POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.
” Matthew 21:22
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POLITICAL LAW REVIEW: ALLIED POLITICAL LAW -
ADMINISTRATIVE LAW
DISCUSSED BY ATTY. DB LARGO
2015 - 2016
SEPTEMBER 5, 2015
LAW ON PUBLIC OFFICERS
1. What is a “public office”?
2. Who is a “public officer”?
3. Who is a “public official”?
4. What is the importance of knowing
the meaning of a “public officer”?
Why is this relevant? Because in the RPC, for example,
there are crimes that can only be committed by public
officers. There are crimes that cannot be committed by
private individuals or if committed by private individuals it
would be another crime
. authority to do the act or exercise that function.
What else? Plunder Law. You would want to know who
will be liable for plunder. What else? Graft and Corrupt
Practices, Jurisdiction of Ombudsman.
What the question is, do we have a common definition of
public officers/officials. The problem is that we don’t
have. So this is your first lesson, public officer will
depend on law regime relevant on the matter.
If you want to know if Plunder Law is applicable, for
example, you need to know the definition of public officer
under the Plunder Law. You will use the definition under
Plunder Law. If you go to Malversation, who will be held
liable for Malversation under the RPC, the RPC provides
also for its definition of public officer. So with Graft and
Practices Act. Ana sya ka tricky class. And if you talk of
Administrative Law, there is also a definition of public
office.
Take a look at Administrative Code, for example:
Sec. 2(9), Introductory Provisions of the
Administrative Code:
Office refers, within the framework of governmental
organization, to any major FUNCTIONAL UNIT of a
department or bureau including regional offices. IT
MAY ALSO REFER TO ANY POSITION HELD OR
OCCUPIED BY INDIVIDUAL PERSONS, WHOSE
FUNCTIONS ARE DEFINED BY LAW OR
REGULATION.
So if kana nga position waley definition ang law sa
function of that position, then that is not an office.
If you are a Mayor and you have a staff, a secretary for
example, I dont think the LGC defines the work of the
secretary of the Mayor. But the Secretary to the
Sanggunian, they have a specific function under the
LGC. So it is an office if the functions of that position are
defined by law or regulation. So it becomes an office in
contemplation of the Admin Code.
So if there is a question on whether there is an abolition
of the office, that office refers to Sec. 2(9) of the Admin
Code.
Officer is also defined in the Admin Code which is
distinguished from clerk or employee. Because under the
Admin Code, for one to be an officer, he must have the
power to exercise a degree of discretion.
Sec. 2(14), Introductory Provisions, Administrative
Code:
Officer – as distinguished from “clerk” or
“employee”, refers to a person whose duties not being
of a clerical or manual nature, involves the exercise
of discretion in the performance of the functions
of the government. When used with reference to a
person having authority to do a particular act or
perform a particular function in the exercise of
governmental power, “officer” includes any
government employee, agent or body having
So ginadistinguish sa clerk or employee. But in RA 6713 :
Code of Responsibility of Government Officials and
Employees, almost all employees are covered.
Sec. 3(b) of Republic Act No. 6713
“Public Officials” include elective and
appointive officials and employees, permanent or
temporary, whether in the career or non-career
service including military and police personnel,
whether or not they receive compensation, regardless
of amount.
As i have said, the idea of public officials, public
employees or officer will depend on the legal regime
applicable to the problem.
So if you want to sue Mr. X under 6713, you go to RA
6713 for the definition.
Under Article 203 of the RPC:
Article 203 of the RPC
“Who are public officers” – For purposes of applying
the provisions of this and the preceding titles of this
book, any person who, by direct provision of the
law, popular election or appointment by
competent authority, shall take part in the
performance of public functions in the
Government of the Philippine Islands, or shall
perform in said Government or in any of its
branches public duties as an employee, agent, or
subordinate official, of any rank or class, shall be
deemed to be a public officer.
Whereas, Admin Code, with discretion, under 6713 all
employees - temporary or permanent, under 203 any
rank or class.
Plunder Law, by appointment, election or contract.
R.A. 7080 (Plunder Law):
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Sec. 1(a):
“any person holding any public office in the
Government of the Republic of the Philippines by
virtue of an appointment, election or contract.”
Now, in the case of Laurel vs Desierto.
Former Vice President Laurel was appointed as chairman
of the national centennial commission; this is an ad hoc
commission because it is only for the centennial
celebration of 1998. When there was the Expo issue, a
case was filed before the office of the ombudsman and
Laurel was impleaded. Laurel argues that the committee
is merely an ad hoc, and besides, there was not even a
clear remuneration from the government (he was only
receiving a honorarium), there is no continuation of
position, that’s why it’s ad hoc. Therefore, it is not a
public office. And if it’s not a public office, the
Ombudsman cannot initiate a case before the
Sandiganbayan. Such initiation of complaint is
questioned by Laurel.
SC said, there are several characteristics of public office.
But these are only characteristics, there are not
elements. Therefore it doesn’t necessarily need to have
all.
What is very important is there is DELEGATION OF
SOVEREIGN FUNCTION. That’s the most important
characteristics of public office.
What the SC is trying to say is basta clear lang nga naay
delegation of sovereign function bisan wala ang lain nga
characteristics, that can be considered as public office.
And it that is considered as public office, the
Ombudsman has jurisdiction.
Why was there delegation of sovereign function?
According to SC, this is a celebration of political or
historical event kay centennial celebration man. And this
in fact, calls for implementation of a Constitutional
mandate. On the otherhand, it is also to attract investors
- so for public purpose.
Ingon sa SC, if all these facts are taken altogether, there
is a delegation of sovereign function to the Chairman
Committee Laurel. Even it is only an ad hoc body. And of
the characteristics supposedly of public office is
continuance of the position. But ingon ang SC, sige lang
walay continuance of the position, ang importante naay
delegation of sovereign function. SC said, yes, it is a
public office.
Important cases: Tan vs Ombudsman, Caragman vs
Ombudsman.
Ombudsman exercises jurisdiction over public officers
even those under the GOCC. But not all GOCCs. Only
those with original charters.
At one point, the government owned PAL but the SC
said, even it was owned by the Government, it was a
corporation which did not have an original charter,
Ombudsman will not have jurisdiction over officers of PAL
in this case.
The important principle, asked many times in the Bar,
you have to distinguish between GOCC with original
charter and without original charter. Those GOCC with
original charters are subject to the jurisdiction of the
Ombudsman.
Another favorite question in the bar on Law on
Public Officers is the NATURE of PUBLIC OFFICE
- Public Office is not a Property and therefor, it is
personal only to the incumbent and it does not pass to
the heirs, obviously.
What is relevant here is in the case of Election Protest,
where the heirs had a counterclaim for damages - the
protestee has counterclaim against the protestant.
Upon the death of the protestant, your heirs cannot
continue the claim for damages because the idea is this
involves public office - upon the death of the defendant,
the case should be dismissed because it cannot be
substituted. You are constituting the public office as
property wherein upon the death of the owner of the
property, the heirs can substitute. This is not the case
because this is a public office.
Therefore, generally in issues involving public office, it is
wrong for one to invoke violation of due process.
Because if you invoke due process, it should be
deprivation of life, liberty or property.
Due process comes in when there is deprivation of life,
liberty or property. And because public office is not not a
property, therefore no proprietary rights, it is improper to
invoke due process.
You can possibly invoke similar premise - fairness - basic
violation of tenet of fair play, but do not invoke due
process clause under the Constitution.
Invoking due process is proper only when
(1) there is deprivation of life, liberty or property; and
(2) against the State.
You know that the Bill of Rights exist as a limitation on
the powers of the State. Do not invoke specific provisions
of the BoR against private companies. That’s the reason
there.
Although public office is not a property, and therefore it is
inappropriate to invoke due process of law, however,
where there involves salary for example or other
emoluments, and that in fact is the core issue between 2
individuals, for example, who should be entitled to that
office, then you may invoke due process because there
you can think of the “office” as a property within the
protection of due process.
In situation wherein there is controversy between 2
persons. Let me clarify that.
If the issue only is “why was I not considered in the
position or ngano giremoved” you claim that you are
entitled to the office - it is not proper to invoke due
process clause. Or you will say the Civil Service is wrong
in saying I am not Eligible when in fact I am Eligible.
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
If the situation calls for, between A and B, who should be
entitled to hold the office, then to that extent, the office
may be considered as property in determining who
between A and B is entitled to the office. Issue such as
one high ranking official appoints A, another high ranking
official appoints B. Who between A and B should hold the
office, then it is proper to now invoke due process. Case
in point, General Manager of Phil. Port Authority vs.
Monserate.
We talk about about De JURE Officers
De Jure Officer
A de jure officer is one who is in all respects
legally appointed or elected and qualified to exercise
the office. The election or appointment complied with
all the requirements of law.
Why is this important? Let us take a look on this problem.
Problem
X and Y were candidates for Mayor in the
Municipality of Z. X won and was duly proclaimed.
However, the Comelec disqualified X later. On June
30, 2013, A, X’s wife, assumed the office of the
Mayor purportedly as X’s substitute. On June 30,
2014, A was ordered removed from office. She then
voluntarily stepped down. Is A entitled to salary for
the period June 30, 2013 – June 30, 2014?
So whenever there is a problem on de jure, de facto
officers, it is something to do with WON the supposed
officers is entitled to the salary. Diba A nagreceive naman
sya every month, is A entitled to reimbursed the amount?
Kung entitled sya sa salaries then wala sya duty to
reimburse. Yes or No?
So only rightful officers are entitled to salaries.
Another situation:
Problem
X and Y were candidates for Mayor in the Municipality
of Z. X won and was duly proclaimed. An election
protest was immediately filed by Y. On June 30, 2013,
X assumed office. On June 30, 2014, the election
contest filed by Y was resolved in Y’s favor. The
decision already became final and executory. X
voluntarily stepped down as ordered.
Is X entitled to the salary he received? Should X
reimburse Y of the salary he received?
Should X reimbursed the government? But he is not the
rightful occupant? So this is where you again apply your
principle of de facto and de jure officer. You remember in
our Local Government Law, we distinguish between a
situation where supposed a LGU is a total nullity. You
remember when we questioned the creation of a LGU? It
should be a direct a action of quo warranto and reserved
only to the State. Malapang vs. Benito.
And we learned that this rule is applicable only of the
municipal court at a a very least is a de facto municipal
corporation. Because if the municipal corporation is a
nullity, any individual and even in a collateral challenge
can question the existence of the municipal corporation.
The same mindset here. Because if the officer is not
even a de facto officer, but a usurper, the usurper is not
entitled to salaries. But the de facto is entitled for
services rendered. And you know, the operative fact
doctrine most likely will apply here. At the time he is
serving as a Mayor, there is no law yet that disqualifies,
because the Congress has not yet (wa nahuman ni sir).
that the election protest yielded to a result that Y was the
electoral winner, the case was a disqualification case.
And then it was decided that X committed election fraud
as basis for disqualification. Lahi tong mu proclaim ang
comelec for example that the electoral winner actually
was Y and not X.
A de facto officer has color of right or title to the office or
has apparent authority to hold the office and has that so
in good faith.
Example
An office has been created and someone has been
appointed to that office and 5 years after, the office has
been declared unconstitutionally created. So the officer
actually held the position as a de facto officer entitled to
salaries.
A usurper is different. In the example given, the wife is a
usurper, she was not elected, definitely she could not
have been a substitute, the wife was really a usurper and
therefore she was not entitled to salaries. Pero kung de
facto pa to xa, entitled to salaries.
A de facto officer cannot be made to reimburse funds
disburse during his term of office because under the
operative fact doctrine, it is as if he was a de jure officer
at that time, he is entitled to emoluments for actual
services rendered. (General Rule. Take note of the EXC)
Problem
X and Y were candidates for mayor in the municipality of
C, X won and was duly proclaimed. An election protest
was filed by Y. on june 13, 2013, X assumed office but on
June 13, 2014, the election protest filed by Y was solved
on Y’s favor. The decision already became final and
executory. X voluntarily stepped down as ordered. Is X
entitled to the salary he received? Should X reimburse Y
for the salary he received?
Answer:
If you apply the general rule, de facto siya entitled to
salary, consequently, dili siya mu reimburse because he
rendered services.
This is the important exception:
While it is true that the de facto officer is entitled to
salaries for services rendered, that principle is modified
when aside from a de facto officer, you also have the de
jure officer, Because this time, the incumbent can
recover, meaning, the de jure officer can recover. Which
means the de facto officer should reimburse the de jure
officer.
Q: Sir, naa diay na sir nga naay de facto pero walay de
jure?
Answer: Yes, for example, an officer was created then 5
years thereafter someone is appointed to the office and
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
the office was declared unconstitutionally created. Wala
may de jure dira, siya raman na ang gi appoint.
But in a situation where an office already exists and
someone was appointed invalidly, and then another one
was appointed validly, then there is now a contestation as
to who between the two shall be entitled to the office, it
so happen that the de facto (ang illegally appointed) mao
moy nag hold sa office for 1 year, under the law diay,
katong isa mao moy entitled sa office. Will the de facto
officer in this situation be entitled to salaries?
Answer: Not anymore. A de facto officer not having a
good title takes the salaries and _____ and must
therefore account to the de jure officer for whatever
salaries he received during the period of his wrongful
tenure.
That’s why I said, dapat in a situation where there is an
election contest nyah ang resolution is “ay si Y actually
ang winner, dili si X.” Between X and Y, there is a de
facto X kay siya man ang nag hold sa office for one year
and there’s a de jure Y because the decision said that he
was supposed to be the one declared as the winner.
It’s different when it is a Disqualification case that was
filed by reason of let’s say election fraud or terrorism.
Because while there may be a disqualification later on,
you cannot say that Y for example can take the position
of X. so dili siya de jure. Na disqualified lang si X but it
doesn’t mean that Y is entitled to the office. (take note,
basin mu gawas sa exam)
Diba gi discuss naman to nako ninyo ang difference
between sec. 68 and sec. 78 of the omnibus election
code and Jalosjos case. So lahi tong eligibility ground for
disqualification kay dili gyud to siya candidate.
Who can recover from whom?
As a rule, the de jure officer cannot recover from the
government but only from the de facto officer. Ayaw
pabayra ug kaduha ang gobyerno.
But in a strange situation where even after the
government have been ordered not continue the
appointment or to allow the de facto officer to hold the
position, but the government still continues, then in this
case, the de jure officer can now claim from the
government. So if the government continues to pay the
de facto officer even if there is already a decision that
indeed the officer is only de facto and someone else is
actually a de jure, then the de jure officer can claim from
the government, otherwise, if that is lacking in the facts of
the case, then you have to recover the salary from the de
facto officer, you don’t get it from the government.
Question by a student: not very clear (inaudible)
Answer of sir: I think if he is only acting mayor, he is not
leaving his office as a vice mayor, his salary is that of a
vice mayor. It is akin to mere designation by operation of
law and designation would not require additional
emoluments.
Question by a student: not also very clear (inaudible)
Answer by sir: de facto xa, no problem, so counted as
one term. But de facto xa at the same time naay de jure,
then the de facto officer should reimburse the de jure.
(sir:but how many of us will fight over salaries? )
Nazareno vs City of Dumaguete, June 2009
What if the appointment is later on approved by the civil
service commission? Dba the function of the civil service
is to determine whether or not the one appointed has all
the qualifications and of course it requires civil service
eligibility. If disapproved later on, will the officer be
entitled to the salary?
Answer:
It depends, if the basis for the disapproval is not a
violation of civil service law but simply because of lack of
qualification, the appointee is entitled to salary. But
where the appointment is done in violation of civil service
law (so dili siya about qualification), the manner in which
the appointment is done is not in accordance with civil
service law, then the government will not be liable for
salary but it is the appointing officer who appointed the
officers in contravention of the civil service law shall be
personally held liable. (this is an important case)
Facts:
Padung na ug end ang term sa mayor, this is similar to a
midnight appointment. The mayor appointed I think about
80 government employees sa city hall. Padung na ma
end iyang term, months before june 30, nag appoint
siya’g about 80 employees, so by bulk siya, liman kag
80. Naa diay rule sa civil service, midnight appointment is
not per se prohibited, pwede ra by one or two or three,
different ni sa atong president, the president of course
prohibited siya sa midnight appointment, of course there
are exceptions sa civil service law. But for local chief
executive, midnight appointment is generally allowed.
The only exception under civil service law, is where the
midnight appointment is by bulk. If midnight appointment
is by bulk, then it is a violation of civil service regulation.
Issue:
Ang city of dumaguete ba ang liable to pay the salaries of
those appointees whose appointments were later on
disapproved by the civil service commission. Kay civil
service commission disapproved the appointments
because of violation of civil service commission
prohibiting midnight appointments by bulk.
So lahi na, you are disapproved kay wala kay
qualifications like youre not a CPA, or disapproved
because of year requirement, or disapproved because
the appointing officer did not have the authority, that’s
different because it’s the appointing officer himself who
will be personally liable. (Take note)
(wala gyud gi address ni sir ang issue as to who is liable
for the salaries of the 80 employees, ni ambak dayun xag
lain topic)
Frivaldo Doctrine
- not alien to you already
- retroactivity of repatriation (?)
Q: Is property qualification valid?
Answer: we know that property qualification is
inconsistent with the essence and nature of a republican
system and the principles of social justice. There is no
specific provision but probably this is an inherent
limitation to providing for some qualifications to public
office. In fact, the constitutional mandate is to give
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
access to opportunities to hold public office and if you put
property qualification like income requirement, its
inconsistent with the nature of republican system that we
have. Same thing with your right of suffrage, well of
course do not think that that is really what is right, we just
think that that is right. Any state can provide for a
property requirement if it really wants to. Mu ingon kag
only tax payers can vote, kinsa may mu question nimu
ana? Dba? We just decided that we don’t put property
disqualification to right to vote and at the same time to
run for public office.
Can a person be compelled to accept an office?
Generally no, definitely it’s involuntary servitude. But an
elected officer who refuses without valid motive to be
sworn in shall be held criminally liable under sec 234 of
RPC. Of course you cannot be compelled to accept an
office but when you decided to run, you hold yourself to
the government and to the public that if you will be
proclaimed winner, you have to.
(sir ni chika about his lawyer friend nga ni run as
councilor and nakadaog, number one pa. but the mayor
died so necessarily nahimo xang vice mayor. He cannot
decline without valid motive (like practice of law sa cebu
but dili mu fall as valid motive kay less than 2 hrs ra ang
cebu to bohol) otherwise liable under sec 234 of the
RPC)
Exception: compulsory, military and civil service under
sec 4 of the 1987 consti and the national defense act. So
national interest here is more important and of
paramount interest than your right against involuntary
servitude.
What is the effect of pardon on the right to hold public
office?
A pardon shall not work the restoration of the right to
public office, so dili na xa automatic. Even the right of
suffrage. You have to check the grant of the pardon,
whether you have been expressly restored by the terms
of the pardon. If you have been restored expressly by the
grant of the pardon to hold public office, can you demand
to get back the previous position that you have been
holding before you have been convicted of a crime? This
was the issue in the case of Ponsanto vs Factoran.
Ponsanto vs Factoran
It’s not automatic. What is restored is the right to public
office but the right to a specific public office, it is not
restored, you still have to undergo the same process of
application. If you are granted pardon and it is expressly
stated that you are restored of your right to hold public
office, you apply again to that position. Chances are you
will be rejected 
To regain a former post involving assistant city
treasurer’s position, she must reapply and undergo the
usual procedure required for a new appointment.
Reason given by the supreme court:
It is because pardon looks to the future, its not
retrospective. Though pardon cannot be entitled to
receive backpay for loss of earnings and benefits.
Definitely, if pardon looks to the future, then you cannot
go back to the position and you cannot claim backpay for
loss of earnings and benefits.
Appointment
It is important to distinguish between designation and
appointment. Appointment generally requires that it
should be in writing. when you are in the government, it
is required that every appointment is in writing unlike in
private company, as you know, that is not required. But
government appointment should be in writing.
Appointment is different from designation.
Five requirements for a valid appointment: (take note)
1. the appointing authority is vested with the power
to appoint
2. the appoint possess all the qualifications
including civil service eligibility and none of the
disqualifications
3. the position is vacant
4. the appointment is approved by the civil service
commission
5. appointee accepts by taking the oath and he
discharges the functions
Problem:
Mayor X appointed A as administrative officer 2 of cebu
city. The appointment states that it was permanent. B,
another person, questioned the appointment on the
ground that he is next in rank being the incumbent
administrative officer 1 while A came from another
department or office of the city hall. The civil service
commission(CSC) approved the appointment of A with a
notation that it is approved as temporary. The CSC
justified its action on the ground that B was better
qualified than A.
Was the act of the CSC proper?
Answer:
So what is the role of the CSC in the appointment
process?
So what is the role of the civil service commission in the
appointment process?
We call it the attestation function of the CSC
Important rules/layer in appointment:
1. Appointing authority's discretion generally prevails,
provide of course that he exercises the power in good faith.
You cannot question the decision of the appointing
authority insofar as who is more or who is better for that
position. That is for the appointing authority to decide. You
cannot reverse that decision. That is why it has been said
that the role of the CSC is simply attestation - just
determine the qualifications. This is different from the
auhtority of the Commission on Appointment because the
CA has a wider discretion compared to the CSC. The only
power over appointment even in the area of who is better
to hold the position is for the CSC employees only. But all
others, the role of CSC is only to attest.
In Luego v CSC, (More likely (Lapinid v. CSC, G.R. No. 96298,
[May 14, 1991], 274 PHIL 381-389)
It cannot disallow an appointment because it believes
another person is better qualified and much less can it
direct the appointment of its own choice.
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2. The role of CSC is only to attest not unless the employee
concern is an employee of the CSC, the CSC can decide on
the fitness of its own employees.
3. Next-in-rank rule. It is not a legal precept. It is simply a
policy of preferential consideration for promotion.
Discretion of the appointing authority prevails over this so-
called next in rank rule. There is no vested right.
So an officer lower in rank but of superior qualification may
be promoted instead.
Distinguish:
1. Appointment from designation
Appointment - selection by the proper authority of the
individual who is to exercise the function of that office
Designation - If you are asked to perform a function not
pertaining to your office after you have been appointed. No
security of tenure and no additional benefits.
2. Permanent from temporary
Permanent - If you have all the qualifications, in particular
civil service eligibility, then you can be appointed on a
permanent basis.
Temporary - You have all the qualifications except civil
service eligibility you can only appointed on a temporary
basis. Result, limited only to 12 months and it will
automatically expire even if there is no qualified
replacement.
Is midnight appointment prohibited in local appointments?
Generally no. What is prohibited is mass appointments
made by an outgoing local chief executive (Nazareno v. City
of Dumaguete, G.R. No. 181559, [October 2, 2009], 617
PHIL 795-817)
This is found in CSC Resolution 01-0988 June 4, 2001
3. Dismissal from expiration of term
4. Career from non-career service
Career - characterized by civil service exam. If you are to
hold a position where civil service eligibility is required then
it is a career position. Security of tenure and opportunity
for advancement to higher career position
Non-career - not based on competitive exam. Tenure is not
security of tenure but limited only to what is provided for
by law. At the very least, co-terminus with the appointing
authority.
Competitive examination is not required in:
* policy-determining
* primarily confidential
* highly technical
Rendering legal advice is either primarily confidential or
highly technical position so you would not be required to
undergo competitive examination. That does not mean that
you don't enjoy secure of tenure.
Arias Doctrine (Arias v. Sandiganbayan, G.R. No. 81563,
82512, [December 19, 1989])
General rule, the head of an office is usually not required to
go over the fine details of documents in projects for
example submitted to him for approval. Otherwise of
course he will be sacrificing all other administrative tasks,
and that is not a sound policy. Supreme Court said we will
be setting a bad precedent if a head of office will have to
double check all the time the work of the subordinates and
failure to do so would be implicating the head to a
conspiracy with the subordinate if the subordinate
committed irregularities. So sometimes heads of offices will
escape liability by invoking the Arias doctrine. His signature
will not necessarily mean that he is in conspiracy with the
subordinate.
This was not applied in the case of Alfonso (Alfonso v.
Office of the President, G.R. No. 150091, [April 2, 2007],
548 PHIL 615-638) which was reiterated in Cesa (Cesa v.
Office of the Ombudsman, G.R. No. 166658, [April 30,
2008], 576 PHIL 345-357)
If there is foreknowledge of facts and circumstances that
suggested an irregularity constitutes an added reason to
exercise a greater degree of circumspection before signing
and issuing public documents and there is failure to prevent
the irregularity then the superior in this case may then be
held liable.
Then the case of Bacasmas v Sandiganbayan. This is a
sequal to the Cesa case.
Petitioners cannot hide behind our declaration in Arias v.
Sandiganbayan that heads of offices cannot be convicted of
a conspiracy charge just because they did not personally
examine every single detail before they, as the final
approving authorities, affixed their signatures to certain
documents.(Bacasmas v. Sandiganbayan, G.R. No. 189343,
189369, 189553, [July 10, 2013])
You have to clarify what happened in Bacasmas. This
involved cash advances. In cash advances in the city hall
here in Cebu City, first there are three levels of signatures.
There is the signature of the cashier. There is the signature
of the city treasurer. Then there is also the signature of the
city administrator. Then you know that COA rules require
that before further cash advances will be made, previous
cash advances should have been properly liquidated. Ang
nahitabo sa Bacasmas, for nine (9) years gabalikbalik ra ning
mga cash advances, walay liquidation.
In other words what the SC was saying is that in this
particular situation, the irregularity could have been
prevented. By what? For example the city administrator.
You could have prevented the irregularity by looking at
whether or not attached to the application for cash
advances are liquidations for previous cash advances. That
is not a difficult task to do. You know that there is COA
regulation requiring liquidation.
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According to the SC, there was no direct participation really
on the part of the city administrator.
As found by the Sandiganbayan, petitioners' acts not only
show gross negligence amounting to bad faith, but, when
taken together, also show that there was conspiracy in their
willful noncompliance with their duties in order to defraud
the government. (Bacasmas v. Sandiganbayan, G.R. No.
189343, 189369, 189553, [July 10, 2013])
I think what struck the SC most was the fact that it was
repeated over a period of nine (9) years.
Documents that are not voluminous however cannot be
justified.
..doctrine in Arias v. Sandiganbayan could not be used by
Ecleo, Jr. to escape liability, as the documents he had to
approve were not so voluminous so as to preclude him
from studying each one carefully. (Santillano v. People, G.R.
Nos. 175045-46, [March 3, 2010], 628 PHIL 62-80)
ELECTION LAW
In the barangay elections of 2002, R and P were
the contending candidates for Barangay
Chairman. Before elections were held, however,
R died and R’s wife sought to run as candidate
in lieu of R. R’s wife won the election, but the
Board of Canvassers proclaimed P as the
winner saying that Sec. 77 of the Omnibus
Elections Code, substitution of candidates is not
allowed inasmuch as the barangay election is
Contention of COMELEC: Substitution is proper only
upon the instance of a political party and since Barangay
election is nonpartisan and so, none of the candidates
can run under a political party and so there can be no
substitution.
Construction and interpretation of election laws: there are
two (2) different approaches when it comes to
interpretation of election laws. (a) One pertaining to the
time before election, and (b) the time after election - or
after proclamation, after one has been declared winner.
“Will of the Electorate Rule”
*sovereignty prevails over law sometimes.
* Mandatory provisions requiring certain steps before
elections will be construed as directory after the
elections, to give effect to the will of the electorate.
*the moment the people, the electorates, have already
set a decision, then you have to set aside these
mandatory rules in favor of the will of the electorate. 1
Joseph Ejercito Estrada’s qualification to run as
president, for the second time in 2010, the COMELEC
washed its hands and let the people decide. It seems
1
Italicized= not mentioned by Atty Largo during our class,
but included in the discussion with the previous batch
that it is a matter that only the Filipino people can decide.
The Constitution prohibits reelection of a president at any
given time. But of course, erap did not win the 2010
Presidential election and so it became moot and
academic.
Technicalities and procedural niceties in election cases
should not be made to stand in the way of true will of the
electorate. Laws governing election contests must be
liberally construed to the end that the will of the people in
the choice of public officials may not be defeated by
mere technical objections. (Rulloda v. COMELEC, G.R.
No. 154198, January 20, 2003; see also Maruham v.
Comelec)
In Rulloda case, the wife sent a letter to the COMELEC
that she be considered as substitute to her husband as
Barangay chairman. At that time, it was still manual
election and her name can still appear, but now its
difficult in automated election system, where there is
advance printing of the ballot.
Defects in the certificates of candidacy should have been
questioned on or before the election and not after the will
of the people has been expressed through the ballots. It
was further held in the said case that while provisions
relating to certificates of candidacy are mandatory in
terms, it is an established rule of interpretation as
regards election law, that mandatory provisions requiring
certain steps before elections will be construed as
directory after the elections, to give effect to the will of
the electorate. (Saya-Ang, Sr. v. COMELEC, G.R. No.
155087, November 28, 2003)
So mandatory rules becoming directory after election.
This is not of course to say that we're talking here of
COC; this is not of course to say that there's nothing
more you can do after elections. That simply means that
your concerns about COC will no longer be entertained
in the same proceedings, but you file proceedings that
are appropriate AFTER elections.
For example, if you're talking about qualifications as
found in COC, provisions relating to file and eligibility. If
you filed petition to deny due course which was
unresolved or petition to cancel COC also unresolved
before election - do not insist on these anymore because
after election, they become immaterial. So your remedy
is what?
Election contest or Quo Warranto Proceeding. These
are the causes of action that you can file after election.
(4) Powers of the Comelec
1. Executive or Enforcement Power- conduct of
election, holding of plebiscite, adjudication
of polling places, conduct of registered
voters, registration and accreditation of
citizen’s arms, prosecution of electoral
offenses.
2. Quasi-legislative Power- issuance of COMELEC
resolutions
3. Quasi-judicial Power- involves disqualification
cases
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4. Judicial Power
No constitutional hindrance to calling the power
COMELEC as judicial because it is by itself granted
the Constitution. This power is exercised when
performs adjudicatory power on election contests
protest.
It is important to know these different powers for different
judicial review, in relation to Administrative law.
You will see the significance later on why we need to
characterize the power. You should know what power is
involved because of the different rules when it comes to
remedies. Your concern is the proper remedies
addressing these powers.
This is the pronouncement of SC in Sandoval v.
Comelec:
The administrative powers of the COMELEC include the
power to determine the number and location of polling
places, appoint election officials and inspectors, conduct
registration of voters, deputize law enforcement agencies
and government instrumentalities to ensure free, orderly,
honest, peaceful and credible elections, register political
parties, organizations or coalitions, accredit citizens’
arms of the Commission, prosecute election offenses,
and recommend to the President the removal of or
imposition of any other disciplinary action upon any
officer or employee it has deputized for violation or
disregard of its directive, order or decision. In addition,
the Commission also has direct control and supervision
over all personnel involved in the conduct of election.
(Sandoval v. COMELEC [2000])
So these are the administrative powers: (Admin powers).
Now in this case of Sandoval v. Comelec, the issue was
what power was involved. Indeed it involved the issue on
whether there is existence of manifest error in the
questioned certificate of canvass (then, not yet
automated election). In the past, manifest error is very
common as when in one precinct for example, muexceed
pa ang figures sa actual voters registered in one
precinct.
Manifest Error: If it is only about mathematical
computation, then it is administrative.
If it is atleast Quasi-judicial, the Comelec shall exercise
its jurisdiction first as a division, and in En Banc only
upon filing of Motion for Reconsideration
If it is administrative (like only mathematical
computation), then it is no quasi-judicial and so Comelec
may resolve the issue En Banc right away.
Ground other than Manifest Error: it would need
presentation of evidence.
As in this case of Sandoval, the issue is not about the
correct figure of numbers, but whether in the first place
there is manifest error. It therefore requires presentation
of evidence, and so it is an exercise of Comelec’s Quasi-
judicial function. In effect, the Comelec should resolve
the same in division first.
of
by In automated election, there is still certificate of canvass,
it but here there is less human participation except in
or touching buttons, so manifest error may not be valid
ground anymore.
But here in Sandoval, the issue however was, there was
a dispute whether or not in the first place it involved the
remedy of Correction of Manifest Error. Here, out of 800
plus election returns, ang nakareflect sa statement of
votes, 790 lang. Daw, there should be a correction as to
the figures appearing in the Statements of Votes (SOV)
because not all Election Returns (ER) had been reflected
in the SOV. But it was disputed that if that was the case,
then that is not simple Correction of Manifest Error - it
should be something else, also a pre-proclamation
controversy.
However, the resolution of the adverse claims of private
respondent and petitioner as regards the existence of a
manifest error in the questioned certificate of canvass
requires the COMELEC to act as an arbiter. It behooves
the Commission to hear both parties to determine the
veracity of their allegations and to decide whether the
alleged error is a manifest error. Hence, the resolution of
this issue calls for the exercise by the COMELEC of its
quasi-judicial power. (Sandoval v. COMELEC, G.R. No.
133842, January 26, 2000)
A Barangay was abolished and merged in a
Municipality. Comelec then issued Resolution No. 2987
for the holding of the plebiscite required by the LGC of
1991. A petition seeking for the annulment of Resolution
2987 was filed before the Regional Trial Court. The
RTC, however, dismissed the case on the ground of
lack of jurisdiction. Was the RTC correct?
Inig abolish, the law will also mention kung asa na siya
mo belong. I-abolish nimu ang entity that does not mean
na ang territory of the people imo ge abolish kai ma
genocide na. Neg abolish nimu sa entity naa pa ang
people og ang territory, asa man sila mo belong? So imo
gyud i-merge. But this situation of merger will require a
plebiscite.
Is the RTC correct? What is needed here is first? Proper
characterization of the function involved.
COMELEC Resolution No. 2987 which provides for the
rules and regulations governing the conduct of the
required plebiscite, was not issued pursuant to the
COMELEC’s quasi-judicial functions but merely as an
incident of its inherent administrative functions over the
conduct of plebiscites, thus, the said resolution may not
be deemed as a “final order” reviewable by certiorari by
this Court. Any question pertaining to the validity of said
resolution may be well taken in an ordinary civil action
before the trial courts. (Salva v. Makalintal, G.R. No.
132603, September 18, 2000)
So wrong si RTC. Naa sya authority to rule on the validity
on the comelec resolution. Kay kung quasi-judicial pa to,
didto sya mo fall sa final order. Mao na ang meaning sa
final order reviewable by certiorari.
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This case of BRILLANTES JR. VS COMELEC. May the
comelec hold or conduct or issue an unofficial or tally
unofficial and published unofficial result?
DILI. They are only allowed to publish official results.
There is no constitutional and statutory basis for the
respondent COMELEC to undertake a separate and an
“unofficial” tabulation of results, whether manually or
electronically. Indeed, by conducting such “unofficial”
tabulation of the results of the election, the COMELEC
descends to the level of a private organization, spending
public funds for the purpose. (Brillantes, Jr. v. COMELEC,
G.R. No. 163193, June 15, 2004) Only nonComelec
agencies may release unofficial release because not
covered by Constitutional prohibition.
Postponement of holding of plebiscite-part of its
incidental or implied powers. If it can postpone holding of
election, it can postpone the holding of a plebiscite, in
order to achieve the objective of holding a free, orderly,
honest, peaceful and credible election (Cagas vs
Comelec)
Election Protest
Jurisdiction of COMELEC
PRESIDENT/VPRES- Presidential electoral tribunal (SC
sitting en banc as PET). Actually, there is no such thing
as PET, but it was coined when the SC exercises
jurisdiction where there are election protests over the
president or vice president.
SENATORS- Senate electoral tribunal
CONGRESSMAN-House of Rep. Electoral tribunal
Officials of Regional (ARMM), Provincial, City Official
(Component/Higly Urbanized/Independent)to COMELEC
(Original)
Officials of Municipal (RTC); Barangay (MTC)– Original
Decisions of RTC/MTC may be appealed to Comelec in
its appellate jurisdiction.
...regardless of whether highly urbanized, independent or
component, basta City official, COMELEC
For Municipal Officials ->RTC, Barangay officials -> MTC.
Decisions of both the RTC and MTC go to the COMELEC.
That's why this involves the appellate jurisdiction of the
COMELEC. Take note, decision of the MTC COMELEC
straight. Same applies to the RTC. So do not liken this to
your regular procedure where the decision of the MTC goes
to the RTC. This is not a regular procedure. And take note,
decisions of the COMELEC in its appellate jurisdiction is
final and executory. Instead we have Certiorari as a remedy.
The concept is under Rule 65, meaning you have to invoke
grave abuse of jurisdiction amounting to lack or excess of
jurisdiction. However we do not apply Rule 65 as a
provision since there is a specific provision for that. That is
Rule 64. The period is 30 days.
Any issue that has started as a pre-proclamation
controversy, if there is AES in the coverage, and you will see
it is very seldom to have a pre-proc under the AES. Except
of course if you question the composition, qualification of
the board of canvassers that can be a pre-proc. This is a
principle that had been there even before the AES. Any
controversy that has started as a pre-proc will become an
election protest after proclamation.
Jurisdiction of the COMELEC. The requirement that there
should be a division before en banc is applicable when the
COMELEC is exercising adjudicatory function.
What about SK elections? ALUNAN CASE. COMELEC does
not have supervision over SK election. It is the DILG.
COMELEC only provides technical assistance to the DILG, in
the form of the preparation of the PCOS, etc.
Can the COMELEC issue writs of Certiorari, Prohibition and
Mandamus similar to regular courts? Yes, with the
condition that it is done only in the exercise of its appellate
jurisdiction. They can only be issued as against the
decisions of the RTC or the MTC.
Is the Supreme Court barred from exercising jurisdiction?
No, because the same power also pertains to the Supreme
Court. But since there is the observance of the hierarchy of
courts, normally the SC will require the COMELEC to resolve
first if there is a pending petition.
(look at this problem)
This involves the legal effect of a proclamation. And the
relationship of the COMELEC and the Electoral tribunal.
Remember, when we studied the jurisdiction of the
COMELEC, we only studied the election protest jurisdiction.
Non-election contest issues, like petition for
disqualification, to deny due course to the candidacy if it
had already been acted upon by the COMELEC, the
following petition is the petition to cancel the certificate of
candidacy. If nothing has been done then, election protest.
After proclamation, he's already serving his term, and the
ground is ineligibility, you have another option, quo
warranto.
All this petitions, short of election contest, COMELEC ni sila
tanan. Even president's COC, COMELEC ghapon. Way
question about it.
But what if there is already a proclamation? Will the
COMELEC cease to have jurisdiction over the issue? and
then convert the issue from disqualification case to election
contest? Because if it is converted to an election contest
and this involves a Congressman, then the COMELEC will
lose its jurisdiction. The respective electoral tribunals will
now have jurisdiction.
So what is the effect of the proclamation? COMELEC will
lose jurisdiction. Electoral tribunals will now have
jurisdiction over the issue. The CAVEAT there is this-> the
proclamation must be a valid proclamation. Because if the
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proclamation is void, the COMELEC can continue to exercise During the May 2013 elections, massive terrorism and
jurisdiction, the proclamation being void. So what are the violence marred the election in the southern municipality
instances of void proclamation? of Cebu. As a result, only about 25% of the registered
voters in the said municipality were able to vote..
* Kani nga problem. Gi-proclaim si X even if the case for
disqualification was not yet final and executory, because PROBLEM: During the May 2013 elections, massive
there was a timely filing of a motion for reconsideration. terrorism and violence marked the
Then you add the fact that the one declared or proclaimed, elections in a remote municipality in the
like Mr. X, was a second placer. And you know the rule. We southern part of Cebu. As a result, only
about 25% of the total registered voters in
reject the second placer. Rejection of the second placer
the said municipality were able to vote. X
rule. was proclaimed the winner having
obtained the highest number of votes.
So our general rule is in LIMKAICHONG vs COMELEC. In fact, Claiming that X and his goons were the
any allegation of invalidity does not by itself bar or prohibit ones responsible for the terrorism and
the electoral tribunal from exercising jurisdiction. It is violence, Y, the losing candidate, filed
expected that the other party will argue proclamation was before the COMELEC a petition to
invalid. The is invalid because the one proclaimed was not declare failure of elections in 58 precincts
in the said municipality. Will the petition
actually the winner. If that is the ground, then the electoral
prosper? Why or why not?
tribunal can have jurisdiction, because the proclamation
itself was not assailed as invalid, but only on the basis of There is no failure of elections. The
the results. case of Soliva vs. COMELEC
enumerates the two (2) requisites for
But if you will say that the proclamation was invalid failure of elections as the following:
because the one proclaimed was a second placer, and the
1. No voting has taken place in the
disqualification case was not yet final, then proclamation
precincts on the date fixed by law,
itself is void. In which case the Electoral tribunal cannot yet or even if there was voting, the
exercise jurisdiction over the issue as the COMELEC retains election nevertheless resulted in
its jurisdiction. That was the case of CODILLA in 2002. the failure to elect; and
2. The votes that were not cast would
Doctrine of Rejection Of The Second Placer rule. affect the result of the election.

