pil notes finals

Finals_ReviewerK.Macasieb, JD2

February 8, 2014

XI. International Protection for Human Rights (bernas, Ch. 12)

1. 4 obligations of the states under Torture convention? Criminalize torture Non-refoulment Extradite Prosecute/jurisdiction

Criminalize torture (CAT, Art. 4)

All acts constituting torture are criminal offences, hence shall be punishable by appropriately laws through legislation in accordance with the convention. Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any acts of torture.

Non-refoulment (CAT, Art. 3)

An obligation not to “expel, return (‘refouler’) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture”.

Extradite (CAT, Art. 7) “Aut dedere aut judicare”

In cases where an alleged torturer has been found and the apprehending State does not extradite him or her, article 7 requires that the case be submitted to competent authorities “for the purpose of prosecution”. This aut dedere aut judicare obligation.

Prosecute/jurisdiction (CAT, Art. 5)

Crimes of committed by any person within the territory a state regardless of the nationality or citizenship of the offender or victim. Jurisdiction also applies over acts of torture when committed “in any territory under its jurisdiction or on board a ship or aircraft registered in” a State.

2. What is Aut dedere aut judicare? (Geneva Conventions I. Art. 49, II. Art. 50, III. Art 129 & IV. Art. 146)

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

3. What is torture? Under CAT - An act specifically intended to inflict severe physical or mental pain or suffering to disrupt profoundly the senses or the personality.

Under RA. 9745 "Torture" refers to an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him/her or a third person information or a confession.

4. In Torture, it does not apply to private citizens under the definition of Torture Convention. Only apply to public officials, but in the Philippines, thru Anti-Torture Act RA 9745, Sec. 13. Any Person actually participated including person in authority or its agent. See definition!


5. Extraterritoriality Jurisdiction

Often claimed by States with respect to so-called continuing offenses where the commission of the crime has started in one State and is consummated in another. Under such situation, both states have jurisdiction.

A State has extraterritorial jurisdiction over all crimes regardless of where they are committed or who committed them, whether nationals or non-nationals. This is, however, generally considered as forbidden.

The jurisdiction over an extraterritorial act or attempted act of torture can be exercised if;

(1) The alleged offender is a national of a particular state; or(2) If the alleged offender is present in that particular state, irrespective of the nationality of the victim or alleged offender.

6. Universal Jurisdiction

This principle recognizes that certain activities, universally dangerous to states and their subjects require authority in all community members to punish such acts wherever they may occur, even absent a link between the state and the parties or acts in question.

7. Definition of human rights: Rights which are inalienable and fundamental and essential for life as human beings. Three generations of human rights:

First generation: traditional civil and fundamental rights Second generation: social and economic rights Third generation: right to peace, clean environment, self determination, common

heritage of mankind, development, minority rights.

8. Declaration as distinct from Covenant

International covenant: Meeting of the minds of the contracting parties on specific duties and obligations they intend to assume, and the agreement that the undertakings must be effectively performed. Leaves no doubt about the legal nature of the provisions it contains.

Declaration: Admits the presumption that something less than full effectiveness in terms of law is intended. Dictates moral rules only. There is no vinculum juris in the agreement.

9. Rights guaranteed under Covenant on Economic, Social and Cultural Rights

1. To work2. To favorable conditions of work3. To form free trade unions4. To social security and insurance5. To special assistance for families6. To adequate standard of living7. To the highest standard of physical and mental health8. To education including compulsory primary education; and9. To the enjoyment of cultural and scientific benefits and international contacts.

10. Covenant on Civil and Political Rights – There is no right to property in the Covenant, even if there is one in the Universal Declaration.

11. Torture, Ill-treatment and Prison Conditions: The Covenant prohibits torture and other forms of ill-treatment that offend bodily integrity and personal dignity.


12. Difference between “legal personality” and “capacity to act.”

Legal personality belongs to all, whether citizens or aliens. Capacity to act may not be available to some by reason of infancy, minority, or insanity.

XII. The use of Force in International Law

1. General Principle: International law recognizes the

a. Autonomy of individual statesb. Their right to freedom from coercion and to the integrity of their territory

2. UN Charter Art. 2(4) & 43

UN Charter in Article 2(4) prohibits the use of force in the relations of states by providing that all members of the UN “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.” This mandate does not only outlaw war; it encompasses all threats of and acts of force or violence short of war.

Article 42 – Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

3. The use of force under UN charter is not only regarded as a treaty, but also a customary international law. Nicaragua vs US case! – regarded as practice of the state based on natural law. (See definition of opinion juris and customary law)

Custom or Customary Law – A general and consistent practice of states followed by them from a sense of legal obligation

Opinio Juris—belief that a certain form of behavior is obligatory

4. 3 exceptions to the prohibition against the use of force which the UN Charter allows

1.) Art. 51 – Inherent right of individual or collective self-defense;2.) Art. 42 – Enforcement measure involving the use of armed forces by the UN Security Council;3.) Art. 53 – Enforcement measure by regional arrangement under Article 53, as authorized by the UN Security Council

5. Security Council—has primary responsibility for the maintenance of international peace and security. There are 15 member states, 5 of them are permanent and the others are elected for 2 year terms in accordance with equitable geographic representation

6. 5 permanent security councils. Their significance to any other state members is that if one of these five permanent members refuse or vetoed an act of Security Council, the Security Council cannot act.

