PUBLIC INTERNATIONAL LAW

Public international law governs the relationships between and among states and also their relations with international organizations and individual persons. (Bernas, S.J., Introduction to Public International Law, 2009 ed., p. 4)

CONCEPTS

1. Obligations erga omnes (Lat. duties toward all): a countrys duties that concern issues affecting the international community at large, not just the countrys neighboring states. (Blacks Law Dictionary, 10th ed., p. 1244) BLACKS LAW IS OUTDATED; SUGGEST YOU CITE THE CASE DIRECTLY2. Jus cogens (Lat. compelling law): a mandatory or peremptory norm of general international law accepted and recognized by the international community as a norm from which no derogation is permitted. (Blacks, p. 990)Rules of jus cogens are rules of customary international law that are so fundamental that they cannot be modified by treaty.3. Ex aequo et bono (Lat. according to what is equitable and good): a decision-maker in international law authorized to decide ex aequo et bono is not bound by legal rules and may instead follow equitable principles; for example, Art. 38(2) of the Statute of the International Court of Justice (ICJ) provides that the Court may decide a case ex aequo et bono if the parties agree thereto. (Blacks, pp. 679-680) SAME

INTERNATIONAL AND NATIONAL LAW

Q:There are two schools of thought as regards the question of which between international law and national law will prevail in case of conflict. Which of these schools of thought is widely practiced?

(a) Monism

1. International law and national law are two components of one single body of knowledge called the law.2. In case of conflict between the two, international law prevails, being the superior legal order international law is derived from the practice of states, while national law is merely law implemented by a single state within its territory.

(b) Dualism

1. International law and national law, while connected in the sense that they are both systems of law, are different from each other As to source (treaties and custom in international law, and legislation or local custom in national law); As regards the relations they regulate (relations between states in international law, and relations between individual persons in national law); and Regarding their substance(international law is a law between sovereign states, while national law is a law of the sovereign over the individual and operate within different spheres.2. States may lawfully do something within the domestic sphere, but can be thus held liable internationally.

A:(b) Dualism.

Prevailing practice accepts dualism (e.g. Art. 27 of the Vienna Convention on the Law of Treaties (VCLT) provides: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.).

International law, unless made part of the domestic system, has no role in the settlement of domestic conflicts.

Case law on dualism as applied in the Phils.:

In a situation [...] where [a] conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law, jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal law in the municipal sphere.(Sec. of Justice vs. Lantion, G.R. No. 139465, Jan. 18, 2000)

CONTRA:While sovereignty has traditionally been deemed absolute and all-encompassing on the domestic level, it is however subject to restrictions and limitations voluntarily agreed to by the Philippines, expressly or impliedly, as a member of the family of nations. [Pacta sunt servanda] international agreements must be performed in good faith.A state which has contracted valid international obligations is bound to make in its legislations such modifications as may be necessary to ensure the fulfillment of the obligations.(Taada vs. Angara, May 2, 1997)

Q:How does international law become part of national law?

A:In dualism, there are two theories: transformation and incorporation.

1. Transformation: for international law to become part of national law, it must be expressly and specifically transformed into national law through the appropriate constitutional machinery (e.g. act of Congress or Parliament). Rationale: treaties do not become part of the law of a state unless consented to by said state.2. Incorporation: international law is adopted in its full extent by national law, and is held to be part of the law of the land.

In the Philippines, a distinction has to be made as regards which theory is followed:

1. Treaties need to be transformed by means of concurrence of the Senate pursuant to Art. VII, Sec. 21 of the Constitution.2. Customary law, treaties which have ripened to customary law, and generally principles of laware incorporated to the law of the land pursuant to Art. II, Sec. 13 of the Constitution.

The doctrine of incorporation in action:

The Universal Declaration of Human Rights has been recognized by the Supreme Court as a generally accepted principle of international law and thus part of the law of the land in the cases of Mejoff vs. Director of Prisons,Republic vs. Sandiganbayan,and JBL Reyes vs. Bagatsing.

The Hague Convention and the Geneva Convention were likewise recognized as such inKuroda vs. Jalandoni.

The right of innocent passage as laid down in the Third United Nations Convention on the Law of the Sea (UNCLOS III), being customary international law, was held in Magallona vs. Ermitaas automatically incorporated in the corpus of Philippine law.

SOURCES

Sources of international law are:

1. Recognized and accepted methods by which legal rules come into existence; as well as2. Several ways in which the precise content of legal rules can be identified.

Article 38(1) of the ICJ Statute does not purport to be a list of the sources of international law, but is instead a direction to the ICJ authorizing it to consider various materials when deciding disputes submitted to it. These materials are as follows:

1. International conventions2. International customs3. General principles of law4. Judicial decisions5. Teachings of publicists

It was intended that there be no order of priority among the five sources; thus, the ICJ must study and consider all five simultaneously.

Q: What prevails when custom and treaty law conflict?

A:

GR:1. If treaty is later in time than custom: the treaty prevails(a) Treaties represent a deliberate and conscious act of law creation.(b) Parties to the treaty will be governed by its terms; non-parties will be governed by customary law.2. If contrary customary law develops subsequent to the adoption of a treaty: the treaty prevails(a) The treaty continues to govern the relations between parties even though a new practice has developed

XPN:If the custom partakes of the nature of jus cogens (see Arts. 53 and 64, VCLT), the custom prevails.

1. Any treaty provision which conflicts with a rule of jus cogens is void, regardless of whether the treaty came first.2. Any conduct contrary to the rules of jus cogens will usually be regarded as illegal no matter of often it is repeated (notwithstanding Art. 53, VCLT stating that rules of jus cogens can be changed by subsequent norms leading to a new fundamental rule, this being unlikely to happen).3. Unfortunately, there is no universal agreement as to which rules of customary law have attained this status.

International conventions (treaties)

1. Treaties determine the rights and duties of states just as individual rights are determined by contracts. Their binding force comes from the voluntary decision of sovereign states to obligate themselves to a form of behavior.GR:Treaties, to be binding, require consent.

XPN:Dispositive treaties are binding erga omnes, regardless of whether a state is a signatory thereto or not. Dispositive treaties are those whereby one state creates in favor of another, or transfers to another, or recognizes anothers ownership of real rights, rights in rem, e.g. treaties of cession including exchange.(Arts. 53 & 64, VCLT)

2. Treaties are either bilateral or multilateral.3. Treaties can codify existing customary law.

International customs

International customs are recognized as evidence of general practice accepted as law.

Elements:

1. State practice (usus): the material element; includes, but is not limited to actual activity, statements made in respect to concrete situations or disputes, statements of legal principle made in the abstract, national legislation, and practice of international obligations.Requisites:(a) Consistency/uniformity(b) Generality(c) Duration

As to consistency/uniformity:

1. No need for total consistency; substantial consistency suffices.2. The degree of consistency required may vary according to the subject matter of the rule disputed (e.g. when a state is required to do an active obligation, a greater degree of consistency is required; a lesser degree is enough when a passive obligation is to be done).

As to generality:

1. For generality to subsist, not all states need participate in giving the custom due course.2. However, it must be common to a significant number of states.3. The degree of generality required varies with the subject matter (e.g. when a custom accords onerous obligations, there should be a greater degree of generality as compared to a custom that grants privileges to states which only requires a lesser degree of generality).4. International law does not provide for a specific number of states that must engage in particular practice to have it ripen into custom.5. Persistent objector: dissenting states who had objected to custom while merely in the process of formation are not bound thereby.6. A lone objector can stop practice from crystallizing into custom in rare instances.

As to duration:

GR:(a) The custom must exist for a period of time.(b) No specific number of years is required.

XPN:Instant customs are spontaneous activities of a great number of states supporting a specific line of action.

The Martens Clause:

Formulated by the Russian publicist Fyodor Martens, what the clause does is to put the laws of humanity and the dictates of public conscience on the same level as usus (1899 Hague Peace Convention), thus suggesting that even without practice or usus or at least without consistent practice there can emerge a principle of law based on laws of humanity and the dictates of public conscience.

2. Opinio juris: the substantive element; the belief that a certain form of behavior or practice is obligatory, without which, such practice would not ripen into law. The degree of proof required for opinio juris should vary according to the subject matter of the disputed customary rule (e.g. a claim that a rule has attained jus cogens status might require very clear evidence of opinio juris, and an alleged rule that places burdens on all states would require clear extrinsic evidence; on the other hand, for a rule that grants rights or privileges to all states, the simple fact of repeated state activity may suffice to infer opinio juris).

