Beruflich Dokumente
Kultur Dokumente
So
this
is
part
of
the
discussion
on
territory
as
element
of
state.
So
it
is
important
for
you
to
go
over
the
different
modes
of
acquiring
territory.
You
will
notice
that
one
here
may
no
longer
be
applicable
at
present
because
of
the
inhibition
on
the
use
of
force.
I’m
talking
about
conquest
or
subjugation.
Let’s
just
go
over
the
meaning
as
well
as
the
conditions
under
which
these
modes
can
be
considered
as
valid
mode
of
acquiring
a
territory.
Cession, as you know is the transfer of territory by agreement. So usually, it is in the form of treaty.
What
is
important
here
usually
is
the
principle
of
nemo
dat
quod
non
habet
(no
one
gives
that
which
he
does
not
have)
which
is
a
principle
in
civil
law
or
in
property.
This
is
relevant
to
cession
because
this
is
transfer
of
territory
(considered
property)
from
one
state
to
another.
As
you
remember
in
the
Island
of
Palmas
case,
the
Island
of
Palmas
was
argued
to
be
part
of
the
Philippine
territory
when
the
Philippines
was
ceded
to
the
US
by
Spain.
But
the
Dutch
protested
because
there
was
no
follow-‐up
on
the
part
of
Spain,
even
assuming
that
Spain
was
the
first
one
to
discover
the
Island.
The
discovery
was
not
followed
by
effective
occupation
on
the
part
of
Spain
and
therefore,
that
is
a
defect
in
the
title.
That
defect
in
the
title
should
also
affect
the
title
of
the
transferee
in
the
treaty
ceding
the
territory.
In
other
words,
you
cannot
give
what
you
cannot
have.
That
is
easy
to
understand.
Then
we
have
occupation.
It
should
be
occupation
or
discovery
AND
occupation
but
NEVER
just
discovery,
as
you
have
already
learned.
Note
however
the
concept
of
terra
nullus.
The
only
territory
that
may
be
subject
to
discovery
and
occupation
must
be
terra
nullius,
meaning
the
territory
does
not
belong
to
any
state.
1. The
ordinary
concept
of
terra
nullius
where
it
really
does
not
belong
to
any
state;
or
2. Probably
at
one
point
belonging
to
a
state
but
has
been
effectively
abandoned.
There
may
in
fact
be
reasons
for
the
abandonment
of
a
particular
territory.
One
possible
reason
could
be
internal
conflict
in
the
government
which
compelled
it
to
abandon
the
governance
or
administration
of
a
particular
territory
for
a
period
of
time.
There
is
no
hard
and
fast
rule
on
abandonment.
It
is
more
on
intent
as
you
will
later
see.
a. There
are
two
components
of
abandonment
which
makes
a
territory
terra
nullius.
i. Failure
to
exercise
authority
ii. Intent
to
abandon
1. This
is
a
question
of
fact
because
intent
is
in
the
mind
but
a
state
has
not
mind.
So
there
are
a
lot
of
things
to
consider
such
as
the
mind
of
the
leaders.
This
is
hard
to
prove
so
there
is
no
hard
and
fast
rule
unlike
in
civil
law.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
1
Public
International
Law
Finals
Notes
2013
What
you
should
take
note
of
occupation
is
2. Effective occupation.
As
here
mentioned,
discovery
of
territory
is
not
sufficient
to
acquire
a
terra
nullius
territory.
So
the
other
concept
that
you
should
take
note
in
discovery
is
that
while
it
is
not
sufficient,
there
is
however
acquisition
of
what
is
known
as
“inchoate
title”
to
the
territory.
So if it is just inchoate does it have legal force if you have inchoate title to the territory?
Yes,
because
it
deals
with
the
legitimacy
of
whatever
the
state
does
to
any
possible
intruder
to
the
newly
discovered
territory.
Example
if
the
discovering
state
uses
force
to
protect
the
newly
discovered
territory,
then
it
shouldn’t
be
considered
as
violation
of
international
law
because
it
is
merely
exercising
its
inchoate
right.
And
that
in
fact
means
to
the
exclusion
of
other
states.
Based
on
history,
it
may
probably
be
just
an
inchoate
title
and
because
conquest
or
subjugation
was
then
recognized,
you
will
notice
that
there
are
a
lot
of
times
when
the
discoverer
has
been
effectively
dispossessed
by
another
state.
Yes,
it
may
be
a
violation
of
the
inchoate
title
of
the
discovering
state,
but
if
the
interfering
state
is
able
to
administer
effectively
as
the
time
when
the
prohibition
on
the
use
of
force
has
not
yet
gained
the
status
of
customary
norm,
then
it
was
practically
acceptable
in
the
past.
The option to occupy a territory may be in reasonable time.
the option to occupy the territory may be within a reasonable time.
how long should the time be? there's no fixed rule but certainly in relation to prescription as you will
see
later
on,
prescription
would
require
a
longer
time
to
be
able
to
make
prescription
a
basis
for
acquiring
a
territory.
naa
pa
ba
ruy
state
na
terra
nullius?
probably
by
reason
of
natural
creation
of
a
terrrritory.
what we're even expecting now is the loss of territory than emergence of new territories.
usually through the exercise of acts of governmental authority in the form usually of
establishment
of
administration
in
the
territory.
that's
why
it
was
not
uncommon
in
the
past
that
the
moment
a
state
discovers
a
territory
taht
is
terra
nullius,
almost
always,
there
will
be
a
followingof
its
inhabitants
to
that
territory because, how will you exercise governmental authority when there are no governed?
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
2
Public
International
Law
Finals
Notes
2013
for
some
territories
that
are
not
habitable
(e.g.
Kalayaan
Islands)
,
our
claims
is
that
it
had
been
discovered
by
a
certain
Boholano
by
the
name
of
Tomas
Ploma.
he
supposedly
ceded
his
right
over
the
property
to
the
Philippine
Government,
and
it
was
by
that
reason
that
the
Philippine
Government
claims
that
it
had
been
discovered
by
the
government,
by
the
Philippines,
and
had
been
effectively
occupied
not
literally
by
inhabitants
but
it
was
made
part
of
one
of
the
municipalities
of
Palawan.
so
that's
one
way
of
showing
exercise
of
power
or
administrative
power,
you
include
it
as
part
of
the
territory,
you send inhabitants, troops. if it is habitable, then it's a lot better if you put there or place
there inhabitants with a certain local government in the territory. so that is usually how effective control
it
should
not
be
just
temporary,
it
should
be
more
or
less
permanent
because
there
is
the
requirement
or
and then, third one is prescription. the difference of course is in occupation,
the object of the occupation is the terra nullius, in prescription, it is a territory of another state.
and probably, as a reason or as a result of inaction on the part of the state owning the territory
and for a very long period of time, in fact there is a doctrine called immemorial prescription
doctrine -‐ the length of time of occupation to make prescription a valid mode of acquiring property
should
go
beyong
the
memory
of
man."Since
time
immemorial".
it
presupposes
generations
upon
generations.
the length of time required is certainly longer than that of effective occupation.
and then the same requirement of effective control and intent and will to act as sovereign.
fourth, conquest or subjugation, no longer allowed under modern international law
because it is now accepted or well-‐settled that the use of force is already a prohibited
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
3
Public
International
Law
Finals
Notes
2013
act,
and
it
is
a
customary
international
norm
already.
one
manifestation
of
that
aside from the UN cCharter is the growing observance of Stimson Doctrine.
Kisa
manang
population
na
sige
ug
transfer?
Unsa
mai
tawag
ana
nila?
Nomads.
(based
on
the
answers
of
the
pre-‐fi
exams)
(daghan
ug
joke
si
sir)
LAW
OF
THE
SEA
There
are
so
many
details
in
the
study
of
the
law
of
the
sea.
Go
over
the
specific
requirements
but
what
I
can
give
you
is
to
show
you
the
important
rules,
aspects
in
the
law
of
the
sea.
Relevant
aspects
in
the
law.
You
must
have
study
the
law
of
the
sea
kay
pag
ari
ninyo,
nagstudy
naman
mo.
Diba???
Sakto
ko
sah?
Law
of
the
sea
na
siya
class
kay
the
same
as
treaties,
before
conventional,
it
is
customary
international
law.
But
a
lot
of
customary
international
law
has
been
incorporated
in
the
United
Nations
Convention
on
the
Law
of
the
Seas
(UNCLOS).
Which
of
course
was
completed
in
1982
in
Jamaica,
that
is
why
it
is
called
the
1982
Vienna
Convention
of
the
Law
of
the
Sea.
Which
is
known
as
UNCLOS
III.
Because
there
were
three
attempts
before.
First,
in
1958
which
provided
for
continental
shelf,
territorial
sea,
but
we
have
a
lot
of
discussion
of
the
archipelagic
state
until
they
have
1960
when
they
have
the
UNCLOS
II,
which
was
not
completed.
And
on
the
1982,
the
UNCLOS
III.
Is
the
UNCLOS
a
codification
of
customary
international
law
on
the
law
of
the
sea?
Partly
yes.
But
some
are
actually
product
of
compromises
between
states.
And
so
a
lot
of
rules
in
the
UNCLOS
are
not
part
of
customary
international
law.
Infact,
if
you
remember
the
Lotus
Case,
it
has
already
been
modified
under
the
UNCLOS.
Its
already
a
rule
in
the
exercise
of
jurisdiction
in
the
high
seas.
It
took
into
force
in
1994
after
the
60th
party
signed
the
convention.
This
was
the
provision
in
the
convention
regarding
the
entry
into
force:
after
the
60th
party
signed
the
convention.
If
you
want
to
study
the
law
of
the
sea,
you
have
to
study
the
four
areas
or
the
four
zones
in
the
law
of
the
sea.
And
these
are:
internal
waters,
territorial
sea,
archipelagic
waters;
if
the
state
is
an
archipelago.
If
not,
you
have:
internal
waters,
territorial
sea
and
you
have
contiguous
zone.
And
then
you
have
the
exclusive
economic
zone,
the
continental
shelf.
I
used
to
discuss
these
as
the
basic
zones
but
I
did
not
include
continental
shelf
because
its
more
of
an
area,
not
a
zone.
K?
Let’s
take
it
one
by
one.
And
then
of
course,
the
high
seas.
The
method
to
identify
the
basic
zones
or
areas
I
have
enumerated
here(slides)
first
understand
the
concept
of
the
baseline.
Two
methods
of
determining
the
baseline
because
the
baseline
is
that
line
which
you
measure
the
extent
of
these
zones,
internal
waters,
territorial
sea
and
the
other
zones
mentioned
here.
You
have
the
Low
water
mark
method
which
is
used
for
non-‐archipelagic
states.
And
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
4
Public
International
Law
Finals
Notes
2013
the
Straight
Baseline
method
for
archipelagic
states.
In
the
past
the
extent
of
territorial
sea
had
been
measured
by
the
cannon
ball
theory.
Ug
unsay
ma
reach
sa
cannon
ball
which
is
usually
three
nautical
miles
mao
na
ang
extent
sa
ila
territory.
Little
by
little
states
were
demanding
for
longer
dimensions
in
their
territorial
sea
that’s
why
they
changed
the
cannon
ball
theory
to
the
12-‐nautical
mile
rule
for
the
territorial
sea.
Let’s
start
with
internal
waters
if
you
look
at
the
convention
these
are
the
things
that
should
appear
important
to
you.
What
shall
cover
the
internal
waters
of
a
state?
Normally
waters
that
are
inland.
So
the
common
internal
waters
are
rivers,
straits
and
bays.
But
if
you
go
to
the
convention
it
depends
of
the
mouth
of
the
bay.
There
is
no
specific
rule
on
whether
it
is
entirely
a
bay
or
will
not
be
a
bay
for
the
purpose
of
determining
that
it
is
internal
water
or
coast
from
which
the
low
water
mark
should
be
determined.
So
normally
if
more
than
half
of
a
circle
it
may
be
considered
as
internal
water.
And
if
it
is
not
more
than
half
of
a
circle
and
the
opening
is
more
than
24
nautical
miles
then
normally
it
will
not
be
considered
a
bay
and
the
interior
part
of
that
coast
will
be
used
in
determining
the
territorial
sea.
Good
illustrations
in
Magallona.
Straits
also
may
be
considered
internal
or
not.
Not
an
internal
if
the
distance
between
the
two
coasts
is
more
than
6
nautical
miles.
In
other
words
before
you
consider
that
a
bay,
river
or
strait
is
internal
waters
please
take
note
of
the
conditions
that
would
make
them
part
of
the
internal
waters
and
if
so
consider
the
different
characteristics
of
bays
and
rivers.
What
is
important
here
is
that
the
Coastal
state
has
the
authority
to
prohibit
entry
into
its
internal
waters.
The
only
exception
would
be
ships
in
distress
and
that
is
part
of
the
concept
of
force
majeur.