7. Self defense! Art. 51 of UN charter (Nicaragua case-memaid)

Article 51 – Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility


of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

The presence of an “armed attack” to justify the exercise of the right of the self-defense under this article suggests that forcible measures may be taken by a state only in the face of “necessity of self-defense, instant, overwhelming and leaving no choice of means and no moment for deliberation.”

Nicaragua case

The exception of the right of individual or collective self-defense is also established in customary law, which Art. 51 refers to an ―inherent right. The Parties agree in holding that whether the response to an attack is lawful depends on the observance of the criteria of necessity and the proportionality of the measures taken in self-defense.

Whether self-defense be individual or collective, it can only be exercised in response to an ―armed attack. There is no ruling permitting the exercise of collective self-defense in the absence of a request by the State which is a victim of the alleged attack, this being additional to the requirement that the State should have declared itself to have been attacked.

8. Traditionally Allowable Coercive Measures

1. Severance of Diplomatic Relations (there is no obligation to maintain diplomatic relations)2. Retorsion (Any forms of counter-measures in response to an unfriendly act)3. Reprisal (Any kind of forcible or coercive acts to exercise a deterrent effect or obtain redress)4. Embargo (State keeps its own vessels for fear that it might find their way in foreign territory)5. Boycott (suspension of trade or business relations with the nationals of an offending State)6. Non-intercourse (Suspension of all commercial intercourse with a State)7. Pacific Blockade (a State prevents access from particular ports or coast of another State)

9. War – defined as an armed contention between the public forces of states or other belligerent communities implying the employment of violence among the parties as a means of enforcing their demands.

However, war may exist even without the use of force as when one states normally refuses to be governed by the laws of peace in its relations with another state.

10. Aggression

Aggression is the use of armed force by a state against the sovereignty or territorial integrity or political independence of another state or in any other manner inconsistence with the UN Charter.

11. Neutrality, when is a state said to be neutral? – A state is said to be neutral if it does not take part directly or indirectly in a war between other states.

To adopt an attitude of impartiality towards the belligerents Such attitude must be recognized by belligerents and creates both rights and duties in

the neutral states Neutrals must not engage in activities which interfere with the activities of the

belligerents

Whether simple or composite, a state is said to be neutralized where its independence and integrity are guaranteed by an international convention on the condition that such state obligates itself never to take up arms against any other state, except for self-defense, or enter into such international obligations as would indirectly involve it in war.


Laws of Neutrality. Ex.

1. must abstain from taking part in the hostilities;2. most acquiesce to restrictions imposed by the rebels, such as visit and search of its merchant ships

12. Neutralization

A state seeks neutralization where it is weak and does not wish to take an active part in international politics. The power that guarantees its neutralization may be motivated either by balance of power considerations or by desire to make the state a buffer between the territories of the great powers.

13. Distinguish neutrality vs neutralization

The most significant difference between these two terms is in terms of time.

Neutrality obtains only during war while neutralization is intended to operate in time of peace as well as in times of war.

Neutrality is dependent solely on the attitude of the neutral state, while neutralization is the result of a treaty.

Neutrality NeutralizationObtains only during war A condition that applies in peace and warA status created under international law, by means of a stand on the part of a state not to side with any of the parties at war

A status created by means of a treaty

Brought about by a unilateral declaration by neutral state

Cannot be effected by unilateral act only but must be recognized by other states.

14. Belligerent – A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing the legitimate government.

NOTE: The belligerent occupant cannot compel the inhabitants to swear allegiance to him.NOTE: Belligerent occupation is different from Military occupation.

15. Conditions for A Belligerent Community to Be Recognized

There must be an organized civil government directing the rebel forces; The rebels must occupy a substantial portion of the territory of the state; The conflict between the legitimate government and the rebels must be serious, making

the outcome uncertain; and The rebels must be willing and able to observe the laws of war.

16. Rights & Duties of a Belligerent Occupant

to continue orderly government to exercise control over the occupied territory and its inhabitants.

17. Can the belligerent occupant impose and collect taxes or contributions? YES, under the Hague Regulations provided;

they must be for the needs of the army or local administration; they can be imposed by written order of the Commander-in-Chief only, in contradistinction

to requisitions which may be demanded by the Commander in a locality; a receipt must be given to each contributor; the levy must be made as far as possible, in accordance with the rules in existence and the

assessment in force for taxes.


February 15, 2014

XIII. Law on armed conflict

1. For an armed conflict to be considered a war, the hostilities should be preceded by a declaration of war or an ultimatum with a fixed limit.

2. Effects of state of war Treaties will be terminated except on treaties on humanitarian law Treaties like geneva conventions, Vienna conventions will apply

3. How do u terminate armed conflict? – Peace treaty

Laws of armed conflict remain in effect until the conflict is terminated, by means of a

a. peace treaty b. in the absence thereof, by declaration made by the combatant states that hostilities have come to an end

4. What is armistice? – suspending war. Ex. South and north Korea, there exist war but suspended.

It is the suspension of all hostilities within a certain area (local) or in the entire region of the war (general) agreed upon by the belligerent governments, usually for the purpose of arranging terms of peace.

