University of the Philippines COLLEGE OF LAW OUTLINE Public International Law by Dean Raul C. Pangalangan I.

KEY PROVISIONS SOURCES OF LAW (Statute of the International Court of Justice, art. 38) (a) international conventions. or treaties (b) international custom, as evidence of a general practice accepted as law (c) general principles of law recognized by civilized nations (d) as subsidiary means for determining rules of law: judicial decisions (but art. 59 says that ICJ decisions have binding force only on the parties to the case. No stare decisis in ICJ, because the parties are sovereign states) teachings of most highly qualified publicists INCORPORATION CLAUSE (Const. art. II 2) The Philippines adopts the generally accepted principles of international law as part of the law of the land TREATY RATIFICATION CLAUSE (Const. art. VII 21) No treaty or international agreement shall be valid and effective unless concurred in by at least two-thirds of the Members of the Senate. II. TREATIES 1. Constitutional Framework governing treaties: Treaties are subject to the separation of powers. (a) The executive branch negotiates and SIGNS the treaty. Secretary of Justice v. Lantion. (US asks the Philippines, under the RP-US Extradition Treaty, to extradite Mark Jimenez, fugitive from US justice. Jimenez asks courts to stop his extradition, contending that he has been deprived of due process when the DOJ denied his request to see the US Justice Department request for his extradition. In the first SC decision in this case, the Court upheld Mark Jimenez, saying that the constitutional right to due process must prevail over treaty obligations. On motion for reconsideration, the Court reversed itself, emphasizing the primacy of the executive branch and of the President in foreign relations, and the need to give effect to the object arid purpose of the Extradition treaty.

(b) The legislative branch RETIFIES the treaty (by 2/3 of the Senate, under Const. art. VII 21). Guerreros Transport v. Blaylock (treaty ratification partakes of a legislative act, whereby a treaty becomes effective as municipal law for the people to observe) BUT see Tolentino v. Secretary of Finance (not the exercise of legislative power but only a check on the executive power) Special ratification requirements for treaties allowing foreign military bases, troops or facilities in the Philippines (Const. art. XVIII, Transitory Provisions, 25): (i) treaty duly concurred in by the Senate (2/3 vote); (ii) recognized as a treaty by the other contracting State; and (iii) when Congress so requires, ratified by the people (vote required: majority of all votes cast) in a national referendum held for that purpose (BUT: may the referendum also ask questions for other purposes, i.e., not relating to foreign military bases, etc.?) Bayan v. Zamora (challenging validity of the Visiting Forces Agreement with the US. Court upheld VFA: (i) art. XVIII 25 applies even if foreign military troops are here only temporarily; (ii) therefore 25 requirement that VFA be recognized as a treaty by US applies; (iii) VFA valid even if it the US consented to it as a mere executive agreement, not as a treaty (ratified by its Senate), since the US remained bound to the VFA as a treaty under the Vienna Convention on the Law of Treaties). (c) The judicial branch reviews the constitutionality of the treaty. Even after ratification, the Supreme Court has the power of judicial review over the constitutionality of any treaty, international or executive agreement (Const. art. VIII 5.2.a), and must hear such cases en banc (4.2) Tanada v. Angara (challenging validity of the Senate ratification of the WTO, on the ground that trade liberalization violates economic protectionist clauses of Philippine constitution. WTO upheld by the Court). 2. 1969 Vienna Convention on the Law of Treaties A State is bound by a treaty only with its consent. Every state, by virtue of its sovereignty, possesses the capacity to conclude treaties (art. 6). Agreement must be in written form (art. 2).

