A Lecture on Public International Law by Associate Dean Sedfrey M. Candelaria

(8/15/09)

Preliminary

Our lecture for the entire day is on Public International Law. The notes that I have

prepared for you will also cover certain areas like terrorism, international criminal

court, international humanitarian law, international economic law, and aspects of

the ICJ but basically the lecture will be on the fundamentals of PIL and I hope we

have enough time to cover the other areas. I’m also going to give some input on the

developments on the UN Convention on the Laws of the Sea (UNCLOS), particularly

on the regime of islands principle, on territorial limits, which has recently been

passed into law that we’ll figure on our discussion on territory.

The way I have discussed PIL is not in the manner that textbook reviewers have

treated it in this country. We have five big chapters to cover: one, will look at the

sources of international law and here we will look at the traditional sources like

treaties, customs, general principles of law, decisions of national and international

tribunals and also some applications to domestic law. And then I will move to

another chapter entitled Personality; who are persons in international law and we

will talk about the concept of a subject or an object in international law. We will

look at, principally the status of States, and then non-State entities such as sub-

State entities and we might also look at the situation of corporations and natural

persons. And then we will go to a per-chapter on Jurisdiction; what does jurisdiction

mean in PIL? In here I will discuss it in a criminal law jurisdiction concept and in a

civil jurisdiction concept. And then we will go to chapter four on State responsibility.

State responsibility is perhaps the very core of international law and it has been

equated with the concept of liability; criminal and civil, but in International Law you

don’t talk about criminal liability of a State because you don’t imprison a State, but

individuals may be imprisoned, or there are certain liabilities that States may

assume under International Law. Also in jurisdiction, we will look at the matter of

waiver of jurisdiction, which means if a State does not assert jurisdiction then there

are certain persons, events or things which may not become the subject of

jurisdiction by a State. In that chapter, we will deal with diplomatic immunity, State

immunity, for example, and the concept of a State claim. And finally, the last

chapter on the core principles would be settlement of disputes; how do States settle

international disputes today, and I will also give you some inputs on the

international criminal court and the rest will be the special topics which I have

selected for you.

So with that presentation I’d like to begin first in inviting you to understand how

International Law differs from municipal law. Often times, the problem with

International Law is that we bring our own concepts of domestic law, which is

governed by a Constitution. That is a problem, fundamentally if you will go into the

realm of International Law because in International Law you don’t have a

Constitution to speak of. You are talking about sovereign equals; States, who assert

their sovereignty within a specific territory and that principally they want to be

bound by international law on the basis of consent. And that is how International

Law becomes binding upon States. There is still the element, despite the fact that it

is custom, there is still the subjective element of what you call Opinio juris sive

necessitatis ("an opinion of law or necessity") that I will be bound; that is

consensual, nonetheless. In the context of domestic law, it is different. I’ll

demonstrate that for emphasis. If you will look at the concept of law at the domestic

level, you will have a Constitution that will say that the executive, legislative and

judiciary must act in accordance to the Constitution; any act that in violation of the

Constitution, by way of grave abuse of discretion, or even the fact that a law does

not conform to the standards of the Constitution of even lower courts acting

contrary to the Constitution, would be struck down as invalid because it is not in

conformity with a pre-eminent standard. And who makes the Constitution? It’s the

sovereign people. The people delegate their power to certain representatives in a

republican system like ours, for the legislators to draft a law, for the executive to

execute the law, and for the judiciary to actually interpret the law. You don’t have

that system in International Law. What Hart tells us is that International Law are

primary rules of obligations; that States bind themselves under International Law

because their source of obligation is on the basis of consent. (Example) The

Philippines enters into a treaty. Unless the treaty contains customary International

Law, the treaty does not apply to the government. If you’re not a ratifying State to

the UNCLOS (UN Convention on Laws on the Seas), we are not bound to actually

implement the provisions of the UNCLOS. That is as simple as it is, because treaties

are a source of obligation if and only if a State consents to it. In the absence of

consent, you cannot impute responsibility on a State. But there might be no treaty

on the matter but there is custom; customary international law, we will see, binds

States even if they are not a signatory to a treaty, simply because custom is one

that is universally accepted. But again, custom evolves out of practice of States and

that practice is also recognized subjectively, as binding upon itself; there is still a

consensual character to it. The third one is general principles of law recognized

again by nations. So you will see, there is a marked difference, when a State now

acts under international law using certain sources of obligations as treaties,

customs, general principles of law, or even decisions of national and international

tribunals when they apply it. So that is the first thing you have to remember, there

is a difference: There is no Constitution to speak of. People however say, “But we

have the UN system.” Yes, the UN system is governed by the UN charter. And

States signed and ratified and acceded to that and theoretically if a State does not

enter the UN, it is possible because membership in the UN is not necessarily a

condition for you to be recognized as a State. Theoretically, a State can be out of

the UN system, if it wants to and not be bound by it. But that is almost practically

impossible right now, in a globally interdependent relationship. So having said that,

I am not going to totally abandon the concept of a Constitution because somehow,

we have to understand that international law has derived also its existence from

fundamental concepts contained in Constitutions of different countries around the

world and it is of value to also look at the Constitutional framework.

So the other matter that I’d like to get rid of before we go to this chapter on sources

is that international law lacks the secondary rules of change in adjudication which

provide for legislature and the courts. Again, demonstrating the matrix up here, you

will see that even in the context of dispute settlement in international law, the

governing rule is that States would also have to express recognition or non-

recognition of the jurisdiction of the ICJ. The same is true when we may have to

ratify the rome statute which creates the International Criminal Court, which can

now entertain cases against natural persons for violations of crimes against

humanity, genocide, war crimes and wars of aggression. You still need to consent to

that. And so, when we say that international law lacks the secondary rules of

change in adjudication, the concepts of courts, the Supreme Court in the domestic

sense, is very different from an international law adjudicatory concept. Finally, it

lacks unifying rules of recognition specifying sources of law and providing general

criteria for the identification of its rules. I have explained that; that when an act is in

violation of international law, you don’t say “in violation of international

Constitutional law” because there is no such thing as international Constitutional

law. Unlike in domestic law, you point to a pre-eminent, overarching, unifying

document called the Constitution. So those are the three most important

preliminary matters to look at from the point of view of international law. The next

thing I’d like to invite your mind to focus on is that when there is a violation of

international law, the question that you ask if you are to sit, and hopefully some of

you will have a chance, like what senator Miriam Defensor-Santiago aims practically

her whole life, to become a judge of the ICJ or the International Criminal Court, is

“What treaty was violated? If there is no treaty, “what customary international law

rule was violated? If none, what general principle of law was violated?” Those are

some of the preliminary questions you would want to ask in order to address a

problem of an international character before you. So, let’s proceed to the sources of

international law.

Sources of Obligations in International Law

People often say “sources of obligations in international law”. That is the better

term, because when you talk about sources of international law, there’s only one

collective body called international law, but the sources of obligations under

international law are varied. And I begin first with the concept of a treaty. The other

thing that I’d like to do every now and then is to refer to Philippine law application. I

will try to make as relevant as possible the discussion looking at the case law in the

Philippines because in the end, If I were an examiner, I’d like to know how it will be

applied to the Philippine setting so I will the Constitution every now and then to

refer to provisions that have significant international implications for us, and vice

versa; look at some case law or provisions in the various multilateral treaties that

might be of relevance to the Philippine setting. So let’s begin with the first source of

international law. I mention here Article 38 paragraph 1 of the statute of the ICJ

precisely because when an ICJ judge sits in adjudication of a case, what they will ask

for, basically is this: “What is the treaty applicable, in the first place?” So, what is a

treaty under international law? Memorize this. By now you should know at least

these standards. And if you see here some kind of reference, like VCLT, that means

the Vienna Convention on the Law of Treaties. ILC is the International Law

Commission Commentary. Now, is sourced from multilateral instruments, under

international law. So a treaty has been defined under the VCLT as “an international

agreement entered into between States, in writing and governed by international

law.” Memorize this. Try to do some kind of code. GISW. Parang isaw. Madaling

tandaan, masarap yun, diba? “International agreement between States”; they must

be States in accordance with the definition, as you shall see in chapter 2, under the

Montivideo Convention. And then “in writing”; can there be an oral agreement

between States? Yes, why not? But is it one that will be governed by the VCLT? Not

necessarily because it says here “in writing”. But States can enter into an

agreement orally, just like between natural persons under the law on obligations

and contracts. I could enter into an agreement with you, even if it’s not in writing,

unless the formality of writing is required by the law on contracts. That can be a

source of obligation by the other party, who now relies on the oral agreement

specially if there has been execution of the agreement. But in international law, on

a concept of a treaty, it says “written”. And the last one is “governed by

international law”, then you can ask me, “Is it possible that you have an

international agreement between two States in writing and yet, not governed by

international law?” Yes, because the parties are free to enter into an agreement and

say, “the governing law here but we want this resolved in accordance with New

York law. Or Philippine law” Parties are free to enter into this arrangement if they

want to.

So, who can enter into a treaty on behalf of States? I will go into the concept of

making a treaty. But before I go to that, let me qualify the capacity to enter into a

treaty here. There is a possibility that you have component States. When you say

component States, they are those that comprise the larger State itself. They are not

States that are independent of the federal State. There is in the VCLT a provision

under Article Six that says if you have a federal set-up or even a national unitary

system, but special provisions are provided in regard to the capacity of certain sub-

components of the national or federal State, to enter into agreements, then you

have to resort to the national or federal Constitution, to actually determine the

power of a component State to enter into a treaty. For example, in the case of

Canada, it has a very special provision for one of its provinces, Quebec. Quebec is a

French-speaking province in Canada. It has a long history of ties with the French

government. This goes back to history when Canada was divided between the

British influence and the French influence. The Canadian Charter on Rights and

Freedoms has a special provision that allows Quebec to enter into what we call

cultural agreements with France. And that is taken as a treaty; there is a special

arrangement between France and Quebec. And that is recognized. But other

Constitutions of a federal State might not provide that or may provide similar

privileges to a component State.

Let me go to the making of a treaty. Who makes a treaty on behalf of the State and

what does that person has to show in order that the treaty will be binding upon a

State? We have the concept of full powers. Its document that’s entitled, “Office of

the President. Full Powers Authority. In international relations, just like in the

Philippines, foreign relations is a matter of executive function. It is the executive

that enters into such arrangements. Even in our Constitution, under Article seven,

section 21 says that the President may enter into an arrangement but it is subject

to the concurrence by the Senate. If it’s a loan, under Article seven, Section 20, it’s

still the President but subject to the concurrence by the Monetary Board. But it is

always an executive function, so the executive will have to issue a full powers

authority to someone who might sign a document on behalf of the Philippine

republic. So you have to have that to show proof. However, the VCLT says there are

certain persons who may not have to show full powers such as the head of State (as

distinguished from the head of government) Yesterday, the Prime Minister of

Thailand was here, he is a head of government. He is not a head of State because a

head of State in a monarchy, like Thailand, is the king; a ceremonial head just like in

the case of England. But the head of government is usually a prime minister or a

President in a monarchy setting. In the Philippines, we don’t have a monarchy, so

we have a system where the head of State and the head of government is actually

one and the same person. P.G.M.A. (long pause) And then you have the foreign

affairs secretary. By virtue of the functions of the foreign affairs secretary, like

secretary Alberto Romulo, he is presumed to have that power and would not need

to carry papers around to show authority. He is presumed. Then we have the head

of diplomatic missions. Now this is limited, because we may have an ambassador to

Japan, like ambassador Siason, who will sign an agreement between the Japanese

International Development Arm, and the Philippine government, and the

ambassador to Japan, who is based in Tokyo, can sign on behalf of the Philippine

government; that is presumed. But if the ambassador goes on a trip to Lima, Peru,

upon the invitation of its President, for example, and the ambassador now signs an

agreement between the Philippines and Peru, is that included in the exception? No.

Because in a situation like that, the capacity of the ambassador to Japan, as a

diplomat, to sign agreements on behalf of the Philippine government is limited to

his station in Japan. The general rule applies: He has to show full powers. Then we

have representatives to international conferences. There is an ongoing global

negotiation on the necessary steps to protect the environment; a climate change

conference. We send some people there, they may be from the private sector, the

public sector as the case may be, and there is a signing of a multilateral treaty on

climate change. A person who has been requested by government to be part of the

delegation, to head the delegation and in the event of signing, to sign in behalf of

the government may actually be possessed with limited authority without need of

full powers, but only for that particular conference. Question: What if Erap goes

abroad, and you know Erap is out of power, and for some reason he went to Kuala

Lumpur and signs an agreement between the Bangsa Moro and the government of

the Philippines. Let’s say there was a treaty with Kuala Lumpur to establish a

Bangsa Moro homeland here in the Philippines, and Erap signs it, is that going to be

valid for government? The rule, of course is no because Erap was never there in any

capacity at all except to be a good Samaritan. But if the (incumbent) President says,

“Thank you, Erap, for entering into the goodwill agreement, and yes, we will ratify

this”, then that is what you will call validation. Even if the person did not have the

authority, but later on, his actions were validated by government or even executed

the terms of the agreement, then that would be evidence of having ratified or

validated.

Now this one is very simple: How do you adopt a treaty? Adoption is a concept

whereby States will have to concur. When we say adoption, the document is

already... let’s say to be enforced with the consent of the parties. Now in a very

small treaty, making process, two countries would already be sufficient because

they are the only parties but if we have a big one like the UNCLOS, or the ongoing

conference on climate change and you have hundreds of countries involved, when

is an instrument deemed adopted? The rule is that if they concur, fine. But in a big

conference, they say 2/3 will be sufficient. However there is an exception to that: if

the 2/3 determined a different rule, and they would probably place it in a treaty and

this treaty shall be adopted in accordance with this number; It may be more than or

less than 2/3. Some treaties, if you have so many parties, can be adopted and

already be deemed enforced with about twenty, thirty countries like the ICC, the

International Criminal Court.

Consent. How do countries consent to a treaty? Well of course, you sign. There is

also the motion of exchanging instruments. There is a concept called ratification.

Ratification should be understood in the concept of the Constitutional process of a

State because in the Philippines, you have to have a concurrence by the Senate,

depending on the type of agreement that we will see. Now the term accession has

been used in the context where a State was never an original party to a treaty. But

here comes a State that would say, “Can I become part of this treaty even if I have

not been in the original signing?” Yes. That means you want to accede. That’s the

proper term.

Now let me go to Philippine Constitutional practice. How is a treaty made in the

context of Philippine setting? We will look on some case law on the matter. For this,

Article Seven, section 20. Art seven, section 20 is really an exception to section 21.

Why? Because the general rule in our Constitution is that a treaty, as defined in

article seven, section 21, must be concurred in by the senate. So the President

signs and negotiates, the President may or may not submit it to the Senate for

concurrence. I say may or may not because there is a case law on the matter, the

ICC case. But if it is submitted to the senate you need 2/3 vote. There’s another

provision that’s important because under Article eight, section four, if you are going

to question the Constitutionality of a treaty, it is one that will be heard en banc. And

finally, Article 18 section 25, talks about a special kind of treaty; a treaty which will

allow the establishment of new military bases in our country which we have

abandoned during the bases referendum in the early 1990’s. No new military bases

shall be established according to this provision. The condition, according to this is

that except under a treaty duly concurred in by the Senate, and then the congress

so requires, ratified by a majority of the votes cast by the people in a referendum

held for that purpose and recognized as a treaty by the other contracting State.

That’s a nice question in the bar: In how many ways can a treaty be entered into by

the government today? Then you distinguish the kind of agreement. Is it a loan

agreement? Then Article seven, section 20 applies. Is it one that involves an

ordinary treaty? Article seven, section 21, the general rule. Is it one that will be for

purposes of putting up military troops and facilities? Then Article 18, section 25 is

the special provision. But that does not mean that they are not treaties or

agreements in accordance with the VCLT because as far as international law is

concerned, if it is entered into between two States, it is in writing, it is governed by

international law, then it will have the force and effect of a treaty pursuant to the

VCLT.

So let’s look at some case laws. Bayan v. Zamora and Lim v. Secretary. Two cases

that dealt the Visiting Forces Agreement. The VFA is the agreement pursuant to the

mutual defense treaty of 1951, but out of the VFA is another kind of document

called the balikatan exercises terms of reference. A case was instituted first by

Bayan on the Constitutionality of VFA. The SC said this is one in accordance with

Article 18, Section 25. Why was there a question? Because in the said provision, the

American government asked the Philippine government a requirement that the VFA

must also be recognized as a treaty by the other contracting State. They didn’t go

to the process of concurrence by the US senate as it has in its Constitution which is

very similar to ours, almost identical. The word was that we did not have that same

process. So what happened to that particular document? According to the US

representative who wrote us, his name was Amb. Hubbard, this has a force and

effect of a treaty under international law. But we ask, did you submit it to the

senate? No, it was not necessary. When the ambassador said that, we relied on the

word of the ambassador. The SC said that was enough assurance that under US law,

the letter of Amb. Hubbard said, this is treated as an international agreement,

similar to the VCLC.

There is a case that clarifies, again, the VFA. This is the case of Nicolas v. Romulo,

Feb. 11, 2009, this is the Daniel Smith case. The SC reiterated the ruling that the

VFA is a mere implementation of the 1951 Mutual Defense Treaty. The VFA is

considered as a sole executive agreement subject to legislation called the case sub

loci procedure. In the case of Nicolas v. Romulo, the question that was raised,

however, was with regard to the Romulo-Kenney agreements of December 19 and

22, 2006 whereby the detention of Daniel Smith and other persons accused in the

alleged rape, actually already confirmed, of a Filipina was not in accord with article

five, section 10 of the VFA. And in the VFA there was a distinction between the kind

of custody that the US authorities would have over their soldiers and also the

Philippine government’s custody over them. Under article five, section six of the

VFA, custody from the commission of the offense until completion of all judicial

proceedings shall be within the United States. However, article five, section ten says

after conviction of Daniel Smith, the confinement or detention by Philippine

authorities shall be carried out in facilities agreed on by the appropriate RP-Us

authorities. And when the United States Embassy, pursuant to the Romulo-Kenney

Agreement, took custody of Daniel Smith after conviction and still retained him in

US Embassy premises, a question was raised with regard to that. The SC said that’s

in violation of article five, section ten because now, Daniel Smith, pursuant to that

provision of the VFA, must be in Philippine facilities as agreed upon and not in US

facilities. Now, what is important here is that VFA was reaffirmed as one which has

the force and effect of a treaty.

Now, Lim v. Executive Secretary addresses the issue on balikatan exercises where

they invite some Americans to go there to Bicol or to Basilan and other places

where is armed conflict, not to join in the shooting but to play, you know? Larong

military. They say, Let’s have exercises, mock military movement. But you know,

they do this right in the heart of an armed conflict area. It’s like taunting them.

What is that kind of agreement? Is that a treaty? The SC said this is one which is

merely the terms of reference pursuant to the VFA; it does not need concurrence of

the Senate. So distinguish VFA, which is the source of the terms of reference called

balikatan exercises. Its the VFA that needs concurrence of the Senate pursuant to

Article 18, section 25.

The other case is Pimentel v. Executive Secretary and this is all about the distinction

between signing and ratification. A State may sign an agreement but not leap

towards ratification or concurrence by the senate. Why would a State sign and not

ratify? Why do you think so? Well, some would say pogi-points, noh? We sign. But

you know, signing without ratification has an implication under the VCLT. When you

sign and ratify, that means you may have to undertake certain actions in domestic

law by way of amending legislation, or executing executive issuances, regulations in

order to comply with our treaty obligations because a treaty has the force and

effect of law. And so we may have to undertake that. In the case of Pimentel v.

