PIL FINALS RECITS 2

Define jurisdiction

The power or authority exercised by a State over land, persons, property, transactions, and events

The basic question involving jurisdiction centers upon which State has sovereignty or legal control over land, persons, ships at sea, airships in flight, property, transactions or events, in various situations

What are the 2 types of jurisdiction? Explain each

(1) prescriptive jurisdiction. The ability of the State to define its own laws with respect to any matter it chooses. This power of a State is generally unlimited

(2) enforcement jurisdiction. The ability of the State to enforce the laws it has created. Unlike prescriptive jurisdiction, enforcement jurisdiction is limited by several factors including territory and nationality. Enforcement jurisdiction cannot exist without prescriptive jurisdiction

Explain judicial jurisdiction

This is simply civil or criminal

However, in practice, civil cases involving questions of jurisdiction are generally resolved under Private International Law while questions of jurisdiction involving criminal cases are usually resolved using Public International Law

Enumerate the 5 bases of jurisdiction

(1) territorial principle
(2) nationality principle
(3) protective principle
(4) principle of universality
(5) principle of passive personality

Explain territorial jurisdiction

The State may exercise jurisdiction only within its territory

Exceptionally, it may have jurisdiction over persons and acts done outside its territory depending on the kind of jurisdiction it invokes.

While there is no territorial limit on the exercise of jurisdiction over civil matters, a State, as a general rule, has criminal jurisdiction only over offenses committed within its territory, except over:
(i) continuing offenses;
(ii) acts prejudicial to the national security or vital interests of the State;
(iii) universal crimes; and
(iv) offenses covered by special agreement (although this is now obsolete)

Under territorial jurisdiction,

(1) explain the concepts of “state territory” and
(2) “subjective v. objective territoriality”

(1) State Territory. For purposes of jurisdiction, a State's territory extends to its dependent territories, airspace, aircrafts, ships, and territorial sea. As for the contiguous zone, exclusive economic zone, and continental shelf, a State may have limited jurisdiction over acts performed in such area provided the acts violated the rights of the coastal State in that particular zone

(2) Subjective v. Objective Territoriality. Subjective territoriality enables a State to take jurisdiction over an act which began in their territory. Objective territoriality enables a State to take jurisdiction over an act which ended in its territory

Explain nationality principle

The State has jurisdiction over its nationals anywhere in the world, based on the theory that a national is entitled to the protection of the State wherever he may be, and thus, is bound to it by duty of obedience and allegiance, unless he is prepared to renounce his nationality

This applies to civil matters, e.g., Article 15, Civil Code. The principle does not, however, apply to criminal offenses

Recite Article 15 of the Civil Code

Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad

Under nationality principle, explain the concept of “determination of nationality”

States are allowed to determine who their nationals are

The Philippines uses jus sanguinis wherein a child becomes a natural-born citizen if his parents are citizens, regardless of where he was born
The United States use jus soli wherein a child becomes a natural-born citizen if he is born on American territory, regardless of the nationality of his parents

The determination of nationality is important especially in cases where States seek to take up the cudgels for individuals in the international sphere

Explain protective principle

State has jurisdiction over acts committed abroad (by nationals or foreigners) which are prejudicial to its national security, territorial integrity, political independence, or any other vital interests

Under Article 2 of the Revised Penal Code, Ph. courts have criminal jurisdiction over 5 offenses. What are they?

(1) offenses committed on board a Philippine ship or airship;
(2) forgery/counterfeiting of Philippine coins or currency notes;
(3) introduction into the Philippines of such forged or counterfeit coins or notes;
(4) offenses committed by public officers or employees in the exercise of official functions; and
(5) crimes against national security and the law of nations

(1) Explain the effects doctrine
(2) How does it differ from protective principle?
(3) What is its usage, especially in the Philippines?

(1) The effects doctrine provides that where the effects of an act are felt within the territory of a State, the State may take jurisdiction over the matter

(2) Similar to the protective principle but the threshold for invoking the effects doctrine is much lower since it can be used even in situations that do not involve national security and other vital interests of the State

(3) Effects doctrine is applied in situations involving anti-trust or economic issues. (Ex: The recently passed Philippine Competition Act (R.A. No. 10667), particularly Section 3 thereof, which provides that the law is applicable to international trade having direct, substantial, and reasonably foreseeable effects trade, industry, or commerce in the Philippines, including those that result from acts done outside the Philippines

(1) Explain principle of universality
(2) How can jurisdiction under this principle be applied?