And
for
humanitarian
reasons
all
states
agreed
that
if
their
ships
are
in
distress
they
are
allowed
to
dock
even
if
in
internal
waters.
Then
you
have
the
territorial
sea.
This
is
where
the
baseline
becomes
relevant.
It
says
not
exceeding
12
nautical
miles
from
the
baseline.
The
normal
baseline
is
based
on
the
Low
water
mark
method.
What
is
the
Low
water
mark
method?
During
low
tide
that
point
where
the
sea
water
meets
the
land,
that
is
the
low
water
mark.
Territorial
sea
is
to
be
determined
by
the
coastal
state
but
it
has
to
be
in
accordance
with
the
UNCLOS.
It
is
for
us
to
determine
our
baseline
as
long
as
in
accordance
with
UNCLOS.
in
magallona,
the
drawing
of
a
baseline
has
nothing
to
do
with
the
enlargement
of
the
territory
or
whatever
but
it
is
just
a
determination
of
the
baseline.
Limitation to territorial sea. Right of innocent passage by foreign ships.
Requirements:
1.Should
be
expeditious
and
continuous.
There
are
examples
in
the
convention
which
determine
activities
which
are
not
expeditious
and
continuous.
Such
as
Fishing.
Testing
of
weapons.
2.
that
it
should
be
innocent.
That
it
should
not
be
prejudicial
to
the
peace
or
security
of
the
coastal
state.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
5
Public
International
Law
Finals
Notes
2013
…fishing, testing of weapons, and other examples that are not considered expeditious and continuous.
Second,
“innocent”
and
to
be
innocent
the
threshold
is
it
shouldn’t
be
prejudicial
to
the
peace,
good
order
or
security
of
the
coastal
state.
Rights and obligations of submarines passing through the territorial sea:
Yes,
it
is
for
the
coastal
sate
to
determine
if
there
is
a
need
to
do
so
for
the
purpose
of
protecting
the
security
of
the
coastal
state.
Just take note in the convention of those instances not falling under innocent passage.
[if
the
coast
of
two
states
are
opposite
or
adjacent
to
each
other,
neither
of
them
is
entitled,
failing
agreement
between
them
to
the
contrary,
to
extend
its
territorial
sea
beyond
the
median
line
every
point
of
which
is
“equidistant”
from
the
nearest
points
on
the
baselines.
This
is
also
applicable
in
the
case
of
continental
shelf.
The
median
line
principle
is,
however,
subject
to
exceptions
such
as
Historic
title
or
other
special
circumstances.]
If
it
happens
that
there
are
two
territories
that
are
so
close
to
each
other
where
the
distance
is
more
than
24
nm
kay
tig
12
nm
man
unta,
kung
tabla
way
problema,
walay
international
water,
pero
kung
sobra
naay
international
water.
If
you
have
lets’
say,
the
distance
of
40
nm
so
you
get
12
nm
one
end
and
another
12
nm
one
end,
40
nm
minus
24
nm
=
16
nm
is
the
international
waters.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
6
Public
International
Law
Finals
Notes
2013
Note:
It
may
in
fact
be
solved
through
the
application
of
the
median
line.
Equidistant
from
the
nearest
points
on
the
baseline.
So
this
principle
is
also
applicable
in
the
case
of
the
continental
shelf.
But
in
practice,
these
are
resolved
by
treaties.
In
the
past,
there
may
have
been
issues
as
shown
in
the
North
Sea
Continental
Shelf
case.
That
was
in
the
1950s.
But
now
there
have
been
a
lot
of
treaties
already
between
the
concerned
states
delineating
their
territorial
sea.
Remember
that
in
the
North
Sea
case,
it
is
not
only
the
land
mass
that
is
considered
but
even
the
economic
interest.
That’s
why
it’s
important
for
states
to
sit
down,
negotiate,
and
come
up
with
a
conventional
delineation
of
the
territorial
sea.
And
that
is
done
at
present.
Still,
in
the
matter
of
territorial
sea,
it’s
important
for
you
to
take
note
of
the
rules
on
jurisdiction
over
foreign
vessels
in
territorial
waters.
This
is
a
rule
on
jurisdiction,
but
then
again,
as
I
have
discussed
and
you
have
observed
in
our
discussion,
this
may
not
always
be
the
case,
but
these
are
the
standards
that
states
hope
to
observe.
In
the
case
of
foreign
public
vessel
(usually
warships),
where
they
entered
lawfully
into
the
territorial
sea
(which
presupposes
they
obtained
the
consent
of
the
state),
no
jurisdiction
may
be
had
on
them
because
they
are
considered
part
of
the
territory
of
the
other
state.
This
is
what
is
called
“floating
territory.”
But
note:
this
presupposes
that
the
foreign
public
vessel
is
not
engaged
in
commercial
activities.
But
then
again,
as
I
mentioned
last
time,
this
may
not
be
observed
because
sovereignty
may
be
insisted
on
other
matters.
For
foreign
merchant
vessels,
there
is
full
civil
jurisdiction.
As
to
criminal
jurisdiction,
it
is
optional
on
the
part
of
the
state
to
exercise
criminal
jurisdiction
because
there
are
2
theories
on
the
exercise
of
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
7
Public
International
Law
Finals
Notes
2013
criminal
jurisdiction
on
foreign
ships.
There’s
the
English
rule
and
the
French
rule
(aka
flag-‐state
rule).
It
is
up
to
the
state
what
rule
to
exercise,
because
the
issue
on
jurisdiction
is
determined
by
the
forum.
The
English
rule
provides
that
the
coastal
state
can
exercise
jurisdiction—jurisdiction
on
crimes
committed
onboard
the
foreign
merchant
vessels.
Exception
is
when
the
offense
relates
to
administrative
matters
(e.g.,
matters
relating
to
the
discipline
of
the
crew).
The
French
rule
is
the
reverse.
It
is
the
flag
state
that
exercises
jurisdiction
unless
it
prejudices
the
security
and
peace
and
order
of
the
coastal
state,
in
which
case
it
yields
to
the
jurisdiction
of
the
coastal
state.
Note:
Flag
state
of
the
vessel
is
usually
the
state
where
it
is
registered.
If you look at these two rules, the effects are the same. Many authors say so.
Now
what
is
this
“archipelagic
waters”
by
the
way?
And
how
do
you
distinguish
it
from
internal
waters
and
territorial
sea?
What
is
the
difference
between
ARCHIPELAGIC
WATERS
and
INTERNAL
WATERS?
Archipelago
may
be
defined
in
two
ways:
1. It’s
a
group
of
islands
surrounded
with
a
body
of
water;
or
2. It’s
a
body
of
water
studded
with
islands.
This
relates
to
the
delineation
of
the
archipelagic
baseline
which
is
drawn
by
the
use
of
the
STRAIGHT
BASELINE
METHOD
and
the
rule
is
you
must
first
identify
the
outermost
points
of
the
outermost
islands
including
dry
reefs
in
the
archipelago
and
then
from
the
outermost
points
you
connect
them
then
you
draw
a
straight
line
connecting
such
points
of
the
archipelago.
There
are
a
lot
of
rule
that
you
will
have
to
take
note.
1. The
line
should
not
depart
from
the
natural
contours
of
the
archipelago.
2. As
to
water
and
land
ratio,
between
1:1
up
to
9:1
(water
to
land)
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
8
Public
International
Law
Finals
Notes
2013
3. Each
straight
line
should
not
exceed
100
nautical
miles.
We
are
talking
about
archipelagic
waters.
Internal
waters
are
those
INLAND
gyud.
Of
course
the
basic
concept
under
the
ARCHIPELAGIC
DOCTRINE
OF
TERRITORIALITY,
all
waters
AROUND,
BETWEEN,
and
CONNECTING,
and
we
have
adopted
that
in
our
National
Territory,
the
islands
of
the
archipelago
shall
be
considered
ad
INTERNAL
WATERS.
So
the
same
ba?
NO,
but
SHALL
be
considered
as
INTERNAL
WATERS.
It’s
not
internal
waters
BUT
shall
be
CONSIDERED
as
internal
waters.
What
does
it
mean?
The
way
exercise
dominion
over
internal
waters
is
not
exactly
the
same
as
exercise
of
dominion
over
archipelagic
waters.
How
do
we
distinguish
now
internal
waters
from
archipelagic
waters
kung
dili
diay
na
siya
internal
waters?
INTERNAL
WATERS,
the
only
limitation
in
internal
waters
by
the
way
in
relation
to
foreign
ships
is
SHIP
IN
DISTRESS.
In
TERRITORIAL
WATERS,
the
exception
is
RIGHT
OF
INNOCENT
PASSAGE.
The
Archipelagic
Waters
will
be
treated
ad
Internal
Waters,
therefore
exercise
of
jurisdiction
is
THE
SAME
as
exercise
of
jurisdiction
in
Internal
Waters
but
the
peculiar
characteristic
of
an
Archipelagic
Water
is
that
while
it
is
Internal
Water,
and
supposedly
not
subject
to
Right
to
Innocent
Passage
kay
dili
man
pwede
ang
Right
to
Innocent
Passage
sa
Internal
Water,
Territorial
Sea
hinuon
pero
kinahanglan
og
CONTINUOUS,
INNOCENT,
EXPEDITIOUS
and
NOT
ENTERING
Internal
Waters
mao
na
ang
Right
of
Innocent
Passage.
But
Archipelagic
Waters
may
be
the
subject
of
Right
of
Innocent
Passage
as
if
it
is
in
Territorial
Sea.
There
would
probably
be
a
difficulty
in
applying
the
rule
but
this
is
UNCLOS.
Would
that
prevent
a
state
from
coming
up
with
its
own
definition
of
Internal
Waters?
Limitation
to
Sovereignty
dba?
So
you
can
argue
otherwise.
For
some
valid
reasons,
I
don’t
think
sovereignty
of
any
state
has
been
totally
abandoned
with
respect
to
the
UNCLOS.
In
fact
there
are
a
lot
of
reservations.
CONTIGUOUS
ZONE
You
have
to
measure
from
the
Imaginary
Line
12
Nautical
Miles.
This
is
therefore
the
extent
of
the
Territorial
Sea.
Add
another
12
N.M.
then
that
is
your
CONTIGUOUS
ZONE.
…
You
know
one
problem
that
resulted
in
the
establishment
of
Internation
Humanitarian
Law
after
we
have
also
established
human
rights
law
is
the
distinction
and
the
delineation
between
Human
Rights
Law
and
the
International
Humanitarian
Law.
How
do
you
distinguish
one
from
the
other?
Isn’t
killing
proscribed
by
the
human
rights
law?
Since
under
the
UDHR,
each
individual
has
the
right
to
life?
Such
that,
life
of
an
individual
as
mandated
by
UDHR
shall
not
be
arbitrarily
taken!
So
killing
is
a
violation
of
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
9
Public
International
Law
Finals
Notes
2013
human
rights
law.
Yes?
When
there
is
war,
are
you
not
allowed
to
kill?
Are
you
or
are
you
not?
Ralph:
The
question
is,
who
are
you
allowed
to
kill?
Sir:
So
I
will
specify,
are
you
allowed
to
kill
civilians?
(ALL,
except
one
student,
said
No.)
Sir:
Barugi
ang
imong
yes
kay
that
is
correct.
(the
great
dissenter,
turned
out
to
be
the
one
who
got
it
right
yet
again)
Sir:
There
may
be
instances
when
killing
of
civilians
is
allowed.
This
happens
when
civilians
lose
their
protective
status.
When
they
directly
participate
in
hostilities;
it
is
very
common
for
civilians
to
take
up
arms
of
war
and
directly
participate
in
hostilities.
So
while
they
are
civilians
because
they
are
not
part
of
the
regular
armed
force,
they
can
be
attacked
because
they
have
lost
their
protective
status
when
they
had
directly
participated
in
hostilities.
The
safer
rule
is
of
course
killing
is
allowed
if
it
does
not
violate
principles
of
IHL.
Talking
about
military
necessity…
I
have
mentioned
earlier,
we
have
this
principle
of
collateral
damage.
For
as
long
as
the
attack
is
justified
under
the
principle
of
military
necessity,
and
with
due
observance
on
the
other
two
important
concept,
to
wit,
principle
on
proportionality
and
principle
of
distinction
then
any
death
of
a
civilian
is
justified
under
the
principle
of
military
necessity.
This
is
another
situation
when
death
of
a
civilian
is
not
actually
punishable.
Take
for
example
an
attack
on
a
lawful
military
base,
let
us
say,
a
military
base
of
an
opponent.
Is
that
a
lawful
target?
Of
course
it
is
because
it
is
a
lawful
military
object
hence
it
can
be
a
subject
of
a
lawful
attack.
Let
us
say
again
there
is
10,
000
military
personnel
and
one
day
Jollibee
delivered
10,
000
pieces
of
fried
chicken/chicken
joy
and
employing
1000
crew
for
such.
