PIL Notes

PIL Prof.
Harry Roque | 2 4 December 2009
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Rules are made in furtherance of what is perceived as beneficial. Rules should change depending on what is now, at a certain point, considered as beneficial. Slavery was not always beneficial. There was a time when European relied mainly on slave trade. E.g. southern states of US and Caribbean sugar fields. Black people are not subject of commerce and so there s absolute prohibition now to deal with trade of human being. What s wrong with RULES-BASED definition : 1. Law is divorced from reality, incapable of changing with the times. 2. Southwest African case: Who founded state of Liberia? Runaway slaves intended for delivery to US. Broke away from cargo ships and founded what is now called land of free slaves. They question the practice of apartheid systematic segregation based on race. It went to court and what did it want from the court? Enforce systematic mode of segregation, in breach of trusteeship. This was in the 50s. instead of deciding on the merits, it ruled affirmatively on the preliminary objection. Why did the court said there s no jurisdiction? It was not a legal issue. Court only had competence to deal with legal issue. It was a useless tribunal. What kind of tribunal would say that systematic segregation of black was only moral and ethical issue? Blatant discrimination on the basis of skill. Consequence: create other courts. Eat a humble pie and turned 360 degree Portugal v. C. Right to self-determination is not a fundamental right but an erga omnes. Any state has right to advance the right even without suffering special injury. International law is not just about rules. If you do, you won t be able to resolve controversies which is a proper issue to be addressed by normative system such as international law. 3. Widens the gap between what the law is and what the law should be. Advantage of normative process approach: you bridge the gap because you will now argue that although rules continue to be relevant, a controversy may be decided not only on established jurisprudence but also contributing factors e.g. economic, geographical and humanitarian. HIGGINS: more in line with human experience because int l law not made by tribunals, decide not on the basis of right and wrong. But which party made superior claim, unlike domestic laws. Competent decision makers and policy makers, e.g. domestic judges and international orgs while considering rules, will also consider other factors and that s a fact. DEFINING IT AS A PROCESS WILL BE MORE REFLECTIVE. Under positive law, what happens when there is a breach of the law? Penalize and declare that there is a sanction. In case of international law? Unlike domestic law, a breach in intl while characterize as a breach, it could signal the creation of a new norm, under the definition of customary law. When there is concurrence between opinion juris and state practice. Who promulgates why international law law to begin with? Is it true that to be a law, it must always provide sanctions? Under the domestic law, what is example of domestic law which when breached does not provide for sanctions? CIVIL LAW! Is it true that there are no sanctions under International Law? THERE ARE! People have been sentenced to death because of international law like that Maguindanao massacre. Many people are defending themselves in the tribunal in the Hague. In addition to proceedings heard by national courts in the exercise of universal jurisdiction. All courts in the planet the legal competence to proceed. CRIME AGAINST HUMANITY: widespread and multiplicity of victims will qualify ad hoc referral from state that s not a member of ICC. We already have that. Ad hoc consent for specific case. Picture of Maguindanao massacre. Even the doctor will be shocked. International journalists did not reimburse him. Feed soldiers and one company of soldiers who eat a lot to secure the site. $15,000 over a week. ICC pays for it if you refer. Investigation, witness protection, cost of travel for witness and investigation. The Ampatuans can t lord them around. They ll be behind bars in the Hague. I just got another threat. Why do states and individuals recognize International Law as law? 3 views: 1. It s how it was meant to be in the state of nature. Higher than domestic law. Horizontal rather vertical nature of international law. 2. Consensual. You agreed to recognize it as binding legal system. 3. Reciprocity. Redounds also to consent. Why do states recognize binding nature of law? Because of the recognition that it is to their natural interest. Where do you find the law then? Without an international congress formulating this rules? State consent makes it binding. But where do you find it? y Sources of law. Need not be promulgated only by one international congress but there are various sources. Who are the subjects of the law. The doer. Because the ICJ statute, the only tribunal that can adjudicate. Parties before cases in the court. Only states are doer in international law. All states are actors in international law, capable of possessing rights and only states can assert this rights. What s wrong with this? Human beings are not the object. Do you make them similar with waters and seas in the UNCLOS. Subject is capable of possessing rights.
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NATURAL RESOURCES AND FOREIGN INVESTMENTS even multinational corporations are capable of possessing rights. E.g. companies that manufacture gas in gas chambers of Auswitz WW2 for complicity in war crimes. Burmese indigenous communities coerced to work on construction of a pipeline of Junta and Total. Don t use Myanmar because invention of the military junta. Volante cessant: separate personality distinct from the one enforcing it. E.g. greenpeace. I love greenpeace! Enforcement of environmental rights. Barricade their own ship into path of whaling ship. Correeect! Doctors without borders, splinter group of ICRC primarily created to promote IHL. Landmines illegal. Legality of nuclear at the behest of doctor against wars. Protected individuals are humanitarian workers in armed conflicts. Amnesty international. They galvanize public opinion. Made as driving force for international community to make treaties e.g. convention against torture and landmines. INDIVIDUALS! Not to be targeted by combatants. File a case against any court in this planet. Gone are the days when individuals had to defend with homestate to espouse its claim before ICJ! Directly ICSID against the state because your investment/property rights rendered inutile. Treated as equal before the ICSID. State is only a juridical person. Should there be a distinction between power and authority? Traditional jurists would insist that law is about authority and that power does not belong to realm of law but to politics. Complete dichotomy: turn a blind eye, power donations to rewrite rules if they want to. Or fashion it to a norm that would serve its interests. Not ideal but reality. Principle of sovereign equality of states, but that s where it begins and ends. In principle. We all know that power counts. Normative approach does not consider politics as completely divorced. Power and authority coincides. International law and diplomatic practices such as when you are giving a toast, don t drink ahead of everyone else. Nothing to do with fact that norm has become obligatory. SOURCES OF LAW CVO starts identifying all the names of those involved! To a strict positivist: ICJ! It s only one of the bodies. Made everyday and everytime by ambassadors, general, domestic courts. All are part of decision making process. If there is dispute, brought to 38, applicable only to the court. First time may susundo sakin, ayaw ipadala ang magandang sasakyan sa massacre site kahit magkano ibayad.
11 December 2009 Principle of specially affected states in Northern Sea cases. Despite fact that some states ratified Geneva Convention, the reality, the maritime powers were not parties to GenCon and hereby conclusion that even number of states ratification, especially interested states, not reflective of OJ or SP. SP must be so widespread to be virtually uniform. Concur with OJ that psychological. Amount of time does not matter. Treaty norm crystallizes into customary norm. HIGHLIGHT on the case of Kookooritchkin v SolGen. What is involved is rights of an asylum seeker or a refugee. They don t mean the same time. Technically AS merely applying for refugee status. But already given rights: nonprosecution for not having legal entity (no Visa nor travel document) and not to be deported back to where he came from. Pending entitlement to refugee status. Non-prosecution and non-reformal (?) REFGEE: prove well grounded fear of persecution arising from political beliefs or membership in cultural, ethnic or religious groupo. Expanded as a result of African conflict include fleeing homes and crossing international boundaries, as a result of conflict in their homelands. Kookoo PRIOR to GenCon in 1951. I m including this to illustrate how progressive our jurisdiction is in this country. Jacky kookooritchkin talk show host na Tisay. Apo of Ronald. As a result of Russian revolution. Foreign destinations because they were loyal to the Czar. Their numbers became so great that American colonial that they are to be settled in the island of Samar where they fathered fair-colored children. hindi yan espanyol, mga ruso. Commissioner of Immigration nabwiset, now wanted to deport dahil walang passport at visa. Now Miss Santos. Bad recit! Sit down! What are the nice things they did to Nicaragua? Foreign power overturning. What was the reason US was doing that? The same reason why they were in Vietnam. Comists have no right to live. You bombed them away. Kind of evidence you produce to the board. To the board Miss Mejia and Ms Umali. What were the issues in seriatim? Write down the issues and then the evidence Prohibition on the unilateral use of force Number of ratification and signatures, consent to be bound thereto 1. 2. 3. 4. Use of force Non-intervention, sovereignty of states Collective self-defense not expressly provided anywhere State sovereignty
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Humanitarian law it s so obvious. What s prohibited under humanitarian law? Not laying of mines. It s laying of mines without notice to commercial merchant vessels. It s the fact that you must have sign that there is mine in the land.
ASYLUM CASES Original customary norm Ama ni Impaktita. San nagpunta? Gaya ni Hoya san sha nagpunta sa embassy of Peru. Regional customary norm, characterized his offense as political offense. Binding on you Columbia! Give same conduct to Hoya so he can go to the airport and fly to Peru. Colombia says Dream on!!! Cite the evidence used by Peru to prove this customary norm. Montevideo Convention. Why did Peru say it was customary? IN nuclear cases: Read the dissent of Weeramantry something. Is there binding international environmental law. The majority decision decided to dismiss the case. 8 January 2009 Customary Law Judge Weeramantry s dissent y Case could not proceed because it stems from another previous case which was not decided on merits because France made a unilateral declaration (which according to the court has become another source of international law) Sir does not agree, because it should be covered by general principles of law such as estoppel. y Why did Australia and Pacific islands case? Underground testing. The issue, should they have filed completely different case instead of arguing that initial phase of the case should be opened. No need to file a new case because continuation of the first case which remained unresolved. Majority opinion was to file a new case. The first oen has been dispensed with by the unilateral acts of France. y Environmental law enters the picture because it what is violated is . Not binding treaties but mere declarations and principles, not intending the effect of pactum sunt servanda. y Answer: state practice and opinion juris. y Favorite icj judge. y What are the principles cited by Weeramantry? 1. Geneva Convention always been provided for by Hague convention (weapons that cannot distinguish) basic evidence that international envi law has become binding (Hague and Geneva) 2. Prohibited method of warfare because it caused widespread long-term damage to environment 3. Intergenerational principles. Lex ferenda. (Aspirational and not hard law). Though not found in binding treaties, they are customary norms. First delivered by Phil SC in Oposa v Factoran. Trustees for the future generation. Why was it binding principle of law? Interested in the material sources. Material evidence: Stockholm declaration, opinio juris, state practice, ECC principles, Maastricht Treaty. 4. Precautionary principles exercise precaution and desist: Rio de Janeiro 5. Environment Impact Assessment principle 6. good neighborliness where do you find this in the UN Charter? Non binding instruments can still have binding effect if they are statements of customary norms. (?) Legality of the Use by a State of Nuclear Weapons in Armed Conflict y Incidental that nuclear weapons can kill billions and billions of people. y How can they say that it s not public health issue? (bacteriological and chemical weapons) y Second time around, same doctors who lobbied the firs issued. They asked the GA to request advisory opinion. y Japanese judge had personal knowledge that it s Doctors against Wars who s behind the states action to request for the action. In my mind, the second most notorious of the ICJ, 2nd only to Southwest Africa case where it ruled that apartheid was not a discrimination. y It s not per se illegal, but only when used in an armed conflict, it is illegal. y Both India and Pakistan, detonated their respective nuclear warheads. You can develop it! You can use it as deterrent! Absurd! This is what happens when academics with no litigation knowledge sit as judges of ICJ? y What is the reasoning behind this absurd conclusion? What is the step used to determine the international law? o Is there bilateral, multilateral treaty that it s per se illegal? No o Under customary law is it per se illegal? No o Is there treaty which makes it illegal? Yes o ICCPR absolute no mention so that can t be a basis o Convention on genocide also not applicable, so this is a process of elimination. What else? o There are treaties which declare nuclear free zone not sufficient basis because o Specific treaties prohibiting specific weapons? Why are they not applicable on whether or not it is illegal? Basic definition of biological - weapons arising from biological matters, living matters. Are nuclear weapons asphyxiating. It is also not chemical. What is the nature of nuclear fission which is how energy is relation? Splitting of an atom. o 1925 Geneva Protocols and another one. y What was the allegation who argued about customary norms? What was that evidence of OJ and SP? Nobody has used it since Yamashita and Hiroshima and countries therefore argue that this is evidence!

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Rebuttal of nuclear countries: Refusal or non-use cannot be related to its illegality. Possible explanation: Policy of Dtente. (which means deterrent effect in fact from others using this knowing that there is retaliation) If susceptible of 2 possible explanation, you cannot use opinion juris. The conduct and state practice is important. Gave credence to position that possession serves as deterrent. To criminalize, you will have to get consent of the thief to make it illegal. Consent of the nuclear state. Gave more credence to view of nuclear powered states. On basis of customary and treaty law, there could be no declaration that it is illegal or legal per se. However, court did note that under IHL, specifically, what principles? Distinction. If it kills everyone, it does not comply with principle of distinction and ergo, prohibited method of warfare. (Geneva) hague also applies. Final catch-all provision in the Hague provision: Marten s clause: in default of specific treaty or legal basis that mankind, continue to be under protection of PIL, public conscience and laws of humanity. Although there are existing as prohibit warfare by nukes, when can still find basis in public international law, laws of humanity and dictates of conscience. It s ridiculous to declare use as illegal, but possession not. All weapons are legal. Only those which do not distinguish and cause unnecessary sufferings and superfluous injuries are prohibited. Really ridiculous.
