PIL Tacuboy

Public
International Law
Atty. Basilgo
IN GENERAL Behavior of states should be regarded as the
basis of international law
INTERNTIONAL Branch of Public law which regulates the Eclectic or Premised both on the natural moral law and
LAW relations of states and of other entities Grotian on common consent
which have been granted an Binding partly because it is good and right and

international personality partly because states have agreed to be

bound by it.

PUBLIC The Law of the Nations

INTERNATIONAL Deals with the conduct of States and Command Law consists of commands originating from a
LAW international organizations, their Theory sovereign and backed up by threats of
relations with each other and, in certain sanction if disobeyed; national law is not a law
circumstances, their relations with because it does not come from a command of
persons, natural or juridical. a sovereign

Consensual International law derives its binding force
PRIVATE Conflict of Laws
Theory from the consent of states
INTERNATIONAL Selects between conflicting municipal
Treaties and custom are expressions of
LAW systems of law to regulate the
consent
relationship between persons. It focuses
Hard Law binding international legal norms or those
on the conduct, not of States or
which have coercive character
international organizations, but rather on
the conduct of individuals, corporations Soft Law international instruments with purpose of
and other private entities promotion of norms which are believed to be good and
therefore should have general or universal application
Schools of Thought on PIL
(not recognized as treaties nor as legal norms)
Natural There is a natural and universal principle of International Comity rules of politeness,
Law right and wrong, independent of mutual convenience and goodwill observed by States in their
intercourse or compact which can be mutual intercourse without being legally bound by
discovered and recognized by every individual them.
through the use of his reason and conscience. International Ethics stresses considerations of justice
Positivist Based on consent of states. and morality
It is largely man-made, may vary from time to International Diplomacy based on expediency and
time and form place to place. self-interest
Tacuboy 1
Public International Law
Atty. Basilgo
International Administrative law body of rules International as a true law
formulated by states, in international conventions, for There are laws which have become valid rules of
the purpose of regulating their relations and activities conduct by mere agreement or by acceptance of
in connections with non-political matters as members of the community and are observed
international communication, patents and copyrights, because of their intrinsic merit.
promotion of health, educations and crime prevention.

Sanctions or Factors that influence observance

Towards all of IL:
a. obligation under general international law a. belief in the inherent wisdom of the law
Obligations Erga
that a State owes in any given case to b. habits of obedience

Omnes
international community c. fear of reprisals or punishment

b. obligation under multilateral treaty that d. respect for world opinion
State, party to a treaty, owes in any given e. united nations
case to all other State parties to same

Functions
treaty
To promote international peace and security
Peremptory Norms To foster friendly relations among nations and
norm accepted and recognized by the to discourage the use of force in solution of
international community of States as a whole for differences among them
which no derogation is permitted To provide for the orderly regulation of the
- can be modified only by a subsequent norm
Jus Cogens
conduct of states in their mutual dealings and

of general international law having same To insure international cooperation in the
character. pursuit of certain common purposes of an
a. Maxims of International law which protect
economic, social, cultural or humanitarian
foundations of law, peace and humanity
b. Rules of peaceful cooperation in the sphere of character.

international law which protects fundamental International Law Commission
common interests
Body created by the General Assembly in 1947
c. Protection of humanity, especially of human rights.
for the promotion of the progressive
From equity and conscience
Ex Aequo
Et Bono
development of international law and its

court decided the case not on legal
codification.
considerations but solely on what is fair and

reasonable.
Tacuboy 2
Atty. Basilgo
25 members of recognized competence in IL, Manner of Adopting International Law as Part of the
elected by general assembly for a term of 3 years State
and eligible for re-election. Doctrine of Incorporation
- A State is bound by generally accepted
International Law National/ Municipal Law principles of international law, the same
Law of coordination (by Law of subordination (issued being considered as part of its own laws
consent) by political superior) Doctrine of Transformation
Regulates relations of states Regulates relations of - Requires the enactment by the legislative
and other international individuals among body of international law principles as
persons themselves or with their own sought to be part of municipal law.
states - Transformation Doctrines:
Derived principally from Consists mainly of statutory a. Hard only legislation can transform
treaties, international enactments executive orders international law into domestic law
customs and general and judicial pronouncements b. Soft either a judicial or legislative act of
principles of law a State can transform international law
Resolved through state-to- Redressed through local into domestic law
state transactions administrative and judicial
processes Theories of Adaptation applied by the Philippines
Collective responsibility Individual responsibility Doctrine of Incorporation PH adopts GAPIL as
because it attaches directly part of law of the land (Const, Art II, Sec 2)
to the state and not its Transformation applied through the treaty-
nationals making power of the President, which shall become
effective upon concurrence of 2/3 of all members
Theoretical Approaches to Relationship between Intl and of Senate (Const, Art VII, Sec 21)
National Law Declaration in constitution is not necessary because
Monism No substantial distinction between international mere fact of membership in family of nations
and municipal law. imposes upon us the obligation to observe its rules,
Dualism International and national law are independent of w/n we expressly affirm our intention to do so.
each other and both are regarded as mutually Declaration is an assurance to the rest of the world
exclusive and independent. of our willingness to abide by the GAPIL

Tacuboy 3
Atty. Basilgo
In case of conflict between IL and Municipal/National Real Union created when 2 or more states are
Law merged under a central authority through which
International tribunals viewpoint: decision should they act in direction of their external affairs.
always incline in favor of IL (Norway & Sweden, Austria & Hungary)
Municipal tribunals viewpoint: decision is Federal Union combination of 2 or more states,
determined by considerations of self-interest. It upon merger, cease to be states, resulting in the
ML will favor state, it is applied, otherwise IL creation of a new state with full international
upheld. personality (US)

Confederation organization of states which retain
International Community their internal sovereignty and their external
The body of juridical entities which are governed sovereignty while delegating to the collective body
by IL. Traditionally called the family of nations. of power to represent them as a whole for certain
It is not solely composed of states, there are other limited purposes. Separation international relations
entities which are now considered subjects of IL are maintained.

Subjects of the Law - an entity that has rights and Personal Union 2 or more states are brought
responsibilities under international law and which has together under same monarch who nevertheless
the capacity to maintain its rights by bringing does not constitute 1 international person for
international claims. purpose of representing all of them.
1. States, dependent and independent Incorporate Union union of 1 or more states
- Independent State has full freedom in the under a central authority empower to direct both
direction of its affairs, both domestic and internal and external affairs and possess of a
foreign separate international personality (UK)

a. Simple where the direction of domestic - Classification:
and foreign affairs is placed in a central a. Sovereign States full membership in the
authority. international community
b. Composite consists of 2 or more states, b. Neutralized States upon which status of
each with its own separate government permanent neutrality was formally imposed
but bound under 1 central authority c. Dependent States those that have practically
exercising greater or less extent control complete control of their domestic affairs while
over their external relations, forming a they dont have complete freedom in direction of
separate international person. external affairs.
Tacuboy 4
Atty. Basilgo

Protectorate always retains a measure of 4. Belligerent communities
control over its external affairs. Established at - A group of rebels under an organized civil
the request of the weaker state for the
government who have taken up arms against
protection of a strong power
the legitimate government.
Suzerainty may or may not have control over
- When recognized, considered as a separate
external affairs. Result of a concession from a
state for purposes of the conflict and is entitled
state to a former colony which is allowed to
to all the rights and subjected to all obligations
become independent subject to retention of
of a full-fledged belligerent under the laws of
certain external affairs.
war.
d. Confederation and Union states which are
associated for certain specific purposes 5. Individuals

6. International organizations or administrative
2. United Nations bodies
- Enjoy privileges and immunities such as non- - When they are autonomousnot subject to
suability, inviolability of its premises and control of any state and purposes are mainly
archives and exemption from taxation. non-political
- Right of legislation and diplomatic agents - Trading corporations vested by sovereign with
possess privileges accorded regular envoys certain governmental powers over territory
- Can assert diplomatic claims for damages on placed under their jurisdiction.
behalf of its officials
- Can enter into treaties through Gen. Assembly, Object of International Law a person or thing
Security Council and Economic and Social indirectly vested with rights and obligations in the
Council international order. Persons or thing in respect of
- Can wage war through exercise of power to which rights are held and obligations assumed by the
take enforcement of action in case of actual subject.

breach of or threat to the peace of the world. SOJ v Lantion

3. Vatican City DOCTRINE OF INCORPORATION

- Exercises certain rights generally reserved to - Rules of international law for part of the law of the land no further
states such as the right of legation and right to legislative action is needed to make such rules applicable in the
domestic sphere. This doctrine is applied whenever local courts are
enter into treaties and a considerable number confronted with situations in which there is conflict between a rule
of states have recognized it as a member of of international law and the provisions of the constitution or statute
international community. of the local state.
Tacuboy 5
Atty. Basilgo
- Efforts should be exerted to harmonize them. In a situation,
however, where the conflict is irreconcilable, jurisprudence dictates Art 53, 1969 Vienna Convention on Treaties
that municipal law should be upheld by the municipal courts for the
reason that such courts are organs of municipal law and are
TREATIES CONFLICTING WITH A PEREMPTORY NORM OF
accordingly bound by it in all circumstances. GENERAL INTERNATIONAL LAW ("JUS COGENS")
- In states where the constitution is the highest law of the land, such A treaty is void if, at the time of its conclusion, it conflicts
as in the RP, both statutes and treaties may be invalidated if they with a peremptory norm of general international law. For the
are in conflict with the constitution. purposes of the present Convention, a peremptory norm of
(Here, the SC found that the RP-Extradition treaty was not really in
conflict with our Consti since it was silent on the existence of the rights
general international law is a norm accepted and recognized
of a prospective extraditee at the evaluation stage of the proceedings) by the international community of States as a whole as a
norm from which no derogation is permitted and which can
be modified only by a subsequent norm of general
SOURCES OF INTERNATIONAL LAW
international law having the same character.

