[Bernas, 2009]
What are the modes of acquiring and losing territory?
They are as follows:
1. Acquisition
a. Discovery and occupation
It is an original mode of acquisition by which territory not
belonging to any state, or terra nullius, is placed under the
sovereignty of the discovering state.
The territory need not be uninhabited provided it can be
established that the natives are not sufficiently civilized and can
be considered as possessing not rights of sovereignty but only
rights of habitation. (Cruz, 2000)
Discovery of terra nullius is not enough to establish
sovereignty. It must be accompanied by effective control as
held in the Las Palmas Case (Permanent Court Arbitration,
1928) [Bernas, 2009]
Effective control is relative and may depend on the nature
of the case – e.g. whether the territory is inhabited or not and
how fierce the occupants are. Where there are two or more
claimants to a territory, effective control is also relative to the
strength of claims. (Eastern Greenland Case PCIJ 1933)
The Universality Principle
This principle recognizes that certain activities, universally
dangerous to states and their subjects, require authority in all
community members to punish such acts wherever they may occur,
even absent a link between the state and the parties or the acts in
question. This principle started with piracy.
What are the crimes covered by this principle?
These include piracy, genocide, crimes against humanity, war
crimes, aircraft piracy and terrorism. There is also a growing support
for universal jurisdiction over crimes against human rights.
What are the principal theories on the jurisdiction of authorities
of a coastal state over crimes committed on board foreign
merchant ships which enter or dock in its ports? Which of the
theories is followed in this jurisdiction?
a) Under the English rule, the coastal state shall have
jurisdiction over all offenses committed on board such
vessels, except only where they do not compromise the
peace of the port.
b) Under the French rule, the flag state shall have jurisdiction
over all offenses committed on board such vessels, except
only where they compromise the peace of the port. (Cruz,
2000)
It is the English rule that is applicable in this jurisdiction.
(People vs Wong Cheng, GR No. L-18924, October 19, 1922)
Immunity of head of state
Does the immunity of a head of state apply when the
subject of the suit is a private matter?
Yes, in the case of Mighell vs Sultan of Johore, the case for
breach of promise to marry filed against the Sultan of Johore was
dismissed upon verification of his being a sitting foreign sovereign.
The immunity that is recognized is absolute for a sitting head of state.
(1 QB 148, 1894)
Is this immunity still available to an individual who is no
longer a head of state?
Yes, as held in the Pinochet Case, a former head of state
enjoys immunity ratione materiae in relation to acts done by him as
head of state as part of his official functions as head of state.(March
24, 1999, House of Lords)
What are three rights that constitute freedom of movement
under the Convention and what are the limitations to these
rights?
These are found in Articles 12(1) and (2) and these include the
rights to travel within the country, the right to leave the country and
the right to change one's residence. The limitations on these three
rights are found in Article 12(3) and consist of “”those provided by
law, are necessary to protect national security, public order (ordre
public), public health or morals or the rights and freedoms of others,
and are consistent with the other rights in the present Covenant.”
They are similar to the limitations found in the Philippine Bill of
Rights except that unlike the Philippine provision, it does not require
a
court order for impairment of liberty of abode.
The Covenant unlike the Philippine Constitution, in Article 12(4)
separates the right to return to one's country from the right to leave
one's country. The limit to the right to return to one's country in the
Covenant is implied in the word “arbitrarily”. “No one shall be
arbitrarily deprived of the right to enter his own country.”” The
Covenant intends to make the limitation more narrow than for the
right to leave the country since exile is now prohibited by customary
law and the prohibition of exile may even be jus cogens.
Would the ICC replace national or domestic criminal courts?
No, it will not replace national or domestic courts but will be
complementary to national criminal jurisdiction. The Court will only
investigate and prosecute if a State is unwilling or unable to genuinely
prosecute. This will be determined by the judges. Unjustified delays
in proceedings as well as proceedings which are merely intended to
shield persons from criminal responsibility will not render a case
inadmissible before the ICC (Art. 17)
What is the basic principle found in the UN Charter with respect
to the recognition of the autonomy of individual states and their
right to freedom from coercion and to the integrity of their
territory?
Article 2(4) provides that, “All Members shall refrain in their
international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations”.
(Bernas, 2009)
This same provision is considered the legal prohibition against
the use of force in International Law. (Sarmiento, 2007).
What is the nature of the prohibition of the use of force as an
international law?
The prohibition is not just conventional law. It is a customary
international law. (Bernas, 2009)
What are the two considered exceptions to the general
prohibition of the use of force in Art. 2, par. 4 of the UN Charter?
a) Article 51 where the Charter recognizes the inherent right of
individual or collective self-defense if an armed attack occurs;
b) Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Chapter.
(Sarmiento, 2007)
Does the general prohibition of the use of force preclude the
right to self-defense?
