PUBLIC INTERNATIONAL LAW
TOPICS UNDER THE SYLLABUS:
A. Concepts
1. Obligations erga omnes
2. Jus cogens
3. Concept of aequo et bono
B. International and national law
C. Sources
D. Subjects
1. States
2. International organizations
3. Individuals
E. Diplomatic and consular law
F. Treaties
G. Nationality and statelessness
H. Treatment of aliens
1. Extradition
a. Fundamentals principles
b. Procedure
c. Distinguished from deportation
I. International Human Rights Law
1. Universal Declaration of Human Rights
2. International Covenant on Civil and Political Rights
3. International Covenant on Economic, Social and Cultural
Rights
J. International Humanitarian Law and Neutrality
1. Categories of armed conflicts
a. International armed conflicts
b. International or non-international armed conflict
c. War of national liberation
2. Core international obligations of states in International
Humanitarian Law
3. Principles of International Humanitarian Law
a. Treatment of civilians
b. Prisoners of war
4. Law on neutrality
K. Law of the sea
1. Baselines
2. Archipelagic states
a. Straight archipelagic waters
b. Archipelagic waters
c. Archipelagic sea lanes passage
3. International waters
4. Territorial sea
5. Exclusive economic zone
6. Continental shelf
a. Extended continental shelf
7. International Tribunal for the Law of the Sea
L. International environment law
1. Principle 21 of the Stockholm Declaration
Public International Law
1. Concepts, Nature, Definition of International Law
Schwarzenberger - International Law is the body of legal rules
which apply between sovereign states and such other entities as
have been granted international personality.
Is that branch of public law, which regulates the relations of
states, and other entities, which have been, granted an
international personality.
It is not imposed but simply adopted by states as a common rule
of action among themselves
Agpalo International Law as the body of rules and principles of
action which are binding upon civilized states in their
relationships with one another and those between international
organizations and states, among the international organizations
themselves, as well as states or international organizations and
natural and juridical persons, such as law governing human
rights.
Points to ponder about Public International Law
a) Defines the very existence of states
b) Provides the framework for diplomatic relations which
regulates the relation of States and other international
persons
c) Governs international agreements
d) Sets forth rules for International Commerce
e) Governs individual human rights
f) Regulates protection of global environment, affecting the
interest of States as a whole
A.A body of principles, norms and processes
B.Which regulates the relations of States and other
international persons,
C.And governs their conduct
D.Affecting the interests of States as a whole
a. Obligations Erga Omnes
The term ergo omnes (in relation to everyone) in international
law has been used as a legal term describing obligations owed by
States towards the community of states as a whole, Romulo vs.
Vinuya (G.R. 162230, April 29, 2010; 619 SCRA 533)
Such obligations derive, for example, in contemporary
International Law, from the outlawing (banning or interdiction) of
acts of aggression, and of genocide, as also from the principles
and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some
of the corresponding rights of protection have entered into the
body of general international law; others are conferred by
international instruments of a universal or quasi universal
character. Romulo vs. Vinuya (G.R. 162230, April 29, 2010)
b. Jus Cogens - Latin meaning "compelling law." This "higher
law" may not be violated by any country. For example, genocide or
slave trade may be considered to go against jus cogens.
In International Law, the term jus cogens (literally, compelling
law) refers to norms that command peremptory (absolutely or
dogmatically) authority, superseding conflicting treaties and
custom. Jus cogens norms are considered peremptory in the sense
that they are mandatory, do not admit derogation, and can be
modified only by general international norms of equivalent
authority. Romulo vs. Vinuya (G.R. 162230, April 29, 2010)
Rudiments of Jus Cogens
1. A norm accepted and RECOGNIZED by
2. The INTERNATIONAL community of states as a whole
3. NO derogation is permitted
4. Which 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.
The Philippines is NOT under a non derogable obligation to
prosecute international crimes committed against its citizens.
Romulo vs. Vinuya (G.R. 162230, April 29, 2010)
Jus Dispositivum vs. Jus Cogens
JUS DISPOSITIVUM
Refer to norems of ordinary Customary International Law which
are derived from the consent of states.
JUS COGENS
Refers to duties which every state owes to the international
community as a whole as a norm from which no derogation is
permitted and can be modified only by a subsequent norm of general
international law having the same character.
c. Concept of Aeguo Et Bono
EX AEQUO ET BONO: 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.
Is there a Private International Law?
It regulates the relations between the individuals and not of
the states inter se.
A domestic law
It deals with cases where the foreign law intrudes in the
domestic sphere where there are questions of the applicability of
foreign law or the role of foreign courts
Is this a part of Public International Law?
No , conflicts of law deals with the determination of whether in
a factual situation involving a foreign element the law of another
shall be applied
What is International Administrative Law?
Is that body of rules governing the internal affairs of
international institutions.
What is Municipal Law?
It is that which is issued by a political superior for the
strict adherence and observance of those under its authority.
Distinguish International law from:
International Ethics or Morality
It stresses more particularly on the consideration of justice
and morality.
Is the body of principles, which are observed by states in their
relations with one another on the basis of conscience, morality and
humanity.
International Diplomacy
It is anchored on expediency and self-interest.
It is the art, science, or practice of conducting negotiations
between states
International Comity
It emphasizes the rules of politeness in dealing of states with
one another.
There is a principle of international comity that a court of
another jurisdiction should refrain, as a matter of propriety and
fairness from so assuming the power of passing judgment on the
correctness of the application of law and the evaluation of the
facts of the judgment issued by another tribunal. ( Philippine
Aluminum Wheels, Inc. vs. FASGI Enterprises, Inc., 342 SCRA
722)
International Relations
It is described as that official intercourse which is maintained
by states through their foreign offices or ministries.
Transnational Law
Is the whole complex of rules, international and quasi
international, municipal and quasi-municipal, which govern
transactions, whether governmental or private, which transcend
political or jurisdictional frontiers. (Sorensen)
State some constitutional provisions dealing with international
law
a. Art.1 Sec. 1 - National territory
The National territory comprises the Philippine Archipelago with
all the islands and waters embraced therein, and all the
territories over which the Philippines has sovereignty or
jurisdiction, consisting of its terrestrial, fluvial, and aerial
domain, including its territorial sea, the sea bed, the subsoil,
the insular shelves and other submarine areas. THE WATERS AROUND,
BETWEEN AND CONNECTING THE ISLANDS OF THE ARCHIPELAGO, REGARDLESS
OF THEIR BREADTH AND DIMENSIONS, FORM PART OF THE INTERNAL WATERS
OF THE PHILIPPINES.
b. Art. 2 Sec. 2 Renunciation of war / Incorporation clause
The Philippine renounces war as an instrument of national
policy, adopts the generally accepted principles of international
as a part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all
nations.
c. Art. 2 Sec. 4 Defense of state
The prime duty of the Government is to serve and protect the
people. The Government may call upon the people to defend the State
and, in the fulfillment thereof, all citizens may be required,
under conditions provided by law, to render personal, military or
civil service.
d. Art. 2 Sec. 7 Foreign Relations
The State shall pursue an independent foreign policy. In its
relations with other states, the paramount consideration shall be
national sovereignty, territorial integrity, national interest, and
the right to self-determination.
e. Art. 4 Citizenship
Section 1.The following are citizens of the Philippines:
1. Those who are citizens of the Philippines at the time of the
adoption of this Constitution;
2. Those whose fathers or mothers are citizens of the
Philippines;
3. Those born before January 17, 1973, of Filipino mothers, who
elect Philippine Citizenship upon reaching the age of majority;
and
4. Those who are naturalized in the accordance with law.
Section 2.Natural-born citizens are those who are citizens of
the Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with paragraph (3), Section 1
hereof shall be deemed natural-born citizens.
Section 3.Philippine citizenship may be lost or reacquired in
the manner provided by law.
Section 4.Citizens of the Philippines who marry aliens shall
retain their citizenship, unless by their act or omission they are
deemed, under the law to have renounced it.