(1) State has jurisdiction over offenses considered as universal crimes regardless of where committed and who committed them. Universal crimes are those which threaten the international community as a whole and are considered criminal offenses in all countries, e.g., piracy jure gentium, genocide, white slave trade, hijacking, terrorism, war crimes

(2) Jurisdiction under the universality principle can be applied through treaties, (Ex: 1984 UN Convention on the Prohibition Against Torture and 1971 Montreal Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aircraft)

(1) What is jure gentium
(2) What does it translate into?

(1) A body of law that is considered common to all civilized peoples and applied in the relationships between them

(2) by the law of nations

(1) Explain principle of passive personality
(2) How does it differ from protective principle

(1) State exercises jurisdiction over crimes against its own nationals even if committed outside its territory. This principle may be resorted to if the other principles previously discussed are not applicable. The principle of passive personality has been deemed by scholars to be the most controversial among the principles of jurisdiction

(2) protective principle = crimes by nationals/foreigners.
passive personality = crimes against own nationals

Explain the concept of abduction towards jurisdiction

According to scholarly opinions, it would be unlawful and improper for States to exercise jurisdiction over those they have brought into their territory through means that violate international law

However, despite these opinions, jurisprudence nevertheless do exercise jurisdiction over individuals they have abducted and brought into their own territory

Enumerate the 7 exemptions from jurisdiction

(1) doctrine of state immunity
(2) act of state doctrine
(3) diplomatic immunity
(4) immunity of the united nations, its organs, specialized agencies, other international organizations, and its officers
(5) foreign merchant vessels exercising the right of innocent passage or arrival under stress
(6) foreign armies passing through or stationed in the territory with the permission of the state
(7) warships and other public vessels of another state operated for non-commercial purposes

Explain the act of state doctrine

A State should not inquire into the legal validity of the public acts of another State done within the territory of the latter

Explain diplomatic immunity

Part of customary international law which grants immunity to diplomatic representatives, in order to uphold their dignity as representatives of their respective States and to allow them free and unhampered exercise of their functions

Diplomatic immunity is not an inherent right but rather one established by mutual consent of States

Explain how diplomatic immunity is claimed in the Philippines

It starts with a request by the foreign State for an executive endorsement by the Department of Foreign Affairs, and the determination made by the Executive Department is a political question which is conclusive in Philippine courts

Is diplomatic immunity rationae materiae or personae? Why?

If State immunity is rationae materiae, diplomatic immunity is rationae personae because it is based on the particular identity of the person, namely the diplomat or consular representative of the foreign State

(1) What are the 2 main treaties which deal with diplomatic immunity?
(2) Does any of these treaties expressly grants diplomatic immunity?

(1) 1961 Vienna Convention on Diplomatic Relations (VCDR) which entered into force in 1964, and the 1963 Vienna Convention on Consular Relations (VCCR) which entered into force in 1967

(2) There is nothing in either the VCDR or the VCCR which expressly grants diplomatic immunity

Which type of immunity does a head of state enjoy?

The head of State enjoys personal immunity from the jurisdiction of another State

Explain the provisions on Arts. 20 and 22 of the 1961 Vienna Convention on Diplomatic Relations

Art. 20: the right of the foreign State to acquire property in the receiving State for its diplomatic mission

Art. 22: The immunity of the diplomatic envoy from civil jurisdiction of the receiving State over any real action relating to immovable property which the envoy holds on behalf of the sending State for purposes of the mission

Explain the provision on Art. 105 of the UN charter

The "organization, officers, representatives of members, (who) shall enjoy such privileges and immunities as are necessary for the independent exercise of their functions."

What are the main reasons why international organizations, its officials and functionaries are granted privileges and immunities?

To secure them legal and practical independence in fulfilling their duties

To shield the affairs of international organizations, in accordance with international practice, from political pressure or control by the host country to the prejudice of member States, and to ensure the unhampered performance of their functions

Enumerate the 7 immunities enjoyed by the UN according to the Convention on the Privileges and Immunities of the United Nations

(1) legal process relative to words spoken or written and acts in their official capacity
(2) taxation on salaries and emoluments
(3) national service obligations
(4) immigration
(5) restriction
(6) alien registration (family members enjoy this immunity)
(7) the same immunities as are enjoyed by diplomats of comparable rank

Explain the provision on Section 31 of the Convention on Privileges and Immunities of Specialized Agencies of the UN

It provides the remedy for those who may be adversely affected by these immunities, viz.:

each specialized agency of the UN shall make a provision for appropriate modes of settlement of disputes arising out of contracts or other disputes of private character to which it is a party

What is innocent passage?