Art 38, ICJ Statute
Sources of International Law
1. The Court, whose function is to decide in accordance
Primary Sources
with international law such disputes as are submitted to
International treaties and conventions
it, shall apply:
International custom
a. international conventions, whether general or
particular, establishing rules expressly recognized by General Principles of law
the contesting states; Secondary Source
b. international custom, as evidence of a general Judicial decisions
practice accepted as law; Teachings of the most highly qualified publicists of
c. the general principles of law recognized by civilized the various nations

nations; Treaty and Custom
d. subject to the provisions of Article 59, judicial Primary sources of international law.
decisions and the teachings of the most highly Treaty legal instrument which constitutes a material
qualified publicists of the various nations, as source of norms, treaty-making is a norm-creating
subsidiary means for the determination of rules of process. Conventional international law
law. Formation of custom is a norm creating method
2. This provision shall not prejudice the power of the Court considered a formal source of customary norms.
to decide a case ex aequo et bono, if the parties agree Customary international law
thereto.
Tacuboy 6
Atty. Basilgo
International Customary Law - Instant Custom
Consists of rules of law derived from the consistent A binding rule established by the
conduct of States acting out of the belief that the law spontaneous activity of a great number of
required them to act that way. states and need not be observed for a
Elements considerable period
1. Duration
2. Uniformity, Consistency of Practice Persistent Objector Rule

3. Generality of Practice - When a State persistently objects to a rule of
- Uniformity and consistency customary international law during the formative
4. State Practice years of the rule, it will not be bound by it.

- There must be evidence of substantial Cases on Customary Law
uniformity of practice by a substantial number Kuroda v Jalandoni (GR No L-2662)
of States RP Consti. adopts the generally accepted principles of international law
5. Opinio juris sive necessitates as part of the law of the nation. EO68 and prescribing rules and
- Opinion of law or necessity regulations governing the trial of accused war criminals is valid and
constitutional since Art. 2 of our Constitution provides in its section 3,
- The belief that this practice is rendered
that The Philippines renounces war as an instrument of national policy,
obligatory by the existence of a rule requiring and adopts the generally accepted principles of international law as part
it of the law of the nation. So even without local legislation, the
- Regional Custom Constitution has provided for the application of international law.
Practice among states within a particular The rules & regulations of the Hague, Geneva Conventions form part of
are wholly based on the generally accepted principles of international
area of the world which can be sufficiently law. Even if RP is not a signatory to the Hague Conv. and signed the
well established and accepted as law that is Geneva Conv. only in 1947, it cant be denied that the rules and
binding among the states of that region but regulations of the Hague and Geneva conv. form part of and are wholly
not elsewhere based on the generally accepted principles of international law. In fact,
- Special or Local Custom these rules and principles were accepted by the 2 belligerent nations, US
and Japan, who were signatories to the 2 Conventions. Such rules and
A long continued practice between 2 principles, therefore, form part of the law of our nation even if RP was
States accepted by them as regulating not a signatory to the conventions embodying them, for our Constitution
their relations that form the basis of has been deliberately general and extensive in its scope and is not
mutual rights and obligations confined to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or shall be
a signatory.

Tacuboy 7
Atty. Basilgo
Yamashita v Styer (GR No L-129) notwithstanding. What an unreconstituted document intended to prove
The Court held that his petition for habeas corpus is untenable since he may be shown by other competent evidence.
seeks no discharge from confinement but merely his restoration to his The lower court did not err in pronouncing appellee stateless. Appellees
former Prisoner of War status. Likewise, his petition for prohibition can testimony, besides being uncontradicted, is supported by the well-known
neither prosper since the MC is not made party respondent in this case. fact that the ruthlessness of modern dictatorships has scattered
War is not ended simply because hostilities have ceased. After cessation throughout the world a large number of stateless refugees or displaced
of armed hostilities, incidents of war may remain pending which should persons, without country and without flag. The tyrannical intolerance of
be disposed of as in time of war. "An important incident to a conduct of said dictatorships toward all opposition induced them to resort to beastly
war is the adoption of measures by the military command not only to oppression, con-centration camps and blood purges, and it is only natural
repel and defeat the enemies but to seize and subject to disciplinary that the not- so-fortunate ones who were able to escape to foreign
measures those enemies who in their attempt to thwart or impede our countries should feel the loss of all bonds of attachment to the hells which
military effort have violated the law of war." were formerly their fatherlands. Petitioner belongs to that group of
Under the laws of war, a military commander has an implied power to stateless refugees. Knowing, as all cultured persons all over the world
appoint and convene a military commission. This is upon the theory that ought to know, the history, nature and character of the Soviet
since the power to create a military commission is an aspect of waging dictatorship, presently the greatest menace to humanity and civilization,
war, military commanders have that power unless expressly withdrawn it would be technically fastidious to require further evidence of
from them. petitioners claim that he is stateless than his testimony that he owes no
By the Articles of War, and especially article 15, Congress of the United allegiance to the Russian Communist government and, because he has
States has explicitly provided, so far as it may constitutionally do so, that been at war with it, he fled from Russia to permanently reside in the
military tribunals shall have jurisdiction to try offenders or offenses Philippines.
against the law of war in appropriate cases.
There is nothing in the provisions of the Geneva Convention of July 27,
Case Concerning the Military and Parliamentary Activities in
1929, showing that previous to the trial of a war criminal a notice to the
"protecting power" of the vanquished belligerent is a prerequisite to the and Against Nicaragua
jurisdiction of military commissions appointed by the victorious Nicaragua v US (ICJ Reports 1986)
belligerent. The US violated the customary international law obligation on the use of
force when it laid mines in Nicaraguan ports, when it assisted the contras
Kookooritchkin v Solicitor General (GR No. L-1812) by organizing/encouraging the organization of irregular forces & armed
Attachment of the certificate of arrival is not essential to the validity of a bandsfor incursion into the territory of another state & participated
declaration of intention to become a Filipino citizen, because section 5 of in acts of civil strife in another state.
Commonwealth Act No. 473 merely uses the words has been issued. The US violated the sovereignty of another state when it directed aircrafts
That a certificate of arrival has been issued is a fact that should be to fly over Nicaraguan territory & when it laid mines in the internal waters
accepted upon the petitioners undisputed statement in his declaration of Nicaragua and its territorial sea. Basic concept of sovereignty in intl.
of July, 1940, that the certificate had actually been attached to the law is found in Art. 2 (1) of the UN Charter.
declaration, because it cannot be supposed that the receiving official The court looked extensively into the conduct of Nicaragua, El Salvador,
would have accepted the declaration without the certificate mentioned Costa Rica & Honduras in determining whether an armed attack was
therein as attached thereto. Petitioners declaration is valid under section undertaken by Nicaragua against the 3 countries-which in turn would
5 of the Naturalization Law, failure to reconstitute the certificate of arrival necessitate self-defense. None of the countries who were allegedly
Tacuboy 8
Atty. Basilgo
subject to an armed attack by Nicaragua declared themselves as a victim New Zealand v Franc (1974)
of an armed attack or requested assistance from the US. As a court of law, the ICJ is called upon to resolve existing disputes
between states. These disputes must continue to exist at the time when
Asylum Case the court makes its decision. In the present case, the dispute having
Colombia v Peru (ICJ Report 1950) disappeared, the claim no longer has any object and there is nothing on
In the Torres case, Colombia has asserted, as the State granting asylum, which to give judgment.
that it is competent to qualify the nature of the offence in a unilateral and Once the Court has found that a State has entered into a commitment
definitive manner that is binding on Peru. The court had to decide if such concerning its future conduct, it is not the Courts function to
a decision was binding on Peru either because of treaty law (Havana contemplate that it will not comply with it.
Convention of 1928 and the Montevideo Convention of 1933), other
principles of international law or by way of regional or local custom. The Australia v France (1974)
court held that there was no expressed or implied right of unilateral and The Court has indicated interim measures on the basis of Article 41 of its
definitive qualification of the State that grants asylum under the Havana Statute and taking into account the following conditions inter alia:
Convention or relevant principles of international law. The Montevideo - Material submitted to Court leads it to the conclusion that the
Convention of 1933, which accepts the right of unilateral qualification, provisons invoked by Applicant with regard to Courts jurisdiction
and on which Colombia relied to justify its unilateral qualification, was appear prima facie, to afford basis on which jurisdiction might be
not ratified by Peru. The court concluded that Columbia, as the State founded;
granting asylum, is not competent to qualify the offence by a unilateral - Cannot be assumed a priori that claims of Australian Government fall
and definitive decision, binding on Peru. completely outside of Courts jurisdiction;
In this case the Peruvian government had not asked that Torre leave Peru. - The information submitted to the Court does not exclude the
On the contrary, it contested the legality of asylum granted to him and possibility that damage to Australia might be shown to be caused by
refused to grant safe conduct. The court looked at the possibility of a deposit on Australian territory of radio-active fall-out resulting from
customary law emerging from State practice where diplomatic agents tests and to be irreparable.
have requested and been granted safe passage for asylum seekers, Court made an Order indicating the following provisional measures of
before the territorial State could request for his departure. Once more, protection:
the court held that these practices were a result of a need for expediency - Governments of Australia and France should each of them ensure
and other practice considerations over an existence of a belief that the that no action of any kind is taken which might aggravate the dispute
act amounts to a legal obligation or prejudice rights of the other Party in respect of carrying out
Asylum may be granted on humanitarian grounds to protect political whatever decision the Court may render; and
prisoners against the violent and disorderly action of irresponsible - French Government should avoid nuclear tests causing the deposit of
sections of the population. (for example during a mob attack where the radio-active fall out on Australian territory.
territorial State is unable to protect the offender). Torre was not in such
a situation at the time when he sought refuge in the Colombian Embassy New Zealand v France (1995)
at Lima. The court concluded that the grant of asylum and reasons for its As a court of law, the ICJ is called upon to resolve existing disputes
prolongation were not in conformity with Article 2(2) of the Havana between states. These disputes must continue to exist at the time when
Convention. the court makes its decision. In the present case, the dispute having
disappeared, the claim no longer has any object and there is nothing on
Nuclear Test Cases (ICJ Reports) which to give judgment.
Tacuboy 9
Atty. Basilgo
Once the Court has found that a State has entered into a commitment enforcement of that obligation is left to the normal recourse and
concerning its future conduct, it is not the Courts function to processes under international law.
contemplate that it will not comply with it.
ACTORS IN INTERNATIONAL LAW
Cases on General Principles of Law
Salonga v Executive Secretary (GR No. 176051) States
- The VFA is constitutional for being an implementing agreement of A group of people permanently living in a definite
the RP-US Military Defense Treaty, which has been ratified &
concurred by both US & Philippine Senates. Also, the VFA
territory, under an independent government organized
provisions regarding the detention & custody of foreign military for political ends and capable of entering into legal
forces are not in violation of the Constitutional mandate about the relations with other states

