Beruflich Dokumente
Kultur Dokumente
Right of Innocent Passage – passage that is not prejudicial to the peace, good
order or security of the coastal state
o Applies to ships, aircrafts, and submarines
Contiguous Zone – an area of water not exceeding 24 nautical miles from the Islands – naturally formed area of land, surrounded by water, which is above
baseline water at high tide
o It extends 12 nautical miles from the edge of the territorial sea o Artificial islands or installations are not ―islands‖
o Coastal state exercises authority over that area to the extent necessary o Important due to the possibility of exploiting oil and gas resources
to prevent infringement of its customs, fiscal, immigration around them
or sanitation authority over its territorial waters or territory and to o Islands can have their own territorial sea, exclusive economic zone and
punish such infringement continental shelf
o However, the power of control given to the littoral state does not o Rocks which cannot sustain human habitation or economic life shall
change the nature of the waters have no exclusive economic zone or continental shelf, but can have a territorial
o Beyond the territorial sea, the waters are high sea and are not subject sea
to the sovereignty of the coastal state
The High Seas – all parts of the sea that are not included in the territorial sea or
Exclusive Economic Zone or “Patrimonial Sea” – an area extending not more in the internal waters of a state
than 200 nautical miles beyond the baseline o The flag state has exclusive jurisdiction over its ships on the high seas to
o Coastal state has rights over the economic sources of the sea, seabed the extent not limited by agreement
and subsoil – but the right does not affect the right of navigation and
overflight of other states Six Freedoms which High Seas are subject to:
o The delimitation of the overlapping EEZ between adjacent states is a. Navigation
determined by agreement b. Overflight – belongs to both civilian and military aircraft
c. Fishing – includes the duty to cooperate in taking measures to ensure
the conservation and management of the living resources of the high seas
d. Lay submarine cables and pipelines
e. Construct artificial islands and structures
f. Scientific research
Boundary – separating the land areas of two states is determined by the acts of Effective Nationality Link – used to determine which 2 states of which a person
the states expressing their consent to its location is a national will be recognized as having the right to give diplomatic protection
to the holder of dual nationality
o When the boundary between 2 states is a navigable river its location is the middle
of the channel of navigation
o When boundary between 2 states is a non-navigable river or lake
the middle of the river or lake
its location is Corporations – state has jurisdiction over corporations organized under its laws
Maritime vessels – state has jurisdiction over vessels flying its flag
o Same applies to aircraft and spacecraft
PROTECTIVE PRINCIPLE
o This is generally supported in customary law
o State may exercise jurisdiction over conduct outside its territory that
threatens its security as long as that conduct is generally
recognized as criminal by states in the international community
o However, this is strictly construed to those offenses posing a direct,
specific threat to national security
Examples of acts covered by Universality Principle: 2. International Comity – state will refrain from exercising its jurisdiction is
a. Piracy – any illegal act of violence or depredation committed for it is unreasonable
private ends on the high seas or outside the territorial control of any o Factors to consider in determining unreasonableness:
state a. Link or connection of the activity to the territory of the regulating
b. Genocide – acts committed with intent to destroy, in whole or in part, state
a national, ethical, racial or religious group b. Character of the activity to be regulated
c. Crimes against humanity – acts committed as part of a widespread or c. Existence of justified expectations that might be protected or hurt by
systematic attack directed against any civilian population the regulation
1. Attack directed against any civilian population d. Likelihood of conflict with regulation by another state
2. Extermination – internal infliction of conditions of life 3. Forum non conveniens – application is discretionary with the court
3. Enslavement o If in the whole circumstances of the case it be discovered that there is
4. Deportation or forcible transfer of population real unfairness to one of the suitors in permitting the choice of a forum
5. Torture which is not the natural or proper forum, either on the ground of
6. Forced pregnancy convenience of trial or the residence or domicile of parties or of its
7. Persecution being the locus contractus or locus solutionis
8. Crime of Apartheid
9. Enforced disappearance of persons EXTRADITION – the surrender of an individual by the state within whose territory
d. War crimes – grave breaches of the Geneva Convention of 12 August he is found to the state under whose laws he is alleged to have committed a
1949, namely, any of the following acts against persons or property crime or to have been convicted of a crime
protected under the provisions of the relevant Geneva Convention o This is a process that is governed by a treaty