Executive Secretary, the President, through the Foreign Affairs secretary,

presumably, signed the Rome statute which creates the International Criminal

Court. But we did not ratify. My word lately, just fresh from Malacanang, is that we

may now have to submit to the senate for concurrence the instrument that we sign

for purposes of ratifying the Rome statute. We are leaning towards that. Somebody

went up, Pimentel, to the SC to question the failure of the President, for a while, to

submit the treaty to the Senate for concurrence. So, Pimentel was asking for a

remedy called, and by now you should know that, mandamus; compel the executive

to submit the treaty for concurrence. What did the SC say? That is discretionary; it

is not a ministerial function of the President even after signing a treaty to submit it.

The President may or may not. But that might be moot by now, hopefully, because

the President would now submit it to the Senate, hopefully for concurrence.

Another case, Pharmaceutical v. DOH. This is October 9, 2007. This is the concept of

soft law that was asked last year. For those who attended my lecture, they must

have heard this concept because I discussed the case last year. What is soft law?

Now in the given case, the facts are as follows: There was a law way back during

Cory’s time called the Milk Code of the Philippines, and in the milk code, there was a

provision to promote mother’s milk; breast feeding as compared to the use of

powdered milk. But the milk code did not have a provision that prohibits

advertisements of baby powdered milk. Now, according to some of our policy-

makers, this actually discourages or even compete with our intent to promote

breast milk and breast feeding, so there was the idea that we may probably have to

look at other sources because the milk code is not strong enough. Where did they

go? Well, they went up to look at the international instruments and what they saw

was there was an existing world health guidelines that came out of the World Health

Assembly which actually talked about an international code of marketing of breast

milk substitutes. And they found out that in that set of guidelines, the assembly said

there is an exclusive breast feeding recommendation for babies between zero to six

years old, and an absolute ban on the use of advertisements of breast milk

substitutes, so it is not in our milk code, but they saw it in an international

guideline. Now the WHO (World Health Organization) is an international organization

governed by a charter. Its assembly however, from time to time, issues what you

call recommendations. Now you have to distinguish this from what the ILO does

because the ILO comes up with conventions, which was the force and an effect of

treaties, but here we have the WHO assembly recommendations, and what the

Department of Health did by way of a legal technique was to draw from those

guidelines saying, “well you look at WHO recommendations. Zero to six, breast milk

and no advertisements of breast milk substitutes. This was brought before the SC

and it was questioned and the SC said “those are mere soft law. Soft law does not

necessarily have the force and effect of a treaty of hard law.” They may be guides

for policy-makers but do not necessarily have the force and effect of law. What DOH

did was to issue rules and regulations pursuant to that and again if you go to our

discussion on treaties, is that a treaty? No, its a mere set of guidelines, and

therefore the rules and regulations would not have enough legal basis to stand on

and so they struck down the rules and regulation as a violation of the Constitution

because it amounts, also to a violation of non-delegability of legislative power. The

proper procedure would have been, if it was a treaty, was for the legislature to pass

a law and then the President, through the DOH issues rules and regulations where

you have such very firm treaty obligation. But this was not a treaty obligation. And

the SC said that’s mere soft law, a guideline. So, it addresses our concern, from the

Constitutional perspective and also from the international law perspective.

The next case I want to mention is Abaya v. Ebdane, this is 513 SCRA 720. It says

the exchange of notes is a form of executive agreement. That’s all. There is here an

agreement between the government of the Republic of the Philippines and another

State, and an exchange of notes is just a simple communication that is not a treaty.

In the VCLT it’s a form of executive agreement. If it is a form of executive

agreement, it may have the force and effect of a treaty but not for purposes of

having to submit it to the senate for concurrence. So it is a form of executive

agreement but may not require the senate’s concurrence. But if you ask, “will it

bind the government?” Yes, because it is entered into between two States, it is in

writing, it is governed by international law.

Next case, we’ll keep on going back to this next case, is the case of Province of

North Cotabato v. The GRP Panel. October 14, 2008. This was the Memorandum of

Agreement on Ancestral Domain between the GRP and the MILF. I had a chance to

be part of this. In fact, I was impleaded (?) in this case. I was the Chief Legal

consultant; I am not ashamed to say that. In fact, it was one I am pretty much proud

of having gone into that process of crafting the MOA-AD with the panel at that time

in the last few stages. I believe in the document, I believe in the principles of self-

determination of the Bangsa Moro here. What was the MOA-AD? It was a really

underappreciated document because it was politicized when people began to see

the possibility of charter-change, because the document is one which would fit,

perhaps in a Federal set-up in this country. It was an attempt to try to achieve

peace in this country, recognizing the specific culture, specific idiosyncrasy of a

community part of the Filipino nation. Sayang, because its a document that was in

the works for about six years by the panel. I sit in the negotiating panel for the

communists; that’s my main work, but for one year, I worked with the GRP panel

for talks with the MILF, so last year when I was discussing this, sometime August, it

was a time that the MOA-AD was up in the SC for oral argument and we had to

argue this on behalf of the document itself, in the SC. The document was intended

to be one of the steps towards the drafting of a comprehensive compact. There

were already two other documents signed between the government and the MILF

panel on security and rehabilitation development. The MOA-AD was supposed to set

the parameters by which a Bangsa Moro Juridical Entity would be put up. Yes, it

covered areas which was supposed to have impact on territory; the waters,

airspace. It talked about national resource developments and the capacity of the

Bangsa Moro with certain countries for economic purposes. It also defined, to a

certain extent, governance, which will be the next round of talk where special

courts, as we now have Shari’a , which will be enhanced in the context of the

Bangsa Moro homeland. There will be talks about possible concepts of citizenship in

the context of the Bangsa Moro homeland, but within a framework called a Federal

set-up. So it was really meant to eventually fit into a broader charter change if

federalism would have been proper. Because the ARMM, as it stands now, probably

would not be able to accommodate what the MOA-AD would propose in a

comprehensive compact. So it was one in a series of documents before the

comprehensive compact, and when this was supposed to be finally signed... I say

signed because before August five, before the government left for Kuala Lumpur for

that signing, there was already an initialling of that document. So they initialled the

document in Kuala Lumpur, more than a week before the signing and it was going

to be a ceremonial signing of the parties in Kuala Lumpur with all the delegations

and international community invited: you have donor groups, you have

ambassadors, present in Kuala Lumpur and Governor Pinol and other local

government officials like Lobregat from Zamboanga and Iligan, started to complain

saying “we were never consulted; we did not know of the MOA-AD,” which was not

true, because there were documents showing that they were submitting, in fact,

resolutions from local governments and there were consultations done in

Zamboanga and Iligan, but they denied it publicly to be able to stop the signing,

which is not fair because this was almost four to five years in the making. This was

just an attempt to consolidate it and finally to submit it. So that’s what happened;

they went to the SC for a TRO and by the time the GRP panel... I was not there

anymore; I was here, watching what was going to happen to the TRO. The panel left

and they were sent a fax because that morning, a Monday, the TRO was issued by

the SC, and the Malaysian host was left empty-handed. They have prepared more

than... it reminds me of certain events. Two hundred fifty rooms in Kuala Lumpur for

this big thing. The entire nation... national network, in ASEAN, in other parts of the

world, was focused on that because it was one of the few agreements that would

have paved the way for peace in the country. And you have the SC issuing a TRO

because certain politicians in the south said they were not consulted. You know, it

was sad to say that Pinol, during a February ANC (TV Channel) forum on Mindanao,

if you have seen that, was invited in that forum by ANC together with other

Mindanao peace advocates and the former panel, admitted, when he was asked,

“Did you actually know about the document?” Then now he says, after all the

damage has been done, “Yes, I saw it but the resolutions that we had were not into

the document.” But he was already warned, there would be a plebiscite. You have

voted twice, against the ARMM agreement, then you can do so if you want. But you

don’t mislead the SC to say that you were never consulted because there were

records to speak of. And then you have a “Presidentiable” called Mar Roxas, seeing

this as an opportunity, the Liberal Party; most frustrating to see a politician, a

Presidentiable, using it as a flatform. Kaya nga sabi nila meron daw M.A.R. ngayon

sa Mindandao; Movement Against Roxas. It’s sad because they politicized. You may

not want the President, but you don’t politicize and issue which is genuinely a peace

instrument for this country. And if that is the kind of President you will have later

on, using it as a framework, I’m sad for a Presidentiable like that, just for that

flatform. Pero sabi n’ya ipaglalaban ko kayo... except Mindanao. Let me go to the

case itself. It lost on an Eight-Seven vote. Why? Because when this document was

actually submitted to the SC, what happened was that the government said, and as

a result of this, as you know, there were certain rogue commanders from the MILF

who went on a rampage, after the TRO was issued. And you know what’s happening

now; the international monitoring team, where you had a ceasefire before, already

left, and it was leaning to displacement in Mindanao. A terrible situation; the latest,

of course, and this is disputed, if you have been reading the papers about what

happened, two days age, the talks have been attempted to be revived. At the time

the oral arguments were being heard here, the SC was given notice by the

government; they disbanded the panel and said, “We will no longer sign the MOA-

AD.” They MILF said, “But you have initialled; it is a signed document.” What were

the issued before the SC? And one that relates to treaties. The petitioners against

the MOA-AD said, “You have signed the treaty because you have created a State

called the Bangsa Moro State.” Did we create a State as a result of the MOA-AD?

That was the question. Was it a State in accordance with the Montevideo convention

such that an agreement signed between the MILF panel and the GRP panel

amounted to a treaty under international law? That was the discussion. Well let me

be straightforward to this because we said that this is not a treaty pursuant to the

VCLT. While we may want to achieve peace, the document that you have is one

between the government and a State on one hand, and a non-State entity, on the

other hand. So, it is outside the context of the VCLT. The SC on that point said, Yes.

This is not a treaty. Clearly. Of course, the Bangsa Moro side would have said, “But

we are a State. We are a nation.” But of course that is a matter that has to be

proven later on. But legally, that was the argument made. So, the other matter was

that, if the government said, “we will no longer sign this document”, then the SC

should not have continued tackling the substantive aspect which is the

unConstitutional provisions, they say that if you look at the provisions, they are

unConstitutional because they do not fit the Constitution. Precisely; you would need

a possible change in the legal framework of the Constitution. Because what is being

put at the table is higher than what the ARMM actually provides now. But that will

wait and there will be a plebiscite; it is not one that will be self-executing because it

must go through a referendum; it has to go through a Constitutional process. That

was clear in the mind. And the government panel was saying, “if you look at the

orders that created the peace panel way back in Ramos’ time, carried through

Estrada and GMA, it’s consistent. The GRP panel may propose or may recommend

to the President possible changes in law, in policy, or even amendments to the

Constitution. But that is not the context that a proposal is viewed in accordance

with Article 17 on amendments because that is one which will go through the

process of the legislature; it is clear in the mind. But what the government

oppositors were saying was that this is already a commitment to change the

Constitution; that’s the interpretation made. And many of the justices, at least eight

of them, including the other seven; many of the justices who voted, also on the part

of the Solicitor General, also had that same interpretation. They may have differed

in the result, but it was really a matter of interpretation because it was clear that

the document was not going to be a final document, it has to go through another

process. So on the matter of treaty, there was no State to speak of; and this has a

bearing to our talks now with the Communist Party of the Philippines. The CCP also

does not recognize the Philippine Constitution. Talks are going on, for the purpose

of having changes in the economic structure, and the political structure of

government. They want a coalition government. And insofar as the Bangsa Moro is

concerned, there’s a specific territorial claim; the ancestral domain concept, which

was similar, but not identical to the IPRA or the indigenous people’s rights concept

of ancestral domain. But the communist has a different concept; they want the

entire country. Mahirap naman yon noh? Wala naman sigurong papayag. But this is

the difficulty in peace negotiations, and that’s why it was very difficult, from the

point of view of the panel at that time, to see the role of a court in the process of

negotiations, of treaties, or even agreements at that time. But the SC came up,

nonetheless with a discussion on the unConstitutionality of the MOA-AD in that

regard. So those are the various points raised and as far as the MOA-AD is

concerned, it is not a treaty. That’s at least something you can get from the

decision itself: it is not a treaty in accordance with the VCLT.

Now is this the first time that this concept has come out? Not really, because in the

Abbas v. Comelec case on the ratification of the ARMM, the decision held by the SC

there was silent on the status of the Tripoli Agreement because if you look at the

history of the ARMM law, it was on the basis of the 1976, and as affirmed in

subsequent agreements, between the government of the RP and the MNLF on the

creation of an autonomous region. Now, the matter of status of the Tripoli

Agreement as an international agreement was raised, but the SC sidetracked it; it

did not rule on the status itself and therefore we were waiting on whether the SC on

the MOA-AD would also sidetrack the case or not but in this case they categorically

went into the discussion of the status of the agreement so it is not a treaty. Well I

must just spend the whole day on that... (long pause) Okay, so those are the cases

of interest, they are of international law significance and I just hope the examiner

would look at these of great value in this context.

Now let’s go to reservations to the treaty. If you enter into a treaty, can you make

reservations? Not reservation in a dining facility like the Cirque noh? Can you make

a reservation? Yes. It’s consensual. But the general rule is that, it is allowed except

if there is an express provision in the treaty prohibiting reservations or if only

specific reservations are allowed, or if a reservation would be incompatible with the

treaty’s purpose. Now let’s look at some developments here... the Genocide

Convention. In the case of the genocide convention, it is a very important piece of

instrument that tries to address what we call a customary international rule, that no

groups of people may be the subject of annihilation, discrimination. So it pertains to

classes of people and the most important example that occurred during the Second

World War was of course the genocidal killing of the Jews. Now we have very similar

cases in recent times as we have seen in the case of Bosnia-Herzegovina and also in

the case of Rwanda; the Hutus and the Tutsis, noh? Now these are genocide. Closer

to home of course is the ongoing UN Criminal Tribunal on the Polpot regime in

Cambodia. So, this is an obligation of a customary nature. The question that was

raised in the genocide convention advisory opinion in 1951 was the effect of the

absence of a reservation clause in a convention. If there is no reference to a

reservation clause, how do you interpret it? This was ruled on the basis of the third

exception, that if it is incompatible with the treaty purpose, then reservations would

not be allowed. So here they said, the importance of prohibiting genocide as a crime

against humanity is serious enough to lay the standard that no reservations can be

made with regard to the genocide convention. Does that mean that the genocide

convention can also be invoked against a State that is not a party to it? The answer

is yes, because the genocide convention is declaratory of customary international

law. Now there is one recent treaty, the International Criminal Court created by the

Rome statute, the ICC where there is a specific provision under article 120 that no

reservations are permitted. Well you now have to accede.

Now let me go to the interpretation of treaties. How do you interpret treaties? Let

me remind you not to forget your contract law. Not to forget your basic foundation

in the eight bar subjects because as we move to the different provisions here, you

will always be able to find recluse in the principles in domestic law. That’s why I

don’t expect you to leave a blank because if you cannot remember the treaty, if you

cannot remember the custom, if you cannot remember the general principle, at

least in the general principles, you can derive that from domestic law. In our

Constitutional framework, in our criminal law framework like ICC; it’s largely

criminal law, criminal procedure, with some differences, of course. So do not forget

that. Do not leave a blank. When you enter into a treaty, you are supposedly

entering into it good faith. There is a principle of pacta sunt servanda in treaty law;

the parties entering into an agreement must comply with their obligations in good

faith. So when you interpret a treaty, you interpret it in good faith. You use the

ordinary meaning if means a dog, a dog; a four-legged animal that barks. It’s a dog.

A mouse; a mouse is not the mouse that you use in the computer, because it is also

called a mouse, also noh? It looks like a mouse, but I do not know if it is spelled the

same way. But a mouse is what we know it to be in the ordinary sense unless it is

used in a technology called computer, then you know the mouse is that mouse,

noh? When you read a treaty, you look at the purpose, as we have seen in the

genocide convention; look at the purpose, the object of a treaty. There are special

meanings that may be given to the provisions, so just go to that.

Now there’s another concept in treaty law that you have to memorize very well: jus

cogens. The term “jus cogens” actually means the peremptory norms of

international law. What does it mean? It simply means that parties to a treaty

cannot enter into an agreement that will be contrary to the norms recognized and

accepted by the international community. This is what we call as a non-derogable

principle. It’s non-derogable because you cannot do away with it. You must respect

the standards; they are recognized universally. Examples: you cannot enter into an

agreement to unlawfully use force, to commit a crime, to engage in trading slaves,

to commit piracy, to commit genocide, to commit human rights violations or even

violate the equality of States and the self-determination of people. That is a set of

principles that a treaty cannot ignore.

Next: Withdrawal, termination from a treaty. It is possible that parties to a treaty,

like in contracts, may not be able to comply, for certain reasons, and they will now

say, “we are withdrawing”. Can that be done? Now, the rule is that if you are able to

enter into a treaty then you must be allowed to withdraw in conformity with the

treaty. Normally, if you have two or three parties, it must be with the consent of all,

but if you have sixty, seventy parties, then you have to have a different provision

for it. Now the exception is when there is no provision, but that’s very rare that you

are unable to get out of a treaty. However, remember this: that even if there is no

provision in the treaty that would allow you to withdraw, the exception to the

exception is... there is the intent anyway, to allow the parties to withdraw and you

look at the nature of the treaty; does it really allow or not? I doubt if there is any

treaty now that will prohibit you from withdrawing because that’s part of it.

Withdrawing, however does not mean that you cannot be bound anymore by the

provisions of the treaty because as in the genocide convention, even if you say you

are withdrawing from it but the content of the treaty is actually of customary nature

then those principles of a customary nature will still bind you even if you have

withdrawn. That’s why it’s very difficult to imagine, really that you withdraw.

Now there is the matter of having to look at the effect of the succession of treaties.

Sometimes you may have one treaty and later on this is prevailed upon by the

other. What is the effect of this, if you have withdrawn from a previous or you have

entered into a new one? Generally, what you want to do is to reconcile the two. If

you cannot reconcile then what you have to do is to apply the general rule that the

later in point prevails; if it is difficult to reconcile. So you have to compare.

What is this rebus sic stantibus in the context of withdrawal or termination of a

treaty? You know this; you’re familiar with this in contract law. But let me want you

that the contract law principle is not necessarily the same in all scores when it come

to international law concepts. Rebus sic stantibus simply means that any

unforeseen or fundamental change is not a ground for termination or suspension of

a treaty. The mere fact that there was a change does not equate to the capacity of

the party to immediately abandon its obligations; no, it cannot. The exception is,

and this is what’s important, that the change has affected the essential basis of

consent and that the obligation of one of the parties or both parties have been

transformed radically, and there’s no point to continue with the obligation.

This one has never been asked in the bar: that there is an exception to the

exception; that even if the essential basis of consent is affected, the obligation is

transformed radically, but this is a treaty that establishes a boundary; it is now

governed by the principle of uti possidetis. What is uti possidetis? You know, the

history of this is about the colonization period, when during said period, the African

continent and the American continent were actually affected by changes in power.

For example, when the Spaniards and Portugese went to different parts of South

America, whereas the Europeans went to Africa, they divided the world, basically.

They redrew the boundaries. You know, for a while, the tribes in Africa were

governed by their own customary rules; they know the metes and bounds of their

territories. But when the Europeans came and divided Africa, they redrew the

boundaries of the tribes. The same is true with South America. Now, after

colonization, the treaty entered into for purposes of the de-colonization had already

maintained the existing territories. Now, if you say that the mere fact the we enter

into an agreement to change boundaries will have the effect of changing

boundaries, that is going to wreak havoc on the population. You will have a difficult

problem of changing territories. You could imagine the movement of people that

you will have to do. So, what uti possidetis, as a principle, States is that we must

maintain the territorial integrity, in cases of State succession. So a treaty

establishing a boundary is an exception to the exception on the rule on rebus sic

stantibus. The other exception to the exception is self-explanatory: that if the

fundamental change arose from a breach by the invoking party, they cannot have

any basis to invoke it because you were the cause of that breach. In simple terms,

in domestic law, you cannot come to court with unclean hands. Sanitize yourself, so

as you as don’t get H1N1.

