CHAPTER 14  Measures taken by Members in the exercise of this

Use of Force Short of War right of self-defense shall be immediately reported to

the Security Council and shall not in any way affect the
What is the basic principle found in the UN Charter with authority and responsibility of the Security Council
respect to the recognition of the autonomy of individual under the present Charter to take at any time such
states and their right to freedom from coercion and to action as it deems necessary in order to maintain or
the integrity of their territory? restore international peace and security. (Bernas,
 Article 2(4) provides that, “All Members shall refrain in 2009)
their international relations from the threat or use of
force against the territorial integrity or political What are the limitations to the exercise of the right to
independence of any state, or in any other manner individual or collective self-defense?
inconsistent with the Purposes of the United Nations”. 1) whether self-defense be individual or collective, it can
(Bernas, 2009) only be exercised in response to an “armed attack”
 This same provision is considered the legal prohibition which shall include not merely action by regular armed
against the use of force in International Law. forces across an international border, but also the
(Sarmiento, 2007). sending by a State of armed bands on to the territory
of another State, if such an operation, because of its
Does Article 2(4) of the UN Charter absolutely outlaw scale and effects, would have been classified as an
the threat or use of force outside the UN Charter? armed attack had it been carried out by regular armed
There are two conflicting views on this matter: forces
2) collective self-defense cannot also be exercised in the
a) The Restrictive View, which is based on interpretation absence of a request by the State which is a victim of
of the principles underlying Article 2(4) of the UN the alleged attack this being additional to the
Charter. Its proponents claim that Article 2(4) was requirement that the State in question should have
written with the view of abolishing war entirely. declared itself to have been attacked. (Ibid)
b) The Qualified Prohibition View, which is based on
the plain meaning of Article 2(4). Its proponents argue What are the requisites of self-defense under Article 51
that Article 2(4) only prohibits certain end results, i.e. of the UN Charter?
when force is used against the territorial integrity or 1) an armed attack occurred against a member of the UN;
political independence of any state. 2) It must be “confined to cases in which the necessity of
that self-defense is instant, overwhelming, and leaving
What is the nature of the prohibition of the use of force no choice of means, and no moment for deliberation”;
as an international law? 3) The measures taken “must be limited by that necessity
 The prohibition is not just conventional law. It is a and kept clearly within it”
customary international law. (Bernas, 2009) 4) The right of self-defense must give way to measures
that may be taken by the Security Council to maintain
Is the threat of force also prohibited by the UN Charter? international peace and security. (Sarmiento, 2007)
 In the discussion by the ICJ in the case of the Legality
of the Threat or Use of Nuclear Weapons, it declared What are the requirements of “necessity and
that, “The notions of ‘threat’ and ‘use’ of force under proportionality” in self-defense?
Article 2, paragraph 4 stands together in the sense that  They embody the requirements for a valid act of self-
if the use of force itself in a given case is illegal – for defense as formulated by US Secretary of State Daniel
whatever reason - the threat to use such force will Webster in his letter in the Caroline Incident. According
likewise be illegal…” to him, self-defense was to “be confined to cases in
which the necessity of that self-defense is instant,
What are the two considered exceptions to the general overwhelming, and leaving no choice of means, and no
prohibition of the use of force in Art.2, par. 4 of the UN moment for deliberation” and that such actions justified
Charter? by that necessity ”must be limited by that necessity and
1) Article 51 where the Charter recognizes the inherent kept clearly within it.
right of individual or collective self-defense if an armed  These requirements apply whether a state is acting in
attack occurs; self-defense against an attack which has already
2) Article 42, whereby the Security Council may take occurred or acting in anticipatory self-defense.
military enforcement measures in conformity with (Malone, 148
Chapter VII of the Chapter. (Sarmiento, 2007)  These requirements were affirmed by the ICJ in its
decision in Nicaragua vs. US, June 27, 1986. (Ibid)
Does the general prohibition of the use of force
preclude the right to self-defense? What is the right of collective self-defense?
 Article 51 provides that the Charter shall not impair the  If the state is entitled to use force in self-defense under
inherent right of individual or collective self-defense if Article 51, other states are entitled to come to the
an armed attack occurs against a Member of the UN, defense of the attacked state in collective self-defense.
until the Security Council has taken measures This right exists independently of the existence of a
necessary to maintain international peace and security.

1
 mutual defense treaty between the attacked state and c) demonstrations;
the other states which come to its defense. d) blockade; and
e) other operations by air, sea or land forces.
May a state exercise the collective right of self-defense
without an explicit request for assistance from the state What is severance of diplomatic relations?
on whose behalf the right is to be exercised?  Before resorting to one or other of the various forms of
 In Nicaragua vs US, the ICJ concluded that the US was coercion, it was common for governments to break off
not entitled to come to the defense of El Salvador, diplomatic relations with the offending state by recalling
Honduras, and Costa Rica because at that time it had their public ministers resident at the foreign capital.
not been requested to do so. It held that the exercise However, this measure was not in itself a form of
of the right of collective self-defense presupposes that forcible procedure, but rather to serve as a warning that
an armed attack has occurred; and the victim state the issue between the two states had reached a point
draws general attention to its plight and finally, the where the injured party regarded normal diplomatic
victim state makes an express request to other states relations as no longer compatible with the conduct of
to come to its help. the other state, and that sterner measures might
possibly follow. (Fenwick, 531 as cited in Sarmiento,
Is anticipatory self-defense allowed? 2007)
 Opinion on the subject is divided. Those who claim the  Severance should be distinguished from suspension of
existence of the right say that the phrase “if an armed diplomatic relations. Suspension involves withdrawal
attack occurs” is not exclusive which is reminiscent of of diplomatic representation but not of consular
the view that protection of “vital interests” justifies the representation. (Bernas, 2009)
use of force
 In practical terms, however, states do not invoke the What is non-intercourse?
right because they are afraid that it might be used  It consists of suspension of all commercial intercourse
against them too. with a state.

What are the other measures of redress short of war What is retorsion?
that are used by states?  It is any action taken in “retaliation where the acts
a) severance of diplomatic relations complained of do not constitute a legal ground of
b) non intercourse offense but are rather in the nature of unfriendly acts
c) retorsion; but indirectly hurtful to other states.” (Fenwick, 532 as
d) embargo; cited in Cruz, 2000) The act of retaliation is also
e) reprisals unfriendly but not illegal and may be in kind or of a
f) display of force; different nature than the act that provoked it. Examples
g) pacific blockade of retorsions are severance of diplomatic or consular
h) armed intervention without war; relations, suspension of commercial intercourse,
i) international organizational sanctions. (Sarmiento, boycott, stoppage of travel to the other state,
2007) denunciation of treaties, imposition of higher tariffs and
other trade barriers, currency restrictions, denial of
Are these methods short of war allowed under loans and withdrawal of privileges previously enjoyed,
International Law? recognition of a rival government, and adverse
 With the adoption of the UN Charter, all measures short propaganda.
of war that involves the threat or use of force against  Other author describes it as any of the forms of
the territorial jurisdiction or political independence of counter-measures in response to an unfriendly act.
any state or in any other manner inconsistent with the Forms of retorsion include shutting of ports to vessels
purposes of the UN are no longer allowed. (UN of an unfriendly state, revocation of tariff concessions
Charter Art. 2[4]) not guaranteed by treaty, or a display of naval forces
 All members of the UN shall settle their international near the waters of an unfriendly state. (Bernas, 2009)
disputes by peaceful means in such a manner that
international peace and security, and justice, are not Is retorsion valid under International Law?
endangered. (Ibid, Art. 2[3])  As long as retorsion does not involve the threat or use
 However, this is without prejudice to the authority of the of force, it is valid under International law. (Sarmiento,
Security Council under Chapter VII of the UN Charter 2007)
to decide what measures are to be employed to give
effect to its decisions, and it may call upon the What are reprisals?
Members of the UN to apply such measures which may  They are an act of self-help on the part of the injured
include: state, responding after an unsatisfied demand to an act
a) complete or partial interruption of economic contrary to international law on the part of the
relations and of rail, sea, air, postal, offending state. They have the effect of suspending
telegraphic, radio, and other means of momentarily in the relations of the two states the
communication; observance of this or that rule of international law.
b) the severance of diplomatic relations; They are limited by the experience of humanity and the