Innocent passage is navigation through the territorial sea of a State for the purpose of traversing that sea

(1) without entering internal waters, or
(2) of proceeding to internal waters, or
(3) making for the high seas from internal waters, as long as it is not prejudicial to the peace, good order, or security of the coastal State

Explain arrival under stress

Arrival under stress, or involuntary entrance, may be due to lack of provisions, unseaworthiness of the vessel, inclement weather, or other case of force majeure, such as pursuit by pirates

(1) What is force majeure?
(2) What does it translate into?

(1) An unexpected event, often described as an "act of God," that is beyond the control of the parties involved and renders it impossible to perform a contractual obligation
(2) superior force

(1) Explain what are Warships and other public vessels of another State operated for non-commercial purposes
(2) What rights do they have?

(1) They are generally immune from local jurisdiction under the fiction that they are "floating territory" of the flag State

(2) Crewmembers are immune from local jurisdiction when on shore duty, but this immunity will not apply if the crewmembers violate local laws while on furlough or off-duty

Explain jurisdiction over land territory

The State exercises jurisdiction over everything found within its terrestrial domain (with exceptions similar to others mentioned in other territories)

Enumerate the 7 areas covered by jurisdiction over maritime territory

(1) over internal waters
(2) over archipelagic waters
(3) over the territorial sea
(4) over the contiguous zone
(5) over the exclusive economic zone
(6) over the continental shelf
(7) over the high seas

How is jurisdiction applied over internal waters?

Same jurisdiction as over the land area, since the internal waters are deemed assimilated in the landmass

If a foreign merchant vessel is docked in a local port or bay, the coastal state can exercise which kind/s of jurisdiction over it?

The coastal State exercises jurisdiction in civil matters but criminal jurisdiction is determined according to the english or french rule

Over internal waters, the coastal state’s criminal jurisdiction is determined by 2 rules. What are they?

Which among them applies in the Philippines?

(1) English rule: The coastal State shall have jurisdiction over all offenses committed on board the vessel except those which do not compromise the peace of the port (applicable in the Philippines)

(2) French rule: Flag State shall have jurisdiction over all offenses committed on board the vessel except those which compromise the peace of the port

Explain how the jurisdiction of a coastal state applies over its archipelagic waters. (if any) what are its rights over this territory?

Same rule as in internal waters, save for innocent passage of merchant vessels through archipelagic sea lanes

Explain how the jurisdiction of a coastal state applies over its territorial sea. (if any) what are its rights over this territory?

Criminal jurisdiction over foreign merchant vessels shall be determined by the application of either the English Rule or the French Rule

Innocent passage and involuntary entrance are recognized exceptions, provided that in case of involuntary entrance, the distress on the vessel must be real

Explain how the jurisdiction of a coastal state applies over its contiguous zone. (if any) what are its rights over this territory?

As indicated above, under the UN Convention on the Law of the Sea, the coastal State may exercise the control necessary to prevent infringement of its customs, fiscal, immigration, and sanitary regulations, and punish the said infringement

Explain how the jurisdiction of a coastal state applies over its exclusive economic zone. (if any) what are its rights over this territory?

Under the UN Convention on the Law of the Sea, the coastal State has sovereign rights over the exclusive economic zone for purposes of exploring and exploiting, conserving and managing the natural resources, whether living or nonliving, of the seabed, the subsoil and the superjacent waters, as well as the production of energy from the water, currents and winds

Other States shall have the freedom of navigation and over-flight, to lay submarine cables and pipes, and other lawful uses

Explain how the jurisdiction of a coastal state applies over its continental shelf. (if any) what are its rights over this territory?

The coastal State enjoys the right of exploitation of oil deposits and other resources in the continental shelf

In case the continental shelf extends to the shores of another State, or is shared with another State, the boundary shall be determined in accordance with equitable principles

A state may exercise jurisdiction on the high seas over 5 matters. What are they?

(1) its vessels
(2) pirates
(3) those engaged in illicit traffic in drugs and slave trade
(4) in the exercise of the right to visit and search
(5) under the doctrine of hot pursuit

(1) How does a state’s jurisdiction apply over its vessels
(2) Explain the provision of UNCLOS on the “flags of convenience controversy”

(1) The flag State has jurisdiction over its public vessels wherever they are, and over its merchant vessels on the high seas

(2) A vessel shall have the nationality of the flag it flies, provided there is a genuine link between the State (whose flag is flown) and the vessel, i.e., the State must effectively exercise jurisdiction and control in administrative, technical, and social matters over the ship

On the high seas, how does state jurisdiction apply over pirates?