Courts exclusive power of promulgating rules of procedure. On
the other hand, the Romulo-Kenney agreement is void for not Facts of Statehood
being in accord with the VFA P permanent population/people
- Article XVIII, Sec. 25 of the Constitution is designed to ensure that T defined territory
any agreement allowing the presence of foreign military bases, G government
troops or facilities in Philippine territory shall be equally binding on
C capacity to enter into relations with other states
the Philippines and the foreign sovereign State involved, the idea
being to prevent a recurrence of what happened in the past. S sovereignty or independence

- The provision was adopted in the 1987 Constitution. It is designed
to ensure that any agreement allowing the presence of foreign
military bases, troops or facilities in Philippine territory shall be Essential Elements of State
equally binding on the Philippines and the foreign sovereign State
- Inhabitants of a state.
involved. The idea is to prevent a recurrence of the situation in
which the terms and conditions governing the presence of foreign - They are regarded as a single unit and must come
from both sexes so as to be able to perpetuate
People
armed forces in our territory were binding upon us but not upon the
foreign State. themselves.
- The framers of the Constitution were aware that the application of - Must be big enough to sustain itself and maintain
international law in domestic courts varies from country to country.
its security and small enough to be easily
- DIRECT APPLICATION OF INTERNATIONAL CRIMINAL LAW IN
NATIONAL COURTS, some countries require legislation whereas governed
others do not. It was not the intention of the framers of the 1987
Constitution, in adopting Article XVIII, Sec. 25, to require the other
contracting State to convert their system to achieve alignment and
parity with ours. It was simply required that the treaty be
recognized as a treaty by the other contracting State. With that, it
becomes for both parties a binding international obligation and the
Tacuboy 10
Atty. Basilgo

- Fixed portion of the surface of the earth on which
the population of state resides. Fundamental Rights
- Fixed so that jurisdiction of state may be Right of existence and self-defense
Territory
ascertained. Right of independence

- Size does not matter as long as the state is able to Right of equality
comply with international obligations. Right of property and jurisdiction
- Should be big enough to provide for needs of Right of legation or diplomatic intercourse

inhabitants Principle of State Continuity
- The agency through which the will of the state is - Legal existence of a state continues notwithstanding
Government
formulated, expressed and realized. changes in the size of its population or territory or in the
- The instrumentality that represents the state in its form or leadership of its government as long as the four
dealings with other international persons. essential elements of statehood are retained.
- State can assert rights and be held responsible - State is immortal as long as it has PTGS, if any of the
through government elements disappear, the self is extinguished or dies.
- Sovereignty and independence are used
interchangeable How State is Extinguished
Independence
- Independence is only the external manifestation of - Through natural causes (epidemic or disaster)
sovereignty which embraces power over internal - Artificial means
matters. o Anarchy
- Power of a state to administer its external affairs o Mass emigration of population
without direction or interference from another o Annexation
state. o Merger or unification
o Dismemberment

o Dissolution of a federal union
Creation
o Partial loss of independence
State may be created in any of the ff:
- By peaceful acquisition of independence Principle of State Succession
- By revolution - The substitution of one state by another, latter taking
- By unification of several states over the rights and some of the obligations of the former.
- By succession - Universal: state is completely annexed by another or
- By agreement dismembered or dissolved. Merger of 1 or more states.
- By attainment of civilization
Tacuboy 11
Atty. Basilgo
- Partial: portion of territory of a state is ceded or when enter into treaties, to establish blockades and to act
state losses part of its sovereignty by joining a as the foreign policy spokesman of the nation.

confederation or becoming protectorate or suzerainty.
Forms
Effects of State Succession - Express verbal or writing
- Allegiance of inhabitants of predecessor state transferred - Implied the recognizing and recognized states enter
to successor into a treaty regulating their relations in general or
- Political laws of predecessor state are automatically when they exchange diplomatic representatives.

abrogated but non-political laws are continued unless
expressly repealed or contrary to the institutions of the Recognition
new sovereign. De Jure De Facto
- Public property of the predecessor state is acquired by Relatively permanent Provisional (duration of
the successor state but not the tort liability. armed struggle)
- Treaties entered into by the predecessor state are not Vests title to properties of Does not vest title to
considered binding on successor except those dealing government abroad properties of government
with local rights and duties abroad
Brings about full diplomatic Limited to certain juridical
Recognition relations relations
An act by which a state acknowledges the existence of
another state, government or belligerent community and Doctrines

indicates its willingness to deal with the entity as such Wilson/Tobar Precludes recognition of government
under rules of IL. Doctrine established by revolution, civil war, coup
Declaratory and discretionary or political merely affirms dtat or other forms of internal violence
an existing fact until the freely elected representatives of
Constitutive and compulsory acts of recognition that the people have organized a
constitutes the recognized entity into an international constitutional government
person. Kelsen Doctrine State violates IL and infringes upon rights
of other states if it recognizes as a state a
Power of Recognition community which does not fulfill the
- President of the Philippines by virtue of his authority requirements of IL
to send and receive diplomatic representatives, to Betancourt Antipathy for non-democratic rule, which
Doctrine denied diplomatic recognition to any
Tacuboy 12
Atty. Basilgo
regime, right or left, which came to delimitation with physical objects such
power by military force as concrete posts, stone cairns. Etc.
Lauterpacht Precludes the recognition of any entity Inter- The claim or situation in question has
Doctrine which is not legally a state is wrong Temporal to be examined according to the
because it constitutes an abuse of the Rule conditions and rules in existence at the
power of recognition which an time it was made and not at a later
international tribunal would declare not date.
only to constitute a wrong but probably While creation of particular rights was
also to be in itself valid. dependent upon IL of the time,
Stimson Precludes recognition of any government continued existence of such rights
Doctrine established as a result of external depend upon the evolving conditions
aggression of a developing legal system
Estrada Dealing or not dealing with the Critical Date Rights of parties to a territorial dispute
Doctrine government established through a Rule have so crystallized that what they do
political upheaval is not a judgment on after does not affect legal position
the legitimacy of the said government Hinterland State that discovers and occupies the
Doctrine coast shall also have an exclusive right
1. Territorial Sovereignty to occupy the hinterland (uncharted
Defined by geographical areas separated by areas beyond coastal district)
borderlines from other areas and united under a Sector Making claims on frozen sea of ice
common legal systems. Principle territory or remote group of islands in
Includes air space above the land and earth beneath it. the Arctic
It also includes up to 12 miles of the territorial sea Doctrine of Territory of a State includes a
adjacent to the coast. Appurtenance territorial sea and the airspace above

Concepts: its land territory and its territorial sea.

The possession of this territory is not
Delimitation Process of determining the land or
optional but compulsory
maritime boundaries of a State by
means of geographical coordinates of Doctrine of Transfer of sovereignty occurs and the
latitude and longitude. Reversion successor is recognized as recovering a
Demarcation Further process and separate previous state of independence, the
procedure of marking a line of
Tacuboy 13
Atty. Basilgo
successor would not be bound by
territorial grants by previous holder. Modes of Acquiring Modes of Losing
Cession Prescription
Modes of Acquiring Discovery and Occupation Erosion
Cession Transferred from 1 state to another by Prescription Cession
agreement between them Accretion Dereliction or other
Discovery Original mode by which territory not Conquest and natural causes
and belonging to any state (terra nullius) is Subjugation
Occupation placed under the sovereignty of the
discovering state Outer Space
Requisites: - Are that lies beyond the airspace of the Earth. But
a. Intention or will to act as sovereign as where it begins, there is no universally accepted
b. Some actual exercise or display of reference point.
authority - The outer space, including the moon and other
Inchoate Title of Discovery celestial bodies, is not subject to national
- The title is acquired by claimant appropriation by claim of sovereignty, by means of
state pending compliance with 2nd use or occupation or by any other means.

requirement which is administration
Prescription Continuous and uninterrupted Exploration and Use
possession over a long period of time - Exploration and use of outer space including the
Doctrine of Immemorial Prescription moon and other celestial bodies shall be carried
- Long and uninterrupted possession out for the benefit and interest of all countries,
by one nation excludes the claim of irrespective of their degree of economic or
every other. It must depend upon scientific development, and shall be the province
varying and variable circumstances of all mankind.

Accretion Accomplished through both natural or Prohibition of Use for Military Application
artificial processes by gradual and - Moon and other celestial bodies shall be used
imperceptible deposit of soil exclusively for peaceful operation.
Subjugation Having been previously conquered or - Prohibited:
occupied in the course of war of the
enemy.
Tacuboy 14
Atty. Basilgo
a. Placing in orbit around earth any objects SS Lotus Case, PCIJ
carrying nuclear weapons or other weapons of - Jurisdiction is territorial: A State cannot exercise its jurisdiction
outside its territory unless an international treaty or customary law
mass destruction permits it to do so.
b. Installing such weapons in celestial bodies - Within its territory, a State may exercise its jurisdiction, on any
c. Station such weapons in outer space in any matter, even if there is no specific rule of international law
other manner permitting it to do so.
d. Establishment of military bases, installations - International law governs relations between independent States.
The rules of law binding upon States therefor emanate from their
and fortifications own free will as expressed in conventions or by usages generally
e. Testing of any type of weapons accepted as expressing principles of law and established in order to
f. Conduct of military maneuvers regulate the relations between these co-existing independent
communities or with a view to the achievement of common aims.
Jurisdiction Restrictions upon the independence of States cannot therefore be
- A state on whose registry an object launched into presumed
outer space is carried shall retain jurisdiction and - Criminal Jurisdiction: France, as the flag State, did not enjoy
exclusive territorial jurisdiction in the high seas in respect of a
control over such object collision with a vessel carrying the flag of another State. The Court
held that Turkey and France both have jurisdiction in respect of the
Liability whole incident
- The State which launches the object or from - a State would have territorial jurisdiction, even if the crime was
whose territory the object is launched shall be committed outside its territory, so long as a constitutive element of
liable for damage of any object or its component the crime was committed in that State.

or parts. 2. UNCLOS

Cases Binds States and other subjects of international law in
Bishop Pedro Dulay et al v. Executive Secretary Eduardo Ermita their maritime affairs

EO 683 is constitutional. The reliefs sought by petitioners are linked to Governing Principles
the issue on whether Cargo-Malampaya natural gas reservoir is within
the territorial jurisdiction of Palawan and forms part of territorial
Principle of Freedom ensure the freedom of
jurisdiction of the Philippines. The Court took judicial notice of the various uses of the oceans
efforts of both executive and legislative branch to arrive at a common Principle of Sovereignty seeks to safeguard the
position in redefining the countries baseline in light of UNCLOS. For the interests of coastal States
Court to rule on this case would be premature and tantamount to a
Principle of Common Heritage of Mankind seeks
collateral adjudication of the archipelagic baseline, which is a policy
determination that should be left to both branches of government. to promote the common interest of all people

