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Legation and Non-

amicable Hostilities
Group 1
What is legation or the right of legation?

- It refers to the act or practice of sending a diplomat to

another country.

The Right of Legation

- It is also known as right of diplomatic intercourse.

This refers to the right of the state to send and receive
diplomatic representatives.
- It is governed by the Vienna Convention on Diplomatic
Relations of 1961.
What is a legate?

- Is a person sent as a representative of a state or

of some high authority.

- S/he could be a member of a legation or

diplomatic embassy.
Legation constitutes:

The right to diplomatic intercourse entails the right

to have its flag and emblem flown by its

head of the mission and in the premises of its

diplomatic mission in the receiving state’s territory.
Under Article 22:

1. The right to the inviolability of the mission in which

case the agents of the receiving state may not enter
them, except with the consent of The head of the

2. The receiving state is under a special duty to take

all appropriate steps to protect the premises of the
mission against any intrusion or damage and to
prevent disturbance of the peace of the mission or
impairment of its dignity.
• An ambassador is the foreign diplomatic
representative of a nation who is authorized to
handle political negotiations between his or her
country and the country where the ambassador has
been assigned.
• A public officer, clothed with high diplomatic powers,
commissioned by a sovereign prince or state to transact
the international business of his government at the
court, of the country to which he is sent.

• The commissioner who represents one country in the

seat of government of another.

• Ambassador is a person sent by one sovereign to

another, with authority, by letters of credence, to treat
on affairs of state.
• The powers of an ambassador are specified in his
or her credentials, or documents of introduction,
which the ambassador submits to the foreign
Other Functions
1. Represent the home country in the host country
2. Protect the interests of the home country and its citizens in the host
3. Negotiate with the government of the host country
4. Monitor and report on conditions and developments in the commercial,
economic, cultural, and scientific life of the host country
5. Promote friendly relations between the host country and the home
List of Foreign Embassies
Africa Americas Asia Europe Oceania
Egypt Argentina Bahrain Malaysia Austria Australia

Kenya Brazil Bangladesh Myanmar Belgium New Zealand

Libya Canada Brunei Oman Czech Republic Papua New Guinea

Nigeria Chile Cambodia Pakistan France

South Africa Mexico China Qatar Germany

United States India Singapore Greece

Indonesia Saudi Arabia Holy See

Iran Syria Hungary

Republic of China
Iraq Italy

Israel Thailand Netherlands

Japan Timor-Leste Norway

Jordan Thailand Poland

South Korea Turkey Portugal

Kuwait United Arab Emirates Russia

Laos Vietnam Spain

Lebanon Switzerland

United Kingdom
• https://thelawdictionary.org/ambassador/
• http://law.jrank.org/pages/4281/Ambassadors-
• http://legal.un.org/ilc/texts/instruments/english/co
• https://www.dfa.gov.ph/resources/office-of-

O Article 6 of the Vienna Convention on

Diplomatic Relations
O The appointment of an ambassador is
subjected to the assent of the receiving
O Once a person has been accepted as envoy,
he should be given certain rights and


(Enquiry) (Agrément)

A diplomatic procedure by which a state

determines in advance whether a proposed envoy
will be acceptable to the receiving state

•Lettre de creance
(letter of credence),
authorizing his
•Instructions, and
•Cipher, or code or
secret key,
In the Philippine Setting…
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint
all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by
law to appoint. The Congress may, by law, vest the appointment of other
officers lower in rank in the President alone, in the courts, or in the heads
of departments, agencies, commissions, or boards.

The President shall have the power to make appointments during the
recess of the Congress, whether voluntary or compulsory, but such
appointments shall be effective only until disapproved by the Commission
on Appointments or until the next adjournment of the Congress.

(Section 16, Article 7, 1987 Philippine Constitution)

O Section 16 of Republic Act 7157 also
known as the Philippine Foreign
Service Act of 1991 provides:
O Section 16. Ambassadorial Appointments. – The
President shall nominate and, with the consent of
the Commission on Appointments, appoint
ambassador extraordinary and plenipotentiary to
head embassies and permanent missions. All
ambassadorial appointments shall be to a
particular post only.
Immunities & Privileges
The appointment of the ambassador is subjected to
the assent of receiving state. In other words the
person who is going to be appointed as a
diplomatic envoy in a country it is necessary that
he must persona grata, for the receiving state.
Other wise he should be refused. So, it is a duty of
the sending state to send a report regarding the
person to be appointed as diplomatic envoy to the
receiving state. Once a person has been accepted
as envoy he should be given certain rights and

 to communicate with his government

fully and freely is universally recognized.
The mission may employ all appropriate
means to send and receive messages,
whether ordinary or in cipher, by any of
the usual modes of communication or by
means of diplomatic couriers.
Under the 1961 Vienna Convention on Diplomatic Relations, a
diplomatic agent shall enjoy immunity from criminal
jurisdiction of the receiving State. Thus, he cannot be
arrested, prosecuted and punished for any offense he may
commit, unless his immunity is waived. But immunity from
jurisdiction does not mean exemption from local law; it
does not presuppose a right to violate the laws of the
receiving State.
Diplomatic privilege does not import immunity from legal
liability but only exemption from local jurisdiction
[Dickinson v. Del Solar, 1 K.B. 376].
no civil action of any kind may be brought against him, even with respect to matters
concerning his private life. As a rule, his properties are not subject to garnishment,
seizure for debt, execution and the like, except in the following cases:
a.) any real action relating to private immovable property situated in the territory of the
receiving State, unless the envoy 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; and

c) an action relating to any professional or commercial activity exercised by the diplomatic