e. Aircraft piracy o Legal right to demand extradition and the correlative duty to surrender a
f. Terrorism fugitive exist only when created by treaty
o Procedure for extradition is normally through diplomatic channels
PASSIVE PERSONALITY PRINCIPLE
o This does not enjoy wide acceptance Principles governing Extradition
o State may apply law, criminal law, to an act committed outside its 1. No state is obliged to extradite unless there is a treaty
territory by a person not its national where the victim of the act was its 2. Differences in legal system can be an obstacle to interpretation of what
national the crime is
o Not accepted for ordinary torts or crimes but is increasingly accepted as 3. Religious and political offenses are not extraditable
applied to terrorist and other organized attacks on a state’s nationals
by reason of their nationality, or to assassination of a state’s diplomatic Bail in Extradition Cases
representatives or other officials o Bail may be granted to a possible extraditee only upon a clear and
convincing showing that
CONFLICTS OF JURISDICTION – modes of resolving conflict of jurisdiction 1. He will not be a flight risk or a danger to the community
1. Balancing Test – if the answer is yes to all the following questions, then 2. There exist special, humanitarian and compelling circumstances
the court will assume jurisdiction
a. Was there an actual or intended effect on a state’s foreign commerce?
* GR: Jurisdiction of a state within its territory is complete and absolute. Mighell v. Sultan of Johore
* Exceptions: The Sultan of Johore was sued for bread of a promise to marry in a British court.
1.) Sovereign immunity Despite the fact that it was a private suit, it was dismissed upon verification that
2.) Diplomatic/consular immunity the Sultan was a sitting foreign sovereign.
Pinochet Case: Regina v. Bartle and the Commissioner of Police (House of B. State Immunity
Lords, 1999) - The State may not be sued without its consent.
General Augusto Pinochet led a military coup that overthrew the Chilean - Based on the principle of equality and independence of states: par in parem non
President Allende. According to a national truth and reconciliation mission, at habet imperium.
least 3,196 people were killed or forcibly disappeared during his dictatorship. - With the gradual expansion of state involvement in commerce, the principle of
British authorities detained Pinochet on an arrest warrant issued by Spanish state immunity has evolved to one of restrictive state immunity: only acts jure
Magistrate Baltasar Garzon under the charges of genocide, terrorism, and imperii (governmental acts) and not acts jure gestionis (trading and commercial
torture. acts) are immune.
In affirming that Pinochet did not enjoy immunity from prosecution as a former The Schooner Exchange v. MacFaddon
head of state and could thus be extradited, the House of Lords explained: States enjoy absolute immunity. Despite the absolute territorial jurisdiction of
a.) Senator Pinochet as a former head of state enjoys immunity rationae states, one sovereign, being bound to not degrade the dignity of his nation by
materiae in relation to acts done by him in relation to his official placing himself within the jurisdiction of another, can be supposed to enter into
function as such. foreign territory in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by
b.) However, organization of state torture is not an act committed in his implication and will be extended to him.
official function. The commission of a crime which is an international
crime against humanity and jus cogens cannot be a state function. The Dralle v. Republic of Czechoslovakia
principle of individual responsibility for international criminal conduct
has become an accepted part of international law. It can no longer be said that by international law, acta gestionis are exempt
municipal jurisdiction. The classic doctrine of immunity arose at a time when
there was no justification for any distinction between private transactions and
c.) The notion of continued immunity for ex-heads of state is acts of sovereignty. Today, States engage in commercial activities and enter into
inconsistent with the provisions of the Torture Convention which competition with their own nationals as well as foreigners.
provides that the international crime of torture can only be committed
by an official or someone in official capacity. Since the immunity applies USA v. Hon. V.M. Ruiz (Philippines)
also to officials who carried out the functions of the state, if torture is The traditional rule of State immunity is a necessary consequence of the
treated as official business sufficient to justify the immunity, then no principles of independence and equality of States. However, the rules of
party would be held liable and the structure of universal jurisdiction International Law are constantly developing and evolving. Because state
over torture committed by officials is rendered abortive. d.) Thus, activities have multiplied, it has become necessary to distinguish them between
Senator Pinochet was not acting in any capacity which gives rise to sovereign and governmental acts, and private, commercial and proprietary acts.
immunity rationae materiae since authorized and organized torture are
contrary to international law.
