PUBLIC INTERNATIONAL LAW (TRANSCRIPT) PRE-FINAL COVERAGEPIL
RECORDING JAN. 31, 2O15Exercise of territorial sovereignty- If it
involves exercise of the right to the exclusion of other states,
functions of the state- Government. We learned that government as
an element of state. What is important here is not the legitimacy
of the government. What do we mean by legitimacy is not required in
government?- law of the state? Government is legitimate if it has a
constitutional standing. Judgment of government is based on the
constitution or in a manner established by the constitution. But if
it is established outside the constitution, maybe that government
is not the legitimate government. Thats why if we talk about
government, we must distinguish between de facto and de jure
government. - in other words, even if a government has a particular
territory but no legitimate status= it is considered de facto. What
is important is that it has an effective control over the
territory. - there are two kinds of effective control: some point
out to external control as independence.- internal and external. If
we say internal or external sovereignty, we are not referring to a
government that is not subjected to a form of control or influence.
This is more of a legal question rather than a political one. Most
authors mention of the political reality that some states adopt
policies and even enter into treaties on the basis of some
pressures by other states. But that should not diminish the ability
of the state to still control its affairs, internally or
externally. - independence? The government is independent. We mean
the government, actually and without the help of external forces,
could exercise its sovereign power on its own. Ex. Coercion of a
third state Ex. Political pressure on entering into a treaty- not
really- in the case of the state of Palestine, most of the
international writers criticized this as not in accordance with IL
Because Palestine at that time and even up to the present cannot
specifically identify a territory within its effective control,
still having a problem with Israel. - the other thing that we have
to take note is that even there is a temporary deprivation of
effective control, this will not diminish the fact that that state
is a government. E.g. Somalia, RwandaCommon question in the bar
exam: distinction between a state and government.How to
distinguish? What is the concept of state and government?There is a
doctrine on the idea distinction between a state and government:
There are Changes in the government but still the state continues
(Doctrine of state continuity).- important because:a. the state
indeed consists of a governmentb. it is the state that is
considered as the bearer of rights and duties under IL: states
enter into treaties, not government - CACPACITY TO ENTER INTO
RELATIONS WITH OTHER STATES.- there are two theories on
recognition:a. constitutive- recognition of states makes a
community or entity a stateb. declaratory- recognition of the fact
that it is already a state; this is favored in IL; most author
would point to article iii of the Montevideo convention: the
political existence of the state is independent of recognition of
other states. Even before recognition, state has the right to
protect its integrity and independence. Capacity need not be
absolute. It can be limited for as long as the capacity is pursuant
to the doctrine self-autolimitation. It is the state itself that
allows the limitation to exercise its capacity to enter into
relations. Associated states.Association in PIL? This relates to a
situation where an entity that used to be part of a larger state
will be given independence, usually in the process of
decolonization. And some states, since they do not know yet how to
administer they foreign relations, they enter in to treaty with the
so that the more civilized state will be the one administering the
foreign affairs or conduct of the not-so- civilized state. That is
in itself not an exercise of sovereignty. Thats why even if there
is a limited capacity, for as long as the limitation is
self-limitation, that would not diminish the status of the state or
the associate.Communities with sui generis status. Why sui generis?
If you apply the four elements of statehood, they cannot pass but
they are recognized as possessing international legal personality.
Try to make a research on this (unya wa nagresearch, so sa recits,
nag-NGANGA!). While recognition is not an element of statehood,
such recognition however has the effects on whether or not states
can actually enjoy right and privileges of statehood. Some authors
found the reality that while recognition is not an element of
statehood, these states enjoy rights only if they are integrated in
the international community by third states in a process called
CO-OPTATION. Co-optation. See slide kay nagdali si sir diri dapit.
You cannot force a state to enter into another state.KAI: is Monaco
recognized as a state? Sir: Some books recognize Monaco as a state.
You might also include this in your research. Sala ni ni Kai.
hahahahProblems arise in the emergence of new state by way of
secession.Distinguish the opinion of the ICJ in the case of Quebec
from that of Kosovo.Kosovo was a part of Serbia. Then what
happened? What did the Albanians (Kosovo) experience? Were there
allegations on ethnic cleansing, human rights violations,
discrimination that led the UN Security Council to intervene? Yes.
In fact, the UNSC overextended its intervention by establishing a
provisional government or administrative body in Kosovo until they
came up with a democratically elected assembly. After establishing
its own assembly, UNSC ordered ceasefire and demilitarization, and
then, they were supposed to talk about the extent by which autonomy
may be granted to Kosovo by Serbia in the area of politics,
economics, socio-cultural, inter-religion, etc. but they failed to
come up with a definite extent of its autonomy that led to a
unilateral declaration of this assembly. Is the unilateral
declaration considered a violation of IL? Were the people of Quebec
subject to human rights violation? Difference between the
situations of the people of Kosovo and Quebec.People in Quebec can
be distinguished from the people of Canada: Minority wanting to
secede from an already existing territory with a claim of being
different and a minority subjected to human rights violation.PIL
feb 4 2015 transcription ( Guys, heavy ang orals ni Sir ani na
time)One of the effects of recognizing a state, we know that it may
not be considered an element of statehood, atleast from the
perspective of declaratory theories, in any case, I think that you
have learned that even if it is not necessarily an element of
statehood, albeit there are arguments still in favor of
constitutive, we know that there are inescapable consequences of
recognizing a state.SIR: Can you tell us the consequences or the
effects of recognizing a state?DENNIS: sir, one of the effects I
know is that when one state recognizes another state, uhm, that
recognizing state must respect the independence of that recognized
state. Also that, the state recognized will become somehow subjects
of international law and their acts as a state are now become valid
or their transactions and their relations outside the state become
valid.SIR: the case of underhill vs hernandez what is covered by
international law?DENNIS: this sir, in this case, this has
stipulated the Act of State doctrine, wherein when one, uh sir, can
I say the facts first sir?SIR: what do u mean by Acts of State
Doctrine? What is your understanding of the Act of State
Doctrine?DENNIS: like, the act of state doctrine, simply implies
that, the court in exercising jurisdiction over the foreign state
must apply the laws of that foreign state, rather than their
domestic laws.SIR: okay, uhm what about recognition of governments?
How is it distinguished from recognition of states?DENNIS: in
recognizing a government, once a govt is recognized, their acts
prior to the recognition, become valid and that that government
must be accountable for their acts, while in recognizing a
state.BAGOL: in recognizing a government, it is a necessary
consequence that the state while if it is only the state that is
recognized, its government or a specific regime is recognized.SIR:
how is that done?BAGOL: whenever a state passes the requirements of
statehood, then the state is recognized as a state by a third
entity, but if a government has effective control over that state,
it does not necessarily recognized by another state.SIR: Is there
such a thing as an obligation to recognize a state?BAGOL: I think
there is no obligation to recognize a state, I think there is none,
because according to the declarative theory, the consent of a state
is really not requiredSIR: if there is no obligation to recognize a
state, is there no obligation to recognize a government?BAGOL: I
guess there is also none, but in case where there is aSIR: Is there
importance to recognize a de jure or a de facto government?BAGOL:
If it is de facto, it means that the government was recognized but
however it was constituted outside the regime of that government,
then other states has chosen to recognize that government.SIR: Can
you tell us something about the Tinoco arbitration case, as to how
relevant is the recognition or non-recognition of a state.BAGOL: In
the tinoco arbitration case, this is about there is a government of
Gonzales the govt of Gonzales was overthrown by the govt of tinoco
and when the tinoco regime was in control, it entered into several
contracts. It entered into concessions with great Britain, however
when the Gonzales regime was able to gain back ts power, it
invalidated all the contractsw and concessions which the tinoco
government entered into. GB sued the Gonzales govt and said that
the Gonzales govt cannot invalidate the concessions. It has to
recognize the contracts entered into by the tinoco govt. when the
tinoco govt was in power, it can be recognized as a de facto govt.
over which the contracts it entered into should be..SIR: But didnt
the costa rican govt that time argued that GB cannot anymore invoke
the validity of the contracts coz in the first place, GB did not
recognize the tinoco govt, so in other words, GB was therefore
estoppedBAGOL: In this case sir, the court said that recognition is
not important since the acts of the costa rican govt is an act of a
de facto govt which has effective control over the costa rica at
that time, and since there is subsequent recognition, then it has
an obligation to recognize the acts of the previous government.SIR:
in the case of CO KIM vs , the SC applied the recognized principles
of public international law and the distinction between the
different kinds of de facto govt, how does a de facto govt exist
and what are the types of a de facto govt?PONTANAR: in this case
sir, a de facto government, There are three kinds of a de facto
government, the first is one where it is established thru
rebellion.First is that a de facto government is one where it is
established through rebellion, the second one where the situation
where,SIR: if that is established thru rebellion, is there a name
for that?PONTANAR: The second one would be occupation, where
military forces invade and occupy said area.And the third type
isSIR: Is there also a name for that?PONTANAR: Government of War.