In the given situation, it was clear that

CAVEAT, this doctrine presupposes that the certificate of
voting took place. But was there no
candidacy of the first placer is valid. Because if the basis for failure to elect? Failure to elect means
the petition for disqualification is eligibility, and later on it that there was failure to proclaim a winner
will be affirmed that the candidate who got the highest which is wanting in this case since there
vote was not eligible, either because of citizenship or was a winner that was proclaimed which
residency, it is as if that first placer was not a candidate. So is X for having obtained the highest
the votes will not be counted as votes for the first placer, number of votes. The election resulted in
and the supposed second placer can actually be the proclamation of a winner, therefore
proclaimed. Because he is not legally a second placer. This there is no failure to elect.
is the exception to that doctrine. As to the second requisite, mao ning
kasagaran examinee kay musulti naay
Section 68 vs Section 78 -> FERMIN VS COMELEC. failure of elections because of the 25%
figure, samot na’g ilower na siya to 10%.
Substitution Makasulti gyud ka’g “grabeha sad aning
election, 10% ra’y ni-vote.” Take note that
it is not only the number of votes that
It presupposes the existence of a candidate. This is relevant
would matter in determining whether
also to the distinction we made about sections 68 and 78. If there is a failure of elections, always
the basis for disqualification is section 78, then the consider the first element.
respondent in that petition for disqualification is deemed to
be not a candidate. And since he is not a candidate, So if in the problem, naay voting nga
substitution is not proper. That's your TAGOLINO VS HRET. 25% which for one reason or another,
So, very important ang basis sa disqualification. If nacancel could be for force majeure, violence,
based on section 78, no substitution is allowed. terrorism, fraud or other analogous
circumstances, no proclamation was
made, meaning wala sila ka-count sa
Pero kung nadisqualify siya based on other grounds, let's votes, so wa sila ka-canvass. Kay wa sila
say vote buying,. ka-canvass, wa sila’y maproclaim, that is
when there is failure of elections.
(problem)