Pirates are enemies of all mankind; they may be captured on the open seas by the vessels of any State, to whose territory they may be brought for trial and punishment

On the high seas, how does jurisdiction apply over those engaged in illicit traffic in drugs and slave trade?

All States shall cooperate in the suppression of illicit traffic in narcotics and slave trade. Of late, the same rule should apply with respect to terrorists. Likewise, all States shall cooperate in the suppression of unauthorized broadcasting from the high seas, except in case of distress calls

On the high seas, explain the concept of “in the exercise of the right to visit and search”

Under the laws of neutrality, the public vessels or aircraft of a belligerent State may visit and search any neutral merchant vessel on the open seas and capture it if found to be engaged in activities favorable to the other belligerents

Explain the concepts mentioned under the doctrine of hot pursuit

If an offense is committed by a foreign merchant vessel within the territorial waters of the coastal State (or if the coastal State has good reason to believe that such an offense had been committed), the said State's vessels (warships, military aircraft, other ships cleared and identifiable as being in government service and authorized to that effect) may pursue the offending vessel into the open seas and, upon capture, bring it back to its territory for punishment

However, to be lawful, the pursuit must have begun before the offending vessel has left the territorial waters or the contiguous zone of the coastal State; the pursuit must be continuous and unabated; and it ceases as soon as the ship being pursued enters the territorial sea of its own, or of a third, State. This right may be exercised with respect to violations committed in the exclusive economic zone or on the continental shelf installations

In jurisdiction over other territories (extra-territorial jurisdiction), a state may extend its jurisdiction to a territory not within its sovereignty under 5 cases. What are they?

(1) Assertion of personal jurisdiction over its national abroad
(2) By virtue of its relations with other States, as when it establishes a protectorate, or a condominium, or administers trust territory, or occupies enemy territory in the course of war
(3) As a consequence of waiver of jurisdiction by the local State over persons and things within the latter's territory, e.g., foreign army stationed in the local State
(4) Through the principle of exterritoriality, exemption of persons and things from the local jurisdiction on the basis of international custom. Distinguish this from the principle of extraterritoriality, wherein exemption from jurisdiction is based on treaty or convention. The latter principle is discredited
(5) Through the enjoyment of easements and servitudes. See the Portuguese Enclave case, where it was held that Portugal had the right of passage through Indian territory

Explain and differentiate the principles of “exterritoriality” and “extraterritoriality”

Exterritoriality = Legitimate immunity based on international custom (e.g. diplomats)

Extraterritoriality = Outdated immunity based on treaties, now considered unfair

(1) When was the Rome Statute of the ICC adopted?
(2) How many states has ratified it since?

(1) July, 1998

(2) over 100 States

(1) What were the 2 tribunals prior to the ICC?
(2) What were their main purpose?

(1) International Criminal Tribunal for Rwanda or ICTR and International Criminal Tribunal for the former Yugoslavia or ICTY

(2) To try war crime

The jurisdiction of the ICC shall be limited to what?

The most serious crimes of concern to the international community as a whole

ICC has jurisdiction to 4 crimes, what are they?

(1) genocide
(2) crimes against humanity
(3) war crimes
(4) crimes of aggression

ICC: The 2010 Kampala Review Conference adopted a definition of “aggression” based on?

UN General Assembly Resolution 3314 (1974)

Recite the definition of aggression as stated in the Rome Statute (Art. 8bis)

The planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations

Recite the definition of aggression contained in General Assembly Resolution 3314 (1974)

The use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations

Explain the concept of individual liability in the ICC

It is the individual and not the State that is on trial. As such, the individual becomes a subject of international law during such situations

When did the Philippines (1) signed and (2) ratified the ICC statute?

(1) December 28, 2000
(2) 2011

(1) When did the Philippines withdrew from the ICC?
(2) When did the withdrawal came into effect?

(1) March 17, 2018
(2) March 17, 2019

Explain the provision on Art. 127.2 of the ICC statute

The ICC claims to retain its jurisdiction over crimes committed during the time in which the Philippines was party to the Statute and may exercise this jurisdiction even after the withdrawal became effective