And the last would be the is one where there is insurrection.SIR:
how is one done?PONTANAR: in the first one sir is thru
occupation.SIR: the first type you mentionedPONTANAR: in rebellion
sir, the government is controlled or possessed by two adversary
goals of the majority wherein there is a majority of the people who
wants to revolutionize against the existing governmentSIR: like the
filipinos revolting against the govt of Aquino?Uhm no sir, that is
the second type of occupation. SIR: so the first type is rebellion,
thats why I said rebellion, isnt that about the people revolting
against the existing type of government?PONTANAR: no sir, as what I
have read in this case, the court said that the administration was
a de facto government in the second type. Which is through
occupation.SIR: so the situation of Aquino?PONTANAR: oh I thought
about the Cory Aquino sir.SIR: ah no, im talking about the Pinoy
Aquino, coz if you talk about the past, that is the Marcos
administration.That is a situation and the third one is
insurrection, what is it?PONTANAR: uhm insurrection is more like,
there is like an idependent government, like in a state there is a
portion which is has people that has their own independent
government and they tend to overthrow the current govt. so example
would be like,SIR: il give you three kinds of government and you
identify each one.SIR: The govt is of Emilio Aguinaldo in Kawit
cavite, what kind of govt is that?PONTANAR: Second govt.
revolutionary SIR: second, govt of the Japanese armed
forces?PONTANAR: government thru occupationSIR: govt established by
the late Aquino after the collapse of the marcos govtPONTANAR: uhm
that is the insurrection.SIR: bernal?, name some non state actors,
atleast 4 and tell us significance of non state actors in
international law.BERNAL : first sir is international
organizations, if we go back to the ruling of the ICJ in the case
of although recognition of an international law, it is impliedly
given the force of an international status because of the fact that
the organization or the states themselvesSIR: do u mean
international status as recognizing it or giving it or possessing
an international legal personality?BERNAL : yes sir, like in the
case of UN sir, it is given an international legal personality.SIR:
how different is an international organization from a non
governmental organization?BERNAL: an intl org sir is in their
creation sir, they are created by states, second when we talk about
NGOs they are created by private individuals. So in that case, if
we differentiate the two, the first one which is an international
organization, possesses an international personality and non
governmental org which doesnt have the same legal personality.SIR:
what is the value of NGOs, giv exaamples of NGOsBERNAL: Greenpeace
sir, in that case sir, according to ackehurst sir, the contribution
of an NGO in the international sphere sir is, that their assistance
to international issues to international world sir isSIR: what
assistance?BERNAL: for example sir, in giving, aid to nations sir
which are undergoing war.SIR: I think you are referring to the
contribution of NGO in the formation of international law, given
that most NGO possess more or less competence and expertise in
certain areas, like Amnesty International will be dealing with
human rights. GREENPEACE, with environment. Redcross, dealing with
humanitarian group. So most of the observations and recommendations
of NGOs are being utilized by the international law commission
itself in coming up with interpretations of norms that are
enacted.What about multinational companies and individuals? How
does international law deal with them?BERNAL: as a law sir,
individuals are objects of international law and as such it is erga
omnes rule to protect the rights of the individuals as well as
multinational companies sir, for the attainment and in furtherance
of justice sir.SIR: the recognition of individuals and
international companies in such a way that if we talk about rights,
seldom to be seen in the international law, recognizing rights of
individuals and multinational companies to the extent that there
rights pertaining to individuals that have in fact are customary
international law and other human rghts law, but the problem is
with regard to treaties, whether or not we confer duties to
individuals, does international law also recognize duties of
individuals?BERNAL: yes sir, intl law, recognizes duties towards
individuals.SIR: such as? Example?BERNAL: for example sir if we use
it in the humanitarian law sir, we have the duty to protect
individual rights and those offenses..SIR: those are rights, I mean
duties of individuals that international law confers on
them.BERNAL: in a way of mandating individuals to observe
international law, such as the erga omnes rule, not to commit
crimes against humanity. Observing the laws of war to some extent
sir.SIR: oh okay. Miss locaylocay?(guys, airhead moves kayo so
please, uhm, il just encode the questions of sir ha. )SIR: have you
encountered in your readings different kinds of
jurisdictions?CHENA: yes sir. (bagag nawng, bisag wala jud nakaabot
ug basa sa jurisdiction na topic)SIR: have you read that
topic?CHENA: just very vaguely sir (shuffling notes) the one thing
about jurisdiction, it talks about the territory (blah blah blah..
wrong kau na answer) like, this certain tribunal has jurisdiction
over certain kind of peopleSIR: are u talking about jurisdiction of
a court?CHENA: that could be one thing sir, the jurisdiction to
adjudicate. (diin man ko aning word na adjudicate uy)SIR: what
about the jurisdiction of the other branches of the government?
like the jurisdiction to legislate? The jurisdiction of the
executive branch?CHENA: and that too sir, the jurisdiction as to
the extent of the exercise of their powers.SIR: okay, so talking
about jurisdiction, in regard to court jurisdiction, we call it the
jurisdiction to adjudicate, different from the jurisdiction to
prescribe which is legislative, jurisdiction to enforce which is
the executive and jurisdiction to adjudicate which refers to the
types of adjudication one of course which is territoriality. What
is territoriality jurisdiction?CHENA: like say for example, I am
(blah blah blah)SIR: so a state has jurisdiction over a crime
committed in its territory?CHENA: thats right sir.SIR: have you
come across the principle of nationality? How is it different from
territoriality? In any case, we have one which is nationality and
territoriality.CHENA: (wrong napud na answer) like the nationality
principle, I am a national of a certain state, so the state has
jurisdiction over me and (sir interrupts)SIR: lets talk about the
case of nottebohn. Have you read that case?CHENA: no sir.Sir calls
other people ; TAMPUS AND JAECTIN didnt read the case as
well.SIR:Okay so, while recognition is not an element of statehood,
atleast in the lieu of declaratory theory, there are however
effects that are identifiable and conflicting. CONFLICTS - Full
diplomatic relations, that is expected, the idea of recognizing a
state, is of course a political act. The state may, grant or
withdraw or revoke or refuse to recognize a newly emerging state,
although, it could be agreed for example that the moment a state
has established itself as a state international community should
recognize the state because the moment a group objectively has
established itself as a state then it possesses certain rights
independent of other states. But that is just one scope.So if you
are ready to recognize a state, then you must be ready to grant
diplomatic relations. If you are not ready to grant or give
diplomatic relations with that newly emerging state, then you dont
recognize that state. So, observation is that the moment a state
recognizes another state, chances are, there could be full
diplomatic relations given, unless the recognition is qualified.
Recognition may be qualified as merely recognizing a state not as a
de jure but only a de facto recognition, meaning it is only
recognizing the state, but we recognize you only for the purposes
of our interests that we enter into relations.The most common
effect of recognition of course is the right to enter into
relations with the recognizing state. Entitlement to property of
the recognizing state is another. And recognition shall be given
retroactive effect. This is underlying principle in the underhill
vs hernandez. This is a US case, but most authors and experts in
intl law would still the underhill doctrine, in support of the
theory that recognition should be given retroactive effect. So in
the case of underhill vs hernandez. (sir explained the case. I
presumed wev read it) the acts of hernandez were considered the
acts of the state and therefore, you cannot sue hernandez in his
individual capacity. And there was this argument that, how can you
attribute the act of hernandez as an act of Venezuela that when
that incident happened, the US did not recognize yet the govt of
hernandez, but the US SC learned that later on recognized anyway so
the effect is retroactive.So, in any case, the act of state
doctrine compels a state to refuse or to pass judgment from the
acts of other states. That is the act of state doctrine. This is
Pursuant to the fundamental principle of equality of states. State
A cannot pass judgment on the validity of the acts of State B.It
means that the state A will resolve an issue by looking at the
internal processes in the other state. The act of state doctrine
bars the passing of judgment by the validity of other states.In the
nottebohm case, the grant of citizenship for naturalization was not
considered, by Guatemala, because of the failure of international
law to grant effectiveness to the grant of citizenship. We will
talk about that later.Now, thats recognition of states. Lets talk
about recognition of government. You were right in saying that,
there is a distinction between recognition of state and recognition
of government, the moment a state is recognized, then it recognizes
the entire entity as a state without reference to whoever is
governing. If state a recognizes state b, it doesnt necessarily
recognize that the govt of x and the govt y is in control, that
would require another recognition of that govt as well. It is
possible that there is a de jure recognition, yes you are a state
to us, but there is also a de facto recognition of the govt because
it was established in a way that is objectionable to the
recognizing state. And you also know that there are several types
of recognition offered by theories, and wel go to that later. But a
recognition of a government whether de jure or de facto doesnt
matter, because, for as long as there is recognition of government,
it would necessarily result in the recognition that it is a state
because you are recognizing that it is a government.So lets talk
about the recognition of government, once again it is a political
question and it involves discretion on the part of the executive.