Section 5.Dual allegiance of citizens is inimical to the
national interest and shall be dealt with by law.
f. Art 6 Sec. 23 (1) - Declaration of the existence of war
The Congress, by a vote of two-thirds of both Houses in joint
session assembled, voting separately, shall have the sole power to
declare the existence of a state of war.
g. Art 7 Sec. 20 Foreign Loans
The President may contract or guarantee foreign loans on behalf
of the Republic of the Philippines with the prior concurrence of
the Monetary Board, and subject to such limitations as may be
provided by law. The Monetary Board shall, within thirty days from
the end of every quarter of the calendar year, submit to the
Congress a complete report of its decision on applications for
loans to be contracted or guaranteed by the Government or
government-owned and controlled corporations which would have the
effect of increasing the foreign debt, and containing other matters
as may be provided by law.
h. Art. 7 Sec. 21 Concurrence of treaties
No treaty or international agreement shall be valid and
effective unless concurred in by at least two-thirds of all the
Members of the Senate.
i. Art. 8 Sec. 4 (2) Constitutionality of treaties
All cases involving the constitutionality of a treaty,
international or executive agreement, or law, which shall be heard
by the Supreme Court en banc, and all other cases which under the
Rules of Court are required to be heard en banc, including those
involving the constitutionality, application, or operation of
presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations, shall be decided with the
concurrence of a majority of the Members who actually took part in
the deliberations on the issues in the case and voted thereon.
j. Art. 8 Sec. 5 (1) Jurisdiction over ambassadors, public
ministers and consuls.
The Supreme Court shall have the following powers:
Exercise original jurisdiction over cases affecting ambassadors,
other public ministers and consuls, and over petitions for
certiorari, prohibition, mandamus, quo warranto, and habeas
corpus.
k. Art. 8 Sec. 5 (2) (a) Jurisdiction over cases involving
constitutionality of treaties
The Supreme Court shall have the following powers:
Review, revise, reverse, modify, or affirm on appeal or
certiorari, as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law, presidential
decree, proclamation, order, instruction, ordinance, or regulation
is in question.
l. Art. 18 Sec. 4 Unratified treaties.
All existing treaties or international agreements which have not
been ratified shall not be renewed or extended without the
concurrence of at least two-thirds of all the Members of the
Senate.
m. Art 18 Sec. 25 RP US Bases Agreement
After the expiration in 1991 of the Agreement between the
Republic of the Philippines and the United States of America
concerning military bases, foreign military bases, troops, or
facilities shall not be allowed in the Philippines except under a
treaty duly concurred in by the Senate and, when the Congress so
requires, ratified by a majority of the votes cast by the people in
a national referendum held for that purpose, and recognized as a
treaty by the other contracting State.
2. International and National Law
1. Division of International Law
2. Monism vs. Dualism
3. Incorporation vs. Transformation
a. Types of Transformation
1. Hard Transformation Theory
2. Soft Transformation Theory
4. Conflict Between International Aid
1. International Rule
2. Municipal Rule
3. Fitzmaurice Compromise
5. Municipal Law
INTERNATIONAL LAW Set of rules and principles that govern the
relationships between States and other international actors which
under Modern International Law include International Organizations,
Transnational Corporations and Individuals.
GRAND 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 of International Law and Municipal Law
Public International Law vs. Municipal Law vs. Private
International Law
1. International law - prescribes rules and processes that
govern the relations of sovereign states with each other, and the
rights of other entities insofar as they implicate the community of
states
2. Municipal law deals with the conduct or status of
individuals, corporations, and other "private" entities within
particular states.
3. Private international law part of the laws of each State,
which determines whether in dealing with a factual situation
involving a foreign element, the law or judgment of some other
State will be recognized or applied in the forum.
MONISM vs. DUALISM
Monism views international and national law as part of single
legal system, with domestic law derived from the broader framework
provided by international law. Dualism considers international law
and internal law of states as wholly separate legal systems, the
former creating obligations only among sovereign nations and the
latter allowing each state to determine the means and form by which
it carries out its obligations.
MONISM Monists have a unitary concept of law and see all laws
(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.
DUALISM Domestic and international law are INDEPENDENT of each
other, as they regulate different subject matters. International
law regulates the relations of sovereign states, while municipal
law regulates the internal affairs of a state.
Under DUALISM, no conflict can ever arise between international
and municipal law, because the two systems are MUTUALLY EXCULSIVE.
If international law is applied within a state, it is only because
it has been expressly incorporated by municipal law. The
PHILIPPINES is DUALIST state.
INCORPORATION vs. TRANSFORMATION
What is the Doctrine of Incorporation? How does it differ from
the Doctrine of Transformation?
The doctrine of incorporation postulates that the generally
accepted principles of international law are automatically
incorporated in the municipal law of each state upon its admission
to the family of nations.
The doctrine of transformation, on the other hand, requires such
principle of international law to be enacted as statues or
otherwise converted into municipal law before they can be
considered binding on the state.
What is the DOCTRINE OF INCORPORATION?
Under this doctrine of incorporation, rules of international law
forms part of the law of the land and no further legislative action
is needed to make such rules applicable in the domestic sphere.
It is a universally accepted postulate that, with or without an
express declaration to this effect, states admitted to the family
of nations are bound by the rules prescribed by it for the
regulation of international intercourse.
This is an inevitable consequence of membership in the
international community.
The law of nations although not specially adopted by the
Constitution or Municipal Act, is essentially a part of the law of
the land. Its obligation commenced and runs with the existence of a
nation.
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.
The Philippine amenability to this doctrine of Incorporation, is
shown by affirming to recognition of the principles of
International Law in their Constitution as exemplified in Art. II,
Section 2 of the 1987 Philippine Constitution, to wit:
the Philippine renounces war as an instrument of national
policy, adopts the generally accepted principles of international
as a part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all
nations.
PERALTA vs. DIRECTOR OF PRISON, 75 Phil 287
Considering that the absolute and permanent allegiance of the
inhabitants of a territory occupied by the enemy of their
legitimate government or sovereign is not abrogated or severed by
the enemy occupation, because the sovereignty of the government or
sovereign de jure is not transferred thereby to the occupier, as we
have held in the case of Peralta vs. Director of Prisons (75 Phil.,
285), and if it is not transferred to the occupant it must
necessarily remain vested in the legitimate government; that the
sovereignty vested in the titular government (which is the supreme
power which governs a body politic or society which constitute the
state) must be distinguished from the exercise of the rights
inherent thereto, and may be destroyed, or severed and transferred
to another, but it cannot be suspended because the existence of
sovereignty cannot be suspended without putting it out of existence
or divesting the possessor thereof at least during the so-called
period of suspension; that what may be suspended is the exercise of
the rights of sovereignty with the control and government of the
territory occupied by the enemy passes temporarily to the occupant;
that the subsistence of the sovereignty of the legitimate
government in a territory occupied by the military forces of the
enemy during the war, "although the former is in fact prevented
from exercising the supremacy over them" is one of the "rules of
international law of our times";
What is the Incorporation Clause?
The Incorporation clause is found in Art. II, Section 2 of the
1987 Philippine Constitution, to wit:
the Philippine renounces war as an instrument of national
policy, adopts the generally accepted principles of international
as a part of the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation and amity with all
nations.
What is the basis of the Philippines Amenability to the doctrine
of Incorporation ?
Art. II, Section 2 of the 1987 Philippine Constitution
What is the purpose of the incorporation clause?
The incorporation clause assumes the existence of international
law which binds the Philippines as a state
What is the DOCTRINE OF TRANSFORMATION?
It holds that the generally accepted Rules of International Law
are not per se binding upon the state but must first be embodied in
legislation enacted by the law making body and so transformed into
municipal law. Only them will said law become binding upon the
state as part of its municipal law.
For an international law to be a part of the law of the land
there must be regulative enactment to transform it to municipal
law.
The generally accepted rules of international 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 bonding upon the
State as part of its municipal law
To what doctrine does the Philippines adhere to?
Apparently the Philippines adhere to both doctrines
What is the doctrine of AUTOLIMITATIONS?
It is the doctrine wherein the Philippines adhere to the
principles of International as a limitation to the exercise of its
sovereignty.
TANADA vs. ANGARA
Petitioners argued that the Senate gravely abused its discretion
in joining the WTO because it would have the effect of wiping out
local industries and enterprises and depriving Filipinos of control
of the economy.
HELD: There was no grave abuse of discretion. The WTO has some
built-in advantages to protect weak and developing economies.
Unlike the UN where major states have permanent seats and veto
powers in the Security Council, in the WTO decisions are made on
the basis of sovereign equality, with each members vote equal in
weight to that of any other. Poor countries can protect their
common interests more effectively through the WTO rather than
through one-on-one negotiations with developed countries. Within
the WTO developing countries can form powerful blocs to push their
economic agenda more decisively than outside the Organization. This
is not merely a matter of practical alliances but a negotiating
strategy rooted in law.