During
the
attack
it
affected
the
crew
and
destroyed
most
vehicles
used
for
delivery…That
is
COLLATERAL
DAMAGE.
So, it is not really absolutely prohibited to make and attack that will result to death of civilians.
So
now,
talking
about
that,
there
is
a
difficulty
in
using
Human
rights
law
and
the
IHL.
There
is
a
theory
that
in
times
of
armed
conflict,
there
is
an
entirely
new
set
of
laws
to
be
applied
and
it
is
IHL
and
no
other
law
so
human
rights
law
are
somehow
set
aside.
It
is
because
there
are
also
provisions
in
IHL
that
take
care
of
human
rights
like
torture
(prohibited
by
both).
But
it
is
not
because
there
is
torture
during
the
armed
conflict
that
human
rights
may
be
applied
but
it
may
be
in
the
case
that
the
specific
provisions
in
the
IHL
that
should
be
applied
rather
than
human
rights
law.
Apply
HRL
during
peace
and
IHL
during
an
armed
conflict,
but
that
distinction
is
not
yet
applicable
in
International
Law.
Until
now,
there
is
still
difficulty
when
to
apply.
So
now,
we
have
two
kinds
of
armed
conflict:
International
and
Non-‐international.
When
is
there
an
armed
conflict?
It
is
when:
a)
armed
force
between
states
(ex.
State
A
vs.
State
B)
b)
protracted
armed
violence
between
governmental
authorities
and
organized
armed
groups
(ex.
AFP
v.
Organized
Armed
Group)
c)
Between
between
such
groups
within
a
state
(ex.
Minority
vs.
Majority
Armed
Groups;
this
is
common
is
secessionist
movements)
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
10
Public
International
Law
Finals
Notes
2013
But,
take
note
than
when
the
conflict
is
between
states,
there
is
no
such
requirement
of
protracted
armed
violence.
Protracted
armed
violence
is
applicable
only
to
letter
B
and
C
in
the
paragraph
supra.
If
it
involves
A,
it
is
automatically
an
International
armed
conflict.
Protracted
armed
violence
is
a
manifestation
of
the
state’s
failure
to
Internal
System
to
resolve
armed
conflict.
IHL
applies
when
there
is
an
International
armed
conflict.
Q:
Kung
mu
lapas
sa
200
n.m
ang
natural
prolongation,
let’s
say
the
natural
prolongation
is
like
this…
not
more
than
350
n.m
from
the
baseline?
So
if
the
350
n.m
would
be
here,
maski
pa
iya
natural
prolongation
e-‐extend
pa
farther
….
No
more
rights
to
continental
shelf
may
be
exercised
after
350
n.m
even
if
it
is
natural,
that’s
the
limitation.
Coastal
state’s
rights
are
limited
to
harvesting
of
mineral
and
other
non-‐living
materials
in
the
subsoil.
Living
materials
included
provided
they’re
attached
to
the
shelf.
*200n.m
EEZ
man
sad
na
xa
so
apil
ang
fish
pero
kung
mu
extend
sad
na
xa
ang
200n.m
but
not
more
than
350
n.m,
non-‐living
ra
xa
wla
nai
labot
ang
fish
dri
High seas
beyond
200
n.m
from
the
base
line
and
it
is
res
communis
and
it
is
reserved
for
the
benefit
of
all
mankind
and
that
is
the
same
principle
applied
to
the
Outerspace.
In
the
work
of
Akehurst
he
even
mentioned
of
the
recent
development
in
international
law
on
the
exploitation
of
the
outerspace
naa
na
gae
mga
treaties
since
1967
on
outerspace
exploration
treaties
embodying
the
so-‐called
Common
Heritage
of
Mankind
principle
but
the
exploitation
should
not
be
useless
.
you
take
note
of
the
so-‐
called
Freedom
on
the
High
Seas
and
don’t
forget
when
it
comes
to
Airspace
you
also
have
to
take
note
of
Five
Air
Freedoms.
What
shall
govern
now?
How
may
states
exercise
jurisdiction
for
acts,
people,
vessels
on
the
high
seas?
(this
presupposes
that
states
can
exercise
jurisdiction)
High seas will have to be governed by two sets of legal systems:
1. International
law
2. Law
of
the
flag
state
In
the
past
there
had
been
a
lot
of
issues
concerning
what
they
call
the
Flags
of
Convenience
and
modern
international
law
now
would
have
to
do
away
with
mere
flags
of
convenience
and
would
require
effective
link
(nationality
theory)
between
the
registered
vessel
and
the
place
of
registration.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
11
Public
International
Law
Finals
Notes
2013
Usually
it
must
be
shown
that
the
place
of
registration
must
have
exercised
authorities
(mostly
administrative)
on
the
vessel.
...it
must
be
shown
that
the
place
of
registration
must
have
exercised
some
authorities,
administrative
mostly,
on
the
vessel.
Kay
kung
registered
ra
na
sya
unya
walay
exercise
of
authority
over
the
vessel,
it’s
a
flag
of
convenience-‐
para
lang
registration,
and
that
should
not
be
considered
as
the
place
of
registration
for
the
purposes
of
determining
flag
of
the
state
rule.
Kanang
flags
of
convenience,
it
can
assert
that
it's
no
longer
the
rule
in
international
law.
There
should
likewise
be
not
only
registration
but
effective
link,
murag
nationality
theory.
Effective
link
between
the
authority
of
the
place
of
registration
and
the
vessel.
And
this
link
is
shown
in
the
exercise
of
some
administrative
authority
such
as
monitoring,
regulatory
requirements.
It
must
have
been
shown
that
in
many
cases
the
ship
had
been
subjected
to
monitoring
requirements,
submission
of
reportorial
requirement
or
have
been
subjected
to
inspection,
have
been
subjected
to
other
administrative
powers.
So
effective
link.
And
take
note,
while
a
person
may
have
various
and
several
citizenships,
a
ship
can
only
have
or
use
only
one
flag.
And
then
in
relation
to
high
seas,
you
take
note
of
the
instances
where
warships
may
interfere
with
merchant
vessels
of
another
state,
obviously,
in
the
high
seas.
These
are
bases
for
possible
interferences
with
merchant
ship.
1.Stateless
ship,
unsa
man
ni?
Non-‐registered.
Sir,
kung
registered
but
it's
just
a
flag
of
convenience,
can
it
be
considered
(as
stateless
ship)?
Well
that's
highly
disputable.
It
may
still
be
argued
otherwise
that
it
is
not
a
stateless
ship.
What
is
referred
to
as
stateless
ship
is
that
it
has
no
registration.
2.Hot
pursuit.
As
usual.
You
know
the
concept.
The
crime
must
have
been
committed,
in
fact
it
is
the
requirement,
the
offending
vessel
must
have
commenced
the
commission
of
the
crime
in
the
territorial
waters
before
hot
pursuit
may
be
legal
or
legitimate.
Pero
problema
lang
kung
hinay
imong
warship,
continuing
ang
offense,
naabtan
nimo
didto
na
beyond
sa
territorial
sea
kay
tungod
hinay
imong
warship,
di
na
na
ma-‐hot
pursuit?
Dapat
naay
evidence
of
commission
or
commencement
of
crime
in
the
territorial
sea.
Remember
ha,
dapat
nag-‐commence
sa
territorial
sea
para
ma-‐hot
pursuit.
Meaning
it's
valid
to
interfere
with
that
merchant
vessel
even
in
the
high
seas.
3.Right
of
approach.
4.Treaties.
5.Piracy,
of
course;
universality
theory.
6.Belligerent
rights.
Belligerent
states
through
their
warship
may
inspect
ships
following
the
state
of
the
flag
rule
if
they
are
bound
by
the
laws
of
neutrality.
Kung
at
war,
ang
usa
ka
belligerent
state
may
in
fact
approach
and
inspect
the
ship
of
what
is
supposed
to
be
a
neutral
state
because
of
ongoing
war.
That
is
allowed.
To
determine
if
really
that
state
or
at
least
this
merchant
vessel
have
been
observing
the
laws
of
neutrality.
That
is
allowed
in
the
laws
of
war.
7.And
of
course
self-‐defense
is
always
available
and
whenever
authorized
by
UN.
Remember
the
jurisdiction
of
municipal
court
over
crimes
committed
in
high
seas?
You
know
this
already.
Let's
go
to
air
space
and
outer
space.
As
I
have
mentioned
earlier,
this
is
the
principle
you
should
take
note,
applicable
to
air
space,
outer
space
and
on
the
high
seas:
the
exploration
and
use
or
utilization
of
resources
beyond
the
national
jurisdiction
shall
be
the
province
of
all
mankind
and
should
be
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
12
Public
International
Law
Finals
Notes
2013
carried
out
for
the
benefit
and
in
the
interest
of
all
countries
irrespective
of
the
degree
of
their
economic
and
scientific
development.
How
is
this
materialized
by
the
way?
Because
this
is
just
a
principle.
You
cannot
right
away
invoke
it
as
against
particular
conduct
of
state
not
observing
the
common
heritage
of
mankind
principle.
This
one
however
is
materialized
by
treaties
and
conventions
kay
mura
ba'g
bound
ang
states
to
agree
and
come
up
with
specific
terms
and
conditions
on
explorations.
Outer
space
exploration,
there's
already
a
treaty
I
think
sometime
in
1967.
You
just
have
to
take
note
of
that.
We'll
start
with
human
rights
law
next
meeting.
After
human
rights
law,
a
brief
discussion
on
environmental
law.
Laws
on
war
na
dayon
and
IHL.
OK
ra?
Kaya.
KAKAYANIN
NATIN!
=D
we
are
done
with
the
law
of
the
seas
now
let’s
go
to
human
rights
HUMAN
RIGHTS
LAW
The
3
generations
or
categories:
a. UN
declaration
of
human
rights
1. Civil
and
Political
Rights
2. Economic,
social
and
cultural
rights
b. opinions
of
publicists
3. rights
to
peace,
self-‐determination.
Common
heritage
of
mankind
principle,
environment,
development,
minority
rights
international
law
has
divided
human
rights
law
into
3
generations
magallona
has
mentioned
of
this
akehurst
however
criticized
the
categorization
of
human
rights
because
it
might
eliminate
the
idea
that
these
rights
embodied
in
the
human
rights
documents
that
understood
to
be
natural
rights
and
inalienable
rights
of
every
individual
the
first
generation
of
human
rights
law
is
so
called
civil
and
political
rights
as
first
established
in
the
universal
declaration
of
human
rights
and
later
on
expanded
in
the
later
international
covenant
of
civil
and
political
rights
understand
the
reason
why
the
nations
of
the
world
started
codifying
certain
standards
or
norms
of
human
rights
law
then
civil
and
political
rights
during
the
time
that
people
have
been
fighting
of
imperial
government
and
a
lot
of
people
of
course
and
constituents
and
inhabitants
are
subject
to
torture,
illegal
detention
and
crimes
of
genocide
so
these
started
of
what
they
though
important
human
rights
that
can
be
found
in
international
human
rights
document.
Later
they
realized
that
after
they
achieved
peace
and
after
we
became
a
little
more
civilized
and
then
we
started
prohibiting
the
prohibition
on
the
use
of
force
because
we
thought
that
this
world
will
be
a
better
place
to
live
in
but
we
realized
that
a
lot
of
concerns
came
up
like
the
right
to
self
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
13
Public
International
Law
Finals
Notes
2013
determination.
The
right
to
economic
rights
and
even
the
right
to
educations,
the
rights
of
workers
and
the
women
and
the
right
to
fair
treatment,
the
right
against
racial
discrimination.
So
after
the
civil
and
political
rights
in
the
UN
we
included
the
economic
and
cultural
rights
and
these
of
course
is
now
embodied
in
the
international
covenant
of
civil
and
political
rights
and
after
all
these.
Many
authors
and
experts
thought
of
adding
a
separate
from
the
economic,
civil
and
cultural
rights,
the
specific
rights
on
the
right
to
self
determination
and
even
on
the
matter
of
development
and
environment
as
the
3rd
generation
or
category
of
human
rights
law.
But,
the
Universal
declaration
of
human
rights
by
the
UN
is
not
a
legally
binding
instrument
as
it
merely
recommends
states
to
keep
it
in
mind
in
the
enactment
of
legal
measures.
However,
if
the
particular
right
mentioned
there
has
already
ripened
into
a
customary
international
law
(e.g.
torture,
slavery,
racial
discrimination),
violation
of
the
human
right
principles
a
“matter
of
international
concern”
What
is
the
use
of
studying
international
human
rights
law
by
the
way?
You
learned
in
the
past
that
human
rights
documents
are
what
we
call
in
international
law
as
“soft
law”
remember
that?
And
therefore
these
principles
we
see
in
human
rights
documents
and
other
that
the
international
bill
of
rights,
the
universal
declaration
of
human
rights,
ICCPR
and
ICSCER.