Or the head of state or the official that is vested with public
affairs. You are right, there is no duty to recognize a government
and that is why there are several theories or doctrines of
recognition because THERE IS NO DUTY TO RECOGNIZE A GOVERNMENT, it
is purely DISCRETIONARY.Addition, states used to apply certain
thresholds or conditions before they would recognize antoher
government, there is the requirement of effectiveness and degree of
control. Meaning the moment we recognize you, we understand that
that government is in control of the territory. Stability and
permanence is also, another factor that recognizing states will
consider. Popular support, it means you are democratically
recognized, but in fact there are governments that are established
extra constitutionally. Popular support means, it has the support
of the inhabitants in that particular territory if it has been
established extra constitutionally and not democratically.Then
ofcourse the ability and willingness to fulfill international
obligations, again, these however does not mean that the four
factors are present objectively that the particular state is bound
to recognize. What it simply means is that these are the factors
that the recognizing state will consider when the want to recognize
or establish recognition. It is possible that a government has all
the four factors but the recognizing state still refuses to
recognize and there is no obligation or duty to recognize.That is
the traditional approach.Now, probably because of the idea that,
recognition is highly political and discretionary, then some
practices had evolved like the Tobar or Wilson Doctrine, espoused
by former secretary Wilson in the US. This theory or doctrine
precludes recognition of any government established by
revolutionary means. These are modern theories and brought about by
the huge influence of democratic states especially US.The Stimpson
doctrine is another, no recognition of a government established
through external conventions.The Estrada doctrine, of course as you
know this is not in reference to our oldest president, Joseph
Estrada. LOVE CONQUERS EVERYTHING.This is the Mexican leader
Estrada. If a state is established through political upheaval, the
state may not give recognition to the emerging government but will
accept if it has effective control, I think the idea is that it
would be more of respecting the internal affairs of that state.
Dealing or not dealing with that said government is not a test in
dealing with such legitimacy of the government. This came out
several times in the bar exam. (ESTRADA DOCTRINE iyang
pasabot.)
Costa rica claimed that GB was estopped in not recognizing the
contract. Because at that time, GB was not recognizing costa rica.
So how will you answer that if you have not encountered the case?
Principle recognition or non-recognition of other governments by
such de facto government will not necessarily destroy the de facto
status of such government. It is no argument to say that Estoppel
may be applied in a non recognizing state with regard to
enforcement of contracts. It is likewise important to talk about
recognition of belligerent state. Recognition of belligerency. Not
insurgency. How will you distinguish belligerency from insurgency?
How will you differentiate insurgency from a riot? In which
instance do we use properly the term war?If govt forces are engaged
in some sort of fire or use of weapons against a group. Do we call
it war? In situtations that involve a riot or insurgency, do we use
the word war? We only use the word war if that status of a group
can be said as belligerent. A mere riot is ofcourse an informal, an
unorganized. There is no armed conflict there.How do you
distinguish insurgency as from belligerency.There is insurgency if
there are groups more or less organized but lacks a civil
government and possession of a significant portion of territory.So
if a group has a substantial portion of territory and it has a
civil government recognized by the national government, then that
group can qualify as a belligerent but it all depends now, whether
the state recognizes and what would be the effects if a state
recognizes a belligerent.The moment participants of insurgency are
captured, how will the state treat the captured insurgents? What
about belligerents? How will the state treat belligerents? Like POW
status. We start from there next time and we continue up to
jurisdiction.
PIL TRANSCRIPT FEB. 9, 2015 by D.A.T.A.Were talking about the
difference between insurgents and belligerents in IL. That is
important because if the government of a particular state treats a
group as mere insurgents, that simply means that the armed group or
the insurgents and the armed forces will not be governed by the
laws of war. Meaning, what will apply will be the municipal law of
that state. But if the group will qualify as belligerents, then,
there is the option on the part of the state to either recognize
belligerency or not. The effect if there is recognition of
belligerency, that the relationship of the armed conflict between
the belligerents and the armed forces, will now be governed by the
laws of war. Meaning, they shall be treated, for example, those
captured as prisoners of war, and they shall be prosecuted not
under domestic law but will be prosecuted for international crimes
if any has been committed. So, we have the following basic effects
of the recognition of belligerency:Before recognition, the rebels
will be subject to municipal laws of the legitimate government and
in case of the injuries suffered by third states - Usually, in the
form of injuries inflicted to their citizens. In that situation, we
will be talking about state responsibility soon. Well talk about
the liability of the state in so far as acts committed by rebels
are concerned. But, generally, the acts of the rebels will be
imputable to the state before recognition, because non-recognition
of belligerency is a commitment or undertaking on the part of the
non-recognizing state that it is still in control of the territory.
And so if it says that it doesnt recognize the group as
belligerents then that state is saying that were in control and so
whatever happens to citizens of third states, we shall be
responsible. But if the state thinks that its already out of its
control, then it will now recognize belligerence so that acts
committed of the belligerents will no longer be imputable to the
state. Basically, thats what guides states on the matter whether it
will recognize or not. Doctrine of State Continuity- whatever
happens to the internal organization or changes in the government,
the state continues to exist.Different effects of state succession
and government succession.Q: When is there state succession? When
is there mere government succession?It is important to characterize
what is happening in a particular territory. Something happens in a
territory, the government, for example, had been overthrown. Is
this state succession or government succession? Because, you know
that there are different consequences in state succession and the
other.When is there state succession?Change is personality.
Particularly, in what aspect? Change in Sovereignty. In the PH, did
we have ever a situation when we changed state, state succession?
Change of sovereign power from Spain to the USA.Change from US
government (American sovereignty) to PH, granting
independence.Changes of government:Change from parliamentary
government (Marcos era) to a democratic form. Establishment of the
1973 Constitution and the 1987 Constitution.During elections, we
only change the administration and not the government.It is
important to know the nature of state succession. There is state
succession when there is a substitution of new sovereign over a
particular territory and common examples would be cession,
Annexation, decolonization, merger, etc.This will have legal
effects in treaty and International obligations. This is where you
refer to the so-called Clean Slate Doctrine or tabula rasa. CSD, as
a general rule, the moment there is change of sovereignty, except
in certain treaties involving boundaries and territories, the new
or successor state should not inherit the obligations incurred by
the preceding sovereignty. That is basically the rule in CSD.So,
what are the effects of state succession?1. Transfer of allegiance
of inheritance2. Since political laws are laws that define the
relationship between the inhabitants and the state, as a general
rule, they are abrogated whether or not they are compatible with
the laws of the new sovereign. Even if they are still compatible,
they are deemed abrogated. The only by which political laws may
continue is when there is an affirmative act on the part of the new
sovereign enacting the same political laws. But, the effect is
automatic.3. For non-political laws, they continue unless they are
inconsistent or expressly abrogated by the new sovereign.4. Effects
on public property, torts liability generally not acquired, and the
new sovereign has the option to assume liability.Treaties of the
predecessor state under the CSD are not binding on new
sovereign.Exceptions: those dealing with local rights and affecting
territory.What is important here is that the new sovereign has the
option to assume liability. Under the treaty of Paris, the US
expressly said that it never assumed the obligation of Spain in
relation to the PH islands. It is an option whether to assume or
not. That is not necessarily the case in government succession.What
are the effects of government succession?No problem with rights.
That will be beneficial to the successor government. All rights of
predecessor government are inherited by the new govt. But, the
distinction now is when it comes to obligations. When it comes to
obligations, we distinguish the two kinds of changing the
government:a. By constitutional means or peaceful means, although
it does not necessarily need to be peaceful.b. By
non-constitutional means or violent means (EDSA Revolution,
non-violent)If by peaceful means, obligations as well are
inherited. If by extraconstitutional or violent means, the new
government has the option to either inherit the obligations or not.
And if it will reject obligations, it can reject political and
personal obligations, but not those arising out from the regular
administration of government.Usual examples of political
obligations:Let us assume that during the time of Marcos, he
entered in to contracts with the govt of Malaysia for the supply of
ammunitions for his armed forces that we are battling against the
demonstrators of Aquino group. The obligations incurred by the
government can be considered as political because it was intended
precisely as an expense against the government that will soon
replace the government of Marcos. That is a political obligation
which can be rejected.Example of personal obligation:Usually, these
are obligations incurred that do not benefit the people or the
society as a whole, obligations subject of corruption. Obligations
incurred as a result of corruption, the government has the option
not to assume the obligation. And, in the case of former Pres.
Aquino, she was generous enough to declare in the session in the
Senate of the US, after the Aquino admin was installed by the
People Power, that the PH will honor all the obligations of the
deposed government of Marcos (World Bank obligations, which, of
course, the US has great interest and other obligations as well).
We did not follow Poland. The new democratic government that was
installed rejected the obligations of the former dictator. When it
became bankrupt, exempt from paying obligations until it can start
anew. This can be done under the auspices of the IMF World Bank
policy. You can actually tell WB we owe you 400 billion we cannot
pay such. The WB can actually condone provided that the new
government comply with certain conditions. We demand that of
revenue 40% shall go to the infrastructure, etc. The moment you are
able to comply, do not expect to be economically aided.