QUESTIONS REGARDING PARTY-LIST

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1. May a group not representing a marginalized
sector participate in the party-list elections?
Yes, the case of Atong Paglaum, Inc.
vs. COMELEC states that there are three
(3) different groups that comprise the
party-list system, they are the (a) national
parties or organizations, (b) regional
parties or organizations, and (c) sectoral
parties or organizations. National and
Regional Organizations need not be
organized along sectoral lines and need
not represent any particular sector.
2. LGBT group wants to join the party-list system. Is
the group legally allowed to join the same?
Yes, the case of Ladlad-LGBT vs.
COMELEC states that the enumeration of
marginalized and underrepresented
sectors in Section 5 of RA no. 7941 are
not exclusive.
Section 5. Registration. – Any
organized group of persons may
register as a party, organization or
coalition for purposes of the party-
list system X X X Provided, that
sectors shall include labor,
peasant, fisherfolk, urban poor,
indigenous cultural communities,
elderly, handicapped, women,
youth, veterans, overseas
workers, and professionals.
The crucial element is not whether a
sector is specifically enumerated but
whether the particular organization
complies with the particular requirements
in Section 5(2), Article VI of the 1987
Constitution and RA no. 7941.
3. If a party-list group fails to obtain at least 2%
votes in the last two (2) preceding elections, is it
still qualified to participate in the next party-list
elections?
If the party-list group fails to obtain at
least 2% votes in the last two (2)
preceding elections that is a ground for
disqualification under Section 6 of RA no.
7941.
Section 6. Refusal and /or
Cancellation of Registration. –
The COMELEC may, motu
proprio or upon verified complaint
of any interested party, refuse or
cancel, after due notice and
hearing, the registration of any
national, regional, or sectoral
party, organization or coalition on
any of the following grounds:
XXX
(8) It fails to participate in the last
two (2) preceding elections or
fails to obtain at least two per
centum (2%) of the votes cast
under the party-list system in the
two (2) preceding elections for the
constituency in which it was
registered.
There are two (2) grounds mentioned
under such provision. First, you failed to
obtain the 2% and second, you failed to
participate. But is it still a disqualification?
Not anymore. Though it still exists in the
law, according to the Supreme Court, you
should read Section 6 in relation to the
Supreme Court’s latest ruling in Banat. In
the past, the 20% allocation for the party-
list seats was considered in Veterans as
mere ceiling, meaning dili siya
kinahanglan i-fill up. Then according to
the Supreme Court in Banat, if we
comply with the proportional
representation of the computation in
Veterans, it is mathematically impossible
to fill up the entire 20% allocation.
Therefore, to liberalize the idea and to put
more meaning to the very objective of
party-list system, the 20% should not be
considered as a mere ceiling. To deal with
that,
a) Determine who will have a
guaranteed seat – to get a
guaranteed seat, the party list should
have obtained at least 2% of the total
party-list votes;
b) Determine who gets an additional
seat – there is a formula for that in the
ruling. Hutdon na ang 20%. So if naa
pa’y mabilin, bisan katong wala
nakakuha ug 2% kay pwede pa ma-
assignan ug seat until ma-fully filled
up ang 20%.
So the Court said that the failure to obtain
2% of the votes may not be a ground for
disqualification because it is possible that
even if you did not obtain the same, you
can still be assigned a seat in the last
election.
So what the disqualification under
Section 6 means now that you were not
allocated any seat at all in the last two
preceding elections (Philippine
Guardians Brotherhood vs.
COMELEC).
4. X is a lawyer and has as his clients the urban
poor and laborers. This group registered as a
party-list called “Ang Trabahador” and as their
nominee is Atty. X. Can he qualify as a nominee
for the party-list considering that he is not a
member of the urban poor nor of the laborers?
According the Atong Paglaum, Inc. vs.
COMELEC, the phrase marginalized and
underrepresented should refer only to the
sectors under Section 5 that are by their
nature economically marginalized and
underrepresented.
Majority of the members of such sectors
from such party must belong to the
marginalized and underrepresented. X X
X The nominees of the sectoral party
either must belong to the sector or must
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have a track record of advocacy for the
sector represented. You need not wallow
in poverty, destitution or infirmity to be a
nominee.
But take note that in 2001, with regards to
the Party-List called Ang Bagong Bayani
– OFW, the Supreme Court stated that
the persons nominated by the party-list
candidate organizations must be Filipino
citizens belonging to marginalized or
underrepresented sectors or parties.
Since we are talking about sectors, he
must belong to such sector.
But the prevailing rule now is the Paglaum vs.Comelec.
He need not be a member of the marginalized group, as
long as he has a track record for the advocacy of the
marginalized group he is representing.
The phrase “marginalized and underrepresented” should
refer only to the sectors in Section 5 that are, by their
nature, economically “marginalized and
underrepresented.” These sectors are: labor, peasant,
fisherfolk, urban poor, indigenous cultural communities,
handicapped, veterans, overseas workers, and other
similar sectors. For these sectors, a majority of the
members of the sectoral party must belong to the
“marginalized and underrepresented.” The nominees of
the sectoral party either must belong to the sector, or
must have a track record of advocacy for the sector
represented. Belonging to the “marginalized and
underrepresented” sector does not mean one must
“wallow in poverty, destitution, or infirmity.” (Atong
Paglaum, Inc. v. COMELEC [2013])
Power to investigate and prosecute election offenses
The Constitution has not made this power “exclusive” to
the Comelec.
HENCE, THE COMELEC MAY, BY LAW, EXERCISE
CONCURRENT JURISDICTION WITH OTHER PROSECUTORY
ARMS OF THE GOVERNMENT IN THE INVESTIGATION AND
PROSECUTION OF ELECTION OFFENSES AS PROVIDED FOR
IN R.A. 9369 (See: Banat v. Comelec, August 2009)
There had been several criminal cases that where SC
previously ruled that the COMELEC has exclusive
jurisdiction to conduct preliminary investigation in criminal
cases involving electoral offenses. However in the recent
cases like, Banat v. COMELEC, it is not anymore correct that
such is only exclusive to the COMELEC. There is now a
concurrent jurisdiction with other prosecutor arms of the
government in the investigation, and prosecution of
election offenses. This is so because of the change brought
by RA 9369, which practically modified the provision in the
Omnibus Election Code which stated that it is exclusive.
This is affirmed in the case of Arroyo v. DOJ.
Comelec and DOJ in prosecution of election offenses
The grant of exclusive power to investigate and prosecute
cases of election offenses to the Comelec was not by virtue
of the Constitution but by the Omnibus Election Code
which was eventually amended by Section 43 of R.A. 9369.
Thus, the DOJ now conducts preliminary investigation of
election offenses concurrently with the Comelec and no
longer as mere deputies. (Arroyo v. DOJ [2012])
In the past, it was merely through deputies sanctioned by
the COMELEC.
Registration of Voters (R.A. 8189)
Salient Features of R.A. 8189:
Every barangay shall have at least one (1) precinct. Each
precinct shall have no more than two hundred
(200) voters and shall comprise contiguous and
compact territories. [Under R.A. 9369, these
precincts are now “clustered”]
Who May Register? – All citizens of the Philippines not
otherwise disqualified by law who are at least
eighteen (18) years of age and who shall have
resided in the Philippines for at least one (1) year
and in the place wherein they propose to vote for
at least (6) months immediately preceding the
election.
On a side note, the 18-year age requirement must be based
on the age on the day of the election. Furthermore,
residence in Election Law is understood as domicile. Sec. 9
of RA 8189 states:
Any person who temporarily resides in
another city, municipality or country solely by
reason of his occupation, profession, employment
in private or public service, educational activities,
work in the military or naval reservations within the
Philippines, service in the Armed Forces of the
Philippines, the National Police Forces, or
confinement or detention in government
institutions in accordance with law, shall not be
deemed to have lost his original residence.
The following shall be disqualified from registering:
…Sentenced by final judgment to suffer imprisonment
of not less than one (1) year, such disability not
having been removed by plenary pardon or
amnesty: Provided, however, That any person
disqualified to vote under this paragraph shall
automatically reacquire the right to vote upon
expiration of five (5) years after service of sentence.
…has been adjudged by final judgment…of having
committed any crime involving disloyalty to the
duly constituted government such as rebellion,
sedition, violation of the firearm laws or any crime
against national security, unless restored to his full
civil and political rights in accordance with law:
Provided, That he shall automatically reacquire the
right to vote upon expiration of five (5) years after
service of sentence; and
Insane or incompetent person declared as such by
competent authority unless subsequently declared
by proper authority that such person is no longer
insane or incompetent.
There are two stages on when you can question a voter
namely before registration and after registration. Now,
before registration you can actually oppose the application
and this will be acted upon by the Election Registration
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Board (ERB). Now before it will be acted upon, your first
opportunity to question a voter is this, before the ERB. You
can file an opposition, protest to the application of a voter.
If after registration, one can file a petition for exclusion.
That is why we need to know the grounds for
disqualification because in the filing of protest contesting
the registration of application of the prospective voter,
these must be stated as mandated by RA 8189.
Section 11. Disqualification. The following shall be
disqualified from registering:
a) Any person who has been sentenced by final
judgment to suffer imprisonment of not less than
one (1) year, such disability not having been
removed by plenary pardon or amnesty: Provided,
however, That any person disqualified to vote
under this paragraph shall automatically reacquire
the right to vote upon expiration of five (5) years
after service of sentence;
b) Any person who has been adjudged by final
judgment by a competent court or tribunal of
having committed any crime involving disloyalty to
the duly constituted government such as rebellion,
sedition, violation of the firearms laws or any crime
against national security, unless restored to his full
civil and political rights in accordance with law:
Provided, That he shall automatically reacquire the
right to vote upon expiration of five (5) years after
service of sentence; and
c) Insane or incompetent persons declared as such
by competent authority unless subsequently
declared by proper authority that such person is no
longer insane or incompetent.
An illiterate person can vote and therefore can register.
Here is how:
Any illiterate person may register with the assistance of
the Election Officer or any member of an
accredited citizen’s arm. The Election Officer shall
place such illiterate person under oath, ask him the
questions, and record the answers given in order to
accomplish the application form in the presence of
the majority of the members of the Board. … The
application for registration of a physically disabled
person may be prepared by any relative within the
fourth civil degree of consanguinity or affinity or by
the Election Officer or any member of an
accredited citizen’s arm using the data supplied by
the applicant.
Accreditation here is not permanent so every year; you
have to check the citizen’s arm accreditation.
Any voter, candidate or representative of a registered
political party may challenge in writing any
application for registration, stating the grounds
therefor. The challenge shall be under oath and be
attached to the application, together with the proof
of notice of hearing to the challenger and the
applicant.
TN, there is a hearing, the ERB will register in writing and
hear the challenge. Of course, there is also a decision.
If it happens that your application had been denied by the
ERB, your solution is to file a petition for inclusion to the
court—MTC and Metropolitan Trial Court in Metro Manila.
Jurisdiction in Inclusion and Exclusion Cases. – The
Municipal and Metropolitan Trial Courts shall have original
and exclusive jurisdiction over all cases of inclusion and
exclusion of voters in their respective cities or
municipalities. Decisions of the Municipal or Metropolitan
Trial Courts may be appealed by the aggrieved party to the
Regional Trial Court within five (5) days from receipt of
notice thereof. Otherwise, said decision shall become final
and executory. The Regional Trial Court shall decide the
appeal within ten (10) days from the time it is received and
the decision shall immediately become final and executory.
No motion for reconsideration shall be entertained.
No MR is allowed here because it involves a forthcoming
election and issues must be disposed of immediately.
Effect of Registration and Voting in “Residence”
-Will registration of a voter in a place other than his
residence of origin result to abandonment of
residence? (No, according to Perez v. Comelec, 317
SCRA 641)
The act of registration must be coupled with other
overt acts indicative of abandonment of residence.
-Will the act of voting by a voter in a place other than
his residence of origin result to abandonment of
residence? (Not necessarily, according to Domino
v. Comelec, 310 SCRA 641)
Same reason, there must be other overt acts.
What about “Reacquisition of lost citizenship under R.A.
9225”?
R.A. 9225 only provides for re-acquisition of
“citizenship”, not residence. Thus, the candidate
must still show overt acts constituting
“reacquisition of residency” in the Philippines (e.g.
application of Philippine Passport, paying taxes,
etc.) [Japzon v. COMELEC, Jan. 19, 2009]
Q: What is RA 9225?
A: It is an act providing for the Retention and Re-acquisition
of lost Philippine Citizenship. It is applicable only to
natural-born Filipinos who lost their Philippine Citizenship
by naturalization abroad. Hence, they can avail of this law.
This law requires an oath of allegiance, and this act (oath)
would amount to reacquisition. Now, for those who will be
naturalized after RA 9225, they can retain their Philippine
Citizenship by doing also the same oath. In sum, for those
who have lost Filipino citizenship, there is reacquisition,
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while for those who may be losing such after RA 9225,
there is retention.
The question relevant to residence is this, if Mr. X
successfully availed the benefits of this law, will he now be
allowed to vote?
What happened here in Japzon was, indeed he availed
successfully of RA 9225 but he went many times to the
Philippines carrying an American passport.
Q: What is the effect of filing of Certificate of Candidacy for
incumbent officials; will that result to automatic resignation
or forfeiture of the office?
Effect of Filing of Certificate of Candidacy
NOT DEEMED RESIGNED; ONLY APPOINTIVE OFFICIAL
WHO FILED CERTIFICATE OF CANDIDACY WILL BE
DEEMED TO HAVE RESIGNED!
Sec. 13, R.A. 9369: Any person holding a public
appointive office or position, including active
members of the armed forces, and officers, and
employees in government-owned or -controlled
corporations, shall be considered ipso facto
resigned from his/her office and must vacate the
same at the start of the day of the filing of his/her
certification of candidacy.
It depends on the office, whether it is appointive or
elective. For incumbent elective officials, there is no such
thing as automatic resignation. The reason for specifying
appointive officials is found in the Quinto v. Comelec case.
Quinto vs. Comelec (2009; 2010)
2009: The Supreme Court ruled that the differential
treatment of persons holding appointive offices as opposed
to those holding elective ones is not germane to the
purposes of the law, and thus violated the equal protection
clause.
2010: THERE ARE SUBSTANTIAL DISTINCTIONS
BETWEEN “ELECTIVE” AND “APPOINTIVE” OFFICIALS.
Quinto vs. Comelec (2010)
Substantial distinctions exist between elective and
appointive officials. The former occupy their office by
virtue of the mandate of the electorate while the latter by
virtue of their designation thereto by an appointing
authority. The former are obviously engaged in partisan
political activities while the latter are strictly prohibited
from engaging in partisan political activity.
Q: What about infomercials as early as now, would it
constitute premature campaigning?
A: No. Premature campaigning presupposes that the
violator is a candidate and there is no “candidate” while
there is no certificate of candidacy filed and no campaign
period just yet.
R.A. 9369, in relation to “Informercials”
The Commission shall set the deadline for the filing of
certificate of candidacy or petition of
registration/manifestation to participate in the election.
Any person who files his certificate of candidacy within
this period shall only be considered as a candidate at the
start of the campaign period for which he filed his
certificate of candidacy: Provided, That, unlawful acts or
omissions applicable to a candidate shall effect only upon
that start of the aforesaid campaign period.
Penera vs. Comelec (september 2009)
“ However, only after said person officially becomes a
candidate, at the beginning of the campaign period, can
said acts be given effect as premature campaigning under
Section 80 of the Omnibus Election Code. Only after said
person officially becomes a candidate, at the start of the
campaign period, can his/her disqualification be sought for
acts constituting premature campaigning. Obviously, it is
only at the start of the campaign period, when the person
officially becomes a candidate, that the undue and
iniquitous advantages of his/her prior acts, constituting
premature campaigning, shall accrue to his/her benefit.”
Ex. File ka COC sa October. Pag November, nagcampaign
naka. Wa paman campaign period, d paka macharge.an kay
you are not yet a candidate. Pagabot na sa campaign
period, depende sa position, let's say 45 days prior sa
election, let's say April 1, dinha paka sa April 1 pwede
mafile.an ug premature campaign. Isn't that absurd?
So pagcommit nimo sa campaign pagNovember, wala pay
cause of action kay d paman ka candidate. Premature
Campaigning is a crime committed by a candidtate. And
since under the law, you are only considered as a candidate
only UPON THE START OF THE CAMPAIGN PERIOD, d pajud
ka maprosecute.
Under the law you are a candidate only upon the start of
the campaign period.
So Nobvember 2009, a candidate is liable for election
offenses only upon the start of the campaign period. Now
you have to take note that premature campaigning is not
the only electoral offense that a candidate can commit.
So effectively because of the condition saying that you
are only a candidate at the beginning of the campaign
period, effectively wala na na ang premature
campaigning under the new Penera vs Comelec. Indeed
it is not fair if the prosecuted act when committed it was
not yet a crime, what the law says is that any unlawful act
or omission is applicable to a candidate shall take effect
only upon the start of the campaign period.
The SC said, before the start of the campaign period, the
same partisan political acts are lawful. Neither can this
court turn a blind eye to the express and clear language
of the law. The forum for examining the wisdom of the
law is not this court, but the legislature. So take note,
PENERA v COMELEC Nov. 2009.
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Material misrepresentation. Under Section 78, the
conditions must be:
1. Material meaning it refers to matters affecting
eligibility. It is not difficult to understand.
2. There MUST BE DELIBERATE ATTEMPT TO
MISLEAD TO HIDE A FACT.
This is a ground to cancel a certificate of candidacy on
ground of material representation. So you pay attention
to the case of Tecson v COMELEC. SC said, FPJ did not
commit material representation BECAUSE FROM THE
FACTS OF THE CASE, HE HAD SOME BASIS FOR
CLAIMING THAT HE WAS A NATURAL BORN FILIPINO.
Although it was not established with certainty, at least it
cannot also be gleaned from the fact that there was
deliberate attempt to mislead when FPJ declared he was
natural born Filipino. Meaning it was not obvious to
declare that he was not Filipino and he declared that he
was Filipino, there was no deliberate attempt to misled
(asked many times in the bar).
Death of the protestant does not extinguish election
contest, it will continue. Effect of the death of protestant
during the pendency of an election contest Poe v GMA.
Election contest is imbued with public interest. So the
death of the protestant does not extinguish the election
contest, it must continue because someone can actually
continue the case in the person of the one who had
already been declared as validly elected. So this involves
president, for example. Vice president-elect will be
interested in determining whether or not the one who was
earlier proclaimed was actually the winner in the election
because he might become president if it turns out that
the one who was proclaimed winner was not actually the
winner but the one who died. But the rightful winner was
dead at the time, so the vice-elect will become the
president. The candidate is likely to succeed if the
contestant is declared the winner, he will be the real party
in interest. So death of a protestant in election contest
cases will not necessarily result in dismissal because the
public has interest in the results of that election contest.
Question: FPJ Case regarding material
misrepresentation, so what is the effect of that with the
second placer if void ang coc. If he was not a natural
born citizen but he wrote that, isnt it that it will be
considered void?
Sir: yes but according to SC, in Tecson v COMELEC, the
evidence before the SC was not sufficient to conclude
that FPJ was not a natural born Filipino. The issue before
the court was not an election contest, it was whether or
not FPJ committed material misrepresentation because
his COC was sought to be cancelled.
Question: in a petition to deny due course to the petition
for the cancellation under Sec. 78, is it material whether
or not the falsity in the COC is deliberate or not?
Sir: For purposes of material misrepresentation? Yes.
Question: How about determining whether or not he is
actually a candidate and WON applying the Second
Placer Rule.
Sir: That would depend on the final decision of the
COMELEC. If the decision is that it cancels the COC on
that ground then you can say that the COC is considered
void.
Question: Soit is possible that they will not cancel it?
Sir: Yes. That means there is erroneous judgment there.
But of course, that is the COMELEC we are talking
about. If it reaches the SC and sees that it is not a sound
decision, they might consider it cancelled even if the
COMELEC did not.
Question: inaudible
Sir: So, it is either a petition for disqualification on the
ground that he is not really qualified because of a lack of,
let’s say, citizenship. Or you can petition for cancellation
of material misrepresentation? Is that what you are
saying?
Question: yes sir, is it possible to cancel the COC without
the need to show that there is no intent to mislead?
Sir: you can peititon for cancellation on the ground of
eligibility. After proclaimation, it will be converted to a quo
warranto proceeding.
Question: (inaudible)
Refer to FPJ v GMA case said sir.
PUBLIC INTERNATIONAL LAW
Sources of PIL:
If you remember you PIL, sources will be distinguished
as Formal and Material sources.
How it came about. A customary international law is an
example of a source of international law on the basis on
how it came to being. That is why it is called formal,
HOW IT IS BORN. Material, where you can locate the
source of international law. So treaty provisions for
example, when you say State A is liable for an
internationally wrongful act based on a convention or
treaty, then you are invoking a source of international
law, a MATERIAL kind of international law. But ofcourse,
the same provision can be considered a formal source if
you say that that provision is binding because the parties
entered into that agreement/treaty, therefore it was by
virtue of consent, thereby it was binding because of
consent hence formal source of international law.
So as you know, the sources of PIL actually, existed even
before Article 38 (1) of the Statute of the ICJ. Article 38
simply reiterates the sources of PIL. And the ICJ Statute
simply arranged it as primary and subsidiary. So we have
international conventions, this would ofcourse cover
treaties. Why is this a source of international law? This
ofcourse is a source of international law between the
contracting parties. The law that governs the
relationships between two states is international law. So
if State A is bound under the treaty in his relation to State
B, then that treaty is international law between the two of
them. that is why we say international conventions or
treaties are sources of international law. But of course
because of the long history of mankind, a lot of
customary international laws have already been
incorporated and codified in treaties and conventions. So
it is very important to know the Nicaragua case. So you
don’t take the mock bar exam or actual bar exam without
having read the Nicaragua case.
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In the NICARAGUA CASE, the SC said that even if a
customary international law had already been
incorporated in a convention, that customary international
law will not cease to exist, it will continue to exist
alongside conventional law. So customary law which
have already been converted or codified as conventional
law, that still continues to exist. Even if there was a
reservation, for example, on the part of the US in regard
to the application of the jurisdiction of the ICJ when it
comes to implementation of multilateral treaties, that
state may still be bound by customary international law
even if there is a later reservation in that convention that
it will not apply to that state.
SOURCES OF PUBLIC INTERNATIONAL LAW
Classification:
1. Formal sources - how it came into being.
 formal  how it was formed.
 Example: Customary International Law.
2. Material sources – where you can locate the source
of international law.
 From the word “matter”
 Example: treaty provisions state A is liable of
an internationally wrongful act because of
section 10 of XWY treaty of convention.
 But it will be a formal source if you will
say that provision is binding because
the parties enter into that
agreement(treaty), therefore, it was by
virture of consent. So, it became binding
because of CONSENT.
Sources of PIL actually existed even before Art. 38(1),
Statute of ICJ. Art 38(1) simply reechoed thes sources of
PIL. And the ICJ Statute simply arrange the sources into
Primary and Subsidiary.
SOURCES (Formal or Legal) of PI L
case, SC said that even if a customary international law
had already been incorporated in a convention, that
customary international law will not cease to exist. It will
continue to exist along side conventional law. So,
customary law that had been converted/codified as
conventional law can still continue to exist. So, even if
there was for example a reservation on the part of the
United States in regard to the application of the
jurisdiction of the ICJ when it comes to the
implementation of multilateral treaties, that state may still
be bound by customary interational law even if it made a
reservation that the conventional law (UN Charter)
cannot be made applicable to the United States.
What happened in Nicaragua case: US was charged of
using force against Nicaragua. Then, US said, by what
convention are you charging the United States of
violation of international law? Art.2(4) of UN Charter on
prohibition of the use of force. So, it’s a UN Charter, what
is the nature of UN Charter? UN Charter is a multilateral
treaty because it is signed by several parties. Now, what
about the jurisdiction of the ICJ over the United States
involving multilateral treaties? The United States made a
reservation-- okay, we submit to the jurisdiction of the
ICJ but not when the ICJ is being asked to interpret a
multilateral treaty, we don’t submit to the jurisdiction of
the ICJ. So here, you are charging us committing use of
force against Nicaragua and you are invoking a particular
provision of the UN Charter. The UN charter is a
multilateral treaty, in our reservation we declare-- the
moment the ICJ exercise jurisdiction over us involvong
interpretation of multilateral treaty, we are not submitting
to the jurisdiction of the ICJ. Then of course, the ICJ said
—ngano, ang prohibition na the use of force kay
conventional diay? Ingon pud ang US: di, wa na ng use
of force because before cusomary international law siya,
gi.codify man ninu sa UN Charter and now you are
invoking UN Charter. Of course ICJ said—di oi, even if it
is

Art. 38 (1), Statute of ICJ:

Primary:
(a) International conventions
(b) International custom
(c) General principles of law
Subsidiary:
(d) Judicial decisions and teachings of most highly qualified
publicists

codified, it can co-exist along side conventional norm.

So, international customary law will continue to exist
So, we have International Conventions. This will of along side conventional law even if it had been converted
coures covers treaties-- a source of international law into conventional law.
between the contracting parties. The law that governs the
relationship between two states is international law. So, if
state A is bound under the treaty in his relation to state B
then that treaty is international law between the two of
them. That’s why we say that international conventions or
treaties is a sourece of intrenational law. But of course,
because of the long history of mankind, a lot of
customary international laws had already been
incorporated or codified in conventions. It is very
important to know the Nicaragua case. In international law
cases, similar sa mga constitutional law cases, the first
part of the discussion of the court would be on
procedures and the second part would be on the merits.
So first part, discussion on some peliminary objections
on the part of the parties to the case. So in Nicaragua
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 POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
I nternational Conventions/ Treaties
· Whether general or particular and establishing rules expressly
recognized by the contesting States;
· The term “convention” includes (and actually means) “treaty”
· Other terms: agreement, pact, understanding, protocol,
charter, statute, act, covenant, declaration, engagement,
arrangement, accord, regulation and provision.
· “Law-making treaties” vs. “contract treaties”
International Custom – as evidence of general practice
accepted as law.
General Principles of Law – are usually principles
practiced by domestic courts, had been elevated at the
international level of their applicability. But normally
applied in the absence of international convention and
customary international law. Because according to the
tr__perpetua (record deliberation in the formation of the
statute of the ICJ), the general principles of law were
intended to fill the gaps whenever there is controversy
where there is no conventional nor customary
international law applicable to the controversy. Ex. Prior
exhaustion of administrative remedies; Equity;
Prescription; res judicata.
Subsidiary; Judicial decisions and teachings of MOST
highly qualified publicists - it must be MOST highly
qualified publicists not highly qualified publicists only as
highlighted by the SC. So, only those judicial decisions
and teachings of most highly qualified publicist may be
acknowldege as subsidiary sources of international law.
According to some authors, they are not in reality
sources but they are however evidence of the existence
of the sources of international law as observed by these
publicists.
CUSTOMARY INTERNATIONAL LAW
Custom
· Art. 38(1), ICJ Statute: “As evidence of a general
practice accepted as law”;
· Sec. 102, Restatement (Third): “Customary international
law results from a general and consistent practice of
states followed by them from a sense of legal
obligation.”
· Two elements:
(a) Objective Element [general practice]
(b) Subjective Element [opinio juris]
As described in Art.38(1), ICJ Statute—international
custom as evidence of a general practice accepted as
law. From these statement you’ve learned that there are
two (2) elements: (1)Objective element of general
practice; (2)Subjective element of opinio juris. It is
objective element because you want to know whether
states have practiced that. Subjective element is
whether the states observed, not out of convenience but
because the state which obeyed that law believes that
the law is legally binding.
How to
prove?
Nicaragua case; Paquete Habana Case; the case of the
legality of the use/threat of nuclear weapons.
How to check whether states have practiced a particular
norm? how do you evaluate compliance of the first
element? Unsay best evidence of state practice?
- You will look at for example treaties entered into by
the states. If you have treaty A signed by 100 states then
that is one evidence of state practice by these 100 states
because they signed the treaty. What else? Issuances by
the executive department saying, we do this, we follow
this; Supreme court decisions recognizing that its own
state is observing that particular norm. There are many
areas which the Objective Element can be proven.
What about the Subjective Element—what is the
value of General Assembly Resolutions of the United
Nations? Are the General Assembly Resolutions binding?
General Assemmbly Resolutions generally not binding by
itself but it does not mean that they don’t have normative
value (whether it establishes norm) unless of course that
general assembly resolution is a reflection of customary
international law then that geneneral assembly resolution
may be binding not because it is a general assembly
resolution but because it is a reflection of customary
international law. General Assembly Resolutions have
normative value, the value being that general assembly
resolutions are best evidence of the opinio juris. So,
when
states
for
example of the UN say-- we approve this general
assembly resolution saying that this is the norm then we
say that, therefore, these states believe that the norm is
legally binding. Why in the first place these states signed
the general assembly resolution if they did not believe
the binding effect of the norm.
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Questions on CIL:
What constitute state practice? How much practice is required?
Should the practice be universal?
Is it required that all states have practiced the norm? no
Is it required that majority of the states have practiced the norm?
Customary International Law may be:
(1) Universal/General customary international law;
or
· has a lesser threshold
· what is required is only--consistent and
uniform practice of relevant states (Relevant
State Practice).
· Meaning we only count the pratice of those
states affected by the norm.
· So if you talk about whether if a particular
practice involving exclusive economic zone
then, only the practices of coastal states will
be counted. In debate: how many states in
the world are coastal states? How many of
these coastal states had the opportunity to
practice the norm? how many of these
coastal states had the opportunity to practice
the norm, in fact, practice the norm?
(2) Regional customary international law.
· Consistency; higher threshold
· Are non-participating states bound by the
custom? Calls the application of the
Persistent Objector Doctrine.
· Persistent Objector Doctrine – a state is not
bound by the customary international law if
that state, at the inception or development of
that norm (before it became customary
international law), had already (1) objected to
the practice of the norm; (2) consistently
refused to practice the norm; and (3)that this
non-practice of the norm is categorical.
· Violator – if the state at the inception of the
formation of the norm did not object to it
categorically and the objetion was not
consistent later on refuses to practice the
norm.
What evidence is required for opinio juris? General
assembly resolutions considered best evidence;
Nicaragua case; legality on the use/threat of nuclear
weapons.
May treaties be invoke as evidence of customary law? Of
course. May they create customary international law?
Also yes. Why? Because treaties may be reflective of
customary international law (ex. Hague convention on
toture—even non-party to the convention can invoke the
convention not because of the binding effect of the
convention but because of the nature of the provision in
the convention) at the same time treaties may be
considered as evidence of progressive development of
customary international law.
Is there a normative hierarchy in customary law? It
depends--
Geographical: prefered ang Universal than Reagional
(higher threshold);
A Customary International Law may hae already
achieved/reached the status of Jus Cogens.
What is jus cogens?
A jus cogens norm is a preemptory norm where no
derogation is ever allowed. Of course the jus cogens
norm finds its way to ariticle 53 VCLT. So what is the
relevance of jus cogens norms? You know states can
enter into whatever treaty/treaties. The limitation however
substantively is the jus cogens norm. meaning a treaty
provision may be rendered invalid if the treaty violates jus
cogens norm.
Q: What are examples of jus cogens norms?
A: These are preemptory norms where no violation is
ever permitted. Right to self-determination is jus cogens.
Piracy as a crime considered jus cogens. Genocide as a
crime considered as jus cogens. Even torture, prohibition
against torture is also jus cogens. So when we say
heirarchy, there are customary international laws that are
non-derogable. Meaning a treaty provision there cannot
develop unless however by the same manner and
practice a jus cogens norm had been replaced with a
new one. But it would require a more extensive practice
in order to replace a jus cogens norm. I cannot think of
any. Prohibition against the use of force is jus cogens,
although relatively, only in the middle of 21st century.
Q: What about the term erga omnes norm? How is it
differentiated from jus cogens norm?
A: When we say erga omnes norm it is the obligation of
states towards international community. And this has a
special relations with jus cogens norms because when
you have a jus cogens norm that imposes an obligation
then that obligation becomes an obligation towards
international communities and that becomes an erga
omnes norm.
For example: That self-determination is considered a
right is jus cogens and therefore states are obliged to
respect the right to self-determination that is erga omnes
norm obligation.
So jus cogens for the norm, erga omnes norm for the
obligation.
We have the Nicaragua case. Check what are the
customary international law (CIL) norms discussed.
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1. The principle of non-intervention is customary internationally wrongful act, meaning there is no

