Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
notes Cha
Mendoza
JUN E 16 -as Apartheid was not yet prohibited by the existing set of rules then
existing, then ICJ did not rule on the issue
Most Important Facts Covered Today: -the issue was WON there was a norm of discrimination
International Law No longer limited but a viable field of practice: We
live in an ever interconnected world Why is the ruling on South West Africa flawed?
When a state enters into a contract with another state, it derogates its It is flawed because it just evades the issue and it doesn't deal with the
rights as a state and becomes a mere contracting party (can't raise issue just because it is deemed political
domestic law rights) This shows that IL should still look into the humanitarian, moral, social
Opportunities present with WTO or International Criminal Law purposes of law
Universal Jurisdiction: any court has jurisdiction to try criminal cases
deemed as criminal under international law (any court in the planet!) -the legal issue: you should not discriminate on the basis of color
e.g. At Present, Spain is trying war crimes against Americans in Iraq …but at the time the decision was made, discrimination is the norm!
and Palestine ...so if IL = RULES, would be stuck to discrimination as acceptable!
It's an interesting field of study …should consider instead what is good for us (policy-consideration)
Overview of Relevant Topics Binding nature: states accept IL as a means to achieve what is
Why are int'l norms binding? best for us
What is international law?
Who makes international law? HIGGINS: IL as a PROCESS and not the mere application of rules
Why is it binding?
Who enforces international law? WHO MAKES DECISIONS?
Those who are in authority in the states (competent authority, not just 1
Examine Actors branch)
Before, the State is deemed the only actor in International Law. Now,
even Individuals and International Organizations are subjected to IL is a process of decision-making made by competent authorities as
International Law part of a normative system wherein the goal is to determine how to
achieve what is best for us
Elements of a State
Territory ADVANTAGES of looking at IL as a Decision-making process
Population 1. It restates why we have law in the first place: achievement of societal
Sovereignty (Capacity to enter into a treaty, international agreements) ends
Government Same sex marriage
-decision on who to marry is a personal choice, private decision, and
In case of conflict, what applies? International law or domestic law? the state should not interfere/limit this decision to respect personal
claim
On Territory: -if apply rule = IL: same sex marriage is not allowed
Base Line Law
UNCLOS 1. Make IL more dynamic, not stuck with old rules
New Legal Regimes (Continental Shelf) -more reflective of IL
-less vacuum (lacunae): existing rules may not be applicable to new
Concepts Peculiar to States phenomena
Sovereignty
Jurisdiction: exercise of legal competence
1. Narrows the gap between Lex Lata and Lex Ferenda
Treaty: one entered into by parties Lex Lata: law as it is
e.g. NBN-ZTE Project Lex Ferenda: law as it might be
-the lex lata (which is what formalists use to interpret IL) may be the
Other Actors Lex Ferenda when IL is considered as a decision-making process, as
International Organizations: Are they at par with States? we make lex ferenda the lex lata
e.g. Can the WHO enter into a treaty with another state?
Criticisms
1. Difficult to know what to apply
JUN E 18 Vs. you'll know what to apply based on desired goals
Law 1. Less legal (banishes the image of the judge as cold and impartial)
why is it there was already law since time immemorial? Vs. in making choices to achieve what is best for us, consider what is
Even indigenous communities have laws, showing it is not related to humanitarian, political, economical…
the development of the States Basic problem with this critic: it isolates IL from politics
e.g. we can't avoid considering political issues in decision making
Why there are laws
*social order and regulation NATURE of IL
-is it always the case that without law, there would be chaos? Domestic law: Vertical: there's a sovereign from which the law
-Law = norms + values emanates and enforces the law
-it's a normative conduct IL: Horizontal: sovereign states are treated as equals and thus the law
emanates from all of them and there is no central sovereign which
Normative Conduct vs. Normative Sstem imposes a norm which should be followed
CONDUCT: sense of obligatory norms
SYSTEM: the WHY: We have normative conduct because it is SO WHERE DO WE FIND RULES?
prescribed by a normative system Breach of a criminal law in the Philippines vs. in other international
community
Why traditional definition of IL as rules should be disregarded -enforcing body: present in domestic law, non in IL
IL should be seen as a decision-making process
Seeing IL as Rules follow the positivist approach wherein law is set by So why is IL still binding even if there is no enforcing body?
a sovereign power Law is not always for sanctions. It prescribes conduct. It is not the
function of laws to provide penalties and no requirement of an
SOUTH WEST AFRICA CASES (1962) enforcing power for a law to be binding.
