PUBLIC INTERNATIONAL LAW International law is that branch of public law which regulates the relations of States and

of other entities which have been granted international personality (e.g. the UN). Modern international law after World War II, however, now deals not only with the relations between states, but also their relations with persons, natural or juridical (e.g. intl human rights law). Distinction between a subject and object of international law A subject is an entity that has rights and responsibilities under international law; it can be a proper party in transactions involving the application of international law among members of the international community. Subjects include: states, colonies, the Holy See, the United Nations. An object is a person or thing in respect of which rights are held and obligations assumed by the subject; it is not directly governed by the rules of international law; its rights are received, and its responsibilities imposed, indirectly through the instrumentality of an international agency. Traditionally, individuals have been considered merely as objects, not subjects, of international law; however, modern IL now grants, primarily through treaties, a certain degree of international personality to individuals (e.g. individuals are granted by treaty the power to sue before the European Court of Human Rights). Divisions of International Law 1) LAWS OF PEACE- Governs the normal relations of States 2) LAWS OF WAR - Rules during periods of hostility 3) LAWS OF NEUTRALITY- rules governing States not involved in the hostilities Relation to Municipal Law 2 VIEWS: 1) DOCTINE OF INCORPORATION - rules of international law form part of the law of the land and no further legislative action is needed to make such rules applicable in the domestic sphere. a) Such is recognized in art. 2, sec. 2, as the Philippines "adopts the generally accepted principles of international law as part of the law of the land." b) Rules of international law are given equal standing with, but are not superior to, national legislative enactments. Thus, the Constitution, as the highest law of the land, may invalidate a treaty in conflict with it. [Secretary of Justice v. Hon. Lantion and Mark Jimenez, Jan. 18, 2000] 2) DOCTRINE OF TRANSFORMATION - the generally accepted rules of int'l law are not per se binding upon the State but must first be embodied in legislation enacted by the lawmaking body and so transformed into municipal law. Only when so transformed will they become binding upon the State as part of its municipal law. 2 THEORIES: 1) DUALISM domestic and international law are independent of each other, as they regulate different subject matter. IL regulates the relations of sovereign states, while municipal law regulates the internal affairs of a state. Thus, no conflict can ever arise between international and municipal law, because the two systems are mutually exclusive. If IL is applied within a state, it is only because it has been expressly incorporated by municipal law. The Philippines is a dualist state. 2) MONISM Monists have a unitary concept of law and see all law including both international and municipal law as an integral part of the same system. If conflict exists between international law and municipal law, international law must prevail. Germany is a monist state.

Sources of International Law Article 38 of the Statute of the International Court of Justice (ICJ) is considered the authoritative enumeration of the sources of International Law. A) PRIMARY 1. TREATY / INTERNATIONAL CONVENTIONS - Generally, a treaty only binds the parties. However, treaties may be considered a direct source of Int'l law when concluded by a sizable no. of States, and is reflective of the will of the family of nations (in which case, a treaty is evidence of custom). 2. CUSTOM - Practices which, through persistent usage, have grown to be accepted by States as legally binding. 2 Elements: 1. STATE PRACTICE a consistent and uniform external conduct of States. Generally, both what states say and what they do are considered state practice. 2. OPINIO JURIS - State practice must be accompanied with the conviction that the State is legally obligated to do so by int'l law, and not through mere courtesy or comity, or because of humanitarian considerations. Q: What is 'INSTANT' CUSTOM? A: Customary law may emerge even within a relatively short passage of time, if within that period, State Practice has been uniform and extensive. (ex. Law on the Continental Shelf) Thus, int'l law does NOT always require a long period of time to elapse before conduct is considered customary. 3. GENERAL PRINCIPLES OF LAW - Principles common to most national systems of law; rules based on natural justice. ex. good faith, estoppel, exhaustion of local remedies. B) SECONDARY 1. JUDICIAL DECISIONS - a subsidiary means for the determination of rules of law (e.g., determining what rules of customary IL exist) that is acceptable so long as they correctly interpret and apply int'l law. Note: Even decisions of national courts, when applying int'l law, are acceptable. ex. Principles on diplomatic immunity have been developed by judgments of national courts. 2. TEACHINGS OF PUBLICISTS -- The word 'Publicist' means 'learned writer.' Learned writings, like judicial decisions, can be evidence of customary law, and can also play a subsidiary role in developing new rules of law. 2 Requisites: 1. Fair and impartial representation of law. 2. By an acknowledged authority in the field.

State A ) ELEMENTS OF A STATE: A State should possess the following qualifications (Art. 1, Montevideo Convention): 1) 2) 3) 4) a permanent population; a defined territory; government; capacity to enter into relations with other States.

