Mem

PHILJA
The
JANUARY-JUNE 2009 VOL. 11, ISSUE NO. 31

UDICIAL
OURNAL
C HIEF J USTICE
REYN
EYNAATO SS.. P UNO
D ISTINGUISHED L ECTURES
SERIES OF 2008
I. F IRST D ISTINGUISHED L ECTURE
II. S ECOND D ISTINGUISHED

L ECTURE
III. T HIRD D ISTINGUISHED

L ECTURE
IV
IV.. F OURTH D ISTINGUISHED
OURTH
L ECTURE
V. F IFTH D ISTINGUISHED L ECTURE

T he PHILJ
PHILJAA JJudicial
udicial JJour
our nal
The PHILJA Judicial Journal is published twice a year by the

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SUPREME COURT OF THE PHILIPPINES
CHIEF JUSTICE
Hon. REYNATO S. PUNO
ASSOCIATE JUSTICES
Hon. LEONARDO A. QUISUMBING
Hon. CONSUELO YNARES-SANTIAGO
Hon. ANTONIO T. CARPIO
Hon. RENATO C. CORONA
Hon. CONCHITA CARPIO MORALES
Hon. MINITA V. CHICO-NAZARIO
Hon. PRESBITERO J. VELASCO, Jr.
Hon. ANTONIO EDUARDO B. NACHURA
Hon. TERESITA J. LEONARDO-DE CASTRO
Hon. ARTURO D. BRION
Hon. DIOSDADO M. PERALTA
Hon. LUCAS P. BERSAMIN
COURT ADMINISTRATOR
Hon. JOSE P. PEREZ
DEPUTY COURT ADMINISTRATORS

Hon. REUBEN P. DE LA CRUZ
Hon. ANTONIO H. DUJUA
Hon. NIMFA C. VILCHES
CLERK OF COURT
Atty. MA. LUISA D. VILLARAMA
ASSISTANT COURT ADMINISTRATORS

Atty. JOSE MIDAS P. MARQUEZ
Hon. JESUS EDWIN A. VILLASOR
Atty. THELMA C. BAHIA
ASSISTANT CLERK OF COURT

Atty. FELIPA B. ANAMA
DIVISION CLERKS OF COURT

Atty. ENRIQUETA ESGUERRA VIDAL
Atty. LUDICHI Y. NUNAG
Atty. LUCITA A. SORIANO
PHILIPPINE JUDICIAL ACADEMY
Board of Trustees
Hon. REYNATO S. PUNO
Chief Justice
Chair
Hon. LEONARDO A. QUISUMBING

Senior Associate Justice, Supreme Court
Vice Chair
Members
Hon. ADOLFO S. AZCUNA Hon. JOSE P. PEREZ
Chancellor Court Administrator
Hon. CONRADO M. VASQUEZ, JR. Hon. EDILBERTO G. SANDOVAL

Presiding Justice, Court of Appeals Acting Presiding Justice, Sandiganbayan
Hon. ERNESTO D. ACOSTA Hon. ANTONIO M. EUGENIO, JR.

Presiding Justice, Court of Tax Appeals President, Philippine Judges Association
Hon. CECILYN B. VILLAVERT Dean PERRY L. PE

Executive Judge, MeTC, Valenzuela City President, Philippine Association of Law Schools
Executive Officials
Hon. ADOLFO S. AZCUNA Hon. JUSTO P. TORRES, Jr.
Chancellor Vice Chancellor
Hon. MARINA L. BUZON
Executive Secretary
Chiefs of Offices
Hon. JUSTO P. TORRES, Jr. Hon. DELILAH V. MAGTOLIS
Administrative and Finance Office Academic Affairs Office
Associate Dean SEDFREY M. CANDELARIA Hon. MARINA L. BUZON

Research, Publications and Linkages Office OIC, Philippine Mediation Center Office
Academic Council
Hon. ADOLFO S. AZCUNA
Chair
Dean PACIFICO A. AGABIN Prof. RUBEN F. BALANE
Constitutional Law Civil Law
Hon. ALFREDO L. BENIPAYO Hon. EDILBERTO G. SANDOVAL

Remedial Law Criminal Law
Hon. JOSE P. PEREZ Hon. HILARION L. AQUINO
Court Management Ethics and Judicial Conduct
Dean CESAR L. VILLANUEVA Dr. PURIFICACION V. QUISUMBING

Commercial Law International and Human Rights Law
Fr. RANHILIO C. AQUINO Prof. MYRNA S. FELICIANO

Jurisprudence and Legal Philosophy Legal Method and Research
Associate Dean SEDFREY M. CANDELARIA Atty. EMMANUEL L. CAPARAS
Special Areas of Concern Court Technology
Prof. ALFREDO F. TADIAR Hon. JAINAL D. RASUL

Alternative Dispute Resolution Shari’a and Islamic Jurisprudence
Judicial Reforms Groups

Hon. ADOLFO S. AZCUNA
Presiding Officer
Justice Adolfo S. Azcuna
Chancellor
Prof. Sedfrey M. Candelaria

Editor in Chief
Editorial and Research Staff

Atty. Ma. Melissa Dimson-Bautista
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Joanne Narciso-Medina
Sarah Jane S. Salazar
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Jeniffer P. Sison
Circulation and Support Staff

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Printing Services
Leticia G. Javier and Printing Staff
VOLUME 11 ISSUE NO. 31 JANUARY- JUNE 2009
THE PHILJ
PHILJAA JUDICIAL JOURN AL
JOURNAL
CONTENTS
OFFICIALS OF THE SUPREME COURT OF THE PHILIPPINES ......... iv
OFFICIALS OF THE PHILIPPINE JUDICIAL ACADEMY ...................... v
CHIEF J USTICE R EYN

EYNAATO S
S.. P UNO
D ISTINGUISHED L ECTURES
SERIES OF 2008
T HE F IRST D ISTINGUISHED L ECTURE
PROGRAM ................................................................................................... 1
OPENING REMARKS
Justice Dante O. Tinga ................................................................. 5
LECTURE
REFORM OF THE SPANISH CIVIL CODE:
BASIS AND CONTENT
His Excellency Francisco Jose Hernando Santiago .......... 11
REACTIONS ON THE REFORM OF THE SPANISH CIVIL CODE:
BASIS AND CONTENT
Justice Jose C. Vitug ...................................................................... 29
Justice Ricardo C. Puno, Sr. ...................................................... 38
Dr. Maria Liza A. Lopez-Rosario ............................................... 45
CLOSING REMARKS
Chief Justice Reynato S. Puno ................................................. 49
CONTENTS
T HE S ECOND D ISTINGUISHED L ECTURE
PROGRAM .................................................................................................. 55
OPENING REMARKS
Justice Leonardo A. Quisumbing ............................................ 59
LECTURE
THE JUDICIAL ADMINISTRATION OF
INDIGENOUS AFFAIRS IN NEW ZEALAND
Justice Edward Taihakurei Durie, DCNZM (Ret.) .......... 63
I. INTRODUCTION ........................................................................ 64
II. DOMESTIC LEGISLATION ....................................................... 66
III. THE MAORI LAND COURT ................................................. 70
IV. THE WAITANGI TRIBUNAL ............................................ 71
V. TRIBAL CORPORATIONS ........................................................ 72
VI. THE CASE FOR JUDGES IN SPECIALIST ROLES ............ 72
VII. SYNOPSIS ................................................................................. 74
VIII. THE JUDGE’S ROLE
IN DETERMINING THE AMBIT OF RIGHTS ................... 75
CLOSING REMARKS
THE IPRA: INDIGENOUS PEOPLES AND THEIR RIGHTS
T HE T HIRD D ISTINGUISHED L ECTURE
PROGRAM ................................................................................................... 81
OPENING REMARKS
Justice Presbitero J. Velasco, Jr. .................................................. 85
CONTENTS
LECTURE
THE PHILIPPINE NATIONAL TERRITORY
Ambassador Lauro L. Baja, Jr. ..................................................... 93
I. INTRODUCTION ........................................................................ 94
II. CONSTITUTIONAL PROVISIONS ......................................... 94
III. THE PHILIPPINE NATIONAL TERRITORY
AND UNITED NATIONS CONVENTION
ON THE LAW OF THE SEA ................................................. 96
IV. ARCHIPELAGIC STATE ............................................................. 97
V. THE PHILIPPINES AND
THE EXCLUSIVE ECONOMIC ZONE ................................ 98
VI. BASELINES ................................................................................... 103
VII. THE KALAYAAN GROUP OF ISLANDS .............................. 103
VIII. BACK TO THE FUTURE .......................................................... 106
REACTIONS ON THE METES AND BOUNDS OF THE PHILIPPINE
NATIONAL TERRITORY: AN INTERNATIONAL LAW
AND POLICY PERSPECTIVE
Jay L. Batongbacal, Esq. ............................................................. 108
I. INTRODUCTION ...................................................................... 108
II. A CRISIS OF CONSISTENCY AND CONFUSION ............ 110
III. COMMON MISCONCEPTIONS ABOUT UNITED
NATIONS CONVENTION ON THE LAW OF THE SEA ..... 121
IV. ARCHIPELAGIC BASELINES AND
THE SOUTHEAST ASIAN REGION .......................................... 127
V. CONCLUSION ............................................................................... 130
CONTENTS
REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO

ENACT A BILL AMENDING REPUBLIC ACT NO. 3046,
AS AMENDED, TO CONFORM TO THE CONVENTION
ON THE LAW OF THE SEA
Atty. Estelito P. Mendoza ......................................................... 132
I. INTRODUCTION ........................................................................... 132
II. THE NEED FOR AMENDING
REPUBLIC ACT NO. 3046 IS IMMEDIATE ......................... 136
III. WHETHER THE BASELINES SHOULD NOW INCLUDE
AS A SINGLE ARCHIPELAGO, OR THE PHILIPPINE
ARCHIPELAGO ENCLOSED BY THE BASELINES IN
REPUBLIC ACT NO. 3046, AS AMENDED,
AND THE KALAYAAN GROUP OF ISLANDS ......................... 139
IV. CONCLUDING OBSERVATIONS ............................................... 142
CLOSING REMARKS
THE FOUNDATION OF THE STATE
T HE F OURTH D ISTINGUISHED L ECTURE

OURTH
PROGRAM .................................................................................................. 149

GREETINGS
Presiding Justice Conrado M. Vasquez, Jr. ........................... 153
LECTURE
THE DEVELOPMENT OF INTERNATIONAL
HUMANITARIAN LAW AND THE
CONTINUED RELEVANCE OF CUSTOM
Dr. Jean-Marie Henckaerts ........................................................ 155
CONTENTS
I. INTRODUCTION ........................................................................... 156

II. IMPEDIMENTS TO THE APPLICATION
OF INTERNATIONAL HUMANITARIAN
TREATY LAW ........................................................................... 158
III. NEED TO CLARIFY THE CONTENT OF
CUSTOMARY INTERNATIONAL
HUMANITARIAN LAW ............................................................... 171
IV. PRACTICAL RELEVANCE OF CUSTOMARY
INTERNATIONAL HUMANITARIAN LAW TODAY ............. 174
V. CONCLUSION ................................................................................ 183
CLOSING REMARKS
COMMAND RESPONSIBILITY: QUO VADIS?
T HE F IFTH D ISTINGUISHED L ECTURE
PROGRAM .................................................................................................. 189

OPENING REMARKS
Justice Antonio T. Carpio ........................................................... 193
LECTURE
COMMAND RESPONSIBILITY:
FROM INTERNATIONAL CRIMINAL TRIBUNALS
TO NATIONAL JURISDICTIONS
Professor Fausto Pocar ................................................................. 197
I. INTRODUCTION ...................................................................... 198
II. SUPERIOR RESPONSIBILITY IN THE JURISPRUDENCE
OF THE AD HOC TRIBUNALS .............................................. 201
CONTENTS
III. CONCLUSIONS ON ICTY AND ICTR

JURISPRUDENCE REGARDING MILITARY
SUPERIOR RESPONSIBILITY .................................................. 207
IV. EXTENSION OF COMMAND RESPONSIBILITY
TO CIVILIAN SUPERIORS ....................................................... 208
V. SUPERIOR RESPONSIBILITY IN THE ROME
STATUTE OF THE ICC ...................................................... 210
VI. THE IMPLEMENTATION OF ARTICLE 28 OF THE
ICC STATUTE IN DOMESTIC LEGISLATIONS ............. 213
VII. CERTAIN SOLUTIONS ADOPTED TO IMPLEMENT
ARTICLE 28 OF THE ICC STATUTE IN
NATIONAL LEGISLATIONS .............................................. 216
VIII. THE USE OF THE DOCTRINE OF
SUPERIOR RESPONSIBILITY IN NATIONAL COURTS:
TWO EXAMPLES ................................................................. 223
IX. CONCLUSIONS .................................................................... 228
REACTIONS ON COMMAND RESPONSIBILITY:
Justice Adolfo S. Azcuna ........................................................... 230
CLOSING REMARKS
LEARNING FROM THE INTERNATIONAL CRIMINAL
TRIBUNAL FOR YUGOSLAVIA
Chief Justice Reynato S. Puno ............................................... 233
A CKNO WLEDGMENT
CKNOWLEDGMENT
The Supreme Court of the Philippines would like to thank the

officials, faculty, staff, and student body of the University of the
East (UE), University of Sto. Tomas (UST), Far Eastern
University (FEU), and the International Committee of the Red
Cross (ICRC) for their generous and committed support that
contributed to the success of the series.
Supreme Court of the Philippines
Philippine Judicial Academy
in cooperation with the
University of the East
present
Special Convocation
for the conferment of the Degree of
DOCTOR OF LAWS
(Honoris Causa)
and
The First Distinguished Lecture

Series of 2008

BASIS AND CONTENT
by
His Excellency
Francisco Jose Hernando Santiago
President, Supreme Tribunal and General Council
of the Judiciary of the Kingdom of Spain
Wednesday, February 20, 2008, 2:30 P.M.

University Conference Hall, 4F Dalupan Sr. Building
C.M. Recto Avenue, Manila
Program
Processional
Invocation
HONORABLE MINITA V. CHICO-NAZARIO
Associate Justice, Supreme Court of the Philippines
Philippine National Anthem

National Anthem of Spain
Opening Remarks
HONORABLE DANTE O. TINGA
Presentation of the Honoree

DR. AMADO D. VALDEZ
Dean, College of Law, University of the East
Reading of Citation
MRS. ANTONIETA FORTUNA-IBE
Chancellor, Manila Campus, University of the East
CONFERMENT OF THE HONORARY DEGREE

DR. ESTER ALBANO-GARCIA
President and Chief Academic Officer, University of the East
Investiture
Placing of the Academic Hood and Cap
DR. ESTER ALBANO-GARCIA
DR. NENALYN P. DEFENSOR
Commissioner, Commission on Higher Education
Presentation of the Medallion

HONORABLE REYNATO S. PUNO
Chief Justice of the Philippines
HONORABLE ANDRES R. NARVASA
Chief Justice (Ret.) of the Philippines
Trustee, University of the East
Reading of the Diploma

MR. DIVINOFIEL E. JARAS
Corporate Secretary, University of the East
Musical Number
UNIVERSITY OF THE EAST CHORALE
Introduction of the Honoree and Lecturer

HONORABLE TERESITA J. LEONARDO-DE CASTRO
LECTURE
HIS EXCELLENCY FRANCISCO JOSE HERNANDO SANTIAGO
Panel of Reactors
JUSTICE JOSE C. VITUG (RET.)

Chairman Emeritus, Department of Commercial Law
JUSTICE RICARDO C. PUNO, SR. (RET.)

Chairman Emeritus, Department of Civil Law
DR. MARIA LIZA A. LOPEZ-ROSARIO

Professor, College of Law
Presentation of Plaque of Appreciation

by
Chief Justice Reynato S. Puno
Justice Angelina Sandoval-Gutierrez
Justice Ameurfina A. Melencio Herrera (Ret.)
Dr. Ester Albano-Garcia
Closing Remarks
Chief Justice
Supreme Court Hymn

UE Hymn
Masters of Ceremonies
PROFESSOR MERCY L. CANDELARIA
PROFESSOR RENE S. SALVANIA
College of Arts and Sciences-Manila, University of the East
O PENING R EMARKS ∗
Justice Dante O. Tinga∗∗
I
n behalf of the Supreme Court of the Philippines
and the Philippine judiciary, I extend a hear ty
Mabuhay and warmest greetings to our esteemed
guest, His Excellency Francisco Jose Hernando Santiago,
President of the Supreme Tribunal and General Council
of the Judiciary of Spain. Also, in behalf of my fellow
alumni on the University of the East, I welcome him to this
hallowed campus. Bienvenido a todos!
∗
Delivered at the First Distinguished Lecture, Series of 2008, held
on February 20, 2008, at the University of the East, Manila.
∗∗
Justice Dante O. Tinga was appointed to the Supreme Court on
July 4, 2003. At the time, he was the dean of the College of Law
of the Polytechnic University of the Philippines.
He represented the lone district of Taguig-Pateros in the House of
Representatives for three consecutive terms from 1987 to 1998. As
a Congressman, he served as House Majority Whip for Luzon from
1992 until 1998 and Speaker’s Deputy in the Committee on Rules
from 1995 to 1998. As Committee Chair on Energy (1992-1998)
he crafted the Power Reform Bill which served as the model of the
current Electric Power Industry Reform Act (EPIRA). As Chair
on Corporations and Franchises (1987-1992), he liberalized the
telecommunications industry, paving the entry of all the current
major players. During his three-year term, he also became vice
chairman of the House Committee on Good Government and was
a ranking member of the House Committees on Natural Resources,
Justice, Constitutional Amendments, Appropriations and Ways and
Means. He was consistently chosen as an outstanding congressman
by various publications and periodicals.
6 THE PHILJA JUDICIAL JOURNAL [VOL. 11:31
The program this afternoon is a fitting celebration in the

name of the law. For law is the ubiquitous hallmark of
civilization. As the great Spanish poet and dramatist Pedro
Justice Tinga received his Bachelor of Laws degree from the
University of the East College of Law in 1960. Graduating magna
cum laude at the top of his class, he placed 15th in the 1960 Bar
Examinations with an 87.7 percent rating. He obtained his Masters
of Laws degree from the University of California at Berkeley,
U.S.A. in 1970, graduating with High Honors and among the top
five percent. He specialized in Corporation Law, Securities
Regulation, and Transnational Business Transaction.
He was also active in private law practice, first as a senior attorney
at one of the premier law firms at the time, the Araneta Mendoza
& Papa Law Offices, and later as partner at the Santiago Tinga &
Associates, and later still at the Pimentel Cuenco Fuentes Tinga
Law Firm. He also served as dean of the U.E. College of Law
from 1988 to 1992.
Born on May 11, 1939, Justice Tinga is a recipient of several honors
including the Most Distinguished Alumnus in Education in 1991,
the Most Distinguished Alumnus in the Legal Profession in 1988,
and the Most Outstanding Alumnus in 2006, all conferred by the
University of the East. He was conferred the degree of Doctor of
Public Administration by the Polytechnic University of the
Philippines in 1996. Justice Tinga is a widower (married to the
late Atty. Ma. Asuncion Rodriguez Tinga) with six children.
Justice Tinga has authored several notable ponencias for the Court.
To name some, in the field of political and administrative law, he
wrote Disomangcop v. DPWH (444 SCRA 403) on the scope of
the local autonomy of the ARMM; Globe v. NTC (435 SCRA
110) concerning the breadth of the regulatory powers of the NTC;
City of Manila v. Laguio (455 SCRA 308) on the constitutionality
of an ordinance ordaining the forced transformation of a city
district, including the banning of motels; Mijares v. Ranada (455
2009] OPENING REMARKS 7
Calderon de la Barca said, “If you cannot reconcile yourself to

the law, (then) remain in the cradle.”
Again, in the name of the law, we have a rare quadruple treat
today. In the order of their occurrence, these are first, the fine
display of collaboration between the Supreme Court and the
academe; second, the conferment of honorary degree on a most
worthy recipient; third, the distinguished lecture of the eminent
honoree; and fourth, a commemoration of the historic and close
ties between Spain and the Philippines. These ties have left an
indelible imprint on the legal framework of the Philippines.
SCRA 397) on the nature and international law implications of

civil suits for the enforcement of a foreign judgment; Constantino
v. Cuisia (472 SCRA 505) regarding the capacity of the Secretary
of Finance to negotiate foreign debt agreements and the
interpretation of the provisions of the Constitution on foreign
debt; and Gudani v. Senga (498 SCRA 671) concerning the
interplay of the commander-in-chief powers and the power of
Congress to compel attendance of military officers in legislative
investigations. In civil and commercial law, he penned Transfield
Philippines v. Luzon Hydro (443 SCRA 307) on the “independence
principle” of letters of credit; Philcomsat v. Globe, (429 SCRA
153) on force majeure; Samsung v. FEBTC (436 SCRA 402) on a
bank’s liability to a depositor for paying out a forged check;
Commissioner of Internal Revenue v. Benguet Corporation (463
SCRA 28) on the nature of the Value-Added Tax and zero-rated
transactions; and Antonio v. Reyes (484 SCRA 353) on marital
psychological incapacity. In criminal law, Justice Tinga authored
People v. Tudtud (412 SCRA 142) on warrantless searches and
seizures; People v. Bon (506 SCRA 168) on the graduation of
penalties following the renewed ban on the death penalty;
andValenzuela v. People (525 SCRA 306), which declared that
there was no crime of frustrated theft.
As an appropriate backdrop, allow me to stress the unique

dynamics between the Spain and the Philippine legal systems as
well as offer a brief overview. Our judicial system, particularly
the allocation of jurisdiction of superior and inferior courts, draws
its roots from the judicial system set in place during the Spanish
era. For one, our Supreme Court has its equivalent on the
Audiencia Real, established in 1583 by King Philip II. The
Audiencia served not only as the supreme judicial body in the
Philippines, but also a superior council which exercised legislative
and executive functions.
This fusion of executive, legislative and judicial power at the
level of the Audiencia Real extended also to the subordinate
offices. On the provincial level, the administration of justice was
entrusted to the alcalde mayor, who acted as the provincial
executive, judge, military commander, and officer of finance. The
alcalde mayor had jurisdiction over all civil and criminal cases
arising within his territory, except cases which were under the
ecclesiastical courts and other special courts, as well as other
executed civil cases. His decisions were appealable to the Audiencia
Real.
Towns were headed by governadorcillos, who exercised similar
judicial functions within their territories as the alcalde mayores.
Established in 1885 was the office of the juez de paz (or justice
of the peace), who exercised jurisdiction over civil cases where the
property or other interest under issue was less than 200 peso
fuertes or 1,000 pesetas.
Other special courts were established as well with jurisdiction
over particular types of case. These are the ecclesiastical courts,
the army and navy courts, the treasury courts and the commercial
courts.
The localized jurisdiction of the alcalde mayores, the

governadorcillos and even the juezes de paz are akin to the
localized jurisdictions of the present day Regional Trial Courts
and other lower courts. Even the courts of specialized jurisdiction
have modern day equivalents.
During the colonial period, all laws enforceable in the
Philippines were compiled in the Recopilacion de las Leyes de
Indias published in 1680. Included in the Recopilacion were
such laws as La Novisima Recopilacion, Las Siete Partidas, and
Las Leyes de Toro.
During the 19th century, many of the legal codes enacted by
Spain were applied to the Philippines. The first of these was the
Código de Comercio España de 1829, which was extended to the
Philippines in 1832. Some of its provisions are still in effect in
the country. The El Código Penal de 1870 took effect in the
Philippines in 1887. Notably, the Spanish Penal Code remained
in force in the Philippines until the adoption of the Revised Penal
Code of 1930, a code strongly influenced by the Codigo Penal.
And we should not forget El Código Civil de España, on
which our esteemed guest shall be speaking shortly. Enacted in
1889, the Codigo Civil remained in force in the Philippines
throughout the American period and until shortly after
Independence before it was supplanted by the Civil Code of 1950.
From time to time, our courts are still called upon to analyze
these Spanish laws and their historical antecedents and even apply
to actual cases.
In my first year in the Court, we decided a land case which
turned on whether acceptance by the donee is essential for the
validity of a donation propter nuptias. As the donation was

executed in 1940, we applied the Civil Code of Spain.
More recently, we have the decision in Valenzuela v. People,
where the Court examined whether the crime of frustrated theft
exists under the Revised Penal Code. It became necessary for us
to examine the relevant provisions of the Código Penal de 1870,
and even compose them to the Código Penal Español de 1995.
The Court also examined the commentaries of Santiago Viada,
which were cited by the Court of Appeals in two decisions in the
1950s where the accused was found guilty of frustrated theft.
However, the Court also came across the views of another
important Spanish commentator, Eugenio Cuello Calon, who
attacked the very idea that frustrated theft was actually possible.
You see, the perennial conflict of views not only among lawyers
but also among legal experts is not a local phenomenon. The
absence of unanimity or certainty on the part of Spanish legal
experts on the existence of frustrated theft allowed for a fresh
perspective, and the Court concluded that frustrated theft could
not be committed under the Revised Penal Code.
With the background thus recalled, I am confident we are all
set for the twin highlights of today’s affair. Let us look forward
to an enlightening lecture from our esteemed guest of honor.
Thank you for your kind indulgence, and I wish one and all a
pleasant and memorable afternoon.
SPANISH
BASIS AND CONTENT ∗
His Excellency Francisco Jose

Hernando Santiago
Chief JJustice
ustice FFrancisco
rancisco JJoseose
Hernando Santiago obtained his
law degree from the Complutense
University where he held a professorial
chair for many years. In recognition of
his 25 years as an excellent barrister, he
was called to the bench in March 1986,
starting his judicial career as magistrate
of the Sala Quinta (Fifth Division) of
the Supreme Court pertaining to the
military. In 1989, he was appointed to
the Sala Tercera (Third Division) which
deals with contentious administrative
cases. American Summit of Supreme Courts
and Councils of the Judiciary, comprising
From 1994 to 1997, the Chief Justice
23 Judiciaries of the Ibero-American
was one of eight Supreme Court judges
countries.
selected by the General Council of the
Judicial Power (GCPJ) to sit as members The Chief Justice has excelled in the
of the Junta Electoral Central (Central field of Constitutional Law, and has
Electoral Board). written on the legal aspect of a United
Europe, being an ardent exponent of a
In November 2001, he was elected
United European community.
president of the GCPJ and also
President of the Supreme Court. As The Chief Justice, a staunch advocate
head of these important offices, he had of the independence of the Judiciary,
to decide cases of maximum refused to appear at a hearing of the
importance, such as the declaration of Committee on Justice of the Spanish
nullity of the 2003 municipal and Congress, stating that his appearance
regional elections in the Basque and would be contrary to the principle of
Navarra provinces. He also served as separation of powers and the
Permanent Secretary of the Ibero- independence of the judiciary.
∗
y first words are to express my gratitude to the
M Philippine judicial and academic authorities for the

award concerning us today, and for the hospitality
and care they have accorded us since our arrival here in this beautiful
land.
The Honorary Degree of Doctor awarded me by the
University of the East amounts to a motive of great personal
joy, and also of deep satisfaction for me as I address you in this
symbolic location. I therefore want to publicly display from this
platform, where I am honored to be, and before this audience,
consisting mainly of academics and lawyers, my appreciation to
the university authorities. I express my appreciation for this
generous display of recognition which I receive in my capacity as
representative of the Spanish judiciary and which I understand
not only extends to all magistrates and judges of Spain but to all
providers of justice, those who have the status, and those who
perform the tasks of a judge, irrespective of where, of the scope
of law in which they perform, and of the position they hold
within the judicature.
The role of the courts is the keystone underlying the rule of
law. So far justice has appeared as the key to substantiating modern
states since the establishment by the French intellectual,
Montesquieu, of the principle of separation of powers of the
state. The dazzling view of the state as an organized system of
powers, which are separate from each other and flow from the
people, is enshrined with known differences in the two largest
existing constitutional models (the North American and French
Revolutionary models) and irradiated with logical features specific
to all democracies in the world today. In all of them, throughout
the face of the earth, the role of the courts is essential as to the
2009] REFORM OF THE SPANISH CIVIL CODE: 13
BASIS AND CONTENT
legal protection of rules, and also as to the safeguard of citizens’

freedoms and rights from judiciary measures, being an independent
guarantee bound only by law and statute.
The courts in all legal systems retain final responsibility for
the social peace. The most stable nations are precisely those which
enjoy a more efficient and quicker administration of justice, as it
was and is man’s conquest of civilization, and more than this, an
essential element of civilization which preserves civic life under
stable laws, and which also embodies as state’s response against
delinquency through strong institutions based on the rule of law.
The courts’ place in society is therefore vital, not only for making
available fair responses to the demands of citizens, but also because
from their responses the confidence of citizens in institutions is
generated.
The courts, thereby, also have an essential pedagogic function
for society, which is more effective the greater the extent to which
they work; and from that effectiveness, they invigorate and make
stronger the laws they apply as an instrument for community life.
This is where, in the grant of another pedagogic role, justice and
universities, which are pedagogic institutions, combine in their
work, which is not the only common place between them.
It has to be recognized of course in an academic forum of
this kind that courts and universities, in particular through their
law schools, perform directly related tasks. For their research work,
law schools make use of the materials provided by the courts
through their decisions, critically, analytically and not always
commonly, but under the one condition that the best solution in
law is sought after. Law schools come up with new approaches
and new interpretations of the law on the problems detected in
court practice. On the part of the courts, the work and research
of universities is made use of as to the new proposals for existing

problems, or for detecting new problems under the law or from
its application in society, which are, from their study, incorporated
in their judgments. At the same time, the judicature is a host for
universities in their teaching staffs; they are primary source from
where the vocation of future judges flows. This is how the circle
of this mutually beneficial relationship for universities and the
judicature is closed.
And here today, a Philippine university is faced with the courts,
being the Spanish courts which are identified in the person of the
President of the Supreme Court. I am therefore obliged to repeat
my appreciation, which is for a personal award but which
acknowledges the faithful, silent, difficult, and not always leading
role of tens of thousand of courts which, in their decisions, give
tangible effect to that old maxim of the law as an instrument of
justice and social peace on a daily basis.
I consider, moreover, that this event, a display of friendship,
would not have been possible without the solid support from the
cultural and historical ties existing between the Philippines and
Spain. Much has separated us, but much has also united us. And
despite the length of time that has elapsed since the loss of this
common pathway, it should be noted that we are two nations that
are much closer than what the geographical distance between us
suggests.
There is a considerable amount of political and commercial
links between our countries. These would not have been possible
without the diplomatic effort invested for several decades by our
respective governments. Thus, I want to point out in this forum
that in a globalized world where distances are becoming narrower
and narrower, that it is not in a position to set aside diplomacy or
BASIS AND CONTENT
good neighborly relations. We are separated by continents but

are united by our history and our predisposition towards the good
of the community which we have endeavored to achieve, again
demonstrating as well at the international level that community
life and respect stem from sources of prosperity.
I have shed light on our shared history and on our common
ties, which are cultural, religious, and also legal. The Spanish
heritage in all the territories where its dominance extended was
also a legal heritage. One example is found in the field of civil
law where noteworthy connection points between Spanish and
Philippine law exist. That is why this lesson deals with the most
important rule of law in the last century within the scope of civil
law in Spain, that is to say the Civil Code. Following, I will refer
to a rule of law, the importance of which goes beyond the strict
limits of private law. It is a technical and political rule of law not
without criticism nor unarguable, in the formation process of
which by a significant margin many of the features, which
throughout history have characterized the legal firmament of a
nation deeply rooted in the history of civilization, are reflected.
Civil law and civilization from a common Latin root: cives, the
city; and separating the link has not been possible over the
centuries. The advance of civilization is also the advance of
citizens’ right, which is what civil law is in the true and original
sense. For that reason, it is not surprising that those in search of
new horizons and that want to export new models of civilization
would also accompany such a titanic effort in new national legal
systems. And in the wake of the impetus to codify the law, this
resulted in the exposure of the Civil Code to those territories
where traces of Spanish culture extended.
Paradoxically, the exterior influence of the codification of
law can be regarded as late and has been criticized as such by
experts for two reasons: firstly, for the historical circumstance

under which it was produced, given that in reality the culmination
of the codification movement in Spain coincided in time with
the dismemberment of its empire and the emergence of young
nations all across the world. In addition, codification concerning
Spanish Civil Law has also been regarded by experts as late, taking
as their basis the model of the Napoleonic Code by glossing over
other more recent models such as those which have been in
Germany and Switzerland because of the pandectists.
This, however, did not prevent the Spanish Civil Code from
having no influence on Latin America or in other reference places,
as is the case with Equatorial Guinea or the Philippines, regardless
whether at the time of its promulgation, independence processes
were completed. And this is because of a factor not without
interest, that is to say, the fact that the standard Spanish Civil
Code would lay down all the Castilian Civil Law, meaning the
civil law applied in most of the Spanish territory, which is law
based on old traditions and legislation and laid down over centuries
by compilers of law and those in force.
This is the explanation why many of the rules provided for in
the Civil Code at the time of their regulation subsisted in the
legal systems of other nations, but through a twin-track approach,
that is to say, either directly by translating its rules and institutions
from the Civil Code itself, or indirectly, by holding after the
independence processes of those institutions of Spanish law which
were already applicable in those territories prior to, but which
were incorporated during the codification movement to the text
of the Civil Code.
Thus, it is no wonder that there are traces of civil institutions
provided for in the Spanish Civil Code in the legal systems of
BASIS AND CONTENT
the nations whose independence was subsequent to the time of

its promulgation (as is the case concerning the majority of South
American nations with the exception of Brazil), or in others where
it was not, as is in the case of the Philippines or, for a long time,
Puerto Rico.
In the second case, sharing identically rooted institutions is,
however, not the sole basis for determining legal proximity, but
sharing the same laws is, as is, in particular, in our case. The
Philippines and Spain not only share the same Civil Law, but also
share the same Civil Code, that is to say, the same systematic set
of rules of general private law.
It is there where the interest of this conference lies, which is
indeed a very special interest I am obliged to address. It is, thus,
my intention to devote this lesson to the Spanish Civil Code, as
to its historical evolution since its promulgation in 1889, 119
years ago, until now, so as to inform of the principal phases of a
principal rule in the Spanish legal system. It concerned an
especially suggestive labor given the legal coincidence between
our nations. I am, therefore, obliged to draw your attention to the
luck which for the past 119 years that text born in Spain in 1889
has had, by especially pointing out the reforms it has undergone.
It is not a work of comparative law, as I refer to a time subsequent
to that of comparison of different legal systems. Perhaps from
there, it is opportune to inform what such luck is owing to the
decades of both the Spanish and Philippine Civil Codes. And
perhaps, it is also opportune to justify once more that the rules
are not impermeable to the running of time nor to the context in
which they are applied, which is contrary to the ideal of
codification, as well as the suggestion of unalterable sacred written
law.
Perhaps, the general conclusion of these words, even though

paradoxically and despite the separate luck of the two twin civil
codes, is that the grandeur of the law should bring us to the
realization that there is still much that unites us at the legal level,
which bears testimony to the heavy influence the principles and
institutions, provided for in the rules laid down by a state, have
on peoples when they integrate these into their daily life. This is
the greater grandeur of the law when, in addition to their
legitimization of origin, they acquire overwhelming authority
which is provided for the citizens’ approval. This is the agent that
fuels and gives force to the standards it sets out and the justification,
despite the reforms to its period of operation over the decades.
Furthermore, this lesson shall principally serve to set out the
principal reforms undergone by the Spanish Civil Code over the
119 years it has been in operation. But first, my opinion is that it
is necessary to point out the place that the Civil Code occupies in
Spanish law, the point being to contextualize it in a comprehensive
way by highlighting some of the peculiarities of its own Civil
Code so as to also understand what the evolution subsequent to
the Civil Code in Spain has been.
I first refer to the significance of the Civil Code in Spain,
which cannot be done without referring to the historical context
in which it was promulgated. The Civil Code is, as I had pointed
out, the product of the great codification movement which arose
in Europe at the end of the 28th century and at the beginning of
the 19th century. Codification was preceded by the principles of
the Enlightenment and the idolization of written law resulting
from popular sovereignty. This is regarded as granting maximum
legitimacy in the most radical approaches. Lawyers, therefore,
considered that codification sought to channel legal systems to
BASIS AND CONTENT
certain political ideals in such a way as to bring down the tradition

of common law and to put into force law in its own right,
providing it with stability in general and with systematic rules of
the people through parliaments.
Thus, the codification of the Civil Code in Spain resulted
late as it arrived a century after the first European Codes. This
was, however, not owing to the negligence of the legislator, but to
the circumstances themselves of a state affected by great instability
during the 19th century. This instability stems from different
sources, of the one part combined at the political level where, on
the one hand, a not always peaceful change-over of different
models of government accompanied the steady loss of overseas
territories. The 20th century saw a succession of constitutional
rules, alternatives between monarchy and republic, revolutions,
military rebellions, which did not encourage a climate for
consolidation of the shaping of new codes. On the other hand,
strictly at the legal level, the evolution of a Civil Code in Spain,
applicable in all of its territory and equally applicable to all of its
citizens, was faced with the obstacle of subsistence of particular
civil laws which were applicable to certain regions, the origin being
tradition in particular aspects of peoples’ lives. With the Greenfield
Decree of 1715 laid down by King Philip V, the movement to
ensure uniformity of the law commenced for all the Kingdom of
Spain, but which failed and was especially evidenced in the field
of civil law.
As to the reason why more bore on the delay of the process
of the creation of the Civil Code in Spain, it was the resistance
of the regions with their own civil law to losing it to the new
Civil Code. The promulgation of the Civil Code was only
possible by a political agreement of the two principal political
forces on the basis of a period of great stability for the remaining
20 years of the century and on the exemplary promotion of a

number of lawyers to which we still owe today the longevity of
many of those rules. Despite its consideration as a code, that is to
say, as a general rule, the result of the agreement in reality was that
the Spanish Civil Code does not provide for all of the rules of
private law applicable in Spain. Spanish Civil Law is due to
ultimately cohabiting with particular sets of laws which in
particular are applied in the field of family and succession law in
certain Spanish regions.
The final result was in an extensive text of heterogeneous
consolidation not without criticisms. As regards its structure, the
Spanish Civil Code related to the French Roman or Gaius
framework and consists of 1,976 articles distributed among four
books in addition to a preliminary title. As regards its content,
the Code regulates the fundamental institutions that comprise
civil law, but not everything provided for by civil law nor
everything it regulates in it. In its articles are materials more related
to constitutional law, such as in reference to the sources of law
and access to nationality or law of procedure (such as the burden
of proof); there are rules expressly excluded from its content,
even though they are clearly civil, as in the case of legislation of
the register of civil status, mortgage law or special properties
(waters, mines, intellectual property, among others).
Furthermore, the maxim of an old Spanish lawyer is clarified
which considered that the purpose of the law resulted from the
legacy of the past, rather than as a systematic unit from the practical
point of view. Concerning the longevity of the Code with special
civil rules (at the objective or territorial level), the Civil Code
was classified as common law, provided for by the original Article
16 (currently Article 4.3) of the Code, which considers its rules
BASIS AND CONTENT
as subsidiary to the matters governed by other laws, whether or

not they are civil.
As for the criticisms, the criticisms to the Code were of a
different nature, aimed at systematic aspects or the layout plan of
certain rules, and in some cases were even deep-rooted questions
concerning specific institutions. Its inability to ensure uniformity
of all the civil law was criticized, being its French inspiration and
the technical precision of some of its rules.
Even its wording and use of language were criticized. The
Civil Code is, however, still around with its modifications, but
still full in force, which is in its favor. The longevity of a rule of
the extension and content of the Civil Code, overcoming a number
of historical turns during its vital period, different political regimes
and not a few social upsets, is more than an indication of the
quality and strength of a rule which is rooted in the inertness of
generations of lawyers.
That is why, over the years, history has found that the Civil
Code is weighted and more objective, reaching further than the
immediate reactions it caused, reactions which were pointed out
by Federico de Castro as expressing a side of Spanish character as
to longing for what one does not have and taking for granted
what one does. The Civil Code was not innovating, but was
prudent and conserved Spanish law by shaping it in pursuance of
the case law of that period. It was attainable by the Spanish people
and was of a literary value much superior to that of other
contemporary texts as well as subsequent ones. Perhaps, without
this, its longevity would not have been possible nor its influence
in other legal systems, which is why we owe our gratitude and
respect to the pioneer lawyers who knew how to conserve our
traditional law while, at the same time, ensured its maintenance

for future generations.
However, it is well-known that law is not impermeable to
time, contrary to the liberal ideal of idolization of written law.
Experience has highlighted the certainty of the maxim of Savigny
on the idea of law as a product of the history of people. That
maxim is so provided for in the Civil Code, in the Supplementary
Provision No. 3 where it lays down that the Ministry of Justice,
through the Codification Committee, makes reforms as
appropriate to be introduced into the Code every 10 years, bearing
in mind that the rigidity of the rule can hamper its efficiency as
to the evolution of the times and people.
This was a lesson that was well learnt by the Civil Code which,
during its vast period of operation, has experienced many legal
reforms not only undermining it, but which are the principal
source of its strength. Each generation has law to legislate its own
laws, so as to not necessarily feel bound by those received by their
ancestors when shown to be inefficient and outdated. But a legal
system cannot change ex novo, as social relationships do not change
radically. This appears in the historical experience of law where
the best way to avoid traumatic solutions is to encourage prudent
change of rules, on the basis of there being deficiencies as regards
their use and pursuant to the case law that, in their interpretation,
is adopted by the courts.
These are the trends over the last 119 years concerning the
Civil Code, and even though many times reforms bring down
the foundation upon which the law itself is built, in the case of
the Spanish Civil Code not only have its standards been updated
but the legitimacy of its provisions have been reinforced.
BASIS AND CONTENT
At this time, in the last part of the lesson, I will refer to, in
particular, the principal reforms undergone by the Spanish Civil
Code of 1889. In order to do so, I will make use of two
classification criteria. On the one part, I shall proceed from the
basis of the division of time of operation of our Code into three
historical periods in terms of certain key milestones of the recent
history of Spain. The first period is from its promulgation to
1936 when the Spanish Civil War began, which meant the
breakdown of the state to be substituted by a totalitarian
government. The second period covers the life of the Civil Code
of 1936 until the arrival in 1978 of the constitutional monarchy
currently in force. The third period covers the length of time
that the Constitution of 1978 has been in force. On the one
hand, I will refer to the reforms of its own articles, that is to say,
the modification of its own standards by substituting old
provisions for newer ones integrated in the Code itself. On the
other hand, the reform of the Civil Code is performed from
outside the Code, that is to say, subsequent to the publication of
specific and implementing laws from a practical viewpoint, which
have steadily repealed some of the legislation originally provided
for in the Civil Code.
A. Promulgation of the Code (1936)