agent in the receiving State outside his official functions.
not even by deposition, without the consent of his government, before any judicial or
administrative tribunal in the receiving State.
However, see Minucher v. Court of Appeals, G.R. No. 97765, September 24, 1992,
where the Supreme Court held that the act of private respondent Drug
Enforcement Agent of the U.S. in the frame-up of petitioner was unauthorized and
could not be considered performed in the discharge of official functions, despite
a belated diplomatic note from the US Embassy; thus, suit against the private
respondent was upheld, being a suit against him in his personal and private
Shauf v. Court of Appeals, 191 SCRA 713, where
it was held that the immunity does not protect
a public official who commits unauthorized
acts, inasmuch as such unauthorized acts are
not acts of State. Accordingly, he may be sued
for such unlawful acts in his private capacity.
declares as void any writ or process issued out or prosecuted by any person in any
court of the Philippines, or by any judge or justice, whereby the person of any
ambassador or public minister of any foreign State, authorized and received as
such by the President, or any domestic servant of any such ambassador or
minister, is arrested or imprisoned, or his goods or chattels distrained, seized or
attached; and penalties are imposed for violation of this provision. However, this
privilege is not granted to: [a] citizens/inhabitants of the Philippines, where the
process is founded upon a debt contracted before his employment in the
diplomatic service; and [b] domestic servants of the ambassador or minister
whose names are not registered with the Department of Foreign Affairs.
As part of the envoy’s immunity from local jurisdiction, the children born to him while
he possesses diplomatic status are regarded as born in the territory of his home
Under the Vienna Convention, diplomatic agents are exempt from all dues
and taxes, whether personal or real, national, regional or municipal,
except the following: [i] indirect taxes normally incorporated in the price
of goods or services; [ii] dues and taxes on private immovable property
situated in the territory of the receiving State, unless he holds it on
behalf of the sending State for purposes of the mission; [iii] estate,
succession or inheritance taxes levied by the receiving State; [iv] dues
and taxes on private income having its source in the receiving State and
capital taxes on investments in commercial ventures in the receiving
State; [v] charges levied for specific services rendered; and [vi]
registration, court or record fees, mortgage dues and stamp duty, with
respect to immovable property.
the official use of the mission and those for the personal use of the
envoy or members of the family forming part of his household,
including articles intended for his establishment. Baggage and
effects are entitled to free entry and, normally, exempt from
inspection; articles addressed to ambassadors, ministers, charge
d’affaires are also exempt from customs inspection.

exemption from all personal services and military

obligations; the use of the flag and emblem of the
sending State on the diplomatic premises and the
residence and means of transport of the head of
The privileges are enjoyed by the envoy from the moment
he enters the territory of the receiving State, and shall
cease only the moment he leaves the country, or on
expiry of a reasonable time in which to do so; although
with respect to official acts, immunity shall continue
Diplomatic privileges may be waived, but as a rule, the
waiver cannot be made by the individual concerned
since such immunities are not personal to him. Waiver
may be made only by the government of the sending
State if it concerns the immunities of the head of
mission; in other cases, the waiver may be made
either by the government or by the chief of mission.
Nature Of Office Of Consuls
 They are state agents residing abroad for various purposes but
mainly in the interest of COMMERCE AND NAVIGATION.
 Unlike diplomatic agents, they are not charged with the duty of
representing their states in political matters
 Nor are they accredited to the state where they are supposed to
discharge their functions.
 Consuls do not enjoy all the traditional diplomatic immunities
and privileges.
 They are, however, entitled to SPECIAL TREATMENT under the
law of nations.
Historical Evolution of Consuls

 Dates back to 6 BC when Egyptians allowed the Greeks at

Naucratis to choose from among themselves a magistrate who
would apply to them the laws of their own country. They were
called PROXENOI (protectors or prostrates).
 The practice was modified by the Romans with the appointment
of their PRAETOR PEREGRINUS, who interpreted the law
between the Romans and foreigners.
 The Visigoths, after their conquest of Rome, later established a
special court that applied to foreigners their own national laws
rather than the law of the territorial sovereign.
 On the other hand, the Chinese also created similar courts in the
8th century while the Arabs in the 9th century.
 When commercial trade flourished among the Mediterranean
cities and the Near East, ‘treaties of capitulation’ were made
exempting European nationals in the Near East from local
jurisdiction and made them triable by their own consuls.
Kinds of Consuls
 Consules Missi – Professional or career consuls who are
NATIONALS of the appointing state and required to devote full
time to the discharge of their consular duties.
 Consules Electi – They may or may not be nationals of the
appointing state. They perform their consular functions only in
addition to their regular callings.
 Consuls are further classified according to rank or grade: Consul
General, Consul, Vice-Consul, and Consular Agent.
Appointment of Consuls
 Two important documents are necessary before a consul
assumes his functions:
1) Lettre de Provision (Letters Patent) – The of appointment or
commission issued by the sending state and transmitted to the
Secretary/Minister, Foreign Affairs of the receiving state.
2) Exequatur – The authority given to consul by the RECEIVING
STATE authorizing them to exercise their duties. By it, consuls
are public office both
Functions/Duties Of Consul
 Promotes the commercial interests of his country in the receiving
state and observes the commercial trends and developments
therein for report to his home government.
 Performs duties relating to navigation, such as visiting and
inspecting vessels of his own state which may make call at his
consular district. He may also exercise a measure of supervision
over such vessel, adjusting matters pertaining to their internal
order and discipline.
 Issues passport to the nationals of the sending state
 Issues visas and other documents relating to entry into and
travel within the territory of the sending state.
 Issues visa invoices and certificates of origin of goods destined
for the territory of that state.
 Looks after the interests of fellow national and extends to them
official assistance when needed.
 Authenticates documents, solemnizes marriages, registers births
and deaths, administers temporarily estates of deceased
nationals within the consular district, advises and adjusts
differences between fellow nationals, etc.
Immunities & Privileges of Consul
 Freedom of communication in cipher or codes.
 Inviolability of archives, BUT NOT THE PREMISES. Hence, legal
processes may be served and arrests made within consular
 Exempt from local jurisdiction for offenses COMMITTED IN
 Exempt from testifying on OFFICIAL COMMUNICATIONS
or on matters pertaining to consular functions.
 Exempt from taxes, customs duties, military or jury service.
 Right to display their national flag and emblem in the
 Exempt from taxes, customs duties, military or jury service.
 Right to display his national flag and emblem in the consulate.
 The immunities and privileges are also available to the members
of the consular post, their respective families, and the private
 WAIVER OF IMMUNITIES, in general may be made ONLY BY
 Immunity from jurisdiction on acts performed in the exercise of
consular duties will subsist without limitation of time.
In Re Kasenkina
 The US rejected the protest made by Russia against the service of
writ of habeas corpus upon the latter’s consul at his official
residence in New York for the production of a Russian
schoolteacher alleged to have been detained in the premises.
 Note: Consular offices may be expropriated for purposes of
national defense or public utility.
Walthier v. Thomson,
189 F. Supp. 319 (1960)
 Facts: Thomson was sued for damages resulting from certain
statements allegedly made by him while in the discharge of his
 Held: A consular official is immune from suit when the acts
complained of were performed in the course of his official duties.
Hence, statements allegedly made to Walthier by Thomson were
uttered in pursuance of the latter’s official functions as consular
officer, then the suggestion of the ambassador of Canada should
be adopted and the defendant held immune.
Termination Of Consular Mission