B) DISTINCTIONS BETWEEN SOVEREIGNTY AND INDEPENDENCE A. SOVEREIGNTY is the broader term. It refers to the supreme and uncontrollable power inherent in the State by which such State is governed. It has 2 aspects: 1. INTERNAL- freedom of the State to manage its own affairs. 2. EXTERNAL- freedom of the State to direct its foreign affairs. B. INDEPENDENCE is synonymous with external sovereignty. It is defined as the power of a State to manage its external affairs without direction or interference from another State. C) PRINCIPLES OF STATE SUCCESSION A. STATE SUCCESSION is the substitution of one State by another, the latter taking over the rights and some of the obligations of the former. B. 2 types of State Succession: 1. UNIVERSAL- takes place when a State is completely annexed by another, or is dismembered or dissolved, or is created as a result of merger of 2 or more States. 2. PARTIAL - takes place when a portion of the territory of a State loses part of its sovereignty by joining a confederation or becoming a protectorate or suzerainty. C. Effects of State Succession 1. The allegiance of the inhabitants of the predecessor State is transferred to the successor State. 2. The political laws of the predecessor State are automatically abrogated but the non-political laws are deemed continued unless expressly repealed or contrary to the institutions of the new sovereign. 3. The public property of the successor State is acquired by the successor State but not the tort liability of the former. 4. Treaties entered into by the predecessor State are not considered binding on the successor State except those dealing with local rights and duties such as servitudes and boundaries. D) SUCCESSION OF GOVERNMENT 1. In succession of government, the integrity of the original State is not affected as what takes place is only a change in one of its elements, the government. 2. Effects of a change in government: a. If effected by peaceful means, the new government inherits all rights and obligations of the old government. b. If effected by violence, the new government inherits all the rights of the old government. However, the new government may reject the obligations of the old government if they are of a political complexion.

If the obligations are the consequence of the routinary act of administration of the old government, they should be respected. E) TERRITORY 1. Methods used in defining the territorial sea a. Normal baseline method Under this method, the territorial sea is drawn from the low-water mark of the coast to the breadth claimed, following its sinuosities and curvatures but excluding the internal waters in bays and gulfs. b. Straight baseline method Straight lines are made to connect appropriate points on the coast without departing radically from its general direction. The waters inside the lines are considered internal. 2. Some modes of acquisition: a. Cession It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state in accordance with an agreement between them. b. Subjugation It is a derivative mode of acquisition by which the territory of one state is conquered in the course of war and thereafter annexed and placed under sovereignty of the conquering state. c. Prescription It is a derivative mode of acquisition by which territory belonging to one state is transferred to the sovereignty of another state by reason of the adverse and uninterrupted possession thereof by the latter for a sufficiently long period of time. F) RIGHT OF LEGATION a. It is the right of a state to maintain diplomatic relations with other states. b. Types: 1. Active- right to send diplomatic representatives 2. Passive- right to receive diplomatic representatives Treaties 1) DEFINITION ( Art. 2, Vienna Convention on the Law of Treaties) A TREATY is: 1) 2) 3) 4) 5) an international agreement concluded between States in written form governed by international law embodied in a single instrument or in 2 or more related instruments.

Q: If not in writing, is it still considered a treaty? A: Yes. Oral agreements between States are recognized as treaties under customary international law (but are extremely rare nowadays).

2) DISTINGUISHED FROM EXECUTIVE AGREEMENTS A. Subject matter of Treaties [Code: PCI]

1. Political Issues 2. Changes in National Policy 3. Involve international arrangements of a permanent character B. Subject Matter of Executive Agreements [Code: TAAI ] 1. Have Transitory effectivity 2. Adjustment of details carrying out well-established national policies and traditions 3. Arrangements of temporary nature 4. Implementation of treaties, statutes, well-established policies C. Need for ratification by the Senate 1. TREATIES AND INT'L AGREEMENTS -- While the Constitution vests the power to NEGOTIATE treaties with the President, such must be RATIFIED by the 2/3 of the Senate to become valid and effective (Art.7, Sec 21) 2. EXECUTIVE AGREEMENTS do not need to be ratified by the Senate 3) PRINCIPAL RULES OF INTERNATIONAL LAW IN CONNECTION TREATIES WITH

A. PACTA SUNT SERVANDA - Every treaty in force is binding upon the parties and must be performed by them in good faith. this applies despite hardships on the contracting State such as conflicts between the treaty and its Constitution. B. REBUC SIC STANTIBUS - A party is not bound to perform a treaty if there has been a fundamental change of circumstances since the treaty was concluded. 1) it has been described as the exception to the rule of pacta sunt servanda. 2) justifies the non-performance of a treaty obligation if the subsequent condition in relation to which the parties contracted has changed so materially and unexpectedly as to create a situation in which the exaction of performance would be unreasonable. 3) Rebus sic stantibus may not be invoked as a ground for terminating or withdrawing from a treaty: a. if the treaty establishes a boundary b. if the 'fundamental change' is the result of a breach by the party invoking it of an obligation under the treaty or of any other obligation owed to any other party to the treaty. C. JUS COGENS - a rule which has the status of a peremptory (i.e., absolute, uncompromising) norm of international law. Elements: 1. a norm accepted and recognized 2. by the int'l community of States as a whole 3. as a norm from which no derogation is permitted. 4. It can only be modified by a subsequent norm having the same character.

