James Shemron C. Corro,

Juris Doctor Applicant-III,

Initial work: October 20, 2018, further edits on: June 7, 2019

“Historically, terrorism falls in a category different from crimes that concern a criminal court judge”

– Jürgen Habermas , German philosopher and sociologist in the tradition of critical theory and pragmatism

The quote lays true to its substance. Indeed, Terrorism has required states to evaluate principles and balance interests. The subject-matter of terrorism has spawned unique relationships between states and, states with their own nationals. Since 1963, the international community has produced nineteen universal instruments in the form of conventions and protocols to prevent terrorism.[1] The conventions begin as international meetings of representatives from many nations. Many result to a general consensus about procedures or actions they will take on specific topics.[2] The usual output of these conventions are law-making treaties. A treaty is an international agreement concluded between States in written form and governed by international law.[3] Law-making treaties create general norms for the future conduct of the parties in terms of legal propositions, and the obligations are basically the same for all parties.[4] Some conventions in this case, bind state parties to enact legislation to counteract financing of terrorists and to suppress bombs.[5] Other conventions go as far as to suppress terrorism involving nuclear weapons.[6] These instruments must be read together with the Vienna Convention on the Law of Treaties. The Convention prescribes that the validity and continuance in force of a treaty may be based on pacta sunt servanda[7]. Pacta Sunt Servanda as a general principle of international law, states that a treaty in force is binding upon the parties and must be performed by them in good faith.[8]. Abrogation from the principle of pacta sunt servanda is allowable only in limited circumstances. These Circumstances must be fundamental. To be fundamental they must constitute as an essential basis of the consent of the parties to be bound by the treaty. The circumstances must transform the extent of obligations still to be performed under the treaty.[9]

Legal Challenges already arise when requirements under international law come in conflict with municipal law. The Question therefore is, may these fundamental circumstances be considered by a state party unilaterally and serve as basis for derogation from a treaty?

To illustrate, the Philippines adopts generally accepted principles of international law as part of the law of the land.[10] As a party to several of these conventions, it is bound to enact municipal laws to enforce agreements of treaties it has entered. One of the conventions that the Philippines entered is the International Convention for the Suppression of the Financing of Terrorism.[11]The Convention requires state parties not to refuse a request for mutual legal assistance on the ground of bank secrecy.[12] If the Philippine government on its own findings consider events in the country as fundamental, to the extent that it is unable or unwilling to provide mutual legal assistance, May it derogate from the treaty despite the absence of acquiescence of other state parties and refuse to provide mutual assistance?

I answer in the affirmative. The Vienna Convention must be read alongside the Montevideo Convention on the Rights and Duties of States.[13] Article 5 of the Convention considers that fundamental rights of states are not susceptible of being affected in any manner whatsoever.[14] Article 1 of the same convention provides that qualifications of states include the capacity to enter into relations with the other states.[15] Necessarily, the capacity to enter relations include the capacity choose and severe relations, which cannot be impaired through contract or treaty. The best understanding of this criterion is that it means independence. It is that independence that provides a capacity to enter into relations with other States, as a State.[16] This, however, does not mean that a unilateral derogation from a treaty does not come with its own set of consequences. As a remedy, parties may refer the matter to the International Court of Justice (ICJ) under Article 36 and 37.[17] The erring party may be held liable for reparations.[18]After the merits of the proceedings, reparations are usually left to be decided between state parties. In cases where there is difficulty in determining the adequate amount of reparations, the ICJ may rule on the amount based on the Articles on the Responsibility of States for Internationally Wrongful Act.[19] Article 31 of the instrument provides that, 

“The responsible State is under an obligation to make full reparation for the injury caused by the Internationally wrongful act.”[20]However, this but leads to further questions. If entering into these instruments, come with the price of subjecting the state-party to the terms and conditions of a treaty and place them in the risk of reparations if a treaty is violated, then why do states enter into these treaties in the first place? The  standard  answer  to  this  question  is  that  states  enter  treaties  in  order  to  obtain gains  from  cooperation.[21] The propensity of states to enter into bilateral and multilateral arrangements concerning terrorism is correlated to the effects and degree of harm imposed by terrorism. The origin of the state is due to the general agreement freely entered into by equal and independent individuals living in a state of nature to form themselves in to a community and obey a government established by them for the protection of natural rights.[22] If applied on an international scale, states come together for mutual aid and protection. A State, just like individuals, would logically be more disposed to enter into an agreement for so as long as mutual aid and protection outweigh the costs. The intensity and effect of terrorism must be dissected to fully appreciate the reasons why nations bind themselves together in treaties.