Non-state actors in IL. Done na ni, ingon si sir. So he did not
really touch this part.In the Reparation for Injuries case,
normally, states are the ones considered having international legal
personality. Except in this case, where the ICJ mentioned that the
UN as an international organization, also has international legal
personality, can therefore represent or rather demand and bring
claims at the international level. And that for individuals,
usually, that would require espousal claims by states for generally
they are objects of international. But, to some extent, some kinds
of individuals have international legal personality in the area of
rights. At least, in the area of rights, not probably on duties
(ex. Right to self-determination).As for duties, there are
situations where we can say that even individuals possess
international duties, especially if we talk about international
criminal responsibility. Even individuals can be considered
non-compliant of IL norms.
JURISDICTIONThere are three kinds of jurisdiction. When we say
jurisdiction we are not only talking about the jurisdiction of the
court. We are talking here about the jurisdiction of the government
or the state.a. Jurisdiction to prescribe law. This is legislative,
the authority of the state to make its law or policy applicable to
persons or activities. Whether this can be extended outside the
territory of the state, well talk about it later on.What
jurisdiction simply means is the authority to prescribe a conduct
and that is legislative.b. Jurisdiction to enforce. This involves
the authority to use governmental resources and demand compliance
of certain administrative rules.c. Jurisdiction to adjudicate.
Pertains to the court, to decide on cases and subject certain
persons to the processes of the court.Specific jurisdiction of
courts in relation to crimes: criminal jurisdiction.Different
theories justifying jurisdiction of courts:a. TERRITORIALITY
PRINCIPLE As distinguished from principle of generality: Generality
principle is a component of territoriality principle but only
applied to persons sojourning in a particular territory. Some books
that are not non-legal use these terms interchangeably. Generality
Principle: ability of the applicability of laws to all people
sojourning in a particular territory (ex. Art. 14, CC) Territorial
Jurisdiction: covers not only over persons, but also over acts or
events. This is where we can talk of extraterritoriality principle.
Because in Generality Principle, laws, ex. penal laws involving
national security, can be applied to all persons sojourning in a
particular state. But if we talk about TP that is regardless of
actually placed, if you put into consideration the idea of
extraterritoriality principle. Ex. Territorial Jurisdiction over
person, property, acts, occurring within the territory. Since
crimes may be committed in a lot of ways and in different stages,
then IL encounters the problem of subjective and objective
territorial principle. We are not dealing here with definite
jurisdiction as applicable universally because, in fact, a state
may be aggressive enough to even apply all these principles. Or, it
may be conservative enough to just choose some and reject others.
Do not think that a state will always has all these kinds of
jurisdiction. This is just a question on HOW TO JUSTIFY AN EXERCISE
OF JURISDICTION BY A STATE OVER A PARTICULAR PERSON OR CRIME. You
cannot say that State A can choose territorial or nationality
jurisdiction. It will depend on the policy of that state. Not
unless, for purposes of examination, probably, the question would
be: IF YOU ARE TO ARGUE ON THE TERRITORIALITY PRINCIPLE OR
NATIONALITY PRINCIPLE, HOW WOULD YOU JUSTIFY JURISDICTION OF THE
COURT? When can it be invoked or applicable? Caveat: Some
principles are still controversial under IL, ex. Protective
Principle. There is no CIL that says, at all times, there can be
PP. there may be CIL as to the limited application of PP. 2 kinds
of Territorial Jurisdiction: Subjective TP: a crime can be
commenced within one state and may be completed or consummated in
another state Objective TP: commenced in another state, the
completion or effects would be in that invoking state, or harmful
consequences to the social or economic order in that territory are
also present or felt. The usual example: someone in Canada fires a
gun and hits another in the US. Canada can justify under STP while
US can justify under OTP. The first to acquire jurisdiction cannot
apply because of separate penal laws, that of Canada of the US. US
is the more dynamic and aggressive in acquiring jurisdiction over
crimes. US v. Vasquez-VelascoThe murdered were not actually members
of the US Drug Enforcement Agency. They were civilians. Okay? A
novelist, photographer. But, they were mistaken of the USDEA. That
is where the US tried to look for a connection. Since the act was
directed against the USDEA, then that was considered as against the
US interest. How justified by the USA?That IL generally permits the
extraterritoriality principle under the Objective territorial
principle.The crime was committed abroad but was directed to USDEA,
thus affecting the interest of the USA.OTP: Consummated or
completed in the territory of the invoking state OR, even if it is
not completed there, and this is the more aggressive territorial
principle, and it produces gravely harmful consequences to the
social economic order inside the territory, it may be justified
under the OTP.This was also justified under Protective Principle.
And, in this case, the US Court mentioned of a delimitation to the
application of Protective Principle. PP has a narrow application
unlike TP, Universality, or Nationality. US: under which
jurisdiction is asserted over foreigners for an act committed
outside the US that we impinge on the:1. Territorial security2.
Political independence of the USSince the crime was directed
against the US, it was directed against the USDEA, it was therefore
an act that impinged on the territorial security. Hartford Fire
Insurance Co. v. CaliforniaThe insurance conflict on policy and
some London-based company dealing with the insurance and that the
policy by American insurance companies were not provoking the
interest of this London-based insurance companies. They came up
with certain acts, a conspiracy to diminish the economic interest
of the US in relation to insurance policies in the insurance
business. The US applied the Sherman Act, an ant-trust law, even if
the acts were committed in the UK.Justification: The foreign
conduct that was meant to produce and does in fact produce
substantial effect in the US. This is an example of PP.
b. NATIONALITY PRINCIPLE 2 kinds: Passive nationality: looks at
the victim. For as long as the victim is a citizen of that state,
then, that state has authority or jurisdiction over the crime.
Active nationality: jurisdiction is attached to the person wherever
he is situated. If the person is an American, and wherever he
commits a crime, the American courts can have jurisdiction over
him. AN: on the offender; PN: on the victim. But there has got to
be a genuine link or connection between the person, either as the
offender or the victim, and this is established by the Nationality
Principle espoused in the case of Nottebohm.
Nottebohm was born German but for more than three decades he had
been in Guatemala due to family business. And then, war broke out
involving Germany and for fear that the properties of Nottebohm
will be confiscated, he applied for naturalization in
Liechtenstein. He was in fact exempt of some requirements of
naturalization. When he went back to Guatemala, he was arrested
detained because he was German. So, Liechtenstein alleges that
Nottebohm is its citizen and it has the right to protect him. Claim
was filed by Liechtenstein.
Issue: WON Liechtenstein will have the power to espouse the
claim or the power to protect or make diplomatic protection for or
in behalf of Nottebohm.
The basis was he was granted citizenship by naturalization.ICJ:
mentioned of a variance in local or domestic citizenship studies
and nationality studies in IL. A state can have its own kind or set
of citizenship laws but these will not necessarily have a bearing
in the International level because we follow the Effective
Nationality Theory.
What is Effective Nationality Theory?
-end-
Public International Law February 11, 2015
How relevant is it the nationality theory in Nottebohm
Case?Student A: It is because the person here when he applied
citizenship in Liechtenstein, ICJ said that Liechtenstein did not
have the personality(interrupted by Sir)
Sir: What is the interest of Liechtenstein again? or what did
they do?
A: ... (unsure answer)
Sir: It was exercising diplomatic protection because Nottebohm
was arrested and detained. To be able to question the proceedings,
the State may do so when its citizen is in a foreign country then
normally if you seek remedies for maltreatment or abuse of
authority then the remedy could be diplomatic protection exercised
in behalf of its citizen. So that is what Liechtenstein is trying
to do. So there is a question whether or not, Liechtenstein has the
authority to exercise diplomatic protection solely on the basis on
the grant of citizenship via naturalization on Nottebohm. What did
ICJ said about it?
A: ICJ said here sir that there is no legal bond between
Liechtenstein and Nottebohm but with Guatemala
Sir: Why was ICJ talking about a bond?A: Because sir inorder to
apply nationality principle there has to be some kind of a bond
Sir: Was the citizenship granted to Nottebohm enough bond that
would connect Nottebohm and Liechtenstein?A: No sir, it is not
enough because the citizeship was merely an afterthought because of
the war.
Sir: Are you saying the citizenship proceeding in Liechtenstein
is irregular and therefore void?A: No sir but Nottebohm applied for
citizenship it was not his real intention (interrupted)
Sir: Was Nottebohm a citizen of Liechtenstein?A: Yes sir.
Sir: Mere grant of citizenship, according to ICJ, is not
sufficient to vest Liechtenstenstein in order to exercise
diplomatic protection. But ICJ did not say that the citizenship
granted to Nottebohm is invalid.
(recit ended)
Sir: This is important, class, as you have noticed when we study
International Law, we should be conscious with different legal
system. One is domestic and the other is international. So the
question whether X is a citizen of State A is a question that
requires domestic law of State A and no other. In fact in a
particular State, in deciding citizenship is limited only to saying
whether a particular person is a citizen of that State or not but
it cannot adjudge whether that person is a citizen of another
State. For example, in Philippine Court, it can only say that Juan
dela Cruz is a Filipino but cannot say Juan dela Cruz is Spanish
because question of citizenship is a domestic law question. Now
what Liechtenstein is trying to do is not application of domestic
law alone but also international law because it is exercising
diplomatic protection. And diplomatic protection is an
international law concern so according to ICJ it has to be settled
under International Law. So the link between Nottebohm and
Liechtenstein should be under International Law as well. According
to ICJ, the link is not settled by mere citizenship alone but what
we call EFFECTIVE NATIONALITY THEORY. Ok?