Moreover, the WTO Agreement grants developing countries a more
lenient treatment, giving their domestic industries some protection
from the rush of foreign competition. With respect to tariffs in
general, preferential treatment is given to developing countries in
terms of the amount of tariff reduction and the period within which
the reduction is to be spread out. As compared to developed
countries, the tariff reduction required of developing countries is
smaller, to be carried out over a longer period of time. The GATT
itself has provided built-in protection from unfair foreign
competition and trade practices including anti-dumping measures,
countervailing measures, and safeguards against import surges.
Where local businesses are jeopardized by unfair foreign
competition, the Philippines can avail of these measures.
Kuroda vs. Jalandoni 88 Phil 171 (1949)
Petitioner Shigenon Kuroda, formerly a Lt. Gen. of the Japanese
Imperial Army and Commanding General of the Japanese Imperial
Forces in the Philippines in 1943 and 1944, was charged before a
Military Commission formed by the Chief of Staff of the Armed
Forces of the Philippines for war crimes. Among his contentions was
that he was being charged of crimes not based on law, national or
international, because the Philippines was not a signatory to the
Hague Convention on Rules and Regulations Covering Land Warfare and
that it signed the Geneva Convention only in 1947. Held: The rules
and regulations of the Hague and Geneva Conventions form part of
and are wholly based on the generally accepted principles of
international law. The Court ruled that our Constitution has been
deliberately general and extensive in its scope and is not confined
to the recognition of rules and principles of international law as
contained in treaties to which our government may have been or
shall be a signatory. (Kuroda v. Jalandoni, 83 Phil. 171
[1949])
Types of Transformation Theories
a. Hard Transformation Theory
Only legislation can transform international law into domestic
law. Courts may apply international law only when authorized by
legislation.
b. Soft Transformation Theory
Either a judicial or legislative act of a state can transform
international law into domestic law.
CONFLICT BETWEEN INTERNATIONAL AND MUNICIPAL LAW
a. International Rule
Before an international tribunal, a state may not plead its own
law as an excuse for failure to comply with international law. The
state must modify its laws to ensure fulfillment of its obligations
under the treaty, unless the constitutional violation is manifest
and concerns a rule of internal law of fundamental importance.
b. Municipal/Domestic Rule
When the conflict comes before a domestic court, domestic courts
are bound to apply the domestic law. Should a conflict arise
between an international agreement and the Constitution, the treaty
would not be valid and operative as domestic law. It does not,
however, lose its character as international law.
c. Fitzmaurice Compromise
Assumes that since the two systems, international and national
law, do not operate in common field, they can never come into
conflict. Each one of them is supreme in its own domain, thereby
any apparent conflict in the domestic field is automatically
settled by the domestic conflict rules of the forum and any
conflict in the international field would be resolved by
international law.
3. Sources of International Law
A. Sources
1. Primary Sources
a. Treaty
b. Customs
i. Elements of Customs
I. States Practice
a. Duration
b. Uniformity
c. Generality
ii. Instant Custom
2. Secondary Sources
a. Judicial Decisions
b. Teaching of Highly Qualified Publicist
1. Requisites for a Highly Qualified Publicist
3. Other sources
a. Hard Law
b. Soft Law
A.SOURCES, In General
1. BROWNLIE
a.Formal sources
Legal procedures and methods for the creation of rules of
general application which are legally binding on addressees.
Equivalent in international law is principle that general
consent of states creates rules of general application
b.Material sources provide evidence of the existence of
concensus among states concerning particular rules or practices
which, when proved have the status of legally binding rules of
general application
2. Art. 38, ICJ Statute
a.International conventions
b.International custom
c.General principles of law recognized by civilized nations
d.Judicial decisions and teachings of the most highly qualified
publicists
B.International Custom
1. Definition
a.Evidence of a general practice accepted as law (Article 38,
ICJ)
b.General recognition among states of a certain practice as
obligatory (Brierly)
c.Distinguished from mere usage, involves practice that reflects
a legal obligation; Requires concurrence of two elements:
An objective element, state practice
The subjective element of opinio juris
d.A general and consistent practice of states which is followed
by them from a sense of legal obligation (Theodor Meron)
2. Kinds of Custom
a.General custom (binding on almost all states)
b. Particular and Local Custom
Custom need not always be general, that is, binding on all or
most states
Court conceded the possibility that local custom existed.
Considered possibility that local custom could exist (Asylum
Case). Same standards for establishing existence of general custom
is applicable
Recognized the existence of a bilateral custom (The Right of
Passage Case)
3. Evidence
a.Diplomatic correspondence
b.Policy statements
c.Press releases
d.Opinions of official legal advisers
e.Official manuals on legal decisions (i.e. executive decisions
and practices, government comments on drafts by the ILC)
f.International and national judicial decisions
g.Recitals in treaties and international instruments
h.Practice of international organs
4. Elements
a.Duration No particular duration or passage of time is required
provided the consistency or generality of practice are proved
b.Uniformity, consistency of the practice
Subject to court appreciation
Mere substantial uniformity and not complete uniformity is
essential (Brownlie)
c.Generality of the practice universality is not required
d.Opinio juris sive et necessitates - ("an opinion of law or
necessity") or simplyopinio juris("an opinion of law") is the
belief that anactionwas carried out because it was a
legalobligation. This is in contrast to an action being the result
of differentcognitivereaction, or behaviors that were habitual to
the individual. This term is frequently used in legal proceedings
such as a defense for a case.
Recognition of the validity of the rules in question as a form
of legal obligation in the practice of states
Belief on the part of States that a particular practice is
required by law
Two approaches for determining opinio juris in the practice of
courts
1. Existence of an opinio juris is assumed on the bases of
evidence of a general practice, or a consensus in the literature,
or the previous determinations of the Court or other international
tribunals;
2. Need for more positive evidence of the recognition of the
validity of the rules in question in the practice of states. (i.e
proof of custom outlined in the Lotus Case and North Sea Case)
5. Other Issues
a.Persistent objector Rule that a state may contract out of a
custom in the process of its formation
Evidence of objection must be clear
Presumption of acceptance of a custom must be rebutted
Principle was recognized in the Anglo-Norwegian Fisheries Case
and the North Sea Continental Shelf Case
b.Subsequent objector presumably, if a substantial number of
states assert a new rule, the subsequent contracting out of old
rules, complemented by acquiescence by other states may result in a
new rule
c.Proof of custom The proponent of a custom has the burden of
proof the nature of which varies according to the subject
matter
d.Absence of protest as a measure of generality of practice
(Brownlie)
Where several states do not object, whether the practice is
deemed sufficiently general to constitute custom among them
The absence of protest could be considered evidence of the
binding nature of the customary practice (Akehurst)
6. Cases
a.North Sea Continental Shelf Case, ICJ Reports (1969)
On whether there is a custom regarding the equidistance special
circumstances basis of delimiting the continental shelf
On proof of opinio juris
Passage of only a short period of time is not necessarily a bar
to the formation of new customary law.
Within that period, although short, State practice should be
both extensive and virtually uniform in the sense of the provision
invoked that such State practice occur in a way to show a general
recognition that a rule of law or legal obligation is involved.
b.Case Concerning Military and Paramilitary Against Nicaragua
(Nicaragua vs. US)
Proof of custom (citing North Sea Case)
The acts concerned must amount to a settled practice.
Settled practice must be accompanied by opinio juris sive
necessitates (That the States taking action or the states reacting
must have behaved so that their conduct is evidence of a belief
that the practice is rendered obligatory by the existence of a rule
of law requiring it.
c.Asylum Case, ICJ Reports (1950)
Case involving the practice in the exercise of diplomatic asylum
by states
Party relying on custom must prove that this custom is
established in such a manner
That it has become binding on the other party
That the rule invoked is in accordance with a constant and
uniform usage practiced by the States in question
That the usage is an expression of a right appertaining to the
State invoking and a duty incumbent on the State against whom
invoked
C.Treaties
1. Definition
a.An international agreement concluded between States
b.In written form
c.Governed by international law
d.Whether embodied in a single instrument or in two or more
related instruments
e.Whatever its particular designation.
2. Nature
a.Constitutes law between the parties, who, under the principle
of pacta sunt servanda, are required to fulfill their treaty
obligations. (VCLOT, Article 26)
b.Every treaty in force is binding upon the parties to it and
must be performed by them in good faith. (VCLOT, Article 26)
c.Create general norms for the future conduct of the parties in
terms of legal propositions
d.Those where the obligations are basically the same for all
parties
e.In principle binding only on parties to the treaty
3. Examples of what are regarded as treaties
a.Treaties
b.Executive agreements (In Philippine law, while both treaties
and executive agreements are equally binding, only treaties require
Senate concurrence for their effectivity
c.Exchanges of notes
4. Stages for Execution of Treaties
a.Negotiation
b.Adoption of the text of the treaty by the parties
By the parties giving of consent
For multilateral treaties, consent of 2/3 of the parties is
needed
Adoption merely fixes the text of the treaty; It gives no
binding obligation yet.
c.Subsequent consent to be bound by the terms of a treaty given
through
Signature, when the negotiator is authorized to sign the
treaty
Ratification, the formal consent to the treaty given by the Head
of State, sometimes in conjunction with the legislature.