Philippine practice, well I just cited this because we have our rules on negotiation of

international agreements. This is contained in an executive order. It basically,

consolidates what we have been articulating, based on the Constitution and based

on jurisprudence. Now more on the rule on conflict between a treaty and a law, so

we say that a treaty has the force and effect of law, right? If it has the force and

effect of law, what prevails? The opinions that you may find are as follows: one, it

may depend if it is a domestic court that is going to decide on the matter, generally,

most courts around the world will uphold the local laws. Although I would have a

different perspective in light of our experience in Philippine jurisprudence on this

where we lay heavy emphasis on our international law obligations. If it were an

international court that will decide on the matter, ordinarily a treaty obligation will

be given effect as compared to domestic law; it’s understandable. And this springs,

of course from the perspective that both courts are coming from, and I will show

you the relationship between municipal law and international law where these

attitudes are actually coming from right now. Now, the greater challenge are

situations of conflict between a treaty and a Constitutional provision. What would

you give effect to: our Constitution or a treaty? That is difficult. Under Article 46 of

the VCLT, there is a provision that says when Constitutional violation is manifest,

and concerns a rule of internal law of fundamental importance, the State may

deviate from a treaty obligation. What does this mean? Let me cite to you a

provision in our Constitution and if you have this, do you mind looking at article 12, I

think, on national economy and patrimony, section 14 of article 12. The second

paragraph reads here: the practice of all professions in the Philippines shall be

limited to Filipino citizens, save in cases prescribed by law. So, you’re lawyers-to-be;

you’re covered by that. Accountants, other professions that will require license from

government; those are professions limited to Filipinos. But we entered into an

agreement called the GATT WTO where the principle is that you do not put any form

of discrimination between foreigners and locals when it comes to exchange of goods

and services. That is the problem. So if foreign lawyers now want to enter here, or

accountants, competing with you now, from the US and from Europe, how would

you feel? Because the principle in GATT WTO is that we agreed to non-

discrimination. Now is this one of fundamental importance to us? Yes, I think it’s a

policy decision, whether we would want foreign lawyers to compete with us; it may

be prescribed by law otherwise. Now article 27 also of the VCLT has this general

principle that says a party may not invoke the provisions of internal law as

justification for its failure to perform a treaty; so we cannot say, “sorry, we signed

that, but our law says this.” No we cannot say that because our obligation is when

you enter into a treaty, you are supposed to adopt the necessary changes in

domestic law. But if it’s in the Constitution then article 46 (of the VCLT) comes into

the picture, if it is of fundamental importance. But if it is a law, we may have to

change our law as we did when we had to ratify GATT WTO and we had to pass our

Anti-Dumping law, and other safeguards measures. That’s the result.

What I’m saying is that there are theories on the relationship between

Constitutional law on one hand, and international law, or domestic law on one hand

and international law on the other. Under a dualist concept, the unConstitutionality

of a treaty is purely a domestic matter. Now, we may not follow the treaty yes,

because we insist in our domestic law, but we face sanctions because, as we shall

see in the chapter on State responsibility, there is responsibility if you do not follow

your obligation under a treaty; pure and simple. So if it is a treaty and a domestic

legislation, I already gave you some guides, reconcile. If they can stand side by side

without any conflict, then give effect to both; but if a later treaty is in conflict with

an earlier law, then the later instrument prevails. This is where I now make my

observation because while it is true that when you have a law and a treaty that

conflicts with the law, the rule is later in point prevails, what if, on the other hand,

you have a treaty and now you pass a law contrary to the treaty? What is the

attitude of our courts? In most instances, we follow the treaty. Or the remedy is to

withdraw first from the treaty before passing the law; otherwise, we may be

breaking a commitment that will be contrary to international law.

Okay, it was a rather long introduction to the sources because treaty is really, the

main bulk. That’s why I had to spend some time there. You know, you cannot

memorize the treaties; there are thousands of treaties. I don’t even memorize that

for my class. But at least, you have here the most important principles that you can

live with.

The second source of obligation is customary international law. It says here State

practice because when you talk about customary international law, it is actually

based on how States behave, how States consider certain events or actions as

becoming obligatory; that’s why it says State practice. When our representatives

like (UN) Ambassador Davide sits in the deliberations of the General Assembly, what

he actually carries there is the position of the government, so where there is a

deliberation for example, on standards that will curtail terrorism, we will say that we

will consider certain organizations as terrorists, and the following standards, if that

is deliberated upon and States now begin to accept it, those are expressions of

State attitudes; when it comes to an important issue in international law. So when

they say something, when we write something by way of, let’s say, a manifestation

or accede to a resolution on that same issue, we are actually defining our State

practice. That’s what we mean by State practice.

Expressions of State practice can come in different forms. It may be oral, it may be

in writing. Now how does this relate to the development of customary international

law as a source of obligation for government? Well, customary international law is

defined as the evidence of a general practice accepted as law. I always make an

analogy here with regard to similar concepts in civil law; for example, easements.

You know, easements and servitudes are quite a distinct set of principles in

property law because it develops out of certain practice. That is how customs are

developed; from acceptance by people. And if there is no contention that this is now

acceptable, it is what you call a ripened practice. And if it ripens to the extent that

people now, in a domestic level, accepts it as almost law, then it can already ripen

into an obligation; that is what we mean by a customary practice. Now in most

indigenous peoples around the country, as we know in IPRA, there are customs that

are recognized among the indigenous tribes that are known only among the

members of the tribe. They are not statutes that are passed in congress, but they

are deemed to be custom because people who belong to that same tribe accept it

as almost obligatory to them; that if they don’t follow it, they will be subject to

sanctions.

Now having said that, transpose it to international relations; let’s give some

examples. For the longest time, States have always respected navigation in the

high seas as free; you don’t even have to get permission to go to the high seas.

That is an example where traditionally, international law has recognized that there

is a principle of freedom on the high seas. The same is true of outer space. No one

can appropriate outer space because that it recognized by most States as beyond

appropriation, just like the high seas. The deep sea bed, same thing under the

principle of the UNCLOS; it’s for the common heritage of mankind. And States

respect that, but they get articulated in a treaty. And that is where we say we have

a fusion between custom and treaty law because some customary international law

will find their principles articulated, crystallized in a document called a treaty. And

now you have a treaty that is not a simple case of a contract, but becomes a treaty

that contains custom. Therefore we can say that a treaty can be a codification also

of customary international law. When that happens, there are principles in treaty

law that are of customary nature, or declaratory of custom that may now be used

by States as a source of obligation for non-signatory States. And you will see this

even in the context of human rights, humanitarian law principle. I will explain that.

So this where we see a fusion; an interface between treaty law and customary

international law.

Now let me go to the elements of custom. Even independent of treaties, what are

the elements? If you say that a custom is an evidence of a general practice

accepted as law, these are the principles or the concepts that you need to equate

with customary international law: duration; how long should that practice evolve

before it ripens into custom? There are no hard and fast rules here; these are what

we call quick ones; quick ones because there’s immediate consensus among States.

Yes, we agree that as far as airspace and continental shelf is concerned... yes, there

are consensus points on the status of these in international law. Next is uniformity

and consistency of practice. How uniform is the practice in different parts of the

world? You will see there is a concept called regional custom; that there might be

other States that will spouse a different practice in the area. And then you have the

concept of generality; does it mean that all States will have to practice this? What if

there are some States that do not accede to it? Does that destroy the very concept

of custom? And finally, the opinion juris; opinion juris consists of the objective and

the subjective aspect. Objective because there is a settled practice already;

subjective because States consider it obligatory. Tinatanggap ng mga estado na

itong practice na ‘to ay binding on itself. That is the obligatory character; it is not a

mere courtesy. I can respect you out of courtesy; that’s different from obligation. Or

you might just be motivated by fairness or morality; not legally.

In the Paquete Habana case, it has been ruled in the US courts that fishing vessels

and cargo are exempt as prizes of war in an armed conflict situation. In the Asylum

case, there was the concept of a regional custom. And this was occasioned by the

dispute between Columbia and Peru on the right of a State to unilaterally qualify an

offense as political for asylum purposes. Now they found out that that practice is

rather inconsistent; if you have inconsistent practice on a particular point of

international law, it may not blossom into a custom. But they attempted to inject

the theory of a regional custom. Regional because it is one peculiar; that is the

same argument made by ASEAN among the ASEAN States on the principle of non-

intervention within the region. Even the context of human rights violations in ASEAN

member-States as in the case of Burma has been put to question. Burma has

always asserted, well, you must respect domestic affairs, but that cannot even be a

basis not when you have the UN charter saying that there is an exception to the

domestic jurisdiction issue under international law, if there are serious violations of

human rights happening in your country, you cannot invoke the domestic

jurisdiction principle.

The other one that I want to emphasize is the case of France and New Zealand, and

France and Australia on the nuclear test cases. The occasion here was the message

that was sent by the President of France to the entire world when he went on a

public pronouncement that France will no longer test atomic weapons in the region;

in the Pacific atoll. Now this is a demonstration of a subjective commitment by

France, declared to the entire world. It is erga omnes, and the entire international

community can rely on France’s declaration that it will no longer test atomic

weapons. Now that demonstrates one element of customary international law, and

that is the obligatory character. That is an example of you assuming an obligation in

international law.

Now more on source of State practice. I mentioned about general assembly

resolutions. We don’t have a concept like a legislature or a parliament where laws

are made by a body. The closest that we have is the UN, but in the UN, when we

sent a representative there in the assembly, on a one nation one vote system, any

resolution of declaration by States there will only constitute and evidence of

practice by that State. However, if the general assembly would act as a

“collectivity” (?) and they begin to pass resolutions and declarations on particular

issues on international law, like apartheid, they kept on passing resolutions one

after the other, condemning apartheid in South Africa. Apartheid is the systematic

discrimination of the blacks by a minority white population. Well, that was repeated.

That became a basis for a series of declarations and resolutions blossoming into

what we call an obligatory nature and to that extent, out of general assembly

resolutions, blossomed what we might call customary international law. So that can

happen; principles of self-determination (for example), those principles arose out of

continued expressions by the international community condemning certain

violations of international law.

Now there is a concept of parliamentary diplomacy, and this applies to the general

assembly. Parliamentary diplomacy merely characterizes the kind of consensus that

one can get from the members of the general assembly of the UN, which is a very

rich source of evidence of general practice that may be accepted as law.

The other one is, certain decisions of international organizations like the UN that

can become obligatory on the members, not just recommendatory. When the

general assembly sits as a collective body, there are certain actions that they can

take that eventually will lead toward what we call binding obligations. When they

make decisions about admitting new members or having to pass a budget, or

having to apportion budget; those are obligatory in nature and are not

recommendatory. But as a whole, there are certain organs of the UN whose

organizations may actually pass guidelines, but they are purely recommendations

and unless there is an obligatory character to these obligations, they will remain as

such. The exception, as I pointed out to you in various provisions of the UN charter.

Another very important source of obligation under international administrative law

or organizational law is article 25 of the UN charter which says that the members

agree to accept and carry out the decisions of the security council. Now you have to

know the role of the UN security council in international relations; it is the most

powerful organ of the UN system and when this so-called chapter six to eight of the

UN charter pertaining to peace and security matters are invoked by the security

council, this is obligatory; they cannot be just mere recommendations, as we have

seen in the case of the gulf war, when Kuwait was invaded by Iraq. Now let me raise

a question of interest; the so-called persistent objector in international law. See,

there are some States who will say, “I cannot be bound by this status of custom or

treaty because I am a country that stands behind the principle of isolationism. I do

not want to be bound by the rule of customary international law.” Can they

realistically say so? The weight of opinion here is that the persistent objector theory

is not acceptable in international law today. It’s very difficult to argue that. What

about a new State, like East Timor, do you remember Jose Ramos-Horta, who

happens to be the boyfriend of you-know-who? Our green senator, without naming

names; the one who showed her back when she attended the SoNA saying, “I am an

environmentalist, and look at my back; its fresh.” Si Loren, kayo naman oh; that’s a

fact. So, Jose Ramos Horta is the President of East Timor, a newly emerged State.

What if East Timor said, “We are not going to be bound by customary international

law” Can they that? No. What if they say, “I’m not going to be bound by a treaty

entered into before we were created as a State” Yes, they may say so, You

distinguish between a treaty and a custom because a treaty is really consensual in

nature; but when it comes to customary international law, you don’t need to be

bound by a treaty for that because customary international law, as we have seen, is

evidence of a general practice accepted as law, universally so you distinguish when

it comes to that theory.

Alright, let me go to the third set of obligation. We say general principles of law and

it is categorized as domestic law, which means our laws can be a good source of

general principles of law. And I will be straightforward here; all you have to do is to

memorize the examples. Here are the examples; the principles of liability, either

civil or criminal, reparations, unjust enrichment, property, rules on expropriation,

you may expropriate, but you must pay compensation. There’s a difference,

however, in international law when you now look at the standards but the principles

are the same; when you expropriate private property for public use, you must pay,

indemnity for damages, the principle of denial of justice, the right of passage, the

rules on proscription in property law, the rules on presumptions and errors, your

administrative law will be useful, civil and criminal procedure, principle of humanity,

principle of good faith, pacta sunt servanda, estoppels, human rights. You may see

that most of these are contained in your domestic laws, your Constitution. So, this is

really your saving grace; if you find the problem so difficult because you don’t know

the treaty, just remember the domestic law. Answer it as if you are saying, under

international law, even if what you have in mind is a criminal procedure. Anyway,

the examiner might not recognize it because what he will pay attention to is that,

“is this a principle that can be drawn, also from domestic law because international

sources of obligation may be general principles of law, derived from domestic law.

Let us have one example here; there is a case that I want to cite, this is the case of

Southwest Africa or the former Namibia. There is a concept in the UN charter which

dates back to the covenant of the League of Nations before the UN was established.

At that time there were some entities, not States yet, but emerging States, which

would be in need of guidance; it’s like mentoring. And this is the concept of the

trust territories or the mandates. This was asked in the bar: What is a mandate?

What is a trust territory? And there are territories that would be in need of

preparation towards independence or Statehood. The case of Namibia brought

about the question of, “what is status of the relationship between an administrator

like South Africa, over a mandated territory?” What rules of law would govern them?

Because they were just given the task; you have a mandate or a trust territory to

administer. But they did not say, “you govern in accordance with these certain

rules. So they ask what are the metes and bounds of this. So they equated the

relationship to be one of trust. It’s the same as the trust relationship in civil law –

you have a trustor, a trustee, and a beneficiary. That is the concept they say; apply

it. And where was it derived? Civil law, domestic law. That happens.

There was a case about deciding a case ex aequo et bono, as distinguished from

equity. See, the ICJ can be given a mandate by the parties in a case to decide their

case ex aequo et bono. How is it different from the principle of equity in domestic

law? Are they the same? No. Are they similar? Yes, but not identical. Let’s

distinguish: in equity, the law cannot cover every possible situation; that’s a fact.

Sometimes even the law itself can be limited. The law can only contemplate certain

situations. Therefore, a judge must rule, it cannot say there is no law applicable,

right? It’s because you have to search for custom in the end, in our civil law

concept. But when you talk about equity, there are certain rules which when

applied, might lead towards absurd results, and that would be contrary to the intent

of the law. When you decide it on the basis of equity; that means you use equitable

principles in the end if it will be absurd to apply the letter of the law. Ex aequo et

bono is different because here, the parties give the ICJ the power to decide the case

equitably outside the rule of law. They will say, “bahala kayo. It’s up to you how you

would want to decide a case, for as long as you can resolve it immediately.” That’s

fine for us. So, those are some examples, but the best tip is the enumeration that I

gave you, the general principles, and your knowledge of the eight bar subjects.

Now let me go to application of international law by domestic courts. I enumerated

sources of obligations that the ICJ would tap – treaties, custom, general principles of

law recognized by nations. A fourth one is relevant because national and

international tribunals can also render decisions of international relevance and

applicability. I will cite one very important case for you, this is very important, the

case of Filártiga v. Peña-Irala (630 F.2d 876); it is a US case but it has been cited

left and right in most jurisprudence pertaining to crimes against humanity or serious

human rights violations. The facts: There was a person named Jovelito Filártiga; he

was an activist in Paraguay; he was kidnapped and tortured to death by the

Inspector General Police of Paraguay. And then the victim’s family decided to file a

suit in Paraguay, but like many developing countries, the administration of justice

tend to be very slow, and they decided to give up on the domestic remedy and they

packed up and went to the US for greener pastures. It so happen that the

perpetrator of the death of Filártiga also decided to pack up and go to the US to

seek greener pastures. When the victim’s family learned about this, and after

consultation with local lawyers in the US, the victim’s family invoked an old US law

called the Alien Tort law, which precisely gives the victim’s family the opportunity to

file a case against Peña-Irala for as long as both parties are within the jurisdiction of

the US. Under this law, any person who is a torturer or has been a torturer can be

sued for civil liability because that person is considered hostes humani generis – the

enemy of all mankind; including women, okay? The enemy of humanity. So, US

courts acquired jurisdiction and actually proceeded against this. What is the closest

case to us? Marcos human rights victims case. In Hawaii, there was a judgement

entered against the Marcos eState because of a case filed by 10,000 human rights

victims which included noted personalities like Joma Sison, Eta Rosales, all those

who suffered under the martial law regime. Satur Ocampo – I’m not sure if he was a

petitioner there but several of them; 10,000 human rights victims filed a suit in

Hawaii. They got judgement; they were able to recover part of the ill-gotten wealth

of the Marcoses. And in congress, there is now a human rights compensation bill

that is supposed to appropriate an amount arising out of the ill-gotten wealth of the

Marcoses for purposes of payment of the victims of human rights violations during

martial law. This is the model decision, Filártiga v. Peña-Irala, that allowed a civil

court in the US to get jurisdiction.

Now let me close this chapter by looking at a case, the case of Trendex Trading

Corporation v. The Central Bank of Nigeria. In this case, there are two schools of

thought that define the relationship between international law and domestic law.

These are the doctrine of incorporation and the doctrine of transformation. What

does incorporation mean? Simple: if you have international law as a binding

instrument, either a treaty or a custom, those are, supposedly given effect

automatically. If let’s say it’s a treaty, then it must be made applicable to domestic

law, right? But the doctrine of incorporation says international law is automatically

adopted depending on the Constitutional provision of a State, and I will go to the

Philippine practice on this, but it says international law is automatically applied to

domestic law, except when it conflicts with the domestic legal system.

Transformation means international law is adopted through the decision of judges,

through law, or through custom. So, international law will not have an effect unless

the judges apply them in their decisions, or unless congress passes a law. What is

the important Constitutional framework in the Philippines? The case is Tanada v.

Angara, interpreting article 2, section 2 of the Constitution which says the phrase

“the Philippines adopts the generally accepted principles of international law as part

of the law of the land.” What does this phrase mean? Does it reflect an

incorporation theory or a transformative theory? It is your incorporation theory, as

held in Tanada v. Angara. Does this refer to treaty? Of course not; it refers to

generally accepted principles of international law as part of the law of the land.

What do you mean by generally accepted principles of international law? Please,

remember this. It applies to custom; not necessarily treaty. The only instance is

when a treaty contains principles of a customary nature, and this is the context of

Tanada v. Angara. Tanada and other progressive groups opposing our accession to

the WTO agreement argue that our entry to WTO was inconsistent or would violate

the Constitution of the RP. The SC said, if you look at WTO it was concurred in by

the senate, it has the force and effect of law, by the principle of transformation, it

went already through concurrence by the senate. By the principle of incorporation

however, there is in the VCLT, a principle that says we must honor our obligations or

comply with our obligations in good faith. That is a customary principle in treaty law

that finds application to the RP almost automatically. So distinguish; what is the

principle in the treaty law that is of customary nature? Because that may be a

source of obligation using the doctrine of incorporation.