 Removal
 Resignation

 Death

 Expiration of terms

 Withdrawal of the exequatur

 War between the receiving and sending states

Note: Severance of consular relations does not necessarily terminate

diplomatic relations.
Immunities and
Privileges of Consuls
Under the 1963 Vienna Convention on Consular
 Inviolability of archives, BUT not of the premises
where legal processes may be served and arrests

 Exempt from local jurisdiction for offenses

committed in the discharge of official functions,
BUT not other offenses except minor infractions;

 Consuls are allowed freedom of communication in

cipher or otherwise;
 Exempt from testifying on official
communications or on matters pertaining to
consular functions;

 Exempt from taxes, custom duties, military or

jury service; and

 May display their national flag and emblem in

the consulate.
 To the members of the consular post;

 To their families;

 And to their private staff.

NOTE: Waiver of immunities may be made by the

appointing state.
Treatment of Aliens
Right to Exclude Aliens
 Every state has the right, as inherent in sovereignty and essential
to its own security and existence, to determine in what cases and
under what conditions foreigners may be admitted to its
 Includes the power to regulate the entry and stay of aliens and
the right to expel them through deportation or reconduction.
 Aliens must accept the institutions of the state as he finds them.
 Aliens may be deprived of certain rights,
e.g., political rights, acquisition of lands, etc.
 Or, they may granted certain rights and
privileges based on:
- reciprocity
- MFN treatment (most favored nation)
-National treatment
 But once it decides to accept aliens, its
competence as territorial sovereign is limited
by the requirement that they be treated
justly, in accordance with the law of nations.
Expulsion or Deportation
 Predicated on the ground that
- the stay of the alien constitutes a menace to the security of the
- his entry was illegal;
- permission to stay has expired; or
- he has violated any limitation or condition prescribed for his
admission and continued stay.
 The forcible conveying of aliens back to their home state.
 Destitute aliens, vagabonds, alines without documents, alien
criminals, and the like, may be arrested and reconducted to the
frontier without any formalities.
 The home state of such aliens has the obligation to receive them
Doctrine of State Responsibility
 A state is under obligation to make reparations to another state
for its failure to fulfill its primary obligation to afford, in
accordance with international law, the proper protection due to
the alien national for:
- Acts or omissions constituting an international delinquency;
- Acts or omissions directly or indirectly imputable to the state;
- Indirect injury sustained by the claimant State due to the
damage of its national.

 This is when an alien can claim a more favored position than the
national of the local state and hold the state liable for injuries
committed against him while within its territory.
 Function: to assure the traveler that when his rights are violated
Act or Omission Constituting
International Delinquency
 The treatment of the alien should amount to an outrage, to bad
faith, willful neglect of duty, or insufficiency of governmental
 That every reasonable and impartial man would readily
recognize such treatment to be insufficient and evidence.
International Standard of Justice
 The standard of the reasonable State, which means reasonable
according to ordinary means and notions accepted in modern
 Execution of an alien without trial considered as falling below
international standard of justice.
 Simply put, it is the standard of a reasonable state as referring to
the ordinary norms of official conduct observed in civilized

Doctrine of Equality of Treatment – laws are applicable not only to

aliens but to nationals as well.
 Where the laws of the State fall below the
international standard, it is no defense that
such laws are applicable not only to aliens
but to a nationals also. Doctrine of equality
of treatment does not apply.
 The independence of the courts of the State
is an accepted canon of civilized
governments, and unless the misconduct is
extremely gross, the law does not lightly
hold a State responsible for any error
committed by the Courts.
Act or Omission Directly or
Indirectly Imputable to the State
 Even when the laws of the State conform to the international
standard of justice, the act or omission causing damage to the
alien may be directly imputable to the State if the latter does not
make reasonable effort, to prevent injury to the alien, or having
done so unsuccessfully, fails to repair such injury.
Act or omission may either be:
 Acts of Government Officials [direct responsibility]
 Acts of Private Individuals [indirect responsibility]
Acts of Government Officials
 These are acts of the primary agents of the State (heads of State)
and high administrative official within the gamut of their
authority which will give rise to direct state responsibility.
 Where the officer acts beyond the scope of his authority, his act is
likened to an act of a private individual.
 For acts of minor or subordinate official to give rise to liability,
there must be a DENIAL OF JUSTICE or something which
indicates COMPLICITY of the State in, or CONDONATION OF,
the original wrongful act, such as an omission to take
disciplinary action against the wrongdoer subordinate official.
Acts of private individuals
For State to be held responsible, it must be shown that there was:
 ACTUAL or TACIT COMPLICITY of the government in the act,
 In PATENT or MANIFEST NEGLIGENCE in taking measures to
prevent the injury (e.g., not doing investigation of the case, or
not punishing the guilty, or not affording the victim opportunity
to pursue his civil remedies against the offender).
 Claimant has the onus to prove such state negligence.
Enforcement of Alien’s Claim
 An international claim for damages may be resolved through
negotiation or, if this fails, any of the other methods of settling
 In the event that the responsibility of the state is established or
acknowledged, the duty to make reparation will arise. Such
reparation take form of RESTITUTION or SATISFACTION or

 Exhaustion of local remedies

 Resort to diplomatic protection
 Modes of enforcement of claims
Enforcement of Local Remedies
 Alien must first exhaust all available local remedies for the
protection or vindication of his rights,
 The State must be given opportunity to do justice in its own
regular manner of dispensation and without unwarranted
interference with its sovereignty by other States.