Accession, the acceptance of treaty by a state that did not
participate in its negotiation
When signature without ratification is sufficient [Article
12(1), VCLOT]
The treaty provides that signature shall have that effect;
It is otherwise established that the negotiating States were
agreed that signature should have that effect; or
The intention of the State to give that effect to the signature
appears from the full powers of its representative or was expressed
during the negotiation
Ratification when imperative [Article 14(1), VCLOT]
The treaty provides for such consent to be expressed by means of
ratification;
It is otherwise established that the negotiating States were
agreed that ratification should be required;
The representative of the State has signed the treaty subject to
ratification
5. Other issues
a.Contract Treaties vs. law-making treaties
Contract Treaties Bilateral arrangements [entered into between
two or a few States] concerning matters of particular or special
interest to the contracting parties (Salonga)
Law-making treaties - Executed by a large number of States
(Salonga)
To declare the law on a particular subject
To stipulate general rules for future conduct
To create an international institution.
Distinction is important in deciding whether particular treaty
obligations have crystallized into customary norms.
Basis for classification of a treaty as falling into either
category: Nature and effect of the norms they contain
It is lawmaking or legislative where there is an inherent or
juridical element in those treaties (i.e. 'dispositive' or 'real'
character of the transaction effected by the treaty, and the
permanent nature created by or in pursuance of the treaty)
b.Treaty vis--vis Custom
Possibility for the same norm to exist both as a customary norm
and as conventional norm (i.e. the prohibition of aggressive
war)
The customary norm, even if its content is identical with that
of a treaty norm, retains a separate identity.(Brownlie)
Modes by which a norm acquires such dual character
(Akehurst)
A treaty provision may simply restate a customary norm
A treaty provision may crystallize into a customary norm
A treaty provision may constitute evidence of custom.
c.How treaties cystallize into custom:
The provision must be norm-creating
The treaty must be lawmaking, creating legal obligations, which
are not dissolved by their fulfillment.
The number of parties, the explicit acceptance of rules of law,
and, in some cases, the declaratory nature of the provisions
produce a strong law-creating effect at least as great as the
general practice considered sufficient to support a customary rule.
(Brownlie)
d.Treatment of Resolutions by International Organizations (i.e.
GA or SC Resolutions of the United Nations)
UN GA resolutions
Have no binding effect under the UN Charter, save in limited
fields like budgetary matters (Article 17, UN Charter)
Generally just regarded as recommendations
May constitute a kind of state practice, and thus, have some
significance in the development particularly of customary law.
Factors to consider in determining the legal significance of
such resolutions (Higgins)
Whether they are binding or recommendatory
The majorities supporting them
The repeated practice in relation to them
On evidence of opinio juris
6. Case Concerning Military and Paramilitary Against Nicaragua
(Nicaragua vs. US), ICJ Reports (1986)
The termination of the treaty obligation will not itself bring
about dissolution of the customary norm; A state that cannot invoke
another state's liability for violating a treaty can still invoke
the liability for the breach of custom, even if they involve the
same obligation.
D. General Principles of Law
1. Nature
a.Rules accepted in the domestic law of all civilized states
b.General principles of municipal jurisprudence, particularly
private law, insofar as they are applicable to relations of states.
(Brownlie citing Oppenheim)
2. Examples
a.Roman Law principles
Principle of consent - Sovereign equality solemnly emphasizes
the same basic initial position of all States: their same legal
capacity. Theoretically, no State, large or small, would consider
itself bound by rules to which it has not consented. For
international conferences and organizations this means unanimous
decision-making ( International Organizations or Institutions,
Decision-Making Process). Sovereign equality moreover implies that
States are not subject to foreign jurisdictions without their
consent.
Principle of prescription 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. Prescription in international law requires
long, continued and adverse possession to vest acquisitive title in
the claimant.
Principle of res inter alios acta - has a common meaning: "A
matter between others is not our business." It provides that the
rights of a party cannot be prejudiced by an act, declaration, or
omission of another.
Principle of res judicata means "a thing decided" in Latin. It
is a common law doctrine meant to bar re-litigation of cases
between the same parties in Court. Once a final judgment has been
handed down in a lawsuit subsequent judges who are confronted with
a suit that is identical to or substantially the same as the
earlier one will apply res judicata to preserve the effect of the
first judgment. This is to prevent injustice to the parties of a
case supposedly finished, but perhaps mostly to avoid unnecessary
waste of resources in the court system. Res judicata does not
merely prevent future judgments from contradicting earlier ones,
but also prevents them from multiplying judgments, so a prevailing
plaintiff could not recover damages from the defendant twice for
the same injury.
b.Procedural rules
Use of circumstantial evidence
c. Substantive obligations
Principle of reciprocity states that favours, benefits, or
penalties that are granted by one state to the citizens or legal
entities of another, should be returned in kind.
Pacta sunt servanda means that treaties must be observed in good
faith despite hardship on the contracting state
Duty to observe good faith one of the fundamental rules of
international law is pacta sunt servant, which requires the
performance in good faith of treaty obligations. Despite
supervening hardships such as conflicts with the municipal law or
prejudice to the municipal interest, the parties must comply with
their commitments under a treaty and can not ignore nor modify its
provisions without the consent of the other signatories.
Duty to make restitution - Restitution is generally associated
with the idea of returning something lost or stolen to its
legitimate owner. In international law, however, the notion of
restitution is linked with the issue of state responsibility. In
this sense, restitution is one of the forms through which a state
may discharge its obligation to provide reparation for the harm
caused by its wrongful acts. More precisely, the term is used, in
international practice, in at least two senses. In the strict
sense, it signifies the return of unlawfully taken property to the
original owner. In the broad sense, restitution (or, in its Latin
version, restitutio in integrum) is the re-establishment, as far as
possible, of the situation that existed before a wrongful act was
committed.
d.Others
Principle of equality of states states are juridically equal,
enjoy the same rights, and have equal capacity in their exercise.
The rights of each one do not depend upon the power which it
possesses to assure its exercise, but upon the simple fact of its
existence as a person under international law.
Principle of finality of awards and settlements is one of the
factors which has pitched arbitration against constitutional rights
advocates. The argument is that everyone has a constitutional roght
to court for the determination of disputes therefore any agreement
which precludes a person from going to court must be
unconstitutional.
The underlying principle is that an arbitration agreement is
subordinate to the
constitutional right to go to court and have disputes resolved.
Therefore, it is felt that
an arbitration agreement does not and cannot preclude the right
to go to court.
Principle of legal validity of agreements
Principle of domestic jurisdiction nothing contained in the
present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of
any state or shall require the Members to submit such matters to
settlement under the present Charter.
Principle of freedom of the seas - doctrine that ships of any
nation may travel through international waters unhampered. It
includes the right of neutral shipping in wartime to trade at will
except where blockades are established.
3. Cases
a. Corfu Channel Case, ICJ Reports (1949)
Recourse to circumstantial evidence as indirect evidence is
admitted in all systems of law and its use is recognized by
international decisions
b. Chorzow Factory Case, 1928 PCIJ Ser. A, No. 17
It is a principle of international law that any breach of an
engagement involves an obligation to make reparation
c. Barcelona Traction, Light and Power Company Case, ICJ Reports
(1970)
General conception of the limited liability company to be found
in systems of municipal law
E.Judicial Decisions and Writings of Publicists
1. Judicial Decisions
a. Nature
While not constituting a formal source of the law, is regarded
as authoritative evidence of the state of the law (Brownlie)
Exercise considerable influence as an impartial and
well-considered statements of the law by jurists made in the light
of actual problems (Salonga)
b. Examples of International Tribunals (Brownlie)
International Court of Justice and its predecessor, the
Permanent Court on International Justice
Permanent regional courts
European Court of Justice
European and Inter-American Courts on Human Rights
Ad hoc and permanent arbitral tribunals
US-Mexico Claims Commission
Permanent Court of Arbitration
Ad hoc tribunals
International Military Tribunal at Nurnberg
International Military Tribunal in the Far East
Organizational tribunals
Panels and appellate body of the World Trade Organization
Arbitration facilities as in the International Center for the
Settlement of International Disputes (ICSID) of the World Bank
International Labor Organization
Commission on Human Rights
Ad hoc and permanent criminal courts
International Criminal Tribunal for Rwanda
International Criminal Tribunal for Yugoslavia
International Criminal Court
c. Issues
Judicial precedent
Article 59, ICJ Statute: That decisions of the Court has no
binding force except as between the parties and in respect of that
particular case
Though without strictly a doctrine of precedent, the Court
strives to maintain judicial consistency
Sources of judicial decisions
Decisions of arbitral tribunals
Decisions of the ICJ and its predecessors
Decisions of Courts of Justice of the European Communities
Decisions of national courts
Ad hoc international tribunals
Pleadings in cases before international tribunals
2. Writings of Publicists
a. Nature:
Constitute mere evidence of law
Issues (Brownlie)
That some publicists may be expressing not what the law is (lex
lata) but what they think the law should be or will become (lex
ferenda)
Any appraisal of publicists will tend to colored by subjective
factors.