Paquete Havana y Is passage of time important? No. as long as there is widespread and virtually uniform state practice. Although, because of development in science and tech, what took hundreds of years before, could now become customary norm overnight. y Principle since ancient times. Clearly recognized customary norm since time immemorial. How early? First, what is the basic principle. y Is this to be taken as price of war. In war, enemy is entitled to confiscate and seize vessels. They can be condemned as price of war. Not all maritime vessels, are fishing vessels? No. y Why do you think the law prohibits it as prize of war? Prohibited by IHL, because to allow them, no one would engage in fishing, deprive civilian population with source of food. y Since 1400: war between Henry IV. Federal union, stop each other from killing each other. y In the US, no act of Congress for such. Is it required that law must be passed to have such rule? Even without domestic law, what makes it recognized? In their wars with Mexico and UK. y IHL is not only customary in nature but also jus cogens. DO NOT FORGET THAT 1. custom norms require concurrence of virtually 2. coexist side by side 3. no hierarchy bet treaty and customary norms 4. when treaty restates customary norm, it not only bind parties but everyone. General Principles of Law y municipality y Civil and common, Confucian, Islamic and sufficient to prove that principle is recognized in common by these laws. y Therefore, as an evidentiary technique when arguing existence gen principle of law, you must cite specific legal traditions that recognize the norm. what kind of principles are considered general principles of law? y Two types: o Remedial evidentiary principles o Substantive principles e.g. contract laws Preah Vihear y Thailand and Cambodia are again on the verge of war because of this. y Thailand insists that the strip of land around the temple is Thai territory, although the temple is Cambodia. You cannot go to temple without going to the land. The Thais are thieves. They steal Cambodia and Laos, Vietnam s timber. They also steal women. Trafficking is highest in Laotian and Cambodian and Burmese are forcibly taken to Bangkok. y Is it remedial principle or what? Remedial principle. Topographical study by the Commission of Delimitation between Indochina and Siam. y They signed the fact without indicating any objections. y To whom was the temple adjudicated to? Cambodia because of estoppel and acquiescence y Principle exactly the same as the ones found in the Civil Code. What are the elements of estoppel? -> Example of general principles of law found in majority of legal traditions (also in civil and common law) o Act or representation o Reliance o Damage Portugal v India y Landlocked by India, maybe Nepal or Bhutan. Texaco v Libya

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Both customary and general principles of law Nationalized the petroleum industry Issue: No longer whether Libya can nationalize (because it could, recognized in another case), but whether in case of expropriation, which law prevails (domestic or industrial)? Why will it matter to figure out? E.g. private airport owned by German is expropriated by Phil. Will it matter whether Pasay RTC will have jurisdiction or the IcJ? o Stronger influence to co-Filipinos o Application of local laws beneficial for the state. Investor is favored in international law
Saudi v Aramco (rem law: which law to apply?) y Counsels were academics who are also litigating y British counsel for BP and then Total. Do not isolate the facts. y Going back to Legality: GA even if not binding, may contain and evidence binding norms, because of (1) content and (2) conditions of adoption used by DePui to establish customary norm. SP and OJ y 2 contradictory GA resolutions: y More important: compensate foreign investor for capital which enables extraction. y As you can see in aramco, the court said, contractual stipulation so it did not matter that state had sovereignty over mineral deposits in its territory. But because of NIEO, we now have sovereignty over our natural resources such that when property is extracted, the appropriate basis must be national law. y Read again from Legality case as to GA s y In contrast with another resolution: foreign investors must be compensated with IL because they get more from that. y Which of that two resolutions are embodiment of SP and OJ. y Break down the voting pattern!!! Resolution 1803 (international) 87 votes for = 86% 2 against = 12 abstain = Resolution 3171 (national) 108 for = 68.8% 11 against = .008 28 abstain =
Nominally, it s a difference of one vote. Do you agree that this is reflective of state practice and oJ? It s the same nominal votes, except that more states voted for 3171. It s one vote short by what was declared by DuPui as reflective of customary norm. the rule is virtually uniform state practice. The abstention should not matter because they abstained. I would maintain that percentage should be limited to for or against. What would be the percentage. Nominally, where is the evidence? When almost the same number of states? More capital exploiting countries voted for this. Application of specially affected states. Remember Northern Sea Shelf cases because they are all coastal countries. Very few states with capital, but why did DuPui said it s 1803? Because his loyalty lies with Total. Laws did not come out from nowhere. Capital budget want to protect themselves. All international lawyers are active counsels for oil countries and capital exploiting countries. To favor developing countries rather than developed. The conclusion should be it s not reflective! It s only an attribute of sovereignty, it s the totality of powers, it includes competence to prescribe or jurisdiction so why shouldn t you apply jurisdiction to apply for conduct of legislation on mineral deposits. Unquestionable customary norm recognizing so over mineral deposits. Nothing could be concluded in this voting pattern. I almost got into fist fight in NY with Africans. Why are you always picking on Africans? Because you are committing genocides! The Africans and the Ampatuans. Entire system of ICC against Africa. Mass rape for President of Sudan. No one willing to enforce warrant. Threatening to withdraw from the ICC if you insist on arresting Pres of Sudan. Applicable law for taking of property is intl law. Why sir disputes and very much doubts on this kind of analysis. Another principle of law in Corfu Channel case. Corfu Channel Case (rem law: circumstantial evidence can actually be basis for finding factual disputes) y Links two high seas of Albania and UK y Albania insists that all vessels must ask permission first. UK which is a maritime power says No can do. y Cannot be subject of formation, but rather transit passage non-suspendable (which will be discussed in law of the sea) natural superhighway which cannot be blocked. nd y As if to provoke Albania, set warship to sail through Corfu channel. Nothing happened. 2 time around reconnaissance then bombed with passive bombs! y Who was responsible for the death? Obviously Albania. Albania: No! I don t know about this. y Court had to rule on an issue of fact using circumstantial evidence. What were these? o Geography: so narrow that laying of mines could not have been missed by Albanian state agents manning the strip (either you knew or didn t know because knowingly turned blind eye) Barcelona Traction (substantive law: ) y At what currency where they denominated? Pounds: UK money, jewel of the royal family cannot make it expensive anymore.

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Civil war said no: all loans must now be paid in what currency of Spain. Peseta. Instead of 10 lbs, 10 peseta. It s worthless like Mickey mouse. Real value of 10 peseta and 10 lbs. asked Belgian govt against Spanish govt because it s an Spanish company. Rule in ICJ: nationals cannot appear before it. State should rather espouse or sponsor the claims of its nationals. ISSUE: which claim should espouse? Belgium or Canada? What is relationship between corporation and stockholders? Separate and distinct personality from those comprising the corporation. So it should be Canada. Who suffered damage? Belgians because they were bondholders. Shares refer to equity in the company. Bonds are papers evidencing indebtedness. Who says that share and bondholders are the same? The principle is only applicable to shareholders. But they were suing as debtors. Whose title to interest because they are not compelled to accept worthless currency. While the court is correct in distinction between stock and corp. They are wrong in saying that Canada should . PIL professors should not be allowed to sit in ICJ court because they don t have litigation experience because rules of evidence are to be applied. They don t have any clue as to corpo law. What do they know about shares and bonds?! How would they apply evidence if they have not litigated themselves diba? As you can see, evidence forms part of general principle of law and therefore a source of law. We should amend that. With minimum trial experience, at least 5 or 10 years so you know hearsay, testimonial and object evidence. When you practice, you have civil, criminal and commercial. They don t know distinction between bonds and shares. Hay nako. Correct? Who is Jose Mendoza?!?!?!?! An absolute obscurity. My gosh. What is his claim to fame??! Buti pa si Perez, you have to give it to him. But it s better than Merceditas and Agnes. Mediocre than hopeless. Mendoza Whooo?!?!
BP v Libya y Saudi Arabia first case: law on foreign investment y Use of arbitration as preferred mode of settling dispute between sov state and alien investor y Aramco: basis for establishment of modern arb bodies e.g. ICSID and y It was thought that we should encourage free-flow capital rich and poor. One way to ensure property rights when taken away would be compensated is to give permanent tribunal or facility to claim grievances. Achieve some kind of predictability. It means encouragement investors from west to go to south. Saudi Arabia v ARAMCO, the same as BP y Grant of concession: Exclusive exploration, exploitation, processing and transportation for 30 years y Saudi entered contract with Onasis! Husband of Jackie O (widow of JFK). Greek build empire on transportation of oil transportation by tanker business! Sheik given caviar, champagne, good food and women to get contracts. y Terms of concession: Aramco complained! You are infringing on my concession rights! I have exclusive rights to transport!!! y They agree to enter into arbitration. y 1st issue: what is the nature of this concession? Franchise or contract? What are the consequences for both? o Franchise privilege taken away anytime position of Saudi Arabia o Contract observe in good faith y Arbitration no police. y If you are the arbitrator. How would you encourage Moslem? You cite Islamic laws! Concession agreement is a contract. y Arbitrator s reasoning to persuade Saudi to comply with this rule: o According to English common law, Spanish and German common law! Concession is a contract! o Ramification: 1. It could not invoke immunity from suits, it has agreed to consent to litigate 2. Breach of contract leads to these remedies also common to all legal tradition laws (including us!!!) a. Reparation b. Specific enforcement c. Damages in either case Briefly proceed to Actors and Participants Context: moved away from traditional definition applying only to states Palawan: won entitled to all royalties and earnings arising from Malampaya field? OSG says traditional definition, NO!!! no other state involved here other than Philippines. Despite their pronouncement that IL is not relevant, they keep on invoking UN Convention on the law of the sea. We have moved away and redefined it as a PROCESS. Not only intergovernmental system but also domestic. We have incorporation code! It is not just a legal relation applicable to inter-state. Domestic legal system: regime of continental shelf. In definition of territory, not only treaty of paris, we also use continental shelf, economic zone etc. etc ang bilis magsalita amf!!! The right to exclusively exploit in continental shelf and exclusive exonimic zone, which explains wording of constitutional. Local govt get equitable share of mineral found in its area. Not subject to territorial jurisdication like continental shelf and eezen (?) whatever. Actors discussing: who else involved other than states. STATEs continue to be most active participants, so we begin there. Beginning with Montevideo convention: 4 elements of statehood. That s how we organized our rreadings for 2-3 weeks.
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Territory Government Population Capacity to enter into treaties that s why it s part under states
Preliminarily, we have four cases 1. Barcelona traction: states alone can appear. Individual claims of citizen must be espouse. 2. Reparation for Injuries Suffered in the Service: why the UN has a personality under Intl Law. Why it is a participant. Under UN Charter, it was given personality separate and distinct from countries comprising it s membership. Volante distinct in French, most importnatn character. Capacity to posses rights and enforce these rights 3. Mavrommatis; same case on espousal. As an international organization, Security Council has primary but not exclusive juris to promote intl peace. Where GA has authorized formation of peace keeping corp of Congo, then even countries which did not agree to vote for resolution, may be assessed their corresponding share for that peace keeping corp 4.
Next week: what it is to be state. Territory. How to acquire title. Maritime and then what is exactly scope and breath of Phil national territory. 5050 chance that I will not be here in Friday. Scheduled to give lecture on Nepal. You have to sleep in Bangkok. Singapore. Assume I will be here. Next week to Nepal beg off filthy and population it s like laos, who goes to Laos? I m so baaad. 24-28 on NY New York Times v Sullivan 31 January 2010 Frontier you deserve UNCLOS is a result of compromise. Policy decision making that compromise is better than lack of agreement over those who have the seas and the use of the seas may in fact exercise their rights. Time immemorial, conflict between those who have and those who has. Treaties on why the seas could be used by everyone and not claimed by only one. The laws of the seas which officially markes the growth of PIL. If you were a state with a sea, exercise as much jurisdiction as you want. Jurisdiction menaing judicial nad congressional legal competence. You want as little intergerenece as possible. During the olden times as it is still today, seas is stitll most impt mode of transpo facilitating intl trade. Even more impt today, fisheries for food supplies but also technology harness outher resources of seas including energy source and explore and expliit resources found in soil and subosoil aka continental shelf. The two are entirely separate by way of separate EEZEC refer to water CONTINE SHELF soil and subsoil AS A COMPROMISE: Coastal respective rights and obligation Divide oceans into different maritime zones Coastal and states
WHAT IS MEANT BY SOVEREIGNTY totality in all powers exerciseable by state AND JURISDICTION legal competence to enforce prescribed conduct INTERNAL WATERS: absolute sov and juri of coastal state SCOPE AND BREATH OF INTERNAL WATERS baseline inwards (rivers, lakes, waterfalls, streams etc) TERRITORIAL SEA almost identical regime as internal waters (absolute S&J) the only difference: right of innocent passage etch this in your minds. This is the only difference between TS and IW! Right of 3rd states to sail through for purpose of single and continuous voyage. Remember this is a result of compromise CONTIGUOUS ZONE compromise: traditionally not subject of S&J any longer. Prior to the UNCLOS, how they reckon the distance was the full extent by which a cannon ball can travel. That used to be 3 miles. To the extent they can actually defend it. 12-24 is already substantial distance from the coast. Here the compromise is allowed BUT ONLY FOR DISTINCT MATTERS. Other than that, they cannot anymore. this is OPTIONAL!!! They cannot compel you to! 1. Pollution and health 2. Immigration 3. Customs 4. Fiscal security (taxation) includes counterfeiting and smuggling of goods absolute ban on alcohol and tobacco. They would lay an anchor in the 13th mile. RATIONALE FOR THE CONTIGUOUS ZONE: ___________
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EEZ 176 no longer sovereign rights exclusive right to explore and exploit natural resources both living and non-living. Can you enact laws, no but you can grant concessions so fishing companies can fish. Can you enforce penal laws? Generally not. If state cannot impose law, what law will apply? The law of the flag state. State of nationality of the vessel.