Terrorism is now a global phenomenon, which must be addressed comprehensively.[23] Terrorism around the world has incurred both human and material costs. The four deadliest terrorist groups were responsible for 59 percent of all deaths in 2016. ISIL was the deadliest group in 2016 with a 50 percent increase in deaths from its previous peak in 2015. The group killed 9,132 people in 2016 with the majority of these deaths occurring in Iraq.[24] Studies in Europe show states have lost around €180 billion in GDP terms due to terrorism between 2004 and 2016.[25] South Asia was more affected than anywhere else in the world between 2008 and 2013 according to the Global Terrorism Database (GTD).[26] On several mediums you can read first-hand experiences of the victims. During 9/11 attack, an executive working in the world trade centre, narrated the attack to quote:

“When it hit, everything went instantly black. You know how a little kid packs a pail of sand at the beach? That’s what it was like in my mouth, my nose, my ears, my eyes—everything packed with debris. I spat it out. I puked, mostly out of horror. I felt myself: Am I intact? Can I move? I was all there. There was moaning. People were hurt and crying all around me.”[27]

Tamir, a photographer born and raised in Turkey has been photographing the aftermath of terrorist attacks since he was a teenager. He describes, that life in the country as erratic and one plagued by fear.

“One week [after a bombing], normal life is starting to (return), but after one month (people fear) another (attack) is coming and everything turns back again.” “Right after these bombings,” he said, “the whole country is in shock. … Most of the time, people don’t go outside for the next few days because they are afraid”.[28]

World Leaders have thrown their lot, and have time and again, condemned terrorism. Pope Francis has expressed the view that terrorism generates greater inequalities and just like repression violates human rights.[29] An optimistic quote President Obama: “”The threat from terrorism is real, but we will overcome it.”[30] The General Assembly heard today as it adopted by consensus a resolution stressing the need for countries to join forces, with many Member States reiterating that no one country nor Government could tackle the scourge alone.[31] However, not all statements of state parties are reflective of a general affinity of global cooperation against terrorism. Vladimir Putin, President of Russia has recurrently blamed the United States for funding terrorists. To quote Putin, ““95% of the world’s terrorist attacks are orchestrated by the CIA,” and the St. Petersburg metro bombing must be investigated “with this in mind. “[32]

Indeed, Terrorism has brought several challenges to the doorstep of many nations. And the fight against terrorism which requires global cooperation brings its own set of tasks related with cooperation. These problems may be in the form of jurisdictional challenges concerning the jurisdiction over a terrorist or even a consensus on what acts should constitute as terrorism. The United Nations has spent more than 20 years trying to form a consensus on what constitutes terrorism, but has yet to succeed. Sticking points are usually about conflicting national interests and unwillingness to change national legislative traditions.[33] As an example, China on November 2, 2017 for the fourth time blocked India, the US and other nations’ bid to list Pakistan-based JeM chief and Pathankot terror attack mastermind Masood Azhar as a global terrorist.[34] China, in its statement, said that since Pakistan didn’t agree with India on this issue, there is no “consensus” between the two directly affected parties. Beijing made it clear that China will support the issue only if Pakistan agrees with India.[35]

To understand the effects of terrorism in the relationship between states we have to understand the state under the auspices of international law. Article I of the Montevideo Convention on Rights and Duties of States provides: ‘The State as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other States.[36]

The United Nations was founded on the principle of sovereign equality between nations.[37] And the Principle of respect for territorial sovereignty inevitably overlap with those of the principles of the prohibition of the use of force and of non-intervention.[38]  Territorial integrity and political independence are two core elements of Statehood. Territorial integrity refers to the territorial ‘oneness’ or ‘wholeness’ of the State. As a norm of international law, it protects the territorial framework of the independent State and is an essential foundation of the sovereignty of States.[39]

From the foregoing we could deduce from the rules, that no nation has the right to intervene in the political affairs of one state, its citizens in its territory or its independent capacity. No state may do things in the territory of another state without the consent of the affected state.