Tacuboy 15
Atty. Basilgo
Baselines Those waters which lie landward of the baseline
Normal baseline low-water line along the coast from the territorial sea is measured. It includes:
as marked on large-scale charts officially W waters enclosed by straight baselines
recognized by the coastal State E estuaries
Straight baseline a system of straight lines L landward waters from the closing line of
joining specified or discrete points on the low- bays
water line used only in localities where the P parts of the sea along the coast down to the
coastline is deeply indented and cut into baselines low-water mark; and
are drawn across water, not along the coast. P - ports and harbors

Closing Lines Across River Mouths and Bays
- Rivers: directly into the sea, the baseline shall Thalweg In the absence of an agreement between
be a straight across the mouth of the river Doctrine the riparian states, the boundary line is
between points on the low-water line of its laid on the middle of the main navigable
banks channel
- Bays: customary law has allowed the coastal Middle of Where there is a bridge over a boundary
State to draw a closing line across the the Bridge river, the boundary line is the middle or
entrance of a bay where the landward waters Doctrine center of the bridge.

from the closing line have become internal Magallona et al v Executive Secretary (GR No 187167)
waters RA 9522 effectively classified the Kalayaan island group and the
Scarborough Shoal as Regime of island consistent with UNCLOS III
Maximum Length of Baseline of Bays which manifests the Philippine States responsible observance of its
Distance Between low- Pacta sunt servanda obligation
water marks on the natural Effect on baseline The recognition of archipelagic States archipelago and the waters
entrance points of a bay enclosed by their baselines as one cohesive entity prevents the
24 nautical miles A closing line may be drawn treatment of their islands as separate islands under UNCLOS III.
between the 2 low-water marks Separate islands generate their own maritime zones, placing the
>24 nautical miles A straight baseline of 24 nautical waters between islands separated by more than 24 nautical miles
beyond the States territorial sovereignty, subjecting these waters to
miles shall be drawn within the bay
the rights of other States under UNCLOS III. UNCLOS III favors States
in such a manner as to enclose the
with a long coastline like the Philippines. UNCLOS III creates a sui
max area of water that is possible generis maritime spacethe exclusive economic zonein waters
within a line of that length previously part of the high seas.

UNCLOS III grants new rights to coastal States to exclusively exploit
a. Internal Waters the resources found within this zone up to 200 nautical miles. UNCLOS
Tacuboy 16
Atty. Basilgo
III, however, preserves the traditional freedom of navigation of other latter. Since the territorial sea is closely dependent upon the land
States that attached to this zone beyond the territorial sea before domain, the base-line must not depart to any appreciable extent from
UNCLOS the general direction of the coast; certain waters are closely linked to
Absent an UNCLOS III compliant baselines law, an archipelagic State the land formations which divide or surround them so it may be
like the Philippines will find itself devoid of internationally acceptable necessary to have regard to certain economic interests peculiar to a
baselines from where the breadth of its maritime zones and region when their reality and importance are clearly evidenced by a long
continental shelf is measured. This is recipe for a two-fronted disaster: usage. Judgment notes that a Norwegian Decree of 1812 as well as
first, it sends an open invitation to the seafaring powers to freely other decrees show that the method of straight lines, imposed by
enter and exploit the resources in the waters and submarine areas geography, has been established in the Norwegian system and
around our archipelago; and second, it weakens the countrys case in consolidated by a constant and sufficiently long practice. The general
any international dispute over Philippine maritime space. These are toleration of the international community also shows that the
consequences Congress wisely avoided. Norwegian system was not regarded as contrary to international law.
The enactment of UNCLOS III compliant baselines law for the Philippine Judgment concludes that the lines drawn were justified. The exclusive
archipelago and adjacent areas, as embodied in RA 9522, allows an privilege to fish and hunt whales granted in the 17 th century to a
internationally-recognized delimitation of the breadth of the Norwegian subject, from which it follows that these waters were
Philippines maritime zones and continental shelf. RA 9522 is therefore regarded as falling exclusively within Norwegian sovereignty.
a most vital step on the part of the Philippines in safeguarding its El Slavador v Honduras (ICJ 1991)
maritime zones, consistent with the Constitution and our national - Islands of the Gulf of Fonseca. None of the islands had been terra
interest. nullius in 1821, the date of independence. Thus, sovereignty over

the islands had been achieved according to the uti possidetis juris
b. Territorial Sea principle (colonial boundaries are continually adopted). However,
A marine space under the territorial sovereignty the application of this principle suffered from the lack of
of the coastal State up to a limit not exceeding documents that might have testified clearly the appertainance of
12 nautical miles measured from baselines. the islands to one administrative district or the other. Thus the
Court was forced to concentrate more on the behaviour of the
It comprises the seabed and its subsoil, the parties with regard to the islands after 1821. On this basis the
adjacent waters and its airspace. Court found that El Tigre appertained to Honduras and Meanguera
Right of Innocent Passage it is the right of and Meanguerita to El Salvador.
foreign merchant ships (as distinct from - Gulf of Fonseca = Juridical Bay under UNCLOS and Historical Bay
under Customary International Law. Considering the dimensions
warships) to pass unhindered through the
and proportions, the Gulf would today be regarded as a juridical
territorial sea of a coast. bay in accordance with UNCLOS. However, the Gulf was not a
single State bay but constituted a so called historical bay, which is
Anglo-Norwegian Fisheries Case (ICJ 1951) neither defined in the 1958 Convention nor in the Convention of
The court, confining itself to the conclusions of UK, finds that it does not 1982. From this fact the Court concluded that its decision had to
violate international law. But the delimitation of the sea areas has be taken on the basis of customary international law. Court looked
always an international aspect since it interests States other than the at the Central American Court of Justice of 1917 conclusion that
coastal State, so it cannot be dependent merely upon the will of the the Gulf of Fonseca effectively constituted a "closed sea"
Tacuboy 17
Atty. Basilgo
belonging to all three coastal States communally, with the outermost permanent harbor works that form an integral part of
exception of a three mile zone established unilaterally by each the harbor system within the meaning of Article 8 of the
coastal State. Thus, the Central American Court viewed the Gulf of Convention on the Territorial Sea and the Contiguous Zone.
Fonseca as a condominium resulting from the succession of the - Inland waters mean waters landward of the baseline of the
three States from Spain in 1821. Until then, the Gulf had been a territorial sea, which are now recognized as internal waters of the
single State bay belonging to Spain alone. According to the Court, United States under the Convention on the Territorial Sea and the
the decision of the Central American Court underlined the fact Contiguous Zone.
that at the time of independence, no boundaries were delimited in - The parties shall submit to the Court for its approval any
the Gulf and thus the waters had remained undivided. stipulation or stipulations that they may enter into, identifying
- Court held that Gulf of Fonseca was a case of "historic waters", with greater particularity all or any part of the boundary line, as
whereby the three coastal States had succeeded to communal defined by this decree, between the submerged lands of the
sovereignty. In contrast to the frontier delimited on land, the United States and the submerged lands of the State of California,
waters of the Gulf had never been divided or otherwise delimited or identifying any of the areas reserved to the United States by 5
after the independence of the three coastal States. Thus, the of the Submerged Lands Act. As to any portion of such boundary
communal succession for the three States was a logical line or of any areas claimed to have been reserved under 5 of
consequence of the uti possidetis juris principle with regard to the the Submerged Lands Act as to which the parties may be unable to
sovereignty of the Gulf.so as to be judicially recognized and agree, either party may apply to the Court at any time for entry of
determined" a further supplemental decree.
US v California (382 US 448) US v Louisiana (382 US 11)
- The Court ordered that the decree entered in this cause in 27 - That part of Louisianas coastline, which, under the Submerged
October 1947, be modified to read as follows: Against State of Lands Act, consists of the line marking the seaward limit of inland
California and all persons claiming under it the subsoil and waters, is to be drawn in accordance with the Conventions
seabed of the continental shelf, more that 3 geographical miles definitions. In US v. California, the Court held that the
seaward from the nearest point or points on the coast line, at all Conventions definitions were the best and most workable
times pertinent hereto have appertained and now pertain to the available and adopted them for the purpose of the Submerged
US and have been and now subject to its exclusive jurisdiction, Lands Act. Louisiana argues initially that the 1895 Act is in pari
control and power of disposition. State of California has no title or materia with the Submerged Lands Act. Congress, it is said, must
property interest therein. Pursuant to the Submerged Lands Act, have contemplated that a technical term such as inland waters
California has title to and ownership of the tidelands along its should have the same meaning in different statutes. The phrase
coast and the submerged lands, minerals, other natural resources appears, however, in quite different contexts in the two pieces of
and improvements underlying the inland waters and the waters of legislation.
the Pacific Ocean within 3 geographical miles seaward from the - While the Submerged Lands Act established boundaries between
coast line. Conversely, the subsoil and seabed of the continental the lands of the States and the Nation, Congress only concern in
shelf, more than three geographical miles seaward from the the 1895 Act was with the problem of navigation in waters close
nearest point or points on the coast line appertain to the United to this Nations shores. There is no evidence in the legislative
States. history that it was the purpose of Congress in 1953 to tie the
- coast line - the line marking the seaward limit of inland waters meaning of the phrase inland waters to the 1895 statute.
which is taken by natural or artificial means, and includes the
Tacuboy 18
Atty. Basilgo
- The Courts adoption of the Conventions definition was for b. Outlying or Mid-Ocean group of islands situated
purposes of the Submerged Lands Act and not simply for the in the ocean at such distance from the coasts of firm
purpose of delineating a particular states coastline. If the
inconvenience of an ambulatory coastline proves substantial, the
land as to be considered as an independent whole
problems may be resolved through legislation or agreement rather than forming part of or outer coastline of the
between the parties. mainland

c. Straits Condition for Drawing Archipelagic Baselines:
a. Archipelagic waters must include main islands, and the ratio
a narrow passageway connecting 2 bodies of of the area of the water to the area of the land, including atolls
water. If the distance between the 2 opposite is between 1 to 1 and 9 to 1;
coasts is not more than 6 miles they are b. The length of the baselines shall not exceed 100 nm; however
considered internal waters up to 3% of the total number of baselines enclosing any
archipelago may exceed that length up to a maximum length