 No remedies to exhaust.
 No adequate machinery for the administration of justice.
 International delinquency results from an ‘act of state’.
The Calvo Doctrine
 From a substantive perspective, it required equality of treatment
between nationals of the Host State and aliens, therefore rejecting
any claim for better treatment, and recognition, of the
“International Minimum Standard” of treatment.
 From a procedural perspective, it denied aliens access to fora and
remedies that were not available to nationals, and effectively
limited their options to recourse to the domestic judicial system.

 A stipulation by which an alien waives or restricts his right to

appeal to his own state in connection with any claim arising
from the contract and agrees to limit himself to the remedies
available under the laws of the local state.
 The stipulation cannot be interpreted to deprive the alien’s State
of the right to protect or vindicate his interests in case he is
injured in another state.
 Such waiver can legally be made not by the alien but by his own
Resort to Diplomatic Protection
 Available only after exhaustion of local remedies without
success. Alien to seek assistance from his state as its national in
seeking redress of his injury.
 A stateless person cannot be subject to diplomatic protection. His
case may be one of damnum absque injuria.
The Barcelona Traction Case
[Barcelona Traction, Light and Power Company, Ltd.
(Belgium v. Spain), 2nd Phase Judgment, 05 Feb 1970]

 Incorporation Rule: The right of diplomatic protection of a

company belongs to its national State, defined as the State under
whose law the company was formed or in whose territory it has
registered office. Hence, a State does not have standing to
espouse claims on behalf of a company incorporated somewhere
else, not even when the controlling shareholders are nationals of
the State.
 Exceptions:
1. Where municipal law is the source of such shareholder rights;
2. On behalf of nationals for harm to the company under two
exceptional situations as a matter of equity, to wit: a) Where the
company ceases to exist; and (b) Where the State of incorporation
of the company is the state alleged to have committed the harm
Tie of Nationality
 In order for an alien to validly resort assistance from its State, it
is a requirement that the TIE OF NATIONALITY must exist from
the time of the injury until the time the international claim is
finally settled.
 Once this tie is broken, i.e. the injured national dies while the
claim is under consideration and his heir are not nationals of the
claimant state, the claim itself is deemed automatically abated.
Exceptions Rule on Tie of Nationality
 Diplomatic claim filed by the UN on behalf of its officials.
 An injured individual may bring suit against any state before the
European Court of Human Rights (ECHR) for alleged infractions
on the provisions of the European Convention Human Right, the
European Commission on Human Rights and the contracting
Modes in Enforcing Alien Claims
 Negotiation
 Tender Good offices
 Arbitration
 Judicial Settlement
Note: When the responsibility of the State is established, the duty
to make reparation will arise. Reparation may be in the form of:
 Restitution
 Satisfaction
 Compensation
 Or, combination of all three modes.
 Negotiation – The process by which states
adjust their differences by an exchange of
their view, generally through diplomatic
 Tender of Good offices – A third party,
either alone or in collaboration with others,
offers to help in the settlement of a dispute.
If the offer is accepted, there is now an
‘exercise of good offices’.
 Arbitration – The solution of the dispute by
an impartial third party, usually a tribunal
created by the parties themselves under a
charter known as a compromis.
 Judicial settlement – Consists in the
reference of a dispute to the ICJ or to other
tribunals provided for in existing treaties or
which may be provided for in subsequent
 The surrender of a person by one state to another state where he
wanted for prosecution or if already convicted, for punishment.
 Primarily, based on treaty.
 In the absence of a treaty, the local state may grant asylum to the
fugitive or surrender him to the requesting state. If the latter is
made, the same is merely a gesture of comity.
 Extradition differs from Deportation in that in the latter, the
expulsion of an alien by reason of being undesirable, is a
unilateral act of the local state and made exclusively for its own
Fundamental Principles in
 It is based on consent, as expressed in a treaty or manifested as
an act of goodwill.
 Principle of specialty
 It covers any person whether he is a national of the requesting
state, of the state of refuge or of another state.
 Political and religious offenders, as a general rule, are not subject
to extradition.
 In the absence of special agreement, the offense must have been
committed within the territory or against the interest of the
requesting state.
 Rule on Double Criminality.
Principle of Specialty
 A fugitive who is the subject of extradition can be
tried only for:
(a) The crime SPECIFIED in the request for
extradition; and
(b) The crime must be INCLUDED IN THE LIST
of offenses in the extradition treaty.
 The state of refuge may validly object to the request
for extradition if the foregoing principle is violated.
Non-list Types of Extradition
 Offenses punishable under the laws of both states by
imprisonment of 1 year or more are included among the
extraditable offenses.
The Attentat Clause In Extradition
 The murder of the head of state or any member of his family is
not be regarded as a political offense for purposes of extradition.
 Neither is the crime of genocide as defined in the Genocide
Crime of Genocide
 Consists of any of the following acts, committed with intent to
destroy, in whole or in part, a national, ethnical, racial or
religious group such as:
 Killing members of the group.
 Causing serious bodily or mental harm to members of the group.
 Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part.
 Imposing measures intended to prevent births within the group.
 Forcibly transferring children of the group to another group.
Rule on Double Criminality
 The act for which the extradition is sought must be punishable in
BOTH the requesting and requested states.
Procedure in Extradition
 A request for the fugitive’s extradition to be presented through
diplomatic channels to the state of refuge. It will be accompanied
by the necessary papers relative to the identity of the wanted
person and the crime he is alleged to have committed or of
which he has already been convicted.
 Upon receipt of the request, the state of refuge will conduct a
judicial investigation to ascertain if the crime is covered by the
extradition treaty and if there is prima facie case against the
fugitive according to its laws.
 If there is, a warrant of surrender will be drawn and the fugitive
will be delivered to the state of origin.
Jurisprudence on Extradition
 Where a prisoner en route to India escaped
in a French port but was apprehended by a
local policeman and delivered back to the
British authorities and when France
thereafter demanded the prisoner’s return
on the ground that a formal request for his
extradition should have been made, it was
held that: Great Britain was under no
obligation to comply with France’s demand.
[Savarkar Case, Oppenheim-Lauterpacht, 703]
 In Secretary v. Lantion, 343 SCRA 377, it was
held that the demand of Mark Jimenes to be
informed of the charges against him in the
US request for his extradition must fail
because such charges were still being
evaluated and no complaint for extradition
had as yet been filed in court.
RP’s Extradition Treaties
 With Indonesia (1976)
 Australia (1988)
 Canada (1989)
 Switzerland (1989)
 Micronesia (1990)
Note: All these treaties follow the non-list type of double
criminality approach, where there is no traditional listing of
crimes, as this could lead to difficulties where the countries
denominate crimes differently.
Letters Rogatory
 A formal communication from a court in which an action is
pending, to a foreign court, requesting that the testimony of a
witness residing in such foreign jurisdiction be taken under the
direction of court, addressed and transmitted to the court
making the request.
 The power of the state to allow an alien who has sought refuge
from prosecution or persecution to remain within the territory
and under its protection.
 This has never been recognized as a principle of international
Principles of Asylum
 Territorial asylum – Exists only when stipulated in a treaty of
justified by established usage. May depend on the liberal attitude
of the receiving state, on the ground of ‘territorial supremacy’.
 Diplomatic asylum – Granted only if stipulated in a treaty, or
where established usage allows it, but within the ‘narrowest
limits’, or when the life or liberty of the person is threatened by
imminent violence.
Philippine Rule on Diplomatic
 Generally, diplomatic asylum cannot be granted except to
members of the official or personal household of diplomatic
 On humanitarian grounds, refuge may be granted to fugitives
whose lives are in imminent danger from mob violence but only
during the period when active danger persists. [In re Alfredo B.
Saulo; Haya de la Torre, ICJ Reports, 1950, p. 274]
Settlement of
International Disputes
Settlement of International Disputes