international law. This is because of the very corresponding state responsibility, then that norm
nature of sovereignty. That we should not be may be considered SOFT LAW. And the only
subjected to external forces. So when the US way by which soft law may be binding is when
trained armed, equipped and financed the soft law had been translated usually into
contras in Nicaragua, the US was considered to domestic legislation.
have violated the principle of non-intervention.
2. Prohibition against violation of sovereignty of Example: The UN Convention on Civil and
another state. That is also CIL. Political Rights, you also have the United Nations
3. Prohibition against the use of force against International Covenant, International Convention
another state, CIL. The US attack ground and on Civil and Political Rights (ICCPR),
naval forces of Nicaragua. International Covenant on Social Economic
4. Right to self defense (Art. 51 UN Charter) Rights. These are examples of soft laws.
requires armed attack against the invoking state.
So if you don’t observe these norms, in the
So Nicaragua armed the rebels in El Salvador
ICCPR or in the ICHCR, there is no
and that’s what triggered the acts of the US in the
corresponding state responsibility right away.
territory of Nicaragua. Because El Salvador was
Unless that particular norm can be found in some
an ally of the US. So when the Nicaraguan govt,
international instruments. ICHR for example
the new leftist govt because the old regime was
prohibits torture. But you cannot sue a state as
toppled down replaced by leftist and so they also
having violated ICCPR as basis for
supported the rebels in El Salvador. El Salvador
compensation. You want to charge the state of an
called upon Uncle Sam, Big brother United
internationally wrongful act. So do not invoke the
States, the US acted on the request because also
ICCPR. Instead you invoke a legally binding
at that time, El Salvador had a mutual defense
convention. For example we have the Torture
treaty with the US and so the US also supported
Convention. You use that. That is the HARD
the rebels in Nicaragua called the contras. So
LAW. The soft law is in the ICCPR.
when Nicaragua armed the rebels in El Salvador,
it was not justifiable on the part of the US to say
Equity can also be a source of public
this is an exercise of self defense because the
international law. In this regard pls refer to:
armed agression even, although the ICJ said it
Art. 38 (2) of the ICJ Statute (Ex aequo et
was not sufficient to establish the right to exercise
bono)
self-defense. Mere arming. There must be
Literary a decision in which equity overrides all
agression. In any case according to the ICJ, the
other rules.
arming of the rebels happened in El Salvador. It
did not happen in the territory of the US. So it
Relevant provision:
was not proper for the US to invoke the right of
Art. 38 (2), ICJ Statute:
self-defense. Esp so that the right of self defense
The list of sources in Art. 38(1) “shall not
is an exception to the general CIL prohibiting the
prejudice the power of the court to decide a case
use of force.
ex aequo et bono, if the parties agree thereto”
So as I’ve said Nicaragua vs US, opinio juris
may be deduced from the attitude of the parties
Q: What’s the difference between equity as a
concerned and that of states to a certain general
general principle of law and equity in ex
assembly resolutions.
aequo et bono?
So CIL in treaties, this would not be a reason for
A: What the distinction of equity in The River
the court to hold that the incorporation of
Meuse Case (Netherlands vs. Belgium, PCIJ
customary norm into treaty law must deprive the
Reports, 1937). In this case there was an
customary norm of its applicability as distinct from
allegation of a violation of the convention on the
that of the treaty norm. I already mentioned this
use of The River Meuse that it should not be
earlier as it was considered as a defense by the
diverted its flow. But of course the one who
US.
alleged that also violated the same convention.
And so what equitable principle of law was
So other possible sources of PIL could be acts if
applied? The equitable principle on those who
international organizations, studies made by the
come to courts must to come to courts with
ICRC for example the international committee on
(rubbing alcohol.haha) clean hands. Mutually
the red cross, the issuances of the ICRC can be
guilty. General principle of law. So how do you
best evidence of Int’l law with respect to Int’l
distinguish that from equity under ex aequo et
Humanitarian Law or the law on armed conflict.
bono. The distinction is this. If you apply equity
because there is neither conventional nor CIL
BAR. Distinguish hard law from soft law.
then you apply equity as a source of law. That’s
not under Art. 38 (2). But if there are conventional
There are norms that have not yet achieved a
or CIL applicable to your case but both parties
level that non-observance of which will constitute
agreed to dispense with this applicable
internationally wrongful act. Where the non-
conventional or CIL but they will yield to equitable
observance of a norm, where result to
norms that the court tribunal or arbitrator will
international or state responsibility, then we call
apply. Sometimes they will agree because
the law HARD LAW. But if the non-observance of
probably the conventions applicable are very old
the law or the norm will not result to
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conventions and they don’t think that applying the
letter of the conventions would be equitable to
both. Mu ingon na okay let’s disregard this
convention, we are okay if you apply equity
instead. So that is in lieu of the applicable rules.
That’s why it says, a decision in which equity
overrides all other rules.
If there is opinio juris, that’s CIL. If there is no
opinio juris, we only call it usage or comity.
are already considred CIL. Like the principle of
non-refoulement, so the receiving state has
actually also the right to assess whether or not
you can be considered a refugee under the
Convention. Basin diay ug groundless na imong
fear. Or maybe dili ka persecuted on the basis of
race, religion, public opinion, etc. so di ka namo i-
accept. You can only be considered an asylum
seeker and we will not accept you because you
cannot be a refugee.

Then we go to Internation Humanitarian Law. BASIC RESPONSIBILITIES OF STATES UNDER THE

