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University of the East

College of Law
Political Law Review
Public International Law
January 2016
Atty. Victoria V. Loanzon

Course Objectives:
1.To provide students knowledge on the nature of international law and the structure of the
international legal system;
2. To introduce to the students the basic elements of public international law - its sources and
subjects, the recognition and jurisdiction of states in international law and principles of state
responsibility;
3. To allow the students to appreciate several key areas of international law including the law
surrounding the use of force and the significance of human rights; and
4. To provide the students an understanding of international law in the context of the Philippine
constitutional and legal framework and how it influences legislative, executive and judicial action.

I. Defining Public International Law

A. International Law is essentially the law which governs the relationship between nation-states,
although the subjects of international law now also extend to individuals, international organizations
and other actors.
The Permanent Court of International Justice in the Lotus Case declares: “International Law governs
relations between states. The rules of law binding upon states therefore emanate from their own free
will as expressed in conventions or by usages generally accepted as expressing principles of law and
established in order to regulate relations between those co-existing independent communities or with
a view to the achievement of common aims.” (Series A, No. 10, 1927, p.18 as cited in Magallona,
Fundamentals of Public International Law (2005), p. 3.

B. Public International Law and Private International Law


Public International Law governs the activities of governments in relation to other governments
while Private International Law governs the activities of individuals, corporations, and other private
entities when they cross national borders.
Entities that create international law: States and international organizations (which are composed of
states)

C. Basis of Public International Law


1. Naturalist: Natural Law controls the relations of states
2. Positive: Basis of relations of states is consent (tacit, express or presumed)
3. Groatians or Eclectics: Middle ground between Naturalist and Positive

D. Grand Divisions of Public International Law


1. Laws of Peace
2. Laws of War
3. Laws of Neutrality

E. Theories of International Law


1. Monist Theory: This theory is of the view that both international law and national/municipal law
regulate the same matter and international law holds supremacy even in the sphere of municipal law.
2. Dualist Theory: This theory affirms that international law and domestic law are separate and
distinct. The two legal systems being distinct and separate, international law becomes binding on
states by incorporation of general norms of international law or by transformation of conventional
rules of international law into municipal law.
Read Article 27 of the Vienna Convention on the Law of Treaties

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F. Doctrines Governing Relations in International Law
1. Doctrine of Transformation
Legislative action is required to make the treaty enforceable in the municipal sphere.
Kuroda v. Jalandoni, 83 Phil 171 (1979): Supreme Court expressly ruled out the Doctrine of
Transformation when it declared that generally accepted principles of international law form a part
of the law of the country even if the Philippines was not a signatory to the convention embodying
them. Section 2 of Article II of the Philippine Constitution is not confined to the recognition of rules
and principles of international law as contained in treaties to which our government may have been
or shall be a signatory
2. Doctrine of Incorporation
Sec. of Justice v. Lantion G.R.No. 139465, Jan. 18, 2000: Rules of international law form part of
the law of the land; and no further legislative action is needed to make such rules applicable in the
domestic sphere.
Tanada v. Angara, 272 SCRA 18: The sovereignty of a state therefore cannot in fact and in reality
be considered absolute. Certain restrictions enter into the picture: (1) limitations imposed by the very
nature of membership in the family of nations and (2) limitations imposed by treaty stipulations.
Concept of Auto-limitation
Reagan v. CIR, G.R. No. L-26379, December 27, 1969: Under the principle of auto-limitation, any
state may by its consent, express or implied, submit to a restriction of its sovereign rights. There may
thus be a curtailment of what otherwise is a plenary power.

G. State Responsibility
1. Scope of State Responsibility
Read Draft Articles on Responsibility of States for Internationally Wrongful Acts
Article 1: Responsibility of a State for wrongful acts
Article 2: Elements of internationally wrongful act: act is attributable to the State; and it constitutes a
breach of an international obligation of the State.
Attribution: The act of an organ or official of the State is attributed to the State as its own act to
determine state responsibility for a wrongful act.
Objective responsibility: one arising from breach of duty by reason of result alone of the act or
omission as the cause, without regard as to whether there is fault or culpa.
Articles 4, 5, 6, 7, 8, 9, 10(1) and 11: Acts attributable to the State and are considered its own acts.
2. Legal Consequences of Wrongful Acts
Full reparation: restitution, compensation and satisfaction
Obligation breached continues to exist and performance of obligation subsists.
State must cease the wrongful act and if continues to do so, it must offer assurances and guarantees
not to repeat the same.
3. Acts of Aggression
Read Article 1of U.N. GA Resolution 3314(XXXIX) for Definition;
Read Article 3 for prima facie acts of aggression.
4. Remedies of Parties
Reprisal distinguished from retorsion (Naulilaa Case, 2 RIAA 1102, 1026 (1928) cited in Magallona,
Fundamentals of Public International Law (2005), pp.71-72.
Countermeasures (Air Services Agreement Case, 54 ILR 304, 337 (1979) cited in Magallona,
Fundamentals of Public International Law (2005), p. 73.
4. Belligerency
Two Senses of Belligerency
1. State of War between two or more States
2. Actual Hostilities amounting to Civil War within a State
Requisites of Belligerency:
1. An organized civil government that has control and direction over the armed struggle launched by
the rebels;
2. Occupation of a substantial portion of the state’s territory;
3. Seriousness of the struggle, which must be so widespread thereby leaving no doubt as to the
outcome.

H. Criminal Liability of Natural Persons under International Law


Natural persons may be held criminal liable only under conventional international law.
Examples: Charter and Judgment of the Nuremberg International Military Tribunal; International

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Tribunal for former Yugoslavia; International Tribunal for Rwanda; Rome Statute of the
International Criminal Court (July 17, 1998)

II. Sources of International Law


A. Primary Sources of International Law:
1. Treaties or International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states.
Types of Treaties
Contract Treaties [Traite-Contrat]: Bilateral arrangements concerning matters of particular or
special interest to the contracting parties; and is a source of “Particular International Law.”
Law-Making Treaty [Traite-Loi]: Concluded by a large number of States for purposes of:
1. Declaring, confirming, or defining their understanding of what the law is on a particular subject;
2. Stipulating or laying down new general rules for future international conduct; and
3. Creating new international institutions
It is a source of “General International Law.”
Stages in the Adoption of a Treaty:
Negotiation
Execution/Signing
Ratification
Exchange of Instrument/ Deposit of Instrument
Bayan v Zamora, 342 SCRA 449 [2000]: The Court held: “The Executive Agreement is also
binding from the standpoint of international law. x x x in international law executive agreements are
equally binding as treaties upon the States who are parties to them. Additionally, under Article
2{1)(a) of the Vienna Convention on the Law of Treaties, whatever may be the designation of a
written agreement between States, whether it is indicated as a Treaty, Convention or Executive
Agreement, is not legally significant. Still it is considered a treaty and governed by the international
law of treaties.

2. International Custom: International custom, as evidence of a general practice accepted as law.


Read Article 38(1) (b). Two elements: (1) general practice, characterized by uniformity and
consistency; and (2) opinion juris sive necessitates, or recognition of that practice as legally binding.
Read: North Sea Continental Shelf Cases, ICJ Reports, 1969, para 74, p.43: Not only must the acts
of the states amount to a settled practice but there must evidence that practice amounts to legal
obligation to comply.
Anglo Norwegian Fisheries Case, ICJ Reports, 1951, pp. 108, 109: When a State continues to
object to a customary norm at the time when it is yet in the process of formation, by such persistent
objection the norm will not be applicable as against that state.
Asylum Case, ICJ Reports, 1950, p.277: Conduct must not only be constant and uniform usage but
also be the “expression of right appertaining to the State granting the asylum and duty upon the
territorial State.”

Vinuya v. Executive Secretary, G.R. No. 162230, 28 April 2010: In dismissing the petition, the
Supreme Court said: “The State, therefore, is the sole judge to decide whether its protection will be granted,
to what extent it is granted, and when will it cease. It retains, in this respect, a discretionary power the exercise
of which may be determined by considerations of a political or other nature, unrelated to the particular case.
The International Law Commission’s (ILC’s) Draft Articles on Diplomatic Protection fully support this
traditional view. They (i) state that "the right of diplomatic protection belongs to or vests in the State,”1(ii)
affirm its discretionary nature by clarifying that diplomatic protection is a "sovereign prerogative" of the
State;2 and (iii) stress that the state "has the right to exercise diplomatic protection on behalf of a national. It is
under no duty or obligation to do so."

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It has been argued, as petitioners argue now, that the State has a duty to protect its nationals and act on his/her
behalf when rights are injured. However, at present, there is no sufficient evidence to establish a general
international obligation for States to exercise diplomatic protection of their own nationals abroad. Though,
perhaps desirable, neither state practice nor opinio juris has evolved in such a direction. If it is a duty
internationally, it is only a moral and not a legal duty, and there is no means of enforcing its fulfillment.”
Read the text of the original decision for references used by the Supreme Court in the resolution of the
case.
Ladlad v. COMELEC, G.R. No. 190582, April 8, 2010: The Supreme Court said: “Using even the
most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various
international law professors, are – at best – de lege ferenda – and do not constitute binding
obligations on the Philippines. Indeed, so much of contemporary international law is characterized
by the “soft law” nomenclature, i.e., international law is full of principles that promote international
cooperation, harmony, and respect for human rights, most of which amount to no more than well-
meaning desires, without the support of either State practice or opinio juris.”
Norm can be both a treaty rule and a customary norm at the same time.
Nicaragua Case, ICJ Reports, 1986, para 179: ICJ clarifies that even if customary international
norms have been codified or embodied in conventions, this does not mean that they cease to exist or
apply as customary law, even with respect to States which are parties to those conventions.
Read Article 38 of the Vienna Convention on the Law of Treaties.
Norms honoured in international law:
Jus cogens norm: a norm which States cannot derogate or deviate from in their agreements.
Nicaragua Case, ibid.
Examples of jus cogens norm: prohibition against the use of force, law on genocide, the principle
of self-determination, principle of racial non-discrimination, crimes against humanity, prohibition
against slavery and slave trade and piracy, (Brownlie, Principles of Public International Law
(1998), p. 515.
Jus dispositivum norm: a norm which allows States to set aside or modify by agreements.
Obligation erga omnes: an obligation every State “towards the international community as a
whole.” All States have a legal interest in its compliance.
Obligations inter se: an obligation that a State must comply with to a particular State under an
agreement.
Barcelona Traction Case, ICJ Reports, 1970, pp.3, 32:”Such obligations derive, for example in
contemporary international law, from outlawing acts of aggression, genocide, also from principles
and rules concerning the basic rights of the human person, including protection from slavery and
racial discrimination.”
Order of Precedence in the application of rules of norms of international law:
Lex superior derogat inferiori: Rules from one source of law prevail over those derived from
another source.
Lex posterior derogat priori: Later rules prevail from the earlier rules.
Lex specialis derogat generali: Particular or special rules prevail over general rules.