What is international dispute?

 A disagreement on a point of law of fact, a conflict of
legal views or interests between 2 persons
 Must have practical effect on the relationship between
the parties
Settlement of International Disputes

Peaceful methods of settling disputes:

 Art. 2, par. 3 of UN Charter: ―All members shall settle
their international disputes by peaceful means in such
manner that international peace and security, and justice
are not endangered.
 There is no obligation to settle disputes except in cases
that might endanger peace and security.
 But if a decision is made to settle disputes, the obligation
is to settle them peacefully.
Settlement of International Disputes

Key provisions in UN Charter:

 Art. 33: (disputes likely to endanger international peace

and security)
 Parties to any dispute shall first of all seek a solution by
negotiation, enquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or
arrangements, or other peaceful means of their choice.
 When it deems necessary, the SC shall call upon the
parties to settle their disputes by such means.
Settlement of International Disputes

Key provisions in UN Charter:

 Art. 36: SC may, at any stage recommend appropriate

procedures or methods of adjustment.
 SC should take into consideration what has already been
adopted by the parties.
 SC should consider that legal disputes should generally
be referred by the parties to the ICJ.
Settlement of International Disputes

Key provisions in UN Charter:

 Art. 37: If parties fail to settle disputes via Art. 33, they
shall refer it to the SC.
 If SC deems the dispute to likely endanger international
peace and security, it shall: (a) take action under Art. 36;
or (b) recommend appropriate terms of settlement.

 Art. 38:
 If all parties request, SC may make recommendations for
pacific settlement.
Settlement of International Disputes

Classifications of peaceful means of settlement:

A. Non-judicial
 Negotiation:

 Preferred since States are hesitant to submit disputes to

adjudicatory bodies.
 No set rules:

 An agreement to negotiate may be formalized via treaty

or exchange of notes.
 May be arm’s-length or face to face.

 To be binding, parties MUST agree to it.

Settlement of International Disputes

Classifications of peaceful means of settlement:

A. Non-judicial
 Preliminary step is ―good offices‖ when a neutral 3rd
party tries to bring 2 disputants together, after which
disputants look for a win-win solution via a give-and-take

 Mediation:
Involves assistance of 3rd parties (approved by
bother parties) who either act as bridge between parties
who don’t meet OR may sit with the disputants to chair
Settlement of International Disputes

Classifications of peaceful means of settlement:

A. Non-judicial

 Inquiry:
Fact-finding done by a designated group of
individuals or institutions.
Resolves disputes based on questions of fact.
Settlement of International Disputes

Classifications of peaceful means of settlement:

A. Non-judicial

 Conciliation:
A more formal technique whereby parties agree to
refer controversies to a 3rd party to make findings of
fact and recommendations.
Generally, parties are not bound by the
recommendations. Merely clears the air.
Settlement of International Disputes

Classifications of peaceful means of settlement:

B. Quasi-judicial
 Arbitration
 Binding settlement of a dispute on the basis of law by a non-
permanent body designated by the parties.
 The compromis d’arbitrage is agreed upon by the parties and
sets out: (a) composition; (b) jurisdiction; (c) rules of procedure to
be applied.
 States cannot be required to submit to arbitration UNLESS there
is a previous agreement.
 Different from judicial settlement since parties have a greater say
in deciding the law applied, composition of tribunal, process, etc.

Settlement of International Disputes

Classifications of peaceful means of settlement:

B. Quasi-judicial

3 types of arbitral agreement:

 a. Arbitration clause incorporated in a treaty

 b. Treaties solely to establish methods of arbitration (i.e.

Hague Convention for Pacific Settlement of Disputes)
 c. Ad-hoc arbitral agreements (i.e. US-Iran claims)
Settlement of International Disputes

Classifications of peaceful means of settlement:

B. Quasi-judicial

 Arbitral decisions
 Applies international law UNLESS parties specify that some other
law applies.
 Arbitral decisions may be challenged if:
 a. the arbitral body exceeds its powers

 b. there was corruption on the part of a member of

the body
 c. failure to state reasons for the awards OR a
serious departure from fundamental rule of
Settlement of International Disputes

Classifications of peaceful means of settlement:

B. Quasi-judicial

 Domestic courts may refuse to give recognition to arbitral

awards under Convention on the Recognition and
Enforcement of Foreign Arbitral Awards:
 a. agreement to arbitrate was not valid under applicable law
 b. adverse party did not receive proper notice OR was not
afforded opportunity to present its case
 c. award is outside the terms of agreement to arbitrate
 d. the constitution of the tribunal OR the arbitral procedure was
contrary to the agreement or the law of the state where
Settlement of International Disputes

Classifications of peaceful means of settlement:

B. Quasi-judicial

 Domestic courts may refuse to give recognition to arbitral

awards under Convention on the Recognition and
Enforcement of Foreign Arbitral Awards:
 e. award has not yet become binding, has been set aside or
suspended by a competent court where it was made
 f. under the law of the adverse party, the subject matter is not
capable of settlement by arbitration
 g. under the law of the adverse party, recognition or enforcement
would be contrary to public policy
Settlement of International Disputes

 C. Judicial

 All members of the UN are ipso facto parties to the Statute of
ICJ, but it does not mean acceptance of the court’s jurisdiction.
 Only means that the State may accept its jurisdiction.
 Only states may be parties in the court.