Armistice – an agreement to suspend hostilities, whether local or general, does not end the conflict but only puts an end to the active fighting

5. What are the 4 core principles of law on armed conflict? It’s in syllabus!

Distinction Proportionality Unnecessary suffering Military necessity

Distinction (protocol 1, Art. 48)Article 48. BASIC RULE. In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

- distinguish civilian between military combatantso To ensure the proper attack

- Distinguish civilian propertieso To ensure what properties will be attacked

- Military cannot used a weapon that cannot distinguish military combatant between civilian combatant

Proportionality (protocol 1, art 51.5 B & 57.2 B)

Article 51. PROTECTION OF THE CIVILIAN POPULATION. 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances.


Article 51.5 Among others, the following types of attacks are to be considered as indiscriminate:

(b) An attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

Article 57. PRECAUTIONS IN ATTACK

1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.

2. With respect to attacks, the following precautions shall be taken:

(b) An attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated

Unnecessary suffering (protocol 1, art. 35.2 & 6)

METHODS AND MEANS OF WARFAREArticle 35. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

Military necessity (Hague Regulation, Art. 23 g [1907])

Art. 23. In addition to the prohibitions provided by special Conventions, it is especially forbidden;

(g) To destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war;

Doctrine of Military Necessity – A belligerent is justified in resorting to all measures which are indispensable to bring about the complete submission of the enemy, as soon as possible, by means of regulated violence not forbidden by conventional or customary rules of war and with the least possible loss of lives, time and money.

6. How can these principles be violated? Any acts of excess other than those prescribe by the principles causing damages to others which are not part of the war.

7. Killing another who is not party to the war, what principle is violated? Distinction! Because you have to distinguish who should be attacked!

8. The Martens Clause (Geneva Convention III, Art. 142)

Until a complete code of laws of war has been issued, inhabitants & belligerents are protected under the rule on the principles of the law of nations as they result from: usages of civilized people, laws of humanity & public conscience

9. What are the limits, means and method on the conduct of warfare? – see memaid! What principles it covers when there is violation? Proportionality! Protocol 1, Art. 35


Protocol 1, Art. 35

It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.

METHODS OF WARFARE: JUS IN BELLO

The only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of this enemy

This object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable

The Hague Convention prohibits the employment of ―arms, projectiles or material calculated to cause unnecessary suffering

There is a need to balance military necessity and humanitarian consideration

10. What persons or objects may lawfully be attacked? Protocol 1, Art. 48

Article 48. BASIC RULE. The Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

Only military targets are subject to attack by the armed forces of a belligerent as a basic rule of warfare.

11. Civilians directly participating in hostilities? Protocol 1, Art. 51.3

Civilians shall enjoy the protection afforded by this Section, UNLESS and for such time as they take a direct part in hostilities.

12. Reprisal, Protocol 1, Art. 20

Any kind of forcible or coercive measures whereby one State seeks to exercise a deterrent effect or to obtain redress or satisfaction, directly or indirectly, for the consequences of the illegal acts of another State, which has refused to make amends for such illegal conduct.

Acts of vengeance by a belligerent directed against groups of civilians or POWs in retaliation of or response to an attack by other civilians against the belligerent.

13. Treatment of Prisoners and detainees

International (Geneva Convention III, Art. 3-5 and Protocol 1, Art. 75)

Shall be treated humanely Wounded and sick shall be collected and cared for. Shall be informed, in a language he understands, of the reasons why these

measures have been taken Sentence and penalty only upon guilt pronounced by a proper court in

accordance with the procedure Women separated from men's quarters and shall be under the supervision of

women.

Non-International (Geneva Convention common Art. 3, Protocol 1, Art. 75 & Protocol 2)

In case of armed conflict not of an international character, persons should still be accorded a minimum humanitarian protection


Prohibited acts: a. Violence like murder of all kinds, mutilation, cruel treatment and torture b. Taking of hostages c. Outrages on human dignity d. Passing of sentences and carrying out of executions without previous judgment pronounced by a regular court

14. Mercenaries (Geneva Convention III, Art. 4, Protocol 1, Art. 47)

considered as NPC (Non-privileged Combatants) – individuals who take up arms or commit hostile acts against the enemy without belonging to the armed forces or forming part of the irregular forces. If captured, they are not entitled to the status of prisoners of war.

Those who, having been recruited in another country, from military forces for “personal gain,” are not covered by protection.

A mercenary shall not have the right to be a combatant or a prisoner of war. Not a national of a Party to the conflict nor a resident of territory controlled by a Party

to the conflict not a member of the armed forces of a Party to the conflict; and Has not been sent by a State which is not a Party to the conflict on official duty as a

member of its armed forces.

15. Does spy consider POW when captured? NO

Spies – A soldier employing false pretenses or acts through clandestine means to gather information from the enemy. A soldier not wearing uniform during hostilities runs the risk of being treated as a spy and not entitled to prisoner of war status. When caught, they are not to be regarded as prisoners of war. Military Scouts are not spies.

16. Is guerilla warfare recognized as POW when captured and afforded POW treatment? Yes

Under Article 4 of the 1949 Geneva Convention on Prisoners of War, guerilla warfare, which consists in hostilities conducted in territory occupied by the enemy by armed bodies of men who do not form part of an organized army, is recognized. Guerillas are entitled to be treated as prisoners of war provided they fulfill the following conditions:

1) They are commanded by a person responsible for his subordinates;2) They have a fixed distinctive emblem recognizable at a distance;3) They carry arms openly; and4) They conduct their operations in accordance with the laws and custom of war.

