PIL Prefi Transcript
Transcript of PIL Prefi Transcript
PUBLIC INTERNATIONAL LAW (TRANSCRIPT) PRE-FINAL COVERAGEPIL RECORDING JAN. 31, 2O15Exercise of territorial sovereignty- If it involves exercise of the right to the exclusion of other states, functions of the state- Government. We learned that government as an element of state. What is important here is not the legitimacy of the government. What do we mean by legitimacy is not required in government?- law of the state? Government is legitimate if it has a constitutional standing. Judgment of government is based on the constitution or in a manner established by the constitution. But if it is established outside the constitution, maybe that government is not the legitimate government. Thats why if we talk about government, we must distinguish between de facto and de jure government. - in other words, even if a government has a particular territory but no legitimate status= it is considered de facto. What is important is that it has an effective control over the territory. - there are two kinds of effective control: some point out to external control as independence.- internal and external. If we say internal or external sovereignty, we are not referring to a government that is not subjected to a form of control or influence. This is more of a legal question rather than a political one. Most authors mention of the political reality that some states adopt policies and even enter into treaties on the basis of some pressures by other states. But that should not diminish the ability of the state to still control its affairs, internally or externally. - independence? The government is independent. We mean the government, actually and without the help of external forces, could exercise its sovereign power on its own. Ex. Coercion of a third state Ex. Political pressure on entering into a treaty- not really- in the case of the state of Palestine, most of the international writers criticized this as not in accordance with IL Because Palestine at that time and even up to the present cannot specifically identify a territory within its effective control, still having a problem with Israel. - the other thing that we have to take note is that even there is a temporary deprivation of effective control, this will not diminish the fact that that state is a government. E.g. Somalia, RwandaCommon question in the bar exam: distinction between a state and government.How to distinguish? What is the concept of state and government?There is a doctrine on the idea distinction between a state and government: There are Changes in the government but still the state continues (Doctrine of state continuity).- important because:a. the state indeed consists of a governmentb. it is the state that is considered as the bearer of rights and duties under IL: states enter into treaties, not government - CACPACITY TO ENTER INTO RELATIONS WITH OTHER STATES.- there are two theories on recognition:a. constitutive- recognition of states makes a community or entity a stateb. declaratory- recognition of the fact that it is already a state; this is favored in IL; most author would point to article iii of the Montevideo convention: the political existence of the state is independent of recognition of other states. Even before recognition, state has the right to protect its integrity and independence. Capacity need not be absolute. It can be limited for as long as the capacity is pursuant to the doctrine self-autolimitation. It is the state itself that allows the limitation to exercise its capacity to enter into relations. Associated states.Association in PIL? This relates to a situation where an entity that used to be part of a larger state will be given independence, usually in the process of decolonization. And some states, since they do not know yet how to administer they foreign relations, they enter in to treaty with the so that the more civilized state will be the one administering the foreign affairs or conduct of the not-so- civilized state. That is in itself not an exercise of sovereignty. Thats why even if there is a limited capacity, for as long as the limitation is self-limitation, that would not diminish the status of the state or the associate.Communities with sui generis status. Why sui generis? If you apply the four elements of statehood, they cannot pass but they are recognized as possessing international legal personality. Try to make a research on this (unya wa nagresearch, so sa recits, nag-NGANGA!). While recognition is not an element of statehood, such recognition however has the effects on whether or not states can actually enjoy right and privileges of statehood. Some authors found the reality that while recognition is not an element of statehood, these states enjoy rights only if they are integrated in the international community by third states in a process called CO-OPTATION. Co-optation. See slide kay nagdali si sir diri dapit. You cannot force a state to enter into another state.KAI: is Monaco recognized as a state? Sir: Some books recognize Monaco as a state. You might also include this in your research. Sala ni ni Kai. hahahahProblems arise in the emergence of new state by way of secession.Distinguish the opinion of the ICJ in the case of Quebec from that of Kosovo.Kosovo was a part of Serbia. Then what happened? What did the Albanians (Kosovo) experience? Were there allegations on ethnic cleansing, human rights violations, discrimination that led the UN Security Council to intervene? Yes. In fact, the UNSC overextended its intervention by establishing a provisional government or administrative body in Kosovo until they came up with a democratically elected assembly. After establishing its own assembly, UNSC ordered ceasefire and demilitarization, and then, they were supposed to talk about the extent by which autonomy may be granted to Kosovo by Serbia in the area of politics, economics, socio-cultural, inter-religion, etc. but they failed to come up with a definite extent of its autonomy that led to a unilateral declaration of this assembly. Is the unilateral declaration considered a violation of IL? Were the people of Quebec subject to human rights violation? Difference between the situations of the people of Kosovo and Quebec.People in Quebec can be distinguished from the people of Canada: Minority wanting to secede from an already existing territory with a claim of being different and a minority subjected to human rights violation.PIL feb 4 2015 transcription ( Guys, heavy ang orals ni Sir ani na time)One of the effects of recognizing a state, we know that it may not be considered an element of statehood, atleast from the perspective of declaratory theories, in any case, I think that you have learned that even if it is not necessarily an element of statehood, albeit there are arguments still in favor of constitutive, we know that there are inescapable consequences of recognizing a state.SIR: Can you tell us the consequences or the effects of recognizing a state?DENNIS: sir, one of the effects I know is that when one state recognizes another state, uhm, that recognizing state must respect the independence of that recognized state. Also that, the state recognized will become somehow subjects of international law and their acts as a state are now become valid or their transactions and their relations outside the state become valid.SIR: the case of underhill vs hernandez what is covered by international law?DENNIS: this sir, in this case, this has stipulated the Act of State doctrine, wherein when one, uh sir, can I say the facts first sir?SIR: what do u mean by Acts of State Doctrine? What is your understanding of the Act of State Doctrine?DENNIS: like, the act of state doctrine, simply implies that, the court in exercising jurisdiction over the foreign state must apply the laws of that foreign state, rather than their domestic laws.SIR: okay, uhm what about recognition of governments? How is it distinguished from recognition of states?DENNIS: in recognizing a government, once a govt is recognized, their acts prior to the recognition, become valid and that that government must be accountable for their acts, while in recognizing a state.BAGOL: in recognizing a government, it is a necessary consequence that the state while if it is only the state that is recognized, its government or a specific regime is recognized.SIR: how is that done?BAGOL: whenever a state passes the requirements of statehood, then the state is recognized as a state by a third entity, but if a government has effective control over that state, it does not necessarily recognized by another state.SIR: Is there such a thing as an obligation to recognize a state?BAGOL: I think there is no obligation to recognize a state, I think there is none, because according to the declarative theory, the consent of a state is really not requiredSIR: if there is no obligation to recognize a state, is there no obligation to recognize a government?BAGOL: I guess there is also none, but in case where there is aSIR: Is there importance to recognize a de jure or a de facto government?BAGOL: If it is de facto, it means that the government was recognized but however it was constituted outside the regime of that government, then other states has chosen to recognize that government.SIR: Can you tell us something about the Tinoco arbitration case, as to how relevant is the recognition or non-recognition of a state.BAGOL: In the tinoco arbitration case, this is about there is a government of Gonzales the govt of Gonzales was overthrown by the govt of tinoco and when the tinoco regime was in control, it entered into several contracts. It entered into concessions with great Britain, however when the Gonzales regime was able to gain back ts power, it invalidated all the contractsw and concessions which the tinoco government entered into. GB sued the Gonzales govt and said that the Gonzales govt cannot invalidate the concessions. It has to recognize the contracts entered into by the tinoco govt. when the tinoco govt was in power, it can be recognized as a de facto govt. over which the contracts it entered into should be..SIR: But didnt the costa rican govt that time argued that GB cannot anymore invoke the validity of the contracts coz in the first place, GB did not recognize the tinoco govt, so in other words, GB was therefore estoppedBAGOL: In this case sir, the court said that recognition is not important since the acts of the costa rican govt is an act of a de facto govt which has effective control over the costa rica at that time, and since there is subsequent recognition, then it has an obligation to recognize the acts of the previous government.SIR: in the case of CO KIM vs , the SC applied the recognized principles of public international law and the distinction between the different kinds of de facto govt, how does a de facto govt exist and what are the types of a de facto govt?PONTANAR: in this case sir, a de facto government, There are three kinds of a de facto government, the first is one where it is established thru rebellion.First is that a de facto government is one where it is established through rebellion, the second one where the situation where,SIR: if that is established thru rebellion, is there a name for that?PONTANAR: The second one would be occupation, where military forces invade and occupy said area.And the third type isSIR: Is there also a name for that?PONTANAR: Government of War. And the last would be the is one where there is insurrection.SIR: how is one done?PONTANAR: in the first one sir is thru occupation.SIR: the first type you mentionedPONTANAR: in rebellion sir, the government is controlled or possessed by two adversary goals of the majority wherein there is a majority of the people who wants to revolutionize against the existing governmentSIR: like the filipinos revolting against the govt of Aquino?Uhm no sir, that is the second type of occupation. SIR: so the first type is rebellion, thats why I said rebellion, isnt that about the people revolting against the existing type of government?PONTANAR: no sir, as what I have read in this case, the court said that the administration was a de facto government in the second type. Which is through occupation.SIR: so the situation of Aquino?PONTANAR: oh I thought about the Cory Aquino sir.SIR: ah no, im talking about the Pinoy Aquino, coz if you talk about the past, that is the Marcos administration.That is a situation and the third one is insurrection, what is it?PONTANAR: uhm insurrection is