Nuclear Tests case (Australia and New Zealand asked ICJ to stop France from conducting nuclear tests in the Pacific. Court dismissed the case as moot, on the basis of a unilateral statement by France that it will cease from further testing. Unilateral statement was deemed to give rise to a binding commitment, even if it was not in treaty form) Agreement must be governed by international law (art. 2). Even non-State Parties (e.g., corporations) are free to stipulate that any dispute arising from an agreement will be governed by international law (Texaco v. Libya. In this arbitration award, the arbitrator held that the parties may validly stipulate to submit disputes to international law.) Agreement must be between States (art. 2). Abbas v. COMELEC (challenging 1987 Constitution which requires a plebiscite for granting autonomy to Muslim Mindanao vis--vis Tripoli Agreement which contains no such requirement. Was Tripoli Agreement a treaty, when it was signed by the Philippines with a non-state, the MNLF? What is the legal effect that the treaty was signed with the participation of the Organization of the Islamic Conference, consisting of all the Islamic states in the world? Not resolved by the Court.) Internal law. A party may not invoke its internal law as justification for its failure to perform a treaty. (art. 27) Abbas v. COMELEC (supra. In the eyes of municipal law, a treatv is a legislative act, and has the status of law. As such, it can be amended by subsequent laws and legislative acts. The 1987 Constitution has superseded the Tripoli Agreement, and moreover, is not a mere statute.) In re Garcia (Garcia asks to be licensed to practice law under a bilateral treaty with Spain on the mutual recognition of professional degrees and credentials. The Court rejected the petition, but added, by obiter dictum, that only the Supreme Court has the power to admit persons into law practice in the Philippines, and that this power may not be circumvented by treaty). Secretary of Justice v. Lantion. (supra. In the first Mark Jimenez decision, the Court held that in a clash between the constitutional guarantee of procedural due process vis--vis a treaty obligation to extradite, due process prevails.) Later-in-time rule. Lex posterior derogate priori. (Abbas v. COMBLEC, supra. If Tripoli Agreement is a treaty, it was incorporated as part of Philippine law. If so, within our municipal law, it stands on the same level as a statute, and can therefore be amended by subsequent statutes or, like here, by the Constitution.) Pacta sunt servanda. Every treaty in force is binding upon the parties to it and must be performed by them in good faith.

Good faith obligation for treaties signed but not ratified. Prior to the entry into force of a treaty, a State must refrain from acts that would defeat the object and purpose of the treaty. (art. 18) Two grounds for terminating or withdrawing from treaty: (a) Rebus sic stantibus. Fundamental change of circumstances (art. 62). A State may terminate or withdraw from a treaty when Requirements: (i) (ii) (iii) (iv) The circumstance was existing at the time of the conclusion of the treaty; It was not foreseen by the parties Its existence constituted an essential basis of the consent of the parties to be bound by the treaty The effect of the change is radically to transform the extent of obligations still to be performed under the treaty

Exceptions: (i) (ii) treaty establishes boundary if the fundamental change results from a breach (of the treaty or of any other rule of international law) by the party invoking it.

b) Supervening impossibility of performance (art. 61). Requirement: Impossibility results from permanent disappearance of an object indispensable for the execution of the treaty; Exception: if the fundamental change results from a breach, (of the treaty or of any other rule of international law) by the party invoking it. Rules of interpretation: (a) Object and Purpose rule. A treaty shall be interpreted (i) in good faith (ii) according to the ordinary meaning to be given to the terms (iii) in their context (iv) in light of its object and purpose. (art. 31) (b) Travaux preparatoire. Preparatory work of the treaty, as a supplementary means of interpretation (art. 32). Requirements: (i) text is ambiguous; or (ii) leads to manifestly absurd or unreasonable results. Jus Cogens. Peremptory norms of international law. (art. 53)

Definition. A norm accepted by the international community of States as a whole as a norm from which no derogation is permitted. Example: prohibition against torture, apartheid, punishment of piracy in the high seas. Legal effect. If a treaty conflicts with a rule of jus cogens, that treaty is void. Reservations. A State as a sovereign is free to consent or not to consent to treaties, and in giving its consent, is free to withhold certain matters from the operation of the treaty via a reservation. Exceptions (art. 19): (i) (ii) when the treaty expressly prohibits reservations in general, or that specific reservation; the reservation is incompatible with the object and purpose of the treaty (as earlier declared by the International Court of Justice in the Reservation to the Genocide Conventions case).