Let me proceed to International Refugee Law. REFUGEE CONVENTION

INTERNATIONAL REFUGEE LAW (IRL) 1. Cooperate with the UN High Commissioner for
Why it may be considered appropriate question in refugees (UNHCR)
the mockbar and even in the bar exam? Because 2. Help the UNHCR to provide implementation of
the IRL is a regime that applies both Int’l treaty provisions
Humanitarian Law (IHL) and Int’l Human Rights 3. Inform the UN Secretary General about domestic
Law (IHRL). So the IRL aims to protect person laws adopted to implement the convention
seeking asylum form persecution and persons 4. Not to demand for reciprocity.
recognized as refugees under relevant
instruments. The main sources would of course
be our Refugee Convention including its 1967 WHAT ARE THE CLAIMS OF THE PHILIPPINES IN
Protocol and of course CIL. THE SPRATLY ISLANDS
Q: Who is refugee? How do you distinguish a 3 levels of arguments:
refugee from illegal migrant? How do you
distinguish refugee from internally displaced 1. Ownership. It is part of the Philippine
person(IDP)? So four imporatant terms: refugee, Archipelago.
migrant, internally displaced person (IDP), Historical basis – discovery and occupation by
asylum seeker. Tomas Cloma (1950’s)
- Discovery alone is not sufficient; it
The definition of refugee in the 1951 Refugee should be followed by effective
Convention provides for three elements: occupation which requires a
1. This person as a well-founded fear of being degree of administration in that
persecuted for reasons of (you memorize the discovered territory. And we
5 reasons for persecution) race, religion, complied with that. We made it
nationality, membership of a particular social part of Palawan, a municipality,
group or political opinion. Why is this and Tomas Cloma was the first
important? Because if you are to distinguish a mayor.
refugee from IDP, the definition of IDP is - Pres. Marcos: the Philippines
more generic compared to a refugee. should insist that it was terra
Refugee is more specific. nullus when discovered by Tomas
2. He is outside the country of his nationality. Cloma.
What about a stateless person? A stateless - Terra Nullus: (1) a territory that
person has no nationality and therefore has never been
habitual residence, outside of his habitual discovered/occupied before
residence if he is stateless. If he is not (virgin); (2) already discovered
stateless and he a nationality then outside of before but abandoned because of
his country of nationality. failure to exercise effective
3. He is unable or unwilling because of that fear, occupation.
to avail himself of the protection of the - Spartlys: terra nullus of second
country. kind.
2. If not part of the Philippine Archipelago, but at
You know the Refugee Convention had been
least it is part of the sovereign right of the
crafted precisely to protect nationals of other
Philippines over the Exclusive Economic Zone
countries where their own government had failed
(EEZ)
to protect the rights and in fact are the
3. If not part of EEZ, it is part of the continental shelf
perpetrators of crimes against their own citizens.
regime.
An asylum seeker however is one who is still - UNCLOS
asking for recognition as a refugee. So when a - The regime that applies to the
person is already at the border and asks that he superjacent waters, water
be accepted as a refugee, the receiving state, superjacent the seabed and the
party to the convention, of I think even if you are subsoil – governed by the EEZ
not a party to the convention, you may be bound regime. Includes the fishing
by the CIL provisions in the Convention because rights. (sec. 73)
some obligations under the Refugee Convention
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- Living and non – living things
beneath the seabed and the
subsoil – continental shelf regime.
(sec 76, in relation to sec. 77)
 Distinction: if it is EEZ, there is no legal
requirement that it should be claimed by a
state. On the other hand, under the
continental shelf regime, if you cannot claim
the continental shelf, you cannot have the
sovereign right over the living and non-living
things found in the continental shelf.
- Continental shelf – natural
prolongation of the continent.
Less than 200, you are allowed
up to 200 nautical miles. If the
natural prolongation is more that
200 nautical miles, limit is up to
350 nautical miles. Or you apply,
- Iso vat Rule: where there is a
sudden drop of the continental
shelf, that’s your iso vat, the
sudden dorm is up to the 2,500
meters, the maximum continental
shelf would now be up to 100
nautical miles from the iso vat.
 Importance: Spratly Islands is
within 350 nautical miles.
RESTRICTIVE THEORY OF STATE IMMUNITY
(Doctrine of Qualified State Immunity)
If the situation involves Filipino citizen A, suing the
Philippine Gov’t on the basis of contract, the Philippine
state had already consented to be sued. Under Act no.
3080(not sure si Atty sa no.), as amended by CA No.
327, as further amended by Sec. 26 of PD 1445, money
claims arising out of contract, the Philippine State had
already consented to be sued, provided that the claim is
liquidated.
How to claim (Philippines):
1. Go to Commission on Audit (COA)
- File the claim and prove that there is a valid
contract and the amount claimed is liquidated
– amount is determined or at least
determinable.
2. If claim is rejected, go to REGULAR COURT –
SC on certiorari for money claims, within 60 days
If the suit is by ANY citizen, in PHILIPPINE COURT, and
making a defendant a foreign state, the contract will have
to be characterized whether it is juri imperi or juri
gestionis because under the Doctrine of Qualified State
Immunity, the immunity is only applicable where the
contract was executed by that foreign state in its
governmental capacity or juri imperi. If it is juri gestionis,
it is suable. Ex. US vs. Ruiz
So here we apply the principle, that when the state
enters into a business contract, it descended into the
level of a private individual. But if the contract is juri
imperi, you don’t apply the rule.
USA vs. Ruiz
This case involves the allege irregularities in bidding,
bidding of a contract that involves the repair of wharf
used by the naval forces of the United States. SC: this is
juri imperi because it is for the defense of the US and of
the Philippines under the mutual defense treaty.
USA vs. Guinto
This involves operation of a barber shop. Par in parem
non habet imperium (States are co-equal. No one can
assert jurisdiction over the other.) – basis for the
restrictive concept of state immunity.
Example of juri imperi contracts:
1. Lease by a foreign government of apartment
buildings for use of military officers (____vs.
Lopez)
2. Conduct of bidding for repair of wharf (USA vs.
Ruiz)
3. Change of employment status of base employees
4. Maintenance and upkeep of diplomatic mission
and official residence of an ambassador
(Republic of Indonesia vs. Bengzon)
Example of juri gestionis contracts:
1. Hiring of a cook where not in a military camp but
in a recreation center, restaurant, cafeteria,
bakery (USA vs. Rodrigo)
2. Hiring for operation of barber shop ( USA vs.
Guito)
Who can validly give the consent to be sued? Congress.
(for Philippines)
Republic of Indonesia vs. Bengzon, 2003
Maintenance of the diplomatic mission and the official
residence of the ambassador, contract to repair aircon,
cooling system, etc. was not finished by the ambassador.
The ambassador was sued for specific performance plus
damages. It is provided for in the contract that “any suit
arising from this contract can only be filed in the
appropriate court in the City of Manila.”
Issue: is that implied consent to be sued on the part of
the Republic of Indonesia? (transcriber’s note: Atty said
on the part of Rep. of Indonesia, but from his answer, it
seems like he is referring to the Rep. of the Philippines)
SC: No. for one, only Congress can grant the consent.
When you say implied consent, that refers to the initiation
by the state of a suit where it becomes to be open to a
counter claim. This provision in the contract is not
considered implied consent. For in fact, it may even refer
to a situation where it is the Republic of Indonesia suing,
and so the rule on venue will apply. TN: That is not a
sufficient ground to say that there is an implied consent
to be sued.
However, despite this discussion on State Immunity from
Suit, take note of ICSID (International Center for
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Settlement of Investment Disputes), where the
Philippines is a party. When you are a party to the ICSID,
you don’t invoke State Immunity if an investor sues you
in a tribunal which is accredited by the ICSID (ICSID
does not have its own tribunal). By signing the ICSID, the
Philippines opened itself from suit (Immunity is waived in
advance) to foreign investors if we violate their rights as
an investor. Normally, the violation is under the fair and
equal treatment rule.
SELF DEFENSE
Use of force, when is it allowed?
Prohibition of the use of force – customary international
law
Can you use force? Yes. In the following instances:
1. Individual or Collective Self Defense
2. UN sanctioned use of force. (two ways):
a. Allowing an individual state to use force
b. Allowing a regional security arrangement
or organization to use force.
SEPTEMBER 26, 2015
This subject is entitled international law (pil). But is it
really a law? Or is it a true law? When you study pil, you
need to make a paradigm shift to be able to understand
pil. If you had been used to study civil law, criminal, labor
law, from a civil law approach, that’s not how you study
pil. You study pil like how you study a common law.
Because bisan memorize pa tanan but you started your
pag study sa international law under wrong paradigm,
you might find it hard to appreciate the basic concepts.
Why common law? For example, when you study
decisions of ICJ, you know that stare decisis is not
applicable to the decisions of the ICJ. This means ICJ is
not bound by it’s prior decision (bar exam question)
because of specific provision of statute of ICJ. It does not
say that ICJ is not bound by its prior decision but
because under the statute, it says, the decisions of ICJ is
binding only against the parties and with reference to that
particular case. So that therefore is saying that this
decision had not been treated in the same way we treat
decisions in our civil law, commercial law, etc. In other
words, mag paradigm shift ka. Ky sa civil law, you can
adopt what we call uniformalist approach. Law
sometimes is equivalent to logic. We study law like it is
logic – that we can come up with a definitive conclusion
on the basis of prior decisions of the court. Ky our
decisions of the court, you will notice, naa na iingon ang
ponente na “controversy before as is, whether or not,..
however this issue before the court is not anymore novel.
In 1960’s we resolve this issue as follows. We repeated
the same reasoning… we find no reason to depart from
this rulings in the court in the past.” – so that’s logic.
In pil, that’s not the case because pil is an evolving law
and the first thing you should realize is that unlike in a
domestic legal system where authority is vertical in set
up, there is a higher authority that imposes the law. In pil
there is none. Laws develop or laws evolve because of
state practice. So you don’t have an international
congress where a law is imposed upon subordinates. In
pil, rules develop. Nya ang naka lisod class, international
law develops also depending on experiences of man
kind. So you can’t predict na mau ni ang law ky in the
past mau ni xa. So you can’t say na probably mau
ghapon now.
Example, if you talk about the use of force, what you
have learned is that the use of force is customary
international law, whether there is convention or not,
state is prohibited from using force against the territorial
integrity and independence of other states (UN
CHARTER). But don’t you know that the use of force can
be customary only in the 1940’s? that explains why use
of force in the past and its consequences cannot be
disturbed. Like the Philippines for example, we had been
discovered through use of force and we had been a
colony of Spain. So if use of force unta at that time was
customary international law, invalid na unta ato pag ka
under sa Spain. So acquisition of territory in the past
through use of force is recognized as valid because at
the time States use force, use of force was not yet
customary international law.
Second, customary international law would require state
practice and objective idea of customary internationa law
– generally require long period of time because you want
to determine consistency and uniformity in state practice.
And how can you tell if there is uniformity and
consistency if you don’t allow time to lapse and observe
how states practice regarding that certain norm? But
evolving rule now, because of certain events, some
norms may develop even for a short period of time. Is
there time requirement to determine customary
international law. Generally, it should be long period of
time. But now we can accept instant customary
international law. Some writers propose that the fight
against terrorism should now be customary international
law. And what triggered the quick evolution of terrorism
as prohibited activity and prohibition is considered as
customary international law and therefore that terrorism
is jus cogens and that criminalization and punishment of
terrorist can now be considered erga omnes may now be
accepted as such in regard to terrorism. Because of the
911 incident.
In the past, before the 911, community viewed terrorism
as di pa na – we need more time to include it as part of
customary international law. Wla pa erga omens to
follow. So that in the past, international community apply
the territoriality of criminal prosecution. So if terrorism
was committed in that jurisdiction – that state will have
the exclusive jurisdiction over the crime. But as you
know, if we perceive terrorism as customary international
law or that the duty to prosecute is erga omnes, then
these terrorist can be prosecuted anywhere. That’s now
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the evolving norm. In the past, it is not acceptable, but
after 911, international community accepted it as
customary international law.
A chief negotiator of the UN, this is an actual case, was
killed in Jerusalem. The assassins were allegedly a gang
of terrorists but Israel was not a member of the UN at the
time of the incident. Question: may the UN bring a claim
before an international tribunal to obtain reparation for
the damage caused to the institution because of the
attack made to the UN negotiator or to the victim himself
or any other entitled through the victim like the UN. Does
the UN have international legal personality? Basic
question: who are subjects and who are objects of public
international law?
What do we mean by subject of pil? What do we mean
by object of pil?
Subject: that which or who (ngano naa who, I will explain
later) possess international legal personality and able to
maintain claims at the international level. So 2
components ha. So subjects are those which or who
enjoy international legal personality and being able to
possess international rights and duties, including the right
to bring international claims. This definition was taken
from reparation from injuries case – kato ni problem gi
show nako gnaina, that’s the reparation for injuries case
– ICJ opinion of 1949.
Unlike our Supreme court, the ICJ can give advisory
opinion upon the request of International Organization.
Our Supreme court cannot give advisory opinion ky we
require mn actual case for judicial review. So when the
ICJ was asked to render advisory opinion whether the
UN can bring or institute the claim for damage caused to
it. The icj said that un has international legal personality.
So it is wrong to say that only states can be subject of
international law. That may be true in the past because
traditionally only states are considered to possess
international legal personality. Even international
organization and individuals in certain cases can be
considered subjects of international law.
When we say Object: opposite to subject: wala
international personality. Wla right to possess
international rights and duties, ergo it has no right to
bring international claim. Therefore, how may objects
bring to the international level their claims because this
does not mean that they cannot bring their claim to the
international level. They can but they just cannot do it
directly. That’s possible through what we call the
espousal of claim principle. So if you are mere object
of pil, the only way your interests or causes of action may
be brought before international courts is when these
rights are being espoused by your state. Example: you
are a foreigner in the Philippines. X is a foreigner in the
Philippines. If x suffers injuries as a result of a
government sponsored torture (under torture convention,
it can be called torture if it is government torture.
Otherwise if di xa government sponsored, dili na torture
tawag, infliction of physical injuries lng), what does it tell
you? Is it an international law issue? Yes! Dba nag issue
ta visa or the fact that we welcome foreigner to our soil,
under the minimum standard of treatment doctrine for
foreigners and that minimum standard is fair and equal
treatment of foreigners (that’s customary international
law) – so all foreigners permitted to stay in the territory of
another are entitled to just and fair treatment. Therefore if
the state which allows a foreigner to stay in its territory,
violates the fair and just treatment rule because he is
subjected to torture, there is corresponding international
responsibility. If there is international responsibility, this
means that a state has committed an internationally
wrongful act. Only way you can say that there is
internationally wrongfully act is when states commit
breach of international law or norm and because giving
foreigner equal treatment is an international norm, then
none observance of that is violation of international law
and because there is violation of international law then
there is internationally wrongfully act. And since it is
committed by organs of the state, then it is imputable to
the state. Let’s say American xa, how do you espouse
the claim of the citizen in a foreign soil. Di mn pwd ang
American mu file sa icj ky according to its statute, only
states can be parties to disputes in the icj. So wax a
personality. So ang united states ang mu espouse sa iya
claim at the international level. Because in this case, the
individual is an object of international law.
What was the reason of ICJ in saying that the UN has
international legal personality? The ICJ said that UN is a
specialized body. The UN is composed of states and it is
assumed that when states organize themselves through
the UN, that states conferred international personality to
the UN itself. So ICJ said that “it is at present the
supreme type of international organization with almost
192 members. It’s the largest international organization
and it cannot carry out the intention of the founders if it
was devoid of international personality. It must be
acknowledged that its members, by entrusting certain
functions to it, attendant duties and responsibilities have
flown in with the competence required to enable those
functions to be effectively discharged. So what it tells you
is that traditional international law, only states ang
subject. Now we can refer to international organization
and our basis is the ICJ advisory opinion.
Even individuals (can be very good bar exam question)
can be objects or subject on international law depending
on the situation. There are what we call customary
international norms, some of them has been become jus
cogens, that pertain to rights of certain individuals like the
right to self determination of certain minority groups or
any group for that matter, assuming the elements of the
right to self determination are present. So the right to
self-determination is customary international law.
Jus ad bellum and jus in bello
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International Humanitarian Law or the jus in
bello regime are the laws governing the conduct of war.
Jus ad bellum, the right to war, is the regime governing
when war may be considered just. When can you use
force? When can you engage in war? Like invocation of
self-defense, for example, that’s jus ad bellum. Jus in
bello, is when there is already a war. Whether it is valid
or not does not matter. There is already a law or regime
that governs the conduct of war. What are the rules to be
observed in the conduct of war? That’s International
Humanitarian Law (IHL). One of the rules in IHL is the
principle of military necessity where in the conduct of
military attacks, the State through the military should
spare, for example (This relates to another principle
called the principle of distinction) civilians and civilian
objects from the adverse or harmful effects of such
attacks. That’s why under the principle of distinction,
attacks should be directed only against military objects.
What does it tell you? Civilians therefore and civilian
objects are protected under IHL.
Civilians, in times of war, enjoy the protection of
international law. If so, then you are conferring rights on
civilians. They can be subjects of international law in that
regard. The other question is, can civilians bring such
claims in the international level? That may not be the
case. Assuming that there are people exercising the right
to self-determination like situations of liberation
movements where people want to secede or separate
from a particular territory, exercising their right to self-
determination, whether political, cultural or economic.
Where they are deprived of such rights, the effect would
be armed conflict. Under international law, if armed
conflict is occasioned by the right to self-determination,
even the State party to the war under the 1949 Geneva
Convention may be required to observe the rules of war.
International Armed Conflict and Non-international
armed conflict
If State A versus State B, that’s international
armed conflict. If armed group in State A against State A,
generally non-international armed conflict. When we say
international armed conflict, there is a foreign element
involved. So you have another State. What’s the
significance in distinguishing international armed conflict
from non-international armed conflict? The difference is
the application of the provisions of the four Geneva
Conventions applicable. If it is an international armed
conflict, the High Contracting Parties of the Geneva
Conventions are required to observe the rules of war.
One rule, for example, is when there are prisoners or
captured combatants, they should be accorded the status
of prisoners of war (POWs). If non-international armed
conflict, there is no such obligation of a High Contracting
Party to treat prisoners with the status of POWs,
meaning, they can be prosecuted under the laws of the
State for appropriate charges. They will not be treated as
prisoners of war.
What is the relevance of this? The relevance is,
in the Geneva Conventions, if the conflict is between
a State and a liberation movement properly
exercising the right to self-determination, under jus
in bello, that war is to be characterized as
international armed conflict, even if there is no
foreign element. Even if the conflict is confined within
that particular State. For as long as the conflict is
between a liberation movement, properly exercising the
right to self-determination, and the regular armed forces
of a State, what exists between the two parties is an
international armed conflict. So members of liberation
movements or freedom fighters, if they are captured by
the regular armed forces, they are entitled to POW
status.
What is the relevance of this discussion? The
relevance is that peoples exercising the right to self-
determination are conferred rights and privileges by
international law. Some authors say that to said extent,
even individuals are treated as subjects of international
law.
In instances when individuals are conferred with
international rights such as in the case of peoples
exercising the right to self-determination and in armed
conflicts between liberation movements and the regular
armed forces, these people may be considered as
subjects of international law. Otherwise, these individuals
are objects of international law.
Is public international law a true law?
If you think from the positivist perspective that
there is no higher authority imposing law to the States,
then international law cannot be considered a law. Under
that lens, there is no international institution. But if you’re
not a positivist and you think that international law is
nonetheless observed by States, then to that extent, then
international law is a law. Under the positivist
perspective, the idea is that international law is
something that is enacted, something that is imposed.
Then international law is really not a law because there is
no higher authority, there is no international congress.
But if your idea of international law is something that is
binding and there is observance thereof by States, then
to that extent, international law is law. It is binding
because there is willingness in the family of nations to
observe the law.
There is no international court where all states
may be the subject to its jurisdiction. The jurisdiction of
the International Court of Justice is primarily based on
consent. Even the case of compulsory jurisdiction is still
based on consent. Upon signing the Statute of the ICJ, a
State can manifest that it will be subject to the jurisdiction
of the ICJ in certain cases. That’s what we call
compulsory jurisdiction. It is only compulsory because
the State consents to be bound thereby.
How may the ICJ exercise jurisdiction?
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1. Compulsory jurisdiction. States ratifying the
statute of the ICJ already declared in advance
that they are subject to the jurisdiction of the ICJ
in matters of interpretation of treaties or
conventions, application or any issue on
international law. There is an enumeration in the
Statute of the ICJ.
2. By mutual consent between or among States.
They did not submit themselves to the
compulsory jurisdiction of the ICJ but the parties
to the controversy by virtue of a special
agreement, that they will not be subject to the
jurisdiction of the ICJ.
There is also no international police. The UN Security
Council is only effective to the extent that it is enforcing
the mandate of the UN members. It has to have the
unanimous vote of the permanent members of the
Council. A single veto nullifies any action of the Security
Council. It is not similar to the kind of police we have at
the domestic level. But mind you, Stated do observe
public international law. There are some who deviate
from that norm but generally States observe the norms of
international law. While we do not have an international
police, there are ways by which States can be compelled
to observe international law.
The Doctrine of Self-Help
The doctrine of self-help allows states to enforce public
international law. We have remedies such as retortions,
reprisals and under the 2001 Commentaries to the
Draft Articles on Responsibility of States for
Internationally Wrongful Acts prepared by the
International Law Commission, there is now the notion of
counter-measures. There is now the codification of the
state responsibility regime by the International Law
Commission. Self-help is usually the means employed by
States to enforce international law.
1. Retortion – a lawful act designed to endure the
wrong doing of another State. It is a lawful act.
For example, cutting off of diplomatic relations.
2. Reprisal – is by itself illegal but it may be
rendered legal because of an illegal prior act
committed by the other State to which it is
directed. A typical example of this is illegal
expropriation. For example, an American firm in
the Philippines taken over by the Philippine
Government without just compensation or without
justifiable cause (This is what happened with the
Piatco contracts). One legal remedy of the State
is to do the same within their own jurisdiction.
Reprisal in international law has been criticized
because of the developing notion of use of force.
The traditional notion of the use of force is
military force. The modern concept is not only
limited to the use of military force. Any other
means can be considered as use of force under
modern public international law which can be
considered a prohibited act under the UN
Charter. That’s why reprisals are highly criticized.
Lex lata norms vs. lex ferenda norms
In public international law, there are principles or norms
which all members of the international community can
agree as binding. In other words, they are not criticized.
We call that the lex lata norm of public international law.
When you say lex lata, it is the law.
The opposite of that is developing customary
international norms i.e. the law as it ought to be. We call
that as lex ferenda norms. When you’re studying public
international law, you should be conscious whether such
norm is a lex lata norm i.e. is it a settled norm or a lex
ferenda norm i.e. a progressive development of
international law. Because of the increasing complexities
of human activities, there will always be a new regime
that will develop. International Environment Law, for
example, is a recent development in international law.
Soft law and hard law
There is also what we call as soft law as opposed
to hard law. It is hard law if none-observance of the law
will result to international responsibility. Violation of lex
lata norm would result in violation of hard law. On the
other hand, soft laws are not binding in the sense that
there is no necessary consequence of international
responsibility for non-observance thereof. Nonetheless, it
is an equally significant precept of public international
law. Some norms in international law such as
environment law, is not yet considered hard law. They
are still soft law.
The precautionary principle (Principle 15, 1992
Rio Declaration on Environment Development) in
environmental law for example, provides that when a
State permits the undertaking of an activity in its territory
that might harm the environment, the lack of scientific
proof that such activity will result in harm to the
environment, should not be enough reason for the State
to avoid the adoption of necessary means to prevent or
avoid that impending that harm. The moment that there is
a perceived harm connected to that activity, the State is
not justified in saying that there is no scientific proof that
there this activity really causes harm to the environment
therefore the activity should proceed without necessarily
putting up safety measures to protect the environment.
The precautionary principle may not yet be considered as
lex lata norm but lex ferenda. It could not right away
amount to international responsibility. Some authors
opine that the precautionary principle is in the status of a
soft law. But majority of the authors and organizations
say that the precautionary principle had already reached
the status of customary international law.
Principle of inter-generational responsibility and
similar principles in international environmental law are
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
mostly soft law, non-observance of which will not result to
international responsibility.
In the past, we have retortions and reprisals as
traditional notions of self-help. The modern notion of self-
help now is contained in the Draft Articles on
Responsibility for Internationally Wrongful Acts. We now
call these generally, as counter-measures. The
traditional notions of self-help which are now embodied in
this Draft Articles of State Responsibility are now called
counter-measures. While we don’t have an international
police but an injured state can avail of counter-measures
to compel observance of international law.
So when the left wing government in Nicaragua found to
have aided rebels fighting against el Salvador an, ally of
US, El Salvador sought the assistance of the US and
what the US did raised several complaints from
Nicaragua. One of the alleged acts committed by the US
was that it supported Nicaraguan rebels who are trying to
overthrow the leftist government in Nicaragua. The US
objected of the jurisdiction of the ICJ on the basis of the
reservation it made to the jurisdiction of the ICJ in
matters that involve multilateral treaty. What was the
argument of Nicaragua? Nicaragua said that there was
use of force made by the US against the territorial
integrity and independence of Nicaragua. The US said
that “you were invoking a provision in the UN charter. You
cannot invoke a provision of the UN Charter for purposes
of invoking the jurisdiction of the ICJ because we made a
reservation. If you were to invoke a multilateral treaty, we
reserved our consent to the jurisdiction of the ICJ and
since the UN charter is a multilateral treaty then our
reservation is applicable.” Nicagarua: While we invoke
the use of force under the UN Charter, we’re invoking
customary international law, so regardless if there’s UN
Charter or none, there is this customary international law
on the prohibition on the use of force. Of course, the US
counter-argued that there’s no more customary
international law on the prohibition of the use of force
because it was already codified in the UN Charter. The
ruling there was that a customary international law can
co-exist with conventional international law.
SOURCES OF PUBLIC INTERNATIONAL LAW
- The international law commission was tasked to
draft the sources of PIL. SO they’ve studied
sources of PIL and they came up with a list found
in Art. 381 now found in the Statute of the ICJ. It
says that the ICJ is bound to apply PIL in the
disputes submitted before it. These sources are
categorized as primary and subsidiary. Note
however of the distinction between formal and
material sources. It can be a good question in the
bar.
- Diplomatic bag: what matters is the external
appearance that it is a diplomatic bag so
regardless of size. (He mentioned this when he
remembered this question in our mockbar exam)
- Distinction of formal and material sources:
- Formal source pertains to the binding effect of
the law. How persuasive is this source of PIL.
There’s . State A and State B entered into a
treaty and in their respective treaties they waived
the immunity of their diplomats. What binds State
A and B to that principle between them? Let’s say
the treaty between the two provides for mutual
defense between them? What will bind State A to
assist State B under the mutual defense treaty?
Its consent to be bound by treaty. Hence, the
treaty is binding on States A and B because of
the consent they expressed through that treaty.
That’s the formal source of PIL. How PIL was
formed between them and in relation to whether it
is binding. Material source, on the other hand, is
the substantive content. SO in our example, the
material source there is the mutual defense
treaty. So the treaty is the material source of PIL.
OBJECTIVE ELEMENT AND SUBJECTIVE ELEMENT
- Cases that you might want to read for custom as source
of PIL
= Paqueta Habana case: fishing vessel as prize of war
= Nicaragua case
= North Shelf Continental cases
= The asylum case: Columbia v. Peru: this is with regard
regional customary law
Paqueta Habana case.
- Fishing vessels of Spain were captured by the
US armed forces because WWI involved US and
Spain. It was established that the vessels were
not aware of the existing war between Spain and
the US. The order of the US government to effect
blockade against Cuba. There is a CIL that
commercial fishing vessels would have to be
exempt from capture as prize of war. The US also
has recognized this law as forming part of
customary international law as determined by the
US Supreme Court. How did the US Supreme
Court determine the state practice of this norm?
We have to understand CIL and you know that
the first element is state practice. So where will
you find state practice? You have to find evidence
of the practice. In this case, the US Supreme
Court observed that in the past there had been
recognition of this rule that fishing vessels are
exempt from capture as a prize of war. There had
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been orders issued by Henry IV of England as
early as 1403 and 1406. Emperor Charles the V
and Francis the first of France entered into a
treaty in 1521. Even the Dutch Authorities
recognize this. During the American War, Louie
the 16th of France also mentioned about it. The
US even entered into a treaty in 1785 for the
protection of fishermen in times of war. In 1848,
US and Mexico entered into a similar treaty. The
US ruled that there is practice of this norm among
states.
- whose interests are affected, must be extensive
In Nicaragua v. US, how is opinio juris is determined?
From the Paqueta Habana case we learned how to
determine state practice. So we look at treaties, official
issuances, orders. Treaties can be evidence of state
practice. How about opinio juris and how do we
determine it?
= Opinio Juris requires that there is observance of a
norm not as a result of moral obligation or the need to
have convenience in observing the norm, but because
the state believes that the norm is legally binding. That’s
why it’s important to distinguish custom from usage.
Usage is also state practice but not considered by states
as legally binding.
They are just observing it out of convenience. But if the
same custom have been observed because of the belief
that the norm established by that custom is binding, you
now have opinion juris. That’s what distinguishes custom
from usage, the absence or presence of opinion juris.
- Q: How did the UN established that there is
opinio juris in relation to the determination of
whether or not use of force is customary
international law?
- The UN found relevance in the general assembly
resolution 2625 (Resolution of the 6 th
International Conference of American States
concerning aggression, the Montevideo
Convention on the Rights and Duties of States.
Three important international documents showed
opinio juris. That’s why in the legality of the use
or threat of use of nuclear weapons, the ICJ
mentioned of the relevance of General Assembly
Resolutions. So the rule now is whether the
General Assembly Resolution may not be binding
because it is not a Convention, but it can be
evidence of that opinion juris. So it’s a good
question in the bar: What is the normative value
of General Assembly Resolutions of the UN? It’s
normative value would be that General Assembly
Resolutions are best evidence or proof of that
opinion juris with respect to the particular practice
because why would States sign the GA
Resolutions if they don’t believe the legality and
binding effect of that norm?
- Q: Is long period of practice relevant in
determining formation of customary international
law (CIL)? We said that there is such a thing as
instant customary international law.
- Our basis is North Sea Continental Shelf cases:
Short passage of time is not necessarily a bar to
the formation of CIL. What is controlling is that
the state practice, including those of states
and virtually uniform with regard that provision in
such a way to show a general recognition that it
is a binding law. You have to pay attention also to
the phrase “including that of states whose
interests are specially affected” because state
practice, as related to opinio juris, is related to
the relevant state practice. On the matter of state
practice, is it required that it is unanimous? No,
it’s not required, as long as it is extensive.
- How extensive? Is it a correct analysis when you
say if there are 200 states in the world, around
150 are practicing it and you would say that since
150 states are practicing it then it is already
extensive? Is there a numerical threshold? No.
The element of state practice is not to be
analysed quantitatively but qualitatively. What
matters would be the practice of the relevant
states, those states that are affected by the norm.
- For example, continental shelf cases. If these
practices are practices of states with continental
shelf regime claims, then you count only the
practice of those states which have claimed
continental shelf because when you study law of
the sea later on there’s a difference between EEZ
and Continental Shelf regime. So only the
relevant state practice counts.
- So even if out of 200 states, only 80 states
practice the norm but all of them are directly
affected, then you have a quality state practice.
- 150 states, 100 states have irrelevant state
practice. So you don’t have a quality state
practice.
OCTOBER 1, 2015
Last meeting we were talking about sources of
international law. We took up one of the major sources of
international law and that is customary international law
and we learned that there are two elements for
customary international law, your (1) objective element
and your (2) subjective element. And then I showed you
some cases illustrating how to determine the presence or
compliance of these elements or requisites.
Now we go to the other source of International Law.
Treaty or Convention. Now, note that when Article 38
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
Par.1 of the ICJ statute mentioned of convention as
source of international law, it can mean two things:
It may refer to that law governing between the
parties to the convention. So you see if state A enters
into a treaty with state B then these two states are
govern by the provision of the treaty and because the
parties to the treaty are states then we say that this is
international law meaning between them. Now treaties as
you know may consist of a practically three kinds of
provisions. There are provisions that are by their nature
already considered customary international law in which
case we see the treaty as a mere codification of an
already existing customary international law.
Second, it may consists of provisions that are
binding on the parties but never been practice also by
other states in which case it is not cannot be part of
customary international law but it is international law as
between the parties because the treaty is binding
between them.
Third nature of a provision of a treaty, may be that it
is a new practice by many states and it may be actually a
manifestation or indication of what we called progressive
development of customary international law.
So if you look at treaties, treaties may consist of
various kinds of provisions. Some codifications of already
existing customary international law, others are but
finding only between the parties maybe because of the
peculiarities of the states involved, and third, especially
when these treaties or conventions for the clutter
meaning multilateral treaties, some provisions may be
considered as indicative of progressive development of
customary international law.
So that’s how you should see a treaty. Alright?
Now I have here some questions just to guide us in
the study of the law of treaties.
First question: May the rules found in the Vienna
Convention of the Law of Treaties, the 1969 VCLT which
entered into force in 1980 and when we say the treaties
are already binding we don’t use by the way the term
already took effect, we don’t use the word or phrase take
effect but we use the phrase it entered into force, that’s
the term used in the biena convention law of treaties) be
applied in the following:
A. A dispute involving a total quote treaty between
state A and the IMF world bank. So there’s an
agreement may be they called it a treaty regardless
entered into between state A and an international
organization like the IMF world bank. Will the rules in
the VCLT apply? What do you think based on your
readings?
Again based on what I have earlier said, it depends
on what rule are you talking about because there are
rules that are already customary international law, so with
or without mentioning VCLT, the rule will be apply
between the state A and that international organization
and as I will show later on and treaty may be used as a
term in its generic term or we can mention of a treaty
where VCLT applies and I will explain that later on. So
what I’m trying to say here is don’t get confused. The
VCLT defines treaty as a written and international
agreement in written form entered into states because
you might think that how come it be called a treaty when
the other party is a non state. Its actually a misnomer
class because the definition in the VCLT that the treaty is
entered into between states only means that an
international agreement that falls between that definition
of VCLT will be considered as a treaty for purposes of the
application of the VCLT.
In fact, I think you have it in your review materials,
there are presently conventions also on treaties between
state and an international organization and treaties
entered into between and among international
organizations. So there are conventions already about
that. So do not think that the word treaty is a peculiar
only to international agreements entered into by states.
That become relevant only the fact that it is entered into
by states in written form and to be govern by international
law for purposes of applying the VCLT.
B. A dispute involving in 1960 treaty between state A
and state B.
Now I said, the VCLT is in 1969, meaning it was
drafted in 1969 and submitted for signature and
thereafter ratification beginning 1969 but it entered into
force only in 1980. So what does it mean? Generally as
you will see later on we do apply prospectivity meaning
the VCLT provisions will apply only to treaties entered
into by states after the VCLT entered into force in 1980.
However since the question says may the rules, then
we go back to basic concept if the rule however is
customary international law then it will apply to this 1960
treaty will not be the VCLT but that customary
international law which mean of course the recognized or
modified by the VCLT. Notable example would be your
Pactas Un Servanda. That Pactas Unservanda existed
even before the 1969 VCLT because the VCLT itself is a
modification of customary international law on the law of
treaties and a progressive development of customary
international law. That’s why its called the law of treaties.
It doesn’t mean the law of treaties refer to the BCLT. The
law of treaties means the whole regime of principles and
precepts governing treaties and mostly of course are
already codified by the Vienna Convention Law of
Treaties.
C. A dispute involving a 1995 treaty between state A
and state B but not parties to the VCLT.
So the VCLT may be applied because it is in 1995
treaty but since they are not parties, you don’t apply the
VCLT but you may apply rules found in the VCLT that are
customary international laws.
D. Is an agreement which has the nature of a treaty
but is not reduced to writing a treaty. Is it finding on
state parties to the agreement?
When parties called it a treaty, it may be considered
a treaty but whether the VCLT applies to that agreement
then it has to be in writing. Is it binding? Well the VCLT
may not be applied because it is not in writing. The
definition in the VCLT of treaty is that it must be in writing
but it can still be considered binding if you applied
customary international law.
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E. Australia entered into agreement with the
Philippines stipulating that Australia naval forces
lease a Philippine government’s patrimonial property
in Subic for its naval and military exercises in
Philippines for 5 years and in the amount of
10million. Is this a treaty? Why or why not?
It’s in writing entered into by states. These states,
US and Australia, are parties to VCLT. The other element
of the definition of the treaty is that it is a treaty only if it is
meant to be govern by an international law. So you need
to look into the agreement. What law governs the
agreement, cause if the law that governs the agreement
would point into a law other than international law, it
could be a domestic law. For you know private
international law applies here rather than public
international law. That depends on the agreement
between the parties. That’s why, some authors of the
international law would distinguish between two kinds of
treaty.
Q: Is it binding?
Well, the VCLT may not be applied because it’s not in
writing, the definition in the VCLT of a treaty is that it
must be in writing BUT it can still be considered binding if
you apply customary international law.
Problem
Australia entered into an agreement with the Philippines
stipulating that Australia Naval Forces lease a Philippine
Government’s patrimonial property in Subic for its Naval
and military exercises in the Phils. for five years and in
the amount of P10 million. Is this a treaty?
Sir’s Discussion
It’s in writing, entered into by states, are these states US
and Australia parties to the VCL? The other element of a
definition of a treaty is that it is a treaty only if it is meant
to be governed by international law. So you need to look
at the agreement, what governs the agreement. Because
if the law that governs the agreement would point to a
law other than an international law, could be domestic
law or private international law applies here rather that
public international law. That depends between the
agreements of the parties. That’s why some authors in
public international law would distinguish between two
kinds of treaties: one is what we call law making treaty
and the other is contract treaty.
There are “treaties” that are not meant to be governed by
international law, this is not a source of international law.
Most authors agree that for a treaty to be a source of
international law, it must be a treaty that is governed by
public international law. It is law making treaty if it is
binding similar to a statute.
Answer:
In this case, you can see that the agreement would be
governed by domestic law in particular the obligations
and contract law in the Philippines. Most probably this
agreement is signed here in the Philippines. Most likely
to be governed by domestic law.
Question:
What is the Difference between a signatory to a party or
convention from a party to a treaty or convention
Answer:
A state is a SIGNATORY to a treaty or convention if it has
already expressed it’s consent to be bound through
signature. Pero kung expressing consent to be bound
may be done in various ways. If the representative of the
state signs and that manifest its consent to be bound,
then the state is considered a signatory to the treaty and
there are legal consequences to that (as I will show later
on).
When the treaty or convention enters into force in regard
to that particular state, then the state is considered
already a PARTY to the treaty.
(Side discussion: TIP FOR THE BAR)
Keep the outline, make your own notes and use it as a
guide. Katug jud ug tarung! Kay ma wasted imung 4
years sig tuon nyah ig abut sa bar, ma mental block ka
kay wa kay toun. So katug jud, inom ug beer!
Going baaaack..
A state is a party to a treaty or convention if the treaty or
convention had already entered into force in regard to
that state. (You will see relevance of this later on)
Question:
Difference between signature from ratification
Answer:
Signature – one of the many forms of expressing consent
to be bound
Ratification – ratification in Public international law refers
to two kind of ratification. There is a ratification that is
international in the nature and there is also a ratification
that is internal. So you need to distinguish between
ratification as expression of consent to be bound and
ratification at the domestic level. One way of ratifying a
treaty as consent to be bound in the case of a bilateral
treaty for example, mere exchange of instrument of
ratification (ex. State A: oy we express our consent to be
bound. And the other party: yeah, we also express our
consent to be bound. And you exchange instruments of