Now, there are four theories that you want to remember pertaining to the

relationship between municipal law and international law. First, these theories are

important when you now have to determine what kind of attitude the courts, either

domestic or local would have in relation to international law. The first is monism,

which says, simply, that international law and municipal actually belong to only one

system and international law is superior to the domestic legal system. So if there is

a conflict between an international instrument and a domestic instrument, we must

give effect to the international instrument. Dualism means the two systems of law

may exist and there is nothing to speak of by way of a conflict; each one is supreme

within its own sphere. Inverted monism says municipal law is superior over

international law and it does not even give any weight to the term law as far as

international law is concerned because municipal law is superior and that’s the only

concept of law that they know. Finally, number four, the two legal systems may be

reconciled or harmonized: give effect to both. This is the principle of harmonization;

harmonize the two instruments. Okay, let me go to a rather short chapter on

personality.

Personality

First, you knew about the sources of obligations so (assume that) you‘re a judge; go

back to the situation wherein you’re a judge and then you begin to imagine the

sources of obligation; that’s the first chapter. The next chapter now talks about,

who are then, going to be the subject or the object of international law for purposes

of violations, complaints or even actions before the ICJ. Now this is what we mean

when we talk about personality under international law.

The first person in international law is the State. So when you talk about legal

personality, subjects of international law, States. And under the Montevideo

convention, these are the elements of a State: Permanent population, a defined

territory, a government and the capacity to enter into relations.

How many people? It does not matter; for as long as they are capable of governing

themselves. But of course, it must be reasonable enough for you to be able to call

yourself a functioning State. Otherwise, you are just an association of people. What

are some examples? Palau, Nauru, very small, but you can have a China, over a

billion, Palau is about less than 100,000, same is true with Nauru, Solomon Islands,

150,000. I had a chance to meet already two people from the Solomon Islands

during conferences.

How big should the territory be? Well big enough. But they can be very small like

Liechtenstein, or again, Nauru. Are you familiar with Nauru? They have a building in

Makati called Pacific Star Building at the corner of Makati Ave and Buendia Ave, this

Nauru building, Pacific Star. But you know how big their territory is? They don’t have

a territory anymore, almost. Why? Because they have given up this really huge

island to investors, mining companies started digging up mineral resources and now

they have to buy portions of Australian land in order to claim it as part of their

territory. They are doing that now, very interesting, noh? Because they are losing

their land to the investors; the mining companies, they dig, and that island is just

about to fall apart. But you have to have a territory.

Then, government; what kind of government? It does not matter. There’s a principle

of self determination. You have the right to determine your political, economic,

cultural and social status as a State. It’s up to you; it’s a question of legitimacy in

the end, however whether you would enjoy recognition.

Finally, you have the capacity to enter into relations. Question: If a State is under

the protectorate of another because of an agreement, will the State subject to

protection be considered as such in international law? Yes. The other question is,

what if you have been denied admission to the UN? Can you consider yourself a

State? Yes. Admission to the UN is not a condition precedent to become a State.

Now, if you talk about State, you cannot avoid the discussion on recognition of

States and recognition of government: these are two things, do not forget. And the

practice here is as follows: when you talk about recognition of States there are two

theories that govern this practice - the declaratory theory and the constitutive

theory. Under the declaratory theory, it means that you have to possess all the

essential elements of a State. If you do not have that, then you are not a State. But

for as long as you have those elements, you are a State; that’s the declaratory

theory. The other theory is constitutive theory, which means that for you to become

a State as such, under the Montivideo convention, recognition is an important

factor. If you are not recognized by the international community, even if you assert

the right to self-determination, that does not matter. What you need is recognition.

What is the distinction between recognition of State and recognition of government?

Well when you talk about the government itself, it’s like the administrative arm

whereas the State is the abstract theory of a republic that is run now by a concrete

administrative body called a government. What changes often? Governments

change from time to time, but States rarely change. There is stability, often with

regard to the abstract entity called a State as distinguished from a government.

Now, let me give an example of a change in State. This is not very often

appreciated. When you talk about a change in State, you can actually talk about it,

by way of an example, such as what has happened in Russia at the turn of the 20th

century. In the early 1900’s, Russia was still governed by the Tsar; Tsarist Russia.

Monarchists, noh; an imperial government. And when the Bolshevik revolution

occurred, Lenin together with other Marxist elements, coalesced with other civilian

leaders at the time and the military, to topple the Tsar, and what they put up was a

Soviet Socialist Republic: the Union of Soviet Socialist Republics, which they

asserted, was entirely different from the Tsar. So what happened was a revolution,

it broke the continuity of Imperial Russia, and a new government, a new system was

in place. That is a change of State. What is a change of government? 1986,

Philippines, now that we try to remember Cory. People power; Cory was supposed to

be elected in a popular vote, in the context of the 1973 Constitution as amended,

but the people said she was cheated. The President of the Philippines at that time,

was proclaimed by congress at that time, the Batasang Pambansa under the 1973

Constitution. People did not want to believe that there was a legitimate election and

that the legitimate leader was Cory Aquino. People Power installed a revolutionary

government. Was there a change of State? No, it was a mere change of

government. What if, and only if, during the People Power revolution, the militants

left, the Communist Party of the Philippines – New People’s Army, participated

therein, and literally spearheaded the revolution and installed a government headed

by Joma Sison and the rest of the communists, and we are called the People’s

Democratic Republic of the Philippines, like China in 1949? Would there have been a

new State? Yes, because there, you will have a Communist State, like China; from

Imperial China to a Communist China; that is a change of State. Why are we

troubled by this issue? One, because in the case of Russia, when there was a

change of State, from Tsarist Russia to Communist Russia, the USSR argued, “We

are a new State; we are a new person in international law – we are no longer the

Russia before that you talk of, under the Tsar. Our obligations under international

law are different from the obligations of the Tsar.” That is the important implication

of having to argue that you are a new State – that you are a new-born person. My

obligations are different from that State; that is a different State. Can that be said of

governments? No, because you still have the same person, but different

governments. What’s the implication? The debts incurred by the Marcos Regime are

still the debts assumed by the new government – Cory Aquino, although she could

have asked for forgiveness for some of the odious debts. But technically, it is the

same Philippine Republic, but with a different leadership, even if she was installed

by virtue of a bloodless, non-violent, people power revolution. What is the practice

today? If you recognize a State, you do not automatically recognize the government

itself – and this is the practice now. On the other hand, if you recognize a

government, you presumably recognize the State that that government represents.

Clear? Question: Can a de facto government, as distinguished from a de jure

government, act validly in international law? Yes. A de facto government, as one we

have seen during the Japanese military occupation of the Philippines – a belligerent

occupant, in international law may still produce juridically cognizable and valid acts.

The distinction that is made, however, is with regard to political acts. Now let me

remind you of the case of Co Kim Chan v. Valdez Tan Keh, in Philippine

Jurisprudence. That was about the proclamation made by General Douglas

MacArthur when he returned and he said, “all processes rendered by the previous

Japanese Imperial Army in government under the Japanese occupation are hereby

declared null and void.” All processes. Did that nullify all the actions, basically? No,

that only pertains to acts of a political complexion. So, for example, during the

Japanese occupation, they had to manage peace and order, they had to run civil

transactions, they had to run administration. If a law was passed during that time,

that allowed divorce between parties, that is of a civilian character. Then you’re

lucky, depending on your perspective. If you got a divorce, once divorced then, that

judgement of divorce may be enforced even after that belligerent occupant is no

longer in power. In the case of Co Kim Chan v. Valdez Tan Keh, it was about a civil

obligation incurred during the Japanese occupation, no different from borrowing

money or selling land, that agreement is good even after the war because it is not

of a political complexion. What if you were convicted, criminally, for treason against

the Japanese Government during the Japanese occupation, can the judgement be

enforced during the occupation? No, because laws of a political complexion are

suspended. But laws of a non-political complexion during the period of belligerency

remain in effect, so distinguish them. So I go back to the question whether a de

facto government may exercise certain actions validly and juridically recognized in

international law? Yes, during the period of belligerency, but distinguish between a

political and non-political complexion. Clear?

Self determination – this is very relevant to our Bangsa Moro people. What is the

concept of self determination in international law? And I go back to the Bangsa Moro

case on the MOA-AD. In international law, there is a document called the

Declaration on the Granting of Independence to Colonial Territories and Peoples.

The elements of the right to self-determination are as follows: first, the right to

determine political status, and second, the right to pursue their economic, social

and cultural development; those are very sacred rights of peoples. What if,

eventually, and this is what the government is saying, what if in a plebiscite, the

people in the area, in Mindanao, finally come to terms in peace and say, “let’s allow

the Bangsa Moro homeland to rise”? For as long as there is a plebiscite, the SC did

not, and I say this, the SC did not discard that possibility in the decision. Well it said

here, very clearly... it is very interesting how in the last few paragraphs of the main

opinion, there was in fact, recognition of this possibility. Where the SC said, and I

quote this from page 83 of the text of the main judgement, “the Sovereign People

may, if it so desires, go to the extent of giving up a portion of its territory to the

Moros for the sake of peace. For it can change the Constitution in any way it wants;

so long as the change is not inconsistent with what in international law is known as

jus cogens.” What the SC said, respondents, however, may not pre-empt it in that

decision, which means it will have to go to a plebiscite. As I said, we had a

difference of opinion on how that framework was actually intended because what

the SC was saying was exactly what the panel was saying – no changes in the

Constitution will take effect until after the proper legal framework has actually been

instituted, and that means it has to go through a Constitutional amendment; we

don’t have a debate about that. But that is what the SC itself said, that’s the

principle of self-determination of a people. The SC, however, made a distinction

here: short of a Constitutional amendment, the kind of self-determination that now

exists in our Constitution is one of two things. First, as far as the State is concerned,

it is external self-determination; that the Philippine State has the right to actually

exercise self-determination. What does that mean in the context of the

Constitution? Mark it. It is section seven of article two, that the State shall pursue an

independent foreign policy in its relation with other States, the paramount

consideration shall be national sovereignty, territorial integrity, national interests,

and the right to self-determination – that is the absolutist context of external self-

determination. The SC also said that there is another kind of self-determination

called internal self-determination, and that one is limited and that is one that

pertains to article ten of the Constitution on Local Autonomy, for the Cordilleras and

the ARMM, which says, and I quote the provision that pertains the autonomous

regions, section 15 of the Constitution that says there shall be created autonomous

regions in Muslim Mindanao and the Cordilleras, within the framework of this

Constitution and the national sovereignty as well as territorial integrity of the RP.

That is the context of the autonomy and the self-determination of the ARMM and

the Cordilleras. But as I said, the decision says, if in a plebiscite later on, in a

Constitutional or charter change, if the sovereign people would allow it, then so be

it. If it’s a Federal or even independent, fine. So the question that comes to mind is:

As far as internal self-determination is concerned, is there a right of secession? It

would be of course argued that there is no right to secession. Now, no right to

secession has been, in fact, contemplated as far as indigenous groups are

concerned. What about other groups? In the end, and I say this, in the end, the

question of secession, in the extent of self-determination of certain peoples within a

certain State, will actually be dependent on the success or failure of any liberation

movement; because if the Communists or the Secessionist groups in the south

eventually emerge, militarily, and gain control of a territory, and gets control of

that, as what happened also in East Timor, then recognition process will come in.

And that will be determined by politics and the rules on recognition in international

law.

Now, in the Western Sahara case, an advisory opinion of the ICJ was rendered

saying that the concept of self-determination may also mean: one, that the

emergence of new States if there is secession. It may also be an association or

integration with an independent state. And this is what, again the SC got so worried

about because there was a term in the MOA-AD that the relationship between the

Bangsa Moro Juridical entity that was to be created as a result of the MOA-AD, is

one which is associative in character. And they (the SC) ask the GRP panel, what do

you mean by an associative relationship? We explained very clearly, we said, “your

honors, If you go around the world today, in different parts of the world , you have

Federal systems, you have several non-state entities with a relationship with the

central government. And the MOA-AD was very clear: the relationship between the

BMJE and the central government, is indicative of recognition by the BMJE that there

is a higher authority called the central government. How can it be an independent

state? It is a state, perhaps a component state, in the context of a possible federal

system, which is normal in different parts of the world. But they that having that

associative relationship mean we already created a state within a state, which is not

the intent of the parties. The problem was, you did not have the MILF to confirm

what they were arguing. How can you subpoena the MILF and the CPP-NPA to face

the SC? There was a belated attempt by Mayor Jojo Binay, after having gotten that

clue from one of the justices, because the justices said, “petitioners, why are you

arguing the GRP panel, when there is an agreement between the GRP panel and the

MILF? You have not impleaded the other party to the agreement? How can we be

talking?” You know, reasonably here, when you don’t even have the opinion of the

MILF and only during that time about two weeks later after we started the oral

arguments, Jojo Binay went to file another petition impleading the MILF. Where did

they serve the subpoena? Darapanan? Do you think that will be accepted by the

MILF, saying “well we operate outside the Constitution of the RP.” That is what the

CPP-NPA is saying; we are outside the Republic. But we need to release our

consultants so we had to go to the SC, because they are under detention now. Very

difficult; that’s why when you talk about the rules that will apply in the peace

process, what the panel was arguing was that perhaps, the normal rules that we

apply are not necessarily the one that will apply in the context of a peace process.

So there is a theory that when you talk about self-determination, you talk about

agreements with the insurgents, it is not one which will ordinarily be susceptible of

interpretation in light of contract law, in light of the Constitution, for example;

because precisely, you are talking about a framework that may be outside the

Constitution. And that is what happens to peace agreements in the different parts of

the world: in the IRA, between Northern Ireland and Britain, or the so-called Good

Friday Agreement here or the Sudan, the Machakos protocol - there it’s the reverse:

you have a Christian minority as against a dominant Muslim community in the

Sudan, and they have been fighting. You know, I was in Hague, the Netherlands, the

seat of the ICJ, visiting on my way to Oslo, one time... June 15, and I met one of my

former students in the Ateneo who did a doctorate in Yale, still doing it, but has

been assigned as the registrar or it’s the equivalent of your clerk of court of the SC.

He is now the registrar of the permanent court of arbitration; that is one of the other

courts sitting in the Hague. And they are now arbitrating between the different

tribes in the Sudan, implementing that peace agreement called the Machakos

protocol, defining the territory between the Christian minority and the so-called

Muslim majority. Very interesting, and they had been conducting hearings, bringing

in the tribal leaders from different groups in the Sudan to the Netherlands to discuss

the territorial boundaries. It is happening in different parts of the world; that peace

agreements are being enforced. Here unfortunately, we shoot down a peace

agreement. But that’s the way you buy peace, sometimes. You cannot roll on the

basis of strict laws of contracts, or strict laws of the Constitution; there is give-and-

take. Quebec is interesting; Quebec is the French-speaking part of Canada that I

told you about, and in Quebec, it is recognized in the Canadian charter of rights and

freedoms, as a distinct society. For those of you who may have a chance to visit

Quebec, it’s on the eastern part, and it is more French than the French. You go

there, you go to McDonald’s, buy a hamburger, they’ll speak to you in French. They

are so... closed when it comes to this; that is why there is an issue of bilingualism in

Canada. I remember, there was an attempt before, to pass in a plebiscite a debate

on whether they would want to stay within Canada or not; within the dominion. And

more recently, a few years back, there was a legislation in Quebec where they

passed a law seceding from Canada, and that went up to the Canadian SC, on an

issue on international law and constitutional law; and that is where the Philippine SC

decided to quote the situation of Quebec, where they said the Quebec situation is

relevant to the Philippine issue, specially on the MOA-AD, when it says, there is only

the concept of internal self-determination as far as non-state entities are concerned.

The Canadian SC struck down the action of the Quebec legislature, seceding from

the Canadian dominion, and so this was cited by the Philippine SC. Of course, I said,

the situation form Quebec is different from the MOA-AD; there was not even a law

here, in the case of the MOA-AD. It was a mere proposal to the president for the

president to propose it to the legislature, and in accordance with Tan v. Macapagal:

when is there a proper case for judicial review? It’s when the resolutions are already

up before the congress. For the changes to be effected... you have not even

reached the legislation here. That’s why one of the arguments here by government

was there was no justiciable controversy, as yet. There was no proposal to

Congress, and yet, if you go to Senate Resolution # 10, by Senator Nene Pimentel,

he proposed a federal set-up, and in one of the provisions in that proposal, Pimentel

gave a Federated state the right to secede. But those are, of course, in a

constitutional context. So is it possible that the right to secession be in a

Constitution? Why not? And that is what Nene Pimentel has placed in a federal set-

up. So these are the challenges for us, on the concept of secession. But shared

sovereignty is a concept that is now being used with regard to secessionist

movements or those entities who are seeking a different form of relationship with

the central government. The concept is shared sovereignty; and it may mean an

associative relationship between a central government and a non-state group within

a government.

Let me go to non-state entities. Well, I gave you already, Quebec. The mandate

system; I already mentioned this, in the context of Southwest Africa, that the

mandate system could actually exist. We already talked about situations with CPP-

NPA, MILF, MNLF, and also indigenous peoples. Now in the case of indigenous

peoples, there is a UN declaration on the rights of indigenous peoples, which

recognizes the self-determination of indigenous peoples, when you talk about

indigenous peoples it is not necessarily a religion-based distinction, but when you

talk about the rights of, say the Bangsa Moro, it’s a little different: they may be

indigenous in character yet the struggle is also religion-based, because of the

character of the Bangsa Moro, unlike other indigenous peoples; the Lumads, for

example.

International organizations; let’s look at International organizations as persons. Are

they persons like States? Now when you talk about International organizations, they

are composed of States; inter-governmental in character. So, the UN, and the UN

has specialized agencies: the World Bank, IMF, GATT-WTO. They are all composed of

member-states. Question: are they the same as States then, in terms of their rights

and duties? That was the case of the reparations for injuries suffered in the service

of the UN; this is an ICJ decision which came out in 1949, and that decision

articulated the principle that the capacity of the UN under international law, to sue

for damages caused to an agent in the form of an international claim is actually

recognized. So, just like a State, if you have a person like an OFW in the Middle

East, and that person suffered injuries in the hands of a foreigner, in the Middle East

or in the hands of another government, it is our duty to protect our nationals under

the principle of state claim; because an injury to a national is indirectly an injury to

the State; that is the concept of having to protect a national. Now in this case, yes,

the UN can file a similar claim in behalf of an employee who may have been injured,

but are the rights and duties of the UN the same as the rights and duties of a state?

The ICJ says no, there are limits to the analogy that you will apply. Therefore, what

is the limitation of the personality of the UN? According to this decision, then you

have to look at the charter, because the limits of the personality are actually based

only on the charter, unlike a state, which is not governed by a charter. Yes, there is

a constitution, but then a state, by itself is a person; different from an international

organization.

Individuals; now this one is very, very revolutionary. When you talk about

individuals as persons in international law, a natural person like you and myself, like

our president, like other leaders of government, the military, we are now considered

to be a subject of international law. Before, when you talk about a human being as

an object of international law, we only talk about it in the context that a natural

person may be a beneficiary of an instrument, like human rights. Human rights will

say, every state shall have the duty to protect any person within its jurisdiction. So

you, myself are human beings, anywhere, everywhere we go, we are a beneficiary

of a duty, under an international human rights instrument to be protected. But

when you now say human being is also a subject of international law, that means

you are now talking about a natural person being made accountable for certain

actions under international law. And the way to understand this is to understand the

judgement of the Nuremburg Tribunal. After the Second World War, there were

international criminal tribunals that were created in order to address atrocities

committed in the course of the war. In an armed conflict, we will soon learn, there

are grounds by which you can go after certain persons who may have committed

atrocities in the armed conflict such as war crimes, genocide, crimes against

humanity, torture; these are causes or acts that may be basis for proceeding

against certain persons. We are not going to imprison the State, the Third Reich, or

the Japanese Imperial Army, maybe for damages they can be held accountable as

institutions, but you cannot imprison those; but you can imprison the military

commanders, you can imprison the Emperor, you can imprison the leaders of the

movement, the soldiers who followed the unlawful orders, so what the judgement of

Nuremburg tells us is that under the Treaty of Versailles, there is the concept of

individual responsibility, so individual responsibility means there are certain

criminal acts in international law which may be the subject of an international claim.