2
 rules of good faith, applicable in the relation of state of war), except in the event that the redress for injuries
with state. suffered should be finally refused. (Fenwick, 534 cited
 They would be illegal if a previous act contrary to in Sarmiento, 2007)
international law had not furnished the reason for them.  This can consist of seizure of vessels even in the high
They aim to impose on the offending state reparation seas. It might also be pacific, as when a state keeps
for Arbitration, Portuguese-German Arbitral Tribunal, its own vessels for fear that it might find their way in
1928 as cited in Cruz, 2000 foreign territory. There can also be collective embargo,
 Justice Cruz enumerated the more common forms of e.g. on import of drugs or of oil. (Bernas, 2009)
reprisals as to include
a) display of force, as when the US Mediterranean What is boycott? Does it constitute a violation of IL?
Fleet proceeded to and deployed along the coasts  It is a concerted action undertaken by the citizens of
of Turkey in 1903 pending compliance with the one state to suspend trade and business relations with
demand for the return of an American national the citizens of the offending state. So long as the
kidnapped by a Turkish bandit; boycott is a purely voluntary act on the part of the
b) occupation of territory, as when Italy seized the citizens acting individually or in concert, it is a measure
Greek island of Corfu in 1923 for the murder of that falls outside of the scope of IL. But if any element
certain Italian officers in Greece; of governmental pressure, or even of governmental
c) embargo or the detention by the state seeking persuasion should enter into boycott, there would be
redress of the vessels of the offending state or its ground for protest by the foreign government.
nationals, whether such vessels are found in the (Fenwick, 535 cited in Sarmiento, 2007
territory of the former or on the high seas, as  It is a form of reprisal which consists of suspension of
illustrated by the action taken by Holland against trade or business relations with the nationals of an
Venezuela in 1908; offending state. Some claim that this is a form of
d) pacific blockade, by which the vessels of the economic aggression which should be prohibited by
offending state are prevented from entering or law. (Bernas, 2009)
leaving its ports by the ships of the state seeking
redress, as was done by the Great Powers against What is blockade?
Greece in 1886 to dissuade it from going to war  It is any effort to cut off all maritime commerce between
against Turkey. (2000) an enemy state and the rest of the world. The purpose
was not only to prevent goods from reaching the
When is act of reprisal legitimate? enemy but also to prevent the enemy from exporting to
 In the Naulilaa Arbitration Case (Portugal vs Germany), the outside world and thereby sustaining its war
2 RIAA 1011(1928), the Versailles Swiss arbitral panel economy. (Sarmiento, 2007)
laid down three conditions for the legitimacy of
reprisals: What three things must be specified in a declaration of
a) there must have been an illegal action on the part blockade?
of the other state;  Article 9 of the 1909 Declaration of London concerning
b) they must be preceded by a request for redress of Laws of Naval War enumerates the things that a
the wrong, for the necessity of resorting to force declaration of blockade must specify:
cannot be established if the possibility of obtaining a) the date when the blockade begins;
redress by other means is not even explored; b) the geographical limits of the coastline under
c) the measures adopted must not be excessive, in blockade;
the sense of being out of all proportion to the c) the period within which neutral vessels may come
vocation received. (Sarmiento, 2007) out.

In the present state of IL, may reprisals still be held Is blockade lawful in international law?
legitimate?  A blockade is lawful if made upon the order or authority
 Since the Kellog-Briand Pact of 1928 (Pact of Paris) all of the UN Security Council pursuant to Article 42 of the
forms of reprisals which may involve the use of force UN Charter, that is, as a measure to maintain or restore
are no longer legal. Article 2 of the Pact states that “the international peace and security. Otherwise, if not
settlement or solution of all disputes or conflicts of authorized by the Security Council, then it will fall under
whatever nature or of whatever origin they may be shall the UN Charter’s general prohibition against the use of
never be sought except by pacific means.” This force under Article 2(4). (Ibid)
prohibition was reaffirmed by the UN Charter, Art. 2
[3,4]. In the event that none of the above-discussed methods
succeeds in settling the dispute, or even if they are not
What is embargo? employed, may the UN be asked or decide on its own
 It is the prohibition of commerce and trade with the authority to take a hand in the settlement?
offending state. Laying an embargo upon all vessels  Yes, this task is addressed principally to the Security
of the offending state that happen at the time to be in council but may, when the occasion requires, be taken
the ports of the state seeking redress does not over by the General Assembly under proper conditions.
contemplate confiscation (which is considered an act (Cruz, 2000)

3
What disputes are within the Security Council’s relating to its military requirements for the maintenance
jurisdiction? of international peace and security, the employment
a) all disputes affecting international peace and and command of forces placed at its disposal, the
security (UN Charter Arts. 24, 34) regulation of armaments, and possible disarmament. It
b) all disputes which, although coming under the shall also be responsible under the SC for the strategic
“domestic jurisdiction clause,” have been direction of any armed forces placed at the disposal of
submitted to it by the parties for settlement (Ibid, the said Council (Art 47). (Cruz, 2000)
Article 2) (Cruz, 2000)
What is “Uniting for Peace Resolution”?
How may such disputes be brought to the attention of  This provides that “if the Security Council, because of
the SC? lack of unanimity of the permanent members, fails to
a) by the SC itself, on its own motion (Ibid, Art.39); exercise its primary responsibility for the maintenance
b) by the GA (Arts 10 & 11); of peace and security in any case where there appears
c) by the Secretary General (Art. 99); to be threat to the peace, breach of peace, or act of
d) by any member of the UN (Art. 35); aggression, the General Assembly shall consider the
e) by any party to the dispute, provided that in the matter immediately with a view to making
case of non-members of the UN, they should recommendations to the members for collective
accept in advance, for purposes of the dispute, the measures, including in the case of breach of the peace
obligations of pacific settlement under the Charter. or act of aggression, the use of armed forces when
(Arts. 35 & 37) (Cruz, 2000) necessary, to maintain or restore international peace
and security.” (Ibid)
What are the steps under the UN Charter that shall be
taken by the SC in settling disputes brought to its What if the GA is not in session at the time?
attention?  The GA may meet in emergency special session within
1) when it deems necessary, call on the parties to settle 24 hours of the request therefor either by any nine
the dispute by any peaceful means in their own choice members of the SC or by a majority of the members of
(Art 33) the UN.
2) in case the parties are unable to adjust their differences  Conformably to this resolution, the General Assembly
by themselves through the peaceful methods on November 4, 1956, provided for the establishment
suggested, it may recommend appropriate measures of an international “police force” under the UN
or methods of adjustment, taking into consideration: a) command to supervise the area involved in the Suez
any amicable measures already adopted by the Canal crisis, in which two of the permanent members
parties; and b) that legal disputes should as a rule be of the SC were directly involved. (Cruz, 2000)
referred to the ICJ (Art. 36);
3) if the above measures prove unavailing, then it may Distinguish enforcement action from peacekeeping
recommend such actual terms of settlement as it may forces?
consider appropriate (Art 36) which is in the nature of  Enforcement action involving deployment of troops
a compulsory settlement of the dispute which the differs from peacekeeping forces in that enforcement
parties are under obligation to abide by in the interest action is imposed without the consent of the state
of international peace and security. against which such action is directed, while
4) Finally, where the terms of settlement are rejected by peacekeeping forces are deployed with the consent of
any of the parties, it is empowered to take more drastic the state concerned like the first United nations
steps which include: Emergency Forces (UNEF 1) which was deployed by
4.1) preventive action which consists of measures not the GA with the consent of Egypt in 1956 and the
involving the use of armed force, such as ONUC (Operation des Nations Unies au Congo) which
complete or partial interruption of economic was deployed by the SC in 1960 with the consent of
relations and of rail, sea air, postal, telegraphic, Congolese government during the Congolese civil war.
radio and other means of communication, and (Malone, 144-145 cited in Sarmiento, 2007).
severance of diplomatic relations (Art 41);
4.2) enforcement action which may be taken if the Is the preservation and maintenance of international
above measures would be or have proved peace and security the “exclusive” responsibility of the
inadequate, or such action by air, sea or land SC?
forces as may be necessary to maintain or restore  No, the preservation and maintenance of international
international peace and security. It may include peace and security is the “primary”, but not the
demonstrations, blockades, and other operations “exclusive,” responsibility of the SC. (Certain Expenses
by air, sea, or land forces of members of the UN Case)
(Art 41). (Cruz, 2000)  The preservation and maintenance of international
peace and security is the obligation of all members of
What is the Military Staff Committee? the UN and the responsibility of the Organization itself,
 It consists of the chiefs of staff of the permanent which must be discharged primarily through the SC
members of the SC or their representatives. It is and secondarily through the GA. (Sarmiento, 2007)
supposed to advise and assist the SC on all questions