I will show you what the ICJ mentioned about this (sir is
opening his slides). As argued by Guatemala in its outer
memorial.
ICJ: ... "Guatemala has referred to a well-established principle
of international,... that "it is the bond of nationality between
the State and the individual which alone confers upon the State the
right of diplomatic protection"...."the courts of third States,
when they have before them an individual whom two other States hold
to be their national, seek to resolve the conflict by having
recourse to international criteria and their prevailing tendency is
to prefer the real and effective nationality."... nationality is a
legal bond having as its basis a social fact of attachment, a
genuine connection of existence, interests and sentiments, together
with the existence of reciprocal rights and duties.
Nottebohm in this case is staying in Guatemala for 34 years
because they have a family business there in fact started as an
ordinary officer and later on became the president. Many times, he
has been to Germany also. There is therefore no effective link
between him and Liechtenstein. So that is your nationality theory
for purposes of exercising jurisdiction. So we have active and
passive nationality.
So how about this case of US vs Columba-Collela(1979).
Student I: It is about a stolen car in Texas. The question here
is whether the US can exercise jurisdiction because Columba-Collela
in this case is not a US citizen but British living in Mexico.
Sir: first, what crime has been committed here? Selling of a
stolen car - fencing, di ba? This is a violation of anti-fencing
law. So, the crime of fencing was committed in Mexico. Do you think
there is link between the crime and the US for US court to acquire
jurisdiction to try the British national?
Student I: Yes sir because the car was stolen in Texas but the
selling happened in Mexico.Sir: Under what principle can we
apply?I: territorial principle sir because... (sir interrupted
because it is wrong.. hehe)Sir: The crime committed here is fencing
in Mexico. Not the stealing because the stealing is a separate
crime which is not the issue in this case. So, how do you establish
jurisdiction here?I: nationality principle sir? (sayop na pod ni...
hehe)Sir: If it is passive, the victim here is american? in
fencing, the victim is american? Dili pwede active because the
offender is not an American citizen. Cannot passive also because
the victim is not an American.
I: Sir, maybe we can apply the protective principle? (sayop na
pod kay actually walay ma-apply nga principle of jurisdiction)Sir:
maybe? what is protective principle?I: crime is threat to national
security.Sir: does fencing a threat to national security? According
to US, protective principle will only apply if it will also
interfere in the governmental operation para majustify ang
protective. In this case, it does not. How about universality
principle?I: Cannot sir because this is not crime against the
international community.Sir: If we talk about protective principle,
the limited and narrow scope would be threat to national security
and interference in the governmental operation. Universality also
has limited scope applicable only to international crimes such as
war crimes and piracy(as lex lata). All others, lex ferenda. And in
case of terrorism, apart from knowing that it can be lex ferenda,
you can probably add because of instant CIL in case of terrorism.
And the justification that it is part of instant CIL is the way
terrorism has been committed in modern times involving modern
technology and also because of the massive impact of terrorism
around the globe. That is one of the justifications that combating
terrorism as instant CIL and consider as part of universal
application of jurisdiction but that is not a lex lata yet only a
developing international law.
(recit ended)
United States vs Columba-Collela (1979)
Facts: A British citizen living in Mexico agrees to sell a car
that is in Mexico but was stolen from Texas by someone else.
Issue: Can the British citizen be prosecuted under US law?
Protective Principle?- the protective principle does not bear on
this case because the case does not involve a threat to national
security or directly interfere with government operations.
How about objective territoriality principle? According to ICJ,
the British national is not the one who stole the car and therefore
there was no significant connection in the US. Maybe there is
connection but not significant to justify objective territoriality.
How about passive nationality? not applicable because usually
covers also a limited category of crime. I might have mentioned of
torture, yes but not even in cases of murder that does not affect
jus cogens or erga omnes norms. It is hard to justify it. Even
murder is not within the context of passive nationality theory. So
let's go to protective principle. As I said.Protective Principle in
Jurisdiction- a state can legislate crimes that i considers to be a
threat to its security, integrity, or economic interests- common
examples: espionage, counterfeiting (terrorism?)Restatement 402:
"... a state has jurisdiction to prescribe the law with respect to
...(3) certain conduct outside its territory by persons not its
nationals that is directed agains the security of the state or
against a limited class of other state interests."- this principle
is limited to conduct that occurs outside a state's territory, by
noncitizens
In US, they include economic interest.Remember the case of
Hartford? What interest was affected by the alleged conspiracy to
damage and prejudice the economy of US, the insurance industry in
particular, compelling to restructure their insurance policies.
That was economic interest and the US justified it through
protective principle. Ok?
- The Protective Principle, is not a catch-all principle,
however. It has a very narrow scope- Examples of conduct that come
under the protective principle:- security (espionage,
counterfeiting, falsification of official documents)- terrorism?-
customs and immigration laws- perjury before consular officials-
economic interests?
(my note: those '?' above are really found in the slide; it
connotes some meanings)
In our article 2 of RPC, it can still be justified under
protective principle although we call it extraterritoriality
principle because we also declare that we have jurisdiction to acts
committed outside the Philippines but involving those enumerated in
article 2 and i remember there is counterfeiting, falsification,
introduction, etc. Question on terrorism. maybe instant CIL.
Economic interest- US settled but not international law settled. It
is still controversial that's why i placed there question mark.
An old case...----United States vs Bowman (1922)The indictment
charged Wry (Master) and Bowman (Engineer), officer of the Dio
(owned by the US), for planning to oder, through Johnson & Co.,
and receipt for 1,000 tons of fuel oil from the Standard Oil
Company, but to take only 600 tons aboard, and to collect cash for
a delivery of 1,000 tons through Johnson & Co. from the Fleet
Corporation, and then divide the money paid for the undelivered 400
tons among them (with two other defendants).Court:A criminal statue
dealing with acts that are directly injurious to the government and
are capable of perpetration without regard to particular locality,
and subjecting all who commit them to punishment, is to be
construed as applicable to citizens of the United States upon the
high seas or in a foreign country, though there be no express
declaration to that effect
Not much controversy if crime is committed in high seas but it
is controversial only when committed in other territory like what
happened in the case of US vs Romero-Galue
United States vs Romero-Galue,757 F.2d 1147 (11th Cir. 1985)
US could still exercise jurisdiction over the Panamanian ship
even if there is no treaty because the protective principle would
allow the US to prosecute foreign nationals on foreign vessels on
the high seas for possession of narcotics (and in some way
inherently harmed the US)
"The protective principle permits a nation to assert
jurisdiction over a person whose conduct outside the nation's
territory threatens the nation's security or could potentially
interfere with the operation of its governmental functions."
This was in high seas and involved narcotics. Although the crime
was committed in high seas, there was evidence that it is directed
to US because based on intelligence report those narcotics are
intended for US. The governmental function involved is combating
narcotics.
How about the case of Atty general of gov't of Israel?
Sir: Can we apply protective principle in this case? The crime
was directed against the Jewish people. That's one and
second?Student O: Also universality principle because of
genocide..Sir: In this case two principles can be applied. One is
protective or even passive nationality then second, universality.
So here, it was argued that the court has no jurisdiction because
he was captured in a foreign territory in Argentina but it was
dismissed because of universality theory.In your exam(kani!),
expect there will be a problem and then there will some crimes. You
will be asked to justify the jurisdiction of the court and be able
to point out particular principle that the court may apply. And
probably i will also ask whether or not it should be upheld and
possible to argue that this is the principle that the court can
invoke but aslo be asked to decide whether it can be successfully
invoked. So you have to master the concept, scope, limitations, etc
of all of these.
--------Attorney General of Government of Israel vs Eichmann
(1961)
Israel tried and convicted Adolf Eichmann, who had been captured
by Israeli agents in Argentina and brought to Israel for trial.
Eichmann was charged of committing crimes agains Jewish people,
crimes against humanity, war crimes, and membership in hostile
organization as defined in Israel's Nazis and Nazi Collaborators
Punishment Law. Eichmann argued that the court had no jurisdiction
because he was captured in a foreign country in violation of
international law.
Court:"From the point of view of international law, the power of
the State of Israel to enact the law in question... is based... on
a dual foundation: the universal character of the crimes in
question and their specific character intended to exterminate
Jewish people."
---------United States vs Usama Bin Laden (2000)Facts:
Defendants are charged with a variety of crimes stemming from the
August 1998 bombings of the US Embassies in Nairobi, Kenya.