3. General Principles of Law Recognized by Civilized Nations


Read: Article 38(1) (c) of the Statute of the International Court of Justice
Examples of general principles:
a. estoppel,
b. pacta sunt servanda,
c. consent,
d. res judicata,
e. prescription;
f. due process;
g. principles of justice, equity and peace.
B. Secondary Sources of International Law:
1. Judicial decisions;
2. Teachings of the most highly qualified publicists of the various nations, as subsidiary means for
the determination of rules of law; and
3. Soft law.
Read Article 38(1) (d) of the ICJ Statute.
Judicial decisions and teachings of publicists are the means by which rules of law may be verified
and may be regarded as evidence of law. (Magallona, Fundamentals of Public international Law
(2005), p. 24.
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Paquete Habana Case, 175 U.S. 677.The U.S. Supreme Court acknowledged teachings of qualified
publicists. It said that such works are resorted to by judicial tribunals not for the speculation of their
authors concerning what the law ought to be, but for trustworthy evidence of what the law really is.

III. Subjects of International Law

A. State
1. Preliminaries
International law developed to regulate states because of: the emergence of states, state interaction
and the development of the laws of war
2. Elements of a state:
2.1. Territory
Modes of Acquisition of Territory:
(1). Original Title
(a). Discovery and Occupation
(b). Accretion
(2). Derivative Title
(a). Prescription
(b). Cession
(c). Conquest/Subjugation
(3). Other Modes
(a). Dereliction/Abandonment
(b). Erosion
(c). Revolution
(d). Natural Causes
Political and legal results of secession:
The new state does not have to recognize the government of the state from which it broke
The new state has the right to govern its own citizens
The new state can independently enter into treaties
The new state can have membership in organizations that were previously closed to it, as
some international organizations are open only to certain states.
The new state can be a party to an ICJ case

2.2 Sovereignty
Sovereignty in the relations between States signifies independence. Independence in regard to a
portion of the globe is the right toe exercise therein, to the exclusion of other States, the functions of
a State. (Island of Palmas Case, 2 UNRIAA, 1928, 829 at 838-9).
Principle of Sovereign Immunity: a State on account of its status requiring sovereign equality is
not subject to judicial process of another state without its consent.
Two Theories of Sovereign Immunity:
Theory of Absolute Immunity: all acts of a State are immune from judicial process by other States.
Theory of Restrictive Immunity: acts may be distinguished to determine suability of a State (jure
imperii and jure gestionis)
Principles Governing the Principle of Equality among States:
(a): States are juridically equal;
(b) Each State shall enjoy the rights inherent to full sovereignty;
(c) Each State has the duty to respect the personality of other States;
(d) The territorial integrity and political integrity and political independence of the State are
inviolable;
(e) Each State has the right freely to choose and develop its political, social, economic and
cultural systems; and
(f) Each State has the duty to comply fully and in good faith its international obligations and
to live in peace with other States.
State Jurisdiction: competence of the State to prescribe rules of conduct, to enforce its legal
processes and to adjudicate controversies and claims.
Bases for State’s Exercise of Criminal Jurisdiction:
(a) territoriality principle
(b) nationality principle
(c) protective or security principle
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(d) universality principle
Extradition of Natural Persons, how executed:
(a) through diplomatic negotiations based on comity or friendly relations between two States
concerned; or (b) by means of an extradition treaty.

Fundamental Rights of States [ S P E E D ]


1. Right to Sovereignty and Independence;
2. Right to Property and Jurisdiction;
3. Right to Existence and Self-Defense
4. Right to Equality
5. Right to Diplomatic Intercourse

2.3. People are those who inhabit the territory from whom the state derives its powers. They are:
(a). the inhabitants of the State
(b). must be numerous enough to be self-sufficing and to defend themselves and small
enough to be easily administered and sustained.
(c). the aggregate of individuals of both sexes who live together as a community despite
racial or cultural differences
(d). groups of people which cannot comprise a State:
i. Amazons – not of both sexes; cannot perpetuate themselves
ii. Pirates – considered as outside the pale of law, treated as an enemy of all mankind;
“hostis humani generis”
iii. Nomadic tribes -will not constitute a State
2.4. Government: Political structure/organs, through which the will of the State is formulated,
expressed and realized.
Difference between a “state” and a “government”
States, not governments, are the bearers of rights and obligations under international law. However,
how a state governs internally may be relevant to statehood and recognition of governments

3. Recognition of States
3.1. Theories on nature and effect of recognition
Constitutive Theory: maintains that it is the act of recognition which constitutes or creates the
statues of a State as a subject of public international law and thus gives it a legal personality.
Declaratory Theory: asserts that recognition merely confirms the acceptance of the States of the
status of the entity as a State.
3.2. Functions of Recognition:
First, the determination of statehood is a question of law.
Second, the act of recognition is a condition for the establishment of formal, optional and bilateral
relations including diplomatic relations and the conclusion of treaties.
Three different approaches to recognition of governments by other states:
(a) Traditional approach: States consider four factors in deciding whether to recognize a state:
(1) effectiveness of control
(2) stability and permanence
(3) popular support
(4) ability and willingness to fulfill obligations
(b) Estrada doctrine: when a new government comes to power either through constitutional means
or otherwise, its relations with other states remain unchanged.
This was created by the Mexican government, which found that it would be insulting to make
determinations about recognition of governments because it would involve passing judgment on the
internal affairs of other states.
(c) Tobar doctrine: States will not recognize governments which come into power as a consequence
of a coup or of a revolution against the government, so long as the freely elected representatives of
the people thereof have not constitutionally reorganized the country.

3.3. Consequences of Recognition of Government


1. The recognized government or State acquires the capacity to enter into diplomatic relations with
recognizing States and to make treaties with them.
2. The recognized government or State acquires the right of suing in the courts of law of the
recognizing States.
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3. It is immune from the jurisdiction of the courts of law of recognizing States.
4. It becomes entitled to demand and receive possession of property situated within the jurisdiction
of a recognizing State, which formerly belonged to the preceding government.
5. Its effect is to preclude the courts of recognizing State from making the new State liable for any
judgment on the legality of its acts, past and future since recognition is retroactive.

Marcos v. Manglapus, G. R. No. 88211, 15 September 1989: The Supreme Court held that:
“The Constitution limits resort to the political question doctrine and broadens the scope of judicial
inquiry…But nonetheless there remain issues beyond the Court’s jurisdiction the determination of
which is exclusively for the President…We cannot, for example, question the President’s recognition
of a foreign government, no matter how premature or improvident such action may appear.”

B. Individuals and Juridical Entities


Government of Hong Kong v. Judge Olalia, Jr. and Muñoz, GR No. 153675, 19 April 2007: The
Supreme Court said that the vulnerable doctrine that the subjects of international law are limited
only to states was dramatically eroded towards the second half of the past century. For one, the
Nuremberg and Tokyo trials after World War II resulted in the unprecedented spectacle of individual
defendants for acts characterized as violations of the laws of war, crimes against peace, and crimes
against humanity. Recently, under the Nuremberg principle, Serbian leaders have been persecuted
for war crimes and crimes against humanity committed in the former Yugoslavia. These significant
events show that the individual person is now a valid subject of international law.”

C. International Organizations
Although previously the main subject of international law was the State, international law has
evolved in the last century to include other subjects, such as international organizations, in particular
the United Nations

What is an international organization?


An international organization is a body created by a treaty with a permanent institutional structure
whose membership consists either exclusively or in large part of states. Treaties are the constituent
instruments of an international organization.
Are international organizations subjects of international law?
International organizations are subjects of international law because they have both duties and rights
under international law, and because they can make international law.

IV. Law of the United Nations

A. Role of the United Nations: As an offshoot of the horrors of World War II, the community of
nations established the United Nations to build a world public order.
In the past 50 years, there has been a rapid increase in the number of states that exist. When the
United Nations was formed in 1945, it had only 51 states members; now the United Nations has 191
states as members.

B. Crucial Elements of World Public Order


1. Article 1: prohibits the threat or use of force; settlement of disputes by peaceful means
2. Article 42: empowers the Security Council as enforcement measure “take action by air, sea or land
forces as may be necessary”

C. Recognition of the Juridical Personality of the United Nations


Reparation for Injuries Case (ICJ Reports, 1949, pp.178-79): As an entity the United Nations
exercise and enjoy functions and rights which can only be explained on the basis of the possession of
a large measure of international personality and capacity to operate on a national plane. Under
Section1, Article 1 of its Charter, the U.N., and a subject of international law, has the capacity to:
(a) to contract;
(b) to acquire and dispose of immovable and movable property; and
(c) to institute legal proceedings.

D. United Nations as an International Organization


1. The Principal Organs
General Assembly (GA)
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Six main committees:
1st Committee - Disarmament & International Security
2nd - Economic & Financial
3rd - Social, Humanitarian & Cultural
4th - Special Political & Decolonization
5th - Administrative & Budgetary
6th - Legal

Security Council (SC)


SC Composition
Composed of 15 members, five (5) of which are permanent. The so-called Big Five
are China, France, the European Union, the United Kingdom, and the United States.
The other ten members are elected for 2-year terms by the GA, 5 from the African
and Asian states, 1 from Eastern European states, 2 from Latin American states, and 2
from Western European and other states. Their terms have been so staggered as to
provide for the retirement of ½ of them every year.

Security Council Voting Rules


Each member of the SC has 1 vote, but distinction is made between the permanent
and the non-permanent members in the decision of substantive questions.
Yalta Voting Formula
(a. Procedural matters – 9 votes of any of SC members
b. Substantive matters – 9 votes including 5 permanent votes.
No member, permanent or not, is allowed to vote on questions concerning the pacific
settlement of a dispute to which it is a party.
Rule of Great-Power Unanimity: a negative vote by any permanent member on a
non-procedural matter often referred to as “veto”, means rejection of the draft
resolution or proposal, even if it has received 9 affirmative votes.
- Abstention or absence of a member is not regarded as veto

Economic and Social Council (ESC)


Trusteeship Council (TC)
International Court of Justice (ICJ)
Secretariat

2. Subsidiary Organs – those which was created by the Charter itself or which it allows to be
created whenever necessary by the SC or GA.
Little Assembly – Interim Committee created in 1947 for a term of one year and re-
established in 1949 for an indefinite term. Composed of one delegate for each member-state,
it meets when the General Assembly is in recess and assists this body in the performance of
its functions.
Military Staff Committee
Human Rights Commission

3. Specialized Agencies – not part of the UN, but have been brought into close contact with it
because of their purposes and functions, such as:
World Health Organization
International Monetary Fund
Technical Assistance Board
UNICEF
UNDP
UN High Commissioner for Refugees
FAO

E. The International Court of Justice

1. What is the ICJ: The ICJ is the judicial organ of the United Nations. All members of the United
Nations are ipso facto parties to the Statute of the ICJ. A non-member may become a party on
conditions to be determined in each case by the General Assembly upon the recommendation of the
Security Council.
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2. What are the principal functions of the ICJ?
(a). To render advisory opinions; and
(b).To decide contentious cases which includes:
(i). The interpretation of any treaty, any question of international law,
(ii). The existence of any fact which if established would constitute a breach of
international obligation; and
(iii). The nature and extent of reparation to be made for the breach of international
obligation.
The Holy See v. Rosario, Jr., 238 SCRA 524, 533-534, Dec. 1, 1994, En Banc: State is not lost when
one of its elements is changed; it is lost only when at least one of its elements is destroyed. State
does not lose its identity but remains one and the same international person notwithstanding changes
in the form of its government, territory, people, or sovereignty.