4
Is protection of nationals abroad an aspect of the right Did early international law consider war as unlawful?
to self-defense in Article 51?  No. Early international law did not consider as unlawful
 Though the legitimacy of such intervention is not firmly a war waged to gain political or other advantages over
established in international law, the proponents believe another. In fact, war was in law a natural function of
that such position can be defended since population is the State and a prerogative of its uncontrolled
an essential element of statehood. Others argue that sovereignty. (Hyde, 1922 cited in Bernas, 2009)
Article 2(4) does not prohibit it because it does not
compromise the “territorial integrity or political Prior to World War II, what were the early attempts to
independence” of a state. outlaw war?
 Examples of forcible rescue of nationals are the raid of  Early attempts to outlaw war were found inHague
Entebee in Uganda and the US intrusion into Convention II in 1907, Covenant of the League of
Stanleyville to rescue American students. (Bernas, Nations (1919), and in the Kellog-Briand Pact for the
2009) Renunciation of War (1928). (Ibid)

When is “humanitarian intervention” permissible? What law formulated after the Second World War was
1) If the SC determines that massive violations of human considered more effective in preventing war?
rights occurring within a country constitute a threat to  The UN Charter which provides:“ All Members shall
the peace; and refrain, in their international relations, from the threat
or use of force against the territorial integrity or political
SC then calls for or authorizes an enforcement action to put independence of any state, or in any other manner
an end to these violations. (Ibid) inconsistent with the Purposes of the United Nations.”
Art 2(4) (Ibid)
What is intervention in international law?
 Justice Cruz includes intervention along with retorsions How can the paradox that despite the prohibition of
and reprisals in the hostile methods of settling armed conflict, there is the proliferation of laws of war,
international disputes. be explained?
 It is defined as an act by which a state interferes with Three facts can explain the paradox:
the domestic or foreign affairs of another state or states 1) Those who resort to the use of arms do not give up until
through the employment of force or threat of force. they have achieved victory;
Such force may be physical or, in the present state of 2) Given the first fact, humanitarian consideration dictates
world affairs, even political or economic. Lacking such the need for rules which curtail violence beyond what
pressure, the involvement of a state in the affairs of is necessary to achieve a state’s goal; and
another, even if unsolicited, cannot be considered 3) There still remains in the hearts of the soldiery an
intervention acceptance of chivalry as a value. (Ibid)
 Intervention is not sanctioned in international relations
except only when it is exercised as an act of self- What were the provisions of the Hague Law?
defense or when it is decreed by the SC as a  The Conventions and Declaration in 1899 and the
preventive or enforcement action for the maintenance conferences held in 1907 produced principles that
of international peace and security. Other others add constitute that part of the law of armed conflict still
as exception if intervention is agreed upon in a treaty. known as the Law of the Hague governing land and
Intervention may also be allowed when requested from naval warfare. Principles governing the conduct of air
sister states or from the UN by the parties to a dispute warfare were to follow later.
or by a state beset by rebellion. (Cruz, 2000)
What do Geneva Conventions of 1949 provide?
CHAPTER 15 There are four Geneva “Red Cross” Conventions which
The Law of War (International Humanitarian Law) consist of the following:
1) I – Wounded and Sick in the Field;
What is International Humanitarian Law? 2) II - Wounded, Sick and Shipwrecked at Sea;
 It used to be known as Laws of War which provides for 3) III - Prisoners of War;
instances when the use of armed force is justifiable (jus 4) IV – Civilians
ad bellum) and it regulates the conduct of armed The essence of the Geneva Conventions is that persons
conflict (jus in bello). (Bernas, 2009) not actively engaged in warfare should be treated
 It is a set of rules which seeks, for humanitarian humanely. The rules apply to any international armed
reasons, to limit the effects of armed conflict. It conflict, whether a declared war or not. (Ibid)
protects persons who are not or are no longer
participating in the hostilities and restricts the means How are non-parties to these Conventions bound by
and methods of warfare. (ICRC Fact Sheet, What is them?
International Humanitarian Law cited in Sarmiento,  Since much of what are embodied in the Hague and
2007) Geneva Conventions are customary law, non-parties to
the Convention are covered by the customary law of
armed conflict. It has become common practice when
one of the parties to the conflict is not a party to the