Executive Agreements vis--vis Treaties The rule is that all treaties and international agreements need the approval of 2/3 of the Senate in order to bind the Republic (Const, as. VII 21). However, executive agreements are whole class of international agreements which are signed solely by the Executive and which are not submitted to the Senate for ratification. The Philippines may bind itself internationally through a mere executive agreement IF: (a) the agreement deals with temporary and not permanent, arrangements; (b) the agreement does not deal with highly political or policy matters; or (c) the agreement merely carries out the will of the Congress. Gonzalez v. Hechanova (Congress adopts resolution prohibiting the importation of rice. Faced with a rice shortage, Executive Secretary Hechanova signs agreements with Thailand to import rice. The Court held that he had entered into an executive agreement, and struck down the agreement because it was in violation of the will of Congress) The Supreme Court has also found that states have historically resorted to executive agreements. USAFFE Veterans v. Treasurer (Secretary Romulo signed an Executive Agreement with the US. the Romulo-Snyder Agreement, to return to the US the balance remaining from war funds given by the US to the Philippines to fight WWII. The Court upheld the validity of the agreement.) Commissioner v. Eastern Sea Trading (also upholds the validity of executive agreements).

Note that distinction between executive agreements and treaties exists only in municipal law, i.e., in the eyes of the Philippine Constitution, under which treaties are ratified by the Senate, while executive agreements are signed solely by the Executive. Under the Vienna convention on the Law of Treaties, there is no such distinction, since all, that matters is that the sovereign consents, whether that consent is given through the executive branch alone, or through both the executive and the legislative branches of government. Bayan v. Zamora (supra, VFA as a mere executive agreement in the eyes of US government, but a binding treaty just the same under the Vienna Convention) Incorporation of treaty into the municipal law of a State (a) A treaty is binding between sovereign States. What the theory of incorporation answers are these questions: Can the treaty he invoked against the citizens or inhabitants of a State? Is the treaty self-executing, i.e., can it be enforced directly in the municipal courts of a State, without being legislated by Congress as part of municipal law? In contrast, does the treaty require implementing legislation, i.e., in order to be invoked in municipal courts, is it required that Congress first re-enact it as part of municipal law?

(b) The prevailing theory is that a treaty is automatically incorporated as part of Philippine law by virtue of the Incorporation Clause (Const. art. II 2). Therefore, it can be invoked by or against citizens directly in Philippine courts. Secretary of Justice v. Lantion (supra. In the first Mark Jimenez decision, the Court said: Under the doctrine 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.) La Chemise Lacoste. (Lacoste, a French corporation, sued local counterfeiters before Philippine courts. When the counterfeiters challenged its legal personality to sue before Philippine courts, the SC held that the Philippines has ratified international conventions for the protection of intellectual property, and it would frustrate the object of these conventions if Lacoste is barred from filing its claims directly in Philippine courts.) Agustin v. Edu (LTO required all vehicles to have Early Warning Device, by virtue of Vienna Convention on International Road Signs. The Court held that Philippine ratification of the Convention provided sufficient basis for the LTO requirement, even if the Congress had not passed a statute implementing the Vienna Convention). Reyes v. Bagatsing (JBL Reyes, chair of Anti-Bases Coalition, was denied a permit to hold a rally in front of US embassy. Manila Mayor Bagatsing cited, inter