3. The Jurisdiction of the ICJ


The Court is competent to entertain a dispute only if the States concerned have accepted its
jurisdiction in one or more of the following ways:
(a). by the conclusion between them of a special agreement to submit the dispute to the
Court;
(b). by virtue of a jurisdictional clause, i.e., typically, when they are parties to a treaty
containing a provision whereby, in the event of a disagreement over its interpretation or
application, one of them may refer the dispute to the Court. Several hundred treaties or
conventions contain a clause to such effect; or
(c). through the reciprocal effect of declarations made by them under the Statute whereby
each has accepted the jurisdiction of the Court as compulsory in the event of a dispute with
another State having made a similar declaration. The declarations of 65 States are at present
in force, a number of them having been made subject to the exclusion of certain categories of
dispute.

4. Composition, Term of Office, Voting Rules and Inhibitions of Judges


The ICJ is composed of 15 judges.
Each judge serves a term of 9 years, staggered at three yea intervals by dividing the judges first
elected into three equal groups and assigning them by lottery terms of three, six and nine years
respectively. Immediate re-election is allowed. The President and the Vice President elected by the
Court for three years may also be re-elected. Terms of office of 5 of the 15 members shall expire at
the end of every 3 years.
ICJ Voting Rules
All questions before the Court are decided by a majority of the judges present, the quorum being
nine when it is sitting en banc. In case of tie, the President or his substitute shall have cast a vote.
Rule for Inhibition of Judges
No judge may participate in the decision of a case in which he has previously taken part as agent,
counsel or advocate for one of the parties, or as a member of a national or international court, or of a
commission of injury, or in any other capacity.
Nicaragua Case (1986 ICJ Report 14), The International Court of Justice considered the planting
mines by one state within the territorial waters of another as a violation of Art. 2(4) of the UN
Charter. If the support provided by America to rebels of Nova goes beyond the mere giving of
monetary or psychological support but consist in the provision of arms and training, the acts of
America can be considered as indirect aggression amount to another violation of Art. 2(4).
In addition, even if the provision of support is not enough to consider the act a violation of the non-
use of force principle, this is a violation of the principle of non-intervention in customary
international law.

5. What is the relationship of ICJ with the International Criminal Court (ICC)? The ICC is an
independent judicial institution created by the treaty known as Rome Statute with the power to try
and punish individuals for the most serious crimes of international concern, to include the following:
1. Genocide
2. Crimes against humanity
3. Crimes of aggression, and
4. War crimes.

Pimentel, Jr., v. Office of the Executive Secretary, 462 SCRA 622, 6 July 2005

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This is a petition for mandamus to compel the Office of the Executive Secretary and the Department
of Foreign Affairs to transmit the signed copy of the Rome Statute of the International Criminal
Court to the Senate of the Philippines for its concurrence in accordance with §21, Article VII of the
1987 Constitution. The Court held: “In our system of government, the President, being the head of
state, is regarded as the sole organ and authority in external relations and is the country’s sole
representative with foreign nations (Cortes, The Philippine Presidency: A Study of Executive Power
(1966), p. 187) As the chief architect of foreign policy, the President acts as the country’s
mouthpiece with respect to international affairs. Hence, the President is vested with the authority to
deal with foreign states and governments, extend or withhold recognition, maintain diplomatic
relations, enter into treaties, and otherwise transact the business of foreign relations [Cruz,
Philippine Political Law (1996 Ed.), p. 223] . In the realm of treaty-making, the President has the
sole authority to negotiate with other states.”

F. Capacity of United Nations to make International Law


1. Security Council
 The Security Council has the ability to make decisions that are legally binding on member
States.
 Under Article 25 of the U.N. Charter, members agree that decisions of the Security Council
will be legally binding on them and all other members.
 Under Article 103 of the U.N. Charter, if there is a conflict between Charter obligations and
obligations under another treaty, Charter obligations prevail (Thus, the Security Council can
adopt policies that require States to abrogate other treaty obligations)
 Under Chapter VII on powers of the Security Council, if it takes action with respect to a
threat to peace, breach of peace or act of aggression under Chapter VII, its action is binding
on all State parties.
2. General Assembly
General Assembly resolutions and recommendations are not binding.
Even if they are not legally binding per se, states sometimes express their opinions
about the status of customary international law through declarations and
recommendations of the General Assembly.
Therefore while they do not have inherently binding force, declarations and
recommendations may constitute opinio juris or become part of state practice.
General Assembly resolutions are binding in the following instances:
The allotment and collection of dues is a mandatory function of the General
Assembly
3. International Court of Justice (ICJ)
Article 94 of UN Charter – UN members are obligated to obey decisions of the ICJ (thus, ICJ
decisions constitute law)
Reparation for Injuries Suffered in the Service of the United Nations – advisory opinion of
the ICJ, 1949, supra.

V. Diplomatic and Consular Law


Basics:
Diplomats have personal inviolability
The rational for diplomatic immunity has changed over time:
 formerly, it was justified in terms of the sovereignty of the state and the respect due to the
state
 now, the rationale is for functional necessity – we give diplomats the protection they need to
discharge their duties, and we want other states to treat our diplomats similarly

Vienna Convention on Diplomatic Relations (p. 342)


Article 29: diplomatic agents are not liable to any form of arrest or detention, subject to wavier by
the sending state.
Article 31: diplomatic agents are immune from civil and administrative jurisdiction, except in the
case of…an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions

Two categories of diplomatic immunity:


– Immunity ratione personae – procedural
 Immunity that attaches to the person of the diplomat while he is a diplomat

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 This is irrelevant for former diplomats
– Immunity ratione materiae – substantive
 This is normally irrelevant while a person is a diplomat; we look at it for former officials (it
is applied retrospectively)
 When a person ceases to be a diplomat, or his government waives his immunity, the person
retains substantive immunity for actions he performs in his civil function
o The definition of “official acts” is not always clear

A. Origin of Diplomatic Intercourse

India, China and Egypt showed practices observing respect for their emissaries and even recognizing
the sacred character of their office even before the rise of the Greek civilization.
On December 7, 1959, the General Assembly of the United Nations, by Resolution 1450 (XIV),
convened an international conference to consider the question of diplomatic intercourse and
immunities. The Conference adopted (1) the Vienna Convention on Diplomatic Relations, (2)
Optional Protocol concerning acquisition of nationality, and (3) Optional Protocol concerning the
compulsory settlement of disputes. (Jorge Coquia and Miriam Defensor Santiago, Public
International Law, U.P. Law Complex, 1984, p. 485)

B. THE RIGHT OF LEGATION


It is the right to send and receive diplomatic missions. It is strictly not a right since no State can be
compelled to enter into diplomatic relations with another State. Diplomatic relations is established
by mutual consent between two States.

The right of legation is purely consensual. If it wants to, a state may shut itself from the rest of the
world, as Japan did until the close of the 19th century. However, a policy of isolation would hinder
the progress of a state since it would be denying itself of the many benefits available from the
international community.
Active right of legation – send diplomatic representatives
Passive right of legation – receive diplomatic representatives
Resident Missions

C. Classification of Diplomatic Representatives [ A N E M I C ]


1. Ambassadors or nuncios accredited to Heads of State and other heads of missions of equivalent
rank, who when abroad are allowed to represent the person of their sovereign;
2. Envoys, ministers or persons accredited to the sovereign; and
3. Charge’s d’ affaires who are accredited to the minister of foreign affairs.
The appointment of diplomats is not merely a matter of municipal law for the receiving state is not
obliged to accept a representative who is a persona non grata to it. Indeed, there have been cases
when duly accredited diplomatic representatives have been rejected, resulting in strained relations
between the sending and receiving state.

How are diplomatic agents chosen?


To avoid such awkward situation, most states now observe the practice of agreation, by means of
which inquiries are addressed to the receiving state regarding a proposed diplomatic representative
of the sending state. It is only when the receiving state manifests its agreement or consent that the
diplomatic representative is appointed and formally accredited.
Agreation: It is a practice of the states before appointing a particular individual to be the chief of
their diplomatic mission in order to avoid possible embarrassment.
It consists of two acts:
(i). The Inquiry, usually informal, addressed by the sending state to the receiving state
regarding the acceptability of an individual to be its chief of mission; and
(ii). The agreement, also informal, by which the receiving state indicates to the sending state
that such person, would be acceptable.

Letter of Credence (Letre d’ Creance)


The document, which the envoy receives from his government accrediting him to the foreign state to
which he is being sent. It designates his rank and the general object of his mission and asks that he
be received favorably and that full credence be given to what he says on behalf of his state.

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Functions of diplomatic representatives
The functions of diplomatic mission consist inter alia in:
(a) Representing the sending state in the receiving state.
(b) Protecting in the receiving state the interests of the sending state and its nationals.
(c) Negotiating with the government of the receiving state.
(d) Ascertainment through lawful means of the conditions and developments in the receiving
state and reporting thereon to the government of the sending state.
(e) Promoting friendly relations between the sending and receiving state and developing their
economic, cultural and scientific relations.
(f) In some cases, representing friendly governments at their request.

Consular Relations:
Letter Patent (Letre d’ Provision)
The appointment of a consul is usually evidenced by a commission, known sometimes as letter
patent or letre d’ provision, issued by the appointing authority of the sending state and transmitted to
the receiving state through diplomatic channels.
Consuls belong to a class of state agents distinct from that of diplomatic officers. They do not
represent their state in its relations with foreign states and are not intermediaries through whom
matters of state are discussed between governments.
They look mainly after the commercial interest of their own state in the territory of a foreign state.
They are not clothed with diplomatic character and are not accredited to the government of the
country where they exercised their consular functions; they deal directly with local authorities.

Two Kinds of Consuls


1. consules missi – professional or career consuls who are nationals of the sending state and are
required to devote their full time to the discharge of their duties.
2. consules electi –may or may not be nationals of the sending state and perform their consular
functions only in addition to their regular callings.
Consuls derive their authority from two principal sources, to wit, the letter patent or letter ‘de
provision, which is the commission issued by the sending state, and the exequator, which is the
permission given them by the receiving state to perform.