more like, there is like an idependent government, like in a state there is a portion which is has people that has their own independent government and they tend to overthrow the current govt. so example would be like,SIR: il give you three kinds of government and you identify each one.SIR: The govt is of Emilio Aguinaldo in Kawit cavite, what kind of govt is that?PONTANAR: Second govt. revolutionary SIR: second, govt of the Japanese armed forces?PONTANAR: government thru occupationSIR: govt established by the late Aquino after the collapse of the marcos govtPONTANAR: uhm that is the insurrection.SIR: bernal?, name some non state actors, atleast 4 and tell us significance of non state actors in international law.BERNAL : first sir is international organizations, if we go back to the ruling of the ICJ in the case of although recognition of an international law, it is impliedly given the force of an international status because of the fact that the organization or the states themselvesSIR: do u mean international status as recognizing it or giving it or possessing an international legal personality?BERNAL : yes sir, like in the case of UN sir, it is given an international legal personality.SIR: how different is an international organization from a non governmental organization?BERNAL: an intl org sir is in their creation sir, they are created by states, second when we talk about NGOs they are created by private individuals. So in that case, if we differentiate the two, the first one which is an international organization, possesses an international personality and non governmental org which doesnt have the same legal personality.SIR: what is the value of NGOs, giv exaamples of NGOsBERNAL: Greenpeace sir, in that case sir, according to ackehurst sir, the contribution of an NGO in the international sphere sir is, that their assistance to international issues to international world sir isSIR: what assistance?BERNAL: for example sir, in giving, aid to nations sir which are undergoing war.SIR: I think you are referring to the contribution of NGO in the formation of international law, given that most NGO possess more or less competence and expertise in certain areas, like Amnesty International will be dealing with human rights. GREENPEACE, with environment. Redcross, dealing with humanitarian group. So most of the observations and recommendations of NGOs are being utilized by the international law commission itself in coming up with interpretations of norms that are enacted.What about multinational companies and individuals? How does international law deal with them?BERNAL: as a law sir, individuals are objects of international law and as such it is erga omnes rule to protect the rights of the individuals as well as multinational companies sir, for the attainment and in furtherance of justice sir.SIR: the recognition of individuals and international companies in such a way that if we talk about rights, seldom to be seen in the international law, recognizing rights of individuals and multinational companies to the extent that there rights pertaining to individuals that have in fact are customary international law and other human rghts law, but the problem is with regard to treaties, whether or not we confer duties to individuals, does international law also recognize duties of individuals?BERNAL: yes sir, intl law, recognizes duties towards individuals.SIR: such as? Example?BERNAL: for example sir if we use it in the humanitarian law sir, we have the duty to protect individual rights and those offenses..SIR: those are rights, I mean duties of individuals that international law confers on them.BERNAL: in a way of mandating individuals to observe international law, such as the erga omnes rule, not to commit crimes against humanity. Observing the laws of war to some extent sir.SIR: oh okay. Miss locaylocay?(guys, airhead moves kayo so please, uhm, il just encode the questions of sir ha. )SIR: have you encountered in your readings different kinds of jurisdictions?CHENA: yes sir. (bagag nawng, bisag wala jud nakaabot ug basa sa jurisdiction na topic)SIR: have you read that topic?CHENA: just very vaguely sir (shuffling notes) the one thing about jurisdiction, it talks about the territory (blah blah blah.. wrong kau na answer) like, this certain tribunal has jurisdiction over certain kind of peopleSIR: are u talking about jurisdiction of a court?CHENA: that could be one thing sir, the jurisdiction to adjudicate. (diin man ko aning word na adjudicate uy)SIR: what about the jurisdiction of the other branches of the government? like the jurisdiction to legislate? The jurisdiction of the executive branch?CHENA: and that too sir, the jurisdiction as to the extent of the exercise of their powers.SIR: okay, so talking about jurisdiction, in regard to court jurisdiction, we call it the jurisdiction to adjudicate, different from the jurisdiction to prescribe which is legislative, jurisdiction to enforce which is the executive and jurisdiction to adjudicate which refers to the types of adjudication one of course which is territoriality. What is territoriality jurisdiction?CHENA: like say for example, I am (blah blah blah)SIR: so a state has jurisdiction over a crime committed in its territory?CHENA: thats right sir.SIR: have you come across the principle of nationality? How is it different from territoriality? In any case, we have one which is nationality and territoriality.CHENA: (wrong napud na answer) like the nationality principle, I am a national of a certain state, so the state has jurisdiction over me and (sir interrupts)SIR: lets talk about the case of nottebohn. Have you read that case?CHENA: no sir.Sir calls other people ; TAMPUS AND JAECTIN didnt read the case as well.SIR:Okay so, while recognition is not an element of statehood, atleast in the lieu of declaratory theory, there are however effects that are identifiable and conflicting. CONFLICTS - Full diplomatic relations, that is expected, the idea of recognizing a state, is of course a political act. The state may, grant or withdraw or revoke or refuse to recognize a newly emerging state, although, it could be agreed for example that the moment a state has established itself as a state international community should recognize the state because the moment a group objectively has established itself as a state then it possesses certain rights independent of other states. But that is just one scope.So if you are ready to recognize a state, then you must be ready to grant diplomatic relations. If you are not ready to grant or give diplomatic relations with that newly emerging state, then you dont recognize that state. So, observation is that the moment a state recognizes another state, chances are, there could be full diplomatic relations given, unless the recognition is qualified. Recognition may be qualified as merely recognizing a state not as a de jure but only a de facto recognition, meaning it is only recognizing the state, but we recognize you only for the purposes of our interests that we enter into relations.The most common effect of recognition of course is the right to enter into relations with the recognizing state. Entitlement to property of the recognizing state is another. And recognition shall be given retroactive effect. This is underlying principle in the underhill vs hernandez. This is a US case, but most authors and experts in intl law would still the underhill doctrine, in support of the theory that recognition should be given retroactive effect. So in the case of underhill vs hernandez. (sir explained the case. I presumed wev read it) the acts of hernandez were considered the acts of the state and therefore, you cannot sue hernandez in his individual capacity. And there was this argument that, how can you attribute the act of hernandez as an act of Venezuela that when that incident happened, the US did not recognize yet the govt of hernandez, but the US SC learned that later on recognized anyway so the effect is retroactive.So, in any case, the act of state doctrine compels a state to refuse or to pass judgment from the acts of other states. That is the act of state doctrine. This is Pursuant to the fundamental principle of equality of states. State A cannot pass judgment on the validity of the acts of State B.It means that the state A will resolve an issue by looking at the internal processes in the other state. The act of state doctrine bars the passing of judgment by the validity of other states.In the nottebohm case, the grant of citizenship for naturalization was not considered, by Guatemala, because of the failure of international law to grant effectiveness to the grant of citizenship. We will talk about that later.Now, thats recognition of states. Lets talk about recognition of government. You were right in saying that, there is a distinction between recognition of state and recognition of government, the moment a state is recognized, then it recognizes the entire entity as a state without reference to whoever is governing. If state a recognizes state b, it doesnt necessarily recognize that the govt of x and the govt y is in control, that would require another recognition of that govt as well. It is possible that there is a de jure recognition, yes you are a state to us, but there is also a de facto recognition of the govt because it was established in a way that is objectionable to the recognizing state. And you also know that there are several types of recognition offered by theories, and wel go to that later. But a recognition of a government whether de jure or de facto doesnt matter, because, for as long as there is recognition of government, it would necessarily result in the recognition that it is a state because you are recognizing that it is a government.So lets talk about the recognition of government, once again it is a political question and it involves discretion on the part of the executive. Or the head of state or the official that is vested with public affairs. You are right, there is no duty to recognize a government and that is why there are several theories or doctrines of recognition because THERE IS NO DUTY TO RECOGNIZE A GOVERNMENT, it is purely DISCRETIONARY.Addition, states used to apply certain thresholds or conditions before they would recognize antoher government, there is the requirement of effectiveness and degree of control. Meaning the moment we recognize you, we understand that that government is in control of the territory. Stability and permanence is also, another factor that recognizing states will consider. Popular support, it means you are democratically recognized, but in fact there are governments that are established extra constitutionally. Popular support means, it has the support of the inhabitants in that particular territory if it has been established extra constitutionally and not democratically.Then ofcourse the ability and willingness to fulfill international obligations, again, these however does not mean that the four factors are present objectively that the particular state is bound to recognize. What it simply means is that these are the factors that the recognizing state will consider when the want to recognize or establish recognition. It is possible that a government has all the four factors but the recognizing state still refuses to recognize and there is no obligation or duty to recognize.That is the traditional approach.Now, probably because of the idea that, recognition is highly political and discretionary, then some practices had evolved like the Tobar or Wilson Doctrine, espoused by former secretary Wilson in the US. This theory or doctrine precludes recognition of any government established by revolutionary means. These are modern theories and brought about by the huge influence of democratic states especially US.The Stimpson doctrine is another, no recognition of a government established through external conventions.The Estrada doctrine, of course as you know this is not in reference to our oldest president, Joseph Estrada. LOVE CONQUERS EVERYTHING.This is the Mexican leader Estrada. If a state is established through political upheaval, the state may not give recognition to the emerging government but will accept if it has effective control, I think the idea is that it would be more of respecting the internal affairs of that state. Dealing or not dealing with that said government is not a test in dealing with such legitimacy of the government. This came out several times in the bar exam. (ESTRADA DOCTRINE iyang pasabot.)