5
 conventions for such party to make a declaration that it 5) Enemy public property found in the territory of the other
will abide by the terms of the Convention. (Ibid) belligerent at the outbreak of hostilities is, with certain
exceptions, subject to confiscation. Enemy private
What are the three statements of the ICRC which sum property may be sequestered, subject to return,
up the basic rules governing armed conflicts? reimbursement or other disposition after the war in
1) Soldier’s Rules; accordance with the treaty of peace. (Ibid)
2) Fundamental Rules of International Humanitarian Law
Applicable to Armed Conflicts; and Who are combatants?
3) Non-international Armed Conflicts The following are regarded as combatants:
1) the members of the armed forces, whether pertaining
How are the agreements or conventions on the laws of to the army, the navy or the air force, except those not
war enforced? actively engaged in combat, such as chaplains and
The commonly accepted sanctions are: medical personnel;
1) protest lodged by one belligerent, usually 2) the irregular forces, such as the francstireurs or the
accompanied or followed by an appeal to world opinion guerillas, provided, that: a) they are commanded by a
against the unlawful acts of warfare committed by the person responsible for his subordinates; b) they wear
other belligerent; a fixed distinctive sign recognizable at a distance; c)
2) reparation for damages caused by the defeated they carry arms openly; and d) they conduct their
belligerent; and operations in accordance with the laws and customs of
3) punishment of war criminals (Cruz, 2000) war.
3) the inhabitants of unoccupied territory who, on
How does war commence? approach of the enemy, spontaneously take arms to
 War may start with a declaration of war (The Hague resist the invading troops without having had time to
Conventions of 1907); with the rejection of an organize themselves, provided only that they carry
ultimatum, or with the commission of an act of force arms openly and observe the laws and customs of war.
regarded by at least one of the belligerents as an act This is often referred to as levee en masse.
of war. (Cruz, 2000) 4) the officers and crew of merchant vessels who forcibly
resist attack.
What are the effects of the outbreak of war?
1) The laws of peace cease to regulate the relations of What are the rights accorded to combatants when
the belligerents and are superseded by the laws of war. captured?
Third states are governed by the laws of neutrality in 1) right to the proper respect commensurate with their
their dealings with the belligerents. rank;
2) Diplomatic and consular relations between the 2) right to adequate food and clothing;
belligerents are terminated and their respective 3) right to safe and sanitary quarters;
representatives are allowed to return to their own 4) right to medical assistance;
countries. 5) right to refuse to give military information or render
3) Treaties of political nature, such as treaties of alliance, military service against their own state;
are automatically cancelled, but those which are 6) right to communicate with their families.
precisely intended to operate during war, such as one
regulating the conduct of hostilities between the Non-combatants or those who do not engage directly in
parties, are activated. Multipartite treaties dealing with hostilities do not enjoy identical rights when captured but
technical or administrative matters, like postal are protected from inhumane treatment under the Geneva
conventions, are deemed merely suspended as Convention of 1949 relative to the treatment of civilian
between the belligerents. persons in time of war.
4) Individuals are impressed with enemy character:
a) under the nationality test, if they are nationals of What are the three basic principles underlying the rules
the other belligerent, wherever they may be; b) of warfare?
b) under the domiciliary test, if they are domiciled 1) Principle Of Military Necessity
aliens in the territory of the other belligerent, on  Under this principle, the belligerents may, subject to the
the assumption that they contribute to its other principles, employ any amount and kind of force
economic resources; and to compel the complete submission of the enemy with
c) under the activities test, if being foreigners, they the least possible loss of lives, time and money.
nevertheless participate in the hostilities in favor of Measures such as sieges, blockades, bombardments,
the other belligerent. and devastation of property, which may involve direct
Corporations and other juridical persons, on the hardships on the non-combatants within the area
other hand, are regarded as enemies if a majority affected, are undertaken under this principle.
or a substantial portion of their capital stock is in
the hands of enemy nationals or if they have 2) Principle Of Humanity
incorporated in the territory or under the laws of  This principle prohibits the use of any measure that is
the other belligerent. not absolutely necessary for the purposes of the war,
such as the poisoning of wells and weapons, the

6
 employment of dumdum or expanding bullets and What are the consequences of belligerent occupation?
asphyxiating gases, the destruction of works of art and 1) It does not result in transfer or suspension of the
property devoted to religious or humanitarian sovereignty of the legitimate government although it
purposes, the bombarding of undefended places, and may at the moment be unable to exercise it.
attack of hospital ships. 2) The belligerent occupant cannot perform such acts as
 When an enemy vessel is sunk, the other belligerent declaring the independence of the occupied territory or
must see to the safety of the persons on board. Pillage requiring its inhabitants to renounce their allegiance to
(taking of goods by force in time of war) is prohibited. the lawful government.
The wounded and the sick must be humanely treated 3) The belligerent is required to restore and ensure public
without distinction of nationality by the belligerent in order and safety while respecting, unless absolutely
whose power they are. The rule that a combatant who prevented, the laws in force in the country more
surrenders may not be killed and the agreements particularly with regard to family honor and rights, the
relating to the treatment of prisoners of war also fall lives of persons, private property, and religious
under this principle. convictions and practice. (Hague Convention No. IV,
1907, Reg., Arts 53-56)
3) Principle Of Chivalry 4) Whenever necessary, the belligerent occupant may
 This principle is the basis of such rules as those that promulgate new laws, non-political as well as political,
require the belligerents to give proper warning before provided they do not contravene the generally
launching a bombardment or prohibit the use of perfidy accepted principles of international law. Political laws
(treachery or faithlessness) in the conduct of hostilities. are automatically abrogated upon the end of the
 False flags are not allowed in land warfare, but war occupation but the non-political laws may continue
vessels may sail under a flag not their own, subject even beyond the occupation unless they are expressly
only to the requirement that they haul it down and hoist repealed or modified by the legitimate government.
their own flag before attacking the other belligerent. (HiladovsDela Costa, April 30, 1949)
Espionage is also prohibited. (Ibid) 5) The belligerent occupant is permitted to exact from the
populace contributions over and above the regular
When can an individual be considered a spy? taxes for the needs of the army of occupation or for the
 An individual can only be considered a spy if, acting administration of the territory. (HC No. IV, 1907, Reg.,
clandestinely or on false pretenses, he obtains, or Arts 49-51) It may also, for valuable consideration,
seeks to obtain, information in the zone of operations make requisitions of things or services for the needs of
of a belligerent, with the intention of communicating it the occupying forces. (Ibid, Art.52)
to the hostile party. Spies are subject to the municipal 6) The belligerent occupant is permitted to introduce
law of the other belligerent except that, as provided in military currency, provided the purpose is not to debase
the Hague Conventions of 1907, “a spy taken in the act the country’s economy. Thus, in Haw Pia vs China
cannot be punished without previous trial”. A spy who Banking Corporation (80 Phil 604), the Supreme Court
succeeds in rejoining his army and is later captured upheld the validity of the payments made by the
incurs no responsibility for his previous acts of plaintiff in Japanese military notes to settle a loan
espionage and is entitled to be treated as a prisoner of extended to her in Philippine currency before the
war. (Articles 30 & 31 as cited in Cruz, 2000) outbreak of the Pacific war.
7) Private property cannot be confiscated, but those
Is booty or personal property found in the battlefield susceptible of military use may be seized, subject to
subject to confiscation? restoration or compensation when peace is made. (HC
 Yes, except only the personal belongings of the No. IV, Reg., Arts 53-56) The property of municipalities
individual combatants which have no military value and of institutions dedicated to religion, charity and
such as jewelry. education, and the arts and sciences, even when state-
owned, shall be treated as private property, and their
Distinguish theatre of war from region of war? destruction is expressly forbidden.
 The first is the place where the hostilities are actually 8) The army of occupation can only take possession of
conducted while the second is the greater area where cash, funds and realizable securities which are strictly
the belligerents may lawfully engage each other. the property of the state, depots of arms, means of
transport, stores and supplies, and generally movable
When is a territory deemed occupied by a belligerent? property of the state, depots of arms, means of
 It is deemed occupied when it is actually placed under transport, stores and supplies, and generally movable
the authority of the hostile army, but this occupation is property belonging to the state which may be used for
limited only to the area where such authority has been military operations. All appliances, whether on land, at
established and can be effectively exercised. It is not sea, or in the air, adapted for the transmission of news,
necessary that every square foot of the territory in or for the transport of persons or things, exclusive of
question be actually occupied, as it doubtless suffices cases governed by naval law, depots of arms and
that the occupying army can, within a reasonable time, generally all kinds of ammunition of war may be seized
send detachment of troops to make its authority felt but must be restored and compensation fixed when
within the occupied district. (Hyde, Vol.2, 364 cited in peace is made.
Cruz, 2000) 9) The occupying state shall be regarded only as
administrator and usufructuary of public buildings, real
7
 estate, forests, agricultural estates belonging to the own subjects the right to trade in specified places or in
hostile state and situated in the occupied territory. specified articles. A special license grantsto a certain
(Ibid, Art 55) person the right to trade in the manner specified in his
This rule was applied in Banaag vs Singson license. (Ibid, 296)
Encarnacion (April 19, 1949), where a lease of five
years granted by Philippine Executive Commission in Distinguish suspension of arms from armistice.
1942 over certain municipal fisheries was deemed  A suspension of arms is a temporary cessation of the
automatically canceled upon the re-establishment of hostilities by agreement of the local commanders for
the Commonwealth government. (Ibid) such purposes as the gathering of the wounded and
the burial of the dead. (Fenwick, 579; Wilson and
What is the right of postliminy or postliminium? Tucker, 297)
 It “is that in which persons or things taken by the enemy  Whereas, armistice is the suspension of all hostilities
are restored to the former state on coming actually into within a certain area (local) or in the entire region of the
the power of the nation to which they belong”. (Vattel in war (general) agreed upon by the belligerent
Leitensdorfervs Webb, 1 N.M. 34, 44 cited in Cruz, governments, usually for the purpose of arranging the
2000) In its broadened concept, the jus postliminium terms of the peace. The purpose of the armistice is
also imports the reinstatement of the authority of the political while that of suspension of arms is military;
displaced government once control of the enemy is lost armistice may be concluded only by the commanders-
over the territory affected. in-chief of the belligerent governments while
 Thus, upon the end of a belligerent occupation, the suspension of arms may be agreed upon by the local
laws of the re-established government are revived and commanders; and armistice is usually in writing while
all acts taken by the belligerent occupant which it could suspension of arms may be oral. (Cruz, 2000)
not legally do under the law of nations, as well as lawful
acts of a political complexion, are invalidated. What is a cease-fire?
 A cease-fire is an unconditional stoppage of hostilities
What are the non-hostile intercourse? by order of an international body like the UN Security
1) A flag of truce is a white flag carried by an individual Council for the purpose of employing peaceful means
authorized by one belligerent to enter into of settling the differences between the belligerents.
communications with the other. The bearer, or (Salonga and Yap, 451-452 cited in Cruz, 2000)
parlementaire, is entitled to inviolability as long as he
does not take advantage of his privileged position to What is a truce?
commit an act of treachery. But the other belligerent is  A truce is sometimes used interchangeably with
not obliged to receive a flag of truce. (HC No.IV, 1907, armistice but is now generally regarded as a cease-fire
Reg., Arts. 32, 34; Fenwick, 578; Wilson and Tucker, with conditions attached. (Fenwick, 579 cited in Cruz,
294 cited in Cruz, 2000) 2000)
2) Cartels are agreements to regulate intercourse during
war on such matters as postal and telegraphic What is a capitulation?
communication, the reception of flags of truce, and the  It is the surrender of military forces, places or districts
exchange of prisoners. A cartel ship is a vessel sailing in accordance with the rules of military honor. (HC
under a safe-conduct for the purpose of carrying No.IV, 1907, Reg. Art. 35)
exchanged prisoners of war. (Fenwick, 575; Wilson
and Tucker, 295 cited in Cruz, 2000) How may war be terminated?
3) A passport is a written permission given by the War may be terminated by any of the following:
belligerent government or its authorized agent to the 1) Simple Cessation Of Hostilities
subjects of the enemy state to travel generally in  Among the wars that were terminated by simple
belligerent territory. (Wilson and Tucker, 295 cited in cessation of hostilities are those between Sweden and
Cruz, 2000) Poland in 1716, between France and Spain in 1720,
4) A safe-conduct is a pass given to an enemy subject between Spain and its American colonies in 1825, and
or to an enemy vessel allowing passage between between France and Mexico in 1862-67. Under this
defined points. This is given either by the belligerent method, property or territory in the possession of the
government or by the commander of the area within respective belligerents upon the termination of the war
which it is effective. (Ibid) is retained by them in accordance with the principle of
5) A safeguard is a protection granted by a commanding utipossidetis. This is to be distinguished from the
office either to enemy persons or property within his usual stipulation for the status quo ante, which calls
command. When it is enforced by a detail of men, they for the complete restoration to their former owners of
must use extreme measures, if necessary to fulfill their property or territory that may have changed hands
trust, and are themselves exempt from attack or during the hostilities, with the exception only of prize
capture by the enemy. and booty.
6) A license to trade is a permission given by the
competent authority to individuals to carry on trade 2) Negotiated Treaty Of Peace
even though there is a state of war. A general license  At times, belligerents may be unable to effect a
grants to all the subjects of the enemy state or to all its decisive victory against each other and may decide