ratification) that is the ratification at the international
level.
When you exchange instruments of ratification, that is the
ratification at the international level.
For members of the United Nations, or in the case of a
convention, the convention will identify certain depositary
where they can deposit the instrument of ratification.
It may be the time where the treaty or convention will
enter into force. Or it can be a different mode but usually
that's the case.
Ratification at the domestic level happens when the treaty
is signed by a mere representative of the state. That would
require the ratification by the official having executive
power. In our case we refer to the president. And so the
ratifies the signature of the representative, say the
secretary of foreign affairs.
What's the role of the Senate?
The Senate concurs the ratification made by the President
by a vote two-thirds of all its members. Ratification is
executive. The role of the Senate is to concur.
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Distinguish treaty law from law of treaties.
When we speak of the law of treaties, then you are taking
about precepts and norms governing the parties. Like if you
talk about pacta sunt servanda as a rule that governs state
parties to the treaties.
Or the principle of rebus sic stantibus as an exemption to
the performance of treaty obligations under pacta sunt
servanda then you are talking about rules forming part of
the law of treaties.
But when you speak of treaty law then you are talking
about the manner in which a treaty will be drafted, how it
will be signed, when will it enter into force, what is the rule
on reservations. Treaty law refers to the formation of the
treaty.
If you talk about treaty law, we have provisions of the
Vienna Convention on the Law of Treaties.
January 27, 1980. The Vienna Convention on the Law of
Treaties entered into force.
Prospectivity rule: VCLT applies only to treaties after entry
into force. For those treaties which entered into force
before January 27, 1980, these will be governed by
customary international law on the law of treaties.
Before the VLCT, the law of the treaties has been customary
international law and VLCT is both a codification of this
customary international law and a progressive
development of international law.
To understand comprehensively of the meanings of the
provisions of the VLCT, I invite you to read the commentary
of the International Law Commission and its travaux
préparatoires meaning the preparatory works that lead to
the codification of the VLCT.
Here's the definition of a treaty in VLCT.
(a) “treaty” means an international agreement concluded
between States in written form and governed by
international law, whether embodied in a single instrument
or in two or more related instruments and whatever its
particular designation; (Article 2)
In fact, treaty may come in various forms. You have
agreement, pact, understanding, protocol (we usually use
for treaties that amend, change, or add to already existing
conventions), charter (if it creates or institutionalizes an
international organization), statute (when it institutionalizes
courts), act, covenant, declaration, engagement,
arrangement, accord, regulation, concordat (if the Pope
enters into international agreement with another state)
Temporary treaties - good for a short period of time
Contract treaties - not generating a particular behavior of
states in relation to international law (trade agreements
may be considered)
There's a process of creating a treaty but let's talk about
the important stages. First we need to understand also that
states when they enter into treaties, they are to be
represented by individual persons. So the first thing that
you need to understand is the concept of pleins pouvoirs(?)
Generally for an official to bind the sending state, he must
have full powers.
STAGES OF TREATY
PLEIN POUVOIRS Consent – definition found in Article
2c, VCLT (States represented by individuals)
Article 2(c) “Full Powers”- means a document
emanating from the competent authority of a
State designating a person or persons to
represent the State for negotiating, adopting or
authenticating the text of a treaty, for
expressing the consent of State to be bound
by a treaty, or for accomplishing any other act
with respect to a treaty.
Generally, for an official to bind the represented State, he
must have full powers (Plein Pouvoirs).
There are officials presumed to have full powers. And so
these officials do not need full powers (the document) to
represent the State. Article 7, 1b and 2 ex. Head of
state, head of diplomatic missions.
As for Heads of States, presumed to have full powers at
all stages. As for heads of diplomatic missions, such as
the ambassador, the presumption is limited (See Article 7)
Article 7: Full Powers
1. A person is considered as representing a
State for the purpose of adopting or
authenticating the text of a treaty if:
(a) He produces appropriate full powers;
or
(b) It appears from the practice of the
States concerned or from other
circumstances that their intention
was to consider that person as
representing the State for such
purposes and to dispense with full
powers.
2. In virtue of their functions and without
having to produce full powers, the
following are considered as representing
their State:
(a) Heads of State, Heads of
Government and Ministers for
Foreign Affairs, for the purpose of
performing all acts relating to the
conclusion of a treaty;
(b) Heads of diplomatic missions, for the
purpose of adopting the text of a
treaty between the accrediting State
and the State to which they are
accredited;
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(c) Representatives accredited by States
to an international conference or to
an international organization or one
of its organs, for the purpose of
adopting the text of a treaty in that
conference, organization or organ.
ADOPTION OF THE TEXT OF THE TREATY (Stage)
After the negotiation, the parties adopt the text of the
treaty. (see Article 9, VCLT- acc. to some authors as
reflection of a progressive development of PIL; some
authors consider this as customary international law)
Situation 1: States A, B, C, and D initiated meeting and
decided to enter to a multilateral treaty. In order to validly
adopt the text of the treaty, all states will have to consent
to adopt (Rule of Unanimity applies).
Situation 2: International conference (regular
conference), where states did not initiate the meeting.
Ex. ASEAN Members, if in the course of the conference
they were able to form a draft of a treaty then vote of 2/3
votes of States present and voting is required (to adopt
the text of the treaty resulting from such international
conference), unless the treaty itself provides for a
different voting requirement.
Legal significance: after adoption, treaty will be prepared
in final form (authenticated)—the text of treaty dictates
the next step/s such as:
(1) how will the State express its consent to be bound;
(2) how does the State perform ratification;
(3) when will the convention enter into force;
(4) will there be reservation;
(5) as to States/parties not part of the convention, how
will they become parties later on after the convention has
entered into force
Expression of Consent to be Bound—depends on the
text of the treaty
· through Signature (Article 12)
· through exchange of instruments, constituting a
treaty (Article 13)
· through ratification, acceptance, approval (Article
14), accession (Article 15)
· or any other means agreed upon by the parties
Examples:
Exchange of instruments and ratification between
contracting parties, usually bilateral treaties.
As for conventions, multilateral treaties they usually
identify a depositary, usually the Secretary of United
Nations or members of UN.
Accession when a third State which did not take part
in the negotiation, consents to be bound to the treaty
and ratifies it
Is the consenting State now bound to the
(substantive) terms and provisions of the treaty?
(since the State already gave its consent to be bound)
A: Legal Obligations before Treaty enters into force (Art
18, VCLT). To refrain from the acts which would defeat
the objective and purpose of a pending treaty.
When will the state reduce its carbon dioxide emission? It
can be done of course by domestic law, but when siya
magstart ug comply ana?
A Signatory is not yet bound by the terms and substantive
provisions of the treaty. But does it mean that the signatory
state can just perform any act? The most important article
in the VCLT in this regard is Article 18.
* “Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND
PURPOSE OF A TREATY PRIOR TO ITS ENTRY INTO FORCE A
State is obliged to refrain from acts which would defeat the
object and pur pose of a treaty when:
* (a) It has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to
become a party to the treaty; or
* (b) It has expressed its consent to be bound by the treaty,
pending the entry into force of the treaty and provided that
such entry into force is not unduly delayed.
Typical example of this one is the behavior of the US in
regard to the Rome Statute. President Reagan signed it in
2000. Signatory pa lang. But nagchange ug mind ang US, in
particular, the provision which would compel all contracting
parties to surrender the person accused before the
International Criminal Court. In 2002, nimanifest sila nga
while we signed it in 2000, we manifest our intention not to
become a party to the treaty. A typical example of a
withdrawal of a signature.
Pero kung party ka, you cannot just withdraw without
complying with the provisions of the Convention and the
treaty. Unlike if signatory ka, you can withdraw it anytime
without requiring any condition. However, nanginvite ang
US ug states and they entered into the exchange ug notes. I
think it's the case of BAYAN MUNA VS ROMULO. Whether
or not katong exchange of note between the Philippines,
nga ni-agree ang Philippines not to surrender an American
national in the Philippines if accused of an international
crime.
The issue there is if whether or not the exchange of notes
would require the concurrence of the Senate, and the SC
ruled that such is an executive agreement and so it would
not require the concurrence of the Senate, not considered
a treaty.
Some states observe that as a violation of Article 18,
because at that time they had not yet withdrawn their
signature. Nobody of course made a big deal about it.
Those were just some observations.
Then we go to Entry Into Force.
Generally, the treaty will enter into force as soon as all
negotiating state had expressed their consent to be bound.
But the exception “unless otherwise stipulated in the
treaty” had been observed as the general rule. The treaty
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itself will provide the date when the treaty will enter into Another example, when the convention says
force. “law” the State may understand it as a statute
enacted by Congress. Therefore, ordinances or
What about third states which are not parties but later on local legislation is not in compliance with the
requirement.
accede to the treaty? When shall the treaty enter into force
with regards such state? Rule 1 is that which is provided for CAN A RESERVING STATE BE REGARDED AS A
in the treaty. Otherwise, we apply Article 24 → if it has PARTY TO A TREATY WHILE MAINTAINING ITS
already expressed its consent to be bound by the treaty. RESERVATION IF SUCH RESERVATION WAS
OBJECTED TO BY ONE OR MORE OF THE PARTIES
Another important question is with regards to reservation. BUT NOT BY THE OTHERS?
What is the rule? You might want to take a look at other
relevant concepts in reservation. Example, a state made a reservation which was objected
to by 40% of the parties, while the others did not object.
You must consider what the effect of such reservation is
We call these in PIL as RUDs → Reservation, Understanding,
as between the reserving State and those who objected
Declaration. to such reservation and to those who accepted the same.
This was explained in the ICJ Advisory Opinion of 1951,
* When we talk of reservation, it only applies to multilateral this is the reservations to the Genocide Convention.
treaties. There is no reservation if it is bilateral. Otherwise it
will only be considered as a counter-proposal. The answer is leaning towards making sure that the
* Reservation is the solution to the difficulty encountered reservation will not be valid if it contravenes or is not
by most state when they negotiate about the terms of the compatible with the object and purpose of the
treaty. convention, precisely because this deals with a jus
cogens norm which is genocide. If you look at the ICJ’s
answer, the rule is that:
Chances are not all states will agree on everything. Most
likely you agree on some provisions while you disagree
1. The reserving state can be regarded as being a
on others, but you still want to be part of the convention,
party to the convention if the reservation is
so your solution is reservation. So what you do is you
compatible with the object and purpose of the
sign, so you become a party to the treaty but when we
convention. (7-5 voting)
become parties to the treaty, Articles 1, 2, 3 and 4 should
not be applicable to us. So that is reservation. You
But who determines whether it is compatible or
reserve that specified articles or on the matter of XXX are
not? The International Law Committee in its
inapplicable to us.
commentaries on the Vienna Convention on the
Law of Treaties said that it is for the party state to
A good example is the reservation made by the
determine if its compatible or not. In other words,
United States on the compulsory jurisdiction of
it is subjective;
the ICJ in regards to the application of multi-
lateral treaties. US said “We submit to be bound
2. If the objector considers the reservation as
and we submit in advance to the jurisdiction of
incompatible with the object and purpose of the
the ICJ but not when what is to be interpreted by
convention, then it can in fact consider the
the ICJ is multi-lateral treaty or convention.”
reserving state as a non-party to the convention.
We look at the relationship of the reserving state
Understanding or Declaration is different from
and those who objected to the reservation, if
reservation. While in reservation a state wants to be
between them ma-consider ba’g party ang
exempt from the application of a particular provision, in
reserving state to the convention.
Declaration or Understanding, the State does not
altogether exempt itself from the application of the
When would that be relevant? It will be relevant
provisions but in such application, it should be applied to
when there are cases between them. So if ang
them based on how the state understood the provision.
objector states that “ni-object man mi sa imung
In other words, we are willing to be bound by the
reservation! So you cannot now invoke this
convention but when it will be applied to us, it will be
convention and ask us to comply with its terms
applied in this particular way.
and conditions because you are not a party to it.”
So the objector can invoke that.
Example, the convention simply says that a
particular obligation is to be performed by all
REGISTRATION IN TREATY LAW
members of the convention when it is duly
affirmed by the legislature. Then some states will
Article 102 (1), Chapter XVI of the UN Charter
say that such requirement that it be affirmed by
“Every treaty and every international agreement
the legislative branch should be interpreted as to
entered into by any Member of the United
be affirmed only by one branch of the
Nations after the present Charter comes into
government, instead of the entire legislature. We
force shall as soon as possible be registered with
can say that it is to be affirmed by the Senate
the Secretariat and published by it.”
only. That is our understanding of what a
legislative act is, that it pertains to the Senate
What is the effect if the treaty is not registered with the
only which has the power to concur treaties and
Secretariat?
conventions.
Article 102 (2), Chapter XVI of the UN Charter
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“No party to any such treaty or international
agreement which has not been registered in
accordance with the provisions of paragraph 1 of
this Article may invoke that treaty or agreement
before any organ of the United Nations.”
It has nothing to do whether it is binding or not,
the only consequence is that you cannot invoke it
before any organ of the United Nations, what
does this mean? If you want to enforce it, you
cannot go to the ICJ because you have not
registered it.
It’s still binding between them which means, if the other
party maliciously fails to comply with terms of obligations
and it amounts to internationally wrongful act. That may
be a case of state responsibility. But you cannot go to the
ICJ for that. It may be that you will ask both parties. If
both parties will agree, let it be submitted to arbitration ky
lain mana nga agency, di mana U.N., or probably they
have regional institutions but not an agency or organ of
the UN.
IMPORTANT RULES WHEN THE TREATY ENTERS
INTO FORCE:
Pacta sunt servanda – the treaty must be observed or
complied with in good faith.
· There are exceptions to the pacta sunt servanda
rule,
o one of which is REBUS SIC STANTIBUS
as justification for not complying with the
terms of the treaty.
o JUS COGENS – also a limitation to pacta
sunt servanda. Article 52 of Vienna
Convention Law on Treaties provides that
if stipulation violates peremptory norm
where no derogation is permitted, then
that is a void stipulation.
· PARTY CANNOT INVOKE A DOMESTIC LAW
TO EVADE COMPLIANCE OF TREATY.
o If it is for the purpose of enforcing the
treaty at the domestic level, then the
State will have sovereignty over that. But
if it is complying with the treaty in relation
to other States, then this is where
domestic law must be set aside because
a party cannot invoke a domestic law to
evade compliance at the international
level which means that non compliance at
the international level of the obligation
even if it is in compliance with the
domestic law will still amount to
international responsibility.
Interpretation of treaties: 3 basic rules of interpretation of
treaties:
We are to be governed by the text of the treaty. But if you
look up treaty stipulations, there is specific meaning to
the textualist approach of interpreting a treaty. We don’t
just look at the text at it is. If we look at the Vienna
convention on the law of treaties, interpreting text of
treaty and giving it ordinary meaning shall be done also
with due regard to the context and even object and
purpose of the treaty. That’s how complicated it is if you
talk about interpretations of treaty. In other words, you
cannot just interpret the words in isolation with its context
meaning the circumstances in which the treaty has been
entered into plus the object and purpose of the treaty.
That’s a different kinds of textualist approach.
Then of course, intent of the parties would be helpful and
the object and purpose of the treaty. In the winning case
of convention about giving moratorium to catching and
killing of whales, 2014 case, it had been observed that
while the convention allows the catching and killing of
whales for scientific purposes, it had been observed that
the practice of japan in regard to scientific research – so
this is a case applying the theleological interpretation of
treaty – meaning: we interpret the treaty on the basis of
the object and purpose of treaty. Theleological, from the
word thelos which means end goal object. So normally
that’s the governing rules in interpretation of treaties.
Now to help understand the provisions of a treaty, we
resort to preparatory works and the circumstances of the
conclusion. This is the CONTEMPORANEITY RULE in
interpreting the treaty (sir: so in the bar exam, this may
come out as an objective type rather than you will be
given a problem and then you will be asked to interpret a
treaty. In 1995 bar, almost all questions were about
public international law so always prepare for the worst.
Anything can happen so ayaw pag think sa mockbar na
mau diay ni ang bar)
We don’t have the time to go over each and every basis
for invalidity or causing the treaty to be defective. But
please go over. Codal rani xa. You read article 36-53.
In the bar exam, ang favorite grounds for invalidy: error,
wla pako nakita fraud or corruption or coercion of threat
and use of force.
But of course if it contravenes jus cogens, then you know
that that is an invalid treaty. So take a look at error. I
even mentioned the requisites of error to be considered
basis to invalidate a treaty.
There are 3:
1. Error be about a fact or situation which assumed
to exist at the time of the conclusion of treaty
2. It formed the essential basis of consent – more or
less similar to error as ground to vitiate contracts
3. State has not contributed to the error
Discussed in Cambodia vs Thailand involving a treaty
which was entered by Cambodia and Thailand on the
basis of erroneous map because that was a case
involving a temple in Thailand. And os there was claim as
to temple pertaining whether to Cambodia or Thailand
and one party invokes error because it said that they
entered into treaty on the basis of map which turned out
to be erroneous. Accdg to the icj, well you contributed to
the error ky kamu nag contribute sa map so you cannot
say you were misled in to signing the treaty on the basis
of an erroneous document because you contributed to
the error. So it’s a ground to deny claim of error.
But of course if it contravenes jus cogens, then you know
that that is an invalid treaty so you please you take a look
at error, so that is what I exerted effort to make an
enumeration to make error to be considered basis to
invalidate the treaty.
Requisites for error to invalidate an error:
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1. The error must have been about a fact or
situation assumed to exist at the time of making
of the treaty;
2. It formed the essential basis of consent;
-similar to our error as a ground to rescind
contracts
3. The state must not have contributed to the error
-The last element discussed in Cambodia vs
Thailand involving a treaty which was entered
into by Cambodia and Thailand on a basis of an
erroneous map. It was a case involving a temple
in Thailand. There was a claim as to the temple
pertaining to whether Cambodia or Thailand. One
party (can’t remember) invokes error because it
said that we entered into the treaty on the basis
of a map which turned out to be erroneous. ICJ
said that you have contributed to the
errorbecause you prepared the map so you
cannot say that you were misled into signing the
treaty because you contributed to the error. So
that is a ground to deny a claim on the basis of
error.
Termination of treaties:
Invalidity vs Termination of treaties:
In invalidity the treaty is invalid or defective but when we
speak of termination of treaties, the treaty is valid but you
would want to get out of the treaties based on several
grounds.
In the bar exams, the noted examples are:
1. Material breach;
2. Impossibility of performance; and
3. Rebus sic stantibus.
4.
(Read in your outline the cases Gatsikobo and
Nagimoros [please refer sa syllabus to what sounds like
the cases because it wasn’t clear in the recording and I
don’t have a syllabus] project case, all these three
grounds have been discussed in the case)
It is a must for termination of treaties in regard to material
breach, impossibility of performance and rebus sic
stantibus. Rebus sic Stantibus is highly exceptional
because this is a general rule which is pacta sunt
servanda. Rebus sic stantibus, article 62 gives narrow
conditions for which it can be invoked or cannot be
invoked, for example boundary treaties. N, rebus sic
stantibus is not applicable as basis for non-compliance
with the obligation. No amount of change. The other
name for rebus sic stantibus is fundamental change in
circumstance. The Vienna Convention of the Law of
Treaties does not mention of rebus sic stantibus but of
fundamental change of circumstance. Rebus sic
stantibus is customary international law while
fundamental change of circumstance is found in the
Vienna Convention on the Law of Treaties.
In the Gatsikobo, Nagimoros case, take note of the
factors whether resbus sic stantibus may be invoked
which are:
1. The change of circumstances must be of a
fundamental character; it must refer to basic
provisions in the treaty, not collateral matters in
the treaty.
- What is fundamental or not would depend on
the circumstances.
2. The change in circumstance must have resulted
in radical transformation of the extent of the
obligation/s still to be performed.
- The change must have increased the burden
of the obligations to be executed to the extent
of rendering the performance something
essentially different from that originally
undertaken.
3. The circumstances that changed must refer to
those that determined the parties to accept the
treaty;
- related to the requirement of fundamentality
4. The change in circumstance must have been
unforeseen by the parties;
5. The existence of the circumstances of the
treaties at the time of execution/conclusion must
have constituted an essential basis of the parties
to be found.
In the case, Hungary and Czechoslovakia
entered into a treaty where both parties agreed to
establish a water system (a dam) in the lou river
which is located in the boundaries of these two
states. The project was to be performed joint so
there were various phases. Then came 1990s,
international environmental laws were developed.
In Hungary, there were various protests against
the project because the dam project would
pollute and damage the Lou river in Hungary. So
Hungary said they would not proceed the project
because of a recently developing norm of
international environmental law. (That is why this
is also an environmental law case which
immoprtalized the essence of sustainable
development.)
e have our obligation to respect new norms in
international law referring to the environment.
Where the project will result to pollution and
damage the river, we should not continue with the
project. Hungary also invoked basis of material
breach (allegedly also committed by
Czechoslovakia), impossibilty of performance
and rebus sic stantibus.
Change in law is NOT a fundamental change,
change in economic or social or political
environment of a state also NOT a fundamental
change, new norms in environmental law also
NOT considered a fundamental change. But
understand that in the case, these changes could
not have been foreseen by the parties according
to ICJ.
In the treaty they provided for monitoring and
adjustment of the project specification as the
need arises. ICJ stated that you agreed to
change the project specification so you can fine-
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tune to not make it pollute the water so it is
actually somewhat foreseen.
How did the ICJ resolved that?
- Hungary said that it terminated the treaty on the
basis of material breach. Change in law is NOT a
fundamental change. Second, change in economic
or social or political environment of a state is not
also a fundamental change, as well as new norms
in environmental law. But of course you have to
understand that in this case, assuming according to
the ICJ that these are fundamental, these are
changes that have actually been foreseen by the
parties because in the treaty they provided for
monitoring and adjustment of the projects
specification as the need arises. So it was stated
there that from time to time they meet, they will
discuss the project and if it’s okay for the parties
that they would deviate from the original project
specification when the need arises or the
circumstances require.
- So the ICJ said that since there was an agreement
between the parties that they could deviate from the
original project specification; for example if the
original project specification will pollute the water,
then they could fine tune it to another way that it
would no longer pollute the water. So it was not
unforeseen.
- In this case the material breach was invoked by
Hungary way ahead of the commission. They
thought that since the other party will not comply
with their obligation, there was material breach.
There are procedures in invalidating, terminating, or
suspending treaties. Termination of treaties, these are not
just grounds for termination. If you are a state concerned,
you may just opt to suspend the treaty. There’s no need to
terminate. It’s also possible that you will just suspend rather
than terminate. You may opt for termination. You can also
seek for the invalidation if there’s presence of those grounds
that would cause the treaty to be defective. So you read
Arts. 42, 44, 45, 46, especially Art. 65 (1) on the
requirement to notify in writing the other party the other
party of its claim and to propose its measure.
Whether this is customary international law is still being
debated in the international level. If there is no objection to
the claim (to the notice) within the period of 3 months
generally, then the concerned state (the one who sent the
notice) may now carry out the measure proposed through a
duly signed instrument. If there is objection, however, the
concerned state must first avail of peaceful means of
dispute settlement under Art, 33 under the UN Charter.
For Philippines’ practice on the law of treaties, you must be
able to distinguish executive agreement, treaty, international
agreement. Read EO 459.
Who shall represent the Philippines in the different stages of
treaty formation? It’s also provided in EO 459.
When shall the treaty enter into force in the Philippines?
Upon the concurrence of the Senate.
May the President refuse to submit a treaty to the Senate
for its concurrence? Pimentel v. Romulo.
Concurrence of the Senate in the WTO is a political
question. Can you compel the Senate also from concurring
with the treaty ratified by the President? Tanada v. Angara.
It’s a political question. You cannot question the Senate
when it concurs with the WTO.
Pimentel v. Romulo: It distinguished the signature and the
stage of ratification. These two are different steps in the
treaty-making process, the consequence is that it would be
within the authority of the President to refuse to submit a
treaty to the Senate. So if the President signed it, he could
also NOT ratify it. If he ratified it, he could also choose NOT
submit it to the Senate. He cannot be compelled to do that.
Bayan v. Executive Secretary: With regard the ratification
of the President of the VFA, and the exercise of the senate
of its power to concur, it is again a political question.
Bayan Muna v. Romulo: Concurrence of the Senate is
NOT required in executive agreements. This involves the
exchange of notes between the Philippines and the US with
regard the non-surrender of American citizens of the ICC if
an American is a respondent of an international criminal
case.
If you are asked to define a state, please don't use the
definition you have learned in Pol Sci. It would be more
appropriate if you just enumerate the elements under
Article 1 of the Montevideo Convention:
"ARTICLE 1
The state as a person of international law should
possess the following qualifications:
a ) a permanent population;
b ) a defined territory;
c ) government; and
d) capacity to enter into relations with the other states."
Take note of the 4th element.
Elements of Statehood can be useful in answering the
following problems:
Problems of statehood may arise in case of break-up of
large state into several states like the breaking of USSR
in the 1980s and Chekoslovakia in the 1990s. Also in the
case of Kosovo when it unilaterally declared its
independence(just like what aguinaldo did) from Serbia.
There's an Advisory Opinion on this, whether or not
Kosovo is considered as a state.
If I am the examiner, I would ask "is a state (a 3rd state),
compelled to recognize an emerging state as a state?"
What happens when there is foreign control on the
exercise of the affairs of the state, will that negate the
existence of statehood?
In case of merger or union of states(it's important to
consider whether the merger or union established a new
state), what will happen?
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What about those who try to separate from a Federal
state, like when Quebec sought an opinion from SC of
Canada on WON it can secede from Canada, what will
happen? We'll also discuss this later.
What are Territorial and Non-Territorial Communities
which have special international status? Remember that
just recently in 2012, Palestine's elevation into a NON-
MEMBER OBSERVER STATE. Before, it was just a Non-
member State Entity by the UN.
So these are the issues that can be raised on statehood.
Let's go to elements of statehood.
You need to distinguish a state from a government. In
International Law, it is the STATE that bears the rights
and duties under international law, it's not the
government. That's why, it's important to know the
doctrine of STATE CONTINUITY.
The doctrine of state continuity means that regardless of
the changes of in the organization, government, territory,
people, nothing has changed of that state. That is still the
same entity. So treaties entered by the Philippines before
July 4, 1946, PH is still bound by it.
1.Permanent Population- there is no required number of
population. In fact we have some examples:
Lichenstein- 34,000 inhabitants in 1990
Republic of Naoru- 14,000 in 1999
Vatican City(this is a Sui Generis Entity, like Taiwan,
Macao, and Hongkong)
You have to study how come these are considered as
states. This may come out in an exam!
ex. "Do you consider, under internatonal law, Hong Kong
as a state?" That's a valid queston!
So you take note why these states have sui generis
status. They are states for some good reason, although
they do not strictly comply with the montevideo
convention.
2. Territory- It must be defined, but what is important here
is for you to recall the meaning of TERRITORIAL
SOVEREIGNTY. A territory can only be part of a territory
of a state if that state exercises territorial sovereignt over
that territory.
You remember the Los Palmas Case? It's a very classic
case in International Law.
The Island of Palmas case
When the Portuguese commissioned by Spain
discovered the Philippines, the Island of Palmas, which is
located south of the Philippine Archipelago, was included
among those islands claimed by Spain as part of its
territory. When the Treaty of Paris was drawn to delineate
the Philippines as part of Spain, the Island of Palmas
was also included. Spain then ceded Philippines
including Palmas to the Americans. When the Americans
went to the Island of Palmas, they discovered that the
same was claimed by the Dutch. The Netherlands
implemented some degree of administration over the
island. The US and the Netherlands agreed to submit
their dispute over the Island of Palmas to arbitration. Max
Huber was the arbitrator chosen by the parties. The
Americans claim over the Island of Palmas was based on
discovery while the Netherlands rest their claim on the
exercise of administration over the island. Under
international law, discovery itself is not the basis for
claiming territory. It must be accompanied by effective
control. That is the meaning of territorial sovereignty
according to Max Huber. For you to be able to claim the
territory as part of your own territory upon discovery, the
discovering State must exercise territorial sovereignty. It
was defined by Max Huber in this case as the right to
exercise over a territory to the exclusion of any other
State, the functions of a State.
That’s the reason why Marcos issued a
presidential decree claiming that the Kalayaan Group of
Islands forms part of Palawan and he appointed Tomas
Cloma as mayor of the KGI to evidence territorial
sovereignty over the same to form the basis of our claim
over the KGI.
The Montevideo Convention states “defined
territory” but it is really not required to be in the form of a
technical description. What is required is required under
the North Continental Shelf cases is simply sufficient
consistency in the delineation of your boundary. No
accurate definition is required for a territory to form part
of the State.
As to territory, there is also no size requirement.
The size of the Principality of Monaco for example is only
1.95 sq.km.
What if a territory is purportedly annexed by
another State just like what happened to Kuwait when it
was it was occupied and annexed by Iraq in 1990? It’s
status as a State will not be affected by virtue of the fact
that it was annexed by another State especially that
annexation was done through the use of force. That’s
questionable under international law.
Must territory be contiguous? It doesn’t have to
be contiguous. Alaska, Hawaii and Guam are part of the
territory of the US even if the same are not contiguous.
Government as an element of Statehood
Legitimacy of the government is required. What is
required is effective control. That explains why a State
can be considered a State even if the government
exercising powers is only a de facto government.
Whenever there is temporary deprivation of that effective
control, however, that is irrelevant. The State will not
cease exist to exist as such simply because of temporary
deprivation of effective control.
Failed States
An issue in public international law the so-called
failed states. This is illustrated in the civil wars in Congo,
Rwanda and Somalia. It came to a point where these
three states were classified, if not failed states, but failing
states. We have a Failed State Index in public
international law. The basis of that is effective
government control, the rule of law observance. In states
where there is no rule of law, it is already beyond the
control of the government. There’s no more peace and
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order. When you say failed state, it’s a term given to a
situation where government has no more control over the
state. But the thing is, if it’s just temporary and it will be
resolved after civil war, do not think that that the state
cease to continue as such. The question now is until
when?
Capacity to enter into relations with other states
Limited capacity to enter into international
relations will not prevent the existence of the state. We
have states under protectorates, mandates and
trusteeship status. They are still considered states. They
still have the capacity although limited. In the case for
example of associated states, international relations is
exercised by the principal.
Entities with special status or sui generis status
How are they considered by regular states and
international organizations? Can they be considered
states or simply having international legal personality?
For example, the Holy See. Vatican City is the seat of the
Holy See. Then you have Taiwan under the One China
Policy. Taiwan is separate from Mainland China.
Hong kong and Macau are known as Special
Administrative regions of China. As special admin
regions they can enter into treaties.
What happens if a new state emerges?
- Should be respected by the other States
according to international law
Note: Boundaries of colonial territories ought to become
international boundaries when these colonial territories
attain independence. So e respect na xa according to
international law.
Self determination
- All people have the right to self determination and
by virtue of that right they freely determine their
political status and freely pursue their economic
and social development.
However, if you’re a colony you have the option
to:
1. Remain attached to the mother state;
2. To separate from the mother state and
become an independent state;
3. To separate from the mother state and attach
yourself to another state.
What happened in the conflict of Russia and Ukraine
involving Crimea?
- It involves the situation of statehood. What
happened in Crimea was that there was a
referendum and the result was more than 90%
which favored the separation of Crimea from
Ukraine. It could probably involve the issue of
cessation.
Is there such a right to secede?
- International law does not specifically authorize
nor prohibit unilateral secession;
- But States have the implied duty to recognize
people’s right to self-determination
Right to self-determination must be exercised within the
framework of sovereign states and consistent with
territorial integrity of those states (“right to internal self-
determination”) and “right to external self-determination”
WARRIOR
Recognition of State
-Theories on Legal Effects of Recognition of State in
International Law:
(1) Constitutive
(2) Declaratory
-Article 3 of Montevideo Convention acknowledges
“Declaratory Theory”, to wit: “The political existence of
the State is independent of recognition by the other
States. Even before recognition, the State has the
right to defend its integrity and independence….”
Let me proceed to jurisdiction. As you know, jurisdiction is
the clear manifestation of sovereignty. That’s why each
time sovereignty is discussed, there is also a need to discuss
jurisdiction because states exercise sovereignty by
exercising jurisdiction. In international law, jurisdiction may
be classified as: jurisdiction to prescribe law, jurisdiction to
adjudicate, and jurisdiction to enforce.
JURISDICTION
· Jurisdiction to prescribe law (the authority of
the state to make its policy applicable to
persons or activities) (See: Restatement 402,
except for universal jurisdiction, which is in
Restatement 404)
· Jurisdiction to adjudicate (authority of the state
to subject particular persons or things to its
courts)
· Jurisdiction to enforce (concerned with the
authority of a state to use the resources of
government to induce or compel compliance
with its law; includes authority to arrest.
a. Jurisdiction to prescribe law- Congressional,
enactment of statute whether it becomes
applicable within or without. i.e. Art 2 of the
RPC on extraterritorial application of Penal
Laws
b. Jurisdiction to adjudicate- Judicial
c. Jurisdiction to enforce- Executive
The issues usually emerge when it comes to
Criminal Jurisdiction. There are four theories that will
justify the acquisition of jurisdiction over the person of the
accused.
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Criminal Jurisdiction
Various Principles/Theories:
Territorial Principle (Subjective vs. Objective)
Nationality Principle (Active vs. Passive)
Protective Principle
Universality Principle
Of the four theories, more acceptable is are the
Territorial Principle and Universality Principle, which
means courts all over the world are not unanimous they
way Nationality Principle and Protective Principle are
applied. That would therefore depend on the kind of
State involved. In the case of the United States of
America, the US Courts usually have more leeway and
more aggressive application of all of these principles.
Territorial Jurisdiction
-State has jurisdiction over property, persons, acts or
events occurring within its territory.
· Subjective Territorial Principle: jurisdiction
to prosecute or punish crimes commenced
within their territory but completed or
consummated in the territory of another state.
· Objective Territorial Principle: certain states
apply their territorial jurisdiction to offenses or
acts commenced in another state, but (i)
consummated or completed within their
territory, or (ii) producing gravely harmful
consequences to the social or economic order
inside their territory.
Under the Subjective Territorial Principle, an
example is if X from State A, using a long ranged riffle
killed Y in State B, which has the proper jurisdiction of the
crime?
From the given example, the crime commenced
in State A and the Court therein has the option to
exercise jurisdiction or not depending on which principle
it will apply. If it chooses to exercise jurisdiction over the
said crime, it should then choose to apply the Subjective
Territorial Principle, wherein the jurisdiction to prosecute
or punish crimes commenced in State A but completed or
consummated in another state or in State B. However, if
it chooses not to exercise jurisdiction over the said crime,
it should then choose to apply the Objective Territorial
Principle, wherein State B where the crime was
consummated or completed acquires the jurisdiction
although the offense commenced in State A.
United States vs. Vasquez-Velasco (1972)
Facts:
Javier Vasquez-Velasco, a member of a
drug cartel in Guadalajara, Mexico and several other
members, beat and killed (John) Walker [an American
citizen writing a novel in Mexico] and (Alberto)
Radelat [a photographer and US legal resident]. At
trial, the US argued that Velasquez-Velasco and his
three co-defendants committed the crimes to further
their positions in a Guadalajara drug cartel. The
murders Velasco was charged with were allegedly
retaliatory actions against a US Drug Enforcement
Agency (DEA) crackdown. He was convicted under
US law. On appeal, Vasquez-Velasco argued that US
penal laws do not apply extraterritorially.
Nationality Principle in Jurisdiction
· Active Nationality
- states may regulate the conduct of their
nationals wherever they are in the world
· Passive Nationality
- a state may prescribe law for situations where
its nationals are a victim of the conduct being
regulated
- this has limited scope, usually applicable to
terrorist attacks
Active Nationality- Offender/ Actor
Passive Nationality- Victim
But of course, Nationality Principle is not
equivalent to assessing citizenship, so mere citizenship
is not equivalent to nationality when it comes to
nationality principle. Remember the case of Nottebohm
where the real and effective link with the State of
Nationality is necessary.
Nottebohm Case
(Liechtenstein vs. Guatemala, ICJ, 1955)
Key Principle:
Nationality as a basis for exercising
jurisdiction must be real and effective to give a
right to a state who has conferred it. Real and
effective link with the state of nationality necessary.
Right to diplomatic protection and protection by
means of international judicial proceedings only
arises when proper nationality link exists between
the individual concerned and the state seeking to
exercise such rights. [“Effective Nationality Theory”]
THE FACT THAT A PERSON IS A CITIZEN OF A
STATE DOES NOT AUTOMATICALLY TRIGER THE
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APPLICATION OF NATIONALITY PRINCIPLE
BECAUSE IN PUBLIC INTERNATIONAL LAW, THERE
MUST BE A REAL AND EFFECTIVE LINK IN THE
SUPPOSED NATIONAL AND THE STATE.
In Passive Nationality, it has been perceived to have
limited scope and usually applicable in terrorist attacks.
For the 1998 bombings of the US Embassy in Kenya.
Kinsa ma’y victims? Passive man? Americans. So that
was justified by the United States because US Court
man. As I told you earlier, option na sa court, kung gusto
siya muexercise of jurisdiction, pili lang siya asa’y
applicable. Apparently the Passive Nationality Principle
justified the exercise of jurisdiction over Usama Bin
Laden and others.
United States vs. Usama Bin Laden (2000)
Facts: Defendants are charged with a variety of
crimes stemming from the August 1998 bombings of
the US Embassies in Nairobi, Kenya.
Court: The passive personality principle is
increasingly accepted as applied to terrorists and
other organized attacks on a state’s nationals by
reason of their nationality, or to assassination of a
state’s diplomatic representatives or other
officials…” (citing Restatement 402). “…..Universal
jurisdiction is increasingly accepted for certain acts of
terrorism…” (citing Restatement 404)…Both universal
jurisdiction and the protective principle xxxxxx xxxxx
for jurisdiction by the United States over the death of
xxxxx citizens.”
Then we go to Protective Principle in jurisdiction. Leading
practitioner of Protective Principle is the United States.
Protective Principle in Jurisdiction
- a state can legislate crimes that it considers to
be a threat to its security, integrity, or
economic interests
- common examples: espionage, counterfeiting
(terrorism?)
Restatement 402: “…a state has jurisdiction to
prescribe the law with respect to…(3) certain conduct
outside its territory by persons not its nationals that is
directed against the security of the state or against a
limited class of other state interests.”
 This principle is limited to conduct that occurs
outside a state’s territory, by noncitizens
So we have here perceptions that this Protective
Principle, being narrow in scope, would usually apply
only to situations where there is threat to security,
integrity or economic interest. Economic interest is very
much practiced in the US but anywhere else, courts only
focus on security and integrity. So that makes it narrower
in scope. Di na siya applicable in all cases – ang
protective principle.
We have here examples of the application of Protective
Principle. Panamanian ship outside of the territory of any
court, in the high seas, the Supreme Court of the US
affirmed the validity of the acquisition(?) on the basis of
Protective Principle. Because the ship was instrumental
in the introduction of prohibited drugs to the US. In the
US, kanang introduction of prohibited drugs, would be a
threat to the security.
United States vs. Romero-Galue, 757 F.2d 1147
(11th Cir. 1985)
US could still exercise jurisdiction over the
Panamanian ship even if there is no treaty because
the protective principle would allow the US to
prosecute foreign nationals on foreign vessels on the
high seas for possession of narcotics (and in some
way inherently harmed the US)
 “The protective principle permits a nation
to assert jurisdiction over a person whose
conduct outside the nation’s territory
threatens the nation’s security or could
potentially interfere with the operation of
governmental functions.”
Universality Principle (Universal Jurisdiction) –
Our leading case is Attorney General of Government of
Israel v. Eichmann. Involves one of the trusted generals
of Hitler. So Eichmann was in Argentina, captured by
Israeli agents and prosecuted in Israel for crimes
committed in Germany. Crime committed is Genocide.
Attorney General of Government of Israel vs.
Eichmann (1961)
Israel tried and convicted Adolf Eichmann, who had
been captured by Israeli agents in Argentina and
brought to Israel for trial. Eichmann was charged of
committing crimes against Jewish people, crimes
against humanity, war crimes, and membership in
hostile organization as defined in Israel’s Nazis and
Nazi Collaborators Punishment Law. Eichmann
argued that the court had no jurisdiction because he
was captured in a foreign country in violation of
international law.
What should justify the exercise of jurisdiction? Universal
Jurisdiction because universal jurisdiction is usually
applicable for crimes that are violation of erga omnes
norms, or jus cogens, one of which of course is
genocide. Torture, slavery.
Court:
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“From the point of view of international law,
the power of the State of Israel to enact the law in
question…is based… on a dual foundation: the
universal character of the crimes in question and their
specific character intended to exterminate Jewish
people.”
The case of Pinochet is also a leading case in
jurisdiction. Pinochet was then dictator in Chile and there
were allegations of torture against Spanish citizens in
Chile. When ousted by a democratic group, he went to
England for medical purpose. There he was arrested.
Spain had earlier issued an international warrant of arrest
against Pinochet. When he was arrested in England,
Spain wanted to exercise jurisdiction over Pinochet.
How was it justified? Spain invoked Universal Jurisdiction
because the crime committed is a universally punished
crime – torture. And acts of torture have already been
considered customary international law and in fact we
now have CAT as its clear manifestation of its being a
customary international law. Convention Against Torture.
Also, Spain relied on Passive Nationality Principle
because the victims were Spanish. Blue Spanish Eyes.