of 125 nm
d. Archipelagos c. The drawing of the baselines shall not depart to any
Group of islands including parts of islands appreciable extent from the general any appreciable extent
interconnecting waters, and other natural features from the general configuration of the archipelago
which are so closely interrelated that such islands, d. The baselines shall not be drawn to and from low-tide
elevations, unless lighthouses or similar installations which
waters and other natural features form an intrinsic are permanently above sea level have been built on them or
geographical, economic and political entity which where a low-tide elevation is situated wholly or partly at a
historically have been regarded as such. distance not exceeding the breadth of the territorial sea from
the nearest island
Requisites e. The system of baselines shall not be applied in such a manner
a. Existence of a group of islands as to cut off from the high seas or the EEZ the territorial sea of
b. Historical practice another State
f. If a part of the archipelagic waters of an archipelagic State lies
c. Existence of an intrinsic geographical, between 2 parts of an immediately adjacent neighboring
economic and political entity State, existing rights and all other legitimate interests which
d. Compactness or adjacency of islands. the latter State has traditionally exercised in such waters and
all rights stipulated by agreement between those States shall

continue and be respected

g. For the purpose of computing the ratio of water to land under
Kinds of Archipelago Par 1, land areas may include waters lying within the fringing
a. Coastal group of islands situated so close to a reeds of islands and atolls, including that part of a steep-sided
mainland that they may be considered a part oceanic plateau which is enclosed or nearly enclosed by a
thereof
Tacuboy 19
Atty. Basilgo
chain of limestone islands and drying reefs lying on the UNCLOS
perimeter of the plateau
Art 49 The waters enclosed by the archipelagic baselines
h. The baselines shall be shown on charts of a scale adequate for
ascertaining their position. Alternatively lists of geographical drawn in accordance with Art 47 regardless of their
coordinates of points specifying the geodetic datum may be depth of distance from the coast. An archipelagic
submitted State exercises territorial sovereignty over its
i. State shall give due publicity to such charts or list of archipelagic waters.
geographical coordinates and shall deposit a copy of each Art 52 Requisites for Suspension of Right of Innocent
such chart or list with the UN secretary-general.

Passage in Archipelagic Waters:
Archipelagic Baselines P shall take effect only after having
Under RA9522 baselines laws are enacted by been duly published
UNCLOS III State parties to mark-out specific E such suspension is essential for the
basepoints along their coasts from which protection of its security
baselines are drawn, either straight or contoured, W suspension is made without
to serve as geographic starting points to measure discrimination
the breadth of the maritime zones and continental T suspension is only temporary
shelf. S specify the areas of its archipelagic
waters where innocent passage shall
not be allowed.
Legend:
Baseline (RA 5448)
Art 53 Archipelagic Sea Lanes Passage
Baseline (RA 9522)

200M EEZ
- The exercise in accordance with UNCLOS III of
the rights of navigation and overflight in the

Top & US-UK Treaty Limits

PD1596
normal mode solely for the purpose of
continuous, expeditious and unobstructed
transit between one part of the high seas or an
exclusive economic zone and another part of
the high seas or an exclusive economic zone)

e. The Contiguous Zone

This is an area of water not exceeding 24 nautical
miles from the baseline. It thus extends 12
nautical miles from the edge of the territorial sea.
The coastal state exercises authority over that
Tacuboy 20
Atty. Basilgo
area to the extent necessary to prevent installations, and to erect a safety zone over its
infringement of its customs, fiscal, immigration, or installations with a radius of 500 meters. These
sanitation authority over its territorial waters or rights do not depend on occupation, effective
territory and to punish such infringement. or notional, or any express proclamation. This
Take note that the power of control does not right does not affect the right of navigation of
change the nature of the waters. Beyond the others. Moreover, this right does not extend to
territorial sea, the waters are high sea and not non-resource material in the shelf area such as
subject to the sovereignty of the coastal state. wrecked ships and their cargoes. Coastal states
This was added as a response to ships which also have the right to regulate, authorize, and
would linger in areas beyond the States conduct marine scientific research on the
jurisdiction, thus beyond the States criminal continental shelf.
jurisdiction, but would do acts inimical to the Take note that artificial islands or installations
coastal State. Remember that the jurisdiction is are not islands under UNCLOS, though coastal
limited; beyond the 4 areas, follow the regime of states may establish safety zones and prescribe
the EEZ. Take note that this is the only optional safety measures around them. Islands do have
regime. their own continental shelves.

f. The Continental Shelf Libya v Malta (ICJ 1985)
A. The principles and rules of international law applicable for the
The continental shelf of a coastal State
delimitation, to be effected by agreement in implementation of
This refers to the present Judgment, of the areas of continental shelf
a. the seabed and subsoil of the submarine appertaining to the Socialist Peoples Libyan Arab Jamahiriya and
areas adjacent to the coastal state but to the Republic of Malta respectively are as follows:
outside the territorial sea, to a depth of 200 - The delimitation is to be effected in accordance with
equitable principles and taking account of all relevant
meters or, beyond that limit, to where the
circumstances, so as to arrive at an equitable result;
depth allows exploitation; and - The area of continental shelf to be found to appertain to
b. the seabed and subsoil of areas adjacent to either Party not extending more than 200 miles from the
islands. Under specified circumstances the coast of the Party concerned, no criterion for delimitation of
continental shelf can extend up to a shelf areas can be derived from the principle of natural
prolongation in the physical sense.
distance of 350 miles. B. The circumstances and factors to be taken into account in
The coastal state has the right to explore and achieving an equitable delimitation in the present case are the
exploit its natural resources, to erect needed following:
Tacuboy 21
Atty. Basilgo
- The general configuration of the coasts of the Parties, their - The UNCLOS gives to the coastal State sovereign rights in varying
oppositeness, and their relationship to each other within the degrees over the different zones of the sea which are: 1) internal
general geographical context; waters, 2) territorial sea, 3) contiguous zone, 4) exclusive
- The disparity in the lengths of the relevant coasts of the economic zone, and 5) the high seas. It also gives coastal States
Parties and the distance between them more or less jurisdiction over foreign vessels depending on where
C. The need to avoid in the delimitation any excessive the vessel is located
disproportion between the extent of the continental shelf areas - Insofar as the internal waters and territorial sea is concerned, the
appertaining to the coastal State and the length of the relevant Coastal State exercises sovereignty, subject to the UNCLOS and
part of its coast, measured in the general direction of the other rules of international law.
coastlines. - An exception to sovereign immunity granted by state. The flag
D. In consequence, an equitable result may be arrived at by State shall bear international responsibility for any loss or damage
drawing, as a first stage in the process, a median line every point to the coastal State resulting from the noncompliance by a
of which is equidistant from the low-water mark of the relevant warship or other government ship operated for noncommercial
coast of Malta (excluding the islet of Filfla), and the low-water purposes with the laws and regulations of the coastal State
mark of the relevant coast of Libya, that initial line being then concerning passage through the territorial sea or with the
subject to adjustment in the light of the above-mentioned provisions of this Convention or other rules of international law.
circumstances and factors
E. The adjustment of the median line referred to in subparagraph C g. Exclusive Economic Zone
above is to be effected by transposing that line northwards
The EEZ is an area beyond and adjacent to the
through eighteen minutes of latitude (so that it intersects the
meridian 15 E at approximately latitude 34; N) such transposed territorial sea, not extending beyond 200 nm form
line then constituting the delimitation line between the areas of the baseline of territorial sea. The coastal State must
continental shelf appertaining to the Socialist Peoples Libyan claim the zone in order to establish an EEZ
Arab Jamahiriya and to the Republic of Malta respectively.
Arigo v Swift (Petition for Writ of Kalikasan 2014) Rights, Jurisdiction and Duties of the Coastal State
- During the deliberations, Senior Associate Justice Antonio T. in EEZ: (UNCLOS III Art 56, Par 1)
Carpio took the position that the conduct of the US in this case, 1. Sovereign rights for the purpose of exploring,
when its warship entered a restricted area exploiting, conserving and managing the natural
- in violation of R.A. No. 10067 and caused damage to the TRNP reef
system, brings the matter within the ambit of Article 31 of the
resources, whether living or non-living, of the
United Nations Convention on the Law of the Sea (UNCLOS). waters superjacent to the seabed and of the
- He explained that while historically, warships enjoy sovereign seabed and its subsoil and with regard to other
immunity from suit as extensions of their flag State, Art. 31 of the activities for the economic exploitation and
UNCLOS creates an exception to this rule in cases where they fail exploration of the zone, such as the production of
to comply with the rules and regulations of the coastal State
regarding passage through the latters internal waters and the
energy from the water, current and winds
territorial sea. 2. Jurisdiction as provided by UNCLOS III with regard
to:
Tacuboy 22
Atty. Basilgo
a. Establishment and use of artificial islands, All parts of the sea that are not within an EEZ, the
installations and structures territorial sea, internal waters or archipelagic
b. Marine scientific research waters. (UNCLOS III Art 86)
c. The protection and preservation of marine No state may subject any part of the high seas to
environment its sovereignty (UNCLOS III Art 89)
3. Other rights and duties provided for in UNCLOS III All states including land-locked states, enjoy the

h. Delimitation of Maritime Boundaries freedoms of the high seas. They are not absolute,
Regarding the delimitation of the territorial sea but must be exercised with due regard for the
between States with opposite or adjacent coasts, interests of other states in their exercise of the
neither of them is entitled to extend its territorial same freedoms (UNCLOS III Art 87)
sea beyond the median line every point of which is
equidistant from the nearest points on the Jurisdiction over Collision Cases
baselines of each of them, unless they agree to do - In the event of a collision or other incident of
so, or if historic title or other special circumstances navigation concerning a ship on the high seas,
make it necessary to delimit the territorial seas in penal and administrative jurisdiction is now
other ways. limited to: (UNCLOS III Art 97)
The delimitation of the EEZ and continental shelf 1. Flag State of the vessel alleged to be
between States with opposite or adjacent coasts responsible, and
must be done by agreement on the basis of 2. State of nationality of accused

international law (ex. equitable principles which Right of Hot Pursuit
have a normative character as part of general - Allows the competent authorities of the coastal
international law). Pending this they may make State to pursue a foreign ship in the high seas
provisional arrangements of a practical nature, and when they have good reason to believe that the
they must not jeopardize or hamper the reaching of shop has violated the laws and regulations of
a final agreement. If no agreement can be reached that state (UNCLOS III Art 111)
within a reasonable period of time, the parties shall
resort to peaceful means of dispute settlement. Nationality of Vessels