Article 51 provides that the Charter shall not impair the inherent
right of individual or collective self-defense if an armed attack occurs
against a Member of the UN, until the Security Council has taken
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of
selfdefense
shall be immediately reported to the Security Council and
shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such
action as it deems necessary in order to maintain or restore
international peace and security. (Bernas, 2009)
What are the limitations to the exercise of the right to individual
or collective self-defense?
a) whether self-defense be individual or collective, it can only
be exercised in response to an “armed attack” which shall include not
merely action by regular armed forces across an international border,
but also the sending by a State of armed bands on to the territory of
another State, if such an operation, because of its scale and effects,
would have been classified as an armed attack had it been carried
out by regular armed forces;
b) collective self-defense cannot also be exercised in the
absence of a request by the State which is a victim of the alleged
attack this being additional to the requirement that the State in
question should have declared itself to have been attacked. (Ibid)
What are the requisites of self-defense under Article 51 of the
UN Charter?
a) an armed attack occurred against a member of the UN;
b) It must be “confined to cases in which the necessity of that
self-defense is instant, overwhelming, and leaving no choice of
means, and no moment for deliberation”;
c) The measures taken “ must be limited by that necessity and
kept clearly within it”;
d) The right of self-defense must give way to measures that
may be taken by the Security Council to maintain international peace
and security. (Sarmiento, 2007)
What is the right of collective self-defense?
If the state is entitled to use force in self-defense under Article
51, other states are entitled to come to the defense of the attacked
state in collective self-defense. This right exists independently of the
existence of a mutual defense treaty between the attacked state and
the other states which come to its defense. (Ibid)
May a state exercise the collective right of self-defense without
an explicit request for assistance from the state on whose behalf
the right is to be exercised?
In Nicaragua vs US, the ICJ concluded that the US was not
entitled to come to the defense of El Salvador, Honduras, and Costa
Rica because at that time it had not been requested to do so. It held
that the exercise of the right of collective self-defense presupposes
that an armed attack has occurred; and the victim state draws
general attention to its plight and finally, the victim state makes an
express request to other states to come to its help. (Ibid)
What is the cardinal rule in international courts?
The cardinal rule in international courts is that states cannot be
compelled to submit disputes to international adjudication unless they
have consented to it either before a dispute has arisen or thereafter.
States are also free to limit their acceptance to certain types of
disputes and to attach various conditions or reservations to their
acceptance. (Ibid)
May a state party to the 1951 Refugee Convention expel a
refugee from its territory?
As a state party to the 1951 Refugee Convention, it shall not
expel a refugee in their territory save on grounds of national security
or public order. In any event, the expulsion of such a refugee shall be
only in pursuance of a decision reached in accordance with due
process of law.
Except where compelling reasons of national security otherwise
require, the refugee shall be allowed to submit evidence to clear
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himself, and to appeal to and be represented for the purpose before
competent authority or a person or persons specially designated by
the competent authority.
The state party shall also allow such a refugee a
reasonable period within which to seek legal admission into another
country. (Art 32) (Ibid)
What are the effects of the outbreak of war?
1) The laws of peace cease to regulate the relations of the
belligerents and are superseded by the laws of war. Third states are
governed by the laws of neutrality in their dealings with the
belligerents.
2) Diplomatic and consular relations between the belligerents are
terminated and their respective representatives are allowed to return
to their own countries.
3) Treaties of political nature, such as treaties of alliance, are
automatically cancelled, but those which are precisely intended to
operate during war, such as one regulating the conduct of hostilities
between the parties, are activated. Multipartite treating dealing with
technical or administrative matters, like postal conventions, are
deemed merely suspended as between the belligerents.
4) Individuals are impressed with enemy character:
a) under the nationality test, if they are nationals of the other
belligerent, wherever they may be; b) under the domiciliary
test, if they are domiciled aliens in the territory of the other
belligerent, on the assumption that they contribute to its
economic resources; and c) under the activities test, if being
foreigners, they nevertheless participate in the hostilities in
favor of the other belligerent.
Corporations and other juridical persons, on the other hand, are
regarded as enemies if a majority or a substantial portion of
their capital stock is in the hands of enemy nationals or if they
have incorporated in the territory or under the laws of the other
belligerent.
5) Enemy public property found in the territory of the other
belligerent
at the outbreak of hostilities is, with certain exceptions, subject to
confiscation. Enemy private property may be sequestered, subject to
return, reimbursement or other disposition after the war in
accordance with the treaty of peace. (Ibid)
What are the consequences of belligerent occupation?
1. It does not result in transfer or suspension of the sovereignty of the
legitimate government although it may at the moment unable to
exercise it.
