world have to comply with or have to respect.
Rules of Attribution
Under settled case law, a State is responsible for acts carried out by
Those rules are found in the primary rules, such as treaties, customary
its [1] de jure or de facto organs; [2] the acts of an entity empowered
international law, or even general principles of international law.
by its domestic law to exercise elements of governmental authority;
[3] the acts committed by private entities under its instruction,
In the Tehran hostages case, the primary rule was the Vienna
direction or control; and [4] the acts it subsequently acknowledged or
convention on diplomatic relations.
adopted.

ARSIWA or the secondary rule, merely analyzes whether that primary

Article 4, ARSIWA – Structural Tests of Attribution - Acts performed
rule has been breached and whether the breach is attributable to the
by the State and its de jure or de facto organs.
State.
Article 5, ARSIWA – Functional Test of Attribution - Acts performed
by organs exercising governmental authority.
Article 8, ARSIWA – Conduct by a Private Entity - Acts performed by
private entities under the instructions of, or under the direction or
control, of the State.
Article 11, ARSIWA – Conduct attributable to the State by virtue of
Subsequent Adoption - Acts subsequently acknowledged and
adopted.

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Jaloud v. United Kingdom, talks about conduct for the organs loaned in Bosnia) They are a secessionist group as well and they are basically
to another state. About whether the Dutch forces were actually an institution itself. So the question is whether the acts of Republika
loaned to the United Kingdom, because the UK in that case is the Srpska are attributable to Serbia in such a manner that Serbia has
leader of the alliance. It actually spearheaded the alliance of forces in committed an internationally wrongful act.
Iraq that time, but it was proven that although the UK government
led that alliance, the Dutch forces in Iraq are still under the control, Therefore, in analyzing Attribution, the ICJ considered whether Article
direction, and supervision of the Dutch government. Meaning they 4 applies, or Article 8 applies. So,the first question is whether the
have not been loaned to the United Kingdom and therefore the UK Republika Srpska is an organ de jure of Serbia. There was no finding
could not have been made responsible for the death of the family to that effect, because Republika Srpska cannot be found in the
member of Jaloud, the applicant in that case. internal law of Serbia. It's not integrated as an
organ of Serbia under its own internal law. Therefore, you cannot
Article 4 of ARSIWA actually pertains to the conduct of the organs of characterize Republika Srpska (RS), you cannot categorize RS as a de
the state and what you have to remember here is that there are two jure organ of Serbia because it's not found in its own internal law.
types of organs of a state.
But the ICJ acknowledged the Bosnian genocide case that although a
De jure organ vs De facto organ private entity may not be considered a de jure organ because of an
De jure organ - Any person or entity which has that status in absence of its existence in the states internal law, it is possible that
accordance with the internal law of the State. there may be a de facto organ. Meaning if it can be proven that the
It says in Article 4 that regardless of whether it exercises legislative, private entity, although not integrated in the internal law of the state,
executive, judicial, or any other functions on whatever position but is in complete dependence on the state itself. Complete dependence
an entity is considered an organ of the state if it is defined and means it does not have real autonomy, complete dependence means
provided so in the internal law of the state. So that's why it's called the state is the organ, the private entity rather, does not have a
the structural test of Attribution. separate juridical personality. Meaning it's absolutely dependent
upon a state.
De facto organ - Any person or entity completely dependent upon
the State and whose supposed independence is purely fictitious. So, the question is whether RS is a de facto organ of Serbia, therefore
It's a de facto organ because the relationship is characterized, not by making Serbia responsible for the Srebrenica massacre which was
a legal relationship found in the internal law of a state, but by the committed by RS.
factual relationship. The existence of a relationship of complete
dependence. The ICJ said no, because taas kayo ang threshold in order to make a
Meaning the entity does not have any real autonomy, it does not have private entity a de facto organ of another State. Because of state
any separate existence of its own. It's a private entity not integrated responsibility, one does not simply accuse one state of committing an
into the internal law of the state, but despite that absence of internationally wrongful act. That is a very grave accusation and
integration therefore there has to be enough evidence to show that the state is
formally, it is completely dependent upon the state. (Complete responsible. There is a very high degree of Attribution required.
dependence test)
So, in this case the threshold in order to make a private entity a de
Bosnian Genocide case facto organ of one state is complete dependence. According to the
This complete dependence test was what the ICJ acknowledge in the ICJ there is no complete dependence by RS on Serbia in this case. The
Bosnian Genocide case, because in the Bosnian genocide case the ICJ acknowledged, and this you have to remember, true RS and the
question was whether the acts of the VRS or the Republika Srpska, Serbian government and even the Serbian armed forces have very
specifically concerning the July 1995 Srebrenica massacre, whether strong connections beginning in the 1990s. In fact, they may be
those acts of massacre are attributable to Serbia, because Serbia has considered one single entity. The Serbian government even actually
a close relationship with Republika Srpska or VRS. financed them, even actually provided the salaries for the army of the
Republika Srpska, but remember what the question before the ICJ
So, in asking that question, remember in the Bosnian genocide case was whether or not Serbia was just responsible for the July 1995
there was a very limited question or jurisdiction that was granted to Srebrenica massacre. It's a very specific question, on a very specific
the ICJ. The question before the ICJ was whether Serbia is responsible event, and a very specific month and year. July 1995 Srebrenica
for the acts of the members Republika Srpska concerning the July massacre. The ICJ said in 1995 there is actually a loose relationship
1995 Srebrenica massacre. between Republika Srpska, and the Serbian government. In 1995 they
disagreed on several points, they disagreed on strategic military
So ang question lang is whether (acknowledged naman guys that operations, they disagreed on certain policies regarding Srebrenica
there was a Srebrenica massacre during July 1995 and it was also and regarding the whole situation between Bosnia Herzegovina and
acknowledged na ang responsible ana nga private entity was Serbia, and Montenegro.
Republika Srpska, a group of people nga naay de facto independence
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Therefore, the ICJ said although there's a prior, a very strong link responsible under international law, it is effective control that will
between the two, in July 1995 that link has weakened and therefore apply.
it cannot be said that Republika Srpska is in complete dependence
with Serbia, and therefore RS cannot be considered a de facto organ Overall control will not apply if the issue is on state responsibility, or
of Serbia. on the responsibility of the state under international law. The ICJ
acknowledged that the overall control applied in Tadic, may be
Ingon si ICJ, it would have been different if ang gi present sa amo were applicable for purposes of individual criminal responsibility or for
the events that occurred in 1991, 1990, 1992 or 1993, because it is in purposes of identifying whether the conflict is international in nature.
these years that RS had a very strong link with the Serbian But the overall control test will not apply, if the issue is about state
government. They are considered one, that RS could be considered as responsibility.
lacking any real autonomy. But unfortunately, the question is
whether the acts of the RS are in July 1995 can be attributed to Serbia. Tadic Case
And the answer is no, because as the years progressed, nag diverge Please take note that the issue in Tadic was whether Tadic is
actually ug opinions si RS and Serbia. Therefore, they have disagreed responsible individually, is criminally responsible individually. The
on several points and the court said because of that, that's evidence discussion of the overall control actually relates to whether the
that the Republika Srpska is a qualified autonomy. conflict is international in nature.

It might be a very small autonomy, it might be a very small FACTS:

independence, but independence and autonomy nonetheless and The International Criminal Tribunal for the former Yugoslavia (ICTY)
therefore wala siya ni completely depend on Serbia. Therefore, it only hears cases for individual criminal responsibility. One of those
cannot be considered a de facto organ. Therefore, there’s no prosecuted is Tadic. Tadic is one of the leaders of the armed forces of
Attribution under Article 4, because article 4 requires a de jure organ Republika Srpska that committed violations: war crimes, crimes
which must be provided under the internal law and a de facto organ against humanity, and crimes even amounting to genocide. These are
which must satisfy the complete dependence test. crimes that are penalized under international criminal law, which is
why international criminal tribunals have jurisdiction.
Alright after finding that there the Republika Srpska can’t be
considered a de jure or de facto organ under Article 4, the ICJ went But before we can consider whether an act is a war crime, before
on to analyze whether Article 8 of the ARSIWA applies. whether we can consider if there is a violation of the laws of armed
conflict, it has to be established first that the conflict is international
Article 8 applies when the act of a private entity, not otherwise an in nature. The conflict is international in nature when it involves two
organ of a state, can be considered an act of the state either because, high contracting parties, when it involves two states.
(1) the state has instructed the private entity to perform the specific
act (2) the state has directed or control of the act of private entity. In Tadic, the chamber in ICTY was constrained to establish that the
conflict was essentially between Serbia and Bosnia. Because although
So, in analyzing article 8 in the Bosnian Genocide case, the ICJ made ang contra jud sa Bosnia that time kay ang Republika Srpska, it is yet
reference to the two tests. to be established whether the contribution, the support, and
The effective control test which is already underscored in the everything that the Serbian government did or provided to the
Nicaragua case, and the overall control test, which was applied by Republika Srpska essentially made the conflict international.
the International Criminal Tribunal for the former Yugoslavia or ICTY.
The conflict would otherwise have been a non-international armed
The ICTY is not the same as the ICJ. Because in the ICJ, the disputes conflict because it will now be between Republika Srpska and Bosnia.
are between states, in ICTY, it concerns individual criminal
responsibility. In the ICTY, you will not be able to file a case against a The war or the conflict was actually between Bosnia Herzegovina and
state. In fact, guys, Tadic, decided by the ICTY and the Bosnian Republika Srpska. Take note Republika Srpska forms part of Bosnia
Genocide decided by the ICJ, both spring from the same set of facts. Herzegovina, so therefore the conflict will be categorized as a non-
They actually have similar facts. In fact, in the Bosnian genocide, the international armed conflict. Since it's non international it does not
ICJ made use of the judgments and the factual findings of the ICTY. involve two States and therefore the ICTY will not have jurisdiction.
Pareha man gud, it pertains to the same act during that troubled time The ICTY will only have jurisdiction over individuals that took part or
in history of the Balkans, Bosnia Herzegovina on one hand and Serbia that
and Montenegro on the other. participated in an international armed conflict.