alia, threats of violence and a Manila City Ordinance prohibiting rallies within a certain radius around foreign embassies. The Ordinance purported to carry out the obligation of the Philippines under an international convention for the protection of diplomatic agents. The Court made a finding of fact that there lay no actual threat to safety of the embassy. The Court did not strike down the Ordinance as a violation of the freedom of speech and of assembly) Marcos v. Manglapus (Former president wishes to return to the Philippines from exile in Honolulu, was barred by the Philippine government. The International Covenant on Civil and Political Rights provides a right to leave and to return, while the Philippine Constitution says right to travel. Court rejected the Marcos plea, but stated that the right to return, though not expressly adopted in Philippine law, is a generally accepted principle of international law and is thus incorporated as part of municipal law.) But it matters which agency of the Philippine government purports to implement the treaty directly in the Philippines, without domestic implementing legislation. Mayor Simon v. Commission on Human Rights. (CHR issues cease-and-desist order stopping Mayor Simon from demolition of squatters in North EDSA. CHR invokes right to livelihood and decent housing. SC holds, inter alia, that the Constitution limits the CHR to the protection of civil and political rights but not economic, social and cultural tights.) III. CUSTOMARY TNTERNATIONAL LAW 1. The second source of rules of international law is international custom (ICJ Statute art. 38). Note the contrast: a treaty is binding on the Philippines only if it is ratified (Treaty Ratification clause, Const. art. VII 21), while customary rules do not require ratification and are binding on the Philippines via the Incorporation Clause (adopts the generally accepted principles of international law as part of the law of the land Const. art. II 2). 2. Requisites: The key question here is: how do we ascertain whether a certain rule has crystallized into custom? A frequent example is international protection for human rights. Note wording of ICJ Statute art. 38: as evidence of a general practice which is accepted law Two requisites: (a) State practice. Actual conduct of states. Objective or material requirement. (b) Opinio juris. The requirement that actual conduct be accompanied by a set to so act is a matter of obligation. Subective or psychological requirement.

Cofu Channel case. (British sue Albania before ICJ for sinking of British vessel because of mines in Albanian waters. Court held that under customary international law, British vessels had the right of innocent passage through Albanian waters.) Asylum case. (Rebellion fails, and rebel leader seeks refuge in embassy, which gives him diplomatic asylum, and asks for safe passage. Is host country under obligation to grant safe passage? ICJ holds that there is no such obligation in the regional practice of Latin America.) Dizon v. Commanding Genera1. (SC holds that under international custom, foreign troops who are in passing through friendly territory with the consent of the sovereign enjoy immunity from local jurisdiction.) 3. Same rule can exist simultaneously as treaty law and as custom law. Kuroda v. Jalandoni. (Japanese general being prosecuted for war crimes before a Philippine military commission. Invokes nullum crimen sine lege principle, says that war crimes were not legally punishable under any Philippine law, because the Hague Convention punishing such acts was not signed by the Philippines. SC holds that the Philippines was still bound: (i) The Philippines was still a colony of the US during W\V1I, and the US was a party signatory to the Convention that punished war crimes. Therefore, war crimes were punishable on Philippine soil at the time the acts were committed. (ii) The prohibition on war crimes began as treaty law, but has since been adopted as part of customary international law. By virtue of the Incorporation Clause of the Constitution. it is part of the law of the land. Nicaragua v. United States. (The US tried to overthrow the Sandinista government in Nicaragua, by sponsoring the contra rebels and mining the harbor in Managua. Nicaragua sued the US before the ICJ for violating the ban under the UN Charter against the use of force (for mining the harbor) and for non-intervention (for abetting the contra rebels). The US filed a motion to dismiss on jurisdictional grounds, saying that when it submitted to the compulsory jurisdiction of the ICJ, it made a multilateral treaty reservation, saying that when a multilateral instrument is the basis of a suit, other states-parties must be impleaded in the case (which Nicaragua failed to do). ICJ held that since Nicaragua failed to do so, it had no jurisdiction to try the case on the basis of multilateral treaty obligations. However, the Court said that the rule of non-use of force and nonintervention are now part of custom, and that it still had jurisdiction over the case by applying these same rules as custom (but not as treaty).) 4. Application of the Incorporation Clause. International custom becomes binding on the Philippines via the Incorporation Clause.