The result is that State immunity now extends only to acts jure imperii. A state
may be said to have descended to the level of an individual and can thus be
deemed to have tacitly given its consent to be sued only when it enters into
business contracts. But this does not apply where the contract relates to the
exercise of its sovereign functions.
In this case, repairs of base facilities are an integral part of the naval base
devoted to the defense of both the US and the Philippines, which is a function of
the government not utilized nor dedicated to commercial or business purposes.
In this case, petitioner has denied having bought and sold lands in the ordinary The trial court denied the Motion to Dismiss, which the CA affirmed.
course of a real estate business. Instead, he claimed that the acquisition of Lot
5-A was for the site of its mission or the Apostolic Nunciature of the Philippines. Petitioner questions the ruling of the CA that the former had waived its
Respondent failed to dispute such claim. immunity from suit based on the agreement.
Republic of Indonesia v. Vinzon (2003) b.) The mere entering into a contract by a foreign state with a private
Petitioner, Republic of Indonesia entered into a Maintenance Agreement with party cannot be construed as the ultimate test of whether or not it is an
respondent, James Vinzon of Vinzon Trade and Services, to maintain specified act jure imperii or jure gestionis. If the foreign state is not engaged
equipment (aircons, generator sets, electrical facilities, water heaters, water regularly in a business or commercial activity, as in this case, the
motor pumps) at the Embassy Main and Annex buildings and that the Wisma particular act or transaction must be then tested by its nature. If it is in
Duta. pursuit of a sovereign activity or an incident thereof, then it is an act
jure imperii.
Chief of Administration, Minister Counselor Azhari Kasim allegedly found
Vinzon’s work unsatisfactory and not in compliance with the agreed standards. c.) The existence alone of a provision in the contract stating that any
Thus, the Embassy terminated the agreement. legal action arising out of the agreement shall be settled according to
the laws of the Philippines and by a specified court of the Philippines is
Respondent alleges that the termination was arbitrary and unlawful. Vinzon filed not necessarily a waiver of state immunity from suit. It is merely meant
a complaint in the RTC Makati. Petitioner filed a Motion to Dismiss based on to apply where: (a.) the sovereign party elects to sue in the local
sovereign immunity from suit as well as diplomatic immunity under the Vienna courts; or (b.) otherwise waives its immunity by any subsequent act. The
Convention on Diplomatic Relations, regarding the suit against Ambassador applicability of Philippine laws include the principle recognizing
Soeratmin and Minister Counsellor Kasim. sovereign immunity.
Respondent alleged that the petitioner has expressly waived its immunity from d.) Submission by a foreign state to local jurisdiction must be clear and
suit based on a provision in the Maintenance Agreement which states that any unequivocal, given explicitly or by necessary implication. There is not
legal action arising from the agreement will be settled according to the laws of such waiver in this case.
b.) The actions required of the Iranian Government by the Vienna Conventions
and by general IL is manifest. They must immediately take every effort and
opportunity to bring the flagrant infringements of the inviolability of the
premises, archives, and diplomatic and consular staff of the US embassy to a
speedy end and to restore the consulates to the US control, and in general
reestablish the status quo and offer reparation for damage.
George Underhill, a US citizen, had constructed a waterworks system for Bolivar Environmental Tectonics, an unsuccessful bidder, found that Kirkpatrick had
under a contract with the government and operated a machinery repair business. bribed Nigerian officials to win the contract. It brought the matter to the
Gen. Hernandez refused to grant Underhill a passport to leave the city to coerce Nigerian Air Force and the US embassy in Lagos.
him to operate his waterworks and repair works for the benefit of the
community and the revolutionary forces. US attorney for the District of NJ charged Kirkpatrick with violations of the
Foreign Corrupt Practices Act of 1977 to which the latter pleaded guilty.