Costa rica claimed that GB was estopped in not recognizing the contract. Because at that time, GB was not recognizing costa rica. So how will you answer that if you have not encountered the case? Principle recognition or non-recognition of other governments by such de facto government will not necessarily destroy the de facto status of such government. It is no argument to say that Estoppel may be applied in a non recognizing state with regard to enforcement of contracts. It is likewise important to talk about recognition of belligerent state. Recognition of belligerency. Not insurgency. How will you distinguish belligerency from insurgency? How will you differentiate insurgency from a riot? In which instance do we use properly the term war?If govt forces are engaged in some sort of fire or use of weapons against a group. Do we call it war? In situtations that involve a riot or insurgency, do we use the word war? We only use the word war if that status of a group can be said as belligerent. A mere riot is ofcourse an informal, an unorganized. There is no armed conflict there.How do you distinguish insurgency as from belligerency.There is insurgency if there are groups more or less organized but lacks a civil government and possession of a significant portion of territory.So if a group has a substantial portion of territory and it has a civil government recognized by the national government, then that group can qualify as a belligerent but it all depends now, whether the state recognizes and what would be the effects if a state recognizes a belligerent.The moment participants of insurgency are captured, how will the state treat the captured insurgents? What about belligerents? How will the state treat belligerents? Like POW status. We start from there next time and we continue up to jurisdiction.
PIL TRANSCRIPT FEB. 9, 2015 by D.A.T.A.Were talking about the difference between insurgents and belligerents in IL. That is important because if the government of a particular state treats a group as mere insurgents, that simply means that the armed group or the insurgents and the armed forces will not be governed by the laws of war. Meaning, what will apply will be the municipal law of that state. But if the group will qualify as belligerents, then, there is the option on the part of the state to either recognize belligerency or not. The effect if there is recognition of belligerency, that the relationship of the armed conflict between the belligerents and the armed forces, will now be governed by the laws of war. Meaning, they shall be treated, for example, those captured as prisoners of war, and they shall be prosecuted not under domestic law but will be prosecuted for international crimes if any has been committed. So, we have the following basic effects of the recognition of belligerency:Before recognition, the rebels will be subject to municipal laws of the legitimate government and in case of the injuries suffered by third states - Usually, in the form of injuries inflicted to their citizens. In that situation, we will be talking about state responsibility soon. Well talk about the liability of the state in so far as acts committed by rebels are concerned. But, generally, the acts of the rebels will be imputable to the state before recognition, because non-recognition of belligerency is a commitment or undertaking on the part of the non-recognizing state that it is still in control of the territory. And so if it says that it doesnt recognize the group as belligerents then that state is saying that were in control and so whatever happens to citizens of third states, we shall be responsible. But if the state thinks that its already out of its control, then it will now recognize belligerence so that acts committed of the belligerents will no longer be imputable to the state. Basically, thats what guides states on the matter whether it will recognize or not. Doctrine of State Continuity- whatever happens to the internal organization or changes in the government, the state continues to exist.Different effects of state succession and government succession.Q: When is there state succession? When is there mere government succession?It is important to characterize what is happening in a particular territory. Something happens in a territory, the government, for example, had been overthrown. Is this state succession or government succession? Because, you know that there are different consequences in state succession and the other.When is there state succession?Change is personality. Particularly, in what aspect? Change in Sovereignty. In the PH, did we have ever a situation when we changed state, state succession? Change of sovereign power from Spain to the USA.Change from US government (American sovereignty) to PH, granting independence.Changes of government:Change from parliamentary government (Marcos era) to a democratic form. Establishment of the 1973 Constitution and the 1987 Constitution.During elections, we only change the administration and not the government.It is important to know the nature of state succession. There is state succession when there is a substitution of new sovereign over a particular territory and common examples would be cession, Annexation, decolonization, merger, etc.This will have legal effects in treaty and International obligations. This is where you refer to the so-called Clean Slate Doctrine or tabula rasa. CSD, as a general rule, the moment there is change of sovereignty, except in certain treaties involving boundaries and territories, the new or successor state should not inherit the obligations incurred by the preceding sovereignty. That is basically the rule in CSD.So, what are the effects of state succession?1. Transfer of allegiance of inheritance2. Since political laws are laws that define the relationship between the inhabitants and the state, as a general rule, they are abrogated whether or not they are compatible with the laws of the new sovereign. Even if they are still compatible, they are deemed abrogated. The only by which political laws may continue is when there is an affirmative act on the part of the new sovereign enacting the same political laws. But, the effect is automatic.3. For non-political laws, they continue unless they are inconsistent or expressly abrogated by the new sovereign.4. Effects on public property, torts liability generally not acquired, and the new sovereign has the option to assume liability.Treaties of the predecessor state under the CSD are not binding on new sovereign.Exceptions: those dealing with local rights and affecting territory.What is important here is that the new sovereign has the option to assume liability. Under the treaty of Paris, the US expressly said that it never assumed the obligation of Spain in relation to the PH islands. It is an option whether to assume or not. That is not necessarily the case in government succession.What are the effects of government succession?No problem with rights. That will be beneficial to the successor government. All rights of predecessor government are inherited by the new govt. But, the distinction now is when it comes to obligations. When it comes to obligations, we distinguish the two kinds of changing the government:a. By constitutional means or peaceful means, although it does not necessarily need to be peaceful.b. By non-constitutional means or violent means (EDSA Revolution, non-violent)If by peaceful means, obligations as well are inherited. If by extraconstitutional or violent means, the new government has the option to either inherit the obligations or not. And if it will reject obligations, it can reject political and personal obligations, but not those arising out from the regular administration of government.Usual examples of political obligations:Let us assume that during the time of Marcos, he entered in to contracts with the govt of Malaysia for the supply of ammunitions for his armed forces that we are battling against the demonstrators of Aquino group. The obligations incurred by the government can be considered as political because it was intended precisely as an expense against the government that will soon replace the government of Marcos. That is a political obligation which can be rejected.Example of personal obligation:Usually, these are obligations incurred that do not benefit the people or the society as a whole, obligations subject of corruption. Obligations incurred as a result of corruption, the government has the option not to assume the obligation. And, in the case of former Pres. Aquino, she was generous enough to declare in the session in the Senate of the US, after the Aquino admin was installed by the People Power, that the PH will honor all the obligations of the deposed government of Marcos (World Bank obligations, which, of course, the US has great interest and other obligations as well). We did not follow Poland. The new democratic government that was installed rejected the obligations of the former dictator. When it became bankrupt, exempt from paying obligations until it can start anew. This can be done under the auspices of the IMF World Bank policy. You can actually tell WB we owe you 400 billion we cannot pay such. The WB can actually condone provided that the new government comply with certain conditions. We demand that of revenue 40% shall go to the infrastructure, etc. The moment you are able to comply, do not expect to be economically aided.