Problems arise in a hypothetical situation where Person X is a national of State A, Person X resides in State B, X plans terrorist operations in State C, Executes acts of terrorism in State D and escapes to State E and was arrested there. In this situation there are at least 5 states involved. The Question is who has authority and jurisdiction to try Person X?

Situations such as these, are where treaties find their prominence. Article 6 of the International Convention for the Suppression of Terrorist Bombings provide the grounds of acquiring jurisdiction.[40] This is to be viewed in correlation with Article 8 which provides a situation where a terrorist is arrested in the territory of one of the state parties and there is refusal to extradite.[41] However despite the existing treaty, there is still no clear and categorical answer to the above situation. Each situation must be viewed in a case to case basis. International law is, but a budding class of its own. Until now states have difficulties balancing situations involving the principle of non-intervention and human rights. Terrorism is a problem that traverses across boundaries and is of such magnitude to compel nations to work together. It exposes nations to problems historically recurring in the conduct of its relations to other states. It, as well, pushes nations to re-evaluate and reconsider traditional stances. Needless to say, it is a situation that has forever changed the conduct of states and the face of the earth.

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[1] UNITED NATIONS Office of Counter-Terrorism (OCT), , http://www.un.org/en/counterterrorism/legal-instruments.shtml (last visited Oct 20, 2018).

[2] 530 FW 2, International Protocols, Treaties, and Conventions, Fish and Wildlife Service Manual, U.S. Fish and Wildlife Service, , https://www.fws.gov/policy/530fw2.html (last visited Oct 20, 2018).

[3] Vienna Convention on the law of treaties, No. 18232 (1969). Article II, 1(a)

[4] Ian Brownlie, Principles of Public International Law (Sixth ed. 2003).

[5] United Nations, 1999 International Convention for the Suppression of the Financing of Terrorism.

[6] United Nations, INTERNATIONAL CONVENTION FOR THE SUPPRESSION OF ACTS OF NUCLEAR TERRORISM (2005).

[7] Vienna Convention on the law of treaties, No. 18232 (1969).

[8] Ian Brownlie, Principles of Public International Law (Sixth ed. 2003). pp. 591-592; Vienna Convention on the law of treaties, No. 18232 (1969). Article 26

[9] Ian Brownlie, Principles of Public International Law (Sixth ed. 2003). P.595

[10] Constitutional Commission of 1986, 1987 Philippine Constitution (1987).

[11] United Nations, International Convention For the Suppression Of The Financing Of Terrorism (1999).

[12] United Nations, International Convention For the Suppression Of The Financing Of Terrorism (1999). Article 12 par. 2

[13] Seventh International Conference of American States., Montevideo Convention on Rights and Duties of States (1934).

[14] Seventh International Conference of American States., Montevideo Convention on Rights and Duties of States (1934).  Article 5

[15] Seventh International Conference of American States., Montevideo Convention on Rights and Duties of States (1934). Article 1

[16] Dakpo Akanda, EJIL: Talk! – The Importance of Legal Criteria for Statehood: A Response to Jure Vidmar, https://www.ejiltalk.org/the-importance-of-legal-criteria-for-statehood-a-response-to-jure-vidmar/ (last visited Oct 21, 2018).

[17] United Nations, International Court of Justice (1945) Article 36 and 38.

[18] regarding-rights, The International Court of Justice and the Question of Reparations Regarding Rights (2015), http://asiapacific.anu.edu.au/regarding-rights/2015/07/17/the-international-court-of-justice-and-the-question-of-reparations/ (last visited Oct 21, 2018).

[19] International Law Commission, Responsibility of States for Internationally Wrongful Acts (2001).

[20] International Law Commission, Responsibility of States for Internationally Wrongful Acts (2001).