Pinochet Case
- Spain relied on Universal Jurisdiction to argue
for Pinochet’s extradition from England to
Spain
- It also relied on Passive
Nationality/Personality (Spanish citizens were
killed in Chile)
- Passive Nationality/Personality was found to
be more persuasive than Universal
Jurisdiction
- No Territorial Jurisdiction – happened in Chile,
not Spain
- No Active Nationality – Pinochet was not
Spanish
- No Protective Principle – there was no
imminent threat to Spain’s national security
from Chile
EXTRADITION
These are the six fundamental rules in extradition – all of
them asked in the bar exam.
Basic Principles in Extradition
1. No treaty, no “obligation” to extradite
2. Pacta sunt servanda applies
3. Dual purposes: 1. Prosecution, 2. Execution
4. Could not cover “political offenses”
a. Cf: “Attentat
Clause”
5. “Rule of Specialty” must be followed
6. Ex post Facto Law prohibition does not apply
1. Extradition is treaty-based. Where there is no
extradition treaty, there is no obligation to
extradite.
2. The only way by which a state can be compelled
to extradite is pacta sunt servanda.
3. There are two purposes: prosecution and
execution. Prosecution before conviction, and
execution for those who have already been
convicted but were able to go to a foreign
territory.
4. Because there is the Right to Asylum, we don’t
apply extradition to political offenses.
- What is this attentat clause? Attentat clause is
usually found in extradition treaties would provide
that the mere killing of a head of state should not
constitute automatically as a political offense to
avoid extradition.
5. Then we have the rule of specialty in extradition.
What does it mean? What are the kinds of crimes
that can be subject of extradition? There are two
kinds, one considered listed and one through the
application of double criminality principle. So
pwede mag enumerate ang 2 ka parties sa treaty
kung unsa na crimes ang pwede ma subject sa
extradition then it will provide a clause, double-
criminality clause which provides that if in the
event a crime is committed which is not among
those listed. The reasons being the characters of
people change or new crime laws will be passed.
That's why most states would stipulate on
double-criminality clause which means that even
if a crime is not listed in the treaty, if the crime is
punishable in both states, then it can be a subject
of extradition. The rule of specialty means that if
a request for extradition is done on a specific
offense or crime let's say murder, it is a violation
of due process and international law will not allow
a prosecution of the extraditee or extradited
person for another offense. So kung gi extadite
ka on the basis of the request for murder then
pag balik na sa receiving state, iprosecute ka for
rape, then whether or not extraditable offense
siya or dili, it does not matter. If the extradition is
for murder then the extraditee must be
prosecutecd for murder.
6. Ex post facto law does not apply because it is not
a penal law. So pwede na crimes committed in
the past, let's say committed on 2010 and then
extradition treaty took effect on 2012, pwede mu
apply.
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Of course the issue of legality of the abduction of
criminals in foreign territory is also a relevant issue in
jurisdiction.
Legality of “Abduction” of criminals in foreign
territory:
· Three modes of “Rendition”: Extradition,
Deportation, and Abduction.
· Abduction of criminals in the territory of
another is understood as “intervention” and
therefore violates customary law and the UN
Charter (Art. 2(4));
· It can only be justified if done invoking self-
defense;
· But, the illegal apprehension will not
necessarily affect the jurisdiction of the
apprehending state (male captus, bene
detentus) unless the defendant was
secured through torture, brutality, or
similar outrageous conduct.
There are 3 modes of rendition as observed by experts in
international law. The two are institutionalized extradition.
Deportation is also institutionalized, abduction is not. It is
an accepted mode of rendition.
Theoretically of course, if you abduct a criminal or any
person for that matter from foreign soil, it's a violation of
international law, the principle of non-intervention. That's
a given. If abduction is made in a foreign territory, there is
violation of international law but will that violation affect
the validity of the abduction to the point that the court will
be divested of its jurisdiction? We are guided by the
general principle of male captus bene detentus or
wrongfully captured, validly detained, meaning the illegal
apprehension of a criminal will not necessarily affect the
jurisdiction of the apprehending state.
Bar exam question: What is the justification for the rule?
The justification is this: apprehension or arrest of a
criminal is not a function of the court therefore, any
conduct or misconduct or whatever manner is employed
in the arrest of the criminal should not affect the
jurisdiction of the court for as long as according to the
court in the case of Ker vs. Illinois: for as long as the
person arrested when already in court will be afforded
due process. And the rules on criminal procedure and the
rights of an accused will be afforded to the accused. He
will be presumed innocent until proven otherwise,
evidence obtained in violation of due process and
evidentiary rules will not be admitted in evidence. So
those principles will still be applied. So the court said: di
mo matter ang manner of abduction basta the moment
he is prosecuted, he will have all the rights of the
accused, including his rights to due process.
The principle of male captus bene detentus was affirmed
in the case of Attorney General of the Government of
Israel v. Eichmann 1961 but as early as 1886, you have
the cases of Ker vs. Illinois and Friesbie vs Collins in
1952. Abduction in and on itself does not invalidate a
prosecution against a foreign national.
Attorney General of Israel vs. Eichmann (1961)
Israeli agents had abducted Eichmann from Argentina
without consent of Argentinian government. Eichmann
argued before the Israeli Court that the illegal act of
abduction took away the jurisdiction of Israeli courts to
try him and he should be returned to Argentina to be
tried there. Argentina complained to the UN about this
abduction, demanding not only compensation for
unlawful intervention on its territory, but also for the
return of Eichmann. The issue was however mooted
by an agreement entered into by Argentina and Israel.
Ker vs. Illinois (1886)
The treaties of extradition to which the
United States are parties do not guarantee a fugitive
from the justice of one of countries an asylum in the
other. They do not give such person any greater or
more sacred right of asylum than he had before. They
only make provision that for certain crimes, he shall
be deprived of that asylum and surrendered to justice,
and they prescribe the mode in which this shall be
done…How far such forcible transfer of the
defendant so as to bring him within the
jurisdiction of the state where the offense was
committed may be set up against the right to try
him is the province of the state court to decide,
and presents no question in which this Court can
review its decision.
Frisbie vs. Collins (1952)
Court: This court has never departed from the rule
announced in Ker v. Illinois, … that the power of a
court to try a person for crime is not impaired by
the fact that he had been brought within the
court’s jurisdiction by reason of a “forcible
abduction.” No persuasive reasons are now
presented to justify overruling this line of cases. They
rest on the sound basis that due process of law is
satisfied when one present in court is convicted of
crime after having been fairly apprised of the charges
against him, and after a fair trial in accordance with
constitutional procedural safeguards. There is nothing
in the Constitution that requires a court to permit a
guilty person rightfully convicted to escape justice
because he was brought to xxxxx xxxx (against) his
will.
United States vs. Alvarez-Machain (1992)
The presence of an extradition treaty
between the United States and another nation does
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not necessarily preclude obtaining a citizen of that
nation through abduction. It has long been the rule
that abduction, in and of itself, does not invalidate
a prosecution against a foreign national. The only
question, therefore, is whether the abduction violates
any extradition treaty that may be in effect between
the United States and the nation in which the
abductee was to be found. Here, the US-Mexican
authorities presumably were aware of the United
States’ long-standing law regarding abductions and
did not insist on including a prohibition against
abductions.
Now, let's go to the exception: unless the defendant was
secured through torture, brutality or similar outrageous
conduct. Our authority on the matter is the case of US vs
Toscanino 1974. Why was this case applied and not Ker
vs. Illinois and Friesbie vs Collins in 1952? You look at
the date when it was decided. The SC of the US in the
Toscanino case traced back the perception of the world
of an individual at the international level. In the past, it's
easy to disregard certain rights of individual in favor of
state interest. Utilitarianism. The idea in the past is the
end justifies the means. But because of development of
international humanitarian law, perception of giving an
individual more rights at the international level, domestic
courts also adopted to that.
U.S. vs. Toscanino (1974)
Toscanino was abducted in Uruguay by an agent of
the United States, taken to Brazil, and brutally tortured
and interrogated for 17 days. He was then placed on
a civilian aircraft bound for the U.S. and arrested on
arrival. He contended that the district court lacked
jurisdiction over him because of the circumstances of
his arrest. Notwithstanding Ker-Frisbie, the U.S. Court
of Appeals for the Second Circuit agreed, ruling that, if
the allegations were true, they were so shocking to
the conscience that due process required that the
district court divest itself of jurisdiction.
Court (through J. Mansfield):
“We view due process as now requiring a court
to divest itself of jurisdiction over the person of a
defendant where it has been acquired as the result of
the government’s deliberate, unnecessary and
unreasonable invasion of the accused’s constitutional
rights.”
And so the court said, due process would now require
the court to divest itself of its jurisdiction over the person
of the defendant where it has been acquired as a result
of government’s deliberate, unnecessary, and
unreasonable invasions of the constitutional rights of an
accused. Abduction is a violation of principle of non-
intervention. However, the court held that abduction per
se will not divest the court of jurisdiction. If the abduction
is accompanied by brutality, torture and other similar
outrageous conduct, the court is also duty bound to
consider such situation, and part of due process, to
divest itself of its jurisdiction. That is the case of US vs.
Toscanino (1974).
But a few months after Toscanino, the case of Lujan v.
Gengler (1974) wherein the Toscanino was not applied,
and it reverted back to Ker-Frisbie applying male captus,
bene detentus because according to the court, mere
kidnapping or abduction will not divest the court of its
jurisdiction, unlike in Toscanino where the kidnapping
was accompanied by torture (the brutality in Toscanino
was to the extent that he was hit with the butt of a gun,
and such brutalities were done in front of his wife). In
Lujan, he was blindfolded, kidnapped and detained in a
secret place but there was no allegation of brutality,
torture or similar outrageous conduct, thus, the court
went back to the basic principle of male captus, bene
detentus.
Lujan v. Gengler (1974)
Government-sponsored abduction, in and of itself, did
not constitute conduct sufficiently “shocking” to violate
due process and therefore did not trigger the
Toscanino exception to Ker-Frisbie. Rather, the
Toscanino exception required more - - such as
kidnapping combined with torture at the hands of
agents of the US Government. Here and unlike in
Toscanino, there is no showing that police
brutality, torture or similar outrageous conduct
accompanied the abduction.
HEAD OF STATE AND DIPLOMATIC IMMUNITY
There are two kinds of immunity: ratione personae and
ratione materiae. In immunity ratione personae, we look
at the person and the law as it is applicable to the
person, i.e., we look at the head of state while he is the
head of state or a diplomat. On the other hand, immunity
ratione materiae becomes relevant when we look at a
FORMER head of state or a diplomat.
Two categories of diplomatic immunity:
· Immunity ratione personae
- Immunity that attaches to the person of the
diplomat while he is a diplomat
- This is irrelevant for former diplomats
· Immunity ratione materiae
- For former officials, the focus is on the act.
This is normally irrelevant while a person is a
diplomat;
- 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 while
still diplomat.
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Head of State
What is the rule on head of state? Is the head of state
immune from suit?
If he’s incumbent, immunity ratione personae—during
incumbency a head of state is immune from suit, even
foreign ministers (in the case of Congo), and even
diplomatic officials are immune from arrest, detention,
and processes while they are incumbent. However, in the
case of head of state, it is absolute in all cases whether
civil, criminal, special proceeding, even for international
crimes (although that is still a debatable issue). In the
case of Belgium v Congo, he’s exempt even for
international crimes as long as he’s incumbent, meaning,
prosecution comes only after their incumbency applying
immunity ratione personae.
Diplomatic Immunity
Personal and Functional Immunity of Diplomatic
Officials
In terms of immunity from jurisdiction, a
distinction must be drawn between civil and criminal
process.
In terms of criminal jurisdiction, diplomatic
agents have total immunity from the law of the
receiving state and the only remedy available to the
receiving state is to declare the diplomat persona non
grata. The immunity from criminal jurisdiction applies
to any offense committed by the diplomat whether
official or not. In terms of civil jurisdiction, diplomats
are immune from the civil jurisdiction of the receiving
state except in three (3) cases. The immunity of
diplomats extends to “arrests” and “detentions”. (See:
DR of Congo vs. Belgium, 2002)
In the case of diplomats, when we’re talking about
immunity ratione personae, there is absolute immunity in
criminal suit only, but he is not immune in civil suit in
certain cases. Distinguished from a head of state who
enjoys absolute immunity in all cases whether criminal or
civil. Total immunity in criminal jurisdiction for diplomats,
the remedy of the receiving State is to declare diplomat
as persona non grata (an ungrateful person). The
concept of persona non grata is specifically applicable to
diplomats (not applicable to fellow Filipinos, it is a
misapplication of such remedy). Persona non grata is a
remedy because the diplomat is supposedly totally
immune from criminal jurisdiction, i.e., arrest, detention,
processes whether done in his official capacity or not.
In terms of civil jurisdiction, diplomats are immune
generally, except in three cases (please just look at
our convention on diplomatic and consular officials),
regardless of whether done in their official capacity.
Unlike in consuls we limit their immunity to official
conduct only.
Functional Immunity of Consular Officials
As for Consuls, however, although they enjoy
more or less the same immunities and privileges as
diplomats, their immunity from criminal and civil
jurisdiction extends to their official acts only.
Ambassadors are for political concerns of the state.
Consuls are for commercial aspects of the state.
After incumbency, a head of State, may already be
prosecuted except for acts done in his official capacity.
So, totally exempt during incumbency. Post-incumbency,
we need to distinguish between acts done in official
capacity and acts done not in official capacity. So for acts
done in official capacity even if it is post-incumbency,
EXEMPT.
That is why, in the case of PINOCHET since it was an act
of torture, according to the Court, it cannot be official
because it is a violation of Jus Cogens norm prohibiting
torture.
Immunity of Former Head of State in Criminal
Proceedings
The Pinochet Case (2001):
The House of Lords of UK ruled that “the
absolute prohibition of torture, a jus cogens norm,
overrides immunity afforded to a former Head of
State in criminal proceedings. The commission of a
crime against humanity and jus cogens cannot be
done in an official capacity on behalf of a state.”
(Sir skipped TREATY LAW)
LAW OF THE SEA
The Law of the Sea
· Governed by the 1982 UNCLOS III (UNCLOS
I – 1958; UNCLOS II – 1960)
· Basic Zones: 1. Internal Waters, 2. Territorial
Sea, 3. Contiguous Zone, 4. Exclusive
Economic Zone, and 5. High Seas.
· Baseline (Low-water mark Method vs. Straight
Baseline Method)
UNCLOS, the latest is UNCLOS III, 1982 and it governs
basic zones: internal waters, territorial sea, contiguous
zone, EEZ and the high seas.
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Let us explore the rights of the coastal states of these
maritime zones.
First, we have to know the baselines because these
zones are computed from the baselines. The baseline is
mandated to be done domestically. So all member states
of the UNCLOS were given a deadline to define their
baselines on the basis of the mandate of the UNCLOS.
And the Philippines, siguro as a manifestation of our
character, nag – JIT ta class. ‘Just In Time’. We already
defined our baseline law and it was questioned in the
case of Magallona v. Ermita, and it was upheld as valid. It
did not restrict or expand our territory. It simply defined
our baseline.
We use Low-Water Mark for non-archipelagic states. For
archipelagic states, we use the Straight Baseline Method.
And the Straight Baseline Method would require the
drawing of an imaginary line, connecting the outermost
points of the outermost islands, including dry reefs of a
particular archipelago. Then, you comply with certain
limitations, such as:
1. The straight baseline shall not depart appreciably
from the natural configuration or form of the
archipelago.
2. The water to land ratio shall not exceed 9:1 (9-
water, 1-land mass)
These are the common limitations of the straight baseline
method.
[This is not complete. Here’s Art.47 of the UNCLOS
where these limitations were lifted:
“1. An archipelagic State may draw straight archipelagic
baselines joining the outermost points of the outermost
islands and drying reefs of the archipelago provided that
within such baselines are included the main islands and
an area in which the ratio of the area of the water to the
area of the land, including atolls, is between 1 to 1 and
9 to 1.
2. The length of such baselines shall not exceed
100 nautical miles, except that up to 3 per cent of the
total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of
125 nautical miles.
3. The drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the
archipelago.
4. Such baselines shall not be drawn to and from low-
tide elevations, unless lighthouses or similar installations
which are permanently above sea level have been built
on them or where a low-tide elevation is situated wholly
or partly at a distance not exceeding the breadth of the
territorial sea from the nearest island.
5. The system of such baselines shall not be applied by
an archipelagic State in such a manner as to cut off from
the high seas or the exclusive economic zone the
territorial sea of another State.
6. If a part of the archipelagic waters of an archipelagic
State lies between two parts of an immediately adjacent
neighbouring State, existing rights and all other
legitimate interests which the latter State has traditionally
exercised in such waters and all rights stipulated by
agreement between those States shall continue and be
respected.
7. For the purpose of computing the ratio of water to land
under paragraph l, land areas may include waters lying
within the fringing reefs of islands and atolls, including
that part of a steep-sided oceanic plateau which is
enclosed or nearly enclosed by a chain of limestone
islands and drying reefs lying on the perimeter of the
plateau.
8. The baselines drawn in accordance with this article
shall be shown on charts of a scale or scales adequate
for ascertaining their position. Alternatively, lists of
geographical coordinates of points, specifying the
geodetic datum, may be substituted.
9. The archipelagic State shall give due publicity to such
charts or lists of geographical coordinates and shall
deposit a copy of each such chart or list with the
Secretary-General of the United Nations.”]
So, if as an example, non-archipelagic state, so our zone
would look like this: (Refer to ILLUSTRATION) internal
waters, meaning waters inland before the territorial sea
and would include bays, rivers, canals.
Measurements of Zones of Sea
Then you have the Territorial Sea, 12 nm from the
baseline (the yellow color)
Then 24 nm from the baseline, is the contiguous zone.
200 nm from the baseline is the EEZ. Beyond is the high
seas. Remember, the high seas is not similar to
international waters. These zones can be divided into two
kinds: INTERNATIONAL and NON-INTERNATIONAL
WATERS. International Waters are waters after the
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22
territorial sea. Within the territorial sea are non-
international waters. So that’s one perspective, ventral
(referring to above illustration).
We have to know this because we have to know the rule
regarding the Continental Shelf. We still have to know the
rights of the coastal states over continental shelves
especially in relation with the EEZ. That’s how it should
look. (referring to below illustration)
Baselines – 12NM – 24NM …There can be 350nm from
the territorial sea for the Continental Shelf where the
natural prolongation of the shelf extends 200 nm
because if this [kanang nag slope, that is the continental
shelf (Sir referring to the Illustration)] Kung shorter na
siya sa 200nm, the rights of the coastal states over
minerals and living organisms that would qualify as
sedentary species, would be within the sovereign rights
of the coastal state even if found to be beyond the
natural prolongation kung less than 200 nm siya.
In a situation where the natural prolongation would
extend beyond the 200 nm, then it can reach up to 350
nm. There’s a more complicated Isopath Rule.
Competences in Zones of the Sea
Let’s go to the different maritime zones.
First, the Internal Waters. ABSOLUTE. Ship in distress is
the ONLY EXCEPTION when foreign vessels can enter
Internal Waters.
Internal Waters
- include ports, harbors, rivers, lakes and canals.
- the coastal state can prohibit entry into its internal
waters by foreign ships, except for ships in distress.
- When already within internal waters, different legal
questions arise depending on the kind of vessel that is
within the internal waters: merchant ships, warships,
other foreign non-commercial ships.
Internal Waters include ports, harbors, rivers, lakes and
canals (man-made canals in international law).The
coastal state can prohibit entry into its internal waters by
foreign ships, except for ships in distress.
Territorial Waters.
EXCEPTION: Right to innocent passage. When is
passage considered innocent, that’s also found in the
UNCLOS. Take a look at examples of acts which do not
fall under the right of innocent passage later.
Territorial Sea
- Not Exceeding 12 n.m. from the “baseline”
- Baselines: 1. Normal Baseline (Low-Water Mark
method), and 2. Straight Baseline Method
- Limitation: “Right of Innocent Passage” by foreign
ships. It is innocent if not prejudicial to the peace,
good order or security of the coastal state. Fishing
vessels must comply with local laws and submarines
must navigate on the surface and show their flag.
Recap: Internal Waters, exception: Ships in Distress.
Territorial Sea, exception: Right to Innocent Passage.
When is passage considered innocent? It is found in the
UNCLOS. Take a look at examples of acts which do not
fall under the right of innocent passage later.
Territorial Sea, 12nm from the Baseline. For Archipelagic
States, straight baselines; For non- archipelagic states,
Low water mark. That’s the point where the water and
the dry land mass meet during low tide.
Territorial Sea
· Breadth (Art. 3)
- Up to 12 nautical miles from baseline …
· Measurement - baseline (Art. 5):
- Except where otherwise provided in this
Convention, the normal baseline for
measuring the breadth of the territorial sea is
the low-water line along the coast as marked
on large-scale charts officially recognized by
the coastal State.
So that’s part of the territory ha, ang territorial sea of
course. So our laws extend up to 12 NM in all respects.
Territorial Sea
Sovereignty, subject to the Law of the Sea
Convention (Art. 2)
1. The sovereignty of a coastal State extends,
beyond its land territory and internal waters and,
in the case of an archipelagic State, its
archipelagic waters, to an adjacent belt of sea,
described as the territorial sea.
2. This sovereignty extends to the airspace over the
territorial sea as well as to its bed and subsoil.
3. The sovereignty over the territorial sea is
exercised subject to this Convention and to other
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rules of international law.
SO these are the examples of exercise of the right to
innocent passage.
Territorial Sea
· Rights of Ships – innocent passage (Arts.
17-18)
Art. 17: Subject to this Convention, ships of all States
… enjoy the right of innocent passage through the
territorial sea.
Art. 18: 1. Passage means navigation through the
territorial sea for the purpose of:
(a) Traversing that sea without entering internal
waters or calling at a roadstead or port facility
outside internal waters; or
(b) Proceeding to or from internal waters or a call
at such roadstead port facility.
2. Passage shall be continuous and expeditious.
However, passage includes stopping and anchoring,
but only in so far as the same are incidental to
ordinary navigation or are rendered necessary by
force majeure or distress or for the purpose of
rendering assistance to persons, ships or aircraft in
danger or distress.
Examples of acts that will negate right of innocent
passage. This is where the French Rule and English Rule
comes in. But ayaw na nah ninyo iapply because these
were rules followed before the UNCLOS.
Territorial Sea
Meaning of Innocent Passage (Art. 19):
1. Passage is innocent so long as it is not
prejudicial to the peace, good order, or
security of the coastal State. Such passage
shall take place in conformity with this
Convention and with other rules of
international law.
2. Passage of a foreign ship shall be considered
to be prejudicial to the peace, good order, or
security of the coastal State if in the territorial
sea it engages in any of the following
activities:
- [Paraphrased: threat or use of force, weapon
exercise, espionage, launching or landing of
aircraft or other military device, violation of
customs, fiscal, immigration or sanitary laws,
willful and serious pollution, fishing, research
or surveying activities, interfering with
communications or other facilities, or “any
other activity not having a direct bearing on
passage”]
Territorial Sea
Civil Jurisdiction in Relation to Foreign Ships (Art.
28)
1. The coastal State should not stop or divert a
foreign ship passing through the territorial sea
for the purpose of exercising civil jurisdiction
in relation to a person on board the ship.
2. The coastal State may not levy execution
against or arrest the ship for the purpose of
any civil proceedings, save only in respect of
obligations or liabilities assumed or incurred
by the ship itself in the course or for the
purpose of its voyage through the waters of
the coastal State.
3. Paragraph 2 is without prejudice to the right of
the coastal State, in accordance with its laws,
to levy execution against or to arrest, for the
purpose of any civil proceedings, a foreign
ship lying in the territorial sea, or passing
through the territorial sea after leaving internal
waters.
Territorial Sea
Criminal Jurisdiction on Board a Foreign Ship
(Art. 27)
1. The criminal jurisdiction of the coastal State
should not be exercised on board a foreign
ship passing through the territorial sea to
arrest any person or to conduct any
investigation in connection with any crime
committed on board the ship during its
passage, save only in the following cases:
(a) If the consequences of the crime extend to
the coastal State;
(b) If the crime is of a kind to disturb the
peace of the country or the good order of
the territorial sea;
(c) If the assistance of the local authorities
has been requested by the master of the
ship or by a diplomatic agent or consular
officer of the flag State; or
(d) If such measures are necessary for the
suppression of illicit traffic in narcotic
drugs or psychotropic substances.
Contiguous Zone, this is where the state can exercise
protective jurisdiction. Kung territorial sea, absolute.
Contiguous Zone
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-24 n.m. from the baseline
-Coastal State is limited to Protective Jurisdiction
only, that is, to prevent infringement of its customs,
fiscal, immigration, or sanitary regulations
EEZ
Exclusive Economic Zone
Specific Legal Regime created by UNCLOS
· Art. 55 – the exclusive economic zone is an
area beyond and adjacent to the territorial
sea, subject to the specific legal regime
established in this Part, under which the rights
and jurisdiction of the coastal State and the
rights and freedoms of other States are
governed by the relevant provisions of this
Convention.
Breadth
· Art. 57 – The exclusive economic zone shall
not extend beyond 200 nautical miles from the
baselines from which the breadth of the
territorial sea is measured.
Difference between the EEZ and Continental Shelf
1. Ang EEZ will have to be claimed by the coastal state,
not in the case of Continental shelf. Exclusive gyud
na siya (referring to the continental shelf). Ang EEZ
(exclusive sovereign rights of exploitation) if you
cannot exploit the resources, you are mandated by the
UNCLOS to enter into a joint venture with other states.
So kinanglan i-claim na nimo. Ang continental shelf
exclusive gyud na siya sa coastal state. It is not
mandated to enter into a joint venture without the
consent of the coastal state.
2. Sovereign rights of the EEZ would have to cover
resources in the waters superjacent to the seabed and
the seabed and the subsoil. SO pag- imagine lang gud
class, nga tubig ni, kaning fish nga superjacent sa
subsoil (sa ibabaw), part na siya sa EEZ sovereign
rights. Inig touch na sa seabed ug subsoil, naa pa
diha ang living and non – living resources. Pero kung
ilawm na gani sa seabed ug subsoil, under seabed
and subsoil, MINERALS, maw na nah ang subject sa
CONTINENTAL Shelf sovereign rights.
Exclusive Economic Zone
Art. 56 – Rights, jurisdiction and duties of the
coastal State in the EEZ
1. In the exclusive economic zone, the coastal
State has:
(a) Sovereign rights for the purpose of
exploring and exploiting, conserving and
managing the natural resources, whether
living or non-living, of the waters
superjacent to the seabed and of the
seabed and its subsoil, and with regard to
other activities for the economic
exploitation and exploration of the zone,
such as the production of energy from the
water, currents and winds;
(b) Jurisdiction as provided for in the relevant
provisions of this Convention with regard
to:…..(ii)marine scientific research; (iii)the
protection and preservation of the marine
environment;
(c) Other rights and duties provided for in this
Convention
2. In exercising its rights and performing its
duties under this Convention in the exclusive
economic zone, the coastal State shall have
due regard to the rights and duties of other
States…..
3. The rights set out in this article with respect to
the seabed and subsoil shall be exercised in
accordance with Part VI [Continental Shelf]
Continental Shelf
Art. 77 – Rights of the coastal State over the
continental shelf
1. The coastal State exercises over the
continental shelf sovereign rights for the
purpose of exploring it and exploiting its
natural resources.
2. The rights referred to in paragraph 1 are
exclusive in the sense that if the coastal
State does not explore the continental shelf or
exploit its natural resources, no one may
undertake these activities without the express
consent of the coastal State.
3. The rights of the coastal State over the
continental shelf do not depend on
occupation, effective or notional, or on any
express proclamation.
4. The natural resources referred to in this Part
consist of the mineral and other non-living
resources of the seabed and subsoil together
with living organisms belonging to sedentary
species, that is to say, organisms which, at the
harvestable stage, either are immobile on or
under the seabed or are unable to move
except in constant physical contact with the
seabed or the subsoil.
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The sedentary resources referred to in No. 4 is the only
living resources in the continental shelf subject to the
sovereign rights of the coastal state, all others, non –
living gyud na siya, meaning minerals. Apart from
continental seas, of course your high seas.
INTERNATIONAL HUMANITARIAN LAW
So those issues, as I have said, are in the category of jus
ad bellum rules engaging in war. Now, when there is
armed conflict or war, we also have another category of
rules governing the conduct of hostilities and this where
we talk about IHL. That’s jus in bello not jus ad bellum.
Means of Waging War and Criminal
Responsibility: Jus In Bello
1. Purposes/objectives of International
Humanitarian Law (IHL)
2. Meaning of “armed conflict” to which IHL
applies
3. What if there is no “armed conflict”?
4. Fundamental principles that govern conduct of
war;
(a) Principle of Distinction;
(b) Principle of Proportionality; and
(c) Principle of Precaution
5. Means and Methods of Warfare
6. Other IHL Rules (Sick and Wounded,
Detention, etc)
7. Criminal Responsibility
So, here let’s talk about in order to understand the
purposes of IHL, let’s talk about armed conflict which the
IHL would apply because IHL does not apply to all kinds
of armed conflict, only to certain categories of armed
conflict. So that, if there is no armed conflict as
understood in IHL what would be the remedies and what
would be the situations. There are so many rules on IHL,
but for purposes of PIL bar exam, the three important
principles are the usual questions ask in bar exams
although naay mga stray questions sometimes. Let’s talk
about the three basic principles in IHL: principle of
distinction, proportionality and precaution. The rule is
very simple but if you take a look into specific provisions
medyo complicated xa actually.
Let’s talk about rules in warfare and then we relate also
these principles to other rules. For example, rules on the
sick and the wounded, detention, displacements and
other concerns and then we finally end with criminal
responsibility.
International Humanitarian Law (IHL) or Law on
Armed Conflict
- IHL or jus in bello, not jus ad bellum. It
governs the laws of armed conflict or law of
war. It primarily seeks to protect civilian
population and objects (to “humanize” the
effects of war) (calls for balancing of
“military necessity” and “humanity”). It
covers international or non-international
armed conflict, but not mere internal
disturbances.
- E.g. the 1949 Geneva Conventions and
Additional Protocols prohibit the “attack on
civilian population or objects as such” during
armed conflict.
Let’s talk on the law on armed conflict, that’s the other
term of IHL. It governs the law on armed conflict in times
of war.
Purpose is to seek or protect civilian population or
objects from the effects of war that’s why it is called the
IHL to humanize the effects of war and therefore the
study of IHL calls for a balancing of the concept of
military necessity because the moment there is armed
conflict or war, you know and it is to be understood, that
the object or the main objective of war is really to defeat
the opponent. So means and methods of warfare were
really want to be regulated for that purpose if you want to
humanize the effects of war and therefore so you have to
balance the military necessity and humanity because
some means and methods of warfare may disregard
human dignity. A good example of which is the use of
weapons that will cause unnecessary sufferings. Maka-
use man kag weapon because what is the object of war?
dba the object of war is to achieve peace and the only
way to achieve peace is to defeat the opponent. There
are really methods of warfare but IHL governs these
methods in order to humanize the effects of war.
It covers 2 kinds of armed conflict: international and non-
international armed conflicts. Excluded are internal
disturbances, such as riots or demonstrations and other
similar internal disturbances, lacking in intensity and
lacking in organization.
What is International Criminal Law(ICL),on the other
hand, because it is another category of law that is more
or less interrelated with IHL.
International Criminal Law (ICL) is a body of
international law that prohibits certain categories of
conduct viewed as serious atrocities and to make the
perpetrators of such conduct criminally accountable. It
defines crimes, its elements, and individual criminal
responsibility.
E.g. Rome Statute creating the International
Criminal Court (ICC) in the Hague which defines and
punishes genocide, war crimes, crimes against
humanity, and aggression.
In the course of armed conflict, certain acts of atrocities
have been categorized as crimes committed during war.
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Related xa sa IHL in the sense nga ang IHL nagregulate
xa sa means and methods of warfare and at the same
time there is another category of law that is created or
established for the purpose of prosecuting those who
have committed atrocities during armed conflict. So it’s
another category in ICL.
So lain ang IHL og lain sa ang ICL. As defined, it is a
body of international law that prohibits certain categories
of conduct viewed as serious atrocities and to make the
perpetrators may be held liable. In the past ICL scattered
na xa in various documents, now we have one document
on ICL and that is the Rome Statute created by the Int’s
Criminal Court (ICC).
International Human Rights Law (IHRL) vs. IHL
· IHRL refers to inalienable fundamental rights
to which a person is inherently entitled; while
IHL refers to the rights of persons affected by
armed conflicts
· IHRL applies at all times; IHL applies to armed
conflicts
· Some rights in IHRL may be limited or
suspended (e.g. freedom of expression) and
some are absolute or non-derogable (e.g.
right against torture)
1st distinction. So International human rights law will
apply to all persons. Why? Because IHL (International
Humanitarian Law) is limited in scope; it will only apply to
those persons affected by armed conflict.
2nd distinction. Necessarily, International human rights
law applies AT ALL TIMES; in times of peace, and in
times of war. IHL is specific; only in times of war. But
there are however rights that in fact some commentators
would say that broader ang international human rights
law, mas specific ang IHL. But may area sila class na
mag overlap. Because if you look at my notes here,
some rights in international human rights law may be
limited or suspended, an example of which is freedom of
expression. So when for example in times of war, the
state or any authority will limit your right to travel, for
example, or to peaceably assemble, like bawal na mag
group in times of war, or probably curfew policies. So
pwede ma limit ang some of the rights.
BUT- this is where mag converge ang IHRL ug IHL –
there are NON-DEROGABLE RIGHTS that are observed
even in times of war. So in IHRL, iyang categories kay
derogable and non-derogable. Ang kaning derogable
rights ma limited ni in times of war. To this extent, there’s
a difference between IHRL and IHL. But mag converge
sila in regard to NON-Derogable right such as the right
against torture, the prohibition against inhumane
treatment of prisoners, observed in IHRL also observed
in IHL.
If you are to distinguish the two, ayaw lang pud ng
“applicable both in times of peace and war ang IHRL,
and IHL in times of war.” Ayaw. Probably, the examiner
will try to see if you have an idea nga mag OVERLAP na
sila. The above answer is too simplistic. Whereas if you
say nga naay areas na mag converge ang IHRL ug IHL,
then that means lawm2 imong understanding sa two.
*Sir gives advice: One skill you have to learn is to have
the eye and the brain of a surgeon. Tagaan ug general
problem, ay sus, general ra kaayo pag answer. Mura
bitaw ang problem para ra mag trigger unsa ang topic all
about and tagaan rakas topic, dili bitaw i.solve ang
issues sa problem. That might probably ensure a passing
score in the bar, but mas mayo unta sobra pas pasar.
Let’s take a look at the types of armed conflict. (Sir: But
na discuss naman ni nato. Let’s go straight to the
principles.)
So who and what are the protected persons and objects
in IHL; Civilians and Civilian Objects. This we will
appreciate the moment we talk about the different
principles in IHL.
Protected Persons and Objects in IHL:
1. Civilians – persons who do not belong to
armed forces and who are not combatants
2. Civilian Objects – objects which are not
military objectives. “Military Objects” are those
which by their nature, location, purpose or use
make effective contribution to military action
and advantage.
Fundamental Principles in IHL
Principle of Distinction
Principle of Proportionality
Principle of Precaution
One is the Principle of DISTINCTION. Ayaw ra nang
“we distinguish civilians from combatants, and civilian
objects and military objects.” Butangi sad ug “IN THE
CONDUCT OF MILITARY OPERATIONS, a distinction
must be made between these two: civilian population
distinguished from combatants, civilian objects
distinguished from military objects.” Additional Protocol 1
Article 48 governs the principle of distinction.
Principle of Distinction
Art. 48, AP I:
“In order to ensure respect for and protection of
the civilian population and civilian objects, the Parties
to the conflict shall at all times distinguish between
the civilian population and combatants and between
civilian objects and military objectives and accordingly
shall direct their operations only against military
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POLITICAL LAW: “And whatever you ask in prayer, you will receive,if you have faith.” Matthew 21:22