COASTAL AND STATE RIGHTS AND OBLIGATIONS At least with convention in place, there s predictability and stability as far as how nations utilize the seas. WHAT ARE THESE BASELINES? 1. Rugged and irregular coastline farthest rock connect the straight lines which will be baselines. Inward internal. Outward territorial seas. 2. Coast is fairly regular (e.g. China which now uses archipelago for claiming Spratlys) Article 5 (Normal Baseline) low water line 3. Archipelago farthest point. Take note of difference between 1 and 3. Farthest rock and farthest point. Who hasn t been to Boracay? What s wrong with you?!?!? 4. Bay semi-circle test. (See for illustration) Consequence of being an internal water? They cannot pass through See notes Width requirement not to exceed 24 miles. River put a straight line. Man-made harbor works outermost permanent structure is the basepoint Delta (only one delta and Sri Lanka) Bangladesh mostly underwater like Navotas and Malabon. Therefore should be erase from the map. I don t want to see Bangladesh and Nepal. Anything with GDP lower than Phils. A delta is a seasonal landform, during dry season, there s no water. Like malabon, there are houses. 6 months under water, 6 months not. Reefs same thing. point which is above water during low tide Roadsteads
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A. INNOCENT PASSAGE INNOCENT PASSAGE makes territorial sea distinct from internal waters Remember the ruling in Anglo: only one instance economic right. Internal waters as a result of drawing straight baselines. Normally, it requires consent if you want to pass and fish. SOLE EXCEPTION rugged or irregular coastline. What is meant by that? Right to sail through continuously in connection with one single voyage. Includes right to pick up passenger and goods. Ramification if passage ceases to be innocent? You can suspend the right to innocent passage. (suspendible) ask the vessel to leave. If it does not comply what can you do? You can fire back if there is necessity as self-defense but must be proportional. Otherwise, comply with all the peaceful ways of resolving the dispute. Let s take note of this. In the different kinds, there are different fo9rms of passage given ifferent kinds of control and jurisdiction. Most common is regime of innocent passage Although it s a right of 3rd states, it s nonetheless subject to suspension. When is it not innocent? When not in connection with merely passing through When innocence may cease (Art 19) e.g. 1. When you fish 2. Recreational scuba diving 3. Scientific research 4. Artificial islands 5. When you start firing on the coastal state (the most impt ground for suspension) What law applicable to a foreign vessel docked in a foreign state? French Rule (flag state) and English (coastal state) they traditional hated each other. They fought many wars. Every Italian is a thief. UNCLOS is a mixture/hybrid of both. What crime does not disturb the ship? State given the right to prosecute if it wants to. Generally it s flag ship except if it disturbs the peace Sir: of course you can always argue that it does! What are the kinds of restriction that it may impose on vessels passing through? y Double hull tanker they carry oil or highly pollutant chemicals. Mostly single hull lang nagsesail sa Pinas kaya may. Can you require it as a precondition? No. Art 21 y Require something for safety of life at sea? Yuh y Levy a charge? No Art 26 y Can you charge pilotage? Yes. specific services Art 26 Summary: Kapatid sa kalakihan tatlo lang tayo. Anlo and Migs. You cannot infringe right to passage except 1. Damage to environment 2. Safety of life at sea
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Laws imposable to innocent passage. Darwin recites. Ask him!!! Vessel has a concomitant obligation not to breach. Those are in effect obligations: not to violate the exception B. Transit passage DIFFERENT REGIME NOW. First encountered in CORFU CHANNEL Where there is an international strait, can you require them to ask for prior notification? Strait narrow body of water that connects high sea and EEZ. What was the decision in Corfu Channel Case, can you suspend passage through international state? TRANSIT PASSAGE which is basically non-suspendible. Look at the specific provision of UNCLOS. What happens if the transit passage is not innocent. Sympathies ni Sir ay with Albania, UK provoked them. Singapore has higher GDP than England. Fast becoming 3rd world. Gulf of Sidra: no published article. How big is the mouth of Gulf? Compare this with Honduras, NIcaragua and El Salvador. Mouth is wider than 24 mile. 275 miles. But it s historical bays if it s been treated historically as internal waters. It will be treated as such. Americans provoked that by flying their planes over there. Same way when UK was a maritime power, it provoked Albania. What happens if passage is innocent? You cannot suspend it but you can exercise all rights for the commission of internally wrongful act. Under no circumstance you suspend it because otherwise, you hinder navigation knowing that straits connect high seas and EEZ.
HIERARCHY 1. Internal waters (absolute) 2. INNOCENT Passage more sovereignty (SUSPENDIBLE) 3. TRANSIT Passage (NOT SUSPENDIBLE) 4. Archipelagic passage (has 2 separate regimes) a. Archipelagic Waters main proponent ang Phil (1. Recognize within archipelagic baseline as internal. 2. Outside it but within the square of Treaty of Paris, territorial seas) but we lost this. b. Archipelagic Transit SIR ROQUE IS GOING TO JUMP (Oh no. Haiti.) ARCHIPELAGIC states Moved away from traditional definition of PIL. Application within the domestic law because of the incorporation clause, it s form part of law of the lands. Spratlys natural prolongation of continental shelf of Palawan. Gross ignorance of PIL. Should we redefine our law to comply with UNCLOS? 1. We adapted in Convention by way of analogy. The use of straightline. The difference is archipelagos can use the base point the farthest point and it must be a rock or coral reef. Look at Anglo-Norwegian to be more precise. 2. Straight archipelagic baselines. Not depart appreciably from ART47 3. 4. 5. 6.
Ratio and proportion. (Mother of Yohan!) Definition of archipelago is distinct from archipelagic state only the latter can use baselines. One or more archipelago. You cannot even resort to straight. I don t know why China drew it s basepoint as archipelago. They can only resort to regime of islands. How long the baselines could be and what is the leeway? RA 3046 as amended by RA 5446 No innocent passage in the internal waters. Swimming dolphins. Why is it important to limit? You cannot deny innocent passage to warship and submarines? No!!! nuclear aircraft carriers!!! Waters between dumaguete and cebu. Carrying wastes!!! NOOOOO!!! The only provision is dangerous cargo must be required to carry documents. That is how invasive the right of innocent passage is. You cannot suspend it unless there is a direct threat made to the state. UTI POSSIDENDIS colonial boundaries must be conclusive
We made a declaration though ratified UNCLOS (through Sen. Tolentino) that we will continue to abide by the constitutional definition of what is the territory of the Philippines? 1935 mentioned Treaty of Paris. 1935 is Treaty of Paris + other treaties where we got Turtle Islands and Mangsee Islands. Since the language is different, have we abandoned the Treaty? NO!!!! we built from there. Now we defined the different portions defined by the UNCLOS. Airspace, continental shelves. We expand what we had in the 35 now covered by new maritime zone. Cede it with the Phil commission. Merlin Magallona position is ecstatic. THE QUERY: ARE ALL ARCHIPELAGIC STATES MANDATORILY REQUIRED TO USE THE ARCHIPELAGIC STRAIGHT BASELINE UNDER THE UNCLOS? China, because of the one child policy, has an army of brats. Aborted 70 million female fetuses in favor of these boys. Anong laban niyan sa mga battle-tested soldiers natin!??!?! What is NAMRIA ?
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Government represented by a classmate. Okay. Our version. PRINCIPLE ARCHIPELAGIC WATERS: Innocent passage but with lesser grounds for suspension. BECAUSE it includes the right to overflight. We actually failed in achieving what we wanted. We didn t retain our internal waters. Limited grounds for suspension: Art 52 (essential for protection of security) Congress is confused. Not the only regime applicable to archipelagic state: archipelagic transit passage . Maritime passage. By operation of convention, the rule habitually used becomes a maritime superhighway with non-suspenda MOST SOVEREIGNTY to LEAST SOVEREIGNTY 1. Internal waters 2. Innocent passage suspendible (maraming grounds) 3. Archipelagic suspendible (1 ground) also granted overflight 4. Transit passage (non-suspendible) 5. Archipelagic transit 6. High seas
UTI POSSIDENDIS DO NOT FORGET TREATY OF P. it constitutes colonial boundary! Although US did not recognize it, what was ceded in ToP is Phil archipelago which includes both waters and territories. US says only land but not waters. They want their submarines and nuclear carriers to sail through our internal waters y Art 1, 1935 Constitution still ToP o Spratly slang ang binago. Why is 140 mi violative of UNCLOS? 3% of all baselines. o EEZ as drawn by Marcos. y Art 1, 1987 Constitution contested territory like Sabah o Terrestrial etc. To emphasize our belief that our water is our. connecting, between and around form part of the internal waters o BUT what does UNCLOS states? Archipelagic waters which is akin to territorial waters which allows innocent passage and overflight o How do you reconcile them? Can treaty amend the Constitution? All Treaties must comply with the CONSTITUTION!!! Archipelagos are not compelled by UNCLOS to be archipelagos!!! We have never abandoned ToP boundaries. Extended Continental Shelf Deadline May 2009? ABSOLUTELY A LIE! IT WAS OPTIONAAAAAAAAAL!!! Countries are entitled to up to 200 nautical miles of continental shelf. But if there is data, they will be entitled to additional 150 for a total of 350. The team included NIGS and LAW and DOT and DENR. Objective of the project: to come up with a collection of data we already have and we still need to have successful claim which is called UN Commission on Extended Continental Shelf. Unless you make a claim, you are forever barred. Manila Bay, Cagayan and Kalayaan. Kalayaan is absolutely complete that it constitutes natural archipelago of Palawan. Japan will prolly never become an archipelago because it does not want warships and submarines to sail through its waters without its consent. Importance of continental shelf: oil oil oil. They gave up on our strongest claim. As early as 2000. I joined 2001. It s been fun earning tons and tons of money. Merlin was with GMA.
OPTION MIRIAM WOULD HAVE TOLERATED. As part of baselines: invaded by China (warning of Estelito Mendoza) CLINCHER: How many of the competing countries can use archipelagic??! ONLY THE PHILIPPINES KASI TAYO LANG ANG ARCHIPELAGO in the first place. We should we fear China?!?!?!?! Art 121 USE REGIME OF ISLANDS when there is Clipperton islands. When it s so far away from the mainland? IT WILL ONLY WEAKEN OUR CLAIM TO SPRATLYS!!! IF we use regime of islands The only territorial sea we have is 12 mi from basepoints. We get of Taiwan. Malaysia and Indonesia also obtained. Bilateral negotiations with neighbor. It s an inchoate gain vs. actual loss of a territory SPRATLYS Prove that Daniel Bethlehem copied Sir s idea and put it on Eritrea v Yemen. They are indeterminate. Were there s conflicting claim to there s no rule provided that all or nothing to the claimant.