 General principles:
 a. States cannot be compelled to submit their disputes to
international adjudication unless they consent.
 b. States may limit their acceptance to certain types of disputes
and attache various conditions and reservations.
Settlement of International Disputes

 C. Judicial

 Composition of the ICJ:

 Art. 2: Composed of a body of (a) independent judges,

regardless of nationality, (b) with high moral character,

(c) who possess qualifications required by their
countries for appointment to the highest judicial offices
OR are jurisconsults of recognized competence in
international law.

 Art. 3:
 15 members, no 2 of whom from the same State
Settlement of International Disputes

 C. Judicial

 Art. 4:
 The Court can form chambers, composed of 3 or more judges,
for dealing with particular categories of cases; or (b) particular
cases, the composition to be approved by the parties; or (c) at
the request of the parties.

 Art. 26:
 Chamber decisions are deemed Court decisions.
Settlement of International Disputes

 C. Judicial

 Art. 27:
 Judges of the nationality of the parties shall retain their right to sit
in the case.
 If a judge of the same nationality of a party is included in the
Bench by the Court, the other party may choose a person to sit
as judge, preferably among those nominated as candidates.
 If the Bench does not include a judge of the same nationality as
the judges, the parties may choose a judge.
 The President shall request the members of the Chamber to give
place as necessary.
 Several parties of the same interest are deemed one party only.
Settlement of International Disputes

 C. Judicial

 Jurisdiction of the ICJ:

 1. Contentious
 Art. 36:
 All cases which parties refer to it and all matters specially
provided for in the UN Charter or in treaties and conventions in
 Signatory states may at any time declare compulsory recognition
in relation to any other state accepting the same obligation, the
jurisdiction of the ICJ in all legal disputes concerning: [Optional
 a. interpretation of a treaty
 b. any question of international law
Settlement of International Disputes

 C. Judicial

 3 ways to accept ICJ’s jurisdiction:

 a. Ad-hoc basis (one party applies unilaterally to the Court and is
consented to by the other party)
 b. Parties adhere to a treaty which accepts jurisdiction on matters
of interpretation or application of a treaty.
 c. Optional system (Unilateral declaration of recognition in
relation to any other state accepting the same jurisdiction in all
legal disputes)
Settlement of International Disputes

 Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959)

 1. Facts:
 US acceded to the optional clause, thereby accepting the
compulsory jurisdiction of the ICJ but subsequently made a
reservation for ―disputes with regard to matters which are
essentially within the domestic jurisdiction of the US, as
determined by the US‖ (Connally amendment)
 EL Al Israel airliner was driven off course by bad weather and
innocently passed through Bulgarian air space where it was shot
down by Bulgarian military planes, killing all passengers and
crew, including 6 US nationals.
 Investigators argue that Bulgarian military failed to adhere to
international civil aviation agreements involving appropriate
interception and identification of intruding aircraft.
Settlement of International Disputes

 Aerial Incidence Case (US. vs. Bulgaria, ICJ 1959)

 1. Facts:
 The case was initially brought to the ICJ by Israel, where ICJ
ruled that it had no jurisdiction, stating that Bulgaria’s acceptance
of the optional clause in the Statute of PCIJ did not carry over to
acceptance of the optional clause of the ICJ.
 US continued its claim based on violation of international law and
injuries to US nationals.
 On grounds of reciprocity and consensual basis of ICJ
jurisdiction, Bulgaria contests ICJ’s jurisdiction. Bulgaria had
invoked the Connelly amendment exempting matters within its
internal competence and contended that its airspace security and
anti-craft defenses were within its domestic jurisdiction.
 US withdrew its application, which the Court accepted as the end
Settlement of International Disputes

 Nicaragua vs. US (ICJ, 1984)

 Facts:
 In 1964, the US made a Optional Clause Declaration with a
reservation that ―it would remain in force for 5 years and
thereafter until the expiration of 6 months after notice was given
to terminate.‖
 The 1984 notification was deposited with the Sec.Gen. by the
US, stating that ―the 1946 declaration shall not apply to disputes
with any
 Central American State or arising out of events in Central
America...this notice shall take place immediately and remain in
force for 2 years.‖
 The ICJ initially found that Nicaragua could rely on the 1946
declaration since it was a ―state accepting the same obligation‖
Settlement of International Disputes

 Nicaragua vs. US (ICJ, 1984)

 US contends that the 1984 notification should be given effect,

thereby taking away the court’s jurisdiction over the case.