General principles of law

General principles of law recognized by civilized nations refers to principles of national law common to the legal systems of the world. It includes under its purview:

1. Procedural rules (e.g. notice and hearing, res judicata)2. Substantive national law concepts (e.g. trusts, subrogation, limited liability, equity, estoppel, acquiescence, etc.)

Examples: prescription, estoppel, res judicata, pacta sunt servanda.

Judicial decisions

Judicial decisions refers to pronouncements of the:

1. ICJ (usually resolves 2-3 cases per year)2. Arbitral tribunals (hands and decides on the bulk of international law cases)3. Other bodies (e.g. ICC, Inter-American Court of Human Rights, European Court of Human Rights, Yugoslav War Tribunal, Centre for the Settlement of Investment Disputes, etc.)

Re: Art. 59, ICJ Statute:

GR:No stare decisis, only res judicata.

XPN:The ICJ, from time to time, does not follow the general rule, being a court of law.

Examples: ICJ decisions, UN resolutions, resolutions of other international organizations.

Teachings of the most highly qualified publicists of the various nations

1. Publicists refer to experts/institutions which write on international law, covering both individuals and groups.2. Even if the writings of publicists are of purely evidential weight, they may be of great importance where a rule is vague or uncertain.3. The writings of publicists can have a direct impact on customary law for they can help establish state practice by predicting trends and encouraging states to follow the predicted and desirable path.

SUBJECTS

A subject of international law is a body or entity recognized or accepted as being capable, or as in fact being capable, of exercising international rights and duties. (Dixon, p. 112)

States

A state is a communityof persons, more or less numerous, permanently occupying a fixed territory, and possessed of a government organized for political purposes to which the great number of inhabitants render habitual obedience.

Elements:

1. A permanent population (i.e. people)2. A defined territory3. Government4. Sovereignty: the supreme and uncontrollable power inherent in a state by which that state is governed (Cruz, Philippine Political Law, 2002 ed., p. 26) Includes within its purview the capacity to enter into legal relations (i.e. legal independence, not factual autonomy)* Legal independence is the legal capacity to enter relations with other states on their own behalf as a matter of right (Dixon, Textbook on International Law, 6th ed., p. 116)Q:How does a territory sufficiently claim legal independence?

A:When a territory declaring factual independence is able to claim the right of self-determination(Dixon, p. 117)

International recognition:

1. Subsequent recognition of the statehood/sovereignty of an aspirant state by members of the international community may be sufficient to cure a defect in an otherwise imperfect claim to statehood (Dixon, p. 118) Recognition will only cure defects in lawful legal independenceand no other(Dixon, p. 119)2. Two theories of recognition:(a) Declaratory:recognition is nothing more than an acknowledgment of pre-existing legal capacity, and is therefore not decisive of the entitys claim to statehood(b) Constitutive:the act of recognition is a necessary precondition to the existence of the capacities of statehood or governmentIn general, the declaratory theory accords with international practice. (Dixon, p. 128)

International organizations

International organizations are institutions constituted by international agreement between two or more States to accomplish common goals. [] Insofar as they are autonomous and beyond the control of any one State, they have distinct juridical personality independent of the municipal law of the State where they are situated. As such, they are deemed to possess a species of international personality of their own. (SEAFDEC-AQD vs. NLRC, 206 SCRA 283, Feb. 14, 1992)

Nature and powers:

1. The powers of international organizations are limited to those conferred on them in their constituent document(PCIJ Advisory Opinion on the Jurisdiction of the European Commission of the Danube, PCIJ Ser. B No. 14)2. International organizations enjoy implied powers, due to the necessities of international life [pointing] to the need [] to possess [] such powers (Nuclear Weapons case) e.g. the WHO can request the ICJ to give an advisory opinion but only in matters expressly or impliedly within the WHOs competence3. International organizations have a limited degree of international personality, especially vis--vis member-states(a) They can enter into international agreements; their representatives have certain privileges and immunities(b) The organizations constituent document may also provide that member-states are legally bound to comply with decisions on particular matters

Individuals

GR:Individuals are not regarded as legal persons under international law. Their link to a state is through the concept of nationality, which may or may not require citizenship.

XPN:1. Individual responsibility for:(a) War crimes(b) Crimes against the peace(c) Crimes against humanity2. Personality in the form of human rights (through which an individual can initiate or partake in proceedings before international tribunals)[* commonly granted by treaty]

DIPLOMATIC AND CONSULAR LAW

Diplomatic law, defined; right of legation

Diplomatic law is a field of international law concerning the practice of diplomacy, and the rights and obligations of state representatives on the territory of other states.(von Glahn, Law Among Nations: An Introduction to Public International Law, p.136)

The right of legation is the right of a state to maintain diplomatic relations with other states; it is governed by the Vienna Convention on Diplomatic Relations (VCDR).

Agents of diplomatic intercourse

1. Heads of state2. Foreign secretary/minister3. Members of diplomatic service

Diplomatic/consular immunity in general

Diplomatic agents are vested with blanket diplomatic immunity from civil and criminal suits. Test: whether or not the diplomatic agent concerned performs duties of a diplomatic nature.

On the related doctrine of state immunity:

The doctrine of state immunity is applicable to complaints filed against officials of the state for acts allegedly performed by them in the discharge of their duties.

GR:Immunity can be invoked where the act involved is performed in the discharge of official duties, and will not apply where the public official is being sued in his private and personal capacity as an ordinary citizen.

XPN:However, immunity cannot be raised where the officer of the State violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or under an assumption of authority which he does not have.

Rationale: the doctrine of state immunity cannot be used as an instrument for perpetrating injustice

(Minucher v. Court of Appeals, G.R. No. 142396, February 11, 2003)

The five diplomatic groups; their respective immunities and the extents thereof

1. Heads of missionClasses:a. Ambassadors or nuncios accredited to heads of state and other heads of missions of equivalent rankb. Envoys, ministers, and internuncios accredited to heads of statec. Chargs d'affairesaccredited to Ministers/Secretariesfor Foreign AffairsImmunity:GR:Absolute immunity from criminal jurisdiction on the source and receiving states

XPN:Immunity from civil and administrative jurisdiction is not absolute, as to three cases:(a) A real action relating to private immovable property situated in the territory of the receiving state unless he holds it on behalf of the sending state for the purposes of the mission(b) An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending state(c) An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside his official functions

GR:Members of a heads family have the same immunity

XPN: unless they are residents or nationals of the receiving state.

2. Members of the diplomatic staffThese may be appointed from among the nationals of the receiving state only with the express consent of that state. (J. Puno, concurring opinion in Liang vs. People, G.R. No. 125865, March 26, 2001)Immunity:(a) Same immunity as heads of mission3. Members of the administrative and technical staffImmunity:(a) Same (absolute) immunity from criminal jurisdiction as heads of mission(b) Immunity from civil jurisdiction applies only to acts in official functions4. Members of the service staffImmunity:(a) Immunity applies only in the course of official duties, both in criminal and civil jurisdictions5. Private servantsImmunity:(a) The immunity allowed to them is only those to be specifically granted by the receiving state and insofar as they are connected with the performance of their duties

Duration of immunities:

1. The privileges are enjoyed by the envoy from the moment he enters the territory of the receiving state, and shall cease only the moment he leaves the country, or on expiry of a reasonable time in which to do so; although with respect to official acts, immunity shall continue indefinitely.2. Privileges are available even in transitu, when traveling through a third state on the way to or from the receiving state.

Waiver of immunities:

Diplomatic privileges can be waived but the waiver cannot be made by the individual concerned since such immunities are not personal to him; waiver may be made only by the government of the sending state if it concerns the immunities of the head of mission; In other cases, the waiver may be made either by the government or by the chief of the mission.

NOTE: Diplomatic immunity is essentially a political question and the courts should refuse to look beyond the determination by the executive branch.

Q:What if the diplomatic mission committed heinous crimes such as murder in the receiving state? What can the host state do?

A:The receiving state can:(a) Ask the mother state to lift or waive the immunity; or(b) Declare the mother state persona non grata.