17. What is international armed conflict? See protocol 1

Protocol I – International armed conflict includes armed conflicts in which peoples are fighting against

a. Colonial denominationb. Alien occupationc. Racist regimes

Those engaged in such conflict receive combatant status and are entitled to combatant rights

Instead being treated as ordinary criminals when captured, they are treated as prisoners of war

18. What constitute an international armed conflict? Conflict between state vs state.

19. How about non-armed conflict? See protocol II


Protocol II – The first and only international agreement exclusively regulating the conduct of parties in a non-international armed conflict

International armed conflict – that which takes place in the territory of a Contracting Party between its armed forces and dissident armed forces or other organized armed groups which

Material Field of Application:a. Armed dissidents must be under responsible command b. They must ―exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol

20. Who is a prisoners of war? Those who falls in the hands of the enemy who are members of the military of another state. Only when there is war. See reviewers!It includes:

Members of other militias or volunteer groups, including those of organized resistance movements, subject to compliance with certain conditions;

Members of the population of non-occupied territory who take up arms as a levee en masse against an invading army.

21. When POW should be returned – Upon cessation of war or hostilities.

22. No prisoners of war in non-international armed conflict!

23. Protocol I vs Protocol II! (supra) See memaid!

International armed conflict vs non-international armed conflict Protocol I is IAC; Protocol II is NIAC State vs State in IAC; State internal war in NIAC

Protocol II - Non-international armed conflict: Armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized groups under (1) responsible command which (2) exercise control over a particular territory so that they can carry out sustained and concerted military operations (sustained capability to maintain themselves.)

Protocol II applies only when the two elements are present.

Inapplicable to situations of internal disturbances like riots, or such other isolated and sporadic acts of violence, even if armed forces are called to suppress the disorder.

Protocol I: Created a new category of international armed conflict and defines it as “armed conflicts in which people are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination.” Those engaged in such a conflict receive combatant status and are entitled to combatant rights and duties.

24. A prisoner of war can only be detained in a detention exclusive for prisoners of war only under geneva convention. However, a prisoner of war who is also a convict can be detained in a normal prison with other prisoners, he cannot justify that he is a prisoner of war and therefore he cannot be detained in a prison for convict. As long as he is a convict and at the same time prisoner of war, he may be detained in a normal prison like penitentiary.

XIV. International Criminal Law

25. What is international criminal court? Rome Statute Art. 1


a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.

Its provisions, however, require that it be subject to ratification, acceptance or approval of the signatory states.

26. How does ICC acquire jurisdiction over the case? A state signatory to the convention.

Further, under Rome statute, it has original jurisdiction to the most serious crimes of concern to the international community as a whole;

(a) The crime of genocide;(b) Crimes against humanity;(c) War crimes;(d) The crime of aggression.

If the crime was committed on board a vessel or aircraft of the State signatory to the convention

The State of which the person accused of the crime is a national. State declaration to accept the exercise of jurisdiction by the Court with respect to the

crime in question.

27. If a person who’s country is not signatory, can the ICC acquire jurisdiction? Yes, if that person’s act committed in a state which is signatory to the convention.

28. Temporal Jurisdiction – The Court has jurisdiction only with respect to crimes committed after the entry into force of this Statute.

If a State becomes a Party to this Statute after its entry into force, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of this Statute for that State, unless that State has made a declaration under article 12, paragraph 3.

29. Procedure of case in ICC – see memaid and reviewers

Article 14 – referral of a State Party of a situation within the jurisdiction of the Court Article 15 – Prosecutor initiates investigation If the Prosecutor concludes that there is a reasonable basis to proceed with an

investigation, he shall submit to the Pre-Trial Chamber a request for authorization of an investigation.

If the Pre-Trial Chamber, upon examination, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation in accordance with the Rules of Procedure and Evidence.

30. What is the Principle of Complementarity: The court is a court of last resort.

It must await referral of a crime by a state party or by the Security Council. The court cannot act when the local judicial system is able to prosecute. Once a state has taken the initiative to investigate a crime, the ICC cannot intervene. Because of the principle of complementarity, the effective functioning of the court will depend very much on the cooperation of state parties. The crimes over which the ICC has jurisdiction must first be punishable in domestic law.

31. Obedience to order is not excuse when the order is manifestly illegal! Us vs Calley!


XV. Extradition

1. What is extradition?

The delivery of an accused or a convicted individual to the State in whose territory he is alleged to have committed a crime by the State on whose territory the alleged criminal or criminal happens to be at the time.

The surrender of an individual by the state within whose territory he is found to the state under whose laws he is alleged to have committed a crime or to have been convicted of a crime.

o This is a process that is governed by a treatyo Legal right to demand extradition and the correlative duty to surrender a fugitive exist only when created by treatyo Procedure for extradition is normally through diplomatic channels

2. Fundamental Principles Governing Extradition:

a) There is no legal obligation to surrender a fugitive unless there is a treaty.

b) Religious and political offenses are generally not extraditable.

c) A person extradited can be prosecuted by the requesting state only for the crime for which he was extradited; and

d) Unless provided for in a treaty, the crime for which a person is extradited must have been committed in the territory of the requesting state.

3. To whom extradition applies? It applies to;

Those who are merely charged with an offense but have not been brought to trial; to those who have been tried and convicted and have subsequently escaped from custody;

and those who have been convicted in absentia.