Borovsky and Meijhoff cases. (Two separate cases, both involving undesirable aliens being deported but who cannot be deported because their original state of nationality refused to accept them. They are thus detained pending deportation. After more than two years, they file habeas corpus petition. The Court grants the petitions, citing the right to liberty contained in the 1948 Universal Declaration of Human Rights. The court said that under the Incorporation Clause, this right is part of Philippine law. NOTE: The Universal Declaration is not a treaty, it is not legally binding and is a mere common standard of achievement (Preamble). Ichong v. Hernandez (Chinese trader challenges die Retail Trade Nationalization Act, which bars aliens from retail business in the Philippines, citing the equal protection clause of the Constitution and the guarantee of equality in the 1948 Universal Declaration. Court rejects the claim, holding (as regards the Constitution) that alienage is a legitimate criterion of classification and (as regards the Universal Declaration) that the Declaration is not a treaty and is not a legally binding Instrument.) IV. GENERAL PRINCIPLES OF LAW ICJ art. 38: general principles o law recognized by civilized nations. Refers to rules which have been incubated in municipal legal systems and have eventually been recognized as authoritative. Examples are res judicata, nullum crirnen sine lege. Are also adopted as part of municipal law under Incorporation Clause. V. TEACHINGS OF HIGHLY QUALIFIED PUBLISITS Writings of experts and jurisconsults as subsidiary means of determining rules (ICJ art. 38). NOTE: This is similar to the way Philippine civil law cites Manresa, Sanchez Roman, and Scaevola as authoritative interpreters of the civil code. This article of the ICJ Stature derives from the civil law influence. Haw Pia v. China Banking and Gibbs v. Rodriguez. (Two related post-WWII cases. Borrower made amortization payments to China Bank during WWII, completed loan payments after the war, but bank refused to release him from the obligation, saying that during the war, the Japanese took over the bank as enemy asset and his wartime payments had not been validly made. Court rejected the teaching of a highly qualified publicist, an article published in the Philippine Law Journal and written by the American legal expert Charles Hyde, because although he was indeed an expert, he had written that article as an advocate (suggesting that he had a partisan not academic or scholarly - interest in the case).

VI. SUBJECTS OF INTERNATIONAL LAW 1. States The quintessential subject of international law. Traditional requirements are: territory, people, sovereignty, government. Whether or not a state is considered as such by the Philippines is a political decision made by the Executive Branch, binding and conclusive on the legis. US v. Bull. (Bull, captain of a US commercial vessel, is held criminally liable for cruelty to animals, for failing to secure cattle in the hold of his ship. He challenges the power of the Philippine Assembly to pass the law punishing him, saying the Philippine Islands were now subject to US sovereignty, which alone can legislate. Court upholds legislative power of PA over Philippine Islands, but recognizes that indeed the Philippines was not sovereign and was merely part of US territory.) Holy See v. Rosario. (Papal Nuncio sells real estate originally intended as his official residence as representative of the Vatican. Sold it to two different buyers (a case of double sale!). Second buyer sues to compel delivery: SC holds that Holy See enjoys sovereign immunity in the Philippines under the Lateran Treaty under which the sovereignty of the Vatican was recognized.) 2. Peoples Relevant in discussing the right to self-determination. The two main human rights . covenants (ICCPR and ICESCR) share a common Article 1: ckfrlM(L14f1V1 All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural, development. Note that the right is vested in peoples. Who can assert the right? Not just the people whose self-determination is denied, but other states. Why? Because the right to selfdetermination is a right erga omnes: (owed to the world), and third--parties have standing to assert the claim. Timor Gap case (Portugal v. Australia). (BACKGROUND: East Timor was a colony of Portugal. In the 1970s, Portugal withdrew from East Timor and a civil war ensued, which neighboring Indonesia used as an excuse to invade East Timor and annex it as a province of Indonesia. Since then, there has been a struggle by the people of East Timor for independence, asserting their tight to selfdetermination. CASE: Australia signed a treaty with Indonesia to govern the exploitation of natural resources in the Timor Gap, the maritime area between Australia and East Timor. Portugal sued Australia for in effect recognizing Indonesias illegal occupation of East Timor, thus being party to the denial of East Timorese self-determination. HELD: ICJ dismissed the case because it raised