These
are
what
we
call
soft
laws
and
therefore
they
are
not
binding
on
states
and
just
the
same
that
they
are
not
binding
on
states
they
are
norms
that
are
not
irrelevant
to
every
state
and
that
what
characterizes
a
soft
law
not
binding
but
not
an
irrelevant
political
maxim
or
norm.
What
is
the
use
of
studying
them?
Di
man
kaha
binding
so
unsa
man
gamet
ani?
What
is
the
significance
of
human
rights
law?
• Magallon
naa
man
daghan
gi
sulte
• Guidelines,
standards
and
basis
for
domestic
enactments
and
domestic
legislation
and
these
sets
of
international
law
are
recommendatory
to
the
states
and
they
should
take
consideration
in
enactment
of
legislation
except
to
that
what
has
been
mandated
on
what
to
be
observed
in
human
rights
document
o Should
it
be
taken
as
jus
cogens
or
erga
omnes
• These
merely
are
recommendatory
1. state
x
passed
a
law
imposing
death
penalty
to
the
crimes
of
homicide,
infanticide,
murder,
parricide,
kidnapping,
robbery,
rape,
rebellion,
sedition
and
all
crimes
involving
dangerous
drugs.
How
may
the
law
be
assailed
invalid?
2. When
A,
a
citizen
of
state
X,
wrote
in
public
that
their
president
is
corrupt
and
a
drug
lord,
the
president
created
a
fact
finding
commission
which
recommended
that
A
be
punished
for
what
he
wrote
against
the
president.
A
was
then
sent
to
jail
3. Due
to
budget
constraints,
the
president
of
state
Y
decided
to
abolish
free
primary
education
and
encouraged
instead
private
institutions
to
give
affordable
primary
education
to
all.
May
this
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
14
Public
International
Law
Finals
Notes
2013
act
of
the
government
of
State
Y
assailed
as
invalid?
4. What
is
torture?
What
is
racial
discrimination
Except
to
the
extent
that
what
has
stated
or
mandated
that
it
should
be
observe
in
the
human
rights
law
documents
when
they
partake
of
the
nature
of
jus
cogens
or
on
the
part
of
the
states
they’re
erga
omnes,
then
they
ceased
to
become
merely
recommendatory.
As
when
we
speak
for
example
about
the
prohibition
of
torture,
slavery,
racial
discrimination
as
you
had
already
learned.
These
are
jus
cogens
norms.
But
other
than
these
matters,
anything
else
is
recommendatory.
Question:
1. State
X
passed
a
law
imposing
Death
Penalty
to
the
crimes
of
Homicide,
Infanticide,
Murder,
Parricide,
Kidnapping,
Robbery,
Rape,
Rebellion,
Sedition
and
all
crimes
involving
dangerous
drugs.
How
the
law
may
be
assailed
as
invalid?
Answer:
You
might
want
to
invoke
your
own
Constitution
but
it
would
be
more
persuasive
if
you
also
invoke
Human
Rights
law.
Because
these
are
standards,
norms
observed
by
the
family
of
nation
and
so
you
are
to
convince
Supreme
Court
of
the
standards
existing
in
the
Human
Rights
Law
and
perhaps
successfully
convince
the
court
to
strike
it
down
as
unreasonable,
probably
in
relation
to
the
constitution
on
the
right
to
due
process.
Can
we
find
provision
in
a
Human
Rights
document
that
we
can
use
in
order
to
convince
the
court?
Mao
man
ni
ang
purpose,
we
are
telling
the
court
that
we
are
bound
to
observe
or
probably
the
Philippines
is
committed
to
observe
standards
set
forth
in
the
Universal
Declaration
of
Human
Rights.
Art.
6
of
the
UDHR
xxxx
2. In
countries
which
have
not
abolished
the
death
penalty,
sentence
of
death
may
be
imposed
only
for
the
most
serious
crimes
in
accordance
with
the
law
in
force
at
the
time
of
the
commission
of
the
crime
and
not
contrary
to
the
provisions
of
the
present
Covenant
and
to
the
Convention
on
the
Prevention
and
Punishment
of
the
Crime
of
Genocide.
xxxx
This
explains
why
when
we
made
our
some
sort
of
suspension
of
the
imposition
of
death
penalty,
we
made
a
reservation
that
if
we
re-‐impose
death
penalty,
it
can
only
be
re-‐impose
on
the
most
serious
crime
we
call
in
the
constitution
as
the
heinous
crime
as
Congress
may
be
define.
That
is
an
observance
of
these
standards
that
States
do
believe
that
death
penalty
can
only
be
impose
on
most
serious
crimes.
See,
obedient
pa
ka.au
ang
Philippines
diha.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
15
Public
International
Law
Finals
Notes
2013
2. When
A,
a
citizen
of
State
X,
wrote
in
public
that
their
President
is
corrupt
and
a
drug
lord,
the
President
created
a
fact
finding
commission
which
recommended
that
A
be
punished
for
what
he
wrote
against
the
President.
A
was
then
sent
to
jail.
Was
the
act
of
the
government
valid?
Answer:
Art.
19
(3)
ICCPR
3. The
exercise
of
the
rights
provided
for
in
par.
2
of
this
article
carries
with
it
special
duties
and
responsibilities.
It
may
therefore
be
subject
to
certain
restrictions,
but
these
shall
only
be
such
as
are
provided
by
law
and
are
necessary:
a.) For
respect
of
the
rights
or
reputations
of
others;
b.) For
the
protection
of
national
security
or
of
public
order
(ordre
public),
or
of
the
public
health
or
morals.
This
is
about
freedom
of
expression,
correct?
Because
you
are
trying
to
criticize
a
government
official.
Isn’t
this
libelous?
Calling
the
president
corrupt.
It
cannot
be
that
the
government
shall
decide
on
your
act
and
say
that
that
is
libelous
and
send
you
to
jail?
No?
Basa.
J
Article
19,
paragraph
3
ICCPR:
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom
to seek, receive and impart information and ideas of all kinds, regardless of frontiers,
either orally, in writing or in print, in the form of art, or through any other media of his
choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it
special duties and responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public
You
were
right
in
mentioning
that
this
shall
only
be
such
as
are
provided
by
law.
Tan-‐awa.
Siguro
the
principle
of
nullum
poena
sine
legi
(paki-‐check
J)is
a
principle
,
there
is
no
crime
when
there
is
no
law
punishing
it
is
indeed
a
principle
in
international
law
and
in
fact
even
embodied
in
the
restrictions
of
the
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
16
Public
International
Law
Finals
Notes
2013
freedom
of
expression.
In
other
words,
even
the
ICCPR
talks
of
the
rule
of
law,
that
there
should
be
a
law
that
allows
the
restriction
of
a
right
or
a
freedom.
Next,
due
to
budget
constraints,
the
President
of
State
Y
decided
to
abolish
primary
education
and
and
encouraged
private
institutions
to
offer
affordable
primary
education
and
available
to
all.
Can
you
assail
the
act
of
State
Y
as
invalid?
Hain
naman
to,
ICESCR.
Article
13
paragraph
2
(a):
2.
The
States
Parties
to
the
present
Covenant
recognize
that,
with
a
view
to
achieving
the
full
realization
of
this
right:
(a) Primary education shall be compulsory and available free to all;
Buanga,
naa
diay
international
covenant
on
economic,
social
and
cultural
rights?
Pero
naa
bay
responsibility?
No.
You
can
only
influence,
probably
persuade
a
court
or
a
government
to
act
on
your
concern
that
a
particular
governmental
act
is
not
in
accordance
with
the
norms
set
forth
in
human
rights
law
documents.
Now
how
does
UN
accomplish
this
one?
There
is
a
system
of
monitoring
in
human
rights
law.
A
commission
had
been
created
by
the
UN
in-‐charge
of
examining
and
then
reporting
to
the
General
Assembly
violations
of
human
rights
law.
Unya
i-‐mention
dayon
didto
during
general
assembly
based
on
the
report
for
example,irank
nila
ug
kinsa
tong
#
1
violator
of
a
specie
of
human
right
unya
di
ka
mauwaw
#1
violator
ka
didto?
Probably
encouraging
or
even
motivating
states
to
exert
efforts,
implement
programs
in
order
to
comply
with
the
norms
set
forth
in
the
international
human
rights
law
documents.
Aside
from
that,
human
rights
law
document
may
be
a
basis
of
the
definition
of
a
prohibited
act
at
the
domestic
level.
You
want
for
example
to
pass
a
law
torture.
Where
will
you
get
the
definition
of
torture?
It
should
be
a
universal
concept
so
you
might
want
to
visit
for
example
conventions
pertaining
to
torture.
And
then
your
statute
wants
to
know
the
meaning
of
racial
discrimination
then
you
can
make
use
of
various
conventions
on
the
matter.
So
standard
for
domestic
legislative
measures.
Then
we
go
to
International
Environmental
Law
very
quickly.
It
is
a
modern
field
of
public
international
law.
Kanang
1970s
modern
pa
na
huh.
Before
Stockholm
Conference
in
1972
and
other
declarations
affecting
environment
,
an
arbitrator
who
was
chosen
by
US
and
Canada
in
this
Smilter(?)
case,
quoted
in
most
textbooks,
here
the
arbitrator
made
a
pronouncement
that
“
no
state
has
the
right
to
use
or
permit
the
use
of
its
territory
in
such
a
manner
as
to
cause
damage
on
the
territory
of
another
..”
in
this
case
Canada
allowed
the
smelting
of
zinc
that
resulted
to
pollution
which
affected
Washington.
Ingana
ka
serious
ang
pollution.
Adjacent
baya
ang
Canada
ug
US
huh
unya
Washington
is
on
the
northern
part
of
the
US
so
that
was
the
reason
for
calling
an
arbitration.
Don’t
you
know
that
this
is
even
a
civil
law
concept?
So
a
lot
of
principles
in
environmental
law
actually
come
from
civil
law
concepts.
Or
even
police
power
concept.
Unsa
man
ni
sya,
“sic
utere
tuo
ut
alienum
non
laedas”principle
J
you
remember
that?
Unsa
man
na?
“
Use
your
own
so
as
not
to
injure
another.”
Tan-‐awa
ra,
tuo
mo
ug
gabinuang
ko
huh,
naa
na.
It’s
your
territory,
your
natural
resource
okay
its
your
property
but
it
should
only
be
used
so
as
not
to
injure
also
the
rights
of
other
states.
And
that
was
the
start
of
calling
on
an
international
convention
concerning
the
environment.
The
UN
general
assembly
by
a
resolution
called
for
a
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
17
Public
International
Law
Finals
Notes
2013
conference
for
the
international
environmentakl
law
which
was
held
on
1972
in
Stockholm,
Sweden.
So
thisis
now
the
what
we
call
Stockholm
Conference
or
Declaration.
Cession
-‐ Transfer
of
territory,
usually
by
treaty,
from
one
state
to
another
-‐ Note:
if
there
were
defects
in
the
ceding
state’s
title,
the
title
of
the
state
to
which
the
territory
is
ceded
will
be
vitiated
by
the
same
defects
applying
“nemo
dat
quod
non
habet”
[no
one
can
give
what
he
does
not
have]
(see
Island
of
Palmas
Case)
o Argued
to
be
part
of
the
Phil
territory,
when
Philippines
was
ceded
by
Spain
to
US.
o Discovery
was
not
followed
by
effective
occupation
Occupation
-‐ The
acquisition
of
a
terra
nullius(usually
uninhabited
territory),
that
is,
territory
which
immediately
before
the
acquisition,
belonged
to
no
state.
-‐ Note:
a
territory
is
“terra
nullius”
either
because
it
really
did
not
belong
to
any
state
or
may
have
been
abandoned
by
previous
sovereign.
There
is
“abandonment”
if
there
is
(1)failure
to
exercise
authority
with
(2)intent
to
abandon.
o Abandonment,
based
on
intent,
not....
o 2
components
–
failure
to
exercise
authority
+
intent
to
abandon;
is
a
question
of
fact.
o Discovery
of
territory
is
not
sufficient
to
acquire
a
terra
nullius
territory
as
it
merely
gives
“inchoate
title”,
that
is,
an
option
to
occupy
the
territory
within
a
reasonable
time
(no
fixed
time,
but
in
relation
to
prescription,
it
is
shorter),
during
which
time
other
states
were
not
allowed
to
occupy
the
territory.
Thus,
occupation
requires
“effective
control”
and
“intention
and
will
to
act
as
sovereign”.
o If
state
uses
force
to
prevent
other
states,
it
cannot
be
liable
since
it
was
exercising
within
its
inchoate
right
of
the
discovering
state.
o How
is
effective
control
manifested?
Acts
of
governmental
authority,
establishment
of
administration;
the
governed
and
the
governing.
o
Prescription
-‐ As
distinguished
from
occupation,
this
presupposes
acquisition
of
territory
belonging
to
another
state.