Non-state actors in IL. Done na ni, ingon si sir. So he did not really touch this part.In the Reparation for Injuries case, normally, states are the ones considered having international legal personality. Except in this case, where the ICJ mentioned that the UN as an international organization, also has international legal personality, can therefore represent or rather demand and bring claims at the international level. And that for individuals, usually, that would require espousal claims by states for generally they are objects of international. But, to some extent, some kinds of individuals have international legal personality in the area of rights. At least, in the area of rights, not probably on duties (ex. Right to self-determination).As for duties, there are situations where we can say that even individuals possess international duties, especially if we talk about international criminal responsibility. Even individuals can be considered non-compliant of IL norms.
JURISDICTIONThere are three kinds of jurisdiction. When we say jurisdiction we are not only talking about the jurisdiction of the court. We are talking here about the jurisdiction of the government or the state.a. Jurisdiction to prescribe law. This is legislative, the authority of the state to make its law or policy applicable to persons or activities. Whether this can be extended outside the territory of the state, well talk about it later on.What jurisdiction simply means is the authority to prescribe a conduct and that is legislative.b. Jurisdiction to enforce. This involves the authority to use governmental resources and demand compliance of certain administrative rules.c. Jurisdiction to adjudicate. Pertains to the court, to decide on cases and subject certain persons to the processes of the court.Specific jurisdiction of courts in relation to crimes: criminal jurisdiction.Different theories justifying jurisdiction of courts:a. TERRITORIALITY PRINCIPLE As distinguished from principle of generality: Generality principle is a component of territoriality principle but only applied to persons sojourning in a particular territory. Some books that are not non-legal use these terms interchangeably. Generality Principle: ability of the applicability of laws to all people sojourning in a particular territory (ex. Art. 14, CC) Territorial Jurisdiction: covers not only over persons, but also over acts or events. This is where we can talk of extraterritoriality principle. Because in Generality Principle, laws, ex. penal laws involving national security, can be applied to all persons sojourning in a particular state. But if we talk about TP that is regardless of actually placed, if you put into consideration the idea of extraterritoriality principle. Ex. Territorial Jurisdiction over person, property, acts, occurring within the territory. Since crimes may be committed in a lot of ways and in different stages, then IL encounters the problem of subjective and objective territorial principle. We are not dealing here with definite jurisdiction as applicable universally because, in fact, a state may be aggressive enough to even apply all these principles. Or, it may be conservative enough to just choose some and reject others. Do not think that a state will always has all these kinds of jurisdiction. This is just a question on HOW TO JUSTIFY AN EXERCISE OF JURISDICTION BY A STATE OVER A PARTICULAR PERSON OR CRIME. You cannot say that State A can choose territorial or nationality jurisdiction. It will depend on the policy of that state. Not unless, for purposes of examination, probably, the question would be: IF YOU ARE TO ARGUE ON THE TERRITORIALITY PRINCIPLE OR NATIONALITY PRINCIPLE, HOW WOULD YOU JUSTIFY JURISDICTION OF THE COURT? When can it be invoked or applicable? Caveat: Some principles are still controversial under IL, ex. Protective Principle. There is no CIL that says, at all times, there can be PP. there may be CIL as to the limited application of PP. 2 kinds of Territorial Jurisdiction: Subjective TP: a crime can be commenced within one state and may be completed or consummated in another state Objective TP: commenced in another state, the completion or effects would be in that invoking state, or harmful consequences to the social or economic order in that territory are also present or felt. The usual example: someone in Canada fires a gun and hits another in the US. Canada can justify under STP while US can justify under OTP. The first to acquire jurisdiction cannot apply because of separate penal laws, that of Canada of the US. US is the more dynamic and aggressive in acquiring jurisdiction over crimes. US v. Vasquez-VelascoThe murdered were not actually members of the US Drug Enforcement Agency. They were civilians. Okay? A novelist, photographer. But, they were mistaken of the USDEA. That is where the US tried to look for a connection. Since the act was directed against the USDEA, then that was considered as against the US interest. How justified by the USA?That IL generally permits the extraterritoriality principle under the Objective territorial principle.The crime was committed abroad but was directed to USDEA, thus affecting the interest of the USA.OTP: Consummated or completed in the territory of the invoking state OR, even if it is not completed there, and this is the more aggressive territorial principle, and it produces gravely harmful consequences to the social economic order inside the territory, it may be justified under the OTP.This was also justified under Protective Principle. And, in this case, the US Court mentioned of a delimitation to the application of Protective Principle. PP has a narrow application unlike TP, Universality, or Nationality. US: under which jurisdiction is asserted over foreigners for an act committed outside the US that we impinge on the:1. Territorial security2. Political independence of the USSince the crime was directed against the US, it was directed against the USDEA, it was therefore an act that impinged on the territorial security. Hartford Fire Insurance Co. v. CaliforniaThe insurance conflict on policy and some London-based company dealing with the insurance and that the policy by American insurance companies were not provoking the interest of this London-based insurance companies. They came up with certain acts, a conspiracy to diminish the economic interest of the US in relation to insurance policies in the insurance business. The US applied the Sherman Act, an ant-trust law, even if the acts were committed in the UK.Justification: The foreign conduct that was meant to produce and does in fact produce substantial effect in the US. This is an example of PP.
b. NATIONALITY PRINCIPLE 2 kinds: Passive nationality: looks at the victim. For as long as the victim is a citizen of that state, then, that state has authority or jurisdiction over the crime. Active nationality: jurisdiction is attached to the person wherever he is situated. If the person is an American, and wherever he commits a crime, the American courts can have jurisdiction over him. AN: on the offender; PN: on the victim. But there has got to be a genuine link or connection between the person, either as the offender or the victim, and this is established by the Nationality Principle espoused in the case of Nottebohm.
Nottebohm was born German but for more than three decades he had been in Guatemala due to family business. And then, war broke out involving Germany and for fear that the properties of Nottebohm will be confiscated, he applied for naturalization in Liechtenstein. He was in fact exempt of some requirements of naturalization. When he went back to Guatemala, he was arrested detained because he was German. So, Liechtenstein alleges that Nottebohm is its citizen and it has the right to protect him. Claim was filed by Liechtenstein.
Issue: WON Liechtenstein will have the power to espouse the claim or the power to protect or make diplomatic protection for or in behalf of Nottebohm.
The basis was he was granted citizenship by naturalization.ICJ: mentioned of a variance in local or domestic citizenship studies and nationality studies in IL. A state can have its own kind or set of citizenship laws but these will not necessarily have a bearing in the International level because we follow the Effective Nationality Theory.
What is Effective Nationality Theory?
Public International Law February 11, 2015
How relevant is it the nationality theory in Nottebohm Case?Student A: It is because the person here when he applied citizenship in Liechtenstein, ICJ said that Liechtenstein did not have the personality(interrupted by Sir)
Sir: What is the interest of Liechtenstein again? or what did they do?
A: ... (unsure answer)
Sir: It was exercising diplomatic protection because Nottebohm was arrested and detained. To be able to question the proceedings, the State may do so when its citizen is in a foreign country then normally if you seek remedies for maltreatment or abuse of authority then the remedy could be diplomatic protection exercised in behalf of its citizen. So that is what Liechtenstein is trying to do. So there is a question whether or not, Liechtenstein has the authority to exercise diplomatic protection solely on the basis on the grant of citizenship via naturalization on Nottebohm. What did ICJ said about it?
A: ICJ said here sir that there is no legal bond between Liechtenstein and Nottebohm but with Guatemala
Sir: Why was ICJ talking about a bond?A: Because sir inorder to apply nationality principle there has to be some kind of a bond
Sir: Was the citizenship granted to Nottebohm enough bond that would connect Nottebohm and Liechtenstein?A: No sir, it is not enough because the citizeship was merely an afterthought because of the war.
Sir: Are you saying the citizenship proceeding in Liechtenstein is irregular and therefore void?A: No sir but Nottebohm applied for citizenship it was not his real intention (interrupted)
Sir: Was Nottebohm a citizen of Liechtenstein?A: Yes sir.
Sir: Mere grant of citizenship, according to ICJ, is not sufficient to vest Liechtenstenstein in order to exercise diplomatic protection. But ICJ did not say that the citizenship granted to Nottebohm is invalid.