-judge Fitzmaurice refused to rule on the issue of Apartheid because it Civil code of the Philippines: it does not require an enforcing body for it
is a political issue; instead, Fitzmaurice used the traditional definition of to be enforced!
IL as rules to rule on the issue
2PIL
notes Cha
Mendoza
But there are sanctions in IL: conventions, and such, the said violations are not considered crimes in
*principle of universal jurisdiction: an international crime may be the Philippines so he cannot be charged with it
prosecuted in any state H: Art II, Section 3 of the Constitution at that time (incorporation
*prescription not applicable: an international crime may be prosecuted clause) makes generally accepted principles of IL (GAPIL) part of the
even after several years law of the land. Since the provisions of the Geneva and Hague
*UN enforcement pressures Conventions merely restated the GAPIL on war crimes at that time,
*immunity from suits not applicable as a defense in IL these provisions are deemed part of the law of the Philippines
-protection of civilians is part of GAPIL
WHO ARE THE SUBJECTS OF IL? -but sabi ni sir: the incorporation clause is really not needed to make
Subject: the doer of the action GAPIL binding as GAPIl is accepted as binding by civilized nations
In IL: (Perfecto, separate opinion in Yamashita vs. Styer)
1. States: in conventional (meaning treaty) IL JUN E 23
WHY: ICJ statute only recognize States as parties in ICJ
-Individuals are not considered parties though they are affected by the YAMASHITA VS. STYER CASE
actions of their states F: Yamashita, previously a POW, is now being charged with War
1. International Organizations Crimes. He filed a petition for prohibition and habeas corpus,
Green peace international, MNCs requesting that he be reinstated as a POW and assailing the
1. Individuals jurisdiction of the Military Commission to try his case on the ff grounds:
Directly: who files suits/ are sued? a. No notice to Spain, his protective state
Indirectly: affected by treaties entered by the states b. MC has no jurisdiction as RP is not anymore an occupied state
c. Not war anymore. SO MC cannot claim that it was constituted in
SUBJ: one capable of rights and ascertaining them pursuance to war
COULD the sources of law concur, or are they mutually exclusive? NORTH SEA CONTINENTAL SHELF CASE
They may concur What is the continental shelf?
It is the natural prolongation of the land mass.
KURODA VS. JALANDONI
F: Kuroda was charged with crimes based on violations of Geneva and Truman Proclamation: US Claimed the continental shelf. (before,
Hague Conventions (war crimes). Kuroda then assailed the charges State territory is limited to the land and the sea, not the land under the
against him, arguing that the Philippines is not a signatory to the said sea (continental shelf)
3PIL
notes Cha
Mendoza
Shell: it's a Dutch Company which first made its killing in exploiting the recognizing EP as an International Norm) and as to states who
North Sea Continental Shelf! are not parties to the Geneva Convention, there is no proof shown
that these states though EP as binding, as opinio juris (Note: this
So This is what the case is all about! Resources! is what Dean Magi was telling his IPL class: the ICJ requires a
separate proof for Opinio Juris to prove Customs when state
*Denmark and Netherlands are Just Small Countries, compared to practice itself could be the proof itself!)