It
also
requires
“effective
control”
and
“intention
and
will
to
act
as
sovereign”.
-‐ However,
since
acquiescence
(e.g.
lack
of
protest)
by
the
losing
state
is
required
for
there
to
have
effective
control
(or
occupation),
a
long
period
of
time
is
required
in
prescription
than
in
occupation.
(Cf.
Immemorial
prescription
doctrine)
o Beyond
the
memory
of
man.
Conquest/Subjugation
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
18
Public
International
Law
Finals
Notes
2013
-‐ No
longer
applicable
-‐ Accepted
in
the
19th
century
since
the
prohibition
against
the
use
of
force
had
not
yet
ripened
into
a
customary
internal
law.
-‐ It
is
now
illegal
to
acquire
territory
by
force.
See
“Stimson
Doctrine”.
It
was
only
in
1970
when
the
UN
General
Assembly
issued
a
resolution
declaring
the
acquisition
of
territory
by
force
as
illegal.
However,
this
rule
applies
only
to
international,
not
civil,
wars.
-‐
Operation/accretion
Adjudication (when the parties agree usually in the form of arbitration)
-‐ Before
UNLCOS,
most
laws
of
the
sea
were
merely
customary
international
laws
-‐ Now,
governed
by
the
1982
UNCLOS
III
(UNCLOS
I-‐1958;
UNCLOS
II-‐1969)
which
came
into
force
in
1994
after
the
60th
party
signed
it
-‐ Basic
zones/areas
o Internal
waters
§ Includes
• ports,
• harbours,
• rivers,
• bays
(depends
of
the
bay,
if
more
than
half
of
the
circle,
can
be
part
of
the
internal
waters,
if
not
more
than
half
of
a
circle,
which
comprises
24
nautical
miles,
read
Magaleona),
•
straits
(if
exceeds
nautical
miles,
....)
• lakes
and
• canals
(cf.
Archipelagic
doctrine)
§ The
coastal
state
can
prohibit
entry
into
its
internal
waters
by
foreign
ships,
except
for
ships
in
distress.
(vis
a
vis
the
exercise
of
absolute
dominion)
§ When
already
within
internal
waters,
different
legal
questions
arise
depending
on
the
kind
of
vessel
that
is
within
the
internal
water;
merchant
ships,
warships,
other
foreign
non-‐commercial
ships.
§ Similarity
between
archipelagic
waters
and
internal
waters(
we
exercise
absolute
dominion
o Territorial
sea
§ Not
exceeding
12
n.m.
from
the
“baseline”.(otherwise,
wrong
answer)
beyond
this
is
international
water
§ Baselines:
• 1)
Normal
Baseline
(low
Water
Mark
Method);
and
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
19
Public
International
Law
Finals
Notes
2013
• 2)
Straight
Baseline
§ Limitation:
“Right
of
Innocent
Passage”
by
foreign
ships.
May
be
exercise
because
actually
we
have
an
archipelagic
water.
• Must
be
o (1)
“expeditious”
and
“continuous”(it
should
not
enter
internal
water)
and
§ NO:
fishing,
testing
of
weapons,
o (2)
“innocent”
§ It
is
innocent
if
not
prejudicial
to
the
peace,
good
order
or
security
of
the
coastal
state.
Fishing
vessels
must
comply
with
local
laws
and
submarines
must
navigate
on
the
surface
and
show
their
flag.
§ May
be
suspended
for
protection
of
security
of
the
coastal
state.
§ SUBMARINE:
obligations
when
passing
through?
Must
navigate
on
the
surface
and
show
their
flag
§ Note:
• It
is
for
us
to
determine
the
baseline.
It
has
nothing
to
do
with
expansion
of
territory
but
only
to
determine
baseline
(2011
case,
read)
• Instances:
o Asdf
§
.
§ Median
Line
• Where
the
coasts
of
two
states
are
opposite
or
adjacent
to
each
other,
neither
of
them
is
entitled,
failing
agreement
between
them
to
the
contrary,
to
extend
its
territorial
sea
beyond
the
median
line
every
point
of
which
is
“equidistant”
from
the
nearest
points
on
the
baselines.
(Also
applicable
in
the
case
of
continental
shelf)
• In
practice,
it
is
resolved
by
treaties.
• Exceptions:
Historic
title
or
other
special
circumstances.
• Read:
North
Sea
Continental
shelf
o Beyond
12nm
–
international
waters
o High
Seas
–
after
the
200
nm
o FULL
DISCRETION
–
internal
waters
and
territorial
sea.
Considered
part
of
the
territory
of
the
state.
Land
Mass
+
Maritime
Domain
=
territory,
element
of
state.
§ Jurisdiction
of
coastal
state
over
foreign
vessel
in
territorial
waters
(this
applies
if
they
are
there
lawfully,
consent
is
present)
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
20
Public
International
Law
Finals
Notes
2013
Foreign
Public
vessel
–
no
jurisdiction
o
§ Floating
territories
–
warships
§ Presupposes
that
it
does
not
engage
in
commercial
activities.
o Foreign
Merchant
vessel
–
full
civil
jurisdiction,
but
criminal
jurisdiction
may
or
may
not
be
exercised
by
the
coastal
state
(optional).
o (cf.
“English
Rule
and
the
“French[Flag
State]
Rule”
§ English
Rule
–
the
coastal
state
can
exercise
jurisdiction
over
offenses
committed
on
the
ship
on
territorial
waters.
• Exc:
if
offense
pertains
to
administrative
matters,
such
as
discipline
of
the
crew.
§ French
Rule
–
GR:
the
flag
state;
Exc:
unless
it
prejudices
the
security
of
the
coastal
state;
§ Archipelagic
waters
vs.
Territorial
waters
vs.
Territorial
Sea
o Archipelagic
waters
• Figure
14
of
Magaleona
• Identify
the
outermost
points
of
the
outermost
islands
including
dry
reefs.
• Must
not
depart
from
the
natural
contour
of
the
archipelago
• Water:Land
ratio
must
not
exceed
9:1
• Each
line
should
not
exceed
100nm
o Internal
waters
=
archipelagic
waters
§ Since
it
is
deemed,
but
not
actually
§ Exercise
of
jurisdiction
is
the
same
as
internal
o But,
subject
to
the
right
of
innocent
passage
of
foreign
ships
just
like
“territorial
sea”
§ This
is
peculiar
to
Archipelagic
sea,
which
if
internal
waters
cannot
be.
• NOTE:
this
is
UNCLOS,
can
the
State
determine
its
own
internal
waters.
§
o Contiguous
Zone
§ 24
n.m.
from
the
baseline.
§ JURISDICTION:
Coastal
State
is
limited
to
Protective
Jurisdiction
only,
that
is,
to
prevent
infringement
of
its
customs,
fiscal,
immigration
or
sanitary
regulations
• We
can
extend
our
domestic
laws
to
the
contiguous
zone
for
the
purpose
of
protecting
the
above
regulations.
• But
not
part
of
the
territory,
therefore
is
already
International
Waters.
o So
12
is
territorial,
the
other
12
is
international
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
21
Public
International
Law
Finals
Notes
2013
• •
Rights
and
limitations:
There
is
no
more
full
jurisdiction.
It
is
limited
only
to
the
so-‐called
protective
jurisdiction
of
the
state.
Protective
in
a
sense
that
the
coastal
state
is
allowed
to
exercise
jurisdiction
for
purposes
of
preventing
infringement
of
customs
laws,
fiscal,
immigration,
and
sanitary
regulations,
meaning,
you
can
extend
the
enforcement
of
your
customs
laws,
fiscal,
immigration
and
sanitary
regulations
even
outside
the
territorial
sea
o Exclusive
Economic
Zone
§ 200
nm
from
the
baseline
§ Coastal
state
has
sovereign
rights
over
all
the
economic
resources
of
the
sea,
seabed,
and
subsoil
which
includes
not
only
fish
but
also
minerals
beneath
the
seabed
§ However,
if
the
coastal
stat
is
unable
to
fully
exploit
the
resources,
it
must
make
arrangement
to
share
the
surplus
with
other
states.
§ NOT
PART
OF
THE
TERRITORY
o Continental
Shelf
(more
of
an
area,
not
a
zone)
§ Consists
of
the
seabed
and
the
subsoil
of
the
submarine
areas
that
extend
beyond
its
territorial
sea
throughout
the
natural
prolongation
of
its
land
territory
to
the
outer
edge
of
the
continental
margin,
or
to
a
distance
of
200nm,
whichever
is
greater.
But,
it
shall
not
exceed
350nm
from
the
baseline
in
case
the
natural
prolongation
exceeds
more
than
200nm
§ Coastal
state’s
rights
are
limited
to
harvesting
of
mineral
and
other
“non-‐living”
materials
in
the
subsoil
and
“living
things
attached
to
the
shelf”.
Continental
shelf
case
–No
question
if
the
CS
is
less
than
200nm,
because
you
can
say
that
even
if
the
CS
is
100nm
lang,
the
state
can
explore
and
enjoy
exclusive
right
over
marine
resources
up
to
200nm
because
of
the
exclusive
economic
zone
principle.
If
you
are
coastal
state
and
you
are
the
end
of
the
state,
then
you
have
a
territorial
sea.
Those
in
the
middle
of
the
continent,
no
territorial
sea.
So
what
is
your
right
over
the
continential
shelf?
According
to
the
ICJ,
if
shorter
than
200nm
,
then
you
go
up
to
200nm.
What
if
the
natural
prolongation
of
the
CS
is
more
than
200nm?
Can
the
coastal
state
that
it
should
reach
the
end,
like
if
the
CS
reaches
400
nm?
Take
note,
touching
now
the
200nm
of
the
opposite
state.
Can
you
insist
that
until
it
reaches
the
seabed
(this
is
what
you
call
the
end
of
the
CS).
Does
that
mean
that
the
right
of
the
coastal
state
over
the
natural
resources
in
the
CS,
supposed
to
extend
up
to
the
natural
promulgation
of
the
CS
up
to
400nm?
ICJ
says
NO.
We
follow
the
EEZ
principle.
IF
the
situation
is
like
that
and
encroaching
now
on
the
EZ
of
the
other,
you
are
only
up
to
your
200nm.
§
o High
Seas
§ Beyond
200
nm
from
the
baseline
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
22
Public
International
Law
Finals
Notes
2013
May
be
used
feely
by
ships
of
all
nations
(including
land-‐locked
states)
§
“Freedom
on
the
high
seas”
includes:
§
• freedom
of
navigation,
• freedom
of
fishing,
• freedom
to
lay
submarine
cables
and
pipelines
and
• freedom
to
fly
over
the
high
seas.
o These
freedoms
are
however
subject
to
certain
conventions
and
agreements.
(cf.
“Five
Air
Freedoms”)
§ Res
communis
§ But
the
exploitation
must
not
be
useless.
§ As
a
rule,
ships
in
the
high
seas
are
governed
by
• (1)international
law;
and
• (2)
the
flag
of
the
state
§ The
“flag
of
the
state”
refers
to
the
nationality
of
the
flag,
which
is
determined
by
the
place
of
registration.
§ A
ship
can
only
use
one
flag
(unlike
persons)
§ “Flags
of
Convenience”
–
countries
that
allow
registration
of
a
ship
for
a
fee.
• Must
be
accompanied
by
authority,
administrative.
§ Interference
(by
warships)
with
merchant
ships
of
another
states
in
the
High
Seas:
• Stateless
ships
(non
registered,
what
about
flags
of
convenience?
can
argue)
• Hot
pursuit
o The
offending
vessel
must
have
the
commenced
the
commission
of
the
crime
in
the
territorial
waters.
• Right
of
approach
• Treaties
• Piracy
(universality
Theory)
• Belligerent
Rights
(if
bound
by
the
laws
of
neutrality;
if
in
state
of
war,
the
belligerent
can
approach
the
vessel
of
the
neutral
state)
The
law
on
peace,
war,
and
neutrality)
• Self-‐Defense
• Authorized
by
UN
-‐ Baseline
(Low
Water
Mark
Method
vs.
Straight
Baseline
Method)
o Low
Water
Mark
Method
–
for
non
archipelagic
states
o Straight
Baseline
Method
–
for
archipelagic
states
o In
the
past,
cannonball
theory,
which
was
3
miles,
the
range
of
a
cannonball.
o It
was
changed
to
the
12
nautical
mile
rule.
-‐ Jurisdiction
of
Municipal
Courts
o Principles
§ Nationality
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
23
Public
International
Law
Finals
Notes
2013
§ Protective
§ objective
-‐ Air
Space
and
Outer
Space
o “COMMON
HERITAGE
OF
MANKIND”
o Applicable
to
the
air
space,
other
space
and
even
the
high
seas,
the
term
means
that
the
exploration
and
use
of
utilization
of
resources
in
areas
beyond
national
jurisdiction
“shall
be
the
province
of
all
mankind
and
shall
be
carried
out
for
the
benefit
and
in
the
interests
of
all
countries,
irrespective
of
their
degree
of
economic
or
scientific
development”.