Underhill files a suit in the US to recover damages for the detention, his alleged
confinement to his own house, and for certain alleged assaults and affronts by Environmental Tectonics brought a civil action against Kirkpatrick to seek
the soldiers of Hernadez’s army. damages under the Racketeer Influenced and Corrupt Organizations Act.
In denying Underhill’s plea, the US court applied the ―act of state doctrine ‖: a.) Defendant moved to dismiss the complaint on the ground of ―act of state
Every sovereign state is bound to respect the independence of every other doctrine.‖
sovereign state, and the courts of one county will not sit in judgment on the acts
of the government of another, done within its own territory. SC ruled that the act of state doctrine is inapplicable where the validity of a
b.) Redress of grievances due to such acts must be obtained through the means foreign government act is not in question, as in this case.
open to be availed of by sovereign powers as between themselves.
HOME MISSIONARY SOCIETY CLAIM (US v. BRITAIN) Claimant relies only on the acts committed by revolutionaries and is unable
Facts: to identify any agent of the revolutionary movements whose actions
The collection of a tax newly imposed by Great Britain on the natives of compelled him to leave Iran. The acts of supporters of a revolution as
Sierra Leone known as the ―hut tax‖ was the signal for a serious and opposed to its agents cannot be attributed to the government.
widespread revolt in the Ronietta district.
Claimant relies on the declarations made by the leader of the Revolution.
In the course of rebellion, all US’ Missions were attacked, and either destroyed While these statements are of anti-foreign and in particular anti-American
or damaged, and some of the missionaries were murdered. sentiments, these does not amount to an authorization to revolutionaries to
act in such a way that the Claimant should be forced to leave Iran.
US contends that British Government is responsible for the revolt since it
wholly failed to take proper steps for the maintenance of order and the
protection of life and property, and that the loss of life and damage to PRELIMINARY OBJECTIONS
property is the result of such neglect. Claim of denial of justice may be lost due to failure to answer some
preliminary objections
Issue: a. Lack of nationality link
w/n the revolt is attributable to the British Government b. Failure to exhaust national remedies
o Purpose: to protect international courts from being swamped with cases
which are better handled locally
o Application: cases founded on diplomatic protection or on injury to aliens
The above text does not use the word ―war ‖ because it is a technical term
2. Advisory which does not include some uses of force
non-binding o Hence, the prohibition is broader than the prohibition of war noting that
non/acceptance depends on internal law of the institution it applies to ―any other matter inconsistent with the Purposes of the
United Nations‖
Art. 96 UN Charter: Corfu Channel
SC and GA may make requests for advisory opinion. GA may also Facts:
authorize other UN agencies to seek advisory opinion on legal questions After a British warship had been struck by mines, Britain sent additional warships to sweep
arising within the scope of their activities. the minefields within Albanian territory arguing the theory of intervention where its
objective was to secure the mines for possible fear that they should be taken away, and the
Art. 65: theory of self-help.