- Ships have the nationality of the State whose
flag they are entitled to fly. However there
i. The High Seas must exist a genuine link between state and the
Tacuboy 23
Atty. Basilgo
ship (UNCLOS Art 91) otherwise flag State - SOUTHERN BLUE FIN TUNA, A HIGHLY MIGRATORY SPECIES OF
merely becomes flag of convenience. FISH! The list of highly migratory species contained in Annex I to
the Convention includes southern bluefin tuna: thunnus
- A State may not confer its nationality upon a maccoyii;
ship that is already flying the flag of another - Provisional Remedies granted catch limit set (Japan made a
state (UNCLOS III Art 92) clear commitment that the 1999 experimental fishing

programme will end by 31 August anyway). PROVISIONAL
j. Conservation & Management of Living Resources of MEASURES AIMS TO PRESERVE RIGHTS AND HARM TO
the High Seas ENVIRONMENT. In accordance with art 290 of the Convention,
All states have the right for their nationals to the Tribunal may prescribe provisional measures to preserve the
respective rights of the parties to the dispute or to prevent
engage in fishing on the high seas, subject to their
serious harm to the marine environment. MEASURES SHOULD
treaty obligations, the rights and duties of coastal BE TAKEN TO PRESERVE RIGHTS AND AVERT MORE
states, and the UNCLOS provisions. In line with this, DETERIORATION. Although the Tribunal cannot conclusively
all states have the duty to take, or to cooperate with assess the scientific evidence presented by the parties, it finds
other states in taking, such measures for their that measures should be taken as a matter of urgency to
preserve the rights of the parties and to avert further
respective nationals as may be necessary for the
deterioration of the southern blue fin tuna stock.
conservation of the living resources of the high seas
(e.g. determining the allowable catch). k. Right of Land-Locked States to & from EZZ
A land-locked state is one which has no sea-coast.
NZ & Australia v Japan (ITLOS order 1999) These states have the right of access to and from
- Australia and New Zealand alleged that Japan had failed to
comply with its obligation to cooperate in the conservation of
the sea and the freedom of transit through the
the southern blue fin tuna (SBT) stock by undertaking unilateral territory of a transit state (a state, with or without
experimental fishing for southern bluefin tuna in breach of its a sea- coast, situation between a land-locked state
obligations under Arts 64 and 116 to 119 of UNCLOS in relation and the sea, through whose territory traffic in
to the conservation and management of the SBT. They are also transit passes). Traffic in transit shall not be subject
asking for provisional remedies in the form of an order
commanding Japan to desist from such unilateral experimental
to any customs duties, taxes, or other charges,
fishing. except those levied for specific services rendered in
- Highly Migratory Species must be protected! Under art 64, read connection with such traffic.
together with arts 116 to 119, of the Convention, States Parties
to the Convention have the duty to cooperate directly or l. International Seabed Area
through appropriate international organizations with a view to These are areas of the seabed and the ocean floor,
ensuring conservation and promoting the objective of optimum
and their subsoil, which lie beyond any national
utilization of highly migratory species.
jurisdiction. These are the common heritage of
Tacuboy 24
Atty. Basilgo

mankind and may not be appropriated by any state
or person. All rights in the resources of the Area are n. Settlement of Disputes
vested in mankind as a whole, on whose behalf the Peaceful settlement of disputes is compulsory. If a
Authority (the International Sea-Bed Authority) bilateral settlement fails, UNCLOS requires
shall act. These resources are not subject to submission of the dispute for compulsory
alienation. The minerals recovered from the Area, settlement in one of the tribunals clothed with
however, may only be alienated in accordance with jurisdiction. The alternatives are the International
the relevant provisions of UNCLOS. The Enterprise Tribunal for the Law of the Sea, the ICJ, or an
is the organ of the Authority which shall carry out arbitral tribunal constituted under the Convention.
activities in the Area directly as well as the
transporting, processing, and marketing of minerals 3. Jurisdiction & Immunities
recovered from the Area, and shall have its principal Jurisdiction power or authority exercised by a State
place of business at the seat of the Authority. over land, persons, property, transaction and events
- Centers upon whish State has sovereignty or legal
m. Navigation control over land, persons, ships at sea, airships in
Every State has the right to sail ships flying its flag flight, property, transactions or events in various
on the high seas. It is the State s right to decide the situations.
conditions by which it will accord the right to fly its Categories:
flag. No ship may change its flag during its voyage 1. Jurisdiction to Prescribe to make its law
except in case of transfer of ownership or on the applicable to persons or activities
basis of change of registry. If a ship sails under the 2. Jurisdiction to adjudicate to subject particular
flag of 2 states, it is considered as having no persons or things to judicial process
nationality and may not claim any of the 3. Jurisdiction to enforce and execute to use the
nationalities represented by these flags with resources of government to induce or compel
respect to any other State. Only the flag state may compliance with its law

exercise criminal jurisdiction over the master or any
person in the service of the ship. This is a departure Bases
from the SS Lotus case. Also the flag state shall have Territoriality a. Subjective if an activity takes place
the duty to require the ships master, without within territory of the Forum state
danger to the crew or passengers, to render then it has the jurisdiction to
assistance to any person at sea in danger of being prescribe a rule for that activity
lost, or to rescue persons in distress.
Tacuboy 25
Atty. Basilgo
b. Objective action takes place Doctrine of State Immunity
outside the territory but the primary - State enjoys immunity from the exercise of jurisdiction
effect of that activity is within the by another State. Courts of one state may not assume
state jurisdiction over another.
c. Effects Doctrine a state has
jurisdiction over acts occurring Restrictive Application
outside its territory but having - Absolute sovereign immunity is no longer recognized

effects within it
Diplomatic and Consular Relations
Nationality a. Active Nationality basis for
Diplomatic Relations Consular Relations
jurisdiction where state asserts the
Focused on political Relationship between
right to prescribe law for an action
relations between states foreigners
based on nationality of actor
b. Passive Nationality theory of Consent of receiving A consular post may serve
jurisdiction based on nationality of state to establish a as a step towards the
victim diplomatic mission establishment of a
- Rarely used because it is includes the consent to diplomatic mission, but
offensive to insist that foreign establish a consular post does not establish one itself
laws are not sufficient to protect Establishment signified Does not necessarily signify
its citizen and victim is not being recognition of a state as recognition of state as
prosecuted subject of PIL subject of PIL
Protective Sovereign punishes actions committed in
Principle other places solely because it feels Diplomatic Protection and Consular Assistance
threatened by those actions Diplomatic Protection Consular Assistance
Universality Jurisdiction over crimes committed by Procedure employed by A consular officer will assist
aliens outside the territory on the sole the State of nationality of its nationals and ensure
basis of presence of alien within the the injured person to their rights in the foreign
territory of state assuming jurisdiction secure protection of that State are properly
(piracy, slavery, genocide, hijacking, war) person and to obtain respected
Jurisdiction States confer jurisdiction through reparation for the
based on international agreements internationally wrongful
Agreement act inflicted

Tacuboy 26
Atty. Basilgo
A state has no A right of the national Articles of War for offenses committed in areas under the control of the
international legal duty provided by the Vienna US Army, a settled principle of international law gives said army
jurisdiction over their person and the offenses charged. IL rule: a foreign
to provide assistance to Convention on Consular army allowed to march through a friendly country or to be stationed in
its nationals abroad but Relations and customary it, by permission of its government or sovereign, is exempt from the civil
domestic law may law & criminal jurisdiction of the place; the agreement for the stationing of
require it to do so the US Army or a part of its forces in the RP implies a waiver of all
jurisdiction over their troops during the time covered by such