If a treaty, at the time of its conclusion, conflicts with jus cogens, it is void. Examples: (1) prohibition against the unlawful use of force; (2) prohibition against piracy, genocide, and slavery State Responsibility (1) it is the doctrine which holds a state responsible for any injury sustained by an alien within its jurisdiction. Because of an international wrong imputable to it, the state will be responsible if it is shown that it participated in the act or omission complained of or was remiss in redressing the resultant wrong. (2) Types of State responsibility a. Direct responsibility-attaches to the state if the wrongful act/omission was effected through any of its superior organs acting on its behalf b. Indirect responsibility (3) Conditions for the enforcement of the doctrine of state responsibility a. The injured alien must first exhaust all local remedies b. He must be represented in the int'l Claim for damages by his own state (ordinarily, individuals have no standing to bring a claim before international law). Settlement of Disputes 1) AMICABLE METHODS A. NEGOTIATION- discussion by the parties of their respective claims and counterclaims with a view to the just and orderly adjustment. B. INQUIRY - an investigation of the points in question with the view that this will contribute to the solution of the problem C. GOOD OFFICES - method by which a 3rd party attempts to bring the disputing states together in order that they may be able to discuss the issues in contention. D. MEDIATION- 3rd party actively participates in the discussion in order to reconcile the conflicting claims. Suggestions of mediator are merely persuasive E. CONCILIATION- 3rd party also actively participates in order to settle the conflict. Suggestions of conciliator are also not binding. As distinguished from mediation, the services of the conciliator were solicited by the parties in dispute. F. ARBITRATION- process by which the solution of a dispute is entrusted to an impartial tribunal usually created by the parties themselves under a charter known as the compromis. The proceedings are essentially judicial and the award is, by previous agreement, binding on the parties.

2) HOSTILE/NON-AMICABLE METHODS A. RETORSION - is a lawful act which is designed to injure the wrongdoing State. Ex.: cutting off economic aid (this is lawful because there is no legal obligation to provide economic aid). B. REPRISAL - an act which would normally be illegal but which is rendered legal by a prior illegal act committed by the State against which the reprisal is directed; it is a form of retaliation against the prior illegal act. Reprisals may be used only when other means of redress (e.g. protests and warnings) have failed. SPECIAL TOPICS EXTRADITION 1) EXTRADITION is the surrender of a person by one state to another state where he is wanted for prosecution or, if already convicted, for punishment. 2) Basis of Extradition: a treaty. Outside of treaty, there is no rule in international law compelling a State to extradite anyone. Such may be done, however, as a gesture of comity. 3) Principles: a) Principle of Speciality - a fugitive who is extradited may be tried only for the crime specified in the request for extradition ARE included in the list of extraditable offenses in the treaty. b) Under the Political offense exception, most extradition treaties provide that political and religious offenders are not subject to extradition. Q: The Philippines entered into an extradition treaty with another country which provided that it would apply crimes committed before its effectivity. The country asked the Philippines to extradite X for a crime committed before the effectivity of the treaty. X argued the extradition would violate the prohibition against ex post facto laws. Is he right? A: No. The constitutional prohibition applies to penal laws only. The extradition treaty is not a penal law. (Wright v. CA, 235 SCRA 341)

SECRETARY OF JUSTICE V. HON. LANTION AND MARK JIMENEZ (G.R. # 139465, Oct. 17, 2000, overturning the Courts previous decision in 322 SCRA 160 dated Jan. 18, 2000) By virtue of an extradition treaty between the US and the Philippines, the US requested for the extradition of Mark Jimenez for violations of US tax and election laws. Pending evaluation of the extradition documents by the Philippine government, Jimenez requested for copies of the US' extradition request. The Secetary of Justice denied that request. ISSUE: During the evaluation stage of the extradition proceedings, is private respondent entitled to the two basic due process rights of notice and hearing? HELD: Private respondent is bereft of the right to notice and hearing during the evaluation stage of the extradition process. Extradition is a proceeding sui generis. It is not a criminal proceeding which will call into operation all the rights of an accused guaranteed by the Bill of Rights. The process of extradition does not involve the determination of the guilt or innocence of an accused. His guilt or innocence will be adjudged in the court of the state where he will be extradited.