The first of the historical periods I will refer to is from the
promulgation of the Code to the year 1936. In those almost 50
years made up of large political upsets, there were few specific
reforms underwent by the Code.
The first reform dates back to 1904 and consisted of the
cancellation of a holograph will validity requirement which, in
particular, was the need for it to be drafted on official form. The
intention was for the testator’s wishes to have precedence over the
specific form of the document which contained his last wishes,
whereas the essential elements of the will were provided for. The
second reform having great social relevance limited the law to
inherit, in the absence of a will, to persons related collaterally to
the fourth degree. This was reformed in 1928 and the purpose
was to reduce the amount of controversy where the deceased’s last
wishes were not expressly provided for. Aside from these reforms,
the reform in August of 1899 which modified Article 1108 on
the statutory rate of interest should be pointed out. It can,
therefore, be said that the decennial review of the Civil Code was
not met and that the Code enjoyed great stability.
Of the provisions laid down by law which complement the
Code and belong to the aforementioned first period, the Law of
July 23, 1908, on loans at an unconscionable rate of interest and
on unreasonable loans, as an assurance for the weaker contracting
party, and another law in 1917, which provided for registered
agricultural liens, such as many provisions referring to labor
legislation and on agricultural tenancy and rented property,
especially during the Republican period from 1931 to 1939,
should be pointed out as to their interest. Also, during this period
a number of rules in family law was laid down, which would be
repealed by the state arising from civil war and affected, in particular,
that concerning marriage, in so far that divorce was regulated for
the first time in Spain.
B. Par tial Amendments to the Ci

artial vil Code (1939)
Civil
From 1939, partial amendments to the Civil Code were made
more frequently, presumably resulting from the new ideological
trends.
BASIS AND CONTENT
As a consequence of the war, in the year itself of 1939, the

reform of the rules on declarations and declaratory judgments of
death with shortening of deadlines appeared as an improvement
to the regulation of the temporary situation brought on by the
absence and admission of todeserklärung of German law, the
permission to declare somebody dead in special cases of
disappearance. Also, as a consequence of the war, in 1939, Article
396 was reformed in order to provide for real estate property in a
system of community of property, which was completed at a
later time in 1960 with the publication outside of the Code of
the law on co-ownership.
In 1941, registered liens (charges) from the special law on
published materials of 1954 were introduced into the Code, which
placed the institution outside of the Code. The reform of 1954
was the most important, as it drafted 66 new articles and amended
the heading of the two Titles of Book I. Its purpose was to adapt
the Code to the Treaty of Conciliation of 1953 concluded by
the Vatican concerning marriage. It laid down the new legislation
on adoption, which was more advantageous for women than in
the law prior thereto, on matters such as the rights of surviving
spouses or eligibility to witness wills or a household’s financial
regime for the purpose of protecting a wife from abuse by her
husband.
Among other reforms, two more in the latter part of this
period should be pointed out, the first being the preliminary
title of 1974,
1974 which is of great relevance as it is organic and
general in nature and provides for the entire process of
interpretation of the Supreme Court, which affected the system
of sources of law, the application and efficiency of the rules and
system of conflict-of-law rules in terms of international legislation
and Spanish domestic legislation, once the collection of the regional

civil statutes were concluded. The second reform concerned
mar ried w
married omen and the rights and ob
women lig
oblig ations of spouses
ligations spouses,
being the first impetus to modernize gender relationships and
affect access to nationality; the capacity to act in the administration
of joint ownership of movable property and all property acquired
during wedlock, among other concerns.
C. Spanish Constitution of 1978

And lastly, we are left with the period from 1978 until now, that
is to say, the time from the adoption of the Spanish Constitution
in force. In general, its influence on the Civil Code over the past
30 years is undoubted in particular as regards its rules and
fundamental freedoms. Many of the reforms pursued during
this time aimed to adapt the Code of the Constitution, while
simultaneously with its promulgation a number of articles of the
Code were modified so as to adapt them to the Royal Decree
which laid down the age of legal majority at 18, being the first of
an overwhelmingly large number of novel laws that were civil in
nature.
In 1981, parentage, authority of parents, and a household’s
financial regime were reformed by treating those circumstances as
equivalent to marital and non-marital children and deleting the
latter as illegitimate. Paternity tests have also been authorized
and the authority of parents was conceived as the right to rely on
joint custodianship. During this same year, marriage was modified
and civil divorce was reintroduced. In 1982 and in 1990, the
reform affected Articles 17 and 26 on nationality, and in 1983,
on judicial protection, thereby affecting two titles of the first
book. In 1985, civil prohibition (interdicción civil ) was erased
BASIS AND CONTENT
from the Code. In 1990, the Code was reformed by the application
of the principle of non-discrimination, which implied the
substitution of the word “wife” for “spouse” in many provisions.
In 1991, wills were modified. In 1996, the law on the protection
of the child modified the legislation of the Civil Code on food,
abandonment, and placement of children. And in 1999, it was
modified concerning forenames and order of surnames.
The publication of the Code of Civil Procedure in 2000
was important, and which set out to eliminate all of the procedural
references of the Code by repealing anything concerning the rules
of evidence of foreign law, the rules of procedure concerning
parentage and eligibility, and those concerning the burden of proof.
Over the past years, three more important reforms are
highlighted in the scope of family law. In 2003, novelties to
benefit disabled people were introduced in relation to the
inheritance legislation. In the same year, the Code was being
modified concerning separation and divorce, by making compliance
dependent on the relationship coming to an end, in addition to
legal grounds, on the basis only of a voluntary act on the part of
contracting parties. The most recent reform as of this past
December modified Article 154 of the Civil Code by qualifying
the authority of parents to make physical corrections on their
children.
Together with these domestic reforms of the Code is a large
number of modifications contained in the complimentary rules
over the past 30 years, affecting very diverse matters such as
insurance contracts in 1980; the protection of honor, privacy
and personal reputation in 1982; arbitration in 1998 and 2003;
residential letting in 1994; industrial and intellectual properties;
patents and consumers, among many others, as required by
membership in the European Union. And there are others, as a

consequence of constitutional development and publications in
different autonomous regions, where rules differ pursuant to
region, ranging from family law to co-ownership, which have
reduced common law to only a supplementary source of law in
such territories.
Before I come to a close allow me to draw your attention to
one more general concern. I refer to the work of the courts in
updating and following up the law. I have referred to a large list
of reforms of the Code, but perhaps I have not pointed out as I
should that the majority of them are a consequence of the previous
work of interpretation of law carried out by the courts. It is the
courts that have detected the defects in the law and that have to
be the legislator for the need for reform. I want to stress this
point as a display of the devotion of the courts which have acted
under the integrity of legal order in order to bring new life to the
content of the law and improve its strength.
Perhaps, this is the secret of the legal force of the Civil Code
after so many years, evidenced in my briefing on the experience
of the Spanish Code in its long life as being the legal connection
that keeps us united, despite the time elapsed since the end of the
period of our shared history. I hope that this account has been
interesting and hopefully useful in order to better acquaint yourself
with the origins of the Code of the Philippines and, where
appropriate, to highlight the areas most needing of update and
reform.
Thank you.
REA CTIONS ON THE R EFORM
EACTIONS
OF THE S PANISH C IVIL C ODE:
BASIS AND C ONTENT ∗
Justice Jose C. Vitug∗∗

I am honored by the invitation of the Honorable Court, through
the Philippine Judicial Academy, to react to the instructive lecture
of His Excellency Francisco Jose Hernando Santiago, President
of the Supreme Tribunal and General Council of the Judiciary of
the Kingdom of Spain.
∗
∗∗
Honorable Jose C. Vitug, Associate Justice of the Supreme Court
of the Philippines from 1993 to 2004, is now Chair Emeritus of
PHILJA’s Department of Commercial Law. He remains to be a
consultant of the Supreme Court Committees on the Revision of
the Rules of Court and Legal Education and Bar Matters. He is
also a consultant of the Manila Electric Company, a director of
Aboitiz Equity Ventures, Inc., Dean of the Angeles University
Foundation (AUF) Law Center, a graduate professor, a lecturer,
and a bar reviewer.
In the Supreme Court, he was Acting Chief Justice from May 17-
23 and May 25-27, 2004; Working Chair of the First Division;
Chair of the Supreme Court Third Division; the House Electoral
Tribunal, the Committee on Legal Education and Bar Matters,
and the 2003 and 1997 Bar Examinations; Co-Chair of the
Committee on Appropriations; Senior Member of the Senate
Electoral Tribunal; and Consultant to the Judicial and Bar Council.
In the government service, he was lecturer and reviewer at the
University of the Philippines; Member of the Civil Code Revision
Indeed, the legal milieu is fast moving. It is inevitable. The

continuing evolution of societal thinking, an unrelenting advance
of Science and Technology, and an expanding boundary of the
global village are compelling and irresistible forces of change.
Committee at the UP Law Center and the Board of Advisers to the
Commissioner of Internal Revenue, BIR; and Technical Assistant
to Justice Jose B.L. Reyes of the Supreme Court from 1957 to 1961.
In the academe, he was former Dean of the Arellano Law
Foundation; Chung Chi Professor for the Chung Chi Professorial
Chair; Graduate Professor in Advance Corporation Law, Corporate
Business and Finance, Advance Taxation and Advance International
Law; and Professor of Law and Bar Reviewer in Civil Law, Taxation
and Commercial Law.
In the professional and private sector, he was Chair of the Board/
Officer/Director/Trustee/Consultant/General Counsel in various
domestic and transnational corporations/associations/
organizations; Partner, Dizon & Vitug Law Office; and Of Counsel,
Gupit, Navarette & Diaz Law Office. He was also constantly invited
as Resource Person/Lecturer/Discussant/Guest Speaker in various
private entities and government agencies.
He participated in various capacities in international fora among
which include: First International Forum for Training of the
Judiciary, Jerusalem, Israel (March 17 to 21, 2002); Australia-
Philippine Judicial Cooperation Project and the Federal Court of
Australia (October 18 to 24, 2001); Millennium Law Conference,
Singapore (April 10 to 12, 2000); Global Conference on Anti-
Corruption and Safeguarding Integrity, Washington, DC, USA
(February 24 to 26, 1999); WIPO Asian Regional Colloquium on
the Judiciary and The Intellectual Property System, New Delhi,
India (December 11 to 13, 1996); and the Diplomatic Conference
on Convention Agency in the International Sale of Goods, Geneva,
Switzerland (January 31 to February 17, 1983).
A prolific author, the books that have been published and used as
college text books in law schools include: Pandect of Commercial
2009] REACTIONS ON THE REFORM 31
OF THE SPANISH CIVIL CODE: BASIS AND CONTENT
The Philippine legal system has been a mixture of civil law

and common law rules and principles. The strong influence of
civil law brought about by the almost four centuries of Spanish
presence in the archipelago is reflected in the generally strict
adherence to statute law. So, also, the extensive infusion of
Law and Jurisprudence, The Family Code Annotated, Compendium
of Civil Law and Jurisprudence, Selected Ponencias of Justice Jose
C. Vitug, and Selected Opinions of Justice Jose C. Vitug. He is also
co-author, with Presiding Justice Ernesto D. Acosta of the Court
of Tax Appeals, of the book Compendium of Tax Law and
Jurisprudence.
Among the awards and commendations conferred on Justice Vitug
include: a doctorate degree (2005); the Supreme Court Plaque of
Recognition (2004); National Defense College of the Philippines
Distinguished Achievement Award (2004); Court of Tax Appeals
“Special Tribute” (2004); Integrated Bar of the Philippines Plaque
of Recognition (2004); Philippine Association of Law Schools
Plaque of Appreciation (2004); Philippine Association of Law
Professors Plaque of Recognition (2004); The Outstanding Filipino
(TOFIL) Award (2001); Supreme Court Centenary Book Awards
(2001); First GAWAD Arellano Achievement Award (2001);
Outstanding Manilan (2000); Outstanding Kapampangan (1999);
Outstanding GNC Alumnus (1999); Outstanding MLQU Alumnus
(1993); and the National Defense College of the Philippine
Outstanding Alumnus Award (1992).
A consistent honor graduate and scholar since primary school, Justice
Vitug finished his law degree, cum laude; obtained a Master of
Laws and Master of National Security Administration degrees;
and was a Fellow of the Commonwealth Judicial Education Institute,
Dalhousie University, Halifax, Nova Scotia, Canada.
He is also Founding Signatory of the International Organization
for Judicial Training (IOJT) in Jerusalem, Israel; a Lay Minister at
St. Jude Shrine in San Miguel, Manila; and a Reserve Officer of
the Armed Forces of the Philippines.
common law into the system with the implantation of American

sovereignty in the Islands has resulted in the recognition of the
common law responsibility of judges. A happy mixture has resulted
ultimately into the Philippine courts being held to be not only
courts of law but also courts of equity as well.1
The Civil Code of the Philippines which took effect on
August 30, 1950, was for the most part patterned after and based
on the Civil Code of Spain, the governing law in the country
from December 8, 1889, until the day before the new Civil Code
took effect in 1950. The most telling change made thereafter was
the Family Code of the Philippines that became effective on
August 3, 1988. The amendatory legislation introduced changes
on the 1950 Code governing marriages, the personal and property
relations of spouses, adoption, and, in general, the rights and duties
appurtenant to family relations.
For instance, the Family Code accepted the trend to liberalize
the acknowledgement or recognition of illegitimate children in
an attempt to break away from the traditional idea of keeping
well apart legitimate and non-legitimate relationships within the
family in favor of the greater interest and welfare of the child.
The Code also adopted the Canon Law concept of a void marriage
due to psychological incapacity of a party.
A relatively recent development is the growing preference for
the application of equity and of practical approaches, in the
solution of civil law disputes in various areas. Under the 1889
Civil Code, courts have been mandated to apply, in the absence
of statutes and customs, the general principles of law. The
1
U.S. v. Tamparong, 31 Phil. 321 (1915); Rustia v. Franco, 41 Phil.
280 (1920); Asiain v. Jalandoni, 45 Phil. 296 (1923); Alonzo v.
Padua, 150 SCRA 259 (1987).
omission of this specific language in the 1950 Code cannot be

deemed to have abandoned that rule. After all, in its Article 10,
the role of the general principles of law, largely, based on equity,
has been institutionalized for, in the application of laws, the
legislature must be presumed to have intended right and justice
to prevail, and that law cannot be held ever to have intended
otherwise.2
An interesting case, illustrative of a paradigm shift, involved
a lady court interpreter who, admittedly while married to another,
had long been cohabiting with another man, himself married to
another. The woman was charged administratively. In her defense,
she contended that under the rules of the Jehovah’s Witnesses, a
religious sect of which she was a member, the act of signing a
Declaration Pledging Faithfulness, would be sufficient to legitimize
a union which otherwise could be classified as truly being
adulterous and bigamous. She and her partner signed that
Declaration Pledging Faithfulness which, she argued, legitimized
the couple’s relationship by the religious denomination.
The ponencia discussed the ramifications of the
constitutionally protected right of freedom of religion clause on
the issue and took efforts to distinguish between secular and private
morality. The Supreme Court finally reached a conclusion by the
2
CIVIL CODE, Arts. 8-10 and 19-24; Alonzo v. Padua, 150 SCRA
259 (1987); Pangan v. Court of Appeals, 166 SCRA 375 (1988);
Agcaoili v. GSIS, 165 SCRA 1(1988); ABS-CBN Broadcasting v.
Court of Appeals, 301 SCRA 572 (1999); Bricktown v. Court of
Appeals, 239 SCRA 126 (1994); Estrada v. Escritor, A.M. P-02-
1651, June 22, 2006; Morigo v. People, G.R. No. 145226, February
6, 2004; Newsweek v. IAC, 142 SCRA 171 (1986); MVRS v. Islamic
Da’wah Council, G.R. No 135306, January 28, 2003.
majority that the law, an instrument of the secular State, should

basically concern itself with secular morality.
Verily, it would be hard for the Court to ignore the argument
that the State should interfere with “private moralities” only to
the extent that they affect the public good. Defining, however,
the line where an immoral conduct crosses the private sphere to
the realm of a general concern could be a most daunting task.
Philippine laws on the subject are veritable repositories of
moral laws that sanction immoral conduct which, at first glance,
could appear to be private and to cause no harm to larger society
but nevertheless dealt with. Examples of such instances include
general references to “good moral character” as a qualification
and as a condition for remaining in public office, and sex between
a man and a prostitute, though consensual and private, and with
no injured third party, remains illegal in this country. Until just
recently, the United States Supreme Court has outlawed acts of
sodomy or consensual sexual relations between two consenting
males, even if done in the privacy of the bedroom.
Great leaps in science and technology, as well as globalization
and cross border societies, that have started not long prior to the
turn of the century may indispensably alter the picture of, by and
large, still to be described as seeming docility in the legal landscape
to one of awareness, if not of serious anxiety, in the new era.
Even now, a convergence of the civil law and the common
law systems is noticeably, albeit slowly, taking place, and it may
just be as well.
Statutory Law would be hard put in coping with and keeping
up in step with the digital age that will task courts to inevitably
make initial responses to new issues. Expectedly, the law on persons
and family relations, legal presumptions on paternity and filiations,

and the like will continually evolve. Presumptions of paternity
and filiation particularly, are now, in fact, being drawn close to the
exit area. We may have to shortly contend with the legal
implications of cloning once the raging debate thereover is
concluded. The statutory rule of interpretation and construction
that makes legislative intent to be a primary factor in the proper
application of law is here obsolete, for when Emperor Napoleon
ordered the codification of both civil law and commercial law,
neither he nor his legal experts could have been aware that cloning
would one day be discovered and indeed become reality.
The use of DNA in court proceedings has been gaining
ground after getting an early jurisprudential foothold in the
Philippines similar to most countries of the world. Not too long
ago, the Supreme Court has come up with special rules on DNA
evidence, holding, still later, that DNA test results are admissible
in evidence and compulsory testing would not be violative of the
right against self incrimination.3 Thus far, the application of
DNA has caused a reversal of a number of criminal convictions
in the United States and elsewhere where post-sentencing DNA
testing is allowed. The decision of the Court in a petition for a
writ of habeas corpus by convicted prisoner Reynaldo de Villa,4
decided last November 17, 2004, holding in sum that DNA
results would not constitute newly discovered evidence, might
yet need a revisit or, if it is minded, a statute or a provision of the
rules to adopt post-sentencing DNA testing.
3
Agustin v. CA, G.R. No. 162571, June 15, 2005.
4
In Re: The Writ of Habeas Corpus for Reynaldo de Villa, G.R.
No. 158802, November 17, 2004.
When barely a few months back, the Supreme Court, reversing

a Regional Trial Court ruling, has refused to sanction a case of
sexual transformation in the Philippines, the tribunal could have,
wittingly or unwittingly, spelled doom on the legality of a marriage
taking place between a man and a “woman,” who once used to be
a man, even when the sex change to becoming a woman is
confirmed by medical surgeons.
It is quite understandable that the enactment of laws may
verily fall behind. In the Philippines, the only significant e-law
that has been legislated thus far is the Electronic Commerce Act
of 2000, which means to us that substantially more can be expected
to still be in the drawing board. Meanwhile, placing a reliance on
judicial jurisprudence could increasingly become frequent since
the dearth of enacted law will not excuse a judge from deciding a
case before it. Effectively, the judge, rather than Congress, may be
bound to first confront and tackle an issue. There is thus merit in
the statutory provisions that do not allow judges from declining
judgment by reason of the silence, obscurity, or insufficiency of
laws and whose decisions would henceforth form part of the law
of the land.5
A borderless society can have great impact on the need for
universal rules on the perfection, formalities, and enforcement of
contracts. Electronic and transnational agreements transcend
territorial boundaries and can affect the basic and traditional
concepts of consent along with the settled theories, heretofore
recognized, on the binding effects and due observance of contracts.
Similar uniform rules may be desirable on matters relating to
property rights and the extra-contractual relations of quasi-
contracts and torts.
5
CIVIL CODE OF 1950, Arts. 8-9.
It is yet early to tell precisely and exactly how the law would
lend itself to the inevitable in the many more generations to come;
if today, we are still unsure, how do we then aptly grasp tomorrow.
Marvin Minsky, said to be the father of artificial intelligence, has
once bluntly remarked to our great discomfort, I am sure, that
“We should be lucky enough if the new machines would be willing
to keep us, human beings, as household pets.”
I most certainly join the call to alertness suggested by His
Excellency in looking forward and doing some recalculations even
as we pay tribute to the men and women who have provided us
with the foremost two legal systems that today are still intact in
good measure.
Thank you.
EACTIONS
Justice Ricardo C. Puno, Sr.∗∗
En nombre de los abogados In the name of the aging

antiguos de nuestro pais, lawyers of our country, we have
tenemos el honor y placer de the honor and pleasure of
saludar a Su Excelencia el greeting His Excellency the
Presidente del Tribunal President of the Supreme
Supremo de España. Tribunal of Spain.
∗
∗∗
Justice Ricardo C. Puno, Sr. served in all three branches of the
government: District Judge of the Court of First Instance, Associate
Justice of the Court of Appeals (1973-1978), Representative of
the National Capital Region (NCR) to the Batasang Pambansa
(1978-1984), and Minister of Justice (1979-1984). He obtained
his Bachelor of Arts degree summa cum laude from the Ateneo de
Manila University and his law degree (magna cum laude and class
valedictorian) from Manuel L. Quezon University. He also earned
the titles Doctor of Laws (1981), Doctor of Humanities (1982),
and Diplomate in Juridical Science (2005). He practiced law and
taught at leading law institutions of the country. Being an expert in
civil law, he appeared as amicus curiae before the Central District
Court of California and the Supreme Court of the Philippines.
He was bar examiner in civil law and remedial law and was co-
chair of the Civil Code Revision Committee that drafted the New
Mis contemporaneos y My contemporaries and

nuestra generacion fuimos un my generation are the links
eslabon de la cadena que une la that bind the classical Hispanic-
clasica cultura Hispano- Filipino culture with the
Filipina con la surgente Anglo-Philippine civilization
civilisacion Anglo-Filipina. of the next generation.
El legado Hispanico no ha The Hispanic legacy has
desaparecido. Vive y vibra – not disappeared. It is vibrantly
en la sangre que corre en las alive in the blood that runs in
venas de muchos Filipinos, en the veins of numerous
las palabras castellanas que Filipinos, in the Spanish
existen en nuestros dialectos, expressions that pervade in our
en los colegios y universidades dialects, in the colleges and
que fundaron los misioneros, universities founded by the
en las capillas hermosas y missionaries, in the beautiful
iglesias muy esplendidas que se chapels and splendid churches
mantienen como centinelas de that still stand as sentinels of
piedra, en la sagrada religion stone, in the sacred religion that
que sostiene nuestra filosofia sustains our philosophy of life.
del vivir.
Family Code of the Philippines. He was the first Filipino to

participate in the Appellate Judges Seminar of the Institute of
Judicial Administration in New York University. He coordinated
the First International Conference of Appellate Magistrates in 1977.
He was a key official in the Manila World Law Conference in
1977, and was a delegate of the Philippines to the 33rd, 35th, 36th,
and 37th General Assembly of the United Nations. He served as
Vice Chair of the Philippine Delegation to the Conference on the
Law of the Sea. He is a founding partner of the Puno and Puno
Law Offices, and Chair Emeritus of PHILJA’s Department of
Civil Law.
In my many years of service in the ranks of the academe and

in the three branches of Government, I have been privileged to
listen to countless brilliant lectures. The enlightening dissertation
of President Hernando Santiago stands out and in bold relief.
His analysis of the bases and contexts of the reforms in the
Spanish Civil Code are methodically segmented into three distinct
time frames for a clear understanding of its cultural, historical,
philosophical, and legal dimensions. All these parameters are
united and merged into a common bond between the Spanish
and the Philippine Civil Law systems.
Although Civil Law “compilations” started in 1255 in the
reign of Alfonso X, codification in Spain began six centuries later.
His Excellency President Hernando Santiago has accurately traced
the three periods in the developmental transitions of the Spanish
Civil Code. The first period was from its promulgation in 1889
to the start of the Spanish Civil War in 1936. The second period
lasted from 1936 to the installation of the Constitutional
Monarchy in 1978. The third period began from 1978 and winds
up to the present time. The long span of 119 years has its
counterpart in the Philippine Justice System.
Our Philippine Civil Codal System has likewise gone through
three periods, and also originated in 1889 when the Civil Code
of Spain was extended to the Philippines by the Royal Decree of
July 31, 1889. It took effect on December 7, 1889.1 The effectivity
of the Spanish Civil Code during our own first period lasted
through two colonial occupations, from the Spanish into the
American regime right up to 1950. The second period commenced
on August 30, 1950, when the Civil Code of the Philippines
1
Mijares v. Nery, 3 Phil. 195 (1904).
took effect, and replaced the Civil Code of Spain. The third period,
which has witnessed and still undergoes radical changes in the
original Book One of the Philippine Civil Code governing Persons
and Family Relations was begun by the promulgation of the
Family Code of the Philippines which took effect on August 3,
1988.
The coincidental parallelism is quite obvious:
Spanish Civil Codal System Philippine Civil Codal System
First Period: 1889 to 1936 First Period: 1889 to 1950
Second Period: 1936 to 1978 Second Period: 1950 to 1988
Third Period: 1978 to the Third Period: 1988 to the
present present
Admittedly and avowedly, the Civil Code of the Philippines

was modeled upon the Civil Code of Spain. In fine, as President
Hernando Santiago has stressed:
the Philippines and Spain x x x share the same Civil Law
x x x the same Civil Code x x x.
He quite correctly called them the “two twin civil codes,” and
observed that both codes have the same “four books and a
preliminary title.”
But changing times call for changes in the law. The reforms
in the Spanish Civil Code enumerated by President Hernando
Santiago are responsive to modern times.
Spain’s reforms of 1904 consisting of the simplification of
the requisites of holographic wills are mirrored in our Article
810 which ordains that the personally written will is “subject to
no other form x x x and need to be witnessed.”
In the law of intestate succession, we note, however, that while

our guest of honor refers to “persons related collaterally to the
fourth degree,” Article 1010 of our Code extends hereditary rights
up to “the fifth degree of relationship in the collateral line.”
Spanish legal abhorrence of an “unconscionable” rate of
interest and “unreasonable loans” is shared by our own usury laws
and jurisprudence.
The reform movement in Spanish law during the Republican
period (1931-1939) including the concerns whereby “divorce
was regulated for the first time in Spain” is more than adequately
matched by our own Code which does not even allow the grant
of the decree of divorce.
The reformation in 1960 of the law on community property
and on co-ownership formerly covered by Article 396 of the
Spanish Code finds counterpart treatment in the Philippine Family
Code regarding the system of absolute community,2 the conjugal
partnership of gains,3 and the system of co-ownership in “unions
without marriage” or in void marriages.4
We followed the example of the Spanish Royal Decree which
reduced the legal age of majority to 18 years under our Republic
Act No. 6809 which amended Article 234 of the Family Code.
Spain and the Philippines have been marching in step as regards
the protection of the rights of illegitimate children, the exercise
of parental authority, the use of forenames and surnames, the
benevolent treatment of disabled persons, the protection of
human privacy, reputation, and intellectual property.
2
FAMILY CODE, Arts. 88-104.
3
4
The ties that bind Spain and the Philippines are enduring
and find constant recognition in international concourses and
global interactions.
As a member of the Philippine Delegation to the United
Nations General Assembly from 1978 up to 1984, I recall that
the Philippines was an accredited member of the huge Hispanic
group of Spanish speaking countries of Europe, Central and
South America.
When I was sent by our Government as the first Philippine
representative to attend the Appellate Judges Seminar of the
American Institute of Judicial Administration in New York City
in 1974, I found myself identified with the Justices of the Civil
Law States led by California, Louisiana and New Mexico in their
spirited debates with the more numerous common Law States.
President Hernando Santiago concluded with the assurance
that the reforms in Spanish Civil Law system have been assured
effective compliance by the companion reforms in Spanish
Procedural Law.
We must all acknowledge at this point that our Remedial
Law is a mixture of two cultures – the Spanish and American
procedural systems. Grateful appreciation is due to both
predecessors.
I was made fully aware of this debt of gratitude when I was
invited to lecture on the subject of Criminal Justice at the
International Session of the United Nations, Asia and Far East
Institute in Tokyo, Japan, in March 1982. In one session, a spirited
debate erupted on the subject of preliminary investigation. The
delegate from France argued that his country’s police investigation
was the most expeditious. The American representative contended
that the prosecutorial investigation conducted by their District

Attorneys was most efficient. The third debater, a distinguished
Justice of India, emphatically stressed that the preliminary
investigation conducted by their trial judges best suited the
function of the preparatory stage to a judicial trial. At this juncture,
the Chairman looked towards my direction and asked: “In the
Philippines, which procedure is followed?”
I replied: Mr. Chairman, the Philippines observes all three
procedures – the police investigation, the prosecutorial
investigation conducted by local, city, provincial, and state
prosecutors, and the judicial preliminary investigation of probable
cause by trial courts.
The Chairman then remarked, amid the nodding approval
of participating audience: “The Philippines obviously has the
best procedure.”
I humbly answered: “Thank you, Mr. Chairman.”
And so, just as humbly I now conclude: Thank you, Ladies
and Gentlemen.
EACTIONS
Dr. Maria Liza A. Lopez-Rosario∗∗
I am deeply honored and very grateful to the University for giving

me the opportunity to be a reactor to the discurso of a very
important prominent and legal luminary, the President of the
Supreme Court of Spain, su Excellentissimo, Señor Don
Hernando Santiago.
In this discurso, Don Hernando said that the Filipinos and
the Spaniards are “separated by continents but are united by our
history and our predisposition towards the good of the
community.”
∗
∗∗
Dr. Maria Liza A. Lopez-Rosario obtained her Bachelor’s Degree
in Philosophy (Magna Cum Laude, Rector’s Awardee for Academic
Excellence, 1984) and Bachelor of Laws ( Magna Cum Laude,
Rector’s Awardee for Academic Excellence, 1988) from the
University of Santo Tomas. She was admitted to the Philippine Bar
in 1989. In 1998, she obtained her Doctor of Civil Laws degree
from the Universidad Complutense de Madrid (Apto Cum Laude
por Unanimidad).
Dr. Lopez-Rosario worked as a Public Attorney I at the Public
Attorney’s Office in 1991. Presently, she is a Partner at the Romulo
Mabanta Buenaventura Sayoc & De Los Angeles Law Offices. She
teaches Persons and Family Relations, Obligations and Contracts,
Credit Transactions and Civil Law Review I.
If we take a short glimpse of the 350 years of Spanish

dominion in the Philippine territory, we can say with sincerity
that the Spaniards left valuable gifts to us Filipinos which we will
always cherish. For one, the Spaniards introduced Christianity to
us. Up to the present, Catholicism has remained to be the
predominant religion in the Philippines. Second, the name of
our country, Philippines or “Filipinas,” was taken from the name
of the King of Spain El Rey Felipe. Most Filipinos carry Spanish
names: Valdez, Lopez, Rosario, Cruz, to name a few. These,
together with the siesta and the mañana habit, are some of the
things we inherited from Spain. The influence of Spain in the
lives of Filipinos also extended to Philippine laws. As mentioned
by Sr. Don Santiago:
The Philippines and Spain not only share the same civil
law, but also share the same Civil Code, that is to say, the
same systematic set of rules of general private law.
After the declaration of the Philippine Independence in 1945,
Executive Order No. 48 was issued on March 20, 1947, creating
a Commission of five members to work on a project to prepare
for the codification of our civil laws. The project was done in
1948 and was submitted to the Congress for its approval.
Congress approved the project in 1949 with the passage of
Republic Act No. 386, also known as the Civil Code of 1950.
In the report of the Philippine Code Commission, its members
admitted that the Civil Code of the Philippines was based on the
Spanish Civil Code of 1889. Out of 2,291 articles, approximately
25 percent thereof was taken from the Spanish Civil Code of
1889. The following provisions in the 1950 Civil Code compare
with the Spanish Civil Code of 1889:
a. The Philippine Civil Code like the Spanish Civil Code

is divided into four books: Persons (Book 1); Property,
Ownership and Its Modifications (Book 2); Different
Modes of Acquiring Ownership (Book 3); and
Obligations and Contracts (Book 4).
b. In addition to the four books is the preliminary title which
embodies the fundamental or basic principles of law.
c. Usufruct, easement under Property or reserva troncal
under succession and different modes of extinguishing
an obligation under obligations and contracts are some
of the provisions under the Spanish Code which have
been adopted by our Philippine Code.
The Philippine Commission said:
although the Civil Code of 1950 is written in English, its
content is Spanish-Philippine law. Thus, the translated
words should be understood not from the point of view
of Anglo-American law but from the Spanish-Philippine
law, as it was incorporated in our Code.1
His Excellency emphasized the principal legal reforms done
to the Spanish Civil Code of 1889. Citing Supplementary
Provision No. 3 of their Code:
the Ministry of Justice, through the Codification
Committee, makes reforms as appropriate to be introduced
into the Code every 10 years, bearing in mind that the
rigidity of the rule can hamper its efficiency as to the
evolution of the times and the people.
His Excellency has enumerated specific reforms made in their
Codes since the time of its enactment in 1889 up to the present.
1
Report of the Philippine Code Commission, page 8.
This is what could be lacking in our Philippine Civil Code of

1950. Since the time of its effectivity on August 30, 1950, only
the provisions on marriage and family relations have been
reformed. The Books on Property, Modes of Acquisition of
Ownership as well as Obligations and Contracts have never been
updated. It is about time, as His Excellency said, that the courts
and law schools, who have a mutually beneficial relationship,
should continue to work together to update and improve our
laws. He has clearly mentioned:
x x x law schools make use of the materials provided by
the courts through their decisions x x x. On the part of
the courts, the work and research of universities is made
use of as to the new proposals for existing problems, or for
detecting new problems under the law or from its
application in society x x x.”
Finally, I would like to take this opportunity to personally
thank the Spaniards through His Excellency for the two most
valuable things we have inherited from them: Muchisimas Gracias
por la introduccion de la cristianidad en Filipinas y Muchisimas
Gracias por la introduction del codigo civil en nuestro pais.
C LOSING R EMARKS ∗
Chief Justice Reynato S. Puno∗∗
he honorary doctorate of laws degree and plaque of
T appreciation we confer today on His Excellency

Francisco Jose Hernando Santiago, President of the
General Council of the Judiciary of Spain and Chief Justice of
the Supreme Court of Spain, is a homage not only to the
accomplishments of a great man, but also to a legacy that his
country has bequeathed to our own. I speak, of course, of the
Civil Law tradition, which is the basis of our own Civil Code
and Family Code. In addition to these codes, Spanish Law is also
the basis of another Philippine legal code of fundamental
importance – the Revised Penal Code.
Karl Marx, in a very well-known passage, said that:
The tradition of all the dead generations weighs like a
nightmare on the brains of the living.1
∗
∗ ∗
Chief Justice Reynato S. Puno was appointed the 22nd Chief Justice
of the Philippines by then President Gloria M. Arroyo on December
7, 2006. He is also the concurrent chair of the SC First Division
and ex officio Chair of the Judicial and Bar Council (JBC) and
the Presidential Electoral Tribunal (PET).
Prior to his appointment to the High Court in 1993 by President
Fidel V. Ramos, he served as: Associate Justice of the Intermediate
Appellate Court and the Court of Appeals (CA), Deputy Minister
1
Marx, Eighteenth Brumaire of Louis Bonaparte (1852).
Obviously, Marx does not appreciate the importance of tradition.