Germany which has a big land mass (and thus, territory)
SO, PRETEND YOU ARE A COUNSEL IN FRONT OF THE ICJ:
Problem: • Has to argue in the active voice
1. shorelines of Denmark and Netherlands are Convex vs. Germany: • Address Sir as "Your excellencies"
Concave • Counsel has to call himself, "Applicant"
If the equidistance principle (henceforth EP) is applied, Germany would • Argument = "Submissions"
have only a small portion of the continental shelf compared to its • In presenting evidence: "We cite the following evidence"
shoreline and territory
1. Netherlands and Denmark base their arguments on the 1958 Geneva
Convention on Continental Shelf which recommends the use of EP:
however, Germany is a mere signatory to the said Convention and has Denmark and Germany ICJ
not ratified said convention yet Netherlands
English Rule: Territorial State has Jurisdiction LIBYA V. MALTA: Determined by distance, not geology
French Rule: Flagstate TUNISIA V. LIBYA: half-effect method
UNCLOS: French US V. CALIFORNIA: not appropriate to RP: We were not a federal
But if couse disturbance: Territorial State has jurisdiction government
e.g. if murder in Contiguous zone: Coastal state has jurisdiction [Art4]
(1) customs SIR’s ARGUMENT: Continental shelf principle in Constitution: Insular
(2) Fiscal shelf = continental shelf so the continental shelf is now included in the
(3) Immigration definition of Philippine Territory
(4) Sanitary AU GU ST 25
HOT PURSUIT [A11] On extradition
-only exercised for matters enumerated above, murder not included GR: No obligation unless there’s extradition treaty
INNOCENT PASSAGE [A19] X: Unilateral treaty
-expeditious & continuous maner e.g. Torture Convention
-not prejudicial to peace, good order, security
NOT INNOCENT – 12 instances! EXTRADITION
*Basically… -conventional and Customary IL recognizes it
1. anything which has nothing to do with innocent – continuous Requirements:
passage 1. DCR
*what if drop and pickup passengers & goods? STILL INNOCENT 2. Right to seek asylum
PASSAGE -refugee status
*What about scuba diving? You’ll be stopping if you scuba dive so NO -political offenses – not covered, or else might affect right to
What if you still want to scuba dive? Get the consent of the coaqstal seek asylum
state RIGHTS
2. Threaten security of coastal state 1. To be not deported back to own state
-what can coastal state do in violation of innocent passage 2. no prosecution from illegal entry
ART 25: Suspend innocent passage
-coastal state could insist that ship leave its territorial waters Asylum: process by which a person applies to seek
*exercise of jurisdiction over ships exercising innocent refugee status but has not yet succeeded: undergo
>cannot acquire double-hull Administrative demonstration first
>what about payment of Pilotage and other fees? Pede! (*Pilotage:
guides with specialized information with the conditions of the territorial WHY IMPORTANT?
waters) Jocjoc Bolante
…a. right to levy charges for specific services -intervention: Not fall w/n exception
…b. jurisdiction, iff adverse effect on good order 1. genuine fear of execution
…c. adopt laws for safety of navigation 2. Part of group
…A21, UNCLOS 3. fleeing armed conflict
4. Fear to be subject to torture
Archipelagic vs. territorial sea on innocent passage
Archipelagic: only 1 ground Refugee status
Territorial Sea: 12 grounds -B4: individual determination
But because of the Africa conflict, many people seek refugee status so
High Seas: A88 for practical purposes, by Group na: UN High Commission on
_peaceful Purpose Refugees – Declaration that People entitled to refugee status
_protect high seas from pollution
Freedom of navigation MARK JIMENEZ CASES
-can board: Reasonable ground for suspecting (A109-110) -procedure
a. piracy 1. request extradition by competent agency
b. slave trade …if sufficient…
c. unauthorized broadcast 2. Petition for extradition
11PIL
notes Cha
Mendoza
ISSUE: When entitled to know reason why he is indicted? dispersing the mob, joined it, opened fire against the Americans, all of
Later decision overrule the 1st whom died
1ST CASE: already entitled to notice when request for extradition H: STATE LIABLE
given Even if
2ND CASE: when the case is filed in court already, issued subpoena …agents acted ultra vires
and warrant of arrest …under supervision of authority
“power to extradite corrupts”
-US and Japanese fond of extraditing How are aliens to be treated?
De facto extradition: deportation - but not treaty, dapat may treaty -started in Los Palmas Claims
*it there’s a well-grounded fear to be subjected to torture, can refuse >protection
EXTRADITION – Convention against torture CORRECT TEST: Minimum standard, not subject to domestic law
*RP never extradited anyone for political offenses CHEVREAU CASE (FRANCE VS. GREAT BRITAIN)
When can invoke sovereign immunity for International Crimes? When -the detained man must be treated in a manner fitting his station, and
liable? which conforms to the standard habitually practiced among civilized
nations
EX PARTE PINOCHET
-torture, murders, hostage-taking ASIAN AGRICULTURAL PRODUCTS CASE
Former ruler of Chile -Due diligence obligation under the minimum standard of customary IL
UK…Pinochet in UK…Spain sought his extradition
H: Torture recognized as International Crime ORGAN
-Pinochet is immune….materiae -exec, legis, judiciary
But since Torture is not an act of a sovereign, no immunity (functional
immunity lang) What arises now? If breach + attributable to the state?