Note:
The case of Magallona, et al vs. Ermita (PD 1599)
Take note of the various (4) principles of International Environmental Law
Principle
2.
States
have,
in
accordance
with
the
Charter
of
the
United
Nations
and
the
principles
of
international
law,
the
sovereign
right
to
exploit
their
own
resources
pursuant
to
their
own
environmental
and
developmental
policies,
and
the
responsibility
to
ensure
that
activities
within
their
jurisdiction
or
control
do
not
cause
damage
to
the
environment
of
other
States
or
of
areas
beyond
the
limits
of
national
jurisdiction.
(2)
Sustainable
Development.
Use
of
resources/development
of
a
nation
should
be
done
with
consideration
to
the
environment.
Development
may
occur
or
continue
but
taking
into
consideration
the
effects.
Principle
3.
The
right
to
development
must
be
fulfilled
so
as
to
equitably
meet
developmental
and
environmental
needs
of
present
and
future
generations.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
24
Public
International
Law
Finals
Notes
2013
Conservation
Principle
8.
To
achieve
sustainable
development
and
a
higher
quality
of
life
for
all
people,
States
should
reduce
and
eliminate
unsustainable
patterns
of
production
and
consumption
and
promote
appropriate
demographic
policies.
Integration
Principle
4.
In
order
to
achieve
sustainable
development,
environmental
protection
shall
constitute
an
integral
part
of
the
development
process
and
cannot
be
considered
in
isolation
from
it.
Principle
15.
In
order
to
protect
the
environment,
the
precautionary
approach
shall
be
widely
applied
by
States
according
to
their
capabilities.
Where
there
are
threats
of
serious
or
irreversible
damage,
lack
of
full
scientific
certainty
shall
not
be
used
as
a
reason
for
postponing
cost-‐effective
measures
to
prevent
environmental
degradation.
Polluter
Pays
Principle.
Kyoto
Protocol.
Whoever
causes
pollution
or
damage
to
the
environment
shall
pay
for
its
remediation
or
cleanup.
Same
concept
even
in
civil
law.
There
is
a
system
on
determining
how
this
should
be
accomplished.
And
when
developing
countries
also
have
some
commitments.
So
naay
target
for
developed
countries
for
example
on
their
reduction
of
carbon
emission
because
they
are
deemed
to
be
the
cause,
developed
countries
of
climate
change.
So
we
have
to
take
a
look
at
these
Conventions
and
the
Kyoto
Protocol
for
this.
Alright,
we
go
to
Wars.
There
are
two
systems
of
Law
in
the
study
of
the
Law
of
War.
What
is
jus
ad
bello
and
jus
in
bello?
Jus
ad
bellum
refers
to
the
set
of
laws
or
rules
governing
the
resort
of
armed
conflict.
This
talks
about
the
lawfulness
of
wars
meaning
whether
or
not
engaging
in
war
is
legitimate.
And
what
then
comes
into
your
mind
if
you
are
to
test
the
lawfulness
or
legitimacy
of
engaging
in
war.
When,
as
you
have
already
learned,
use
of
force
is
prohibited
in
Article
2,
paragraph
4
of
the
United
Nations
Charter.
This
is
a
simple
legal
system
in
so
far
as
war
in
concerned
because
this
should
only
speak
of
what?
I’m
talking
about
rules
concerning
legitimacy
of
engaging
in
war.
How
may
a
state
lawfully
engage
in
war
in
other
words.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
25
Public
International
Law
Finals
Notes
2013
You
just
said
it,
self-‐defense.
We’ll
talk
about
therefore
of
self-‐defense
as
a
basis
for
the
lawful
exercise
or
use
of
force.
If
we
talk
about
legitimacy
in
engaging
in
war,
we
only
have
to
talk
about
self-‐defense
apart
from
UN
collective
action
as
I
will
show
later
on.
Now, the second rule or system of law or laws in war is Jus in Bello.
Jus
in
Bello.
Rules
governing
the
actual
conduct
of
armed
conflict
dealing
with
the
lawful
acts
in
times
of
war
and
usually
this
is
what
we
call
the
study
of
International
Humanitarian
Law
(IHL).
Without
sufficient
provocation
State
A
attacks
State
B.
As
a
result,
State
B
retaliated
with
the
same
amount
of
force
and
that
resulted
to
an
armed
conflict.
Is
International
Humanitarian
Law
applicable
in
this
case?
a. No, because State A is guilty of aggression or acts of aggression.
c. No, because the war has not been established to claim protracted and widespread.
The
study
of
armed
conflict
or
jus
in
bello
does
not
made
relevant
or
consider
relevant
the
lawfulness
of
war.
Therefore,
the
war
initiated
by
State
A
is
an
unlawful
war
because
it
was
initiated
or
commenced
by
state
A
without
state
B’s
provocation.
It
was
an
invalid
exercise
of
self-‐defense,
it
was
therefore
what
an
act
of
aggression.
So
invalid
to
siya
nga
war
ha?
So
will
IHL
apply?
The
answer
is
yes.
So
whether
the
war
involved
is
lawful
or
not,
that
is
not
the
concern
of
jus
in
bello,
what
is
important
is
there
is
an
armed
conflict.
And
whenever
there
is
armed
conflict,
there
are
rules
that
govern
the
conduct
of
war.
Main
concern
of
Jus
in
Bello,
I
think
you
know
that
there
are
rules
that
should
be
observe
in
the
conduct
of
war,
we
will
talk
about
them
later.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
26
Public
International
Law
Finals
Notes
2013
Now,
first,
Jus
ad
bellum,
when
to
lawfully
engage
in
war,
first
note
that
the
UN
Charter
as
I’ve
mentioned
earlier,
prohibits
the
use
of
force
and
threat
to
use
force
and
this
prohibition
on
the
use
of
force
is
customary
international
law,
as
you
have
already
learned.
In what instances however, use of force be considered legitimate? There are two instances.
One,
without
regard
to
whether
or
not
this
involves
self-‐defense
when
this
is
the
Collective
decision
of
the
UN
in
cases
of
threats
of
peace,
breaches
of
peace,
all
acts
of
aggression,
even
as
against
international
terrorism.
Threats
posed
by
weapons
of
mass
destruction
and
even
on
humanitarian
grounds
you
will
see
this
also
in
the
UN
charters
especially
in
the
provision
on
creation
of
the
United
Nations
Security
Council.
Ah
so
sir,
without
regards
to
lawful
self-‐defense
or
what
as
long
as
it
is
collective
decision
of
the
UN
then
it
may
be
valid
even
if
it
is
with
the
use
of
force
and
in
fact
the
UN
should
through
the
security
council
use
of
force.
The
other
valid
ground
for
the
use
of
force
or
may
be
considered
as
legitimate
is
as
you
have
mentioned
earlier,
Self-‐defense.
Self-‐defense
may
be
individual
or
collective
self-‐defense.
So
you
go
to
Article
51
on
the
conditions
under
which
self-‐defense
may
be
exercised.
As
provided
for
in
Article
51,
it
may
be
exercised
in
any
state
individually
or
collectively
until
the
Security
Council
has
taken
measures.
In
the
meantime,
the
state
exercising
this
right
of
self-‐defense
must
report
the
measures
taken
to
the
Security
Council
and
as
aside
from
that,
you
should
also
comply
with
customary
international
norm
on
lawfulness
of
the
use
of
self-‐defense
when
there
is
the
presence
of
armed
attack
and
there
should
likewise
be
the
observance
of
the
Principles
of
Proportionality
and
Military
Necessity.
So
these
principles
are
the
common
principles
both
used
in
jus
ad
bellum
and
in
jus
in
bello
in
engaging
war
and
in
the
conduct
of
war.
We’ll
talk
about
these
principles
later
on.
We'll
talk
about
these
principles
later
on.
You
remember
the
case
of
Nicaragua
vs.
US?
Was
the
United
States
Justified
in
invoking
or
rather
in
making
those
attacks
on
the
basis
that
it
exercised
collective
self-‐
defense
in
El
Salvador
against
Nicaragua?
So
what
did
Nicaragua
do
to
the
Rebels
of
El
Salvador?
Nicaragua
sent
weapons,
not
troops.
The
SCJ
said
that
this
does
not
constitute
armed
attack.
It
would
have
been
different
if
the
Nicaraguan
soldiers
or
Nicaragua
sent
troops
to
El
Salvador.
And
that
would
now
constitute
an
armed
attack.
So
the
sending
of
weapons,
under
the
Nicaragua
principle,
may
not
be
considered
as
constitutive
of
armed
attack.
So
you
go
back
to
Nicaragua
in
the
concept
of
self-‐defense
and
the
concept
of
armed
attack.
So in the matter of self-‐defense we note the following principles:
1. Inherent
in
every
state
–
It
is
recognized
by
Article
51
of
the
UN
charter.
But
then
again,
you
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
27
Public
International
Law
Finals
Notes
2013
look
at
the
definition
of
Article
51.
Does
it
allow
preventive
or
what
we
call
anticipatory
self-‐
defense?
If
it
does
not,
should
it
be
interpreted
as
to
include
preventive
or
anticipatory
self-‐
defense?
North
Korea
of
course
has
been
very
vocal
in
its
threat
to
use
nuclear
weapons
against
South
Korea.
And
South
Korea
has
never
been
scared
of
North
Korea
because
it
said
that
it
also
has
a
weapon
that
it
can
use
to
prevent
even
an
initial
attack
against
its
people.
May
South
Korea,
for
example,
attack
and
destroy
nuclear
weapon
plans
or
wherever
these
nuclear
weapons
are
manufactured
in
North
Korea
to
prevent
an
actual
use
of
the
nuclear
weapons
and
other
weapons
of
mass
destruction.
Do
you
think
it
is
a
valid
act
on
the
part
of
South
Korea
if
they
will
do
so?
Is
it
the
same
armed
attack
in
the
right
to
self-‐defense
for
individuals
that
there
should
be
an
unlawful
aggression
and
that
it
should
be
imminent?
Should
anticipatory
self-‐
defense
be
allowed?
That's
a
modern
concern
also.
There
could
be
be
a
possibility
of
mistake
on
the
part
of
the
state
exercising
anticipatory
self-‐defense.
There
could
also
be
a
possibility
of
using
it
in
the
pretext
of
making
an
attack.
That
is
the
most
dangerous
for
how
would
you
know
that
indeed
there
is
that
basis
for
preventive
or
anticipatory
self-‐defense.
If
you
look
at
the
definition
in
Article
51,
it
should
be
imminent.
It
does
not
support
preventive
or
anticipatory
self-‐defense.
But
there
are
states
that
would
rather
invoke
and
would
favor
preventive
or
anticipatory
self-‐defense.
As
I
have
said,
the
requirement
of
imminence
and
armed
attack
which
was
discussed
in
the
case
of
Nicaragua
vs.
US.
2. Self-‐defense
pertains
to
territory
–
as
I
have
mentioned
earlier,
use
of
force
in
acquiring
territory
is
prohibited.
So
use
of
force
in
order
to
enforce
a
claim
over
territory
is
not
sanctioned
by
International
Law.
The
government
did
not
use
armed
force
in
Sabah
because
it
was
the
followers
of
Kiram
that
attacked.
3. Did
the
followers
of
Kiram
anticipate
such
actions
on
the
part
of
Malaysia
or
they
just
did
it
supposedly
to
just
have
a
leverage
or
some
sort
of
illegitimate
demand.
So,
use
of
force
to
enforce
a
claim
over
a
territory
is
not
allowed.
4.
5. Even
if
a
territory
is
under
a
particular
claim
of
a
state
yet
the
use
of
self
defense
because
for
one
it
is
still
a
claim
to
a
territory
is
or
that
you
cannot
say
that
it
is
not
in
fact
a
use
of
self
defense
(wa
ko
kasabot)
and
besides
the
method
by
which
we
settle
territorial
dispute
is
through
peaceful
means
as
pronounced
in
the
1970
General
Assembly
Declaration.
Okay,
so
that’s
self-‐defense,
armed
attack,
principle
of
proportionality,
military
necessity,
imminence.
6.
7. Now,
we
go
to
Jus
In
Bello
(ONLY
BELLO
TOUCHES
MY
SKIN).
The
law
of
armed
conflict
pero
you
take
note
of
the
following
matters
when
we
talk
about
Jus
In
Bello.
What
is
the
meaning
of
armed
conflict
to
which
International
Humanitarian
Law
(IHL)
applies?
Here,
you
also
talk
about
the
principle
of
complementarity
in
IHL.
Remember
that
the
International
Criminal
Court
was
created
in
order
to
punish
certain
crimes
enumerated
in
the
Rome
Statute
so
for
this
purpose
you
have
to
read
the
Rome
Statute.
