Descripción de las variables

Q136: What is sovereign immunity?

A136: The result of independence, territorial supremacy, and equality. A state shall enjoy immunity from the exercise of jurisdiction by another state, except when it has given its consent or submitted voluntarily to the jurisdiction of the state concerned.

A state enjoys immunity in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention [UN Convention on Jurisdictional Immunities of States and Their Property, 2004].

Q137: The Principality of Syldavia entered into a maintenance contract with SCB Corp., for the maintenance of the Syldavian Embassy’s physical infrastructure. The contract was entered into in 2002 and would be automatically renewed in 2007, if any of the parties failed to cancel at the date of expiry. In 2008, the new Syldavian ambassador terminated the agreement. SCB Corp. sued alleging that the termination was arbitrary and unlawful. Syldavia alleged that as a sovereign state, it cannot be sued as a party-defendant.

SCB counters that by entering into a contract, Syldavia waived its immunity. Is SCB correct?

A137: No. The mere entering into a contract by a foreign State with a private party cannot be construed as the ultimate test of whether or not it is an act jure imperii (public act) or jure gestionis (private act). There is no dispute that the establishment of a diplomatic mission is an act jure imperii. A sovereign State does not merely establish a diplomatic mission and leave it at that; the establishment of a diplomatic mission encompasses its maintenance and upkeep. Hence, the State may enter into contracts with private entities to maintain the premises, furnishings and equipment of the embassy and the living quarters of its agents and officials. It is therefore clear that the Principality of Syldavia was acting in pursuit of a sovereign activity when it entered into a contract with SCB for the upkeep of the embassy. [Republic of Indonesia v. Vinzon, G.R. No. 154705 (2003)]

Q138: What is the rule on use of force in international relations?

A138: All [United Nations] Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations [Article 2(4), UN Charter].

Q139: What is the rule on self-defense in international relations?

A139: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security [Article 51, UN Charter].

Q140: What are the privileges of consular officers?

A140: 1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority.

2. Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3. If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular officer, the proceedings against him shall be instituted with the minimum of delay [Article 41, Vienna Convention on Consular Relations].

1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions.

2. The provisions of paragraph 1 of this article shall not, however, apply in respect of a civil action either:

a. arising out of a contract concluded by a consular officer or a consular employee in which he did not contract expressly or impliedly as an agent of the sending State; or

b. by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft [Article 43, Vienna Convention on Consular Relations].

Q141: What is a jus cogens norm or peremptory norm of international law, and what is the status of a treaty provision which conflicts with such a norm?

A141: A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law […] [a] peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character [Article 53, Vienna Convention on the Law of Treaties]

Q142: What are the privileges and immunities of a diplomatic agent?

A142: Privileges:

1. The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity [Article 29, Vienna Convention on Diplomatic Relations (VCDR)].

2. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the premises of the mission.

3. His papers, correspondence and, except as provided in paragraph 3 of article 31, his property, shall likewise enjoy inviolability [Article 30, VCDR].

Immunities:

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:

a. A real action relating to private immovable property situated in the territory of the receiving State, unless he holds it on behalf of the sending State for the purposes of the mission;

b. An action relating to succession in which the diplomatic agent is involved as executor, administrator, heir or legatee as a private person and not on behalf of the sending State;

c. An action relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions.

2. A diplomatic agent is not obliged to give evidence as a witness.

3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures concerned can be taken without infringing the inviolability of his person or of his residence.

4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending State.

Q143: What is extradition? The principles of dual criminality and specialty?

A143: The practice of extradition enables one state to hand over to another state suspected or convicted criminals who have fled to the territory of the former. It is based upon bilateral treaty law and does not exist as an obligation upon states in customary law. It is usual to derive from existing treaties on the subject certain general principles, for example that of double criminality, i.e. that the crime involved should be a crime in both states concerned, and that of specialty, i.e. a person surrendered may be tried and punished only for the offence for which extradition had been sought and granted [Shaw, International Law].

Q144: Who are stateless persons?

A144: For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law (Article 1(1), 1954 Convention Relating to the Status of Stateless Persons).

Q145: What is the legal status of the territorial sea, of the air space over the territorial sea, and its bed and subsoil?

A145: The sovereignty of a coastal State extends beyond its land territory and internal waters and, in the case of an archipelagic State, its archipelagic waters, to an adjacent belt of sea, described as the territorial sea. The breadth of the territorial sea shall not exceed 12 nautical miles, measured from baselines determined in accordance with the UNCLOS. The sovereignty of a State extends to the air space over the territorial sea as well as to its bed and subsoil.

Q146: What is a low-tide elevation?

A146: According to Article 13 of the UNCLOS, a low-tide elevation is a naturally formed area of land which is surrounded by and above water at low tide but submerged at high tide.

Where a low-tide elevation is situated wholly or partly at a distance not exceeding the breadth of the territorial sea from the mainland or an island, the low-water line on that elevation may be used as the baseline for measuring the breadth of the territorial sea.