b. Sources analogous to the writings of publicists
Draft articles of the International Law Commission
Harvard Research drafts
Separate and dissenting opinions of judges of the World
Court
F.Other Sources of Law
1. Ex Aequo et Bono [Article 38(2) of the ICJ Statute]
a. Literally means 'from what is equitable and good'
b. Possible application
Consider as the equivalent of the application of equity
Consider as implying the use of compromise, conciliation and
friendly settlement between the parties
2. Equity
a. Defined: The application of standards of justice that are not
contained in the letter of the existing law
b. Usually applied in maritime demilitation cases and
territorial disputes
3. Unilateral Declarations
a. Eastern Greenland case
The statement of Norway's Foreign Minister on Denmark's
territorial claim led the Court to resolve that Denmark not only
had a superior claim, but that Norway was bound by the Ihlen
Declaration not to oppose it.
b. Nuclear Test Cases
The statement of France that it would cease atmospheric nuclear
tests, signaled that there had ceased to be a dispute, since France
had bound itself to do what Australia and New Zealand wanted.
Declarations made by way of unilateral acts, concerning legal or
factual situations, may have the effect of creating legal
obligations.
No quid pro quo, nor any subsequent acceptance, nor even any
reaction from other States is required for such declaration to take
effect.
G. The Status of Norms
1. Jus Cogens
a. Norms deemed to have a superior status in international law,
admitting of no derogation.
b. Peremptory or non-derogable norms
c. Distinguished from jus dispositivium, which states may
derogate from or limit through their agreements (Magallona)
d. Effect where a norm is jus cogens in character
A treaty provision violating jus cogens norms would be void
(Article 53, VCLOT)
A subsisting treaty provision would be voided by the creation of
a new peremptory norm. (Article 64, VCLOT)
2. Erga Omnes
a. International obligations of such a nature that their
violation by any state allows any other state to invoke the
violator's liability, even if only one state or only a few incurred
direct material damage.
b. Barcelona Traction Light and Power Co Case
The grant of standing to sue because of violations of an erga
omnes obligation is premised on the idea that the maintenance of
some norms are of interest to the entire world community, their
violation being an injury to the interest, not only of the state
directly offended, but of all states. (i.e. outlawing acts of
genocide or aggression)
H. Problems
1. The Question of UN General Assembly Resolutions
a. Western Sahara Case
On the many GA Resolutions on self-determination: The repetition
of certain rules or provisions in later General Assembly
resolutions goes to the question of uniformity or constancy of
practice
b. Texaco vs Libya
Reliance by arbitral tribunals on General Assembly Resolutions
regarding the rules on expropriation
4. Subjects
a. States
b. International Organizations
c. Individuals
Actors / Subjects in International Law
A. In General
1. Subject Defined: Entity capable of possessing international
rights and duties and having the capacity to maintain its rights by
bringing international claims (Reparations for Injuries Case)
2. Object Defined: The person or thing in respect of which
rights are held and obligations assumed by the subject
3. Contexts in which question of personality arises
a.Capacity to make claims in respect of breaches of
international law
b.Capacity to make treaties and agreements velid on the
international plane
c.Enjoyment of privileges and immunities from national
jurisdictions
4. Established Legal Persons in International Law
a.States
b.Political entities legally proximate to states (i.e. political
settlements both in multilateral and bilateral treaties which have
produced political entities)
c.Condominium as a joint exercise of state power within a
particular territory by means of an autonomous local
administration
d.Internationalized territories special status as created by a
multilateral treaty and protected by an international
organizations
e.International Organizations (i.e. United Nations)
f.Agencies of States
g.Agencies of Organizations
B. States
1. Definition
a.A group of people, more or less numerous, permanently living
in a definite territory, under an independent government organized
for political ends and capable of entering into legal relations
with other states.
b.That which possesses the following qualifications under the
Montevideo Convention on Rights and Duties of States
A permanent population
People defined:
a. An aggregate of individuals of both sexes
b. Who live together as a community despite racial or cultural
differences
c. Sufficient in number to maintain and perpetuate
themselves
d. Must live in a stable, political community
Territory defined: fixed portion of the surface of the earth
inhabited by the people of the state. It must be permanent and
indicated with precision because its limit generally define the
jurisdiction of the state.
a. Must have control over a certain area
b. Need not be exactly defined by metes and bounds, so long as
there exists a reasonable certainty of identifying it
c. Need not exactly be large in area
Government wields a legal order by means of centralized
administrative and legislative organs; that institution or
aggregate institutions by which an independent society makes and
carries out those rules of action which are necessary to enable men
to live in a social state, or which are imposed upon the people
forming that society by those who possess the power or authority of
prescribing them.
Independence - capacity to enter into relations with other
states.
2. Recognition
a.Issue of legal significance of the reaction of other states to
an act of another state which may or may not affect the legal
rights or political interests of the other states (as establishing
the existence of the state)
b.Two schools of thought:
Constitutivist school: The political act of recognition is a
precondition of the existence of legal rights [of a State]
Declaratory school: Recognition is a mere declaration or
acknowledgement of an existing state of law and fact, legal
personality having been conferred previously by operation of
law
3. Sovereignty, its significance in international law
a.Sovereignty
The supreme and uncontrollable power inherent in a State by
which that State is governed (Cruz)
The general legal competence of states, including its power to
exercise legislative jurisdiction, and the power to acquire title
to territory (Brownlie)
b.Sovereignty vis-a-vis Equality of states principle
(Brownlie)
Principle of Fundamental Equality of States [Article 2(1), UN
Charter]
Principal corollaries of the sovereignty and equality of
states
Jurisdiction over a territory and the people on it
Duty of non-intervention in areas of exclusive jurisdiction of
other states
Dependence of international obligations of a State on its
consent.
c.Varied Notions of Sovereignty (Cruz)
Legal vs. Political
Legal sovereignty - Authority to issue final commands
Political sovereignty - Power behind the legal sovereign or the
sum of influences that operate upon it
Internal vs. External
Internal sovereignty Power to control states own internal
affairs
External sovereignty - Power "to direct its relations with other
States (independence)
d.Issues
Sovereignty and International Obligations (Brownlie)
Whether states become bound by an international obligations is
dependent on its consent.
When a State binds itself by treaty to a particular undertaking,
this obligation does not constitute a violation of sovereignty.
Act of entering into the treaty, and other binding international
agreements, is itself an exercise of sovereignty (Aramco Case)
Doctrine of Reserved Domain Jurisdiction (Brownlie)
That nothing in the Charter authorizes the UN to intervene in
what is essentially within this reserved domain or requires members
to submit such matters to settlement under the Charter [Article
2(7) of the UN Charter]
Reserved domain as the domain of state activities where the
jurisdiction of states is not bound by international law
Limitation: Without prejudice to the use of enforcement measures
under Chapter VII of the Charter [Article 2(7) of the UN
Charter]
4. Territorial Sovereignty / State Territory in General
a.Territorial Sovereignty, Basic Points
Defined as the right to exercise in ones territory to the
exclusion of any other state, the functions of a state.
That the exercise of this is not absolute is manifested by the
following prohibitions:
A State may not cause injury to aliens within its borders
A State may not allow acts within its borders that may harm the
environment in other states (US vs. Canada / Nuclear Test
Cases)
b.Types of jurisdictional regimes over territory
Territorial sovereignty
Regime of territories not subject to the regime of any state but
have a regime of their own (e.g., trust territories)
Res nullius, i.e., subject matter legally susceptible to state
acquisition but not yet placed under territorial sovereignty
Res communis, pertaining to those territories not capable of
being places under state sovereignty (e.g., outer space)
Brownlie
c.Methods of acquiring territory
Discovery
Though formerly allowed, the law at present requires that this
be followed up with effective occupation. (Island of Palmas
Case)
Under the present law, discovery gives the State an inchoate
title that entitles it to perfect its claim by exercising effective
control over the area within a reasonable time.