Certainly, tradition is not mere deadweight. Rather, tradition
“represents the judgments of earlier generations, revealing choices
of Justice, acting Chairman of the Board of Pardons and Parole,

Solicitor in the OSG (1971), Assistant Solicitor General in 1974,
and City Judge of Quezon City. He holds the distinction of being
the youngest appointee to the CA at the age of 40 in 1980.
As Chief Justice, he chairs the Court’s First Division, the Court
Systems Journal, and the Supreme Court Committee that digests
the Court’s decisions for distribution to members of the Judiciary.
He also heads the High Court’s Committee on Revision of the
Rules of Court that has drafted the Rules of Procedure in Election
Contests Before the Courts Involving Elective Municipal and
Barangay Officials, among many others.
Chief Justice Puno obtained his Bachelor of Science Degree in
Jurisprudence and his Bachelor of Laws Degree from the University
of the Philippines in 1962. He served as editor in chief of The
Philippine Collegian. He pursued his post-graduate studies in the
United States on a full scholarship. He obtained his Master of
Comparative Laws degree at the Southern Methodist University,
Dallas, Texas, with high distinction and as class valedictorian; his
Master of Laws at the University of California, Berkeley; and
completed all the academic requirements for the degree of Doctor
of Juridical Science at the University of Illinois, Champaign,
Urbana. In 2005, he became the first Filipino to receive the
Distinguished Global Alumnus Award from the Dedman School
of Law, Southern Methodist University, Dallas, Texas. He has been
conferred honorary doctorates by five of our universities and by
the Hannam University, South Korea.
While a post-graduate student, Chief Justice Puno received five
American Jurisprudence Prizes for Excellence awards given by the
Lawyers Cooperative Publishing Co. of New York and the Bancroft
Whitney Publishing Co. of California.
2009] CLOSING REMARKS 51
they have made and values they have adopted. Tradition thus has
the capacity to teach us from where we have come, and to cast
light on where we may go. It can enrich our understanding of our
own world by allowing us to see the possibilities, the consequences,
In 1962, he started professional practice at the Gerardo Roxas and

Sarmiento Law Office as Assistant Attorney. Upon his return from
the United States in 1969, he joined his brother, the late Judge Isaac
S. Puno, Jr., in law practice.
On August 1, 1986, Chief Justice Puno was reappointed to the
Court of Appeals. In 1993, then President Fidel V. Ramos appointed
him as Associate Justice of the Supreme Court. He was Chair of
its Second Division.
He served as Bar Examiner in Criminal Law in 1970, Mercantile
Law in 1989, and Taxation in 1993. He was also a Lecturer of the
UP Law Center, Institute of Judicial Administration, and a Professor
of Law at the Far Eastern University from 1969 to 1973. He now
lectures at the Philippine Judicial Academy (PHILJA).
Among Chief Justice Puno’s most prestigious awards are: Ten
Outstanding Young Men Award (TOYM), Araw ng Maynila Award
as Outstanding Jurist, UP’s Most Outstanding Law Alumnus, Grand
Cross of Rizal from the Order of the Knights of Rizal, Grand
Lodge Gold Medal from the Grand Lodge of Free and Accepted
Masons of the Philippines, and Centennial Awardee in the field of
law given by the United Methodist Church on the occasion of its
100th anniversary.
The Chief Justice is active in civic and church activities as a lay
preacher of the United Methodist Church and Chairman of the
Administrative Council of the Puno Memorial United Methodist
Church.
Chief Justice Puno was married to the former Supreme Court
Clerk of Court Atty. Luzviminda D. Puno with whom he has three
children.
and the limits of human experience. The value of tradition is that

it supplies the potential for insight.”2
But even then, we must always be critical of tradition; there
always ought to be a process of refinement that must occur.
Respect for tradition is given not through blind adherence to the
past, but to its adaptation to meet changing times. Rationality is
the only way in which tradition may be maintained.3 Indeed, all
great traditions generate opposition within themselves, aimed at
improvement or transformation of the tradition.4
Our distinguished guest has elucidated the many reforms that
have benefited Spanish Civil Law. In our own laws, we will find
many vestiges of Spanish law that arguably are not anymore attuned
with the times. Barely a month after it became effective, former
Supreme Court Justice and eminent Civilist J.B.L. Reyes published
his proposed amendments to our Civil Code.5 Since then, many
amendments to the Civil Code and the Revised Penal Code have
already been enacted, including the Family Code and the Anti-
Rape Law of 1997. In other jurisdictions, many developments
of late can assist us in the improvement of our laws. The field of
Law and Economics, which has as one of its focus, the laws of
property and contracts, has been well received by legal scholars. In
particular, recent laws and amendments introduced in other
jurisdictions, like the reforms to the Spanish Civil Code, are also
a fertile field for inspiration.
2
Rebecca Brown, Tradition and Insight, 103 Yale L.J. 177, 222 (1993).
3
Id. at 16.
4
Id. at 25.
5
J.B.L. Reyes, Observations on the New Civil Code on Points not
Covered by Amendments Already Proposed, in Civil Code Reader
371-463 (Carmelo Sison, Ed., 2005).
2009] CLOSING REMARKS 53
Nevertheless, we must be cautious in introducing changes to

the laws that for so long have served us well in the past. In weaving
novel threads to our intricate legal tapestries, we must first ruminate
and ask: “What will happen to a minor doctrinal variation, seen
as ingenious, interesting and benign at the time of its formulation,
once its full implications are realized over several generations?”6
To paraphrase Dean Roscoe Pound: although law cannot stand
still, the law must always remain stable.
Again, I thank His Excellency Francisco Jose Hernando
Santiago for the first ever visit and lecture of a President, Supreme
Tribunal and General Council of the Judiciary of the Kingdom
of Spain to the Philippines. I thank our distinguished panelists:
Justice Jose C. Vitug, Justice Ricardo C. Puno, Sr., and Dr. Maria
Liza Lopez-Rosario for their enlightening reactions. Last but not
the least, I thank the University of the East for co-hosting this
Special Convocation and conferring the Degree of Doctor of
Laws Honoris Causa to our distinguished guest.
A pleasant day to all.
6
Ibid.
Pontifical and Royal University of Santo Tomas
(The Catholic University of the Philippines)
present
The Second Distinguished Lecture

Series of 2008
THE JUDICIAL ADMINISTRATION

OF INDIGENOUS AFFAIRS
IN NEW ZEALAND
by
Justice Edward Taihakurei Durie,

DCNZM (Ret.)
High Court of New Zealand
Monday, March 10, 2008, 2:30 P.M.

Continuing Medical Education (CME) Auditorium
Medicine Building
University of Santo Tomas
España, Manila
Program
Invocation
REVEREND FATHER ISIDRO C. ABAÑO, O.P.
Secretary General

New Zealand National Anthem
Greetings
PROFESSOR ROBERTO A. ABAD
Officer in Charge, Faculty of Civil Law
Opening Remarks
HONORABLE LEONARDO A. QUISUMBING
Senior Associate Justice, Supreme Court
Musical Intermission
UST CONSERVATORY OF MUSIC
Introduction of the Lecturer

HONORABLE RUBEN T. REYES
Associate Justice, Supreme Court
LECTURE
Justice Edward Taihakurei Durie, DCNZM (Ret.)
Panel of Reactors
PROFESSOR SEDFREY M. CANDELARIA

Associate Dean, Ateneo Law School
Chairperson, Department of Special Areas of Concern
DR. MARIA LIZA A. LOPEZ-ROSARIO
Professor, Faculty of Civil Law
Presentation of Plaque of Appreciation

by
Justice Antonio T. Carpio
Reverend Father Isidro C. Abaño, O.P.
Closing Remarks
Chief Justice
Supreme Court Hymn

UST Hymn
Master of Ceremonies
HONORABLE ADOLFO S. AZCUNA
Justice Leonardo A. Quisumbing∗∗
M
r. Chief Justice, Honorable Reynato S. Puno;
Reverend Rector Magnificus, Father Rolando V. dela
Rosa, and Regent Father Maximo Gatela, and our
Hosts Professor Roberto A. Abad here in the University of Santo
Tomas
Our Highly Esteemed Lecturer from New Zealand
Our Colleagues in the Court and in the government service
Distinguished Guests
Members of the Faculty
Fellow Students
Ladies and Gentlemen.
∗
Delivered at the Second Distinguished Lecture, Series of 2008, held
on March 10, 2008, at the University of Santo Tomas, Manila.
∗∗
Senior Associate Justice Leonardo A. Quisumbing was born in
Masbate, Masbate. He obtained his Ll.B. degree in 1964 from the
University of the Philippines, and was awarded a Master of Laws
degree in 1969 by the Cornell University as a NEC-AID Grantee.
As a student, he was a college scholar, president of the UP Student
Council, editor in chief of The Philippine Collegian, president of
the Student Councils Association of the Philippines, and member
of the National Debating Team to Australia that won the Wilmut
Cup. He capped his achievements by placing 12th in the 1966 Bar
Examinations. At the MLQU, he edited The Quezonian and
graduated magna cum laude, A.B. Journalism. He has been awarded
four honorary doctorate degrees in law, public administration, and
humane letters.
Our Master of Ceremonies today, Mr. Justice Adolfo S. Azcuna,

has given us a hint of who and what to expect this afternoon.
It was hardly a month ago that we had the Chief Justice of
the Supreme Court of Spain as our first distinguished lecturer of
the 2008 series. His views on civil law reforms were certainly well
received.
For this, the second distinguished lecturer for this year, we are
very much honored to have with us the Honorable Retired Chief
Justice of the High Court of New Zealand, the Honorable
Taihakurei (Eddie) Durie. Our topic is certainly one of great
and fundamental interest to all students of ancestral domain and
agrarian reform law, for he will dwell on the subject of The New
Zealand Experience of Resolving Indigenous and Land Issues in
the Context of Treaty Settlement Process. His views came from
a very unique perspective, both enlightening and authoritative. I
suppose the Treaty referred to is the Treaty of Waitangi, 1840.
It is my understanding that our speaker has devoted a great
number of years of his career in law to the development of a
He taught and practiced law for almost 15 years, then served the
government in various posts for over 21 years. Prior to his
appointment to the Supreme Court in 1988, he was Secretary of
Labor and Employment. Before that, he served as Undersecretary
of the Department of National Defense during President Corazon
C. Aquino’s administration and then as Senior Deputy Executive
Secretary to President Fidel V. Ramos. Before his court appointment,
he also held the rank of Commodore of the Philippine Coast
Guard, 106th Auxiliary Squadron.
Justice Quisumbing took special training in Management of Public
Agencies at Cornell Graduate School, Research at Georgetown
University, Communications at Michigan State University, and
Public Sector Negotiations at Harvard University.
legal system in the Pacific region, of which New Zealand is

indubitably one of the active leaders. There is much to be gained
from his experiences in the development of strategies, judicially
and constitutionally, as well as in the management of Pacific
customary law, statute law, and human rights. For we too have
outstanding law and ancestral domain issues involving mostly our
indigenous Filipinos that are yet to be settled successfully.
In mid-1964, I did have a chance to attend the international
student conference in Christchurch University. And not only
did I visit New Zealand’s vast sheep farming areas and so
wonderfully green hills, but I also ventured to the scenic beaches
of Akaroa, a South Island tourist attraction. Later, in 1967 to
1968 at Cornell University, my roommate was a Ph.D. student
from Dunedin, the southernmost city of New Zealand. Recently,
from several Filipino families who have migrated to that country,
I got the unanimous impression that New Zealand is one of the
most democratic and progressive countries of the world, with a
very high standard of living, specially with excellent environment,
health care and public education facilities.
His published works include Constitutional Control of the Election
Process; Compensation in Land Reform Cases; Comparative Public
Law Study; ASEAN Comparative Law (Vol. IV ed., Corporation
Law) in the EEC and the ASEAN; Two Regional Experiences; Law
on Taxation in the Philippines; Labor Law and Jurisprudence (1992-
1998); and Access to Justice, a lecture delivered before the 1993
ASEAN Law Association Conference in Singapore.
Justice Quisumbing is married to Ambassador Purificacion Valera
Quisumbing, former Chairperson of the Commission on Human
Rights and now Special Envoy on Human Rights, Humanitarian
Affairs, and other International Law Matters. They have two
daughters: Josefa Lourdes, an aspiring artist and Cecilia Rachel, a
Commissioner on Human Rights.
Thus, it is a privilege for me to open this distinguished lecture

today and to invite everyone to a productive afternoon of learning
and exchange of views from our esteemed panel of reactors. Let
us listen to our honorable distinguished lecturer for whom we
prepared a most pleasant afternoon in this venerable legal
institution of higher learning. A unique academic experience
certainly awaits all of us.
THE JUDICIAL ADMINISTRA TION
ADMINISTRATION
OF INDIGENOUS AFF AIRS
AFFAIRS
IN NEW ZEALAND ∗
Justice Edward Taihakurei Durie, DCNZM (Ret.)
Justice Ed
Edw war d Taihakur
ard aihakurei ei Durie
Durie,
a member of the Distinguished New
Zealand Order of Merit for his services
to the Maori Land Court, Waitangi
Tribunal and New Zealand High
Court, was appointed a High Court
Judge in 1998. In 2004, while
continuing to serve as judge, he was
appointed as a New Zealand Law
Commissioner. As Commissioner he
proposed a legal framework for the
management of tribal organizations, and
also for the development of legal
systems in Pacific states, and judicial
and constitutional strategies for
Maori land law as an adviser to the New
managing the interface of Pacific
Zealand Maori Council.
custom law, state-made law, and human
rights. He obtained his law degree from
Victoria University of Wellington and
In 1980, he was appointed Chief
received honorary degrees from Victoria
Judge of the Maori Land Court and
University, Massey University, and
then as Chairperson of the Waitangi
Waikato University.
Tribunal, a body to hear Maori claims
against the Crown in respect of historic In 2006, while in Manila to speak
losses and current policies – his main at the Liberty and Prosperity Forum, he
focus for the next 20 years. Previously, took part in workshops with the
in 1974, as a judge of the Maori Land Government, civil society, indigenous
Court, he was involved in the reform of groups, and MILF on indigenous issues.
∗
Delivered at the Second Distinguished Lecture, Series of 2008,
held on March 10, 2008, at the University of Santo Tomas, Manila.
Madame Chancellor Honorable Justice Ameurfina A.

Melencio Herrera
Honorable Chief Justice Reynato S. Puno
Reverend Father Isidro C. Abano
Your Honors
Your Excellencies
Distinguished Guests.
Magandang hapon po sa inyong lahat.
Nga rangatira, nga kaiwhakawa, tena koutou. Tena tatou katoa.
I
t is a great honor to address this Academy. I acknowledge
the senior level at which the Academy is operated, as befits
its critical role in judicial education and in maintaining the
ethical conventions and constitutional standards necessary for good
governance.
I. I NTRODUCTION
NTRODUCTION
This address will refer to the law and indigenous peoples in the
context of indigenous Maori of New Zealand, of whom I am a
member. The Maori are reputed to have come from Asia’s outer
islands on the Pacific rim. They represent the final stage of that
oceanic migration by which the Pacific was populated. So with
you at one end of the South Pacific and Maori at the other, I am
hoping we can stake a claim to the ancestral title of the Pacific as
the Alpha and the Omega of the Pacific peoples.
Today, our countries share a commitment to certain values
of increasing universality. I refer to the concept of the rule of
law. I refer as well to the ethic of judicial independence and
acknowledge in so doing, the leadership of your Chief Justice,
2009] THE JUDICIAL ADMINISTRATION 65
OF INDIGENOUS AFFAIRS IN NEW ZEALAND
Reynato S. Puno, in maintaining the high standards necessary for

an independent judiciary.
The doctrine propounds the right of indigenous peoples to
ownership of the lands traditionally possessed by them. The scope
of the right has not been finally determined and is still in
construction, as was evident in New Zealand in the 1980s when
the Courts applied the doctrine to recognize Maori fishing rights.
It was evident again this century when it was used to uphold the
potential right of Maori to areas of seabed and foreshore.
The right of indigenous peoples to the ownership of the lands
they traditionally possessed also found expression in a Treaty
between the Imperial government and the Maori people on the
annexation of New Zealand in 1840. It too has been used by the
Courts as a source of principle. This has occurred most commonly
where the Treaty has been incorporated into the relevant law by
statute, but in some instances which, if copied often enough could
lead to a significant change in New Zealand law, the courts have
used the Treaty as a source of principle even without statutory
reference.
Today, however, the international community has effectively
reformulated those principles, that is, the principles of both the
Treaty of Waitangi and the doctrine of aboriginal title. I refer,
again, to the Declaration of Indigenous Peoples’ Rights. The
Declaration is at once wider and more specific than the material
relied on in the past.
The Declaration of course, is a declaration, not a convention,
and as such has moral rather than legal force. That could change
through the development of a customary international law but
that is a matter of future prospect. For the present it has moral
force.
Nonetheless, it is a moral force that is particularly compelling.

The Declaration gives definition to amorphous rights that are
already part of the law by virtue of the doctrine of aboriginal
title. It gives specificity to an existing legal principle.
As a statement of principle, the Declaration also gains strength
because it has the support of 143 states and because indigenous
peoples themselves were involved in its formulation. They were
involved through the meetings of the working group on
indigenous peoples over about 20 years.
This contrasts with the doctrine of aboriginal title which was
formulated initially by only a small group of Spanish jurists who,
it seems, had never actually been abroad. It contrasts as well with
the Treaty of Waitangi which was formulated by or on the advice
of a small number of British officials. In both cases, the indigenous
people were involved. Now, for the first time, the indigenous
people have been significantly engaged, giving an element of
legitimacy to the declaration that the doctrine did not enjoy.
These circumstances provide compelling grounds for judges
to interpret rights under the doctrine of aboriginal title in terms
of its modern reformulation in the Declaration.
II. D OMESTIC L EGISLATION

EGISLATION
Whether or not a conservative or reforming approach is taken to

the doctrine of aboriginal title, the judge must first give effect to
the relevant domestic legislation. In New Zealand, Maori land
rights have been provided for, from the beginning of settlement
leading up to the creation of a Maori Land Court in 1862.
It would not be unusual were further legislation to follow

from the UN Declaration in order to ensure a legislative framework
for the protection of Maori interests in a manner more obviously
consistent with that Declaration. While New Zealand did not
vote in support of the Declaration, our commitment to indigenous
rights is profound and legislation that supports those parts of
the Declaration that are not in issue for New Zealand would be
consistent with New Zealand’s position.
Before referring to the existing legislation that underpins New
Zealand’s commitment to indigenous rights, it is necessary to
explain the context. Indeed, context is everything. It explains
why some legislation which one might expect to find is absent
and why we have enacted legislation that others would consider
unnecessary.
First, the only ethnic distinction necessary when considering
indigenous peoples’ rights in New Zealand is that between Maori
and subsequent settlers. Elsewhere that is not always so. In your
southern island of Mindanao, for example, a distinction is made
between indigenous, settler, and Moro.
Second, the indigenous Maori are a single, ethnic group with
a common culture and language. In the Philippines there are several
distinct ethnicities.
Third, the distinction between Maori and settler can be readily
explained in terms of first and second settlers. Here, those in
each of the three groups can claim descent from ancient occupiers
somewhere in the many Philippine islands.
It is also necessary to refer to the distinctive parts of our
history. For present purposes only, two episodes of New Zealand
history need mention.
First, as already discussed, New Zealand was annexed as a British

colony on the basis of a Treaty of 1840, called the Treaty of
Waitangi, whereby Maori purportedly ceded sovereignty to the
British Crown. This cession was made on undertakings that Maori
would be protected in the ownership of their lands, estates, forests
and fisheries or in the alienation of lands for European settlement.
Second, the government failed to deliver on the protective
undertaking. Instead, Maori landholdings were rapidly reduced
from 100 percent of the country in 1840 to about 5 percent
today. This was mainly as a result of confiscations following war
between Maori and the government and as a result of land
purchases on an unconscionable scale.
The consequences of that history are significant when
comparing New Zealand with other jurisdictions.
First, it follows from the British assertion that the sovereignty
of New Zealand was acquired by cession from Maori, that Maori
had the sovereignty in the first place; and from that it must be
deemed that they possessed the whole of the New Zealand
territory. Accordingly, it was not for Maori to prove their right
to any particular part of the land but for government to prove
some cognizable act to extinguish the Maori interest, like a purchase
or some compulsory acquisition.
Elsewhere, including the Philippines, it has been for the
indigenous people to establish their right to some particular land
area where that is possible, by reference to long term, exclusive
use.
Second, such Maori land as survived the confiscation and
early land purchase era, was defined by survey and brought in
under the Torrens land registration system. As far as is known,
the right to every part of the country has now been determined
and secure titles have been given for the lands, Maori lands or
otherwise, now in private ownership.
Third, the history of warfare and of Maori land losses came
to weigh on the national conscience. The result was specific
legislation to prevent the same thing happening again in the future.
The legislative reforms began in earnest in the 1860s, with
legislation to establish the Maori Land Court to determine the
true owners of Maori land before the land was purchased. The
old system whereby the government purchased from those whom
the government decided were the true owners was too open to the
temptation that government would prefer as owners those who
were willing to sell. It was precisely a claim of that kind that had
led to the New Zealand wars.
The next strategy, which came later, was to expand upon the
functions of the Maori Land Court to protect Maori in the
ownership of such land as remained and to empower them to
make the best use of it, for their sake, and for the sake of the
national economy. Legislation directed to those ends was
introduced in the 19th century and dominated Maori policy in
the first half of the 20th century.
The final strategy did not develop until the second half of
the 20th century. It was a strategy to provide the tribes with some
compensation, in the form of land returns and cash. The broad
objective may be seen as one of securing to each of the main
tribal groups a sufficient endowment for the tribes’ future needs,
including a financial backing for the perpetuation of the culture,
and the engagement of tribal members in productive industries.
That leads me to the second point in this presentation on the

judicial administration of indigenous affairs in New Zealand. You
will recall that the first concerned the role of judges in determining
the ambit of indigenous peoples’ rights. The second, to which I
now refer, concerns the role of judges in maintaining an oversight
of the necessary measures to actively protect and enhance those
rights through specialist courts and tribunals.
III. T HE M AORI L AND C OURT

OURT
The Maori Land Court was the first specialist tribunal. Its origins
have already been described. Its functions developed over time
but included these:
• To determine the precise ownership of those lands that
had not previously passed to the government;
• To maintain an oversight of the necessary steps to survey
those lands and obtain secure titles;
• To supervise all proposed alienations, whether by sale,
lease or otherwise, to ensure that they were demonstrably
in the interests of the Maori owners; and finally
• To develop sound legal entities to manage the lands on
behalf of the several owners having regard to both cultural
and commercial imperatives.
While this court, first established in 1862, has been subjected
to much and often justified criticism over the many years of its
operations, it served to provide a great deal of protection for
Maori people in the ownership, use, and retention of their lands
and to advance the peoples’ development.
IV
IV.. T HE W AITANGI T RIB
AITANGI UN
RIBUN AL
UNAL
The second tribunal was not established until 1975, and was not
significantly operative until after 1980. This is known as the
Waitangi Tribunal. It was established to hear Maori claims that
they are or have been prejudiced by the state policies or practices
which are contrary to the principles of the Treaty of Waitangi,
which I have mentioned; and where the Tribunal considers those
claims to have been proven, to recommend to government the
steps which might be taken to compensate for or remove that
prejudice.
Accordingly, the Tribunal serves to examine both current state
policies, legislative or administrative, and the historic policies by
which Maori suffered their major resource losses.
In some cases on the settlement of historic claims, the Tribunal
may go further than that of merely recommending. It may order
that certain former state assets, including former state farms and
forests, be transferred to tribal ownership. But so far it has not
been necessary to make those orders. Government has negotiated
with the tribes to achieve substantial and comprehensive
settlements from which the tribes have been able to advance.
Claims in respect of more than half the country have now been
settled.
Those settlements have not been limited to land matters. The
first major settlement concerned Maori fishing interests. It resulted
in Maori tribes owning some 40 percent of the New Zealand
Fishing Quota and buying into the infrastructure of the New
Zealand fishing industry.
V. T RIB AL C ORPORA
RIBAL TIONS
ORPORATIONS
Presently, there is a Bill before the New Zealand Parliament for a

law to facilitate the establishment of tribal authorities to represent
tribes on the settlement claims. If enacted, it would add to the
role of the Maori Land Court.
To date, the development of appropriately mandated entities
for the purposes of settlements with tribes has been handled
administratively. However, the New Zealand Law Commission
has seen the prospect of conflict. It is a conflict reminiscent of
the early days when the government chose the person with whom
to negotiate on the purchase of Maori Land. That same conflict
is reenacted when government determines the persons with whom
it will negotiate the settlement of a claim for compensation for
land losses. It is in that context that the New Zealand Law
Commission proposed that the development of entities
representative of the tribes should be managed under the
supervision of an independent court.
VI. T HE C ASE FOR J UDGES IN S PECIALIST R OLES
Why did New Zealand opt for such a hands-on role for judges in
Maori administration? Elsewhere in the world such matters have
been handled by government bureaucracies.
Sometimes it seems that the New Zealand system developed
by chance rather than design, as a pragmatic response to particular
concerns as they arose. But I also suspect that notwithstanding
that for a long time the Treaty of Waitangi was overlooked in the
administration of New Zealand, there was an underlying
appreciation that indigenous people do have rights, social,
economic and political rights that are distinctive to them. Likewise

there was an appreciation that those rights, like all rights, are fragile,
and are easily lost unless active steps are taken to protect them.
Consideration is then due to the number of persons with
interests adverse to the Maori to appreciate that robust systems
were needed if active protection was to be achieved in fact. The
concern most commonly expressed by politicians and officials
was that it was necessary to protect Maori people from the avarice
of private developers and speculators. However, as a result of
Maori protests, it was also plainly evident that the most significant
interest adverse to that of Maori was government itself.
Government had interests in acquiring Maori land for settlement,
for the development of projects of national importance, for roads
and other public works, and for scenic and conservation purposes.
In these circumstances it was necessary to draw on the strengths
of the judicial system. Under that system, judges were trained to
act only in accordance with principle, to seek out the higher
principles for the orderly management of affairs and to act
impartially, without fear or favor. Most of all judges, unlike
government administrators, were independent and espoused a
tradition of maintaining that independence.
So it was that New Zealand judges stepped outside their
normal role of resolving conflicts to engage in an inquisitorial
role to protect and enhance the rights of indigenous peoples.
We share as well a commitment to human rights. I note in
this context the newest addition to the compendium of human
rights instruments, the Declaration on the Rights of Indigenous
Peoples.
To the credit of both our countries we had arrangements in

place for the management of indigenous peoples’ rights well before
the United Nations Declaration. In your country, the provisions
for the indigenous are most notably represented in the Indigenous
Peoples’ Rights Act.
I make no comment on the arrangements you have made for
indigenous people. Even were it right to do so I am insufficiently
familiar with those arrangements to be able to comment on them
in any depth. However, I believe it would be mutually beneficial
to begin a dialogue on this area of law. We can learn from each
others’ experiences, and come to a greater understanding of our
common values and beliefs. Equally, we can work together to
understand the circumstances that are unique to our respective
countries. It helps us to appreciate that although the principles
relating to indigenous peoples’ rights are universal, they must be
variously applied accordingly to local context. Some things that
work well in one place may not work well elsewhere.
VII. S YNOPSIS
With those introductory thoughts I come to the topic, the judicial

administration of indigenous affairs in New Zealand. “Judicial
administration” means here, the administration of the relevant
law by judges. However, in this instance, the term accommodates
more than the usual judge’s role of determining the ambit of the
relevant law in the context of specific disputes. It extends as well
to the protective and supervisory functions that judges may
perform as members of specialist courts and tribunals. This address
covers both functions.
VIII. T HE J UDGE ’ S R OLE

IN D ETERMINING THE A MBIT OF R IGHTS
I turn now to the first of those functions that I have mentioned,

that is, the role of the courts in determining the scope of
indigenous peoples’ rights.
In my country, we followed the lead of Chief Justice John
Marshall of the United States Supreme Court in recognizing
what New Zealand lawyers now call “the doctrine of aboriginal
title.” Chief Justice Marshall gave expression to the doctrine in
the 1830s. It was applied for the first time in New Zealand in
1847.
Was this approach successful? There has been valid criticism
of the fact that the Court, following a statutory direction, was
responsible for converting tribal titles to individual ownership, in
the process, diminishing the capacity of the tribe as a corporate
group. On the other hand, the Court was instrumental in
obtaining secure titles for Maori land. Its interventions on
proposed land transactions also helped to secure the land for future
generations.
There has also been justifiable criticism of the Court’s
paternalism. On the other hand, the Court has been responsible
for developing tribal entities to manage the land independently
of court, and for developing systems for the resolution of disputes
through mediatory processes outside the Court system.
Through its promotion of trusts and incorporations for land
management, the Court has proven that multiple or tribal
ownership is not a barrier to commercial development. In
illustration, the incorporations have expanded their operations
from the primary industries of agriculture, horticulture and forestry
to the secondary industries of processing, packaging, and

marketing. Along with the tribal corporations established from
the settlement of historic claims they are also now investing in
the tertiary sector, in commercial and residential properties and
tourism for example. Forty percent of Maori investments are
now in this sector.
Chief Justice, your honors, New Zealand takes note most
seriously the commitment of its judges to the principles of judicial
independence. I have endeavored to illustrate the value of that
by reference to the traditional function of judges in upholding
rights in the context of particular cases, and by reference to the
additional contribution that judges have made while serving in
specialist tribunals. Through adherence to judicial impartiality
and independence in the administration of indigenous peoples’
affairs, judges have made a major contribution to peace and
prosperity in New Zealand.
You adhere to the same value of judicial independence and
subscribe to the same goals of national peace and prosperity. It
has been a great honor to say something of the New Zealand
experience in that area, and to learn something of your own
experience and vision for the Philippines.
Maraming salamat po.
T HE IPRA: I NDIGENOUS P EOPLES
AND T HEIR R IGHTS ∗
T
his is the second time that the Honorable Taihakurei
Durie has visited the Philippines to share with us his
wisdom. The first time was two years ago when he
participated in a video conference during the Liberty and
Prosperity Forum hosted by former Chief Justice Artemio V.
Panganiban. While in Manila for that Forum, Justice Durie took
part in a number of workshops with our Government, civil society,
indigenous groups, and the Moro Islamic Liberation Front on
indigenous issues, particularly ancestral domain. He is recognized
as an expert on indigenous people in the Asia-Pacific region. I
would like to thank him for following through with the work he
started two years ago. His lecture today on New Zealand’s
experience of resolving indigenous and land issues in the context
of a treaty settlement process imparts invaluable insight that will
greatly benefit us in our efforts to ameliorate the lot of our
Indigenous Peoples. We also thank the Panel, Professor Sedfrey
M. Candelaria, Dr. Maria Liza-Lopez Rosario, Secretary Rodolfo
Garcia for their enlightening comments on the lecture of Justice
Durie.
Eleven years ago, our Congress enacted a law that sought to
correct a grave historical injustice to our indigenous peoples. The
∗
Closing Remarks delivered at the Second Distinguished Lecture,
Series of 2008, held on March 10, 2008, at the University of Santo
Tomas, Manila.
law was Republic Act No. 8371, more popularly known as the
Indigenous Peoples’ Rights Act of 1997, or the IPRA. It came as
a welcome daybreak to end the long night of the centuries-old
neglect of our indigenous peoples.
Republic Act No. 8371 was meant to break the common
thread in our legal and social systems that forced the marginalization
of our indigenous peoples. History reveals that like the Spaniards,
the Americans pursued a policy of assimilation of our indigenous
people. After the Philippines gained independence, our Congress
adopted a policy of integration, which was like the colonial policy
of assimilation understood in the context of a guardian-ward
relationship. These attempts towards assimilation and integration
did not succeed as they were met with fierce resistance from our
indigenous Filipinos.
The result was a paradigm shift in the 1973 Constitution. It
provided the guide that “The State shall consider the customs,
traditions, beliefs, and interests of national cultural
communities in the formulation and implementation of State
policies.” The 1987 Constitution ggooes fur ther than the 1973
further
Constitution by expressly guaranteeing the rights of tribal
Filipinos to their ancestral domains and ancestral lands lands.
By recognizing their right to their ancestral lands and domains,
the State has effectively upheld their right to live in a culture
distinctly their own.
This change in policy from assimilation and integration to
recognition and preservation is statutorily implemented by the
IPRA. In synopsis, the IPRA recognizes the existence of
indigenous peoples as a distinct sector in Philippine society. In
doing so, it provides for their civil, political, social and cultural
rights, acknowledges a general concept of indigenous property
2009] THE IPRA: INDIGENOUS PEOPLES 79
AND THEIR RIGHTS
rights and their title thereto, and creates the National Commission
on Indigenous Peoples as its independent implementing body.
Despite all the noble intentions, the enactment of the IPRA
has not stopped the injustices suffered by our indigenous peoples.
In the hinterlands, armed rebel groups recruit our indigenous
people’s youth to be child soldiers; powerful politicians use armed
mercenaries to burn their villages and grab their lands; and large
corporations and mining companies intrude into their unprotected
communities1 in the mindless pursuit of profit.
The world has taken cognizance of the plight of indigenous
peoples. The United Nations General Assembly, of which the
Philippines is a member, has adopted the United Nations
Declaration on the Rights of Indigenous Peoples. Many of the
rights declared in that instrument, particularly “the right not to
be subjected to forced assimilation or destruction of their culture,”
reinforce the rights granted by the IPRA. Be that as it may, there
are rights in that Declaration that are not yet afforded to our
indigenous peoples. For example, the Declaration established the
right of indigenous peoples to have their cultures, traditions,
histories and aspirations “appropriately reflected in education and
public information.” The Declaration also calls on States not
only to “take effective measures to ensure that State-owned media
duly reflect indigenous cultural diversity,” but also to “encourage
privately owned media to adequately reflect indigenous cultural
diversity.” We have yet to push flesh to these aspirations.
The histories and cultures of the indigenes all over the world
are relevant to the evolution of Philippine law and culture and
1
Howard Dee, Justice for Our Indigenous Filipinos , 4 PHILJA
JUDICIAL JOURNAL 13, 15 (2002).
are vital to the understanding of contemporary problems. It is

through the IPRA that an attempt was made by our legislators to
understand Filipino society not in terms of myths and biases but
through common experiences in the course of history. The
Philippines became a democracy a centennial ago but the
decolonization process still continues. If the evolution of the
Filipino people into a democratic society is to truly proceed
democratically, that is, if the Filipinos as a whole are to participate
fully in the task of continuing democratization, we must
acknowledge the presence of indigenous and customary laws in
the country and affirm their co-existence with the principal laws
of the land.
Good day to all.
Far Eastern University
present
The Third Distinguished Lecture

Series of 2008
THE METES AND BOUNDS

OF THE PHILIPPINE TERRITORY
by
Ambassador Lauro L. Baja, Jr.

Former Philippine Permanent Representative
to the United Nations
Friday, June 27, 2008, 2:30 P.M.

FEU Auditorium
Second Floor Administration Building
Nicanor Reyes St., Manila
Program
Invocation
HONORABLE ARTURO D. BRION
Greetings
DEAN MIGUEL M. CARPIO
Acting Vice President for Academic Affairs
Opening Remarks
HONORABLE PRESBITERO J. VELASCO, JR.
FEU CHORALE

HONORABLE RENATO C. CORONA
LECTURE
AMBASSADOR LAURO L. BAJA, JR.
Panel of Reactors
HONORABLE FLORENTINO P. FELICIANO

Retired Senior Justice
Supreme Court
represented by
JAY L. BATONGBACAL, ESQ.
HONORABLE ESTELITO P. MENDOZA
Former Minister of Justice and Solicitor General
ATTY. HENRY S. BENSURTO, JR.