A S F OR TH E PAR T ON IMMU NITIES… Reparation + promise to stop whatever was done
-restoration to the status quo ante
Sorry, no notes kasi naghahabol ng readings… Compensation: Chorzow Factory Case
SEPTEMB ER 15
3rd state’s duty:
Obligation of States when they breach IL
-breach of states 1. not to recognize legal consequences of the breach
…but IL today, there are other actors 2. obligation to compel breaching state to stop breach
…states re-defined Objective characterization of breach
What if agent w/o full powers? VOID VIBAL PUBLISHING VS. KOLONWELL
-cited ABaya even when it was not yet fina and executory
What are other grounds that make a treaty VOID? F: there was conflict in interest
1. Error -Vibal used 4 companies to bid
2 Fraud -dapat disqualified
3. Coercion of the agent and of the state -failure of bidding
But WB overruled
14PIL
notes Cha
Mendoza
DECS -if other provisions, pede
PROCUREMENT
TC: panalo si Sir MILITARY AND PARAMILITARY
SC: bayad Vibal -on withdrawal of US from ICJ Jurisdiction
-di na GAD of Fernandez ICJ: Notice must first be given w/n reasonable time before a state can
Ang tinignan withdraw from a treaty
Nature of Loan Agreement: P608: Cited Abaya which does not say
anything that international agreement on loans = Treaty VIENNA CONVENTION
-case which would verify – if decided correctly by SC: Northrail
-how to send Ambassadors
SIR: By sending ambassadors, you’re establishing diplomatic relations
OCTOBER 8
with that country
Ratification 1. Note Verbal to be sent to RS, Agrement hereby requested
PIMENTEL CASE -give chance to RS to check you out because as soon as they give the
-executive act agreement, immunity from jurisdiction attaches
…in VCLOT: Just an evidence that a sate wants to be found 2. Agrement given:
-when immunity attaches? Receive credentials first to RS, but this may
Brownlie: 2 acts be delayed
1. Act of appropriate organ of a state – as required by internal law -so present credentials first to the Minister of FA
2. Deposit instrument of ratification 3. If accepted credentials,
…
PIMENTEL CASE Problems
-Rome statute sought to be ratified *Gino wanted you to deliver package to Timbuktu. Before going to
-evening class of sir roque wanted Executive to ratify the Rome Statute Timbuktu, you went to Monocco first for a vacation. It turns out that the
SC: Does not compel executive, quoting Isagani Cruz’s Book on package contained contraband. Does immunity attach?
Treaty-making process NO. Immunity attaches only when you’re performing your functions –
Then the court says that by ratifying, we are bound you have immunity only whey you’re in transit.
SIR: they missed the whole point! Ratification merely gives the proper
state organ the review *If you hire services of contractor to renovate, can’t pay Ambassador.
-Ratification is not purely an executive act, it needs concurrence of the Immune or not from collection suit?
Senate! -this is specific services rendered
-ambassadorial residences
SALONGA CASE
-majority opinion refutes the minority opinion *what if just rent Ambassadorial residence, the owner of the leased
Grounds: VFA Agreement beyond BAYAN premises, property to be attached. Annotation of the attachment done.
>unequal agreement between parties Can this be done?
>w/o fixed period, not visitation SIR: IF annotation lang (no effect on possession of ambassadorial
>EPC: only American soldiers treated differently when they are residence) okay lang
arrested and convicted
*Driver brought from the country of the ambassador to Timbuktu (to
SC Uhpeld EPC argument serve as a driver). Driver, while in Timbuktu, figured into a stabbing
>violative of VFA: May subject to renegotiation: but RP Still has incident. (note that Driver is same nationality as the ambassador)
custody over US Serviceman SIR: No. Functional immunity. Should be in the course of official duty
-can’t put outside RP Jurisdiction Diplomatic staff: immune from criminal jurisdiction
But if service staff: functional immunity
As to Constitutionality: Still stands
1. Self-executing *If the diplomatic mission is in Forbes Park, and Forbes park has a rule
2. covered by implementing legislation that 1 premises should only contain 1 family. Can Forbes park now
3. RP-US treaty was consented by Senate of US (so implied mali ang enforce the restriction on the use of diplomatic premises when the
BAYAN Case diplomatic premises was used not only as the diplomatic embassy but
-why important to discuss all these? also for the quarters of the diplomatic staff?