It does not apply to persons merely suspected of having committed an offense but against whom no charge has been laid or to a person whose presence is desired as a witness or for obtaining or enforcing a civil judgment.

4. What is the source of extradition? – Treaty! Can a state may just request an extradition? Treaty!

The legal duty to extradite a fugitive from justice is based only on treaty stipulations.

5. What is the nature of an extradition proceeding? Is it akin to a criminal proceeding?

An extradition proceeding is sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused

as guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence

of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited.

Hence, as a rule, constitutional rights that are only relevant to determine the guilt or innocence of an accused cannot be invoked by an extradite.

6. What is the principle of speciality? – a fugitive who is extradited may be tried only for the crime specified in the request for extradition and included in the list of offenses in the treaty!

7. How can a state prosecute someone who’s acts committed is not under the crimes agreed upon to prosecute under a treaty? Consent! Secure the consent of that state!


8. What is the principle of double criminality? See memoaid(hardcopy)! - Act for which the extradition is sought must be punishable in both states!

The principle of double criminality is the rule in extradition which states that for a request to be honored, the crime for which the extradition is requested must be a crime in both the requesting state and the state to which the fugitive fled.

Sometimes called “no list treaty” That the offenses in question should be punishable in both states It should not require that the name of the crime described should be the same in both

countries. It is enough that the particular act charged is a crime in both jurisdictions.

9. Distinguish extradition from deportation? See memoaid(hardcopy)!

Extradition Deportation1. surrender to the requesting state 1. expelling state sends expelled person to any

country that will accept him2. Right arises from treat and it is effected by a request from another country

2. unilateral acts of expelling country

3. Benefit of requesting country – acquire jurisdiction over fugitive

3. expelling state benefits – not conducive ti public goods

10. How was the extradition treaty being applied retroactively? Wright vs CA!

The prohibition against ex post facto law applies only to criminal legislation which affects the substantial rights of the accused. This being so, there is no merit in the contention that the ruling sustaining an extradition treaty’s retroactive application violates the constitutional prohibition against ex post facto laws. The treaty is neither a piece of criminal legislation nor a criminal procedural statute.

The prohibition in Section 22, Article III of the Constitution refers to ex post facto laws. An extradition treaty is not a criminal law.

11. What is Extraditing? The act of extraditing amounts to a "delivery by the State of a person accused or convicted of a crime, to another State within whose territorial jurisdiction, actual or constructive, it was committed and which asks for his surrender with a view to execute justice.

12. What is the procedure of extradition? Memoaid (Hardcopy)

Request through diplomatic representative DFA forwards request to DOJ DOJ files petition for extradition with RTC Judge must study the petition and make a prima facie finding whether they it is

sufficient in compliance with the Extradition Treaty and Law and that the person sought is extraditable

Hearing in accordance with the procedure Appeal to CA within 10 days which decision shall be final and executor Decision shall be forwarded to DFA through DOJ Individual placed at the disposal of the authorities of requesting state costs and

expenses to be shouldered by requesting state.

13. Discuss the Ten Points in Extradition proceedings

1) The ultimate purpose of extradition proceedings is to determine whether the request expressed in the petition, supported by its annexes and the evidence that may be adduced during the hearing of the petition, complies with the Extradition Treaty and Law and whether the person sought is extraditable. The proceedings are intended merely to assist the requesting state in bringing the accused -- or the


fugitive who has illegally escaped -- back to its territory, so that the criminal process may proceed therein.

2) By entering into an extradition treaty, the Philippines is deemed to have reposed its trust in the reliability or soundness of the legal and judicial system of its treaty partner, as well as in the ability and the willingness of the latter to grant basic rights to the accused in the pending criminal case therein.

3) By nature then, extradition proceedings are not equivalent to a criminal case in which guilt or innocence is determined. Consequently, an extradition case is not one in which the constitutional rights of the accused are necessarily available. It is more akin, if at all, to a court’s request to police authorities for the arrest of the accused who is at large or has escaped detention or jumped bail. Having once escaped the jurisdiction of the requesting state, the reasonable prima facie presumption is that the person would escape again if given the opportunity.

4) Immediately upon receipt of the petition for extradition and its supporting documents, the judge shall make a prima facie finding whether the petition is sufficient in form and in substance, whether it complies with the Extradition Treaty and the Law, and whether the person sought is extraditable. The magistrate has discretion to require the petitioner to submit further documentation, or to personally examine the affiants or witnesses. If convinced that a prima facie case exists, the judge immediately issues a warrant for the arrest of the potential extraditee and summons him or her to answer and to appear at scheduled hearing on the petition.

5) After being taken into custody, potential extraditees may apply for bail. Since the applicants have a history of absconding, they have the burden of showing that;

(a) their is no flight risk and no danger to the community; and(b) there exist a special, humanitarian or compelling circumstances. The grounds used by the highest court in the requesting state for the grant of bail therein may be considered, under the principle of reciprocity as a special circumstance.

In extradition cases, bail is not a matter of right; it is subject to judicial discretion in the context of the peculiar facts of each case.

6) Potential extraditees are entitled to the rights to due process and to fundamental fairness. Due process does not always call for a prior opportunity to be heard. A subsequent opportunity to be heard is sufficient due process to the flight risk involved. Indeed, available during the hearings on the petition and the answer is the full chance to be heard and to enjoy fundamental fairness that is compatible with the summary nature of extradition.