So, the ICJ was constrained to make a decision as to which one will ISSUE:
apply. Would it be effective control in Nicaragua, or will it be overall Therefore, the question in Tadic is whether the conflict between
control in Tadic? The ICJ said what we will apply, when what is Republika Srpska and Bosnia has been internationalized because of
involved is state responsibility or Attribution, which will make a state the participation of Serbia.
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Overall control, but it applies on issues not related to state
RULING: responsibility. Overall control may be applicable in order to
But even if ma prove that the conflict is international because of the determine whether a conflict is international or not for purposes of
participation of Serbia by providing aid to Republika Srpska that will individual criminal responsibility and not state responsibility.
not make Serbia responsible under international law. Because ang gi-
kiha before the International Criminal tribunal was Tadic, an 2. Effective Control Test – Article 8, ARSIWA
individual. Na mention lang si Serbia because because the tribunal The effective control test under Article 8 provides that a private
wanted to show that the conflict is international for it to have entity, not considered an organ of a state, either de jure or de facto
jurisdiction over Tadic. may be connected to a state if that state effectively controlled the
specific acts of that private entity that violated international law.
It does not concern the responsibility of Serbia. It does not concern Effective control means not only control over the entity itself, but
state responsibility, it concerns individual responsibility, which is why control over the specific acts of the entity.
a lower threshold was imposed which is overall control. So, it was
enough that there was overall control exerted by Serbia over In Nicaragua the ICJ said there's evidence to show that the Contras
Republika Srpska, in order to internationalize the conflict. would have made their acts even without the participation of the US.

Internationalizing the conflict is necessary in order for the ICTY to 3. Complete Dependence Test – Article 4, ARSIWA
have jurisdiction over Tadic and to hear the case for his own violations The complete dependence test and it is required in order to show and
of the rules of war and the rules of armed conflict. But even if ma prove that a private entity which is not categorically considered as an
establish na nga international ang conflict, walay responsibility si organ of a state may be considered a de facto organ if that private
Serbia kay dili man siya pwede ma-kiha before the ICTY, kay entity is in complete dependence upon the state That's Article 4.
individuals ra man.
Q: When is control effective?
Therefore, as it stands today the ICJ is willing to admit that the overall A: When there is complete control on one side and dependence on
control may be applicable, but only for purposes of individual the other. When there is complete control by the state to a private
criminal responsibility and many other purposes. entity.

Atty Pandi’s Discussion: Complete dependence test vs Effective control test

Presentation Video: Bosnian and Tadic.
Complete Dependence Test Effective Control Test
* Video *

One of the military commanders of the Bosnian Serbs, therefore he Article 4 considers a private Under Article 8, the act of a
was prosecuted before the international court for violations of war entity as a de facto organ of one private entity is considered the
crimes. So that’s the thing with massacres, they are usually buried to state if it can be shown that act of the state, if that private
the ground, especially if there is no lone survivor who can live to tell there was complete entity is effectively controlled
the tale. dependence of that private by that state.
entity to the state.
Jabidah Massacre
Marcos, the Philippine Government was very much prepared to take about the dependence of the about control by the state
over Sabah from Malaysia. So Marcos trained a group of men from private entity.
the Southern Philippines. The plan was for them to make a
disturbance in Malaysia, and when Malaysia is at its weakest point, This is why in both the Nicaragua and the Bosnian genocide case there
the Philippines will attack. It was supposed to be a secret. However, was no finding of effective control. Because in Nicaragua the ICJ said
there was news about this secret group of men. So the Philippine the control must be on each specific aspect of operation that led to
Government Massacred everyone, just to bury this on the ground and the international law violation. The control must be with respect to
so that knows about it. It was a good thing that that guy survived by each operation that led to the violation. it's not enough that there be
pretending to be dead among the corpses, because he was able to tell overall control over the entity. It's not enough for example that the
the story of the Jabidah Massacre otherwise, we would not have United States has overall control over the contras. It must be shown
known that the Philippine Government promised money, to a group by concrete evidence that the United States has control over the
of impoverished Tausug, to claim Sabah. Only to be sacrificed in one specific acts committed by the Contras that led to the violation of
stroke and one fire in a massacre. international law.

CONTROL TESTS (Under the Law of State Responsibility) The same is true in the Bosnian genocide case it's not enough that the
1. Overall Control Test – Article 8, ARSIWA Serbian government has overall control over the Republika Srpska, it

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has to be shown by concrete evidence that the Serbian government
effectively controlled the July 1995 Srebrenica massacre. Examples of consent given by a State which has the effect of
rendering certain conduct lawful include commissions of inquiry
In both Nicaragua and in the Bosnian genocide case, the states that sitting on the territory of another State, the exercise of jurisdiction
have been imputed were not found to have controlled effectively the over visiting forces, humanitarian relief and rescue operations and
specific acts in question. The United States did not effectively control the arrest or detention of persons on foreign territory.
the specific violations of international law committed by the Contras.
That the Serbian government did not effectively control the July 1995 2. SELF-DEFENSE
Srebrenica massacre by the Republika Srpska. Article 21. Self-defense - The wrongfulness of an act of a State is
precluded if the act constitutes a lawful measure of self-defense
2. Was that internationally wrongful act justified? taken in conformity with the Charter of the United Nations.
Finally, even assuming that the state committed an internationally
wrongful act, the state actually has defenses. These defenses are Article 21 reflects the generally accepted position that self-defense
what we call Circumstances Precluding Wrongfulness (CPW). precludes the wrongfulness of the conduct taken within the limits laid
down by international law. The reference is to action “taken in
They are called circumstances precluding wrongfulness because there conformity with the Charter of the United Nations”. In addition, the
is already an admission that there's a violation of international law, term “lawful” implies that the action taken respects those obligations
but what the state does in effect, in invoking CPW is to show that the of total restraint applicable in international armed conflict, as well as
violation was excused, to say it was justified. compliance with the requirements of proportionality and of
necessity inherent in the notion of self-defense.
Take note, for example, that Gabčíkovo-Nagymaros Project case,
Hungary invoked that its termination of the 1977 treaty was justified 3. COUNTERMEASURES
because of either the material breach or either because of rebus sic Article 22. Countermeasures in respect of an internationally
stantibus and ICJ did not accept those or justifications. Hungary had a wrongful act - The wrongfulness of an act of a State not in conformity
second layer of argument, Hungary said even assuming I violated with an international obligation towards another State is precluded if
international law by terminating the project and in effect violating the and to the extent that the act constitutes a countermeasure taken
1977 treaty, this violation is actually justified because of necessity and against the latter State in accordance with chapter II of Part Three.
because of a countermeasure. So, in effect Hungary was invoking his
circumstance precluding wrongfulness. In certain circumstances, the commission by one State of an
internationally wrongful act may justify another State injured by that
In your notes* I enumerated all of those circumstances and even act in taking non-forcible countermeasures in order to procure its
provided for the elements that have to be complied with. Take note cessation and to achieve reparation for the injury.
however that a circumstance precluding wrongfulness only In the Gabcíkovo-Nagymaros Project case, ICJ clearly accepted that
temporarily justifies nonperformance of the obligation. It does not countermeasures might justify otherwise unlawful conduct “taken in
terminate the obligation; it merely suspends the obligation in the response to a previous international wrongful act of another State
meantime. When the circumstance already ceases to exist the and directed against that State”, provided certain conditions are met.
obligation resumes.
Conditions: requirement of proportionality, the temporary or
*The following is from Atty RVP’s notes on CPWs. reversible character of countermeasures, and the status of certain
CIRCUMSTANCES PRECLUDING WRONGFULNESS (CPWS) fundamental obligations which may not be subject to
Nature of CPWs countermeasures.
The existence in a given case of a circumstance precluding
wrongfulness provides a shield against an otherwise well-founded 4. FORCE MAJEURE
claim for the breach of an international obligation. Article 23. Force majeure
1. The wrongfulness of an act of a State not in conformity with an
CPWs operate as a shield rather than a sword. CPWs do not annul or international obligation of that State is precluded if the act is due to
terminate the obligation; rather they provide a justification or excuse force majeure, that is the occurrence of an irresistible force or of an
for non-performance while the circumstance in question subsists. unforeseen event, beyond the control of the State, making it
materially impossible in the circumstances to perform the obligation.
KINDS OF CIRCUMSTANCES PRECLUDING WRONGFULNESS 2. Paragraph 1 does not apply if: (a) the situation of force majeure is
1. CONSENT due, either alone or in combination with other factors, to the conduct
Article 20. Consent - Valid consent by a State to the commission of a of the State invoking it; or (b) the State has assumed the risk of that
given act by another State precludes the wrongfulness of that act in situation occurring.
relation to the former State to the extent that the act remains within
the limits of that consent.
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Force majeure differs from a situation of distress (Art 24) or necessity 5. DISTRESS
(Art 25) because the conduct of the State which would otherwise be Article 24. Distress
internationally wrongful is involuntary or at least involves no 1. The wrongfulness of an act of a State not in conformity with an
element of free choice. international obligation of that State is precluded if the author of the
A situation of force majeure precluding wrongfulness only arises act in question has no other reasonable way, in a situation of distress,
where three elements are met: (a) the act in question must be of saving the author’s life or the lives of other persons entrusted to
brought about by an irresistible force or an unforeseen event; (b) the author’s care.
which is beyond the control of the State concerned; and (c) which 2. Paragraph 1 does not apply if:
makes it materially impossible in the circumstances to perform the (a) the situation of distress is due, either alone or in combination with
obligation. other factors, to the conduct of the State invoking it; or
• The adjective “irresistible” qualifying the word “force” emphasizes (b) the act in question is likely to create a comparable or greater peril.
that there must be a constraint which the State was unable to avoid
or oppose by its own means. Article 24 deals with the specific case where an individual whose acts
• To have been “unforeseen” the event must have been neither are attributable to the State is in a situation of peril, either
foreseen nor of an easily foreseeable kind. personally or in relation to persons under his or her care. The article
• The “irresistible force” or “unforeseen event” must be causally precludes the wrongfulness of conduct adopted by the State agent in
linked to the situation of material impossibility, as indicated by the circumstances where the agent had no other
words “due to force majeure . . . making it materially impossible”. reasonable way of saving life.
• Material impossibility of performance giving rise to force majeure Unlike situations of force majeure dealt with in Article 23, a person
may be due to a natural or physical event (e g stress of weather acting under distress is not acting involuntarily, even though the
which may divert State aircraft into the territory of another State, choice is effectively nullified by the situation of peril. Nor is it a case
earthquakes, floods or drought) or to human intervention (e g loss of of choosing between compliance with international law and other
control over a portion of the State’s territory as a result of an legitimate interests of the State, such as characterizing situations of
insurrection or devastation of an area by military operations carried necessity under article 25. The interest concerned is the immediate
out by a third State), or some combination of the two. one of saving people’s lives, irrespective of their nationality. The
arbitral tribunal then examined France’s behavior in accordance with
In the “Rainbow Warrior” arbitration, France relied on force majeure these legal considerations It concluded that:
as a circumstance precluding the wrongfulness of its conduct in
removing the officers from Hao and not returning them following The circumstances of distress, of extreme urgency and the
medical treatment. France could not invoke the excuse of force humanitarian considerations invoked by France may have been
majeure to preclude the wrongfulness of the removal of Major Mafart circumstances excluding responsibility for the unilateral removal of
from the island of Hao for health reasons, in violation of the Major Mafart [from the island of Hao]
agreement between the Parties. The tribunal dealt with the point without obtaining New Zealand’s consent [as provided for by the
briefly: agreement between the Parties], but clearly these circumstances
entirely fail to justify France’s responsibility for the removal of
New Zealand is right in asserting that the excuse of force Captain Prieur and from the breach of its obligations resulting from
majeure is not of relevance in this case because the test of its the failure to return the two officers to Hao (in the case of Major
applicability is of absolute and material impossibility, and because a Mafart once the reasons for their xxx)
circumstance rendering performance more difficult or burdensome
does not constitute a case of force majeure. 6. NECESSITY
Article 25. Necessity
Force Majeure vs. Supervening Impossibility of Performance 1. Necessity may not be invoked by a State as a ground for precluding
Force majeure justifies non-performance of the obligation for so long the wrongfulness of an act not in conformity
as the circumstance exists; supervening impossibility justifies the with an international obligation of that State unless the act:
termination of the treaty or its suspension in accordance with the (a) is the only way for the State to safeguard an essential interest
conditions laid down in article 61. The former operates in respect of against a grave and imminent peril; and
the particular obligation, the latter with respect to the treaty which (b) does not seriously impair an essential interest of the State or
is the source of that obligation. Just as the scope of application of States towards which the obligation exists, or of the international
the two doctrines is different, so is their mode of application. Force community as a whole.
majeure excuses non-performance for the time being, but a treaty is 2. In any case, necessity may not be invoked by a State as a ground
not automatically terminated by supervening impossibility: at least for precluding wrongfulness if:
one of the parties must decide to terminate it. (a) the international obligation in question excludes the possibility of
invoking necessity; or
(b) the State has contributed to the situation of necessity.