8
 finally to settle their disagreement in what is known as May there be neutrality among members of the UN?
a negotiated treaty of peace. One example was the  Yes, a state can become a member of the UN and still
case of Great Britain and the US when they terminated maintain its neutrality. At present, several neutral
the War of 1812 with the conclusion of the Treaty of states, like Austria, Finland, Ireland, Sweden, and
Ghent. recently Switzerland in 2002, are members of the UN.
(sarmiento, 2007)
3) Defeat Of One Of The Belligerents
 The surrender of the defeated belligerent may either be What are the rights and duties of a neutral state?
conditional or unconditional. In the former case, a  A neutral state has the right and duty to abstain from
treaty of peace is concluded embodying the condition taking part in the hostilities and from giving assistance
specified in the surrender; in the latter, the victorious to either belligerent; to prevent its territory and other
belligerent usually issues a unilateral declaration resources from being used in the conduct of hostilities
announcing the end of the war, to be followed with a by the belligerents, and to acquiesce in certain
peace treaty dictated by it and specifying the rules on restrictions and limitations that the belligerents may
the settlement of the obligations of the vanquished find necessary to impose, especially in connection with
state and the disposition of its territories. international commerce. (Schwarzenberger, 208, cited
in Cruz, 2000)
What are the consequences of war?
1) The implied judgment that the vanquished belligerent What are the obligations of belligerents?
is the guilty party in the dispute that caused the  They are bound to respect the status of the neutral
hostilities; and state, avoiding any act that will directly involve it in their
2) Nationals of the vanquished state may be protected conflict, and to submit to any lawful measures it may
and punished as war criminals and for other violations take to maintain or protect its neutrality.
of international law who may not escape responsibility
on the ground that they were merely acting on orders Is the use of neutral territory completely barred to the
of their state; Here, the state itself is liable for issuing belligerents?
such orders and the individuals for obeying them  No. The passage of sick and wounded troops is
provided a moral choice was possible. allowed through a neutral state provided personnel and
materials of war are not also carried. (HC V 1907 Art.
In Yamashita vs Styer (75 Phil 563), the Commander 12.) Persons bound for enlistment in the belligerent
General of the Imperial Japanese Forces in the Philippines armies may cross the neutral frontiers if they do so
was convicted of war atrocities by a military commission individually or separately and not as a body. (HC V
and sentenced to death by hanging. He questioned his trial 1907 Art 6) The neutral state itself may give refuge to
and conviction on the ground that the military commission troops from the belligerent forces but must intern them
had no authority or jurisdiction to try him, but the Philippine as far as possible, at a distance from the theatre of war.
Supreme Court and the US Supreme Court affirmed the (HC V 1907 Art. 11) Escaped prisoners of war need
sentence. The latter court declared that the acts directed not be detained by the neutral state but must be
against the civilian population of an occupied country and assigned a place of residence if they are allowed to
against prisoners of war are recognized in international law remain. (HC V 1907 Art 13)
as violations of the law of war. (Cruz, 2000)
Is the neutral state obliged to prevent the export from
When is a state said to be neutral? or transit through its territory of war supplies
 A state is neutral if it does not take part, directly or purchased from private traders by the belligerents in
indirectly, in a war between other states. the ordinary course of commerce?
 No. But it is required to take reasonable diligence in
How does neutrality differ from neutralization? preventing the delivery of vessels constructed and
 Neutrality is dependent solely on the attitude of the armed in its territory for use by any of the belligerents.
neutral state, which is free to join any of the belligerents (In Alabama Claims Case, Great Britain was found
anytime it sees fit, liable in damages to the US for violation of this duty.)
 while neutralization is the result of a treaty wherein
the duration and the other conditions of the Is the neutrality of one state compromised when its
neutralization are agreed upon by the neutralized state nationals enlist in a belligerent army or engage in
and other powers. This agreement governs the commerce with any of the belligerents?
conduct of the signatories whereas neutrality is  No. The neutrality of the state is not compromised in
governed by the general law of nations. Neutrality the absence of special rules imposing upon the neutral
obtains only during war while neutralization is intended state the duty of intervening in the transaction. Except
to operate in time of peace as well as in time of war. for these, international law considers the relationship
Only states may become neutral but portions of states, as strictly between the individual and the belligerent
like islands, rivers and canals, may be neutralized. states and whatever hardships may be suffered by its
nationals as a result thereof must, as a rule, be
acquiesced in by the neutral state.