You
don’t
need
to
read
the
elements
of
each
crime
annexed
to
the
Rome
Statute.
Just
read
the
Rome
Statute
codal
provisions.
Since
the
creation
of
an
International
Criminal
Court
is,
as
observed
by
many,
a
derogation
of
sovereignty
of
states
to
punish
crimes
committed
within
their
territories
then
before
the
International
Criminal
Court
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
28
Public
International
Law
Finals
Notes
2013
created
by
the
Rome
Statute
may
take
cognizance
before
the
case
it
must
presume
that
the
domestic
courts
or
that
the
government
fails
to
punish
the
perpetrators
of
International
Crimes
so
that
in
effect,
for
example,
that
it
can
be
shown
that
the
local
courts
had
already
initiated
the
prosecution
of
the
crimes
committed
by
individuals
and
by
the
way
the
subjects
of
international
criminal
law
are
actually
individuals
and
not
states
although
in
some
respect
there
maybe
State
responsibility
but
practically
the
subjects
of
international
criminal
law
are
individuals
not
States.
That
is
the
principle
of
complementarity
that
the
Rome
Statute
or
the
ICC
exercises
jurisdiction
only
as
complementary
to
national
or
domestic
jurisdiction
and
as
much
as
possible
it
must
yield
to
an
on-‐going
investigation
or
prosecution
of
crimes
committed
within
a
territory
of
a
State.
It
is
only
when
it
can
be
shown
that
a
State
fails
or
refuses
to
even
initiate
investigations
or
prosecute
perpetrators
that
the
ICC
can
exercise
jurisdiction.
You
will
also
see
in
the
Rome
Statute
the
principle
of
complementarity.
So
this
principle
is
to
strike
a
balance
between
the
sovereignty
of
a
State
and
also
the
need
to
punish
International
crimes
as
an
erga
omnes
norm
of
States.
And
also,
there
is
a
specific
definition
of
armed
conflict
as
you
will
see
later
on
and
the
threshold
for
the
existence
of
armed
conflict
is
high.
So
there
are
in
fact
probably
called
“armed
conflict”
but
will
not
compel
the
ICC
to
take
jurisdiction
of
that
“armed
conflict”
if
the
threshold
have
not
been
met.
So
therefore
which
court
will
acquire
jurisdiction
over
the
atrocities?
of
course
the
domestic
courts.
In
other
words,
this
is
highly
exceptional
that
an
ICC
not
a
local
court
will
exercise
jurisdiction
on
certain
crimes.
So
you
need
to
know
what
is
an
armed
conflict
and
if
there
is
no
armed
conflict
like
what
is
referred
to
as
internal
disturbance
in
a
state.
So,
what
is
the
effect
if
an
ICC
will
not
acquire
jurisdiction
because
IHL
is
not
applicable
to
a
situation
because
it
cannot
be
characterized
as
an
armed
conflict
under
the
Rome
Statute?
The
domestic
courts
will
have
jurisdiction
over
the
case.
In
an
ICC,
usually
there
are
two
stages
in
the
prosecution
of
an
accused.
One
is
the
stage
dealing
with
procedure
and
the
other
one
is
the
stage
dealing
with
the
merits
of
the
case.
So
that
in
the
first
stage
of
the
prosecution
matters
concerning
jurisdiction
will
certainly
be
a
common
issue
that
will
be
discussed
during
the
procedural
stage
because
it
is
in
here
that
the
parties
will
have
to
establish
whether
or
not
there
is
an
armed
conflict
so
that
the
ICC
can
exercise
jurisdiction.
For
as
long
as
it
can
be
established
that
there
is
an
armed
conflict
then
they
will
proceed
in
the
deliberation
on
whether
or
not
the
conflict
is
international
or
not
international
armed
conflict.
So,
after
that
you
take
note
of
the
fundamental
principles
that
govern
the
conduct
of
war,
military
necessity
in
relation
to
collateral
damage,
principle
of
proportionality,
principle
of
distinction
and
then
individual
responsibility.
8.
9. What
is
the
objective
of
IHL?
States
have
seen
the
effects
of
war
and
they
saw
that
the
effects
are
not
so
much
on
the
combatants
but
it
is
much
on
the
non-‐combatants
that
paved
the
way
to
the
establishment
of
International
Humanitarian
law
as
enshrined
in
the
1949
Geneva
Conventions.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
29
Public
International
Law
Finals
Notes
2013
The
effects
are
not
so
much
on
the
combatants.
But
it
is
much
on
the
non-‐combatants
that
paved
the
way
to
the
establishment
of
the
International
Humanitarian
law
as
enshrined
in
the
1949
Geneva
Conventions.
Added
to
it,
of
course,
are
the
two
additional
protocols
which
we’ll
talk
about
later
on.
So
that
is
the
objective
of
International
Humanitarian
Law.
That’s
why
it’s
called
humanitarian,
that
is
to
“humanize”
the
effects
of
war,
minimize
at
least
casualties
and
adverse
effects
on
civilians
and
civilian
objects.
It
covers
international
or
non-‐international
armed
conflict.
IHL
is
not
applicable
if
the
situation
is
only
characterized
as
a
mere
internal
disturbance.
Where
will
you
see
this?
You
may
go
to
the
Rome
Statute
creating
the
ICC.
You
have
there
the
definitions
of
genocide,
war
crimes,
wars
against
humanity
and
acts
of
aggression.
Acts
of
aggression
are
yet
to
be
defined
though
or
implemented
but
what
can
be
enforced
right
now
under
the
Hague
convention
will
be
crimes
involving
genocide,
war
crimes,
and
crimes
against
humanity.
In
the
Rome
Statute,
there
are
three
conditions
under
which
a
perpetrator
may
commit
a
specific
crime.
So
please
take
a
look
at
these
conditions.
Common
condition
will
be,
number
one,
if
it
is
crime
against
humanity,
there
is
a
requirement
that
the
attack,
because
there
are
several
crimes
there
noh,
but
all
these
attacks
must
have
been
made
in
such
a
manner
that
it
may
constitute
either
a
widespread
attack
or
a
systematic
attack.
So,
each
crime
actually
presupposes
a
certain
condition.
If
you
look
at
the
Rome
Statute,
before
it
lists
down
a
particular
section,
before
it
lists
down
specific
crimes,
for
example
crimes
against
humanity:
crimes
against
humanity
of,
let’s
say
taking
hostages,
crimes
against
humanity
of
possible
transfer
of
civilian
population,
or
crimes
against
humanity
of
deportation
for
example.
Nakalista
na
xa
class.
The
beginning
paragraph
provides
for
common
elements.
And
you
will
see
there
that
the
attack
must
be
widespread
or
systematic.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
30
Public
International
Law
Finals
Notes
2013
(i)
Enforced
disappearance
of
persons;
(j)
The
crime
of
apartheid;
(k)
Other
inhumane
acts
of
a
similar
character
intentionally
causing
great
suffering,
or
serious
injury
to
body
or
to
mental
or
physical
health.
So,
that’s
the
common
element
there.
The
attack
must
be
widespread
and
systematic
and
directed
against
a
civilian
population,
with
the
knowledge
of
such
element
as
being
a
civilian
population.
War
crimes
also
usually
are
committed
in
an
international
armed
conflict.
So,
there
are
crimes
which
can
only
be
committed
when
there
is
an
international
armed
conflict.
And
there
are
also
crimes
which
can
be
committed
only
when
there
is
an
internal
armed
conflict.
Armed
conflict
is
always
an
element
in
the
application
of
IHL.
There
is
a
distinction
between
internal
armed
conflict
and
mere
internal
disturbance.
Usually,
examples
ani
class,
riots.
The
documents
that
you
need
to
consider
in
studying
IHL,
the
4
Geneva
Conventions
of
1949
and
additional
protocols.
These
are
the
4
Geneva
Conventions:
I. Amelioration
of
the
Condition
of
the
Wounded
and
Sick
Armed
Forces
II. Amelioration
of
the
Condition
of
Wounded,
Sick
and
Shipwreck
Members
of
III. Treatment
of
prisoners
of
war
IV. Protection
of
civilian
persons
in
time
of
War
All
these
4
Geneva
Conventions
has
what
is
known
as
common
Article
3.
Take
note
of
common
article
3
because
most
of
these
govern
international
armed
conflict
but
common
article
3
is
applicable
to
non-‐international
armed
conflict.
So
when
you
study
the
4
Geneva
Conventions,
you’re
trying
to
look
at
Article
3
in
each
one
and
see
how
relevant
is
what
we
call
in
IHL
as
the
common
article
3.
And
these
are
the
additional
protocols.
You
know
of
course
the
meaning
of
a
protocol.
o AP
I
of
1977
–
Protection
of
Victims
of
International
Armed
Conflicts
o AP
II
of
1977
–
Protection
of
Victims
of
Non-‐international
Armed
Conflicts
o AP
III
of
2005
-‐
Adoption
of
an
Additional
Distinctive
Emblem
It’s
just
about
the
emblem
when
we
talk
about
AP
III
in
2005.
If
there
is
no
armed
conflict,
no
IHL.
You
know
one
problem
that
resulted
in
the
establishment
of
IHL
after
we
have
established
also
human
rights
law
is
the
distinction
and
the
delineation
between
human
rights
law
and
IHL.
...
one
problem
that
resulted
from
the
establishment
of
international
humanitarian
law
or
IHL
after
we
have
established
also
human
rights
law
is
the
distinction
and
the
delineation
between
human
rights
law
and
international
humanitarian
law
(IHL).
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
31
Public
International
Law
Finals
Notes
2013
How
do
you
distinguish
one
from
the
other?
Isn't
killing
proscribed
by
human
rights
law,
because
under
the
Universal
Declaration
on
Human
Rights
(UDHR),
each
individual
has
right
to
life
such
that
life
of
an
individual
as
mandated
by
UDHR
shall
not
be
arbitrarily
taken.
So
killing
is
a
violation
of
human
rights
law.
Yes?
When
there
is
war,
are
you
not
allowed
to
kill?
Classmate:
I
think
sir
the
question
would
be,
who
are
you
allowed
to
kill?
Sir:
Pwede.
Ako
i-‐specify,
are
you
allowed
to
kill
civilians?
Classmates:
No.
Classmate:
Yes.
(laughter)
Sir:
Barugi
na.
(laughter)
Sir:
Actually
correct
na.
There
may
be
instances
where
killing
of
civilians
will
not
be
a
violation
of
IHL.
When
for
example
civilians
lose
their
protective
status
when
they
directly
participate
in
hostilities.
And
it's
very
common
for
some
civilians
to
take
up
arms
as
well
and
participate
directly
in
hostilities.
So
while
they're
civilians
because
they
are
not
part
of
the
regular
armed
force,
they
may
actually
be
a
lawful
target
of
attack.
They
are
civilians,
but
it
is
only
because
they
lose
their
protective
status
when
they
directly
participate
in
hostilities.
The
more
safer
rule
would
be
killing
of
course
will
be
allowed
as
long
as
it
does
not
violate
basic
principles
of
IHL.
Talking
about
military
necessity,
because
as
I
have
shown
earlier,
we
have
this
principle
of
collateral
damage.
For
as
long
as
the
attack
is
justified
under
the
principle
of
military
necessity
and
with
due
observance
of
2
other
principles
on
proportionality
and
principle
of
distinction,
then
any
death
of
civilian
as
a
result
of
attack
may
be
justified
under
the
principle
of
military
necessity.
That's
another
situation
where
death
of
civilian
may
not
actually
be
punishable.
Take
for
example
an
attack
on
a
lawful
military
target.
Let's
say
a
military
base
of
the
opponent.
Is
that
a
lawful
target?
Of
course.
Because
it
is
a
military
object.
It
can
be
a
lawful
subject
of
attack
in
times
of
armed
conflict.
There
are,
let's
say
10,000
soldiers
in
that
particular
military
station
for
example.
One
day
for
example,
Jollibee
delivers
10,000
chicken
joy
and
employing
1,000
crew
of
Jollibee.
They
are
there
at
the
time
that
the
attack
was
made.
How
do
you
call
the
deaths
of
the
crew
of
Jollibee?
And
the
destruction
of
Jollibee
vehicles?
Collateral
damage.
So
it's
not
really
prohibited
to
make
an
attack
that'll
result
to
deaths
of
civilians.
So
now,
talking
about
that
therefore,
there
is
an
ongoing
difficulty
in
determining
the
application
of
human
rights
law
and
at
the
same
time
applying
the
IHL.
There
is
a
theory
that
says
in
time
of
armed
conflict,
it
is
an
entirely
new
set
of
laws
that
should
apply.
In
times
of
armed
conflict,
we
follow
IHL
and
no
other
laws.
Therefore,
human
rights
law
should
step
aside.
Because
there
are
provisions
also
in
IHL
that
take
care
of
some
human
rights
provisions.