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The plea of necessity is exceptional in a number of respects: • According to paragraph 2 (b), necessity may not be relied on if the
• Unlike consent (Art 20), self-defense (Art 21) or countermeasures responsible State has contributed to the situation of necessity. Thus,
(Art 22), it is not dependent on the prior conduct of the injured State. in the Gabcíkovo-Nagymaros Project case, ICJ considered that
• Unlike force majeure (Art 23), it does not involve conduct which is because Hungary had “helped, by act or omission to bring about”
involuntary or coerced. the situation of alleged necessity, it could not then rely on that
• Unlike distress (Art 24), necessity consists not in danger to the lives situation as a circumstance precluding wrongfulness.
of individuals in the charge of a State official, but in a grave danger • For a plea of necessity to be precluded under paragraph 2 (b), the
either to the essential interests of the State or of the international contribution to the situation of necessity must be sufficiently
community as a whole. substantial and not merely incidental or peripheral.
A state of necessity arises where there is an irreconcilable conflict • The Court ultimately concludes that, with respect to both
between an essential interest on the one hand and an obligation of Nagymaros and Gabcíkovo, the perils invoked by Hungary, without
the State invoking necessity on the other. prejudging their possible gravity, were not sufficiently established in
Necessity will only rarely be available to excuse non-performance of 1989, nor were they ‘imminent’; and that Hungary had available to it
an obligation and that it is subject to strict limitations to safeguard at that time means of responding to these perceived perils other than
against possible abuse. the suspension and abandonment of works with which it had been
entrusted. What is more, negotiations were underway which might
have led to a review of the Project and the extension of some of its
A state of necessity is a ground recognized by customary international time-limits, without there being need to abandon it The Court infers
law for precluding the wrongfulness of an act not in conformity with from this that the respect by Hungary, in1989, of its obligations under
an international obligation. Such ground for precluding wrongfulness the terms of the 1977 Treaty would not have resulted in a situation
can only be accepted on an exceptional basis. ‘characterized so aptly by the maxim summum jus summa injuria’.

The state of necessity can only be invoked under certain strictly 3. What is the consequence of the internationally wrongful act?
defined conditions which must be cumulatively satisfied; and the REPARATION FOR INJURY
State concerned is not the sole judge of whether those conditions So, if wala naka successfully invokes ang state of any of the
have been met. The following basic conditions are relevant: circumstances precluding wrongfulness, the third part of state
responsibility is consequences of breach. If there is a finding under
(1) It must have been occasioned by an “essential interest” of the international law that a state has breached an international obligation
State which is the author of the act conflicting with one of its there must be consequences. Usually, the consequences must be in
international obligations; the form of reparations.
(2) That interest must have been threatened by a “grave and
imminent peril”; Article 34, ARSIWA - Full reparation for the injury caused by the
(3) The act being challenged must have been the “only means” of internationally wrongful act shall take the form of restitution,
safeguarding that interest; compensation and satisfaction, either singly or in combination, in
(4) That act must not have “seriously impaired an essential interest” accordance with the provisions of this chapter.
of the State towards which the obligation existed; and
(5) The State which is the author of that act must not have FORMS OF REPARATION
“contributed to the occurrence of the state of necessity”. 1. Compensation - covers any financially assessable damage
including loss of profits insofar as it is established.
The peril has to be objectively established and not merely 2. Restitution - means to re-establish the situation which
apprehended as possible. In addition to being grave, the peril has to existed before the wrongful act was committed.
be imminent in the sense of proximate. 3. Satisfaction - consists in an acknowledgement of the
breach, an expression of regret, a formal apology or another
• Thus, in the Gabcíkovo-Nagymaros Project case, the Court was not appropriate modality
convinced that the unilateral suspension and abandonment of the
Project was the only course open in the circumstances, having regard STATE RESPONSIBILITY and OBLIGATIONS ERGA OMNES
in particular to the amount of work already done and the money Article 48(1)(A), ARSIWA - A non-injured State may invoke the
expended on it, and the possibility of remedying any problems by responsibility of another State 'if the obligation breached is owed to
other means. the international community as a whole'.
• In the Gabcíkovo-Nagymaros Project case the Court further noted
that the invoking State could not be the sole judge of the necessity, Atty’s Discussion:
but a measure of uncertainty about the future does not necessarily Reparations may be by compensation, magbayad, or cessation,
disqualify a State from invoking necessity, if the peril is clearly undangon nimo ang illegal act. There's another one form of
established on the basis of the evidence reasonably available at the reparation, and that is acknowledgement. Dawaton lang sa state nga
time. nakasala siya, which is a very symbolic form of reparation. It’s not in
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the form of compensation, it's not in the form of cessation, especially Gamiton nato ang wall advisory opinion example:
if nahuman naman gyud, na terminate naman gyud, but it’s in the 1. Was there an internationally wrongful act?
form of an acknowledgment nga naka sala ko. For there to be an internationally wrongful act, you have to ascertain
whether there is a conduct that breaches international law. Again,
Sometimes it's enough, it's sufficient that the other party you refer to the primary rules. The primary rules that have been
acknowledged that what the other party did was wrong. An breached in this case would be the rules on the Geneva Convention
acknowledgement may actually amount to an apology. and the international covenant on civil and political rights which
provides for the right to self-determination and even the UN charter.
One of the forms of reparation is cessation meaning, undangi,
cessation. You cease your internationally wrongful act, stop it, So, there was a breach of an international obligation or a primary rule.
undangi na, because there's already a pronouncement from the ICJ Is the breach attributable to Israel? Very obvious, because it is Israel
that the act in question is internationally wrongful, that it violates itself which actually constructed the wall. It's the organ of the
international law. Therefore, ang mahitabo undangan nimo. government itself that constructed the wall. So, there is an
internationally wrongful act (IWA).
Now one of the reparations under international law is kaning:
“cessation, and assurances of non-repetition.” I so love this phrase. 2. Was that internationally wrongful act justified?
One of the consequences is cessation and assurances of non- Israel tried to justify its wrongful app by invoking self-defense, which
repetition: stop it now and please assure is one of the circumstances precluding wrongfulness. The ICJ said self-
the other state that he will not do the same violation again. defense will not apply in this case because there is no armed attack
against Israel. The threat that Israel was trying to portray is not
This is one of the many other consequences of the breach and many effective. There was no justification. Israel did not succeed in invoking
other forms of reparation. Again, naa na gihapon sa ARSIWA ang a circumstance precluding wrongfulness, which would have excused
forms of reparation either compensation, cessation assurances of its illegal act.
non-repetition and restitution. Since Israel did not succeed in invoking a circumstance precluding
wrongfulness which was self-defense the next question is…
Restitution, you return, you go back to the original condition prior to 3. What is the consequence of the internationally wrongful act?
the breach. But there are instances man gud where the damage has The consequence is cessation, to stop doing the internationally
been done and there is nothing to return anymore and there's wrongful act. I-undang ang imohang construction of the wall.
nothing to repair anymore. </3 So dili applicable na applicable ang
restitution. In that instance pwede na compensation nalang or even So now we have completed the circle. Na complete nato ang all topics
pwede acknowledgement or even pwede na assurances of non- on state responsibility.
repetition.
I actually made another set of notes, this time more specific about the
RECAP: So that's how State Responsibility works. relevant principles and control test in the state in the area of state
1. Analyze whether there was an internationally wrongful act. responsibility and I will share these notes in your respective on your
Attribution is very important in that analysis Schoology accounts. (SEE: Module 7 Notes pdf file in Schoology)
2. Identify whether that wrongful act is justified. Which means
whether any of the circumstances precluding wrongfulness is “All right, just a gentle reminder to everyone and to all of us, that the cases you read, that
the ICJ cases that we are reading, are not purely for academic purposes. They actually deal
applicable.
with real lives. They actually deal with real events, affecting real lives and people who are
3. If there is a finding that the breach is not justified or the yet to forget the massacre, who are yet to fight for justice and who are yet to actually just
circumstance precluding wrongfulness has already ceased, you will find answers to the injustices that they have gone through.
now start your analysis on what are the consequences of the breach.
So that's just a very gentle reminder. Again, a reminder that there may be so much
injustice in this world, but that's reality that we have to face.
In the Wall Advisory Opinion, the consequence of the breach was
cessation. Israel was ordered to cease from further constructing the So, if there's one thing that I'm leaving you in PIL, that would be that it's enough that we
learn about all of these things and it's enough that we make a conscious effort to at least
wall. Mao na ang gi provide na remedy, na form of consequence sa
inform others about what's going on around the world, because there's so much of a
ICJ, because continuing man ang breach. If the breach is continuing bigger world and we are so much bigger than our usual selves.
then cessation is a very appropriate remedy para ma undangan na.
There’s so much going on around the world and it's already very enriching, meaningful,
and helpful that we at least exert a very small conscious effort to read about them and
One of the consequences that the ICJ acknowledged is for the rest of make sure that we are informed about history and what it tells us and what it should not
the international community to acknowledge the illegality of the act tell us in the future. That concludes our module on state responsibility.”
and the illegality of the wall. So mao na ang part sa Wall Advisory -Atty. Rashid V. Pandi, 2020