DELETE SECTION; NON-ESSENTIAL Appointment of diplomatic envoys; commencement of diplomatic mission

Agrationis the process in the appointment of a diplomatic envoy where states resort to an informal inquiry as to the acceptability of a particular envoy, to which the receiving state responds with an informal conformity(agrment).

With the informal process concluded, the diplomatic mission then commences when the envoy presents himself at the receiving state, generally armed with the following papers:

1. Lettre de crance (letter of credence): a document with the name, rank and general character of his mission, and a request for favorable reception and full credence.2. Diplomatic passport3. Instructions4. Cipher (or code or secret key) for communications with his country

SAME Grounds for termination of diplomatic mission

1. Death2. Resignation3. Removal4. Extinction of the State5. War between the receiving and sending states6. Abolition of office7. Recall8. Dismissal

Consular officials

Consuls are state agents residing abroad for various purposes but mainly in the interest of commerce and navigation.

DELETE Kinds:

1. Consules missi: professional or career consuls who are nationals of the sending state and are required to devote their full time to discharge their duties2. Consules electi: they may or not be nationals of the sending state and perform consular functions only in addition to their regular callings

Ranks:

1. Consul-general2. Consul3. Vice-consul4. Consular agent

Consular functions (Art. 5, Vienna Convention on Consular Relations [VCCR])

1. Protect the nationals of the sending state in the receiving state2. Furthering the development of commercial, economic, cultural and scientific relations between the sending and receiving states3. Ascertain developments in the receiving state, and report to the sending state4. Issue passports and travel documents to nationals of the sending state5. Help and assist nationals of the sending state6. Act as notary and civil registrar, and performing certain administrative functions7. Safeguard the interests of nationals of the sending state in cases of succession mortis causa in the receiving state8. Safeguarding the interests of minors and others lacking full capacity who are nationals of the sending state in the receiving state9. Represent nationals of the sending state before tribunals of the receiving state10. Transmit judicial and extrajudicial documents or executing letters rogatory or commissions11. Supervision and inspection of vessels and aircrafts having the nationality of the sending state12. Assistance to such vessels and aircrafts13. Other functions entrusted by the sending state

Appointment of consular officials

Two documents are necessary before the assumption of consular functions, namely:

1. Letters patent: letter of appointment or commission which is transmitted by the sending state to the Secretary of Foreign Affairs of the country where the consul is to serve2. Exequatur:the authorization given to the consul by the sovereign of the receiving state, allowing him to exercise his functions within the territory

Consular immunity, distinguished from diplomatic immunity

DIPLOMATIC ENVOYSCONSULAR OFFICERS

Basis of immunityArt. 32, VCDRArt. 41, VCCR

Immunity from prosecution in the receiving stateImmuneNot immune

Civil and administrative immunity in the receiving stateGR:Immune

XPN:(a) In a real action relating to private immovable property situated in the territory of the receiving state, unless he holds it on behalf of the sending state for the purpose of the mission(b) In an action relating to succession in which the diplomatic agent is involved as executor, administrator, heir, or legatee as a private person and not on behalf of the sending state(c) In an action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving state outside of his official functions

GR:Immune from the jurisdiction of judicial or administrative authorities in respect of acts performed in the exercise of consular functions (Art. 43, VCCR)

XPN: except as to a civil action:(a) Arising out of a contract concluded by a consular officer with which he did not enter expressly or impliedly as an agent of the sending state(b) By a third party for damages arising from an accident in the receiving state caused by a vehicle, vessel or aircraft

Immunity of international organizations

The immunity granted to these groups is not based on sovereignty but on treaty and conventions.

Some recognized international organizations given immunity are:

1. World Health Organization (WHO)2. Southeast Asian Fisheries Development Center (SEAFDEC)3. International Catholic Migration Commission (ICMC)4. Asian Development Bank (ADB)

NOTES:1. Immunity granted to staff of an international organization is limited only to acts done in official functions. 2. Immunity does not cover commission of a crime such as slander or oral defamation.(Liang vs. People, G.R. No. 125865, January 28, 2000)

TREATIES

Treaty, defined

1. In general international law, a treaty is a legally binding agreement, governed by international law, made between international legal persons recognized as having treaty-making capacity.2. In the VCLT (a particular international law), a treaty is an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or two or more related instruments and whatever its particular designation.

Form of treaties:

1. General international law: oral or written (as regards oral treaties, enforceability depends upon whether the state-parties can establish it).2. Particular international law: written only.

DELETE Four component parts of a treaty:

1. Title: description of the type of the treaty.2. Preamble: recites the reasons for the treaty.3. Main body: refers to the subject of the treaty; includes provisions governing the rights and obligations of the parties.4. Final part: contains provisions or guidelines for entry of the treaty into force, accession, reservation, termination, etc.; may have sub-parts depending on its scope and coverage.

Requisites for a valid treaty:

1. Treaty-making capacity2. Competence of the representative or organ concluding the treaty3. Consent freely given by the parties4. Lawful object and subject matter5. Ratification (in accordance with constitutional processes of the parties concerned)

Kinds of treaties:

1. Multilateral treaties which are open to all states of the world;they create norms which are the basis for a general rule of law, and may either be codification treaties or law-making treaties or have the character of both2. Treaties that create a collaborative mechanism; can be universal (e.g. regulation of allocation of radio frequencies) or regional (e.g. fishing agreements) in scope3. Bilateral treaties,many of which are in the nature of contractual agreements that create shared expectations (e.g. trade agreements of various forms); sometimes called contract treaties4. Concordat;a treaty or agreement between ecclesiastical and civil powers to regulate the relations between the church and the state in those matters which, in some respect are under the jurisdiction of both

Interpretation of treaties

A treaty shall be interpreted in good faith, in accordance with the ordinary meaning given to the terms of the treaty, and in light of its objects and purpose. It could also be given special meaning, if so indicated in the treaty.

1. Literal/Textual approach: the terms of the treaty are to be interpreted according to their natural and plain meaning2. Intentions of the parties: the terms of the treaty are to be interpreted according to the intention of the parties at the time the treaty was adopted; this assumes that all the parties had the same intention and that it is possible to divine what it was3. Object-and-purpose/Teleological approach: the terms of the treaty are to be interpreted so as to facilitate the attainment of the objectives of the treaty; the object and purpose is that desired by the parties and not that which the court thinks was the object and purpose4. Principle of effectiveness: Ut res magis valeat quain pereat(Lat. It is better for a thing to have effect than to be made void); the treaty should be interpreted in order to ensure the maximum effectiveness in achieving the object and purpose of the treaty

Obligatory force of treaties (pacta sunt servanda)

Pacta sunt servandais a principle which provides thatevery treaty in force is binding upon the parties to it and must be performed by them in good faith.

The Vienna Convention on the Law of Treaties

The VCLT is an important instrument in the law of treaties in international law a treaty on treaties. Nonetheless, it does not apply to all international treaties, but only to treaties between states and in written form [...] governed by international law. (Arts. 1 and 2, VCLT)

NOTE: A different Convention deals with treaties made between international organizations or between states and international organizations, the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or Between International Organizations.

Steps in treaty-making

1. Negotiation:The President is the sole authority responsible for this, as to the decision whether to negotiate in the first place or not. It is only subject to the concurrence of the Senate. GR:The President can delegate this power to another and the latter needs to produce full powers (a formal document containing the authority given by a state to its representative to conclude treaties on its behalf).

XPN:Persons who do not need to produce full powers:(a) Heads of state or government(b) Foreign ministers(c) Delegates to international conferences convened for the purpose of adopting the text of a treaty

2. Authentication (of the text of the treaty): It is usually done through signatures, on behalf of the State. 3. Expression of consent to be bound:This is usually done through:(a) Signature(asignature has a dual effect;thus, it could authenticate and bind, as provided in the treaty or full powers)(b) Exchange of instruments(c) Ratification(binding [1] if such is provided in the treaty, or [2] if it is stated that ratification is required for the final consent of a State to be bound by the treaty or if it is stated that the state representative signs subject to ratification)(a) There will be nothing for the Senate to concur if there is no ratification from the President or the state representative. Case law on ratification:

It is not correct [] to compel the Executive Secretary to transmit to Senate the treaty for Senates concurrence or for the latters ratification. Ratification is only the Presidents discretionary function and since there is no ratification yet, there is nothing for [the] Senate to give concurrence to.(Pimentel, Jr. vs. Office of the Executive Secretary,G.R. No. 158088, July 6, 2005)

(d) Acceptance(e) Approval(f) Accession(also known as adhesion; the process by which a non-signatory state becomes a party to a treaty; usually takes place when a State did not participate in the initial negotiation or did not take part at all, but took part only after the treaty was drawn up, which could be before or after the entry into force of the treaty)4. Entry into force: A treaty enters into force in such manner and upon such date as it may provide or as the negotiating states may agree.