Torture
for
example,
that
is
also
prohibited.
But
it's
not
that
because
there
is
torture
during
armed
conflict
that
human
rights
law
may
be
applied
but
it
may
be
the
case
that
the
specific
provisions
in
IHL
that
should
be
applied
rather
than
the
human
rights
law.
Because
basically
human
rights
law,
you
apply
that
in
times
of
peace,
and
then
you
apply
IHL
in
times
of
war.
But
that
distinction
is
not
yet
acceptable
in
international
law.
Even
until
now
there
is
difficulty
in
determining
when
human
rights
law
may
be
applied
and
when
it
may
not
be
applied.
Because
certainly,
whenever
there
is
armed
conflict,
you
apply
IHL.
The
issue
now
is
whether
you
can
still
talk
about
human
rights
law
when
there
is
already
IHL?
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
32
Public
International
Law
Finals
Notes
2013
Sir,
ayaw
mi
taga-‐e
og
problem.
Taga-‐e
mi'g
solution.
(laughter).
I'm
just
raising
that
up.
So
we
have
the
2
kinds
of
armed
conflict:
international
armed
conflict
and
non-‐international
armed
conflict.
But
first,
what
is
an
armed
conflict?
There
is
armed
conflict
when
there
is
a
resort
to...
3
kinds
ni,
in
other
words:
1.Armed
force
between
states
(state
A
v.
state
B)
2.or
protracted
armed
violence
between
governmental
authority
and
organized
armed
groups,
second
kind.
(Armed
Forces
of
the
Philippines
v.
organized
armed
group
in
the
territory)
3.or
between
such
groups
within
state.
[minority
(armed
group)
for
example
v.
majority
armed
group,
it
can
happen.
And
in
fact
in
many
cases
in
every
states
naa
may
minority
and
now
they
want
to
insist
independence;
very
common
in
secessionist
movements.]
But
take
not,
that
while
there
are
3
kinds
of
armed
conflict,
one
is
a
conflict
between
states-‐
this
one
there
is
no
element
of
protracted
armed
violence.
The
element
of
protracted
armed
violence
is
applicable
only
when
it
is
between
governmental
authority
and
armed
group
or
between
2
organized
armed
groups.
Because
kung
ang
armed
conflict
is
between
states,
sigurado
na
man
gud
na
international.
You
don't
need
a
long
period
of
time,
the
requirement
na
it
should
be
protracted,
repeated
for
a
long
period
of
time
before
IHL
can
be
applied.
It
can
be
applied
right
away.
But
if
it
is
just
occurring
within
a
particular
state,
IHL,
with
due
deference
to
the
sovereignty
of
that
state
can
only
come
in
whenever
there
is
evidence
that
the
conflict
is
protracted.
Meaning,
there
is
a
manifestation
of
the
failure
of
the
internal
system
to
resolve
that
kind
of
armed
conflict.
Mao
na
naa
gyud
dapat
protracted
armed
violence.
So
let’s
talk
about
international
armed
conflict.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
34
Public
International
Law
Finals
Notes
2013
the
responsibility
of
that
government
where
the
conflict
is
occurring
to
prevent
or
prosecute
the
perpetrators
but
not
the
ICC.
IHL's
objective
is
to
humanize
the
effects
of
war.
So
the
primary
objective
of
IHL
is
the
protection
of:
1)
civilian-‐
a
person
who
does
not
belong
to
the
armed
force
and
therefore
is
not
a
combatant.
However
if
a
civilian
takes
part
directly
in
hostilities
then
he
may
lose
his
status
as
a
civilian.
The
difficult
question
in
IHL
is
what
would
be
the
extent
of
participation
that
should
be
considered
as
direct
participation
in
hostilities.
Medical
support,
for
example,
is
that
direct
participation?
Or
should
it
refer
also
to
the
use
of
the
arms
as
against
the
other
group?
2)
civilian
objects-‐objects
which
are
not
military
objectives.
Military
object
is
that
which
by
its
nature,
location,
purpose
or
use
make
effective
contribution
to
military
advantage.
A
bridge,
for
example,
is
that
a
military
object?
Can
it
be
subject
of
an
attack?
Gasoline
station?
Church?
Temples?
Wala,
noh?
IHL
is
not
listing
down
the
military
objects
because
it
all
depends
on
the
nature,
location,
purpose
or
use
so
that
for
example,
a
temple
or
church
per
se
is
not
a
military
object
but
certainly
in
the
course
of
war
the
opponents
for
example
found
shelter
in
the
church
or
in
a
temple
and
under
the
circumstances
killing
them
even
if
it
would
result
to
the
destruction
probably
partly
only
of
the
temple,
then
there
is
no
violation.
What
is
an
object
of
an
attack
in
any
form?
To
win!
So
if
it
contributes
to
military
advantage
then
the
object
is
considered
military
object.
Combatants
are
precluded
from
making
as
targets
the
civilians
and
civilian
objects.
This
practically
embodies
the
Principle
of
Distinction.
Principle
of
Distinction
(IHL):
Combatants
must
at
all
times
distinguish
between
civilian,
civilian
objects
and
military
targets.
Principle
of
Precautionary
Measures
Only
military
objects
can
be
the
subject
of
attack.
Military
Object
–
is
that
which
by
its
nature,
location,
purpose
or
use
make
effective
contribution
to
military
action
and
advantage.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
35
Public
International
Law
Finals
Notes
2013
Ex:
Bridge,
Gasoline
Stations,
Church,
Temples
–
These
are
not
military
objects
per
se.
But
it
can
be
a
Military
Object
if
in
the
course
of
war,
the
opponents,
for
example,
found
shelter
in
a
church
or
in
a
temple.
Under
the
circumstances,
killing
them,
even
if
it
will
result
to
the
destruction,
probably
partly
only
of
the
temple
(because
there
is
also
the
Principle
of
Proportionality),
then
there
is
NO
violation.
Even
if
a
portion
of
the
temple
may
be
destroyed
if
only
to
accomplish
Military
action
and
advantage.
*IHL
is
not
listing
down
the
objects
that
are
considered
Military
Objects
because
it
all
depends
on
the
nature,
location,
purpose
and
use.
What
is
the
Objective
of
an
attack?
The
objective
is
to
win.
Korek?
So
if
this
contributes
effectively
to
military
advatange
then
the
object
may
actually
be
considered
as
a
Military
Object.
Military Necessity
Attacks
must
be
limited
strictly
to
military
objectives
and
whose
total
or
partial
destruction,
capture
or
neutralization
offers
a
definite
military
advantage.
Military advantage -‐ simply means effort to win the battle/war.
Corollary
to
the
Principle
of
Military
Necessity.
You
can
attack
military
objects
but
you
observe
the
Principle
of
Proportionality
and
you
know
what
that
means.
The
group/armed
force
must
only
use
such
amount
of
weapon/kind
of
weapon
that
is
necessary
to
accomplish
military
objective.
For
example,
the
opponents
are
armed
with
just
short
firearms
like
handguns
it
may
not
be
proportional
to
use
missile
against
them.
The
use
of
weapons
of
mass
destruction
may
be
considered
a
violation
of
the
principle
of
proportionality.
Present
issue
now
is,
the
use
of
what
we
call
Cluster
Munitions.
*Cluster
Munition
-‐
a
form
of
air-‐dropped
or
ground-‐launched
explosive
weapon
that
releases
or
ejects
smaller
submunitions.
Kita
mo
sa
Ironman,
katong
part
2?
Guided
missiles
bah.
Kanang,
usa
lang
ka
missile
nya
mo
split
into
submissiles.
Weapon
of
Mass
Destruction.
On-‐going
pa
ang
debate
ana
class.
In
fact,
we
mooted
on
that,
I
think
3
years
or
2
years
ago
about
the
Principles
that
should
govern
regarding
Cluster
Munitions.
Naay
may
ni
argue
nga
dili
mana
siya
violation
of
the
doctrine
of
proportionality
because
Guided
man.
But
it’s
a
lot
complicated
though.
But
the
basic
idea
of
Proportionality
refers
to
the
KIND
of
weapon
used
and
the
EXTENT/EFFECTS
of
the
attack.
At all times, combatants must distinguish between civilians and military objects.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
36
Public
International
Law
Finals
Notes
2013
1. Genocide
2. Crimes
against
Humanity
3. War
Crimes
4. Crimes
of
Aggression
*Found
in
the
Rome
Statute;
read
the
specific
definitions.
This
is
International
Criminal
Law
and
there
are
also
principles
in
domestic
criminal
law
that
are
also
applicable.
The
usual
requirements
on
Mens
Rea
and
Actus
Rios
for
example
are
observed
in
International
Criminal
Law
and
that
is
relevant
as
far
as
Genocide
is
concerned.
WON
every
killing
of
a
group
will
constitute
Genocide,
maybe
it
is
just
extermination
or
“Marder”
(Murder.
Hehe)
instead
of
Genocide.
*Do
not
ever
think
that
every
killing
of
a
group
is
considered
Genocide.
Article
6
(ROME
STATUTE)
Genocide
For
the
purpose
of
this
Statute,
"genocide"
means
any
of
the
following
acts
committed
with
intent
to
destroy,
in
whole
or
in
part,
a
national,
ethnical,
racial
or
religious
group,
as
such:
(b) Causing serious bodily or mental harm to members of the group;
(c)
Deliberately
inflicting
on
the
group
conditions
of
life
calculated
to
bring
about
its
physical
destruction
in
whole
or
in
part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
37
Public
International
Law
Finals
Notes
2013
Who
may
be
held
liable?
Individuals.
But
don’t
you
know
that
applying
the
Yamashita
Principle,
an
individual
may
be
punished
either
because:
Superior
Liability
Ang
superior
di
man
ang
muperform
sa
act,
but
he
is
liable
for
his
failure
to
prevent
or
punish.
So
you
have
to
take
note
of
that
also.
So,
a
superior
should
be
held
liable
and
those
perpetrators
should
also
be
held
liable
in
their
individual
capacity.
Why
was
superior
responsibility
or
command
responsibility
embodied
in
the
Rome
Statute?
Because
it
was
observed
in
the
past,
ang
mga
generals,
military
commanders,
they
will
feign
ignorance
for
example
and
claim
that
they
did
not
order,
we’re
not
aware,
we
did
not
know
that
our
men
committed
rape
in
the
Philippines,
or
that
it
was
not
our
instruction
–
but
if
it
can
be
established
that
under
the
circumstances
of
the
case
and
under
the
organizational
structure
that
that
superior
has
authority
and
control
over
his
subordinates,
he
should
be
held
liable
for
his
omission,
omission
to
prevent
and
omission
to
punish.
That
is
the
basic
idea
of
superior
responsibility
and
command
responsibility.
By
the
way,
we
use
command
responsibility
class
for
those
superiors
in
the
regular
Armed
Force,
and
we
use
superior
responsibility
for
those
persons
who
do
not
belong
to
the
regular
Armed
Force,
because
remember,
ang
component
sa
armed
conflict,
di
man
usually
required
nga
naay
government,
kai
pwede
man
nga
between
two
armed
groups,
and
these
are
not
members
of
the
regular
Armed
Forces.
So
kato
silang
mga
superiors
nila,
may
be
held
liable
under
superior
responsibility,
and
kung
military
commander,
then
it
is
command
responsibility
that
we
use.
So,
that
practically
ends
our
discussion
in
IHL,
I
believe
that
these
are
the
important
areas
that
we
sould
look
into.
United
Nations,
you
will
still
include
that
in
the
exam,
although
I
think
most
of
these
had
already
been
discussed,
talking
about
Nicaragua
again,
jurisdiction
of
the
ICJ.
Just
focus
on
the
ICJ
for
provisions
in
the
UN
charter.
For
peaceful
settlement
of
disputes
between
states,
I
want
you
to
take
note
of
the
statute
creating
the
ICJ.
And
then,
in
the
ICC
or
the
Rome
Statute,
I
mentioned
in
the
outline
Articles
1
to
8,
25
to
33
only.
You
don’t
have
to
read
everything
there.
So,
coverage
for
finals
would
be
from
acquisition
of
territory
up
to
the
last
topic.
Please
bear
with
the
fact
that
we
perhaps
did
not
have
enough
time
to
cover
everything,
because
this
is
the
first
time
that
I
have
handled
IHL
as
basic
course.
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
38
Public
International
Law
Finals
Notes
2013
Sir:
Hahaha!
Thru
the
efforts
of
Room
405.
Special
Thanks:
Bayalas,
Caminade,
Cañada,
Dabon,
Diao,
Gan,
Jacildo,
Nardo,
Lulu,
Parawan,
Rejuso,
Salas,
Balt,
Verador,
Bristol,
Digaum,
Benin,
Peña,
Plaza,
Sayson,
Susvilla,
Tampus,
Gregorio,
Sanchez
PINAKA
GAHI
NGA
BATCH
2015
Page
39