7) This Court will always remain a protector of human rights, a bastion of liberty, a bulwark of democracy and the conscience of society. But it is also well aware of the limitations of its authority and of the need for respect for the prerogatives of the other co-equal and co-independent organs of government.

8) We realize that extradition is essentially an executive, not a judicial, responsibility arising out of the presidential power to conduct foreign relations and to implement treaties. Thus, the Executive Department of government has broad discretion in its duty and power of implementation.

9) On the other hand, courts merely perform oversight functions and exercise review authority to prevent the exercise of grave abuse and tyranny. They should not allow contortions, delays and “over-due process” every little step of the way, lest these summary extradition proceedings become not only inutile but also sources of international embarrassment due to our inability to comply in good faith with a treaty partner’s simple request to return a fugitive. Worse our country should not be converted into a dubious haven where fugitives and escapes can unreasonably delay, mummify, mock, frustrate, checkmate and defeat the quest for bilateral justice and international cooperation.


10) At the bottom, extradition proceedings should be conducted with all deliberate speed to determine compliance with the Extradition Treaty and the Law; and while safeguarding basic individual rights, to avoid the legalistic contortions, delays and technicalities that may negate that purpose.

14. Extradition distinguished from criminal proceedings?

Extradition Criminal proceedings1. summary procedure 1. full blown trial2. less stringent standards for evidence 2. proof beyond reasonable doubt3. president has final discretion 3. final & executory judgments

15. What is the quantum of evidence in extradition proceedings? Substantial evidence!

16. Is respondent entitled to bail during the pendency of the Extradition Proceeding? NO! bail is not a matter of right in extradition cases.

The constitutional provision on bail applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.

Exceptions:

Only upon a clear and convincing showing of the following:

1) That, once granted bail, the applicant will not be a flight risk or a danger to the community; and2) That there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition case therein.3) That, the extraditee will abide with all the orders and processes of the extradition court.

17. What is attentat clause? A provision in an extradition treaty that stipulates that the murder of the head of a foreign government or the member of his family should not be considered as POLITICAL OFFENSE.

A state can refuse to extradite if the offense committed is political. But if the offense was assassination of head of a state, it can be extradited under Attentat clause.

18. Predominance or proportionality test - acts that were directly connected to any purely political offense.

XVI. Territory

1. What is territory? Memoaid! (effective & occupation)

Territory in International Law—an area over which a state has effective control

Territory – the fixed portion of the surface of the earth inhabited by the people of the State.

Exact boundaries might be uncertain but there should be a definitive core over which sovereignty is exercised

2. What are the modes of acquiring territory? Define each! See memoaid!

Discovery & Occupation (las palmas case) – critical date! (court may set critical date of occupation or discovery when dates are not exactly stated in the title)

2 REQUISITES: 1. Discovery/Possession; and 2. Effective Occupation


Occupation—acquisition of terra nullius (territory which prior to occupation belonged to no state or which may have been abandoned by a prior occupant)

There is abandonment when occupant leave the territory with the intention of not returning

Discovery of terra nullius is not enough to establish sovereignty; it must be accompanied by effective control

Doctrine of Effective Occupation – Discovery alone gives only an inchoate title; it must be followed within a reasonable time by effective occupation.

Prescription – it requires acquiescence of other state (title defeats prescription)

Prescription—requires effective control and the object is not terra nullius

2 REQUISITES; a. continuous and undisturbed possession; and b. lapse of a period of timeo The required length of effective control is longer than in occupationo May be negated by a demonstrated lack of acquiescence by the prior occupant

Cession — acquisition of territory through treatyo A treaty of cession which is imposed by a conqueror is invalid

Conquest – no longer valid under international law. Already prescribe by UN through the use of force!

o Conquest—taking possession of a territory through armed forceo It is necessary that the war had ended either by treaty or by indication that all resistance had been abandonedo Now, conquest is proscribed by international lawo No territorial acquisition resulting from the use or threat of force shall be recognized as legal

Accretion/ avulsion – sovereignty by operation of nature

o Accretion—gradual increase of territory by the action of natureo Avulsion—sudden change resulting for instance from the action of a volcano

3. Is Contiguity a Mode of Acquisition?

It is impossible to show a rule of positive international law to the effect that islands situated outside the territorial waters should belong to a state from the fact that its territory forms part of the terra firma (Las Palmas Case)

4. Intertemporal Law – Rules in effect at the time of the acquisition should be applied

5. Critical date rule – it is the date by which the rights of the parties to a territorial dispute have so crystallized that what they do afterwards does not affect the legal position.

6. Mode of Losing Territory

1. by abandonment or dereliction2. by cession3. by subjugation4. by revolution and5. by natural causes


7. What are the CHARACTERISTICS OF TERRITORY?

1. Permanent2. Definite/Indicated with Precision. Generally, the territory’s limits define the State’s jurisdiction3. Big enough to sustain the population4. Not so extensive as to be difficult to: a. Administer; and b. Defend from external aggression

8. What are the Components of Territory. Territory of the State Consists of the Following:

1. Terrestrial Domain – Refers to the land mass which may integrate, or dismembered, or partly bounded by water, or consists of one whole island. It may also be composed of several islands, like the Philippines and Indonesia, which are known as mid-ocean archipelagoes.