Consular Functions: Article 6 of the Vienna Convention on Consular Relations (1963) that
consular functions shall consist of:
(a) protecting in the receiving State the interests of the sending State and of its nationals, both
individuals and bodies corporate, within the limits permitted by international law;
(b) furthering the development of commercial, economic, cultural and scientific relations
between the sending State and the receiving State and otherwise promoting friendly relations
between them in accordance with the provisions of the present Convention;
(c) ascertaining by all lawful means conditions and developments in the commercial,
economic,
cultural and scientific life of the receiving State, reporting thereon to the Government of the
sending State and giving information to persons interested;
(d) issuing passports and travel documents to nationals of the sending State, and visas or
appropriate documents to persons wishing to travel to the sending State;
(e) helping and assisting nationals, both individuals and bodies corporate, of the sending
State;
(f) acting as notary and civil registrar and in capacities
(g) safeguarding the interests of nationals, both individuals and bodies corporate, of the
sending States in cases of succession mortis causa in the territory of the receiving State, in
accordance with the laws and regulations of the receiving State;
(h) safeguarding, within the limits imposed by the laws and regulations of the receiving State,
the interests of minors and other persons lacking full capacity who are nationals of the
sending State, particularly where any guardianship or trusteeship is required with respect to
such persons;
(i) subject to the practices and procedures obtaining in the receiving State, representing or
arranging appropriate representation for nationals of the sending State before the tribunals
and other authorities of the receiving State, for the purpose of obtaining, in accordance with
the laws and regulations of the receiving State, provisional measures for the preservation of
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the rights and interests of these nationals, where, because of absence or any other reason,
such nationals are unable at the proper time to assume the defense of their rights and
interests;
(j) transmitting judicial and extrajudicial documents or executing letters rogatory or
commissions to take evidence for the courts of the sending State in accordance with
international agreements in force or, in the absence of such international agreements, in any
other manner compatible with the laws and regulations of the receiving State;
(k) exercising rights of supervision and inspection provided for in the laws and regulations of
the sending State in respect of vessels having the nationality of the sending State, and of
aircraft registered in that State, and in respect of their crews;
(l) extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article,
and to their crews, taking statements regarding the voyage of a vessel, examining and
stamping the ship’s papers, and, without prejudice to the powers of the authorities of the
receiving State, conducting investigations into any incidents which occurred during the
voyage, and settling disputes of any kind between the master, the officers andthe seamen
insofar as this may be authorized by the laws and regulations of the sending State;
(m) performing any other functions entrusted to a consular post by the sending State which
are not prohibited by the laws and regulations of the receiving State or to which no objection
is taken by the receiving State or which are referred to in the international agreements in
force between the sending State and the receiving State.

D. Privileges and Immunities


By way of customary and conventional international law, a diplomatic agent enjoys a wide
range of privileges and immunities, to include among others, the following:
1. Personal inviolability;
2. Inviolability of premises and archives;
3. Right of an official communication;
4. Exemption from local jurisdiction;
5. Exemption from subpoena as witness;
6. Exemption from taxation

World Health Organization v. Aquino, 48 SCRA 242(1972): The Supreme Court has held that
diplomatic immunity is essentially a political question. Where the plea of diplomatic immunity is
recognized and affirmed by the executive branch, it is the duty of the courts to accept the claim of
immunity.

U.S.A. v. Iran, 74 AJIL 743 (May 24, 1980): The U.S. government instituted action against Iran
before the ICJ due to the takeover by student militants of the US Embassy in Tehran and the
American consulates in Tanriz and Shiraz and the detention of some 50 Americans. While the ICJ
ruled in favor the U.S. government, the enforcement of judgment was difficult. Under the facts, it
was believed that if diplomats were committing acts of espionage, the ultimate action of the
receiving country would only be expulsion of the diplomatic mission.

Fatemi v. United States of America (U.S. Court of Appeals, District of Columbia, 1963): Fourteen
Iranian nationals appealed their cases from convictions for “unlawful entry”. The claim of immunity
involving inviolability of premises must be invoked by a member of the diplomatic mission.

Ali Kouni v. Nahiba Khari (wife of Kouni) Tunisia, Court of Appeals of Tunis, 1963. Mr. Kouni
served as counselor of the embassy of the Islamic Republic of Mauritania. He filed an action for
divorce against his wife, Nahiba Khari, a Tunisian national. The Tunis court granted the divorce but
it also awarded counterclaim of the wife by way of damages and alimony. On appeal, Kouni invoked
his diplomatic immunity. The Court rejected the appeal since the action was purely personal in
nature.

Areco Leon (minors) Chile, Second Juvenile Court of Santiago, 1955: A warrant of arrest was
issued against Don Alberto Areco Pittaluga for failure to make alimony payments for a period of
four months. He alleged that as First Secretary of the Uruguayan Embassy, he was invested with
immunity. The court ruled that he cannot invoke immunity for his personal acts.

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U.S. v. City of Glen Cove, 322 Supp. 149 (1971). The U.S. District Court sustained the immunity
from local taxation of property occupied by the Permanent Representative of the Soviet Union to the
United Nations.
Bergman v. De Sieyes, 170 F. 2d. 360 (1948). The U.S. District of Appeals dismissed the case where
the defendant French diplomat was served with process in a court action in New York while on his
way to Bolivia for his diplomatic post. The Court said that the diplomat must be granted immunity
on the principle that a diplomatic in transitu would be entitled to the same privilege as diplomatic in
situ.

U.S. v. Rosal, 191 F. Supp. 663 (1961). The U.S. District Court denied the claim for immunity of
Rosal, a Guatemalan ambassador to Belgium and the Netherlands who caught with possession with
narcotics while on a personal visit to New York.

Pointers on Diplomatic Immunities and Privileges


(a) The person of a diplomatic agent shall be inviolable and he shall not be liable to any form of
arrest or detention. The receiving state shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom or dignity.
(b) A diplomatic agent shall enjoy immunity from the criminal, civil and administrative jurisdiction
of the receiving state, except in certain cases as, for example, when the civil action deals with
property held by him in a private or proprietary capacity.
(c) The diplomatic premises shall be inviolable, and the agents of the receiving state may not enter
them without the consent of the head of the mission. Such premises, their furnishings and other
property thereon and the means of transportation of the mission shall be immune from search,
requisition, attachment or execution.
(d) The archives and documents of the mission shall be inviolable at any time and wherever they
may be.
(e) The receiving state shall permit and protect free communication on the part of the mission for all
official purposes. In communicating with the government and other missions, and consulates of the
sending state wherever situated, the mission may employ all appropriate means, including diplomatic
couriers and messages in code or cipher. The official correspondence of the mission shall be
inviolable.
(f) Subject to its laws and regulations concerning national security, the receiving state shall insure to
all members of the mission freedom of movement and travel in its territory.
(g) A diplomatic agent is not obliged to give evidence as a witness.
h) A diplomatic agent shall be exempt from all dues and taxes, personal or real, national, regional, or
municipal except in certain specified cases like the imposition of indirect taxes.
(i) The mission and its head shall have the right to use the flag and emblem of the sending state on
the premises of the mission, including the residences of the head of the mission and on his means of
transport.

E. Termination of Diplomatic Relations


A diplomatic mission may come to an end by any of the usual methods of terminating official
relations like:
Under Municipal Law:
(a) Resignation
(b) Accomplishment of the purpose
(c) Death
(d) Abolition of the office
(e) Removal
Under the International Law:
(a) War - the outbreak of war between the sending and receiving states terminates their diplomatic
relations, which is usually severed before the actual commencement of hostilities;
(b) Extinction - extinction of either the sending state or the receiving state will also automatically
terminate diplomatic relations between them; or
(c) Recall – may be demanded by the receiving state when the foreign diplomat becomes a persona
non grata to it for any reason. Where the demand is rejected by the sending state, the receiving state
may resort to the more drastic method of dismissal, by means of which the offending diplomat is
summarily presented with his passport and asked to leave the country.

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Dominican Republic v. Pequero, 225 F. Supp. 342 (1963), 58 Am. J. International Law, 1012
(1964). The U.S. District Court ruled that despite the change of government, the receiving state will
continue to recognize the powers of the vice consul until such time the exequatur is withdrawn.

VI. Law of Treaties and other Agreements

A. Kinds of Treaties:
1. Contract Treaties (Traite Contrat) example: Extradition Treaty
2. Law-Making Treaties (Traite Loi)
Bayan Muna v. Zamora, 342 SCRA 449 (2000): The power to enter into a treaty is the sole
prerogative of the President subject to the requirements of the Constitution in line with his authority
to determine the state’s foreign policy. An Executive Agreement does not need the ratification of the
Senate.

B. Principles governing Treaties:


The Principle of Jus Cogens
Read Article 53 of the Vienna Convention on the Law of Treaties. See pages 160-164, Dean
Merlin M. Magallona, Dictionary of Contemporary International Law (2011), U.P. College of
Law

What is jus cogens?


Jus cogens is that body of peremptory principles or norms from which no derogation is permitted;
those norms recognized by the international community as a whole as being fundamental to the
maintenance of an international legal order. They also comprise elementary rules that concern the
safeguarding of peace and notably those that prohibit recourse to force or threat of force.
Jus cogens may, therefore, operate to invalidate a treaty or agreement between states to the
extent of the inconsistency with any such principle. As a peremptory norm, jus cogens is a
fundamental principle of international law that is accepted by the international community
of states as a norm from which no derogation is permitted. Under Article 53 of the Vienna
Convention on the Law of Treaties, any treaty that conflicts with a peremptory norm is void.
Generally included are prohibitions on waging aggressive war, crimes against humanity, war crimes,
maritime piracy, genocide, apartheid, slavery, torture. As an example, international tribunals have
held that it is impermissible for a state to acquire territory through war.
Two elements of jus cogens norms: (1) it is a norm of general international law; and (2) it is
accepted and recognized by the international community of states as a whole as a norm from which
no derogation is permitted.
It exists when a clear and continuous habit of doing certain things develops under the
CONVICTION that it is obligatory and right. This conviction is called “Opinio Juris”

Cases:
Sate Immunity: U.S. v. Ruiz, 136 SCRA 487: The Supreme Court held that the traditional rule of
immunity excepts a State from being sued in the courts of another State without its consent or
waiver. This rule is a necessary consequence of the principles of independence and equality of
States. The activities of states have multiplied, it has been necessary to distinguish them –– between
sovereign and governmental acts (jure imperii) and private, commercial and proprietary acts (jure
gestionis). The result is that State immunity now extends only to acts jure imperii. The restrictive
application of State immunity is now the rule in the United States, the United Kingdom and other
states in Western Europe. The restrictive application of State immunity is proper only when the
proceedings arise out of commercial transactions of the foreign sovereign, its commercial activities
or economic affairs. Stated differently, a State may be said to have descended to the level of an
individual and can thus be deemed to have tacitly given its consent to be sued only when it enters
into business contracts. It does not apply where the contract relates to the exercise of its sovereign
functions. In this case the projects are an integral part of the naval base which is devoted to the
defense of both the United States and the Philippines, indisputably a function of the government
of the highest order; they are not utilized for nor dedicated to commercial or business purposes.