Reservation

A reservationisa unilateral statement, made by a state when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in their application to the state.

Formulation of reservations (Art. 19, VCLT):

GR:A State may formulate a reservation

XPN: unless:(a) The reservation is prohibited by the treaty(b) The treaty provides that only specified reservations, which do not include the reservation in question, may be made(c) The reservation is incompatible with the object and purpose of the treaty

Legal effects of reservations and of objections to reservations (Art. 21, VCLT):

1. A reservation which:(a) Modifies for the reserving state in its relations with that other party the provisions of the treaty to which the reservation relates(b) To the extent of the reservation modifies those provisions to the same extent for that other party in its relations with the reserving state. The reservation does not modify the provisions of the treaty for the other parties to the treaty inter se. 2. When a state objecting to a reservation has not opposed the entry into force of the treaty between itself and the reserving state, the provisions to which the reservation relates do not apply as between the two States to the extent of the reservation.

Withdrawal of reservations and of objections to reservations (Art. 22, VCLT):

1. As to withdrawal of reservations:GR:(a) A reservation may be withdrawn at any time.(b) The consent of a State which has accepted the reservation is not required for its withdrawal.

XPN: unless the treaty otherwise provides.

2. As to withdrawal of objections to reservations:GR:An objection to a reservation may be withdrawn at any time.

XPN: unless the treaty otherwise provides.

3. As to when a withdrawal becomes operative:GR:(a) The withdrawal of a reservation becomes operative in relation to another contracting state only when notice of it has been received by that state(b) The withdrawal of an objection to a reservation becomes operative only when notice of it has been received by the State which formulated the reservation

XPN: unless: (a) the treaty otherwise provides(b) It is otherwise agreed

DELETE Reservation, distinguished from interpretative declaration

RESERVATIONINTERPRETATIVE DECLARATION

It excludes or modifies the legal effect of certain provisions in a treaty.It only expresses opinions; it does not modify legal effects of provisions.

NOTE: Reservations do not apply in bilateral treaties but only in multilateral treaties. In bilateral treaties, the effect is renegotiation or abandonment of a treaty. This takes place during the stage of giving consent to be bound to a treaty.

DELETE Protocol de cloture:an instrument which records the winding up of the proceedings of a diplomatic conference and usually includes a reproduction of the text of treaties, conventions, recommendations and other acts agreed upon and signed by the plenipotentiaries attending the conference. It is not the treaty itself and does not require the concurrence of the Senate.

Amendment and modification of treaties

GR:The consent of all state-parties is required.

XPN:If allowed by the treaty itself, two states may modify its provision only insofar as they are concerned.

Invalidation of treaties

The following are grounds for the invalidation of a states consent to be bound by a treaty:

1. Error (Art. 48, VCLT)(a) Error relates to a fact or situation which was assumed by that State to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty(b) Error cannot be used as the basis for the invalidation of a treaty if the State in question contributed by its own conduct to the error or if the circumstances were such as to put that State on notice of a possible error(c) An error relating only to the wording of the text of a treaty does not affect its validity; Article 79(on the correction of errors in the texts or certified true copies of treaties)applies in such a case2. Fraud (Art. 49, VCLT):this contemplates a situation where a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State3. Corruption of a representative of a state (Art. 50, VCLT):corruption exists where thethe expression of a States consent to be bound by a treaty has been procured through the corruption of its representative directly or indirectly by another negotiating State4. Coercion of a representative of a state (Art. 51, VCLT):this is a ground based on the expression of a States consent to be bound by a treaty being procured by the coercion of its representative through acts or threats directed against him5. Coercion of a state by threat or use of force (Art. 52, VCLT):coercion by threat or use of force lies as a ground where a treatys conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the UN Charter

Doctrine of unequal treaties:treaties which have been imposed through coercion or duress by a state of unequal character are void.

Important modes of terminating a treaty:

1. Material breach: a repudiation of the treaty in a manner not authorized by the VCLT or a violation of a provision essential to the accomplishment of the object and purpose of the particular treaty2. Supervening impossibility: when there is a permanent disappearance or obstruction of an object indispensable for the execution of the treaty so long as this is not caused by breach of the treaty by the party claiming to terminate or suspend3. Rebus sic stantibus (fundamental change of circumstances):a ground the invocation of which can release states from obligations that have changed out of all recognition other than to provide an escape from what has turned out to be a bad bargain Requisites:(a) The change must be absolutely exceptional so substantial that the foundation of the treaty must have altogether disappeared(b) The change must have been unforeseen or unforeseeable at the time of the perfection of the treaty(c) The change must not have been caused by the party invoking the doctrine(d) The doctrine must be invoked within a reasonable time(e) The duration of the treaty must be indefinite(f) The doctrine cannot operate retroactively (i.e. it must not adversely affect provisions which have already been complied with prior to the vital change in the situation)XPN:Rebus sic stantibus is not a ground for terminating a treaty:(a) If the treaty establishes a boundary; or(b) If the fundamental change is the result of a breach invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty(Art. 62, VCLT)

Treaty, distinguished from executive agreement

TREATYEXECUTIVE AGREEMENT

Deals with basic political issues or changes of national policiesDeals with adjustment of details carrying out established national policies

Permanent agreementTemporary arrangements

Case law on treaties:

ICJ Judgments do not create automatically binding judgments in the US domestic sphere as domestic laws, thus, pre-empting state laws from its application. Nothing in its language suggests that it has a self-executing effect. [] The Senate can ratify a self-executing treaty made by the Executive, or, if the ratified treaty is not self-executing, Congress can enact implementing legislation approved by the President. (Medellin vs. Texas, 552 US 491, March 25, 2008)

As held in the case of Medellin [], treaties entered into by the United States are not automatically part of their domestic law unless these treaties are self-executing or there is an implementing legislation to make them enforceable. We have to look at the language of the treaty. The VFA is a self-executing Agreement [], because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. [] The VFA is binding for this executive agreement is a "treaty" within the meaning of that word in international law and constitutes enforceable domestic law vis--vis the United States (Nicolas vs. Romulo, G.R. No. 175888, Feb. 11, 2009)

Other important matters in treaty law

Most favored nation (MFN) clause:a pledge made by a contracting party to a treaty to grant to other party treatment not less favorable than that which had been given or may be granted to the most favored among parties.

GR:A new State is not bound by the former sovereign.

XPN:(a) If a State agreed to be bound; or(b) In treaties involving boundaries or territorial matters.

NOTES:1. Unless a different intention appears from the treaty or is otherwise established, a treaty is binding upon each party in respect of its entire territory. (Art. 29, VCLT)2. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that violation was manifest and concerned a rule of its internal law of fundamental importance. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in accordance with normal practice and in good faith. (Art. 46, VCLT)

SUGGEST TO INCLUDE GATT-WTO PROVISION ON MFNNATIONALITY AND STATELESSNESS

Nationality

Nationality is the status of being treated as a national of a state for particular purposes. Each state has wide discretion to determine who is a national. The most common methods of acquiring nationality at birth are through one or both parents and/or by the place of birth. Nationality can also be acquired by adoption and naturalization.

Nationality principle

The nationality principle provides that the State may exercise jurisdiction over an offender by virtue of his being its national, without regard to where he was at the time the offense was committed and without respect to the nature of the offense.

Such jurisdiction as exercised by the State has the following aspects:

PRESCRIPTIVE JURISDICTIONENFORCEMENT JURISDICTION

It is the power of the State to assert its own law over anybody or any subject matter, wherever located, subject to enforcement jurisdiction.It is the actual exercise and enforcement of a law over a person or subject matter within the territory of the State. Otherwise, the solution is extradition.