Opinion that dealt with the question of state responsibility. It actually

dealt with the consequences of the breach.

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MODULE 8 EXCEPTIONS:
International Regulation of the Use of Force 1. Chapter 7 UN CHARTER – The UN security council
authorizes the use of force. The only body in international law that
A. Chapter 13 of Henriksen (pp 261 – 283) can authorize the use of force against a state or against a non-state
(From Atty RVP’s Notes, PPT, and Discussions) entity. This is by virtue of a resolution that authorizes the use of force.
2. Self-defense – the victim state can use force to respond to
The prohibition on the use of force is found in Article 2(4) of the UN an armed attack coming from another state.
Charter:
All Members shall refrain in their international relations from the Article 2 (4) is the archnemesis of Article 51 of the UN Charter, nothing
threat or use of force against the territorial integrity or political here in the UN Charter shall impair the inherent right of individual or
independence of any state, or in any other manner inconsistent with collective self-defense.
the Purposes of the United Nations.
It is an inherent right, which means that it is a customary international
Threat or Use of Force law, which means that the right exists even if it is not codified under
Threat or use of force is characterized as coercive and aimed at Article 51. Even without Article 51 self-defense is available as a
compelling the state to adopt a certain conduct of action.3 The remedy. The one who can invoke self-defense is not only the victim
prohibition against it is customary and peremptory. state but another state who can exercise self-defense for and on
behalf of the victim state.
Political Independence and Territorial Integrity
Political independence specifically relates to the right of the state to Collective Self Defense Requisites: Nicaragua Case
fully and freely exercise the range of powers possessed by it as a
sovereign nation. RIGHT OF SELF-DEFENSE UNDER ARTICLE 51 OF THE UN CHARTER
Article 51 of the UN Charter provides:
The travaux preparatoires of Article 2(4) of the UN Charter and the Nothing in the present Charter shall impair the inherent right of
initial draft at Dumbarton Oaks show that the terms “territorial individual or collective self-defence if an armed attack occurs against
integrity or political independence” were used to emphasize a Member of the United Nations, until the Security Council has taken
protection to smaller states, not qualify Article 2(4) of the UN Charter. measures necessary to maintain international peace and security.
This broader approach emphasizes the absolute nature against the Measures taken by Members in the exercise of this right of self-
prohibition while a restrictive interpretation results in aggressors defence shall be immediately reported to the Security Council and
invoking absence of intent to violate territorial integrity or political shall not in any way affect the authority and responsibility of the
independence. Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
PERMISSIBLE THREAT OR USE OF FORCE international peace and security.
The prohibition against the use of force is not absolute. International
law permits States to use force in the exceptional circumstance of: Self-defense requires an armed attack against the state and that the
1) UN Security Council authorization, or response be necessary and proportional.
2) through the exercise of their right to self-defense in Article 51 of
the UN Charter. The Concept of Armed Attack
While modern weapons pose emerging threats, the ICJ’s standard of
Thus, unless the threat or use of force is justified under Article 51 of armed attack is sending by or on behalf of a state of groups which
the UN Charter or permitted under Chapter VII thereof, it shall be carry out acts of armed force against another state of such gravity as
considered in contravention of international peace and security and to amount to an actual armed attack has been consistently retained
thus illegal. in its decisions.

Atty’s Discussion: The Needle Prick Doctrine or the Accumulation of Events Test
Article 2 (4) of the UN Charter, members shall refrain in The Needle Prick doctrine provides that ‘continuous pin-prick
international relations from the threats or the use of force against assaults’ that are part of a general strategy could be appraised in their
the territorial integrity or political independence of any state. totality as an armed attack. Thus, a series of minor incidents, taken
together, can be said to reach the threshold of an armed attack.
This is a customary international law, and also a Jus cogens Norm. The
prohibition against the use of force is a Jus Cogens Norm; it says that This doctrine was much discussed by the litigants in the Cameroon–
threats or use of force is actually illegal under international law. Nigeria, DRC–Uganda, and Oil Platforms cases. The Court did not
expressly pronounce on the matter, but equally seemed inclined to
accept it – hence its statement, in Oil Platforms, that ‘even taken

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cumulatively’ a series of incidents did not qualify as an armed attack The use of nuclear weapons will actually negate the whole exercise of
on the United States. self-defense. How can you respond if your armed forces or country is
already reduced to ashes? It will completely cripple down the
Anticipatory, pre-emptive, or preventive self-defense operation of the state so attacked.
The UN Charter is not a suicide pact – State Parties are not required Anticipatory self-defense is limited to instances wherein the
to remain passive in the face of threats to their existence. imminence of an attack by the use of nuclear weapons is possible.
Nuclear weapons only.
Accordingly, a right to anticipatory self-defense exists when an attack Anticipatory self-defense may be accepted in circumstances wherein
is believed to be imminent. To read Article 51 otherwise, especially in there is an imminent threat of an attack by the use of nuclear
an age of nuclear weapons, guarantees the aggressor's right to the weapons.
first strike. Anticipatory measures have always been an intrinsic part
of the right to self-defense, evidenced in judicial authority and in Recap:
State practice. This right, according to the drafting history of the UN There are only 2 Exceptions in the Use of Force:
Charter, is upheld and not extinguished by Article 51. 1) Authorization by the UN Security Council
2) Exercise of self-defense.
The temporal dimension of anticipatory self-defense is changed by
nuclear weapons. What it considered “imminent” for a conventional
weapon cannot apply to a nuclear weapon, which has effects that are COLLECTIVE SELF-DEFENSE
instant, widespread and generational. These differences mean that WHAT IS THE REQUIREMENT? Resort to collective self-defense
the requirements outlined in Caroline—drafted decades before the requires the attacked State to declare itself under attack and make a
advent of the nuclear age—are an inappropriate lens to review request for assistance.
contemporary threats to international peace and security.

Some scholars do not recognize substantial difference between USE OF FORCE PURSUANT TO A UN SECURITY COUNCIL RESOLUTION
anticipatory, pre-emptive and preventive self-defense as they all The UN Security Council, in terms of Article 42 of the UN Charter and
presuppose an imminent attack that the state seeks to address. its established practice can authorize States to use force.
Nonetheless, the UNSC Resolution must satisfy the three
Other posit that there is no legal framework for anticipatory self- preconditions typical of authorization under Article 42:
defense due to the extreme difficulty of determining the imminence 1. First, the Security Council must act “under Chapter VII of the UN
of an armed attack. Indeed, leaders often give catching comments Charter.”
against other states without any intention of attacking. 2. Second, the UNSC must determine a threat to international peace
and security.
INITIATION OF SELF-DEFENSE 3. Third, the resolution must clearly outline the extent, nature and
1. Pre-emptive/Preventive Self Defense - this refers to the right to objective of the intended military action.
act against emerging threats before they are fully formed.
The Security Council is the only body capable of determining when its
It cemented the status of preventive self defense as an illegal form of Chapter VII powers come into operation and which measures to take
self-defense under international law. It fosters a culture of paranoia. under Article 42 of the Charter. Thus, parties are precluded from
asking the ICJ to “to overrule or undercut” the Council’s decision. The
2. Anticipatory Self-defense. – When an attack is believed to be only recognized limits on the Council’s powers are norms of jus
imminent. cogens.
How can we say that the attack is imminent? What is the difference
between imminent threat and emerging threat? Basically, something For instance, the Security Council’s recognition of events in Odassara
semantic. as “threat[ening] to the peace” is a political appreciation, not subject
The anticipatory self-defense framework is actually applicable when to any review by this Court. Not only is there no judicial yardstick for
the possible attacking state has a nuclear weapons program. determining threats to peace and security, but in performing such
There is no anticipatory self-defense when it only involves traditional review this Court would usurp the Council’s primary function.
weapons (tanks, missiles, fighter jets and airplanes), there is no
anticipatory self-defense. You will have to wait for an actual armed Article 39, UN Charter
attack. “The Security Council shall determine the existence of any threat to
But, when the state in question, has already issued statements, the peace, breach of the peace, or act of aggression and shall make
demonstrating its willingness to use nuclear weapons, has positioned recommendations, or decide what measures shall be taken in
the nuclear weapons to your coordinates, launched missile tests accordance with Articles 41 and 42, to maintain or restore
within its locality. international peace and security.”