Bishop Arigo et al v. SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet,
MARK A. RICE in his capacity as Commanding Officer of the USS Guardian, et al (G.R. No.
206510 September 16, 2014): The precept that a State cannot be sued in the courts of a
foreign state is a long-standing rule of customary international law then closely identified with the
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personal immunity of a foreign sovereign from suit and, with the emergence of democratic states,
made to attach not just to the person of the head of state, or his representative, but also distinctly to
the state itself in its sovereign capacity. If the acts giving rise to a suit arc those of a foreign
government done by its foreign agent, although not necessarily a diplomatic personage, but acting in
his official capacity, the complaint could be barred by the immunity of the foreign sovereign from
suit without its consent.

Right to Self-Determination (External Self-Determination and Internal Self-Determination):


Province of Cotabato v. GRP Peace Panel on Ancestral Domain G.R. No. 183591, October 14,
2008 citing Re Secession of Quebec): Citing the case of Secession of Quebec, the court said the
Canadian Court said that there are on exceptional cases in which the right to external self-
determination can arise, namely, where a people is under colonial rule, is subject to foreign
domination or exploitation outside a colonial context, and – less definitely but asserted by a number
of commentators – is blocked from the meaningful exercise of its right to internal self-
determination. The Court ultimately held that the population of Quebec had no right to secession, as
the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to
make political choices and pursue economic, social and cultural development, citing that Quebec is
equitably represented in legislative, executive and judicial institutions within Canada, even
occupying prominent positions therein.

C. Formation of Treaties
The treaty-making process involves four major stages, namely: (NARE)
1. Negotiations by representatives of the states, which includes drafting of text (representatives must
be given full powers by the state);
2. Affixing of signatures of negotiators signifying provisional acceptance (adoption of the text of the
treaty after negotiations);
3. Ratification of the treaty, which is the final acceptance (state’s internal/domestic law’s
requirement on ratification. In the Philippines, the Senate must ratify a treaty); and
4. Entry into force of the treaty (the date of effectivity of the treaty as between the parties; the
manner is determined by the provisions of the treaty).

Bayan v. Executive Secretary (EDCA), January 13, 2015: “The EDCA provides for arrangements
to implement existing treaties allowing entry of foreign military troops or facilities under the VFA
and the MDT, and thus may be in the form of an executive agreement solely within the powers of the
President and not requiring Senate concurrence...”

Actions which may affect a treaty:


1. Rejection: If a treaty requires ratification by a legislative body and if that body refuses to give its
consent, the treaty although signed may remain inoperative.
2. Reservations: A party to a treaty may make certain provisions on matters included in the treaty
unless the treaty itself prohibits them.
3. Accession and Adherence: A third party which has not signed a treaty or ratified the same may by
a formal instrument adhere to the provisions of a concluded treaty. (Art.17, Vienna Convention)

D. Termination, Suspension of and Withdrawal from Treaties


There are six basic ways by which a treaty may be terminated
1. in accordance with the terms of the treaty itself;
2. by explicit or tacit agreement of the parties;
3. through violation of the provisions of the agreement by the party, with the second party asserting
that it considers the treaty abrogated by the violation;
4. by one party on the ground that fundamental conditions on which the treaty was based have
changed;
5. through the new emergence of a new pre-emptory norm of general international law conflicting
with the treaty; and
6. through the outbreak of hostilities between the parties.

E. International Agreements
Some international agreements have been designated by various nomenclatures, such as:
1. Act, a final act or protocol de cloture: summarizes proceedings in a diplomatic conference

16
2. Agreement, arrangement or accord, an instrument that covers a limited subject of lesser
importance than a formal treaty or convention
3. Compromise, an agreement that specifies a matter in dispute, the time and manner of appointing
arbitrators, the place where the tribunal shall meet, and such other procedures as may be agreed
upon.
4. Compromis d’ arbitrage, an agreement to submit a dispute to an arbitration or judicial settlement
5. Concordant, an agreement by the Pope, with heads of State on ecclesiastical affairs
6. Convention, a multilateral treaty or agreement, usually restricted to some technical matter.
International Agreements/ Conventions
U.N. Convention on the Rights of the Child
U.N. Convention on the Protection of Migrant Workers and the Families
U.N. Convention against Transnational Organized Crimes
U.N. High Commission on Refugees
U.N. Convention against Torture
7. Covenant, an international compact which has binding effect, usually on many states
8. Declaration, an instrument which contains three parts: title and stipulations; unilateral statement
creating rights and duties for other states; and a description of an action taken when a State
communicates with other States.
U.N. Declaration of Human Rights

Agustin v Edu (G.R. No. L-49112, Feb. 2, 1979). The Philippines is bound by the provisions of the
1968 Vienna Convention on Road Signs and Signals to adopt a local legislation to fulfil its
obligation.

Santos v. Northwest Airlines (G.R. No. 101538, 1992). The Philippines is bound at the Warsaw
Convention. The injured party must pursue his claim in the United States of America under Art.
28(1) of the Warsaw Convention.

VII. Jurisdictional Cooperation and Assistance among States

Jurisdictional cooperation and assistance among many States may be rendered in various ways, such
as: Extradition, Letters Rogatory, Prosecution of International Crimes, Assistance in Recovery of
Claims Abroad; and Cooperation in the Protection of Marine Resources.

A. Extradition
Extradition is generally understood as the delivery of the accused or a convicted individual to the
State in whose territory he is alleged to have committed a crime, by the State on the whose territory
the alleged criminal happens to be at the time. (Oppenheim-Lauterpacht, p.696; Terlinder v. Ames,
84 U.S. 272 (1902).

Types of Extradition Treaties


1. One which contains a specific list of offenses which a fugitive should have committed in order to
be extradited.
2. One which contains no list of crimes but provides that the offenses in question should be
punishable in both states.

General Principles of Extradition


1. There is no legal obligation to surrender the fugitive unless there is a treaty;
2. Religious and political offenses are generally not extraditable;
3. A person extradited can be prosecuted by the requesting State only for the crime for which he was
extradited; and
4. Unless provided for in a treaty, the crime for which the person is extradited must have been
committed in the territory of the requesting State.

Factor v. Laubenheimer, U.S. Marshall at al., 290 U.S. 276 (1933). The U.S. Supreme Court said
that “The principles of international law recognize no right of extradition apart from a treaty.”

Government of Hong Kong Special Administrative Region v. Judge Olalia, Jr. and Muñoz,
G.R. No. 153675, April 19, 2007. The provisions of an extradition treaty may only be invoked by an
existing State which has the capacity to enter into a treaty.
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Sec of Justice v. Hon Ralph Lantion. The rule on pacta sunt servanda must prevail but a Filipino
citizen must also be accorded the protection of domestic law.

Doctrines which Govern Extradition


1. Political Offense Doctrine
General Rule: Political offenses are exempt from extradition.
Rational for the Doctrine:
1. The political offender deserves humanitarian treatment.
2. The political offender has the right to revolt against tyranny, and if this right is to be meaningful,
he is entitled to political asylum.
3. The principle of neutrality and non-interference in the internal affairs of another state dictates that
where there is a “contest” between the government and a segment of the population, the political
offender should not be extradited.
Kinds of political offenses:
1. The pure political offense is an act exclusively against the political order of the state, including its
independence, the integrity of its territory, its relation with other states, the form of its government,
the organization of public powers, their mutual relations, in short, the political rights of its citizens.
(Garraud, Precis de Droit Crimnel 88 (1912), cited in Ferrari, Political Crime and Criminal evidence,
3 Miin, L. Rev. , 365 (1919) ).
2. The relative political offense is an act in which a common crime is either implicit in or connected
with the political act.
In Re: Castioni, Q.B. 149 (1891). This case involved a local uprising in Switzerland because the
government refused to take a popular vote on a request for a revision of the Constitution. An armed
group entered the municipal government and appointed a provisional government. Castioni, a
member of the armed group, shot a municipal officer and was charged with murder. He fled to
England and Switzerland requested his extradition. The English Court ruled that the shooting was
incidental to and formed part of political disturbances and Castioni cannot be extradited.

2. Doctrine of Reciprocity
In many states in continental Europe and South America, States consider the factor that if a crime
committed by one of their nationals anywhere, the same constitutes a violation of their own laws,
just as much as in the place where the crime was committed. This saw the emergence of the doctrine
of reciprocity in extradition of fugitives. This practice allows extradition through consensual acts of
the requesting state and the state where the fugitive is found.
Couas v. The Supreme Court of San Joaquin County (31 Cal. 2d. 682 (1948), Supreme Court of
California).Petitioner was a native of Greece who emigrated to U.S.A. in 1907 and became a
naturalized citizen. The Greek government never consented to his foreign naturalization. He was
being prosecuted for the charges of murder and for assault upon a person and prayed that the
American court should be enjoined from trying him because she already served his sentence for the
same offenses in Greece. The Court held that the Extradition Treaty between U.S.A. and Greece has
become part of the law of the law and double jeopardy had already set in.

Double Criminality: The principle of double criminality is available only when the act is an offense
in both jurisdictions It need not have the same name, but it must be criminal in both systems.
Extradition of War Criminals: As violators of crimes against international law, was criminals are
subject to extradition.
Attentat Clause: Extradition agreement/law may stipulate that the murder of a head of a foreign
government or a member of his family should not be considered a political offense.