Doctrine of effective nationality

A person having more than one nationality shall be treated as if he had only one either the nationality of the country in which he is habitually and principally resident or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.(Art. 5, Hague Convention of 1930 on the Conflict of Nationality Laws)

Statelessness

Statelessness is the condition or status of an individual who is born without any nationality or who loses his nationality without retaining or acquiring another. Stateless individuals are treated more or less like the subjects of a foreign state.

Any wrong suffered by a stateless person through the act or omission of a state would be damnumabsqueinjuria for, in theory, no state has been offended and no international delict committed.

Kinds of stateless persons:

1. De jure:those who have lost their nationality and have not acquired a new one (e.g. deserters)2. De facto: those who have a nationality but to whom protection is denied by their state when out of his state (e.g. refugees)DUE TO ITS RELEVANCE, DISCUSS FOUNDLINGS

Reintegration

Reintegration is the recovery of nationality by individuals who are natural-born citizens of a state.

Refugees; non-refoulement

Refugees arethose who:

1. Are outside the country of his nationality or if stateless, outside the country of his habitual residence2. Lack national protection3. Fear persecution

Non-refoulement prohibits a state to return or expel a refugee to the territory where he escaped because his life or freedom is threatened. The State is under obligation to grant temporary asylum.

STATE RESPONSIBILITYSUGGEST YOU JUST COPY PROVISIONS OF LAW OF STATE RESPONSIBILITYState responsibilitycomes into play when a state violates an international obligation against another state, and provides thata state cannot invoke its national law for violating an international obligation.

Instances:

1. Violation of a treaty, or customary law2. Non-compliance with court decision3. Assistance in the commission of internationally wrongful act4. Ill-treatment of nationals

Elements:

1. Unlawful act or omission: where there is a violation or breach of an international responsibility, regardless of fault. 2. The unlawful act is attributable to a state under international lawAs to unlawful activities/conduct of:

A. Organs of statesGR:Always attributable to the State, whether by the central or local government, as long as the entity concerned is officially an organ of the State

XPN:Acts committed by entities considered organs of the state even if not officially (e.g. secret organizations) are attributable to the State

WHAT IF COMMITTED BY A PATROLMAN OR MMDA PERSONNEL?

Q:If an official of a state exceeded his authority, is it an act attributable to the state?

A:YES, when he commits the act at issue in the performance of his official functions.

B. Private individualsGR:Acts of private individuals cannot be attributable to the State

XPN:If the private individual is:(a) Empowered by the national law to act on behalf of the State(b) Acting on behalf of the State(c) Exercises elements of governmental authority in the absence or default of the official authorities and in circumstances such as to call for the exercise of those elements of authority(d) Acting as an agent of the State

C. RevolutionariesGR:Acts of revolutionary movements are not attributable to the State

XPN: unless if the revolutionary movement succeeded to become the new government of the State

D. Groups acting in another states territory: they are like agents of their State of origin,provided that 1. The group must have a total dependence on that State; and2. The State must have direct control over the group

NOTE: A State can be made liable for failure to act on or stop a non-attributable act, giving rise to an obligation of the State under international law (e.g. if a State does not prosecute a private individual for violations of International Humanitarian Law [IHL]).

Internationally wrongful act of a state

An internationally wrongful act of a state:

1. Is attributable to the State under international law2. Constitutes a breach of an international obligation of the State

Consequences:

1. The State has to make full reparation2. The State is to be made liable to do specific performance (e.g. doing what it has failed to do)3. The State could be a subject of a countermeasure, provided (a) it is not a violation on the prohibition on the use of force and basic human rights or rules of jus cogens; and (b) it must be proportionate to the injury or wrongful act

Defenses/circumstances precluding wrongfulness:

1. Consent on the part of the potential victim-state2. Legal countermeasures3. Force majeure4. Extreme distress (no other way to save life)5. State necessity (no other way to safeguard an essential state interest)6. Lawful self-defense

On ill treatment of aliens (e.g. unlawful expropriation, denial of justice, direct attack or injury) as an act of state responsibility:

For ill treatment not to be present, the treatment as to aliens must pass a certain standard, which varies depending on each particular case:

1. International minimum standards (IMS)if the violation is related to human relations The treatment of an alien, in order to constitute an international delinquency, the treatment of an alien should amount to an outrage, bad faith, willful neglect of duty, and insufficiency of governmental action that every reasonable and impartial man would readily recognize its insufficiency(Neer vs. Mexico)2. National standardsif the violation is related to unlawful expropriation

Theory of internationalization of contracts

Internationalization of contracts contemplates the existence of a contract entered into between states.

GR:Breach of contract does not give rise to an international obligation

XPN: unless the contract has been so internationalized that it will give rise to an international obligation A contract is internationalized when the contract provides for clauses that settlement of disputes will be brought for international arbitrations;as a result, a State cannot terminate a contract for a reasonable period of time

Direct and indirect state responsibility, distinguished

DIRECT STATE RESPONSIBILITYINDIRECT STATE RESPONSIBILITY

Who committed the offense/delinquency?The international delinquency was committed by superior government officials or organs (e.g. chief-of-state, national legislature)The offense was committed by:(a) Inferior government officials; or(b) Private individuals

When will liability attach?Immediately, because the officials or organs acts may not be effectively prevented or reversed under the constitution or laws of the StateThe state will be held liable only if, by reason of its indifference in preventing or punishing it, it can be considered to have connived in effecting its commission

Right of diplomatic protection

This right belongs to the State on behalf of its own national or individuals, provided:

1. The State establishes anationality link; and 2.GR:There is an exhaustion of local remedies in the State The State must be given an opportunity to do justice in its regular way and without unwarranted interference by other states.

XPN:Exhaustion may be dispensed with:(a) If there are no remedies to exhaust(b) Where the courts are corrupt(c) Where there is no adequate machinery for the administration of justice(d) Where the international delinquency results from an act of the State

On the Calvo clause:

The Calvo clause is an invalid stipulation by virtue of which an alien waives or restricts his right to appeal to his own state in connection with any claim arising from a contract with a foreign state and limits himself to the remedies available under the laws of the state.

Resort to diplomatic protection:

After the alien has exhausted all available local remedies without success, he must avail himself of the assistance of his state.

The nationality link must exist from the time of the injury until the time the international claim is finally settled.

NOTE:It is the executives function to invoke diplomatic protection to its nationals on violation of international crimes and not the courts. However, the President cannot be compelled to do so. It is a discretionary function.

No matter how much the Court grieves with the Malaya Lolas for the violation of their human rights in the hands of the Japanese during the World War II, the Court cannot force the executive department to initiate diplomatic protection against Japan and in favor of the Filipinas. This is a matter of discretion for the Executive Department. (Vinuya vs. Romulo, G.R. No. 162230, April 28, 2010)

JURISDICTION OF STATES

The concept of jurisdictionin international law refers to the power of a state to prescribe and enforce criminal and regulatory laws.

Territoriality principle

A state has jurisdiction over all matters arising in its territory, whether the individuals concerned are nationals or aliens.

Aspects of territoriality:

1. Objective: a state will have jurisdiction over offenses that are completed in its territory, even though some element constituting the offense (or civil wrong) took place abroad. (Lotus case)2. Subjective: a state has jurisdiction over all offenses and matters commencing in its territory, even if some element of the completion of the offense takes place in another state (Compania Naviera Vascongado vs. Steamship Cristina, [1938] AC485)3. Extra-territorial: where jurisdiction is exercised in such a way that allows acts taking place abroad to be considered as offenses within the local jurisdiction, and individuals can thus be made subject to local courts in respect of those acts

Nationality principle

* See also Nationality and Statelessness.

International law permits (but does not require) a state to exercise jurisdiction over its nationals, wherever they may be when the offense or civil wrong is committed.

NOTE:1. The nationality principle is concerned with the identity of the perpetrator of a crime.2. A national is entitled to the diplomatic protection of his/her state at all times, and, as corollary, he/she is subject to its civil and criminal jurisdiction.

Protective principle and the effects doctrine

A state may assert its authority over matters which produce a deleterious effect on itirrespective of where those acts take place or by whom they are committed. National laws based on this principle are said to operate extraterritorially.

The effects doctrine (Lotus Case):

A state has jurisdiction over acts occurring outside its territory but having effects within it. It has two (2) principles:

1. Subjective territorial principle: a state has jurisdiction to prosecute and punishpersons who have committed crimes commenced within the state but completed or consummated abroad2. Objective territorial principle: a state has jurisdiction to prosecute and punish persons who have committed crimes commenced outside the state but consummated within its territory

Universality principle

Under international law, there are certain crimes that are regarded as so destructive of the international order that any state may exercise jurisdiction in respect of them.