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We can actually carve out the Spratlys. EXCEPT non can sustain human habitation, it will not be given a maritime zone so might as well argue that it s part of our extended continental shelf. KAYA LANG hindi natin sinubmit within the deadline. Wrong for the government to claim that Palawan is not entitled to the Malapaya. GMA. Seismic exploration is the only way precisely because it s underwater!!! Only by Phil corporations. La Bugal, they can only participate through FTAA not joint. Regime of islands cannot strengthen but weaken tremendously. SABAH We had title to it by way of cession. From Sultanate of Brunei to Sultanate of Sulu. Contract of pajak may be construed in Malaysian language as lease or sale Only that it intends perpetual payment of purchase price. From time to time, which necessitates the mass expansion of Filipinos in Malaysia. All the servadors and alipins there are from Zambo and Tawi-tawi. Uncomfortable rein in Sabah. Majority of the settlers are Filipinos. 51%. They deport thousands of them to ensure that we don t have majority of the settlers. They would rather be Malaysians than Filipinos. All the people in the palengkes are Filipinos. 5 February 2009 Share an equitable share in the government Corfu channel Coquia Continental Shelf Demarcation cases Equitable principle that will result to equitable division. Equity is in the absence of legal rule. Legal rule itself is the equitable division. Equitable principles resulting to equitable results. main principle BE ABLE TO DEMARCATE THE MARITIME BOUNDARIES OF THE PHILIPPINES, BECAUSE THAT S WHAT YOU LL DO IN THE EXAM!!! Resolve the overlaps after the next three you can go. 12 February 2009 6 meetings left but from Feb20 Mar 11-18 gone si Sir. Bayan v Secretary Jump into Jurisdiction Attribute of sovereignty Exercise of legal competence A. GR: congress and courts can only exercise legal competence over matters that fall within its national territory (aka territorial jurisdiction) E.g. * US-Philippines bases agreement (limited our jurisdiction) B. exercise outside territorial jurisdiction: EXTRATERRITORIAL 1. piracy and other intl crimes (Lol-lo v Sarao) authority for the fact that very early on we have recognition that our courts can exercise juri over crimes such as privacy 2. genocide 3. harm done to one s national. US is very fond of this. They have statute which penalizes harm done to their nationals. 4. REVISED PENAL CODE: counterfeiting of money Look into some detail in exercise of extraterritorial. Intl frowns upon attempt to exercise jurisdiction outside its territory. y McCain y Sosa y Israel HAVING SAID THAT: other forms of extraterritorial jurisdiction with redeeming value. 5. Exercise of US courts to award civil damages to Alien Torture (?)___ Act Sir thinks this is crown jewel of American legislation. Opportunity to file civil suits and recover damages against despots, provided US. Marie Ilao et al from heirs of marcos. LIMITATIONS ON IMMUNITY Begin with more interesting cases rather than domestic cases. Recognized by Philippine Bases Agreement, we have opted to rrestrain court jurisdiction and told you to start with ex parte which is codified in the statute of
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Ex Parte Pinochet? Do you even know who Pinochet is? Decided by UK House of Lords, counterpart of Phil SC. Though they now have Supreme Court from legislative act of last year. No one read anything for today. LAHAT NG MAGRERECITE TONIGHT WILL GET 3 ONES!!! BROWNWELL Trading with the enemy act. Allegedly given independence by the United States. HAW PIA PINOCHET Poinochet was in UK (Europe). This was an instance where a RTC in spain, even if victims were Chilean and not Spain. Spanish judge extradited so that he can stand trial. BEAUTIFUL CASE!!! Defenses of Pinochet? 1. All acts committed as sovereign, entitled to domestic immunity (doctrine of personae assumptionae) sovereign in character, last long after he lost the character of sovereignty. 2. There is no doubt that he had all the immunity BUT torture cannot be considered as an official act Footnote: Principle that sovereign can be tried for a criminal act. Hilao et al in the District Court of Hawaii. US CA ruled that sovereigns cannot invoke sovereignty in dot dot dot. He was sent back to Chile on the promise of him being tried. He was indeed tried and sentenced for 6 years imprisonment. Very bad. HILAO v Estate of Marcos There was one specific property which was recovered. Being administered by Mary Lynch? WON Phil govt can prevent he partial execution of judgment in favor of HR victim bec Phil govt invoking immunity. SC case reversed. Phil govt was granted the immunity. Marcos claimants not allowed to recover. Republic of the Phil v Pimentel (October 2007) Issued an Op Ed why the SC is wrong. y Two groups of claimant na hindi magkasundo. HILAO and ETA. Hindi magkasundo. EICHMANN He was the author of the Final Solution which was Let s kill them Jew Best agents, confirmed that it was him. Argentina. Drugged him and put to chartered flight to Israel. Where he was charged with war crimes and crimes against humanity. MA AND PA HOW OBTAINED JURISDICTION OVER PERSON 28 February 2010 Eichman manner not important as long as Ebrahim not Eichmann McChain Alvarez ACTA domestic legislation that exercises and award complainants who can proved Waived immunity from suit if the acts of federal employees provided that damage was result of single chain of events SC overturned Immunity from suit not waived because there was a rift in the chain of events, kidnapping was done in Mexico FROM THOSE 2 DECISIONS Further cases, UNOCAL civil case for damages filed against acla and military junta and UNOCAL alleging that joint venture company committed slavery when at gunpoint the complaint alleged that indigenous communities in Burma were forced to work. What was the district court opinion of UNOCAL which dismissed and appealed to the court of appeals however Dean recites on the DC opinion, what are the issues? y It was a joint venture company which held majority of the shares? It s always the state, why is it that the act of the military, was being imputed to be a minority share over unocal. y Why will a state enter into a joint venture in the first place? What else does it not have aside from capital? The technical expertise. y Because the foreign investors (e.g. TIM and Smartmatics) has both capial and technical expertise, even if it has minority, it has management over entire thing. That is the reality. Supposedly technical expertise and y In fact, it was UNOCAL that was ordering the junta. y CA: liability of UNOCAL and compromise agreement so no benefit of jurisprudence CONGO v BELGIUM: WHAT HAPPENS IF IT S A CABINET MEMBER WHO MAKES AN INTL CRIME? What happens to the cabinet member who incites genocide? 2 issues: Could a counterpart RTC BLAH BLAH BLAH.
PIL Prof. Harry Roque | 2 -
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International Criminal Tribunal: the only tribunal. Which court is this? International Criminal Court. Very strange case: says that sec and cab members as alter-ego are equally immune from sutis. This is te only case that says so. Why should the secretary of DILG and DOTC be immune? Sir thinks it extends to an absurd degree the concept of political agency. Only insofar as their acts have the effect of being acts the president. But should not be applicable to treaty and customary law. They likewise enjoy immunity from suits. Under Phil law, no cab mem has immunity from suits. Papalubag loob: court did say that you could because the statute of that court says that it cannot be invoke. Even as a president. DOCTRINE: where a domestic court is in exercise of univ juris for pros of intl crime, immunity is recognized as defense and it extends to immediate cabmem of chief exec. But it cannot be invoked as defense in intl crim court.
That ends the interesting intl case jurisprudence, we now proceed to the BORING PHIL CASES: 1. JUSMAG Doctrine: 2. US v RUIZ binding upon the court 3. LIANG functional immunity 4. Under customary law, is there functional immunity over IO. It has headquarters agreement. 5. What about UN? To what extent? Advisory opinion of the court. Special rapperteur on independence of judges and lawyers. He is a Malaysian. He called Malaysian judiciary corrupt. Accused before a Malaysian court, maligning. Malaysia no can do. Brought to ICJ. Special rapporteurs like UN and other specialized agencies also have functional immunity. Advisory Opinion on Immunity of UN personnel. 6. HOLY SEE: is the holy see a state? 7. SEAFDEC AND IRRI: Functional immunity pursuant to hq agreement. 8. MINUCHER Is a drug enforcement agent immune? SC said both but which is which. Stupid. Since when the DEA become an drug enforcement agency. First decision was correct. Is that justice that he want visa or exposure trip? What is extradition first? Deport back to your Is there duty to extradite? None. Only when there is in fact there is an extradition treaty, it s a subject of an agreement. When there is an agreement, this is a typical bar question even if stupid. What are the requirements when extradition is to be supported by the state? 1. Dual criminality act or crime is a crime under the laws of the requesting and requested state 2. You must not include in the extraditable offenses, political offenses Other: 3. NO duty to extradite to a jurisdiction that practices torture. 4. Growing right not to extradite when offense is punishable by death. Where however you are sought to be extradited pursuant to procedure in extradition agreement which will require court/judicial intervention: 1. Find out won 2. Crime sought to be extra is poli offense US PURGANAN When is person entitled to receive due process right that he is entitled to a permission for basis his extradition? Not covered by synchronized US v Purganan. Sitting congressman, donation to Clinton 1. File case with When is extraditee entitled to due process? Original case (abandoned the original): upon filing at the DOJ persons sought to be extradited because it partake a criminal case. Reconsideration Lantion: When formally filed in court. Sentido kumon! TO SUMMARIZE Gen rule: juris (legal competence) and sov (totality of powers exercised by sov state which includes juris pertains to territorial juri) ExceptioN: 1. Universal jurisdiction all courts given juris to try cases involving intl crimes e.g. piracy, war, geno, torture, crimes against hum 2. Outside universal, Peculiar forms of extraterritorial a. Nationality crime applies b. Protective damage done to your national c. Passive personality danger to be committed against state itself 3. In general, extraterritorial is frowned upon. UK frown upon all these.but US is leading exponent. Against Cuba although it has not actually enforced it. The EU also came up with its legislation prohibiting union company from cooperating for purposes of evaluating the cuba. Because of EU opposition against trading in Cuba, at least the us and Cuba. There are also issues on won states can exercise juris other than of McCain, Ebrahim and Einstein type of juris where suspected terrorists are found in intl seas or high seas, at least twice, America have forced an aircraft carrier suspecting terrorist so that it can acquire jurisdiction and in at least 1 case achille rauro, compelled ship in high seas to enter territory of us in order they can acquire juri of the person on board of those planes. To what extent are they legitimate is the topic of intense debate although sir thinks that it should not be given legitimacy. US of course, does not lke this, they would like to retain and legitimate exercise of self-defense.
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Ends sovereign and immunities. INTERNATIONAL RESPONSIBILITY Through human beings, When does the state incur responsibility for intl wrongful act? Answer is too broad 1. Breach of intl obligation 2. That it must be an act that is attributable to the state IN SERIATIM When is there an intl wrongful act? Breach of an international obligation (be it treaty or customary norm) o Breach of specific to a particular possible tort, you are bound to have controversy. When they however agree that there is such an obligation or state incurs international responsibility upon breaching an intl law norm, then there is immediately Do you need fault or negligence? No Is they altogether immaterial? NO. it can identify level of compensation that could be given. Do you need to argue proximity or proximate cause? NO! Because responsibility arises from the breach. It does not require damage. However, is proximity or proximity altogether irrelevant? It could affect issue of among others, reparations. What happens if a state is in breach of intl obligation and therefor responsible for act? It gives rise to a new set of obligations. Second obligation which is to make reparations. What is the principal obligation? 1. Cease and desists from doing such act 2. Make reparation Distinguish between reparation restore status quo ante and compensation if unable to restore or compensation How much damages should you pay? Sufficient to restore to status quo ante Chorzow factory wipe up all the consequence of the legal act. Except that Chorzow which does not have a legal basis, where it made a distinction between legal and unlawful taking: intangible assets to be compensated, if it s a legal taking. If illegal, plus loss of profits. Compensation to extinguish all consequence of the act. 1 element. What is the obligation of third states? Legal consequence of building of Palestinian wall. When is there commission of intl wrongful act where there is a breach of intl law obligation which immediately gives rise to oblig to cease and desist, make reparation and Thrid states must not make recognition to legal act. 2 element. When does a human being act for and in behalf of a state? BASIS FOR ATTRIBUTION in the Articles: 1. (4) State organ Jovito Palparan , vicemayor, vicemayor s father in conspiracy, is that attributable to the state? Ampatuan case. 60 or 70 wehere in conspiracy in killing these 57 individuals. 30 or so soldies also in conspiracy with VMayor and his family. And therefor is the Maguindanao massacre an act attributable to the state. All of them who fired at the 57 massacres where all stte organs. An overwhemlming majority of those who stopped them at that junction where all state organs, either holding appointed or elected posts. Minority were CAFGUs and (Civilian armed auxillairies) auxillary police. Why did we differentiate them from policemen? THEY are NOT regular police. Their compensation are given by warlord P3000/mo and sack of rice.Sir found out as result of Maguindanao. AND YET are their acts attributable to the state. If they are not state organs, they are EMPOWERED!!! 2. (5) private individuals EMPOWERED or acting in color of authority. By an EO signed by GMA. E.g. CAFGUs and CCA Magallona book. Tatay ni Sir yan. Sha 5 topics lang ang dinidiscuss. Corfu channel case for 2 months. 1 month, Nicaragua. ERGO is there private individual whose acts were not attributable to the state? NooooNE.!!! Under art of intl resp, she should be liable. But agnes says that we have to withdraw if we want to continue participating in criminal prosecution. But in realtiy, we should even include Agnes in the criminal prosecution. singling her out, neknek niya. Failure of the Phil state to oblige or honor its obligation to right to life. All the responsible for massacre are state organs. AFP knew it was going to happen. There was already force waiting for the convoy. They were asked for the security escorts but decline. How can they now say that they were not responsible? Regret: Sir has to prove that GMA should be included because Art of Intl Respo does not cover domestic law. Can they ask compensation from Phil govt? 1. Act or omission 2. Breach Will it extinguish civil indemnity arising from crime? Noooo Agnes is STUPEEEEEED!!!