Procedure in Extradition: A request is made through diplomatic channels. In the Philippines, it


coursed through the Department of Foreign Affairs (“DFA”). DFA forwards the request to the
Department of Justice which files the necessary petition with the Regional Trial Court. The judicial
process can go all the way up to the Supreme Court. The judiciary determines whether or not the
extradition is authorized. The extradition is effected by executive action.
The requesting State bears all the costs and expenses incurred in the extradition proceedings.
Other related rights:
1. Right to Asylum

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The right of asylum is a privilege granted by a State to allow an alien escaping from the prosecution
of his country for political reasons to remain and grant him asylum.
It is the responsibility of the State to prevent individuals from endangering the safety of another
State by committing hostile acts or even committing ordinary crimes. (Oppenheim-Lauterpacht,
p.678)

The principle of Asylum implies at least four elements:


(a) A State does not only have the right, but also the obligation, to grant temporary asylum;
(b) An asylee should be expelled or returned to a territory, with respect to which he has well-founded
fear of persecution;
(c) An asylee is immune from persecution and penalty on account of his illegal entry or presence;
and
(d) An asylee is entitled to temporary residence within the state of asylum until his reintegration,
resettlement or voluntary repatriation.
The right of non-refoulement: Article 33 of the Refugee Convention provides that no contracting
State shall expel or return a refugee, in any manner whatsoever, to the frontiers of territories where
his life or freedom would be threatened.
Asylum of Vessels
International Law does not recognize the grant of asylum in a foreign merchant vessel while in the
territory of a coastal State, either for fugitives from criminal justice or political refugees. The local
authorities have the right to board such vessels and to remove refugees or fugitives on board.
With respect to foreign public vessels, customary law allows only the grant of asylum to political
offenders.
Diplomatic Asylum
This practice is allowed provided there is no international that is violated.
2. Right of Refugees
Essential Elements of the term “Refugee”:
(a) The person is outside the country of nationality, or, in the case of stateless persons, outside his
habitual residence;
(b) The person lacks national protection; and
(c) The person fears persecution.
The United Nations High Commissioner for Refugees is charged with the primary responsibility of
addressing the needs of refugees. The work of the UNHCR is entirely non-political character,
humanitarian and social.
Rights of Refugees (based on the Statute of the Office of the UNCHR)
(a) National treatment or treatment accorded to nationals of the Contracting State concerned;
(b) Most-favored nation treatment, or the most favourable treatment accorded to nationals of a
foreign country; and
(c) Treatment as favourable as possible, and in any event, not less favourable than that accorded to
aliens generally in the same circumstances.

B. Letters Rogatory
Letters Rogatory is a formal communication from a court in which an action is pending, to a
foreign court, requesting that the testimony of a witness residing in such foreign jurisdiction be taken
under the direction of the court, addressed and transmitted to the Court making the request. (See
Rule 24, Section 12 of the Rules of Court).

C. Prosecution of International Crimes


Crimes against international law includes among others, piracy, slave trade, air hijacking and
genocide. These crimes may tried by any State.
International terrorism has become a global concern and many States have adopted legislative
measures to ensure the protection of its constituents against the threat of terrorism. Terrorist acts
may be categorized as follows:
1. Any act causing death or grievous bodily harm or loss of liberty to a Head of State, persons
exercising prerogatives of the Head of State, their hereditary or designated successors, the spouse of
such persons, or such persons charged with public functions or holding public positions when the act
is directed against them in their public capacity;
2. Acts calculated to destroy or damage public property or property devoted to a public purpose;

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3. Any act likely to imperil human lives through the creation of a public danger, in particular the
seizure of aircraft, taking of hostages and any form of violence against persons who enjoy
international protection or diplomatic immunity; and
4. The manufacture, obtaining, possession or supplying of arms, ammunition, explosives or harmful
substances with a view to the commission of a terrorist act (Peter J. van Krieken, ed. , Terrorism and
the International Law Order, 2002, pp. 17-18).

D. Recovery of Claims Abroad


The adoption of the United Nations in 1956 of the Convention on the Recovery Abroad of
Maintenance Obligations has the paved the way to ease the difficulties met by individuals in
collecting claims from another State.
Under the Convention, each State party undertake to establish agencies to transmit and receive
claims.

E. Cooperation in the Protection of Marine Resources


The adoption of the Convention on the Law of the Sea has imposed upon the member States the
obligation to protect and preserve the marine environment while allowing coastal States to exploit
their natural resources. The cooperation required of each State involves taking measures to prevent,
reduce and control pollution of the marine environment.

VIII. War and Peace

A. War
Oppenheim-Lauterpacht defines war as the contention between two or more States, through their
armed forces, for the purpose of overpowering each other and imposing such conditions of peace as
the victor pleases.

B. Use of Force Short of War


Self-Help Measures Short of War
1. Breaking of Diplomatic Relations
2. Retorsion: retaliation for discourteous, unkind, or unfair and inequitable acts of the same or
similar nature.
3. Reprisals: injurious or otherwise internationally illegal act committed by one State against
another for the purpose of compelling the latter to consent to a satisfactory settlement of a dispute
created by its own international delinquency. (Oppenheim-Lauterpacht, p. 136)
See The Naulilaa Incident Arbitration, supra
4. Embargo: is Spanish in origin which literally means detention of ships in port.
(a) Each conflicting State may lay an embargo upon merchant vessels of the other State in its ports,
by way of anticipation and with the view of facilitating capture and condemnation in the event of
war.
(b) Arret de prince is the detention of foreign ships to prevent the spread of news of political
importance.
(c) Jus angariae is an embargo where the belligerent State seizes and makes use of neutral property
in case of necessity, with the obligation to pay the neutral State.
5. Boycott: involves the suspension of business and trade relations of the nationals of the injured
State with the citizens of the offending State.
6. Blockade
(a) Pacific Blockade
(b) Hostile Blockade (ex. Battle of Navarino on blockade instituted by France, Great Britain and
Russia to induce Turkey to grant independence to Greece).
7. Intervention: a State interferes with the affairs of another State in such a manner as to result in
advantage to the intervenor. In other cases, a third State may intervene in a conflict between two
States.
8. Self-Preservation or Self-Help in Time of Necessity: The Kellogg-Briand Pact outlawed war.
Before the same took effect, the use of force by States was justified by the need to protect its vital
interests.
Great Britain v. United States (1883). Insurgents in Canada, who were fighting the government then
under the sovereignty of Great Britain, chartered the vessel Caroline, then in the port in the United

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States of America, for the purpose of carrying supplies to the insurgents. Informed of the plan, Great
Britain sent its own forces to destroy Caroline. The act was considered self-defense.
9. Use of Force other than Self –Defense: A warship may be allowed to use force against vessels
which are suspected of, or an engaged in, piracy or slave trade, when they offer resistance.

C. Aggression
Article 1 of the U.N. General Assembly Resolution 3341 defines aggression as “the use of armed
force by a State against the sovereignty, territorial integrity or political independence of another
State, or in any other manner inconsistent with the Charter of the United Nations.”

D. Commencement of War
If there is a declaration of war or the existence of a state of war, the status of war starts at the
moment specified in the declaration. If there is no formal declaration, war starts at the
commencement of the first act of force.

E. Legal Effects of War


The existence of war or hostilities ends every relationship between the belligerent States and persons
subject to their jurisdiction.
1. Termination of Diplomatic and Consular Relations
2. Effects on Treaties
Treaties of amity, friendship or alliance and all treaties which are political in nature are deemed
abrogated.
Treaties are non-political in nature are suspended for the suspension of the conflict, while treaties
affecting private rights and those not affected by the hostilities remain in force. (Argento v. North,
131 F. Supp. 538 (1955); Argento v. Horn, 241 F.2d.258 (1957)

Clark v. Allen, 331 U.S. 503 (1974). The U.S. Supreme Court allowed the four German relatives of
a resident of California to enjoy the properties bequeathed in their favour despite the outbreak of war
between Germany and the American government. The Court held that the outbreak of war does not
necessarily suspend or abrogate treaty provisions between the two States.

Techt v. Hughes, United Nations, Court of Appeals of New York, 229 N.Y. 222128 N.E. 185
(1920). The Court was asked to resolve the right of succession of descendant Sarah Techt who
married a citizen of Austria-Hungary. Her sister Elizabeth Hughes opposed the ruling of the trial
court granting Techt a share in property of their father, James Hannigan. Her opposition is hinged on
that fact that 20 days after the death of their father, U.S. and Austria-Hungary were at war. Speaking
through Justice Cardozo, the Court held that in times of war, some treaties are dealt with specially
and apart.

3. Effect on Nationals in Belligerent States


Customary international law allows the nationals of belligerent States to leave enemy territories
unmolested.
Haw Pia v. China Banking Corporation, 80 Phil., 804 (1948): The Court allowed Haw Pia’s prayer
to cancel the mortgage between him and China Banking Corporation. The Court said that when Haw
Pia paid the full proceeds of the loan to the Bank of Taiwan during the Japanese period, it effectively
extinguished its obligation to China Banking Corporation.

Filipina Compania de Seguros v. Christein, Huenfeld &Co., 89 Phil. 54 (1951). Respondent is a


company registered under Philippine laws but a majority of its stockholders are Germans. During the
Japanese occupation, the building and insured merchandise of the company was burned. Upon
demand, petitioner refused to pay the respondent. The trial court, however, ordered petitioner to pay
the claim of respondent. The Supreme Court reversed the decision of the lower court and ordered the
respondent to reimburse the petitioner. The Court held that being a company substantially owned by
German nationals with which the U.S. government was at war, the payment was not proper.

Ex Parte Kumezo Kawato, 317 U.S. 69 (1942). The U.S. Supreme Court sustained the right of
Japanese residing in the United States since 1905 to recover damages due him in a suit which he
commenced on 15 April 1941. The Court clarified the prohibition under the U.S. Trading with the

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Enemy Act referred only to an “enemy or ally of an enemy” and “alien enemy” applied only to those
residing within the territory owned or occupied by an enemy nation, wherever residing, as the
President by Proclamation may include within the definition.

4. Regulation on the Use of Force


Principles:
(a) The belligerent is justified in applying any amount and any kind of force which is necessary for
the realization of the purpose of war, which is to overpower the enemy.
(b) All such kinds and degrees of violence as are not necessary for the overpowering of the opponent
should be permitted to a belligerent.
(c) There must be observed some fairness in offense, defense, as well as mutual respect.

5. Humanitarian Law in Armed Conflicts


The United Nations General Assembly adopted on 16 December 1968, the following principles:
(a) that the right of parties to a conflict to adopt a means of injuring the enemy is not unlimited; (b)
that it is prohibited to launch attacks against the civilian population as such; and (c) that the
distinction must be made at all times between persons taking part in the hostilities and members of
the civilian population, to spare the latter as much as possible.
Persons hors de combat and those who do not take part directly in hostilities shall be protected and
treated humanely without any distinction. Their right to life and physical and moral integrity shall be
respected.
The additional protocol I to the Geneva conventions of 1949 in Article 43, paragraph 2, defines the
term “combatants” as “ members of the armed forces of a party to the conflict” excluding medical
personnel and chaplains.

6. Effects of the Laws of War on International Armed Forces (Two views)


The rule should be that the laws of war must apply equally to the aggressor and to international
armed forces. There is another view that collective security forces should not be bound by the law of
war but should be free to select such rules as are desirable at the time and to discard all the rest in
the fight against the aggressor.

7. Regulation of Non-International War


Article 3, a common article of the four conventions of 1949, regulated the non-international wars.
Protocol II to the convention amplified this provision.
(1) Article of the protocol provides guarantees for all persons not taking part in hostilities or wars
which are not international in character.
(2) It prohibits the taking of hostages and the commission of acts of terrorism.
(3) The protocol intends to protect the civilian population against the effects of war, such as attacks
on dams, dikes, and electric plants even if they are genuine military objectives, if severe loss or
damage is suffered by the civilian population.
(4) the provision also intends to protect the wounded, the sick and medical personnel and vehicles
with the emblem of the Red Cross and similar organizations.