Secretary General
Commission on Maritime and Ocean Affairs
Department of Foreign Affairs
Presentation of Plaques of Appreciation

by
Dean Miguel M. Carpio
Closing Remarks
Chief Justice
Supreme Court Hymn

FEU Hymn
Justice Presbitero J. Velasco, Jr.∗∗
C
hief Justice Reynato S. Puno
Esteemed Colleagues from the High Court, both past
and present
Madame Chancellor Ameurfina A. Melencio Herrera
Ambassador Lauro L. Baja
Distinguished Guests
Ladies and Gentlemen.
If there is one obvious thing we have in common, it is that we
belong to, cherish, and serve the same country. To borrow from
and paraphrase Seneca, we love the Philippines not because of its
size or eminence, but because it is our own.
∗
Opening Remarks delivered at the Third Distinguished Lecture, Series
of 2008, held on June 27, 2008, at the Far Eastern University,
Manila.
∗∗
Born on August 8, 1948, in Pasay City, Justice Presbitero J. Velasco,
Jr. is a product of the public school system. He went to J. Sumulong
Elementary School (First Honorable Mention) and the University
of the Philippines (UP) Preparatory School, respectively, for
elementary and high school. He obtained his Bachelor of Arts
Degree in Political Science from UP, finishing the course in only
three years, and went on to take up his Bachelor of Laws from the
same university. At the UP College of Law, Justice Velasco was a
member of the Order of the Purple Feather Honor Society and
served on the Editorial Board of the Philippine Law Journal. He
graduated eighth in the class of 1971 and placed sixth in the Bar
exams that same year. He engaged in private law practice for 20
years before becoming a regular member of the Judicial and Bar
Friends, it is an honor and a great pleasure to welcome you to

the Third Distinguished Lecture of 2008. This afternoon’s lecture
and discussion will focus on the country’s national territory, or, as
the program indicates, the metes and bounds of the Philippine
territory. As political scientists and students of history and law
would tell us, the national territory is more than over 7,000 islands
scattered along the waters of the main Philippine islands of Luzon,
Visayas, and Mindanao. It is a common belief that the figure
goes up or down depending on the upward movement of the
tide. And of course, when we speak of the national territory, the
reference is not limited only to the land mass or the terrestrial
domain of the country. For the maritime and aerial domains are
integral components of a state’s territory.
Council (JBC) in 1993. He served as Undersecretary of the
Department of Justice from 1995 to April 1998.
He was concurrently Commissioner of the Housing and Land Use
Regulatory Board. He was also Chairman of the Board of Pardons
and Parole, Commissioner of the Commission on Settlement and
Land Disputes, and Member of the Committee on Privatization.
In 1998, he was appointed Court of Appeals Justice and was ranked
eighth in the disposition of cases when he was named Court
Administrator in 2001. He also served the Integrated Bar of the
Philippines (IBP) as its National President in 1987, as Commissioner
of the IBP Committee on Bar Discipline, and as Honorary
Chairman and Past National Co-Chairman of the IBP National
Committee on Legal Aid. He was Member of the Board of
Governors from 1985 to 1987 and Vice President for Southern
Tagalog Region. He was also the Cavite IBP Chapter President for
1985 to 1987 and was the President of the Quezon City Capitol
Jaycees from 1986 to 1987. It was during his term that the Capitol
Jaycees was adjudged the “Most Outstanding JC Chapter in Asia-
Pacific.” In 1988, he was elected the National Executive Vice President
(NEVP) of the Philippine Jaycees in charge of Metro Manila.
Lately, the issue of dominion over the Kalayaan Island Group

(KIG) in the mineral-rich Spratlys off Palawan and the
Scarborough Shoal in the vicinity of Zambales has again hogged
the headlines, triggered by the controversy over the Joint Marine
Seismic Undertaking, a tripartite agreement between the
Philippines, China, and Vietnam for the conduct of seismic
exploration at the KIG area. The virtually uninhabited Spratly
chain of islands which abuts the Malampaya oil-producing field
in Palawan is reported to be one of the largest continental shelves
in the world. While the result of a China-sponsored study may
perhaps be a bit exaggerated, the Spratly area, according to that
study, is estimated to hold oil and gas deposits that are larger than
Kuwait’s present 13 billion tons reserves.
Section 1, Article 1 of the 1987 Constitution provides:
The national territory comprises the Philippine
archipelago, with all the islands and waters embraced
therein, and all other territories over which the Philippines
has sovereignty or jurisdiction, consisting of its terrestrial,
fluvial and aerial domains including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine
areas. The waters around, between, and connecting the
islands of the archipelago, regardless of their breadth and
dimensions, form part of the internal waters of the
Philippines.
One school views a constitutional provision defining the metes

and bounds of the state’s territory as a delimitation of its national
territory. We cannot argue with that observation. But a
constitution specifying the boundaries and areas of the national
territory would certainly avoid conflicts to a certain degree, that
is – regarding areas over which there are no claims whatsoever by

other countries. Precisely, a specification of one’s territory is made
to put the whole world on notice of the areas over which a country
asserts title or ownership.
But there will be areas embraced in the basic law of the country
over which there are conflicting claims, like Sabah, which the
Philippines and Malaysia each views as her own.
If we recall history, Sabah was given as a gift by the Sultan of
Brunei to the Sultan of Sulu, who, in turn, leased it to a German
national named Overdeck and a British named Dent for an annual
rental of US$5,300. The lessees, without the knowledge and
consent of the Sultan of Sulu, sold their lease rights to the British
Government. Thus, Sabah came under the possession, control
and jurisdiction of Britain which annexed the area as its crown
colony. In 1957, Sabah became a part of the Federation of
Malaysia. This dispute over Sabah still remains unresolved to the
present day.
Sabah may be encompassed in the territory “belonging to the
Philippines by historic right or legal title” under the 1973
Constitution. That phrase was dropped from the 1987 definition.
In its place was substituted the catch-all phrase “all other territories
over which the Philippines has sovereignty or jurisdiction” which
undoubtedly embraces those areas owned by our country by
historic or legal right. This construction no doubt is of vital
importance to our Sabah claim as it buttresses and supports our
efforts to recover the disputed area. As aptly observed by Fr.
Joaquin Bernas, S.J., discussing the evolution of the 1987 provision
on national territory, the phrase “all other territories” covers areas
linked to the Philippines in varying degrees of certainty and
firmness, and includes Sabah over which the Philippines had filed
a formal claim.1
Lastly, the 1987 constitutional definition of the country’s
territory, although seemingly delimiting in operation, does not in
any way prevent us from acquiring additional territory in the
future through modes permissible under international law, such
as exchange or purchase, assuming we have the bent, not to mention
resources, to acquire additional territory.
As may be noted, the 1987 definition of national territory
clearly points to the Philippines as an “archipelagic state.” An
archipelago, as its most basic, means a group of islands and
interconnecting waters forming a territorial, political or economic
whole. It may be noted too that the Philippines in the 1987
Constitution makes particular ownership claim over its internal
waters – meaning the waters around, between, and connecting the
islands of the archipelago, irrespective of their breadth and
dimensions. The assertion over internal waters articulates the
archipelagic doctrine of national territory.2 As an aside, while the
24,000 islands of Sweden certainly outnumber our 7,100 islands,
we can brag that our country is one of the largest archipelagos
with an area of 300,440 square kilometers and discontinuous
coastline of 300,500 kilometers. For sure, we should assert our
dominion over this large expanse as a rich source of natural
resources.
1
Fr. Joaquin Bernas, S. J., The Constitution of the Republic of the
Philippines, 1996 ed., p. 16.
2
Fr. Joaquin Bernas, S. J., The Constitution of the Republic of the
Philippines, 2003 ed., pp. 10-11.
It ought to be stressed though that a constitution, being a

municipal law, is binding only within the territorial limits of the
state promulgating it. Accordingly, the definition of national
territory set forth, and any sovereign claim over a territory made
– in the Constitution or any local statute, for example PD No.
1596 which declared the KIG as part of Palawan – will bind
internationally if accepted by the international circle or supported
by proof that can stand internationally. Conversely, the silence
of a constitution respecting the territorial extent of sovereignty
does not divest such sovereignty of any portion of territory it is
entitled to under international law.3
Beyond its land territory, all coastal states, like the Philippines,
are now recognized to exercise sovereignty, subject to treaty
obligations, over their territorial sea or waters.
The United Nations Convention on the Law of the Sea
(UNCLOS), to which the Philippines had given its ratification
together with over 100 other countries and which had already
entered into force,4 recognizes a 12 nautical mile limit measured
from the baseline for the territorial sea which abandons the old
cannon-shot rule of three nautical miles. The archipelagic baseline
whence the breadth of the territorial sea of the Philippines is, or
shall be determined, consists of straight lines joining the
appropriate points of the outermost islands of the archipelago
without departing from the general configuration of the
archipelago. From an uninitiated point of view, given the deeply
indented coastlines of the country, I would imagine that the
different dots from which the lines shall be connected will be
3
Id. p. 3.
4
On November 16, 1994.
found in the outmost points of the following provinces: Batanes

in the North; Davao del Sur in the South; Pangasinan and Palawan
in the western side; and Eastern Samar, Catanduanes, and Isabela
in the east.
In addition to the territorial sea of 12 nautical miles, the
UNCLOS also recognizes special rights over several maritime
areas to be measured from the archipelagic baselines, notably over
the contiguous zone, 24 miles; the exclusive economic zone, 200
nautical miles; and the extended continental shelf, up to 350
nautical miles. Our distinguished lecturer will discuss in some
detail the UNCLOS provisions on these maritime areas.
Under the UNCLOS, archipelagic states are submitting to
the UN a law delineating its post-UNCLOS archipelagic baselines
before May 13, 2009. The process would certainly be a tricky
and complicated task owing to the issue of whether the hotly
contested KIG and the Scarborough Shoal should be considered
as part of the main archipelago and included within baseline of
the national territory. Judging from newspaper reports, individual
members of Congress and Congress as a whole, on one hand, and
Malacañang, on the other, appear to be divided over the Spratly-
related disputes and their impact on the economic and security
arrangements in Southeast Asia.
The sensitive Sabah issue and the conflicting and overlapping
exclusive economic zones of neighboring countries are issues that
still need solution.
In the end, however, we trust that the political leadership, vis-
à-vis issues regarding the Philippine territory, shall act with the
best interests of the country and the Filipino people in mind.
Today’s lecture would try to address in some detail certain

pressing concerns surrounding the metes and bounds of the
Philippine territory and the impact of the UNCLOS on the
country’s maritime regimes. From a seasoned diplomat’s point of
view, we can of course expect some insights on what direction is
most ideal for the country to take under the premises.
Thank you and again welcome.
THE PHILIPPINE N
NAATION AL
TIONAL
TERRIT OR
TERRITOR
ORYY∗
Ambassador Lauro L. Baja, Jr.
Ambassador Lauro Liboon Baja,

Jr
Jr.. has over 40 years of distinguished
diplomatic experience that includes his
appointments as the Philippine
Ambassador to Brazil and Italy, and his
designation as Philippine Representative
to the United Nations (2004) to oversee
Manila’s participation as a non-
permanent member of the Security
Council.
He led the Philippine Delegation
in a historic two-year membership in
the Security Council where he ably
articulated Philippine positions on
He was also vice chairman of the 1591
various issues brought before the most
Committee tasked to monitor the
powerful organ of the UN. He served
implementation of the arms embargo,
as president of the Security Council,
travel ban and assets freeze against
first in June 2004 and in 2005, and was
Sudan.
responsible for the historic Security
Council Summit in September 2005 He was also recently recognized by
chaired by President Arroyo, the first the NGO Group in the Security Council
Filipino and Asian head of state to for his contribution to international
preside over the Summit. peace and security and for enabling, for
the first time, civil society and NGOs
He was vice chairman of
to participate in formal meetings of the
subsidiary bodies of the Security
Security Council.
Council: the 1540 committee that seeks
to prevent terrorists from acquiring and He holds degrees in jurisprudence
using weapons of mass destruction and and law from the University of the
the sanctions committees on Liberia and Philippines and has taken a Foreign
the Democratic Republic of Congo. Service Course at the Oxford University.
∗
Delivered at the Third Distinguished Lecture, Series of 2008, held
on June 27, 2008, at the Far Eastern University, Manila.
I. I NTRODUCTION
NTRODUCTION
I
am honored by the invitation of the Philippine Judicial
Academy of the Supreme Court of the Philippines to
participate in their Third Distinguished Lecture and discuss
with you the topic Metes and Bounds of Philippine Territory. I
am awed at the high level at which the Academy is operated and
by its mission which in the words of the Chief Justice is “to
deepen and broaden our understanding of the law by considering
the realism and the pragmatism of contemporary principles and
the theoretical and transcendental issues and that will complete
our vision of what the law is and ought to be.”
The subject is important as it is relevant. It is important to
have an inventory of what we hold in common and know what
we are and where we are as a nation. Knowing the metes and
bounds of our national territory gives the nation a sense of self,
and would help the Government and other countries especially in
cases where there would be negotiations on overlapping maritime
regimes.
II. C ONSTITUTION AL P ROVISIONS

ONSTITUTIONAL
The 1935, 1973, and 1987 Constitutions of the Philippines

contain provisions on the national territory.
Under the 1935 Constitution, the Philippines comprises all
territory ceded to the United States by the Treaty of Paris
concluded between the US and Spain on December 10, 1998, the
limits of which are set forth in Article III of said treaty, together
with all the islands embraced in the treaty concluded between US
and Spain on January 2, 1930, and all territory over which the
2009] THE PHILIPPINE NATIONAL TERRITORY 95
present Government of the Philippines Islands exercises

jurisdiction. The 1935 Constitution is a colonial constitution,
approved by the President of the United States on March 23,
1935.
Under the 1973 Constitution, the national territory comprises
the Philippine archipelago, with all the islands and waters embraced
therein, and all the other territories belonging to the Philippines
by historic right or legal title, including the territorial sea, the
airspace, the subsoil, the seabed, the insular shelves, and other
submarine areas over which the Philippines has sovereignty or
jurisdiction. The waters around, between and connecting the islands
of the archipelago, regardless of their breadth and dimensions,
form part of the internal waters of the Philippines.
The 1987 Constitution provides that the national territory
comprises the Philippine archipelago, with all the islands and waters
embraced therein, and all other territories over which the
Philippines has sovereignty or jurisdiction, consisting of its
terrestrial, fluvial and aerial domains including its territorial sea,
the seabed, the subsoil, the insular shelves and other submarine
areas. The waters around, between and connecting the islands of
the archipelago, regardless of their breadth and dimensions, form
part of the internal waters of the Philippines. No reference is
made to the Treaty of Paris and related treaties in the 1973 and
1987 Constitutions.
The Philippine territory thus, falls into three groupings:
1. The Philippine archipelago;
2. Other territories over which the Philippine has sovereignty
or jurisdiction; and
3. The Philippine waters, airspace and submarine areas.
III. T HE P HILIPPINE N ATION AL T ERRIT

TIONAL OR
ERRITOR Y
ORY
AND U NITED N ATIONS C ONVENTION
ON THE L AW OF THE S EA
No international agreement has greater impact on Philippine

National Territory than the United Nations Convention on the
Law of the Sea (UNCLOS). After three years of preparatory
committee work and nine years of sessions of the UN Conference
on the Law of the Sea, UNCLOS was adopted on April 30,
1982. It was opened for signature at Montego Bay, Jamaica, where
119 States signed on December 10, 1982 the Convention,
including the Philippines. The Convention entered into force on
November 16, 1994, more than 12 years after its adoption. The
Convention represents the codification and the comprehensive
and progressive development of the international law of the sea.
It is generally considered by the international community as the
legally accepted norm for maritime conduct, a “constitution for
the oceans” governing all ocean seas, exploitation of ocean
resources, and the protection of the maritime environment. The
Philippines ratified the Convention on May 8, 1984.
The UNCLOS establishes zones of national jurisdiction.
There are seven types of waters with varying regimes recognized
under the Convention, namely:
1. Internal or Domestic;
2. Archipelagic;
3. Territorial Sea;
4. Contiguous Zones;
5. 200-mile Exclusive Economic Zone;
6. Straits Used for International Navigation; and

7. High Seas.
There are certain aspects of the Convention which directly
affect the Philippines. The first and foremost is Part IV of the
Convention dealing with archipelagic states. The Philippines is
the pioneer proponent of the archipelagic principle in the
international forum. In the First UN Conference on the Law of
the Sea in 1958 and the Second Conference in 1960, the Philippine
delegation tried to push through the archipelagic principle, but in
both conferences, the principle failed to be adopted. The third
UN Conference finally incorporated the principle into the
Convention.
IV
IV.. A RCHIPELA GIC S TATE
CHIPELAGIC
The Convention established the legal concept of the archipelago

as an integrated unit in which the islands, waters, and other natural
features form an integral, geographical, economic and political
entity.
Before Part IV of the Convention, the Philippines was in
legal effect dismembered, since international law recognized only
a 3-mile territorial sea around every island so that in many parts
of the Philippines, the waters between the islands beyond three
miles from the shore of the opposite island were regarded as open
sea or international waters.
With Part IV of the Convention, no longer will the various
islands of the Philippines be regarded as separate units, each with
its own maritime means and waters between them as distinct from
the land territory. The archipelagic state, like the Philippines, is
permitted to draw baselines around the archipelago, connecting
the outermost points of the outermost islands. All waters within

the baselines, designated as archipelagic waters, are under the
sovereignty of the archipelagic state regardless of their width and
dimension. This national sovereignty exists also with respect to
the airspace above the archipelagic waters and to the seabed and
subsoil below them and to all the resources, living or nonliving.
Let me take up the matter of the Philippine maritime limits
set by the Treaty of Paris and related treaties as they are affected
by UNCLOS. We have a wider territorial sea under the Treaty
of Paris and related treaties. Our problem with the Treaty of
Paris is getting other nations to accept these limits. Even the US
expressly opposed our claim, saying that Spain has ceded to US
only the islands inside the described limits in the treaty and not
the waters. The US contends that when she was exercising
sovereignty in the Philippines, she limited herself for three miles
around every island. Even Indonesia, also an archipelago, refused
to support our claim to these “historic waters.”
The Philippine Delegation to UNCLOS, thus, opted for
acceptance of the Convention because we believed that the
Convention as a whole would be more beneficial to the Filipino
people. We have in mind the recognition of the archipelagic
principle and the provisions of the exclusive economic zone. This
option was endorsed by the different groups and subgroups created
by the cabinet Committee on the Law of the Sea which was tasked
to study the Convention prior to the Philippines’ ratification.
V. THE P HILIPPINES AND

THE E XCL USIVE E CONOMIC Z ONE
CLUSIVE
The exclusive economic zone (EEZ) is one of the new concepts

in the Convention, as an additional maritime area of States. In
archipelagic states, it is a belt around the archipelago more than

200 nautical miles wide, measured from the archipelagic base lines.
The Philippines has certain rights in this exclusive economic zone,
namely:
1. Sovereign rights for the purpose of exploring and
exploiting, conserving and managing the natural resources
whether living or nonliving of the waters and the seabed
and deep subsoil; and
2. Jurisdiction with regard to the establishment and use of
artificial islands, installations and structures for maritime
scientific research and protection and preservation of the
maritime environment.
The EEZ of the Philippines measures about 395,400 square
nautical miles. The area that we have been claiming as our historic
territorial sea extending the limits of the Treaty of Paris measures
263,300 square nautical miles. The EEZ, therefore, is bigger than
the territorial sea by 132,100 square nautical miles which is
equivalent to about 45 million hectares where the Philippines
will be entitled to all the resources. Moreover, with the adoption
of the archipelagic principle, the Philippines gained 141,800 square
nautical miles, or inside the baselines or a total gain of 93 million
hectares.
It is also important to note the Philippines Declaration on
the signing of the Convention on the Law of the Sea where the
country manifests.
1. The signing of the Convention by the Government of
the Republic of the Philippines shall not in any manner
impair or prejudice the sovereign rights of the Republic
of the Philippines under and arising from the Constitution
of the Philippines;
2. Such signing shall not in any manner affect the sovereign

rights of the Republic of the Philippines as successor of
the United States of America, under and arising out of
the Treaty of Paris between Spain and the United States
of America of December 10, 1898, and the Treaty of
Washington between the United States of America and
Great Britain of January 2, 1930;
3. Such signing shall not diminish or in any manner affect
the rights and obligations of the contracting parties under
the Mutual Defense Treaty between the Philippines and
the United States of America on August 30, 1951, and
its related interpretative instrument; nor those under any
other pertinent bilateral or multilateral treaty agreement
to which the Philippines is a party;
4. Such signing shall not in any manner impair or prejudice
the sovereignty of the Republic of the Philippines over
any territory over which it exercises sovereign authority,
such as the Kalayaan Islands, and the waters appurtenant
thereto;
5. The Convention shall not be construed as amending in
any manner any pertinent laws and Presidential Decrees
or Proclamations of the Republic of the Philippines; the
Government of the Republic of the Philippines maintains
and reserves the right and authority to make any
amendments to such laws, decrees or proclamations
pursuant to the provisions of the Philippine Constitution;
6. The provisions of the Convention on archipelagic passage
through sea lanes do not nullify or impair the sovereignty
of the Philippines as an archipelagic state over the sea
lanes and do not deprive it of authority to enact

legislation, protect its sovereignty, independence, and
security;
7. The concept of archipelagic waters is similar to the concept
of internal waters under the Constitution of the
Philippines, and removes straits connecting these waters
with the economic zone or high sea from the rights of
foreign vessels to transit passage for international
navigation;
8. The agreement of the Republic of the Philippines to the
submission for peaceful resolution, under any of the
procedures provided in the Convention, of disputes under
Article 298 shall not be considered as a derogation of
Philippine sovereignty.
The Declaration was made under Article 310 of the
Conventions which allows three categories of declarations, namely:
1. General Declarations;
2. Interpretative Declarations; and
3. Declarations Relating to Settlement of Disputes.
According to the late Senator Arturo Tolentino, who headed
the Philippine Delegation in all three UN conferences on the law
of the sea, we filed this declaration to give notice to other countries
signing the Convention that we have claims which may not be
completely in harmony with the provision of the Convention in
relation to our domestic legislation. The Declaration was circulated
to all states which participated in the drafting of the Convention.
Concerns have been expressed on the nature of archipelagic
waters in relation to our internal waters.
The sovereignty over archipelagic waters is subject to two kinds

of passage by foreign ships. First, innocent passage and second,
archipelagic sea lanes passage.
Innocent passage is well known in international law. It is
passage that is not prejudicial to the peace, good order or security.
Archipelagic sea lanes passage means continuous and
expeditious or unobtrusive navigation or overflight through an
above sea lane that must be established by the archipelagic state
between one part of the high seas or EEZ and another part of
the high seas or EEZ.
Archipelagic sea lanes passage must be distinguished from
transit passage envisioned in straits used for international
navigation. The latter is imposed by the Convention; archipelagic
sea lanes passages can be exercised only on such sea lanes that the
archipelagic state would want to designate or establish. Our straits
are entirely within our archipelagic waters and therefore cannot
be said to be connecting our EEZ or high seas with another part
of the high seas or EEZ.
It is also important to note that the Convention provides for
solutions in case of overlapping boundaries in the territorial sea,
EEZ, and the continental shelf.
In the case of the territorial seas that overlap, a median line
shall be drawn and each party gets one-half of the overlapping
area.
In the case of overlapping EEZ and continental shelf, the
issue of overlap will be effected by agreement among the parties
concerned. Failing agreement, the parties should resort to the
settlement of disputes provision of the Convention.
VI. B ASELINES
The importance of drawing baselines cannot be overemphasized.

It is from these baselines that the regime of the territorial sea, the
contiguous zone, the exclusive economic zone and to a certain
degree the continental shelf is measured. The Philippines has its
own baselines law, Republic Act No. 3048 and Republic Act No.
5446. They are not going to be disturbed at all but we may have
to amend existing baselines which do not conform to the
requirements of the Convention. The longest baseline can only
be 100 nautical miles with some exception that would extend to
125 nautical miles, provided they do not exceed 3 percent of this
total number of baselines. Therefore we have to adjust or do
some installations to our baselines which exceed 100 miles. Our
law cannot be automatically modified or repealed by the
Convention. They can be modified or repealed only by our own
domestic laws which we reserve the right to pass.
VII. T HE K ALAYAAN G ROUP

ALAY OF I SLANDS
Will the drawing of baselines to include the Kalayaan Group of

Islands violate the UNCLOS? The Philippine Delegation believes
that it will not as long as we do not exceed the maximum length
of the lines. The lines do not have to be drawn from large islands
as long as they are islands that are kept above the level of the
water. These islands can be used as point for drawing baselines.
The Philippines has every logical reason to draw baselines
that will include the Kalayaan Island Group (KIG). The
Philippines exercises effective jurisdiction over it considering the
establishment of a military garrison and local civil units there.
The islands are considered part and parcel of the Republic of the
Philippines by virtue of Presidential Decree 1596 of 1978. The
Decree was registered with the UN Secretariat on May 14, 1980.
The Kalayaan Island Group is part of the Spratly Group of
Islands. As we know, China, Taiwan, and Vietnam claim the entire
Spratlys. All claimants, except Brunei, occupy parts of the Spratlys.
Kalayaan is a fifth class municipality of Palawan composed of
seven islands, namely:
1. Pag-asu – 32.2 hectares
2. Likas – 18.6 hectares
3. Parola – 12.7 hectares
4. Lawak – 7.9 hectares
5. Kota – 6.45 hectares
6. Patag – 0.52 hectares
7. Panota – 0.44 hectares
The KIG adds to the Philippines exclusive economic zone,
an area of 360, 850 square nautical miles.
That the Spratly Group of Islands, to which the KIG is a
part, is claimed by other countries should reinforce rather than
deter our determination to include the Kalayaan in drawing our
baselines. The KIG is the most strategic area in our exclusive
economic zone, significant in terms of food, energy, navigation,
trade and security. It is our national heritage, as the book edited
by Porfirio Aliño and Christine Quibilan aptly describes in detail
the dynamics of the islands.
We must formulate policies and adopt measures which will
not diminish that heritage. To exclude Kalayaan and just say we
are not abandoning our claim to the islands is empty rhetoric and
does violence to common sense. An unlikely diplomatic fallout
by including KIG in our baselines should not unduly worry the
Philippines. Nor should we entertain the bogey of war erupting
over this issue.
Notes verbale and aide memoires are SOP noises, required in
international relations, especially among claimant countries. We
should be doing the same. In foreign relations, silence is not
golden all the time. Let us note that the signals which come
from outside which gave the leadership of the country feet of
clay in drawing our baselines are mere talking points, if reports
are accurate.
Kalayaan and baselines are current challenges to Philippines
Diplomacy. The Department of Foreign Affairs (DFA) should
restore and renew being primus inter pares on foreign policy issues
and be confident, consistent and committed in its advocacies of
policies. There is a time for niceties and politesse and a time to be
proactive, forceful, and aggressive in international relations. To
be timid and pursue a serendipitous approach on Kalayaan and
baselines can be perfect diplomatic storm of irrelevance for the
Department. There is no greater tragedy for an institution than
to find itself, too late, that it has become irrelevant because of
inaction and/or timidity.
These thoughts should apply to our attitude towards the
Tripartite Agreement for Joint Marine Seismic Undertaking
(JMSU). The issue is sub judice. It is, however, relevant to note
that the area of JMSU falls within our EEZ; that seismic activities
are precursors of exploration and exploitation of natural resources;
that the undertakings were signed by the oil authorities of the
three countries, and that if reports are true, one of the parties
objected to let the undertaking lapse after three years. Previous

attempts at joint exploration and development of the South China
Sea failed because of no agreement on where it will be held. Let
me just state that we may have unwittingly allowed ourselves to
be led back to the status where we were before we negotiated the
Declaration on the Conduct of Parties in the South China Sea.
The Association of South East Asian Nations (ASEAN), led by
the Philippines, has always taken pride in convincing China to
discuss with ASEAN as a group the South China Sea as a regional
and international issue instead of a bilateral issue among claimant
countries. JMSU may have put us back to square one. The
Philippines may have unwittingly contributed to ASEAN again
being sucked into vortex of irrelevance.
VIII. B ACK TO THE F UTURE
It is urgent for the Philippines insofar as the metes and bounds of

its national territory is concerned to draw its baselines as an
archipelagic state and consequently measure the extent of our
continental shelf, bearing in mind the deadline on May 13, 2009.
The continental shelf comprises the seabed and subsoil of the
submarine area beyond the territorial sea throughout the natural
prolongation of its land territory to the outer edge of the
continental margin or to a distance of 200 nautical miles from
the baselines from which the territorial sea is measured when the
outer edge of the continental margin does not extend up to that
distance.
Time is the essence for us to submit our claim to our
continental shelf as a natural prolongation of our law territory.
The proposal for a congressional commission on national
territory which would be given until December 31 to submit a
report on national territory may be a bit late. Information and

technical description on the limits of our continental shelf beyond
200 nautical miles (which limits we are claiming) should be
submitted to the Commission on the Limits of the Continental
Shelf. The Commission shall evaluate the submission and make
recommendations to the coastal state on matters related to the
establishment of the outer limits of their continental shelf.
Considering the process involved, a submission by the Philippines
even three months before its deadline may preempt favorable
consideration. It is also too late in the day to debate whether we
should be an archipelagic state or not, unless we intend to denounce
UNCLOS.
It would be unrealistic to hope for a perfect definition of the
national territory in the sense that it will be accepted by all.
National governments invariably decide paramount issues not on
idealistic considerations but on practical realities on the ground.
The Philippines should be unyielding insofar as national interests
are concerned. That is what the Philippine Delegation to
UNCLOS did and that is what the Government should do so
insofar as the metes and bounds of our territory are concerned.
In the life of all nations, there come moments that decide the
direction of a country and reveal the character of its people. We
are now of that moment. We bind the future by what we do or
fail to do in the present. I believe that the learned men and women
of the Philippine Judicial Academy can extricate the leadership
of the country from the present policy blind spot on baselines
and the continental shelf and rescue its leaders from inertia and
inaction. This should promote national ocean consciousness and
would be a great oblation to stability and security. It is time to
give in to reason.
REACTIONS
EACTIONS METES AND BOUNDS
ON THE
OF THE P HILIPPINE N ATION AL
TIONAL
TERRIT OR
ERRITOR Y : A N I NTERN
ORY NTERNAATION AL L AW
TIONAL
AND P OLICY P ERSPECTIVE ∗
Jay L. Batongbacal, Esq.∗∗
I. I NTRODUCTION
NTRODUCTION
Your Honors, distinguished guests, ladies and gentlemen, good

afternoon. Forgive the “intrusion” of being a surprise speaker at
this Distinguished Lecture, but I have been asked by the Honorable
Justice Florentino P. Feliciano to speak on this topic, and I would
not like to disappoint him. Thank you for your indulgence as I
stand before you due to a fortunate coincidence. I have taken
time away from my doctoral studies in Canada in order to
accompany a senior member of the United Nations Commission
on the Limits of the Continental Shelf to hold a scientific and
technical workshop to assist the Philippines in preparing a
submission for an extended continental shelf. As they are old
∗
∗∗
Atty. Jay L. Batongbacal obtained his Bachelor of Arts in Political
Science (1987) and Bachelor of Laws (1991) degrees from the
University of the Philippines, and his Master of Marine
Management degree (1996) from the Dalhousie University in
Canada. He is also a Doctoral Candidate at the Dalhousie Law
School.
2009] REACTIONS ON THE METES AND BOUNDS 109
OF THE PHILIPPINE NATIONAL TERRITORY:
AN INTERNATIONAL LAW AND POLICY PERSPECTIVE
friends, I had arranged for this senior member to meet with Justice
Feliciano on the first day of our workshop, and it was during that
meeting that he informed us of this Distinguished Lecture.
Subsequently, I was asked to come to this symposium to deliver
some remarks because since 1996, I have also been studying many
aspects of international marine law, particularly concerning the
Philippines and the International Law of the Sea.
At the outset, I would like to clarify that, contrary to what
you may have read in the newspapers, there is no deadline for
submission to the United Nations of the metes and
bounds of the national ter ritor ritoryy . There is no treaty,
convention, or other agreement stating this is to be done. What
the May 13, 2009 deadline refers to is the submission of technical
and scientific information on the outer limits of the continental
shelf beyond 200 nautical miles
miles, for countries intending to
make such a claim, pursuant to Article 76 of the United Nations
Convention on the Law of the Sea (UNCLOS).1 The deadline
is mentioned in Annex I1 of the UNCLOS, which was originally
Atty. Batongbacal specializes in the Law of the Sea and international

marine environmental law issues. He has taught the Integrated
Coastal and Ocean Management course at Dalhousie, and for the
past several years has been a regular guest lecturer for Law of the
Sea and boundary negotiations at the international Oceans Institute
of Canada.
He has published many articles on marine policy issues both in the
Philippines and internationally, and has worked as a consultant to
government, non-government, and private sector organizations.
He is presently at work on his Ph.D., focusing on the subject of
ocean energy development and social-ecological justice.
1
United Nations Convention on the Law of the Sea. Montego Bay,
Jamaica. December 10, 1982. 1833 UNTS 396.
set to 2004, or 10 years after the entry into force of UNCLOS

in 1994. An extension was later agreed upon at the 11th Meeting
of the State Parties in May 2001, by counting the 10-year period
from the date of formal organization of the UN Commission
on the Limits of the Continental Shelf on May 13, 1999.2 The
continental shelf beneath the sea, including the “extended”
continental shelf beyond 200 nautical miles, strictly speaking, is
not the outer limit of the national territory. In international law,
“territory” refers specifically to land up to the low-water line,
and the nature of any area beyond that is subject to rules of
international law, especially as codified in UNCLOS.
II. A C RISIS OF C ONSISTENCY AND C ONFUSION
The confusion over the nature of the 2009 deadline is emblematic

of the general crisis of consistency and confusion that pervades
Philippine territorial and jurisdictional law. The crisis of
consistency refers to the fact that there is a fundamental
inconsistency between the way Philippine national law has
configured the national maritime territories and jurisdictions, and
the way in which international law has defined the legitimate ways
by which States may lay claim to maritime territories beyond their
coasts. There is no question as to the terrestrial components of
the national territory; but the inconsistency arises once we extend
into the sea. In order to appreciate the stark difference, it is best
to take a very graphic approach to analyzing how current
Philippine legislation configures our maritime zones, and compare
them with what is acceptable under international law.
2
United Nations. Report of the Eleventh Meeting of State Parties,
Paragraph 81, UN Doc. SPLOS l73 (June 14, 2001).
Figur
Figuree 1. Philippine national boundaries sho wn in of
shown offficial
Philippine maps
The so-called “international treaty limits” appear in official maps

and charts issued by the Philippines to indicate the national
territory,3 and is shown in Figur
Figuree 11. However, the apparent
simplicity of the polygonal shape around the islands of the
archipelago in official maps and charts conceal the multiple sources
and legal bases of the lines that define it. Figure 2 actually
illustrates the different boundaries that are revealed by the different
treaties and legislation that determine the configuration of our
maritime jurisdictions. A more detailed exposition of the historical
3
See for example, National Mapping and Resource Information
Authority (NAMRIA), Nautical Chart No. 4200: The Republic
of the Philippines. Taguig City: National Mapping and Resource
Information Authority, 2006. Also NAMRIA, Philippine Map
with the Kalayaan Island Group. Taguig City: NAMRIA, 2008.
development of Philippine maritime zone legislation has been

done elsewhere.4 What must be noted is that each of these treaties
and laws create maritime spaces that are qualitatively different
from each other in subtle ways, and the interaction between them
results in an inconsistent patchwork of maritime jurisdictions.
Figure 2. Philippine maritime boundaries under current legislation
As shown in Figur
Figuree 22, we first see the limits of the original
Treaty of Paris of 1898 between the US and Spain,5 which
apparently omitted to enclose islands to the North and the
4
See J. Batongbacal, The Maritime Territories and Jurisdictions of
the Philippines and the United Nations Convention on the Law of
the Sea. 76 Philippine Law Journal 2, Quezon City, Philippines,
December 2001, pp. 123-168.
5
Treaty of Peace between the United States of America and the
Kingdom of Spain, Paris, France, December 10, 1898, Article 111.
Southwest areas of the country. It was because of this omission
that a second treaty, the Treaty of Washington, was signed in 1900
to clarify that these islands that were not within the Treaty of
Paris limits were also ceded to the US by Spain.6 Then in 1930,
the United States and the United Kingdom executed a Convention
to further clarify the division of the islands between their respective
colonies in the area off the northern coast of Borneo.7 When the
1935 Constitutional Convention debated the article on the
national territory, it was noted that the non-inclusion of parts of
the Batanes Islands in the North were due to the technical
description which located the line at the 20th parallel, however, it
was described as running through the Bashi Channel which was
located just above the 21st parallel. It was thus proposed to
unilaterally extend the Northern boundary to this location in the
article describing the national territory.8 This was not adopted in
the eventual wording of the 1935 Constitution, but has been
implemented in all official maps and charts issued by the
Philippines.9 Not shown in Figur Figuree 2 is the extent of the
continental shelf claimed by the Philippines since 1949.10
6
Sole Article, Treaty between the Kingdom of Spain and the United
States of America for the Cession of Outlying Islands of the
Philippines, Washington, D.C., November 7, 1900.
7
Convention between the United States of America and Great Britain
Delimiting the Boundary between the Philippine Archipelago and
the State of North Borneo, Washington, D.C., January 2, 1930,
Article I.
8
RECORD of the Constitutional Convention, Volume 11, Journal No.
21-40, in Lotilla, R.P. (Ed.) The Philippine National Territory,
Manila: UP Institute of International Legal Studies and Foreign
Service Institute, 1995, at pp. 168-258.
9
See NAMRIA 2006 and NAMRIA 2008, supra note 3.
10
Republic Act No. 387, The Petroleum Act of 1949, June 18, 1949,
Section 3, and Proclamation No. 370, Declaring as Subject to the
In 1968, Republic Act No. 5446 was enacted to correct

typographical errors in earlier legislation (Republic Act No. 3046
[I961]) to define the baselines of the Philippines.11 These straight
baselines were based on the rules in the Anglo-Norwegian Fisheries
Case of the International Court of Justice, and asserted that all
waters inside the baselines and between the islands were considered
as internal waters, while all waters outside the baselines around
the islands up to the limits described in the Treaty of Paris and
Treaty of Washington were territorial waters.”12 In 1978,
Presidential Decree No. 1596 declared the entire area of the
Kalayaan Group of Islands to be under Philippine sovereignty
and described this area in metes and bounds that attached to the
treaty limits west of Palawan.13 At the same time, however,
Presidential Decree No. 1599 was issued declaring the Philippine
Exclusive Economic Zone, which described a 200 nautical mile
zone extending from the baselines under Republic Act No. 5446.14
The Philippines’ maritime zone configuration resulting from
the above laws is in stark contradiction to generally accepted norms
Jurisdiction and Control of the Republic of the Philippines All
Mineral and Other Natural Resources in the Continental Shelf of
the Philippines, 1968. Neither instrument provides the geographic
extent of the Philippine continental shelf.
11
Republic Act No. 5446, An Act to Amend Section I of Republic
Act No. 3046, entitled “An Act to Define the Baselines of the
Territorial Sea of the Philippines,” September 18, 1968.
12
Section 2, RA No. 3046 (1961) in relation to Section I, RA No.
5446 (1968).
13
Presidential Decree No. 1596, Declaring Certain Areas Part of the
Philippine Territory and Providing for Their Government and
Administration, June 11, 1978.
14
Presidential Decree No. 1599, Establishing an Exclusive Economic
Zone and for Other Purposes, June 11, 1978.
of international law on the nature and extent of coastal State
jurisdiction over its maritime areas. The fundamental principle
underlying maritime zones in international law is that State
sovereignty and jurisdiction steadily diminishes, the further one
is from the shore. From the low-water line, State sovereignty
reduces to certain sovereign jurisdictions, and then to specific
sovereign rights, until areas beyond national jurisdiction.
UNCLOS recognizes that coastal States are entitled to
maritime zones on the basis of specified distances from the
baselines. Within the baselines, States are entitled to internal waters,
which normally encompass bays, estuaries, and mouths of rivers,
but beyond those baselines, the zonal configurations apply. Thus,
coastal States are entitled to a territorial sea of up to 12 nautical
miles within which it may exercise full sovereignty,15 a contiguous
zone of 24 nautical miles wherein they exercise only certain
jurisdictions,l6 and an exclusive economic zone of up to 200
nautical miles wherein they are entitled to only certain sovereign
rights to the superjacent waters.17 Beneath the waters, the seabed
up to 200 nautical miles is considered as the continental shelf of
the coastal state.18 But depending on certain conditions and
characteristics of the seabed, this continental shelf may extend
beyond 200 nautical miles up to a maximum of 350 nautical
miles.19
15
The only limitation to this sovereignty is that they must allow the
innocent passage of ships through such waters. See Article 17,
UNCLOS.
16
UNCLOS, Art. 33.
17
UNCLOS, Arts. 55 to 57.
18
UNCLOS, Art. 76, par. I.
19
UNCLOS, Art. 76, par. 4 to 6.
However, this steady reduction is not followed in Philippine

law, and varies depending on the area, as indicated when one traces
the degree of sovereignty and jurisdictions established by law in
different directions from certain points in the Philippines.
Philippine laws effectively create severe and illogical jurisdictional
weaknesses between the shore and the outermost limits of its
maritime zones. Reference to Figur
Figuree 2 makes it easier to appreciate
these inconsistencies generated by our legislation. For one, we have
territorial waters located outside the EEZ in the northeastern
and northwestern corners of the treaty limits. Second, the
westernmost area of the Kalayaan Group of lslands is supposed
to be a zone of sovereignty,20 which in effect makes it internal,
not merely territorial waters, but it is located beyond the EEZ.
Third, in other areas, from the baselines to 200 nautical miles,
our waters are declared to be EEZs, no territorial water areas in
between having been reserved from the effect of PD No. 1599.
And to date, we have been unable to negotiate the EEZ boundaries
between ourselves and our neighboring countries to the North
and South, despite the mandate to do so,21 likely because the
median boundary will have to be located well inside the treaty
limits in many places. These are the kind of inconsistencies that
generate confusion in the policies and implementation of law by
government agencies, and effectively paralyze us from taking
effective action to exercise our sovereignty and jurisdiction against
foreign vessels and activities in those questionable areas.
20
Declaring Certain Areas Part of the Philippine Territory and
Providing for Their Government and Administration, Presidential
Decree No. 1596 (1978), Sec. 1.
21
Establishing an Exclusive Economic Zone and for Other Purposes,
Presidential Decree No. 1599 (1978), Sec. 1.
Since other States are not bound by our laws, they may only
recognize maritime zones based on UNCLOS. Thus, as far as
the international community is concerned, the Philippines’
maritime zones are configured in the manner shown in Figur
Figuree 33.
Figure 3. Philippine maritime zones currently acceptable to the
international community
The Philippines first declared that its territorial waters extended

up to the treaty limits in a Note Verbale to the UN Secretary
General in 1958.22 But the United States immediately and later
repeatedly denied that it ever considered the treaty limits as
territorial boundaries23 and US state practice up to the end of the
22
Permanent Mission of the Philippines to the United Nations. Note
Verbale, January 20, 1956, in Lotilla 1995, at pp. 272-273.
23
In Lotilla 1995, at p. 274.
Commonwealth period did adhere to only the then-common 3-

mile limit for the territorial sea.24 The phraseology of the 1898
Treaty of Paris and 1930 US-UK Convention themselves
expressly refer only to the status of the islands,25 and not the
waters within or divided by the lines they described. The fact that
the 1900 Treaty of Washington referred to islands outside of the
treaty limits26 is also consistent with the US position. Recalling
the ancient principle that “the spring cannot rise higher than its
source,” then it is indeed impossible to anchor the Philippines’
sovereignty and jurisdiction over the entire areas within the treaty
limits upon presumed succession to the sovereignty and jurisdiction
of the United States.
Note the huge difference between Figur Figuree 11.
Figuree 3 and Figur
The difference illustrates the wide gap between what is prescribed
in Philippine law, and that which is normally acceptable to the
24
R. Aquino, and C. Grino, Law of Natural Resources, Manila: E.F.
David & Sons, 1957, at pp. 425-426.
25
Article 3, Treaty of Paris, 1898 states that:
Spain cedes to the United States the archipelago known as
the Philippine Islands, and comprehending the islands
lying within the following line x x x
while Article I, Convention between the US and Great Britain,
1930, states that:
It is hereby agreed and declared that the line separating
the islands belonging to the Philippine Archipelago on
one hand and the islands belonging to the State of North
Borneo which is under British protection on the other
hand shall be and is hereby established as follows x x x.
26
Sole Article, Treaty of Washington, 1930.
international community. What should be of concern to us is
that the international community’s current perspective leaves large
pockets of EEZs within the Philippines, between its component
islands, the largest being the Sulu Sea. Within the EEZ, foreign
States exercise high seas freedoms, while the Philippines only has
certain sovereign rights.
This need not be the case, however. Under Part IV of the
UNCLOS, the Philippines has the option of declaring itself to
be an Archipelagic State. This allows the Philippines to eliminate
the pockets of EEZs between its islands, and convert them into
archipelagic waters that are recognized to be under its sovereignty.27
Figur
Figuree 4 shows one possible configuration that this may
take.
Figur
Figuree 4. One possib le implementation of UNCL
possible OS P
UNCLOS ar
artt IV
Par
27
UNCLOS, Art. 49.
The concept of the Archipelagic State and sovereignty over

archipelagic waters is the result of the negotiations conducted by
the Philippines along with Indonesia and a few other smaller island
states during the UNCLOS conferences. The international
community’s recognition is part of a compromise, and in return
for recognition over a much larger area of waters (which non-
archipelagic States cannot be similarly entitled to), Archipelagic
States must allow the innocent passage (in the same way that coastal
States allow innocent passage through their territorial seas) and
archipelagic sealanes passage of vessels through its waters.28
Archipelagic sealanes passage is a more liberal passage regime
than innocent passage, but must be used only for the purpose of
continuous, expeditious, and uninterrupted passage through the
archipelago.29 Doing anything more may subject the passing vessel
to the archipelagic State’s sovereignty and jurisdiction.
However, it must be emphasized that this is an option
option. Until
we declare ourselves to be an Archipelagic State and implement
Part IV through necessary legislation, then the international
community is not obliged to recognize that we are such. It is for
this reason that we still need to enact baseline legislation, in order
to harmonize our national legislation with international law.
Oliver Wendell Holmes once said that the law is about predicting
the consequences of the actions of a “bad man.”30 In the case of
the Law of the Sea, it is about the consequences of the actions of
a “bad foreign vessel,” that is, when such a vessel (not normally
bound by national law outside that of its registry) undertakes an
28
UNCLOS, Arts. 52 to 53.
29
UNCLOS, Art. 53, par. 3.
30
Holmes, 0. W. The Path of the Law. 10 Harvard Law Review 457.
activity that is contrary to the sovereignty or jurisdiction of a
nearby coastal State. Those consequences can only be legitimately
determined in accordance with the rules under UNCLOS which
prescribe the extent to which coastal States can exercise their
sovereignty or jurisdiction depending on the distance of the
incident from the coastal States shores. Implementation of the
UNCLOS’ provisions on Archipelagic States will therefore allow
the Philippines to maximize its sovereignty and jurisdiction over
the marine areas around its land territories, areas that would be
greater than what we would normally be entitled to under
international law as an ordinary coastal State.
III. C OMMON M ISCONCEPTIONS