Rebut minority opinion that this is not a treaty! SIR: Exempt. Regardless if Head of Mission or diplomatic agent
MEDELIN VS. TEXAS: Not all agreements entered into by US are (refers to the Premises of the Mission)
treaties
+ not all decision of ICJ, even if US is a party to the statute, are *In RP: Multiple accreditation kasi we’re so poor
executory in US
X: Ung 3: Consular vs. diplomatic
1. self-executory Consular: more on commercial transactions – functional immunity only
2. Implementing legislation Diplomatic: more on governmental functions
3. US consented
*Medelin not implemented because US did not consent to the treaty? OCTOBER 13
Majority:
1. self-executory daw ang VFA – pero wala naman sa VFA na ganun US VS. AVENA
2. It’s anchored on Mutual Defense Treaty F: US failed to give notice, failed to grant visitation rights to the
-but hellurh, it was only mentioned in the preamble consular staff of Mexico
Mutual Defense Treaty: can only be invoked if there is an Armed -here, the Mexicans were sentenced to death
Attack C: US court did not acquire jurisdiction
---but this will never happen now because it is prohibited under IL Effect: Failure to comply with this provision in Vienna Convention
-bawal din collective self-defense would result to the divestment of the court’s jurisdiction
3. Zublacky Act – implementing legis daw eh… -gave rise to Mendelin
-executive agreements lang implements nya ICJ: gave provisional measures
-if mere executive agreement, it doesn’t have the effect of Law SIR: This case would seem to say that failure to notify the consular
offices deprives it jurisdiction
ADVISORY OPINION ON RESERVATIONS IN CONVENTION VS
GENOCIDE MINUCHER VS. CA
-reservation made which goes against the purpose of the convention – F: Drug agent in RP was said to have framed a consular officer of
you’re not a party to the convention Pakistan (?). When the latter was found innocent, he sued the Drug
agent
15PIL
notes Cha
Mendoza
1st ruling: not immune e.g. In Africa and Cambodia
On MR: Acted for US, so immune -Genocide wherein many died
SIR: the 2nd ruling violated RP Sovereignty!!! Chapter 7 used to create to prosecute the masterminds
…BUT GENOCIDE. Just 1 country. But many nations – how will it be
UN an int’l peace problem?
-treaty ….Because it’s difficult to prosecute genocide in local courts!!!
-promote peace and stability
-prevent another war *UN SC only conducted recently 1 trial
Why is it that this seems to be selective?
As a treaty, what is provided in UN Charter to achieve goal in avoiding Yugoslavia, Rwanda, Cambodia – they only entered Yugoslavia
another war? SIR: Racist ang UN! If you’re not white, magpatayan muna kayo
Jus ad bellum – use of force = legal
Jus in bellum – IHL = not validly of use of force but WON combatants Opinio Juris: 3rd exception
are liable under IHL
YUGOSLAVIA VS. US
Art2(3) and (4) prohibit use of force -just preliminary objection
GR: Prohibited -Yugoslavia not continuation of Bosnia
X: Art51: Self-defense + US and Spain did not consent to ICJ Jurisdiction
Art42: SC (Security Council) Authorizes it
KOSOVO-NATO
NICARAGUA VS. US Arguments of NATO mems
-justified if there’s an armed conflict 1. Implied Consent of UN SC
-subject to necessity and proportionality Principle of GPIL: Necessity to protect humanitarian law
-when Chapter VIII may be invoked -genocide: Erga Omnes Position: even if not victim state, can claim
…implementing collective security measures that there’s genocide
2. Erga omnes
1. Who implements? Which forces must act? 3. Being Parties to Genocide Convention, should take steps to prevent
---military force? genocide (lex specialis vs. Lex generalis – UN Charter)
2. How to implement? Obligatory on member states 4. Purpose of Self-defense – from threat or actual use of force
-now “threat” invokable, with the development of nukes
UN Forces 5. International humanitarian agency
-manned by volunteers of the UN members, pursuant to an agreement Sir: Sympathetic to the justifications BUT one can’t invoke exceptions
-under the administration and authority of the qMilitary Staff on an ad hoc basis
Committee (combined Chiefs of Staffs of permanent members of the SOLUTION: Democratize UN SC
UNSC) -violates sovereign immunity of states (this issue is actually gasgas)
*note: UN Peace Keeping Force not provided in the UN Charter
OIL PLATFORMS CASE
Is there a blanket authority for UN SC to issue Military Sanctions? Or is F: US bombed offshore oil production complexes allegedly as a
there an order? defense for 2 instances when its vessels were bombed
Art 41: Non-military sanctions first 1.Sea isle city attack: hit by a missile near Kuwait Harbour
>economic embargo
>severance of diplomatic relations
2.Warship struck a mine in International waters near Bahrain
…exhaust non-military sanctions first before resorting to Military -Reprisal! Illegal! You want to get even!