Where a low-tide elevation is wholly situated at a distance exceeding the breadth of the territorial sea from the mainland or an island, it has no territorial sea of its own.

Except where a low-tide elevation falls within the breadth of a territorial sea generated from a high-tide feature or mainland, it generates no territorial sea of its own. Necessarily, such a low-tide elevation is not entitled to an exclusive economic zone or continental shelf [Philippines v. China, 2016].

Q147: How is an island defined under international law?

A147: According to Article 121 of the UNCLOS, an island is a naturally formed area of land, surrounded by water, which is above water at high tide. Save for the cases of rocks, marine entitlements of islands, such

as a territorial sea, contiguous zone, exclusive economic zone, and continental shelf, are determined in accordance with the provisions of the Convention.

Q148: How is a rock defined under international law?

A148: Rocks are features which cannot sustain human habitation or economic life of their own. (UNCLOS, Art. 121(3)) Rocks are not entitled to an exclusive economic zone or continental shelf. Rocks are a category of island. Rocks may be composed of solid rock or matter that is rock-like in nature [Philippines v. China, 2016]. In the Territorial and Maritime Dispute case between Nicaragua and Colombia, the International Court of Justine ruled that a miniscule protrusion of coral qualified as a rock since it satisfied the definition under Art. 121(3) of the UNCLOS.

Q149: What are the rights, jurisdiction, and duties of the coastal State with respect to the Exclusive Economic Zone?

A149: According to Art. 56 of the UNCLOS, the coastal state has sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone.

The coastal state has jurisdiction with regard to (1) the establishment and use of artificial islands, installations and structures, (2) marine scientific research, (3) the protection and preservation of the marine environment.

The EEZ shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured. (UNCLOS, Art. 57)

Q150: What is the difference between a rock and island in international law?

A150: Unlike islands, rocks cannot sustain human habitation or economic life.

In Philippines v. China, the Permanent Court of Arbitration ruled that to sustain human habitation is to provide that which is necessary to keep humans alive and healthy over a continuous period of time, according to proper standard. It further ruled that to sustain economic life is to sustain means to provide that which is necessary not just to commence, but also to continue, an activity over a period of time in a way that remains viable on an ongoing basis.

While islands are generally entitled to the marine entitlements of territorial sea, exclusive economic zone, and continental shelf, rocks are not.

Q151: What is the jurisdiction of the International Court of Justice (ICJ)?

A151: According to Art. 36 of the ICJ Statute, the jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.

Q152: Define a treaty under international law.

A152: Under Article 2 of the Vienna Convention on the Law of Treaties, a treaty means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation.

Q153: What is an erga omnes obligation?

A153: Obligations erga omnes are obligations of a State owed to international community as a whole. These obligations are the concerns of all States, and for whose protection all States have a legal interest.

Examples include the right to self-determination and the protection of basic human rights.

Q154: Who are entitled to immunity from local jurisdiction?

A154:

1. Diplomatic agent and members of the family of the diplomatic agent forming part of his household, who are not nationals of the receiving state;

2. Administrative and technical staff

As to criminal jurisdiction, members of the administrative and technical staff of the diplomatic mission, as well as members of their families forming part of their respective households, who are not nationals of or permanent residents in the receiving state;

As to civil and administrative jurisdiction, immunity shall not extend to acts performed outside the course of their duties; and

3. Service staff: Members of the service staff of the diplomatic mission, who are not nationals of or permanent residents in the receiving state, with respect to acts performed in the course of their duties [VCDR, art. 37].

Q155: Define innocent passage.

A155: Passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State.

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

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of the coastal State, or in any other manner in violation of the principles of international law embodied in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defence or security of the coastal State;

(d) any act of propaganda aimed at affecting the defence or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

Q156: What are the two elements of customary international law?

A156: International customary rules are accepted as binding as a result from the combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinion juris sive necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law requiring it. [Poe-Llamanzares v. COMELEC, G.R. No. 221697 (2016)]

Q157: What is the precautionary principle?

A157: In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation [Principle 15, Rio Declaration]

The Rules of Procedure for Environmental Cases provides that when there is a lack of full scientific certainty in establishing a causal link between human activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it. [Rule 20, Sec. 1]

In applying the precautionary principle, the following factors, among others, may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3) prejudice to the environment without legal consideration of the environmental rights of those affected. [Rule 20, Sec. 2]

In the recent case of International Service for the Acquisition of Agri-Biotech Applications, Inc., v. Greenpeace [G.R. No. 209271, December 8, 2015] the Court clarified that For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff — (a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When these features— uncertainty, the possibility of irreversible harm, and the possibility of serious harm — coincide, the case for the precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a balanced and healthful ecology. [NB: The Court later overturned its 2015 decision in a Resolution on nine separate Motions for Reconsideration on the ground of mootness, since the field testing of BT Talong which was sought to be enjoined had already expired]

Q158: The Rome Statute accords the International Criminal Court jurisdiction over which crimes?

A158: The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

(a) The crime of genocide;

(b) Crimes against humanity;

(c) War crimes;

(d) The crime of aggression. [Rome Statute, Art. 5]