The principle has also been laid down that a State cannot protect the individual

accused of a crime, especially if the State exceeded in its authority or competence,

by allowing a person, like its soldiers, to commit a crime against humanity.

Therefore, officers who may have committed these acts may be made personally

liable because, their soldiers may say, “we are only following lawful orders.” No,

under criminal law, you only can be exonerated from criminal liability if you followed

lawful orders, not if you followed unlawful orders; the commission of a crime against

humanity, genocide, torture, is not a lawful order. The most that you can be

rendered benefited is a mitigation of the liability, but not exoneration. The

Nuremburg Tribunal has had its counterpart in Asia; as far as the Japanese are

concerned, you have the International Military Tribunal for the Far East. In the case

of Yugoslavia and Rwanda, they had Ad Hoc tribunals; the international war tribunal

for the former Yugoslavia and the other one for Rwanda. These are more recent.

However, with the Rome Statute creating the ICC, it is good to at least welcome the

news that there is now an international criminal tribunal. So, when you now talk

about the ICJ, you talk about, and you will describe this as distinguished from ICC,

about an adjudicatory body that entertains cases between states. When you now

talk about the ICC, you have a remedy to bring certain persons like what we have

mentioned – army leaders, politicians, totalitarian rulers, for certain atrocities

committed pursuant to the grounds under the Rome statute, like genocide, crimes

against humanity, war crimes, crimes of aggression. You may bring these

complaints against such persons before the ICC. You can literally drag now... what a

more recent example? The President of the Sudan: He was issued a Warrant of

Arrest for certain atrocities. Now, my comment there is one derived, also from

observations by some African leaders who did not like that move. See, when you

talk about an adjudicatory process, you’re talking about redressing injustice, right?

But when you have a peace process like the one entered in the Sudan, the

Machiakos protocol, and then you have a very big challenge if you want to push the

peace process in one hand, and on the other hand, you have justice issues. What

would you do about the killings that happen in the mean time? The same thing here

in the Philippines: if you are entering the peace process with the Communists, what

will happen now, to the extra-judicial killings committed by both sides? The NPAs

also have their own kangaroo courts. They execute people found guilty by their

people’s tribunal. What about the extra-judicial killings of leftist groups? The same

is true with the MILF, what happens to the killing perpetrated on both sides? That’s

a justice issue and yet you are talking about a peace that will hopefully settle the

armed conflict in the end. And that is the difficulty again, with peace processes,

because you are confronted with purely justice issues and on the other hand, peace

initiatives. How do you balance that? Let me go to the last one: corporations. And

by the way, in the ICC, and I will try to repeat this later on, there’s no death penalty

in the ICC so you just might want to be dragged, better to the ICC than face a death

penalty in your local court, if your local court still has the death penalty. In the

Philippines, we have repealed, the death penalty law, okay? Don’t forget that.

Corporations: what about corporations? Are corporations persons in international

law? Do they have legal personality? There’s a case called Texaco, and this is quite

reminiscent of an agreement between the government of the RP and ZTE-NBN. The

Texaco case relates to mineral resources. You have a State that enters into an

agreement with a corporation, is that a treaty or not? Of course it’s not. It’s not a

state to state, but there’s an agreement. This happens in most economic

development agreements. You have foreign corporations coming in, like our

financial-technical assistance agreement, for purposes of large-scale exploration of

natural resources. Now what is the extent of the personality of a corporation under

international law, if that contract is violated? Now, there is a concept called

internationalized contract. The rights of a corporation are really derived for

purposes of international law from that internationalized contract. And that is the

limit of the right of a corporation in international law. But the corporation does not

have the same personality. But can corporations be the subject of guidelines, code

of conduct under international law? Yes, and that is happening now in the code of

conduct for trans-national corporations. When they go into a territory, like the

Philippines and they operate businesses, they can be the subject of a code of

conduct, which means, for them to conduct themselves in a manner that is

respectful of international law and domestic law. Good governance, for example. So,

in the Texaco case, what the arbitration... and this is what you should learn; that

when it comes to contracts or economic development agreements, most

corporations entering into agreements with states would resort to arbitration. This is

what happened in the case of PIATCO; do you remember? NAIA 3? It is up in at least

two major commercial arbitrations. But that is the faster remedy, rather that

bringing it to an international court. So let me just read this very important portion

that says that internationalized contracts entered into between a State and a

foreign corporation gives the latter limited capacity by invoking, in international

law, the rights derived from that contract. So there is a limited right on the part of

the corporation and the rights may only be derived from the contract; that is the

extent of their capacity to act under international law.

Jurisdiction

The third chapter that I am going to tackle is the concept of jurisdiction, and in the

concept of jurisdiction, I would like to discuss the following items: first is jurisdiction

over territory, and then we will look at jurisdiction over persons, jurisdiction over

economic activities and events that occur within a state, and then we will look at

immunity from jurisdiction and the last major section here is on state claims or

international claims.

Now if you are asked, what is jurisdiction in international law, basically it is

understood in two senses: first, it is, as a concept, the capacity of a State to

legislate; to pass laws, make these laws effective over a particular area, and also to

enforce these laws within the territory. The second is as a power... over whom do

you exercise jurisdiction? Well, aside from the territory itself, you exercise it over

persons like your nationals or even foreigners to a certain extent, and then over

property and also over events that occur within your territory. So this is how we

understand jurisdiction. In a municipal law sense, when we talk about jurisdiction,

we also equate it with cases in courts and how courts acquire jurisdiction over

certain issues, but it also broader than that, because you can also talk about

jurisdiction as exercised by the other branches of government. So let’s look at the

international law perspective of what jurisdiction is all about. And I will begin with

the jurisdiction over territory. If you have your Constitution, I’d like you to open it to

article one, which describes you national territory; because this is where it will all

begin, when we now look at the impact of the definition of a national territory in the

Constitution. People have asked, “What if you do now have a definition of national

territory? Do we have a territory in that sense, in the absence of a definition of a

National Territory?” The answer is yes, you can have a national territory even if it is

not articulated in a document such as the Constitution, because in a case entitled

the Island of Palmas Case; this is an arbitration case. This is between the

Netherlands and the US; this involves an island which the US allegedly claim to be

part of the territory that was ceded by Spain to the US in 1898 in the Treaty of Paris,

and it’s an island of southeast Davao and the Dutch here, who were the former

colonizers of Indonesia were claiming that they have better title; so the issue was

one of title. Who has better title over the island? And in order to resolve this, the

permanent court of arbitration resolved the matter by using the standards under

international law. What are the forms of acquiring territory under international law?

First, you can acquire territory by the concept of occupation, coupled with

effectiveness. And in another case, the Western Sahara case, occupation to operate

under international law or to be effective under international law, must be exercised

over a territory which is terra nullius, which means it does not belong to anyone. In

a colonial sense, the understanding at the time was that the areas that were

actually occupied by Spain here were terra nullius because they did not belong to

any other colonial power at that time like, maybe Portugal or Britain, but during the

occupation by the Spaniards here in 1521, the area was not occupied by any of the

other colonial rulers in Europe. And so, the area which became the Philippine

islands, that was occupied by Spain for more than 300 years was, under

international law, validly acquired by Spain pursuant to the principle that it was

terra nullius. It is a very colonialist perspective, of course. And by the virtue of the

principle of postliminium, you will judge the act of States in accordance with the law

applicable at the time. When Spain ceded the Philippine Islands, pursuant to the

treaty of Paris, the Spanish ceded it as a result of the loss of Spain to the US in the

Spanish-American war. That island, according to the US, formed part of the ceded

Philippine archipelago. The US claimed that since the island was closer in proximity

to its territories in the Philippine islands, therefore it must belong to the US at that

time. The Netherlands, on the other hand, claimed that the US never exercised

jurisdiction because the latter never had effective administration over the area. And

so, you can only assert occupation coupled with effective administration over an

area, and only then would you have a better title in international law. The concept

of title in international law is different from domestic law. In your study of PD 1529,

the Property Registration Decree, if you have acquired an OCT over a parcel of land,

in domestic law that can be indefeasible, right? After the one year incontestability

period. You can leave that property, and you’re rest assured that you still have

good title. In international law, it’s not the same. The other mode of acquiring

territory is conquest, with the use of force. At one time, in international law, you can

acquire vast territories using arms. Today you can no longer do that; it has been

outlawed, as we have seen in Kuwait during the Gulf War when Iraq, claiming that

Kuwait was its province, said that they have the right to occupy Kuwait. The

international community said, it cannot do this anymore. The UN Charter has in fact

prohibited the aggressive use of force.

I will turn now to the definition of national territory. I just want to call your attention

to the fact that which we have acceded to the UNCLOS, from which we have drawn

much of the principles in our article one, there is a distinction between our claim in

the Constitution over areas within the seas as distinguished from what the UNCLOS

would allow us to claim. So you have more limited allowable claims in the UNCLOS

as compared to our Constitution, which has a more expanded definition of the

claims over the seas. In the most recent legislation concerning territorial claims, we

passed a law and in the law, we defined our new baselines and also our extension of

our continental shelf. There was a deadline given us last May to submit this, and we

beat the deadline and the problem is whether this would be respected by other

States, because China has already post its objection to our claim. But anyway, what

I want to demonstrate to you is how we actually apply the principle of an

archipelago, because article one of the Constitution talks about the Philippine

archipelago, and the effective phrase here is “the waters around, between and

connecting the islands of the archipelago, regardless of their breadth or dimension

form part of the internal waters of the Philippines.” So in understanding the concept

of an archipelago, we try to look at the UNCLOS, which defines an archipelago in

two ways: one, it’s a group of islands surrounded by waters or a body of water

studded with islands. Why did the concept of archipelago come about? Well

because in trying to understand the territory of one state, we would like to know,

what are the limits of our baselines to be able to claim portions of the seas. So there

must be a measurable point within which we can draw our baselines. It is easy if

only have a one-island state, because all you have to do is draw around the low-

water mark around the island and follow the sinuosity of the island and you can

begin to measure your baselines. The first marine baseline would be the territorial

sea; 12 nautical miles from your baseline, and then you have the 24-nautical mile

contiguous zone, and finally 200 nautical miles exclusive economic zone. But if you

have an archipelago and you have so many islands, it is not easy to draw around

each island because you will have in between the islands, pockets of international

waters, and you will have vessels coming from different parts of the world, that can

access your navigational sea lanes and that might pose a threat to your security.

So, this is the issue with regard to countries like Indonesia, Norway – the old

Norwegian Fisheries case has been the source of... the seeds of the concept of an

archipelagic theory, although we argued it in the course of the debate, together

with Indonesia. So there was a question that was raised: Are we a party to the

UNCLOS? Because when we acceded to that, the government made impermissible

reservation to the UNCLOS which other states have denounced. So a question have

been raised on the status of our accession to the UNCLOS, simply because of the

protest against our reservations. When you talk about the baselines issue, there is a

tribunal that probably can settle territorial disputes, and one is of course the ICJ and

the other one is the International Tribunal for the Law of the Seas. In the end, what

we are told is that it is not your regular courts here, or congress who will have to

determine the validity or invalidity of our claim, but in the end it will be a third-party

international tribunal. So, this is what we will have to await. There are possible

conflicts which have been viewed, in Philippine laws and in the Constitution, and in

the terms of the UNCLOS, and there have been reports submitted by Justice

Feliciano and Dean Magallona, in order to address the concerns of the legislators

when they were originally trying to determine the status of our commitments under

the UNCLOS. Now if you will look at the maritime zones under Philippine

Constitutional and legal frameworks, we claim the following, which is rather

different from the UNCLOS; the internal waters, absolute sovereignty; the same is

true with the UNCLOS. Territorial sea, however, is different because under the Paris

Treaty, you have 221.8 miles West, 283.18 miles East, and in the contiguous zone,

which is again differently treated in the UNCLOS; under our law, we have absolute

sovereignty, in the UNCLOS it would be limited to only 24 nautical miles from the

baseline. The exclusive economic zone is another strip of water from the baseline,

and that constitute absolute sovereignty as far as our Constitution in concerned, but

when you go to the UNCLOS, it would only be 200 nautical miles from the baseline.

Continental shelf, which is a natural prolongation of the land mass, allows us

absolute sovereignty and this is reiterated in the Petroleum Act, which is also

different now with regard to the UNCLOS, because there are certain limitations on

what we can do. And finally, the extended continental shelf; again we have absolute

sovereignty over this. Now look at the maritime zones under the UNCLOS:

archipelagic waters, we have limited sovereignty because if there are countries in

the past who have depended upon our navigationa sea lanes, but have now been

enclosed because of the archipelagic waters theory, we are obliged to allow

navigation, provided we designate the sea lanes for this. Territorial sea is 12

nautical miles from the baseline, contiguous economic zone 24 nautical miles, and

the EEZ, 200 nautical miles. Continental shelf is 200 nautical miles, and extended

continental shelf, up to 350 nautical miles.

So I go back to our internal law, you distinguish our law as distinguished from the

UNCLOS. In our domestic laws, internal waters have absolute sovereignty; the same

is true in the UNCLOS. However, the internal waters, include the archipelagic

waters, and under the UNCLOS, we have to allow sea lanes, as I have mentioned, if

you have enclosed it, and there countries in the past who navigate through some of

our areas that are now considered as internal waters, they have the right of

archipelagic sea lane passages. There is also the right of innocent passage over the

archipelagic waters. There is also the right to fish, by traditional foreigners. Please

be careful, because the right of innocent passage has traditionally only been

recognized over territorial sea but with archipelagic waters inside the internal

waters, then you can extend the right of innocent passage over internal waters. But

generally, if you don’t have archipelagic waters, you only have territorial sea

beyond that, then it is only limited to the territorial sea.

Territorial sea; our problem is that when Spain ceded the territory called the

Philippine islands, it was before the UNCLOS came about. UNCLOS was ’82. The

Treaty of Paris was 1898, so we have some kind of overlap; that’s the problem.

What will be accepted by the international community? If you look at our territorial

sea pursuant to the Treaty of Paris, it is vast; but if you go to the UNCLOS it’s only

12 nautical miles. Contiguous zone; the Philippine law would argue absolute

sovereignty; UNCLOS, limited jurisdiction over customs, fiscal, immigrations, and

sanitary laws. But we have; we can exercise jurisdiction over the contiguous zone

which is the next belt after territorial sea. That’s 24 nautical miles.

The EEZ; we have absolute sovereignty under domestic laws; under UNCLOS,

limited sovereignty over exploitation, exploration, conservation and management of

natural resources. Continental shelf; under our law, we claim absolute sovereignty

over the natural prolongation of the landmass; under UNCLOS, limited sovereignty

over the shelf. Extended continental shelf, up to 350 nautical miles; we should file a

claim for this... that is what we are going to file this month or early next month.

When we do this, we have a problem: we will overlap with neighbouring states, and

it will court protest. So, is the Philippines an archipelagic state under the UNCLOS?

Yes, by virtue of its internal waters. Our internal waters now become archipelagic

waters.

So when they were trying to argue about the concept of the Kalayaan Island group

just off the coast of Palawan, we have the Municipality of Kalayaan; we claim

Kalayaan on the basis of occupation and that we put up administration there to

show proof that we have effective administration. But there are other countries who

have claimed other areas. The compromise was to declare it a regime of islands,

but even with that compromise, our country was met by protest from China, who

claims that we cannot do that because they also have claims in the area. So, do you

settle this before the ICJ? One of the projects being done in the past was a code of

conduct whereby those claimants of the region will have to agree, by way of a

compromise, which is better; you negotiate.

As far as the Kalayaan Island Group is concerned, we have claim because Tomas

Cloma, a Filipino, had seen the island as early as 1946; and in 1976, we passed a

law, PD 1596, over which we put up a Municipality called Kalayaan, and this was

under the province of Palawan; this our way of saying, we are claiming this on the

basis of occupation under international law. So, when you’re asked, “What’s our

basis for the Kalayaan Island Group? Pursuant to the Island of Palmas case, the

permanent court of arbitration allows occupation coupled with effective

administration as basis of acquiring title and territory in international law. That is

our basis under Tomas Cloma. So the new baselines law recognizes a regime of

islands in the Kalayaan Island Group.

Airspace; do we have jurisdiction over the airspace? The definition of the national

territory says, yes. We have jurisdiction over the airspace above the terrestrial,

fluvial and marine (domains) but let’s qualify that. As far as you terrestrial, that’s

your land base, yes. When you go to the marine zones then you have an issue,

because when you have airspace above the territorial sea, you distinguish between

the right of innocent passage in the territorial sea, which is allowed, and right of

innocent passage means it is entry that is not threatening to the security of the

state. There is no right of innocent passage in the airspace above the territorial sea,

there is no right of innocent passage; you only talk about that in relation to waters,

ok? But you might be asked, what if there is a military vessel that goes to your

territorial sea, isn’t that threatening enough, because it’s a military vessel? Well

there is a debate there because they say that the mere fact that they were a

military vessel already constitutes a threat. There are other authors who say, not

necessarily; so it may go either way, you can say that it is a debatable issue right

now. At least, you can tell the examiner, “I’ve read different opinions.” How about a

submarine? Can it be considered as a threat? I think so, because it’s a spy vessel.

But what is the duty of submarines when they enter territorial waters? They have to

show flag; it must surface and identify itself. There is that requirement, at least, if

you are a submarine.

Now when you claim the airspace above your territory, you have exclusive

sovereignty over the airspace. You can regulate the entry of flights, and this is

subject to the Paris Convention; there is an international convention on this. When

the IPRA was being questions before the SC in 1999, mining companies questioned

the question of ancestral domain; it covered vast areas. Be aware of that because it

might be asked in the bar. Since 1999 and 2000 when it was declared valid because

it lacked the required number of votes to declare it unconstitutional, no examiner

has ever dared to ask what is the concept of ancestral domain under constitutional

law, but you have the case of Cruz v. DENR. We argued that case on behalf of the

National Commission on Indigenous Peoples and the indigenous communities, and

we had to defend the law against, partly the Solicitor General, because the SolGen

was not in agreement with the interpretation of the NCIP and the non-government

groups about the extent of ancestral domain. But there was one naughty question, I

think it was from Justice Panganiban, that time when he asked me about airspace.

He asked, “Do we need permits when you want to go above the ancestral domain?”

Because there was one provision in the IPRA that the airspace above the ancestral

domain may be claimed by the indigenous peoples, but that question will have to be

answered in light of the definition of national territory; that when it comes to

regulating the airspace, the Paris convention would give absolute sovereignty over

the State, and of course it will be the State, and not the indigenous community, who

will regulate the entry of planes above the ancestral domain. That is national in

character so, it was really easy to answer that, except that it was very naughty as if

the ancestral domain already covered everything and that’s why it was being

attacked as being unconstitutional. The same question was asked also in the MOA-

AD, because the Bangsa Moro was supposed to have jurisdiction over the airspace,

and was also derived from the IPRA; the same answer could have been proffered to

the SC on that.

Where do the high seas really begin? Well, in a very traditional sense, it begins

beyond the territorial water. However, if under the UNCLOS you claim additional 12,

a total of 24 nautical miles contiguous zone, then you push your high seas a little

further, and then you claim 200 nautical miles then you push it a little further, but

technically, high seas already commence beyond the territorial waters. In the past,

the three-mile cannonball rule was instituted to define the territorial waters,

because that is how far cannonballs could reach, in war time. Now, we have very

intelligent missiles, operated though a computer. They are very intelligent; more

intelligent than our congressmen or senators, for that matter.

What about the deep sea bed? We said that the deep sea bed, which is the ocean

floor, after your continental shelf, it drops and the ocean floor; that’s the deep sea

bed. There is a body called the International Seabed authority, which manages the

exploration of the deep sea bed. If you are able to exploit that, whatever gains or

profits you derive would be used for the development of other lower-income

countries; that is the obligation.