ABOUT U NITED N ATIONS C ONVENTION
ON THE L AW OF THE S EA
Implementation of UNCLOS, however, has also been subject to

massive confusion and misinformation, as indicated by the public
debate over the various bills and options pending in Congress. A
number of mistakes and misconceptions about the legal effects
of UNCLOS implementation have been prominently raised in
the media, arising from the lack of adequate knowledge and
understanding of UNCLOS, its background, and the nature of
international law in general. One of them is with respect to the
2009 deadline, already mentioned above.
The most serious misconception in the popular debate is that
the enactment of archipelagic baselines, and particularly the
enclosure of the Kalayaan Island Group within a single baseline
system, is needed to “strengthen” sovereignty over them. This is
entirely false. First, there is no need to enclose all the islands of an
archipelago within a single set of archipelagic baselines in order
for it to be considered part of the Archipelagic State. Article 47

of UNCLOS expressly defines an archipelagic State to be “a
State constituted wholly by one or more archipelagos and may
include other islands.” The legal principle involved here is that of
contiguity
contiguity, and it is clear in international law that territorial
contiguity is not essential where the land is separated by the sea.
Many non-archipelagic States like the United States, New Zealand,
Australia, United Kingdom, Malaysia, Papua New Guinea, and
others have separate territories that are not connected by a single
set of baselines. In fact, in the case of the United States and
Malaysia, between parts of their territories, there are territories
of other States (Canada and Indonesia, respectively). Even our
own national legislation adopts this exception to the principle, by
providing in the Local Government Code that the territories of
local governments comprised of two or more islands need not be
contiguous.31
Second, the drawing of baselines under UNCLOS does not
operate like the process for securing a Torrens Title. UNCLOS
cannot be used to claim islands or any other land territories, because
the fundamental principle underlying the maritime zones is that
sovereignty and jurisdiction over the adjacent seas flow fr om the
from
sovereignty over the land, not the other way around. “Water flows
downstream,” as an old axiom goes, and therefore the drawing of
baselines follows fr om the exercise of sovereignty; conversely,
from
sovereignty does not arise merely from the act of drawing of
baselines.
31
See Sections 7, 386, 442, 450, and 461, Republic Act No. 7160,
The Local Government Code of 1991, October 10, 1991.
Third, there is no need to “strengthen” sovereignty over the
Kalayaan Island Group because we have already been exercising
complete sovereignty over the area since the 1970s. It has been
continuously occupied and administered as a municipality of
Palawan, municipal elections are held annually for the area, and its
surrounding waters have been subject to Philippine control of
activities such as fishing, scientific research, and petroleum
exploration. To state now that we still need to “strengthen”
sovereignty may in fact be seen as a counterproductive admission
against interest that the Philippines believes that its sovereignty is
still imperfect and inchoate.
In connection with this, there are also those who assert that
the conduct of the seismic surveys under the Joint Marine Seismic
Undertaking (JMSU) somehow derogates or diminishes the
Philippines’ sovereignty over the Kalayaan Island Group. Since
the issue is sub judice, I cannot comment upon this in great detail.
But without dealing with the JMSU in particular, the question is
whether seismic surveys, which is a scientific method of
determining the nature and character of the seabed beneath, per
se, diminish or affect Philippine sovereignty. For that matter, it
could be considered whether scientific surveys conducted by
foreign States affect the status of sovereignty. FigurFiguree 5 is a
collection of the tracklines of not only seismic, but also
hydrographic, gravimetric, thermographic, chemical, and other
scientific surveys conducted by foreign institutes and vessels within
and around the Philippines. All the data from these surveys are
freely accessible from the internet.32 Aside from these, one must
32
See National Geophysical Data Center (NGDC), “Marine Geophysical
Trackline Data,” <http://www.ngdc.noaa.gov/mgg/geodas/trackline.html>
(last accessed June 25, 2008).
Figure 5. International seismic and other scientific surveys in and

around the Philippines
also consider the large number of seismic surveys conducted by

foreign oil exploration companies contracted by the Department
of Energy for decades, and whose records are kept confidentially
by the DOE’s Energy Data Center. These scientific surveys and
petroleum exploration activities have been going on ever since
the Philippines came under American rule. One could then ask
whether the Philippines is substantially and concretely any less
sovereign now, with the revelation of knowledge that these have
been taking place all this time, than it was before. It is not merely
the nature of an activity which must be considered when
determining the effect on sovereignty, but also, and perhaps more
importantly, its subsequent use.
There are also those who oppose the implementation of
UNCLOS and establishment of archipelagic baselines for the
reason that to do so would “open” Philippine waters to foreign
vessels, due to the commitment to allow innocent passage and
archipelagic sealanes passage.33 But this fear does not acknowledge
the reality that historically, the Philippines has always allowed
foreign vessels to pass through its waters. Even when it asserted
the archipelagic principle back in 1956, the Philippines expressly
provided that foreign vessels were allowed to exercise innocent
passage throughout its waters, without clearly distinguishing the
respective extents of the internal and territorial waters. 34
International publications touching on the sea routes through
the seas around the Philippines have always shown well-known
routes passing through its islands.35
That these navigational practices continue today can be proven.
In 2004, the US National Center for Ecological Analysis and
Synthesis determined prevailing global ship routes as a means to
33
See for example, M. Magallona, “The UNCLOS and Its
Implications on the Territorial Sovereignty of the Philippines” in
World Bulletin, Vol. 11, Nos. 1-2 (Jan-April 1995) UP Institute of
International Legal Studies, UP Diliman, Quezon City (I995), pp.
50-76; M. Magallona, The Dismantling of the Philippine State
and Its Impact on Civil Society,” UP Institute of International
Law Studies, 1996; and M. Defensor-Santiago, Sponsorship Speech
for a Congressional Commission on National Territory, Philippine
Senate, May 21, 2008.
34
See Note Verbale, January 20, 1956, supra Note 22.
35
See for example, J. Morgan, and M. Valencia, Eds., Atlas for Marine
Policy in Southeast Asian Seas. Berkeley: University of California
Press, 1984. Also L. T. Ghee, and M. Valencia, Eds., Conflict over
Natural Resources in South-East Asia and the Pacific. Oxford,
New York, and Toronto: Oxford University Press, 1990.
determining the ecological impact of world shipping.36 To make

this determination, it used position data from about 3,300
volunteer commercial vessels (about 11 percent of the global
merchant fleet) of various types which contributed such data as
part of sea surface information used for international weather
monitoring and forecasting programs. These were comprised of
ordinary cargo, passenger, and sometimes military vessels of
different nationalities navigating through the seas as they normally
do, and thus may be considered as a statistical sample of the ship
routes used by the world fleet. The excerpt from this data shows
the area of Philippines in Figure 6, 6 and the tracks of hundreds
of ships passing through and around its waters. It is an especially
enlightening manifestation of the kind of vessel traffic that has
been steaming through and around our jurisdictional waters for a
long time.
Figure 6. International vessel tracks/routes in and around the
Philippines recorded in 2004
36
National Center for Ecological Analysis and Synthesis (NCEAS), “Data:
Impacts,” <http://www.nceas.ucsb.edu/GlobalMarine/impacts> (last
accessed June 25, 2008).
IV
IV.. A RCHIPELA GIC B ASELINES
CHIPELAGIC
AND THE S OUTHEAST A SIAN R EGION
The greatest challenge to Philippine implementation of

UNCLOS through the enactment of archipelagic baselines,
however, is not legal, but geopolitical. Depending on how
conservatively or liberally we apply the rules in UNCLOS, we
may project the maximum extent of our maritime zones much
farther into the South China Sea than ever before or maintain
the status quo (See Figur
Figuree 77). Since our neighbors, particularly
Vietnam, China, and Malaysia, also have their interests and
prospective maritime zones within that area, they can be expected
to act in such a way as to preserve their own interests. The fact
that there are competing claims to territory, sovereignty, and
jurisdiction over both island and marine areas within the South
China Sea makes the problem even more complicated. Thus, it is
not only a matter of being able to find a mutually acceptable
median boundary between two States, which is difficult enough
as it is, but resolving a wide range of complex issues, claims, and
counterclaims between at least five States. In order to ensure that
our interests are protected, acting within this context requires a
very careful and well-thought strategy not only in law but in
foreign policy and the conduct of our relations with neighboring
States.
The popular clamor and support for the drawing of Philippine
archipelagic baselines that enclose the main archipelago and the
entire Kalayaan Island Group and Scarborough Shoal, indicated
in Representative Cuenco’s House Bill No. 3216 and Senator
Pimentel’s Senate Bill No. 2144, is a maximalist position that on
the surface encloses the greatest geographic area. But it is based on
a number of erroneous assumptions, such as that the action must
be taken before a deadline and that it “strengthens” Philippine

sovereignty. Neither is correct. The option furthermore is no
longer feasible, because it requires the building of new structures
in the Kalayaan Island Group which is not permitted under the
2002 ASEAN-China Declaration of Conduct,37 an agreement
Figure 7. Philippine archipelagic baseline options
pending in Congress
37
Declaration on the Conduct of Parties in the South China Sea.
Phnom Penh. November 4, 2002. Available from ASEAN website
<http://www.aseansec.org/l3163.htm> (last accessed June 25,
2008).
the Philippines itself spearheaded to prevent further complicating
the South China Sea disputes through the addition of artificial
structures in the area. By pushing our potential maritime spaces
further into the South China Sea than ever before, and enclosing
islands that are claimed by other States, the Philippines also ensures
that the new archipelagic baselines system will be subjected to
diplomatic protests by the other States, which directly undermines
any legal effect the baselines may have on foreign States. If the
new Philippine baselines are protested, then the maritime zones
they generate are again left in limbo and uncertainty, a situation
no better than what we had before. Moreover, in the long term,
politically and practically, the Philippines will find it extremely
difficult to negotiate any peaceful settlement of the territorial
issues since any compromise fixes our negotiating options to only
one single position. Legislating the maximalist position will only
complicate and prolong the territorial issues in the South China
Sea, and not contribute toward their settlement.
The executive position which encloses only the main
archipelago and leaves the Kalayaan lsland Group and Scarborough
Shoal as separate islands is indeed a minimalist position, and
minimizes changes to the status quo. But, it also has a better chance
in international law. It avoids protests that would jeopardize the
integrity of the baselines around the rest of the Philippine
archipelago. It limits the effect of such protests to the islands
themselves and thus permits the Philippines to exercise its
sovereignty and jurisdiction over other areas unhindered. It also
helps to rationalize and harmonize the configuration of the
Philippine maritime zones with international law in a manner
acceptable to the international community. Maintaining an island
regime around the Kalayaan lsland Group also provides more
flexibility in the long term to the Philippines in seeking the peaceful
solution of territorial issues because it can then develop more

options for compromise without having to involve the status of
the rest of the Philippine archipelago. And all these can be validly
done without affecting the current status of Philippine sovereignty
over the Kalayaan Island Group.
V. C ONCL USION
ONCLUSION
From an international law perspective, the key issue for the country
is not how much maritime area will be enclosed, but which action
is more likely to be considered valid. Maritime sovereignty and
jurisdiction are not created by simply drawing on a map; they
must also be recognized and accepted by other States, in addition
to conforming to the rules and principles that have already been
agreed upon in UNCLOS. If not, then they will be continually
challenged and will never be settled. We shall never get any support
for them, and much of what we think we can do may be nothing
more than mere illusions. If we are to act in ways that affect other
members of the international community, or if we want them to
support our actions and strengthen our hand in the face of stronger
competitors, we simply cannot continue merely asserting things
without finding acceptance from the rest of the world.
But this is more than a question of international law. What
makes it most challenging for us is the fact that our use and
implementation of UNCLOS have unavoidable impacts on the
maritime zones of all our neighboring countries, and have definite
implications on the navigational interests of the rest of the world.
Enacting a new baselines law, whatever the final configuration,
will shape the geopolitics of the Southeast Asian region for years
to come, but not necessarily change the status of Philippine
sovereignty over the KIG or Scarborough Shoal. Whether a new
law perpetuates or aggravates the regional issues to spur further
contestation, or opens the door for cooperation and settlement, is
the international responsibility that attaches to its enactment. We
can choose to be a leader or a troublemaker; what happens in the
region has impacts on the rest of the world. This is the broader
national interest involved, and the true gravity of the act of
establishing our baselines. We decide not only the future of our
country, but that of Southeast Asia as well.
REA CTIONS ON W HY
EACTIONS
THERE IS AN I MMEDIA
MMEDIATETE N EED
TO E NACT A B ILL A MENDING
REPUBLIC A CT N O. 3046, AS A MENDED,
TO C ONFORM TO THE C ONVENTION
ON THE LAW OF THE S EA∗
Atty. Estelito P. Mendoza∗∗
I. I NTRODUCTION
NTRODUCTION
There should be no doubt about the Philippine territory.1 It is

our good fortune that the Philippines consists of islands in the
middle of the sea. We have no land with borders adjacent to other
countries; consequently, no border conflicts.2
∗
∗∗
Former Minister of Justice and Solicitor General Estelito P.
Mendoza was born on January 5, 1930, in Manila, Philippines. He
obtained his Preparatory and Legal Education from the University
of the Philippines in 1948, his Bachelor of Laws degree also from
UP in 1952, and his Master of Laws degree from Harvard
University in 1954.
1
See Article 1, 1935, 1973 and 1987 Constitutions.
2
Landlocked countries, of which there are 42 of the approximately
190 states, particularly have the problem.
2009] REACTIONS ON WHY THERE IS AN IMMEDIATE NEED 133
TO ENACT A BILL AMENDING RA NO. 3046
While the territory of a state consists generally of land,

including its internal waters, such as rivers and lakes; in our case,
under the archipelagic principle which we have adopted,3 and now
explicitly recognized in Part IV of the Law of the Sea Convention
(LOSC), the islands comprising the Philippine archipelago,
together with the water between the islands, are an integrated whole
which, with the Kalayaan Island Group, constitute our territory.
In the Anglo-Norwegian Fisheries case, decided in 1951 by
the International Court of Justice (ICJ), recognition was given
to “coastal” archipelagos which allowed the state to draw straight
baselines around the outermost points of a coastal archipelago
He was admitted to the Philippine Bar in 1953 and was in private
law practice in 1952 until he joined the government in 1971 as
Undersecretary of Justice. He continued to serve in various
capacities: Solicitor General (1972-1986); Minister of Justice/
Attorney (1984-1986); Member, National Assembly (1978-1980;
1984-1985); and Provincial Governor of Pampanga (1980-1986).
He was also a Professorial Lecturer in Law at his alma mater, the
University of the Philippines (1954-1973). While in government
service, he also served as Chairman of the Sixth (legal) Committee,
31st Session (1976) of the UN General Assembly; Chairman of
the Special Committee (of the UN) on the Charter of the United
Nations and the Strengthening of the Role of the Organization
(1980).
Attorney Mendoza is also a member of organizations such as: Phi
Kappa Phi Honor Society, Phi Gamma Mu (for excellence in the
social sciences); Upsilon Sigma Phi, Rotary Club of Manila,
Philippine Bar Association, Integrated Bar of the Philippines,
Manila Polo Club, Philippine Society of International Law,
American Society of International Law, and the Harvard Club of
the Philippines.
3
Article I, 1973 and 1987 Constitutions; RA No. 3046.
and “tie” it to the mainland coast. This is what Norway had

done. Although whether island archipelagos should enjoy a special
regime was much debated upon in the 1980 Hague Conference
and the 1958 Conference on the Law of the Sea, it was not until
the 1982 Convention on the Law of the Sea4 was there explicit
recognition, in international law, of “island archipelagos,”5 such
as ours. As early as 1961, however, we had formally adopted the
principle by enacting Republic Act No. 3046 entitled “An Act
Defining the Baselines of the Territorial Sea of the Philippines.”
But we do have common borders in regard maritime areas
over which we are sovereign or have rights or jurisdiction. When
the distance over water which separates us from another state is
less than 400 nautical miles from our respective baselines, we have
a common border as to our, and the other state’s, exclusive economic
zone. And, when the area within our exclusive economic zone
does not overlap with the exclusive economic zone of another
state, we would have a border separating our exclusive economic
zone from the international seabed area, referred to in the LOSC,
as the area “beyond the limits of national jurisdiction.”6
While we would not have, therefore, any border or boundary
conflicts on land, we may have maritime boundary conflicts as to
overlapping maritime zones with neighboring states, like Malaysia
and Indonesia, and possibly, with the international seabed area.
4
The Law of the Sea Convention came into force on November
16,1994. Its text was adopted on April 30, 1982, by 130 votes to
four, with 17 abstentions. As of June 2008, 155 states ratified, and
acceded to the Convention.
5
Part IV.
6
Article 1(i).
Allow me to comment on two points:

a. Whether there is a need to enact legislation amending
RA No. 3046, as amended by RA No. 5446, so as to
make the baselines of the Philippine archipelago conform
to the Law of the Sea Convention, particularly its Article
47; and
b. Whether the baselines should now include as a single
archipelago, the Philippine archipelago enclosed by the
baselines in RA No. 3046, as amended, and the Kalayaan
Group of Islands.7
I proceed from three premises, as follows:
a. On matters of sovereignty or jurisdiction over areas
beyond the land territory of a State, such as the territorial
sea and exclusive economic zone, the best, and perhaps
the only assurance, that a state’s sovereignty and jurisdiction
over such areas will be respected by other states, is that its
sovereignty and jurisdiction are in accord with
international law. Only states with the power to enforce
their sovereignty and jurisdiction over such areas, such as
the United States, can assert claims not necessarily in
accord with international law and enforce them;
b. The value of rules and principles of international law
which vest rights over the sea and its resources adjacent to
a territory to the exclusion of other states, principally the
territorial sea, and now, the exclusive economic zone, lies
7
Declaring Certain Areas Part of the Philippine Territory and
Providing for Their Government and Administration, Presidential
Decree No. 1596, enacted on June 11, 1978.
in their recognition and acceptance by the

inter national community
international community; and
c. We maintain our adherence to the 1982 Convention on
the Law of the Sea.
II. T HE N EED FOR A MENDING

R EPUBLIC A CT N O. 3046 IS I MMEDIATE
MMEDIATE
While Article 46 of the LOSC defines an “archipelagic state”

and an “archipelago,” the status of an “archipelago” with the rights
arising therefrom under Article 49, do not arise ipso facto from
such fact.
Article 47 provides:
A RT . 47. Ar
Arcc hipelagic Baselines.
1. An archipelagic State may draw straight
archipelagic baselines (emphasis ours) joining the
outermost points of the outermost islands and drying
reefs of the archipelago provided that within such
baselines are included the main islands and an area in
which the ratio of the area of the water to the area of
the land, including atolls, is between 1 to 1 and 9 to 1.
2. The length of such baselines shall not exceed 100
nautical miles, except that up to 3 percent of the total
number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125
nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of
the archipelago.
xxxx
While Article 49 provides:

A RT . 49. Le
Legg al status of ar arcc hipelagic w aters,
waters,
of the air space oovv er ar
arcc hipelagic w aters and
waters
of their bed and subsoil.
1. The sovereignty of an archipelagic State extends
to the waters enclosed by the archipelagic
baselines dra wn in accor
drawn dance with Ar tic
accordance le
ticle
47
47, described as archipelagic waters, regardless of
their depth or distance from the coast.
2. This sovereignty extends to the air space over the
archipelagic waters, as well as to their bed and
subsoil, and the resources contained therein.
3. This sovereignty is exercised subject to this Part.
4. The regime of archipelagic sea lanes passage
established in this Part shall not in other respects
affect the status of the archipelagic waters,
including the sea lanes, or the exercise by the
archipelagic State of its sovereignty over such
waters and their air space, bed, and subsoil and the
resources contained therein.
Under the above provisions, the archipelagic state has the
option of vesting in its “archipelago” the status of an
“archipelago” under Part IV of the LOSC. That option is exercised
by drawing the “straight baselines” provided in Article 47. If the
archipelagic state does not draw the baselines provided in Article
47, then the islands comprising the archipelago will be regarded
merely as “islands” under Article 121. The waters between the
islands will not be regarded as “archipelagic waters” subject to
sovereign rights of the archipelagic state under Article 49, but
depending on the distance between the islands, will be regarded as
territorial sea or high seas. Should the islands be separated from

each other by more than 24 nautical miles (each island generating
a territorial sea of 12 nautical miles), other states would enjoy in
the seas beyond the territorial sea of each island the “freedom of
the high seas” provided in Article 87.
Article 48 of the LOSC provides as follows:
A RT . 48. Measur ement of the br
Measurement eadth of the
breadth
ter ritorial sea, the contiguous zone, the eexxc lusi
lusivv e
economic zone and the continental shelf.
The breadth of the territorial sea, the contiguous zone,
the exclusive economic zone and the continental shelf shall
be measured from archipelagic baselines drawn in accordance
with Article 47.
To establish the limits of our territorial sea, the contiguous
zone, the exclusive economic zone and the continental shelf, we
need to have baselines drawn in accordance with Article 47.
Without such baselines, the status of the Philippine archipelago
as an “archipelago” under Article 46(b) of the LOSC and the
exercise of resulting sovereign rights under Article 49 will be in
question. Moreover, the limits of our territorial sea, contiguous
zone, and exclusive economic zone may not be clearly defined.
The need, therefore, to amend RA No. 3046, as amended, to
conform to the requirements of the LOSC is evident and
immediate. Unless we do so, we will not be assured of recognition
by the international community of the status of the Philippine
“archipelago” as an “archipelago,” the enjoyment of the rights
incident thereto provided in Article 49, and the definition of the
limits of our territorial sea, contiguous zone and exclusive
economic zone.
III. WHETHER THE B ASELINES S HOULD N OW

I NCL UDE AS A S INGLE A RCHIPELA
NCLUDE GO ,
CHIPELAGO
OR THE P HILIPPINE A RCHIPELA GO
CHIPELAGO
E NCL OSED BY THE B ASELINES
NCLOSED
IN R EPUBLIC A CT N O . 3046, AS A MENDED ,
AND THE K ALA YAAN G ROUP OF I SLANDS
ALAY
The Law of the Sea Convention recognizes “archipelagic states”8

which means a “state constituted wholly by one or more
archipelagos and may include other islands.”9 In order that we
may have the status of an “archipelagic state,” we may simply
amend RA No. 3046 to conform to Article 47 of the LOSC, so
that the “archipelago” enclosed by the baselines under RA No.
3046 will have the status of an “archipelago” and the Philippines
as an “archipelagic state” under the LOSC.
Two ways of dealing with the problem are reflected in bills
now pending enactment by the House of Representatives and the
Senate, as follows:
(a) To maintain the “archipelago” enclosed by the baselines
in RA No. 3046 but amending the baselines to conform
to Article 47 and to consider the “Kalayaan Group of
Islands” as “islands” under Article 121 of the Law of the
Sea Convention, or
(b) To consider both the “archipelago” enclosed by the
baselines in RA No. 3046, as amended, and the Kalayaan
Group of Islands, as a single archipelago by drawing
straight baselines connecting the outermost points of the
8
Part IV.
9
Article 46(a).
outermost islands of both the Philippine archipelago and

the Kalayaan Group of Islands.
I support the first alternative for the following reasons:
a. Article 46(b) defines an “archipelago” as follows:
A RT . 46. Use of ter ms.
terms.
For the purpose of this Convention:
xxxx
b. archipelago means a group of islands, including
parts of islands, interconnecting waters and other
natural features which are so closely interrelated
that such islands, waters and other natural features
form an intrinsic geographical, economic and
political entity, or which historically have been
regarded as such.
There can be no question that the “Philippine
archipelago,” as we have always known it, and enclosed by
the baselines in RA No. 3046, is an “archipelago” under
the above definition. But whether that “archipelago” and
the Kalayaan Group of Islands, together
together, constitute an
“archipelago” is uncertain. It must be remembered that
the “Kalayaan Group of Islands” came to be part of the
Philippines only upon the enactment on June 11, 1978
of PD No. 1596. It has never, through the centuries of
its existence, been regarded as part of the Philippine
archipelago.
b. Under Article 47, it is in fact required, that the baselines
“shall not depart to any appreciable extent from the general
configuration of the archipelago.” This makes more
emphatic that what are inclosed by the baselines is an

“archipelago” with a configuration as such.
c. Technical studies have shown that there is no tie-point
with low tide elevation (bare at low tide) that could
connect the Kalayaan Group of Islands with the main
archipelago.
d. Several, in fact a majority, of the basepoints are located in
islands presently occupied by other countries (not the
Philippines). It is absurd, indeed ridiculous, that basepoints
of our arhipelagic baselines would be on islands occupied
by other states, albeit without our consent.
With the above recognition that the baselines are in accord
with Article 47 of the Law of the Sea Convention is a huge
problem. They most certainly will be disputed by the countries
who now occupy the majority of the islands in the Kalayaan Group.
Should any part of the baselines, particularly those that connect
the Kalayaan Group of Islands to the Philippine archipelago, be
found not in accord with Article 47, it may nullify not only the
baselines linking the Kalayaan Group of Islands to the main
archipelago but the entire baselines enclosing the Philippines.
On the other hand, it is in our interest that we assure that the
Philippine archipelago, as we have always known it, and enclosed
by the baselines under RA No. 3046, as amended, is invulnerable
to any question. That way, we are assured that the Philippine
archipelago enclosed by the baselines under RA No. 3046, as
amended, will have the recognition of the international
community. To dissipate any apprehension that we have abandoned
our sovereignty over the Kalayaan Group of Islands, we may
explicitly acknowledge in whatever legislation is enacted that the
Kalayaan Group of Islands shall be regarded as a “regime of islands”

under Article 121 of the Law of the Sea Convention.
We must face the reality that our sovereignty over the Kalayaan
Group of Islands is disputed by neighboring states, principally
China and Vietnam. Majority of the islands composing the
Kalayaan Group of Islands are occupied by these countries.10
Vietnam occupies the biggest number of islands. We must assure
that whatever problem to which the Kalayaan Group of Islands
is presently exposed will not affect the Philippine archipelago, as
we have always known it, the principal territory comprising the
Republic of the Philippines, enclosed by the baselines under RA
No. 3046, as amended.
IV
IV.. C ONCL UDING O BSER
ONCLUDING VATIONS
BSERV
The subject matter of this afternoon’s lecture is “The Metes and

Bounds of the Philippine Territory.” Because our country is an
archipelago or consists of islands, we do not have any land borders
adjoining other states. If by “territory,” therefore, “land” is
contemplated, I venture to say that we hardly have any “Metes
and Bounds” problem. But if by “territory” is contemplated which,
in my view, it should, sovereignty or jurisdiction over maritime
areas adjoining the land territory, we do have a problem of “Metes
and Bounds.” 11 The problem regrettably is principally attributable
to our failure to amend RA No. 3046, as amended by RA No.
10
Based on information, as best as I am able to obtain, more than 20
islands are occupied by Vietnam, about 10 islands by China, 5 by
Malaysia, 1 by Taiwan, and 9 by the Philippines.
11
The DFA has advised that our neighboring countries, particularly
Vietnam, Japan, China, Taiwan, Malaysia and Indonesia have by
5046, so that the baselines therein defined will conform to Article

47 of the LOSC. This requires technical expertise available from
the National Mapping and Resource Information Authority
(NAMRIA). Indeed, NAMRIA has already identified and
proposed the amendments to assure compliance with Article 47
of the LOSC which are already reflected in bills pending in
Congress. No valid reasons exist for our procrastination of many
years.
legislation drawn their baselines and that our exclusive economic

zone overlaps with theirs. The archipelagic baselines would be critical
in the negotiation and settlement of these overlapping maritime
boundaries. The baselines constitute the reckoning point by which
the outer limits of the Philippine maritime jurisdictions are initially
determined. It is only upon the initial determination of the outer
limits of the Philippine maritime jurisdictions that we would be
able to first, determine the parameters of our negotiating position
(e.g., maximum and minimum position); and second, to actually
proceed with the negotiation and conclusion of maritime boundary
delimitation agreements with the neighboring countries. As a matter
of fact, the Republic of the Philippines-Indonesia Maritime
Delimitation negotiations had to be suspended last December
because the Philippines has yet to enact a baselines law in accordance
with Article 47 of UNCLOS 111.
THE FOUNDATION
OUNDA OF THE STATE∗
round 200 B.C., in imperial China, Emperor Mo Tun
A established his kingdom. His powerful eastern neighbors

tried to bully him by making some demands. They told
Mo Tun: “We wish to obtain T’ou Ma’s thousand-li horse,” which
was a stallion reputedly able to travel about three hundred miles
without grass or water. Mo Tun consulted his advisers, who all
disapproved. But Mo Tun gave in and said: “Why begrudge a
horse to a neighbor?” So he sent the horse. Shortly after, they
again demanded: “We wish one of your princesses.” Mo Tun’s
advisers all angrily refused and prepared to go to war, but Mo
Tun overruled them and said: “How can one begrudge his neighbor
a young woman?” So he gave the young woman. Still later, they
returned and said: “You have three hundred miles of unused land.
Give them to us.” Mo Tun again consulted his advisers. Majority
agreed to cede the land, others did not. Mo Tun was enraged and
said: “Land is the foundation of the State. How could one give it
away?” All those who advised giving the land were beheaded.1
The maxim that land is the foundation of the State is as true
today as it was in imperial China. Under international law,
sovereignty itself, with its retinue of legal rights and duties, is
∗
Closing Remarks delivered at the Third Distinguished Lecture, Series
of 2008, held on June 27, 2008, at the Far Eastern University,
Manila.
1
Sun Tzu, The Art of War 67-68 (Samuel Griffith, Trans., 1971).
2009] THE FOUNDATION OF THE STATE 145
founded upon the fact of territory.2 Also, the principle of respect

for the territorial integrity of states is well established as one of
the linchpins of the international system, as is the norm
prohibiting interference in the internal affairs of other states.3
Few will disagree, therefore, that the metes and bounds of the
Philippine Territory, as aptly discussed by our speakers, are
important to discuss. But what gives special relevance to former
Ambassador Lauro L. Baja, Jr.’s lecture today is its timeliness. We
have only less than a year before the May 13, 2009 deadline set
by the United Nations Convention on the Law of the Seas – or
UNCLOS – to submit to the Commission on the Limits of the
Continental Shelf the relevant data and information regarding
the outer limits of our claim for an extended continental shelf.4
Failure to meet this deadline may jeopardize our country’s
territorial claims, particularly our claim over the resource-rich
Spratly Islands.5
It is important to remember that the delineation of Philippine
territory is as much an international concern as it is our own. Six
countries – the People’s Republic of China, Taiwan, Vietnam, the
Philippines, Malaysia, and Brunei – currently claim territorial
sovereignty over the Spratly Islands. China, Taiwan, and Vietnam
claim the entire group of islands; our Country and Malaysia claim
2
Malcolm Shaw, International Law 409 (5th ed. 2003).
3
Id. at 410.
4
1982 United Nations Convention on the Law of the Sea, Art. 760
(7), in relation to Annex II, Art. 4.
5
See Vera Files, Arroyo neglect, government in-fighting jeopardize
RP’s territorial claim, Malaya, March 24, 2008.
a subgroup of islands. Brunei claims a semi-submerged reef.6 China

claims that it discovered, occupied, and used the Spratlys as fishing
grounds as early as the second century B.C. Taiwan claims that
after the Japanese invaded Hainan Island, the Paracel Islands, and
the Spratly Islands in 1939, the Japanese placed the Spratlys under
Taiwan’s jurisdiction. Vietnam claims that it succeeded France’s
claim to the Spratlys when Vietnam was granted independence.
Our country claims, first, that the islands were terra nullius (that
is, land without an owner) when a Filipino, Tomas Cloma,
discovered them in 1947; second, that the Spratly Islands were
terra nullius following the San Francisco Peace Treaty, and, third,
that the Spratly Islands lie within its archipelagic territory. Malaysia
contends that the southern portion of the Islands is located in its
continental shelf. Lastly, Brunei claims that Louisa Reef and
Rifleman Bank, both located in the southern portion of the
Spratlys, are an extension of its continental shelf.7
The delineation of Philippine territory is also as much a
diplomatic issue as it is a legal one. Five of the claimant-countries
have built military facilities and stationed troops to bolster their
claims on the islands. China, which claims the whole South China
Sea area, occupies seven islands and reefs, where it built several
military-like structures and helicopter pads where 325 soldiers are
stationed. Taiwan occupies one island with a helicopter pad and a
1,150-meter airstrip and has assigned 100 troops there. Vietnam
occupies 20 islands, built a 600-meter runway and has stationed
600 troops there. Our country occupies eight islands, built a 1,300-
6
Brian Murphy, Dangerous Ground: The Spratly Islands and
International Law, 1 Ocean & Coastal L.J. 187, 195 (1995).
7
Lian Mito, The Timor Gap Treaty as a Model for Joint Development
in the Spratly Islands, 13 Am. U. Int’l L. Rev. 727,737-746 (1998).
2009] THE FOUNDATION OF THE STATE 147
meter runway and has only 60 troops stationed there. Malaysia

occupies four islands, built a 600-meter runway, dive resort and
military installation, and has stationed 70 troops there.8 Despite
the claimant countries’ expressed commitment to cooperation,
diplomacy, and the employment of peaceful means to settle the
dispute, tensions remain high and the potential for armed conflict
exists.9
Why the Spratly Islands have become the most sought-after
space in Asia is obvious. It is acknowledged by the international
oil industry that the Spratlys may lie atop an “elephant” of
petroleum, with potential to yield in excess of a billion barrels of
oil and untold quantities of natural gas.10 The UNCLOS gives
to a state which has territorial sovereignty over an island or group
of islands the exclusive right to exploit the resources of the sea
bed surrounding it. The state holding territorial sovereignty over
an island is allowed, under the UNCLOS, to establish a 12-mile
territorial sea and a 200-mile Exclusive Economic Zone around
the island.11 There is also rich commercial fishing in the area.12 In
addition to its natural resources, the Spratlys’ strategic location
8
See Alejandro Roces, More on Spratlys, Philippine Star, April 3,
2008.
9
See Lian Mito, The Timor Gap Treaty as a Model for Joint
Development in the Spratly Islands, 13 Am. U. Int’l L. Rev. 727,
728 (1998).
10
Brian Murphy, Dangerous Ground: The Spratly Islands and
11
See Id., at 189.
12
Raul Ilustre Goco, Spratly Islands and Potential Legal Issues,
Philippine Star, March 29, 2008.
occupies a potential blocking position for ships transiting the

South China Sea.13
How our government will handle the Kalayaan Islands dispute
will bind not only the present generation but also every succeeding
generation of Filipinos. If we fail to comply with the UN deadline,
we stand to lose many of our rights under the UNCLOS. But
mere compliance is not enough. We should guard archipelagic
baselines drawn without considering the highest interests of our
people. Similarly, we should guard against grossly disadvantageous
agreements with the other claimant-countries which could deprive
us of natural resources over which we enjoy the right to exclusive
use under international law. We are all guardians of our geography;
we should treat our territories in trust for the Filipino people. I
thank Ambassador Baja and our resourse persons, Justice
Florentino F. Feliciano, Solicitor General Estelito P. Mendoza,
and Atty. Henry S. Bensurto, Jr. for their enlightening lectures
and comments on the metes and bounds of the Philippine territory.
I also thank the FEU by co-hosting this Third Distinguished
Lecture of PHILJA.
Good day to all.
13
See Brian Murphy, Dangerous Ground: The Spratly Islands and
International Committee of the Red Cross
present
The Fourth Distinguished Lecture

Series of 2008
THE DEVELOPMENT OF
INTERNATIONAL HUMANITARIAN LAW
AND THE CONTINUED
RELEVANCE OF CUSTOM
by
Dr. Jean–Marie Henckaerts

Head, Customary International Humanitarian Law Project
International Committee of the Red Cross
Wednesday, August 13, 2008, 2:30 P.M.