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3. (8) Acting upon instruction. What is an example of an instruction? You can contract with them. E.g. - Mr. Sosa was acting upon instruction. - Blackwater (sometimes 8 or 5 or both) 4. (9) De facto 5. (10) insurrectionist when they succeed 6. (11) Let s pass the donut while waiting for the pizza courtesy of Do. CORFU CHANNEL what was the breach failure to notify, not the laying of mines per se Attributable to Albania under 8 or 11 RAINBOW WARRIOR Why did France want to destroy Rainbow Warrior? It was an unarmed vessel, in fact it s owned by Greenpeace. What do they do? It pursues whaling ship. It does not hesitate to bump whaling ships to prevent it. What state acknowledge responsibility for it? Which put mines on the vessel? France. Who did it for France? What is the basis for attribution? State organ. US v IRAN Who was in power in Iran? They have lot of oil. There is always a breach when a mob runs the delegation. In both customary and treaty law, Vienna Convention. You re not supposed to call a delegation. That s the premises of embassies? Was the action of the mob attributed to state of Iran? No. finding of fact by ICJ: What ruling did the court consider in saying How long did the mob take over? What did the Iranian authorities do? It was a matter of minutes? What did that show? Strict obligation to secure diplomatic premises. In fact, even if just across the embassy, an antiriot squad is waiting for you. The fact that embassy was taken over in a matter of minutes, they was really no intention to protect the breach. wAs the attribution? What s the difference between first and second case? Spoken words by Ayatollah. What were these? YOU ARE HEROES!!! Until the Shah is finally dethroned Sir Roque: Antagal ng pizza ni Dooooc. UNOCAL Are the acts of Blackwater attributable to the United States? And so under what Article? Private security company. BLACKWATER Are the acts of private civilian security groups? YOUMAN Was there an obligation that was breach? They wanted to codify this case into this article, and hence it was meant to delay the article. Protect aliens in the territory. Question though is what is the obligation? When is the obligation in one s territory. Failure of obligation in case of gross negligence. It s decided in case to case basis. NEER Standard of breach: outrage; unconscionable. There is no one fixed rule UNION BRIDGE recited by Chi Under No. 1 ZAFIRO Cavite case of the Chinaman This is the problem here. Was it a military vessel? No, however, it was specially commissioned by virtue of which it became a military warship. Failed to discuss in immunities: sovereign acts. When or what test do we use. Task is the delivery of humanitarian assistance. Is that a sovereign or non-sovereign task? Nebulous concepts. Private and then became sovereign. The next issue is: It s a foreign crew! It s not American. BOLIVAR Used the same company in transporting his goods. Very good! Also a difficult case
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STARRETT HOUSING Where did the American company go and its officers? They left! Problem is they left because there was an insurrection. Is that a justified reason. Yes! The problem was while they were gone, they appointed an officious manager. The control of project was relegated to the manager. Quesiton: for purposes of compensation for illegal taking (no compensation paid)? Was there a taking? What was the test? The effective use and control was given to someone else. Was there a breach? Who took over? Was it the Iranian authorities? The temporary manager, yes attributable to State of Iran. Taking: deprive the owner of actual Responsibility is very fertile for exam questions. 1. Serbia v NATO- Serbia is not a continuation of Yugoslavia. 2. Advisory opinion on India on state succession. Read pleadings of Serbia v NATO. See how they justify acting unilaterally 5 March 2010
Today we discuss Treaties Diplomatic organization International court of justice Treaties as you may have recalled in initial discussion on elements of state. It s one of the element state. It is most active participant. Different elements of statehood beginning with territory, sovereighnty and juris and now treaties. Akin to contracts uner domestic law but what sets them apart, it can only be entered into by sovereign states and must be governed by intl law. Take note that of late, Phil has quite a number of controversies involving infrastructure proj, won they should comply with mandatory regulation on govt procurement. 9184. Executive says not covered becase treaties are exempt and outside covereage of 8184. Which is why definition is impt in purposes of phil law. If government is correct, all treaties are exempt. NBN ZTE may be in fact exempt from public bidding. Problem is inevitably, state not accorded opportunity to choose best terms of contract, allegation of graft and corruption. Before we discuss that, let s talk about Vienna Convention on Law of Treaties, like IHL, recognized as restatement of customary law. Definition of treaty where do we find it? Stages by which a treaty comes about and according to the convention comes aobut: 1. Individuals alleging representing states taking part in treaty-making must show in fact that they have authority. FULL POWERS. What happens when it s without full powers? Void ab ignition. No state consent to negotiate the terms of the treaty. 2. Negotiations of terms and conditions. 3. After termination, what do you do with the text? Sign it! 4. If the treaty is silent as to other requirements to embody the consent. What is the other requirement that goes beyond signature? Ratification. 5. When is the state deemed to have given its consent. When it has been ratified. Can you point a provision in Vienna Convention which defines the ratification ? Depositing which accept or in fact accept to be bound with. Attesting to the fact that you have agreed to be bound. Whne is the state deemd to have given it s concent/ s
When do you give concurrence? It must sign. Apparently ratification is a process in the Philippine which entails 1. Signature for the concurrence of senate 2. Only after concurrence that deposit may be done. Problem: is there anything in Vienna convention that provides for this? None. Brownlie s definition of ratification. 1. Signature 2. International procedure which brings a treaty into force by a formal exchange Binding only on parties thereto. Analogous principle found in domestic law which is the principle of relativity.
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Pactum sunt servanda: treaties entered into must be complied with in good faith. It s the consent that is binding on the states. BUT THAT IS NOT MY QUESTION? Is it always the case that treaties can only bind?
What is the first exception that treaties are only binding on the parties thereto? Deviate from principle of relativity of treaties 1. When a treaty restates customary law in which case it binds everyone (Kuroda, Nicaragua). Supplemented in Vienna Convention that a treaty that subsequently contravenes customary law is deemed void. 2. Art 35 of Vienna Convention - Pacta tertiis nec nocent nec prosunt: when a third state agrees to be bound. Where there is an intention to be bound Treaty itself must not only provide that it binds 3rd state and that there is an intention to bind. rd 3. Art 36 stipulation pour autri. In favor of 3 party. Opposite of obligation? Ate K says contracts. Elements: 1. Intent and 2. Acceptance. Gusto ni Sir magrally sa Mendiola sa no-rally zone. SC is also a no-rally zone. Gusto ko sa no rally zone. Corny. IBP decision. Illegal ang denials niyo!!! How can law students and law professors cause clear and present danger using activism in neurology. Injecting them with insulin. How much insulin is required without a trace. Take note of pacta sunt servanta and definition of jus cogens in connection with a void treaty which contravenes a jus cogens principle. What is jus cogens norm? Art 53 non-derogable norm and can only be modified by subsequent. Grounds by which a treaty does not bind parties thereto: Invalidity of treaties 1. Contravenes customary and peremptory norm. They are different from each other! 2. Page 617 of Brownlie Beneficial to find PIL as decision making process, if it s legal system applicable to interstate relationship, then discussion would have been an impossibility because intl law principle could not have domestic significance. But under its definition as authoritative decision making process can be part of domestic legal system. Other than treaties as construed by phil, regimes e.g. continental shelf which has been in fact internationalized in constitution. Another instance of intl law norms can have application. Context of anomalous contract of ZTE NBN and North Rail which did not undergo competititve bidding. ZTE NBM CONTROVERSY Prior to Abaya. Socialist state, all its GOCCs are in fact agents and instrumentalities. In the nature of intl agreements. When you award projects without bidding. Allegation of overpricing. Tongpats courtesy of Jun Lozada. North rail contract Diesel train 60kph costs the same as flying train 700kph. Only in the Philippines. Tongpats. Project is infirm because no final list of engineering chobah. No pricing yet. EO 464. Is means at the time of law, it s already existing. Otherwise, is will not be used. Rather, will be signatory. All procurements is outside the coverage of 9184. To Ate K: Whose interpretation is right? Certainly you are taller than her and look prettier! Man disguised as a woman trying to look like Nora Aunor. Abaya Are GtoG Contracts Treaties or International Agreements? B
Bayan v Zamora y Transitory provision except pursuant to treaty duly recognized by contracting party as such and when recognized by congress ratified by people through plebiscite called for the purpose. y According to petitioner, transitory provision was inserted there why? Because only the Phil ratified it, not the Americans. y FIRST ISSUE: VFA was not referred to as BP, international agreement, is it by any chance a treaty? It s an executive agreement, but what is an executive agreement? TREATY; DEFINED. Article 2 of the Vienna Convention on the Law of Treaties, states that it is "an international instrument concluded between States in written form and governed by international law, whether embodied in a single instrument or in 2 or more related instruments, and whatever its particular designation. Yes, we have adopted the VICLOS definition. y Binding nature of VFA in the 2000 when there was really no justiciable controversy. y We don t care what you call it. We don t care how it can become a treaty. Satisfied with declaration with then ambassador to phil that Americans recognize it as binding national agreement.

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There s a strong dissent by Justice Puno: Why was this not binding? What s the difference when it s concurred in by the senate and not just signed by the executive? Treaties that we have entered into form part laws of land but outside intl corporation law, why does duly concurred in by senate has been part of law? What is it when congress has role? Laws! IT s become law because concurred in by senate. Not only because of ratification but also because legislative branch has given its concurrence. st 1 basis of defense: Not true. It does not need to be concurred in by Senate. But VFA is not executive agreement. It must be a treaty and therefore, no stationing of troops. It must be a treaty duly concurred in. nd 2 ground of dissent: when you say visiting, what s wrong with temporary and no time-frame. It s permanent! You may visit and never leave. Focus on Global South. That s what happened to Americans, in Zamboanga, Sulu and Basilan. Not only are they here for practis practis but rescue Burnham spouses and their here as part of offensive military policy of UN in connection with war against terror but justification is visiting only. His point is now the case on Caucus on Global South. Why is association of law students only MAMA but not for breach of express provision on stationing of volunteers. TAPOS NA LOCK-IN PERIOD KO EH. How do we construe last sentence of Section 4? Abaya v Ebdane A triple-A contractor. Don t have to comply with maximum pricing law? DPWH computed by 30. EPC. Disqualified outright. The extended price only for graft and corruption but not for foreign and not domestic. Assumption that nationals can bid, who are we to limit the maximum price for the project. Abaya said that he rectifies the injustice. Principal author of 9184. As soon as it came to effect, files a test case. A contract where foreign bidder exceeded price ceiling. $200B. Same company that has been blacklisted by the ADB. What was wrong with this petition? Why was 9184 not the applicable law? You chose the wrong project because not coered! No retroactive effect! But the court went on further. Assuming 9184 is applicable, it s still not within the exception because the loan agreement taken into conjunction with exchange of notes. The court said 9184 then the last sentence will apply is because there was an exchange of notes between ambassador of Japan which says that is signatory. IMPLICATION: even if law already effective, because of change of notes, last sentence also applicable existing at time took effect. Abaya is of the same ruling as the classmate ms NUPL limited to that effect. Mendoza in the kleptocrats, there is no bidding bec foreign funded pleadings, in nature of intl agreements. Change by DBM v Kolonwel and Fernandez.
The question as to whether or not foreign loan agreements with international financial institutions, such as Loan No. 7118-PH, partake of an executive or international agreement within the purview of the Section 4 of R.A. No. 9184, has been answered by the Court in the affirmative in Abaya, supra. Significantly, Abaya declared that the RP-JBIC loan agreement was to be of governing application over the CP I project and that the JBIC Procurement Guidelines, as stipulated in the loan agreement, shall primarily govern the procurement of goods necessary to implement the main project.
What s wrong with this? IT did not say that ALL FOREIGN only that sepcfici agreement taken in conjunction! Why will now the court say?! 500M/year text books. Nakakabobo because so many errors that it is more of a disservice. Case since 2001 since that man intendeing to be a woman, declare failure of bidding. I wonder why! And for the first time, not awarded to Vibal because it bidded in conjunction with 3 companies and disqualified for conflict of interest. Issued TRO which donate 500M ridden with mistakes. IT MISTAKENLY, MALCIOUSLY MISQUOTED ABAYA. I DON T USE YOUR HONOR because it s reserved for honorable people. Lim v Exec Sec Again VFA and balikatan. Atty. Lim was incidentally murdered. We still don t know who did it, he was a past pres of IBP. Suplico v Exec Sec G.R. No. 178830, July 14, 2008
http://elibrary.judiciary.gov.ph/decisions.php?doctype=Decisions%20/%20Signed%20Resolutions&docid=12162590401 076509635
Carpio s dissent Northrail Sir s last chance to win on procurement. Abaya: blacklisted Kolonwel: become a political issue Painful lessons we learn from projects which don t undergo competitive bidding. There s this Northrail still ongoing. They engaged in black propaganda. Abolish the UP Law Center. The no. 1 destabilizer. File a case to question it. As soon as we filed it, dismissal on a treaty and entitled to immunity from suits. RTC denied MTD. Moved away from regime of complete immunity. Sovereign in character. Buildign of road Not governmentary but proprietary. Should have complied with WHO v Aquino, get certificfaiton which is not automatically binding on court as held in Liang v People. but it cannot be from Chinese government.
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Here is the case that can correct mistakes of both Kolonwel and Suplico. Am I hopeful, certainly not. Just hoping they ll see the light. Reminded of what an earlier rubberstamp sc in marcos. CJ died with ignominy of being rembmbers are CJ who holds paying of Imelda. CJ Fernando. Who can match the intellect of Carpio, Carpio-Morales. Voting pattern in Salonga v Exec Sec.
Let s go now to another issue of Ratification. Definition it consist of three stages 1. Signature 2. Concurrence of senate 3. Deposit of instrument of ratification Phil president has signed a treaty but succeeding president refuses to transmit. What is the nature of transmittal from executive to senate. Take note of this case predated Roque v De Venecia. Got in a Senator which is always recognized by the Court. Sir s first PIL class whom he taught in the year 2000. Pimentel v Exec Sec Can the Pres be compelled to transmit the signed Rome statute of the ICC to the Senate for concurrence by the latter so that the treaty may become valid and binding? What s wrong? Ratification includes senate concurrence!!! The purely executive act is signature and deposit! Worst, the Court quoted from Cruz, the Bar Reviewer!!! Which department executed it? And therefore who should examine it?! That statement supports our position and not contravene it!!! Hello. Mistake in jurisprudence is law nonetheless. We lost it but we ll see what the verdict of history is. Salonga Petition on the VFA (Salonga v Smith) This is a partial victory. Dismal batting average! 4wins: 3losses: 1partial Re-examining the victory. How do you reopen jurisprudence? Same issue as bayan. Exact same parties and issue of constitutionality. Compared with Bayan v Zamora: Actual case controversy here! Custody of Daniel Smith! Spirited away. Recantation! No effect as far as conviction is concerned. Why should you become holier than the pope, why insist that the accused was guilty? It was dismissed. Very strange case. Normally, it s the dissent that reacts to majority. The majority reacts to dissent. Whehter the VFA insofar as it amends our rules on crimpro on the issue of custody of a US servicemean charged with non-service related offense is constitutional? There is a dissent by four justices. Medellin v Texas: not all treaties have the effect of law. Only self-executing (in their language) or there is an implementing legislation have the effect of law.