Let’s move to jurisdiction over persons and economic activity. We already know

over which area a state can really exercise jurisdiction. Now, in that area, there are

persons who occupy the territory. There are events that occur within the territory,

and there are economic activities. So, a state may exercise jurisdiction over this.

Question: What are the theories that will allow a state to exercise jurisdiction over

persons and economic activity? There are five theories that I want you to

remember, for purposes of being able to exercise criminal and/or civil jurisdiction

over persons and economic activities: (1) Nationality theory; (2) Passive Personality;

(3) Security principle; (4) Universality; and (5) Objective Territoriality.

Nationality. A state has jurisdiction over the person of its national wherever that

person may be. As a rule, you were born a Filipino, you went abroad, and planned to

marry, unfortunately you were married here already, and you want to seek another

partner abroad, the national laws apply to you unless the exceptions are availing

under the Family code. The law reaches you because of your nationality, wherever

you may be.

Passive personality means a State may punish aliens abroad, who injure one’s

citizen. So, what is the problem here in passive personality? Well, I may be able to

institute proceedings in my country against this foreigner. How do I enforce it,

however unless I have jurisdiction over the victim and over the perpetrator? But in

theory, I may do so, under the principle of public personality.

The third is the Security Principle: You punish aliens for acts against the state’s

security, the independence of one’s state and the territorial integrity of one state.

Example: Terrorism. When terrorists bomb an embassy of the US in Kenya, that is a

violation of the security of the state of the USA and if the USA would like to reach

that perpetrator abroad, it may actually do so. That is also what happened in the

case of Osama Bin Laden. They went to Afghanistan and embarked on a War on

Terrorism. Is there actually a War on Terrorism on their statutes or international

law? I know of an international armed conflict between two states or a non-

international armed conflict between a state and an insurrectional movement or

national liberation movement, but never did it occur to us until the war on terror

came about. And it brought about, also what legal regime would apply, if you

capture a terrorist. I will discuss that later.

The fourth is Universality: there may be certain acts like piracy, crimes against

humanity, genocide, international crimes, war crimes; these are all subjects of what

we call the application of universality or universal jurisdiction; that if these are the

crimes committed, any state may want to prosecute. We will have one case about

that, the Eichmann case.

Objective Territoriality: this is a situation where the elements of the crime occur

within two jurisdictions, so here is Canada on one hand, the USA on the other,

there’s a border; somebody from Canada shoots down an American right across the

street that divides Canada and the USA; all the element of the crime is shared by

both States. Objective Territoriality means, since the elements of the crime

occurred in two states, then each state will have jurisdiction. The same is true with

continuing crimes; kidnapping, for example. Different elements may have occurred

under different jurisdictions.

Let’s look at some criminal jurisdiction issues. Some rules to remember: one of the

more common cases cited is the SS Lotus case; an old case, and this case has

already been overturned by the development of the UNCLOS. But before I go to the

case, a question was raised here: It’s on the matter of criminal jurisdiction over

persons on board vessels, when the vessels are on the high seas. As a rule, the

vessels on the high seas are subject to the authority of the flag state; the flag state

simply means the state of registry or registration of the vessel. So, if you have a

Panamanian vessel, which means it is registered in Panama, even if it has Filipinos

on board, we will see that the general authority there, when it comes to jurisdiction,

if an offense is committed on the high seas, will be the flag state of Panama. What

are the exceptions here? If it’s piracy, then it is subject to universal jurisdiction or

slave trade, also subject to universal jurisdiction; hot pursuits, different in their

approach.

So the old rule was found in the SS Lotus Case; what happened here was there was

two vessels of different registries, and there were different nationals on board the

two vessels, and there was a collision on the high seas. And the ruling, in 1920, was

that there was concurrent jurisdiction of the flag state and the other affected. That

was a 6-6 vote. The new rule is found in article 97 of the UNCLOS. The rule now

states that no penal or administrative proceeding may by instituted against the

master of a ship, except before the judicial or administrative authorities either of

the flag state, or the state of nationality of the aggrieved person.

The other case is Eichmann; what happened in that case? There was a German

Officer during the Second World War who decided to retire – hide, in fact, in

Argentina after the Second World War, but he was one of those high-ranking officers

identified to have also participated in the execution of the Jews during the

Holocaust. The Israeli courts, upon discovering that Eichmann was hiding in

Argentina, decided to send their police to kidnap Eichmann in Argentina; and they

were able to succeed; they were like mercenaries. They brought Eichmann to Tel

Aviv, where Eichmann was tried and convicted. The question was: was the

conviction valid? Well, if you look at the rules that we have developed and have

applied in the past, when the a crime against humanity, war crimes, piracy, slavery,

torture; all of these are subject to universal jurisdiction, and therefore any state for

that matter, can prosecute. And that is what Israel did; they kidnapped, however,

the person. Was there a violation of international law? Obviously, yes because

Argentinean territory was violated; the sovereignty of Argentina was violated. So

Argentina, correctly, filed a diplomatic protest against the Israeli government. So do

not be lost in that decision: it is still a violation as far as Argentina is concerned. But

that decision of the Israeli court, after having acquired jurisdiction over the person

of Eichmann, is also valid.

Now let me go to extradition. And there is case law in the Philippines now, a very

recent case law to bear in mind. What is the rule on extradition? There are only two

questions that you would like to answer. First, is there a treaty on extradition?

Second, if there is, what crime was committed? If the crime committed falls into the

context of double criminality rule, which means that it is a crime that is listed in the

requesting state’s penal code and the requested state’s penal code, then you can

extradite. But there is no duty to extradite when there is no extradition treaty;

that’s a rule. So in the example I gave you, if you have hot pursuit and somewhere

in the high seas, you ran out of gasoline. And the person being pursued landed in

the territory of Malaysia, what would you do? If there is an extradition treaty

between the Philippines and Malaysia, resort to the extradition treaty. While I said

that; that there’s a rule that if there is no extradition treaty then there is no duty to

extradite – even if there is a treaty, however, but the crime committed is one of

political complexion, like rebellion or treason, then there is a basis not to extradite.

That was the case of Dougherty: there was an Irish Republican Army member in the

80’s who escaped a Belfast prison after having been convicted by a Northern Irish

court for murder, but you know that the IRA, was a rebel group in Ireland at the

time. And so if it is a political offense, then there is no basis to extradite. Is there an

exception to the exception? Yes. That was asked in the bar because I found out that

it was in Justice Nachura’s reviewer: attentat clause. What is an attentat clause? If

the person or persons assassinated are heads of state or even relatives of heads of

state, then the political complexion doctrine will not apply.

Let’s go to the Philippines. What’s our experience on jurisdiction? A lot, thanks to

Mark Jimenez. Mark Jimenez: the saga. There’s only one story to remember. Mark

Jimenez was a person who found a very lucrative career in North America, but for

some reason he got into trouble. Apparently, with regard to donations of money

during the democratic campaigns, and he was sued in the US for fraud in relation to

tax liabilities. And in Florida, there was a criminal court that wanted to reach him,

but Mark Jimenez have already fled, and came back to the Philippines. But Mark

Jimenez was the subject of an extradition request in the US, pursuant to the US-RP

Extradition Treaty and there were at least three important cases related to him. So

the story was that, Mark Jimenez was demanding information, meaning he wanted

all the documents supplied to him when the US requested the DFA to extradite Mark

Jimenez. The DFA Secretary, at that time did not want to release the documents.

Mark Jimenez was saying, “I’m the subject of a request for extradition and I must be

entitled to due process. Now, in the Motion for Reconsideration there, the SC said,

Mark Jimenez is not entitled to the documents, as early as the evaluation stage; that

is too premature; it’s still being subject to evaluation by the appropriate institution –

the DFA in relation to the DOJ. If, however, the case is now brought before the RTC,

then you now have an extradition court before whom you can seek a remedy to

produce the documents. So Mark Jimenez was denied access to the document at the

time. The next stage was, after the case have been filed, then Mark Jimenez now

seeks bail. He claims that he is entitled to bail in an extradition case. Again, we are

found with a novel question: is there a right to bail in an extradition case? The

question of provisional arrest was another decision of the court, not involving Mark

Jimenez, but the second Mark Jimenez Saga was on bail. Does Mark Jimenez have

the right to apply for bail? In that first decision, the SC said that Mark Jimenez does

not have the right; that is in the case of Government of the US v. Purganan. And

now, the SC in that case said that extradition is neither criminal, civil nor

administrative; it is sui generis – a class by itself. The right to bail, under the

Constitution would not apply to Jimenez, because bail is one which is considered in

light of a criminal case. And here, the criminal case was not filed in the Philippines,

but in Florida. What the RTC Extradition Court would entertain is whether or not

Jimenez should be returned to Florida. Now that is going to change: what you really

have to remember is the case of Purganan, being overturned by the case of Gov’t of

HK v. Olalia: this is now the most recent ruling, in the year 2007. And I quote here, a

portion of the SC decision which changes it’s perspective with regard to an

application for bail in an extradition proceeding. It says, “the modern trend in public

international law is the primacy placed on the worth of an individual person and the

sanctity of human rights, which extradition is not a criminal proceeding, it is

characterized by the following: (a) it entails deprivation of liberty on the part of the

extradite, and (b) the means employed to attain the purpose of extradition is also

the machinery of criminal law. While our extradition law does not provide for the

grant of bail, the right to due process, however, is available. So bail was considered

as an adjunct on the right to due process; the extraditee, however, must establish

clear and convincing proof that s/he is not a flight risk, and will abide with all the

orders of the extradition court. So the new ruling is Gov’t of HK v. Olalia.

Now let’s go to aircraft. What if cases happen on board aircraft...and you’ve seen

this in terrorist cases. 9/11/01 was a case of aircraft terrorist activities. There is an

early convention here, the Tokyo Convention which says that for purposes of

extradition, a crime may be considered as having been committed in the state of

registry of the aircraft, but the jurisdiction in another state may be had if the

offense: (a) has an effect in its territory, (b) has been committed by or against its

national or permanent resident therein, (c) against its national security, (d) when it

relates to a breach of its rules on national flight, (e) is a subject of an exercise of

jurisdiction and necessary to ensure the observance of an obligation of such state

under multilateral agreement – what is really being told us in this enumeration: you

have so many remedies, name it and you have it. You have passengers there from

different countries, the plane is registered in Japan but it is in the NAIA; it was

bombed because there was a threat to the USA to released certain prisoners from

Guantanamo Bay, so you can have so many remedies there. And that is to make

sure that you are able to address terrorist activities.

So, military bases are also a reason why the host state may not want to exercise

jurisdiction over certain personnel, and this has happened in the past with the

former military bases agreement.

Now on civil jurisdiction, there is one concept that I want you to remember, and it is

very popular in commercial transactions called the Anti-Trust Law. The Anti-Trust

Law is very simple and it has all the elements of a Private International Law

problem. See, the US has two sets of laws – the Sherman Act, and the Clayton Act,

intended to protect their companies, their citizens, who are running companies

abroad, who will suffer, let’s say, discrimination in economic treatment or activities.

So if in Japan, there are about 100 US companies operating, and suddenly there are

rules and regulations which affects the equal treatment of companies, whether

foreign or national companies there, then the distinction becomes a basis for a so-

called discriminatory action against the Japanese government, if it had favoured

local companies over foreign corporations, particularly Americans. That is what we

mean when we say, “here is a law in the US that reaches out an act done outside

the US, but because it involves its citizens, would now put a sanction on the

perpetrators of that policy.” How will the US do that? Well, perhaps what the US

would do is to look for assets of that company that had discriminated against their

corporations in Japan.

Now let me go to another concept. If a state wants to acquire jurisdiction, it may

also say that, “we are not going to exercise jurisdiction.” When you say not exercise

jurisdiction, it means the state will not go after certain persons either because there

is a customary rule on that or there is a treaty that will prevent the state from doing

so. So there is an obligation in international law, either arising out of a treaty or out

of custom. And this is what we call immunity from jurisdiction. The closest, I think,

concept that I can equate this with in domestic law is what you have in the

constitution under article sixteen, section three: “The State may not be sued

without its consent.” This is the principle of state immunity. Whatever case law you

have studied in political law on (domestic) state immunity would also be beneficial

in understanding the concept of state immunity in international law. So let’s go to

this more specifically. The first distinction you would have to make is between

immunity of the state and the act of state theory. What is the distinction? Well,

really, immunity of state is a sub-theory or sub-concept in the act of state theory.

So let’s better define act of state. Act of state simply means that the act of the state

carried out within its own territory cannot be challenged in the courts of other

states. So, assuming the Philippines expropriated the NAIA, as it did, and decided to

take over all operations, and it so happened that there’s a foreign corporation

whose interests are violated by that expropriation. The principle of immunity or act

of state says, theoretically, the act of the government of the Philippines cannot be

questioned by the aggrieved party in its court of jurisdiction. Why? The reason is

political. Generally, it is political; that the courts should not embarrass the executive

in this conduct of foreign relations by questioning the acts of foreign states. That’s

the reason; very pragmatic, but if you sit there as president of the foreign

government whose corporation has been aggrieved, it is very difficult to close your

eyes on that. So, what is the remedy there? As we shall see, the way to protect

investors now is to enter into some kind of bilateral treaty so that the investors of

the state seeking protection for their investments could rely upon the tenor of a

bilateral investment treaty where one of the provisions may include settlement of

disputes and obligations incurred by the host state as against the investors of the

other trading partner.

Now let’s look at the concept of immunity. There’s this concept of absolute

immunity, and this is rarely used now. The more relevant concept is restrictive

immunity of states, and many states have reconsidered a very absolute disposition.

Now, in a restrictive concept of immunity, the questions, basically that you will ask

are simple: is it one which is done pursuant to its public function? jure imperii. If so,

then you are immune. But if it is one that is done jure gestionis - in pursuit of a

private act, and does not have anything to do with official acts, then it is not going

to be immune from the exercise of jurisdiction.

Now some case law, this one is Canadian: The Government of the Democratic

Republic of Congo. Now in this case, Congo, as a government, decided to hire the

services of a Canadian architect and the said architect is a private citizen, and for

some reason, he was not paid his fees by the Congo government. So, he sued the

Congo government. The question was, can he do that? Well, the ruling here by the

Canadian SC was that the entry by Congo to a contract with the Canadian for

purposes of sketching a pavilion is a public act; so it all boils down to that – consider

whether it is public or a purely private matter. What about... Trendex Trading: The

issuance of a letter of credit is purely commercial, and if there is any defect in the

transaction, that would be the basis for suing, even the Central Bank of Nigeria for

purposes of suit. In the Philippines, we have some case law. Let me cite here the

case of Guinto: in the said case, the act of soliciting bids is interpreted to mean of a

proprietary character. I think there was an earlier case that came out in the bar; this

is the case of Sanders v. Veridiano (GR L-46930, June 10, 1988) well, this has

something to do with diplomatic immunity and I will treat this later on in light of

diplomatic immunity.

Let’s go to Pinochet. There is a very famous case involving a leader; a former leader

of Chile, Pinochet. I call him a classmate of Marcos, not because he graduated from

the other school in Diliman, but because he was a leader of a regime, just about the

same time that Marcos was in power in this country during the martial law period.

Pinochet ruled with a mailed-fist policy; he was a former general turned leader, and

he was engaged in a policy called operativo condor. Operativo condor was a very

systematic and deliberate policy of certain Latin American countries to go after that

we call “progressive-minded” people or “leftist groups” – not too different from

what we are experiencing in our country. But, Pinochet, in order to quell the

opposition to him, systematically tortured and kidnapped the opposition. And that

was in pursuit of a governmental policy that was being done not just in Chile, but

also in Argentina, Paraguay, and other countries in South America. What happened

was that after he finished his term, he finally decided to go into private life. But one

time, he was seeking medical attention in Great Britain, and when the Spaniards

(and when I say Spaniards, I mean Spanish citizens who at one time may had lived

or had relatives in Chile during the Pinochet Regime) learned that he was in Britain,

they filed a complaint against Pinochet. The case was filed in a Spanish court, which

ordered the arrest of Pinochet. A provisional arrest was issued by a London

Magistrate, but this was going to be reversed. Pinochet argues that he was immune

from suit because he committed those acts deliberately in pursuance of a public

policy act – so it must be official. The case did not finish in UK because what Chile

did was this: Chile decided to invoke immunity not for Pinochet but for Chile itself

and the Government of Chile intervened to assert its own interests, and the right to

settle the matter in Chile -but that was done to assert the sovereignty of Chile; that

they would have the sovereign right to prosecute. That happened, and Pinochet was

returned (to Chile) and was actually sanctioned.

Now in a case like this there are other remedies that may exist. For example,

Pinochet may be tried in his own country; or in any other country that asserts

jurisdiction provided Chile waives its immunity; and this time, it can happen before

the International Criminal Courts; or before a specially-constituted International

court, a tribunal like the UN Tribunal that is now happening in Cambodia to try the

Pol Pot Leaders.

(1:17:34)

Let me go to Diplomatic Immunity. If you look at the concept of immunity, one of

the most important sources of immunity is diplomatic matters. There three

conventions of interests here, governing different categories of officials: (1) Vienna

Convention on Diplomatic Relations: it is a codification of customary international

law on the matter of diplomats. (2) Vienna Convention Consular Relations: what’s

the difference between diplomat and consular is that the consular is the one that

issues Visas or even attend to commercial matters and the political type of activity

goes to the ambassador, who belongs to the Vienna Convention on Diplomatic

Relations. (3) Privileges and Immunities of the UN.

Now, you might be wondering, what happens to an individual now? Does an

individual who was victimized by members of the Diplomatic Corps or Consular

Relations or the UN have any remedy at all? What will happen to them if diplomatic

immunity is invoked? That’s not really hopeless. Why? (1) That person, aggrieved by

the act of a diplomat who is actually hosted by the aggrieved person’s home state

may actually sue that diplomat in the diplomat’s home state (2) When the home

State of that diplomat waives Diplomatic Immunity (3) Without proceeding, civilly or

criminally, there could be a report to the embassy, not just here but even abroad, of

the state of nationality of that person and declare the diplomat to be persona non

grata and that group of diplomats may now be sent back. See, when a diplomat

enters another country, he has to show his credentials, and it’s up to the Executive

of the host state to expel the diplomat from the host state for whatever reason and

especially if there are violations like this.

The Case Concerning United States Diplomatic and Consular Staff in Tehran (US v.

Iran)

(http://www.haguejusticeportal.net/eCache/DEF/6/249.TGFuZz1FTg.html)

This is a landmark case involving progressive students from Iran. What happened

here was that a group of militant students, after the fall to the Shah and when the

Ayatollah Khomeini returned from exile from France, decided to go after the US

Embassy; they violated the US Embassy. The question that was asked is what is

now the diplomatic protection of the embassy? It was a very sensitive matter at the

time. And what the Ayatollah Khomeini did was instead of stopping the students, he

encouraged them. And so when the violations occurred, the victims decided to raise

an issue with Iran and this landed in the ICJ. So, there was responsibility on the part

of the Ayatollah. The Ayatollah provided protection to the students rather that

prevent the harm to the members of the Diplomatic Corps of the US. There was

state responsibility there.

In the notes that you will receive, I made a topical discussion of the various

privileges and immunities of diplomats as distinguished from consular relations

officers and it is summed up in an outline form to make it easier to you to refer and

it will cover areas such as embassy premises: What’s the extent of the embassy

premises, consular offices, properties belonging to the officers of the diplomatic

corps and the diplomatic staff and also with regard to the diplomatic bag or

diplomatic pouch. Well, the standing rule in most of these privileges and immunities

is that there is immunity in the sense that the courts will not necessarily take action

in matters of searches and seizures but there are some limitations for as long as

they are for official use. So please just take note of that. I’d like to concentrate on

case law. We have a manual on immunities and privileges prepared by the DFA.

That is like the bible for guidance of our offices, so you will find in the summary

also, the references on immunities and privileges.