Court: The passive personality principle is increasingly
accepted as applied to terrorists and other organized attacks on a
state's nationals by reason of their nationality, or to
assassination of a state's diplomatic representatives or other
officials..." (citing Restatement section 402). ... Universal
jurisdiction is increasingly accepted for certain acts of
terrorism... " (citing Restatement section 404)... Both universal
jurisdiction and the protective principle are bases for
jurisdiction by the United States over the death of foreign
citizens"
In this case, Usama also admitted that Al-Qaeda is responsible
for the bombing of the US Embassies in Kenya so a case was filed in
US. The issue is the justification of the authority of US courts
because the bombing took somewhere else. Passive personality
principle was invoked as the proper principle to justify
jurisdiction. Universal jurisdiction can also be used to
justify.
How about the case of Pinochet?
This is a very important case. It was mentioned in many books.
Take note of this case.This is relation whether or not a former
head of state is immune from prosecution.
He was a dictator of Chile. Pinochet hated Spaniard so much that
he ordered in fact a series of torture against Spanish national.
After the end of his territorial regime, he got sick and went to
London for medical purposes. Around this time, Spanish court issued
an arrest warrant against Pinochet then he was abducted in London.
The question now is whether or not Spanish court has lawful
jurisdiction against Pinochet for acts committed in
Chile?Territorial Jurisdiction? Of course not applicable because
the torture was committed in Chile.Active Nationality? Dili pod
because Pinochet is Chilean.Protective Principle? No also because
there was no threat to State's national security.So what could be
possibly proper is number one.. Universal Jurisdiction kay torture
man because prohibition against torture is erga omnes norm. Also
Passive nationality because the victims were Spanish citizen
because the passive nationality principle is more persuasive than
the universal jurisdiction. So when you read about jurisdiction,
you include also the case of Pinochet.
----
----Pinochet Case
- Spain relied on Universal Jurisdiction to argue for Pinochet's
extradition from England to Spain- It also relied on Passive
Nationality/Personality (Spanish Citizens were killed in Chile)-
Passive Nationality/Personality was found to be more persuasive
than Universal Jurisdiction- No Territorial Jurisdiction - happened
in Chile, not Spain- No Active Nationality - Pinochet was not
Spanish- No Protective Principle - there was no imminent threat to
Spain's national security from Spain
Sir: The jurisdiction to prescribe which is essentially
legislative may probably be extended even outside the territory of
the State, correct?Student D: YesSir: Authority to enforce however
seems to be limited because even if jurisdiction maybe vested to
the court, the service of warrant however would require
jurisdiction to implement. ok? and that seems to be problematic
because even if, for example, the US has jurisdiction over the
crime committed outside or even in the US but the person to be
arrested is no longer in the territory of the US. That becomes a
problematic now because the service of the warrant may encounter
problem. So, how do we deal with this?Student: Through the process
of extraditionSir: Ok. that's one. what else?Student: Probably,
deportation also sirSir: If the bar exam is distinguished
deportation from extraditionStudent: Extradition, sir, is a State
request another state for the arrest a person and send to back to
the requesting State. Deportation is the ouster of that individual
from the State.Sir: Ok that's to the process. What else?Student: In
extradition, the crime is committed in the territory of the
requesting State; deportation is committed within the territory of
the State. (2nd bell na sir oh... dismiss na)Sir: Is there a
request for deportation? or request for extradition?Student: Only
in extradition sir. For deportation, it is up to the individual
where he will go.Sir: How about abduction of criminals? With or
without extradition treaty, is that a way also of acquiring
jurisdiction over a person?Student: it happened in one of the cases
where he was forcible abducted. There is no prohibition in IL. So
when it is not prohibited although there is a problem when ..
(interrupted)Sir: What is "rendition?"? (the class were
confused;first time i heard this but for sure it will be discussed
again in the succeeding classes)Student: I haven't encountered this
in my reading, sir.
So class, let us end here. Coverage next meeting is up to
consular immunity
February 18, 2015 PIL recording 1:1:18Okay ah. Why is it
important that extradition is a chapter in jurisdiction? As you
know there are 2 kinds of jurisdiction or authority that the state
can exercise in international law. We have the jurisdiction to
prescribe or the authority to prescribe which is basically
legislative. Ahm actually the law can be given to acts or person
even outside. So even legislative measures can still be applied to
acts of persons outside. You know that diba? It can still be given
extra territorial effect. Probably an example is the case of income
tax oh dba? You distinguish between Filipino resident and Filipino
non resident . For Filipino non resident they are taxable for
income within, mao ba na? ohh if you are a Filipino resident your
income is taxable even if you earn it within or without oh see.
Kamao kug taxation. Mao ban a mao ban a class still the same? Oh
see gawas na ninyo inig sabado inig exam.gipangutana mo sa kaso ni
many pacquaio noh? WALA. Oh tax law given effect even to income
earned outside so extra territorial. Okay? Court jurisdiction,
jurisdiction to adjudicate. We have just studied that. It can also
be given extra territorial effect. Even you apply universality
principle for intl crimes like genocide even in protective
principle in a narrow scope but you see the practice in the US then
you have ahhm objective territorial principle and subjective
territiorial principle. Dba? Pued part of the act is committed
outside. Alright? The third one is the jurisdiction to enforce.
Okay? Meaning to enforce processes like court orders, arrest
warrants, subpoena, arrest waarant. Thats a problem because it is
clearly confined within the territory of the state. That;s why
theres need for ways for example a person may be brought to the
jurisdiction of the court if he is already outside the territory of
the state. Okay? We call this the process of rendition. Did I
discuss this? Wala pa noh? Okay its different from what I did
during the concert for a cause dba? That was a rendition of a song.
Okay? This one is different. There are 3 kinds or forms rather of
rendition. Number 1 is the most ah ah commonly adopted through
extradition ok? Because if you want to obtain the person of the
accused. You want to serve the warrant of arrest. Its the only way
you can have jurisdiction over the person. Even if you have
jurisdiction over the case but you also need to have a jurisdiction
over the person because the 1st authority is to decide whether the
crime has been committed and the 2nd is to impose the penalty. You
cannot impose the penalty of the crime if you dont have
jurisdiction over the person of the accused. Okay so. You need the
consent of the other state. Otherwise if you extend the authority
to enforce in the territory of the other state. That can be a case
of intervention. If it is without consent. This concerns about some
FBI agents found in the project unsay tawag ana mission exodus oo
in the service or in serving the warrant to Marwan. Its no problem
if it was with consent of the Philippines. Its not an intervention
or interference. In the same manner if you enter into extradition
treay thats still the same effect. That still will serve the
purposes of another state if voluntary. 2nd is deportation. Thats
also a form of rendition. But the problem with deportation and it
was asked already in 1 bar exam. Distinguish extradition from
deportation. Ahh deportation is unilateral , theres no need. There
can be an informal request but why would the state do that.
Probably there is extradition treaty. So the other state can
probably influence where the accused could be found to deport. But
it can be done only informally. Legally there is no requirement of
consent and then of course you dont need a treaty and the
destination of the deportee is irrelevant. Thats also the problem
of deportation because the deporting state cannot direct the
deportee where to go after. Kay expulsion ra man na xa sa
territory.the best thing really is to have extradition. The 2rd
form of rendition is the most controversial one. Abduction in the
territory of another state. Oi wa tay klase tomorrow? Magkjalse
kaha ta? 2 na man lang ka issues ang nabilin. Ang probleman ani
class ang mga taga laing planetaOkay so its controversial because
basically it actually constitutes intervention or interference in
the affairs of another state. Abduction of criminals abroad is
intervention. But whether it affects the jurisdiction of the court,
well talk about that a lil later. But 1st extradition. So there are
impt conditions in extradition. Number 1 there has to be a treaty.
Thats why its called treaty based. Meaning theres no duty to
extradite, even there is influence. Are you following. And the
moment theres already extradition treaty. A state is now obliged to
surrender an accused in its territory because of pacta sunt
survanda. Diba? Oh. So there is now the duty to deliver. The 2nd
condition is that the person to be charged or convicted must be
charged or convicted of an extraditable offense. So di pued
iextradite mo for future charge.so if you have in whatever book you
are reading. For pourposes of porsection, it is not hypothetical.
It must be really porsecuted and the purpose only of extradition is
to acquire jurisdiction over the person of the accused. Abduction
abroad is really a necessity. Part of due process by the way. Take
note of that. And then in extradition the extraditable offense
should either be listed or covered by a dual or double criminality
clause. So ang extradition treat will provide xa ug list. Now hat
if a crime is not among those listed in the treaty. Is there a
possibility that a person still be extradited on the bases of a
crime not listed. YES if covered by dual criminality principle.
What is the meaning of dual criminality principle? It means
punishable by penal laws if both parties then it is a common
offense and therefore it can be a subj of extradition but theres a
caveat here. The extradition treat must provide for that clause. It
cannot just say that both. The treaty must acknowledge dual
criminalty principle. Okay. Its hard to abide by such because it
has not yet amounted to international law. This is purely so
therefore the treaty must acknowledge. Thats the lex lata. Ofcourse
the lex ferenda here is without mentioning, if it had been
practiced by states then some authors infact suggest thtat it may
actually be legitimate. But I dont think that is well acceptable.
So in view of that. Youll have the following principles as well.