8. Status of Belligerent Communities


Traditional international law recognizes that only fully sovereign states have the legal status of
belligerents in an international war.

9. Irregular Armed Forces


The traditional concept of war regulated only the participation of regular armed forces such as the
army, navy and air force of the belligerents. The determination of who are deemed included in the
regular armed forces is a matter left to the decision of domestic law. The non-combatants are entitled
to treatment of prisoners of war provided they can identify themselves properly.
Other types of irregular forces in armed conflicts have complicated problems on the regulation of
their acts during combat. Irregular forces such as guerrillas, partisans, underground resistance
groups, and freedom fighters did not have any legal status under international law. In the past, they
could be executed as war criminals without trial.

F. The Laws of War

1. The Laws of War on Land


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The rules of land warfare during the First World War were based on the conventions adopted in the
Hague in 1989 and 1907.These rules were later supplemented by the four Geneva Conventions of
1949 after World War II. These four Conventions were updated and expanded by Protocols I and II.
The rules distinguished between the armed forces and the civilian population of the belligerent.
Resort to treacherous means is also forbidden.
Denial of distressed troops is generally prohibited, unless the enemy troops resume hostilities after
hoisting a white flag to show signs of surrender.
Ruses of War: The rules of war do not prohibit ruses of war. Such acts are intended to mislead an
adversary or to induce the adversary to act recklessly but which infringe no rule of international law
applicable to armed conflict.
Uses of Prohibited Weapons: The use in war of asphyxiating , poisonous or other gases, and all
analogous liquids, materials or devices, and of bacteriological or biological methods of warfare, have
been prohibited since the 1925 Geneva Protocol.
2. Laws of Warfare at Sea
Sea warfare aims to serve the following objectives: to defeat the navy of the enemy, destruction of
enemy coast fortifications, cutting off intercourse with the enemy coast, prevention of carriage of
contraband, annihilation of the enemy merchant fleet, and the defense of the home coasts as well as
its own merchant fleets.( U.S. Naval War Code; II Oppenheim- Launterpacht, p. 457.)

G. Pacific Settlement of International Disputes


1. Negotiation: This is the direct discussion of a dispute by parties through diplomatic
representatives or higher officials appointed for that purpose.
2. Enquiry: The Hague Peace Conference of 1899 established commissions of inquiry. The core of
the process is to elicit the admission of facts which helps in the clarification of issues.
3. Mediation: The process of settlement is undertaken by a third state or group of states, an
individual, an agency or an international organization.
4. Tender of Good Offices: This is an offer of a third party to settle an international dispute exercised
only with the consent of both parties.
5. Conciliation: This is the process of settling a dispute by referring it to a commission of persons
whose task is to elucidate the facts, after hearing the parties and endeavouring to bring them to an
agreement, and to make a report containing proposals for a settlement.
6. Arbitration: This is the resolution of a difference between states through a legal decision of one or
more umpires or of a tribunal chosen by the parties.

Ex aequo et bono (Latin for "according to the right and good" or "from equity and
conscience"). In the context of arbitration, it refers to the power of the arbitrators to dispense
with consideration of the law and consider solely what they consider to be fair and equitable in
the case at hand.

Article 38(2) of the Statute of the International Court of Justice (ICJ) provides that the court
may decide cases ex aequo et bono, but only where the parties agree thereto. Article 33 of the
United Nations Commission on International Trade Law's Arbitration Rules (1976) provides
that the arbitrators shall consider only the applicable law, unless the arbitral agreement allows
the arbitrators to consider ex aequo et bono, or amiable compositeur.

H. Judicial Settlement of International Disputes


States may either seek an opinion or submit a conflict for resolution before the International Court of
Justice. The jurisdiction of the ICJ in contentious issues involves three issues: (1) jurisdiction over
parties; (2) jurisdiction over the subject matter; and (3) jurisdiction regarding the time limits.

In an obiter dictum in its 1970 judgment in the Barcelona Traction case, the International
Court of Justice identified a category of international obligations called erga omnes, namely
obligations owed by states to the international community as a whole, intended to protect and
promote the basic values and common interests of all.

Examples of erga omnes norms include piracy, genocide, slavery, torture, and racial
discrimination. The concept was recognized in the International Court of Justice's decision in
the Barcelona Traction case [(Belgium v Spain) (Second Phase) ICJ Rep 1970 3 at paragraph
33]:

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"… an essential distinction should be drawn between the obligations of a State towards the
international community as a whole, and those arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the former are the concern of all States. In view of
the importance of the rights involved, all States can be held to have a legal interest in their
protection; they are obligations erga omnes. [at 34] Such obligations derive, for example, in
contemporary international law, from the outlawing of acts of aggression, and of genocide, as
also from the principles and rules concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law . . . others are conferred by
international instruments of a universal or quasi-universal character."

I. The International Criminal Court (“ICC”)

This is an intergovernmental organization and international tribunal, has the jurisdiction to prosecute
individuals for the international crimes of genocide, crimes against humanity, and war crimes. It sits
in The Hague in the Netherlands. The ICC is intended to complement existing national judicial
systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as
when national courts are unwilling or unable to prosecute criminal also or when the United Nations
Security Council or individual states refer investigations to the Court. The ICC began functioning on
1 July 2002, the date that the Rome Statute entered into force. The Philippines is a signatory to the
Rome Statute.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the
Prosecutor, and the Registry. The President is the most senior judge chosen by his or her peers in the
Judicial Division, which hears cases before the Court. The Office of the Prosecutor is headed by the
Prosecutor who investigates crimes and initiates proceedings before the Judicial Division. The
Registry is headed by the Registrar and is charged with managing all the administrative functions of
the ICC, including the headquarters, detention union, and public defense office.

IX. Neutrality

A. Neutral State: A State refraining from participating in war possesses the status of neutrality.
Switzerland enjoys perpetual neutrality on account of the “Eight-Power Declaration” of 20 March
1815. This status was confirmed by Austria, France, Great Britain, Prussia and Russia on 20
November 2015.
B. Laws Governing Neutrality
1. Hague Convention V of 1907 deals with rights and duties in land warfare.
2. Declaration of Paris of 1856 and the Convention XIII of 1907 Hague Conference deal with the
rights and duties during warfare at sea.
3. 1923 Hague Air Warfare Rules govern the rights and duties in employing aircrafts in a state of
war.
C. General Duties of a Neutral State
1. The duty to act impartially toward the belligerents;
2. The duty to abstain from furnishing belligerents any material assistance, whether goods or
services, for the prosecution of war;
3. The duty to prevent the commission of hostile acts within neutral jurisdiction as a base for
belligerent operations; and
4. The duty to acquiesce on certain repressive measures taken by belligerents against private neutral
commerce on the high seas. (Kelsen, p. 156 as cited in Jorge Coquia and Miriam Defensor
Santiago, Public International Law p. 851, 1984)

X. International Human Rights

A. Classification of Human Rights


1. First generation of human rights, consisting of civil and political rights under the International
Covenant on Civil and Political Rights;
2. Second generation, consisting of economic, social and cultural rights under the International
Covenant on Economic, Social and Cultural Rights; and
3. Third generation rights, which refer to right to development, right to peace and right to
environment.
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B. International Bill of Human Rights
The Bill consists of: the Universal Declaration of Human Rights, the International Covenant on Civil
and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

C. Genocide as a Crime
Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide means
“any of the following acts committed with the intent to destroy, in whole or in part, a national,
ethnical, racial, or religious group, such as:
1. Killing of the members of the group;
2. Causing serious bodily or mental harm to members of the group;
3. Deliberately inflicting on the group, conditions of life calculated to bring about its physical
destruction in whole or in part;
4. Imposing measures intended to prevent births within the group; and
5. Forcibly transferring children of the group to another group. (Article II)

D. Torture
Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person as obtaining from him or a third person information or a
confession, punishing him for an act he or a third person has committed, or is suspected of having
committed, or intimidating or coercing him or a discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public
official or other person acting in an official capacity.” (Article 1(1), Convention against Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment)

E. Rights of the Child


The convention on the Rights of the Child entered into force on 2 September 1990. It provides for
the protection of the following rights:
1. The inherent right to life;
2. To have a name from birth; and
3. To acquire a nationality, adequate standard of living, social security and health care;
4. Political, civil, economic, social and cultural rights, including freedom of thought, conscience,
religion, expression, discrimination, education, access to information, minority rights, protection
from exploitation, civil and criminal procedural rights;
5. Protection during armed conflict and refugee right; and
6. Right to family environment and the right to know the parents and be cared for by them.

F. Rights of Migrant Workers


On 18 December 1990, the United Nations General Assembly adopted the International Convention
on the Protection of the Rights of All Migrant Workers and Members of their Families.
Article 2, paragraph 1 of the Convention defines a migrant worker as “a person who is to be
engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is
not a national.”

XI. Law of the Sea

A. Definition
The Law of the Sea is a body of treaty rules and customary norms governing the uses of the sea, the
exploitation of its resources, and the exercise of its jurisdiction over maritime regimes. It is the
branch of public international law which regulates the relations of states with respect to the uses of
the oceans.

B. Classification of waters under the UNCLOS


1. Internal or national waters
2. Territorial waters
3. Contiguous Zone
4. Archipelagic waters
5. 200 mile exclusive economic zone
6. High Seas

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C. Relevant provisions of the U.N. Convention on the Law of the Seas, April 30, 1982:
Internal waters of the Philippines consist of waters around, between and connecting the islands of
the Philippine Archipelago, regardless of their breadth and dimensions, including the waters in bays,
rivers and lakes. No right of innocence passage for foreign vessels exists in the case of internal
waters. (Harris, Cases and Materials on International Law, 5th ed., 1998, p. 407).
Under UNCLOS, however, warships enjoy a right of innocent passage when a portion of the
territorial water of the coastal state is used for international navigation.
Territorial Water: Article 42(2) of UNCLOS provides that there shall be no suspension of innocent
passage through straits used for international navigation. The right of the coastal state to suspend the
same requires that the coastal nation must publish the same and without any publication, it cannot
insist to suspend the use of such body of water. A claim that suspension of innocent passage is
necessary for national security may be cited by the coastal state. Upon the other hand, if a war ship
delayed its right of innocence, the same may justified under Article 18(2) of UNCLOS if the delay
was caused by rendering assistance to persons or ship in distress.
Contiguous zone is the zone contiguous to the territorial sea and extends up to twelve nautical miles
from the territorial sea and over which the coastal state may exercise control necessary to prevent
infringement of its customs, fiscal, immigration or sanitary laws and regulations within the
territory or territorial sea. (Article 33 of UNCLOS)
Exclusive Economic Zone is the zone extending up to 200 nautical miles from the baselines of a
state over which the coastal state has sovereign rights for the purpose of exploring and
exploiting, conserving and managing its natural resources, whether living or non-living, of the
waters super adjacent to the seabed and of the seabed and subsoil and with regard to other activities
for the economic exploitation and exploration of the zone. (Articles 56 and 57, UNCLOS)
Flag state means a ship has the nationality of the flag of the state it flies, but there must be a genuine
link between the state and the ship. (Article 91, UNCLOS)
Flag of convenience refers to a state with which a vessel is registered for various reasons such as
low or non-existent taxation or low-operating costs although the ship has no genuine link with that
state. (Harris, ibid. p.425)

XII. Law of the Air and Outer Space

A. Coverage of the Law of the Air or International Air Law


It consists of norms in general or customary law and in multilateral conventions as well as bilateral
treaties. It includes rules on liabilities and technical matters. The 1944 Chicago Convention on
International Civil Aviation has established the legal framework for such regulatory system.