Universal jurisdiction is one that appears to exist irrespective of where the act constituting the crime takes place and the nationality of the person committing it. Such acts include:

1. Genocide2. Torture3. War crimes4. Piracy5. Crimes against humanity

Q:Are kidnapping and indiscriminate violent assault covered by the universality principle?

A:YES. Offences such as kidnapping or indiscriminate violent assault on people are increasingly accepted as subject to universal jurisdiction. (The Restatement of the Law (Third) on the Foreign Relations Law of the United States, 1987)

Passive personality principle

Under the passive personality principle, a state would have jurisdiction over all crimes where the victim was a national, irrespective of the place where the crime was committed or the nationality of the offender.

Conflicts of jurisdiction

There are three modes in resolving conflicts of jurisdiction:

1. Balancing test: involves the employment of tripartite analysis to determine whether to assume jurisdiction or not2. International comity3. Forum non conveniens:if in the entirety of the circumstances of the case, it would be discovered that there is real unfairness to one of the suitors in permitting the choice of forum which is not the natural or proper forum, either on the ground of convenience of trial or the residence or domicile of parties or of its being the locus contractus or locus solutionis, then the doctrineof forum non conveniens is properly applied

TREATMENT OF ALIENS

No state is under obligation to admit aliens. The stateprerogative to admit or not to admit aliens in certain cases and under certain conditions flows from its right of existence and as an attribute of sovereignty.

Exhaustion of local remedies:

Foreign nationals must utilize such censures as are available in the local law to achieve a satisfactory vindication of their rights before their state of nationality can successfully maintain a claim in international law. Purpose: it ensures that international tribunals are not engulfed by inter-state claims that could have been more easily and more profitability dealt with at the local level.

Extradition; fundamental principles

Extradition is the process by which persons charged with or convicted of crime against the law of a state and found in a foreign state are returned by the latter to the former for trial or punishment.

Applies to:1. Those merely charged with an offense but have not been brought to trial2. Those tried and convicted and have subsequently escaped from custody3. Those who have been convicted in absentia

Does not apply to:1. Persons merely suspected of having committed an offense but against whom no charge has been laid2. Person whose presence is desired as a witness or for obtaining or enforcing civil judgment

Fundamental principles of extradition:

1. The prevailing view is that there is no duty to extradite in the absence of treaty, whether bilateral or multilateral. (Dissenting Opinion, Puno, J., in Secretary of Justice vs. Hon. Ralph C. Lantion) XPN:in matters involving the commission of international crimes2. Any person may be extradited; he need not be a citizen of the requesting state. XPN:political or religious offenders are generally not subject to extradition(a) XPN to XPN: Attendant clause: the assassination of head of State or any member of his family is not regarded as political offense for purposes of extradition; likewise as to the crime of genocide.3. Offense must have been committed within the territory or against the interest of the demanding State.4. An extraditee has no right to notice and hearing during the evaluation stage of the extradition process. (Sec. of Justice vs. Lantion; Cuevas vs. Muoz)5. Specialty: a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the treaty.6. Double criminality:the act for which the extradition is sought must be punishable in both States7. As a rule, the offense charged should be identical to an offense listed in the extradition treaty. XPN:in non-list treaties, offenses punishable under the laws of both states by imprisonment of one year or more are included among the extraditable offenses8. Bail is available in extradition cases, provided it will be proved by clear and convincing evidence that he is not a flight risk and will abide with all orders and processes of the extradition court. (Government of Hong Kong vs. Olalia, G.R. No. 153675, April 19, 2007)

Procedure

A request for extradition is madethrough a diplomatic representative with:

1. Decision of conviction2. Criminal charge and warrant of arrest3. Recital of facts4. Text of applicable law designating the offense5. Pertinent papers

DFA forwards request to DOJ

DOJ files a petition for extradition with RTC

Upon receipt of a petition for extradition and its supporting documents, the judge must study them and make as soon as possible, a prima facie finding whether:

1. They are sufficient in form and substance,2. They show compliance with the Extradition Treaty and Law3. The person sought its extraditable.

At his discretion, the judge may require the submission of further documentation or may personally examine the affiants and witnesses of the petitioner.

Q:After the judge studies and examines the petition and its supporting documents, is a prima facie case found?

A:NOThe petition may be dismissed at the discretion of the judge.

YES The judge must immediately issue a warrant for the arrest of the extraditee who is at the same time summoned to answer the petition and to appear at scheduled summary hearings.

Hearing

Appeal to CA within ten years whose decision shall be final and executory

Decision to be forwarded to DFA through the DOJ

The individual is placed at the disposal of the authorities of the requesting state, who is to shoulder the costs and expenses therefor.

Prior to the issuance of the warrant, the judge must not inform or notify the potential extraditee of the pendency of the petition, lest the latter be given the opportunity to escape and frustrate the proceedings. The foregoing procedure will best serve the ends of justice in extradition cases (Government of the US v. Hon. Purganan and Jimenez, 134 SCRA 438).

Extradition, distinguished

From deportation:

EXTRADITIONDEPORTATION

Expulsion of an alien considered undesirable by a local state, usually but not necessarily to his own State.Surrender or recovery of a fugitive back to a local state, from another state, by virtue of a treaty.

From criminal proceedings:

EXTRADITIONCRIMINAL PROCEEDINGS

It does not determine guilt or innocence of the extraditee.It determines guilt or innocence of the accused.

Summary procedureFull blown-trial

It is subject to a less stringent standard of evidence.It is subject to strict standard of evidence.

The decision is not final for it is the President who finally decides whether to extradite a person or not.The decision rendered is final.

INTERNATIONAL HUMAN RIGHTS LAW

SHORTEN Human rights, defined

1. Human Development Report (HDR) definition: rights possessed by all persons, by virtue of their common humanity, to live a life of freedom and dignity.2. UN definition: those rights which are inherent in our nature, and without which we cannot live as human beings; human rights and fundamental freedoms allow us to develop and use our human qualities, intelligence, talents and conscience, and to satisfy our spiritual and other needs.3. Philippine Commission on Human Rights (PH-CHR) definition: those rights which are supreme, inherent, and inalienable rights to life, dignity, and self-development; the essence of these rights makes man human.

Basic characteristics of human rights

1. Inherent:They are not granted by any person or authority.2. Fundamental:Without them, the life and dignity of man will be meaningless.3. Inalienable:(a) Cannot be rightfully taken away from a free individual.(b) Cannot be given away or be forfeited.4. Imprescriptible: (a) Do not prescribe.(b) Cannot be lost even if man fails to use or assert them, even by a long passage of time.5. Indivisible:(a) Not capable of being divided.(b) Cannot be denied even when other rights have already been enjoyed.6. Universal: (a) Universal in application.(b) Applies irrespective of ones origin, status, or condition or place where one lives.(c) Without national border.7. Interdependent:Fulfillment/exercise of one cannot be had w/o the realization of the other.

DELETE Classification of human rights

Absolute and non-absolute rights:

Absolute rights cannot be limited in any way, at any time, for any reason. Absolute rights under theInternational Covenant on Civil and Political Rights(ICCPR) include:

1. Freedom from torture and other cruel, inhuman, or degrading treatment or punishment (Art. 7)2. Freedom from slavery/servitude (Art. 8[1],[2])3. Prohibition on genocide (Art. 6[3])4. Freedom from prolonged arbitrary detention (see Art. 9[1])5. Freedom from imprisonment for failure to fulfill a contractual obligation (Art. 11)6. Prohibition on retrospective operation of penal laws (Art. 15)7. Right to be recognized everywhere as a person before the law (Art. 16)8. Freedom from systematic racial discrimination (see Art. 2[1], Art. 26)

Non-absolute rights can be qualified or restricted.

A qualified right is where the state can lawfully interfere under certain circumstances, usually during a state of emergency or war, or in the pursuit of a legitimate aim, or to uphold a democratic principle (e.g. freedom of expression under Art. 10). Any right that is qualified must also be prescribed by law, and the manner of qualification must be necessary and proportionate.