Dissent (original decision): Under the extradition treaty, the prospective extraditee may be provisionally arrested pending the submission of the request. Because of this possible consequence, the evaluation process is akin to an administrative agency conducting an investigative proceeding, and partakes of the nature of a criminal investigation. Thus, the basic due process rights of notice and hearing are indispensable. Assuming that the extradition treaty does not allow for such rights, the Constitutional right to procedural due process must override treaty obligations. When there is a conflict between international law obligations and the Constitution, the Constitution must prevail. UNITED NATIONS ORGANS 1. GENERAL ASSEMBLY Composition: All members of the UN (as of 1996: 185 member States) Function: The GA may discuss any question or matter within the scope of the Charter or relating to the powers and functions of any other organ. It is also vested with jurisdiction over matters concerning internal machinery ands operations of the UN. 2. SECURITY COUNCIL Composition: 15 members: a) 5 Permanent Members (China, France, UK, US, Russia) b) 10 non-permanent: elected for 2 year terms by the General Assembly. Function: the maintenance of international peace and security. Q: What is the "double veto"? A: In all non-procedural matters, each permanent member is given a 'veto' - a Security Council decision is ineffective if even one permanent member votes against it. The veto does not ordinarily apply to Procedural matters. However, a permanent member may exercise a 'double veto' when it vetoes any attempt to treat a question as procedural, and then proceed to veto any draft resolution dealing with that question. 3. SECRETARIAT - CHIEF ADMINISTRATIVE ORGAN OF THE UN 4. ECONOMIC AND SOCIAL COUNCIL - organ charged with promoting social progress and better standards of life in larger freedom 5. TRUSTEESHIP COUNCIL - organ charged with administration of Int'l Trusteeship System. 6. INTERNATIONAL COURT OF JUSTICE - judicial organ of the UN. USE OF FORCE Under Article 2(4) of the UN Charter, all member States are bound to refrain from the threat or use of force against the territorial integrity or political independence of a State. Recognized exceptions: 1) self-defense 2) military action taken or authorized by the UN or competent Regional organizations (such as NATO).

CALVO CLAUSE A CALVO CLAUSE is a provision inserted in contracts, in which the foreigner agrees in advance not to seek the diplomatic protection of his national State. In general, International Courts have disregarded such clauses, as the right to diplomatic protection is a right which belongs to a State, and waiver from an individual does not bind his State. STATE IMMUNITY (JURE IMPERII and JURE GESTIONIS) Originally, under customary international law the doctrine of absolute state immunity applied, covering all areas of State activity and recognizing only very narrow exceptions. Nowadays, the rule is to adopt a doctrine of qualified immunity -- that is, immunity is granted to foreign States only in respect of their governmental acts (acts jure imperii), not in respect of their commercial acts (acts jure gestionis). DIPLOMATIC IMMUNITY Diplomatic Immunity is a principle of customary international law that grants immunity to diplomatic representatives, in order to uphold their dignity as representatives of their respective states and to allow them free and unhampered exercise of their functions. In the Philippines, immunity is claimed by request of the foreign state for endorsement by the Department of Foreign Affairs. The determination by the executive department is considered a political question that is conclusive upon Philippine Courts. INTERNATIONAL CONTRACTS Usually, agreements between States and foreign corporations contain stipulations as to which national legal system governs the contract. Occasionally, however, in case of powerful multinational companies, such contracts are placed not under any single system of municipal law, but under international law, general principles of law, or the provisions of the contract itself. The reason for concluding these so-called internationalized contracts is to establish a balance between the parties and prevent the State party from evading its obligations under the contract by changing its own internal law. This is mostly secured by an arbitration clause referring disputes under the agreement to an international body. THE INTERNATIONAL COURT OF JUSTICE 1) "Optional Clause" of the ICJ: As a rule, the ICJ can operate only on the basis of the consent of States to its jurisdiction. Such may take the form of a special agreement between States to submit an existing dispute before the Court (i.e. compromis). However, under the 'optional clause' (art. 36(2), ICJ Statute), a State may declare in advance that they recognize the jurisdiction of the Court as compulsory ipso facto and without need of special agreement, in relation to any other State accepting the same obligation, in all legal disputes concerning: a. the interpretation of a treaty; b. any question of international law c. existence of any fact which, if established, would constitute breach of international obligation; and d. nature or extent of reparation to be made for breach of international obligation.

2) STARE DECISIS does not apply to the ICJ. Under the statute of the Court, previous decisions have no binding force; in practice, however, the Court always takes past decisions into account.

Q: What does it mean to decide a case EX AEQUO ET BONO? A: It is to rule in justice and fairness -- equity overrides all other rules of law. The ICJ has no power to decide a case ex aequo et bono, unless all parties agree thereto [art. 38(2), ICJ Statute]. Q: Who has standing before the ICJ? A: Only States may be parties in contentious proceedings before the ICJ (art 34, ICJ Statute).