Occupation
Acquisition by a state of terra nullus, (unoccupied land, or
land not possessed by any other state), whether that land was never
occupied or was abandoned. (August)
Requisites
iThe making of a claim by the state, usually through
discovery
iiThe subsequent exercise of effective control over the
territory, through occupation or other activity
iiiAnimus occupandi, the intent to acts as sovereign.
Accretion
The gradual deposit of soil by a river flowing past a shore or
by an ocean along its coasts
Follows the principle that what is added follows the principal
thing to which the adding is done. (i.e. A riparian State as
acquiring title to the accretion to its coasts)
Prescription
Definition: When a State continually occupies and acquires title
to land that formerly belonged to another state.
Vis--vis Abandonment: Abandonment means a retreat from
territory
Requisites (Von Glahn)
iA state occupies territory that is claimed by another
state
iiThe occupying state exercises sovereignty over it
iiiThe owner makes no protest
ivEventually, the original title lapses
vThe occupying state acquires lawful title
Cession
Voluntary cession - a State relinquishes title over territory to
another, usually through a treaty
Conquest
The acquisition of territory through the use of force
(August)
Requisites
iThe intent to appropriate
iiThe ability to maintain control of, the subjugated territory,
demonstrated by undisputed de facto possession over a sufficient
period of time.
No longer a valid means of acquiring title, aggressive war been
presently condemned by the UN Charter and by customary law
d.Intertemporal Law
The rights derived from a legally significant act depend on the
norms of law in force at the time the act was concluded
Whether a State has acquired title to a particular area of
territory depends on the law at the time the act of acquisition was
done, and not on international law as it stands today
(Brownlie)
The continued existence of a right acquired under the old law
depends on the law as it evolves (Island of Palmas Case)
e.Air and Space
A State has complete sovereignty over the airspace over its
territory and its territorial sea, and has jurisdiction over an
aircraft from the moment it enters the said airspace (August)
A State has no rights of sovereignty in outer space, which, with
the moon and all celestial bodies, constitutes "the province of all
mankind" (August)
The question is where airspace and sovereignty ends, and outer
space and res communis begins.
C. International Organi5. Extraditionzations
1.General Points
a.Considered subjects of international law "if their legal
personality is established by their constituent instrument
(charter)
b.Criteria of legal personality which an international
organization needs to fulfill (Magallona quoting Brownlie)
It must constitute "a permanent association of states, with
lawful objects, equipped with organs."
There must be "a distinction, in terms of legal powers and
purposes, between the organization [and] its member states."
It must have legal powers that it may exercise "on the
international plane and not solely within the national systems of
one or more states."
c.Reparations for Injuries Case
Though the UN Charter did not expressly clothe the United
Nations with the capacity to bring an international claim for
reparations, the UN nevertheless possessed this power. The
Organisation must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by
necessary implication as being essential to the performance of its
duties."
2. The UN Charter and the Use of Force
a.Pertinent Rules on Use of Force under the UN Charter
Members are to refrain from the threat or use of force in their
international relations against the territorial integrity and
political independence of any state inconsistent with the UN [Arts.
2(4)], 24(1), 25, 23(1), 27(3), UN Charter
b.Cases
Military and Paramilitary Activities In and Against
Nicaragua
The prohibition against the use of armed force is part of
customary international law
An exception to the rule prohibiting force is the exercise of
the right to self-defense
iThe submission of the exercise of the right of self-defense to
the conditions of necessity sand proportionality is a rule of
customary international law.
iiSelf-defence warrants only measures which are proportional to
the armed attack and necessary to respond to it
iiiIn individual self-defense, the exercise of the right is
subject to the State having been the victim of an armed attack.
ivBy an armed attack is meant not only action by regular forces
across an international border but also the sending by or on behalf
of a state of armed bands, groups, irregulars, mercenaries etc,
which carry out acts of armed force against another State.
Legality of the Use By a State of Nuclear Weapons
The prohibition on the use of armed force in Article 2(4) of the
UN Charter does not refer to specific weapons. It
While the proportionality principle may not exclude in all case
the use of nuclear weapons, such use to be lawful, must still meet
the requirements applicable in an armed conflict (rules on
humanitarian law)
Where the use of force in itself would be illegal, the threat to
use such force would likewise be illegal
Mere possession of nuclear weapons is not an illegal threat to
use force per se. It depends on whether the particular use of force
envisioned is directed against the territorial integrity, political
independence or against the UN purposes
3. International Court of Justice
a.Under the United Nations Charter
Designated the principal judicial organ of the United Nations
(Arts. 92)
All UN members are deemed ipso facto parties to the Statute of
the Court (Art. 93) 94, 96 UN Charter
b.Jurisdiction of the Court
Over whom
Over contentious cases between states, based on consent of the
parties (Article 34(1)
The jurisdiction of the Court to hear and decide the merits of
the case depends on the will of the parties (Anglo-Iranian Oil
Case)
Who determines existence of jurisdiction
The court has jurisdiction to determine it own competence
(competence de la competence)
In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision of the
Court (Nottebohm Case)
Over what subject matter
Over all matters specially provided for in the Charter of the
United Nations [Article 36(1)]
Over all legal disputes referred to the Court on recommendation
of the United Nations [Article 36(3)]
Compulsory jurisdiction of the court, where the legal dispute
concerns [Article 36 (2)]
iInterpretation of a treaty
iiQuestion of international law
iiiExistence of facts, which if established, constitutes a
breach of an international obligation
ivNature or extent of reparation to be made for the breach of an
international obligation
c.Applicable Law: The court is to decide in accordance with
international law such disputes as are submitted to it (Article
38)
d.Advisory Opinions
May be given by the Court on any legal question at the request
of whatever body may be authorized by pr in accordance with the
Charter of the UN to make the request. [Article 65(1)].
May be requested by both the General Assembly and the Security
Council (Article 96)
Uses
Assist political organs in settling disputes
Provide authoritative guidance on points of law arising from the
functions of organs and specialized agencies
D. The Individual
1.Preliminary Points
2. Human Rights
a.States can agree to confer certain rights to individuals
b.Recognition of the need to protect individual human rights in
the realm of international law
3. Nationality
a.In general
Membership in a political community, one that is personal and
more or less permanent, not temporary (Salonga, PRIL)
The bond that unites individuals with a given state, that
identifies them as members of that entity, that enables them to
claim its protection, and that also subjects them to the
performance of such duties as their state may impose on them. (Von
Glahn)
b.Citizens vs. Nationals
Citizens - limited to those who are endowed with political and
civil rights in the body politic of a State
Nationals - includes citizens as well as persons who, not being
citizens, owe permanent allegiance to the State and are entitled to
its protection.
c.Importance of Nationality in International Law
Determines whether a State can undertake diplomatic protection
(to demand reparations from another State for the harm done to an
individual) Nottebohm Case
May allow a State to claim legislative and judicial jurisdiction
over an individual even outside its territory (Extraterritorial
sovereignty)
d.Determining Nationality
State rights vis--vis determination of nationality (Von
Glahn)
Liberty to determine who are and who are not its nationals
Liberty to set conditions for the conferment of nationality
Liberty to set conditions and means for its deprivation.
Limitations on the States power over its nationals (Nationality
Decrees Issued in Tunis and Morocco, Advisory Opinion)
Universal Declaration of Human Rights: That "[n]o one shall be
arbitrarily deprived of his nationality nor denied the right to
change his nationality.
International Covenant on Civil and Political Rights: That every
child shall have the right to acquire nationality.
Nottebohm Case
iA grant of nationality may be recognized as valid yet be deemed
to be ineffective in an international forum.
iiThe Court acknowledged Liechtenstein's power to decide
Nottebohm's nationality under its domestic law, but noted that not
all acts in domestic law are given binding effect as against other
States, particularly in an international tribunal
4. Protection of Aliens
a.Basic Points in International Law
States are obliged to undertake the protection of foreign
nationals in their territory from injury or loss, particularly as a
consequence of unlawful acts (Barcelona Traction, Light and Power
Co.)