2. The belligerent occupant cannot perform such acts as declaring
the independence of the occupied territory or requiring its inhabitants
to renounce their allegiance to the lawful government.
3. The belligerent is required to restore and ensure public order and
safety while respecting, unless absolutely prevented, the laws in force
in the country more particularly with regard to family honor and
rights,
the lives of persons, private property, and religious convictions and
practice. (Hague Convention No. IV, 1907, Reg., Arts 53-56)
4. Whenever necessary, the belligerent occupant may promulgate
new laws, non-political as well as political, provided they do not
contravene the generally accepted principles of international law.
Political laws are automatically abrogated upon the end of the
occupation but the non-political laws may continue even beyond the
occupation unless they are expressly repealed or modified by the
legitimate government. (Hilado vs Dela Costa, April 30, 1949)
5. The belligerent occupant is permitted to exact from the populace
contributions over and above the regular taxes for the needs of the depots of arms, means of transport, stores and supplies, and
army of occupation or for the administration of the territory. (HC No. generally movable property of the state, depots of arms, means of
IV, 1907, Reg., Arts 49-51) It may also, for valuable consideration, transport, stores and supplies, and generally movable property
make requisitions of things or services for the needs of the occupying belonging to the state which may be used for military operations.
forces. (Ibid, Art.52) (Ibid) All appliances, whether on land, at sea, or in the air, adapted for
6. The belligerent occupant is permitted to introduce military the transmission of news, or for the transport of persons or things,
currency,
exclusive of cases governed by naval law, depots of arms and
provided the purpose is not to debase the country’s economy. Thus,
generally all kinds of ammunition of war may be seized but must be
in Haw Pia vs China Banking Corporation (80 Phil 604), the Supreme
restored and compensation fixed when peace is made.(Ibid)
Court upheld the validity of the payments made by the plaintiff in
9. The occupying state shall be regarded only as administrator and
Japanese military notes to settle a loan extended to her in Philippine
usufructuary of public buildings, real estate, forests, agricultural
currency before the outbreak of the Pacific war.
estates belonging to the hostile state and situated in the occupied
7. Private property cannot be confiscated, but those susceptible of
territory. (Ibid, Art 55)
military use may be seized, subject to restoration or compensation
This rule was applied in Banaag vs Singson Encarnacion (April 19,
when peace is made. (HC No. IV, Reg., Arts 53-56) The property of
1949), where a lease of five years granted by Philippine Executive
municipalities and of institutions dedicated to religion, charity and
Commission in 1942 over certain municipal fisheries was deemed
education, and the arts and sciences, even when state-owned, shall
automatically canceled upon the re-establishment of the
205
Commonwealth government. (Ibid)
be treated as private property, and their destruction is expressly
forbidden. (Ibid)
What is International Humanitarian Law?
8. The army of occupation can only take possession of cash, funds
It used to be known as Laws of War which provides for
and realizable securities which are strictly the property of the state,
instances when the use of armed force is justifiable (jus ad bellum)
and it regulates the conduct of armed conflict (jus in bello). (Bernas,
2009)
It is a set of rules which seek, for humanitarian reasons, to limit
the effects of armed conflict. It protects persons who are not or are
no longer participating in the hostilities and restricts the means and
methods of warfare. (ICRC Fact Sheet, What is International
Humanitarian Law cited in Sarmiento, 2007)
How does the Philippine Constitution express the concern about
the environment?
Article II, Section 16 provides that, “ The State shall protect and
advance the right of the people to a balanced and healthful ecology in
accord with the rhythm and harmony of nature.”
The discussions in the 1986 Constitutional Commission
manifested a clear desire to make environmental protection and
ecological balance conscious objects of police power. (4 Record of
the Constitutional Commission 912-916 cited in Bernas, 2009)
Are environmental concerns related to human rights issues?
Yes, they are inseparably related. In the Danube Dam Case,
the ICJ held that, “The protection of the environment is a …vital part
of contemporary human rights doctrine, for it is a sine qua non for
numerous human rights such as the right to health, and the right to
life itself.” (ICJ Rep 1997 cited in Bernas, 2009)
What is international economic law?
“The law of international economic relations in its broadest
sense includes all the international law and international agreements
governing economic transactions that cross state boundaries or that
otherwise have implications for more than one state, such as those
involving the movement of goods, funds, persons, intangibles,
technology, vessels or aircraft.”( The 3rd Restatement of Foreign
Relations Law cited in Bernas, 2009)
What are the four characteristics of IEL?
1. IEL is part of international law as treaties make this so.
2. IEL is intertwined with municipal law since the balancing of
economic treaty law with municipal law is important.
3. IEL requires multi-disciplinary thinking involving not only
economics but also political science, history, anthropology,
geography, and other disciplines.
4. Empirical research is very important for understanding its
operation. (Ibid)