objectives.” part in hostilities.”

Lawful Targets

· Combatants (except hors de combat)

· Civilians Taking Direct Part in Hostilities FERNANDEZ, CALAM, BARING, GENERALE,
· Military Objects (including civilian objects that DIONALDO, DIN, ALBANO, YAP, FERNANDEZ,
lost protection such as those used for military OBESO, EMBOY, MORALES, YNTIG, DIONEN, YANO,
objective) MALIGMAT

In other words, the lawful targets during armed conflict

would be:

1.) COMBATANTS, unless they become Hors de combat

(combatants that surrendered, laid their arms, and no
longer participate in combat functions.) So even if
originally lawful combatants sila, they will cease to be
when they become Hors de Combat.

2.) Civilians may be a lawful subject or target IF in

direct hostilities. Basic lang gud, Civilians not lawful
subject except when they take direct part in hostilities.

3.) Military Objects. Civilian Objects not a lawful

subject, EXCEPT when these are used for military
objectives in which case these civilian objects will lose
their protection. This is important in view of what is
happening in GAZA, in relation to the way Israel makes
their attack on Gaza. If you are up to date, Israel will
come out as violating IHL; schools, hospitals have been
attacked. Churches, have been attacked. If you have not
studied IHL, you will say that Israel is violating IHL. But
you that these civilian objects, although generally
enjoying protection may lose such protection if they have
been used militarily. For example, the school has been
used as storage for armaments and weapons. Israel daw
has proof that Hamas is storing weapons in schools and
hospitals, and in fact use them as sites for launching
missiles against Israel. Certainly, they will lose that
protection. Mao nay gi tawag ug COLLATERAL
DAMAGE RULE.

Civilian Population

Art. 51, AP I:

“1. The civilian population and individual

civilians shall enjoy general protection against
dangers arising from military operations. To give
effect to this protection, the following rules, which are
additional to other applicable rules of international
law, shall be observed in all circumstances.
2. The civilian population as such, as well as
individual civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of
which is to spread terror among the civilian population
are prohibited.
3. Civilians shall enjoy the protection afforded
by this section, unless and for such time as they take

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