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Article 41, UN Charter
“The Security Council may decide what measures not involving the
use of armed force are to be employed to give effect to its decisions, Conditions for Use of Force and Exercise of Self-Defense
and it may call upon the Members of the United Nations to apply such 1) Necessity
measures. These may include complete or partial interruption of 2) Proportionality
economic relations and of rail, sea, air, postal, telegraphic, radio, and
other means of communication, and the severance of diplomatic THE REQUIREMENTS OF NECESSITY AND PROPORTIONALITY IN JUS
relations.” AD BELLUM
The Caroline incident sets out the requirements of necessity and
Article 42, UN Charter proportionality in self-defense. Necessity exists when the situation is
“Should the Security Council consider that measures provided for in instant, overwhelming, leaving no choice of means and no moment of
Article 41 would be inadequate or have proved to be inadequate, it deliberation while proportionality requires that the means employed
may take such action by air, sea, or land forces as may be necessary must not be unreasonable or excessive.
to maintain or restore international peace and security. Such action
may include demonstrations, blockade, and other operations by air,
sea, or land forces of Members of the United Nations.” Atty Pandi:
Module 8 pertains to the regulation of the use of force. There are
CONTENTIOUS USE OF FORCE some cases yet to be discussed and some historical events that
1. Rescue of Foreign Nationals Abroad. - the attacks on the actually shape the laws regarding the use of force which basically
citizens of a State qualify as attacks on the State itself. pertains to the Caroline incident. It’s not a case that reached the
A state would want to rescue its nationals that are trapped in another international tribunals because ultimately, both states amicably
country, but only limited, for the purpose of rescuing the foreign resolved the matter. The statements that have been issued by both
national abroad. of the representatives of the states continue to govern the use of
force and standards that must be complied with before the state may
2. Humanitarian Intervention. – non-Council-sanctioned actually use force against other states.
international force to stop massive human rights violations
perpetrated against a civilian population. What powers are granted to the UN Security Council under Chapter
a.k.a. R2P (Responsibility to Protect) 7 of the UN charter?
More controversial. Some states use force against the territory of
another state in order to put an end to massive human rights Art 39 of the UN Charter expresses what we call the determination
violations perpetrated against a civilian population. reaction power of the UNSC. We have the power first to determine
whether there is a breach or a threat to international peace and
Some states say that we have a moral responsibility, in order to put security and upon finding that there is such breach upon making that
an end to massive human rights violations on the ground usually determination, the UNSC can proceed with the kind of reaction that
perpetrated by the mother government or by the state. There was a is warranted by the circumstances. Aside from determining whether
time that the concept of R2P is so popular, that certain states actually there is a breach or whether there is such a threat, UNSC is also given
use force against the territory of another state in order to put an end the power to turn in the appropriate response to that threat.
to massive human rights violations on the ground.
The fact that you are a member of the UN entitles you to seek help
That use of force is controversial because: and provide help. No treaty needed.
1) it is not sanctioned by the UN Security Council (UNSC);
2) there is no armed attack that could justify self-defense. Caroline Test/ Caroline case

Why is it still not accepted? Why is use of force for purposes of This is simply an incident. It is not borne out of a judicial process or a
humanitarian convention still unaccepted and controversial? proceeding and it never even reached the courts because both UK and
US amicably settled the case but the pronouncement of Mr. Webster
It is because state practice is not uniform, and because it is primarily in describing what necessity is that it should be instant,
motivated by political consideration. States only intervene when they overwhelming, offering no means of choice, and moment of
have a vested interest on the matter. States only intervene when it’s deliberation is what technically necessity is all about. Therefore,
politically convenient, and they can get something out of it, they are before you can launch an attack, you must comply with the necessity
not intervening because of their moral belief, no, they are primarily requirement. Meaning, there should be no other way for you to
motivated by something else. Because the actions are motivated by safeguard your interest and no other moment of deliberation.
political motivations, political expediency and vested interest, Proportionality is easy because the extent of the damage caused must
therefore, it is not accepted. Selective choices negate its status as an be proportionate and commensurate to the damage allegedly
accepted use of force. suffered which is why you are exercising the right to self-defense. So
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under the circumstances, the US was complaining because they attack, we referred to the attack on the Sea Isle City. When we speak
bombed right away instead of intercepting the Caroline steamship, or of the second attack, we referred to mining of the USS Samuel
they could have crippled the operations without launching an attack. Roberts. And because there were two attacks allegedly against the
There was no necessity for such draconian and urgent measures. But US, the US also made two attacks as an exercise of self-defense. So,
then again, it was not resolved but the standards remain relevant each of these attacks must be subjected to the test of necessity and
until today. proportionality among many others.

In the Jus Ad Bellum framework, before resorting to the use of Question: You said the US made excessive counterattacks, why do
force/attack, there must be a compliance with the necessity and you say so?
proportionality in the process of entering into conflict. Question: Whether the Iranian government was responsible for the
attack. And whether the US was justified in responding with another
Don’t be confused because while the conflict is ongoing and in the attack. What was the evidence? Why was it insufficient?
conduct of hostilities, there is another proportionality requirement:
The Proportionality Principle. This is a different requirement under Atty Pandi: Again, there were two attacks allegedly from Iran. First is
international law. the attack in the Sea Isle City and the attack happened while the
vessel was in dock in Kuwaiti waters. Second, the naval vessel of the
There is no requirement for the UNSC to exhaust all peaceful USA while it was traversing Bahraini waters struck a mine. The US
remedies. In fact, it has the discretion to determine which is the blamed Iran for both attacks because there was a prior dispute
most appropriate response like will it be non-forcible measures between them. So, the US being the international police that it is and
(Under 41) or forcible measures (Under 42). They can actually the world’s protector, took the war on behalf of Kuwait and claimed
authorize use of force right away. Then again, for it to be an example that it exercised the right to self-defense. Does the US have the right
of resorting to non-forcible measures, that is the time that they will to self-defense?
resort to diplomatic dialogues first before authorizing actual use of
force. In fact, there is an ongoing exchange of war between Armenia, The vessel was actually re-flagged. The attack on the Sea Isle City
Turkey, and Azerbaijan on the other. We have yet to wait for the amounts to an attack against itself. Even if it is only one attack. But
categorical pronouncement of the UNSC. President Macron of France just because you were attacked, does not mean you have to put the
has already condemned the Turkish actions but France is a member blame right away without ascertaining who really attacked you. The
of the UNSC. The UNSC will have to adapt as a collective or collegial US was not able to prove that the attack came from Iran. So, US
body before it can authorize such measures. The UNSC has the sole offered 2 evidences:
discretion whether what kind of reaction is warranted under the a. The missile that was used to attack the Sea Isle City was a
circumstances. silkworm missile which was used by Iran before. So, it must be coming
from Iran.
Oil Platforms Case b. Testimony from a Kuwaiti military official. According to the
(Recits) Kuwaiti military official, he saw that the missile was thrown
Atty Pandi: Kuwaiti vessels were reflagged and they were originally of overboard and he knows for a fact that the missile came from Farur
Kuwait origin. Kuwait knew that the US is more powerful, they Island which is controlled by the Iranian government.
decided to reflag their vessels so that they no longer fly the Kuwaiti
flag but the American flag. However, the US did not offer even a fragment of silkworm missile
allegedly used by the Iranian government. Second, the testimony was
not given weight by the court because it was offered 15 years after
Oil Platforms Case the incident. That’s why the US has no right to exercise self-defense.
Question: Was the US justified in exercising self-defense in that first You cannot discuss necessity and proportionality if there is no armed
incident? Was the US justified in claiming that it was exercising self- attack to begin with. When the USS Samuel Roberts struck a mine,
defense when it attacked the Iranian complexes, the offshore Iran was again blamed by the US. Was it really Iran?
complexes? Was Iran responsible for the attack?
ICJ said that because Iran and Iraq are in no war, both actually laid a
Question: Why did you say that there was no adequate evidence to series of mining operations in the Persian Gulf to actually protect their
claim Iran as responsible for the attack on the city? What did the US individual interest. Iran could not have laid the mines that struck
prove before the court which the court found to be insufficient? Samuel Roberts. But then ICJ said that even assuming that it was Iran,
the attack or the self-defense exercised by the US is not proportionate
Atty Pandi: Let us not confuse the two attacks. The first attack was and there was no military necessity. Why? Because necessity requires
against the Sea Isle City, the second was mining of the USS Samuel not only that you exhaust all moments of deliberation, necessity is
Roberts. Make sure that you are able to dichotomize both attacks also concerned with the target of the force used.
because it's different, the requirements are different as well as the
severity and the extent of the damage. When we speak of the first
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The ICJ said, sure there is a presence of armed forces from Iran in be a “Peace Treaty”. However, a peace treaty is a thing of the past,
those complexes but only for purposes of defensive action, not nowadays, relationships end with a ‘formal declaration’, sometimes,
offensive. And therefore, no necessity. The US attacked civilian you just know that it formally ended.
objects. But even if there was necessity, there was no proportionality
because the USS Samuel Roberts struck a mine, it did not sink, no loss Nowadays, armed conflict can end, even without peace treaties, if
of life was occasioned. Therefore, the counterattacks by the from the actions of the parties, it no longer shows that a war is
Americans were disproportionate in relation to the damages suffered ongoing. The Armistice Agreement in Korea between the North and
by the USS Samuel Roberts. The Operation Praying Mantis is very the South, is sometimes considered as a peace treaty in itself. It is
popular because the USA has taken so much pride in their display of NOT formally called a peace treaty, although it's an armistice
naval and air force. agreement, but scholars consider it to be a peace treaty because
there has been no war or armed conflict since then. In fact, for the
*Atty. Pandi plays the video about the US and Iran* first time, North Korea sent its delegates to the Olympics, so there is
*Students ask questions* now a healthy relationship. Circumstances disclose that the war has
Q: Is there any retroactive effect in International Law? already ended. The general consensus is that the war has ended.
Atty. Pandi: ICJ hears facts that are prior to the filing. There will be a
critical date for the facts, the law applicable will be the law applicable But, if you are required to prove (as an international lawyer) that the
to both parties at the time of the dispute. war has not ended, there is always a way to reason out.