issues involving a party. i.e.,Indonesia, over which the ICJ had no personal jurisdiction. HOWEVER, the ICT declared that Portugal had the locus standi to assert the claim in behalf of the people of East Timor.) See also Barcelona Traction, infra. VII. INTERNATIONAL ORGANIZATIONS Reference here is to Inter-governmental or Inter-State organizations. (also multilateral organizations). Contrast to international NGOs (non-governmental organizations). The first rule is that in international law, the original legal personality belongs to the Member-States. The inter-state organizations acquire only such personality as the Member-States give it in its enabling charter. The second rule is that these organizations have functional legal personality, namely, the legal personality required to carry out their mandated functions. The all-time leading case pertains to the legal personality of the UN. Reparations for Injuries case. (The UN Security Council sent security force to Congo. Swedish officer was killed in the performance of duty. UN asked for the advisory opinion of the ICJ on whether it had the legal personality to seek compensation in behalf of its staff member. HELD: One the UN certainly exists as a legal person vis--vis the Member-States, who signed the UN Charter which created the organization. Two, but does the UN have legal personality vis--vis non-Members? Yes, it has because the UN Member-States, in creating the organization, vested it with certain functions independent of individual Member-States -- in this case, peace keeping and the Member-States are assumed to have vested it as well with the powers necessary to carry out those functions. Under international law, it is the state of nationality of the individual that has the legal personality to claim in his behalf. However, if we make the UN dependent on the state of nationality to do so, we impair its independence from its individual Member-States.) WHO v. Aquino (The World Health Organization, an inter-State organization with regional offices in Manila, has a Host Country Agreement with the Philippines, which grants its staff diplomatic immunity. Dr. Verstuyft, WHO staff, was searched by Philippine customs authorities and found with contraband goods. Does he enjoy diplomatic immunity? NOTE: One, The diplomatic immunity of ambassadors, since they represent states, is established, in both customary law and the Convention for the Protection of Diplomatic Agents. Two, the diplomatic immunity of international organizations. being non-states, is not established by custom, but rather by treaty alone in this case, the Host Country Agreement. Third, another is whether you can properly call the Host Country Agreement a treaty, when it is between RP (a state) and the WHO (a non-state, Intl Org.) HELD: Dr. Verstuyft enjoys diplomatic immunity. When the Executive Branch, through the DFA, certifies that a person is a diplomatic agent immune

from Philippine jurisdiction, that determination is final, conclusive and binding upon the courts, and constitutes a political question that is beyond judicial inquiry. ICMC v. Calleja. (ICMC is an international NGO, not an inter-state organization. It opposes Labor Arbiters jurisdiction over labor dispute with staff. HELD: ICMC enjoys immunity, on the basis of an executive issuance granting it sovereign immunity.) People v. Jeffrey Liang. (The Asian Development Bank is the regional development bank of Asia, with headquarters in Manila, and has a Host Country Agreement with the Philippines that grants its staff diplomatic immunity for acts committed in the performance of duty. Liang, ADB Chinese national, was sued by his secretary for slander, for accusing her of being a thief and a bitch. Local court issues a warrant of arrest, DFA certifies immunity of Liang. Lower court grants Liangs motion to dismiss, invoking WHO v. Aquino. SC reverses, does not consider itself hound by the DFA certification, and orders lower court to proceed to determine whether acts were committed in the course of duty, and are therefore covered by the grant of immunity.