sanctions
SALONGA: VFA not relevant anymore because armed attacks are
DID UN MEMBERS ever have such UN Force? now illegal
No. No Agreement, no UN Force
But UN SC not prevented from implementing through UN ICJ:
Peacekeeping Force 1. US did not prove self-defense
-from states volunteering manpower (in pursuance to UN Convention) 2. Self-defense should be justified
But 1955 Treaty between Iran and US, which was invoked by Iran as
How do these troops ENTER sovereignties? basis for its COA, would only apply if the breach done by US involves
Supposedly, states REQUEST presence of UN Security Forces the violation of Iran’s Freedom of Commerce
-but sometimes, even w/o Request basta to enforce UN SC -in this case, Iran’s Freedom of Commerce NOT BREACHED because:
Resolutions 1. the Oil platforms hit were not functioning anymore
e.g. Operation Desert storm 2. There was already an Oil Embargo on UN before the attacks, so no
-All peacekeeping forces – not pursuant to IL because not in effect on the freedom of Iran to Commerce
accordance with UN Charter
ILLEGAL: NO compliance with UN Charter ICJ JURISDICTION
LEGAL : If allowed by GPIL + There’s UN SC Authority
Can PLO
…US, through a law, made PLO a terrorist group
MURASE: Not a matter of illegality but opposability
UN HEADQUARTERS CASE
-defines what a DISPUTE is
…UN SC has duty to preserve peace
SIR: By way of subject matter jurisdiction, ICJ can take cognizance of
ANY DISPUTE, including interpretation of treaties
ISSUS
1. Use of force: Illegal?
2. UN SC: primary jurisdiction, not exclusive
JURISDICTION OVER PARTIES
GA also can deal with threats to International Peace as well
+ UN SC permanent members have veto powers Consent Given
a.Compulsory consent
Are all use of force b.Reservations allowed
-not authorized Types of Reservations
-not self-defense
…legal?
i. Rationae personae: relating other parties
ii. Rationae tempore: time
Use of force by Humanitarian Intervention is deemed legal iii.Ratione materiae: subject matter
16PIL
notes Cha
Mendoza
*RP applies this kind of reservation
e.g. as to national territory
Qualifications of a UN State
1. Peace loving
2. Can carry out the functions as a member
UN SC recommend, GA authorize
> is UN SC recommendation necessary? Indispensable. Required to
have both! [ADMISSION CASE]
*If new state from former state, new state allowed to fly their flag, take
seat in UN GA assembly, is this enough?
No. Objective Criteria
Criteria
Continuation State: Inherent majority of
a. Territory
b. Population
c. Capital
d. Government
e. Land area
f. Public property
* But rule in state succession: successor state can choose what it want
to inherit
Contesting Jurisdiction
_inthe Preliminary Objections
I. Parties
II. Subject Matter
III. It affects a party who has interest but not party, ICJ
can’t exercise jurisdiction (a59)
e.g. Nauru v. Aus
Portugal vs. Aus
LOCKERBIE CASE
Libya didn’t want to surrender…