Q: Can coronavirus serve as an attack? Q: Are Ukraine and Russia engaged in an International armed
Atty. Pandi: No, the definition of armed attack is traditional, there has conflict?
to be an involvement of the armed forces. But they can be held liable *Student Recits*
under International Law on the ground that they violated provisions Q: What is international armed conflict?
of the WHO Constitution. A: It occurs when one or more states recurs when 2 or more states
have recurred to another state regardless of the reasons of
Note: The States can always, always amend the UN-SC power to veto compensity of their confrontation.
by two-thirds of the member-States. Q: Given that standard. How does it apply?
A: Yes. There has been international armed conflict since 2014
Discussion and Recits on Guide Questions in Henriksen Chapter on between UK and Russia in parallel in going to international conflict
“The Law of Armed Conflict” between Ukrainian rebels. Russia is occupying Crimea there was
Q: 1. Why may one reasonably consider the law of armed conflict as centered around the status region of Crimea and Don bas. The
a pragmatic discipline? Russian president Putin, the Crimean Peninsula were aimed to freely
*Student Recits* expressed their will. While Ukraine and other nations argue such
A: It offers a balanced solution that takes into account both military intervention is a violation of such Ukraine sovereignty.
necessity and humanitarian sentiments.
Atty Pandi’s Discussion
Q: why do you think there is a need to balance military and Q: Are Ukraine and Russia engaged in an international armed
humanitarian necessity? conflict?
A: There will always be 2 parties like the combatants and civilians. So A: Yes.
both will be protected. History: Before, Ukraine formed part of the USSR, then it separated.
Russia has residual kalagot from breaking away from Russia. In the
Q: 2. Has International armed conflict between North and South process of breaking up, Ukraine acquired the city of Crimea, which
Korea been brought to an end? consists of 97% of Russian Nationals/Descent. Russia now wants to
*Student Recits* take Crimea back, it annexed and attacked by sending tanks and
A: If there was a treaty or unexpressed declaration from both parties, fueled the instability and civil strife in Crimea, to justify the right to
it would have ended. self-determination.

Q: Do you think it is terminated or suspended? The problem is, the Right to Self-Determination cannot be invoked
A: I think it is only suspended because there are some declarations because the Crimeans are very well taken care of, the Crimeans are
from both parties for the stoppage of war. not discriminated by the Ukrainian Government, in fact, Crimea is a
very rich and fertile region. So, there was no justification for the
Atty Pandi’s Discussion Russian government to use force in order to free and liberate the
Q: Has the international armed conflict between North and South Crimeans, because there is no liberation to speak of, because they are
Korea been brought to an end? doing very well.
A: We don’t know. The International Community whether the war has
already ended or not. Sometimes to formally end a war, there has to
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Why was there armed conflict? Because Russia sent its own tanks and Atty. Pandi : Why does it matter? International or non-international
crossed the borders into Crimea without Ukraine’s consent, and sent armed conflict insofar as use of force in individuals are concerned.
its own armed forces, that’s an armed attack already.
Okay, and gi condemn man, naulaw man si Russia, it backed out but Q: 5. In November 2015, individuals with alleged ties to the Islamic
it cut all its diplomatic ties with Ukraine and that’s a manifestation of State perpetrated a series of terrorist attacks in Paris, France. Could
an existing armed conflict. the attacks be considered as part of an armed conflict?

Avarice and greed really continue to make this world hell. Atty. Pandi: So, were the attacks considered as part of an armed
conflict? Is there an ongoing conflict, when one party is isis on one
hand and the other party is just basically all countries around the
Additional Discussion: In Fact, there is a case 2019. The World Trade world? I think that is the essence of the question, is there an ongoing
Organization Russia suspended the trains from Russia nga mudala continuous war against isis? My other question is, so what if it is part
goods and services. Indeed, there is a conflict between 2 states. of an armed conflict?

*Called another student* Atty: Pandi: Because if there is an armed conflict, it means there is an
existing war. So if ever France will respond to isis, it is not required to
comply with the jus ad bellum requirement of necessity and
Q: 4. In 2011, US Special Forces killed leader of Al Qaeda, Osama Bin proportionality. Meaning the war is ongoing, continuing and running.
Laden, In Pakistan. Did the killing of bin laden violate
INTERNATIONAL Humanitarian Law? Jus Ad Bellum - Before war (Prevention)
*Student Recits* Jus In Bellum - In war (The war is going on)
A: Yes atty. Members of armed forces and participants in armed
groups do not qualify as civilians and may therefore attack their base France is saying, I do not have to follow the rules before going to war
solely to their status as such regardless they are participating in because war is in fact ongoing already. So do not ask for Necessity,
attack. Members of organized armed groups belonging to a party Jus Ad Bellum requirements because this is an ongoing war and I am
whose continuous function are also disqualified as civilians. Although one of the victims. Isis has many victims.
the term direct participation remains relevant to them.
It is because continuous function involves the preparation, execution *Student Asks a Question about Martens Clause*
or of commands acts or operations amounting to direct participation The Martens Clause (Article 1(2) of Additional Protocol 1))
in hostilities. “In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection
Q: Was the killing of Osama Bin Laden a violation of IHL? and authority of the principles of international law derived from
A: Not justified. established custom, from the principles of humanity and from
dictates of public conscience.’’
Q: What aspect sa IHL ang na violate?
A: It does not violate the IHL. It was examined on the participation of Atty Pandi: The fact you mentioned about Natural law is a good point
Osama Bin Laden. The direct participation of Osama Bin laden of analysis, because the Martens clause says that “in the absence of
constituted continuous operation to the command of acts. any applicable rule on the matter. “The Martens clause is intended to
fill the gap; the Martens clause is aware that in the future there may
Q: What is your evidence that there is a contribution to those attacks? be circumstances that there is no applicable rule regarding the
A: The evidence is Bin Laden himself. Claiming the responsibility of conduct of war. If that happens there must be some source of law
Alqaeda. A leader of ALQAEDA. that will regulate the conduct of hostilities and that is the Law of
Humanity and the Law of public conscience. That even if that
*Called another student* particular act is not expressly prohibited either by Customary
Q: 6. When it comes to the use of deadly force against individuals International Law or by the Geneva convention, you should act in
who are not members of the armed forces of a state, why does it accordance with the dictates of conscience and humanity.
matter if the armed attacked conflict is classified as international
and not non international armed conflict? It applies when there is an absence of law, it therefore is akin to a gap
*Student Absent, Atty discusses* filler a general principle of law. That if there is no law, it does not
mean that you are absolutely granted the widest discretion to just
Armed conflicts as laid down in Article 3 of the Geneva convention. It about anything because there is no law. Because the law on human
is important to differentiate between International Humanitarian Law conscience, dignity, morality and humanity actually apply.
and Human rights law because some of the rules may be similar.
The real issue in international law right now is “What happens to
international human rights law if there is an ongoing war” This was
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answered in the Nuclear Advisory Opinion, it does not mean that Module 9
when there is an ongoing war the applicability will also be suspended. International Humanitarian Law
No. Human rights law and Humanitarian law will continue to apply
even if there is an ongoing war. When you apply Human Rights Law in *Student Recits on IHL Guide Questions in Henriksen*
times of war, you will not apply the same standards. It is not Question # 1: When can we reasonably consider the law of armed
suspended; it will still be applied but not very strict. conflict as a pragmatic discipline? (The first part is inaudible).

Questions after discussion International law does not actually outlaw war. We don’t call it war
Q: In relation to the Red Cross, is there a prohibition on attack to the but we now call it armed conflict. Armed conflict is not prohibited by
Red Cross? international law which is why there is a need to prohibit it because
A: Yes, it is a War Crime. it is inevitable. Some things cannot be pursued or settled through
amicable settlement or through diplomacy. There will always be a
Trivia: RED CRYSTAL - the New symbol of Red Cross and Red Crescent, time that armed conflict is the only viable option and since that is
symbolizing Neutrality. possible, since we cannot outlaw it because the states are sovereign,
they can do anything. What we can do utmost is to regulate war and
Q: On the topic of Refugees, how can international law help the to make sure that we don’t spill the bounds of humanity whenever
Refugees? we want to do something as a matter of national policy. It is pragmatic
A: IHL is ill-equipped to provide protection for refugees. In so far as since we cannot avoid it, might as well regulate it because it might as
refugees, working refugees’ camps. well haunt us. States are granted that right.

Syrian refugees, Palestinian Refugees – in times of war, it is the least *Student Recits on IHL Guide Questions in Henriksen*
concern of these displaced individuals. Q: 6. When it comes to the use of deadly force against individuals
who are not members of the armed forces of a state, why does it
Atty Pandi: matter if the armed attacked conflict is classified as international
Latest issues: Follow on the Nagorno-Karabakh conflict and not non international armed conflict?
([Link] Because
here, IHL and Use of Force are involved. A: The IHL there are applicable laws for non-international armed
conflict. Article 3 provides minimum protection. And the common
protocol 2 which provides to strengthen the protection of people and
for the prohibition of use of force.

Atty. Pandi: We have combatant privilege in international conflict.

Combatant privilege - it is the privilege of a combatant not to be

prosecuted before the national courts of an adversary for killing an
individual.
If IT IS International Conflict. You don’t prosecute him as murder.

*Atty starts discussing the Whole Module 9*

International Humanitarian Law is about the conduct of war. It is the

law that governs whenever the states are engaged in an armed
conflict may it be international or non-international. One the most
difficult dichotomies of international law is the distinction between
Jus ad Bellum and Jus in Bello because both provide for necessity,
proportionality, and other requirements.

Jus ad Bellum pertains to the conditions that have to be met before

one can engage in an armed conflict. Before one can go to war, there
must be compliance of the requirements of Jus Ad Bellum framework.
The moment you’ve crossed the land, meaning you are in the jus ad
bellum framework and already met the requirements, you are already
entering the jus in bello framework or the framework when war has
already been entered into.