Court of Appeals Auditorium
Court of Appeals
Maria Orosa Street, Manila
and
Davao City, via Video Conferencing
(Royal Mandaya Hotel)
Program
Invocation
HONORABLE TERESITA J. LEONARDO-DE CASTRO

SUPREME COURT CHOIR
Greetings
HONORABLE CONRADO M. VASQUEZ, JR.
Presiding Justice, Court of Appeals
Opening Remarks
HONORABLE ANTONIO EDUARDO B. NACHURA
Message
MR. FELIPE DONOSO
Head of Delegation, International Committee of the Red Cross
SUPREME COURT CHOIR
HONORABLE MA. ALICIA AUSTRIA-MARTINEZ
LECTURE
DR. JEAN-MARIE HENCKAERTS
Panel of Reactors
Associate Justice
Supreme Court
HONORABLE LEILA M. DE LIMA
Chairperson
Commission on Human Rights
Presentation of Plaques of Appreciation to

Dr. Jean-Marie Henckaerts
by
Presiding Justice Conrado M. Vasquez, Jr.
Mr. Felipe Donoso
Closing Remarks
Chief Justice
Supreme Court Hymn

Court of Appeals Hymn
Senior Associate Justice
Supreme Court
G REETINGS ∗
Presiding Justice Conrado M. Vasquez, Jr.∗∗
T
he Honorable Chief Justice of the Supreme Court
Reynato S. Puno
Our guest lecturer, Dr. Jean-Marie Henckaerts
the Honorable Associate Justices of the Supreme Court
Madame Justice Ameurfina Melencio Herrera, Chancellor of the
Associate Justices of the Court of Appeals
Honorable Leila M. De Lima, Chairperson of the Commission
on Human Rights
International Community of the Red Cross Representatives
Mr. Felipe Donoso, Head of Delegation, International Committee
of the Red Cross
Distinguished Guests and Friends,
A very pleasant afternoon to all of you and welcome to this much-

awaited lecture on “The Development of International
Humanitarian Law and the Continued Relevance of Custom,”
the Fourth Distinguished Lecture, Series of 2008, conducted by
the Supreme Court’s Philippine Judicial Academy, in partnership
with the Committee on Knowledge Sharing and Regional
Cooperation, the Committee on Computerization and Library
and the Program Management Office.
∗
Delivered during the Fourth Distinguished Lecture, Series of 2008,
held on August 13, 2008, at the Court of Appeals, Manila.
∗∗
Presiding Justice of the Court of Appeals.
We also extend the same heartfelt greetings to our other

colleagues in the bench and bar in Davao City including their
guests and friends, who are now simultaneously witnessing this
event via video conference facilities.
All of us have been eagerly looking forward to further
enriching our knowledge of the law on a subject matter which
may perhaps still sound unfamiliar to most of us, yet, it is a topic
so timely and relevant to the current political and social situation
not only in the Philippines but also in other countries.
For us here in the Court of Appeals which auditorium has
been chosen as venue of this very important lecture, we have
long welcomed the physical hosting of this occasion and this
opportunity to have our own members of the bench and bar feed
their minds on this aspect of international law. We are also
fortunate to have as our distinguished lecturer, Dr. Jean-Marie
Henckaerts, an expert on the topic, who heads the Customary
International Humanitarian Law Project of the International
Committee of the Red Cross.
Again, we extend to all of you here and in Davao City our
sincerest greetings for the day, with the hope that your attendance
in the lecture this afternoon will be pleasant, enlightening, and
educationally fruitful.
Thank you and good day.
THE DEVEL OPMENT OF
DEVELOPMENT
INTERN
INTERNAATION AL HUMANIT
TIONAL ARIAN
HUMANITARIAN
LAW AND THE CONTINUED
LAW
RELEVANCE OF CUST
RELEVANCE OM ∗
CUSTOM
Dr
Dr.. JJean-Marie
ean-Marie Henc kaer
Henckaer ts
kaerts
Dr
Dr.. JJean-Marie
ean-Marie Henc kaer
Henckaer ts
kaerts
ts, a legal
adviser in the ICRC Legal Division since
October 1996, is currently head of the
project on customary international
humanitarian law, and co-author of the
ICRC study on the subject. He was a
member of the ICRC delegation to the
Diplomatic Conference on a Second
Protocol to the 1954 Hague
Convention for the Protection of
Cultural Property in the Event of Armed
Conflict (The Hague, 1999). Before
joining the ICRC, he was a postdoctoral
research fellow at the University of
Brussels (1993-1996) heading its the University of Georgia (1990); and
Project on Strengthening Democracy Bachelor of Laws from the University
in Societies in Transition, while serving of Brussels (1989).
as legal assessment commentator for the
He has taught at the University
American Bar Association’s Central and
Centre for International Humanitarian
East European Law Initiative.
Law in Geneva and at Boston University
He obtained his Doctor of Brussels and Webster University Geneva.
Juridical Science degree from the He has lectured at various international
George Washington University Law fora, and published books and numerous
School (1994); Master of Laws from articles on his expertise.
∗
Delivered during the Fourth Distinguished Lecture, Series of 2008,
held on August 13, 2008, at the Court of Appeals, Manila.
Published in Howard M. Hensel (Ed.), The Legitimate Use of
Military Force: The Just War Tradition and the Customary Law of
Armed Conflict (Ashgate Publishing, Aldershot 2008), Chapter 5,
pp. 117-133.
I. I NTRODUCTION
NTRODUCTION
The sources of international law are set out in Article 38 of the

Statute of the International Court of Justice. This provision lists
international conventions, international custom, and general
principles of law as the main sources of international law in
accordance with which the Court is to decide disputes submitted
to it. It further stipulates that judicial decisions and the teachings
of the most highly qualified publicists of the various nations are
subsidiary means for the determination of rules of law. While
international conventions – or treaties – establish rules “expressly
recognized by the contesting States,” international custom is
defined in Article 38 as “evidence of a general practice accepted
as law.” Even though Article 38 of the Statute of the International
Court of Justice does not provide for a hierarchy among the main
sources of international law, there seems to be a common belief
that treaties are the most important source of international law.
Historically, however, customary international law has often
preceded treaty law and has provided a reservoir of principles and
concepts on which much of the codification of treaties is based.1
The history of the codification of international humanitarian
law, resulting in a long series of treaties with a global scope, started
in 1864 with the adoption of the first Geneva Convention for
the Amelioration of the Condition of the Wounded in Armies
in the Field. This is less than 150 years ago and constitutes in the
big scheme of human history a rather recent development. During
the centuries preceding this first codification, rules regulating warfare
1
See, e.g., C.G. Weeramantry, “The Revival of Customary
International Humanitarian Law,” in Larry Maybee and Benarji
Chakka (Eds.), Custom as a Source of International Humanitarian
Law, ICRC, New Delhi, 2006, at 25.
2009] THE DEVELOPMENT OF INTERNATIONAL 157
did exist but up until then, these rules were based mainly on
tradition and custom. It is fair to say, therefore, that humanitarian
law started as a body of customary rules and remained so for
centuries and that its codification is a much more recent
phenomenon.
The main milestones in the codification of humanitarian law
include:2
• 1864: First Geneva Convention protecting wounded and
sick soldiers
• 1907: Hague Regulations governing the means and
methods of hostilities
• 1925: Geneva Gas Protocol
• 1929: Two Geneva Conventions updating the protection
of wounded and sick and adding rules on the treatment
of prisoners of war
• 1949: Four Geneva Conventions updating the 1929
Conventions and adding rules on the protection of
civilians and on armed conflicts “not of an international
character” (common Article 3)
• 1954: Hague Convention and Protocols on the protection
of cultural property and two Protocols
• 1972: Biological Weapons Convention
• 1977: Two Protocols Additional to the 1949 Geneva
Conventions updating the rules on the conduct of
hostilities and on the protection of war victims and
providing the first international convention specifically
2
For a more complete overview, see <http://www.icrc.org/ihl>.
applicable in non-international armed conflict (Additional

Protocol II)
• 1980: Convention on Certain Conventional Weapons and
five Protocols dealing with certain conventional weapons
(e.g., land mines, booby traps, incendiary weapons, and
blinding laser weapons)
• 1993: Chemical Weapons Convention
• 1997: Ot t a wa Convention banning anti-personnel
landmines
• 1998: Statute of the International Criminal Court
Against the background of this wealth of treaty law providing
a rather detailed codification of humanitarian law, one may forget
that customary law actually lies at the basis of humanitarian law
and continues to exist in parallel with these treaties. One of the
difficulties with custom, obviously, is its proof. But this difficulty
in no way diminishes the continued existence of custom, even in
a highly codified field of international law such as international
humanitarian law.
II. I MPEDIMENTS TO THE A PPLICA TION

PPLICATION
OF I NTERN
NTERNA ATION AL H UMANIT
TIONAL ARIAN T REA
UMANITARIAN TY L AW
REATY
Notwithstanding the high degree of codification of international

humanitarian law, customary humanitarian law continues to be
relevant because a number of impediments affects the application
of treaty law in practice today. These impediments came to the
forefront at the time of the conflicts in the former Yugoslavia
and Rwanda in the first half of the 1990s. It explains why a
study on customary international humanitarian law was
commissioned at that time (see infra).
The three main impediments to the application of

humanitarian treaty law today are that (1) ratification is required
for treaties to apply and not all treaties are universally ratified;
(2) the characterization of an armed conflict is required prior to
determining which treaty law applies, and this is not always easy;
and finally, but most importantly, (3) treaty law governing non-
international armed conflicts is still rudimentary.
A. T he Requir
Requir ement of Ratif
equirement ication
Ratification
The first impediment, the need for treaty ratification, does not
affect the application of the four Geneva Conventions of 1949
since they have been universally ratified today. Nauru was the
last State to ratify the Geneva Conventions and with the entry
into force of the Geneva Conventions for Nauru on December
27, 2006, their applicability has truly become universal. The
Conventions are binding on all States as a matter of treaty law,
regardless of whether they are also part of customary international
law.
The impediment of ratification is rather relevant for those
treaties that are not universally ratified, such as the 1977 Protocols
Additional to the Geneva Convention, the 1954 Hague
Convention on the protection of cultural property in time of
armed conflicts and its two Protocols and the 1980 Convention
on Certain Conventional Weapons and its five Protocols.
For example, at the time of writing, March 1, 2007, the
ratification record of some of the principal treaties of
international humanitarian law was as follows:3
3
For a continuous update <http://www.icrc.org/ihl>.
• 1949: Four Geneva Conventions – 194 parties (universal

ratification)
• 1954: Hague Convention – 116 parties
• 1954: First Protocol – 93 parties
• 1999: Second Protocol – 44 parties
• 1972: Biological Weapons Convention – 155 parties
• 1977: Additional Protocols
• 1977: Additional Protocol I – 167 parties
• 1977: Additional Protocol II – 163 parties
• 1980: Convention on Certain Conventional Weapons –
102 parties
• 1980: Protocol I – 100 parties
• 1980: Protocol II – 89 parties
• 1996: Amended Protocol II – 87 parties
• 1980: Protocol III – 94 parties
• 1995: Protocol IV – 85 parties
• 2003: Protocol V – 31 parties
• 1993: Chemical Weapons Convention – 181 parties
• 1997: Ottawa Convention – 153 parties
• 1998: Statute of the International Criminal Court –
104 parties
This means, for example, that although the Additional
Protocols have been ratified by more than 160 States today, an
impressive ratification record by any measure, an important
number of States still remain outside the framework of this treaty

regime. This also implies that in different conflicts, different treaty
regimes apply. This situation is not satisfactory from the
perspective of the legal protection of war victims.
This also has an impact on coalition warfare where the different
coalition partners have not subscribed to the same treaties. In
such cases, only customary humanitarian law provides a common
set of rules that is applicable to all coalition partners. Therefore,
even if a State is a party to a particular treaty, it may still be
relevant to know to what extent the treaty reflects customary law
and is, as such, binding on coalition partners, even those which
have not ratified that particular treaty.
B. T he Need ffor
or Characterization of Ar med Conf
Armed licts
Conflicts
The second impediment is that the characterization of an armed
conflict is required in order to determine which treaty law applies.
Depending on particular circumstances of an armed conflict, its
characterization as international or non-international will inform
the conclusion whether only common Article 3 or the entire body
of Geneva Conventions applies, whether Additional Protocol I
or Additional Protocol II applies and whether the grave breaches
and serious violations of humanitarian law in Article 8(2)(a)
and (b) of the Statute of the International Criminal Court are
applicable or whether the serious violations of Article 8(2)(c)
and (e) of the Statute are applicable. But the determination as to
whether the conflict is international or non-international can be
problematic in some cases. For example, the current conflicts going
on in and around the Democratic Republic of the Congo or the
conflicts in the former Yugoslavia are/were not easy to characterize
as international or non-international because in reality they are/
were a mix of both. In these situations, the determination of the

applicable treaty law may be difficult. To the extent that it is
possible to characterize the various aspects of such mixed conflicts,
the overlapping application of the treaty regimes applicable to
international and to non-international armed conflicts to different
parties engaged in the same armed conflict creates complicated
legal constructions.
C. Rudimentar
udimentaryy Treaty La
Laww Go
Govver ning
erning
Non-Inter national Ar
Non-International med Conf
Armed Conflicts
licts
The third, and by far the most important, impediment to the
application of humanitarian treaty law is that it offers only a
rudimentary framework for the regulation of non-international
armed conflicts, in particular with respect to the conduct of
hostilities. Common Article 3 of the Geneva Conventions, the
only provision of the Geneva Conventions that is formally
applicable to non-international armed conflicts, does not as such
deal with the conduct of hostilities. In addition, Additional
Protocol II, to the extent that the State in question has ratified it,
does not deal with the conduct of hostilities and a number of
other issues in sufficient detail either. For example, unlike
Additional Protocol I, Additional Protocol II does not provide
for the obligation to distinguish between military objectives and
civilian objects. As a result, it does not contain any protection for
civilian objects in general, nor does it define civilian objects and
military objectives. This is problematic in practice because even
in non-international armed conflicts, armed forces (both State
armed forces and armed opposition groups) will actually be
required to limit their military operations to military objectives.
Additional Protocol II lacks other key provisions on the conduct
of hostilities as well, such as the prohibition and definition of
indiscriminate attacks and the obligation to take precautions in

attack and against the effects of attack.
Detailed provisions on the conduct of hostilities can be found
in Additional Protocol I but not in Additional Protocol II, even
though the draft of the protocol did contain them. In fact, the
original drafts of both protocols submitted to the conference by
the ICRC were very similar.4 Even during the diplomatic
conference that led to the adoption of the Additional Protocols,
Committee III which worked on the draft of Protocol II accepted
a substantial number of the draft provisions submitted by the
ICRC, often with consensus, sometimes with minor changes. But
in the last weeks of a four-year long negotiation many parts of
the Protocol were simply deleted. The main reason for this was
that it transpired that consensus could be reached on a simplified
text only. This simplification process consisted, in particular, of
removing or revising all articles that referred to the “parties to
the conflict.” A good example of this diplomatic maneuver is the
provision on dissemination in the Additional Protocols. Whereas
Additional Protocol I imposes an obligation on all “High
Contracting Parties” to disseminate the Conventions and the
Protocol as widely as possible,5 Additional Protocol II summarily
requires that “[t]his Protocol shall be disseminated as widely as
4
ICRC, Draft Additional Protocols to the Geneva Conventions of
August 12, 1949, Geneva, June 1973, published in Official Records
of the Diplomatic Conference on the Reaffir mation and
Development of International Humanitarian Law Applicable in
Armed Conflicts, Geneva, 1974-1977, Volume I.
5
Protocol Additional to the Geneva Conventions of August 12, 1949,
and Relating to the Protection of Victims of International Armed
Conflict, Geneva, June 8, 1977, Article 83(1) [hereinafter Additional
Protocol I].
possible” without specifying to whom this obligation is addressed.6

At the time, States could not accept that “the parties to the
conflict,” including armed opposition groups, would have specific
rights and obligations under international law, e.g., the obligation
to disseminate humanitarian law. This reticence was inspired
mainly by the reasoning of then newly independent States that
recognition of such rights and obligations and, in general, a
detailed regulation of non-international armed conflicts would
encourage rebellion and secession threatening their frail sovereignty.
However, recognition of rights and obligations of armed
opposition groups under international law predated the Protocol
by at least 30 years. Indeed, common Article 3 of the Geneva
Conventions already imposed obligations on “each Party to the
conflict” not of an international character and even encouraged
the parties to “further endeavour to bring into force, by means
of special agreements, all or part of the other provisions of the
present Convention” and so went further than Additional Protocol
II. Common Article 3 specifies, on the other hand, that its
application “shall not affect the legal status of the Parties to the
conflict” as do a number of later treaties applicable to non-
international armed conflict (see infra).
The simplification process of Additional Protocol II has,
unfortunately, left the Protocol with an awkward structure. The
basic rules on the distinction between military objectives and
civilian objects and their definition are missing but detailed rules
on specific objects, namely objects indispensable to the survival
of the civilian population, works and installations containing
dangerous forces and cultural objects and places of worship, were
6
See Protocol Additional to the Geneva Conventions of August 12,
1949, and Relating to the Protection of Victims of Non-
International Armed Conflicts, Geneva, June 8, 1977, Article 19
[hereinafter Additional Protocol II].
left in the Protocol.7 These shortcomings in treaty law have
somewhat been rectified in subsequent treaties applicable to non-
international armed conflicts.
The first treaty to do so was the Protocol on Prohibitions or
Restrictions on the Use of Mines, Booby Traps and Other Devices,
as amended on May 3, 1996. Unlike the original Protocol, the
amended Protocol was made applicable to non-international
armed conflicts and includes a number of basic rules on the
conduct of hostilities which are to be found in Additional
Protocol I but which were deleted from the simplified text of
Additional Protocol II. These include in particular:
– the prohibition to attack civilian objects8
– the definition of military objectives9
– the definition of civilians objects10
– the prohibition of indiscriminate use of weapons 11
7
See Additional Protocol II, supra note 6, Article 14 (objects
indispensable to the survival of the civilian population), Article 15
(works and installations containing dangerous forces), and Article
16 (cultural objects and places of worship).
8
Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons which may be Deemed to be Excessively
Injurious or to have Indiscriminate Effects, Geneva, October 10,
1980 [hereinafter CCW]; Protocol on Prohibitions or Restrictions
on the Use of Mines, Booby Traps and Other Devices, as Amended,
Geneva, May 3, 1996, Article 3(7) [hereinafter CCW, Amended
Protocol II].
9
CCW, Amended Protocol II, supra note 8, Article 2(6).
10
11
– the definition of indiscriminate use of weapons12

– the principle of proportionality13
– the prohibition of so-called “area bombardments”14
– the obligation to take all feasible precautions to protect
civilians15
– the obligation to give an effective advance warning, unless
circumstances do not permit.16
Similar to common Article 3, the amended Protocol provides
that its application “to parties to a conflict, which are not High
Contracting Parties x x x shall not change their legal status or the
legal status of a disputed territory, either explicitly or implicitly.”17
Although the adoption of the Rome Statute of the
International Criminal Court in 1998 constituted a giant step
forward in the recognition of individual criminal responsibility
for serious violations of international humanitarian law in non-
international armed conflicts, it was a rather hesitant step in terms
of the substantive law applicable in such conflicts. Indeed, the list
of war crimes for non-international armed conflicts is considerably
shorter than the list for international armed conflicts and
omissions related to the conduct of hostilities include, in
particular, attacks against civilian objects and attacks which cause
12
13
CCW, Amended Protocol II, supra note 8, Article 3(8)(c).
14
15
16
17
excessive incidental injury, loss of life or damage to civilians and

civilian objects.18 This is all the more surprising since the list of
war crimes in non-international armed conflicts considers it a war
crime to direct attacks against installations, material, units or
vehicles involved in a humanitarian assistance or peacekeeping
mission “as long as they are entitled to the protection given to
x x x civilian objects under the international law of armed conflict”
and, thereby, recognizes the protection of civilian objects in such
conflicts.19 It can be argued that the war crime of destruction of
the property of an adversary unless such destruction be
imperatively demanded by the necessities of the conflict could
cover cases of attacks against civilian objects.20 It is also remarkable
that while the advance in the substantive law on non-international
armed conflicts was, as explained above, first made in the area of
weapons, the Statute of the International Criminal Court does
not explicitly criminalize any use of prohibited weapons in non-
A year later, in 1999, the second Protocol to the Hague
Convention for the protection of cultural property was made
applicable to non-international armed conflicts and again
contained a number of provisions on the conduct of hostilities.
These include:
18
These violations are listed as war crimes in international, but not
in non-international armed conflicts. See Statute of the
International Criminal Court, Rome, July 17, 1998, Article
8(2)(b)(ii) and (iv).
19
Statute of the International Criminal Court, supra note 18, Article
8(2)(e)(iii).
20
8(2)(e)(xii).
– the prohibition to attack civilian objects;21

– the definition of military objectives;22
– the obligation to take all feasible precautions in attack;23
– the obligation to give an effective advance warning
whenever circumstances permit;24 and
– the obligation to take all feasible precautions against the
effects of hostilities.25
Finally, in December 2001, Article 1 of the Convention on
Certain Conventional Weapons was modified to extend the scope
of application of all then existing Protocols to non-international
armed conflicts, as defined in common Article 3. As explained
21
6(a)(i) (a contrario).
22
Second Protocol to the Hague Convention of 1954 for the
Protection of Cultural Property in the Event of Armed Conflict,
The Hague, March 26, 1999, Article 1(f).
23
supra note 22, Article 7 (containing a list of detailed precautionary
measures very similar to those listed in Article 57(2) of Additional
Protocol I).
24
supra note 22, Article 6(d).
25
supra note 22, Article 8 (containing a list of detailed precautionary
measures very similar to those listed in Article 58(a) and (b) of
Additional Protocol I).
above, until then only Amended Protocol II applied in non-

international armed conflicts. Since then, Protocols I-IV have
become applicable in non-international armed conflicts for those
States having ratified the amendment of Article 1. This means
that the provisions in the Protocols related to the conduct of
hostilities which were hitherto limited to international armed
conflict became applicable in non-international armed conflict as
well. These include:
– the prohibition to attack civilian objects;26
– the definition of military objectives;27
– the definition of civilian objects;28
– the prohibition of indiscriminate use of weapons;29
– the definition of indiscriminate attacks;30
– the principle of proportionality;31
26
CCW, Protocol on Prohibitions or Restrictions on the Use of
Incendiary Weapons, Geneva, October 10, 1980, Article 2(1)
[hereinafter Protocol III].
27
CCW, Protocol on Prohibitions or Restrictions on the Use of
Mines, Booby Traps and Other Devices, Geneva, October 10, 1980,
Article 2(4) [hereinafter Protocol II]; and Protocol III, supra note
26, Article 1(3).
28
CCW, Protocol II, supra note 27, Article 2(5); and CCW, Protocol
III, supra note 26, Article 1(4).
29
CCW, Protocol II, supra note 27, Article 3(3).
30
CCW, Protocol II, supra note 27, Article 3(3)(a)-(c).
31
CCW, Protocol II, supra note 27, Article 3(3)(c).
– the obligation to take all feasible precautions to protect

civilians;32 and
– the obligation to give effective advance warning.33
It seems, therefore, that after the consolidation of many States
that were newly independent in the 1970s, it was possible in the
1990s to gradually expand the scope of treaty law to non-
One notable exception is the prohibition to attack civilians
which has been included ab initio in Additional Protocol II and
in subsequent treaties.34 Article 13 of Additional Protocol II
provides that “the civilian population as such, as well as individual
civilians, shall not be the object of attack x x x unless and for
such time as they take a direct part in hostilities.” Under the
Statute of the International Criminal Court, “intentionally
directing attacks against the civilian population as such or against
individual civilians not taking a direct part of hostilities”
constitutes a war crime in non-international armed conflict.35
Unlike Additional Protocol I,36 however, Additional Protocol II
32
CCW, Protocol II, supra note 27, Article 3(4); CCW , Protocol
III, supra note 26, Article 2(3); and CCW, Protocol on Explosive
Remnants of War, Geneva, November 28, 2003, Articles 3-5.
33
CCW, Protocol II, supra note 27, Articles 4(2)(b) and 5(2).
34
Additional Protocol II, supra note 6, Article 13; CCW, Protocol
II, supra note 27, Article 3(2); CCW, Amended Protocol II, supra
note 8, Article 3(7); CCW Protocol III, supra note 26, Article
2(1); and Statute of the International Criminal Court, supra note
18, Article 8(2)(e)(i).
35
8(2)(e)(i).
36
See Additional Protocol I, supra note 5, Article 50.
does not contain a specific definition of the terms “civilian

population” and “civilian.” This is due to the fact that, to this
day, practice in non-international armed conflicts is ambiguous
as to whether, for the purposes of the conduct of hostilities,
members of armed opposition groups are considered as members
of armed forces or as civilians. In particular, it is not clear whether
members of armed opposition groups are considered civilians
who lose their protection from attack when directly participating
in hostilities or whether members of such groups are considered
to be liable to attack as such. This lack of clarity is also reflected
in treaty law. As mentioned, Additional Protocol II does not
contain a definition of civilians or of the civilian population
even though these terms are used in several provisions. 37
Subsequent treaties, applicable in non-international armed
conflicts, similarly use the terms civilians and civilian population
without defining them.38
III. N EED TO C LARIFY THE C ONTENT

OF C UST OMAR
USTOMAR
OMARYY I NTERN
NTERNAATION AL
TIONAL
H UMANIT ARIAN L AW
UMANITARIAN
The brutal wars in the former Yugoslavia and Rwanda constituted

moments of deep crisis for the credibility of international
humanitarian law. The world witnessed the unfolding horrors in
these conflicts but was unable to stop them and to enforce the
37
Additional Protocol II, supra note 6, Articles 13-15 and 17-18.
38
See, e.g., CCW, Amended Protocol II, supra note 8, Article 3(7)–
(11); CCW, Protocol III, supra note 26, Article 2; Ottawa
Convention on the Prohibition of Anti-personnel Mines, Preamble;
8(2)(e)(i), (iii) and (viii).
law. One of the cardinal principles of humanitarian law – the

distinction between civilians and combatants and between civilian
objects and military objectives – was repeatedly and willfully
violated in these conflicts and this with apparent impunity.
Something had to be done. To this effect, the Intergovernmental
Group of Experts for the Protection of War Victims met in
Geneva in January 1995 and adopted a series of recommendations
aimed at enhancing respect for humanitarian law, in particular by
means of preventive measures that would ensure better knowledge
and more effective implementation of the law. Recommendation
II of the Intergovernmental Group of Experts proposed that:
The ICRC be invited to prepare, with the assistance of
experts in IHL [international humanitarian law]
representing various geographical regions and different legal
systems, and in consultation with experts from governments
and international organizations, a report on customary rules
of IHL applicable in international and non-international
armed conflicts, and to circulate the report to States and
competent international bodies.39
In December 1995, the 26th International Conference of the
Red Cross and Red Crescent, at which all States party to the
Geneva Convention are present and have a vote, endorsed this
recommendation and officially mandated the ICRC to prepare a
report on customary rules of international humanitarian law
applicable in international and non-international armed conflicts.40
39
Meeting of the Intergovernmental Group of Experts for the
Protection of War Victims, Geneva, January 23-27, 1995,
Recommendation II, International Review of the Red Cross, No.
310, 1996, p. 84.
40
26th International Conference of the Red Cross and Red Crescent,
Geneva, December 3-7, 1995, Resolution 1, International
Nearly 10 years later, in 2005, after extensive research and

widespread consultation of experts, this report, now referred to
as the study on customary international humanitarian law, has
been published.41
The Conference gave this mandate to the ICRC in particular
in the light of the rudimentary nature of treaty law governing
non-international armed conflicts. Indeed, both Yugoslavia and
Rwanda had ratified Additional Protocol II when their armed
conflicts broke out but, as explained above, the Protocol contains
many gaps. Therefore, States wanted to know to what extent
these gaps had been filled by customary international law. The
mandate was thus a request to the ICRC to assist States in the
difficult and time-consuming task of clarifying the content of
customary international law.
As requested by the Conference, the ICRC circulated the study
to States and competent bodies – each office of the Legal Advisor
of Foreign Affairs of all States, all national societies of the Red
Cross and Red Crescent, all national humanitarian law committees
and numerous international organizations received a copy. The
study is meant to be a tool at the disposal of lawyers, judges, and
academics who in their daily work need to know the content of
customary international humanitarian law. Given the difficulty
in determining the content of customary international law and
the time needed to collect and assess practice and opinio juris, it
can be hoped that the study will achieve its aim.
humanitarian law: From law to action; Report on the follow-up to
the International Conference for the Protection of War Victims,
International Review of the Red Cross, No. 310, 1996, p. 58.
41
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary
International Humanitarian Law, 2 Volumes, Volume I: Rules,
Volume II: Practice (2 Parts), Cambridge University Press, 2005.
IV
IV.. P RA CTICAL R ELEV
RACTICAL ANCE OF C UST
ELEVANCE OMAR
USTOMAR Y
OMARY
I NTERN
NTERNA ATION AL H UMANIT
TIONAL ARIAN L AW T OD
UMANITARIAN ODAAY
In the light of the impediments to the application of humanitarian

treaty law, customary humanitarian law continues to be of practical
relevance in various ways. Below are few examples of recent reliance
on customary humanitarian law and of areas of humanitarian law
where customary law continues to be relevant.
A. Military Operations
Customary humanitarian law continues to be an important
framework for the conduct of hostilities, including in very recent
and current armed conflicts. This was the case, for example, during
the US invasion of Afghanistan in 2001 and of Iraq in 2003 as
neither Afghanistan, nor Iraq, nor the US are party to Additional
Protocol I. A similar situation prevailed during the 2006 conflict
between Israel and Lebanon, and particularly against Hezbollah
forces, as well as during the intervention in early 2007 of Ethiopian
and US forces in Somalia.
With respect to non-international armed conflict, customary
humanitarian law provides an important framework in both States
party to Additional Protocol II, such as Colombia, and a fortiori
in those not party to Additional Protocol II, such as Sri Lanka.
In these conflicts, State armed forces and, where applicable,
non-State armed groups, are bound to respect customary
humanitarian law. Customary humanitarian law will be an
important yardstick to be used by civil society in the States
concerned, as well as by third States and international organizations
in the exercise of their obligation to ensure respect for humanitarian
law.
Finally, in coalition warfare, such as the current military
operations of the US and its partners in Iraq and the operations
of NATO member States in Afghanistan, as part of the
International Security Assistance Force in Afghanistan (ISAF),
customary humanitarian law represents common rules applicable
to all coalition partners. This stands in contrast to treaty
obligations which may vary greatly among coalition partners. Joint
operations must therefore comply with those common rules,
although individual partners may still have wider obligations under
the respective treaties they have ratified.
B. Fact-Finding
Since customary international law continues to be one of the
main legal frameworks in many armed conflicts, it is not surprising
that fact-finding missions related thereto also operate within that
framework. One example of this was the work of the International
Commission of Inquiry on Darfur in 2004-2005.42 As the
Commission reviewed facts related to the conflict in Darfur at a
time when Sudan was not yet a party to Additional Protocol II,
customary international humanitarian law applicable in non-
international armed conflicts was of particular relevance for the
work of the Commission. More recent examples include the report
of several special Rapporteurs of the UN Human Rights Council
and the Representative of the Secretary-General on Internally
Displaced Persons on their mission to Lebanon and Israel in the
wake of the 2006 conflict.43
42
See Report of the International Commission of Inquiry on Darfur
to the United Nations Secretary-General, pursuant to Security
Council Resolution 1564 of September 18, 2004, Geneva, January
25, 2005.
43
Report of the Special Rapporteur on extrajudicial, summary or
arbitrary executions, Philip Alston; the Special Rapporteur on the
C. Judicial and Arbitration Pr oceedings

Proceedings
1. National JJudicial
udicial Pr oceedings
Proceedings
In many States, customary international law may be invoked
directly before national courts and tribunals. Such is the case in
Israel where the Supreme Court has on several occasions
pronounced itself on the customary nature of rules of
humanitarian law.44 More recently, it has done so with reference
to the ICRC study on the subject. For example, in a judgment of
December 2005 on the so-called neighbor procedure used by the
Israel Defence Forces (IDF) to capture persons, the Israeli Supreme
Court referred with approval to the study’s findings on the
customary nature of the precautions to give effective, advance
warning (Rule 20) and to remove civilians from the vicinity of
military objectives (Rule 24) as well as the prohibition of human
shields (Rule 97).45 Similarly, in its judgment of December 2006
right of everyone to the enjoyment of the highest attainable standard

of physical and mental health, Paul Hunt; the Representative of
the Secretary-General on human rights of internally displaced
persons, Walter Kälin; and the Special Rapporteur on adequate
housing as a component of the right to an adequate standard of
living, Miloon Kothari, Mission to Lebanon and Israel (September
7-14, 2006), UN Doc. A/HRC/2/7, October 2, 2006, para. 22
and following.
44
See, e.g., Israel, The Supreme Court Sitting as the High Court of
Justice, Affo and others v. Commander of the IDF in the West
Bank, December 10, 1988, HCJ 785/87, HCJ 845/87, HCJ 27/
88, 29 ILM 139 (1990) (concerning the customary nature of Article
49 of the Fourth Geneva Convention).
45
Israel, The Supreme Court Sitting as the High Court of Justice,
Adalah and others v. GOC Central Command, IDF and others,
June 23, 2005, HCJ 3799/02, paras 20, 21 and 24.
on the policy of targeted killing, the Israeli Supreme Court referred

with approval to the study’s conclusions concerning the principle
of distinction between civilians and combatants and between
civilian objects and military objectives (Rules 1 and 7), the
principle that civilians are protected against attack, unless and for
such time as they take a direct part in hostilities (Rule 6), the
prohibition of indiscriminate attacks (Rule 11) and the
prohibition to cause excessive incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof
(Rule 14).46
2. Inter national JJudicial
International udicial Pr oceedings
Proceedings
At the international level, the International Criminal Tribunal
for the former Yugoslavia (ICTY) increasingly operates on the
basis of Article 3 of its Statute which gives the Tribunal jurisdiction
over “violations of the laws or customs of war.” Any conviction
based on Article 3 of the Statute requires proof that the crime in
question is part of customary international law, lest the principle
of legality be violated (nullum crimen, nulla poena sine lege
previa).47 For example, in Prosecutor v. Hadzihasanovic, the
appeals chamber of the Tribunal concluded that the prohibition
of wanton destruction of cities, plunder of public or private
property, attacks against cultural property, and more broadly, of
attacks on civilian objects were customary norms whose violation,
46
Israel, The Supreme Court Sitting as the High Court of Justice,
The Public Committee against Torture in Israel and others v. The
Government of Israel and others, December 13, 2006, HCJ 769/
02, paras 23, 29-30 and 41-42; see also references to the commentary
of the Study in paras 33-34 and 40 and 46.
47
See Theodor Meron, “The Revival of Customary Humanitarian
Law,” American Journal of International Law, Vol. 99, p. 817.
including in non-international armed conflict, entails individual

criminal responsibility under customary international law. In doing
so, it cited practice recorded in Volume II of the ICRC study on
customary humanitarian law, rather than the black-letter rules in
Volume I of the study.48 Earlier in the same case, the appeals
chamber had to determine whether it could apply the principles
of command responsibility to war crimes committed in a non-
international conflict. Since Additional Protocol II is silent on
the matter of command responsibility, the appeals chamber
examined whether command responsibility applied in non-
international armed conflict on the basis of customary
international law and concluded that it did.49
Another example of reliance on customary humanitarian law
can be found in the case law of the Special Court for Sierra Leone
which found that the recruitment of child soldiers was a war crime,
including in non-international armed conflicts, under customary
international law.50
3. Inter national Arbitration
International
One notable example of the relevance of customary humanitarian
law in arbitration proceedings is the work of the Ethiopia-Eritrea
48
ICTY, Appeals Chamber, Prosecutor v. Hadzihasanovic and Kubura,
Decision on Joint Defence Interlocutory Appeal of Trial Chamber
Decision on Rule 98bis Motions for Acquittal, IT-01-47-AR73.3,
March 11, 2005, paras 29-30, 38 and 45-46.
49
ICTY, Appeals Chamber, Prosecutor v. Hadzihasanovic and Kubura,
Decision on Command Responsibility, IT-01-47-AR72, July 16,
2003, para. 31.
50
Special Court for Sierra Leone, Appeals Chamber, Prosecutor v.
Sam Hinga Norman, Decision on Preliminary Motion based on
Lack of Jurisdiction (Child Recruitment), Case No. SCSL-2004-
14-AR72(E), May 31, 2004.
Claims Commission. This Commission was set up after the end

of the armed conflict between Ethiopia and Eritrea in 2000 to:
decide through binding arbitration all claims for loss,
damage or injury by one Government against the other,
and by nationals (including both natural and juridical
persons) of one party against the Government of the other
party or entities owned or controlled by the other party
that are (a) related to the conflict that was the subject of
the Framework Agreement, the Modalities for Its
Implementation and the Cessation of Hostilities
Agreement, and (b) result from violations of international
humanitarian law, including the 1949 Geneva Conventions,
or other violations of international law.51
The relevance of customary humanitarian law for the work
of the Commission is self-evident as neither the Geneva
Conventions nor Additional Protocol I were applicable during
the conflict as Eritrea had not ratified any of these treaties at the
time. The Commission therefore decided early on that it would
work on the assumption that the Geneva Conventions, as well as
Additional Protocol I, represented customary international law.
However, if either party to the arbitration proceedings wished to
challenge these assumptions it would have the burden of proof
with respect to the Geneva Conventions, whereas the Commission
would have the burden of proof with respect to Additional
Protocol I.52
51
Agreement between the Governments of the State of Eritrea and
the Federal Democratic Republic of Ethiopia, Algiers, December
12, 2000, Article 5(1).
52
See Eritrea-Ethiopia Claims Commission, Partial Award, Prisoners
of War, Eritrea’s Claim 17, July 1, 2003, para. 41 and Partial Award,
Prisoners of War, Ethiopia’s Claim 4, para. 32 (concerning the
Geneva Conventions); Eritrea-Ethiopia Claims Commission, Partial
Hence, in a Partial Award of December 19, 2005, relating to

issues on the conduct of hostilities, the Commission confirmed
the customary status of a number of provisions of Additional
Protocol I.53 The Commission concluded, for example, that it
could use Article 54(2) of Additional Protocol I (concerning
attacks against objects indispensable for the survival of the civilian
population) to assess the legality of an aerial bombardment of a
water sanitation plant near Asmara by the Ethiopian air force
because that provision of Additional Protocol I reflected
customary international law.54
D. Review of New Weapons, Means or Methods

of Warf ar
aree
arfar
According to Article 36 of Additional Protocol I:
In the study, development, acquisition or adoption of a
new weapon, means or method of warfare, a High
Contracting Party is under an obligation to determine
whether its employment would, in some or all circumstances,
be prohibited by this Protocol or by any other rule of
international law applicable to the High Contracting Party.
Award, Central Front, Eritrea’s Claims 2, 4, 6, 7, 8 & 22, April 28,