[21] Thomas J. Miles & Eric A. Posner, Which States Enter Into Treaties, And Why?, The Law School The University of Chicago (2008).

[22] John Lockes Social Contract Theory, , http://www.legalservicesindia.com/article/1726/John-Lockes-Social-Contract-Theory.html (last visited Oct 21, 2018).

[23] Global Cooperation, Tackling Root Causes Central to Fight against Terrorism, World Leaders Stress on Third Day of General Debate | Meetings Coverage and Press Releases, , https://www.un.org/press/en/2017/ga11950.doc.htm (last visited Oct 21, 2018). Prime Minister Shahid Khaqan Abbasi of Pakistan

[24] Global Terrorism Index 2017, (2017), https://reliefweb.int/sites/reliefweb.int/files/resources/Global%20Terrorism%20Index%202017%20%284%29.pdf. p.5

[25] The cost of terrorism in Europe, , https://www.rand.org/randeurope/research/projects/the-cost-of-terrorism-in-europe.html (last visited Oct 23, 2018).

[26] Global Terrorism Index 2017, (2017), https://reliefweb.int/sites/reliefweb.int/files/resources/Global%20Terrorism%20Index%202017%20%284%29.pdf.

[27]As told to Cal Fussman, My Escape From the 81st Floor of the World Trade Center Esquire (2015), https://www.esquire.com/features/what-ive-learned/ESQ0102-JAN_WTC_rev (last visited Oct 24, 2018).

[28] Turkey in the shadow of terror, , https://www.cnn.com/interactive/2016/07/world/turkey-terror-cnnphotos/ (last visited Oct 24, 2018).

[29] CBC News · Posted: Mar 13, 2013 9:00 PM ET | Last Updated: March 14 & 2013, Pope Francis: In his own words | CBC News CBC (2013), https://www.cbc.ca/news/world/pope-francis-in-his-own-words-1.1349801 (last visited Oct 24, 2018).

[30] Key quotes from Obama’s IS speech, September 11, 2014, https://www.bbc.com/news/world-us-canada-29152590 (last visited Oct 24, 2018).

[31] General Assembly Unanimously Adopts Resolution Calling for Strong Coordinated Action by Member States to Tackle Terrorism, Violent Extremism Worldwide | Meetings Coverage and Press Releases, , https://www.un.org/press/en/2018/ga12035.doc.htm (last visited Oct 24, 2018).

[32] Putin: 95% Of World Terrorist Attacks Are Made By The CIA, Geopolitica.RU (2017), https://www.geopolitica.ru/en/news/putin-95-world-terrorist-attacks-are-made-cia (last visited Oct 24, 2018).

[33] When it comes to defining ‘terrorism,’ there is no consensus | PBS NewsHour, , https://www.pbs.org/newshour/nation/defining-terrorism-consensus (last visited Oct 24, 2018).

[34] China blocks moves to list Masood Azhar as global terrorist: Official  | The Economic Times

https://economictimes.indiatimes.com/news/defence/no-consensus-over-listing-azhar-as-global-terrorist-china/articleshow/61457780.cms (last visited October 24, 2018).

[35] China Defends Terrorist Masood Azhar, Justifies UN Veto Of India’s Move, NDTV.com, https://www.ndtv.com/india-news/china-defends-terrorist-masood-azhar-justifies-its-veto-of-indias-move-at-united-nations-1924157 (last visited Oct 24, 2018).

[36] Ian Brownlie, Principles of Public International Law (Sixth ed. 2003); Seventh International Conference of American States., Montevideo Convention on Rights and Duties of States (1934).

[37] U.N. Charter, art. 2(1)

[38] Military and Paramilitary Activities in and Against Nicaragua (Nicar. V. U.S.), Merits on the Judgment, 1986 I.C.J. 14, ¶251 (June 27). [hereinafter “Nicaragua Case”].

[39] Territorial Integrity and Political Independence, , http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1116 (last visited Oct 24, 2018).

[40] United Nations, International Convention for the Suppression of Terrorist Bombings (1997).

[41] United Nations, International Convention for the Suppression of Terrorist Bombings (1997).