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Jus ad Bellum (Prior to entering war) - is the ticket that a party has to For example, you have Additional Protocol 1 and Protocol 2 which
present in the international legal community to justify its decision to both address humanitarian considerations; protection of the civilian
enter into a war or an armed conflict with another state. population and the conduct of hostilities.
Jus in Bello (During the conduct of hostilities or in the process of
armed conflict)- it is the referee because it regulates the conduct of Law of the Hague and Law of Geneva distinction is of the past. As we
parties during the hostilities. move forward to the contemporary international law, the distinction
is blurred because the kind of laws that we have nowadays, actually
Jus in Bello must remain independent with Jus ad Bellum. This is a integrate the laws of Geneva and the laws of Hague as in the case of
very important statement and a very important principle of law. Additional Protocols 1 and 2 which provide not only protection for the
Meaning, their requirements must be indecent with each other. For civilian population but also to the prisoners of war. But at the same
example, Jus in Bello is not concerned whether the Jus ad bellum time, it also provides for regulations on the kind of weapons that may
requirements have been complied with. Jus in bello is not concerned be used during the pendency during the conduct of hostilities.
whether the aggressor state has the right to attack. When we enter Obviously, the laws of Geneva were decreed, and were textualized in
the jus in bello framework, we no longer care if there was compliance the Hague.
with the jus ad bellum. Just because the other party did not comply
with the requirements of the jus ad bellum framework, does not mean Who are bound by international humanitarian law (IHL)?
that the laws of war in the jus in bello framework will not apply to the 1) States – the high contracting parties
party. 2) Organized non-state armed groups – usually want a new form of
governance, aka non-international armed conflict
The moment you have entered the war, you will govern the rules of - example: NPA in Philippines
war regardless of whether you’re entering into a war is justified with. 3) National Liberation Movements – if secession
Regardless if you are to blame or the victim, regardless whether there - example: Serbs in Kosovo
was compliance with jus ad bellum framework. Was there an armed
attack? Was there a valid exercise of defense? Was there a UNSC States. Because if you will read the Geneva conventions, it indicates
authorization? They are independent. When we enter the war, we are that international humanitarian law applies to high contracting
not concerned who is to blame because it’s already war. We’re not parties meaning state parties.
concerned anymore who is doing it legally or not. Whether entering
war is legally allowed in international law or not and because we are It may also apply to organized state armed groups (e.g. New People’s
already in war, we have to defeat each other. But in the process of Army) because they are organized and have a certain hierarchy and
defeating each other, we must comply with the jus in bello they follow a certain command. Therefore, there are instances when
requirements (like you won’t bomb civilians, you will not use weapons IHL may apply to them. Because why is there a need for IHL to apply
that you cannot make a distinction, you will not cause superfluous to them? So that they will be protected in the process of achieving
injury). It is actually faultless. Regardless of whose fault it is in the jus their goals and aspirations so that the Philippine government and
ad bellum, the requirements of the jus in bello requirements will armed forces actually respects civilian population, their medical units,
apply. and etc. And in the same manner, the NPA as well will respect certain
civilian objects in the conduct because we have to admit and
There used to be two sets of law: acknowledge that there are instances that there are incidents when
The Laws of Geneva and The Hague there will be exchange of firearms between these two groups. So,
they are covered in the IHL especially Common Article 3 which
The Laws of Geneva - pertains to humanitarian considerations; to the governs non-international armed conflicts between the armed forces
protection of the victims, civilians, and all other entities that may be of one state and the organized non-state armed groups of the same
affected by the armed conflict; regulation of hostilities and state. An example of that would be the PH government armed forces
humanitarian considerations. and armed groups of the NPA.

The Laws of the Hague - are concerned with the conduct of hostilities National liberation movements are also governed by IL. An example
and weapons that may be used, the kind of military exercises and would be the Serbs in Kosovo and they wanted to secede or separate
military objectives that may be allowed. So basically, it is the from Kosovo. You know that in the process of secession and the
regulation of conduct; Military necessity process of fighting for independence, it can become bloody and
further maybe resort to use of force. Therefore, national liberation
There is a need to strike a balance of these two laws. However, these movements should be governed by the rules of IHL. In fact, the
distinctions have already been blurred and are rendered hostilities between a national liberation movement and the state who
inconsequential in the contemporary society. will oppose their secession or independence is generally categorized
as international armed conflict because secession is the goal.
Organized non-state groups (NPA), their goal is not secession but is
the change in government, change in paradigm, policies, opinions,
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and views to which how the government is being run. They don’t want See Bosnia and Herzegovina, it was originally NIAC (between Bosnia
to secede from the PH but they just want a new form of governance and Herzegovina), it was internationalized because Serbia and
and new form of approach to how the PH should run the state. That Montenegro have assisted the Bosnian Serbs (became IAC).
is why it is called a non-international armed conflict because there are
no goals of ultimate secession or independence. Atty Pandi:
YES, it is possible and it has happened before in the war between
Classification of Armed Conflict Bosnia and Herzegovina and Serbia and Montenegro. Originally, it
1. International armed conflict – one or more states resort to the use was a non-international conflict because it was actually between
of armed force against another State Bosnia and Herzegovina and the Bosnian Serbs, who are a minority
2. Non-international armed conflict – hostilities are taking place group (an organized non-state actor in Bosnia and Herzegovina). It
between the armed forces of a State and organized non-State armed became international because Serbia and Montenegro actually
group within its territory, or between such groups. assisted or went to the side of the Bosnian Serbs. What happened is
2 Essential Elements that there is a non-international conflict between Bosnia and
a) Must have an organized structure Herzegovina and the Bosnian Serbs in Bosnia and Herzegovina. There
b) Must have protracted for a long period of time is also an international armed conflict between Bosnia and
and the disturbance have reached a certain Herzegovina and Serbia and Montenegro because they assisted and
threshold took the side of the Bosnian Serbs in Bosnia and Herzegovina. So, it is
possible that there may be a change in the status of the conflict from
Atty Pandi’s Discussion non-international to international.
There are two types of armed conflicts internationally. One or more
states resort to the use of armed force against another state. The 2 Types of NIAC
textbook definition is that one state against the other state that is 1. Common Article III of Geneva Conventions – applies to armed
international armed conflict but even if it is a conflict between a conflicts not of an international character occurring in the territory of
national liberation movement, the state that opposes liberation one of the High Contracting Parties.
movement, that will generally be categorized as international -
because there is a possibility that the liberation movement can 2. Additional Protocol II – armed conflicts must be between the
liberate factually, although not legally, and therefore if it can liberate, armed forces of a High Contracting Party and dissident armed forces
it is akin to as if there is 2 states already fighting against each other. or other organized armed groups which, under responsible
That is why it is international. If a non-international armed conflict command, exercise such control over a part of its territory.
between a state and a non-state actor within its territory or usually - a territory is in the absolute control of one group.
non state armed group which is organized within its territory is not
international because the conflict exists within the territory of the
high contracting state party or the state itself. Additional Protocol 1 – applies in international armed conflict
Additional Protocol 2 – governs non-international armed conflict –
Make sure you make a distinction between minor insurrections, strengthens protection beyond the minimum standards contained in
minor disturbances, civil disobedience because they cannot be Common Article 3
categorized as non-international armed conflict because before a
conflict between a non-state armed group and the state party, that Atty Pandi:
armed group has to make a certainty of organization and must have There are 2 types of non-international armed conflict: (It is
been able to use violence in a protracted manner in its campaign important to identify these two types because a different rule governs)
against the mother state. Not all disturbances would tantamount to a
non-international conflict. There is a non-international conflict governed by Common Art 3 of
the Geneva conventions and there is another species of Niach (not
There has to be a compliance with 2 essential elements. First, the sure) is governed by the additional protocol 2 …
state group and a non-state group must have a certain hierarchy and
organizational structure and second, they must have undertaken a
protracted armed violence or armed confrontation. Protracted, Atty Pandi: Common article 3 applies to armed conflicts not of an
meaning for a long period of time and the violence or hostilities must international character occurring in the territory of one of the high
also achieve a certain threshold. Not just normal disturbances. Minor contracting parties.
insurrections will be governed by the RPC of the Philippines.
Question: When is there a non-international armed conflict?
Is it possible for an IAC and an NIAC to simultaneously exist? First is when the conflict is between the state and an organized armed
Yes, but how? group within its territory. It is also possible that the conflict is non-
international if it’s between an organized armed group in one state
and another organized armed group in another state. These examples
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will fall under the common article 3 type of non-international armed 3. Belligerent Nexus – the actuation of the
conflict. individual, and the corresponding harm,
meaning it must be specifically intended to
Question: When does the additional protocol 2 apply? assist one party.
If the conflict is between states, the same with common article 3 but
there is an additional requirement as to the capacity and identity of Objects Specifically Protected
the other contracting party or of the other party to the hostility. a. Medical Units and Transports
Under additional protocol 2, the conflict must be between the armed b. Cultural Property
forces of one state and organized armed groups which is not only an c. Natural Environment
organized, decent organized armed group which has a responsible d. Works and Installations containing Dangerous Forces
command and exercises control over a particular part of the state’s
territory. So, there is another requirement before additional protocol 3) Precaution – Principle of Precaution -A party to an armed conflict
2 can apply. There has to be territorial control by the organized armed must take constant care to spare civilians or civilian objects when
group over a particular part of a state’s territory. In common article carrying out military operations.
3, you don’t require territorial control. - do everything feasible to verify that the targets are
military objectives
For example, in the Philippines, the conflict between the new - choose means and methods of attack that avoid, or at least
people’s army and the armed forces of the Philippine government, keep to a minimum, the incidental harm to civilians and
they are to be governed by common article 3 because there is no civilian property
definite control by the new people’s army over certain territories. - refrain from launching an attack if it seems clear that the
losses or damage caused would be excessive in relation to
Question: Why make a distinction? the concrete and direct military advantage anticipated
Because the nature of the rights and obligations afforded to them are
different, either under common article 3 (governs non international 4) Prohibition against causing superfluous injury - Employing
armed conflict) or additional protocol 2. weapons, projectiles and material and methods of warfare of a nature
to cause superfluous injury or unnecessary suffering is prohibited.
TN: International armed conflicts are governed by Additional Protocol This prohibition refers specifically to combatants: it says that
1 because Additional Protocol 2 actually governs non international weapons of certain kinds are prohibited because they harm
armed conflicts wherein the organized non state actor actually holds combatants in unacceptable ways. (ARTICLE 35, AP I)
control over a particular part of the territory of one state. That’s why
it says it strengthens protection beyond Common Article 3 since the Atty Pandi’s Discussion:
organized non-state armed group already controls a portion of the Rules of conduct of hostilities.
territory, then there are additional rights and obligations that are The rules actually pertain or referred to:
generated by virtue of that control. 1. Proportionality
2. Distinction
Rules in the Conduct of Hostilities 3. Precaution
1) Proportionality – Principle of Proportionality - It is prohibited to 4. Prohibition against causing superfluous injury
launch an attack that is likely to cause incidental loss of civilian life,
injury to civilians, and/or damage to civilian objects that would be 1. Proportionality
excessive in relation to the concrete and direct military advantage Question: How do you measure proportionality?
anticipated. [ARTICLE 51 (5)(B), ADDITIONAL PROTOCOL I] You must be able to strike a balance between laws of civilian life or
collateral damage and the military advantage that you wanted to
2) Distinction – Principle of Distinction - The parties to an armed possess. Because whenever a state or a party to a conflict actually
conflict distinguish at all times between civilian persons and civilian launches an attack, there is always a purpose. The purpose is really to
objects on the one hand, and combatants and military objectives on cripple the military operations of the other party. IHL actually
the other. acknowledges that there will be collateral damage but the principle
of proportionality merely asks for is that the laws of civilian life or the
Subject and Object of Protection collateral damage must not be excessive in relation to the concrete
a. Combatants – if Hors de Combat – allowed and direct military advantage anticipated. Again, proportionality is a
protection question of whether the concrete and direct military advantage
b. Civilians – generally protected, except, Civilians anticipated is excessive in relation to the laws of civilian life.
Directly participating in Hostilities (Requisites):
1. Harm
2. Link