States are bound to protect foreign nationals from the illegal
acts of their own public officials (Noyes Claim)
b.Ways by which a state violates its duty to protect foreign
nationals
When the state itself or its organs or officers, under the color
of authority, violate the rights of aliens, where officers act in
their official capacity, since such acts are directly imputable to
the state that employed them.(Caire claim)
When it fails to exercise due diligence to prevent injury or
consequent damage from being inflicted on aliens by state officers
and individuals
When it fails to undertake diligent efforts to prosecute and
punish the miscreants who violated the rights of aliens and
inflicted harm upon them.
c.Minimum Standard in the Treatment of Aliens
National standard: By which States are required to treat
foreigners in the same way that it treats its citizens.
International standard: By which States should treat foreigners
with a minimum standard of care set by international law,
independently of how it treats its own citizenry. (Neer Claim)
d.Doctrine of Diplomatic Protection
That the State comes before the tribunal to ask relief for the
violation of the rights of the State through the harm done to its
citizens, and the tribunal would award damages to the State.
(Oppenheim)
Exhaustion of local remedies (ELSI Case)
A requirement of diplomatic protection
Recognized as a general principle of international law
Requisites to use this as a defense against a states claim for
diplomatic protection
iThere must be a claim by a state before an international
tribunal
iiThe claim is for harm done to its citizen
iiiBut the citizen failed to exhaust the remedies available to
him in his domestic state in order to obtain redress for the
violation.
ivProvided such there are indeed effective remedies available
within its jurisdiction.
5. Extradition
a.Definition
The surrender of an individual accused or convicted of a crime
by a State within whose territory he is found and his delivery to
the state where he allegedly committed crime or was convicted of a
crime. (Magallona)
b.Nature
Characterized as a sui generis process.
Not a criminal proceeding
Not purely an exercise of ministerial functions
c.Extradition as practiced
Under Philippine law (Magallona)
Done only pursuant to a treaty and convention
With a view to criminal investigation or execution of a prison
sentence
Under international law
No duty to extradite except pursuant to treaty
In the absence of a treaty, extradition would have to be subject
to negotiation, subject to the consent of the extraditing state
d.Requirements for Extradition
The requesting State must specify the crime under the
extradition treaty for which the fugitive or accused is sought
(specialty principle)
The fugitive is to be tried only for the offense specified in
the treaty
Double criminality that the offense for which one is to be
extradited is also punishable in the requested state
e.Exceptions to Extradition (When a State may refuse to
extradite)
The Political Offense Exception
When the person is charged with a political offense that is, an
act directed against a security of a state.
Requisites of a political offense
iAn overt act
iiDone in support of a political rising
iiiWhich rising being connected with a dispute or struggle
between two groups in a state as to who would control the
government
When the Political Offense Exception is not applicable
iPersons accused of offenses that are considered to be crimes
against international law must nonetheless be extradited, unless
they can be effectively prosecuted in the state with custody
(Bassiouni)
iiAttentat clauses - provisions in the extradition treaty that
stipulate that an attempt against or taking of the life of a head
of state or a member of his/her family does not constitute a
political offense and is extraditable
The Nationality Exception
States may refuse to extradite persons when they are nationals
of the requested state.
Doctrine of reciprocity: If a requesting State has, in the past,
shown willingness to surrender its own citizens, then the detaining
state is normally willing to extradite its own citizens, except
when its Constitution forbids the surrender of its citizens.
6. International Criminal Law
a.Nuremberg Tribunal: On the question of individual
responsibility
That international law imposes liabilities and duties upon
individuals as upon states has long been recognized
Crimes within the jurisdiction of the tribunal
Crimes against peace
War crimes
Crimes against humanity
b.1949 Geneva Convention
Provided for individual responsibility for serious breaches of
obligations therein provided
Provided for a duty by a Contracting State to search for persons
alleged to have committed the grave breach and the prosecute them
before their own courts, or to hand them over to another State
capable of so prosecuting the offender (aut dedere, aut
judicare).
In what instances may a state come into existence?
peaceful acquisition of independence
Revolution
Unification of several states
Seclusion
Agreement
Attainment of civilization
What are the Fundamental Rights of a State?
The right of existence and self- defense
The right of independence
The right of equality
The right of property and jurisdiction
The right of legation and diplomatic intercourse
5. Diplomatic and Consular Law and Immunities
A. Diplomatic and Consular Laws and Immunities
4. DIPLOMATIC AND CONSULAR RELATIONS
a. Right of Legation
c. Types
b. Diplomatic and Consular Immunities
c. Diplomatic v Consular Immunities
5. State and Diplomatic Immunity
a. Immunity, In General
b. State Immunity
c. Scope of State Immunity
d. Absolute
e. qualified
c. Act of State Doctrine
d. Process of Suggestion
e. Immunity of Foreign Armed Forces
DIPLOMATIC AND CONSULAR LAWS AND IMMUNITIES
iii. DIPLOMATIC AND CONSULAR RELATIONS
Right of Legation
The right of a state to maintain diplomatic relations with other
states and entities granted with international personality. It is
the right to send and receive diplomatic missions which enables
States to carry on friendly intercourse.
Types
A. ACTIVE Right to send diplomatic representatives
B. PASSIVE Right to receive diplomatic representatives
c. Diplomatic and Consular Immunities
d. Personal
e. Inviolability of Immunity of premises
f. Right of protection
g. Immunity from local jurisdiction on the basis of
international custom
h. Exemption from taxes and personal services
i. Inviolability of means of communication
j. Immunity from search of bag
d. Diplomatic v Consular Immunity
DIPLOMATIC IMMUNITY (Vienna Convention on Diplomatic
Relations)
Premises of the mission include the BUILDINGS or parts of
building and the LAND irrespective of ownership used for the
purpose of the mission including the RESIDENCE of the head of
mission.
The agents of the receiving state may NOT ENTER the premises
except with the CONSENT of the head of the mission.
The diplomatic representative shall not be liable to any form of
arrest and detention.
A diplomatic agent enjoys immunity from criminal jurisdiction of
the receiving STATE. He may not be arrested, prosecuted or punished
for any offense he may commit, unless his immunity is waived. The
privilege, however, only exempts a diplomatic agent from local
jurisdiction: it does not import immunity from legal liability.
The diplomatic agent also enjoys immunity from the civil and
administrative jurisdiction of the receiving STATE, even with
respect to his private life.
His properties are not subject to garnishment, seizure for debt,
execution and the like.
The diplomatic agent also cannot be compelled to testify, not
even by deposition, before any judicial or administrative tribunal
in the receiving STATE without the consent of his government.
The diplomatic bag shall not be opened or detained.
A diplomatic agent shall enjoy immunity from jurisdiction of the
receiving state except in case of:
2. REAL ACTION relating to private immovable property
EXCEPTION: HE holds it on behalf of the sending state for the
purpose of the mission.
3. Actions for SUCCESSION
4. Professional or commercial activity
A diplomatic agent is NOT obliged to give evidence as a
WITNESS.
CONSULAR IMMUNITY (Vienna Convention on Consular Relations)
Consular premises include the BUILDINGS or parts of building and
the LAND irrespective of ownership used exclusively for the purpose
of consular post.
The consular premises, their furnishings, the property of the
consular post and its means of transport shall be immune from any
form of requisition fro purposes of national defense or public
utility. If expropriation is necessary for such purposes, all
possible steps shall be taken to avoid impeding the performance of
consular functions, and prompt adequate and effective compensation
shall be paid to the sending State.
The agents of the receiving state may NOT ENTER the premises
except with the CONSENT of the head of consular post.
The consent may be ASSUMED in case of fire on other disaster
requiring prompt protective action.
The consular bag shall not be opened or detained.
Authorities may request that the bag be opened in their presence
by an AUTHORIZED representative of the sending state if they have
SERIOUS REASON to believe that the bag contains objects other that
articles, documents, correspondence or articles.
Members of the consular post shall enjoy immunity from the
jurisdiction of the receiving state in respect of acts performed in
the EXERCISE OF CONSULAR FUNCTION except in case of:
Civil action arising out of a contract concluded by a person who
DID NOT CONTRACT expressly or impliedly as an AGENT of the sending
state.
Civil action by a third party fro damage arising from an
ACCIDENT in the receiving state caused by a VEHICLE, VESSEL or
AIRCRAFT.
Members of the consular post MAY be called upon to attend as
WITNESSES.
If a consular officer should decline to do so, NO COERCIVE
MEASURE or PENALTY may be applied.
iv. STATE AND DIPLOMATIC IMMUNITY
4. Immunity
GENERAL RULE: The jurisdiction of a state within its territory
is complete and absolute.
EXCEPTIONS: Sovereign immunity and diplomatic immunity.