B. Principles under the Chicago Convention


1. Article 1: Every State has complete and exclusive sovereignty over the airspace above its territory.
2. Article 17: Aircrafts have the nationality of the state in which they are registered.
3. Article 6: No scheduled international air service may be operated over or into the territory of a
contracting State, except with the special permission or other authorization of the State.

C. Two freedoms of the air under the International Air Services Transit Agreement
1. The privilege to fly across its territory without landing
2. The privilege to land for non-traffic purposes, such as refueling and maintenance.

D. Outer Space
Principles that govern the activities of States in outer space
1. Exploration and use of “outer space shall be for the benefit and in the interest of all countries…
and shall be the province of all mankind.”
2. Outer space “shall be free for exploration and use by all states without discrimination of any kind
on the basis of equality.”
3. Outer space is not subject to “national appropriation by claim of sovereignty, by means of use, or
occupation, or any other means.”
4. The exploration and use of outer space “shall be carried out in accordance with international law
including the charter of the United Nations.”
5. There shall be no installation of nuclear weapons or any other weapons of mass destruction in
outer space.

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6. A State party that launches an object to outer space “is internationally liable for damage to another
state party… or its natural or juridical persons by such objects or its components part, on the Earth,
in the air or in outer space…”
7. Ownership of space objects is not affected by their presence in outer space or on celestial bodies
or by return on Earth.
8. The exploration of outer space shall be conducted so as to avoid its harmful contamination as
well as changes in the environment of the earth resulting from the introduction of extraterritorial
matter.

XIII. Public International Law in the Context of the Philippine Constitution

A. National Territory/Sovereignty/ State Immunity


Territory– The Archipelago Concept, Article I
Territory – The Philippine Archipelago
Treaty limits: Treaty of Paris, Art. III
Treaty between Spain and U.S. concluded at Washington on November 7, 1900 and that
between U.S. and Great Britain on January 2, 1930
Method of determining baselines under R.A. No. 3046, June 17, 1961, R.A.
No.5446, September 8, 1968; and R.A. No. 9522( Philippine Archipelagic Baselines
Law) , March 10, 2009, using the straight line approach
Other territories over which the Philippines has sovereignty or jurisdiction
P.D. No. 1596, June 11, 1978
 Two Hundred-Mile Exclusive Economic Zone under the following:
P.D. No. 1599, June 11, 1978

Sovereignty; Dominion and Imperium, distinguished


Isagani Cruz v. Sec. of DENR, G. R. No. 135385, Dec. 6, 2000: The state has the right to govern
and the right to own properties and may regulate the exploitation, development and utilization of its
natural resources as it may deem fit in exercise of the general welfare clause.

Frivaldo v. COMELEC, 257 SCRA 727: The right to govern by virtue of a mandate from the people
is not absolute. The Court held that” the will of the people as expressed through the ballot cannot
cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate
was qualified. Obviously, this rule requires strict application when the deficiency is lack of
citizenship. If a person seeks to serve in the Republic of the Philippines, he must owe his total loyalty
to this country only, abjuring and renouncing all fealty and fidelity to any other state.”
Rationales for the Act of State Doctrine:
– Respect for sovereignty of foreign states
 Underhill v. Hernandez, 168 US 250 (1897) p. 619: “Every sovereign State is bound to
respect the independence of every other sovereign State, and the courts of one country will
not sit in judgment on the acts of the government of another done within its own territory.
Redress of grievances by reason of such acts must be obtained through the means open to be
availed of by sovereign powers as between themselves.”

Basis of State Immunity, Art. XVI, Sec. 3. The state cannot be sued without its consent.
Dept. of Agriculture v. NLRC, 227 SCRA: The state cannot be sued without its consent. The assets
of the government cannot be held liable for liabilities of a private person.
When a suit is against the state and when it is not
Consent; Manner by which consent is given
Express consent: by provision of law; when government exercises its proprietary function; when
government initiates a suit.
Yujuico. Atienza, 472 SCRA 463. The City of Manila cannot be excused from paying the property
owner the balance of just compensation because it was the city which initiated the expropriation
proceedings.
Implied consent:
When the Government enters into business contracts
When it would be inequitable for the Government to claim immunity
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Scope of Consent
Chavez v. Sandiganbayan, 193 SCRA 282: A public officer may not be held liable for the
counterclaim by one of the accused when he performs his duties in good faith.

B. Power over foreign affairs


Treaty making power (Art. VII, Sec. 21)
Treaty distinguished from executive agreements
Arthur Lim et al v. Executive Secretary GR No. 131445, April 11, 2002: A party who does not any
legal standing cannot question the constitutionality of the Visiting Forces Agreement.
Please note that the Court has, in a prior case, has made a distinction between an Executive
Agreement and a Treaty. A treaty requires the ratification of the Senate while an Executive
Agreement does not. The VFA is considered supplemental to the Mutual Defense Treaty executed
by the Philippine government and the U.S. government and ratified by both the U.S. Senate and
the Philippine Senate prior to the adoption of the 1987 Constitution.
Read also the EDCA Ruling of the Supreme Court (January 13, 2016)
Deportation of undesirable aliens
Harvey et al v. Defensor-Santiago, 162 SCRA 1988: Under the theory of delegation of powers, the
Commissioner of Immigration, after due hearing, may exclude an alien and the alien’s liberty may
be restrained by virtue of a Mission Order signed by the Commissioner.

C. Independent Foreign Policy and a Nuclear-Free Philippines (Art. II, Sections 7-8 and Art.
XVIII, Sections 4 and 25). This pertains to use of nuclear weapons and not nuclear source of
energy.
Legality of the Use by a State of Nuclear Weapons, ICJ Reports, 1996
Nuclear Test Cases: ICJ Reports
New Zealand v. France, 1974
Australia v. France, 1974
See also Request for Examination (par. 63 of 1974 judgment), New Zealand v. France, 1995
Paquete Habana, 175 US 677, 1900

D. Respect for Human Dignity and Human Rights (Art. II, Sec. 11, Art. III, Sections 17-19,
and Art. XVI, Sec. 5(2))
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United
Nations General Assembly as an offshoot of the aftermath of World War II. The International Bill of
Human Rights consists of the Universal Declaration of Human Rights, the International Covenant
on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political
Rights and its two Optional Protocols.
In a strict sense, the Declaration is not treaty but it has been considered as a constitutive document
for the purpose of defining “fundamental freedoms “ and human rights.”

E. Adherence to International Law (Preamble, Art. II, Sec. 2, Sections 7-8)/ Extradition
The following are some of the generally accepted principles of international law which form
part of the Philippine Constitution:
Pacta Sunt Servanda: states must fulfill in good faith all its obligations (Article 26, Vienna
Convention); U.N. Declaration on Principles of international Law Concerning Friendly
Relations and Cooperation among States
Par in parem non habet imperium: sovereign equality among states; all states are
sovereign equals; an equal state cannot assume jurisdiction over another equal (Article 2,
U.N. Charter which specifies the following elements: states are judicially equal; each state
enjoys the rights inherent to sovereignty; each state has the duty to respect the personality of
other states; the territorial integrity and political independence of the state is inviolable; each
state has the right freely to choose and develop its political, social, economic and cultural
systems; and each state has the duty to comply fully and in good faith with its international
obligations to live in peace with other states).
Principle of state immunity from suit: a state cannot be sued without its consent; two
schools of thought: absolute immunity (acta jure imperii) and restrictive immunity (acta jure
gestionis)
Right of states to self-defense
Right to self-determination: Article 1, U.N. Charter; U.N. General Assembly Resolution
1514 (XV) adopted on 14 December 1960.
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Rebus Sic Stantibus: things remain as they are unless there is a new circumstance/incident
that would affect the performance of an obligation under a treaty.

Secretary of Justice v. Judge Lantion, 343 SCRA 377. Speaking through Justice Melo, the Court
said that “the individual citizen is but a speck of particle or molecule vis-à-vis the vast and
overwhelming powers of government. His only guarantee against oppression and tyranny are his
fundamental liberties under the Bill of Rights which shield him in times of need.” In dismissing the
petition, the Court upheld a citizen's basic due process rights against the government's ironclad
duties under a treaty.” The constitutional issue in the case at bar does not even call for "justice
outside legality," since private respondent's due process rights, although not guaranteed by statute
or by treaty, are protected by constitutional guarantees. It chose not to favor the strict construction
over guarantees against the deprivation of liberty because that would not be in keeping with the
principles of democracy enshrined in the Constitution.

F. The Philippines renounces War as an Instrument of National Policy


In the field of public international law, the law of war has two dimensions: justifications to
engage in war (jus ad bellum) and the limits to acceptable wartime conduct (jus in
bello or International Humanitarian Law). As a humanitarian concern, the laws of war
address declarations of war, acceptance of surrender and the treatment of prisoners of war; military
necessity (use of an attack or action intended to help the military objective and use of proportional
and excessive force to endanger civilians(, along with distinction (careful assessment as to who are
combatants and the civilians) and proportionality( the legal use of force whereby belligerents must
make sure that harm caused to civilians or civilian property is not excessive in relation to the
concrete and direct military advantage anticipated attack anticipated by an attack on military
objective; and the prohibition of certain weapons that may cause unnecessary suffering.

The laws of war should mitigate the consequences of war by:


1. Shielding both combatants and non-combatants from unnecessary suffering;
2. Ensuring that certain fundamental human rights of persons who fall into the hands of the
enemy, particularly prisoners of war, the wounded and sick, and civilians, are protected;
and
3. Endeavouring that peace is restored.

G. Protection of Migrant Workers


The Philippines is a signatory to the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families. This instrument is multilateral
treaty governing the protection of migrant workers and families. Concluded on 18 December 1990.
It entered into force on 1 July 2003 after the threshold of 20 ratifying States was reached in March
2003. The Committee on Migrant Workers (CMW) monitors implementation of the convention, and
is one of the seven UN-linked human rights treaty bodies.

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