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2. Distinction
Oil Platform Case 4. Prohibition against causing superfluous injury
Atty Pandi: The principle of Distinction actually tells us that you only Atty Pandi: You don’t use weapons of mass destruction, you don’t use
attack military objects. This was discussed in the Oil Platforms Case bio weapons, chemical weapons and just spread throughout the city
when the ICJ said that the Oil Platform should not have been an object because obviously those weapons cannot make a distinction between
of an attack because the oil platforms of Iran were not actually civilians and combatants. You’re not supposed to use nuclear
military objects, they were civilian objects performing civilian actions. weapons indiscriminately because their effects are far reaching and
Their goal is to actually extract oil from the high seas and then may cause unnecessary sufferings.
transport that oil to mainland Iran and therefore, they should not
have been subjected to an attack. Crimes specifically punished under IHL
The principle of distinction merely says you distinguish between 1. Crimes against Humanity - widespread or systematic attack
civilians and combatants, civilian objects such as hospitals and directed against a civilian population, with knowledge of the attack
military objects such as military camps and many other installations 2. Genocide - acts committed with intent to destroy, in whole or in
used for military purposes. part, a national ethnical, racial or religious group, as such.
In a war, you are not prohibited from harming a combatant because - Mere membership in a Racial or Ethnic Group.
that is the objective of war, to kill and to cripple the operation of the - Example: Genocide of the Rohini Ans. Genocide of Tutsis.
other party. The principle of distinction actually only requests you to 3. War Crimes - examples include willful killing of a protected person,
make a distinction between combatants and civilians. Hors de attacking the civilian population, making improper use of protective
combat, combatant that are severely wounded and they have signs, etc.
surrendered and so they are no longer capable of participating in the
hostilities, they are not supposed to be subjected to an attack Atty’s Discussion:
anymore. Questions: What are the crimes specifically punished under the
Civilians are generally protected but there is a possibility that the international humanitarian law?
civilians may lose their civilian status and that happens when the
civilians actually directly participate in hostilities. Meaning, you are Crimes against humanity which pertains to a widespread or
not forming part of the armed forces of one state or you are not systematic attack directed against a civilian population with
combatant for example but you just take part of the conflict, you will knowledge of the attack. So therefore, there has to be:
lose your protection as a civilian. But there are elements that must 1. Intent
have been complied with: 2. There has to be widespreadness of the attack.
1. The civilian must contribute and participate in a 3. The attack must be systematic.
manner where there was harm that was contributed.
2. There must be a link between the action of that civilian Genocide is particularly interesting because of its definition.
and the corresponding harm. Genocide refers to act committed with intent to destroy in whole or
3. There must be belligerent nexus, meaning the in part, in national, ethnical, religious or religious group “as such”.
actuation of the individual must be specifically
intended to assist one party. The most important words in this definition is “as such”. Meaning, you
Under the principle of distinction, there are certain objects that are destroyed a national group, an ethnical group, a racial or a religious
specifically protected: group precisely because of the membership of those people in that
1. Medical units and transports particular group. The reason for the acts of killing is because you
2. Cultural Properties belong to a racial group, you belong to a religious group, and you
3. National Environment Works and Installations belong to an ethnic group. No other reason, just the membership of
containing the injurious forces a person to a particular group.
3. Precaution
Atty Pandi: The principle of precaution provides that the parties must War crimes are crimes that you commit in times of war. Meaning,
take constant care to spare civilian or civilian objects when carrying violations of the IHL, you attack a civilian object, a civilian population,
out military operations. The principle of precaution actually applies you did not respect signages of hospitals and you did not grant prison
during the pre-planning stage prior to launching an attack there must of war status to a combatant or you even killed a hors de combat.
be conscious deliberate effort on the part of the parties in
ascertaining whether or not this particular military strategy will cause Q: Is there a violation of International Humanitarian Law in the case
unnecessary harm or will not be able to make a distinction. It requires of SAF 44?
a verification of military objectives and military targets, it requires
surveillance, etc. It also asks the parties whether the weapon that will Atty. Pandi: There is a pending case against PNoy, the crime of
be used is actually something that can achieve the target. All of these reckless imprudence in directing that operation. Is there a violation
principles are related to each other and they complement one on IHL? No, it was merely an away with the combatants and you are
another. supposed to kill those combatants. If there are any violators, it would
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be with our armed forces and PNoy as the Commander-in-Chief for MODULE 10 (?)
reckless imprudence. International Environmental Law
Rights of Nature Movement (presentation of slides)
Q: You’ve mentioned the Principle of Precaution, the combatants - Decrease that instead of viewing nature as a property
should ensure that the civilians will not be included in the conflict. owned and only material to the world because we can benefit
Would the Principle of Precaution apply to the Zamboanga siege from them. These are the rights alienable. This started in 1972 in
wherein the civilians are used as a human shield? Sequoia National Park in Switzerland.
Case: Resident Mammals Case
Atty. Pandi: Before we apply all the rules under humanitarian law ,
we need to know if it is an international or non-international conflict. Atty Pandi: A province in India, Uttarakhand, enacted a legislation
For me, it is a non-international conflict, but it should be proved who that protected the heavily polluted rivers in India.
they really are. There will be lots of arguments to be laid on, It was followed by Colombia, which decreed that the Colombian
depending on which side you are on. Amazon rainforest and the Atrato rivers are legal persons that are
entitled to protection by law.
Atty. Pandi: One man’s terrorist is another man’s freedom fighter.
What preceded is actually very important in light of the forest fires in
The Martens Clause (Article 1(2) of Additional Protocol 1)) Colombia because their president actually refuses to stop
“In cases not covered by this Protocol or by other international multinational partitions from infiltrating the Amazon and from
agreements, civilians and combatants remain under the protection building the factories, properties & other projects that might threaten
and authority of the principles of international law derived from the Amazon and the rivers.
established custom, from the principles of humanity and from
dictates of public conscience.’’ Ohio, USA, enacted the Bill of Rights. Lake Erie has its own Bill of
Rights. It has an annual algal bloom, which causes pollution because
of the massive industrialization surrounding the lake that’s why they
enacted the Bill of Rights for Lake Erie which granted legal rights for
the lake.

Just very recently in 2020, Bangladesh granted legal rights to ALL of

its rivers. If you harm the rivers in any way, you will be penalized as if
you harmed a living person.

The more we protect the environment the more we secure humanity

as well. When it comes to environmental protection, we should refer
to the sound judgment of the indigenous communities like the people
of the Amazon because they know, they feel and they breathe the
environment.

The rights of nature movement, it separates individuals from the

environment insofar as granting rights and obligations is concerned.
It is not Customary International Law but it is in the process of
crystallization, but there are several states in the world that have
revised and amended their constitution in order to grant specific
rights to the party.

*Student’s Question on the issue of Canada’s Garbage dumped in

Philippine shores. *
Atty Pandi: Take note of these two concepts:

Garbage Imperialism – an occurrence where unwanted or hazardous

waste is dumped on unwilling or unsuspecting communities.
Polluter Pays Principle - is the commonly accepted practice that those
who produce pollution should bear the costs of managing it to
prevent damage to human health or the environment.

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*Student’s Question on Climate Change and a state’s responsibility
(specially third world countries) *
Atty Pandi: Remember: “Common but differentiated responsibility”
(CBDR) – we have a common goal to reduce carbon emission and fight
climate change, but some states are poor and some states are richer.
Although we have a common goal, but the responsibility must be
differentiated.

But then again, the Paris Agreement, the Oslo Principles are still not
binding, they pertain to the International Law of Cooperation, and
they usually take a long time to be binding.

*Student’s Question on Climate Change and its Intersection with

Migration and Human Trafficking (also on Refugees) *
Atty Pandi: This is a reality that we should face. In the Philippines,
when Yolanda happened, 46% of the women in Tacloban were
actually transported to Angeles City in Pampanga, to work in brothels
as prostitutes, because it is during public emergencies and
humanitarian disasters that human traffickers actually flourish.
Because they prey on the vulnerability of the victims of these
humanitarian exigencies. In Indonesia, on extreme weather
conditions, women in rural areas fall prey to human trafficking and be
exploited. It happened also, in India, in Bangladesh.

*Student’s Question on Abusive Refugees*

Atty Pandi: They can actually be deported. They are considered as an
undesirable alien (non grata). The grant of asylum can be revoked by
the granting State.

Advices from Atty. Pandi

“Do not think that your Professor is unreasonable because it will be a
silent dispute between you and the Prof.
The Professor knows what he/she’s doing, that is why we need to deal
with him/her.
Do not be overruled by fear.
Run your own race.
Stay positive.”

“Keep yourselves up float, even if you’re supposed to be drowning

right now.
If everything gets tough, take a rest, cry it out, and move on the next
day as if nothing happened.
It’s very okay to lose yourself in the process, once in a while, it’s okay
to give up once in a while. Catharsis. Don’t hold it in. So, cry, then lose
yourself in the process, but then wake up as if you’re a new born
person.
Don’t lose the optimism that you have.”
-Atty RVP, 2020

By: Danna, Jam, Jannine, Haitham, Babyg, Paul, Souljah Sources: Atty RVP’s PPT and Discussions, Henriksen, Souljah Notes 26