 Held:
 In its 1946 declaration, the US included a proviso which required
a 6 months’ notice prior to termination.
 US contends that Nicaragua was not a ―state accepting the
same obligation‖ since its own declaration was of undefined
duration and thus liable to immediate termination. Thus,
Nicaragua could not rely the the US’ time-limit proviso under the
principle of reciprocity.
 However, the Court found the same untenable, given that the
Settlement of International Disputes

 Nicaragua vs. US (ICJ, 1984)

 Furthermore, the notion of reciprocity is concerned with the

scope and substance of commitments (including reservations)
and not with the formal conditions of their creation, duration or
extinction. Reciprocity cannot be invoked to excuse departure
from the terms of the State’s own declaration.
 Nicaragua can invoke the 6 months notice not on the basis of
reciprocity but because it is an undertaking which is an integral
part of the instrument that contains it.
Settlement of International Disputes

 Case concerning East Timor (Portugal vs. Australia, ICJ


 I. Facts:
 Portugal initiated proceedings against Australia for the latter’s
―failure to observe the obligation to respect the duties and
powers of Portugal as the administering power of East Timor and
the right of the people of ET to self determination and related
rights‖ pertaining to the Treaty of 1989 for the creation of a zone
of cooperation in the area between East Timor and Northern
 As basis for jurisdiction, it referred to the declarations of both
states under the optional system.
 Australia contends that the real dispute is between Portugal and
Indonesia and that the latter has not signed the optional clause.
Settlement of International Disputes

 Case concerning East Timor (Portugal vs. Australia, ICJ


 I. Facts:
 Australia contends that the effect of Portugal’s application would
require the Court to determine the rights and obligations of
Indonesia to settle the validity of the treaty between Australia and
 Portugal insists that the dispute is exclusively based on the
objective conduct of Australia when the latter negotiated,
concluded and initiated performance of its treaty with Indonesia.
Settlement of International Disputes

 Case concerning East Timor (Portugal vs. Australia, ICJ


 II. Held:
 Court found that Australia’s behavior cannot be assessed without
first entering into the question of why Indonesia could not lawfully
have concluded the 1989 treaty. The very subject matter would
be a determination whether, having regard to the circumstances
in which Indonesia entered and remained in East Timor, it
could/not have acquired power to enter into treaties on behalf of
ET relating to resources of its continental shelf. The court cannot
make such determination without the consent of Indonesia.
 W/N the behavior of Australia breaches rights erga omnes (ET’s
right to self determination), the Court cannot rule on the
lawfulness of the conduct of a State when its judgment would
Settlement of International Disputes

 Case concerning East Timor (Portugal vs. Australia, ICJ


 II. Held:
 Finally, the court ruled that it cannot be inferred from the sole fact
that a number of resolutions of the GA and the SC refer to
Portugal as the administering Power of ET that they intended to
establish an obligation on 3rd states to treat exclusively with
Portugal as regards the continental shelf of ET.
Settlement of International Disputes

Provisional Measures
 Art. 41:
 ICJ has the power to indicate any provisional measures which
ought to be taken to preserve the respective rights of either party
 Pending final decision, notice of the measures suggested shall
be given to the parties and the SC.
Settlement of International Disputes

Nicaragua vs. US

 I. Facts:
 Court finds it necessary to indicate provisional measures under
Art. 41 to preserve the rights claimed. Such decision in no way
prejudges the question of jurisdiction to deal with the merits of
the case.
 Such measures include:
 a. US should cease and refrain from any action restricting, blocking or
endangering access from or to Nicaraguan ports, and in particular, laying
 b. The right to sovereignty and political independence of Nicaragua.
States should refrain from using force or threat of force against its
territorial integrity or political independence. States should not intervene
in matter within the domestic jurisdiction of a State.
 c. The governments of US and Nicaragua should ensure that no action is
Settlement of International Disputes

Nicaragua vs. US

 I. Facts:
 d. Both Governments should ensure that no action is taken which might
prejudice the rights of the other party in respect to the carrying out of
whatever decision the Court may render.
 e. Until final judgment, the Court will keep matters covered by this order
continuously under review.
 f. Written proceedings shall first be addressed to the question of
jurisdiction of the Court.
Settlement of International Disputes

Case concerning legality of use of force (Yugoslavia vs.

US, ICJ, 1999)

 I. Facts:
 By request of the Federal Republic of Yugoslavia against the
NATO states (Belgium, Canada, France, Germany, Italy,
Netherlands, Portugal, Spain, UK, US) in relation to the
bombings carried out by NA 8:00 AM forces.
 Court recognizes that it can exercise jurisdiction only between
states parties to a dispute who not only have access to the Court
but also have accepted the jurisdiction of the Court, either in
general form or for the individual dispute concerned.
 In requests for provisional measures, the Court need not, before
deciding w/n to indicate them, finally satisfy itself that it has
jurisdiction on the merits of the case, yet only if the provisions
Settlement of International Disputes

Case concerning legality of use of force (Yugoslavia vs.

US, ICJ, 1999)

 I. Facts:
 Yugoslavia claims ICJ jurisdiction based on Art. IX of the
Genocide Convention to which both parties are signatories.
 US contends that it made a clear and unambiguous reservation
that ―with reference to Art. IX, specific consent of the US is
required in each case.‖
 Further, (a) reservations in the Genocide Convention are
generally permitted; (b) the reservation is not contrary to its
object and purpose; (c) absence of Yugoslavia’s objection to the
reservation means acceptance.
 US adds that there no legally sufficient basis between the
Settlement of International Disputes

Case concerning legality of use of force (Yugoslavia vs.

US, ICJ, 1999)

 II. Held:
 Court accepts US’ contentions and finds that it does not have
jurisdiction to entertain the dispute between Yugoslavia and the
US alleged to fall under the provisions of the GC, and that Article
manifestly does not constitute a basis of jurisdiction in the
present case, even prima facie.
 Even under Art. 38, par. 5 of the Rules of Court which allows the
jurisdiction of the Court to be founded upon the consent thereto
yet to be manifested or given by the other party, the fact that US
has not made such consent does not create a prima facie
jurisdiction allowing the Court to indicate any provisional
Settlement of International Disputes

Case concerning legality of use of force (Yugoslavia vs.

US, ICJ, 1999)

 II. Held:
 There is a fundamental distinction between the question of
acceptance by a State of the Court’s jurisdiction and the
compatibility of particular acts with international law.
 W/N States accept jurisdiction, they remain responsible for acts
attributable to them that violate IL, including humanitarian law.
Disputes relating to the legality of such acts MUST be resolved
by peaceful means chosen by the parties.
Settlement of International Disputes

 Art. 62:

 If a State has an interest of a legal nature which may be

affected by the decision in the case, it may submit a
request to the Court to be permitted to intervene, which
the Court shall decide at its discretion.