Sir: This is important, class, as you have noticed when we study International Law, we should be conscious with different legal system. One is domestic and the other is international. So the question whether X is a citizen of State A is a question that requires domestic law of State A and no other. In fact in a particular State, in deciding citizenship is limited only to saying whether a particular person is a citizen of that State or not but it cannot adjudge whether that person is a citizen of another State. For example, in Philippine Court, it can only say that Juan dela Cruz is a Filipino but cannot say Juan dela Cruz is Spanish because question of citizenship is a domestic law question. Now what Liechtenstein is trying to do is not application of domestic law alone but also international law because it is exercising diplomatic protection. And diplomatic protection is an international law concern so according to ICJ it has to be settled under International Law. So the link between Nottebohm and Liechtenstein should be under International Law as well. According to ICJ, the link is not settled by mere citizenship alone but what we call EFFECTIVE NATIONALITY THEORY. Ok?
I will show you what the ICJ mentioned about this (sir is opening his slides). As argued by Guatemala in its outer memorial.
ICJ: ... "Guatemala has referred to a well-established principle of international,... that "it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection"...."the courts of third States, when they have before them an individual whom two other States hold to be their national, seek to resolve the conflict by having recourse to international criteria and their prevailing tendency is to prefer the real and effective nationality."... nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.
Nottebohm in this case is staying in Guatemala for 34 years because they have a family business there in fact started as an ordinary officer and later on became the president. Many times, he has been to Germany also. There is therefore no effective link between him and Liechtenstein. So that is your nationality theory for purposes of exercising jurisdiction. So we have active and passive nationality.
So how about this case of US vs Columba-Collela(1979).
Student I: It is about a stolen car in Texas. The question here is whether the US can exercise jurisdiction because Columba-Collela in this case is not a US citizen but British living in Mexico.
Sir: first, what crime has been committed here? Selling of a stolen car - fencing, di ba? This is a violation of anti-fencing law. So, the crime of fencing was committed in Mexico. Do you think there is link between the crime and the US for US court to acquire jurisdiction to try the British national?
Student I: Yes sir because the car was stolen in Texas but the selling happened in Mexico.Sir: Under what principle can we apply?I: territorial principle sir because... (sir interrupted because it is wrong.. hehe)Sir: The crime committed here is fencing in Mexico. Not the stealing because the stealing is a separate crime which is not the issue in this case. So, how do you establish jurisdiction here?I: nationality principle sir? (sayop na pod ni... hehe)Sir: If it is passive, the victim here is american? in fencing, the victim is american? Dili pwede active because the offender is not an American citizen. Cannot passive also because the victim is not an American.
I: Sir, maybe we can apply the protective principle? (sayop na pod kay actually walay ma-apply nga principle of jurisdiction)Sir: maybe? what is protective principle?I: crime is threat to national security.Sir: does fencing a threat to national security? According to US, protective principle will only apply if it will also interfere in the governmental operation para majustify ang protective. In this case, it does not. How about universality principle?I: Cannot sir because this is not crime against the international community.Sir: If we talk about protective principle, the limited and narrow scope would be threat to national security and interference in the governmental operation. Universality also has limited scope applicable only to international crimes such as war crimes and piracy(as lex lata). All others, lex ferenda. And in case of terrorism, apart from knowing that it can be lex ferenda, you can probably add because of instant CIL in case of terrorism. And the justification that it is part of instant CIL is the way terrorism has been committed in modern times involving modern technology and also because of the massive impact of terrorism around the globe. That is one of the justifications that combating terrorism as instant CIL and consider as part of universal application of jurisdiction but that is not a lex lata yet only a developing international law.
United States vs Columba-Collela (1979)
Facts: A British citizen living in Mexico agrees to sell a car that is in Mexico but was stolen from Texas by someone else.
Issue: Can the British citizen be prosecuted under US law?
Protective Principle?- the protective principle does not bear on this case because the case does not involve a threat to national security or directly interfere with government operations.
How about objective territoriality principle? According to ICJ, the British national is not the one who stole the car and therefore there was no significant connection in the US. Maybe there is connection but not significant to justify objective territoriality. How about passive nationality? not applicable because usually covers also a limited category of crime. I might have mentioned of torture, yes but not even in cases of murder that does not affect jus cogens or erga omnes norms. It is hard to justify it. Even murder is not within the context of passive nationality theory. So let's go to protective principle. As I said.Protective Principle in Jurisdiction- a state can legislate crimes that i considers to be a threat to its security, integrity, or economic interests- common examples: espionage, counterfeiting (terrorism?)Restatement 402: "... a state has jurisdiction to prescribe the law with respect to ...(3) certain conduct outside its territory by persons not its nationals that is directed agains the security of the state or against a limited class of other state interests."- this principle is limited to conduct that occurs outside a state's territory, by noncitizens
In US, they include economic interest.Remember the case of Hartford? What interest was affected by the alleged conspiracy to damage and prejudice the economy of US, the insurance industry in particular, compelling to restructure their insurance policies. That was economic interest and the US justified it through protective principle. Ok?
- The Protective Principle, is not a catch-all principle, however. It has a very narrow scope- Examples of conduct that come under the protective principle:- security (espionage, counterfeiting, falsification of official documents)- terrorism?- customs and immigration laws- perjury before consular officials- economic interests?
(my note: those '?' above are really found in the slide; it connotes some meanings)
In our article 2 of RPC, it can still be justified under protective principle although we call it extraterritoriality principle because we also declare that we have jurisdiction to acts committed outside the Philippines but involving those enumerated in article 2 and i remember there is counterfeiting, falsification, introduction, etc. Question on terrorism. maybe instant CIL. Economic interest- US settled but not international law settled. It is still controversial that's why i placed there question mark.
An old case...----United States vs Bowman (1922)The indictment charged Wry (Master) and Bowman (Engineer), officer of the Dio (owned by the US), for planning to oder, through Johnson & Co., and receipt for 1,000 tons of fuel oil from the Standard Oil Company, but to take only 600 tons aboard, and to collect cash for a delivery of 1,000 tons through Johnson & Co. from the Fleet Corporation, and then divide the money paid for the undelivered 400 tons among them (with two other defendants).Court:A criminal statue dealing with acts that are directly injurious to the government and are capable of perpetration without regard to particular locality, and subjecting all who commit them to punishment, is to be construed as applicable to citizens of the United States upon the high seas or in a foreign country, though there be no express declaration to that effect
Not much controversy if crime is committed in high seas but it is controversial only when committed in other territory like what happened in the case of US vs Romero-Galue
United States vs Romero-Galue,757 F.2d 1147 (11th Cir. 1985)
US could still exercise jurisdiction over the Panamanian ship even if there is no treaty because the protective principle would allow the US to prosecute foreign nationals on foreign vessels on the high seas for possession of narcotics (and in some way inherently harmed the US)
"The protective principle permits a nation to assert jurisdiction over a person whose conduct outside the nation's territory threatens the nation's security or could potentially interfere with the operation of its governmental functions."
This was in high seas and involved narcotics. Although the crime was committed in high seas, there was evidence that it is directed to US because based on intelligence report those narcotics are intended for US. The governmental function involved is combating narcotics.
How about the case of Atty general of gov't of Israel?
Sir: Can we apply protective principle in this case? The crime was directed against the Jewish people. That's one and second?Student O: Also universality principle because of genocide..Sir: In this case two principles can be applied. One is protective or even passive nationality then second, universality. So here, it was argued that the court has no jurisdiction because he was captured in a foreign territory in Argentina but it was dismissed because of universality theory.In your exam(kani!), expect there will be a problem and then there will some crimes. You will be asked to justify the jurisdiction of the court and be able to point out particular principle that the court may apply. And probably i will also ask whether or not it should be upheld and possible to argue that this is the principle that the court can invoke but aslo be asked to decide whether it can be successfully invoked. So you have to master the concept, scope, limitations, etc of all of these.
--------Attorney General of Government of Israel vs Eichmann (1961)
Israel tried and convicted Adolf Eichmann, who had been captured by Israeli agents in Argentina and brought to Israel for trial. Eichmann was charged of committing crimes agains Jewish people, crimes against humanity, war crimes, and membership in hostile organization as defined in Israel's Nazis and Nazi Collaborators Punishment Law. Eichmann argued that the court had no jurisdiction because he was captured in a foreign country in violation of international law.
Court:"From the point of view of international law, the power of the State of Israel to enact the law in question... is based... on a dual foundation: the universal character of the crimes in question and their specific character intended to exterminate Jewish people."
---------United States vs Usama Bin Laden (2000)Facts: Defendants are charged with a variety of crimes stemming from the August 1998 bombings of the US Embassies in Nairobi, Kenya.