First, the VFA is a self-executing Agreement, as that term is defined in Medellin itself, because the parties intend its provisions to be enforceable, precisely because the Agreement is intended to carry out obligations and undertakings under the RP-US Mutual Defense Treaty. As a matter of fact, the VFA has been implemented and executed, with the US faithfully complying with its obligation to produce L/CPL Smith before the court during the trial.
Is this true? Mutual defense theory no need because war has since been outlawed. Every point or comma napapansin. Busit na busit si Harry! 25 revisions.
Case-Zablocki Act, USC Sec. 112(b)
You can t invoke this! Because it s only for executive agreement and not Distinction: treaty no need for implementing act because it s already law! Eastern seaboard, cannot come up with policies. Only executive entered into.
Agnes was an absolute buffoon! Lady justices were laughing. Nearly fell from their seats. Prescription for serious offense. I don t know whahahahahaha. Unless I withdrew my ASEAN complaint? Hindi nag-iisip tong babaeng to. Distnction was still ordinary soldiers. Different rule for Australian servicemen in Aus-Phil VFA. As soon as info filed against aussy soldier, automatic custody. Distinction not based on still organs but based on nationality! US needed to have constitution amendment that promote equality of races. Abolish system of slavery, they had to amend the Constitutional. That s why under Equal Protection, only applicable when the test is made in a labor or social peace of legislation. Substantial distinction test not limited to conditions, members of same class. Nationality and race, how else to explain that, you apply what is known as heightened security test. Presumed uncosnti. Incumbent upon state to prove an overwhelming state policy achievable through the distinction. It was for the state to prove overwhelming national interest, distinction based on nationality. Subsequently absolved, went to human rights violation, torture in Phil jail. Smith should also be subjected to torturous conditions in Phil jails. Best view of Manila Bay.
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Determine practice and procedure. Attribute of jurisdiction, exercise of competence over person of accused. Physically or symbolically. Consistent feature, cannot proceed unless it s in its custody. How do you exercise custody in US emba? Contravene rule making power of court, it s unconstitutional. Even with concurrence of senate, it s still violative. Power to promulgate rule of practice shared function. Can t do that because infringe on primary juris of SC. Same with barflunkers case. Unde r35 had shared powers. Again court declare that lowering of bar passing is unconsti. Custody is outside exercised by people other than Phil authority, it s amending roc and unconstitutional. Lim v Exec Sec What is the rule on reservation? Brownlie pg. 612 Opt out of certain provisions. Genocide convention: what do states want to opt out of? That genocide is criminal. What is the effect if you want to opt out of the provision giving the spirit, intent and effect the treaty? There can be no reservation because that would imply you don t consent to be part of the treaty. Provision that is precisely the letter and intent of the convention itself. It is tantamount to consent not to be part. Make sure you know diff grounds treaty ceases to be valid. Rebus sic stantibus change of circumstance. Release from treaty under radically changed circumstance, not be deemed to be bound anymore. theoretically possible. Hungary and Slovakian river. Ceased to become rebus sic stantibus. In reality, not allowed to violate treaty under changed treaty. VIENNA CONVENTION ON DIPLOMATIC We already discussed in Pinochet. On the basis of letters of Vienna convention. Distinguished two types of immunities. Only entitled from time assume post until reasonable time you leave your post. Materiae perpetually because it s immunity for acts committed while diplomatic agent. Another restatement of customary norms. Distinction on diplomatic agents, diplomatic staff and household staff. A, Diplomatic agent absolute (everyone in ambassador to lowest foreign officer which in Phil is FSO) When have? Theoretically in the olden times, assume their post. i.e. present credential, symbolic immunity. Come into their office as soon present local s DFA and presentation of credentials more symbolic than legal How soon? Until reasonable time upon termination of their tour of duty Is there any special/prelim agreement before a diplomat assumes his post? There is a class says Agravemn (?) obviate controversy, receiving state is allowed to approve the choice of sending state. If the nominee turns out to be notorious drug addict, receiving crime has right to say no. Even if we refer to it as absolute, could he invoke it at all times? This is a bar exam question. NO. he can only invoke it from the territory of sending state to the receiving state if in transit. At the end of his transit when he goes back. If however, he goes to Bangkok caught in shabu, not entitled to immunity. Other provided exceptions to immunity: Enumerated in Vienna convention itself 1. Contracts entered into 2. Property Execute money judgment on house and lot, is that allowed? Asked all the time in the bar? It NOT allowed. It s a personal action and therefore not allowed. If however, the loan was secured by mortgage on title of property and you seek to foreclose, even if used as residence. It is allowed. BUT could you evict the diplomat from the premises? NO. you can only annotate in the title but not dispossess the agent. Example of that exception. Wives of ambassador are advised not to work. They might enter into contracts beyond their immunity. It s gonna be boring for the spouses. BUT BUT Filipino ambassadors always in business. Diamond smuggler! Immunity but receiving state has a recourse in case you become undesirable diplomat. i.e. declare ambassador as persona non-grata. Wapoise! You will no longer have career in foreign service. No one will issue aliment for your future chobah. What are the functions of ? 1. Espionage! Oldest legitimate purposes of diplomats. Like that CIA woman married to ambassador, exposed by Bush himself. 2. To represent. Official passport is only pang-ego. Expedite your entry. Diplomat and other officials. Never affords immunity. Immunity is not to the mission itself. But also to papers and properties i.e. the diplomatic pouch also immune from jurisdiction. B, Diplomatic and household staff theoretically, not subject with the law. Exempt from legislative jurisdiction. Equally applicable. Diplomatic passport. Son of They are the attaches. They have functional immunity. Enable them to discharge their function. The household staff and drivers and servants and cooks. They have functional immunity which is almost nothing. All diplomatic agents must be published in the bluebook. No immunity for Filipino servants of foreign. Issue birth certificate, authenticate documents. Consular officials are to attend to interest of nationals. Full diplomatic immunity.
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Avena case 19 March 2009 Treaty that created the UN did not only create Intl Org (IO) but also agreed to make customary norms against use of force. Use of nuclear weapons in Hiroshima and Nagasaki. After almost 10 M death as a result of holocaust and war were committed by the Japanese here in our part of the woods. When you read specified article of UN charter. UN charter has become customary. All cases will inevitably cite UN charter. Prohibition on use of force has become customary. Utilize peaceful means in resulting dispute Even after UN Charter, to use of force illegal un charter itself admitted that peace is still not completely achievable it s still far from in fact being materialized and that meanwhile, although we have not completely succeded in abolishing all use of force, there will be some use of force allowed. That will make this study of int law greatly interesting, no state will agree that they have breach intl law even if they resorted to use of force. That s why you have 234 you renounce use as interest of foreign policy. There are however exceptions. [1] collective security measures (Chapter VII) [2] self-defense (Article 51) Oh shit why why why why did I raise my freaking hand?!?!!!!!!!!!!!!!!!!! Use of force illegal. Recognized exception. To the use of force indefinitely. You can only allege the resort to self defense until SC has taken cognizance. SELF-DEFENSE This has already been discussed in Nicaragua v US. When is there an armed attack. When it is on the same scale and scope. As if regular armed forces. What is contemplated but who they are. But Right to self-defense: Proportionality and necessity Entered and just fishing. When does the ground for self-defense cease Common sense meaning. PROBLEM 1. Provision SELF-defense 2. When is the SC taken cognizance? No determinate resolution on the matter. Continue self-defense. Unduly prolonging the exercise of an exception to the general rule. When a matter has been brought to the Security council. State parties have to address to their ventilated on the security council and not on the GA. hawk (use of force) or dove (for peace) 3. Should they wait for the soldiers to set foot? In the absence of actual sending of troops? Could you actual. Without awaiting of arrival of the single. 4. No change at all. Retreat from Afghanistan, he s supporting more troops. nd 5. Recently upheld with finality the legality of VFA for the 2 time. Taking the positions of American, with one push of button, there can already be attack. Nuclear warheads. Sufficient justification. Deal with Too late as use of nuclear warheads. Caroline: act provided a real threat to one s piece: reprisal, doing of a wrong as a response to the wrong. With the UN charter now in existence, caroline is doubtful legality. It is under the same theoretical framework, arguments in support of Bush and Obama position on self-defense that an actual threat. Falls within the prohibition on use of unilateral use of force. It is without Security Council. Reisman: dynamic process Collective self-defense. Non-military sanction never Leadership Chief of Staff. We never Forces voluntary troops some member nations. Never under the collective leadership of heads of the military staff committee. SC will identify. UN itself appointing. Strictly. State practice not in full conformity it would seem so. ON HINDSIGHT: When he told me to argue against that he did not mean for me to formulate my own arguments. Rather, use that which he said in his freaking article which was freaking assigned to me which I should have remembered. There were four justifications: 1. Not prohibited 2. Forces were given voluntarily by assisting countries instead of as a compulsory obligation by virtue of special agreement 3. The country requested/asked for it
PIL Prof. Harry Roque | 2 4. Damn.
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It was meant to advance the interest of UN which is to attain world peace!
Paralysis. (That s me during recit) Lobby the General membership in GA, resolution for formation of Special peace force. Advisory. Primary but solidary. Address infringement were only allowed after being invited Determine by the charter itself. What is not expressly prohibited is allowed. rd 3 exception. NATO which is an intl organization with separate personality. Kosovo. Intra-tribal conflicts, Rwanda, Ivory Coast, Liberia Although there was a statutory definition of threats to international peace international armed conflicts. Many of the conflicts we saw in noninternational. 1. Is it proper to authorize use of force even if approved by security council for purely intl conflicts? Juris of SC is to deal with international and peace. No intl armed conflicts. Open to doubt. 2. Validity of the formation of international tribunals which were authorized by SC as way to dealing threats Use of force exclusively thru formation of peacekeeping forces or international tribunal even if international nature. GENERAL ISSUE: permissible for security council to merely characterized anything as threat to Chapter 7 powers. Which is what they have been doing to many of conflicts not international in character. Threats to international peace Have we recognized humanitarian intervention to prevent further act of humanity. Individual positions of NATO countries, service went to bombing Kosovo without authorization. Russian and Chinese veto. NATO POSITIONS ARE VERY INTERESTING. LEGALITY OF THE USE OF FORCE: Serbia v NATO If Serbia is the continuation of Yugoslavia, it need not apply to the ICJ, member of UN. If not, they must first apply, recognition from Security Council and decision to be made by the general assembly. When does it become continuation? When there are 2 prior of disregard 1. India v Pakistan (Admissions case): you become continuation state Meeting Ping Lacson, under Surveillance sa Europe si Sir. Mga students ni Sir. Free lodging. India v Pakistan: Along the lines of religion, Hindu in India Muslim in Pakistan Only requirements: exhaustive 1. Accept the charter 2. Preliminary objection to the exercise of jurisdiction by the court. Kf India succeeded the colonial india, they will be bound by the general act which conferred jurisdiction with the Act. Go report! Although there was an ongoing in NATO. The ONLY states which have access to the courts can have jurisdiction. Might as well apply Issues: Effect of membership in the UN, require other states to admit you as a member is that you must be a state. Recognition constitutive rather than clearly declaratory. There is also the view expressed by Murase. When we talk about legality of the grounds, talk about the opposability: fact of object ot the use even if justified as otherwise legal under concept of persistent objector in the Anglo-Norwegian. To states that object, it must not be void. Black and white. Given 52 and 53: notwithstanding the fact that UN is an association of the state. Now lie with security council, not preempted. Achieving the same thing. However, construe 53 with decision of the ICJ. Under customary intl law, no such thing as collective self-defense. How do you reconcile this, treaty law, in regiona cooperation agreement. You will recognize, collective self-defense. Treaty law. 53 if there is treaty providing for regional security arrangement. No customary norm collective security. US is not member of ASEAN so it s not under duty to in fact utilize, not in position to use force in case any of ASEAN members is attacked. In case Phil, attack of Phil will give rise to assistance with US. All actual conflicts that may arise, conflicts that US may arise, categorically stated that mutual defense treaty specifically, they will not come to rescue that they will not help us against China. Although VFA justified again and constitutional anchored on mutual defense in treaty, Philippine senate. In reality, worthless agreement, only potential conflict we have China, US has excused itself. It s a one-sided mutual defense treaty. Purely Filipino interest, fight on your own. Who s threatened by China? It s an army of brats! They re killing female fetuses. You have male sons who are absolute brats. Serve for compulsory military service. A huge army of brats. Isang sunghal lang ng Filipino soldier, magtatakbo nay an. Mama s boys yan!