9
What is contraband? b) if with the knowledge of the owner, or the one who
 It refers to goods which, although neutral property may charters the entire vessel, or of the master, it is
be seized by a belligerent because they are useful for transporting a military detachment of the enemy or one
war and are bound for a hostile destination. Absolute or more persons who, during the voyage, lend direct
contraband are necessarily useful for war under all assistance to the operations of the enemy. The cargo,
circumstances, like rifles and ammunition (Declaration if belonging to the owner of the vessels, is likewise
of London, Articles 22, 24), whereas conditional confiscable. (Declaration of London, Art. 45)
contraband, like food and clothes, have both civilian
and military purposes. “Free list” includes goods When is a neutral vessel liable to condemnation and to
useful for war and bound for the belligerents but be treated as a merchant vessel of the enemy?
exempted from the law on contraband for humanitarian 1) if it takes a direct part in the hostilities;
reasons like medicines and medical supplies for the 2) if it is under the orders or control of an agent
use of the sick and the wounded. placed on board by the enemy government;
 Absolute contraband are subject to seizure so long as 3) if it is chartered entirely by the enemy government;
they are bound for enemy or enemy-held territory, (Ibid, or
Art 29) but conditional contraband may be seized only 4) if it is at the time and exclusively either devoted to
when it can be shown that they are destined for the the transport of enemy troops or the transmission
armed forces or the authorities of the belligerent of information in the interest of the enemy. The
government. (Ibid, Art. 33) goods belonging to the owner of the vessel are
likewise liable to condemnation. (Ibid, Art 46)
What is the doctrine of ultimate consumption?
 Under this doctrine, goods intended for civilian use What is angary?
which may ultimately find their way to and be  By the right of angary, a belligerent may, upon
consumed by the belligerent forces are also liable to payment of just compensation, seize, use or destroy, in
seizure on the way. (Cruz, 2000) case of urgent necessity for purposes of offenses or
defense, neutral property found in its territory, in enemy
What is the doctrine of infection? territory, or on the high seas. (Oppenheim-Lauterpacht,
 Under this doctrine, if innocent goods belonging to the Vol 2, 28 cited in Cruz, 2000)
same owner are shipped together with contraband
which are subject to condemnation, innocent goods Thus, the exercise of this right is conditioned upon three
may also be confiscated. (Declaration of London, Art. requisites:
42) 1. that the property is in the territory under the control
or jurisdiction of the belligerent;
Is the vessel carrying the contraband subject also to 2. that there is urgent necessity for the taking; and
confiscation? 3. that just compensation is paid to the owner. (Cruz,
 Only if the contraband are more than one-half of the 2000)
total cargo by weight, value, freight or volume (Ibid, Art
40) What is a prize court? What are its duties and
jurisdiction?
What is the doctrine of ultimate destination?  Prize courts are domestic tribunals of a belligerent
 Under this doctrine, the liability of contraband to state that determined the legality of the capture by a
capture is determined not by their ostensible but by belligerent of enemy or neutral merchant vessels and
their real destination. (Cruz, 2000) of their liability to confiscation.
 This doctrine is called the doctrine of continuous Although the authority and the jurisdiction of prize
voyage when the goods are reloaded at the courts were derived from national law, the rules which they
intermediate port on the same vessel and the doctrine applied were the rules of International Law, except in so far
of continuous transport when they are reloaded on as special national legislation might have prescribed a
another vessel or other form of transportation. (Ibid) particular interpretation of these rules. (Fenwick, 644 cited
in Sarmiento, 2007)
What is unneutral service?
 It consists of acts, of a more hostile character than How is neutrality terminated?
carriage of contraband or breach of blockade, which 1) when the neutral state itself joins the war;
are undertaken by merchant vessels of a neutral state 2) upon the conclusion of peace (Cruz, 2000)
in aid of any of the belligerents. (Ibid)
Do civil wars or rebellion violate international law?
When is a neutral vessel liable to condemnation for  No, Article 2(4) of the UN Charter does not apply to
unneutral service? internal conflicts. (Bernas, 2009)
a) if it is making a voyage special with a view to the
transport of individual passengers who are embodied Is outside help for governments experiencing rebellion
in the armed forces of the enemy or with a view to the legitimate?
transmission of information in the interest of the  Generally, yes, provided requested by the government.
enemy; or However, aid to rebels is contrary to international law.

10
What international law on armed conflict is applicable Constitutional Commission 912-916 cited in Bernas,
to internal conflicts? 2009)
 Common Article 3 of each of the four Geneva
Conventions provides for minimum humanitarian What are the foremost environmental cases decided by
protection in cases of internal conflict. the Supreme Court upholding the constitutional
provisions on environmental concerns?
What is Protocol II? 1) Oposa vs Factoran 224 SCRA 792 (1993)
 It is the first and only international agreement 2) LLDA vs CA 231 SCRA 292 (1994)
exclusively regulating the conduct of parties in a non- 3) Social Justice Society vs Atienza February 13, 2008
international armed conflict promulgated in 1977. It 4) MMDA vs Residents of Manila Bay December 18, 2008
“develops and supplements Article 3 common to the
Geneva Conventions of 12 August 1949 without Why is the protection of the environment considered a
modifying its existing conditions or application.” A challenge to the development of international law?
definition of a non-international armed conflict covered  The protection of the environment is considered a
by this expanded guarantee is found in Article 1. It challenge to the development of international law
states: because its demands cannot be met without intrusion
 A non-international armed conflict are armed into the domestic jurisdiction and sovereignty of states.
conflicts which take place in the territory of a High The nature and magnitude of the challenge are such
Contracting Party between its armed forces and that they require not only the joint action of states but
dissident armed forces or other organized armed also the involvement of non-state actors. (Bernas,
groups which, under responsible command, exercise 2009)
such control over a part of its territory as to enable
them to carry out sustained and concerted military What consist concern of environmental protection?
operations and to implement this Protocol. (Bernas,  The concern of environmental protection is not just
2009) about the atmosphere, the sea, the land, flora and
fauna. It is also about the preservation of the cultural
Is Protocol II applicable to situations of internal heritage of mankind as found in archeological and
disturbances and tensions? artistic remains. (Ibid)
 No, Protocol II shall not apply to situations of internal
disturbances and tensions, such as riots, isolated and What is the goal of environmental protectionists?
sporadic acts of violence and other acts of a similar  Their goal is the rational use of the elements that make
nature, as not being armed conflicts. (Art 1 of the up the environment through control, reduction and,
Protocol II) This is true even if the armed forces of the wherever possible, elimination of the causes of
territory may have been called upon to suppress the environmental degradation. (Ibid)
disorder. (Ibid)
Are environmental concerns related to human rights
May terrorist attacks be the subject of an enforcement issues?
action by the UN Security Council?  Yes, they are inseparably related. In the Danube Dam
 Yes, terrorist attacks may be considered as threats to Case, the ICJ held that, “The protection of the
international peace and security which would justify the environment is a …vital part of contemporary human
calling of enforcement actions under Chapter VII of the rights doctrine, for it is a sine qua non for numerous
UN Charter. (Sarmiento, 2007) human rights such as the right to health, and the right
to life itself.” (ICJ Rep 1997 cited in Bernas, 2009)
Are terrorist acts subject to IHL?
 No. Banditry, unorganized and short-lived Who have environmental rights?
insurrections, and terrorist activities are not subject to  The real object of protection in protecting the
IHL. environment are persons capable of having rights.
(Ibid)
CHAPTER 16
INTERNATIONAL ENVIRONMENTAL LAW What is sustainable development?
 It is an important concept in the field both of economics
How does the Philippine Constitution express the and environmental rights. The concept of sustainable
concern about the environment? development encourages development in a manner
 Article II, Section 16 provides that, “The State shall and according to methods which do not compromise
protect and advance the right of the people to a the ability of future generation and other states to meet
balanced and healthful ecology in accord with the their needs.
rhythm and harmony of nature.
 The discussions in the 1986 Constitutional What is long-range transboundary air pollution?
Commission manifested a clear desire to make  It means air pollution whose physical origin is situated
environmental protection and ecological balance wholly or in part within the area under the national
conscious objects of police power. (4 Record of the jurisdiction of one State and which has adverse effects
in the area under the jurisdiction of another State at