5. State Immunity
The state may not be sued without its consent. This is based on
the principle of par in parem non habet imperium (an equal has no
power over an equal).
b. Scope of State Immunity
B. ABSOLUTE
C. QUALIFIED IMMUNITY/RESTRICTIVE APPLICATION OF STATE
IMMUNITY
State immunity now extends only to acts jure imperii, when the
proceedings arise out of commercial transactions of the foreign
sovereign, its commercial activities or economic affairs. However,
it does not apply where the contract relates to the exercise of its
sovereign functions. USA v Guinto (G.R. No. 76607, February 26,
1990)
6. Act of State Doctrine
Courts of one country will not sit in judgment on the acts of
the government of another in due deference to the independence of
sovereignty of every sovereign state. PCGG v Sandiganbayan (G.R.
No. 124772, August 14, 207)
The act of state doctrine is one of the methods by which States
prevent their national courts from deciding disputes which relate
to the internal affairs of another State, the other two being
immunity and non-justiciability. It is an avoidance technique that
is directly related to a States obligation to respect the
independence and equality of other States by not requiring them to
submit t adjudication in a national court or to settlement of their
disputes without their consent. It requires the forum court to
exercise restraint in the adjudication of disputes relating to
legislative or other government acts which a foreign State has
performed within its territorial limits. PCGG v Sandiganbayan (G.R.
No. 124772, August 14, 2007)
7. Doctrine of Sovereign Immunity
Immunity from jurisdiction is enjoyed by both the head of state
and by the state itself.
8. Process of Suggestion
A process where the foreign state or the international
organization sued in an American court requests the Secretary of
State to make a determination as to whether it is entitled to
immunity. If the Secretary of State finds that the defendant is
immune from suit, he, in turn, asks the Attorney General to submit
to the court a :suggestion that the defendant is entitled to
immunity.
In the Philippines, the practice is for the foreign government
or the international organization to first secure an executive
endorsement of its claim of sovereign or diplomatic immunity. The
DFA has made the endorsement through the following:
2. A LETTER that the defendant cannot be sued because it has
diplomatic immunity. International Catholic Migration Commission v.
Calleja (190 SCRA 130 (1990))
3. A Manifestation in Court and Memorandum as amicus curiae.
Baer v. Tizon (57 SCRA 1 (1974)
The fact that the Solicitor General has endorsed claim of States
immunity from suit does NOT sufficiently substitute for the DFA
certification. GTZ v. CA (GR No. 152318, April 16, 2009)
The determination by the department is considered a political
question that is conclusive upon Philippine Courts.
9. Immunity of Foreign Armed Forces
The rule in international law is that foreign armed forces
allowed to enter ones territory are immune from local jurisdiction,
except to the extent agreed upon. The Status of Forces Agreements
involving foreign military units around the world vary in terms and
conditions, according to the situation of the parties involved, and
reflect their bargaining power. But the principle remains, i.e. the
receiving State can exercise jurisdiction over the forces of the
sending State only to the extent agreed upon by the parties.
Nicolas v. Romulo (G.R. No. 175888, February 11, 2009)
BOOK OF MAGALLONA
6. Treaties
TREATY
It is an International Agreement in written form concluded
between Sates that may be embodied in one or more instrument, and
is governed by International Law. (Art.2, Vienna Convention on the
Law of Treaties).
Under the Vienna Convention, the term treaty includes all
agreements between states, regardless of how they are called. Thus,
for purposes of international law, treaties, executive agreements,
exchange of notes, etc. are called treaties. Note, however, that
Philippine law makes a distinction between treaties and executive
agreements. Both are equally binding, but only treaties require the
concurrence of the Senate to be effective.
4. TREATY V. EXECUTIVE AGREEMENT
TREATY
SUBJECT MATTER:
CODE: PNP
5. POLITICAL Issues
6. Changes in NATIONAL POLICY
7. International arrangements of a PERMANENT character
Must be ratified by 2/3 of the Senate to become valid and
effective (Art. 7, Sec.21)
EXECUTIVE AGREEMENT
SUBJECT MATTER:
Code: TITA
a. Arrangements of TEMPORARY nature
b. IMPLEMENTATION of treaties and statutes
c. TRANSITORY Effectivity
d. ADJUSTMENT of details carrying out established national
policie and traditions
Does not need to be ratified by the Senate.
There are no hard and fast rules on the propriety of entering,
on a given subject, into a treaty or an executive agreement as an
instrument of international relations. The primary consideration in
the choice of the form of agreement is the parties intent and
desire to craft an international agreement in the form they so wish
to further their respective interests. The matter of form takes a
back seat when it comes to effectiveness and binding effect of the
enforcement of a treaty or an executive agreement, as the parties
in either international agreement each labor under the pacto sunt
servanda principle. Bayan Muna v. Romulo (G.R. No. 159618, February
2, 2011).
5. POWER TO NEGOTIATE AND SENATE CONCURRENCE
In the realm of treaty-making, the President has the sole
authority to negotiate with other states. It follows that Congress,
while possessing vast legislative powers, may not interfere in the
field of treaty negotiations. While Article VII, Section 21
provides for Senate concurrence, such pertains only to the validity
of the treaty under consideration, not to the conduct of
negotiations attendant to its conclusion. Moreover, it is not even
Congress as a whole that has been given the authority to concur as
a means of checking the treaty-making power of the President, but
only the Senate. AKBAYAN v. AQUINO (G.R. No. 170516, July 16,
2008).
The signing of a treaty is composed of two separate and distinct
process to which each requires the exclusive prerogative and act of
the executive and legislative. One is the signing of the treaty
which is handled by the executive DEPARTMENT during the NEGOTIATION
stage. The other is the RATIFICATION stage where the PRESIDENT
ratifies a treaty but with the concurrence of 2/3 of the
Senate.
It is within the power of the President to refuse to submit a
treaty to the Senate or, having refused its consent for
ratification, refuse to ratify it. The Senates role is LIMITED only
to giving or withholding its concurrence to the ratification. The
Senate cannot, by mandamus, compel the executive to transmit a
treaty for concurrence. Pimentel v. Executive Secretary (G.R. No.
158088, July 6, 2005)
6. PACTA SUNT SERVANDA
All parties tot Treaty must comply with their treaty obligation
in good faith.
A state CAN AVOID PERFORMANCE if the treaty collides with its
Constitution, but it CANNOT ESCAPE LIABILITY that It may incur as a
result of such non-performance.
From the perspective of public international law, a treaty is
favored over municipal law pursuant to the principle of pacta sunt
servanda. A party to a treaty is not allowed to invoke the
provisions of its internal law as justification for its failure to
perform a treaty is always subject to qualification or amendment by
a subsequent law, or that it is subject to the police power of the
State. Lim v. Executive Secretary (G.R. No. 151445, April
11,2002.
7. REBUS SIC STANTIBUS
The general rule is that a FUNDAMENTAL CHANGE of circumstances
is NOT A GROUND for treaty to be suspended or terminated.
Exceptions
a. The circumstances are the ESSENTIAL BASIS of consent.
b. The obligation is TRANSFORMED RADICALLY that it becomes
burdensome or unreasonable.
Exceptions to the Exceptions
M. If the treaty establishes a BOUNDARY
N. If the fundamental change is the result of a BREACH by the
party invoking t of an obligation under the treaty or of any other
obligation owed to any other party to the treaty.
Rebus sic stantibus is an exception to the rule of pacta sunt
servanda
.
8. PROCEDURES IN TREATY-MAKING
d. Negotiation
e. Signature
f. Ratification
g. Exchange of Instruments of Ratification
h. Registration with UN
i. TREATY RESERVATION
It is a unilateral statement made by a State when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effects of certain
provisions of the treaty in their application to that State.
j. GROUNDS FOR INVALIDITY OF A TREATY
Code: DJ-FEC
c. Duress
d. Jus cogens
e. Fraud
f. Error of Fact
g. Corruption
k. GROUNDS FOR TERMINATION
Code: RAIN-DOVE-EL
1 Rebus sic stantibus
2 Accomplishment of purpose
3 Impossibility of performance
4 Novation
5 Extinction of one of parties, if treaty is bipartite
6 Desistance of parties
7 Voidance of treaty
8 Outbreak of war
9 Loss of subject matter
10 Expiration of Term
l. CLEAN SLATE RULE
When one state ceases to exist and is succeeded by another on
the same territory, the newly independent state is NOT BOUND to
maintain in force, or become a party to, any treaty made by its
predecessor although at the date of succession of States the treaty
was in force with respect to the territory to which the succession
of State relates. (Art. 16, Vienna Convention on the Succession of
States with Respect to Treaties)
Exceptions
When the new state agrees to be bound by the t