Court: The passive personality principle is increasingly accepted as applied to terrorists and other organized attacks on a state's nationals by reason of their nationality, or to assassination of a state's diplomatic representatives or other officials..." (citing Restatement section 402). ... Universal jurisdiction is increasingly accepted for certain acts of terrorism... " (citing Restatement section 404)... Both universal jurisdiction and the protective principle are bases for jurisdiction by the United States over the death of foreign citizens"
In this case, Usama also admitted that Al-Qaeda is responsible for the bombing of the US Embassies in Kenya so a case was filed in US. The issue is the justification of the authority of US courts because the bombing took somewhere else. Passive personality principle was invoked as the proper principle to justify jurisdiction. Universal jurisdiction can also be used to justify.
How about the case of Pinochet?
This is a very important case. It was mentioned in many books. Take note of this case.This is relation whether or not a former head of state is immune from prosecution.
He was a dictator of Chile. Pinochet hated Spaniard so much that he ordered in fact a series of torture against Spanish national. After the end of his territorial regime, he got sick and went to London for medical purposes. Around this time, Spanish court issued an arrest warrant against Pinochet then he was abducted in London. The question now is whether or not Spanish court has lawful jurisdiction against Pinochet for acts committed in Chile?Territorial Jurisdiction? Of course not applicable because the torture was committed in Chile.Active Nationality? Dili pod because Pinochet is Chilean.Protective Principle? No also because there was no threat to State's national security.So what could be possibly proper is number one.. Universal Jurisdiction kay torture man because prohibition against torture is erga omnes norm. Also Passive nationality because the victims were Spanish citizen because the passive nationality principle is more persuasive than the universal jurisdiction. So when you read about jurisdiction, you include also the case of Pinochet.
- Spain relied on Universal Jurisdiction to argue for Pinochet's extradition from England to Spain- It also relied on Passive Nationality/Personality (Spanish Citizens were killed in Chile)- Passive Nationality/Personality was found to be more persuasive than Universal Jurisdiction- No Territorial Jurisdiction - happened in Chile, not Spain- No Active Nationality - Pinochet was not Spanish- No Protective Principle - there was no imminent threat to Spain's national security from Spain
Sir: The jurisdiction to prescribe which is essentially legislative may probably be extended even outside the territory of the State, correct?Student D: YesSir: Authority to enforce however seems to be limited because even if jurisdiction maybe vested to the court, the service of warrant however would require jurisdiction to implement. ok? and that seems to be problematic because even if, for example, the US has jurisdiction over the crime committed outside or even in the US but the person to be arrested is no longer in the territory of the US. That becomes a problematic now because the service of the warrant may encounter problem. So, how do we deal with this?Student: Through the process of extraditionSir: Ok. that's one. what else?Student: Probably, deportation also sirSir: If the bar exam is distinguished deportation from extraditionStudent: Extradition, sir, is a State request another state for the arrest a person and send to back to the requesting State. Deportation is the ouster of that individual from the State.Sir: Ok that's to the process. What else?Student: In extradition, the crime is committed in the territory of the requesting State; deportation is committed within the territory of the State. (2nd bell na sir oh... dismiss na)Sir: Is there a request for deportation? or request for extradition?Student: Only in extradition sir. For deportation, it is up to the individual where he will go.Sir: How about abduction of criminals? With or without extradition treaty, is that a way also of acquiring jurisdiction over a person?Student: it happened in one of the cases where he was forcible abducted. There is no prohibition in IL. So when it is not prohibited although there is a problem when .. (interrupted)Sir: What is "rendition?"? (the class were confused;first time i heard this but for sure it will be discussed again in the succeeding classes)Student: I haven't encountered this in my reading, sir.
So class, let us end here. Coverage next meeting is up to consular immunity
February 18, 2015 PIL recording 1:1:18Okay ah. Why is it important that extradition is a chapter in jurisdiction? As you know there are 2 kinds of jurisdiction or authority that the state can exercise in international law. We have the jurisdiction to prescribe or the authority to prescribe which is basically legislative. Ahm actually the law can be given to acts or person even outside. So even legislative measures can still be applied to acts of persons outside. You know that diba? It can still be given extra territorial effect. Probably an example is the case of income tax oh dba? You distinguish between Filipino resident and Filipino non resident . For Filipino non resident they are taxable for income within, mao ba na? ohh if you are a Filipino resident your income is taxable even if you earn it within or without oh see. Kamao kug taxation. Mao ban a mao ban a class still the same? Oh see gawas na ninyo inig sabado inig exam.gipangutana mo sa kaso ni many pacquaio noh? WALA. Oh tax law given effect even to income earned outside so extra territorial. Okay? Court jurisdiction, jurisdiction to adjudicate. We have just studied that. It can also be given extra territorial effect. Even you apply universality principle for intl crimes like genocide even in protective principle in a narrow scope but you see the practice in the US then you have ahhm objective territorial principle and subjective territiorial principle. Dba? Pued part of the act is committed outside. Alright? The third one is the jurisdiction to enforce. Okay? Meaning to enforce processes like court orders, arrest warrants, subpoena, arrest waarant. Thats a problem because it is clearly confined within the territory of the state. That;s why theres need for ways for example a person may be brought to the jurisdiction of the court if he is already outside the territory of the state. Okay? We call this the process of rendition. Did I discuss this? Wala pa noh? Okay its different from what I did during the concert for a cause dba? That was a rendition of a song. Okay? This one is different. There are 3 kinds or forms rather of rendition. Number 1 is the most ah ah commonly adopted through extradition ok? Because if you want to obtain the person of the accused. You want to serve the warrant of arrest. Its the only way you can have jurisdiction over the person. Even if you have jurisdiction over the case but you also need to have a jurisdiction over the person because the 1st authority is to decide whether the crime has been committed and the 2nd is to impose the penalty. You cannot impose the penalty of the crime if you dont have jurisdiction over the person of the accused. Okay so. You need the consent of the other state. Otherwise if you extend the authority to enforce in the territory of the other state. That can be a case of intervention. If it is without consent. This concerns about some FBI agents found in the project unsay tawag ana mission exodus oo in the service or in serving the warrant to Marwan. Its no problem if it was with consent of the Philippines. Its not an intervention or interference. In the same manner if you enter into extradition treay thats still the same effect. That still will serve the purposes of another state if voluntary. 2nd is deportation. Thats also a form of rendition. But the problem with deportation and it was asked already in 1 bar exam. Distinguish extradition from deportation. Ahh deportation is unilateral , theres no need. There can be an informal request but why would the state do that. Probably there is extradition treaty. So the other state can probably influence where the accused could be found to deport. But it can be done only informally. Legally there is no requirement of consent and then of course you dont need a treaty and the destination of the deportee is irrelevant. Thats also the problem of deportation because the deporting state cannot direct the deportee where to go after. Kay expulsion ra man na xa sa territory.the best thing really is to have extradition. The 2rd form of rendition is the most controversial one. Abduction in the territory of another state. Oi wa tay klase tomorrow? Magkjalse kaha ta? 2 na man lang ka issues ang nabilin. Ang probleman ani class ang mga taga laing planetaOkay so its controversial because basically it actually constitutes intervention or interference in the affairs of another state. Abduction of criminals abroad is intervention. But whether it affects the jurisdiction of the court, well talk about that a lil later. But 1st extradition. So there are impt conditions in extradition. Number 1 there has to be a treaty. Thats why its called treaty based. Meaning theres no duty to extradite, even there is influence. Are you following. And the moment theres already extradition treaty. A state is now obliged to surrender an accused in its territory because of pacta sunt survanda. Diba? Oh. So there is now the duty to deliver. The 2nd condition is that the person to be charged or convicted must be charged or convicted of an extraditable offense. So di pued iextradite mo for future charge.so if you have in whatever book you are reading. For pourposes of porsection, it is not hypothetical. It must be really porsecuted and the purpose only of extradition is to acquire jurisdiction over the person of the accused. Abduction abroad is really a necessity. Part of due process by the way. Take note of that. And then in extradition the extraditable offense should either be listed or covered by a dual or double criminality clause. So ang extradition treat will provide xa ug list. Now hat if a crime is not among those listed in the treaty. Is there a possibility that a person still be extradited on the bases of a crime not listed. YES if covered by dual criminality principle. What is the meaning of dual criminality principle? It means punishable by penal laws if both parties then it is a common offense and therefore it can be a subj of extradition but theres a caveat here. The extradition treat must provide for that clause. It cannot just say that both. The treaty must acknowledge dual criminalty principle. Okay. Its hard to abide by such because it has not yet amounted to international law. This is purely so therefore the treaty must acknowledge. Thats the lex lata. Ofcourse the lex ferenda here is without mentioning, if it had been practiced by states then some authors infact suggest thtat it may actually be legitimate. But I dont think that is well acceptable. So in view of that. Youll have the following principles as well. Already asked in the bar exam.These are the areas that examiners focus.