agreement, & permits the allied general or commander-in-chief to
Agents of Diplomatic Intercourse retain that exclusive control & discipline which the government of his
a. Head of state army may require. Considering that a part of the United States Army is
b. Foreign secretary or minister stationed in the Philippines with permission of our government, and
c. Members of diplomatic service that petitioners who belong to the military personnel of that army are
charged with violations of Articles of War for offenses committed in
d. Special diplomatic agents appointed by head of
areas under the control of the United States Army thereby giving said
state army jurisdiction over their person and the offenses charged
e. Envoys ceremonial
Haw Pia v China Banking (80 Phil 604)
Cases on Jurisdiction Sequestration v. Confiscation. Confiscation is not allowed under the
People v Lol-lo & Saraw (43 Phil 19) Hague Regulations. There was no confiscation here but a mere
- Piracy is, robbery or forcible depredation on the high seas, without sequestration. Under international law, the occupying power can
lawful authority and done animo furandi, and in the spirit and effect a liquidation that is in the form of a mere sequestration. In the
intention of universal hostility. effort of occupying powers to control enemy property within their
- Pirates are in law hostes humani generis. Piracy is a crime not jurisdiction in order to avoid their use in aid of the enemy and to
against any particular state but against all mankind. It may be increase their own resources, they had to resort to such measures of
punished in the competent tribunal of any country where the prevention which do not amount to a straight confiscation, as freezing,
offender may be found or into which he may be carried. The blocking, placing under custody, and sequestrating the enemy private
jurisdiction of piracy unlike all other crimes has no territorial limits. property. Measures of prevention are not repugnant to Hague
As it is against all so may it be punished by all. Nor does it matter Regulations. This is based on [1] writings of well-known writers on
that the crime was committed within the jurisdictional 3-mile limit International Law, [2] express authorization granted under the Army
of a foreign state, "for those limits, though neutral to war, are not and Navy Manual of Military Government and Civil Affairs of US and of
neutral to crimes." (U. S. vs. Furlong [1820], 5 Wheat., 184.) other civilized countries, and [3] Trading with the Enemy Acts of the
US and other civilized countries. Thus, there was valid tender of
Tubb v Greiss (78 Phil 249) payment to BOT which discharged Haw Pia s obligation.
Limit on sovereignty. Since such part of the US Army is stationed in the
RP with permission of our government, & petitioners, who belong to Brownell v Sunlife (95 Phil 228)
the military personnel of that army, are charged with violations of - Exclusive jurisdiction. The jurisdiction of the nation within its
territory is necessarily exclusive and absolute. It is susceptible of
Tacuboy 27
Atty. Basilgo
no limitation not imposed by itself. Any restriction upon it, USA v Ruiz (136 SCRA 487)
deriving validity from an external source, would imply a - Action to compel US to award of harbor works contract.
diminution of its sovereignty to the extent of the restriction, and - State immunity not lost when state enters into sovereign contracts.
an investment of that sovereignty to the same extent in that - The traditional rule of State immunity exempts a State from being
power in which would impose such restriction. All exceptions to sued in the courts of another State without its consent or waiver.
the full and complete power of a nation within its own territories, This rule is a necessary consequence of the principles of
must be traced up to the consent of the nation itself. They can independence and equality of States. Because the activities of
flow from no other legitimate source. This consent may be either states have multiplied, it has been necessary to distinguish them
express or implied. The consent of a Senate to the operation of a between sovereign and governmental acts (jure imperii) and
foreign law within its territory does not need to be express; it is private, commercial and proprietary acts (jure gestionis). The result
enough that said consent is that State immunity now extends only to acts jure imperii. But,
- be implied from its conduct or from that of its authorized officers. the restrictive application of State immunity is proper only when the
Ratification can be given tacitly as well as expressly. Tacit proceedings arise out of commercial transactions of the foreign
ratification takes place when a State begins the execution of a sovereign, its commercial activities or economic affairs. A State may
treaty without expressly ratifying it. be said to have descended to the level of an individual and can thus
- The ratification of or concurrence of the RP to the agreement for be deemed to have tacitly given its consent to be sued only when it
the extension of the Philippine Property Act of 1946 is clearly enters into business contracts. It does not apply where the contract
implied from the acts of the President of the RP and of the relates to the exercise of its sovereign functions. In this case the
Secretary of Foreign Affairs, as well as by the enactment of RAs 7, projects are an integral part of the naval base which is devoted to
8, and 477. US laws have no extraterritorial effect. The application the defense of both the US and the RP, indisputably a function of
of said law in the RP is based concurrently on said act (Philippine the government of the highest order; they are not utilized for nor
Property Act of 1946) and on the tacit consent thereto and the dedicated to commercial or business purposes. The correct test for
conduct of the RP Government itself in receiving the benefits of the application of state immunity is not the conclusion of a contract
its provisions. by a state but the legal nature of the act.
Wylie v Rarang (209 SCRA 357)
Cases on Sovereign Immunities - Express consent is effected only by the will of the legislature
Under Military Bases Agreement through the medium of a duly enacted statute. Court held that not
Lyons Inc. v USA (104 Phil 593) all contracts entered into by the government will operate as a
State immunity lost when state enters into proprietary contract. Case waiver of its non-suability; distinction must be made between its
dismissed for failure to exhaust administrative remedies but SC said, sovereign and proprietary acts. As for the filing of a complaint by
generally, the sovereign cannot be sued in its own courts, or in any the government, suability will result only where the government is
other, without its consent and permission. However, considering that claiming affirmative relief from the defendant.
the US Government, through its agency at Subic Bay, entered into a - The general rule is that public officials can be held personally
contract with appellant for stevedoring & miscellaneous labor services accountable for acts claimed to have been performed in connection
within the Subic Bay area, a US Navy Reservation, it is evident that it can with official duties where they have acted ultra vires or where there
bring an action before our courts for any contractual liability that that is showing of bad faith.
political entity may assume under the contract. - Indeed the imputation of theft contained in the POD dated February
3, 1978 is a defamation against the character and reputation of the
Tacuboy 28
Atty. Basilgo
private respondent. Petitioner Wylie himself admitted that the - Since Bradford did not file her Answer within the reglementary
Office of the Provost Marshal explicitly recommended the deletion period, the trial court correctly declared her in default upon motion
of the name Auring if the article were published. The petitioners, of the private respondent.
however, were negligent because under their direction they issued JUSMAG Philippines v NLRC (239 SCRA 224)
the publication without deleting the name "Auring". Such act or - Sovereign immunity: contract in discharge of governmental
omission is ultra vires and cannot be part of official duty. It was a function.
tortious act which ridiculed the private respondent. - A suit against such as agency is a suit against the US Government,
- Immunity from suit. The doctrine cannot institutionalize albeit it was not impleaded in the complaint. Considering that the
irresponsibility and non-accountability nor grant a privileged status US has not waived or consented to the suit, the complaint against
not claimed by any other official of the Republic. An act or omission JUSMAG cannot not prosper. Immunity of State from suit is a
that is ultra vires cannot be part of official duty, but is a tortious act. universally recognized principle. In international law, "immunity" is
USA v Reyes (219 SCRA 192) commonly understood as an exemption of the state and its organs
- Discrimination case against store manager in an exchange in from the judicial jurisdiction of another state. This is anchored on
JUSMAG. the principle of the sovereign equality of states under which one
- The doctrine of immunity from suit will not apply and may not be state cannot assert jurisdiction over another in violation of the
invoked where the public official is being sued in his private and maxim par in parem non habet imperium (an equal has no power
personal capacity as an ordinary citizen. The cloak of protection over an equal).
afforded the officers and agents of the government is removed the - The doctrine of Immunity is restricted to sovereign or governmental
moment they are sued in their individual capacity. This situation activities (jure imperil) and cannot be extended to commercial,
usually arises where the public official acts without authority or in private and proprietary acts (jure gestionis) The contract was
excess of the powers vested in him. It is a well-settled principle of entered into in the discharge of its governmental functions, the
law that a public official may be liable in his personal private sovereign state cannot be deemed to have waived its immunity
capacity for whatever damage he may have caused by his act done from suit.
with malice and in bad faith, or beyond the scope of his authority or
jurisdiction. (Shaufer v. CA and Animos et.al vs. Philippine Veterans International Organizations
Affairs Office, et.al) WHO v Aquino (48 SCRA 242)
- Bradford was sued in her private or personal capacity for her acts - Invoking functional immunity: certification from DFA. RA 75, meant
beyond the scope of official functions. to safeguard the jurisdictional immunity of diplomatic officials in
- Even on the claim of diplomatic immunity which Bradford does the Philippines, declares as null and void writs or processes sued out
not in fact pretend to have in the case since she is not among those or prosecuted whereby inter alia the person of an ambassador or
granted diplomatic immunity under Art 16(b) of the 1953 Military public minister is arrested or imprisoned or his goods or chattels are
Assistance Agreement creating the JUSMAG there can be no seized or attached and makes it a penal offense for "every person
doubt that Montoya has sufficient and viable cause of action. by whom the same is obtained or prosecuted, whether as party or
Bradford's purported non-suability on the ground of state immunity as attorney, and every officer concerned in executing it" to obtain
is then a defense which may be pleaded in the answer and proven or enforce such writ or process. Judge Aquino should have quashed
at the trial. the search warrant application. Court bound by DFA certification as
to official capacity.