2004, para. 23 and Partial Award, Central Front, Ethiopia’s Claim
2, para. 17 (concerning Additional Protocol I).
53
Eritrea-Ethiopia Claims Commission, Partial Award, Western Front,
Aerial Bombardment and Related Claims, December 19, 2005, para.
95 (finding Articles 48, 51(2), 51(4)-(5), 52, 57 and 58 of
Additional Protocol I to be customary).
54
Eritrea-Ethiopia Claims Commission, Partial Award, Western Front,
Aerial Bombardment and Related Claims, December 19, 2005, paras
104-105 (finding Article 54(2) of Additional Protocol I to be
customary).
This provision implies that States have to verify the legality of

new weapons, means or methods of warfare, in accordance with
the Protocol and with their other treaty obligations, as well as in
accordance with their obligations under customary humanitarian
law. That is why the guide to the legal review of new weapons,
means and methods of warfare, published by the ICRC in 2006,
proposed that the legal framework of rules to be applied to new
weapons, means and methods of warfare, include prohibitions or
restrictions on specific weapons and general prohibitions or
restrictions on weapons, means and methods of warfare under
customary international law.55 In this respect, relevant prohibitions
and restrictions can be found in the ICRC’s study on customary
international humanitarian law.56
Notwithstanding that it is only explicitly mentioned in
Additional Protocol I, the obligation to submit new weapons,
means or methods of warfare to a legal review is not only
incumbent upon States party to Additional Protocol I. It seems
self-evident that any State wishing to comply with its humanitarian
law obligations has to proceed to such a review, for otherwise it
cannot ensure respect for humanitarian law by its armed forces.
Unfortunately, however, most States today, both States party to
Additional Protocol I and States not party, still lack a mechanism
for the legal review of new weapons, means, or methods of warfare.
55
See A Guide to the Legal Review of New Weapons, Means and
Methods of Warfare: Measures to Implement Article 36 of
Additional Protocol I of 1977 , ICRC, January 2006, Revised
November 2006, pp. 13-14 and 16.
56
See Customary International Humanitarian Law, supra note 41,
Rules 12-14, 44-45 and 70-86.
E . National Legislation
Pursuant to customary international law, States have an obligation
to investigate war crimes allegedly committed by their nationals
or armed forces, or on their territory and, if appropriate, prosecute
the suspects.57 In order to discharge this obligation, States will
need a proper legislative framework concerning war crimes,
regardless of whether or not they are party to treaties requiring
the adoption of war crimes legislation, such as the Geneva
Conventions and Additional Protocol I.58
In addition, under customary international law, States may
vest universal jurisdiction in their national courts over war
crimes.59 As a result, if States do not wish to see their nationals
prosecuted abroad but instead ask for their extradition to stand
trial at home, they will have to show that they have proper war
crimes legislation.
Finally, under the principle of complementarity, the
International Criminal Court will only prosecute a suspect if the
State concerned is either unable or unwilling to do so.60 In order
for a State to show that it is able to prosecute suspected war
criminals, it will be required to have proper war crimes legislation.
57
Rule 158.
58
See First Geneva Convention, Article 49; Second Geneva Convention,
Article 50; Third Geneva Convention, Article 129; Fourth Geneva
Convention, Article 146; Additional Protocol I, Article 85.
59
Rule 157.
60
17.
The fact that the Security Council can refer cases to the Court
involving States which are not party to the Statute of the Court
implies that all States are potentially concerned by the jurisdiction
of the International Criminal Court. Therefore, all States should
adopt national war crimes legislation, regardless of being a party
to specific treaties, including the Statute of the International
Criminal Court, or not.
V. C ONCL USION
ONCLUSION
The ever-increasing codification of humanitarian law, starting in

1864, means that this part of international law is today highly
codified. Nevertheless, in the big picture of the history of
mankind and of warfare, this codification is still a rather recent
phenomenon. Customary rules have regulated warfare for centuries
prior to the first codification and continue to do so today.
Impediments to the application of the wealth of existing treaty
law have contributed to a “revival” of customary humanitarian
law. Hence, any description or analysis of humanitarian law that
does not include an important section on customary humanitarian
law will be considered deficient and, in the end, of limited practical
value in today’s world.
C OMMAND R ESPONSIBILITY :
Q UO V ADIS ? ∗
C
ommand responsibility is an important legal tool for
international criminal tribunals in trying high-ranking
superiors for crimes committed by often unidentified
subordinates.1 As our distinguished speaker Dr. Jean-Marie
Henckaerts has just demonstrated, the command responsibility
doctrine—that military and other superiors may be held
criminally responsible in respect of the acts of their
subordinates —is well-established in conventional and
customary international law.2
As stated by Chairperson Leila M. de Lima, the doctrine of
command responsibility has echoes in the Articles of War. The
principle is also echoed under Philippine law. Executive Order
No. 226 dated February 15, 1995, entitled “Institutionalization
of the Doctrine of ‘Command Responsibility’ in All Government
Offices, Particularly at All Levels of Command in the Philippine
National Police and Other Law Enforcement Agencies,” holds
∗
Closing Remarks delivered at the Fourth Distinguished Lecture,
Series of 2008 , held on August 13, 2008, at the Court of Appeals,
Manila.
1
Joakim Dungel, Command Responsibility in International Criminal
Tribunals, in A Conspiracy of Hope: Report on the National
Consultative Summit on Extrajudicial Killings and Enforced
Disappearances (2007), 149.
2
Id. at 150, citing Prosecutor v. Delalic et al., Case No. IT-96-21-A,
Judgement, February 20, 2001, par. 195.
2009] COMMAND RESPONSIBILITY: QUO VADIS? 185
accountable for “neglect of duty,” under the doctrine of

“Command Responsibility,” those government officials or
supervisors, or officers of the Philippine National Police or of
any other law enforcement agency, if they have knowledge that a
crime or offense shall be committed, is being committed, or has
been committed by their subordinates, or by others within their
area of responsibility and, despite such knowledge, did not take
preventive or corrective action either before, during, or
immediately after its commission.3
Last year, the many extralegal killings and enforced
disappearances of political activists and members of the media
that have plagued our country since the start of the new
millennium have caused a reexamination of the doctrine of
command responsibility. Thus, in last year’s national consultative
summit on extrajudicial killings and enforced disappearances,
Father Joaquin Bernas urged the government to devise ways of
implementing the doctrine of command responsibility for the
commission of humanitarian abuses.4 Father Bernas recalled that
during the deliberations of the 1986 Constitutional Commission,
there was a proposal to adopt command responsibility as a
constitutional principle. The proposal, however, met with vigorous
objections on the ground of due process and the principle of
nullum crimen sine lege. No law, no crime. Father Bernas suggested
that these objections be studied in the light of the current state
of domestic and international law.5
3
For further information <http://www.congress.gov.ph/download/
researches/rrb_0307_3.PDF> (last accessed August 6, 2008).
4
Fr. Joaquin Bernas, SJ, Command Responsibility, in A Conspiracy
of Hope: Report on the National Consultative Summit on
Extrajudicial Killings and Enforced Disappearances (2007), 119.
5
Id. at 122.
Another constitutional expert who spoke at the national

consultative summit, Dean Pacifico Agabin, voiced out the view
that the doctrine of command responsibility should be applied
to as high up the chain of command as the President, who is the
Commander in Chief of the armed forces.6 Dean Agabin
proposed, first, that the Supreme Court adopt the doctrine of
command responsibility as enunciated in the Rome Statute; and,
second, that the presumption of knowledge adopted by the
President in Executive Order 226, Series of 1995, and by the
Armed Forces of the Philippines should be included as a rebuttable
presumption under Rule 131, Section 3 of the Rules of Court,
in connection with Section 28(b)(i) of the Treaty of Rome, which
requires that:
the superior knew, or consciously disregarded information
which clearly indicated, that the subordinates were
committing or about to commit such crimes.
He opined that if the recommendation were to be adopted,
the President would be held accountable for the omission or
inaction as Commander in Chief to take all necessary and
reasonable measures within his or her power to prevent; or to
repress the commission of irregularities and illegal acts, or to direct
the commanding officers concerned to investigate and prosecute
the perpetrators of the crimes. He concluded that this would
create a legal duty on the part of the President, as Commander in
Chief, to take necessary measures to prevent human rights
violations or to punish the perpetrators. The Supreme Court,
6
Pacifico Agabin, Accountability of the President Under the
Command Responsibility Doctrine, in A Conspiracy of Hope:
Report on the National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances (2007), 123.
2009] COMMAND RESPONSIBILITY: QUO VADIS? 187
however, avoided the issue when it issued the Rule on the Writ of
Amparo. It opted to give Congress, instead, the first crack at
determining the metes and bounds of command responsibility.
The Melo Commission, the independent commission created
by President Gloria Macapagal-Arroyo to address media and
activist killings, also recommended that the President propose
legislation that would penalize superior government officials who
encourage, incite, tolerate, or ignore any extrajudicial killing
committed by their subordinates. The Commission suggested
that the failure of such government officials to prevent an
extrajudicial killing if they had a reasonable opportunity to do
so, or their failure to investigate and punish their subordinates, or
to otherwise take appropriate action to deter or prevent the
commission of the crime or to punish their erring subordinates,
should be criminalized. The Commission suggested that even
“general information” like media reports that would place the
superiors on notice of possible unlawful acts of their subordinates,
should be sufficient to hold the superiors criminally liable if they
failed to investigate and punish those subordinates.7
We have bills filed in the Senate and in the House of
Representatives. Unfortunately, none of these bills have come
into fruition. Evidently, these have failed to negotiate the various
slippery slopes of command responsibility. Meanwhile, the killings
and disappearances continue. Worse, a de facto war has been
rekindled in the south between the government forces and the
Moro Islamic Liberation Front, a war where several have died
and thousands rendered homeless. But, while the guns are firing,
the laws are silent.
7
Independent Commission to Address Media and Activist Killings
Report, at p. 71 (The Melo Report).
In one of his most memorable passages, the late former United

States Supreme Court Justice Oliver Wendell Holmes remarked:
The life of the law has not been logic; it has been experience.
The felt necessities of the time, the prevalent moral and
political theories, intuitions of public policy, avowed or
unconscious, even the prejudices which judges share with
their fellow men, have had a good deal more to do than
the syllogism in determining the rules by which men should
be governed. The law embodies the story of a nation’s
development through many centuries, and it cannot be dealt
with as if it contained only the axioms and corollaries of a
book of mathematics.8
Just as the Court’s expanded powers under the 1987
Constitution were compelled by the human rights abuses of the
martial law regime, so are the recent initiatives of the different
departments of our government – like the new rules on the Writs
of Amparo and Habeas Data – the products of the new forms of
human rights abuses that stalk our country today. The suggestions
from our different speakers, especially the views of our
distinguished lecturer with respect to the doctrine of Command
Responsibility – its application, scope, and limitations – should
also be viewed through the lens that inspired them: the highest
respect for the highest of rights—the right to life. We thank all
of them for bringing to us the latest worldviews on command
responsibility.
Thank you and good day.
8
<http://www.law.harvard.edu/library/collections/special/online-
collections/common_law/index.php> (last accessed August 6,
2008).
and the
present
The Fifth Distinguished Lecture

Series of 2008
COMMAND RESPONSIBILITY:
FROM INTERNATIONAL
CRIMINAL TRIBUNALS
by
Professor Fausto Pocar

President, International Criminal Tribunal
for the Former Yugoslavia
Thursday, November 27, 2008, 2:30 P.M.

Court of Appeals Auditorium
Court of Appeals
Maria Orosa Street, Manila
and
Davao City, via video conferencing
(Royal Mandaya Hotel)
Program
Invocation
HONORABLE CONCHITA CARPIO MORALES

SUPREME COURT CHOIR
Greetings
HONORABLE CONRADO M. VASQUEZ, JR.
Presiding Justice, Court of Appeals
Opening Remarks
HONORABLE ANTONIO EDUARDO B. NACHURA
SUPREME COURT CHOIR

LECTURE
PROFESSOR FAUSTO POCAR
Panel of Reactors
Associate Justice
Supreme Court
HONORABLE LEILA M. DE LIMA

Chairperson
Commission on Human Rights
Presentation of Plaques of Appreciation
by
Presiding Justice Conrado M. Vasquez, Jr.
Closing Remarks
Chief Justice
Supreme Court Hymn

Court of Appeals Hymn
DR. PURIFICACION V. QUISUMBING
Chairperson
Department of International and Human Rights Law
Justice Antonio T. Carpio∗∗
C
hief Justice Reynato S. Puno
My esteemed colleagues in the Court
Appeal Judge Fausto Pocar
Chancellor Ameurfina A. Melencio Herrera
Excellencies of the Diplomatic Corps
Justices of the Court of Appeals, Sandiganbayan, and
Court of Tax Appeals
My co-workers in the Judiciary
Distinguished guests, friends,
Good afternoon.
∗
Opening Remarks delivered at the Fifth Distinguished Lecture, Series
of 2008, held on November 27, 2008, at the Court of Appeals
Auditorium, Court of Appeals, Manila.
∗∗
Born in Davao City, Philippines, Justice Antonio T. Carpio was
sworn in as member of the Supreme Court on October 26, 2001.
He obtained his law degree from the College of Law of the
University of the Philippines where he graduated valedictorian
and cum laude in 1975. He placed sixth in the 1975 Bar
Examinations. He earned his undergraduate degree in Economics
from Ateneo de Manila University in 1970.
As a student, he was Chairman of the Editorial Board of the
Philippine Law Journal of the U.P. College of Law and Editor in
Chief of The Guidon, the school paper of Ateneo de Manila
University. He was also Managing Editor of the Philippine
Collegian, the school paper of the University of the Philippines.
On behalf of the Supreme Court, I warmly welcome everyone

to this Fifth Distinguished Lecture for 2008. This lecture is
jointly sponsored by the Supreme Court and the Philippine
Judicial Academy. The Distinguished Lecture Series of the
Supreme Court is the most prestigious law lecture in the
Philippines. For this afternoon’s lecture, which is the last lecture
for this year, we have an internationally renowned legal scholar,
Appeal Judge Fausto Pocar, who will enlighten us on the topic
Command Responsibility: From International Criminal Tribunals
to National Jurisdictions.
Fresh out of law school, Justice Carpio entered private practice

until 1992. He was a Professorial Lecturer of the U.P. College of
Law (1983-1992) when he was appointed Chief Presidential Legal
Counsel, Office of the President of the Philippines.
Justice Carpio was a member of the Board of Regents of the
University of the Philippines (1993-1998), and of the Technology
Transfer Board of the Department of Industry (1978-1979). He
served as Special Representative of the Department of Trade for
textile negotiations (1980-1981); as President of the Integrated Bar
of the Philippines Pasay-Makati Chapter (1985-1986), as Director
of the U.P. Law Alumni Association (1984-1989), and as Director
of the Philippine Bar Association (1989-1990).
For his “distinguished and exemplary service” to the Republic, Justice
Carpio was awarded in 1998 the Presidential Medal of Merit by
then President Fidel Ramos. In 1991, he received the Outstanding
Achievement Award in Law from the Ateneo de Manila Alumni
Association. In 2002, he was the recipient of the Distinguished
Alumnus Award from the Ateneo de Davao Alumni Association.
In 2009, he was conferred a Doctorate of Laws, honoris causa, by
the Ateneo de Davao University.
Justice Carpio is the Chair of both the Second Division and the
Senate Electoral Tribunal in the Supreme Court.
The topic is timely, both domestically and internationally.

Domestically, the concept of command responsibility has slowly
crept into the consciousness of the Filipino people because of
the extralegal killings supposedly attributed to agents of the State.
Command responsibility was one of the major topics discussed
in the National Summit on extralegal killings initiated by Chief
Justice Puno last July 2007.
Internationally, the creation of ad hoc international criminal
tribunals in the wake of internal armed conflicts in countries like
the former Yugoslavia and Rwanda has greatly developed and
refined the concept of command responsibility, culminating in
the adoption of the Rome Statute that created the International
Criminal Court. The Philippines has not ratified the Rome Statute.
However, our Constitution adopts customary international law
as part of the law of the land. It is well recognized that the
doctrine of command responsibility is part of customary
international law.
The concept of command responsibility goes back deep into
the mist of history. In the sixth century B.C., Sun Tzu wrote in
The Art of War that the commander has the duty to ensure that
his subordinates behave in a civilized manner during an armed
conflict. The first trial based on this commander’s duty took
place in 1474 when one of the knights of Charles the Bold of
Burgundy was convicted for failing in his duty as a knight to
prevent soldiers under his command from committing war crimes.
The trial that gave rise to the first truly legal definition of
command responsibility – called the Yamashita Standard – was
held in the Philippines in the case of In Re Yamashita. General
Yamashita was tried in Manila in 1945 by a military tribunal of
five American generals. He was convicted, and hanged, for failing
to discharge his duty as commander – the duty to prevent his

soldiers from committing atrocities against civilians in Luzon.
The original records of the trial of Yamashita are still on file with
our Supreme Court Library, which plans to digitize them for
easier access by researchers.
This afternoon, we are delighted that no less than the former
President of the International Criminal Tribunal for the Former
Yugoslavia will bring us up to date on the latest developments on
the doctrine of command responsibility.
I am sure you will all find this lecture fascinating and
worthwhile. Thank you and good day.
COMMAND RESPONSIBILITY
RESPONSIBILITY::
FROM INTERN
FROM INTERNA ATION AL CRIMIN
TIONAL CRIMINALAL
TRIB UN
TRIBUN ALS TO NA
UNALS TION
NATION AL
TIONAL
JURISDICTIONS ∗
Professor Fausto Pocar
Judg
udgee FFausto
austo P ocar is a Professor
Pocar
of International Law at the
University of Milan, where he had
served as Dean of the Faculty of
Political Sciences and as Vice Rector.
He became a member of the
International Criminal Tribunal for
the former Yugoslavia in 2000, serving
as Vice President (2003), and as
President (2005-2008).
Since his appointment to the
ICTY, he has served first as a Judge
in a Trial Chamber, sitting on the first
case of rape as a crime against humanity
and later in the Appeals Chamber. He Representative of the UN High
is also Appeals Chamber Judge of the Commissioner for Human Rights for
International Criminal Tribunal for visits to Chechnya and the Russian
Rwanda, participating in the adoption Federation. He has also chaired the
of the final judgments in several ICTY informal working group that drafted the
and ICTR cases heard at The Hague Declaration on the rights of national or
and at Tanzania. ethnic, religious or linguistic minorities
adopted in 1992 by the General Assembly.
His 16-year experience in the UN
(1984-2000) includes being rapporteur A prolific author of publications on
of the Human Rights Committee under International Law, he has also lectured at
the International Covenant on Civil and The Hague Academy of International
Political Rights, and being Special Law.
∗
Delivered at the Fifth Distinguished Lecture, Series of 2008, held
on November 27, 2008, at the Court of Appeals Auditorium, Court
of Appeals, Manila.
I. I NTRODUCTION
NTRODUCTION
F
irst of all, I would like to thank you very much for your
warm welcome and for having invited me to deliver this
Distinguished Lecture.
The starting point of most of the international scholars’
books and articles focusing on Command Responsibility (also
defined as Superior Responsibility in the past decades, in order to
account for its civilian nature) is usually exactly Manila, the very
city where I have the honor to address you today. Indeed, the
first world-famous judgment focusing on command responsibility
was rendered in the trial against Tomoyuki Yamashita, the
commanding general of the Japanese Army in the Philippines
who was convicted and sentenced to death by a US military
commission for the atrocities committed by the Japanese troops
under his command. The case eventually reached the US Supreme
Court, which upheld the conviction in a split decision over
vigorous dissent.
The origins of the superior responsibility doctrine can be
traced back to principles espoused much before that date, however,
and they have their roots in the duties of military commanders
to ensure discipline in their troops. Moreover, at least in the
Western tradition, at least since the 17th Century, a rule is deemed
to exist that public officials, up to the highest level of authority,
must answer when they do not prevent certain illegal acts by their
subordinates:
Ex neglectu tenentur reges ac magistratus qui ad inhibenda
latrocinia et piraticam non adhibent ea quae possunt ac
debent remedia.1
1
Hugo Grotius, De iure belli ac pacis libri tres, Book 2, Ch. XVII,
para. 20 (1625), See also Ch. XXI, para. 2.
2009] COMMAND RESPONSIBILITY: FROM INTERNATIONAL 199
CRIMINAL TRIBUNALS TO NATIONAL JURISDICTIONS
Contemporary imposition of an affirmative duty on military

commanders to prevent war crimes is usually traced to the Hague
Conventions of 1907, whereby it was stated that “laws, rights
and duties of war” apply to armies, militias, and volunteer corps
that are “commanded by a person responsible for his subordinates,”
and where it was affirmed are occupants of foreign territory, is
required to “take all measures in his power to restore, and ensure,
as far as possible, public order and safety.”2 However, it was not
until the period after the Second World War that this doctrine
was clearly linked to criminal responsibility and obtained a
more precise meaning, which was further clarified by the
jurisprudence of the ad hoc International Criminal Tribunal,
and which ultimately served as the basis of Article 28 of the
Rome Statute.
Together with the Yamashita case, of course, Nuremberg also
gave its contribution to the evolution of the doctrine, notably
with the List and others case (also known as Hostages case), and
the von Leeb and others case (also known as High Command
case). However, for some reasons, the Yamashita case is much
more quoted and referred to than its Nuremberg analogues,
probably because the criticism of the Yamashita decision was
immediate and has not abated in the intervening half-century.
Indeed, in many ways, the evolution of the doctrine of command
responsibility has consisted of reactions and counter-reactions to
the Yamashita case.
The military commission which judged Yamashita based his
conviction on the fact that the atrocities committed by the
Japanese army “were not sporadic in nature but in many cases
were methodically supervised by Japanese officers and non-
2
Second Peace Conference of the Hague, Arts. 1 and 43.
commissioned officers” and that General Yamashita “failed to

provide effective control over his troops as required by the
circumstances.” The criticism addressed toward the judgment
focuses essentially on two points.
First, as to the mens rea, it has been argued that, while the
evidence of widespread and vicious crimes by the Japanese forces
was clear, there was no sufficient evidence of General Yamashita’s
kno wledg
wledgee of
knowledg of,, and in
invvolvement in these crimes. Some critics,
olvement
including Justice Rutledge in his dissent before the US Supreme
Court, have said that the commission applied a standard
tantamount to strict liability or guilt by association. Second, it
has been claimed that the Yamashita case set a too low (and in any
event totally unclear) standard, as to the level of effective control
a commander must possess to be held liable pursuant to this
doctrine. According to Justice Murphy’s dissent, for example,
Yamashita was unable to do anything to control his troops, owing
to the chaotic circumstances of the battle and the fact that US
military counter-offensive had effectively cut off his chain of
command and communication. To require that he prevented and
punished crimes in such a situation also amounted to effectively
imposing on him something akin to strict liability.
It should be said immediately that the doctrine of superior
responsibility has developed considerably since 1946. Each
element of this form of liability has been deeply explored and
clarified; the standards of both mens rea and effective control
have been progressively refined; a rich body of case law has been
produced and evidentiary requirements for holding a superior
responsible have been abundantly tested in practice.
The work of the ad hoc international criminal tribunals have
been crucial in drawing the trajectories of this evolution, together
with the contribution of scholars, and the commitment of the

international community to provide a codification of the
requirements for a superior to be held criminally responsible under
the law of nations.
After analyzing the concept of superior responsibility under
customary international law pursuant to International Criminal
Tribunal for the former Yugoslavia (ICTY) and International
Criminal Tribunal for Rwanda (ICTR) jurisprudence, I will deal
with its incorporation in the Statute of the International Criminal
Court. While there are a few differences between these instruments,
I will not dwell on them too much, in order to be able to move
some examples of how the theory has been incorporated into
some domestic legal systems. In this respect, I will limit myself
to a few chosen instances. Finally, I will explore how the doctrine
has been applied in two national jurisdictions, very different one
from the other.
II. S UPERIOR R ESPONSIBILITY IN THE

J URISPRUDENCE OF THE AD HOC T RIB
URISPRUDENCE UN
RIBUN ALS
UNALS
Article 7(3) of the ICTY Statute – analogous to Article 6(3)

of the ICTR Statute, reads:
The fact that any of the acts referred to in Articles 2 to 5
of the present Statute was committed by a subordinate
does not relieve his superior of criminal responsibility if
he knew or had reason to know that the subordinate was
about to commit such acts or had done so and the superior
failed to take the necessary and reasonable measures to
prevent such acts or to punish the perpetrators thereof.
The tribunal has therefore developed a rich jurisprudence for

interpreting this provision – jurisprudence that is relevant as
evidence of the present status of customary international law on
this issue. I will leave aside the theoretical discussions on the
nature of command responsibility and will instead focus on its
three elements and its proof.
A. Superior -Subor
Superior-Subor dinate R
-Subordinate elationship and Ef
Relationship Efff ecti
ectivv e
Control
The existence of a superior-subordinate relationship is
characterized by a hierarchical relationship, whether formally
recognized within a domestic legal system (de jure) or not (de
facto).3 What must be shown is that the superior had “effective
control” based on a duty to exercise his or her authority “so as to
prevent and repress the crimes committed” by their subordinates.4
To have “effective control,” a superior must have more than
mere influence.5 What is required is the material ability within
the existing superior-subordinate relationship, directly or
indirectly,6 to prevent, punish, or to initiate measures leading to
proceedings against alleged perpetrators where appropriate.7 Thus,
mere formal de jure authority is not sufficient to establish the
3
Celebici Appeals Judgement, paras. 193, 197, 303.
4
Celebici Appeals Judgement, para. 197, citing Celebici Trial
Judgement, para. 377; see also Celebici Appeals Judgement, para.
240; Aleksovski Appeals Judgement, para. 76.
5
Celebici Appeals Judgement, para. 266.
6
7
Celebici Appeals Judgement, paras. 192, 255-256; Blaškic Appeals
Judgement, para. 69.
first tier of the rest.8 Whereas the possession of de jure powers

may certainly suggest a material ability to prevent or punish
criminal acts of subordinates, it may be neither necessary nor
sufficient to prove such ability.9 The possession of de jure
authority, without more, provides only some evidence of such
effective control.10
In all circumstances, “it is appropriate to assess on a case-by-
case basis the power of authority actually devolved on an
accused,”11 taking into account the cumulative effect of the
accused’s various functions.12
It could be said that a weakness of the present formulation
of the doctrine of this element of superior responsibility is the
requirement to prove beyond reasonable doubt that the superior
had the material ability to prevent or punish the criminal conduct
of its members. If the superior, in other words, consciously hires
mercenaries or uses other paramilitary groups without effective
subordination with his chain of command, he will not be
responsible for superior responsibility (although he might of
course be responsible under other forms of liability, such as
instigating, aiding and abetting, or as a co-perpetrator x x x).13
8
9
See Halilovic Appeals Judgement, para. 85. Cf. also Nahimana et
al. Appeal Judgement, paras. 625 and 787, fn. 1837.
10
Oric Appeals Judgement, para. 92.
11
Bagilishema Appeals Judgement, para. 51, endorsing the finding in
the Musema Trial Judgement, para. 135.
12
Stakic Trial Judgement, para. 494.
13
See, in this respect, Hadzihasanovic Appeals Judgement, paras. 194-
231.
B. Kno wledg
wledgee
Knowledg
As regards the mental element of superior responsibility, it must
be established that the superior knew or had reason to know that
his or her subordinate was about to commit or had committed a
crime. As discussed above, Yamashita has been abandoned and
nowadays, superior responsibility is not a form of strict liability.14
It must be proved that the superior had:
1. actual knowledge, established through direct or
circumstantial evidence, that his or her subordinates were
about to commit, were committing, or had committed
crimes within the jurisdiction of the Tribunal;15 or
2. constructive knowledge, meaning that the superior had
in his or her possession information that, in the specific
circumstances of the case,16 would at least put him or her
14
Celebici Appeals Judgement, para. 238-9; Bagilishema Appeals
Judgement, para. 28.
15
In the jurisprudence of the Tribunal, circumstantial evidence of
“actual knowledge” has been found to include the number, type and
scope of the illegal acts; the period over which the illegal acts
occurred; the number and type of troops involved; the logistics
involved, if any; the geographical location of the acts; the widespread
occurrence of the acts; the speed of the operations; the modus
operandi of similar illegal acts; the officers and staff involved; and
the location of the superior at the time (Celebici Appeals Judgement,
para. 386).
16
Celebici Appeals Judgement, para. 239; Bagilishema Appeals
Judgement, para. 37 (“the Trial Chamber established that Bagilishema
neither knew nor possessed information which would have enabled
him to conclude, in the circumstances at that time, that the murders
had been committed or were about to be committed by his
subordinates”).
on notice of the risk of such offenses and alert him or

her to the need for additional investigation to determine
whether such crimes were about to be committed, were
being committed, or had been committed by his or her
subordinates.17 Information available to the superior need
not be explicit or specific.18
C. Failure to Act
Finally, it must be established that the superior failed to take the
necessary and reasonable measures to prevent future crimes or to
punish past crimes of the subordinates.19
With regard to the meaning of “necessary and reasonable
measures,” “necessary” measures are the measures appropriate for
the superior to discharge his obligation (showing that he genuinely
tried to prevent or punish) and “reasonable” measures are those
17
Celebici Appeals Judgement, para. 241. “In possession of ” means
that the commander is not required to have actually acquainted
himself with the information. Celebici Appeals Judgement, para.
239. Wilful blindness is clearly covered by this provision, since it
presupposes that would put the accused on notice of the risk of
offenses.
18
Celebici Appeals Judgement, para. 238. The ICTR Appeals Chamber
in Bagilishema, para. 42, cautioned that a distinction is necessary
between knowledge of the general situation that prevailed in the
country at the time (which would not be enough to raise the level
of awareness to constructive knowledge) and the fact that the accused
had in his possession information which put him on notice that his
subordinates might commit crimes.
19
Blaškic Appeals Judgement, para. 83.
reasonably falling within the material powers of the superior.20

What constitutes “necessary and reasonable” measures to fulfill a
commander’s duty is not a matter of substantive law but of
evidence.21 Such measures are those that can be taken within the
competence of a commander as evidenced by the degree of
effective control he wields over his subordinates.22 Both of these
terms must be interpreted as being applicable under the prevailing
circumstances, i.e., taking into account the specific circumstances
of the case.
The superior’s duty to prevent and punish his or her
subordinates’ crimes includes at least an obligation to investigate
the crimes to establish the facts and to report them to competent
authorities, if the superior does not have the power to sanction
20
Halilovic Appeals Judgement, para. 63, referring to: Article 86 of
Additional Protocol I provides that superiors are responsible if,
inter alia, “[t]hey did not take all feasible measures within their
power to prevent or repress the breach”; in this respect, the ICRC
Commentary explains that, for a superior to be found responsible,
it must be demonstrated that the superior “did not take the measures
within his power to prevent it” and elaborates that these measures be
“feasible” measures, since it is not always possible to prevent a breach
or punish the perpetrators” (ICRC Commentary, paras. 3543 and
3548, emphasis added); Article 87 adds the duty to “initiate such
steps as are necessary to prevent such violations [x x x] and, where
appropriate, to initiate disciplinary or penal action against violators
thereof.” See also US v. Karl Brandt et al., in TWC, Vol. II, p. 212
(“The law of war imposes on a military officer in a position of
command an affirmative duty to take such steps as are within his
power and appropriate to the circumstances to control those under
his command x x x”).
21
22
him or herself.23 The issuance of general guidelines of standing

orders of a mere formal nature on the respect of human rights
obligations clearly does not suffice to show that the necessary and
reasonable measures have been taken.
III. C ONCLUSIONS ON ICTY AND

ICTR J URISPR UDENCE R EGARDING
URISPRUDENCE
M ILITAR
ILITAR
ARYY S UPERIOR R ESPONSIBILITY
The ad hoc Tribunals have therefore adopted a rigorous approach

in defining the requirements of command responsibility in order
to keep the doctrine in line with the basic principles of individual
criminal liability. These requirements are very difficult to establish
beyond reasonable doubt.
The most part of convictions under the doctrine of command
responsibility all concern military commanders, more precisely
mid- or low-level commanders. These have generally been found
guilty of war crimes, that is, the most traditional breaches of
military commander’s duty of supervision under international
humanitarian law. Recent case law shows that command
responsibility is not the most appropriate form of liability to
deal with political or military leaders, that is, accused persons too
remote from the direct perpetrators of international crimes.
However, the doctrine has been successful with respect to
international crimes committed in typical military contexts, as
23
Kordic Trial Judgement, para. 446. Blaškic Trial Judgement, para.
335. However, the measures are “inextricably linked to the facts of
each particular situation” and to the “type and nature of the effective
control exercised by the accused over his subordinates.” Celebici
Appeals Judgement, para. 394.
for example during the conduct of hostilities, by small

hierarchically organized structures.
IV
IV.. E XTENSION OF C OMMAND R ESPONSIBILITY
TO C IVILIAN S UPERIORS
With regard to military superiors, the source of superior

responsibility is well entrenched in international customary law,
as shown by a host of international instruments24 and judicial
determinations.25 With regard to civilian superiors, Celebici
24
See , among others, Con Convvention fforor the Amelioration of the
Condition of the Wounded and Sic Sickk in Ar mies in the
Field of 1929 (Article 26: “The Commanders in Chief of
belligerent armies shall arrange the details of carrying out the
preceding articles as well as for cases not provided for in accordance
with the instructions of their respective Governments and in
conformity with the general principles of the present Convention”);
Additional Pr otocol I of 1977 (Article 43(1): “armed forces
Protocol
of a Party to a conflict consist of all organized armed forces,
groups and units which are under a command responsible to that
Party for the conduct of its subordinates”); Additional Pr otocol
Protocol
II of 1977 (Article 1: “armed forces and dissident armed forces
or other organized armed groups which, under responsible
command”). T he Commentar y to the Two Additional
Pr otocols of 1977 to the Gene
Protocols Genevv a Con
Convv entions of 1949
states: “As there is no part of the army which is not subordinated to
a military commander at whatever level, this [superior] responsibility
applies from the highest to the lowest level of the hierarchy, from
the Commander in Chief down to the common soldier who takes
over as head of the platoon.” (ICRC Commentary on the Additional
Protocols, para. 3553).
25
With specific reference to an “organized armed force,” the Appeals
Chamber has stated: “It is evident that there cannot be an organized
military force save on the basis of responsible command. It is also
Appeals Chamber stated that while the nature of civilian and

military authority might be different,26 “the doctrine of superior
responsibility extends to civilian superiors only to the extent that
they exercise a degree of control over their subordinates which is
similar to that of military commanders.”27
The difficulty with civilian authorities is that, in general, they
do not have the powers and responsibility to prevent and punish
crimes by their own subordinates, which is the foundation of
command responsibility in the first place. These powers to prevent
reasonable to hold that it is responsible command which leads to
command responsibility,” Hadzihasanovic Jurisdiction Decision, para.
16.
26
Celebici Appeals Judgement, para. 256; see also Bagilishema Appeals
Judgement, paras. 49-56. With regard to the duties binding different
kinds of civilian authorities, see for example, the cases of: Yuicki
Sakamoto (in Law Reports, Vol. IV, p. 86), Mucic (in Celebici
Trial Judgement, paras. 737-67;1240; 1250), Krnojelac (in Krnojelac
Trial Judgement, paras. 316-320, affirmed on appeal, para. 63) on
the duty of commanding officers or wardens of prison camps;
Roechling and others, (in TWC, Vol. 14, pp. 1061, 1067-1071, 1088)
on the duty of persons holding prominent posts both in public
bodies and at the head of plants employing forced labor (leading to
conviction); Kuniaki Koiso and Hideki Tojo, Prime Ministers
and/or War Ministers on the duty of suc suchh ministers to
contr
controlol militar operations, in The Tokyo Judgement, Vol. I,
militaryy operations
pp. 452-453; 461-463, (leading to conviction for war crimes); Koki
Hirota, Mamoru Shigemitsu and Shigenori Togo, F or eign
oreign
Ministers
Ministers, on the duty to take steps to prevent criminal conduct
within the Cabinet of Ministries as members of the government, in
The Tokyo Judgement, Vol. I, pp. 446-448; 457-458; 461 (leading
to conviction for war crimes except in the case of Togo).
27
Celebici Appeals Judgement, paras. 197 and 256.
or punish, flowing from the general duties to provide instructions

and control subordinates, are implied in a military structure. Thus,
when the evidence shows that the superior-subordinate relationship
is of the military nature envisaged by the laws of armed conflict,
there is a presumption that the functions of the superior include
that of controlling the subordinates, as well as preventing or
punishing unlawful behavior. However, since the same
presumption does not apply to a civilian superior-subordinate
relationship (especially a de facto one), prosecuting authorities
will have to show that this type of power existed when it is seeking
to establish superior responsibility for a civilian. This is rather
easily done in cases of police or of prison wardens, who are not
military people but enjoy powers and responsibilities very similar
to those of a military command structure. It might be more
difficult in other situations.
V. S UPERIOR R ESPONSIBILITY
IN THE R OME S TATUTE OF THE ICC
The difference is quite clear in Article 28 of the Rome Statute,

which clearly distinguishes between the command responsibility
of military commanders, addressed in paragraph (a); and the
responsibility of non-military superiors, or civilian superiors,
considered in paragraph (b).
(a) A military commander or person effectively
acting as a military commander shall be criminally
responsible for crimes within the jurisdiction of the
Court committed by forces under his or her effective
command and control, or effective authority and
control as the case may be, as a result of his or her
failure to exercise control properly over such forces,
where:
(i) That military commander or person either