Art. 63:
 Registrar shall inform all parties to a convention
regarding cases which relate to its construction.
 Every state notified has the right to intervene, but the
construction given by the judgment shall be binding on
Settlement of International Disputes

El Salvador vs. Honduras (Nicaraguan Intervention, ICJ


 I. Facts:
 Nicaragua filed an application to intervene based on Art. 62:
 a. to protect the legal rights of the Republic of Nicaragua in the
Gulf of Fonseca and the adjacent maritime areas by all legal
means available
 b. to inform the Court of its legal rights which are in issue in the
 The Court points out that there must be a legal interest that may
be affected. Further, Rules of Court require a statement of the
―precise object of intervention.‖ Court finds that the subject of
intervention is proper.
Settlement of International Disputes

El Salvador vs. Honduras (Nicaraguan Intervention, ICJ


 II. Held:
 The Court’s decision’s binding power rests upon the agreement
of both parties to the case to confer jurisdiction upon the Court.
Normally, therefore, no other State may involve itself in the
proceedings without the consent of the original parties.
 However, procedures for a 3rd state to intervened are provided in
Art. 62 and 63 of the Court’s Statute. The Court’s competence in
this matter is not derived from the consent of the parties to the
case, but the the consent given by them, in becoming parties to
the Court’s statute. Thus, the Court has competence to permit
intervention (subject only to the requirements of object and
purpose) even if both parties oppose.
Settlement of International Disputes

El Salvador vs. Honduras (Nicaraguan Intervention, ICJ


 II. Held:
 A state allowed to intervene does not become a party to the
case. It is not allowed to tack on a new case nor have its own
claims adjudicated by the Court.
 It does not acquire the rights or become subject to the
obligations, which attach to the status of a party. It has the right
to be heard by the Chamber, but limited to the scope of its legal
Settlement of International Disputes

* Obligation to comply with decisions

Art. 59:
 No binding force except as between the parties and in
respect to that particular case

Art. 60:
 Final without appeal. In the event of dispute as to (a)
meaning or (b) scope of the judgment, the Court shall
construe it upon request of any party.
Settlement of International Disputes

Art. 61:
 Application for Revision of a judgment may be made only
when based upon newly discovered fact, which must be:
(a) a decisive fact; (b) at the time judgment was given,
was unknown to the Court and to the party; (c) such
ignorance was not due to negligence.
 The Court must first decide whether the fact is of such
character as to lay the case open to revision, and
declaring the application admissible.
 The Court may require previous compliance with the
terms of judgment before it admits proceedings in
 Application must be made within 6 months from
Settlement of International Disputes

Art. 94 of UN Charter:
 If any party fails to perform any obligation under ICJ
judgment, the other party may have recourse to the SC,
which may make recommendations OR decide upon
measures to be taken to give to the judgment.
 Such enforcement measures are subject to veto powers
of the permanent members.
 Winning state may make uses of alternative methods of
enforcement, such as economic or diplomatic pressure.
 Advisory
 non-binding
 non/acceptance depends on internal law of the institution
Settlement of International Disputes

Art. 96 UN Charter:
 SC and GA may make requests for advisory opinion. GA
may also authorize other UN agencies to seek advisory
opinion on legal questions arising within the scope of
their activities.

Art. 65:
 Advisory jurisdiction in accordance with the UN Charter

 On any legal matter at the request of any body

authorized to do so.
 Through written requests containing (a) the exact
statement of the question and (b) all documents likely to
Settlement of International Disputes

Art. 66:
 Registrar shall:

 a. give notice of the request to all state entitled to appear

before the Court
 b. via special and direct communication, notify any state
entitled to appear or international organization likely to
furnish information on the question, within a time limit
fixed by the President, that the Court will be prepared to
receive written statements OR hear at a public sitting
oral statements relating to the question
 If an entitled state fails to receive notification, it may
express a desire to submit a written statement or to be
heard, and the court will decide.
Hostile Methods In Settling
International Dispute
 Severance of diplomatic relations
 Retorsion – Unfriendly, BUT LAWFUL, coercive acts done in
retaliation for the unfair treatment and acts of discrimination of
another state, e.g., levy of high discriminatory tariffs on goods
coming from the other state.
 Reprisal – Unfriendly and unlawful acts in retaliation for
reciprocal unlawful acts of another state.
Examples of Reprisal

 Freezing of the assets of the nationals of the

other state.
 Embargo: The forcible detention or
sequestration of the vessels and other
property of the offending state.
 Pacific blockade: The prevention of entry to
or exit from the ports of the offending state
of its means of communication and
 Non-intercourse: Suspension of all
intercourse with the offending state,
particularly matters on trade and commerce.
 Boycott: Concerted suspension of
commercial relations with the offending
state, with particular reference to a refusal to
purchase goods.
Role of the UN in Settling International
 If despite the methods employed by states the dispute is not
settled, any or both of the states may ask or the UN itself, muto
proprio, may decide on its own authority to take a hand in the
settlement principally through the Security Council.
 The Security Council has jurisdiction to intervene in all disputes
affecting international peace and security and in all disputes
which, although coming under the domestic jurisdiction clause,
have been submitted to it by the parties for settlement.
 Such disputes may be brought to it by the Security Council itself,
the GA, the Sec-General, any UN member or any party to the
Actions To Be Taken By the Security
 Recommends appropriate measures, considering any amicable
measures already adopted by the parties, or refers the dispute to
the ICJ.
 If unsuccessful, the Security Council itself may recommend such
terms of settlement as it may deem appropriate.
 If the terms of settlement are rejected, it may undertake:
- Preventive action; or
- Enforcement action.
Preventive Action By The Security
 Preventive Action: Such measures not involving the use of the
armed force, such as complete or partial interruption of
economic relations, and of rail, sea, air, postal, telegraphic, radio
or other means of communications, and severance of diplomatic
Enforcement Action By The Security
 If preventive action fails, the Security Council may undertake
action by air, sea or land forces as may be necessary to maintain
or restore international peace and security, including
demonstration, blockades and other operations by air, sea or
land forces of members of the UN.
General Assembly Uniting For Peace
Resolution, 1950
 If the Security Council, because of lack of unanimity, fails to
exercise its primary responsibility to maintain peace and
security, the General Assembly shall consider the matter
immediately, with a view to making recommendations to the
members for collective measures, including the use of armed
forces when necessary.