Already asked in the bar exam.These are the areas that examiners
focus.(SLIDE) 1. no treaty, no oblig to extradite as I have said.
Treaty based.2. pacta sunt servanda apllies the moment there is
extradition treeay entered into force. Bound. Take note that as a
matter of CIL it could not cover political offenses. You know why?
Right to Asylum. Erga omnes- CIL. Because of that a treaty cannot
provide political offenses. Note however that we have attentat
clause. Already asked in the bar. What is that? The provision in
the treaty that mere killing of the head of the state should not by
itself considered as a political offense. So some stradition treaty
have that provision. 3. the rule on specialty. Adopted in lieu of
the need to acknowledge due process in the extradite lso while
these are criminals. They also enjoy presumption of innocence. Intl
law is becoming democrstic as well. So in a criminal proceeding
there is a and therefore the accused or extradite ..due process.
And the rule of specialty requires that the extradite must only be
prosecuted for offenses that have been the subject of the request.
Charged of robbery dili pued ikiha nimog rape. Should be the crime
mentioned on the request. Thats basic tanet to fairness. Maayu pa
kung daghan xa kaso ienumerate nalang tanan.4. ex post facto law
prohibition does not apply. Why? Extradition is not a criminal
proceeding. Ex post facto law applies only to a criminal case. Lets
say you committed a crime in 2010 and state a and b entered into a
treaty on 2012. Okay. Can state a request for extradition of x from
state b for a crime committed even before extradition treaty
entered into force. Answer is YES because since it is not a
criminal proceeding it cannot be invoked. Remember the case of
olalia vs govt of hongkong? The 1st issue is WON the respondent in
extradition proceeding will be entitled to bail? First ruling of
our SC. Not entitled because a right o bail is gratned only or can
be invoked by the accused in a criminal proceeding. And since an
extradite is not an accused and also not in a criminal proceeding
then theres no right to bail in extradition proceeding. In olalia
case. The SC found the need to look again as to the kind of right
involved in the extradition proceeding and the discussion of SC
recognized the elevated recognition of rights of indiv in intl
laws. Individuals right to freedom is internationally recognized
and so accdg to the SC okay even if extradition is not a criminal
proceeding and therefore generally no right to bail, SC said it has
however it has an ear mark of a criminal proceeding. What happens
diay durinf extradiotion. Dba you are arrested. If you are the
resp. you will be detained and asked to answer. To that extent daw
because there is a possibility of denial of your liberty your
freedom will be restricted in a way so even if not criminal
proceeding. Extradtion has an ear mark of a criminal proceeding.
Ergo, a respondent in extradition proceeding may now post bail. We
now go to the issue on legality of abduction. So I already mention
the 3 modes of rendition. It is settled that abduction of criminals
from another state. Because abduction we dont have consent so it is
intervention under UN charter. Okay. Ahhm, it can only be justified
if invoking self defense but then again it is sill not clkearly
settled in intl law whether there is self defense in a case where
you need to abduct. Difficulty in establishing an element of
unlawful aggression. But ofcourse writers have not closed their
doors to the possibility of that pre emptive self defense. That it
may infact develop to intl law. But if it can be established there
is valid exercise of self defense then it may be justifies. But as
I have said. Its still hard at the moment.WON the legality of
abduction will affect the jurisdiction of the court. This is the
principle of _____________________. What do you mean by that?
Wrongfully captured. Validly detained. Dba? Abduct sa territory of
another country but lawfully or validly detained. Ang question nato
sa special issues unsay status ani in intl law. Lex lata lex
ferenda? Illegal apprehension will not necesarrily affect the
jurisdiction of the __state. Case of eichman. Ker frisbie doctrine
on the scope of some sort of making an exemption. It may be validly
detained if the apprehension is accompanied with torture, brutality
or similar outrageous conduct. Typoical common law thinking. Daghan
kaayu musud ana class. Civil law pa ni ilista. (similar violent
acts kung civil pa). just take the case of Eichmann. Adbucted
abroad in argentina. Tried in Israel. One of the defenses invoked
is the legality of the arrest because it was done in the territory
of argentina without consent. What was ruled there was ofcourse is
applying the so called kerr frisbie doctrine, kerr vs illinoise,
frisbie vs Collins. Both cases however internal. Not necessarily
intl but concept evolved as inl principle.(SLIDES) ker-frisbie
cases.How is it justified? Whats he justification of male captus
bene detectus. Even if there is irregularity in the arrest of the
accused it will not accuse the jurisdiction of the court. One
factor because the court anyway will grant the accused person due
process., heard, counsel, face witness face to face procedural
safeguards. And the other reason ofcourse is this ahm arrest of the
accused individual is not a judicial ____. Correct? It is
executive. So it makes no sense to affect the jurisdiction of the
court as a result of non observance of the procedure when
enforcement is done. D man =cpourt and nag abduct. Police man. And
why should there be illegal or irregular conduct affect na
judiciary man sila? PAUSE!In the case of US vs Alvarez. It is also
will the presence of extradition treaty bar the forcible abduction
of criminals abused. It should supposetedly coz since there is
regular method of rendition why go to a highly controversial method
of rendition? Yes? Most authors will mor or less advance that it
SHOULD. But no intl law says it should. Like in this case mexico
and us had an extradition treaty. (SLIDE) here the officials of
mexico were lng aware of the practice of US on abduction and did
not insist the prohibition of abduction in the treaty. So the
silence of the lack of a privision in the extradition treaty ws
used by the US SC in justifying that extradition treat does not
necesarilly affects or bar abduction. Again common law noh:?
Whatever is pragamatic. But you hae on books on the matter largely
criticize this. Not in the outline but will be tacked in our
special issues. The case vs toscalino. So whjat happened here?
(SLIDE-facts) brutally tortured for 17 days. Brought to court via
abduction. Okay there is kerr frisbie doctrine legality of arrest
will not necesarilly affect the jurisdiction of the court., in us
vs tscalino 1974 It said ahm if the allegations were true
thisallegations of torture. Then they are too shocking to
conscience that due process acquired. that the district court
divest itself of jurisdiction. Activist court. Aware of such
brutality. US SC we view due process of now requiring.. (ruling US
vs toscalino) General rule: male captus bene detectusExcept: when
the arrest or conduct is accompanied with brutality, torture, and
other outrageous conduct.Interestingly in the same year, after
toscalino US vs Muhat still 1974. What happened? He was abducted.
And in the process of abduction he was blindfolded. No infliction
of injuries. Tabunan kag murag isi style. Di na muqualkify as
outrageous conduct? Unsa? Unsa na? para namo ourageous. Pero lain
inyong gihisgutan oi. GIKAN PA NA TAN AW FIFTY SHADES OF GREY SIS.
Ahhhhh! ABI KUG SA VALENTINES DAY KANNG SA SEARCHEE OG SEARCHER
DIBA MAGBLINDFOLD MAN NA. the mere fact na there was abduction, it
will not necesarilly call for application of toscalino. Apparently
with the req of outrageous conduct. Blindfold does not amount to
outrageous conduct. So there must be an amount of physiucal
violence inflicted against the person of the abductee. Ang
blindfold si kung huot kaayu? If butangan sako na d kaginhawa thats
outrageous.sa exam dapat pa iqualify giunsa pag blindfold. Ana bay
aka sir d ka muhatag 10. Burden to establish the presence of
torture. Incumbent upon the accuse although under our consti law.
Uhhm, irregularity of perfeormance of plice may not actually invoke
in cases involving right to freedom. But I think its the accused.We
go to immunity from jurisdiction. 1st part of which we have
doctrine of qualified immunity or those s called restrictive theory
on state immunity that is there is a need to distinguish jus
imperii and jus gestonis. And this immunity from suit is applicable
only when it is governmental function. Revie nature and purpose
test. And also act of state doctr4ine well talk about it. Case of
Hernandez. Ahh courts are barred or any governmental agencies are
barred from passing judgments on any case or acts of other states
because of the principle of co equality. We will tlk about
diplomatic immunity..But first your doctrine of qualified immunity
is just a repeat. Applicable only to jus imperii or governmental
acts but not to jus gestonis . and then in 1 case the following are
enumerated. (SLIDE-LIST)So even in civil proceedings. Ahm the
doctreine of immunity were also applied. Relate in the case of
Pinochet later on. (conversation with American in the plane)This
employee in the hospital in Saudi Arabia exposed some provlems in
the hospital with the on the job hazard. Murag mga safety hazards.
And then govt hospital baya so you are not supposed to directly
announce. (Kwento sa reklamo about low internet and nephews na
nidaku sa US) he was torture by govt police so he filed case. Ang
question karon ang pag operate sa hospital govtal o proprietary so
as to have immunity. Torture is police or law enforers acts.
Assumed that it is conduct of law enforcers. Torure is a technical
word. If gangster ang nagtorure nimo d na torture gitawag. Unsa
man? Hazing? Mauling? You use the ord torture only to law
enfoircers conduct. He was suing man law officials nagtorture. Then
it is not public commercial character therefore immune-
governmental! Another case that apply nature is this argentin
republic vs hess. Not by purpose but by nature. The alleged
offenders were armies ilang gitraget ang mga ships sa liberail corp
in the isi and these were armed attach.something cannot be done by
private person. Phil usually purpose. Us nature.We go to head of
state and diplomatic immunity.