(SLIDE) 1. no treaty, no oblig to extradite as I have said. Treaty based.2. pacta sunt servanda apllies the moment there is extradition treeay entered into force. Bound. Take note that as a matter of CIL it could not cover political offenses. You know why? Right to Asylum. Erga omnes- CIL. Because of that a treaty cannot provide political offenses. Note however that we have attentat clause. Already asked in the bar. What is that? The provision in the treaty that mere killing of the head of the state should not by itself considered as a political offense. So some stradition treaty have that provision. 3. the rule on specialty. Adopted in lieu of the need to acknowledge due process in the extradite lso while these are criminals. They also enjoy presumption of innocence. Intl law is becoming democrstic as well. So in a criminal proceeding there is a and therefore the accused or extradite ..due process. And the rule of specialty requires that the extradite must only be prosecuted for offenses that have been the subject of the request. Charged of robbery dili pued ikiha nimog rape. Should be the crime mentioned on the request. Thats basic tanet to fairness. Maayu pa kung daghan xa kaso ienumerate nalang tanan.4. ex post facto law prohibition does not apply. Why? Extradition is not a criminal proceeding. Ex post facto law applies only to a criminal case. Lets say you committed a crime in 2010 and state a and b entered into a treaty on 2012. Okay. Can state a request for extradition of x from state b for a crime committed even before extradition treaty entered into force. Answer is YES because since it is not a criminal proceeding it cannot be invoked. Remember the case of olalia vs govt of hongkong? The 1st issue is WON the respondent in extradition proceeding will be entitled to bail? First ruling of our SC. Not entitled because a right o bail is gratned only or can be invoked by the accused in a criminal proceeding. And since an extradite is not an accused and also not in a criminal proceeding then theres no right to bail in extradition proceeding. In olalia case. The SC found the need to look again as to the kind of right involved in the extradition proceeding and the discussion of SC recognized the elevated recognition of rights of indiv in intl laws. Individuals right to freedom is internationally recognized and so accdg to the SC okay even if extradition is not a criminal proceeding and therefore generally no right to bail, SC said it has however it has an ear mark of a criminal proceeding. What happens diay durinf extradiotion. Dba you are arrested. If you are the resp. you will be detained and asked to answer. To that extent daw because there is a possibility of denial of your liberty your freedom will be restricted in a way so even if not criminal proceeding. Extradtion has an ear mark of a criminal proceeding. Ergo, a respondent in extradition proceeding may now post bail. We now go to the issue on legality of abduction. So I already mention the 3 modes of rendition. It is settled that abduction of criminals from another state. Because abduction we dont have consent so it is intervention under UN charter. Okay. Ahhm, it can only be justified if invoking self defense but then again it is sill not clkearly settled in intl law whether there is self defense in a case where you need to abduct. Difficulty in establishing an element of unlawful aggression. But ofcourse writers have not closed their doors to the possibility of that pre emptive self defense. That it may infact develop to intl law. But if it can be established there is valid exercise of self defense then it may be justifies. But as I have said. Its still hard at the moment.WON the legality of abduction will affect the jurisdiction of the court. This is the principle of _____________________. What do you mean by that? Wrongfully captured. Validly detained. Dba? Abduct sa territory of another country but lawfully or validly detained. Ang question nato sa special issues unsay status ani in intl law. Lex lata lex ferenda? Illegal apprehension will not necesarrily affect the jurisdiction of the __state. Case of eichman. Ker frisbie doctrine on the scope of some sort of making an exemption. It may be validly detained if the apprehension is accompanied with torture, brutality or similar outrageous conduct. Typoical common law thinking. Daghan kaayu musud ana class. Civil law pa ni ilista. (similar violent acts kung civil pa). just take the case of Eichmann. Adbucted abroad in argentina. Tried in Israel. One of the defenses invoked is the legality of the arrest because it was done in the territory of argentina without consent. What was ruled there was ofcourse is applying the so called kerr frisbie doctrine, kerr vs illinoise, frisbie vs Collins. Both cases however internal. Not necessarily intl but concept evolved as inl principle.(SLIDES) ker-frisbie cases.How is it justified? Whats he justification of male captus bene detectus. Even if there is irregularity in the arrest of the accused it will not accuse the jurisdiction of the court. One factor because the court anyway will grant the accused person due process., heard, counsel, face witness face to face procedural safeguards. And the other reason ofcourse is this ahm arrest of the accused individual is not a judicial ____. Correct? It is executive. So it makes no sense to affect the jurisdiction of the court as a result of non observance of the procedure when enforcement is done. D man =cpourt and nag abduct. Police man. And why should there be illegal or irregular conduct affect na judiciary man sila? PAUSE!In the case of US vs Alvarez. It is also will the presence of extradition treaty bar the forcible abduction of criminals abused. It should supposetedly coz since there is regular method of rendition why go to a highly controversial method of rendition? Yes? Most authors will mor or less advance that it SHOULD. But no intl law says it should. Like in this case mexico and us had an extradition treaty. (SLIDE) here the officials of mexico were lng aware of the practice of US on abduction and did not insist the prohibition of abduction in the treaty. So the silence of the lack of a privision in the extradition treaty ws used by the US SC in justifying that extradition treat does not necesarilly affects or bar abduction. Again common law noh:? Whatever is pragamatic. But you hae on books on the matter largely criticize this. Not in the outline but will be tacked in our special issues. The case vs toscalino. So whjat happened here? (SLIDE-facts) brutally tortured for 17 days. Brought to court via abduction. Okay there is kerr frisbie doctrine legality of arrest will not necesarilly affect the jurisdiction of the court., in us vs tscalino 1974 It said ahm if the allegations were true thisallegations of torture. Then they are too shocking to conscience that due process acquired. that the district court divest itself of jurisdiction. Activist court. Aware of such brutality. US SC we view due process of now requiring.. (ruling US vs toscalino) General rule: male captus bene detectusExcept: when the arrest or conduct is accompanied with brutality, torture, and other outrageous conduct.Interestingly in the same year, after toscalino US vs Muhat still 1974. What happened? He was abducted. And in the process of abduction he was blindfolded. No infliction of injuries. Tabunan kag murag isi style. Di na muqualkify as outrageous conduct? Unsa? Unsa na? para namo ourageous. Pero lain inyong gihisgutan oi. GIKAN PA NA TAN AW FIFTY SHADES OF GREY SIS. Ahhhhh! ABI KUG SA VALENTINES DAY KANNG SA SEARCHEE OG SEARCHER DIBA MAGBLINDFOLD MAN NA. the mere fact na there was abduction, it will not necesarilly call for application of toscalino. Apparently with the req of outrageous conduct. Blindfold does not amount to outrageous conduct. So there must be an amount of physiucal violence inflicted against the person of the abductee. Ang blindfold si kung huot kaayu? If butangan sako na d kaginhawa thats outrageous.sa exam dapat pa iqualify giunsa pag blindfold. Ana bay aka sir d ka muhatag 10. Burden to establish the presence of torture. Incumbent upon the accuse although under our consti law. Uhhm, irregularity of perfeormance of plice may not actually invoke in cases involving right to freedom. But I think its the accused.We go to immunity from jurisdiction. 1st part of which we have doctrine of qualified immunity or those s called restrictive theory on state immunity that is there is a need to distinguish jus imperii and jus gestonis. And this immunity from suit is applicable only when it is governmental function. Revie nature and purpose test. And also act of state doctr4ine well talk about it. Case of Hernandez. Ahh courts are barred or any governmental agencies are barred from passing judgments on any case or acts of other states because of the principle of co equality. We will tlk about diplomatic immunity..But first your doctrine of qualified immunity is just a repeat. Applicable only to jus imperii or governmental acts but not to jus gestonis . and then in 1 case the following are enumerated. (SLIDE-LIST)So even in civil proceedings. Ahm the doctreine of immunity were also applied. Relate in the case of Pinochet later on. (conversation with American in the plane)This employee in the hospital in Saudi Arabia exposed some provlems in the hospital with the on the job hazard. Murag mga safety hazards. And then govt hospital baya so you are not supposed to directly announce. (Kwento sa reklamo about low internet and nephews na nidaku sa US) he was torture by govt police so he filed case. Ang question karon ang pag operate sa hospital govtal o proprietary so as to have immunity. Torture is police or law enforers acts. Assumed that it is conduct of law enforcers. Torure is a technical word. If gangster ang nagtorure nimo d na torture gitawag. Unsa man? Hazing? Mauling? You use the ord torture only to law enfoircers conduct. He was suing man law officials nagtorture. Then it is not public commercial character therefore immune- governmental! Another case that apply nature is this argentin republic vs hess. Not by purpose but by nature. The alleged offenders were armies ilang gitraget ang mga ships sa liberail corp in the isi and these were armed attach.something cannot be done by private person. Phil usually purpose. Us nature.We go to head of state and diplomatic immunity.