Now let’s go to some Philippine decisions on diplomats and consuls. You have the

case of the Holy See v. Rosario (G.R. No. 101949 December 1, 1994)This is about a

Filipino couple who bought a piece of land from the Apostolic Nunciature. The

Apostolic Nunciature is like the embassy of the Vatican here in the Philippines. As

you know, the Vatican is considered to be a state under International law and in the

Vin de Honor that is usually done every year. The Dean of the diplomatic corps is

the Papal Nunciature who is like the ambassador of the Pope to the Philippines.

Anyway, they have a legation here, a site for the Papal Nunciature and one of the

plans for this property that was eventually sold to a Filipino couple was a future site

for the Apostolic Nunciature. But when the Vatican saw the difficulty of having to

use this property, and the fact that there were already squatters, they decided to

sell. Now one of the conditions in the sale was for the Papal Nunciature to remove

the squatters. And when this did not happen, the couple decided to sue the Holy

See – that’s why it’s entitled Holy See. The Holy See decided to invoke immunity

and the SC said yes, Holy See was immune from suit and the annulment suit cannot

prosper against the Holy See.

Minucher v. CA (G.R. No. 142396 February 11, 2003) This was a case involving a

diplomatic staff in the US Embassy here in the Philippines, who actually came from

the US Drug Enforcement Administration of the US Department of Justice. You see,

this person who was a member of the US Drug Enforcement unit of the US

Department of Justice did not enjoy any official ranking in the diplomatic or even the

consular ranks. And he was really just like a person who popped out here at the

embassy and was doing some special mission; and it so happens that he was after

some person named Minucher. Minucher was a former Labor Attaché of Iran to the

Philippines under the regime of the Shah at the time. And when the Shah went into

exile Minucher decided to stay in the Philippines. But for some reason, he was being

monitored by the US Drug Enforcement Administration and there were a number of

actions that were targeting or targeted Minucher and these were upon the

instigation of the alleged US diplomatic staff from the Drug Enforcement

Administration. There was no proof that he acted in an official capacity and as a

result of that, a suit was filed by Minucher against the said diplomatic staff. The SC

ruled that in the absence of proof that he acted in an official capacity, that person

would be liable for tortuous conduct.

The next series of cases would revolve around international organizations and the

SC rulings are very consistent on these when it comes to international

organizations. When you look at the status of international organizations, the key

here is simple; find out whether there is a host agreement between the organization

and the government that hosts the organization because the immunity would

normally be contained in that host agreement and in almost all instances, you

would have that. And that is what happened to this series of cases.

One case (Department of Foreign Affairs vs. NLRC G.R. No. 113191, 18 September

1996) involved an illegal dismissal suit against the Asian Development Bank as an

institution and this was decided by the SC as not allowable because it is a suit

against the ADB and the ADB has a host agreement with the Philippine Government.

Besides, in the ADB, there is a system of administrative procedures if you want to

question the actions of the ADB; they have a tribunal.

The next one is Lasco v. UN Revolving Fund. (G.R. Nos. 109095-109107 February

23, 1995) There is an illegal dismissal suit filed against the UN Revolving Fund and

the concern here was on the basis of the UN Revolving Fund as an international

organization enjoying immunity and here again, the SC cited that immunity

pursuant to the host agreement.

The other case involves the World Health Organization. (WHO v Aquino: G.R. No. L-

35131 November 29, 1972) This case involves the search of a diplomat. You know if

you go to immigration lines on your way back from a trip abroad, there is a

diplomatic line. And this person, when he brought in crates, he said that as a WHO

diplomat, he should be exempt from search. And this is one of the privileges which

you have; that when you bring in something for official purposes as part of your

mission activities, then there is immunity from search. The problem is; what if you

brought in something that might be suspicious? You know, we have very intelligent

dogs in the airport that can sense, let’s say, drugs or other substances. And if you

are detected that way, will there be basis for your diplomatic bag or your crates to

be searched? Now, when I was trying to search for this answer, what was actually

offered by some commentators was that when there is suspicion that the diplomatic

bag or crate contains something that might be contrary to the laws of the receiving

state, then the proper procedure was to call the embassy and to ask for possible

assistance from the embassy so that they can witness the search. Otherwise, it

might create a problem for the host government.

The next case is the International Catholic Immigration Commission v. Calleja. (G.R.

No. 85750 September 28, 1990) This was about a petition for certification election

of the employees of ICIC. This actually went to the bureau of labor relations, in all

likelihood, because it’s a petition for certification election. And the SC again

disallowed a petition for certification election on the basis of immunity.

Finally, we have the case of Liang v People. (G.R. No. 125865 January 28, 2000) This

is a different case because while it involved Asian Development Bank employees,

the problem was not, however one which is of an official character. When I say of an

official character, the basis for the criminal case here filed by one ADB employee

against another ADB employee was slander. And slander may prosper here before a

lower court because it was not done in the exercise of an official function. Besides,

the respondent here who is also an ADB employee, cannot invoke the immunity of

the ADB as an institution; it is one that inheres in the ADB as an institution. And so

the criminal case was allowed to proceed against him.

We have seen areas not subject to the jurisdiction of states: the high seas, the deep

sea bed, the outer space. Let me clarify outer space because this was asked in the

bar one time. What is outer space? How do you measure where outer space begins

and where the airspace ends? That is the problem here. When you’re asked for a

definition of the extent of outer space, we will see some sort of guide, and that is

the concept of geostationary orbit. What do you mean by geostationary orbit? Here.

Well, it means that there is no universally accepted definition. It’s very difficult to

measure outer space metes and bounds. But there are some who have offered

some sort of tests: Some have identified an arbitrary height of about 96 to 110

kilometers from the equator, others would say the limit of an air flight, or others

would say the limit of the atmosphere. So, if you look at the tests offered, there are

very tentative, and the way to answer this is just to enumerate what some

commentators have said about the possible metes and bounds.

The other thing is the so-called obligations. See, when somebody sends out to outer

space objects, there are questions about responsibilities. While it is true the outer

space is for the benefit of all mankind, and it is not within the jurisdiction of any

state at all -not exclusively, there are responsibilities assumed when a state sends

out objects to outer space. As a principle, the outer space is considered the

province of all mankind. It is not subject to national appropriation by any state. You

cannot sent or install nuclear weapons in any object within the outer space. The

astronauts who are sent are called envoys of mankind, which means they are sent

there on behalf of the rest of mankind and if that astronaut now encounters some

problems in outer space and on his way back, when that person is found within your

territory, there is an obligation on your part to render assistance in case of an

emergency. That is the duty of any state which would have custody over the

astronaut.

The other thing is responsibility for national activities in outer space. You cannot

spy, you cannot use the objects sent to outer space for communication to spy on

other countries. There are also limits of exercise of sovereignty. And finally, if you

sent objects out in outer space and that object goes back to your country, or it goes

back not in the country of origin but in another state, and it causes injury or

damage, the country that sent out that object will be absolutely made liable. It is a

very strict test of liability; absolute liability. And that has been tested in cases

where Canada suffered some damages as a result of Skylab’s return at one point.

And there was payment made here; it was a subject of arbitration.

So, if you’re just wondering, is there an agreement on this? Yes. There is the 1967

Treaty on Principles Governing the Activities of States in the Exploration and Use of

Outer Space, Including the Moon and Other Celestial Bodies; next is the 1972

Convention on International Liability for Damage Caused by Space Objects. So there

are international conventions that you can cite.

State Responsibility

Now, the last big chapter, I say last big chapter because the next one is very short,

that is on dispute settlement. But this one is the last big chapter, and as I said, one

of the most important chapters in international law: State Responsibility.

There is a completed work by the International Law Commission which is in charge

of codifying developments in international law. The work is called the Articles on

State Responsibility. That is already done, and I think it should be up for signature

by the states, but it is the most comprehensive attempt right now to put together

the principles on state responsibility. So, I have tried my best to cull out some of

these principles discussed in the articles and supply you with the most relevant

aspect of the articles.

There is a question about criminal responsibility of states. Can states be criminally

responsible? What is the example that you can cite? Corporations. Can corporations

be criminally responsible? Well, through it’s Board of Directors, right? Now that’s

the problem in international law; because this is a very debatable issue. One, you

cannot imprison the state. But the state, as we said, acts through state agents. You

may impute certain acts of state agents, especially if they are official acts,

eventually to the state. But as I said, it is a highly debatable issue, but from the

point of view of liability, we use the term international responsibility for purposes of

imputing certain obligations to those who may represent a state. So what is the

general principle surrounding state responsibility? It’s very simple. It is concerned

with illegal acts committed by states or their state agents, and the need to

compensate the aggrieved parties: that is the concept of state responsibilities.

Proceed against the illegal acts and seek reparations or compensation.

Now let me introduce the theoretical part of this which says that strictly speaking,

state responsibility is defined as an internationally wrongful act or omission. Just like

in ordinary criminal law, there might be a violation of a positive act or an omission:

the same is true with state responsibility. What are some examples? And this is best

that you might understand this: (1) if there is a breach of a treaty. That will give rise

to an internationally-wrongful act. (2) if I bomb the territory or the embassy of one

state, if I destroy the property of one state, or if I hurt the diplomat of one state; all

these would be grounds for what you call state responsibility.

The other matter is on reparations. What is the concept of reparations? It may

consist of two things: First is restitution. Restitution simply means that you restore

the property. What if the property can no longer be restored? Then, Damages.

Now when you establish state responsibility, there are certain requisites, and this is

where much of the case law comes in. The requisites are as follows: (1) You must be

able to attribute an act to the state; that is the concept of imputation or attribution

of an act to the state. (2) That there is a breach of an international obligation. What

do we recall by now? What are the sources of obligations in international law? There

is a violation of a treaty, a violation of a custom, a violation of a general principle of

international law. If you can point to any of these, then there is a breach of an

international obligation. Another way of looking at it is that when an injury is caused

to the state itself, the territory, or it may be an organ of the state, or it may be an

agent of the state, everything related to an official institution or official persons; all

of these are considered as a direct injury to the state. Another category of injury is

indirect, because the injury is caused to the person or to the property of the

national of another state. So when a citizen of the Philippines is abused or tortured

in another state, it is an indirect injury to the state. So, the death of a citizen is an

indirect injury to that person’s state; but if that person is a member of the

diplomatic corps of its state, his death may be considered as a direct injury to the

State.

So let’s look at some examples here of imputability of direct responsibility because

of actions affecting state organs. If state organs were the ones who committed the

violation, then it would be direct responsibility of the state. On the other hand, if

state organs were the victims, then there is also a cause for direct responsibility as

against another state to injure our state organs. What are state organs? First, the

executive branch. Let’s take an example. If the executive branch of our government

failed to take the appropriate steps to punish culprits who are police officers, for

example, as a result of which, the police officers were not able to attend to a very

serious investigation of an incident involving a foreigner. That would be, effectively,

a responsibility of the government. The other one is the legislature. If a treaty

requires the incorporation of certain rules in domestic law, and our legislature does

not act on it, then it would entail responsibility for breach of our treaty

commitments. The other more popular case is the judiciary. And this comes closer

to the concept of denial of justice which many of the international law cases have

really focused on. For example, if a court commits errors in the application and

interpretation of treaties and it fails to give effect to a treaty or is unable to do so

because the necessary change or addition to the national law has not been made,

this is going to be a violation of our treaty commitments. What about local

governments? Yes. If they are remiss to their duties to certain foreigners in this

regard, their act may be imputable to the government.

There are certain instances that will have to be studied in the next few lines and it is

with regard to groups or persons authorized by the state. See, if a person does not

necessarily belong to the hierarchy but for some reason, a civilian is authorized by

the state, then there will be responsibility to the state also because that state has

given apparent authority to a person. Now, what is the rule if state organs commit

ultra-vires acts? Will the ultra-vires acts be bases to impute responsibility to the so-

called state? The rule that has been established is this: that ultra-vires acts of state

organs and officials are considered as acts of state even if these organs or officials

went beyond their competence. What is the proof necessary? Just show that there

was apparent proof given and that would be sufficient. One of the most common

examples is a police officer in uniform who acted, apparently, in an official capacity

but actually takes revenge on another person. See, by using the uniform, by using

the fact that he purports himself to be a police officer, that would have been basis

to say that there is an apparent authority but the act is ultra-vires.

There are some very old decisions of the commissions here, like in the Claire Claim

case (5 RIAA 516) as early as 1929: there was a French national who was killed in

Mexico by Mexican forces after failing to pay ransom money. The objective

responsibility in this case as identified by the courts wherein the military officers

conducted themselves as officers in the brigade, the officers here who were tasked

to actually assist in recovering the French national was really unable to address the

situation which led to the death of a foreign national. And it’s unfortunate that if

let’s say the perpetrators of the offense were those who were actually asked to

actually relieve the French national, then that is a direct responsibility on the state.

Now there is a different situation here; In the Youmans Case (4 RIAA 110), the

government sent certain soldiers to protect aliens who were being threatened by

rioters in one part of the country. What happened was that the soldiers who were

given very specific orders to protect, instead inflicted personal injuries on the aliens;

would that be basis to bind the government? This time, we distinguish. It will not

bind the government because it gave specific orders to protect and not to injure the

aliens.

The more challenging issue is private citizens and rebels. As a rule, what you have

to remember is that the acts of a private citizen are not necessarily imputable to a

state. For example, there is a riot and an alien is killed. Do you remember EDSA

Tres? There were journalists and aliens who were killed as a result of EDSA Tres?

The question that was raised was who is going to be responsible for the death of

some of these people? Well, the rule is that the state must prove itself in a situation

like that to be exonerated from liability by showing that it did everything within its

means to quell the violence. Only then would it be able to exonerate itself. What

about rebels? Are the act of rebels going to be imputed to the government? Well, in

principle, the duty of a state in a situation where there is an insurrection within its

territory is to quell the insurrection or rebellion, and if in the course of doing that,

the rebels commit atrocities against foreigners of aliens, then the acts of the rebels

will not necessarily be imputed to the state for as long as the state has done

everything within its means to protect those aliens; because in the end, it is the

duty of the government to protect every person within its jurisdiction. What if the

rebels emerged to be victorious in the end, and while they were in armed conflict

with the toppled government there were atrocities committed by the rebels? Those

acts will now be imputed to the rebel movement; they cannot use any excuse that

they were only a rebel movement when those atrocities were committed. Those

would now be an act of that new government.

What is the minimum duty of a state in situations involving extra-legal killings? In

the Velasquez case of the Inter-American Court of Human Rights (1988 Ser. C Num.

4), the duty was very simple: to investigate. You must at least investigate, and

when you are able to identify, prosecute; and if you are able to convict, compensate

the victim. So there must be consistent result.

Now there is an old case, the Home Missionary Society Case, and this was in the

context of Sierra Leone during the rebellion in Sierra Leone. There was a religious

society which suffered losses. They went into the area knowing that there is an on-

going rebellion, they have been warned, but they insisted on going to the rebellion

zone. It was held here that there could not be compensation because there was

assumption of risk on the part of those who knew about the rebellion and even sent

their members.

Another source of state responsibility is the denial of justice theory. When is there

denial of justice? This is summed up in the case of Chattin (4 UN RIAA 282) where it

was seen that the arrest, trial and conviction of an American national in Mexico was

below the minimum standard of due process that most states abide by. That is a

violation.

So, there was a consolidation of the principles in the so-called Harvard Research

Draft Defining Denial of Justice, and it goes this way: they say that it is an

unwarranted delay or an obstruction of access to courts, gross deficiency in the

administration of judicial or remedial process, failure to provide those guaranteed

which are generally considered as indispensable to the proper administration of

justice, or a manifestly unjust judgement or it maybe an error of a national court

which does not produce manifest injustice or an error –its possible that the court

may commit an error but if it is not manifest, which means there is no grave abuse

of discretion, there is no corruption, that kind of error however, may not result to a

denial of justice. It’s just as simple as, let’s say a court has a difference of opinion

on the matter; a purely interpretative difference is not the kind of manifest injustice

that we are looking at. It is one that is unwarranted delay or obstruction of access to

courts, that’s the kind of denial of justice.

Now there is in the view of state responsibility, a whole body of rules concerning

human rights protection. If you look at the fundamental principles of human rights,

it’s very simple: a person enjoys human rights anywhere and everywhere a person

is, and every state has a duty to protect the human rights of any person within its

jurisdiction. It’s that simple. The whole body of human rights law, however, has

been the subject of intensive intellectual and scholarly inquiries because human

rights has become a very revolutionary concept in international law. Why is that so?

Because when we were discussing persons in international law, we were talking

about the concept of responsibility by states but now you have responsibility of

states not just to each other, but to persons and a person is then a beneficiary of

human rights instruments. In that sense that person is an object. But we already

qualified and said, there is the possibility of a person now becoming a subject of

international law as in the case of making a person responsible for human rights

violation and also for crimes against humanity in the context of international

criminal law, and a person may now be brought to court.

But if you look at the enforcement mechanisms in human rights there are so many.

You can look at gender issues: there is the Convention on the Elimination of

Discrimination Against Women. More recently, the president signed the Magna

Carta for Women. You have the Convention on the Rights of the Child; you have the

convention against torture; you have the convention for the protection of migrant

workers; so we have so many of these. But what is the value of human rights

protection today? I think what you have to remember here is the fact that provisions

of human rights instruments like civil political, are almost contained in many

statutes in the domestic level and in the constitution. Therefore, they are also

considered as self-executing documents. You don’t need an implementing

legislation. When we sign a universal declaration, when we acceded to the civil

political rights covenants, these are self-executing measures. But the difference is

in the enforcement because now, as a result of human rights law instruments, a

person whose human rights has been violated at the domestic level can go up at a

higher level to complain against our government. So you have people whose

families, let’s say, have been lost as a result of extra-judicial killings and

disappearances, may now resort to a tribunal or a venue outside our courts. They

may now do that. Now this is the value of a human rights instrument. Why is it that

we have been pressured to abolish the death penalty? Because in the International

Human Rights Covenant on Human Rights Protocol Two, there is a protocol that

promotes the abolition of the death penalty. That is where pressure comes in.

So you have other covenants like economic, social, cultural rights, but when you

distinguish between civil political rights and economic socio-cultural rights

covenants, the latter tend to be more based on budget, based on appropriation. So

when you look at the context of economic socio-cultural rights,they would require

budgetary application; the right to work, the right to housing –they are not

automatic. Unlike the freedom of expression, the freedom of religion, they are all

self-executing. But if I want work, it might require resources so they are not self-

executing in that sense.

Now let me introduce another concept on human rights protection, and that is what

we call the international minimum standard of protection and the national

treatment clause. If you look at these principles, they are really principles that

relate to the protection of aliens also. And the background is more on investment

law. National treatment and minimum standard of protection really pertain to the

protection of the investment of foreigners in this country. It has a long history in

colonization. It was intended to protect the aliens who have been left by the colonial

rulers in their former colonial states and the only guarantee they have for protection

is to establish certain rules that aliens who remain within the territory of a former

colony could be protected in their investments by being treated better, but not

lesser than citizens of the former colony. That is the international minimum

standard of protection. The principle of national treatment simply means that

whatever benefit you extend to your locals must also be extended to foreigners in

that regard. That is better appreciated in the context of international investment

and economic law.

We already have a number of cases in the Philippines applying human rights: you

have the case of Marcos v. Manglapus, about the right to return, you remember that

in bill of rights, and you also have the principle of equal pay for equal work in the

International School Alliance case. (G.R. No. 128845 June 1, 2000)

Now I mentioned property rights for aliens. One of the more controversial issue is

nationalization of industries, which happens on many parts of the world like

Venezuela where you have a very anti-American government in the case of Julio

Chavez , and he have expropriated properties left and right belonging to foreigners

particularly Americans. So there have been debates on how much do you pay if

there is expropriation of foreign-owned properties. In the past, the debate was

about the so-called communist parties in one hand who did not want to pay at all on

the basis of socialist principles and the other is the allied countries who respect

property rights and therefore demands prompt, adequate and effective

compensation. Today, the mode that has been used to protect investors is through

bilateral investment treaties because in a bilateral investment treaty, you are able

to provide standards on how to protect each other’s investors inside the territories

of both states.