knew oror,, oowing
wing to the cir cumstances at
circumstances
the time, should ha havv e kno wn that the
known
forces were committing or about to commit
crimes; and
(ii) That military commander or person failed to
take all necessary and reasonable measures within
his or her power to prevent or repress their
commission or to submit the matter to the
competent authorities for investigation and
prosecution.
(b) With respect to superior and subor dinate
subordinate
relationships not described in paragraph (a) (a), a
superior shall be criminally responsible for crimes within
the jurisdiction of the Court committed by
subordinates under his or her effective authority and
control, as a result of his or her failure to exercise control
properly over such subordinates, where:
(i) The superior either knewknew,, or consciousl
consciouslyy
disr
disree g ar ded inf
arded or mation w
infor hic
hichh cclear
whic lear
learll y
indicated, that the subordinates were
committing or about to commit such crimes;
(ii) T he crimes concer ned acti vities that
activities
were within the effective responsibility
and contr ol of the superior ; and
control
(iii) The superior failed to take all necessary and
reasonable measures within his or her power
to prevent or repress their commission or to
submit the matter to the competent authorities
for investigation and prosecution.
As it is clear from the above, the main differences of treatment

between military and non-military superiors under the ICC regime
are two:
First, it would seem that Article 28(a) imposes individual
responsibility on military commanders for crimes committed by
forces under their effective command and control if they ‘either
knew or x x x should have known that the forces were committing
or about to commit such crimes.’ The main advantage of such an
approach is that it serves as a deterrent, giving incentive to a
commander to be aware of what his subordinates are doing. A
more lenient standard would allow superiors if they negligently
failed to carry out their duty to institute a proper reporting system
and never received reports of the subordinates’ actions. On the
contrary, for non-military superiors, they must have known or
have consciously disregarded knowledge of the crimes. Such a
standard, which provides more leeway for non-military superiors,
is probably premised on the circumstances that civilian superiors
do not usually have a strict reporting mechanism at their disposal,
nor a duty to use it. Therefore, in order for liability not to become
strict (or objective) liability, such superiors must be shown to
have consciously disregarded knowledge of the crimes. Of course,
most of this will hinge upon how these provisions will in concreto
be interpreted by the International Criminal Court.
The second difference is that, owing to the peculiar situation
of civilian superiors (who do not have duties and obligations
stemming from customary international law), it is necessary to
prove that the crimes in question concerned activities that were
within the effective responsibility and control of the superior.
This is of course necessary to avoid charging, for example,
politicians for any crime occurring under their watch, regardless
of whether they were in a position of actual authority in relation

to the perpetrators.
VI. T HE I MPLEMENTATION OF A RTICLE 28

MPLEMENTA
OF THE ICC S TATUTE IN D OMESTIC L EGISLATIONS
EGISLATIONS
According to Article 5 of the ICC Statute, the core crimes “within

the jurisdiction of the court” are genocide, crimes against humanity,
war crimes, and, once defined, aggression. Auxiliary offenses
directed against the administration of justice are contained in
Article 70 of the ICC Statute.
While no direct obligation of States to create international
crimes in their domestic legal order is contained in the ICC Statute,
the principle of complementarity, on which the Rome Statute is
built, clearly presupposes that States exercise their own jurisdiction
over persons alleged to have committed the most serious
international crimes. Article 17(a)(b) of the Rome Statute
provides in fact that the ICC shall determine that a case is
inadmissible, when it is being investigated or prosecuted by a
State which has jurisdiction over it, unless the State is unwilling
or unable genuinely to carry out the investigation or prosecution.
These provisions are clearly drafted on the assumption that
States would have incorporated international offenses in their
domestic codes. The sixth paragraph of the preamble to the ICC
Statute states that “it is the duty of every State to exercise its
criminal jurisdiction over those responsible for international
crimes.” Such exercise of criminal jurisdiction of States obviously
presupposes that international crimes exist in the domestic legal
orders, or implies that States, if they have not already done so,
create or incorporate offenses such as genocide, crimes against
humanity and war crimes in their domestic legal order. Thus, the
ICC will have jurisdiction over crimes.
But, is it sufficient that national legislations incorporate the
four categories of crimes listed in Article 5 of the ICC Statute,
in order to ensure that domestic systems adequately reflect
substantive international criminal law, as codified in the Rome
Statute? Would it be enough for the complementarity standard
to be satisfied?
As is well known, in most of the criminal law systems of the
world (although more clearly in the civil law systems), criminal
law is usually composed of two sections: the so called “general
part” including principles, norms on the applicable law, definitions
of the general requirements of the actus reus and mens rea, forms
of liability, regulation on the system of sanctions, and so on
x x x ; and the so called “special part” including the specific offenses
which each State’s legislator intended to criminalize. Of course,
the border between a criminal and non-criminal conduct depends
not only upon the number and nature of offenses included in
the special part, but also on the features of the general part.
Thus, a domestic judicial system pr obab
obablly w
probab ould not
would
pass the text of complementarity (in the event the need
would arise), if national criminal law would inc lude def
include enses
defenses
expressly rejected by the Rome State, such as the obedience to
superior orders; nor a domestic judicial system would pass the
complementarity text if it would declare applicable the statute
of limitation to genocide, or to crimes against humanity,
provided that the prosecution of these crimes, in the light of
their exceptional gravity, is not affected nor in any way limited
because of the time passed since the moment they were committed;
the same result would be produced by a national legislation
admitting that the regime of immunities apply to a head of

state, for example, accused of one of the crimes listed in Article 5
of the ICC Statute – provided that, under customary international
law, as endorsed by the Rome Statute, immunities may not be
opposed by individuals accused of crimes.
Having traced the general coordinates of our reasoning, the
specific question we aim to answer is: how does Article 28 of the
ICC Statute—and its discipline of superior responsibility—
interact with the principle of complementarity? Is it necessary
for each State party to reproduce the specific contents of Article
28 in its own national legislation?
As it often happens, the answer to this complex question is
“it depends.” It notably depends from the pre-existing contents
of domestic criminal law systems. T he principle of
complementarity,, in ffact,
complementarity act, mer el
elyy rrequir
merel equir
equires esult
es a rresult
esult; it does
not prescribe the instruments through which the result is to be
reached. The goal is to make sure that domestic judicial system
would be adequate to prosecute international criminals in the
same cases over which the ICC could exercise its jurisdiction.
Thus, national courts of State parties need to be provided
by the legislature with the legal instruments necessary to attribute
criminal responsibility to both military and civilian superiors for
the failure to prevent and punish crimes committed by their
subordinates, according to the standards enshrined in Article 28
of the ICC Statute. Conversely, it is up to the States’
discretion the evaluation whether this goal is to be
pursued bbyy rree pr oducing the full w
producing or
wor ding of Ar
ording tic
Artic le 28
ticle
of the ICC Statute in the domestic legislation; or whether
it is enough to rely, for example, on a general norm providing
that all omissions are punishable if they resulted in the commission
of that crime; or, further, whether a multitude of specific offenses

listed in national criminal codes, when considered cumulatively,
are sufficient to “cover” the area occupied by superior
responsibility in the framework of the Rome Statute.
An overview of the steps undertaken by some State parties
in order to implement Article 28 will provide a clear idea of the
variety of the possible solutions. The different attitude of
common law and civil law systems will be clear.
VII. C ERTAIN S OL
ERT UTIONS A DOPTED
OLUTIONS
TO I MPLEMENT A RTICLE 28 OF THE ICC
S TATUTE IN N ATION
TIONALAL L EGISLATIONS
EGISLATIONS
A. Common Law Countries: Australia, New Zealand,

Canada, and UK
The common law countries’ approach to the implementation of
the Rome Statute is such that, usually, implementation acts do
not incorporate the general principles of law set out in the Rome
Statute – for instances, defenses and forms of secondary liability.
This is primarily because there is generally little difference between
them and the corresponding provisions in common law countries’
existing legal systems; and it is considered that it would be better
for national courts to deal with what is already familiar to them.
A common exception to this trend is the issue of superior
responsibility, which is often given specific mention in
Implementation Acts, in the light of the circumstance that superior
responsibility was usually unknown in various domestic
legislations.
Some countries have chosen the most straightforward solution
to deal with superior responsibility, adopting verbatim the
definition provided in Article 28 of the Rome Statute. This is

the case of Australia and New Zealand, for example, which
passed their Implementation Acts, respectively, in 2002 and 2000.
Conversely, the need for consistency with other domestic
principles of criminal law has led the United Kingdom and Canada
to depart, in some points, from the provision of the Rome Statute.
The main concern expressed by the legislators of these two
countries, in the respective implementation acts, related to the
possibility of considering a superior as a direct participant in the
subordinate’s crime, when he or she did not possess intent or
knowledge.
Thus, as to the United Kingdom, in the International
Criminal Court Act 2001, entered into force in September 2001,
the scope of command responsibility is clearly based on the Rome
Statute, but with some exceptions. In particular, the Act provides
that when commanders or other superiors do not, according to
national principles of criminal law, have the requisite knowledge
or intent for primary responsibility for an offense, they should be
regarded as “aiding, abetting, counseling or procuring” the crime’s
commission. In other words, if the superior’s mens rea only
amounts to negligence, superior responsibility does not apply,
and recourse is to be made to other forms of liability, if applicable.
Similarly, for the Canadian legislature, it was a problematic
issue to consider the commander as a participant to the
subordinate’s offense for his or her failure to exercise proper
control, especially in those cases where the superior merely “should
have known” of the subordinate crimes. The Canadian difficulty
arose from a decision of the Canada’s Supreme Court, known as
R.V. Vaillancourt, which struck down the so called “felony
murder” provisions. These provisions (familiar in many common-
law countries) dictated that a person who knowingly engaged in a

violent crime can be liable for murder if an accomplice commits
such a murder in the course of that felony. The Supreme Court
held that, because murder is a very serious crime with a serious
stigma attaching to it, the accused must have subjective foresight
of death to be convicted of murder, and constructive liability
should never be allowed.
Thus, it was doubtful whether it would be permissible under
Canadian law to punish an individual for the very serious crimes
under ICC jurisdiction, if the person was not a party and in fact
did not even know about the crime (but merely should have
known). The solution adopted by lawmakers, in order not to
contradict the Canadian Supreme Court and at the same time
ensure that Canada could prosecute commanders in such situations,
was to create a wholly new crime of “breach of command
responsibility.” Thus, a commander would not be charged with
the crimes of the subordinates, where he or she was not a party
and did not have subjective knowledge. Instead, the commander
would be convicted of a different conduct, consisting in breaching
of command responsibilities to prevent and repress the
commission of serious international crimes. The crime of breach
of command responsibility provides for penalties up to life
imprisonment, so the result can still be just as severe as for the
other basic crimes.
B. Some Ci vil La
Civil Laww Countries: T he Ger man and Dutc
German Dutchh
Examples
The German legislator clearly seems to have used, as a starting
point for implanting Article 28 of the Rome Statute in the Code
of Crimes Against International Law of 2002 (Code), the
sophisticated analysis carried out by the German criminal law
scholars on superior responsibility. Two main dogmatic criticisms

have been repetitively expressed by the German criminal lawyers.
1. To start with, it has been pointed to the logical dilemma
caused by the doctrine of superior responsibility, which
suggests that ne
neggligent behavior of superiors would be
ligent
sufficient to convict them for the crime of genocide, an
offense which however requires the perpetrator to possess
the specific intent to destroy a group. German scholars
specific
argue that, with the “should have known” standard of
Article 28(A)(i) of the ICC Statute, the high mens rea
requirement of genocide might be circumvented. Some
extend this criticism even to crimes against humanity,
which require that next to knowledge of the particular
crime, also awareness about its commission as “part of a
widespread or systematic attack.”
2. Further, the vast majority of German scholars find fault
in that Article 28 of the ICC Statute fails to differentiate
between two partly overlapping concepts. First, the
concept of participation of the superior in the crime if
the subordinates, which requires (according to German
elaboration) at least knowledge by the superior. Secondly,
the concept of superiors’ breach of duty to supervise
the subordinates. In the theoretical coordinates
pr oper of Ger
proper man criminal la
German w, suc
law suchh a duty ma mayy
be violated intentionall
intentionallyy, kno wing
wingll y, bbut
knowing ut also
because of mer meree ne
negglig ence. Ho
ligence. Howweverer,, in suc
suchh a
situation the superior w ould
would not be criminall
criminallyy
liab le ffor
liable or par ticipation in the serious inter
participation national
international
crimes of subordinates, but only for the distinct
of
offfense of br eac
eachh of duty to super
breac vise. This latter
supervise.
offense is considered to be characterized by a different

(and lesser) dimension of wrongdoing.
In order to implement the Rome Statute, while not departing
from the principles of national legal tradition, the German
legislator therefore divided the notion of superior responsibility,
as applied at the international level, in three different elements,
addressed in three different provisions.
a) Section 4 of the Code only covers the superiors’
intentional, willful, or at least knowingly “failure to
prevent” imminent crimes of subordinates. In such
situations, superior is considered to be a main co-
per petrator to the crimes of the subordinate. Thus,
perpetrator
this disposition, in connection with the appropriate
offense, ensures that the convicted individual receives the
same sentence as the direct perpetrator of a war crime,
crime against humanity, or genocide.
b) Section 13 of the Code addresses instead the situation
of superiors who negligently fail to prevent crimes of
the subordinates. As opposed to the international failure
to prevent, a negligent superior is convicted in this case
of a wholly separate offense than a direct perpetrator,
and with the possibility of being imposed a significantly
lesser sentence. This solution, according to the German
doctrine, permits to remain consistent with the principle
of personal guilt, which prescribes that each perpetrator
should only be convicted of conducts he can be
individually and specifically attributed to, namely the
breach of the duty to supervise. Interestingly, the
advantage of this duty-to-supervise concept is that it
applies regardless whether the superiors are military
commanders or civilians. Thus, while Article 28 of the

ICC Statute, because of a political compromise,
introduces the negligence standard only for military
commanders and exempt civilian superiors of an anyy liability,
the German legislation goes further. Military superiors
are liable if the imminent commission of the crime was
“discernable,” while civilians are liable only if the crime
was “discernible without more.” Therefore, while the
Rome Statute differentiates between the mens rea levels
of negligence and awareness, the German code
differentiates within negligence.
c) As to the so-called “failure to report,” recourse was taken
by the German legislator to already existing offenses,
which are both independent from the subordinates’ crimes,
and do not base on a breach of superior duties (paragraphs
258 and 258a of the ordinary German Penal Code).
These obstr uction of justice -provisions only apply
obstruction
to intentional, willful, or knowingly made violations.
This standard remarkably differs from the ICC one, which
provides liability even for negligent commanders who
fail to report crimes.
Finally, and remarkably, Germany has not embraced
establishing a mode of liability to hold commanders responsible
for the “failure to punish.” This has been interpreted by
international scholars as a conscious political decision of the
German legislator that a failure to observe the duty to punish
should not incur any penal sanction, at least if a proper report
was submitted to the disciplinary authorities. This interpretation
concurs with German legal tradition, considering that the German
Military Penal Code does not contain a provision penalizing the
violation of the duty to punish, and that the German Military

Manual, while creating a duty to punish, provides for prosecution
only if the supervisor had given an illegal order, but not for his
omission to repress the crimes committed by the subordinates.
Interestingly also, several other civil law countries failed to
include the superior’s failure to punish subordinates’ crimes in
their domestic legislations: this is the case of Belgium, Sw eden
Sweden
and FFrance.
rance. Conversely, as we have seen, most of the common-
law countries which incorporated provisions of superior
responsibility tend to include the concept of the failure to punish.
An exception to the civil law countries’ trend is represented
by the Dutc
Dutchh appr oac
oachh to the implementation of the Rome
approac
Statute. Since 1952, the Netherlands already included in the
War Crimes Act, a provision concerning responsibility of military
commanders. This provision, however, was merely aimed to make
punishable the superior who intentionall
intentionallyy per mits the
permits
commission of a war crime by a subordinate under his command.
At the same time, already since the 1950s, the criminal
responsibility of civil superiors had been recognized in Dutch
case law, in particular in corporate criminal law. However, in
none of these two cases, the responsibility of the superior was
extended to encompass the duty to punish, nor negligence offenses.
With the International Criminal Act of 2002, the Netherlands
proceeded to extend the scope of superior responsibility in two
directions: first, in order to cover international crimes other than
war crimes; second, expanding the scope of this mode of liability
in order to mirror Article 28 of the Rome Statute, thus
criminalizing the superior’s negligence in taking measures either
to prevent or to punish the commission of an international crime
by a subordinate.
These are just few examples of implementing legislation and

of the problems faced when adapting the domestic legal system
to international obligations on the basis of customary and treaty
law. Of course, it is absolutely necessary to consider how these
provisions actually work in practice in order to assess their
effectiveness.
VIII. T HE U SE OF THE D OCTRINE

OF S UPERIOR R ESPONSIBILITY
IN N ATION AL C OUR
TIONAL TS : T WO E XAMPLES
OURTS
A. Bosnia-Herze
Bosnia-Herzeggovina
As you may know, as part of its Completion Strategy to conclude
its activities within a few years, the ICTY has been busy, inter alia,
transferring cases related to lower- and middle-level accused to
domestic institutions in the region of the former Yugoslavia. This
was done on the premise that these countries are once again proving
to be able to deal with such sensitive and complex cases. However,
before transferring such cases, the ICTY needs to make sure that
the State in question is willing and adequately prepared to accept
such a case (Rule 11bis). In order to be considered adequately
prepared, for example, Bosnia-Herzegovina has modified its
criminal code, so as to include, inter alia, superior responsibility.
The War Crimes Chamber of Bosnia and Herzegovina is a
domestic court, albeit with an important international component
and backing, and therefore any indictment based on superior
responsibility must be written into the domestic legal code.
Currently, section 180(2) of the BH criminal code has established
superior responsibility in their jurisdiction. This particular
definition was taken wholly from the ICTY Statute.
The War Crimes Chamber has addressed superior

responsibility in a number of cases, most recently the Milenko
Trifunovic case last July. However, I will focus on an earlier case,
the case of Rasevic and Todovic. In these proceedings, the Court
extensively cited the Celebici case and other formative cases in
ICTY jurisprudence. Although the War Crimes Chamber is not
bound by ICTY jurisprudence, it endorsed its rationale and saw
no reason to substantially depart from it. Furthermore, through
its adoption of the Additional Protocol I to the 1949 Geneva
Conventions, the War Crimes Chamber held that superior
responsibility as defined by the ICTY is firmly established in
international customary law, thus applicable to any case brought
before it.
The indictment covered a period of two and a half years, in
which Rasevic and Todovic were in high positions of authority at
the Foca prison complex, called Kazneno-Popravni (KP) Dom.
During this period, two prisoners were documented to have been
beaten and at least 18 were killed. The head of KP Dom, Milorad
Krnojelac, was tried at the ICTY.
For Todovic, the War Crimes Chamber held that he was the
de facto Deputy Warden of KP Dom for nine months in 1992
until he became the de jure Deputy Warden for another eight
months. In Rasevic’s case, the Chamber found that he was the de
jure Commander of the Guards from April 1992 until October
1994. In these positions, Todovic and Rasevic were responsible
for the actions of their subordinates, the prison guards. Both
were held liable because they did not act to prevent inhuman acts
towards a detainee, for failing to punish the guards for the murders
of 18 people, and for the beating of another detainee.
To investigate the superior-subordinate relationship, the War

Crimes Chamber carefully examined the Book of Rules for KP
Dom, noting the sections which indicated the hierarchical structure
of the prison, organizational materials, and duties of the Warden
and Deputy Warden. This indicated a de jure formal hierarchical
structure of KP Dom. However, this was not all that was required
to prove the superior-subordinate relationship. The court also
considered evidence that the two accused had effective control
of their subordinates, meaning that they had the material ability
to prevent and punish the commission of serious crimes.
The second element of superior responsibility is that the
accused knew or had reason to know that crimes were going to be
committed or had already been committed by a subordinate.
The War Crimes Chamber held that both accused would have
heard the sounds of the beating and seen the physical effects on
the detainee, would have known about the pattern of torture
and would have known – due to their duties – about missing
people. The constructive knowldege test was therefore met with
respect to beatings and murders.
The last element of superior responsibility is that the superior
failed to take reasonable and necessary measures to prevent the
commission of the crime or to punish the subordinate afterwards.
At the KP Dom, the War Crimes Chamber held that the accused
never told the guards to disobey the illegal orders of the
interrogators, which would have prevented the crime.
Additionally, the doctrine requires that orders to prevent must
not be “empty,” in that they must be followed with real disciplinary
measures. Moreover, both accused were held liable because they
failed to refer the criminal conduct of the guards to their superior
for appropriate punishment.
The War Crimes Chamber is a good example of the successful

result of a symbiotic relationship between an international tribunal
and courts in domestic jurisdictions. Naturally, the tribunals do
not have the capacity to prosecute every individual engaged in
crime on such a massive scale. The prosecution based on superior
responsibility in Bosnia and Herzegovina correctly applies
international law, furthers the doctrine in domestic jurisdictions,
and allows for justice for war crimes on a local scale.
B. United States of America

Interestingly, a series of actions in the U.S. ci civil courts
vil cour ts under
the Alien Torts Claim Act of 1789 (ATCA)28 and the Torture
Victim Protection Act of 1991 (TVPA),29 have addressed the
issue of superior responsibility for acts of torture and extrajudicial
killing, which the defendant “authorized, tolerated, or knowingly
ignored.”
In allowing private individuals (and private individuals only),
both aliens and U.S. citizens, to bring actions under the ACTA
and the TVPA, the drafters intended these instruments to function
as a part of a dual criminal/civil approach to addressing violations
of international law.
In order to define the tort and assert jurisdiction, the US
civil courts have significantly relied on the international criminal
law standards, although not recognizing in them any binding
value. For example, in For ordd vv.. Garcia, the civil court opined
Garcia
that Article 28 of the ICC Statute provides “relevant authority”
28
28 U.S.C. § 1350.
29
Pub. L. No. 102’256, 106 Stat. 73 (1992) (codified at 28 U.S. C. §
1350 note (1994).
and the ICTY and ICTR case law provides “insights” into the
required elements of command responsibility.30 In certain
instances, U.S. civil law courts have chosen to depart from the
existing case law. However, differences in the applicable law are
to be regarded as both logical and desirable, considering that the
underlying focus of tort law and criminal law differ fundamentally.
Criminal proceedings concentrate on the personal liability of the
accused, in order to verify the need to apply a sanction aimed to
serve the purposes of retribution, general and special prevention;
conversely, civil proceedings focus upon the determination of
damage suffered by the victims, in order to ensure them adequte
reparations. Moreover, the civil and criminal law processes are
fundamentally different in terms of evidentiary requirements:
criminal processes require that the responsibility of the accused is
established beyond reasonable doubt, whereas the lesser standard
of “more probable than not” applies in civil proceedings.
In the light of these considerations, it is particularly interesting
to take notice of the fact that U.S. civil courts have confirmed
that some of the strict requirements for holding a superior
responsible under international criminal law also apply in the
framework of tort law. This is true, for example, for the “effective
control” element, which has been transposed in the U.S. tort law
without nearly any modifications.
In For
ordd vv.. Garcia
Garcia
cia, the appellants sought to recover damages
for claims of torture and murder against two El Salvadorian
generals. Three nuns and one layperson, all Americans engaged in
missionary and relief work in El Salvador, were abducted,
tortured, and murdered in December 1980 by five members of
the Salvadorian National Guard. The plaintiffs requested civil
30
Ford v. Garcia, 289 F.3d 1283, 1286 (11th Cir. 2002).
damages from the generals, based on their supposed effective

control of the National Guard. At trial, appellants offered
evidence of the great number of atrocities committed against
civilians at the hands of the Salvadoran military in the nine
months preceding the churchwomen’s deaths. The generals
conceded that they were aware of a pattern of human rights abuses
in El Salvador during their tenures as Minister of Defense and
Director of the National Guard, but argued that they did not
have the ability to control their troops during this period. The
Court of first instance endorsed this thesis. As a matter of law, it
referred to the existing ICTY and ICTR jurisprudence and held
that the test for effective command (to be contained in the jury
directions) was whether the commander had “the legal authority
and the practical ability” to control his subordinates.
The plaintiffs appealed the decision on the basis that the effect
of this formulation was to place an improper burden on the
plaintiff to establish that the commanders not only possessed de
jure command over their subordinates, but also possessed de facto
control. The 11th Circuit Court of Appeals upheld the jury
directions, thus confirming that effective control must be
established in a manner similar to the approach taken by the ICTY
and the ICTR, explored above.
IX. C ONCLUSIONS
In the light of the foregoing, and despite the uncertainties existing

between the approaches taken by the ICTY and ICTR, on the
one side, and ICC, on the other, it can be safely assumed that
superior responsibility for military people and for civilians who
exercise a similar degree of authority, is a doctrine firmly established
in customary international law. All countries are therefore required
to implement into their own domestic systems the precepts of

international law applicable to this theory in order to ensure that
individuals are punished according to these standards. In view of
a possible ratification by the Philippines of the ICC Statute, I
encourage to open a frank debate on the implications of such a
momentous step on the international obligations of this country
and its effective discharging.
However, for the moment, I intend to stop here and thank
you very much for your attention.
R EA CTIONS ON C OMMAND
EACTIONS
R ESPONSIBILITY : F ROM I NTERN
NTERNAATION AL
TIONAL
C RIMIN AL T RIB
RIMINAL UN
RIBUN ALS TO N ATION
UNALS AL
TIONAL
J URISDICTIONS ∗
Justice Adolfo S. Azcuna∗∗

This is one of the best of the Distinguished lectures.
It is thorough, scholarly, based on experience, and it answers
the many questions in our minds over the very important subject
of command responsibility.
∗
Reaction delivered at the Fifth Distinguished Lecture, Series of 2008,
held on November 27, 2008, at the Court of Appeals Auditorium,
Court of Appeals, Manila.
∗∗
Justice Adolfo S. Azcuna was born in Katipunan, Zamboanga del
Norte, on February 16, 1939, the son of Felipe B. Azcuna and
Carmen S. Sevilla. He received the degree of Bachelor of Arts,
with academic honors, at the Ateneo de Manila in 1959 and the
degree of Bachelor of Laws, cum laude, at the same institution in
1962. He was admitted to the Philippine Bar in 1963, placing
fourth in the 1962 bar examinations. He forthwith embarked on a
government career as Assistant Private Secretary of then Presiding
Justice Jose P. Bengzon of the Court of Appeals in 1963 and,
thereafter, upon the appointment of the latter to the Supreme Court
in 1964, as his Private Secretary.
Justice Azcuna taught International Law at his alma mater, Ateneo
de Manila, from 1967 to 1986. In 1982, he completed post-graduate
studies in International Law and Jurisprudence at the Salzburg
University in Austria.
2009] REACTIONS ON COMMAND RESPONSIBILITY: 231
I focus on the last paragraph of the paper/lecture: that,
without doubt, the Principle of Command Responsibility is now
part of customary international law.
First, what is that doctrine? How is it formulated?
While it started here in the Philippines in the Yamashita case,
it has undergone transformations and changes in all its elements,
i.e., mens rea and the material element of control. While, in
Representing Zamboanga del Norte, he was elected as member of

the 1971 Constitutional Convention. Subsequently, he was appointed
as a member of the 1986 Constitutional Commission. He held
several government posts during the term of President Corazon C.
Aquino, first as Presidential Legal Counsel, then as Press Secretary
and subsequently as Presidential Spokesman. In 1991, he was
appointed Chairman of the Philippine National Bank. On October
17, 2002, he was appointed Associate Justice of the Supreme Court
by President Gloria Macapagal-Arroyo.
Justice Azcuna’s major publications include “International Sales
of Goods,” “Transnational Law Practice,” “International Law
Teaching in the Philippines,” “Doing Business in the Philippines,”
“Foreign Judgment [Monetary] Enforcements in the Philippines,”
“Piercing the Veil of Corporate Entity: From Willets to Santos,”
“ASEAN Conflict of Law,” “The Supreme Court and Public
International Law,” and “International Humanitarian Law: A Field
Guide to the Basics.”
Justice Azcuna is married to Maria Asuncion Aunario, Dean of
Arts and Sciences of St. Scholastica’s College. They have four
children: Anna Maria, Ma. Beatriz, Ma. Margarita and Miguel
Enrique.
Justice Azcuna presently chairs the Committee on Computerization
and Library and the Subcommittee on the Revision of Rules on
Civil Procedure. He also co-chairs the Committee on Gender
Responsiveness in the Judiciary with Justice Conchita Carpio Morales.
Yamashita, the mens rea element was practically a strict liability

standard, it has now evolved into the formulation of the ICTY
“knew or should have known” while the material element requires
de facto control and not simply de jure. The statute of Rome’s
Article 28 formulation differs slightly in that it refers in the
material element to a different standard for civilian superiors, i.e.,
knowledge or conscious disregard of information. And while
effective command is presumed from a military structure, in a
civilian situation it has to be proved.
Next, I am drawn to the portion on the impact of the doctrine
on domestic jurisdiction. As I see it, this doctrine is binding on
us as part of customary international law.
However, since the principles of nulla poena sine lege applies,
Philippine courts cannot convict a defendant for the offense of
command responsibility, or breach thereof, for lack of
corresponding penalty, and can only apply the penalties under
common crimes.
There is, therefore, need to adopt legislation to define the
crime and provide for its penalty.
L EARNING FR OM THE I NTERN
FROM NTERNAATION AL
TIONAL
CRIMIN AL T RIB
RIMINAL UN
RIBUN AL FOR Y UGOSLA
UNAL VIA ∗
UGOSLAVIA
M
any crimes are seldom isolated acts of individual
offenders. Often, they are committed as a part of
large-scale atrocities that can only be carried out by a
plurality of organized perpetrators. In these cases, it may be very
difficult to ascribe individual criminal liability to specific members
of the criminal group, particularly those who hold positions of
leadership. Command responsibility has been one of the legal
notions developed to address this problem.
Of late, this doctrine of command responsibility has been
brought to the fore of Philippine legal thought. Just last year, the
many extralegal killings and enforced disappearances that have
plagued our country since the start of the new millennium –
particularly those involving political activists and members of
the media – led to a reexamination of the doctrine of command
responsibility. Thus, in last year’s national consultative summit
on extrajudicial killings and enforced disappearances, Father
Joaquin Bernas urged the government to devise ways of
implementing the doctrine of command responsibility in such
∗
Closing Remarks delivered at the Fifth Distinguished Lecture, Series
of 2008 , held on November 27, 2008, at the Court of Appeals
Auditorium, Court of Appeals, Manila.
incidents of humanitarian abuse.1 He recalled that during the

deliberations of the 1986 Constitutional Commission, there was
a proposal to adopt command responsibility as a constitutional
principle. The proposal, however, met with vigorous objections
on the ground of due process and the principle of nullum crimen
sine lege. No law, no crime. Father Bernas suggested that these
objections be studied in the light of the current state of domestic
and international law.2
Another constitutional expert who spoke at the national
consultative summit, Dean Pacifico Agabin, voiced out the view
that the doctrine of command responsibility should be applied
to as high up the chain of command as the President, who is the
Commander in Chief of the armed forces.3 Dean Agabin
proposed that the Supreme Court adopt the doctrine of command
responsibility as enunciated in the Rome Statute.
The Melo Commission, the independent commission created
by President Gloria Macapagal-Arroyo to address media and
activist killings, also recommended that the President propose
legislation that would penalize superior government officials who
encourage, incite, tolerate, or ignore any extrajudicial killing
committed by their subordinates. The Commission suggested that
the failure of those government officials to prevent an extrajudicial
killing if they had a reasonable opportunity to do so, or their
1
Fr. Joaquin Bernas, SJ, Command Responsibility, A Conspiracy of
Hope: Report on the National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances (2007) 119.
2
Id. at 122.
3
Pacifico Agabin, Accountability of the President Under the
Command Responsibility Doctrine, in A Conspiracy of Hope:
Report on the National Consultative Summit on Extrajudicial
Killings and Enforced Disappearances (2007)123.
2009] LEARNING FROM THE INTERNATIONAL CRIMINAL 235
failure to investigate and punish their erring subordinates, or to

otherwise take appropriate action to deter or prevent the
commission of the crime, should be criminalized.
In addition, there have been bills filed in the Senate and the
House of Representatives, none of which have come into fruition.
Evidently, these bills have failed to negotiate the various slippery
slopes of command responsibility.
The lecture of our distinguished guest today, the Honorable
Fausto Pocar, will help us greatly in our efforts to shape our law
on command responsibility. There is much that we can draw from
the experience of the International Criminal Tribunal for
Yugoslavia (ICTY) with this doctrine, much that we can learn
from its well-reasoned decisions.
For example, the standard definition of command
responsibility is unclear on whether the doctrine is a means of
indirectly holding a superior responsible for the criminal acts carried
out by subordinates, or if the superior is criminally liable for
personal misconduct for not having prevented such crimes or for
not having punished those responsible.4 The ICTY clarified the
matter in the Halilovic trial. That tribunal ruled:
[C]ommand responsibility is responsibility for an omission.
The commander is responsible for the failure to perform
an act required by international law. This omission is
culpable because international law imposes an affirmative
duty on superiors to prevent and punish crimes committed
by their subordinates.5
4
Beatrice Bonafe, Finding a Proper Role for Command Responsibility,
5 J. Int’l Crim. Just. 599, 603 (2007).
5
Judgment, Halilovic (IT-01-48-T), Trial Chamber, November 16,
2005, §54.
Thus, pursuant to this ruling, under the doctrine of command

responsibility, superiors are not just indirectly liable for the crimes
of their subordinates. Command responsibility is not a form of
vicarious liability. Superiors are held accountable on their own
account for the breach of a precise duty of supervision arising
from their position of authority and control over their
subordinates.6
The ICTY has also listed three essential elements of command
responsibility for the doctrine to apply. The first is that a superior-
subordinate relationship exists; the second, the superior knew or
had reason to know that the criminal act was about to be or had
been committed; and the third, the superior failed to take necessary
and reasonable measures to prevent the criminal act or punish the
perpetrator thereof.7
The ICTY has also reconsidered its own doctrines. At first,
the ICTY deemed it possible to convict the accused under both
“direct” and “command” responsibility. If a choice had to be made,
then either the direct participation in the offense or the command
position therein was taken into account as an aggravating factor.
The ICTY, however, soon clarified its approach and considered it
inappropriate to convict under both direct and command
responsibility. Now, the consistent case law of the ICTY asserts a
clear preference for direct criminal responsibility. Initially, some
trial judgments held that not only was it impossible to convict
the accused of the same facts under both direct and command
6
Beatrice Bonafe, Finding a Proper Role for Command Responsibility,
5 J. Int’l Crim. Just. 599, 603-604 (2007).
7
Id. at 604-605, citing Judgment, Delalic and others (IT-96-21-T),
Trial Chamber, November 16, 1998, §346.
2009] LEARNING FROM THE INTERNATIONAL CRIMINAL 237
responsibility, but also that certain forms of direct liability should

be preferred. Then the Appeals Chamber in the Blaskic appeal
finally settled the matter: those accused who would be found guilty
under both direct and command responsibility should be convicted
of direct responsibility, taking the command position into account
as an aggravating factor.8
The doctrine of command responsibility has been the object
of both great expectations and much criticism. On the one hand,
it is perceived as an indispensable tool for ascribing criminal
responsibility to military and political leaders for international
crimes committed on the collective and state level. On the other
hand, the doctrine has sometimes been perceived as a way to
improperly expand the scope of individual criminal responsibility.9
Both of these extremes have been a product of the ambiguity
that often inheres in historically weighted doctrines like command
responsibility. As our distinguished guest has shown, the ICTY
has clarified some of these ambiguities. Perhaps, by considering
the lessons that the experience of the ICTY can teach us, we can
finally agree upon our own understanding of the doctrine of
command responsibility.
Thank you, Judge Pocar, for the enlightenment. Thank you
all for attending this distinguished lecture, the last for the year
2008.
8
Id. at 612-613.
9
Id. at 599, 617.

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PHILJA

JANUARY-JUNE 2009 VOL. 11, ISSUE NO. 31

I. F IRST D ISTINGUISHED L ECTURE

II. S ECOND D ISTINGUISHED

III. T HIRD D ISTINGUISHED

V. F IFTH D ISTINGUISHED L ECTURE

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DEPUTY COURT ADMINISTRATORS

ASSISTANT COURT ADMINISTRATORS

ASSISTANT CLERK OF COURT

DIVISION CLERKS OF COURT

Hon. LEONARDO A. QUISUMBING

Hon. CONRADO M. VASQUEZ, JR. Hon. EDILBERTO G. SANDOVAL

Hon. ERNESTO D. ACOSTA Hon. ANTONIO M. EUGENIO, JR.

Hon. CECILYN B. VILLAVERT Dean PERRY L. PE

Associate Dean SEDFREY M. CANDELARIA Hon. MARINA L. BUZON

Hon. ALFREDO L. BENIPAYO Hon. EDILBERTO G. SANDOVAL

Dean CESAR L. VILLANUEVA Dr. PURIFICACION V. QUISUMBING

Fr. RANHILIO C. AQUINO Prof. MYRNA S. FELICIANO

Prof. ALFREDO F. TADIAR Hon. JAINAL D. RASUL

Judicial Reforms Groups

Prof. Sedfrey M. Candelaria

Editorial and Research Staff

Circulation and Support Staff

CHIEF J USTICE R EYN

T HE F IRST D ISTINGUISHED L ECTURE

T HE S ECOND D ISTINGUISHED L ECTURE

T HE T HIRD D ISTINGUISHED L ECTURE

REACTIONS ON WHY THERE IS AN IMMEDIATE NEED TO

T HE F OURTH D ISTINGUISHED L ECTURE

PROGRAM .................................................................................................. 149

I. INTRODUCTION ........................................................................... 156

T HE F IFTH D ISTINGUISHED L ECTURE

PROGRAM .................................................................................................. 189

III. CONCLUSIONS ON ICTY AND ICTR

The Supreme Court of the Philippines would like to thank the

The First Distinguished Lecture

REFORM OF THE SPANISH CIVIL CODE:

Wednesday, February 20, 2008, 2:30 P.M.

Philippine National Anthem

Presentation of the Honoree

CONFERMENT OF THE HONORARY DEGREE

Presentation of the Medallion

Reading of the Diploma

Introduction of the Honoree and Lecturer

JUSTICE JOSE C. VITUG (RET.)

JUSTICE RICARDO C. PUNO, SR. (RET.)

DR. MARIA LIZA A. LOPEZ-ROSARIO

Presentation of Plaque of Appreciation

Supreme Court Hymn

The program this afternoon is a fitting celebration in the

Calderon de la Barca said, “If you cannot reconcile yourself to

SCRA 397) on the nature and international law implications of

As an appropriate backdrop, allow me to stress the unique

The localized jurisdiction of the alcalde mayores, the

validity of a donation propter nuptias. As the donation was

His Excellency Francisco Jose

y first words are to express my gratitude to the

M Philippine judicial and academic authorities for the

legal protection of rules, and also as to the safeguard of citizens’

of universities is made use of as to the new proposals for existing

good neighborly relations. We are separated by continents but

experts for two reasons: firstly, for the historical circumstance

the nations whose independence was subsequent to the time of

Perhaps, the general conclusion of these words, even though

certain political ideals in such a way as to bring down the tradition

20 years of the century and on the exemplary promotion of a

as subsidiary to the matters governed by other laws, whether or

traditional law while, at the same time, ensured its maintenance

A. Promulgation of the Code (1936)

B. Par tial Amendments to the Ci