3. Reprisal
o Any kind of forcible or coercive measures where by one State seeks
to exercise a deterrent effect or obtain redress or satisfaction,
directly or indirectly, for the consequences of illegal act of another
State which has refused to make amends for such illegal acts
o This must be preceded by an unsatisfied demand for reparation
All Members shall refrain in their international relations from the threat or use
of force against the territorial integrity or political independence of any State, Commencement and Termination of Hostilities
or in any other manner inconsistent with the Purposes of the United Nations. Under Hague Convention III, for an armed conflict to be considered a war,
the hostilities should be preceded by a declaration of war or an ultimatum
The above provisions outlaws war with a fixed limit
The paradox is that side by side with the prohibition of armed conflict is the While the Constitution gives to the legislature the power to declare the
proliferation of laws of war existence of a state of war and to enact all measures to support the war, the
o 3 facts which explain the paradox: actual power to make war is lodge in the executive
a. Those who resort to the use of arms do not give up until they have The commencement of hostilities result in the severance of all normal
achieved victory relations, including treaties, except treaties of a humanitarian character
b. Humanitarian considerations dictate the need for rules which curtail Nationals of a combatant State residing in enemy territory become subject
violence beyond what is necessary to achieve a State’s goal to restrictions which the enemy might impose subject to limitations found in
c. There still remains in the hearts of the soldiery an acceptance of customary or treaty law
chivalry as a value
Merchant vessels found in enemy territory are given a period of grace to
On the assumption that wars can always occur, there arose the need to depart
formulate laws that can humanize the conduct of war
Laws of armed conflict remain in effect until the conflict is terminated, by
means of a
a. peace treaty
THE HAGUE LAW
b. in the absence thereof, by declaration made by the combatant states that
In 1899, 26 Countries met at The Hague and promulgated Conventions and hostilities have come to an end
Declaration which adopted the principles constituting the law of armed Armistice – an agreement to suspend hostilities, whether local or general,
conflict, Law of the Hague, governing land and naval warfare does not end the conflict but only puts an end to the active fighting
Protocol I
GENEVA CONVENTIONS OF 1949
International armed conflict includes armed conflicts in which peoples are
Essence: persons not actively engaged in warfare should be treated fighting against
humanely a. Colonial denomination
o Geneva ―Red Cross‖ Conventions b. Alien occupation
a. Wounded and Sick in the Field c. Racist regimes
b. Wounded, Sick and Shipwrecked at Sea
c. Prisoners of War Those engaged in such conflict receive combatant status and are entitled to
combatant rights
d. Civilians
o Instead being treated as ordinary criminals when captured, they are
treated as prisoners of war
NEUTRALITY
To adopt an attitude of impartiality towards the belligerents INTERNATIONAL TERRORISM
Such attitude must be recognized by belligerents and creates both rights and There is no crime terrorism in Philippines statute books but some acts are
duties in the neutral states considered terroristic and are independently punished by the RPC
Neutrals must not engage in activities which interfere with the activities of Terrorism Act (British Law) – violent moves against person or property or
the belligerents against public health and safety which have for their purpose to influence
the government or to intimidate a section of the public or to advance a
political, religious or ideological cause
NON-INTERNATIONAL CONFLICTS Draft of an International Convention for the Suppression of the Financing of
Civil wars or rebellion do not violate international law Terrorism:
International law on armed conflict does not apply to internal conflicts o Any person commits an offense of terrorism if he does an act intended to
cause:
a. Death or serious bodily injury to any person
b. Serious damage to a State or Government Facility with the intent to
cause extensive destruction
Attack on WTC on 9-11 was characterized as Crime against Humanity through
the atrocious character exhibited by the act: its magnitude, gravity,
targeting of civilians
叶清蓮 & DSP Public International Law P a g e | 33
o The importance of this characterization is that it led to what seems to be Self-defense – legitimate response to an armed attack by a State
a development in the international law of self-defense
Resources should be made available to preserve and improve the
CHAPTER 16 environment
INTERNATIONAL ENVIRONMENTAL LAW Rational planning constitutes an essential tool for reconciling any conflict
between the needs of development and the need to protect and improve the
ENVIRONMENTAL CONCERNS environment
International matters concerning the protection and improvement of the
Sec. 16, Art. 2 of the Constitution. The State shall protect and advance the environment should be handled in a cooperative spirit by all countries on an
right of the people to a balanced and healthful ecology in accord with the equal footing
rhythm and harmony of nature. Man and his environment must be spared the effects of nuclear weapons and
all other means of mass destructions