11
 such a distance that it is not generally possible to environment of other states or of areas beyond the
distinguish the contribution of individual emission limits of national jurisdiction.
sources or groups of sources. (1979 Convention on c) Principle 22: States shall cooperate to develop further
Long-Range Transboundary Air Pollution, Art. 1[b] the International Law regarding liability and
cited in Sarmiento, 2007) compensation for the victims of pollution and other
environmental damage caused by activities within the
What is the Good Neighborliness principle? jurisdiction or control of such states to areas beyond
 This principle prohibits States from using or permitting their jurisdiction. (Ibid)
the use of its territory in a manner that is injurious to
another State, or that other State’s persons or property. What are some of the important principles contained in
This principle is now codified in Principle 21 of the the 1982 Rio Declaration (Earth Summit)?
Stockholm Declaration and in principle 2 of the Rio a) Principle 1: States have the sovereign right to exploit
Declaration (Earth Summit). (Sarmiento, 2007) their own resources pursuant to their own
environmental and developmental policies, and the
What Roman law principle underlies the Good responsibility to ensure that activities within their
Neighborliness Principle? jurisdiction or control do not cause damage to the
 Sic utere tuout alienum non laedas. So use your own environment of other States or of areas beyond the
as not to injure the rights of others. limits of national jurisdiction.
b) Principle 2: The right to development must be fulfilled
What are the possible bases of liability for so as to equitably meet developmental and
transboundary pollution under International Law? environmental needs of present and future
There are several theories of liability for transboundary generations.
pollution: c) Principle 3: States shall develop national law regarding
a) An absolute duty to protect against harm from ultra- liability and compensation for the victims of pollution
hazardous activities, which if violated, results in a state and other environmental damage.
being held strictly liable; d) Principle 4: States shall immediately notify other States
b) “Abuse of Rights” Theory: responsibility for negligent of any natural disasters or other emergencies that are
or intentional acts; likely to produce sudden harmful effects on the
c) “Good Neighborliness” Principle: liability for a State environment of those States. Every effort shall be
which permits transboundary pollution to exceed that made by the international community to help States so
which neighbors can reasonably be expected to afflicted.
endure. (Malone, 217 cited in Sarmiento, 2007) e) Principle 5: warfare is inherently destructive of
sustainable development. States shall therefore
What are the major instruments that have shaped the respect International Law providing protection for the
modern development of international environmental environment in times of armed conflict and cooperate
law? in its further development, as necessary.
a) The Stockholm Declaration on the Human f) Principle 6: States shall resolve all their environmental
Environment which was adopted at the 1972 UN disputes peacefully and by appropriate means in
Convention on the Human Environment, held in accordance with the Charter of the UN. (Ibid)
Stockholm, Sweden;
b) The Rio Declaration on Environment and What is the Principle of Common but Differentiated
Development, which was adopted at the 1992 Rio Responsibility?
Conference on Environment and Development, also This principle is embodied in Principle 7 of the Rio
known as the “Earth Summit” – it reaffirms the Declaration which states:
Stockholm Declaration with the goal of establishing a  “States shall cooperate in a spirit of global partnership
new and equitable global partnership through the to conserve, protect and restore the health and
creation of new levels of cooperation among States, integrity of the earth’s ecosystem. In view of the
key sectors of societies and people. (Ibid) different contributions to global environmental
degradation, States have common but differentiated
What are the important principles contained in the responsibilities.
Stockholm Declaration on the Human Environment?  The developed countries acknowledge the
a) Principle 1: Man has the fundamental right to freedom, responsibility that they bear in the international pursuit
equality and adequate conditions of life, in an to sustainable development in view of the pressures
environment of a quality that permits a life of dignity their societies place on the global environment and of
and well-being, and he bears a solemn responsibility to the technologies and financial resources they
protect and improve the environment for present and command.”
future generations.
b) Principle 21 (Principle of Good Neighborliness) States What is the Precautionary Approach?
have the sovereign right to exploit their own resources  This approach is contained in Principle 15 of the Rio
pursuant to their own environmental policies, and the Declaration, which states:
responsibility to ensure that activities within their
jurisdiction or control do not cause damage to the