Now let me go to environmental law. Environmental law has now become a big

factor in international relations. There is an on-going climate change conference to

look into the climate change. And the very principle of environmental protection

began with a very important decision. This is the case of Trail Smelter Arbitration. It

is a very simple case: There is a smelting plant in Canada that was disposing certain

waste products which were affecting the US Washington State across the border,

and because of the damage caused, the Canadian government brought the US

authorities to an arbitration. The most important aspect of the arbitration is this

principle: that the state is bound to protect other states against injurious acts of

individuals from within its jurisdiction. So a state can never be allowed to be used to

violate the rights of another state, and more particularly in the concept of

environment, you cannot allow your territory to be used in a way that will have a

potential harm on another state. Now in environmental law, this case has now been

used internationally as basis for responsibility for environmental harm.

Now, there is a series of documents on environmental law I want to emphasize; one

treaty, the Basil Convention, because this figured in the case of the JPEPA, Japan-

Philippines Economic Partnership Agreement. There was one provision there that

lifts the tariff schedule which means it does not impose any form of tariffs anymore

for Japanese products entering the Philippines as a result of the treaty, which may

be waste products. And the suspicion of those who opposed JPEPA initially is that

this might be the backdoor for entry of hazardous waste, and there is a 1989 Basil

Convention on the Trans-boundary movement of hazardous waste, that says that

there shall not be any movement of these products into the territories of any state.

Now when we signed the JPEPA, the tariff schedule was made to zero, we were not

going to impose any tariff anymore to these products. What if these products turn

out to be hazardous? That’s the question of environmentalists. Now, if there is

anything that may be asked about environmental law, just focus on the principle

called the precautionary principle. What is the precautionary principle in

environmental law? It really is an articulation of the Trail Smelter Arbitration, which

says that the obligation here is for states to abstain from conduct that carries a

significant risk of harm, and that it is an obligation that has several procedural

companion elements: First, the duty of prior information and also consultation – so

there is a duty to inform if there is a potential harm that might affect your neighbor

because of acts within your territory. Now, this is considered as customary

international law today, also as state claim. Let me refresh your memory: we said

that under the law on responsibility, if a citizen of one country is injured, this is an

indirect responsibility or if you injure the citizen of another state, there is indirect

state responsibility because the state, in the end, will also be injured. The principle

goes that every state has a duty to protect its nationals; that’s why you should not

be ashamed to ask for help from embassy officials when you’re abroad, because

they are duty-bound to assist you in this regard. Now, the state should establish

however, legal interest. And how do you establish that? Show the nationality. And I

think, if there is any important matter to consider here, there are some cases which

I want to point out for you which are relevant in order to establish this bond. This is

what we call establishing the bond of nationality.

Now what are the forms of representation or protection? One is the possibility of a

protest; you may file a protest, you may request for an inquiry. This happened in

the case of Flor Contemplacion. You may also want to negotiate as in the case of

Angelo dela Cruz. We had to negotiate. In fact, we had to pull out of the coalition of

the willing, and the US got so mad at us at that time. And finally, you may want to

bring the case to an arbitration or to a court; those are the possibilities. In the case

of our OFWs, we have been trying to negotiate, especially for those who may have

been convicted. We try to seek for clemency; those are some of the actions we

take.

One of the preconditions for a state to file a claim on behalf of a citizen is what we

call exhaustion of local remedies. Before you can utilize state claim principles, you

must exhaust local remedies. That is a fundamental principle in state claim. If we

say that a person has a right to seek assistance from it’s state when he or she is

injured, can that person also waive that remedy? Now that is the case of Calvo; the

famous Calvo Clause. This is a phenomenon that happened in South America where

many South American countries felt that in order to protect also their own interests

in investment agreements, what the South American countries did who hosted

some investors was to compel them to sign a clause called the Calvo clause in an

economic development or an internationalized contract. What does the Calvo

Clause contain? It is a clause which deprives the party subscribing to the clause of

the right to submit any claims on the contract to an international commission, so it

is practically waiving that opportunity for his claim to be resolved with the

assistance of a commission. This was questioned by the US, because that is the

right on the part of the state; to waive or not. That while the citizen may sign that, it

will not affect the duty of the state to protect him or her.

Now, the famous case on the bond of nationality of persons is the cause of

Nottebohm. (1955 I.C.J. 4) Nottebohm was a German who had stayed in Guatemala

for so many years, and in fact, have moved there even before the war. But because

he was German, while the war was progressing in Europe, he became a suspect for

purposes of conscription just like the Japanese in the US during WW2. His properties

were being conscripted there because he was German. What did he do? He decided

to apply for Liechtensteinian citizenship. He went to Liechtenstein, a very small

state besides France, and out of convenience was given a citizenship. When he got

this, he went back to Guatemala and told the Guatemalan government that “you

cannot proceed against me anymore because I am now a citizen of Liechtenstein.”

Now, that was ignored by the ICJ which determined his bond of nationality based on

the following circumstances: First, he continued to have ties in Germany, having

and that the circumstances of his acquisition of Liechtensteinian citizenship was so

suspect and was so close to the fact that when his property were being proceeded

against by Guatemala, he decided to get that citizenship. It was obviously a ploy to

prevent his properties from being proceeded against. That is what happened to him.

And so, what the ICJ noted here was that the real and effective nationality test

worked against him because he was really evading conscription because he was

German. Now apply this to the context of a corporation. If it is a corporation, what

you have to remember is the Barcelona Traction Case. In the said case, it was held

that when you now have to determine the nationality of a corporation for purposes

of state claim, the place of incorporation and the location of the registered office

are material elements. And that is what will give you basis in determining

nationality. Also, there is the case of Estonia v. Lithuania and this is with regard how

a state is to determine the bond of nationality when it comes to a corporation.

Now there’s a case here, Banco Nacional de Cuba, this is really an illustration of

what we discussed on the context of act of state doctrine.

Resolution of Disputes in International Law

Okay, let me go to the last chapter, the resolution of disputes in international law.

How are disputes resolved in international law today? First, is the use of force

allowed for purposes of resolving disputes? The answer is qualified. So, the UN

Charter has a principle that prohibits the use of force for aggressive purposes. Even

our constitution prohibits the use of aggressive force. And we say in our declaration

of principles on state policies that we shall not use war as an instrument of national

policy. Aggressive use of force is not allowed in international law. What is allowed?

Defensive force. Self defense is a basic right not only of people but also of states.

The only problem with that is when is it considered self-defense? Because

sometimes, people have argued that there is a concept called pre-emptive self

defense: I strike first because I know that the other party is going to attack me.

That’s a very dangerous theory. So that’s the first thing you have to remember.

The second one is judicial and arbitral settlement; you may want to resort to

arbitration, and the way to do this is to bring your claim before the ICJ. In the ICJ,

there are certain provisions that I want you to be familiar with. For example,

jurisdiction; there is the concept of recognition of compulsory jurisdiction of states,

which means a member must declare in advance that it will recognize the

jurisdiction of the ICJ. So you cannot just drag a state into a dispute without having

to provide this process of compulsory recognition. It is different when it comes to

ordinary cases because you almost always have a remedy. When you are sued, you

have to answer. You cannot say that the SC has no jurisdiction over you. But in the

ICJ, there is the concept of compulsory jurisdiction; that both parties should

recognize compulsory jurisdiction.

The other thing to remember is the bindingness of decisions. In the ICJ, only the

parties are bound by the jurisdiction. There is no rule on precedents. While in the

local courts you cannot ask for advisory opinions, in the ICJ you can ask for advisory

opinions especially when it pertains to the interpretation of a provision in the UN

charter. What about appeal? There is no appeal except to God after that. Is there a

possibility of revision of judgement? Yes. They may revise the judgement, like in the

case of newly discovered evidence. But they must do so within a period of six

months from discovery but not to exceed ten years. So far, these are now the most

important legal questions.

Special Topics

The United Nations; just a few things about the UN, aside from what you have in

your notes, I will emphasize the theory of domestic jurisdiction of states, Art 2 par 7

of the UN charter says, every state must respect the internal or domestic

jurisdiction of other states. Is that pragmatic? Well, in a highly interdependent

world, one cannot close ones eyes to what’s happening to Burma or in Mindanao.

Now there are issues that are outside the jurisdiction states; issues which may be

inquired into. For example, breach of international law, threats to international

peace, gross violation of human rights, issues of self-determination; those are

concerns which may be the basis of inquiry when these things happen within the

jurisdiction of a state. That, so far, is important. Then you have other organs, you

may also want do find out what are the organs of the ICJ; pure memory work.

The next important aspect is the Security Council. There are five permanent

members; US, Russia, France, Great Britain and China, ten non-permanent

members and there is the all-important concept of a veto and a double veto. What’s

a veto and a double veto power? A veto means every permanent member has a

veto on non-procedural issues. If one member in that group does not vote on a non-

procedural issue, that non-procedural issue will not be resolved and cannot move. A

double veto on the other hand simply means that to determine whether a question

is by itself a procedural question, then again any one of the five permanent

members may veto that.

Next important matter is enforcement action and the UN forces. The UN Security

Council is empowered to address threats to peace, breaches of peace and acts of

aggression. There are two basic acts under international law that may be done

under a resolution of the Security Council: those which are non-military in character,

that means, under art 41, there could be a cutting of economic relations, cutting of

communications, cutting of diplomatic relations; these are options. The other one is

military in character, and for those to happen, you need a Security Council

Resolution. And this is one which would be binding upon the members. Can any

state just be pointed to by the Security Council to bring military contingents? No,

you need the consent of every state for that.

Now, let me emphasize something on international economic law. None has been

asked so far on international economic law. What is international economic law?

Well, the closest that you would like to remember about this is the Bretton Woods

system, where after the Second World War, three institutions were set up in Bretton

Woods, New Hampshire in order to have a world economy after the war: the World

Trade Organization, the World Bank, and the International Monetary Fund. The WTO

involves trade in exchange of goods and services; the World Bank is funding

infrastructure programs; the IMF is about the regulation of currency – it’s like the

central bank of all central banks.

There are economic principles that are central to economic law. The principle of

comparative advantage and economies of scale; that in an ideal world, it is

important to have a free exchange of goods and services, and to do that, you must

capitalize on what you are most effective in – that’s the principle of comparative

advantage. The most fundamental norms in economic law are: (1) the most

favoured nation, and the national treatment; I have already explained national

treatment, but let me explain it in this context. In the case of most favoured nation,

it means that it is the obligation to treat that state, its citizens and their goods, no

less favourably than any other state, it’s nationals and their goods. If I extend to

this group of countries zero tariff, then I must also extent zero tariff to the other

members of WTO. (2) there is the principle in economic law called the duty to

refrain from injuring others through economic acts –this is similar to environmental

law, wherein you have a duty to refrain from doing acts that might harm the

environment of a neighboring state. (3) Some of the things that you might

remember in tax law or in tariffs are the duties called counter-veiling or anti-

dumping; these are what we call in economic law as safeguards measures. So,

these are connected, anyway to tax and other related matters. (4) There is the so-

called GSP, which we perhaps no longer share because we have a more developed

economy compared to the so-called poorer countries, but the GSP is really a system

of treating goods free from duties and that is to allow leeway. For a time, our sugar

was receiving this system of preference from the US. (4) There are certain trading

arrangements that you may want to look at but before that, let me mention that if

there is an issue in international law that will involve goods and services, you don’t

go to the ICJ to settle that, rather you go to the dispute-settlement body of the WTO.

If it is between two states and it is generally about the relationship of those two

states in international law political in character, then you go to the ICJ. If it has

something to do with the high seas, the waters, you go to UNCLOS. If its for human

rights protection, you can go to some UN bodies. But if it is about trading goods and

services, you go to the dispute settlement body of the WTO. And later on, if it is

about international criminal law, you go to the International Criminal Court.

Now there are two concepts that I want you to go through in WTO; that is the so-

called free trade area and customs union. If you are asked for an example for free

trade area, you give the AFTA, the ASEAN Free trade area or the North American

Free Trade Area, and if it is the customs union, there is the European Union. I have

explained what the European Union actually does, there is a zero tariff scheme

among its members and when it now relates as a union to the outside world, then it

has a different treatment of tariffs with the rest of the world. But inside the union,

it’s practically zero; it’s borderless. The free trade area is different, like ASEAN; it

eliminates tariffs on trade among members, but it will allow each member to

determine the barriers to the outside world, unlike in the European Union: it will

eliminate the barriers inside the union, but you will have a common tariff scheme

with other states in dealing with the union. That’s the difference between free trade

area and customs union.

International Criminal Court; I already spoke much about the ICC but let me go to

some of the jurisdictional aspects. What you have to remember is the jurisdiction;

when it is genocide, crimes against humanity, war crimes, crimes of aggression,

then go to the ICC. What are the principles in International Criminal Law? They are

the same, practically, as in criminal law in domestic law. Ex post facto, void for

vagueness, double jeopardy, non-retroactivity, mens rea, intent: they all apply in

cases before the ICC.

Well, in the ICC, it is similar in terms of criminal procedure; all your knowledge

about crim pro, you can use it to supplement your knowledge of international

criminal law. The penalty, you can only impose a maximum of 30 years, there is no

death penalty in the ICC. Now this one is different: in our constitutional law, trial-in-

absentia is allowed after arraignment. In the ICC, there is no trial-in-absentia.

Now I mentioned when I discussed treaty that there are no reservations in the ICC

statute. If there is anything that might be asked also, it’s the principle of

complementarity. What does complementarity mean in the context of ICC? The ICC,

remember, is not a substitute for domestic courts. If remedy is available in domestic

courts, then do so. This is similar to the exhaustion of domestic remedies. First use

the courts below, and only if you are unable to seek justice or there are no

functioning courts, or you know it’s a kangaroo court, that’s the only time you go up

to the ICC. But you must try to avail of the domestic remedies.

Global Terrorism; what is the problem on terrorism? The problem is that there is no

operative definition of terrorism. We have a Human Security Act; it’s up before the

SC for determination on various grounds of unconstitutionality. But let me look at

the history of the instruments on terrorism and what you will find, by way of

definition is very simple: all criminal acts directed against a state and intended to

calculate or calculated to create a state of terror. If you look at the kind of

conventions addressing terrorism, this is indicative of the trend. For a while, they

were talking about killing of certain persons indiscriminately. In the case of the

Munich tragedy, those who were killed by alleged Palestinian criminal organization

members were the athletes of Israel that competed in the Munich Olympics. Later

on, acts of terrorism would cover civil aviation; they would hijack airplanes. Then

they began to focus on killing state leaders and diplomats, internationally protected

persons. Later on, it became sophisticated, they took hostages and now they

engage in terrorist bombings and even suicide bombings. And finally, the test of

sophistication is in the financing of terrorism, that’s why you have the anti-money

laundering laws, which are tools to detect whether certain groups used financial

institutions to promote terrorism.

So, 9/11 brought about so many resolutions and actions, and one of the reasons

why we have an anti-terrorist law or what we call the human security act. What are

some of the concerns on terrorism? What is the applicable law? You remember the

case of Guantanamo Bay? President Obama has ordered the closure of Guantanamo

Bay but for a while, after the war on terrorism, when Bush ordered the invasion of

Afghanistan and Iraq, they decided to arrest some of these terrorists and the

question was what rights will you afford these terrorists in international law when

they are brought to Guantanamo Bay. Do they have the rights like any other person

within US territory? Will the US Bill of Rights apply to them? There is a new case,

Hamdan v. Rumsfeld [548 U.S. 557 (2006)] which is about a person who was

detained in Guantanamo Bay and was not given a counsel, was not read his rights,

and so he questioned the proceedings before the military investigative body in

Guantanamo Bay, and the US SC ruled that when you have a terrorist, there are

standards of protection. He must be treated as a prisoner of war, and so

humanitarian law principles should apply. In this case, you have to detain those who

are responsible, you have to destroy military targets, humanitarian law should be

respected; that means all the rights of a prisoner of war must be accorded to that

person, and then you must also not use force without the consent of the Security

Council. Finally, the captives in an anti-terrorist operation must be brought before

the ICC, because as a prisoner of war, that person should be accorded due process.

So that is the standing rule now when it comes to the protection of terrorists.

Well, the Iraq War, I have already discussed. What was the basis for the Iraq War?

When the US led that war against Iraq that was really an enforcement of a

resolution of the UN Security Council way back after the Gulf War when they were

ordered to disarm and they never heeded the order to disarm. That’s how they

justified the Iraq War.

Now let me just devote some time on humanitarian law. When you talk about

humanitarian law, this really what we call the laws of war, or the rules governing the

conduct of war. And the evolution of this body, if you will see, was focused on very

basic principles: 1. To lay down the rules on warfare whether it is land based or sea

based. 2. To protect innocent persons whether they are civilians, non-combatants or

combatants who have been injured. 3. To treat those who are arrested or detained

like prisoners of war in a just and humane manner. 4. It also talks about the kind of

weapons that may be used; you just cannot use any weapons.

So these are the rules that you will find, and let me just walk you through some of

the instruments; what you have to remember is that there are four Geneva

Conventions. GC1 is about the amelioration of the condition of the wounded and the

sick in the armed forced in the field; that is the land based war. The second is the

amelioration of the condition of the wounded and the sick and the shipwrecked

members of the armed forces at sea; the third is POWs, which must be treated with

due process and with human rights. As you know, in war, there are certain

fundamental rights which may be suspended like freedom of information, the right

to privacy, because it is wartime. But torture can never be allowed in the context of

war. Due process must be followed. ; And finally, GC4 talks about the protection of

civilians and certain sites like areas which are not military targets.

Non-International Armed Conflicts with certain liberation movements is governed by

common article 3 and protocol 2, but the rules are practically the same when you

look at the standards of protection; you apply the same principles. So, there is a

requirement when you are, let’s say, an organized resistance movement, then you

must conduct yourself in accordance with the following standards: you must be

headed by a responsible command, you must use distinctive signs, you must carry

arms openly, and you must operate in accordance with the laws of war. That’s why

MILF and NPA have to assert these to be recognized as an armed movement, in

accordance with the Geneva Conventions. Does humanitarian law apply to

insurgents? Yes, that’s the rule now.So what about weapons? The principle is that

the only legitimate objects are the military forces of the enemy. That’s basic: you

only attack military targets, military combatants.

There is a case, the Tadic Case (Case No. IT-94-1-T, 14 July 1997) arising out of the

International Tribunal for the Prosecution of Persons Responsible for Serious

Violations of International Humanitarian Law Committed in the Territory of former

Yugoslavia since 1991. When does humanitarian law apply? Under the Tadic Case,

an armed conflict exists whenever there is resort to armed force between states or

protracted armed violence between governmental authorities and organized armed

groups or between such groups in a state.

So, if the situation in a country is in the form of a non-international armed conflict,

the principles in the Geneva Convention found in Art 3 common to the four 1949

Geneva Conventions and Protocol Two of 1977 may now be applied to the

Philippines. What about minor disturbances, rallies? Does humanitarian law apply

there? No. It will only be subject to ordinary law and order police action but not the

kind of military action done with the MILF and the NPA.

Now this last part; Martens Clause. There is a principle in humanitarian law derived

from the Russian delegate, Martens, which says that the unforeseen cases, in the

absence of a written undertaking, should not be left to the arbitrary judgement of

military commanders. And if you have to decide on matters concerning the

protection of civilians and combatants, you must be in a predisposition to apply the

principles of the law of nations. The principle of humanity, in the end, is a basic

principle in humanitarian law. You can forget all about the rules that was cited here,

but was is basic in an armed conflict is really, the principles of humanity; that you

respect civilians and combatants despite the armed conflict there are rules that

govern warfare; the principle of necessity, the principle of proportionality and the

principle of distinction; proportionality in the use of force, necessity in the matter

that you act under a situation, and distinction between combatants and non-

combatants. That’s all you have to remember.