Tacuboy 29
Atty. Basilgo
Minucher v CA (214 SCRA 242) interfere in their operations or even influence or control its
- No functional immunity WITH REGARD TO personal acts.Whether policies and decisions of the organization; besides, such objection
such claim arises from criminal acts or from tort, there can be no to local jurisdiction would impair the capacity of such body to
question that private respondent was sued in his personal capacity discharge its responsibilities impartially on behalf of its member-
for acts committed outside his official functions duties. CA gravely states. Important: non-political purpose + autonomy.
abused its discretion in dismissing the civil case on the basis of an Holy See v Rosario (238 SCRA 524)
erroneous assumption that simply-because of the [self-serving] - Action for reconveyance & damages by first buyer against seller
Diplomatic Note, the private respondent is clothed with diplomatic Holy See, after failure to complete payment.
immunity, thereby divesting the trial court of jurisdiction over his - DFA certification confirms sovereign immunity. The Vatican City
person. It may at once be stated that even if the Calzo enjoys represents an entity organized not for political but for ecclesiastical
diplomatic immunity, a dismissal of the case cannot be ordered on purposes and international objects. Despite its size and object, it
the ground of lack of jurisdiction over his person, but rather for has an independent government of its own, with the Pope, who is
lack of a cause of action because even if he committed the also head of the Roman Catholic Church, as the Holy See or Head of
imputed act and could have been otherwise made liable therefor, State, in conformity with its traditions, and the demands of its
his immunity would bar any suit against him in connection mission in the world. Inasmuch as the Pope prefers to conduct
therewith and would prevent recovery of damages arising foreign relations and enter into transactions as the Holy See and not
therefrom. in the name of the Vatican City, one can conclude that in the Pope's
- In Shauf v. CA: Authorities state that the doctrine of immunity own view, it is the Holy See that is the international person. RP has
from suit will not apply and may not be invoked where the public accorded the Holy See the status of a foreign sovereign. The
official is being sued in his private and personal capacity as an property was donated to the Holy See for it to establish its
ordinary citizen. The cloak of protection afforded the officers and diplomatic premises but was forced to sell after failure to evict
agents of the government is removed the moment they are sued squatters.
in their individual capacity. This situation usually arises where the - Test: whether the foreign state is engaged in the activity in the
public official acts without authority or in excess of the powers regular course of business. If the foreign state is not engaged
vested in him. A public official may be liable in his personal private regularly in a business or trade, the particular act or transaction
capacity for whatever damage he may haw mused by his act done must then be tested by its nature. If the act is in pursuit of a
with malice and in bad faith, or beyond the scope of his authority sovereign activity, or an incident thereof, then it is an act jure
or jurisdiction. imperii, especially when it is not undertaken for gain or profit.
SEAFDEC v Acosta (226 SCRA 49) - The privilege of sovereign immunity in this case was sufficiently
- SEAFDEC is an international agency enjoying diplomatic immunity, established by the Memorandum and Certification of the DFA. The
enjoying functional independence and freedom from control of determination of the executive arm of government that a state or
the state in whose territory its office is located. One of the basic instrumentality is entitled to sovereign or diplomatic immunity is a
immunities of an international organization is immunity from local political question that is conclusive upon the courts (ICMC v.
jurisdiction, i.e., that it is immune from the legal writs & processes Calleja). Where the plea of immunity is recognized and affirmed by
issued by the tribunals of the country where it is found. The the executive branch, it is the duty of the courts to accept this claim
obvious reason for this is that the subjection of such an so as not to embarrass the executive arm of the government in
organization to the authority of the local courts would afford a conducting the country's foreign relations (WHO v. Aquino).
convenient medium thru which the host government may Remedy: a person who feels aggrieved by the acts of a foreign
Tacuboy 30
Atty. Basilgo
sovereign can ask his own government to espouse his cause through
diplomatic channels Sovereign (Head of State Immunities)
ICMC v Calleja (GR No 85750) Forbes v Chuoco Tiaco (16 Phil 534)
- Petition for Certification Election of rank and file members of the - The same general considerations of public policy and convenience
labor union in ICMC, a Vietnam War refugee processing center, non- which demand for judges of courts of superior jurisdiction immunity
profit & UN registered. from civil suits for damages arising from acts done by them in the
- Functional immunity for IO. International Organization is generally course of the performance of their official functions apply to the
used to describe an organization set up by agreement between two acts of the Governor-General of the Philippine Islands when
or more states. Under contemporary international law, such engaged in the discharge of the duties imposed upon him by law.
organizations are endowed with some degree of international legal - The principle of non-liability, as herein enunciated, does not mean
personality such that they are capable of exercising specific rights, that the judiciary has no authority to touch the acts of the
duties and powers. They are organized mainly as a means for Governor-General. It simply means that the Gov-Gen, like judges of
conducting general international business in which the member the Court and members of the legislature may not be personally
states have an interest. mulcted in civil damages for the consequences of an, act executed
- The UN is an international organization dedicated to the in the performance of his official duties. The judiciary has full power
propagation of world peace. The grant of immunity from local to, and will, when the matter is properly presented to it and the
jurisdiction to ICMC and IRRI is clearly necessitated by their occasion justly warrants it, declare an act of the Governor- General
international character and respective purposes. The objective is to illegal and void and place as nearly as possible in status quo any
avoid the danger of partiality and interference by the host country person who has been deprived of his liberty or his property by such
in their internal workings. The exercise of jurisdiction by the DOLE act.
would defeat the very purpose of immunity, which is to shield the - The Gov-Gen is the chief executive authority," one of the
affairs of international organizations, in accordance with coordinate branches of the Government, each of which, within the
international practice, from political pressure or control by the host sphere of its governmental powers, is independent of the others.
country to the prejudice of member States of the organization, and Within these limits the legislative branch cannot control the judicial
to ensure the unhampered performance of their functions. nor the judicial the legislative branch, nor either the executive
Liang v People (GR No 125865) department. In the exercise of his political duties the Governor-
DFA certification disregarded. SC disregarded the office of protocol General is, by the laws in force in the Philippine Islands, invested
from the DFA stating that Liang is covered by immunity from legal with certain important governmental and political powers and
process under Section 45 of the Agreement between the ADB and the duties belonging to the executive branch of the Government, the
RP regarding the Headquarters of the ADB in the RP. The MR focused on due performance of which is entrusted to his official honesty,
the diplomatic immunity of officials and staff of ADB from legal and judgment, and discretion. So far as these governmental or political
juridical processes in the Philippines and the constitutional and political or discretionary powers and duties which adhere and belong to the
basis of that immunity. It should be made clear that nowhere in the Chief Executive, as such, are concerned, it is universally agreed that
assailed Decision is diplomatic immunity denied, even remotely. the courts possess no power to supervise or control him in the
The slander of a person, by any stretch, cannot be considered as falling manner or mode of their discharge or exercise.
within the purview of the immunity granted to ADB officers and - For the judiciary to interfere, for the purpose of questioning the
personnel. The issue of whether or not Liangs utterances constituted manner of exercising the legal and political duties of the chief
oral defamation is still for the trial court to determine. executive head of the Government or to control the action of the
Tacuboy 31
Atty. Basilgo
legislative department, would, in effect, destroy the independence the performance of his official duties and functions. Unlike the
of the departments of the Government and would make all legislative and judicial branch, only one constitutes the executive
departments subject to the ultimate control of the judicial. Such a branch and anything which impairs his usefulness in the discharge of
conclusion or condition was never contemplated by the organizers the many great and important duties imposed upon him by the
of the Government. Constitution necessarily impairs the operation of the Government.
Kuroda v Jalandoni However, this does not mean that the President is not accountable to
- RP Consti. adopts the generally accepted principles of anyone. Like any other official, he remains accountable to the people
international law as part of the law of the nation. EO68 and but he may be removed from office only in the mode provided by law
prescribing rules and regulations governing the trial of accused and that is by impeachment.
war criminals is valid and constitutional since Art. 2 of our Hilao v Estate of Ferdinand Marcos,
Constitution provides in its section 3, that The Philippines Judgment of Feb 1985 & Opinion
renounces war as an instrument of national policy, and adopts the - The Court rejected arguments on foreign sovereign immunity.
generally accepted principles of international law as part of the - The principle of command responsibility that holds a superior
law of the nation. So even without local legislation, the responsible for the actions of subordinates appears to be well
Constitution has provided for the application of international law. accepted in the US and international law in connection with acts
- The rules & regulations of the Hague, Geneva Conventions form committed with acts committed
part of are wholly based on the generally accepted principles of - The fact that any act of genocide, crime against humanity, or
international law. Even if RP is not a signatory to the Hague Conv. violation of the Geneva Conventions or of the laws or customs of
and signed the Geneva Conv. only in 1947, it cant be denied that war was committed by a subordinate does not relieve his
the rules and regulations of the Hague and Geneva conv. form part superior of criminal responsibility if he know or had reason to
of and are wholly based on the generally accepted principles of know that the subordinate was about to commit such acts or had
international law. In fact, these rules and principles were accepted done so and the superior failed to take the necessary reasonable
by the 2 belligerent nations, US and Japan, who were signatories measures to prevent such acts or punish perpetrators
to the 2 Conventions. Such rules and principles, therefore, form - No sovereign immunity against charges of torture. US Alien Tort
part of the law of our nation even if RP was not a signatory to the Statute provides a forum for claims by aliens for torture that has
conventions embodying them, for our Constitution has been occurred elsewhere. It requires a claim by an alien, a tort and a
deliberately general and extensive in its scope and is not confined violation of international law. The prohibition against official
to the recognition of rules and principles of international law as torture carries with it the force of jus cogens norm which enjoys
contained in treaties to which our government may have been or the highest status in international law. All states believe that
shall be a signatory. torture is wrong, all that engage in torture deny it, and no state
David v Arroyo (GR No 171396) claims a sovereign right to torture its own citizens. Under
Settled is the doctrine that the President, during his tenure of office or international law, any state that engages in official torture
actual incumbency, may not be sued in any civil or criminal case, and violates jus cogens. Note that RP filed a brief stating that its
there is no need to provide for it in the Constitution or law. It will foreign relations with the US would not be adversely affected if
degrade the dignity of the high office of the President, the Head of claims against Marcos were litigated in the US.
State, if he can be dragged into court litigations while serving as such. Clinton v Jones (520 US 681)
Furthermore, it is important that he be freed from any form of - The principal rationale for affording Presidents immunity from
harassment, hindrance or distraction to enable him to fully attend to damages actions based on their official acts is to enable them to
Tacuboy 32
Atty. Basilgo
perform their designated functions effectively without fear that a
particular decision may give rise to personal liability. Kidnapping/Extradition Cases
- Jurisprudence provides no support for an immunity for unofficial US v Purganan (GR No 148571)
conduct. Moreover, immunities for acts clearly within official - Extradition; treaty. The ultimate purpose of extradition
capacity are grounded in the nature of the function performed, proceedings is to determine whether the request expressed in the
not the identity of the actor who performed it.
petition, supported by its annexes & the evidence that may be
- The separation-of-powers doctrine does not require federal courts
adduced during the hearing of the petition, complies with the
to stay all private actions against the President until he leaves Extradition Treaty and Law; & whether the person sought is
office. Even accepting the unique importance of the Presidency in extraditable.
the constitutional scheme, it does not follow that that doctrine - The proceedings are intended merely to assist the requesting
would be violated by allowing this action to proceed. state in bringing the accused or the fugitive who has illegally
Belgium v Senegal (ICJ 2012) escaped back to its territory, so that the criminal process may
- The Court recalls that Senegals failure to adopt until 2007 the proceed therein. By entering into an extradition treaty, RP is
legislative measures necessary to institute proceedings on the deemed to have reposed its trust in the reliability or soundness of
basis of universal jurisdiction delayed the implementation of its the legal and judicial system of its treaty partner, as well as in the
other obligations under the Convention. The Court further recalls ability and the willingness of the latter to grant basic rights to the
that Senegal was in breach of its obligation under Article 6, accused in the pending criminal case therein.
paragraph 2, of the Convention to make a preliminary inquiry into
the crimes of torture alleged to have been committed by Mr.
- Extradition proceedings are not equivalent to a criminal case in
which guilt or innocence is determined. Consequently, an
Habr, as well as of the obligation under Article 7, paragraph 1, to
extradition case is not one in which the constitutional rights of the
submit the case to its competent authorities for the purpose of
accused are necessarily available. It is more akin, if at all, to a
prosecution. The purpose of these treaty provisions is to prevent
courts request to police authorities for the arrest of the accused
alleged perpetrators of acts of torture from going unpunished, by
who is at large or has escaped detention or jumped bail. Having
ensuring that they cannot find refuge in any State party. The State
once escaped the jurisdiction of the requesting state, the
in whose territory the suspect is present does indeed have the
reasonable prima facie presumption is that the person would
option of extraditing him to a country which has made such a
escape again if given the opportunity. Potential extraditees do not
request, but on the condition that it is to a State which has
have the right to a hearing for the issuance of a warrant of arrest
jurisdiction in some capacity, pursuant to Article 5 of the
nor the right to bail granted by the RTC.
Convention, to prosecute and try him.
- The Court emphasizes that, in failing to comply with its obligations
under Article 6, paragraph 2, and Article 7, paragraph 1, of the
Convention, Senegal has engaged its international responsibility.
Consequently, Senegal is required to cease this continuing
wrongful act, in accordance with general international law on the
responsibility of States for internationally wrongful acts. Senegal
must therefore take, without further delay, the necessary
measures to submit the case to its competent authorities for the
purpose of prosecution, if it does not extradite Mr. Habr.
Tacuboy 33

PIL Tacuboy

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

PIL Tacuboy

Caricato da

Copyright:

Formati disponibili

Public

international personality partly because states have agreed to be

PUBLIC The Law of the Nations

Sanctions or Factors that influence observance

that a State owes in any given case to b. habits of obedience

international community c. fear of reprisals or punishment

conduct of states in their mutual dealings and

development of international law and its

associated for certain specific purposes 5. Individuals

3. Vatican City DOCTRINE OF INCORPORATION

2. Uniformity, Consistency of Practice Persistent Objector Rule

ascertained. Right of independence

another state, government or belligerent community and Doctrines

Concepts: its land territory and its territorial sea.

Top & US-UK Treaty Limits

Potrebbero piacerti anche