HEAD OF STATE AND DIPLOMATIC IMMUNITY
What is the scope of the immunity of the head of state? Is the head of State immune from suit? Anyone? What is the international law on the immunity of the head of State?
Student A: Complete immunity sir even if the acts of the head of State are in private capacitySir: There must be a reason for that. Why is it that we adopt the principle of absolute immunity?A: I think sir so that their purpose will not be impeded ...Sir: There a term for that - Functional Immunity - so as not to disturb or prevent the head of state from effectively performing its function then there should be a rule exempting our head of State from suit.
Is there a possibility that we can sue the head of State, nonetheless? Let me clarify. How about a former head of State?
When we say complete immunity, we are referring to incumbency. Not during term but tenure because when we say during tenure that is during incumbency. So if sayo siya ni-end sa iya term and dili na siya nag-sit as head of state, so what's the rule there? If involves official function of a former head of state then the immunity continues. But if the act involved is not related to its function then the case will now prosper. In other words, there is absolute immunity during incumbency and continue immunity for acts in performance of his function and no more immunity for acts not in the performance of his function. That is the reason we are able to charge Estrada for plunder and now Arroya also for plunder because committing a crime or plunder is never related to official function.
There is also dispute as who is actually the head of State in a particular country for purposes of lawfully invoking immunity from suit?
This is applicable where the "head of State" is being charged in another country. What if that country does not recognize that person as the head of State? Therefore no matter that person invoke immunity as the head of State but the State prosecuting him for some crimes will not recognize him as the head of State. That actually happened in 1997 in the case of United States vs Noriega.----US v. Noriega-Noriega was abducted to the US and brought to trial for his involvement in cocaine trafficking.-The executive branch (George Bush) did not consider Noriega to be the head of state of Panama, so he did not receive head of State immunity. The US had recognized instead Delvalle, and later Endara, as legitimate heads of state of Panama.-----It seems however that US did not Noriega as the head of Panama. Kani man gud Panama. Wala ni extradition2x. That's why if you clients who want to plea, you suggest Panama because no extradition treaty. They have no extradition treaty but with beautiful ladies. Perfect! (Sir proceeded with his joke about his partner who went to Panama).Not recognize, so why should we grant u? Naa sad diay political aspect ang recognition of the Head of State because if you are not recognize, it is an issue of de facto and de jure government. That's the case.That's let take the case again of Pinochet.----Immunity of Former Head of State in Criminal ProceedingsPinochetCase:The House of Lords of UK ruled thatthe absolute prohibition of torture, ajus cogensnorm, overrides immunity afforded to a former Head of State in criminal proceedings.The commission of a crime against humanity andjus cogenscannot be done in an official capacity on behalf of a State-The House of Lords who determined that Pinochet could be extradited from Britain to Spain said thatif he were still a head of state he would be immune from prosecution, even for torture-Rationale for immunity: To assure heads of state that they will be able to represent their countries and not have to fight off suits while traveling abroad.-Pinochet had immunityratione materiaebut not immunityratione personae(kinds of immunity usually applied to diplomatic immunity)----
Pinochet, the dictator of Chile. After the dictatorial regime, he was arrested in England to answer for the torture and killing of Spanish citizens in Chile during his time. As to torture, his argument is that he ordered torture and therefore it was official. So as being former head of State, i cannot be prosecuted for acts in performance of official function. I ordered the torture as the head of State. The absolute prohibition of torture, a jus cogens norm, overrides immunity afforded to a former Head of State in criminal proceedings. Butangan nato ug criminal proceedings because in the case of Saudi Arabia, in civil cases, there is international law yet that bars the application of immunity of head of state for that matter. you have to take note of that.-----Distinction, must, however, be made between:Domestic jurisdiction over Head of Statevs.Jurisdiction of International Criminal Court for International crimes----because indeed immunity of the head of State originates from State immunity and is justifed by the co-equality among states. Therefore, a court of one state cannot exercise jurisdiction over the person who is the head of another state. If you are to talk about International Criminal Court, this does not call for a situation where a domestic subjects another State to its jurisdiction because this is already international criminal court. What applies here is of course the principle of pacta sunt servanda. All states have agreed for those parties to the ICC that they will abide by the purposes of the Rome Statute. So jurisdiction of ICC should not be an issue for those who are parties to the International Criminal Court. No issue on immunity of head of state here.
---Act of State DoctrineCourts generally will not pass judgment on the validity of the public and official acts of a foreign government within its own territory.Rationale for the Act of State Doctrine: Co-equality among states; respect for sovereignty of foreign states.--------Underhill v Hernandez, 168 US 250 (1897) p.619: Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.-----We now go to the Diplomatic Immunity and Consular Immunity. This is also a perennial topic in the bar exam.----Inviolability of Premises of Foreign Diplomatic MissionThe premises of a foreign diplomatic mission are inviolable and no person, even a member of the government of the receiving state, may enter the premises without the authority of the mission. The receiving state has in fact the duty to protect the mission against intrusion or damage and to prevent disturbances of the peace of the mission or impairment of its dignity. (Art. 22, VCDR)----What if police officer in Manila received a report of a bomb planted inside the US embassy, may Manila police insist on entering the premises for security purposes? Would that violate the sovereignty of a State if you prevent law enforcers from preventing threats to national security or safety to enter the premises?Take note that inviolability of the Premises in international law is ABSOLUTE. So no amount of justification of security concern or whatever. There is only one way wherein the host State or its official to enter the premises and that is only through CONSENT of the diplomatic mission. On another point, the bomb threat could be used as a ploy to justify entry without consent in the premises of the diplomatic mission and possibility of that happening is not remote.----Legal Status of Embassies and ConsulatesBasic Rule:inviolability of premises!-Vienna Convention on Diplomatic Relations, Article 22:A.Duty of the receiving state torefrain from entering the premises without the consent of the head of missionB.Duty of the receiving state toprotect the premises against any intrusion, damage, disturbance, etc.-States can waive their inviolability.oWaivers must be express-Theories behind inviolability of embassies and consulates: extraterritoriality, representational, and functional necessity.-Article 22 sets out the negative (not to enter) and positive (to protect) obligations of the receiving state, including immunity from processes (search, execution, attachment, etc.)oInviolability extends (a) even in cases of armed conflict (art. 45), (b) to archives and documents of the mission (Art. 24), (c) and to the ambassadors residence, papers and correspondence (art. 30)-Q: Is this inviolability absolute?-----
There are two obligations: negative and positive.If you remember the Iran crisis I discussed to you last time, the movie ARGO. The di ba the only way na-resolve ang crisis is for Ronald Reagan to negotiate with the hostage takers saying: "Let's put an end on this, total namatay na man ang head of Iran at the time which they demand to return, release the hostages and we commit not to prosecute you". True enough the US did not prosecute the hostage takers but instead US sued Iran for its failure to protect the premises against intrusion, damage and disturbance kay in the video, there's evidence na during rally, nagsaka na gali sa coral, naa mga police but passively observing the incident. So, there is violation on the duty to protect the premises.
Indeed there are three theories on this: one is extraterritoriality because this is an extension governmental function therefore the diplomatic mission represents the State. The other one functional necessity as not to disrupt the functioning of the diplomatic mission. (So that's, extraterritoriality, representational and functional necessity). In modern international law, however, it favors functional necessity than the traditional ones - extraterritoriality and representational.
Please read the Vienna Convention on Diplomatic Relation.
Mao na mga attache case sa diplomat, naa nakatatak, dili na na tan-awon. That is one source of illegality smuggling jewelry.
Another immunity here.----Non-interference with Missions official communicationUnder Article 27 of the VCDR, a receiving state shall permit and protect the free communication on behalf of the mission forall official purposes. Such official communication shall not be interfered with. The diplomatic bag shall not be opened or detained.The use of sniffer dogs and external examination of the bag is, however, permitted customarily per ILC Draft Articles. A reasonable suspicion that the bag contains illegal article will also allow the authorities to have the bag opened in the presence of a representative of the sending state. The bag, however, must bear visible external marks of its character and contain only diplomatic documents or official articles.----(sir, telling another story about certain sniffing dog which can only identify certain, not all, contraband)
Diplomatic ImmunityDiplomats have personal inviolabilit