The protection of the environment is now also a concern of international law 2. Rio Declaration
a. Protection of the atmosphere, the sea, land, flora and fauna
Human beings are at the center of concerns for sustainable development
b. Preservation of the cultural heritage of mankind
States have the sovereign right to exploit their own resources
The protection of the environment is a vital part of contemporary human
rights doctrine, for it is a sine qua non for numerous human rights such as In order to achieve sustainable development, environmental protection shall
the right to health, and the right to life itself constitute an integral part of the development process and cannot be
considered in isolation from it
WHO HAVE ENVIRONMENTAL RIGHTS? The special situation and needs of developing countries shall be given
Persons capable of having rights special priority
Minors pleading for intergenerational protection (Factoran case) Environmental issues are best handled with the participation of all
concerned citizens, at the relevant level
SUSTAINABLE DEVELOPMENT States shall develop national law regarding liability and compensation for
the victims of pollution and other environmental damage
A concept adopted by the World Commission on Environment and States shall immediately notify other States of any natural disasters or other
Development
emergencies that are likely to produce sudden harmful effects on the
This encourages development in a manner and according to methods which environment of those States
do not compromise the ability of future generation and other States to meet Warfare is inherently destructive of sustainable development
their needs
Some Treaties
EMERGING PRINCIPLES
The following are only declarations, they do not have the force of law a. Vienna Convention for the Protection of the Ozone Layer – the layer of
the atmospheric ozone above the planetary boundary layer
1. Stockholm Declaration
b. UN Conference on Environment and Development – stabilization of
Man has fundamental right to freedom, equality and adequate conditions of greenhouse gas concentration in the atmosphere at a level that would prevent
life, in an environment of a quality that permits a life of dignity and well- dangerous anthropogenic interference with the climate system
being, and he bears a solemn responsibility to protect and improve the c. Kyoto Protocol – protection of the atmosphere
environment for present and future generations d. Convention on International Trade in Endangered Species of Wild Fauna
Natural resources of the earth, including the air, water, land, flora and fauna and Flora
and especially representative samples of natural ecosystems, must be e. Convention on Biological Diversity
safeguarded
Man has a special responsibility to safeguard and wisely manage the heritage Regional Treaties
of wildlife and its habitat a. Treaty of Rome
The struggle of the peoples of ill countries against pollution should be b. North American Agreement on Environmental Cooperation
supported c. Protocol on Environmental Protection to the Antarctic Treaty
States shall take all possible steps to prevent pollution of the seas d. Amazon Declaration
叶清蓮 & DSP Public International Law P a g e | 34
CHAPTER 17 that otherwise have implications for more than one state
INTERNATIONAL ECONOMIC LAW o Those involving the movement of
a. Goods e. Technology
What is International Economic Law? b. Funds f. Vessels
c. Persons g. Aircraft
In its broadest sense includes all international law and international d. Intangibles
agreements governing economic transactions that cross state boundaries or
Characteristics: 3. Principle of National Treatment
1. It is part of public international law o Prohibits discrimination between domestic producers and foreign
o Treaties alone make this so producers
2. It is intertwined with municipal law o Once foreign producers have paid the proper border charges, no
3. It requires multi-disciplinary thinking additional burdens may be imposed on foreign products
4. Principle of Tariffication
4. Empirical research is very important for understanding its operation
o Prohibits the use of quotas on imports or exports and the use of
licenses on importation or exportation
Important Economic Institutions o Purpose: to prevent the imposition of non-tariff barriers
Objectives of the Bretton Woods Conference of 1944: o Exception:
1. To advance the reduction of tariffs and other trade barriers
2. To create a global framework designed to minimize economic conflicts GATT provides for a quantitative and temporary basis for balance of
payments or infant industry reasons in favor of developing states
International Monetary Fund
o Function: to provide short-term financing to countries in balance of Exceptions to Key Principles
payments difficulties 1. General exceptions
International Bank for Reconstruction and Development [World Bank] o a. Public morals
Provide long-term capital to support growth and development
b. Public health
International Trade Organization (ITO)
c. Currency protection
o Promote a liberal trading system by proscribing certain protectionist d. Products of prison labor
trade rules
e. National treasures of historic, artistic or archaeological value
o ITO
(WTO)
General Agreement on Tariff and Trade (GATT) World Trade Organization f. Protection of exhaustible natural resources
WTO 2. Security exceptions
3. Regional Trade exceptions
o Oversees the operation of GATT and a new General Agreement on Trade
and Services 4. Exceptions for developing nations [Tanada v. Angara]