2. Maritime and Fluvial Domain – consists off the bodies of water within the land mass and the waters adjacent to the coasts of the state up to a specified limit. Ex. Rivers and Bays

3. Aerial Domain – described as the belt of waters adjacent to the coasts of the state, excluding the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction.

9. Mere discovery gives only an Inchoate Right of Discovery. What is the effect of this right?

It bars other states, within a reasonable time, from entering the territory, so that the discovering state may establish a settlement therein an commence administration and occupation. Once the discovering state begins exercising sovereign rights over the territory, the inchoate right ripens and is perfected into a full title

10. What if the discovering state fails to exercise sovereign rights? The inchoate title is extinguished, and the territory becomes terra nullius again. How is this done and effected?

Possession must be claimed on behalf of the State represented by the discoverer. It may then be effected through a formal proclamation and the symbolic act of raising the state’s national flag.

11. What is airspace? Memaid!

Each state has exclusive jurisdiction over the air space above its territory Sovereignty over airspace extends only until where outer space begins Consent for transit must be obtained from the subjacent nation State Aircraft—aircraft used in military, customs and police services No state aircraft of a contracting State shall fly over the territory of another State or

land thereon without authorization by special agreement or otherwise, and in accordance with the terms thereof.‖ (Art. 3[a] of Chicago Convention on International Civil Aviation)

Aircraft must not only not be attacked unless there is reason to suspect that the aircraft is a real threat but also that a warning to land or change course must be given before it is attacked (Lissitzyn)

Civilian aircraft should never be attacked

12. What is OUTERSPACE?

Outer space, wherever that might be, and celestial bodies, are not susceptible to appropriation by any state

The Moon and other celestial bodies shall be used by all State Parties to the Treaty exclusively for peaceful purposes.‖ (1967 Treaty on the Exploration and Use of Outer Space)


13. What is effectivitei? effectivites refer to "the conduct of the administrative authorities as proof of the effective exercise of territorial jurisdiction in the region during the colonial period"

– its effectivités would in any event have displaced any such Netherlands title by virtue of continuous peaceful possession and administration, without objection from Indonesia or its predecessors in title

March 15, 2014

XVII. Law of the Sea

1. What is archipelagic state?

o An archipelagic state may designate sea lanes and air routes thereabove, suitable for the continuous and expeditious passage of foreign ships and aircraft through or over its archipelagic waters and the adjacent territorial sea

2. What is archipelagic waters? Internal waters + waters in between islands as enclosed by the use of the straight baseline method. These are called archipelagic waters.

o The concept of the archipelagic waters is similar to the concept of internal waters under the Constitution of the Philippines, and removes straits connecting these waters with the economic zone or high sea from the rights of foreign vessels to transit passage for international navigation

3. Internal Waters

These are bodies of water within the land boundaries of a State, or are closely linked to its land domain, such that they are considered as legally equivalent to national land. It includes:

Rivers lakes and land-locked seas canals polar regions.

In defining the internal waters of the archipelago, straight baselines should be drawn to connect appropriate points of the outermost islands without departing radically from the general direction of the coast so that the entire archipelago shall be encompassed as one whole territory.

4. Distinction between the territorial sea and the internal waters of the Philippines

Territorial water is defined by historic right or treaty limits while internal water is defined by the archipelago doctrine. The territorial waters, as defined in UNCLOS, has a uniform breadth of 12 miles measured from the lower water mark of the coast; while the outermost points of our archipelago which are connected with baselines and all waters comprised therein are regarded as internal waters.

5. Magallona vs Executive Secretary

Conversion of internal waters into archipelagic waters will not risk the Philippines because an archipelagic State has sovereign power that extends to the waters enclosed by the archipelagic baselines, regardless of their depth or distance from the coast.

6. Contiguous Zone – a protective jurisdiction extending beyond the territorial sea. It is an area of water not exceeding 24 nautical miles from the baseline. It exceeds 12nm from the edge of the territorial sea. It is necessary to:

1. Prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea; and


2. Punish infringement of the above regulations within its territory or territorial sea.

However, the power of control given to the littoral state does not change the nature of the waters

Beyond the territorial sea, considered as part of the high seas and are not subject to the sovereignty of the coastal state

7. Exclusive Economic Zone (EEZ) or Patrimonial Sea – extends 200 nautical miles from the coast or the baselines. All living and non-living resources found therein are claimed to belong exclusively to the coastal state. The coastal State exercises sovereign rights over all the economic resources of the sea, seabed and subsoil

Rights of other States in the EEZ

(a) Freedom of navigation and overflight(b) Freedom to lay submarine cables and pipelines(c) Freedom to engage in other internationally lawful uses of the sea related to said functions

8. Two Primary Obligations of Coastal States under EEZ:

1. They must ensure through proper conservation and management measures that the living sources of the EEZ are not subjected to over exploitation2. They must promote the objective of ―optimum utilization of the living sources

9. Distinguish briefly but clearly between the contiguous zone and exclusive economic zone

The contiguous zone is the area which is known as the protective jurisdiction and starts from 12th nautical mile from low water mark (baseline), while the EEZ is the area which ends at the 200th nautical mile from the baseline.

In the latter, no state really has exclusive ownership of it but the state which has a valid claim on it according to the UNCLOS has the right to explore and exploit its natural resources; while in the former the coastal state may exercise the control necessary to;

Prevent infringement of its customs, Fiscal immigration Sanitary regulations within its territory Punish infringement of the above regulations within its territory or territorial sea.