HEAD OF STATE AND DIPLOMATIC IMMUNITY
What is the scope of the immunity of the head of state? Is the
head of State immune from suit? Anyone? What is the international
law on the immunity of the head of State?
Student A: Complete immunity sir even if the acts of the head of
State are in private capacitySir: There must be a reason for that.
Why is it that we adopt the principle of absolute immunity?A: I
think sir so that their purpose will not be impeded ...Sir: There a
term for that - Functional Immunity - so as not to disturb or
prevent the head of state from effectively performing its function
then there should be a rule exempting our head of State from
suit.
Is there a possibility that we can sue the head of State,
nonetheless? Let me clarify. How about a former head of State?
When we say complete immunity, we are referring to incumbency.
Not during term but tenure because when we say during tenure that
is during incumbency. So if sayo siya ni-end sa iya term and dili
na siya nag-sit as head of state, so what's the rule there? If
involves official function of a former head of state then the
immunity continues. But if the act involved is not related to its
function then the case will now prosper. In other words, there is
absolute immunity during incumbency and continue immunity for acts
in performance of his function and no more immunity for acts not in
the performance of his function. That is the reason we are able to
charge Estrada for plunder and now Arroya also for plunder because
committing a crime or plunder is never related to official
function.
There is also dispute as who is actually the head of State in a
particular country for purposes of lawfully invoking immunity from
suit?
This is applicable where the "head of State" is being charged in
another country. What if that country does not recognize that
person as the head of State? Therefore no matter that person invoke
immunity as the head of State but the State prosecuting him for
some crimes will not recognize him as the head of State. That
actually happened in 1997 in the case of United States vs
Noriega.----US v. Noriega-Noriega was abducted to the US and
brought to trial for his involvement in cocaine trafficking.-The
executive branch (George Bush) did not consider Noriega to be the
head of state of Panama, so he did not receive head of State
immunity. The US had recognized instead Delvalle, and later Endara,
as legitimate heads of state of Panama.-----It seems however that
US did not Noriega as the head of Panama. Kani man gud Panama. Wala
ni extradition2x. That's why if you clients who want to plea, you
suggest Panama because no extradition treaty. They have no
extradition treaty but with beautiful ladies. Perfect! (Sir
proceeded with his joke about his partner who went to Panama).Not
recognize, so why should we grant u? Naa sad diay political aspect
ang recognition of the Head of State because if you are not
recognize, it is an issue of de facto and de jure government.
That's the case.That's let take the case again of
Pinochet.----Immunity of Former Head of State in Criminal
ProceedingsPinochetCase:The House of Lords of UK ruled thatthe
absolute prohibition of torture, ajus cogensnorm, overrides
immunity afforded to a former Head of State in criminal
proceedings.The commission of a crime against humanity andjus
cogenscannot be done in an official capacity on behalf of a
State-The House of Lords who determined that Pinochet could be
extradited from Britain to Spain said thatif he were still a head
of state he would be immune from prosecution, even for
torture-Rationale for immunity: To assure heads of state that they
will be able to represent their countries and not have to fight off
suits while traveling abroad.-Pinochet had immunityratione
materiaebut not immunityratione personae(kinds of immunity usually
applied to diplomatic immunity)----
Pinochet, the dictator of Chile. After the dictatorial regime,
he was arrested in England to answer for the torture and killing of
Spanish citizens in Chile during his time. As to torture, his
argument is that he ordered torture and therefore it was official.
So as being former head of State, i cannot be prosecuted for acts
in performance of official function. I ordered the torture as the
head of State. The absolute prohibition of torture, a jus cogens
norm, overrides immunity afforded to a former Head of State in
criminal proceedings. Butangan nato ug criminal proceedings because
in the case of Saudi Arabia, in civil cases, there is international
law yet that bars the application of immunity of head of state for
that matter. you have to take note of that.-----Distinction, must,
however, be made between:Domestic jurisdiction over Head of
Statevs.Jurisdiction of International Criminal Court for
International crimes----because indeed immunity of the head of
State originates from State immunity and is justifed by the
co-equality among states. Therefore, a court of one state cannot
exercise jurisdiction over the person who is the head of another
state. If you are to talk about International Criminal Court, this
does not call for a situation where a domestic subjects another
State to its jurisdiction because this is already international
criminal court. What applies here is of course the principle of
pacta sunt servanda. All states have agreed for those parties to
the ICC that they will abide by the purposes of the Rome Statute.
So jurisdiction of ICC should not be an issue for those who are
parties to the International Criminal Court. No issue on immunity
of head of state here.
---Act of State DoctrineCourts generally will not pass judgment
on the validity of the public and official acts of a foreign
government within its own territory.Rationale for the Act of State
Doctrine: Co-equality among states; respect for sovereignty of
foreign states.--------Underhill v Hernandez, 168 US 250 (1897)
p.619: Every sovereign State is bound to respect the independence
of every other sovereign State, and the courts of one country will
not sit in judgment on the acts of the government of another done
within its own territory. Redress of grievances by reason of such
acts must be obtained through the means open to be availed of by
sovereign powers as between themselves.-----We now go to the
Diplomatic Immunity and Consular Immunity. This is also a perennial
topic in the bar exam.----Inviolability of Premises of Foreign
Diplomatic MissionThe premises of a foreign diplomatic mission are
inviolable and no person, even a member of the government of the
receiving state, may enter the premises without the authority of
the mission. The receiving state has in fact the duty to protect
the mission against intrusion or damage and to prevent disturbances
of the peace of the mission or impairment of its dignity. (Art. 22,
VCDR)----What if police officer in Manila received a report of a
bomb planted inside the US embassy, may Manila police insist on
entering the premises for security purposes? Would that violate the
sovereignty of a State if you prevent law enforcers from preventing
threats to national security or safety to enter the premises?Take
note that inviolability of the Premises in international law is
ABSOLUTE. So no amount of justification of security concern or
whatever. There is only one way wherein the host State or its
official to enter the premises and that is only through CONSENT of
the diplomatic mission. On another point, the bomb threat could be
used as a ploy to justify entry without consent in the premises of
the diplomatic mission and possibility of that happening is not
remote.----Legal Status of Embassies and ConsulatesBasic
Rule:inviolability of premises!-Vienna Convention on Diplomatic
Relations, Article 22:A.Duty of the receiving state torefrain from
entering the premises without the consent of the head of
missionB.Duty of the receiving state toprotect the premises against
any intrusion, damage, disturbance, etc.-States can waive their
inviolability.oWaivers must be express-Theories behind
inviolability of embassies and consulates: extraterritoriality,
representational, and functional necessity.-Article 22 sets out the
negative (not to enter) and positive (to protect) obligations of
the receiving state, including immunity from processes (search,
execution, attachment, etc.)oInviolability extends (a) even in
cases of armed conflict (art. 45), (b) to archives and documents of
the mission (Art. 24), (c) and to the ambassadors residence, papers
and correspondence (art. 30)-Q: Is this inviolability
absolute?-----
There are two obligations: negative and positive.If you remember
the Iran crisis I discussed to you last time, the movie ARGO. The
di ba the only way na-resolve ang crisis is for Ronald Reagan to
negotiate with the hostage takers saying: "Let's put an end on
this, total namatay na man ang head of Iran at the time which they
demand to return, release the hostages and we commit not to
prosecute you". True enough the US did not prosecute the hostage
takers but instead US sued Iran for its failure to protect the
premises against intrusion, damage and disturbance kay in the
video, there's evidence na during rally, nagsaka na gali sa coral,
naa mga police but passively observing the incident. So, there is
violation on the duty to protect the premises.
Indeed there are three theories on this: one is
extraterritoriality because this is an extension governmental
function therefore the diplomatic mission represents the State. The
other one functional necessity as not to disrupt the functioning of
the diplomatic mission. (So that's, extraterritoriality,
representational and functional necessity). In modern international
law, however, it favors functional necessity than the traditional
ones - extraterritoriality and representational.
Please read the Vienna Convention on Diplomatic Relation.
Mao na mga attache case sa diplomat, naa nakatatak, dili na na
tan-awon. That is one source of illegality smuggling jewelry.
Another immunity here.----Non-interference with Missions
official communicationUnder Article 27 of the VCDR, a receiving
state shall permit and protect the free communication on behalf of
the mission forall official purposes. Such official communication
shall not be interfered with. The diplomatic bag shall not be
opened or detained.The use of sniffer dogs and external examination
of the bag is, however, permitted customarily per ILC Draft
Articles. A reasonable suspicion that the bag contains illegal
article will also allow the authorities to have the bag opened in
the presence of a representative of the sending state. The bag,
however, must bear visible external marks of its character and
contain only diplomatic documents or official articles.----(sir,
telling another story about certain sniffing dog which can only
identify certain, not all, contraband)
----
Diplomatic ImmunityDiplomats have personal inviolabilit