PIL Prof. Harry Roque | 2 20 March 2009
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Unlike diplomatic agents, IOs under intl law are not entitled to immunity. Only functional immunity but dependent on existence of hq. just because IO, you ll need hq. Although it has become a common practice now, World bank and ADB, hq agreements providing for functional immunity. We have Young v People. did not cover ___ affairs. Controversy: at least one intl organization is now exercising, aspects of elements of statehood. European Union. Intl Union. It must have personality separate and distinct. Distinct Volant. Challenge posed by EU, although IO, it has become for all intents and purposes, it has become a state. The EU is not only io, it now has its own diplomatic agents. That s why separate EU separate member nations of EU. Not only do they have diplomatic missions, it also enjoys diplomatic immunity not only in its premises of its mission but also residences of its diplomatic agents. Last meeting we discussed the case of Serbia v EU, take note that EU itself filed its own memorials separate and distinct from countries consisting of the EU. The individual members also filed, pursuant to fact that it has separate personality distinct from its members. Challenge: to what extent has it become as state for purpose of customary law, pursuant to Vienna Convention. WON it ahs four elements of statehood. Unique feature: agreed to be one in terms of economic integration. Agreed to coordinate as far as foreign policies and diplomatic practices are concerned. However state has not ceased to exist. Different from a classic federal state where at least national defense is exercised by govt as in the case of US. Although not within the jurisdiction of US, not separate states by themselves, at least not with maintaining diplomatic relations with other states. But such is the case with EU. The kind of states you have from what you have as sui generis case of EU in terms of international responsibility. To what extent will you hold EU. Liability of states for international wrongful acts. Impleaded individual countries of EU. Only states may appear before the court. Last case on the Use of Force: Does anyone want for Iran v US. Iran v US (Migs) They did not admit the attack. There was lack of evidence. What is the relevance of the FCN? What aspect of FCN is material? HOW THE ICJ WORKS The judicial organ of the UN. And as such, it was granted jurisdiction over what kind of disputes. Subject matter jurisdiction: any dispute involving international law arising from treaty or customary law What is meant by disputes? Parties: UN Headquarters Advisory Opinion is an example of what the Court means by dispute is prohibit the PLO inventory. Definition: treaty or issue of international law. Admissions Case Similar case in the preliminary objection Nicaragua v US. Originally, US has initially recognized the juris of court as compulsory but to prevent Nicaragua, it withdrew the compulsory jurisdiction. Similar to the issue here. Reasonable time. BACK TO THE ICJ Admissions Case Dispute; WON list of requirements for membership in the UN is exhaustive or by way of minimum condition. Entails interpretation of UN Charter itself, interpret in the manner that it is exhaustive. No further requirement. Why is that? Why did the Court say that it is exhaustive. There s a policy question behind this. Why was the UN established? What do they want the organization to do? They want more rather than less members. If there are additional requirements, that would be discouraging other members, that would undermine the purpose. Undermine the use of force. 2 exceptions on unilateral use of force. Jurisdiction over the parties It s analogous to Phil law. Key to jurisdiction: consent to be bound. Because no international police to compel jurisdiction. It s voluntarily given, they are then expected as members of UN to comply with the judicial organ of UN. Although it s not a precondition that you would avail of the jurisdiction of ICJ as a members of UN, otherwise, it may deter others from becoming a member from becoming a member of UN. You see the logic. Otherwise, they would not want to be member to surrender their sovereignty. You cannot sue a state without it s consent. How does state accept the jurisdiction of the court? The Courts are given as many options how to give a consent. Accept the state without reservations: compulsory jurisdiction. Ang cute lang ni Venus, reciting with Yohan in her arms. If it s with reservation, no longer compulsory. Except on disputes affecting territory of the republic which continues to be define in the republic of the Philippines. Recognized the juris of court except that it excludes the only dispute we might be involved in i.e. jurisdiction: sabah, spratlys. Lauterpach: if compulsory is subject to reservation, it ceases to be compulsory. But again, bec the rule is to encourage membership, we doubt to tell them to recognize jurisdiction of IcJ. Recognize with more leeway so they will recognize the court. What kinds of jurisdiction may the states agree. Subject to reservation.
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What are the kind of reservation or conditions we may impose? 1. As to party / reciprocity (I recognize the juris of court if the other party that will litigate against me will also recognize the jurisdiction compulsory) 2. As to subject matter (I recognize compulsory insofar as interpretation/settlement of territory dispute is concerned) 3. Time (5 years from time I give my consent) Where do you find consent to be bound? In any competent act of an organ of the state. E.g. special declaration, deposit of court s recognition as being compulsory, multilateral treaty, UNCLOS or any form of arbitration. Bilateral convention. Passage of the law. India and Pakistan which seeks to implement a treaty undertaking parliamentary. Under the dualist system, no norm of internation law mnay have domestic effect unless domestic enabling legislation. Is there requirement for exhaustion of domestic remedies before proceeding to the ICJ? It s a trick question? ELSI case. Italy v US. Similar to the Mavromatis case. We also read this under Actors When you file a claim on behalf of your nationals? Breach is indirect, only states may appear before ICJ, interest must be espoused for them by their own state. When will ICJ require exhaustion of remedies? When the state is merely espousing its claim for the nationals. But when injury is done to state itself, exhaustion is not required. Why shouldn t you aspire to appear before ICJ? It s whole world out there waiting for you. You can t do that if you rely to do the one who made the digest. Don t settle with MTC or RTC. It s stock knowledge! It s a world class public international law course outline. You can appear against anyone, even against Brownlie. Allegation: they have not given their consent to be bound. Almost all cases we read, the respondent has alleged that there was no consent to be bound. A. Nicaragua v US: 1. They withdrew the recognition 2. The ICJ should not exercise because subj matter involves matter of peace, not ICJ but SC. 3. B. Legality of use of force: preliminary objection, lack of jurisdiction over the parties: Serbia was not yet a member of the UN. C. Volunteers marami ito!!!
Forms of challenges to jurisdiction of the court? Lockerbie Nauru v Australia: Preliminary objection: They don t have juris, 2 of the parties Why did Australia cannot rd What is the legal basis for that? Affect the legal rights of 3 parties in the State. Where is this found? Art 62 State that lost its territory because of phosphate mining. Nauru filed a case against Australia which mined away its territory. Article 36 because as if compelled the to Participation of UK? The court exercised it s jurisdiction because as a member of the administrating committee of the trust. Nauru filed a case rd against Aus only so it cannot find if another party. Cannot affect right of 3 state not being impleaded by Nuaru. Until Nauru chooses oomplead England or UK, it s rights will not be affected, it will be binding only on Nauru and Australia. East Timor v Portugal Contemporary world history! What did Indonesians do? Occupied. They conquered east timor through use of force. Indonesia conquered east timor. Fantastic. Never because conquest has ceased to be legit form of acquiring title over a territory. Portugal alleges that aus infringed the prot rights as the self-determination of Est Timor population when it did what? When it concluded a treaty for the delimitation of ocnitnental for purposes of oil. The timor dock at time of occupation of Indonesia. Signed a treaty with Indonesia. Intl community does not recognize title of Indonesia over Singapore. What does that mean? Right to self-determination. You re not supposed to give acquired right. There were 2 decisions, preliminary objections of Australia on the standing of Portugal to bring this not a party in interest. Who are you Portugal. You had control. It has standing because Portugal the right being sought to be enforced the right to self-determination. Do you need to have standing to sue on that right? NO. Because it s what kind of obligation? Erga omnes (obligation owned to the intl community) every state has a standing to sue for its enforcement. Distinction between standing to sue and subject matter over the parties which are not the same. Difference between contentious and advisory cases? Contentious Advisory only when states have given their consent Common denominator: consent One ground where court should not enter into: when advisory opinion will have possible effect _______________ Consider 2 contrasting advisory opinion: 1 give opinion 2 refuse to give
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Monetary Who s entitled to gold stolen by Germans from Albania? Who may request advisory opinion? Israel opinion. Consequence: is wall a breach? Yes. Why? It interfered Palestinians right. It dispossessed the population. There was population. Americans are bashed in bars in Madrid. So take masters in Europe. Can you imagine a decision like this. It s a de facto annexation. Contrary to intl law. Anti-israeli decision. Legal consequences for breaching international law obligation? 1. Obligation to cease desist from the breach 2. Reparation. Status quo ante. Pay compensation. 3. What must third states do? Not to give due recognition to acts of the state in breach. Denial of immediate remedy is denial of effective remedy. C. THE INDIVIDUAL Romy Kapulong is very strict and jealous? Unfortunately, rushing discussion of human rights and ihl. Thoroughly exhausted. Individuals who are now accorded rights OLD states are only subjects. Definitionally, traditional is state applicable in relation to one another. Enforce rights primarily, only after ICJ. Only states may appear before it. But we have since witnessed evolution of international la in terms of definition. Proper recourse to enforce these rights. What are these rights to begin with? What are the development? Against their own homestates? Two specialized fields intended to protect and promote human beings. 1. IHL 2. Human Rights Law Compare and contract bec not the same Intl Humanitarian Law Ancient origin. Be humane to your enemies captured in battle Not only customary, but is also jus cogen (i.e. Vienna : peremptory norms, no recognition of derogation) Human Rights Law Came about after WW2. Humans still needed additional protection. Genocide, war crimes and crimes against humanity Recognizes derogation therefrom Freedom of expression, free press, freedom of public assembly. Maybe abridged in times of national emergency. That s why little devil will always invoke emergency. Take note of SC decision. Put it down in the syllabus, it should be Consti2 but in terms of human rights and freedom of expression: Reyes v Bagatsing; Bayan v Executive Sec (CPR if different from maximum tolerance is unconstitutional); IBP Roque Butuyan v Atienza Grave abuse of discretion for city mayors to refuse rally permit unless the ground is Students defied no rally no permit on Mendiola bridge during Atienza. Be as pretty looking as you can! Because we are invoking this. Caused the filing of criminal charges. Si Cadiz lang. Hahahaha What made bayan different from JBL: 1. Fail to determine freedom parks 2. Only clear and present danger 3. Half-baked decision: let s provoke it! 4. NO leftist, only law students and Makati-based lawyers in barong. That s why NUPL can rally all they want in Mendiola Bridge. Provoking to be arrested. Minimum standards by which states should treat individuals in their territories Currently depends on the UN Enforcement mechanism, shady machinery, merely declare state to be in violation under a particular HR convention. Assumption: no state
Origin
Structure of Law As a means of enforcing
Non-derogable code of conduct applicable to combatant, won state organs Penology. You will be imprison for bridge. States have duty to criminalize these grave breaches and serious violations
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Page 26 of 29 would want to be declared in violation. Can be shamed into complying into ____ obligation. Reality: Phil have proven itself to be shameless, and couldn t care less if they have been declared in violation of UN HR mechanism. 2 types of enforcement mechanism 1. UN HR council states subject to period review on enforcement of hr violation. By intl community, ask questions how effectively one complied. State can declare publicly that they did. Shameful process but it did not matter to us. We were one to be the first. No matter that we were lambasted 2. Special rapporteurs: function: to declare that states are in breach a. Thematic Extrajudicial killings (Philipp Auston) Phil is in breach of oblig under right of life b. Specific Minimum standards: obliged to protect rights. Social and economic rights. The oblig to protect is never to interfere with given right. Invokes possible obligation to take steps to give life to given right. Right to life has been defined as a guaranty against arbitrary taking of life and duty to prevent arbitrary taking of life. If prevent, provide adequate remedy for victim of violations. Philip Auston: responsibility: prevent and prosecute all responsible. If you read his final report: extralegal killings are happening, perpetrated by state agents, by the AFP in connection antiinsurgency like Ms. NUPL over there. Listen to what I ll do in the coming weeks. Systematic delineation. Ailed to prosecution and punish the perpetrators is breach of right to life. Phil Auston is muchacho. Ayan kasi nakikinig sa Bayan at NUPL. They took the lies of the reds. Correct? And so the response is absolutely nothing because he believed in chismis. You are in breach, shame on you?
If you violate, you are even hanged to your right. Sent to jail. IF HR: You violated That s it! Lahat ng pumatay taong gobyerno. This prosecution is a sham. They are not using the crucial evidence Jesse, in truth and in fact, no plan or motivation to convict anyone. Ampatuan is reincarnation of GMA. PR nightmare were massacred in the manner they were. But it is now apparent that she is not at all concerned to bring Ampatuans.
Prosecution
Not subject to prescription. Legitimate basis for exercise of universal jurisdiction, regardless of where the crime took place. Tried by International Tribunal. Not subject to cultural relativity Military/civilian commander. Fail to prevent. You will be held responsible.
Command responsibility
Subject to cultural relativity: bullshit. Evading treaty obligations. Principal, accessory, accomplice. Jurisprudence, of yamashita. How to exercise jurisdiction. Devil signed it but not published for past 3 months. No intention to, because it may be used against her. The Devil incarnate.