12
“In order to protect the environment, the precautionary What were the economic institutions established out of
approach shall be widely applied by States according to the mentioned conference?
their capabilities. Where there are threats of serious or 1) International Monetary Fund
irreversible damage, lack of full scientific certainty shall not - Its function was to provide short-term financing to
be used as a reason for postponing cost-effective measures countries in balance of payments difficulties.
to prevent environmental degradation.” ( 2) International Bank for Reconstruction and
Development (World Bank)
May a State be held responsible by another State for - It was designed to provide long-term capital to
trans-boundary pollution caused by private parties support growth and development.
within its jurisdiction? 3) International Trade Organization (ITO)
Yes. The Trail Smelter Case (US vs Canada, 1941) - It was intended to promote a liberal trading system
established the two fundamental principles of liability for by proscribing certain protectionist trade rules.
trans-boundary pollution under International Law: - The intended function of the ITO was eventually
a) First, a state must show material damage and taken over by the General Agreement on Tariff and
causation to be entitled to legal relief; and Trade ( GATT) and its successor the World Trade
b) Second, a state has a duty to prevent, and may be held Organization. (Ibid)
responsible for pollution by private parties within its
jurisdiction if such pollution results in demonstrable What are the most important trade oriented
injury to another state. institutions?
In the said case, the Arbitration Tribunal held that Canada  The GATT and the WTO are the most important trade
was legally responsible for the actions of the privately- oriented institutions. They shape domestic import and
owned smelter near Trail, Canada, ordered Canada to pay export laws which impact on international trade on
damages, and required the smelter to refrain from causing goods and services
further damage in the US.  GATT went through a series of modifications Rounds
with the Uruguay Round of 1994 as the final one. The
May a downstream state object to the use of the water final agreement proposed the establishment of a World
by an upstream state? Trade Organization which would oversee the operation
 A downstream state may not oppose the upstream of GATT and a new General Agreement on Trade and
state’s use of the water provided the upstream state Services.
will not alter the waters of a river or lake. (Lake Lanoux
Arbitration, France vs Spain cited in Sarmiento, 2007) What are the key principles of international trade law?
1) Agreed tariff levels
INTERNATIONAL ECONOMIC LAW - The GATT contains specified tariff levels for each
state and each state agrees not to raise tariff
What is international economic law? levels above those contained in the schedule
 “The law of international economic relations in its though these can be renegotiated.
broadest sense includes all the international law and
international agreements governing economic 2) The most favored nation principle (MFN)
transactions that cross state boundaries or that - This clause embodies the principle of non-
otherwise have implications for more than one state, discrimination. This means that any special
such as those involving the movement of goods, funds, treatment given to a product from one trading
persons, intangibles, technology, vessels or aircraft.”( partner must be made available for like products
The 3rd Restatement of Foreign Relations Law cited in originating from one trading partner must be made
Bernas, 2009) available for like products originating from or
destined for other contracting partners. In
What are the four characteristics of IEL? practice, this generally refers to tariff concessions.
1) IEL is part of international law as treaties make this so.
2) IEL is intertwined with municipal law since the 3) Principle of national treatment
balancing of economic treaty law with municipal law is - This prohibits discrimination between domestic
important. producers and foreign producers. In practice, this
3) IEL requires multi-disciplinary thinking involving not means that once foreign producers have paid the
only economics but also political science, history, proper border charges, no additional burdens may
anthropology, geography, and other disciplines. be imposed on foreign products.
4) Empirical research is very important for understanding
its operation. (Ibid) 4) Principle of tariffication
- The principle prohibits the use of quotas on
What were the two main objectives of the Bretton imports or exports and the use of licenses on
Woods Conference of 1944? importation or exportation. The purpose of the
1) to advance the reduction of tariffs and other trade principle is to prevent the imposition of non-tariff
barriers; and barriers. But GATT provides for exceptions on a
2) to create a global framework designed to minimize quantitative and temporary basis for balance of
economic conflicts

13
 payments or infant industry reasons in favor of  Under the 1951 Refugee Convention, the contracting
developing states. states shall accord to refugees within their territories
treatment at least as favorable as that accorded to their
What are the exceptions to key principles? nationals with respect to:
1) exceptions which are general in nature such as those 1) freedom to practice their religion and freedom as
referring to public morals, public health, currency regards the religious education of their children;
protection, products of prison labor, national treasures (Art 4)
of historic, artistic or archeological value, and 2) protection of industrial property, such as
protection of exhaustible natural resources; inventions, designs or models, trademarks, trade
2) Security exceptions and regional trade exceptions; and names, and of rights in literary, artistic and
3) Exceptions for developing nations. (Ibid) scientific works; (Art.14)
3) access to the courts, including legal assistance
How does WTO provide for dispute resolution? and exemption from cautiojudicatumsolvi; (Art 16)
 A Dispute Settlement Body (DSB) has been 4) general distribution of products in short supply;
established by the WTO Agreement which consists of (Art 20)
the General Council of the WTO and operates under 5) housing; (Art 21)
the Understanding on Rules and Procedures 6) public elementary education; (Art 22)
Governing the Settlement of Disputes 1994 (DSU). 7) public relief and assistance; (Art 23)
Each state has a right to the establishment of a Panel. 8) labor legislation and social security benefits. (Art
The DSU has also provided for a permanent Appellate 24)
Body, consisting of persons with recognized expertise
in law, to handle appeals from a Panel decision.(Ibid) Moreover, the contracting states shall accord to refugees
treatment as favorable as possible and, in any event, not
What consist the expanded scope of the multilateral less favorable than that accorded to aliens generally in the
trade regime of the Uruguay Round of 1994? same circumstances, as regards:
 It now includes intellectual property, services, sanitary 1) the acquisition of movable and immovable property
and physio-sanitary measures and investment, as well and other rights pertaining thereto; (Art 13)
as the strengthening of the rules on subsidies, 2) participation in non-political and non-profit making
countervailing duties and antidumping. associations and trade unions; (Art 15)
 Thus, IEL has become a very specialized field and it is 3) the right to engage in wage-earning employment; (Art
affecting the sovereignty of states and their capacity to 17)
give force to national policy objectives. 4) the right to engage on his own account in agriculture,
industry, handicrafts and commerce and to establish
(ADDITIONAL TOPIC) commercial and industrial companies; (Art 18)
RIGHTS OF REFUGEES 5) the practice of a liberal profession; (Art 19)
6) right to choose their place of residence and to move
What does the term “refugee” mean? freely within its territory. (Art 26)
 The term shall apply to any person who, owing to well-
founded fear of being persecuted for reasons of race, Furthermore, the contracting states shall issue identity
religion, nationality, membership of a particular social papers and travel documents to any refugee in their territory
group or political opinion, is outside the country of his who does not possess a valid travel document. (Arts 27, 28)
nationality and is unable or, owing to such fear, is
unwilling to avail himself of the protection of that May a state party to the 1951 Refugee Convention expel
country; or who, not having a nationality and being a refugee from its territory?
outside the country of his former habitual residence as  As a state party to the 1951 Refugee Convention, it
a result of such events, is unable or, owing to such fear, shall not expel a refugee in their territory save on
is unwilling to return to it. (Art 1 of the 1951 Convention grounds of national security or public order. In any
relating to the Status of Refugees [Refugee event, the expulsion of such a refugee shall be only in
Convention], which entered into force on April 22, pursuance of a decision reached in accordance with
1954, and as modified by the 1966 Protocol relating to due process of law.
the Status of Refugees, which entered into force on  Except where compelling reasons of national security
October 4, 1967 as cited in Sarmiento, 2007) otherwise require, the refugee shall be allowed to
submit evidence to clear himself, and to appeal to and
What are the obligations of refugees to the country be represented for the purpose before competent
where they find themselves? authority or a person or persons specially designated
 He should conform to its laws and regulations as well by the competent authority.
as to measures taken for the maintenance of public  The state party shall also allow such a refugee a
order. (Refugee Convention, Art 2 cited in Sarmiento, reasonable period within which to seek legal admission
2007) into another country. (Art 32) (Ibid)

What are the rights of refugees? Is there a right of asylum under International Law?

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 Articles 13 and 14 of the Universal Declaration of
Human Rights and the General Assembly’s 1967
Declaration on Territorial Asylum recognize the “right to
leave any country, including one’s own” and the “right
to seek and to enjoy in other country’s asylum from
persecution.” Those rights, however are not coupled
with a corresponding state obligation to grant asylum.
 Thus, all states have the right to grant asylum, but the
individual has no right to demand asylum. (Malone,
127 cited in Sarmiento, 2007)

What is diplomatic asylum?

 It is the granting of refuge by a state in its embassies,
ships or aircraft in the territory of another state. Once
diplomatic asylum is granted, there is a right of safe
conduct from the foreign state. Beyond that, the rules
of asylum are generally based on treaty rather than on
Customary International Law. (Malone, 128 cited in
Sarmiento, 2007)

What is the principle of non-refoulement?

 No contracting state shall expel or return a refugee in
any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on
account of his race, religion, nationality, membership of
a particular social group or political opinion
 However, this would not apply where there are
reasonable grounds for regarding the refugee as a
danger to the security of the country in which he is, or
who, having been convicted by a final judgment of a
particular serious crime, constitutes a danger to the
community of that country. (Refugee Convention,
Art.33 cited in Sarmiento, 2007)

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