10. Rights of Coastal state

Custom Fiscal Sanitation Immigration

11. Enumerate the rights of the coastal state in the exclusive economic zone. The following are the rights of the coastal state in the exclusive economic zone:

1. rights to explore and manage the living and nonliving resources;2. right with respect to establishment and use of artificial islands;4. right as to protection and preservation of the marine environment; and5. right over marine scientific research6. other rights and duties provided for in the Law of the Sea Convention.


12. Continental shelf – refers to;

a) the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 meters, or beyond that limit, to where the depth of superjacent waters admits the of the exploitation of the natural resources of the said areas; and

b) to the seabed and subsoil of similar areas adjacent to the coasts of islands.

The coastal state has the sovereign right to explore the continental shelf and to exploit its natural resources and for this purpose it may erect on it such installations and equipment as may be necessary.

But this right shall not affect the legal nature of the superjacent waters as open seas or of the airspace above such waters and their use as such by other states shall not be impaired or disturbed.

Coastal state has the right to explore and exploit its natural resources, to erect installations as needed and to erect a safety zone over its installations with a radius of 500m.

This application does not affect the right of navigation of others. Moreover, the right does not extend to non-resource material on the shelf area such as wrecked ship and their cargoes.

13. What is the High Seas – all parts of the sea that are not included in the territorial sea or in the internal waters of a state

14. What are the freedom of high seas? See memoaid!

Freedom of navigation Freedom of overflight (belonging to both civil and State aircraft) Freedom of fishing Freedom to lay submarine cables and pipelines Freedom to construct artificial islands and structures Freedom of scientific research

15. What is Right of Innocent Passage?

The right of continuous and expeditious navigation of a foreign shop through a State’s territorial sea for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside the internal waters, or proceeding to or from internal waters or a call at such roadstead or port facility.

Innocent passage means the right of continuous and expeditious navigation of a foreign ship through the territorial sea of a State for the purpose of traversing that sea without entering the internal waters or calling at a roadstead or port facility outside internal water or proceeding to or from internal waters or a call at such roadstead or port facility. The passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.

Coastal states have the unilateral right to verify the innocent character of passage, and it may take the necessary steps to prevent passage that it determines to be not innocent

16. When is passage innocent? When it is not prejudicial to the peace, good order, or security of the coastal State

17. The right of innocent passage can be exercised where? Territorial Sea & Archipelagic waters!


18. What are the acts that can be considered prejudicial to the rights of innocent passage? Art. 19 UNCLOS!

Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;(b) any exercise or practice with weapons of any kind;(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;(d) any act of propaganda aimed at affecting the defence or security of the coastal State;(e) the launching, landing or taking on board of any aircraft;(f) the launching, landing or taking on board of any military device;(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;(h) any act of wilful and serious pollution contrary to this Convention;(i) any fishing activities;(j) the carrying out of research or survey activities;(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;(l) any other activity not having a direct bearing on passage.

19. Extent and Limitations of Right of Innocent Passage

Extends to ALL ships – merchant and warships Submarines must navigate on the surface and show their flag Nuclear-powered ships, ships carrying nuclear and dangerous substances must carry

documents and observe special safety measures

20. What is territorial Sea?

Territorial Sea – described as the belt of waters adjacent to the coasts of the state, excluding the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction.

waters that are legally part of the internal waters of the State portion of the open sea adjacent to the State’s shores, over which that State exercises

jurisdictional control

21. What is the extent of the territorial sea? 1982 UNCLOS Sea provides the maximum limit of 12 nautical miles from the baseline.

However, where the application of the 12-mile rule to neighboring littoral states would result in overlapping the rule is that the dividing line is the median line equidistant from the opposite baselines

Equidistance rule does not apply where historic title or other special circumstances require a different measurement

22. What is the baseline? How it was determine? 2 ways! See memoaid! Baselines – the low-water line along the coast as marked on large scale charts officially recognized by the coastal State

Two ways of drawing the Baseline:

1. Normal baseline – one drawn following the low-water line along the coast as marked on large scale charts officially recognized by the coastal State


This line follows the curvatures of the coast and therefore would normally not consist of straight lines

2. Straight baseline – drawn connecting selected points on the coast without appreciable departure from the general shape of the coast

Most archipelagic states use straight baselines Art. 47 of the Convention on the Law of the Sea – the length of such baseline shall not

exceed 100 nautical miles, except that up to 3% of the total number of baselines enclosing any archipelago may exceed that length up to a maximum length of 125 nautical miles

23. Flag State – the State whose nationality (ship’s registration) the ship possesses, for it is nationality which gives the right to fly a country’s flag.

The flag state has jurisdiction over its public vessels at all times, whether they be in its own territory, in the territory of other states or on the open seas.

Civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels wherever they may be, provided they are not engaged in commerce.

24. Flag of convenience – registration of any ship in return for a payment fee

25. Distinguish the flag state and the flag of convenience

Flag state means a ship has the nationality of the flag state it flies, but there must be a genuine link between the state and the ship. (UNCLOS, Art. 91)

Flag of convenience refers to a state with which a vessel is registered for various reasons such as low or non-existent taxation or low operating costs although the ship has no genuine link with that state.

26. Western Philippine Sea

pil notes finals

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