What does IHL say? Special application in armed conflict How: 1. Accord protection to individuals not actively involved 2. Limits means and methods of warfare PROTECTION Who are accorded protection on ground not active? y Civilians: not combatants. Must not intentionally target civilians or civilian infrastructure or any installation that is useful or harmful e.g. dangerous plants chemical buildings. y Special types of civilians. Who are some of this? o Children: because of their fragile nature. Absolute prohibition to recruit them as combatants. Only 8 countries in breach. Sudan, Burma Colombia, Ivory Coast, Uganda, and the strong Republic of the Philippines. All combatant troops here including AFP, NPA, MNLF have been recruiting children. we re in the company of these countries. It s using children for delivery of supplies or trasnpo of military equipment and even using them as it s documented that there are children armies. PMA that is conscripting cadets into AFP even if they are under 18. Prohibition in Geneva is 15 and down. But decision in special tribunal, nd with the adoption of intl convention on rights of child, 2 most ratified. We only ratified Geneva. Sierra leone. Raising the age
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o o o o o
o
y
of minority to 18. The prohibition is recruiting 18 and below. Cadets accepted 18 below, we are in breach. I lectured that in the PMA. You can just imagine the look on their faces. Don t go to US if teaching in PMA, they will punish you there. Women: Always bound together with minority. Lumped together with children. sarcastically said. I won t approve of it but it s reality. They have special needs. Separate detention facilities. Absolute prohibition in humiliating or degrading manner. Examples? Rape. Touching on private parts. Naked condition. Prostitution. All of which have always been probhited but always resorted to. Try doing that, you will become subject of universal jurisdiction. You can t hide anywhere in the planet. Elderly: Entitled to priority in assistance Refugees: Civilians who are forced to go to foreign juris because of well rounded fear of on-going conflict. Dispossessed from their communities because of ongoing. Humanitarian workers: Unless you do, who will give assistance to seek and wounded in the battle fields. ICRC in CEBu, you don t do that to humanitarian owners? It s a no no. broadcast all over the world Journalist: voluntary coming in a military target. Come in the way of the tank. But you must not specifically target journalist. Palestine serving as based fo r journalist. For which reason, Spanish friend of Sir is now conducting investigation. Prisoners of war: soliders who have ceased to become active combatants. Guantano lake something. G. Bush when Pentagon was attacked said that war against terrorism is sui generis. Not governed by IHL. Accoreing to him, IHL only 2 conflicts: international argmed conflicts and non-international armed conflicts. We are the only country have 3 on-going armed conflicts. Additional protocol to Geneva Convention. Conflict a state 1. Control of territory 2. Milatiry__ 3. Carry arms openly 4. Distinguish from population 5. Within IHL Neither applicable, it s sui generis. Tabula rasa. Afghanista first battleground for war against terror. These people have no rights. Detain ndefinitely in faraway Guantano Cuba. Prevent from actively resuming their roles. Release after cessation of hostilities. Visited by families (why important? Because what will they deter, torture) Unlawful combatants, detained individually in singular jails. Crazy or attempt suicide. They were held incoomunicado. No person next to them. Different dialects. Solitary jails were made by Filipinos who complained for wages. Amby v Ramsfeld: Hamdan v Bush: Americans protected by bill of rights and due process law. Classifying enemy combatants, which entailed prosecution and ___ at the same time. Violate due process. Supreme court agree. Sandra O connor last major ponencia. Opportunity to be heard. Partially granted. Remanded. Determine if they are entitled to POW status. Challenge by non-Americans was more interesting bec of WW2 juris in US the writ will not lie for detention of Nazi soliders in China. The writ cannot lie when detention involves non-us nationals in non-us soils. Which is case in cuba. It does not reuire American nationality, nor American soil all required is pursuant to exercise of American jurisdiction. UP Law prof nga walang visa. I will issue executive order, complying with SC decision to determine if entitled. So decision is very specific. World class terrorists. Not entitled to see the evidence. Classified information yan bakit ko ipapakita? George Bush rebuffed: [1] Due process and equal protection. [2] Procedure of depriving respondent evidence against him. Common article 3 of geneva convention: specific provision: think of what Abu Sayaff has been doing. Murders of all kinds. Kidnap for ransom. Extralegal imposition of penalties including extralegal killings. Without judicial proceedings complying ith minimum standards under Intl Law. When you don t accord access to evidence, vilation of common Art3. iN first 2 cases, IHL is not applicable. Hamdy: without IHL, there s no right whatsoever, no right to detain. 2nd case: court more emphatic. Although not characterize as a minimum common article 3 is applicable. Bush simply has had it with the Court. He went to congress, same eo invalidated be made into law. Judicial review, inlucded provision, no longer go to any court for issuance of writ of habeas corpus Rebuffed against. [1] Marbury Madsion: no evasion of judicial rview [2] violation of common article 3. You cannot do away with writ. Single most important writ to protect human liberty. Unless you have Bounivien v Secretary: rebuffed two Obama despite populat expectation has maintained. Defended the practice of torture. Process of what is known as rendition by CIA. Republicans are the same with the Democrats. NO change on official policy on terrorism. Think if Noynoy or Villar will be different. Civil service illegible ako. Still covered by Civil Service suppletory to UP Charter. Si Puti at Kulot late na naman. Balane. Coming in from SG by gold. Ni isang kape di mo ko nilibre, palagi tayo late. Iboboto mo ba si Gibo? Nangunguha ng witness!!! Can we just move on? Ikaw magmove on ka!!!
Religious:
LIMITATIONS ON MEANS AND METHOD Means: y actual conduct, not violate y basic limitation: if you aim what do you ask yourself? Principle of distinction y It s not as clear cut as it seems

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Princi8ple of protection is always tempered by principle of military necessity (the loss of life or property to achieve the military objective which is the submission subjugation of enemy with minimal losses is not at all times prohibited BECAUSE OF proportionality. Proportionality (not prohibited if loss is outweighed by perceived military ___) that s why no one accused of war crime that he is guilty of targeting a protected entity, collateral damage. Not all losses is prohibited. Only those intentionally targeted will be punished. That s why it s interesting.
Methods: y Speciific types of weapon y Not capable of distinction y Agent orange, landmines. Nuclear weapons that stupid advisory opinion not per se illegal only if used in armed conflicts. Bullets were fragments are not detectable. Blinding weapon. Asphyxiating. Cluster bombs. All of these are probited. IHL in a nutshell. Conflict: intensed and sustained. Isolated firing of shots will not qualify as armed conflict. IHL not applicable, what is the applicable law, domestic law? Lead to commission of crime. If intensed and prolonged. International conflicts Only in international. Regular af or auxiliary af. If not, it s civilian When capture you get POW status. Enjoy criminal exception. Arising solely from taking part in the parting. If a war crime. If you commit hundreds of thousands but do it within rules, you will be released Non-international No combatant If you re a state with non-international, you will not recognize POW because you want to criminalize and prosecute them for rebellion. Criminal liability arising from criminal act of the filing. Protection and humane treatment.
Concept of combatant
Interesting developments y Mercenaries o Taking part in fighting out of material gain. Problem: traditionally, it s contracted by party to a conflict, he doesn t have nationality of parties in conflict. o Development: states will not directly recruit. They will contract with security providers e.g. Blackwater which will hire some to take part someone in Oakwood mutiny to provide security for American servicemen. Are they mercenaries, subject of humanitarian law? o Common defense: equally entitled to immunity enjoyed by regular soldiers. As state organs. y Unlawful combatants o When civilians take part in fighting, they lose status of civilian the moment you take up arms. You cannot be tortured. Why despite Melo Commission report that individuals like Palparan for extralegal killings, he has been promoted? Nagpose sa camera tapos umalis. Ang kapal no. Very briefly. We already discussed foreign investments. Progressive and specialist areas in international laws. Americans always violate this. Human rights. State responsibility. Reisman position, runs against normative value of international law to rewrite it. Americans support is. All these are very progressive areas of law. The leftist in you must prioritize IHL. Natural resources. Texaco case. Loupui, retained counsel of Total. Taking must be compensated on basis of international. All these cases represent the leading cases on how Texaco principle was arrived at. 1. Saudi Arabia v Aramco: claim by aramco that its exclusive concession to explore, exploit and transport resources from Saudi Arbaia was breached when rulers of Saudi granted transport concession to Anazis. Arbitrator invoked gen principle of law: nature of concession is more akin to contract rather than franchise. Therefore if breach duty to make reparations. 2. Texaco, BP v Libya: except that no more distinction between lawful and unlawful taking. Sovereignty over mineral deposits. No doubt that they can nationalize and appropriate. Other than the state wants to do it. Only basis of illegality is expropriating with prompt (IN CASH AN DPOAYBLE AT ONCE) adequate= sufficient, just (unlike Chorzow distinguish between illegal and legal, ruling in subsequent tribunal. no single formula0 3. Background: some cases are arbitrary. In at least one case, method of accounting as the present value method there s a table of values, th normally concession is for 25 years, if agreement is 12% over 25 years. If take property on its 5 year, it is this much. There s at least one case that you should apply such present value. Only one. Others are arbitrary. Don t think purely issue of foreign companies, we currently have FIATCO, which precisely is how much is due. In the beginning all these were conducted on adhoc basis normally with president of arbitrators or president of ICJ. It was then thought that to inspire further confidence on capital exporting companies, there ought to be facility for effective remedy if taken by a state. Establish proceeding which is ICSID which is facility in WB itself, it s a business center. Effectivity is because:
PIL Prof. Harry Roque | 2 a. b.
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c.
Facility in WB. Silence intervention. Effective recourse for foreign investors. Under ICSID state parties agreed that all decisions are recognized as final and executory therefore enforceable. I will not arbitrate in fiatco issue. Arbitral award which was enforced. Libya had property in different States, they were all forzn. Libya had to come into terms with BP otherwise property all over the place. Same thing happened in Iran. We will not pay US! Well and good, we will freeze all your assets. Establish Iran-US
When taking? y Starret Housing: a taking is any act that would deprive property owner of any rights of ownership. Unlike all arbitration case, nationalizing. As a result of apprising, Americans left and abandoned housing projects and appointed officious manager. No taking because abandoned. Financed by Iranian tax money. Affect the exercise of right arising from ownership, there s a creeping taking y Philips: different issue. Cases on investors who have gone to leave. Separate elective ang WTO International Humanitarian Law separate One last point: Relationship between Fil law and Intl Law. We go back to Yamashita and Kuroda which have different basis for ruling that INt l law is part Yama: customary law without incorp because civilized nations have agreed to be bound Kuroda: by virtue of incorporation clause in constitutional, automatically: problem: what becomes part of law of the land. It contemplates to things: 1. Treaties we have ratified 2. Pacta sunt survanda. Because ratified by Geneva convention How to incorporate customary law: not only because we have ratified the treaty, binds all state Binding nature: 1. By virtue of incorp laws, not only treaties but includes customary law even if no treaty is ratified. Intl law is impt for normative existence. Only last year we had IHL and not yet effective because not yet published. 2. 1951 obliged to pass law criminalizing torture. Yet we relied on domestic law in criminalizing, then all other 3. Strengthen normative value of law. Espouse intl law to form part because we cannot rely on Phil congress to protect and promote values impt to human being. There is life beyond Vicky Avena. Neither she nor her subject accorded you protection from torture. It is this that will shield you from acts of torture being inflicted on you. Not exclusive by state agents. But univ professors are state agents though. Not property rights but shared values. We close study of PIL on that note. Uti possidetis (Latin for "as you possess") is a principle in international law that territory and other property remains with its possessor at the end of a conflict, unless provided for by treaty. Originating in Roman law, the phrase is derived from the Latin expression uti possidetis, ita possideatis, meaning "as you possessed, you shall posses henceforth". This principle enables a belligerent party to claim territory that it has acquired by war. The term has historically been used to legally formalize territorial conquests, such as the annexation of Alsace-Lorraine by theGerman Empire in 1871.[citation needed] In the early 17th century, the term was used by England's James I to state that while he recognized the existence of Spanish authority in those regions of the Western Hemisphere where Spain exercised effective control, he refused to recognize Spanish claims to exclusive possession of all territory west of longitude 46 37' W under the Treaty of Tordesillas. More recently, the principle has been used in a modified form (see Uti possidetis juris) to establish the frontiers of newly independent states following decolonization, by ensuring that the frontiers followed the original boundaries of the old colonial territories from which they emerged. This use originated in South America in the 19th [1] century with the withdrawal of the Spanish Empire. By declaring that uti possidetis applied, the new states sought to ensure that there was no terra nullius in South America when the Spanish withdrew and to reduce the likelihood of border wars between the newly independent states. This last goal was ultimately unsuccessful, since many wars over borders did occur. The same principle was applied to Africa and Asia following the withdrawal of European powers from those continents, and in locations such as the former Yugoslavia and the Soviet Union where former centralized governments fell, and constituent states gained independence. In 1964 theOrganisation of African Unity passed a resolution stating that the principle of stability of borders the key principle of uti possidetis would be applied across Africa. Most of Africa was already independent by this time, so the resolution was principally a political directive to settle disputes by treaty based on pre-existing borders rather than by resorting to force. To date, adherence to this principle has allowed African countries to avoid border wars; the notable exception, the Eritrean-Ethiopian War of 1998 2000, had its roots in a secession from an independent African country rather than a conflict between two decolonized neighbours.[citation needed] On the other hand, the colonial boundaries often did not follow ethnic lines, and this has helped lead to violent and bloody civil wars among differing ethnic groups in many post-colonial (and post-Communist) countries, including Sudan, the Democratic Republic of the Congo, Angola, Nigeria, and the formerYugoslavia.[2] The principle was affirmed by the International Court of Justice in the 1986 Case Burkina-Faso v Mali: [Uti possidetis] is a general principle, which is logically connected with the phenomenon of obtaining independence, wherever it occurs. Its obvious purpose is to prevent the independence and stability of new states being endangered by fratricidal struggles provoked by the changing of frontiers following the withdrawal of the administering power.
Uti possidetis juris is a principle of international law that states that newly formed sovereign states should have the same borders that they had before their independence.

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PIL Prof.

Harry Roque | 2 4 December 2009

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It was meant to advance the interest of UN which is to attain world peace!

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Structure of Law As a means of enforcing

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