A restricted right is one that is acknowledged as a restricted right in the law itself (e.g. right to liberty under Art. 5; a person's liberty can be restricted if he commits and is convicted of a crime that warrants imprisonment).

Derogable and non-derogable rights:

Derogable rights are those which states can suspend/restrict under certain circumstances, to enable said state to respond to a serious public emergency which threatens its life and existence. Any derogation must be (1) for a limited period of time, (2) proportionate to the emergency, and (3) non-discriminatory.(Art. 4, ICCPR)

Any right that is absolute is also non-derogable, i.e. cannot be suspended even in a declared state of emergency. In addition to the above enumeration on absolute rights are more non-derogable rights:

1. Right to life (see Art. 4[2])2. Freedom from medical/scientific experimentation w/o consent (see Art. 4[2])3. Freedom of thought, conscience, religion (see Art. 4[2])

The following come not from the ICCPR but from the HRC's (UN Human Rights Committees) General Comment 29:

1. Right of persons deprived ofliberty to be treated with humanity and respect for the inherent dignity of the human person2. Some elements of the rights of persons belonging to ethnic/religious/linguistic minorities3. Prohibition against taking hostages, abductions, or unacknowledged detention4. Prohibition on propaganda for war and advocacy of national/racial/religious hatred constituting incitement to discrimination/hostility/violence5. Prohibition against re-introduction of the death penalty if it has been abolished

Universal Declaration of Human Rights (UDHR)

The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the UN General Assembly in 1948, consisting of 30 articles which have been expounded upon in subsequent treaties and other laws (e.g. ICCPR).

Legal effect(s):

1. Not a treaty2. Explicitly adopted for the purpose of defining the meaning of the words "fundamental freedoms" and "human rights" appearing in the UN Charter, which is binding on all member states, and as such, a fundamental constitutive document of the UN3. Forms part of customary international law (D'Amato, International Law: Process and Prospect, 1986 ed., pp. 123147)

Articles:

Article 1Right to equality

Article 2Freedom from discrimination

Article 3Right to life, liberty, personal security

Article 4Freedom from slavery

Article 5Freedom from torture and degrading treatment

Article 6Right to recognition as a person before the law

Article 7Right to equality before the law

Article 8Right to remedy by competent tribunal

Article 9Freedom from arbitrary arrest and exile

Article 10Right to fair public hearing

Article 11Right to be considered innocent until proven guilty

Article 12Freedom from interference with privacy, family, home and correspondence

Article 13Right to free movement in and out of the country

Article 14Right to asylum in other countries from persecution

Article 15Right to a nationality and the freedom to change it

Article 16Right to marriage and family

Article 17Right to own property

Article 18Freedom of belief and religion

Article 19Freedom of opinion and information

Article 20Right of peaceful assembly and association

Article 21Right to participate in government and in free elections

Article 22Right to social security

Article 23Right to desirable work and to join trade unions

Article 24Right to rest and leisure

Article 25Right to adequate living standard

Article 26Right to education

Article 27Right to participate in the cultural life of community

Article 28Right to a social order that articulates this document

Article 29Community duties essential to free and full development

Article 30Freedom from state or personal interference in the above rights

International Covenant on Civil and Political Rights (ICCPR)

The portions of the ICCPR relevant to the subject comprise three parts:

Part 1 (Art. 1):

1. Right of all peoples to self-determination, including the right to "freely determine their political status", pursue their economic, social and cultural goals, and manage and dispose of their own resources2. A negative right of a people not to be deprived of its means of subsistence, and imposes an obligation on those parties still responsible for non-self-governing and trust territories (colonies) to encourage and respect their self-determination

Part 2 (Arts. 25):

1. Obligation of state-parties to legislate where necessary to give effect to the rights recognized in the ICCPR, and to provide an effective legal remedy for any violation of those rights2. Requirement that these rights be recognized "without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status," and to ensure that they are enjoyed equally by women3. That these rights can only be limited "in time of public emergency which threatens the life of the nation" XPN:No derogation re:(a) Right to life(b) Freedom from torture and slavery(c) Freedom from retrospective law(d) Right to personhood(e) Freedom of thought, conscience and religion

Part 3 (Arts. 627) lists the rights themselves. These include rights to:

1. Physical integrity, in the form of the right to life and freedom from torture and slavery (Arts. 6, 7, 8)2. Liberty and security of the person, in the form of freedom from arbitrary arrest and detention and the right to habeas corpus (Arts. 911)3. Procedural fairness in law, in the form of rights to due process, a fair and impartial trial, the presumption of innocence, and recognition as a person before the law (Arts. 14, 15, 16)4. Individual liberty, in the form of the freedoms of movement, thought, conscience and religion, speech, association and assembly, family rights, the right to a nationality, and the right to privacy (Arts. 12, 13, 1724)5. Prohibition of any propaganda for war as well as any advocacy of national or religious hatred that constitutes incitement to discrimination, hostility or violence by law (Art. 20)6. Political participation, including the right to join a political party and the right to vote (Art. 25)7. Non-discrimination, minority rights and equality before the law(Arts. 26, 27)

Many of these rights include specific actions which must be undertaken to realize them.

International Convention on Economic, Social, and Cultural Rights (ICESCR)

The ICESCR follows the structure of the UDHR and ICCPR. The portions relevant to the subject comprise three parts:

Part 1(Art. 1) is the same as Part 1 of the ICCPR.

Part 2(Arts. 25):

1. Principle of progressive realization: some of the rights (e.g. the right to health) may be difficult in practice to achieve in a short period of time, and that states may be subject to resource constraints, but requires them to act as best they can within their means2. Same as Part 2, item 2 in the earlier discussion on the ICCPR.3. Same as Part 2, item 3 in the earlier discussion on the ICCPR.

Part 3(Arts. 615) lists the rights themselves. These include rights to:

Work, under "just and favourable conditions", with the right to form and join trade unions (Arts. 6, 7, 8) Social security, including social insurance (Art. 9) Family life, including paid parental leave and the protection of children (Art. 10) An adequate standard of living, including adequate food, clothing and housing, and the "continuous improvement of living conditions"(Art. 11) Health, specifically "the highest attainable standard of physical and mental health" (Art. 12) Education, including free universal primary education, generally available secondary education and equally accessible higher education. This should be directed to "the full development of the human personality and the sense of its dignity", and enable all persons to participate effectively in society (Arts. 13, 14) Participation in cultural life(Art. 15)

Many of these rights include specific actions which must be undertaken to realize them.

INTERNATIONAL HUMANITARIAN LAW AND NEUTRALITY

International humanitarian law (IHL)(also known as the law of war or the law of armed conflict) is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.

Categories of armed conflicts

1. International armed conflicts: those in which at least two States are involved; subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol (AP) I.2. Non-international armed conflicts: those restricted to the territory of a single state, involving either regular armed forces fighting groupsof armed dissidents, or armed groups fighting each other; a more limited range of rules apply to internal armed conflicts and are laid down in Common Article 3 to the four Geneva Conventions as well as in AP II.3. War of national liberation:armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right to self-determination.

Core international obligations of states in IHL

The Geneva Conventions mandate states to give humane protection to persons not actively engaged in warfare. The rules apply to any international armed conflict, whether a declared war or not. It gives protection to the:

1. Wounded and sick in the field2. Wounded, sick and shipwrecked at sea3. Prisoners of war4. Civilians

State-parties to an international armed conflict are thus obliged to abide by the following rules:

1. The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. The protection extends to the civilian population as a whole and individualsalike.2. Attacks may be made solely against military objectives. 3. People who do not or can no longer take part in the hostilities are entitled to respect for their lives and for their physical and mental integrity. Such people must in all circumstances be protected and treated with humanity, without any unfavorable distinction whatever.4. It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.5. Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods of warfare that are likely to cause unnecessary losses or excessive suffering.6. The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. 7. Medical personnel, establishments, transports and equipment must be spared. The red cross or red crescent on a white background is the distinctive sign indicating that such persons and objects must be respected.8. Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their lives, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid. They must enjoy basic judicial guarantees.(based on the four Geneva Conventions and the APs)

Principles of IHL

IHL is founded upon the following principles:

1. Distinction between civilians and combatants2. Prohibition of attacks against those hors de combat (those who are sick and wounded, prisoners of war)3. Prohibition on the infliction of unnecessary suffering4. Principle of proportionality5. Notion of necessity6. Principle of humanity

Distinction between civilians and combatants:

The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians. (Rule 1, Customary Rules of IHL)

Terms of note:

1. Attack: act of violence against the adversary, whether in offense or in defense (Art. 49, AP I)2. Combatant: a person who engages directly in the hostilities of armed conflict(a) Non-privileged: those who, when caught, are not considered prisoners of wari. Spies: Those who act clandestinely or under false pretenses to obtain or seek to obtain information in the zone of operations of the other, with the intention of communicating it to the hostile party When captured, a spy may be proceeded against under the municipal law of the other belligerent, although under The Hague Convention, he may not be executed without a trial However, if a spywas captured after he has succeeded in rejoining his army, he must be treated as a prisoner of warii. Mercenaries: Must be especially recruited to fight for a particular armed conflict, as a combatant Must take direct part in the hostilities Motivated essentially by the desire for personal gain and is, in fact, provided material compensation(b) Privileged:those who, when captured, enjoy the privileges of a prisoner of war.i. Regular armed forces: aside from the persons actually comprising a belligerents regular armed forces, the term also includes Ancillary services, like doctors and chaplains Those who accompany the armed forces (e.g. war correspondents) Levees en masse: inhabitants of unoccupied territory who, on approach of the enemy, spontaneously take up arms to resist the invading troops without having had the time to organize themselves, providedthey[1] Carry arms openly[2] Observe the laws and customs of war Franc-tireurs or guerillas: provided that they[1] Are commanded by a person responsible for his subordinates[2] Wear a fixed, distinctive emblem[3] Carry their arms openly[4] Observe the laws and customs of war Officers and crew of merchant vessels who forcibly resist attack3. Civilian; non-combatant: a person who does not engage directly in the hostilities1. Protected civilians must be:i. Treated humanely at all times and protected against acts or threats of violence, insults and public curiosityii. Entitled to respect for their honor, family rights, religious convictions and practices, and their manners and customsiii. Specially protected, for example in safety zones, if wounded, sick, old, children under 15, expectant mothers or mothers of children under 7iv. Enabled to exchange family news of a personal kindv. Helped to secure news of family members dispersed by the conflictvi. Allowed to practice their religion with ministers of their own faith(Fourth Geneva Convention)NOTE: Civilians who are interned (imprisoned) have the same rights as prisoners of war. They may also ask to have their children interned with them, and wherever possible families should be housed together and provided with the facilities to continue normal family life. Wounded or sick civilians, civilian hospitals and staff, and hospital transport by land, sea or air must be specially respected and may be placed under protection of the red cross/crescent emblem.2. Protected civilians must not be:i. Discriminated against because of race, religion or political opinionii. Forced to give informationiii. Used to shield military operations or make an area immune from military operationsiv. Punished for an offence he or she has not personally committedv. Women must not be indecently assaulted, raped, or forced into prostitution(Fourth Geneva Convention)Civilians are protected against attack, unless and for such time as they take a direct part in hostilities.(Rule 6, Customary Rules of IHL; Art. 51(3), AP I) Elements of direct participation:[1] The act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm)[2] There must be a direct causal link between the act and the harm likely to result either from that act or from a coordinated military operation of which that act constitutes an integral part (direct causation)[3] The act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus)

Prohibition of attacks against those hors de combat:

The prohibition to attack any person hors de combat (i.e. the sick and wounded; prisoners of war [POW]) is a fundamental rule under IHL.

Ex.:

GR:A soldier could be targeted lawfully under normal circumstances

XPN: butif he surrenders or is wounded and no longer poses a threat, then it is prohibited to attack him.

A person hors de combat who meets the criteria of being a POW may be entitled to extensive protections.

Rights of a POW(Third Geneva Convention):

POWs must be:

1. Treated humanely with respect for their persons and their honor2. Enabled to inform their next of kin and the Central Prisoners of War Agency (ICRC [International Committee of the Red Cross]) of their capture3. Allowed to correspond regularly with relatives and to receive relief parcels4. Allowed to keep their clothes, feeding utensils and personal effects5. Supplied with adequate food and clothing6. Provided with quarters not inferior to those of their captor's troops7. Given the medical care their state of health demands8. Paid for any work they do9. Repatriated if certified seriously ill or wounded (but they must not resume active military duties afterwards) 10. Quickly released and repatriated when hostilities cease

POWs must not be:

1. Compelled to give any information other than their name, age, rank and service number2. Deprived of money or valuables without a receipt (and these must be returned at the time of release)3. Given individual privileges other than for reasons of health, sex, age, military rank or professional qualifications4. Held in close confinement except for breaches of the law, although their liberty can be restricted for security reasons5. Compelled to do military work, nor work which is dangerous, unhealthy or degrading

Prohibition on the infliction of unnecessary suffering:

The use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is prohibited. (Rule 70, Customary Rules of IHL)

Unnecessary suffering connotesharm greater than that unavoidable to achieve legitimate military objectives.(Nuclear Weapons case)

The prohibition of the use of means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering is set forth in a large number of treaties, such as:

1. Chemical and biological weapons (Geneva Gas Protocol, Convention on Certain Conventional Weapons)2. Blinding laser weapons (Convention on Certain Conventional Weapons)3. Anti-personnel landmines (Ottawa Convention)

Necessity and proportionality:

1. The test of necessity requires a determination of whether not doing a certain course of action would cause more harm to the doers side.2. The test of proportionality is whether the anticipated civilian damage or injury caused by an attack is not excessive to the direct military advantage anticipated.

Incidental harm caused by a certain action might have been necessary, but still disproportionate.

Principle of humanity:all humans have the capacity and ability to show respect and care for all, even their sworn enemies.

The law on neutrality

Principles and definitions:

1. Principle of inviolability: the territory of a neutral state is inviolable; it is prohibited to commit any act of hostility whatsoever on such territory. (Art. 1, Hague Convention No. V)2. Neutrality: the formal position taken by a State which is not participating in an armed conflict or which does not want to become involved; entails specific rights and duties (a) The right to stand apart from and not be adversely affected by the conflict(b) A duty of non-participation and impartiality To obtain neutral status, the State does not have to make a formal declaration, nor do other States or parties formally have to recognize such status. A formal declaration will only have the effect of making neutral status better known.3. Neutral space: the national territory of the neutral State, its territorial waters and its national air space.4. Neutral persons: nationals of neutral States; they lose their neutral status if (a) they commit hostile acts against a belligerent, or (b) join the armed forces of a belligerent party.If their home State maintains normal diplomatic relations with the belligerent State(a) Neutral persons are to be treated in the same way as they would be in peacetime. (b) They remain under diplomatic protection.

If there are no such diplomatic relationsNeutral persons are entitled to be treated as protected persons under the Fourth Geneva Convention

Duties of belligerent states:

1. Establish a neutrality policy ensuring respect for neutral space2. Issue clear instructions and orders to the armed forces in action in the vicinity of neutral space to avoid violations

Duties of neutral states:

1. Put in place policies and instructions (a) to ensure and enforce the protection of its neutrality in the neutral space for which it is responsible in relation to the belligerent parties and in particular their armed forces; and (b) on how they are to operate in relation to the defence of their territory and in dealing with incursions2. Particular obligations:(a) To ensure respect for its neutrality, using force if necessary to repel any violation of its territory(b) Treat the opposing belligerent States impartially(c) Never assist a party to the armed conflict XPN: Existing non-military telecommunications, in particular those owned by public companies, may be used by the parties to the conflict

Practical provisions regarding the law of neutrality:

1. Treatment of members of belligerent armed forces: Neutral States receiving troops belonging to the belligerent armies on their territory must intern them. Internees who are held in neutral territory may be kept in camps or other secure places. Officers may, at the discretion of the neutral State, be released on parole but are not allowed to leave neutral territory without permission. During internment, internees are to be fed and clothed and allowed relief supplies.2. Hot pursuit into neutral territory: Generally, if belligerent forces enter neutral territory and the neutral authority is unable or unwilling to expel or intern them, the adverse party is entitled to undertake their hot pursuit and attack them there. (The mere presence of belligerent forces does not justify hot pursuit, there must be some failure by the neutral State to uphold its neutrality.)3. Military equipment: Military equipment taken from belligerent internees has to be kept by the neutral State until the end of hostilities.4. Treat